Sufficiency of Evidence for Unfitness Under Grounds (m)(iii) and (p)

In re S.L., 2012 IL App (5^th) 120271

            State filed a petition for termination of parental rights of both parents of minor.  The father did not partake in trial proceedings or appeal. 

[This summary does not include testimony of issues not addressed in the appellate court’s ruling.]  The State filed a petition for termination of parental rights alleging unfitness against mother for the following grounds:  1) failure to make reasonable efforts to correct conditions that were the basis of the child’s removal, 705 ILCS 50/1D(m)(i); 2) failure to make reasonable progress towards return home of the child within 9 months after adjudication,  705 ILCS 50/1D(m)(ii); 3) failure to make reasonable progress for any 9 month period following adjudication, 705 ILCS 50/1D(m)(iii); and 4) inability to discharge parental responsibilities based on mental impairment that will extend beyond reasonable time period, 705 ILCS 50/1D(p). 

At the hearing on State’s termination of parental rights, a clinical psychologist testified to mother’s own past history of abuse and that she had another child that was in her custody at time of termination hearing.  The psychologist diagnosed her with PTSD, borderline intellectual functioning and a personality disorder not otherwise specified.  He testified that mother was not able to discharge her parental responsibilities at the time her interviewed her and that mother should get long-term intensive therapy before being reunited with her child.  The psychologist estimated that mother would need 6 months to one year of maintaining a stable life; i.e., stable housing, no arrest,  not domestic violence, no drug use, before being able to regain custody of her son. 

The appellate court first looked at the9-month pleading requirement under , 705 ILCS 50/1D(m)(iii). The State conceded that it failed to file the notice specifying the 9-month period as required by statute.  A plain reading of the statute mandates the State to give notice of the specific 9-month period(s) at issue no later than 3 weeks before close of discovery, “the petitioner shall file with the court and serve on the parties a pleading that specifies the 9-month period or periods relied on.  Additionally, “the allegations in the pleading shall be treated as incorporated into the petition or motion…”  .”  705 ILCS 50/1D(m)(iii). 

In underscoring the significance of notice the court stated, “The portion of the statute requiring this notice pleading is as much a part of the allegation of unfitness as the basic provision that the parent has failed to make reasonable progress toward the return of her child.”  at ¶39.  Failure to identify the 9-month period impairs the parent’s ability to defend her/himself.  This is all the more important given the fundamental constitutional right to parent.  Moreover, the State’s duty to give notice cannot be waived by the parent’s failure to object.  Because the allegation was not in conformity with the statute, the circuit court erred in finding unfitness under ground (m). 

The State may not terminate on grounds not alleged in the petition.  Because the 9-month periods were not alleged in the petition via being incorporated by the pleading requirement, the circuit court could not find mother unfit under ground (m)(iii).  Finally, the appellate court noted that the State’s evidence did not clarify which 9-month period was at issue and the circuit court failed to identify any such period when finding mother unfit under ground (m)(iii). 

Note:  The allegation of unfitness based on reasonable progress within 9 months after adjudication was not sufficient notice under this court’s interpretation of the statute. 

As to the finding of unfitness based on mental impairment, ground (p), the appellate court also found that the State failed to meet its burden of proof.  Ground (p) has two components which the State must prove:  1) parent suffers from a mental impairment rendering him/her unfit to parent, and 2) this impairment will extend beyond a reasonable time.  As to the first component, the psychologist’s testimony established only that mother was not capable of discharging her parental responsibilities based on past history, but not on her current mental impairment, which is required by statute.  The appellate court also found noteworthy that mother was successfully parenting another child during the time of the termination hearing and that DCFS had not found it necessary to remove that child from mother’s care.  The court found it “illogical” that mother had such severe mental impairment that rendered her unfit to parent one child but not another. 

As to the second element of ground (p), that the impairment will extend beyond a reasonable time, the appellate court again found the State failed to meet its burden of proof.  The psychologist testified that mother needed up to one year of stability before being reunited with her child, the caseworker testified that mother had stable housing for the past 9 months, had utilities, not arrest, no domestic violence and no substance abuse.  Additionally, the caseworker testified that mother cooperated with the services requested of her.  The only problem was her lacking the appropriate level interaction with her child.  The appellate court held that mother had shown at the hearing that she had met all the requirements identified by the psychologist for logistical stability to allow her to be reunited with her child. 

The mater was reversed and remanded for further proceedings consistent with opinion.

Parent’s Failure to Appear at Termination Proceeding Does Not Warrant Default Judgment

In re C.J., C.B., & C.J., 2013 IL App (5^th) 120474

In March 2008, the State filed Petitions for Adjudication of Wardship for the 3 minors alleging they were neglected by their mother. The mother stipulated to the allegations of neglect and the children were adjudged wards of the court at a dispositional hearing.  No allegations of neglect were made against the father at adjudication but the court did not grant father custody because 1) he had not provided financial support to the children, and 2) father had no permanent residence. 

The State later filed petitions to terminate parental rights against both mother and father.  In November 2010, father appeared in court and was appointed counsel.  He appeared again at a pretrial hearing in February 2011.  He failed to appear at a

June 2011 hearing.  The court found him in default and set the case for disposition in July 2011.  Later in June the court granted father’s motion to set aside the default order.  The case was continued to October 2011, at which date the father appeared. The matter was again continued until February 2012.  Father’s attorney appeared at the February 2012 hearing but not the father.  The court again found father in default.  The State recited the allegations of unfitness but presented no evidence.  Thereafter the court found father unfit and that it was in the best interest that his rights be terminated. In February 2012, the father filed a motion to vacate the default based on medical reasons.  The court denied his motion to set aside the default. 

The father filed a notice of appeal.  The State filed a motion requesting that the court’s order terminating father’s parental rights be vacated and remanded for an evidentiary hearing because of the lack of evidence presented in support of that finding. 

The appellate court granted the State’s motion to reverse and remand.  The appellate court held that a default judgment may be granted only when the defaulted party fails to file an answer or appearance.  Failure to appear at trial generally does not justify a default judgment.  If the respondent is present to try the case, the petitioner must provide allegations within petition.  In this case, the State’s failure to introduce any evidence of unfitness in light of father’s filing his appearance and contesting allegations in the petition for termination did not allow the circuit court to enter a default judgment against the father. 

Note:  The opinion does not indicate that the father filed an answer to the petition to terminate parental rights.  Thus, his appearance contesting the petition was as sufficient as answering the petition.

Finding of Parent Unfit at Disposition Upheld Where Parent Noncustodia

In re A.P., 2013 IL App (3rd)  120672

In March 2012 the State filed a petition for adjudication due to the mother being involved in a violent domestic relationship with her paramour and mental illness.  The father was not named in the petition because his identity was not yet known. 

Approximately 1 month after the adjudicatory hearing the respondent was identified as the father.  He filed an answer to the petition stipulating to the allegations but denying he contributed to the abuse or neglect. 

At a subsequent court hearing the State presented the court with a memo outlining the father’s criminal history and that he was criminally charged with kidnapping the children during a visit. 

In August 2012, and adjudication and disposition hearing was held for the father.  The circuit court took judicial notice of the proffer made at the mother’s adjudication and again found the minor to be abused. 

At the father’s disposition hearing, father asked the court to reserve the disposition finding pending the outcome of the criminal case regarding the kidnapping.  The father had not cooperated with DCFS to complete a social history and integrative assessment on the advice of his criminal attorney.  The circuit court found the father to be unfit based on his refusal to cooperate with DCFS, his past criminal convictions (including violent crimes) and the pending kidnapping case.

The appellate court held that a parent can be found unfit at a disposition hearing even when there are no allegations contained in the juvenile court petition against that parent.  The Petition puts both parents on notice that fitness will be an issue at the disposition hearing.  Here the evidence of father’s failure to cooperate and criminal history supported a finding that the father was dispositionally unfit.