|
In re C.L.T., No. 5-97-0984 5th Dist. 2/4/99 |
February 4, 1999
NO. 5-97-0984
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
____________________________________________________________
(The People of the State of Illinois, Petitioner-Appellee, v. K.M., Respondent-Appellant.) Court of Madison County. Nos. 95-J-889, 95-J-913, & 95-J-914 Honorable Lewis E. Mallott, Judge,
presiding. ________________________________________________________________________ JUSTICE MAAG delivered the opinion of the
court: This case is an interlocutory appeal of right from
the final judgment of the circuit court of Madison County, terminating the
parental rights of respondent K.M. (the mother), with respect to three of her
minor children. The parental rights of B.T. (the father) were also terminated;
however, this appeal is only on behalf of the mother. No questions are raised on
the pleadings, and the mother filed a timely notice of appeal. The mother contends that the evidence does not
sustain the findings of the circuit court that she was an unfit parent. We
disagree for the following reasons. In the circuit court, a finding of parental
unfitness must be proved by clear and convincing evidence. In re
Pronger, 118 Ill. 2d 512, 526, 517 N.E.2d 1076, 1081 (1987). The circuit
court's finding will not be reversed, however, unless it is against the manifest
weight of the evidence, since that court had the opportunity to see the
witnesses and evaluate their credibility. In re J.P., 261 Ill. App. 3d
165, 174, 633 N.E.2d 27, 34 (1994). For a finding to be against the manifest
weight of the evidence, the "opposite result must be clearly evident from a
review of the evidence." J.P., 261 Ill. App. 3d at 174, 633 N.E.2d at
34. The circuit court's finding is entitled to great
deference. J.P., 261 Ill. App. 3d at 174, 633 N.E.2d at 34. It is not
the function of this court to reweigh the evidence or to reassess the
credibility of the witnesses. In re I.D., 205 Ill. App. 3d 543, 550,
563 N.E.2d 1200, 1205 (1990). "Each case concerning parental unfitness is
sui generis, unique unto itself." In re Adoption of Syck, 138
Ill. 2d 255, 279, 562 N.E.2d 174, 185 (1990). We must be mindful that a finding
of parental unfitness may be based on evidence sufficient to support any
one statutory ground, even if the evidence is not sufficient to support
other grounds alleged. In re J.A.S., 255 Ill. App. 3d 822, 825, 627
N.E.2d 770, 774 (1994). In the case at bar, the petition to terminate
parental rights alleged that the mother was an unfit person for (1) failing to
maintain a reasonable degree of interest, concern, or responsibility as to the
minors' welfare and (2) demonstrating habitual addiction to drugs, other than
those prescribed by a physician, for at least one year immediately prior to the
commencement of the unfitness hearing. Pursuant to the Adoption Act (750 ILCS 50/0.01
et seq. (West 1996)), one of the grounds of unfitness is the "failure
to maintain a reasonable degree of interest, concern[,] or responsibility as to
the child's welfare." 750 ILCS 50/1D(b) (West 1996). Since the language of
section 1D(b) is in the disjunctive, any of the three grounds identified
therein--the failure to maintain a reasonable degree of interest or
concern or responsibility as to the welfare of the minors--may be
established as a basis for unfitness. See J.P., 261 Ill. App. 3d at
174, 633 N.E.2d at 34. This case commenced on October 18, 1995, with the
State filing petitions to adjudicate the minors T.T., C.T., and B.T. neglected.
Specifically, all of the petitions alleged that T.T. was a newborn whose blood
or urine contained cocaine and that the mother was not providing him with the
proper or necessary support, education, or medical or other remedial care
recognized under State law as necessary for his well-being. All of the petitions
also alleged that the minors' mother has a substance abuse addiction which
inhibits her ability to provide adequate care and supervision for the three
children. On November 16, 1995, the circuit court entered an
order for continuance under supervision and ordered as follows: (1) that the
parents cooperate fully with the Department of Children and Family Services
(Department) and Family First, (2) that the parents cooperate with and
successfully complete any parenting lab arranged for them by the Department, (3)
that the mother undergo and successfully complete evaluation and recommended
treatment for drug addiction or alcoholism as arranged by the Department, and
(4) that the parents allow the Department access to their home for the purpose
of monitoring this order. On February 5, 1996, the State filed a petition to
revoke supervision because Family First could not locate the parents on five
attempts in one week. On February 28, 1996, the court revoked supervision by
agreement, found the minors neglected, and placed them in the custody of the
mother, whom the court again ordered to cooperate with the Department, attend
parenting classes, complete drug treatment, allow the Department home access,
and tell the Department where she lives at all times. On March 6, 1996, the State filed supplemental
petitions seeking adjudications of neglect, adding the ground that the parents
left the minors with a relative without making arrangements for their care.
Although the mother was previously pro se, she submitted an affidavit
of indigence and the court appointed an attorney to represent her. That same
day, the circuit court held a shelter care hearing and found probable cause to
believe that the minors were neglected as alleged in the supplemental petition.
B.T., the father, was present and was also represented by an
attorney. On October 25, 1996, a petition to terminate
parental rights as to all three minors was filed. The petition stated that B.T.
admitted paternity and was, at that time, residing at the Madison County jail.
The petition also stated that the mother was residing at the St. Clair County
jail. The petition also alleged that C.T.'s father was C.H., who was, on the
date of the petition, residing at the federal correctional institution in
Memphis, Tennessee. The allegations contained in paragraph seven of the
petition state that the mother was unfit for the following reasons: (1) she
failed to maintain a reasonable degree of interest, concern, or responsibility
as to the welfare of the minors and (2) she has demonstrated habitual addiction
to drugs, other than those prescribed by a physician, for at least one year
immediately prior to the commencement of the unfitness proceeding. The petition
also alleged that B.T. and C.H. were unfit fathers. The mother denied the allegations of paragraph
seven. On March 19, 1997, a hearing was held on the
petition to terminate the mother's parental rights. The mother failed to appear
and her attorney requested a continuance. The attorney told the court that her
client received some devastating news that day from a case worker, and counsel
stated, "[A]pparently this has caused here [sic] to be unable to attend
Court." Then, the following colloquy between the mother's attorney and the trial
judge was as follows: At the time, Ruth Meyer, a Department case worker,
was called to the witness stand. Meyer testified that she had been the case
worker for the mother's children since January or February of 1996. Meyer stated
that she had seen the mother at 12:40 p.m. that very day and that they had
spoken to one another. Meyer testified that she had gone to the mother's
residence to explain that the mother's baby was very sick. Meyer then testified
as follows: When asked whether the mother "kept in regular
contact and visited the child" while the child was in the hospital, Meyer stated
that although the mother had "some" contact with the child, she did not have
regular contact with her. When asked if the mother had visited the infant in its
most recent hospitalization, Meyer replied that the mother had not and that she
did not even know what hospital the child was in. On cross-examination, Meyer
was asked how the mother responded when she was told how gravely ill her infant
was. Meyer testified: "She was non[]expressive. She stated what I said, [and]
didn't scream or cry ***." The court denied the mother's motion to continue.
The court stated, however, that if the mother could produce proof from hospital
medical staff that she was actually at the hospital from 1 p.m. through 2:30
p.m. on the date of the hearing, the order would be vacated. Meyer was the witness that the State called
regarding the grounds for the termination of parental rights. Meyer stated that
the Department required the mother to obtain a drug and alcohol assessment,
follow through on the recommendations, complete a parenting class, visit the
children once a week or more often as she progressed in the service plan, and
communicate to the Department regarding her whereabouts. The mother had the assessment on November 19, 1996.
The recommendation was "intensive out-patient services." Although the mother was
supposed to attend four or five sessions a week, she only attended three
sessions from November 20 through the month of December, and she attended seven
sessions in February. Hence, she did not successfully complete that program. The
mother attended only one of six parenting classes, and at the point of the
completion of the class, she could not be located. Periodically, the Department
still did not know of the mother's whereabouts, and later it discovered that she
was incarcerated in the Madison County jail, the St. Clair County jail, and the
St. Charles, Missouri, jail. In March of 1996, the mother visited the children
three times. In April of 1996, she visited them only once. After that visit, the
mother did not see her children until August of 1996. In August, she visited
them twice. She saw them twice in October of 1996, twice in November of 1996,
once in January of 1997, and three times in February of 1997, with the last
visit occurring on February 21, 1997. Meyer stated that the visits averaged only
one per month, whereas the Department requested that she visit with them once a
week. Subsequent to Meyer's testimony, the circuit court
determined that the State met its burden of proof, and the court granted the
petition for termination. It is clear that the mother failed to complete any
of the tasks. A review of the record shows that the mother failed to maintain a
reasonable degree of interest, concern, or responsibility as to the welfare of
the minors. Anyone that is not "unfit", as defined by the Adoption Act, would
have worked to complete those very reasonable tasks in order to show her
interest in, her concern about, and her responsibility for the welfare of her
children. Although the mother would now like this court to
believe that her failure to complete many of the required tasks was due to her
financial condition or to her lack of access to transportation or to the
distance she would have had to travel, we decline to accept this as an excuse
for her failure to complete every task, for the following reasons. First, there
was absolutely no evidence that she informed the Department that she would be
unable to visit the minors because of her financial condition, because of any
lack of access to transportation, or because of any great distance to where the
children were staying. Moreover, she did not make any such claims during the
termination proceedings. In fact, her attorney never even asked Meyer whether
those circumstances existed. Although any one of the following demonstrated that
the mother was an "unfit" parent, her failure to follow the juvenile court's
orders to cooperate with the Department as to visitation of the minors, to
complete parenting classes, to complete treatment for any drug or alcohol
problems, and to keep the Department informed of her whereabouts evidenced her
failure to maintain a reasonable degree of interest, concern, or responsibility
as to the welfare of the minors. These facts, coupled with the fact that she
failed to appear for the termination hearing when she clearly had two
alternative forms of transportation that day, show that she failed to maintain a
reasonable degree of interest, concern, or responsibility as to the welfare of
the minors. Hence, the finding by the court that the State proved the allegation
of unfitness was not against the manifest weight of the evidence. Since a finding of parental unfitness may be based
on evidence sufficient to support any one statutory ground, even if the evidence
is not sufficient to support other grounds alleged, we need not address the
issue of whether the State met its burden of proving the other grounds alleged
in the petition. Next, the mother claims that the court deprived her
of due process of law by proceeding in her absence with the hearing on the
petition to terminate her parental rights. The mother was served with a summons on December 31,
1996, directing her to appear on February 5, 1997, for a hearing on the petition
to terminate her parental rights. On February 5, an order was entered continuing
the termination hearing and directing that notice be mailed. The hearing was
subsequently scheduled for March 19, and she failed to appear for the hearing.
As we already stated, Meyer saw the mother approximately 2½ hours prior to the
hearing to explain the medical condition of the mother's infant and offered the
mother transportation to the hearing that very day. She declined the offer and
told Meyer that her sister could give her a ride. Despite the fact that her
infant was in critical condition, she did not indicate to Meyer that she
intended to go to the hospital to see the infant. In fact, she had not been to
visit with the infant for approximately one week. Meyer stated that when the
mother was told how serious her infant's medical condition was, she was
"non[]expressive". The mother's attorney moved for a continuance due to
the circumstances involving the mother's infant. However, the mother's attorney
admitted that she had no reason to believe that the mother was actually at the
hospital visiting the infant. The court denied the motion for a continuance but
stated that it would vacate the order if, within seven days, the mother could
produce independent evidence of hospital medical personnel that she was actually
at the hospital when she was scheduled to be in court. The mother never
presented such evidence, even at the hearing on her posttrial motion. Due process requires adequate notice to the minor's
parents in a juvenile proceeding. In re J.P.J., 109 Ill. 2d 129, 134,
485 N.E.2d 848, 850 (1985). Pursuant to section 2-16(4) of the Juvenile Court
Act of 1987 (705 ILCS 405/2-16(4) (West 1996)), once service of the petition has
properly been made, a change in the date of the hearing on the petition requires
notice by certified mail "or other reasonable means" to each respondent who was
served with a summons personally. Although we recognize that a parent has the
right to be present at a hearing to terminate parental rights, it is not
mandatory that she be present, and the trial judge is not obligated to wait
until she chooses to appear. In re Interest of Williams, 36 Ill. App.
3d 917, 921, 344 N.E.2d 745, 748 (1976). A review of the record shows that the mother was
served with a summons for the petition to terminate parental rights. On the date
scheduled, the hearing was continued to another date and the court ordered that
notice be mailed. Neither the mother nor her attorney ever claimed that the
mother did not receive notice of the new hearing date. Hence, the mother had
notice of the hearing. Regardless, even if she had not received notice by
mail, her counsel was aware of the date and appeared at the proper date and
time. The mother had a duty to follow the progress of her case and to learn from
her attorney the date of the next hearing. Tiller v. Semonis, 263 Ill.
App. 3d 653, 657, 635 N.E.2d 572, 574 (1994). Notice to counsel would be one
method of providing the notice by "other reasonable means" that section 2-16(4)
contemplates. Moreover, we know that the mother had actual notice
of the termination-of-parental-rights hearing at least 2½ hours prior to the
hearing because Meyer testified that she personally reminded her of the hearing.
It is apparent to this court that the mother never intended to go to the
hearing. When Meyer asked the mother if she knew that she had a court date on
that particular day she said, "Huh? I don't have a ride." Meyer told her that
she would give her a ride, and the mother replied, "No, my sister will give me a
ride." Meyer even went so far as to ask her if she was sure, and the mother
replied in the affirmative. It is within the juvenile court's discretion whether
to grant or deny a motion for a continuance. In re K.S., 203 Ill. App.
3d 586, 596, 560 N.E.2d 1380, 1386 (1990). It is clear in the instant case that
the mother had notice of the hearing but, nonetheless, failed to appear.
Additionally, she did not go to the hospital to see her infant and made no
attempt to prove that she was at the hospital at the time of the hearing. Under
such circumstances as those present in the instant case, we cannot say that the
juvenile court abused its discretion when it denied the motion for a
continuance. Since the mother was given notice of the hearing
date and voluntarily failed to appear, since she failed to provide evidence that
she was at the hospital, and since she was represented by counsel at the
hearing, her right to due process was not denied when the hearing proceeded in
her absence. Finally, the mother claims that this case should be
remanded for a hearing concerning the best interests of the children because,
after finding her unfit, the juvenile court failed to conduct a separate hearing
into the best interests of the children prior to ordering the termination of her
parental rights. We agree. Although it is true that the mother has waived this
issue by failing to object at the time of the hearing, waiver is a limitation on
the parties, not this court. The Illinois Supreme Court has clearly stated that
a single hearing consolidating the issues of unfitness and best interests
carries a risk of prejudice. Syck, 138 Ill. 2d at 275-76, 562 N.E.2d at
184. Likewise, in In re A.P., 277 Ill. App. 3d 592, 599-600, 660 N.E.2d
1006, 1012, this court stated that the question of what is in the best interests
of the child should not be treated lightly. "A separate hearing and
determination of the child's best interests is mandatory in order to
ensure the proper focus on those interests. That need not be a lengthy or
burdensome process, as the fitness and best interest hearings may be held one
right after the other with an unfitness determination necessary before going
forward." (Emphasis added.) Accord In re J.T.C., 273 Ill. App. 3d 193,
199-200, 652 N.E.2d 421, 426 (1995); In re V.S., 285 Ill. App. 3d 372,
375, 674 N.E.2d 437, 439 (1996). Since it is clear in the instant case that there was
no hearing regarding the best interests of the children, that portion of the
trial court's order finding the mother to be an unfit parent is affirmed, the
termination of her parental rights is reversed, and the cause is remanded for
further proceedings. Affirmed in part and reversed in part; cause
remanded. RARICK, P.J., and KUEHN, J.,
concur.
In re C.L.T., T.P.T., and
B.N.T., Minors
Appeal from the Circuit
"THE COURT: Miss Robins, let me put you on the spot. You said
`apparently'. Do you know that is the reason she is not here, or are you just
guessing?
MS. ROBBINS [the mother's attorney]: I don't know. I only know
from talking to the case worker and the conversation that the case worker had,
but I am assuming that the State will put the case worker on to flush out what
actually happened today."
"A. [Meyer] I had knocked for ten minutes [at the mother's
residence], and I was hearing movement inside and no answer. So I finally
knocked loudly and screamed, "your baby is dying, answer the door", in order
to get her to answer the door for me.
THE COURT: You told her that?
A. I screamed that, yes; "your baby is
dying, answer the door".
THE COURT: Is her baby dying?
A. Yes. She answered the door *** and I advised her of the child
having RSV virus and that she was in critical condition, had been since
Thursday, and the condition had worsened today, and they had given her
paralyzing drugs and upped the dosage of the respirator and did not know. It
was touch and go.
Q. Did you have any discussions with her
about coming to Court today?
A. Yes, I did.
Q. What was the substance of that
conversation?
A. I stated, `Do you know that you've got
a court hearing today?' She said, `Huh? I don't have a ride.' I said, `I'll
give you a ride now.' She said, `No, my sister will give me a ride.' I said,
`Are you sure?' She said, `Yes.'
Q. Did she indicate at any time [that] she intended to go to the
hospital to see her child prior to coming to Court or in place of coming to
Court?
A. No, she did not indicate that.
Q. When was the child born?
A. February 1st of 1997.
Q. And during that time has the child
been in good health, or has there been continuing problems with its
health?
A. The child--*** [the mother] received no prenatal care and
showed up at St. Elizabeth's Hospital in Granite City two days before birth.
Her water was leaking, and they rushed her to St. Mary's Hospital in Clayton.
She left against medical advice. Two days later she showed up at St.
Elizabeth's Hospital again and she--the foot of the baby was hanging out of
her vagina and all the water had come out, so it was a dry birth then. They
were able--the baby was able to be born alive, so there was [sic]
some complications from that, but there was [sic] none from--she
stabilized, was released from the hospital on February 10th, until last
Thursday when she had to return because of the virus."