Failure of Ward of Court to Engage in Services Not Basis to Close Guardianship Case

In re Aaron L. 2013 IL APP (1^st) 122808

In 1994, one-year old minor was adjudged a ward of the court.  He was placed in several foster homes.  During that time the circuit court made several findings the DCFS failed to make reasonable efforts to achieve permanency. 

            In 1999 the court appointed a relative as guardian.  However, this guardianship was vacated in 2006.  (No basis given in opinion.)  Thereafter the minor lived in several foster homes.  In February 2007, a psychological evaluation stated that minor had limited cognitive abilities and had significant difficulties with emotional and social functioning.  Around this time he was also found guilty of aggravated battery.  Minor was placed in a therapeutic group home in Kankaee.  In July 2010 (minor now 17 years old) he was moved to a group home in Lisle.  Three months later he was placed in a TLP in Wheaton. 

            In February, 2012, soon before minor’s 19^th birthday, the GAL filed a motion to extend wardship and guardianship.  At the hearing the TLP supervisor recommended extending wardship.  The supervisor testified theat minor was attending classes at the College of DuPage, though not consistently, and looking for a job.  The circuit court granted the GAL’s motion to extend guardianship for 6 months, noting that the minor needed services to help him gain independence. 

            At the August 2012 permanency hearing the minor’s case manager testified that the minor had violated the TLP’s rules, lost his job, used drugs, and violated probation.  Moreover, he owed school loans and a collection agency was pursuing payment on his Sprint phone bill.  The case manager testified that the minor had not made progress, however he could not live independently without aid from DCFS and ChildServ and would benefit from additional services.  The circuit court ordered the case to be closed because the minor did not seem to care to engage in services.  However, the court stayed the matter for 45 days to determine if the minor’s behavior would change.  The court’s order stated that the minor was unable to live independently and was not cooperating with services.  The court checked the box on the order form that good cause was shown to support extension of wardship which was in the best interest of the minor and the public.

            During the September 2012 status hearing the case manager testified that the minor was in desperate need of the following services:  education, vocational training, life skills, therapy and substance abuse treatments.  The minor’s engagement in services were non-existent.  The circuit court closed the case because there was “very little legal basis” to keep the case open.  The court wrote on the order form that it was in the minor’s best interest to close the case. 

            The appellate court first noted the circuit court’s failure to follow the provisions of the Juvenile Court Act, 705 ILCS 405/2-2-31(1) & (2) which requires a court to make written factual findings in support of closing a case.  The appellate court also noted that the provisions of the Act state that a case cannot be closed based on the failure of the minor to engage in services. 

In this case, the appellate court found that the circuit court erred when failing to make any written factual findings regarding the health and safety of the minor and the public.  Moreover, the minor had testified that he wanted the case to remain open.  The manifest weight of the evidence did not support the court’s ruling.  The minor needed employment, drug abuse treatment, and had unresolved delinquency matters.  There was no evidence that the minor could live independently at that time.  The circuit court failed to consider the minor’s need for services to be made available to him.  The minor’s lack of cooperation and engagement in services was not a basis for termination of guardianship.  The circuit court’s order was reversed and remanded.

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. 

Two Failed Drug Tests in the Year Prior to Filing of Supplemental Petition to Terminate was Sufficient to Establish Unfitness

    In In re Angela D. and Delilah A., 2012 IL App (1st) 112887, the appellate court upheld a finding of unfitness based on the parent being a habitual drunkard and/or addicted to drugs for at least one year prior to the State filing a supplemental petition to terminate parental rights, pursuant to 750 ILCS 50/1(D)(k).  During that one year period, the mother tested positive for PCP on two occassions.  The appellate court held that these two tests were sufficient to establish drug addition, relying on the opinion In re Precious W., 333 Ill.App.3d 893 (2002).  The court also took notice of 4 missed drug tests scheduled during that one year period. 
     The court held that "addiction to drugs" under section 50/1(D)(k) does not require a finding of continual use, but "the inability or unwillingess to refrain from the use of drugs because frequent indulgence has instilled in the person a habitual craving which is manifested in an ongoing pattern of drug use", citing In re D.M., 298 Ill.App.3d 574 (1998).  Additional evidence was presented relating to the parent's drug use (outside the crucial one-year period) including failure to complete inpatient treatment programs, failure to provide attendance at AA/NA meetings, and prior positive drug tests. 
    

Must a Legal Guardian's Status be Stripped Following a No-Fault Dependency Finding?

      In In re C.C., 2011 IL 111795, (discussed in the previous blog entry) the Illinois Supreme Court held that when a legal guardian is stripped of her guardianship role by the court, the former guardian is no longer a party to proceedings under the Juvenile Court Act.   In C.C., the legal guardian stipulated to a finding of neglect. She did not appeal the trial court's finding that it was in the child's best interest to be made a ward of the court. 
   
     My questions are these:  When a child, under the care of a legal guardian, is made a ward of the court based on no-fault dependency, is that guardian also stripped of her right to be a party to the proceedings?  If the legal guardian does not have the ability to tend to the child's special needs, is removing the guardian of her legal relationship to the child the only means by which the child can receive the needed services?

    

When a Child Become a Ward of the Court, her Legal Guardian is no longer a Party in Abuse and Neglect Proceedings.

           In In re C.C., 2011 IL 111795, the Illinois Supreme Court held that when a legal guardian is stripped of her guardianship role by the court, the former guardian is no longer a party to proceedings under the Juvenile Court Act.   

            In this case a grandmother had legal guardianship of her two grandchildren when  the State filed a petition for adjudication of wardship alleging 3 counts of neglect.  One of the counts alleged neglect due to the grandmother creating an injurious environment by leaving the children with their mother, an inappropriate caregiver.   The other two counts alleged neglect by being exposed to domestic violence and mother’s illegal substance abuse when living with their mother.

            At the adjudication hearing the grandmother stipulated to neglect and waived adjudication.   Following the disposition hearing, the trial court entered an order finding it in the best interest to make the children wards of the court and adjudged neglected.  The court granted guardianship of the minors to DCFS, dismissed the grandmother from the case and discharged her court-appointed attorney.

            The only issue the grandmother raised on appeal  was whether the trial court erred when terminating her party status after the court dismissed her as guardian of the minors. 

            The Illinois Supreme Court held that the trial court properly dismissed the grandmother as a party to the proceedings based on a strict reading of 705 ILCS 405/1-5(1) which identifies those people who can be parties to an abuse and neglect proceeding.  Sec. 1-5(1) specifically identifies a guardian (but not former guardian) as a proper party to the proceedings.  However, the Court then turned to 705 ILCS 405/2-27(5) which states that a guardianship will continue until and unless the court determines otherwise. So, once the trial court granted guardianship to DCFS, thereby stripping the grandmother of her guardianship status, the grandmother had no standing in the proceedings.  The grandmother could not be deemed a “responsible relative” per 1-5(1) because her status had been as court-appointed guardian. 

The Supreme Court noted that a best interest analysis should not be made when determining party status.  The specific issues of the case, such as the relationship between the guardian and the children, could not be considered.  Again, adopting a plain reading of 1-5(1), the court noted the absence of any “best interest” language prohibits a court from making such an analysis when determining who is a party. 

The Court did find that the grandmother could be heard by the court as a previously appointed relative caregiver interested in the minors, under 705 ILCS 405/1-5(2)(a).  And, the grandmother could try to restore her guardianship status under 705 ILCS 405/2-28.  (THOMAS with Justices Freeman, Garman, Karmeier, Burke and Theis concurring in judgment and opinion.)