Opinion
Appeal No. 3-14-0544 Appeal No. 3-14-0545
12-08-2014
In re J.G. and M.G., Minors, (The People of the State of Illinois, Petitioner-Appellee, v. Melvin G., 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. 06-JA-69 and 06-JA-70
Honorable Paula Gomora, Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Justice Holdridge concurred in the judgment.
Justice Wright specially concurred.
ORDER
¶ 1 Held: The termination of a father's parental rights as to two minors was upheld because the State proved that the father failed to maintain a reasonable degree of interest, concern or responsibility as to the minors' welfare by clear and convincing evidence. The father had been incarcerated since January 2006, and had not had contact with the minors since that time, and he was currently serving six
consecutive life sentences in Missouri. Also, the father lacked standing to assert any error in the appointment of a guardian ad litem for the minors.
¶ 2 The trial court adjudged the minors, J.G. and M.G., to be neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (the Act). 705 ILCS 405/2-3(1)(b) (West 2012). At the dispositional hearing, the trial court found the respondent father, Melvin G., to be unfit. After a best interest hearing, the trial court found it was in the best interest of the minors to terminate the respondent's parental rights. The respondent appealed the finding of unfitness. We affirm.
¶ 3 FACTS
¶ 4 The State filed a petition alleging that the minors, J.G. and M.G., and another minor, B.H., not subject to this appeal, were neglected due to an injurious environment. At the shelter care hearing, the minors were found to be neglected, and the Department of Children and Family Services (DCFS) was given temporary custody and guardianship. Both parents stipulated to the allegations in the petition and waived their rights for an adjudicatory hearing.
¶ 5 The dispositional hearing was held on November 21, 2006, and the only evidence offered was the report of Janelle Hamilton, the child welfare worker from Catholic Charities. The report indicated that the minors had been left unsupervised on numerous occasions. As to the respondent, the report indicated that he was incarcerated at the Will County Adult Detention facility on charges of domestic abuse toward the mother and criminal sexual assault of B.H. and J.G. The State requested that custody and guardianship of the minors be placed with DCFS, and the respondent had no objection. The trial court entered a dispositional order, finding the minors to be neglected.
¶ 6 On January 29, 2008, the State filed a petition to terminate the parental rights of both the mother of the minors and the respondent on the grounds that they were unfit in that they failed to
maintain a reasonable degree of interest, concern and responsibility as to the minors' welfare and failed to make reasonable progress toward the return of the minors during the nine-month period between April 2007 and January 2008. Thereafter, in August 2008, the mother signed voluntary surrenders and consents to adoption for both minors subject to this appeal.
¶ 7 The respondent was acquitted of charges of criminal sexual assault of B.H. and J.G., and transferred to Greene County Jail in Springfield, Missouri, in March 2009 to stand trial for charges of forcible sodomy, attempted forcible rape, burglary, and robbery. Due to problems in transporting the respondent back to Illinois, the State withdrew the termination petitions on September 24, 2009. After the trial in Missouri, the respondent was convicted of six felony charges and sentenced to six consecutive life sentences. On April 19, 2011, the State filed amended petitions to terminate the respondent's parental rights, alleging that he was unfit on the basis of: (a) failing to maintain a reasonable degree of interest, concern and responsibility as to the minors' welfare; (b) failing to make reasonable progress toward the return of the minors during the nine-month period between November 2006 and August 2007; (c) there was a rebuttal presumption that he was depraved because of his criminal convictions; and, (d) the minors were in the temporary custody of DCFS and the respondent was incarcerated, and his incarceration would prevent him from discharging his parental responsibilities for the minors for a period in excess of two years. The amended petitions noted that the mother was deceased.
¶ 8 A trial on the amended petitions began on June 21, 2013. The State admitted a certified copy of the respondent's Missouri convictions, which indicated that the respondent was sentenced to six consecutive life sentences. The State also admitted a 1992 Illinois conviction, for the felony offense of vehicular invasion. Hamilton testified that the respondent was incarcerated in the Will County Adult Detention Facility at the time she received the case in June 2006, and remained there until he was acquitted in 2009. The dispositional report signed by
Hamilton, dated November 21, 2006, indicated that the mother was engaged in a parenting class and had requested visitation with the minors. With regard to the respondent, the report only indicated that he was incarcerated. Wendy Barnoski, a caseworker for Lutheran Child Family Services, testified that she took over this case in July 2008. She testified that the respondent was currently incarcerated in Missouri, and he had not been out of custody since she took over the case in 2008. To her knowledge, the minors had never visited the respondent while he was in jail. Her status review report dated August 14, 2009, contains the first indication in the record that the respondent had asked for visitation. He sought visitation with the minors in the Missouri jail. Mary Fran Niemann, an inmate record supervisor for the Will County sheriff, testified that the respondent was admitted to the Will County Adult Detention Facility on January 1, 2006, where he remained until he was transferred to the custody of the State of Missouri on March 6, 2009.
¶ 9 The respondent called Reverend Charles Rains, who testified that he met the respondent in late 2004 or early 2005. Rains had observed the respondent in church and at the respondent's home, and noted that he had a close relationship with his children. Rains identified the respondent as the primary caretaker of the children.
¶ 10 The trial court found by clear and convincing evidence that the respondent was unfit for all four reasons listed in the amended petition, based upon the evidence presented by the State that the respondent had been incarcerated continuously since 2006, he was convicted in 2010 of six felonies, and he was serving six consecutive life sentences. Specifically, based on the convictions, the trial court found that the respondent could not be responsible for his children and have any meaningful interaction in the well-being or future of the minors. The trial court acknowledged the rebuttable presumption with respect to the grounds of depravity, but found that the presumption was not rebutted. There was no showing of any rehabilitation following the
respondent's incarceration in Missouri, and Reverend Gains was unaware of the extent of the Missouri offenses and did not have significant contact with the respondent after he was transferred to Missouri.
¶ 11 At the best interests hearing, it was brought to the trial court's attention that a guardian ad litem (GAL) had never been appointed for the minors. The trial court appointed a court appointed special advocate (CASA) as GAL for the minors, and proceeded with the best interests hearing. J.G., her foster mother, and Barnoski testified at the hearing. The trial court found by a preponderance of the evidence that it was in the best interests of the minors to terminate the parental rights of the respondent, and entered an order terminating the respondent's parental rights. The respondent appealed.
¶ 12 ANALYSIS
¶ 13 The respondent argues that the trial court's finding of unfitness was against the manifest weight of the evidence. Also, the respondent argues that the trial court erred in not appointing a GAL for the minors until after finding the respondent unfit.
¶ 14 Proceeding on a petition for termination of parental rights involves a two-step, bifurcated, approach where the trial court first holds a fitness hearing (705 ILCS 405/2-29 (West 2012); 750 ILCS 50/1(D) (West 2012)) and, if the parent is found unfit, proceeds to a best interest hearing (705 ILCS 405/2-29(2) (West 2012)). In re S.D., 2011 IL App (3d) 110184.
¶ 15 In determining fitness, the focus is on the parent in question. In re M.B., 332 Ill. App. 3d 996 (2002). The State must prove a parent's unfitness by clear and convincing evidence. In re D.D., 196 Ill. 2d 405 (2001). A trial court's finding of unfitness will be overturned only if it is against the manifest weight of the evidence. D.D., 196 2d at 417. A trial court's decision is contrary to the manifest weight of the evidence where the opposite conclusion is clearly evident
or the determination is unreasonable, arbitrary, or not based upon the evidence presented. In re D.F., 201 Ill. 2d 476, 498 (2002).
¶ 16 Here, the trial court found that the respondent was unfit because he: (1) failed to maintain a reasonable degree of interest, concern, or responsibility as to the minors' welfare; (2) failed to make reasonable progress towards the return home of the minors from November 2006 through August 2007; (3) was depraved in that he was criminally convicted of at least three felonies within five years of the filing of the petition to terminate his parental rights; and, (4) was incarcerated, with little or no contact with the minors, and provided little or no support for the minors prior to his incarceration, and his incarceration would prevent him from discharging his parental responsibilities for a period in excess of two years. The respondent contends that the State failed to prove any of the grounds of unfitness by clear and convincing evidence. The State argues that it proved the third ground, depravity, by clear and convincing evidence, and the respondent failed to rebut the presumption of depravity. The State did not address the other grounds on appeal, arguing that it only needed to prove one ground for unfitness, and the evidence was overwhelming that the respondent was depraved. The attorney for the minors agreed that the trial court correctly found that the respondent was depraved, but it also argued that the State proved the other grounds by clear and convincing evidence.
¶ 17 Under the section 1 of the Illinois Adoption Act, a parent can be found to be unfit for failure to maintain a reasonable degree of interest, concern, or responsibility as to his child's welfare. 750 ILCS 50/1(D)(b) (West 2012). The language is stated in the disjunctive, so proof of all three is not required. In re Jaron Z., 348 Ill.App.3d 239, 259 (2004). Our focus should be on the reasonableness of the parent's efforts, not the success of those efforts, in the context of any circumstances that made it difficult for him to visit, communicate with or otherwise express interest in the minors. In re Shauntae P., 2012 IL App (1st) 112280, ¶ 90, appeal denied sub
nom. Shauntea P. v. Keisha H., 979 N.E.2d 878 (Ill. 2012). However, some interest or affection is not sufficient; the interest, concern, and responsibility must be reasonable. Id.
¶ 18 The evidence showed that the respondent had been incarcerated since January 2006, and he was serving six consecutive life sentences. He made a request for visitation with the minors in 2009, and participated in the termination proceedings, showing a minimum level of interest and concern, but he had not visited with the minors since his incarceration three years before the request. The reports contained in the record make no mention of any efforts by the respondent, until the request for visitation in 2009. Even in light of the circumstances, the respondent's efforts did not indicate a reasonable degree of interest or concern. Also, the respondent did not reasonably take responsibility for the care or custody of the minors. Thus, we find that the trial court's conclusion that the respondent could not be responsible for his children and have any meaningful interaction interaction in the well-being or future of the minors, and unfitness on this basis, was not against the manifest weight of the evidence.
¶ 19 Since only one statutory ground is necessary to prove that a parent is unfit, 750 ILCS 50/1(D) (West 2012); In re H.D., 343 Ill.App.3d 483, 493 (2003), we need not address the remaining grounds for unfitness. The respondent does not challenge the finding that it was in the best interests of the minors to terminate his parental rights. Thus, we affirm the trial court's order terminating the respondent's parental rights as to J.G. and M.G.
¶ 20 The respondent argues that the trial court erred in not appointing a GAL for the minors as required by section 2-17 of the Juvenile Court Act of 1987, 705 ILCS 405/2-17 (West 2012), until after finding the respondent unfit.
¶ 21 Section 2-17(1)(a) provides:
"Immediately upon the filing of a petition alleging that the minor is a person described in Sections 2-3 or 2-4 of this Article, the court shall appoint a guardian ad litem
for the minor if such petition alleges that the minor is an abused or neglected child" 705 ILCS 405/2-17(1)(a) (West 2012).
¶ 22 The State argues that the statutory right to a GAL was personal to the minors, and the respondent lacked standing to raise the issue on appeal. We agree. To have standing, a party must allege an "injury in fact" of a particular legal right and assert his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. Rakas v. Illinois, 439 U.S. 128, 139 (1978); see also People v. McCarty, 223 Ill. 2d 109, 155 (2006) (an individual cannot complain about the violation of another's constitutional rights, because such rights are personal and may not be asserted vicariously). Since the respondent is not asserting that his own rights were violated, he lacks standing to challenge any error in the appointing of the GAL.
¶ 23 CONCLUSION
¶ 24 The judgment of the circuit court of Will County is affirmed.
¶ 25 Affirmed.
¶ 26 JUSTICE WRIGHT, specially concurring.
¶ 27 I agree the majority has correctly determined the trial court's finding was not against the manifest weight of the evidence when it found the State proved by clear and convincing evidence that respondent failed to maintain a reasonable degree of interest, concern, or responsibility as to the minors' welfare. However, I respectfully disagree with the majority's conclusion that respondent lacked standing to challenge the trial court's failure to appoint a separate GAL for the minors and would address the merits of respondent's argument in this case.
¶ 28 I write separately to stress the rights and interests of parents in proceedings involving their children up until the time their parental rights are terminated. The United States Supreme Court and Illinois courts have long recognized parents' fundamental liberty interests in the care, custody, and control of their children (the superior rights doctrine). Troxel v. Granville, 530 U.S.
57, 65 (2000); In re M.H., 196 Ill. 2d 356, 362 (2001); In re D.C., 209 Ill. 2d 287, 295 (2004). Thus, since a termination proceeding seeks to end the parent's fundamental liberty interest, the procedures involved must meet the requisites of the due process clause. In re A.L., 2012 IL App (2d) 110992, ¶ 14; M.H., 196 Ill. 2d at 363.
¶ 29 In Illinois, before a parent's fundamental rights can be involuntarily terminated, procedural requirements must be met as set forth in the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2012)) and the Adoption Act (750 ILCS 50/0.01 et seq. (West 2012)). D.C., 209 Ill. 2d at 295. These procedural requirements require a parent to be given notice of the termination proceedings, to be represented by counsel, and to cross-examine witnesses, present a defense, and make an argument. In re M.H., 196 Ill. 2d 356, 364-65 (2001).
¶ 30 The fundamental parental rights under the superior rights doctrine involve more than a parent's individual rights, but also involve a parent's right to the care, custody, and control of their children. Therefore, it is my opinion, since parents maintain all of those rights until entry of an order terminating his or her parental rights, respondent maintained standing to challenge any error affecting a parent's care, custody, or control of a child, including the failure to appoint a GAL.
¶ 31 That being said, I would address the merits of respondent's claim of error regarding the untimely appointment of a GAL in this case. First, I note that the juvenile court judge appointed an attorney to represent the minors' best interests from the onset of the shelter care hearing and throughout the entire proceedings. However, the court did not appoint a separate GAL for the minors pursuant to section 2-17 of the Juvenile Court Act of 1987 (702 ILCS 405/2-17 (West 2012)) until the court found respondent unfit at the termination proceedings but before the best interests hearing.
¶ 32 Based on the mandatory language of that statute, the trial court erred in its failure to initially appoint a GAL in these proceedings. Respondent argues that this error, alone, requires reversal of the court's order without raising any issues as to how the error affected the outcome of this case. It is well-established that the roles of a guardian ad litem and attorney for the minor are not inherently in conflict, because both have essentially the same obligations to the minor and to society. In re B.K., 358 Ill. App. 3d 1166, (citing In re R.D., 148 Ill. App. 3d 381, 386 (1986). Here, the court appointed an attorney to represent the minors throughout the entire proceedings and there is no indication that the attorney did not represent the minors' best interests. Therefore, in my opinion, the court's error was harmless.
¶ 33 For these reasons, I would affirm the trial court's ruling terminating respondent's parental rights to the minor children.