 |
 |
|
 |
||
  |
||
| |||||||
|
Illinois Appellate and Supreme Court Decisions The following is a brief synopsis of recent child welfare and disabled adult case law from the Illinois Supreme Court and the First District Appellate Court in cases where the Public Guardian represented the child(ren) or ward in the trial court and on appeal, or where the Public Guardian filed a friend of the court brief. The Public Guardian has approximately 70 appeals pending from all three divisions. In re Mark W., 2008 Ill. App. LEXIS 303 (Apr. 3, 2008). Here the mother was mentally delayed. The probate court found that the mother was a disabled person and appointed the maternal grandmother as the plenary guardian of the mother’s person. The mother later gave birth to Mark. DCFS removed Mark from the mother because she shoved a toy into Mark’s mouth, while also hitting him on the head with a television remote control. Mark was placed in the maternal grandmother’s care, but was later removed because he had burns on his body that the grandmother could not explain. The State alleged that Mark was an abused and neglected child. The maternal grandmother, as plenary guardian for the mother, retained counsel and participated as a party in the proceedings. The court appointed separate counsel for the disabled mother. The juvenile court also appointed a GAL for the disabled mother. The court appointed the Public Guardian as attorney and GAL for Mark. The State later filed a petition to terminate the mother’s parental rights. The juvenile court found that the mother was unfit to parent Mark and that it was in Mark’s best interest that the mother’s parental rights be terminated because Mark had been in a foster care for many years and his foster parent wanted to adopt him. The maternal grandmother appealed the termination order. The appellate court’s two principal holdings were that neither the Juvenile Court Act, nor the Probate Act, permit the juvenile court to appoint a GAL for a mentally disabled parent when the parent already has a plenary guardian of the person. Additionally, the appellate court held that the termination hearing was “fundamentally flawed” because during his initial conversation with the mother and the maternal grandmother, the GAL for the mother obtained confidential information that created a conflict for the GAL. The appellate court also found that the GAL revealed that confidential information during the termination of parental rights proceeding. The State petitioned for leave to appeal, and the Illinois Supreme Court granted the petition. The Supreme Court reversed the appellate court, holding that though a disabled adult may have a plenary guardian, the trial court may appoint a GAL to make a recommendation to the court as to what is in the best interest of the disabled adult. The Supreme Court also held that the trial court need not discharge a plenary guardian prior to the appointment of a GAL for a disabled person. Also, the Supreme Court declined to hold that the GAL for the disabled mother violated any attorney-client privilege or the rules of professional conduct. The Supreme Court also found that the GAL was not operating under a conflict of interest. Lastly, recognizing the time-sensitive nature of juvenile court proceedings, the Supreme Court directed the appellate court to file a new decision within 60 days. For full text of opinion click here. In re Leona W., 2008 Ill. LEXIS 304 (Apr. 3, 2008). Leona was born drug exposed, and after holding an adjudicatory hearing in 1997, the juvenile court found that she was an abused child. The court later found that Leona’s mother and the father, Oscar H., were unable to care for her. Several years later, the State filed a petition for the termination of the parents’ parental rights. The State alleged that he had not made substantial progress toward Leona’s return home, and he was not addressing Leona’s special needs. Oscar H. had custody of several of Leona’s siblings, but the Public Guardian filed a motion to exclude evidence concerning Oscar’s other children who were living at home with him. The Public Guardian argued that evidence of Oscar’s ability to care for the other children, who did not have the same special needs as Leona, was not relevant to Oscar’s ability to care for Leona. The juvenile court granted the motion to exclude evidence concerning Oscar’s other children. The juvenile court found that Oscar H. was unfit to care for Leona and that it was in Leona’s best interest to terminate Oscar’s parental rights. Oscar appealed, arguing that the motion to exclude evidence was improperly granted and that he was not unfit because he could parent Leona’s siblings. The appellate court reversed the termination order, finding that no evidence was presented that Oscar was at fault or responsible for the original 1997 adjudication finding that Leona was a neglected child. The State filed a petition for leave to appeal (PLA) in the Supreme Court, arguing that the decision contradicted a prior ruling of the Supreme Court. The Public Guardian also filed a PLA. The Supreme Court denied both PLA’s, but issued an order directing the appellate court to follow its decision in In re Arthur H. However, the appellate court issued the same decision and reversed the termination order. The State and Public Guardian filed a second PLA in the Supreme Court. These PLA’s were granted and the Supreme Court found that the appellate court lacked jurisdiction to address the adjudicatory order entered six years before the termination. The Supreme Court also found that the adjudicatory order entered in 1997 was proper. Finally, the Supreme Court found that the trial court did not abuse its discretion when it granted the Public Guardian’s motion to exclude evidence. For full text of opinion click here. In re Desiree O., 2008 Ill. App. LEXIS 215 (1st Dist. March 21, 2008). When she was an infant, Desiree was shaken and injured by her father, and he was sent to jail. The trial court found that Desiree’s mother was found to be unable to care for her. Desiree was put in foster care with her maternal grandmother. Over the next few years the mother graduated high school, got a driver’s license, got a job, and got her own apartment. Later, the mother was allowed overnight visits with Desiree, as often as six times a week. The mother took care of all of Desiree’s medical and therapy needs. In short, the mother was completely devoted to Desiree, and took good care of Desiree during visits. About three years after Desiree was injured, the mother asked the court to return Desiree to her care. But the foster parent, Desiree’s grandmother, opposed her daughter’s request. The grandmother wanted to keep Desiree in her own home. The State, the Public Guardian, and DCFS agreed that Desiree should return home to her mother. The trial court found that the mother was fit, willing, and able to care for Desiree, and that it was in Desiree’s best interest to be returned to her mother. The grandmother appealed. The appellate court rejected the grandmother’s claim that because she was able to take care of Desiree better than her daughter, that meant that it was in Desiree’s best interest to stay with her. The appellate court noted that the mother had shown she could take care of all of Desiree’s needs, and that the grandmother was the only one who testified that a return home to her mother was not in Desiree’s best interest. The appellate court affirmed the juvenile court’s order returning Desiree home to her mother. For full text of opinion click here. In re K.J. and S.J., 2008 Ill. App. LEXIS 211 (1st Dist. Mar. 19, 2008). K.J. and S.J. came into the juvenile court system after testing positive at birth for cocaine and marijuana. The juvenile court found that both children were neglected and made them wards of the court. After the mother repeatedly relapsed in her drug treatment, the State filed petitions to terminate her parental rights. Though the First District Appellate Court had previously held that there is no due process right to a jury trial in termination of parental rights proceedings (In re Weinstein, 68 Ill. App. 3d 883 (1st Dist. 1979)), the mother filed a jury demand. The juvenile court denied the jury demand. The court later found that the mother was unfit to parent the children. On appeal, the mother’s only claim was that the United States and Illinois Constitutions provide her with a due process right to a jury trial on the issue of the termination of her parental rights. However, the First District Appellate Court reiterated that the U.S. and Illinois Constitutions do not provide the right to a jury trial in juvenile proceedings. The Court also stated that the Juvenile Court Act does not provide the right to a jury trial in juvenile proceedings, noting that in 2003, the Illinois House of Representatives rejected a proposed amendment to the Act to grant parents the right to a jury trial in abuse, neglect, and termination of parental rights proceedings. For full text of opinion click here. Illinois Dept. of Healthcare and Family Services v. Warner, 227 Ill. 2d 223 (Jan 2008). The trial court ordered the father to pay child support for his two children. Later, the father’s and mother’s parental rights were terminated. The father filed a petition to vacate the child support order because his parental rights had been terminated and the children were available for adoption. However, the State argued that though the children were free for adoption they had not yet been adopted, so the father still had an obligation to pay child support. The trial court held that the father still had to pay child support. The father appealed and the Third District Appellate Court agreed with the father, and reversed the trial court. The State then appealed to the Illinois Supreme Court. The Office of the Public Guardian was allowed to file a brief as a friend of the court in the case. The OPG brief supported the Attorney General’s argument that the children’s father was still required to pay child support even after his parental rights were terminated. The Supreme Court held that since no one was trying to adopt the children, the natural father still had to pay child support. For full text of opinion click here. In re Stephen K., 2007 Ill. App. LEXIS 344 (1st Dist. Apr. 13, 2007). The appellate court affirmed the trial court’s findings of neglect due to the lack of necessary medical care for Stephen, a 14-year-old boy who suffered from cystic fibrosis. Stephen had been hospitalized numerous times since he was diagnosed with the disease as an infant. The trial court found that the parents’ failure to ensure that Stephen consistently received his required physical therapy, medicines and dietary supplements left Stephen without the medical care he needed. The court rejected the mother’s argument that the parents were not obligated to follow the treatment plan established by the U. of Chicago Hospital, because the parents had not introduced evidence of any other treatment plan for Stephen. The court rejected the father’s argument that he should have been allowed a continuance to investigate Stephen’s hospitalization while in foster care, because the father had not made an offer of proof, and because the evidence about Stephen’s care in the foster home prior to his hospitalization would have been irrelevant. Stephen’s medical needs were being well cared for by his maternal aunt, and it was in his best interest to stay with her. For full text of opinion click here. In re Gabriel E. and James M., 2007 Ill. App. LEXIS 329 (1st Dist. Apr. 6, 2007). The appellate court affirmed the juvenile court’s finding that the boys were in an injurious environment based on James M.’s reports that the respondent-mother’s paramour was physically abusive toward the boys. The appellate court rejected mother’s argument that a child’s statements regarding physically abusive behavior in the home must be corroborated by actual injuries for a finding of neglect. The appellate court noted that cases involving allegations of neglect are sui generis, and that there need not be corroboration of the actual abuse James M. reported because these statements were not being offered to prove that the paramour was abusing the boys, but that the boys were living in an injurious environment. For full text of opinion click here. In re Janira T., 368 Ill. App. 3d 883 (1st Dist. Dec. 12, 2006). The appellate court affirmed the trial court’s termination of a mother’s parental rights on the ground that the mother had failed to maintain a reasonable degree of interest, concern or responsibility in Janira. The mother had not visited Janira consistently or complied with the service plan. The mother argued on appeal that her own illness had prevented her from visiting and completing services, but she had not introduced any evidence of doctor’s visits, even though the trial court had ordered her to do so. In addition, the appellate court held that it had no jurisdiction over the mother’s attempt to appeal the adjudicatory findings after termination, because the mother had not filed a notice of appeal within 30 days of the dispositional hearing. Finally, the court rejected the mother’s due process challenge to the use of a preponderance of the evidence burden of proof at adjudicatory hearings, noting that any subsequent termination findings must be supported by clear and convincing evidence. Janira was in a stable, safe, pre-adoptive home, and it was in her best interest for her mother’s rights to be terminated so that the foster mother could adopt her, which was what Janira wished. For full text of opinion click here. In re Terrell L., 368 Ill. App. 3d 1041 (1st Dist. Nov. 17, 2006). Terrell’s private guardian sought to vacate her private guardianship of him and have DCFS reappointed as his guardian immediately prior to his 18th birthday. The Juvenile Court held it must first making a finding on the private guardian’s fitness, ability and willingness before it could proceed to determine whether appointing DCFS was in Terrell’s best interest. The appellate court reversed, holding that the Juvenile Court does not need to first make a finding that the guardian is unfit, unwilling, or unable in modifying a guardianship pursuant to Section 2-27 of the JCA: “In our view, once the initial finding of abuse and neglect is entered by the circuit court, it is proper and consistent with the purpose of the Act that the circuit court have broad authority to modify orders in a manner that serves the best interests of the minor.” The Legal Assistance Foundation of Chicago represented Terrell on appeal. After the appeal, the trial court ruled that it was in Terrell’s best interest for DCFS to provide assistance to him. For full text of opinion click here. In re Daphnie E., 368 Ill. App. 3d 1052 (1st Dist. Nov. 17, 2006). Respondent-mother’s failure to address childcare issues in the home or her need for mental health treatment was sufficient for an unfitness finding under grounds (b) and (m). Based on the unrebutted testimony of two clinical experts, the respondent-father was found unfit under ground (p) based on mental retardation. The appellate court considered evidence of respondent-father’s parenting of Daphnie’s siblings in his care. However, the evidence showed that the siblings were not doing well in the parents’ care, that the parents required homemaker services to help with daily childcare duties, and that the respondent-father was not the siblings’ primary caretaker and did not have a good grasp of what was going on in the home. The appellate court also affirmed that it was in Daphnie’s best interest for parental rights to be terminated and for her to be adopted by the foster mother she had lived with for her entire life. For full text of opinion click here. In re Charles A., 367 Ill. App. 3d 800 (1st Dist. Sept. 26, 2006). The appellate court affirmed the termination of the mother’s parental rights. The mother had long-standing mental health problems, and had requested a “fitness to stand trial” hearing from the trial court before her rights were terminated. The trial court denied that request, and subsequently found the mother unfit because she was unable to discharge her parental responsibilities. On appeal, the mother claimed that her due process rights were violated by the trial court’s denial of her request for a fitness hearing, but the appellate court disagreed. Requiring a fitness hearing for the parent could delay a child’s progress towards a permanent home for an indefinite amount of time, especially if the parent should be found unfit to participate effectively and should need time to be restored to fitness. Moreover, the mother had not made any showing that there was additional evidence she could have introduced at the termination hearing if she had been better able to participate. For full text of opinion click here. In re Estate of Hoellen v. Owsley, 367 Ill. App. 3d 240 (1st Dist. Aug. 29, 2006). The Public Guardian filed a lawsuit on behalf of his ward, 89 year-old Theodore Hoellen, who suffered from dementia. The lawsuit alleged that a Chicago police officer, Donald Owsley, financially exploited Mr. Hoellen by having him name Owsley beneficiary of all his money and property. After a hearing, the trial court found that Owsley “had used his position as a Chicago police officer to gain Hoellen’s trust, exert undue influence over him, and then flagrantly and intentionally breach the fiduciary duty he owed him.” The trial court vacated Owsley’s interests in Mr. Hoellen’s money and property and awarded the estate $50,000 in punitive damages in order to deter other people holding positions of public trust from financially exploiting vulnerable senior citizens. Owsley appealed the trial court’s rulings. The Illinois Appellate Court affirmed the trial court’s rulings finding that it could not think of a situation more deserving of punitive damages that this one in order to deter others who might consider duping a senile and lonely elderly man. The Illinois Supreme Court declined to review the case. For full text of opinion click here. In re Donald A.G., 221 Ill. 2d 234 (S. Ct May 18, 2006). Here the father was convicted of predatory criminal sexual assault of a child (the child victim was not Donald). The trial court found that the father was depraved, and therefore unfit to parent Donald, due to the predatory criminal sexual assault of a child conviction. The Appellate Court reversed the finding of unfitness because the State had not provided more evidence of depravity than the mere fact of the conviction, and because although aggravated criminal sexual assault was enumerated in the list of offenses which establish a presumption of depravity, predatory criminal sexual assault had not been included in the list. The State petitioned for leave to appeal, and the Illinois Supreme Court reversed the judgment of the appellate court, rejecting respondent’s claim that the plain language of ground (i) shows that predatory criminal sexual assault of a child does not trigger a rebuttable presumption of depravity, and affirmed the judgment of the circuit court. The Illinois Supreme Court agreed with the State that a drafting error had occurred when the offense of predatory criminal sexual assault of a child was created (the same conduct had been proscribed before, but defined as a kind of aggravated criminal sexual assault), and that it would be absurd to interpret ground (i) of the Adoption Act to establish a presumption of depravity for cases in which the victim was an adult, but not in which the victim was a child sexually assaulted by an adult. The Court further stated that the father failed to refute the State’s prima facie case of depravity by clear and convincing evidence. For full text of opinion click here. In the case of In re Kamesha J., No. 1-05-3225, 2006 Ill. App. LEXIS 200 (1st Dist. Mar. 22, 2006), the State filed petitions for adjudication of wardship for the mother’s four children, alleging that the children were abused and neglected due to a substantial risk of physical injury and an injurious environment. The basis for the allegation was that Kamesha, the oldest child, had been violently beaten with a belt by her stepfather - the father of the three younger children. In addition, the mother had sent Kamesha to school in pain the next day, with instructions not to talk about the beating. Moreover, it was alleged that Kamesha had been sexually abused by an “uncle.” While the children’s cases were pending, the mother gave birth to a fifth child. The State filed a separate petition for adjudication of wardship concerning the baby. The State alleged that the baby was also neglected and abused based on the allegations of abuse to Kamesha. At the adjudicatory hearing, the trial court found that Kamesha was physically abused, sexually abused, and subjected to excessive corporal punishment. The trial court found that the children were abused due to a substantial risk of physical injury and neglected due to an injurious environment. Subsequently, the trial court made all the children wards of the court, including the baby, finding that the mother was unable to care for the children. The mother appealed the trial court’s adjudicatory finding only as to the baby, who was born over three months after Kamesha was beaten and the four older children were removed from her home. After discussing the theory of anticipatory neglect, the First District Appellate Court affirmed the trial court’s findings, holding that only three months had elapsed between Kamesha’s beating and the baby’s birth. The Appellate Court held that there was a probability that the baby would be subject to neglect or abuse because she would reside with the mother, who had neglected her four other children, and the baby might live with her father who had beaten Kamesha. The Appellate Court also upheld the trial court’s dispositional findings that the mother was unable to care for her children. For full text opinion click here. In the case of In re Katrina R., No. 1-03-1152, 2006 Ill. App. LEXIS 189 (1st Dist. Mar. 17, 2006), the children made outcries of sexual abuse by their father. However, the father refused to participate in counseling aimed at addressing the children's allegations of sexual abuse, which ultimately resulted in the termination of his parental rights. On appeal, the father argued that he was faced with the choice of incriminating himself by admitting to the sexual abuse charges or losing his parental rights. The First District Appellate Court rejected the father's argument and affirmed the trial court's order terminating his parental rights. The First District Appellate Court held that the father was not required to admit that he sexually abused his children in counseling, but that he needed to participate in counseling in order to address the nature of the children's allegations and to achieve reconciliation with the children. For full text opinion click here. In the case of In re Kenneth D., No. 1-05-3627, 2006 Ill. App. LEXIS 181 (1st Dist. Mar. 15, 2006), three of respondent-mother's children were born drug exposed and were in the custody of DCFS. The mother tested positive for cocaine in 2002, and admitted to smoking cocaine in January 2004. However, she had not cooperated with drug treatment, parenting classes, or consistent drug testing. Her fourth child, Kenneth, was born in December 2004, but was not born drug exposed. At the adjudicatory hearing, basing its findings on a theory of anticipatory neglect, the trial court found that Kenneth was neglected and abused. On appeal the mother claimed that the trial court's findings were in error because the evidence reflected that she tested negative for drugs during and after Kenneth's birth. She also claimed that the trial court erred in excluding evidence of her participation in treatment after Kenneth was taken into protective custody by DCFS. The Appellate Court affirmed the trial court's findings, stating that at the time of Kenneth's birth, the mother had a history of drug abuse, failed to complete drug treatment, failed to attend parenting classes, and failed to comply with consistent random drug screening. The Court found that by the time of Kenneth's birth, the mother had made no progress in ameliorating her drug problems and the risks those problems posed to Kenneth. Additionally, the Court held that evidence of the mother's participation in treatment services, after Kenneth 's birth, was not relevant to the adjudicatory hearing, but could be properly considered at a subsequent dispositional hearing. For full text opinion click here. In the case of In re D.S., 217 Ill. 2d 306 (S. Ct Dec. 1, 2005), due to neglect, the biological mother had six children in the custody of the Illinois Department of Children and Family Services. The mother fled from Illinois to the State of Indiana while pregnant and in labor to prevent DCFS from taking custody of her new baby. Upon delivery, Indiana Child Welfare Service called DCFS. DCFS asked Indiana authorities to take custody of the baby, which they did and the Vermillion County State's Attorney filed a petition for adjudication of wardship in Illinois. On appeal, the mother argued that Illinois had no jurisdiction over the baby because the baby's home state was Indiana. However, the Illinois Supreme Court found that a temporary hospital stay for purposes of a child's birth is simply insufficient to confer home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Further, the Court stated that allowing a temporary hospital stay to confer home state jurisdiction would undermine the public policy goals of the UCCJEA, which include ensuring that a custody decree is rendered in the State which can best decide the case in the interest of the child. Our motion to file a friend of the court brief was denied in this case. For full text opinion click here. In the case of In re D.J., 361 Ill. App. 3d 116 (1st Dist. Sept. 28, 2005), the First District Appellate Court held that the trial court obtained personal jurisdiction over Demarius J.'s father through service by publication where the father's whereabouts were unknown. The Court rejected the father's claim that the affidavit for service by publication was defective. Further, the First District found that because the initial service by publication conferred jurisdiction in the trial court over the father, no further service of process was necessary when the case moved to the termination portion of the proceedings. For full text opinion click here. The case of In re K.T., 361 Ill. App. 3d 187 (1st Dist. Sept. 23, 2005), is the first published child protection case in Illinois dealing with the research criteria diagnosis of factitious disorder by proxy. Factitious disorder by proxy occurs when a caregiver produces and or/feigns symptoms in the victim, usually to receive attention. In K.T., the mother repeatedly reported false medical conditions and diagnoses of her children. She falsely reported that one of her children had a brain tumor and suffered seizures and had a heart condition. She also falsely reported that another child had hemophilia, and the resulting tests caused anemia and delayed a necessary surgery for the child. In addition, another one of her children was diagnosed with non-organic failure to thrive. The Appellate Court affirmed the trial court's finding of neglect based on an injurious environment and abuse due to substantial risk of harm based on the mother's conduct and mental health issues. For full text opinion click here. In the case of In re Marriage of Kostusik, 361 Ill. App. 3d 103 (1st Dist. Sept. 14, 2005), the First District Appellate Court addressed the role of the child's representative in divorce proceedings. During the divorce proceeding, the trial court initially granted temporary custody of couple's child to the father. However, after the Public Guardian was appointed as the child's representative, the Public Guardian filed a motion stating that it was in the best interest of the child that custody be transferred to the mother because the father was failing to provide the child with necessary therapeutic services. Thereafter, the trial court transferred custody of the child to the mother pending a final divorce decree. On appeal the father maintained that the child's representative was not authorized to file motions for changes in temporary custody. The Appellate Court held that the child's representative is a hybrid of an attorney and a guardian ad litem, and as such, has the authority to take part in the litigation of a case as does an attorney for a party, and that the child's representative possesses all the powers of investigation and recommendation as does a guardian ad litem. Thus, the child's representative has the power and authority to file motions for changes in temporary custody. The Appellate Court stated that if it held otherwise, the child's representative would be unable to advocate for the best interest of the child during divorce proceedings. It should be noted that the statute was amended in 2006 to preclude a child representative from rendering an opinion or recommendation. 750 ILCS 5/506(a)(3) (2006). For full text opinion click here. In the case of In re A.H., 359 Ill. App. 3d 173 (1st Dist. July 18, 2005), the First District Appellate Court found that Antonio H.'s father was unfit because he was depraved and affirmed the termination of his parental rights. At trial, the State admitted certified findings of the father's criminal conviction for aggravated criminal sexual assault, and four convictions for delivery of a controlled substance. According to the Appellate Court, these convictions gave rise to the presumption of depravity which shifted the burden to the father to show that he was not depraved. The Court found that the father did not rebut the presumption because he did not show remorse for his crimes. The father had not Achanged himself from a drug trafficker and violent sexual offender into an individual ... capable of parenting a child. In addition, the Appellate Court found that contrary to father's assertions, the child was a party to the proceeding and had the right to present evidence at the termination hearing. For full text opinion click here. In re Faith B., 216 Ill. 2d 1 (S. Ct. June 16, 2005). None of the determinations contained in a permanency order can be considered set or fixed as a matter of law. By statute, the permanency order must be reviewed and reevaluated at a minimum of every six months up until the time the permanency goal is attained. Id. As such, the setting of a permanency goal is not a final order and is appealable only with the permission of the Court. However, in Faith B., the Illinois Supreme Court held that where the permanency order is made part of the dispositional order, and is intended to be a final and permanent order, the appellate court has jurisdiction to review the order as of right under Supreme Court. Rule 301. On remand from the Supreme Court, the Second District found that the permanency goal of private guardianship was appropriate for Faith and her brother Stephen. 359 Ill. App. 3d 571, 574 (2d Dist. 2005). For full text opinion click here. |
|
