Opinion
Appeal No. 3-17-0453 Appeal No. 3-17-0454 Appeal No. 3-17-0455 (Consolidated).
12-04-2017
In re A.S., N.S., and J.S., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Nicholas S., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit Nos. 15-JA-77, 15-JA-78, and 15-JA-79 (Consolidated). Honorable Paula A. Gomora, Judge, Presiding. JUSTICE WRIGHT delivered the judgment of the court.
Presiding Justice Holdridge and Justice O'Brien concurred in the judgment.
ORDER
¶ 1 Held: The trial court's decision to deny father's attorney's May 30, 2017, motion to continue was not an abuse of discretion. ¶ 2 On January 20, 2017, the State filed a motion to terminate father's parental rights as to his children A.S., N.S., and J.S. The trial court conducted a hearing on the State's termination motion on May 30, 2017. At the beginning of the hearing, father's attorney moved to continue the case, citing father's unexplained absence as the basis for the continuance. Father appeals the trial court's decision to conduct the termination proceedings in his absence.
¶ 3 FACTS
¶ 4 Guardian Angel received a report from the Department of Children and Family Services (DCFS) indicating that A.S., N.S., and J.S. resided with mother and father who sold drugs out of their residence and had domestic violence issues. The report further indicated that on April 5, 2015, N.S. had three cigarette burn marks on the back of his neck along with big black and blue marks on his back. When questioned about the burns, N.S. indicated that "daddy did it." N.S.'s grandmother reported that both mother and father caused N.S.'s black and blue marks by hitting N.S. with a wooden spoon. ¶ 5 As a result of the report, on May 29, 2015, DCFS filed separate neglect petitions for the three children in Will County case Nos. 15-JA-77, 15-JA-78, and 15-JA-79. The petitions contained allegations that father neglected the minors due to an injurious environment pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987. 705 ILCS 405/2-3(1)(b) (West 2014). ¶ 6 On June 1, 2015, the trial court conducted a shelter care hearing. Father was not present. For purposes of the shelter care hearing, the parties present stipulated that if called to testify, witnesses would testify that: N.S. suffered cigarette burns to his neck, mother and father are homeless, father has an outstanding warrant on a family misdemeanor case and felony case, the parents are involved in domestic violence, and father is a known drug dealer. Accordingly, the court found probable cause to believe that all three children were neglected and placed the children in temporary DCFS custody. The trial court set another shelter care hearing for father's benefit on June 8, 2015. Father failed to appear at the second shelter care hearing. ¶ 7 On September 29, 2015, father appeared in court for the first time. The court appointed a public defender to represent father's interests. On October 27, 2015, at an adjudicatory hearing on the neglect petitions, the parties stipulated that all three minors were neglected due to an injurious environment. The stipulated factual basis provided that N.S. suffered cigarette burns to his neck, that mother and father are currently homeless and were homeless at the time the petition was filed, and that mother and father participated in domestic violence. Therefore, the trial court found the minors to be neglected due to an injurious environment. 705 ILCS 405/2-3 (West 2014). ¶ 8 The case proceeded to a dispositional hearing on November 24, 2015. Following the hearing, the trial court took the matter under advisement. On January 22, 2016, the trial court entered a written dispositional order finding father unfit. The court also found that it was in the best interests of the minors to be placed in DCFS custody. The court set a return home goal of 12 months. ¶ 9 Thereafter, the trial court conducted permanency review proceedings. On October 24, 2016, Guardian Angel filed a report recommending that the permanency goal be changed to substitute care pending termination of the parental rights of each parent. On January 10, 2017, Guardian Angel filed a report indicating that father had a warrant out for his arrest as of January 5, 2017, for failure to appear and a pending petition alleging a violation of probation. ¶ 10 On January 30, 2017, the State filed a motion to terminate father's parental rights citing father's: failure to maintain a reasonable degree of interest, concern, and responsibility as to the children's welfare, failure to make reasonable efforts to correct the conditions that were the basis for the removal, failure to make reasonable progress toward the return of the children within the nine months following adjudication, and failure to make reasonable progress toward the return of the children within any nine-month period following adjudication. 750 ILCS 50/1(D)(b), D(m)(i), D(m)(ii), and D(m)(iii) (West 2016). The Livingston County Sheriff's Department attempted to serve father with a summons on February 18, 2017, notifying father that a hearing would be held on March 3, 2017. ¶ 11 On March 3, 2017, father was not present in court, but father's attorney indicated that he had received a copy of the State's motion to terminate and would give father a copy. The court did not conduct an evidentiary hearing on the pending termination motion on that date. On May 30, 2017, the trial court conducted a hearing on the State's motion to terminate father's parental rights. At the outset, the following exchange took place:
"MR. McGRATH: Judge, my client is not here today. I am making a motion to continue.Following the State's evidence, father's counsel stated: "Judge, my client is not here. My argument is basically that the State has not proven their petition." Afterward, the trial court took the decision under advisement. ¶ 12 On June 15, 2017, the trial court entered a written order finding by clear and convincing evidence that father was unfit in that he failed to maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare, failed to make reasonable efforts to correct the conditions which were the basis for removal of the children, and failed to make reasonable progress toward the return of the minors within the nine-month period following adjudication of the minors being neglected. Father was not present at the hearing. ¶ 13 Next, the court transitioned to best interest proceedings. Following witness testimony, the trial judge found by a preponderance of the evidence that father's parental rights should be terminated. ¶ 14 Father filed a timely notice of appeal on July 12, 2017. For purposes of appeal, the minors' cases were consolidated on July 20, 2017.
THE COURT: Motion to continue denied.
MR. RATAJCZYK: There is also a warrant on a felony case for Mr. Sansone, Sr. I ask that you find him in default.
THE COURT: No, because he is represented.
MR. RATAJCZYK: But I cannot call him to testify.
THE COURT: This is true."
The record does not contain transcripts from the June 8, 2015, hearing, however, both parties agree that father was not present.
The record does not contain transcripts from the court proceedings which took place on September 29, 2015, however, both parties agree this was the first time father appeared in court in this case. --------
¶ 15 ANALYSIS
¶ 16 Father's sole contention on appeal is that the trial court's decision to deny father's attorney's motion to continue the termination hearing scheduled for May 30, 2017, should be reversed. Father argues the trial court's decision constituted an unjust abuse of discretion that violated father's right to due process. The State asserts that the trial court acted within its discretion by refusing to continue the hearing on May 30, 2017, due to father's unexplained absence. ¶ 17 When balancing a request for a continuance, the trial court has many interests to consider. On one hand, parents have the right to be present during a hearing to terminate parental rights. In re C.J., 272 Ill. App. 3d 461, 465 (1995). On the other hand, delays in termination proceedings "impose a serious cost on the function of the government, as well as intangible costs to the lives of the children involved." In re A.M., 402 Ill. App. 3d 720, 725 (2010). Therefore, the case law provides that termination proceedings may go forward when a parent receives notice of the proceedings but fails to appear. In re K.O., 336 Ill. App. 3d 98, 105 (2002). The trial court is not obligated to wait until a parent chooses to appear. Id. ¶ 18 Instead, section 2-1007 of the Code of Civil Procedure provides guidance to a trial judge to allow continuances only where the moving party has shown good cause. This section provides that "[o]n good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment." 735 ILCS 5/2-1007 (West 2016). ¶ 19 A trial court's denial of a party's motion to continue will not be disturbed on appeal absent an abuse of discretion. Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d 15, 28 (2001). A trial court abuses its discretion only when its ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. People v. Caffey, 205 Ill. 2d 52, 89 (2001). ¶ 20 In this case, the trial court refused to postpone the termination hearing after learning that father was not present, but all other parties and witnesses were ready to proceed with the termination hearing. On appeal, father does not assert that he was unaware of the hearing, but instead claims the trial court violated his right to due process. However, Illinois case law establishes that due process concerns do not apply to a reviewing court considering whether the denial of a motion for a continuance constitutes an abuse of discretion. In re S.B., 2015 IL App (4th) 150260, ¶ 21. ¶ 21 On March 3, 2017, father was not present in court, but counsel indicated he would notify father of the State's motion to terminate. On May 30, 2017, again, father was not present in court causing his attorney to attempt to postpone the scheduled termination hearing. When requesting a continuance, father's attorney did not provide a reason to the court to believe father would appear on the next court date if the hearing was postponed. However, counsel for the State advised the court that father had an outstanding felony warrant. Based on this record, we conclude the trial court properly denied the request for continuance.
¶ 22 CONCLUSION
¶ 23 The judgment of the circuit court of Will County is affirmed. ¶ 24 Affirmed.