No. 3--01--0178

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2001 

In Re T.B., B.B.,				)	Appeal from the Circuit Court

	C.R., and I.R., Minors		)	of the 10th Judicial Circuit,

							)	Peoria County, Illinois

(The People of the State ofOF		)

IllinoisLLINOIS,						)

							)

	Petitioner-Appellee,		)	No. 98--JA--154	

							)

	v.						)

							)	

BarbaraARBARA R.,					)	Honorable

                                )	Jerelyn D. Maher

	Respondent-Appellant).		)	Judge, Presiding

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	JUSTICE McDADE delivered the oOpinion of the cCourt:  

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	Following a permanency review hearing, the court ordered

that the permanency goal for the respondent mother's children be

changed from "return home" to "substitute care."  Section 2--

28(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--

28(3) (West 2000)) states that any such order is immediately

appealable as of right.  Accordingly, the respondent appeals from

the court's order.  We dismiss the appeal for lack of

jurisdiction because we hold that section 2--28(3) violates the

separation of powers clause of the Illinois Constitution.

BACKGROUND

	On September 2, 1998, the State filed a juvenile petition

asking that the court find the respondent's children neglected

because of a history of domestic violence in the home, the

respondent's substance abuse problem, and the respondent's

attempted suicide.  The court ordered that the parents should not

commit further incidents of domestic violence, should not have

alcohol or illegal substances in the home, and should not use

such substances.

	The State filed a supplemental juvenile petition on

October 7, 1998, alleging violations of the previous court order. 

The court then ordered that the children be placed in shelter

care.

	Following a dispositional hearing on the petitions, the

court found the respondent to be unfit.  She was ordered to

complete a variety of tasks.  Five permanency review orders

submitted by the court between April 29, 1999, and September 7,

2000, indicated that the respondent was making reasonable

progress toward completing her assigned tasks.  Each of these

permanency review orders set a permanency goal of "return home"

for the children.

	On February 1, 2001, the court's permanency review order

changed this goal to "substitute care."  The court noted that the

respondent had not made reasonable efforts to achieve the service

plan and permanency goal because of her mental illness, missed

appointments, engaged in threatening behavior toward a visitation

specialist, her attempted to "drop" an order of protection against the father of two of the children, and her subsequently attempted to

reunite with him.  The respondent appeals from this latest

permanency review order, as provided by the Act.  705 ILCS 405/2-

-28(3) (West 2000).

ANALYSIS

	Section 2--28 of the Act provides the procedure a court uses

to establish a permanency goal for minors found to be abused or

neglected.  705 ILCS 405/2--28 (West 2000).  The court must

conduct permanency hearings at a minimum of every six months

after the initial permanency hearing.  705 ILCS 405/2--28(2)

(West 2000).  Following each permanency hearing, the court shall

enter a written order.  705 ILCS 405/2--28(3) (West 2000).  The

final sentence of section 2--28(3) states that such an order

"shall be immediately appealable as a matter of right under

Supreme Court Rule 304(b)(1)."  705 ILCS 405/2--28(3) (West

2000).  This Illinois Supreme Court rule states that an "order

entered in the administration of [a] *** guardianship, *** which

finally determines a right or status of a party" is appealable. 

155 Ill. 2d R. 304(b)(1).

	Recently, two districts of the Illinois Appellate Court have

ruled that the final sentence of section 2--28(3), granting an

appeal as of right from a permanency review order, violates the

separation of powers clause of the Illinois Constitution.  See In re D.D.H., 319 Ill. App. 3d 989, 749 N.E.2d 31 (5th Dist. 2001);  In re C.B., 322 Ill. App. 3d 1011, 750 N.E.2d 1271 (4th Dist. 2001).  The separation of powers clause states that the three branches of government are separate and no branch shall exercise

powers properly belonging to another.  Ill. Const. 1970, art. II,

§1.  Appeals from final judgments to the Illinois Appellate Courts

are a matter of right.  Ill. Const. 1970, art. VI, §6.  Only the

Illinois Supreme Court by rule may provide for appeals from

judgments other than final judgments.  Ill. Const. 1970, art. VI,

§6.

	Both D.D.H. and C.B. ruled that a permanency review order is not a final judgment from which a parent may properly appeal. 

D.D.H. stated that such an order is not a final determination of the right or status of a parent, but, rather, is an intermediate

step for the protection and best interests of a child.  D.D.H., 319 Ill. App. 3d 989, 749 N.E.2d 31.  The legislative branch may

not arrogate the right to grant an appeal from a judgment that is

not a final judgment.  D.D.H., 319 Ill. App. 3d 989, 749 N.E.2d 31.  This judicial power is explicitly given to the Illinois

Supreme Court by the Illinois Constitution.  Ill. Const. 1970, art. VI, §6.

	We appreciate what the legislature may have intended by

providing a party with a right to appeal from an order changing a

permanency goal.  Certainly, such a changed goal often is a

difficult, although not impossible, hurdle for a parent to

overcome.  However, the legislative branch is constitutionally

prohibited from providing a parent with such an appeal as of

right.

	As in D.D.H. and C.B., we find that the final sentence of section 2--28(3) granting a right of appeal is severable from the

rest of the statute.  As the court stated in D.D.H., the appeals provision of the statute is merely a procedural means of

providing for interlocutory appeals.  The remainder of the statute is unaffected by excluding this appeals provision. 

D.D.H., 319 Ill. App. 3d 989, 749 N.E.2d 31.

	Because we rule that the appeals portion of section 2--28(3)

is unconstitutional, the defendant is attempting to appeal from a

nonfinal judgment that is not subject to any Illinois Supreme

Court rule granting a right of appeal.  Ill. Const. 1970, art.

VI, §6; 155 Ill. 2d R. 304(b)(1).  Therefore, we have no

jurisdiction to consider the merits of her appeal.

CONCLUSION

	For the foregoing reasons, we dismiss this appeal from the

permanency review order of the Peoria County circuit court for

lack of jurisdiction.

	Appeal dismissed.

	McDADE, , J., with 	LYTTON NDAND and SLATER, J.J., concurring. .