source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI JUSTICE JOHNSON,

license: Public Domain

text:
      In re VIOLETTA B., a Minor (Violetta B., a Minor, Respondent-Appellant, v. Joe Ann Stanciel, Petitioner-Appellee).
    First District (4th Division)
    No. 1 — 90—2270
    Opinion filed March 7, 1991.

      JOHNSON, J., dissenting.
    Patrick T. Murphy and Michael G. Dsida, both of Office of Cook County Public Guardian, of Chicago, for appellant.
    Randolph Stone, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellee Violetta Burgos.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Howard A. London, of counsel), for appellee Joe Ann Stanciel.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal concerns the guardianship and custody of the four-year-old respondent, Violetta B., who was placed in a foster home at the age of four months. Following a finding that the child’s natural parents were unable to care for her, Gary T. Morgan, the guardianship administrator of the Illinois Department of Children and Family Services (DCFS), was appointed guardian of the child, and she was placed in the foster care of Betty Rodriguez. The respondent’s paternal grandmother, Joe Ann Stanciel, filed a petition seeking custody of the respondent when the respondent was two years old. After a dispositional hearing, the trial court vacated the guardianship of the DCFS and appointed Joe Ann Stanciel as the private guardian and custodian of the respondent. The respondent appeals by her attorney and guardian ad litem Patrick T. Murphy on the grounds that the trial court’s order was against the manifest weight of the evidence.

Before relating the facts of this cause, it is helpful to set forth the statutory provision which governed the course of the proceedings below. Section 7(b) of the Children and Family Services Act provides as follows:

“In placing a child under this Act, a close relative who comes forward or can be identified and who goes through an immediate preliminary approval by the Department shall be selected as the preferred care provider. The close relative must then agree to and subsequently participate in and be qualified in a complete review by the Department. For the purpose of this subsection, ‘close relative’ shall include a parent, grandparent, uncle, aunt, adult brother and adult sister. It shall be the burden of the Department to justify the child’s placement elsewhere.” Ill. Rev. Stat. 1989, ch. 23, par. 5007(b).

Violetta B., commonly known as Minnie, was born on December 4, 1986. At that time, both of her parents were awaiting trial on charges that they had murdered Minnie’s four-year-old sister. They were subsequently convicted of murder and are currently serving 60-year prison terms. In January of 1987, the DCFS was given temporary custody of Minnie and she was placed with a friend of the natural mother. This placement proved unsuccessful, and at the age of four months Minnie was placed in the foster home of Betty Rodriguez, where she currently resides.

On January 19, 1989, the court entered a finding that Minnie’s natural parents were unfit and appointed Gary T. Morgan, the DCFS guardianship administrator, as Minnie’s guardian with the right to place her. On February 28, 1989, when Minnie was two years old, the paternal grandmother, Joe Ann Stanciel, filed a petition seeking permanent custody of Minnie. Instead of conducting an immediate hearing on the petition, the trial court ordered the DCFS to begin exploring the possibility of placing Minnie with Stanciel. Several status hearings were conducted over the course of the following 15 months.

Supervised visits between Minnie and Stanciel began in May of 1989, when Minnie was approximately 2 k years, old. To assist in their efforts to develop a permanent plan for Minnie, the DCFS contracted with Thomas Leo, a family therapist. Leo had several meetings with Minnie, Rodriguez, Stanciel and the man who lived with Stanciel, Purcell Rogers. Minnie’s visits with Stanciel eventually became unsupervised and gradually increased in length. At a September 25, 1989, court date, the DCFS indicated to the court that its goal was to place Minnie with Stanciel.

Thomas Leo testified at a status hearing on March 9, 1990, regarding the efforts to place Minnie with Stanciel. Leo stated he believed Stanciel would be an appropriate care giver for Minnie and that the unsupervised visits had been increased to three days in length.

The visits went basically well, but there were problems with Minnie missing her foster mother, Betty Rodriguez. Leo recommended that guardianship remain with the DCFS and that visits be gradually increased with a target date of May 1990 for placement with Stanciel. On cross-examination by Stanciel’s attorney, Leo was asked for the first time whether he believed that it would be in Minnie’s best interest to be removed from the home of her foster mother and placed with Stanciel. The following exchange occurred:

“[Counsel] Q: Do you believe that it is in the best interest of the child that Ms. Stanciel would be given custody of her?

[Leo] A: No, I don’t.

[Counsel] Q: What do you believe would be in the interest of the child?

[Leo] A: I believe the best interest of the child is for [sic] what I am able to see to this point would be to remain with the foster mother?

[Counsel] Q: Do you believe well—

THE COURT: That is not the goal. That is the law. So, I don’t think we need to go into that any further. Relative placement is a priority. And that is what we are working for, *** relative placement.”

Counsel for the foster mother then sought to question Leo about his opinion as to Minnie’s best interest as follows:

“[Counsel] Q: Mr. Leo, do you believe that relative placement is the greater weight and the best interest of the child?

THE COURT: [Counsel], that is not the issue here.

[Counsel]: I am trying to find—

THE COURT: What he believes makes not [sic] difference. Let me tell you why. Relative placement is preferred when the child is not with the parents. And that is what is considered the best interest. Placement with the family — .”

Leo was asked no further questions at that time concerning his opinion as to what was in the best interest of Minnie. He testified that Minnie seemed to enjoy the visits with Stanciel, but was very happy and anxious to return to Rodriguez and was uncommunicative regarding the next visit. Leo stated that he was directing all of his efforts toward placing Minnie with Stanciel.

Another status hearing was held on May 17, 1990, at which the guardian ad litem for Minnie requested the court to order a bonding assessment. The court granted the request, and Thomas Leo was then asked to testify concerning the status of visitation between Minnie and Stanciel. Leo stated that he made seven reports concerning Minnie’s placement, beginning in August of 1989. His observations were that the visits with Stanciel had gone well, that Minnie seemed comfortable and that there were no problems with her eating or sleeping. However, separation from the foster mother had been very difficult. Minnie on occasion hid under her blanket and did not want to visit with Stanciel. Leo stated that Minnie was very strongly attached to Rodriguez and felt that her security was jeopardized by the visits. Leo also stated that he was in favor of a bonding assessment. He recommended an immediate transfer of custody to Stanciel, stating that “if the child is going to the grandmother’s home, I believe she is about as prepared as she can be. This continually going back and forth is causing more trauma.” Leo was asked on cross-examination whether he believed that it was in Minnie’s best interest to be removed from Rodriguez’ home and placed with Stanciel. He answered as follows:

“I’ll answer this one last time; maybe I can try to put it a little better. Now in an ideal world I believe it would be better for the child to remain where she is, have liberal contacts, etc. with the grandmother, however, this is not an ideal world.

I believe that the plan of D.C.F.S. and the goal and mission is to return the child to the family, and I have been asked to assess the grandmother and find out whether she’s a fit and proper parent that the child is able to attach with her to follow under her guidance and direction.”

Leo stated that he did not believe that Minnie would be neglected or injured by Stanciel and that she was undergoing the kind of separation trauma often seen in foster children. On cross-examination, the guardian ad litem asked Leo whether he was aware that although placement with a relative is preferred, the DCFS could place the child elsewhere if it is in the child’s best interest. The court sustained an objection to the question, stating, “That’s not the law.”

The hearing on Stanciel’s petition for custody began on June 19, 1990. Minnie was SVz years old at that time. Joe Ann Stanciel was the first witness. She testified that she first learned she was Minnie’s grandmother in September or October of 1987. During the following year, she called the DCFS at least once each month to request visits with Minnie, but no one ever returned her calls. Stanciel was 45 years old and has lived in Chicago with Purcell Rogers for the past 17 years. She believed that it was in Minnie’s best interest to be placed with her because she could do a good job raising the child. In Stanciel’s opinion, Rodriguez is nice, but cannot control Minnie and lets her do what she wants to do. Minnie always cried at the beginning of visits, but would be fine after she calmed down. However, Minnie was “always talking about home.” If given custody, Stanciel would allow Minnie to have regular visits with Rodriguez.

Stanciel testified that her visits with Minnie went well until, at Thomas Leo’s suggestion, she told the child that she wanted to have her stay for a long, long time. Since then Minnie has refused to go to Stanciel’s home, so Stanciel would visit with Minnie at Rodriguez’ home. Minnie would stop crying when she was assured that she would not have to go with Stanciel. Stanciel testified that the DCFS did not offer her services to deal with this problem, and she made no request for such services. Stanciel stated that she would be able to care for Minnie’s vision problem. Minnie has a condition called aniridia; she was born without an iris. Stanciel’s son — Minnie’s father — also had this visual impairment.

Thomas Leo was then called as an adverse witness. Leo stated that he was a family therapist and had master’s degrees in education and the humanities. He had completed a two-year post-graduate training program at Northwestern University School of Psychiatry, Division of Family Studies, and had completed two years of advanced supervision at Northwestern. The DCFS contracted with him to assess Stanciel and Rogers as potential caretakers for Minnie, to present a permanent plan for her placement and to assist in implementing the plan. He stated that he had spent more time on the case than any other social worker or therapist. Leo made seven written reports concerning this case between August 31, 1989, and April 28, 1990. The earlier reports stated that the visits between Stanciel and Minnie were going well, but that there was a strong attachment between Minnie and Rodriguez, the loss of which could cause deep psychological trauma to Minnie if accomplished too quickly. Both Rodriguez and Stanciel cooperated fully with Leo. Minnie related to Rodriguez as her mother and to Stanciel as her grandmother and told Leo that she wanted to “stay with her mommy,” meaning Rodriguez. Leo stated that Minnie’s relationship with Stanciel was a positive one, from which both could derive something. The reports showed that Minnie was comfortable with Stanciel and other family members, played with other children during the visits and enjoyed looking at family pictures. Stanciel lived in a well-maintained, nicely appointed home in the northwest part of Chicago. However, it was Leo’s opinion that Rodriguez’ responses to Minnie were more sensitive to the needs of the child, while Stanciel responded more to her own needs than to Minnie’s. Although Rodriguez appeared keenly aware of the loss she would suffer if Minnie were placed with Stanciel, she was able to continue to focus on Minnie’s needs.

Leo further testified that early in March of 1990, he recommended that Stanciel tell Minnie that Stanciel wanted her to come and stay with her for a long, long time. Since that time, separation from Rodriguez has become increasingly stressful and difficult for the child and she has exhibited regressive behavior. This resulted in frequent calls to him from Rodriguez and Stanciel at the beginning of visits. Leo believed that the withdrawal and anxious behavior exhibited by Minnie was caused by the fear that she might not be returned to her foster home if she left it for a visit with Stanciel. She also feels that she is being rejected and abandoned by Rodriguez.

Leo stated that based upon the very strong bond between Minnie and Rodriguez, he did not believe that placement with Stanciel was in Minnie’s best interest. According to Leo, the ideal situation would be for Minnie to be raised by Rodriguez and have liberal visitation with Stanciel. She would have everything to gain and nothing to lose from this situation. Stanciel would not lose contact with Minnie, and Minnie would not be put through the enormous loss of her psychological mother, Rodriguez. When asked about the effect of a transfer of custody on Minnie, Leo responded as follows:

“The primary effect that I see is a lack of trust in adults to care for her. That this person who has cared for her up until this age is the only person that she knows as her mother. The person that she relies upon to meet all of her childhood needs of nurturing and keeping her under vigilance and guidance. This is an extremely close relationship. And if that is pulled apart, the child is going to be exposed. It would be like a raw wound ***.”

Leo stated that Minnie would probably interpret the transfer of custody as a rejection by Rodriguez, regardless of what she is told. He testified that it is extremely hard for a child removed from her home to bond successfully in another home. Leo stated that it is possible the child could “recoup a lot,” depending on how the transfer occurred, but did not believe it would be in her best interest.

Leo admitted that he had previously recommended transferring custody of Minnie to Stanciel, but explained that he did so pursuant to the trial court’s order to facilitate the transfer. After reading the results of the bonding assessment prepared by Dr. Carol Rolland, Leo stated that he would not recommend the transfer of custody.

The respondent called Dr. Carol Rolland to testify. Dr. Rolland testified that she is the clinical director of the developmental center at Illinois Masonic Medical Center, where she evaluates and treats young children from birth to eight years of age and also supervises psychologists, interns and medical students in pediatrics. She has a bachelor’s degree in psychology and a Ph.D. from the University of Illinois in child clinical psychology. She completed an American Psychiatric Association approved internship in child clinical psychology at Chicago-Read Mental Health Center during which she evaluated and treated seriously disturbed children and adolescents. Rolland’s first professional appointment was with the University of Illinois, where she taught child psychology and clinical psychology. She then went to Illinois Masonic Medical Center and is currently on the faculty at the University of Illinois College of Medicine in Chicago. During her employment she has assessed 500 to 600 children concentrating on early development, separation and emotional disturbances of various kinds. Rolland has also done extensive work with foster children and adoptive parents. Following this review of her qualifications, Rolland was accepted by the court as an expert witness in the area of child development and child psychology with an emphasis on issues of attachment, separation and loss. Rolland was hired by the DCFS to interview all of the parties involved, review the history of the case and do a bonding assessment.

Rolland stated that Minnie and Rodriguez had a very strong primary bond. She described the primary bond as a relationship the child uses to determine both her security and also a sense of what is right. It is this relationship that sustains the child through frustrations and stresses. According to Rolland, the disruption of Minnie’s relationship with Rodriguez would be extremely deleterious to the child psychologically and would create a loss from which Minnie would not recover. The profound loss of her psychological mother would create depression and anxiety in Minnie and would leave her with a sense of neediness and emptiness. The loss would also leave her vulnerable to the types of difficulties encountered by children when they become ¿doles-cents, such as drug abuse and pregnancy.

Rolland testified that disruption of the primary relationship dramatically affects a child’s ability to trust. The child would be unlikely to form deep sustaining relationships with others because the risk of losing such a relationship is too painful. Rolland stated that it is normal for a child to experience trauma when she is taken away from the person she knows as her mother. Such an experience would put Minnie at great psychological risk. When Rolland was asked whether her concerns would be alleviated by liberal visitation with Rodriguez, she stated that they would not because “it would be like having your mother as a visitor,” which is not a healthy psychological situation. Rolland further stated that the loss suffered by Minnie would be irreparable and would not be alleviated by counseling because counseling “is really not a very good treatment for this kind of loss.”

Rolland testified that Minnie made it very clear to her that she wanted to remain with Rodriguez. Rolland believed that Minnie would do everything in her power to maintain her relationship with Rodriguez because it is life-giving psychologically. Minnie has a good relationship with Stanciel and wants to be with her, but not at the cost of losing Rodriguez. Transitions were becoming more difficult because Minnie was experiencing parental alienation syndrome. She was becoming depressed, combative and aggressive when faced with visiting Stanciel. According to Rolland, Minnie’s view of Stanciel is very much dependent on whether or not she feels threatened with the loss of Rodriguez.

Rolland’s assessment of Stanciel was that, while well meaning, Stanciel is unable to take Minnie’s needs into consideration and put them before her own needs. Rolland believed that Stanciel wants to adopt Minnie because she is anxious that the family provide for her instead of the State. Stanciel cares about Minnie, but is not primarily motivated to be a parent and to foster Minnie’s own unique development to maturity. Rolland testified that Stanciel expected too much independence from Minnie and underestimated her educational and emotional needs. Stanciel tended to minimize Minnie’s vision problem, stating that she hoped the other children would not notice it and that she hoped Minnie would not have problems in school. Based on Rolland’s observations, Stanciel was extremely motivated to gain compliance from Minnie. During play, Stanciel directed Minnie to do things the way Stanciel wanted, causing Minnie to pull back and suck her thumb. Stanciel said that in time, Minnie would want to do things Stanciel’s way. Rolland disagreed and predicted problems in conflict resolution.

Rolland’s assessment of Rodriguez was that she wanted to be Minnie’s mother. Rodriguez recognized that Minnie needed to be independent at some times and dependent at other times. If Minnie wanted to do things differently during play, Rodriguez was able to accommodate her. The two were able to comfortably interact and be together in a healthy way. Rodriguez’ interest in doing the right thing for Minnie was paramount. Rolland stated that “[Rodriguez] was very concerned about the pain that Minnie is going through. She became tearful during the interview. She questioned whether she was doing the right thing, maybe she should just turn the baby over.” To Rolland, this showed a very strong and powerful concern for Minnie and an ability to see things from Minnie’s perspective. Rolland testified that it would be in Minnie’s best interest to remain with and be adopted by Rodriguez and to have Stanciel provide the role of grandmother. Rolland acknowledged that her opinion could have been different if the proceedings had taken place two years earlier.

Anna Campos testified that she is a social worker with the DCFS and was assigned to the case in January 1990. Campos stated that Minnie is very attached to Rodriguez and Rodriguez’ daughter. Since the time she was told that Stanciel wanted to care for her for a long time, Minnie’s behavior has deteriorated. When faced with visiting Stanciel, Minnie has been vomiting, urinating on herself and biting her nails until they bled. Rodriguez reported that Minnie had lost two pounds in one week. On one occasion she hid under a blanket and refused to go on the visit. Also, Minnie would cry and throw herself on the floor. While taking her to see Dr. Rolland, Minnie struggled and screamed so violently that Campos suffered a sprained wrist trying to get her into the car. Campos believed that Minnie feared that she would not be able to return to Rodriguez.

Campos further testified that Rodriguez has been very cooperative regarding Minnie’s visits with Stanciel and believes that Stanciel should be a part of Minnie’s life. In Campos’ opinion, Stanciel is too rigid to meet Minnie’s needs. Campos stated that it would be in Minnie’s best interest to remain with Rodriguez and to visit with Stanciel. She acknowledged that bonding would not have been an issue if Minnie had been placed with Stanciel at the age of 10 months when Stanciel first requested custody.

Campos testified that DCFS records indicated that Stanciel met with a DCFS case worker on October 8, 1987, when Stanciel was visiting her son in jail. At that time, Stanciel indicated that she was interested in caring for Minnie. However, service plans for Minnie did not include Stanciel, and Stanciel did not have a visit with Minnie until May of 1989. A paternity test established in February of 1988 that Stanciel’s son was Minnie’s father.

Betty Rodriguez, Minnie’s foster mother, testified that she wants custody of Minnie because she loves her very much. At the time Minnie entered her care, the DCFS represented that the placement would be permanent.

Stanciel called Marc Bennett as a rebuttal witness. Bennett testified that he is a forecast analyst with Inland Steel Company and was appointed by the court on March 3, 1989, as a court-appointed special advocate (CASA) on Minnie’s case. He explained that a CASA worker is designated to investigate a case and make a recommendation concerning the best interest of the child. Bennett stated that he had a bachelor’s degree and received training for the CASA program during three eight-hour sessions. This was his first and only case, and he was not being paid for his services.

After visiting separately with Stanciel, then with Rodriguez and Minnie, Bennett issued a report recommending that it would be in the best interest of Minnie to be adopted by Stanciel. At that time, Stanciel had not yet had her first visit with Minnie. According to Bennett, Stanciel could provide Minnie with adequate care and love and has the means to care for her. Stanciel owned some property, and her financial situation was very good. Bennett explained that he believed it was in the best interest of a child to be placed with family, “all other things being equal.” Also, he believed that it was in the child’s best interest to be placed with a relative unless the relative was unfit. Bennett further based his recommendation on his view that the foster care program should be used only for temporary placement.

Bennett stated that Minnie was a bright, enthusiastic child with much energy. He observed visits between Minnie and Stanciel in Stanciel’s home and Minnie appeared happy. Bennett observed no problems with the visits and had never seen Minnie being transported for a visit. He conceded that his opinion regarding visits might have been different had he been given the opportunity to discuss the problems associated with visits with the DCFS case workers. He stated that ' Minnie would suffer initial trauma in a transfer of placement and that she should be counseled thoroughly regarding any such transfer. He believed that counseling would reduce the trauma over a long period of time. It was Bennett’s opinion that Minnie was reacting violently to visits and becoming physically sick because she was not being properly counseled as to what was happening. He did not believe that the trauma caused by a change of custody would be long term or irreparable, but acknowledged that his opinion might be different if Dr. Rolland had testified that the trauma would be irreparable. Bennett stated that he believed visitation with Rodriguez would help alleviate the trauma, but acknowledged that this belief was based upon his “general life experience” rather than on his training as a CASA worker.

At the conclusion of the hearing, the trial court vacated the guardianship of the DCFS administrator and appointed Stanciel private guardian and custodian of Minnie. The court ordered that Minnie receive counseling and that she be allowed to visit with Rodriguez. The findings of the court were related in a lengthy opinion. After review of the testimony, the court found that the DCFS “deliberately and without any legal justification” denied Minnie access to her paternal relatives and made a commitment to the foster mother regarding adoption that the DCFS was not free to make. The court further found that the arguments concerning bonding were unpersuasive because if custody of the child had been given to Stanciel sooner, the bonding with the foster mother would not have occurred. Based on these reasons, the court found that it was not in Minnie’s best interest to continue the guardianship of the DCFS administrator.

By her attorney, the public guardian, Minnie appeals the decision of the trial court on the grounds that it is against the manifest weight of the evidence. She argues that although placement with a relative is statutorily preferred, the DCFS in this case met its burden to justify placement elsewhere by showing that it was in Minnie’s best interest to remain with her foster mother.

As quoted earlier, section 7(b) of the Children and Family Services Act provides that in placing a minor child under the Act, a close relative “shall be selected as the preferred care provider” and that “[i]t shall be the burden of the Department to justify the child’s placement elsewhere.” (Ill. Rev. Stat. 1989, ch. 23, par. 5007(b).) The preference for relative placement is in accord with one of the stated purposes of the Juvenile Court Act, which is “to preserve and strengthen the minor’s family ties whenever possible.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2(1).) Section 7(b) does not explicitly state what the Department must prove in order to meet its burden of placing the child with someone other than a close relative. However, it is well established that the paramount consideration in all guardianship and child custody cases is the best interest of the child. (Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, 369, 411 N.E.2d 1145.) The best interest of the child takes precedence over even a natural parent’s superior right to custody of his child. Section 1 — 2(3)(c) of the Juvenile Court Act specifically states that “[t]he parents’ right to the custody of their child shall not prevail when the court determines that it is contrary to the best interests of the child.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2(3)(c).) As stated in People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 209, 247 N.E.2d 417, 421, “[t]he best interest of the child is the standard and it is not necessary that the natural parent be found unfit or be found to have legally forfeited his rights to custody, if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent.” It follows then that if the best interest of the child conflicts with the statutory preference for placement with a close relative, the best interest of the child should control the placement decision. The parties agree that the appropriate legal standard is the best interest of the child. They disagree strongly, however, as to what the evidence below established regarding Minnie’s best interest.

In assessing the best interest of the child in matters of custody, the court must consider all “matters that have a bearing upon the welfare of the child.” (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 209, 247 N.E.2d 417, 421.) Among the appropriate matters to be considered are the nature and length of the child’s relationship with the present caretaker (In re Estate of Whittington (1985), 107 Ill. 2d 169, 178, 483 N.E.2d 210), and the effect that a change of placement would have upon the emotional and psychological well being of the child. People ex rel. Edwards v. Livingston (1969), 42 III. 2d 201, 211, 247 N.E.2d 417.

In the case at bar, Minnie has lived with her foster mother since she was four months old. Thomas Leo, the family therapist hired by the DCFS to assist in placing Minnie with Stanciel, testified that he had worked toward that goal since August of 1989. Nevertheless, it was his opinion that it was in the best interest of Minnie to remain in the custody of her foster mother and have liberal visitation with Stanciel. He gave two reasons for this opinion. First, Leo observed that Rodriguez’ responses to Minnie were more sensitive to the needs of the child, while Stanciel responded more to her own needs than those of Minnie. Second, Minnie had developed a strong psychological bond with Rodriguez, the loss of which would cause Minnie to suffer deep psychological trauma. Leo stated that the best situation for Minnie would be for her to be raised by Rodriguez and have liberal visitation with Stanciel. According to Leo, Minnie would have everything to gain and nothing to lose by this arrangement.

Stanciel attempts to discredit Leo’s testimony by representing that he had recommended a transfer of custody, then changed his mind at the last minute after reading Dr. Rolland’s report. Based on our review of the record, we find this representation to be disingenuous at best. The record clearly establishes that from the first time he was asked, Leo maintained that a transfer of custody was not in the best interest of the child. However, after being told by the trial court that “placement with the family [is] what is considered the best interest” and that relative placement is “what we are working for,” Leo recommended an immediate transfer of custody to Stanciel. Even then he qualified his recommendation, stating that “if the child is going to the grandmother’s home, she is about as prepared as she can be.” This is hardly the positive endorsement of a transfer of custody portrayed by Stanciel in her brief.

Dr. Carol Rolland, a psychiatrist who testified as an expert witness in the area of child development and psychology, also testified that it was in Minnie’s best interest to remain in the custody of Rodriguez and to relate to Stanciel as her grandmother. This opinion, like Leo’s, was based in part upon Rolland’s view that Stanciel was unable to take Minnie’s needs into consideration and put them before her own needs. The primary basis for Rolland’s opinion, however, was her belief that given the strong primary bond between Minnie and Rodriguez, a transfer of custody would be extremely deleterious to Minnie psychologically and would cause her to suffer severe and irreparable trauma. Rolland testified that, in her opinion, counseling would not serve to alleviate the trauma.

We are aware that the trial court is generally free to disregard psychiatric testimony and that the opinions of a psychiatrist are only as valid as the bases or reasons supporting them. (In re T.D.W. (1982), 109 Ill. App. 3d 852, 855, 441 N.E.2d 155.) Here, however, it is apparent that the court disregarded Dr. Rolland’s testimony concerning psychological bonding not because it was unfounded or unbelievable but rather because the court determined that such bonding would not have occurred had the DCFS acted sooner to accomplish the transfer of custody. This may be true, but it does not justify the trial court’s refusal to consider evidence of psychological bonding as relevant to the issue of what was currently in Minnie’s best interest. As stated earlier, the emotional and psychological well-being of a child are matters appropriately considered in determining what is in the child’s best interest. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 211, 247 N.E.2d 417.) Whether or not the bonding between Minnie and her foster mother was caused by misconduct on the part of the DCFS, the clear and convincing evidence showed that such bonding did in fact occur and that a transfer of custody at this time would cause severe and irreparable psychological trauma to Minnie. In our view, it is not permissible to ignore or discount this evidence as a means of punishing the DCFS for its perceived misconduct.

Anna Campos, the DCFS social worker assigned to the case, testified very specifically concerning the outward manifestations of the trauma caused by Minnie’s fear of losing her foster mother. She testified that in her opinion it would be in Minnie’s best interest to remain with Rodriguez and visit with Stanciel. The only witness, other than Stanciel, to express the opinion that a transfer of custody to Stanciel would be in Minnie’s best interest was Mark Bennett, a court-appointed CASA worker. The record shows that Bennett arrived at this opinion at a time when Stanciel had not yet had her first visit with Minnie. Also, Bennett testified that based on his general life experience, he believed that any trauma suffered by Minnie would be alleviated by counseling, but admitted that his opinion could change if Dr. Rolland testified that the trauma would be irreparable. As stated earlier, Rolland did in fact testify that the trauma would be irreparable.

We are mindful that in reviewing a custody determination of the trial court, respectful weight must be given to the consideration that the trial court had the opportunity to observe the witnesses. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 210, 247 N.E.2d 417.) However, where we are persuaded that the judgment of the trial court is contrary to the manifest weight of the evidence, it is our duty to reverse. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417.) In the case at bar, we believe that the trial court’s order vacating the guardianship of the DCFS and appointing Stanciel private guardian and custodian of Minnie was contrary to what the evidence showed to be in Minnie’s best interest.

The judgment of the circuit court is accordingly reversed.

Reversed.

LINN, J., concurs.

JUSTICE JOHNSON,

dissenting:

I respectfully dissent. I do not find that the trial court’s decision was against the manifest weight of the evidence. Although the majority acknowledges that section 7(b) of the Children and Family Services Act (hereinafter Act) (Ill. Rev. Stat. 1989, ch. 23, par. 5007(b)) properly governs these proceedings, the clear mandate of the statute is ignored. The statute provides, in pertinent part:

“In placing a child under this Act, a close relative who comes forward *** shall be selected as the preferred care provider. *** ‘[C]lose relative’ shall include a *** grandparent ***. It shall be the burden of the Department to justify the child’s placement elsewhere.” Ill. Rev. Stat. 1989, ch. 23, par. 5007(b).

Section 7(b) is a relatively new amendment and its interpretation, to date, has not been put in issue before this court. However, in Illinois it has long been held that when interpreting a statute the primary rule of construction is that the words of the statute must be given their plain and ordinary meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194.) This panel has held that “[wjhere statutory language is certain and unambiguous it is [the] duty [of a court of review] to enforce it as enacted.” (Stuart v. Niemann (1981), 100 Ill. App. 3d 242, 243.) “If the legislative intent can be ascertained from the language of the statute, the language prevails and will be given effect; the court may not declare that the legislature did not mean what the plain language of the statute imports.” Hidden Cove Marina, Inc. v. Mondello (1983), 117 Ill. App. 3d 21, 23; see also Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.

The language in section 7(b) is clear and unambiguous. The legislative intent of the statute is that a “close relative” must be deemed the preferred caretaker unless the Department of Children and Family Services (hereinafter DCFS) can justify placing the child elsewhere. At the third reading of this statutory amendment, prior to its passage, Senator Karpiel briefly explained the proposed section:

“[The amendment] is *** very simple ***. It provides that *** a foster child’s close relative shall be the preferred care provider and that DCFS must justify reasons for placing the child elsewhere.” 85th Ill. Gen. Assem., Senate Proceedings, June 28, 1988, at 142.

One of the authors of the amendment, Representative Parcells, prior to the second reading of the proposed amendment at a House of Representatives proceeding, explained that “any relative would be preferable to sending the child to a home with strangers.” 85th Ill. Gen. Assem., House Proceedings, May 17, 1988, at 14 (statement of Representative Parcells).

This concern for primary placement with the child’s natural family is also one of the fundamental purposes of the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) The purpose and policy statement of the Juvenile Court Act of 1987 provides, in pertinent part:

“The purpose of this Act is to secure for each minor subject hereto such care and guidance *** as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community; to preserve and strengthen the minor’s family ties whenever possible, removing him or her from the custody of his or her parents only when his or her welfare or safety or the protection of the public cannot be adequately safeguarded without removal ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2.

See also In re Polovchak (1983), 97 Ill. 2d 212, 223.

The Juvenile Court Act of 1987 “clearly directs the court before whom the minor is brought to release the minor to the custody of his parents rather than prescribe detention or shelter care ***.” (In re Polovchak, 97 Ill. 2d at 223.) Section 7(b) merely extends this directive so as to include a “close relative.”

The preservation and strengthening of the minor's family ties are the clear purpose and policy of both the Juvenile Court Act of 1987 and section 7(b) of the Children and Family Services Act. Moreover, our supreme court in In re Custody of Townsend (1981), 86 Ill. 2d 502, held that the parent has superior and presumed rights to the child. The court found:

“[I]t [is] clear that the interest of a parent in the care, custody and control of his or her child is fundamental and not to be ignored or facilely swept away in the face of a competing petition for custody filed by a third party.” (Townsend, 86 Ill. 2d at 514.)

Section 7(b) would also extend this primacy principle to a “close relative.”

When the minor is placed with someone other than a “close relative,” the burden rests with the DCFS to justify the child’s placement with this particular party. (Ill. Rev. Stat. 1989, ch. 23, par. 5007(b).) There is no dispute that the standard the DCFS must meet in order to justify the child’s placement outside of the natural family is that which is in the best interest of the child. I do not find that the DCFS has met this burden.

Whether the presumption of superior rights is overcome depends upon the circumstances of each case. (In re J.K.F. (1988), 174 Ill. App. 3d 732, 734.) The trial court is given broad discretion in its assessment of the facts prior to making its determination in child-custody cases; “[o]nly where there has been an abuse of discretion or the judgment has been against the manifest weight of the evidence should the decision be reversed on appeal.” In re Stilley (1977), 66 Ill. 2d 515, 520.

Our supreme court in In re Stilley stated:

“The delicacy and difficulty of [the] child-custody and child-neglect cases justify the burden of responsibility placed on the trial court and the ensuing deference which must be given to the trial court. The trial court has the opportunity to observe the demeanor and conduct of the parties and witnesses. * * * ‘This is a vital factor in evaluating the correctness of [the trial judge’s] determination. We should not disturb his findings unless they are palpably against the weight of the evidence.’ ” Stilley, 66 Ill. 2d at 520, quoting Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 566-67.

After carefully reviewing the record, I do not find that the trial court’s decision was against the manifest weight of the evidence. Without a lengthy recitation of the facts, I find certain pertinent data omitted by the majority.

Violetta B. spent the first four months of her life in the care of the DCFS and Theresa Lopez, a nominated foster mother. Violetta was then placed in the foster care of Betty Rodriguez. Joe Ann Stanciel did not learn of the birth of Violetta or that she was the child’s grandmother until her son informed her of this fact while he was incarcerated. Violetta was 9 or 10 months old when Stanciel was told that she had a grandchild.

Stanciel then proceeded to contact DCFS employee Patricia La-Soya. Stanciel met LaSoya at the prison where her son was incarcerated. When she informed LaSoya that she wanted to visit her grandchild, LaSoya told her to contact the DCFS office.

Stanciel followed LaSoya’s instruction and called the DCFS office, seeking visitation privileges with her grandchild. For more than one year, Stanciel’s attempts to have the DCFS return her calls were futile. When Stanciel finally reached LaSoya, she was informed that she would have to retain an attorney in order to see her grandchild. Stanciel retained an attorney, went to court and was finally able to see her grandchild 22 months after her initial request.

Violetta’s visits with Stanciel did not pose a problem until, at the behest of DCFS worker Thomas Leo, Stanciel told the child that she would like her to come and stay with her for a long time. Stanciel was ultimately seeking to have custody of the child. Stanciel also explained that Violetta would still have a relationship with her foster parent and visits with Rodriguez would continue.

The child reacted negatively to this suggestion as she had been in the care of Rodriguez since she was four months old. This negative behavior, as explained by Leo, is often exhibited in foster children going through separation trauma. Leo also testified that the relationship between Violetta and her grandmother was good:

“[T]he grandmother has an awful lot to offer Violetta. The grandmother is very concerned about Violetta. She wants to be a good grandmother to the child. She wants to make sure the child is properly raised. She wants to have the child maintain contact with her and her family.”

Leo’s later recommendation that the child remain with Rodriguez was based upon an assessment made by Carol Rolland that Violetta had bonded with Rodriguez and should not be separated from her. I also note that prior to Rolland’s assessment, Leo had recommended that the child remain with her grandmother.

The trial court in its ruling appointing Stanciel as Violetta’s private guardian analogized the case to one of a disingenuous baby-sitter. The trial court stated:

“The arguments of D.C.F.S. regarding continued guardianship in the state are not persuasive. The arguments regarding bonding and primary caretaker are not unlike those of a trusted baby sitter who takes a small child, *** four months of age, and hides out with that child, denying the biological family all access to the child for a period of over three years.
During this three-year period, the trusted baby sitter takes very good care of the child. The child and the baby sitter become bonded. The baby sitter becomes the primary caretaker for the child. When finally discovered, the trusted baby sitter argues that the Court should appoint him or her the legal guardian and allow him or her to adopt he [sic] child because the child is now bonded to him or her.
To accept the position of the Department of Children and Family Services is to allow the Department of Children and Family Services to ignore the responsibility to children and to families, to deny children and their families access to each other for long periods of time, and to defeat the purposes and the intent of the Juvenile Court Act to maintain the integrity of the family. The law would become a joke. In this particular case, the legal guardian has already treated the law as a joke.”

The trial court also brought out the fact that the child was placed with Rodriguez with the assurance that she would be able to adopt the child. As the trial court explained, “[t]his was a guarantee that D.C.F.S. could not legally make. The child was not free for adoption in 1987, and is not free for adoption now in 1990.”

I do not find that the trial court’s decision was against the manifest weight of the evidence. In the instant case, the foster mother and the child’s natural grandmother were both able and fit to care for the child. This is not a case were one of the parties was abusive or did not provide a nurturing environment. In cases such as this, I find that the doctrine of the superior right of the natural grandmother should be controlling. It is in instances where the ability of the natural parent to care for the child is subject to question that removal of the child to a third party is found to be in the child’s best interest.

For example, in People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, a case cited by the majority, the child was placed with his maternal grandfather and removed from the care of his natural father. This was due to the fact that the child’s father exhibited a complete lack of interest in the child for more than 11 years. The child was practically a stranger to his father. (Livingston, 42 Ill. 2d at 210.) In the instant case, unlike the father in Livingston, Stanciel has shown a strong concern for Violetta and a desire to be with the child since she learned of the child’s birth.

In Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, another case cited by the majority, the natural mother and putative father of four children had petitioned the court to award them custody of the children. The children were in the custody of their grandparents at the time of the petition. The petitioners alleged that the grandparents were infirm and that the children’s present environment “seriously endangered their physical, mental, moral and emotional health.” Moseley, 89 Ill. App. 3d at 363.

The appellate court reversed the trial court’s order dismissing the petition and ordered the trial court to consider petitioners’ allegations. Prior to making this ruling the court stated:

“The importance of maintaining the family as a unit has long been considered central to the vitality of our societal fabric, and is indeed recognized by statute [citation]. The United States Supreme Court has held that the parental rights to custody of their children are constitutionally protected ***. *** Those rights must give way, however, where *** it is shown that custody by the natural parents is seriously challenged as being detrimental to the welfare of the children ***.” Moseley, 89 Ill. App. 3d at 369.

In the instant case, custody by the grandmother has not been shown to be detrimental to Violetta’s welfare. Stanciel is not in poor health nor do any of the parties challenge her fitness to be an adequate caretaker. In fact, as Stanciel points out, in the opening remarks of counsel for the public guardian, it was stated:

“Now [sic] one is arguing that [the] paternal grandmother is not a fit or adequate caretaker.”

I am aware that in Illinois the parent, or in this case a “close relative,” need not be shown to be totally unfit in order to award custody to a third party. (Giacopelli v. Crittenton House (1959), 16 Ill. 2d 556, 565.) However, a child should not be prevented from reuniting with his or her natural family under the circumstances of this case.

The reunification of the family has become of increasing concern in Illinois. In Norman v. Johnson (N.D. Ill. 1990), 739 F. Supp. 1182, the Legal Assistance Foundation, on behalf of more than 6,000 impoverished parents who lost custody or were threatened with loss of their children by the DCFS, filed a complaint against the director of the DCFS. The plaintiffs alleged that they lost custody or were at risk of losing custody of their children because they were homeless or unable to provide food or shelter for the children. The court ordered, inter alia, the defendant to prepare case plans to facilitate in the reunification of these families.

It was recently reported that the parties had reached a settlement which included an agreement by the DCFS to stop its practice of summarily removing the children from “inadequate homes” except in those cases where the DCFS believes the children are in “imminent danger.” (Karwath, DCFS to Offer Grants to Clean Dirty Homes, Chicago Tribune, January 26, 1991, News section at 6.) Even though the circumstances of this case are not as extreme as those in Norman v. Johnson, the majority has ruled against the reunification of Violetta with her natural grandmother.

The denial of custody to the parents or a “close relative” is based upon the theory that “the parents, through inability or unwillingness, have, by their own conduct, forfeited their right to the custody of the child.” (Ekendahl v. Svolos (1944), 388 Ill. 412, 415.) In the instant case, Stanciel has not been shown to be unwilling or unable to care for Violetta. On the contrary, Stanciel’s conduct has reflected her desire and ability to nurture and raise her own grandchild.

Stanciel’s superior right to the child should not be curtailed in these circumstances. The ramifications of preventing the reunification of the family in this and like cases may have a detrimental effect upon the children in the future. Mary Anne Brown, one of the 13 experts ordered by the Federal court on August 31, 1990, in B.H. v. Johnson (N.D. Ill.), No. 88 — C—5599, to investigate the DCFS in its placement of children under the age of 12 years, reported that 20,589 children were in substitute care in Illinois as of July 1990. Unnecessary out-of-home placement may have detrimental and far-reaching effects. The concern was expressed as follows:

“ ‘How is it possible to convince a child of his own worth after removing him from a family which is said to be unworthy, but with whom he identifies?’ ” Mary Anne Brown, October 26, 1990, “B.H. v[.] Johnson Settlement Process Placement Services Under 12 Report,” at 2, quoting Maya Angelou, author. See B.H. v. Johnson (N.D. Ill.), No. 88 — C—5599, Final Consolidated Report of Rule 706 Panel of Experts.

Stanciel is Violetta’s natural grandmother. She represents the family that Violetta will continue to identify with for the rest of her life. To hold that Stanciel is unworthy to have custody of Violetta may have a serious effect on Violetta’s own worth in the future. I find that Violetta’s placement with Rodriguez, who is not the child’s adoptive parent, may result in her later placement with another foster family and becoming lost in this substitute care system. It is not inconceivable nor unreasonable that this may also result in Violetta’s permanent separation from her grandmother.

I agree with the trial court in its holding that reunification with the natural family would be in the child’s best interest in this case. I do not find, under the circumstances of this case, that the trial court’s decision was against the manifest weight of the evidence.

I would affirm the trial court.

      The respondent argues on appeal that this provision was not applicable to the proceedings on StancieTs petition. This argument was not raised in the trial court and is accordingly waived for purposes of appeal. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804.) Moreover, we find no merit to this argument because StancieTs petition was filed after the effective date of the statute.


author: JUSTICE CAMPBELL PRESIDING JUSTICE MANNING,

text:
    PATRICIA GREENAWALT, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 88—3177
    Opinion filed March 5, 1991.

      MANNING, P.J., dissenting.
    Edward R. Vrdolyak, Ltd., of Chicago, for appellant.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (Yvonne M. Kaminski, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Patricia Greenawalt, appeals from a judgment entered on the pleadings in favor of defendant, State Farm Insurance Co., in an action seeking a declaratory judgment as to State Farm’s obligations pursuant to the uninsured motorist provision of an automobile policy issued to plaintiff and her husband (the Policy). The sole issue on appeal is whether the trial court properly granted State Farm’s motion for judgment on the pleadings based on its determination that State Farm’s obligation under its uninsured motorist provision was offset and fully satisfied by the joint tortfeasor’s settlement. For the following reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings.

The underlying facts are undisputed. On May 11, 1986, plaintiff was a passenger in an automobile driven by her husband, which was involved in a collision with an automobile driven by Timothy Anderson. As a result of the collision, plaintiff allegedly suffered severe injuries. Plaintiff filed insurance claims against both drivers. Anderson’s insurance company settled with plaintiff for $100,000, the maximum amount under his policy. Because section 1 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1985, ch. 40, par. 1001), in effect at the time of the accident, prevented plaintiff from filing a tort action against her husband, she filed a claim with defendant, her insurer, seeking damages pursuant to the uninsured and underinsured motorist provisions of the three automobile policies she and her husband had with State Farm. State Farm denied that it owed any coverage to plaintiff, and plaintiff filed a complaint for declaratory judgment seeking a declaration as to the rights and obligations of the parties and compelling State Farm to proceed to arbitrate plaintiff’s claims.

State Farm then moved for judgment on the pleadings on the grounds that pursuant to the uninsured motorist provision of the Policy, any amount received by an insured from or on behalf of a person legally liable for her personal injuries was to be set off against the liability limits of the uninsured motorist provision. Because the Policy’s liability limit for uninsured motorist coverage was $100,000 and plaintiff had already received $100,000 from Anderson’s insurer, State Farm claimed that there was no uninsured motorist coverage available. In response, plaintiff argued that her damages exceeded $100,000 and that she had valid claims against both tortfeasors, Anderson and her husband, and that, as joint tortfeasors, each is liable for damages based upon his percentage share of liability.

Following a hearing on the motion, the trial court granted State Farm’s motion. In entering its decision, the trial court stated:

“[T]he state of the law is, with regard to contribution, *** inadequately stated. But the contractual provisions here are not, in my opinion, vague. And to the extent that they impact on those rights of contribution among joint tortfeasors, is [sic] not violative of public policy as well. So she is limited to the contractual limitation of recovery with regard to the setoff of $100,000 that was made. And since their liability is a maximum of $100,000 minus the setoff, there is no liability contractually, and therefore judgment on the pleadings is granted in favor of State Farm.”

Plaintiff’s appeal followed.

On appeal, plaintiff claims that because her damages exceed the amount of the settlement with Anderson, State Farm remains obligated on behalf of her husband, as a joint tortfeasor, pursuant to the Policy’s uninsured motorist coverage. Plaintiff further argues that because she is not seeking double recovery, the settlement with Anderson should not be set off against State Farm’s uninsured motorist liability limits. Instead, the settlement should merely reduce the amount of recoverable damages by $100,000.

In response, State Farm argues that the plain language of the Policy provides that payment by any person who is legally liable for bodily injury to the insured reduces the amount payable under the Policy’s uninsured motorist provision. The Policy limits uninsured motorist coverage to $100,000. Therefore, Anderson’s $100,000 settlement acted to eliminate any obligation State Farm had under the Policy’s uninsured motorist provision.

Section III of the Policy, entitled “Limits of Liability — Coverage U,” provides, in relevant part:

“1. The amount of coverage is shown on the declarations page under ‘Limits of Liability-U-Each Person, Each Accident’. Under ‘Each Person’ is the amount of coverage for all damages due to bodily injury to one person [$100,000]. ***
2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:
a. by or for any person or organization who is or may be held legally liable for the bodily injury to the insured;
b. for bodily injury under the liability coverage; or
c. under any workers’ compensation, disability benefits or similar law.”

As a general rule, clear and unambiguous policy provisions are to be applied as written and policy language will be given its plain and ordinary meaning unless it contravenes public policy. (Scudella v. Illinois Farmers Insurance Co. (1988), 174 Ill. App. 3d 245, 528 N.E.2d 218; Potts v. Madison County Mutual Automobile Insurance Co. (1983), 112 Ill. App. 3d 50, 445 N.E.2d 33.) The public policy behind uninsured motorist provisions is to place the injured policyholder in substantially the same position he would be in if the wrongful driver had had at least the minimum liability insurance required by law. (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247; Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36; Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.) At the time of the collision, the minimum liability insurance was $15,000. (Ill. Rev. Stat. 1985, ch. 951/2, par. 7 — 203.) However, because the legislature never intended that the statutory minimum be deemed the maximum permissible limit for uninsured motorist coverage (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2, repealed by Pub. Act 81 — 899), parties may contract to increase the limits of the uninsured motorist provision to more than the statutory minimum. (Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 269 N.E.2d 97.) As a result, the insured who has paid additional premiums may end up in a better situation than if the uninsured motorist had been insured at the statutory minimum. The supreme court addressed such a situation in Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 336, 312 N.E.2d 247, and stated, “If there is to be a ‘windfall’ in this situation, it should be to the insured, who paid the several premiums, rather than to the insurer, which collected them.”

Plaintiff argues that application of the setoff provision violates public policy because it puts her in a less favorable position than she would be in if she could have proceeded against her husband as an insured joint tortfeasor. Generally, the amount paid by one tortfeasor acts to reduce the recoverable damages from the remaining tortfeasors. Without such a reduction, a plaintiff could receive damages in excess of her injuries, resulting in double recovery. (Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644.) Although, as a general rule, section 143a(4) of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755a(4), repealed by Pub. Act 81 — 999) allowed the insurer to be subrogated to the proceeds of any settlement or judgment received by its insured from anyone who was legally responsible for the injury, in a situation where one of the joint tortfeasors is insured and the other is uninsured, the pivotal public policy issue is whether subrogation or setoff would prevent double recovery or whether it would act to deprive the plaintiff of damages she might otherwise receive if the uninsured tortfeasor had been at least minimally insured. (Glidden v. Farmers Automobile Insurance Associ ation (1974), 57 Ill. 2d 330, 312 N.E.2d 247.) If the total proven or undisputed damages incurred by the plaintiff are greater than the amount paid on behalf of the insured tortfeasor, application of the set-off provision of the uninsured motorist provision would contravene public policy because the plaintiff would not be placed in substantially the same position she would have been in had the uninsured motorist been insured and the “windfall” would be to the insurer. If the uninsured motorist had been insured, settlement with one joint tortfeasor would have acted only to reduce recoverable damages. (Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644.) Whereas, in an uninsured setoff situation, settlement with one joint tortfeasor acts to reduce the liability limits of the insurer. Because of this public policy dichotomy, setoff provisions apply only where necessary to prevent double recovery. Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247.

The effect of an insured joint tortfeasor’s settlement on uninsured motorist liability was addressed in Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644. The issue in Schutt was whether a settlement with an insured joint tortfeasor should be set off against the liability limits of an uninsured motorist provision. In Schutt, plaintiff, a passenger in a car driven by Cynthia Long, was injured when Long’s car collided with a car driven by Tony Munos. Long was insured; Munos was not. Plaintiff filed a suit for personal injuries. Subsequently, judgment was entered against Long for $2,500 and against Munos for $25,000. The judgment against Long was affirmed on appeal and satisfied by her insurer, Allstate.

Because Munos was uninsured, plaintiff filed a declaratory judgment action against his own insurer, Great Central Insurance Co., and against Long’s insurer, Allstate, seeking to recover under the uninsured motorist provisions. Plaintiff and Allstate agreed to submit the uninsured motorist claim to arbitration and stipulated to a voluntary dismissal of plaintiff’s declaratory judgment action against Allstate. The dispute between plaintiff and Grand Central was settled pursuant to a covenant not to sue.

Thereafter, plaintiff and Allstate submitted written issues to the arbitrators regarding what injuries plaintiff had incurred as the result of the accident and the size of the award. The arbitrators awarded plaintiff $2,500 in full settlement of his claim. As a result, Allstate claimed that, pursuant to its policy, the uninsured motorist award was to be reduced by all sums paid by any other person jointly or severally liable. Because Allstate had already paid $2,644.40 on behalf of Long and the claim was $2,500, Allstate claimed that it had no further obligation. The trial court found that Allstate was entitled to a setoff. On appeal, the reviewing court affirmed the trial court’s decision as to setoff on the ground that, “Since plaintiff has already received [the sum awarded by the arbitrators], the application of the setoff clause did not deprive him of any damages and fairly awarded him only that to which he is entitled.” (135 Ill. App. 3d at 141.) Thus, the Schutt court’s main consideration in allowing setoff was whether by doing so, plaintiff would be deprived of any damages awarded to him by the arbitrators. In reaching its determination, the Schutt court indicated that had the setoff provision deprived plaintiff of any damages, the provision would have been unenforceable. The pivotal distinction between Schutt and the present case is that a determination as to damages had been made in Schutt, whereas in the present case, damages have not been determined.

In the present case, plaintiff has alleged damages in excess of the settlement amount of $100,000. If this allegation proves to be true, setoff of the settlement against the uninsured motorist liability limits would deprive plaintiff of damages she would otherwise have been able to recover had her husband been insured. This result is void as against public policy. (Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.) Conversely, if plaintiff’s damages are found to be $100,000 or less, application of the setoff provision would act to prevent double recovery and, therefore, would be enforceable. Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247.

Thus, a determination of damages is a prerequisite to a decision as to whether a setoff provision in an uninsured motorist provision contravenes public policy or whether it properly prevents double recovery. At the hearing on State Farm’s motion, plaintiff’s counsel recognized the importance of a damage determination to a resolution of whether setoff under the uninsured motorist provision was void as against public policy.

“COUNSEL: Can I ask how there can be a setoff when the maximum involved [sic] of responsibility has yet to be determined?

THE COURT: A setoff is provided for in the contract because it says any amount that you recover shall be applied to the uninsured motorist coverage, which is $100,000.”

In reaching its conclusion, the trial court failed to consider the public policy concerns enunciated in Glidden and based its ruling strictly on the unambiguous language of the Policy. In our view, the trial court’s decision was premature as State Farm is not entitled to setoff unless it can show duplication of payments. Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 366 N.E.2d 901.

As previously indicated, at this juncture in the proceedings, no facts have been proved entitling plaintiff to damages in excess of $100,000. It is well settled that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which would entitle plaintiff to recover. (Lanier v. Associates Finance, Inc. (1985), 134 Ill. App. 3d 183, 479 N.E.2d 1227, aff’d (1986), 114 Ill. 2d 1, 499 N.E.2d 440.) Conversely, judgment on the pleadings is proper when the pleadings disclose only questions of law. (Howard v. County of Cook (1986), 145 Ill. App. 3d 538, 495 N.E.2d 1166.) In the present case, before any determination of damages had been made, the trial court ruled, as a matter of law, that the $100,000 settlement paid by the insured tortfeasor was properly set off against the $100,000 uninsured motorist policy limitations, thereby limiting recoverable damages to $100,000. Had plaintiffs damages been determined to be $100,000 or less, this conclusion would have been proper on the ground that the setoff would prevent double recovery. However, no determination as to damages has been made. If plaintiff proves that her damages are in excess of $100,000, she should be entitled to recover the difference between the $100,000 settlement and her assessed damages, up to the limits of the $100,000 uninsured motorist limitation. Accordingly, because a set of facts does exist which, if proved, would render the setoff provision void as against public policy, and entitle plaintiff to recover under the uninsured motorist provision, judgment on the pleadings was premature and, therefore, improper.

In reaching our decision, we decline to follow Ackermann v. Prudential Property & Casualty Insurance Co. (1980), 83 Ill. App. 3d 590, 404 N.E.2d 534, on the ground that its narrow reading of Glidden mandates a strict application of unambiguous setoff provisions and fails to consider the public policy aspects of setoff. In Ackermann, plaintiff was insured when the vehicle in which he was riding, driven by Short, collided with a vehicle driven by Wallete. Short was uninsured. Wallete was insured by Allstate under a policy with a liability limit of $25,000. Plaintiff’s policy with Prudential included uninsured motorist coverage. Plaintiff pursued a claim against Wallete and sought uninsured motorist benefits from Prudential. When Wallete’s insurer offered a $20,000 settlement, Prudential asserted its policy right to subrogation against the settlement offer.

Plaintiff filed his complaint for declaratory judgment alleging that his damages were in excess of $20,000 and requesting a declaration that he was entitled to recovery under the uninsured motorist provision and that Prudential was entitled to subrogation rights only as to the assets of the uninsured motorist. Prudential moved to strike and to dismiss the complaint. The trial court denied Prudential’s motion and ruled that Prudential’s subrogation rights were limited to the assets of the alleged insured. On appeal, the Ackermann court reversed and remanded, stating:

“In Glidden the supreme court decided the issue of subrogation in connection with the uninsured-motorist clauses of insurance policies. Therefore, even though the plaintiff’s argument and the authorities he cites are persuasive, under the Glidden decision we find that Prudential is entitled to reimbursement from the plaintiff to the extent that it makes payment to him for uninsured motorist coverage, if he recovers from either tortfeasor.” 83 Ill. App. 3d at 594.

If this court follows Ackermann’s strict interpretation of Glidden, plaintiff ends up in a worse position than if the uninsured tortfeasor (her husband) had been insured to at least the statutory minimum and State Farm enjoys a “windfall.” As previously stated, a setoff of uninsured motorist payments is appropriate only if duplication of payment can be shown. (Scudella v. Illinois Farmers Insurance Co. (1988), 174 Ill. App. 3d 245, 528 N.E.2d 218; Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 366 N.E.2d 901. See Becker v. Country Mutual Insurance Co. (1987), 158 Ill. App. 3d 63, 510 N.E.2d 1316; Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.) Therefore, proof of damages is a necessary issue to be resolved.

Based on the aforementioned, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BUCKLEY, J., concurs.

PRESIDING JUSTICE MANNING,

dissenting:

Defendant filed a motion for judgment on the pleadings, arguing that pursuant to its insurance policy, any amount recovered by plaintiff “from or on behalf of a person legally liable for personal injuries” was to be set off against the liability limits of the uninsured motorist provision. Because the liability limit was $100,000, and plaintiff had already received that amount from Anderson’s insurer, defendant had no contractual liability whatsoever to plaintiff.

It is well settled that a motion for judgment on the pleadings raises the question of the sufficiency of the pleadings as a matter of law to entitle the plaintiff to the relief sought by the complaint, and the question of whether defendant’s answer sets up a defense to the complaint which would entitle defendant to a hearing on the merits. (Milanko v. Jensen (1949), 404 Ill. 261, 88 N.E.2d 857; see also Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 496, 454 N.E.2d 1174; Hartlett v. Dahm (1981), 94 Ill. App. 3d 1, 418 N.E.2d 44.) The motion must be denied by the trial court, if upon an examination of all of the pleadings, the court determines the existence of an issue of material fact. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(e); Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 501 N.E.2d 315; Berymon v. Henderson (1985), 135 Ill. App. 3d 858, 482 N.E.2d 391; Allis-Chalmers Credit Corp. v. McCormick (1975), 30 Ill. App. 3d 423, 331 N.E.2d 832.) Moreover, a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which would entitle plaintiff to recover. (Lanier v. Associates Finance, Inc. (1985), 134 Ill. App. 3d 183, 479 N.E.2d 1227, affd (1986), 114 Ill. 2d 1, 499 N.E.2d 440; Golden Rule Life Insurance Co. v. Mathias (1980), 86 Ill. App. 3d 323, 408 N.E.2d 310.) Conversely, judgment on the pleadings is proper when the pleadings disclose only questions of law (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113; Howard v. County of Cook (1986), 145 Ill. App. 3d 538, 495 N.E.2d 1166), and the trial court determines that the movant is entitled to judgment.

Courts of review in Illinois have held that the entry of judgment on the pleadings is proper only where the trial court determined the relative rights of the parties (In re Estate of Rettig (1981), 100 Ill. App. 3d 653, 427 N.E.2d 235), solely from an examination of all the pleadings on file, having taken as true well-pleaded facts, and reasonable inferences to be drawn therefrom, set forth in pleadings of the party opposing the motion (Triangle Sign Co., 149 Ill. App. 3d at 843; Becker v. Dvorson (1960), 28 Ill. App. 2d 174, 171 N.E.2d 86), and disregarded all surplus-age and conclusory allegations. Teeple, 118 Ill. App. 3d 492; Bank & Trust Co. v. Arnold N. May Builders, Inc. (1980), 90 Ill. App. 3d 454, 413 N.E.2d 183.

Here, defendant urges that the plain language of the policy provides that payment by any person who is legally liable for bodily injury to the insured reduces the amount payable under the uninsured motorist provision. Because the construction of an insurance policy presents only a question of law (Donald B. MacNeal, Inc. v. Interstate Fire & Casualty Co. (1985), 132 Ill. App. 3d 564, 566, 477 N.E.2d 1322; State Farm Mutual Automobile Insurance Company v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601), the underlying question here, which involves interpretation of the uninsured motorist provision of defendant’s insurance policy, is appropriate for determination by judgment on the pleadings. See Kravis v. Smith-Marine, Inc. (1974), 20 Ill. App. 3d 483, 314 N.E.2d 577.

The statute that governs uninsured motor vehicle coverage provides in pertinent part:

“[N]o policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State *** unless coverage is provided *** in limits for bodily injury or death set forth in Section 7 — 203 of The Hlinois Motor Vehicle Code, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ***.” Ill. Rev. Stat. 1985, ch. 73, par. 755a(1).

The uninsured motorist provision in the State Farm policy provides that the insurer “will pay damages for bodily injury an insured is legally entitled to collect from the driver or owner of an uninsured motor vehicle.” However, the policy further provides that payment by any person who is legally liable for bodily injury to the insured reduces the amount payable under the policy’s uninsured motorist provision. Specifically, section III of the policy, which is entitled “Limits of Liability — Coverage U,” provides, in pertinent part:

“1. The amount of coverage is shown on the declarations page under ‘Limits of Liability — U—Each Person, Each Accident.’ Under ‘Each Person’ is the amount of coverage for all damages due to bodily injury to one person.
2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:
a. by or for any person or organization who is or may be held legally liable for the bodily injury to the insured;
b. for bodily injury under the liability coverage; or
c. under any workers’ compensation, disability benefits, or similar law.”

It is well established that a clear and unambiguous policy provision is to be applied as written and policy language will be given its plain and ordinary meaning (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4-5, 429 N.E.2d 1203; Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 391, 517 N.E.2d 1187; Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 591, 515 N.E.2d 1299), unless it contravenes public policy (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539; Scudella v. Illinois Farmers Insurance Co. (1988), 174 Ill. App. 3d 245, 528 N.E.2d 218; Becker v. Country Mutual Insurance Co. (1987), 158 Ill. App. 3d 63, 510 N.E.2d 1316; Potts v. Madison County Mutual Automobile Insurance Co. (1983), 112 Ill. App. 3d 50, 445 N.E.2d 33). While it is correct that limitations on an insurer’s liability must be construed liberally in favor of the insured (Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044), the rule comes into play only where the limitation of liability clause is ambiguous. Menke, 78 Ill. 2d 420.

Plaintiff contends and the majority agrees that the effect of the limitation of liability clause here precludes any recovery from one of the tortfeasors and such limitation contravenes public policy and the intent of the uninsured motorist statute. A similar analysis was rejected in Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 386 N.E.2d 36, and Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295, where our supreme court upheld the validity of setoff provisions which required that uninsured motorist payments be reduced by the amounts of worker’s compensation awarded a claimant. The rationale advanced in these cases is that the -uninsured motorist statute is intended to place an injured insured in substantially the same position as if the tortfeasor causing the injuries had been insured for the minimum liability insurance required by financial responsibility law. Stryker, 74 Ill. 2d at 511; Ullman, 48 Ill. 2d at 7-8.

Recently, the appellate court upheld a clause which allowed the insurer to set off from the uninsured motorist coverage any amounts payable by the uninsured motorist or any other tortfeasor. In Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644, plaintiff, a passenger in a car driven by Cynthia Long, was injured when Long’s car collided with a car driven by Tony Munos. Mimos was not insured but Long was insured by Allstate. Following litigation and an appeal, judgment was entered and affirmed, respectively, against Long for $2,500 and Munos for $25,000. Plaintiff then filed a declaratory action against Allstate seeking to recover under its uninsured motorist provisions, and the parties agreed to submit the claim to arbitration. The arbitrators awarded plaintiff $2,500 in full settlement of his claim; however, Allstate claimed that pursuant to its policy, the uninsured motorist award was to be reduced by all sums paid by any other person who was jointly or severally liable. Because Allstate had already paid $2,644.40 on behalf of Long, and the claim was $2,500, Allstate claimed that it had no further obligation. The trial court found that Allstate was entitled to a setoff, and the reviewing court affirmed. The reviewing court stated that the protection afforded by uninsured motorist coverage was not diminished by the limitation. (Schutt, 135 Ill. App. 3d at 140.) The court further enunciated:

“Under well-established principles, amounts paid by one or more of the joint tortfeasors are to be applied in reduction of the damages recoverable from those remaining in the suit. [Citation.] Payments made by one of the tortfeasors on account of the tort either before or after judgment diminish the claim of an injured person against all others responsible for the same harm. [Citations.] Without such a reduction, plaintiff may improperly receive damages in excess of injuries sustained. [Citation.] The purpose of compensatory tort damages is to compensate; it is not the purpose of such damages to punish defendants or bestow a windfall upon plaintiffs. [Citation.] Double recovery for the same injury is a result to be condemned. [Citation.]
We conclude from this summary of the law that the setoff clause only acts to prevent double recovery in accordance with principles of Illinois law on damages and does not prejudice a plaintiff who has sustained injuries as a result of the negligence of an insured motorist.” Schutt, 135 Ill. App. 3d at 140.

Using reasoning consistent with that in Ullman and Stryker and in reliance on Schutt, I would hold that absent a statutory provision to the contrary, the provision in defendant’s policy which permits it to deduct payments paid or payable to its insured from one legally liable to him or her from the limits of uninsured motorist coverage is not offensive to public policy.

Moreover, I believe that the cases cited to by plaintiff are inapposite to the factual matrix here presented. The holdings in Maid v. Illinois Farmers Insurance Co. (1981), 101 Ill. App. 3d 1065, 428 N.E.2d 1139, Goss v. State Farm Mutual Automobile Insurance Co. (1986), 147 Ill. App. 3d 866, 498 N.E.2d 562, and Potts v. Madison City Mutual Automobile Insurance Co. (1983), 112 Ill. App. 3d 50, 445 N.E.2d 33, were limited to the issue of stacking separate policies issued by one insurer and the courts’ reasoning in reaching those holdings is irrelevant to the issue of limitation of liability or setoff.

I realize that my proposed disposition here would render a result where plaintiff is precluded from any recovery from her tortfeasor spouse. However, the clause in the policy is not made void by reason of this unfortunate result, or because the plaintiff’s total damages possibly exceed the amount recoverable. Under other circumstances plaintiff would be entitled to recover, i.e., where the amount paid by the uninsured motorist or joint tortfeasor was less than the $100,000 limit of defendant’s uninsured motorist coverage. When a court interprets an insurance policy, there are only two sources upon which it may base, its analysis: the plain language of the policy and the plain language of the Insurance Code of 1937 as it existed at the time the policy was written. Bailey v. State Farm Fire & Casualty Co. (1987), 156 Ill. App. 3d 979, 984, 509 N.E.2d 1064.

Moreover, the uninsured motorist statute provides in section 143(aX4) that:

“In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the property damage, bodily injury or death for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.” Ill. Rev. Stat. 1985, ch. 73, par. 755a(4).

The trial court determined that plaintiff had received $100,000 from Anderson. Under the terms of the policy, that amount was to be set off from the maximum amount of uninsured coverage available to plaintiff, which was also $100,000. Thus, I agree with the trial court’s finding that there was no available uninsured motorist coverage for plaintiff’s claim. An insurer, who is governed by guidelines and restrictions enacted by the legislature, has the right to limit coverage on a policy it issues, and when it has done so, the clear and unambiguous language of the policy limitation clause must be given meaning, and the courts must construe and enforce the contract as made. Kaszeski v. Fidelity & Casualty Co. (1973), 54 Ill. 2d 241, 296 N.E.2d 743; Gray v. Great Central Insurance Co. (1972), 4 Ill. App. 3d 1084, 283 N.E.2d 261.

In light of the statutory mandate and the policy’s unambiguous provision here which states its limit of liability, I would affirm the judgment of the trial court which granted judgment on the pleadings to defendant. Accordingly, I respectfully dissent from the majority opinion.

      At the time of the accident, plaintiff and her husband owned three automobiles, each of which was insured under a separate policy with State Farm. Initially, plaintiff’s complaint for declaratory judgment sought relief under all three policies. However, at the hearing on State Farm’s motion for judgment on the pleadings, the parties agreed that plaintiff was proceeding only on the theory that her husband was an uninsured motorist pursuant to the policy issued on the automobile involved in the collision.


author: JUSTICE SLATER

text:
    JEAN M. FALK et al., Plaintiffs-Appellants, v. DON MARTEL, Defendant-Appellee.
    Third District
    No. 3 — 90—0055
    Opinion filed March 15, 1991.

      Jean M. Falk, of Davenport, Iowa, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiffs Jean M. Falk and her minor daughter, Heather D. Falk, filed a five-count complaint in the circuit court of Henry County against defendant Don Martel, an investigator employed by the Illinois Department of Children and Family Services (DCFS). The allegations contained in the complaint arise out of an investigation by the defendant of a report of suspected child abuse involving the plaintiffs on October 18, 1984. Count V of the second amended complaint alleged a violation of plaintiffs’ constitutional rights under 42 U.S.C. §1983 (1988) of the Civil Rights Act. The case was removed to Federal court, and the defendant was granted summary judgment on count Y on the basis of qualified immunity. The remainder of the complaint was remanded back to the circuit court.

Count I of the complaint alleged that the defendant willfully and maliciously committed a battery upon Heather Falk by pinching her on the buttocks, shoulder, and back and that the defendant’s acts were wanton, willful, reckless, and outside the scope of his employment. Count II alleges that the defendant committed a battery upon Jean Falk by grabbing her by the shoulder and throwing her on a bed. These acts were also alleged to be malicious, wanton, willful, reckless, and outside the scope of defendant’s employment. Counts III and IV charged that the defendant forcibly entered the plaintiffs’ home and “without cause or provocation commenced a pattern of extreme and outrageous conduct consisting of verbally abusing and humiliating” the plaintiffs Heather and Jean Falk, causing severe emotional distress. The complaint further alleged that the defendant’s acts were malicious and outside the scope of his employment and that the defendant knew his conduct was substantially certain to cause emotional distress.

The defendant moved to dismiss the complaint pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)) on the basis of statutory immunity and public official immunity. The trial court granted the motion to dismiss, and the plaintiffs now appeal. We affirm in part and reverse in part and remand.

As a preliminary matter, we consider the defendant’s motion to strike portions of plaintiff’s brief which was taken with the case. The defendant correctly notes that the plaintiffs’ statement of facts fails to make reference to the pages of the record and contains inappropriate comments and statements not found in the record. In addition, plaintiffs’ brief makes reference to various irrelevant sections of the Criminal Code of 1961 and does not contain a statement of jurisdiction as required by Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii)). While we do not condone the type of careless disregard for the supreme court rules evidenced by plaintiffs’ brief, given the relative simplicity of the record before us and the fact that the defendant does not dispute this court’s jurisdiction, we will consider the merits of this appeal. The motion to strike is denied. We will disregard any inappropriate or unsupported statements in reviewing this matter. See In re Marriage of Betts (1987), 159 Ill. App. 3d 327, 511 N.E.2d 732; James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531.

According to the affidavits filed by the defendant in support of his motion to dismiss, Jean Falk telephoned her neighbor on October 17, 1984, and told her that she had lost her temper with her daughter Heather and had beaten her. The neighbor called DCFS and the Colona police department and reported the incident. Jean Falk told the police officer investigating the report that she occasionally disciplined her daughter by hitting her with a spoon. The same officer investigated Jean Falk’s subsequent claim, made on October 30, that the defendant had invaded her home on October 18. The officer found no evidence of forcible entry or property damage.

The defendant stated in his affidavit that he first met the plaintiffs in 1981 during an investigation of suspected child abuse. He went to the plaintiffs’ home on October 18, 1984, in response to another report of suspected child abuse. After the defendant identified himself, Jean Falk remembered him and let him inside. Jean stated that she had become angry with her daughter and hit her with a plastic salad fork. Heather Falk also told the defendant that her mother had hit her. Jean Falk lowered her daughter’s pajamas so the defendant could look for bruises, and the defendant noted that Heather was bruised on her face, both shoulders, and on the right side of her lower back. The defendant denied forcibly entering the Falk residence or assaulting Jean or Heather Falk, and concluded the affidavit by stating that every act he performed while at the Falk residence was necessary to conduct his investigation.

In his motion to dismiss, the defendant claimed that he was entitled to statutory immunity pursuant to section 9 of the Abused and Neglected Child Reporting Act (the Reporting Act) (Ill. Rev. Stat. 1989, ch. 23, par. 2059), and that he was also entitled to public official immunity. In granting defendant’s motion, the trial court found that section 9 of the Reporting Act grants a presumption of immunity and that plaintiffs had failed to overcome that presumption. Section 9 states:

“Any person, institution or agency, under this Act, participating in good faith in the making of a report *** or in the investigation of such a report *** or in the taking of photographs and x-rays or in the retaining a child in temporary protective custody shall have immunity from any liability, civil, criminal or that otherwise might result by reason of such actions. For the purpose of any proceedings, civil or criminal, the good faith of any persons required to report *** or permitted to report, cases of suspected child abuse or neglect under this Act, shall be presumed.” Ill. Rev. Stat. 1989, ch. 23, par.2059.

In Lehman v. Stephens (1986), 148 Ill. App. 3d 538, 499 N.E.2d 103, the court found that while the first sentence of this section grants immunity to those acting in good faith under the Reporting Act, the second sentence grants a presumption of good faith only to required and permitted reporters, and not to the other categories of persons mentioned in the first sentence. (Lehman, 148 Ill. App. 3d at 551, 499 N.E.2d at 112.) Thus, the defendant here, who was investigating a report of child abuse, is not entitled to a presumption of good faith. Absent this presumption, we believe that the facts pleaded in counts I and II of plaintiffs’ complaint are sufficient to withstand the motion to dismiss.

A motion to dismiss under section 2 — 619(a)(9) (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)) admits all well-pleaded facts (Brown v. Morrison (1989), 187 Ill. App. 3d 37, 542 N.E.2d 1308), “ ‘and conclusions may be proper if based on facts set forth, but the motion does not admit * * * conclusions of law or of fact unsupported by allegations of specific facts on which the conclusions must rest’ ” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976, 985, quoting Richardson v. Eichhorn (1958), 18 Ill. App. 2d 273, 276, 151 N.E.2d 819). Counts I and II of plaintiffs’ complaint allege specific facts constituting the intentional tort of battery to both Jean and Heather Falk. The additional allegations that the defendant’s acts were malicious, willful, wanton, and outside the scope of his employment are conclusory, but they are conclusions that are at least minimally supported by the very nature of the alleged acts. For example, if we accept as true, as we must for the purposes of defendant’s motion, that the defendant grabbed Jean Falk by the shoulders and threw her on a bed, such an act supports the conclusion that the defendant acted willfully or recklessly and perhaps with malice. Moreover, if an allegation of physical abuse by an investigator for DCFS is not sufficient to demonstrate a lack of good faith, the immunity provided by section 9 of the Reporting Act becomes nearly absolute. We emphasize that our decision does not depend upon the truth or falsity of the plaintiffs’ allegations and we express no opinion on that issue. We simply hold that the allegations of counts I and II of plaintiffs’ complaint are sufficient to preclude, at this stage of the proceedings, application of the good-faith immunity provided by section 9 of the Reporting Act.

In addition to the statutory immunity discussed above, the trial court also found that the defendant was entitled to common law immunity as a public official. The doctrine of public official immunity rests on the principle that a government official should be protected from personal liability for making discretionary judgments based on his perception of public needs. (Currie v. Lao (1990), 198 Ill. App. 3d 625, 556 N.E.2d 318, appeal allowed (1990), 133 Ill. 2d 553, 561 N.E.2d 688; Oppe v. State of Missouri (1988), 171 Ill. App. 3d 491, 525 N.E.2d 1189.) So, for example, an engineer employed by the State was not liable for his failure to place barricades around a large hole in the roadway (Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24), nor was an employee of the Department of Transportation liable for failure to establish a no-passing zone where one was called for by State standards (Mora v. State (1977), 68 Ill. 2d 223, 369 N.E.2d 868). However, while it appears that there is some disagreement whether a public official is shielded from liability for willful and wanton acts (compare Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249 (public officials are not liable for willful and wanton conduct), and Thiele v. Kennedy (1974), 18 Ill. App. 3d 465, 309 N.E.2d 394 (same), with Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77 (public official immunity does not extend to willful and wanton acts)), it is clear that the immunity is conditioned upon a good-faith exercise of discretion and does not include acts based on corrupt or malicious motives (Barth, 141 Ill. App. 3d 266, 490 N.E.2d 77; Larson, 113 Ill. App. 3d 975, 448 N.E.2d 249; Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 373 N.E.2d 486; Thiele, 18 Ill. App. 3d 465, 309 N.E.2d 394). Again assuming the truth of the allegations of battery contained in counts I and II of plaintiffs’ complaint, we find that the alleged acts fall outside the scope of the protection afforded by the doctrine of public official immunity. We hold, therefore, that the trial court erred in dismissing counts I and II of plaintiffs’ complaint.

Counts III and IV of plaintiffs’ complaint are obviously intended to state a cause of action for intentional infliction of emotional distress (see Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765; Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591). Those counts, like those alleging battery, also charge that the defendant’s acts were malicious and outside the scope of his employment. Unlike counts I and II, however, the conclusory allegations in counts III and IV are not supported by allegations of specific facts. Indeed, counts III and IV do not contain any specific factual allegations. Therefore, we find no error by the trial court in dismissing counts III and IV on the basis of statutory and public official immunity. Moreover, as a separate and independent ground for affirming the dismissal of counts III and IV, we find that those counts fail to state a cause of action for intentional infliction of emotional distress because they contain no factual allegations and are entirely conclusory. It is well established that dismissal of a complaint may be upheld upon any basis found in the record, including a failure to state a cause of action. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358; Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 334 N.E.2d 246; Bauscher v. City of Freeport (1968), 103 Ill. App. 2d 372, 243 N.E.2d 650.) The dismissal of counts III and IV of plaintiffs’ complaint is affirmed.

For the foregoing reasons, the judgment of the circuit court is affirmed as to counts III and IV of the complaint. The dismissal of counts I and II is reversed, and this cause is remanded for further proceedings.

Affirmed in part, reversed in part and remanded.

BARRY and GORMAN, JJ., concur.