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SIXTH DIVISION
August 20, 2004

No. 1-03-1887

 

Following a parental fitness hearing, the trial court found respondent father Johnny D.unfit to parent Bernice B. based on failure to maintain a reasonable degree of interest, concern, orresponsibility for Bernice's welfare, pursuant to section 1(D)(b) of the Adoption Act (Act) (750ILCS 50/1(D)(b) (West 2000)), desertion, pursuant to section 1(D)(c) of the Act (750 ILCS50/1(D)(c) (West 2000)), and failure to make reasonable progress towards Bernice's return home,pursuant to section 1(D)(m) of the Act (750 ILCS 50/1(D)(m) (West 2000)). Following a bestinterest hearing, the court terminated respondent's parental rights as to Bernice. The court alsoterminated the parental rights of Bernice's mother; she is not a party to the instant appeal.Respondent now appeals the termination of his right to parent Bernice, contending that dueprocess precludes the termination of parental rights of parents who are not fit to stand trial, thatevidence before the court indicated respondent was not mentally fit to "stand trial" at the time ofthe termination proceedings, and that the trial court's commencement of termination proceedingswithout first conducting a hearing to determine whether he had been "restored to fitness" violatedhis right to due process. The term "fitness hearing" will be used in the opinion to indicate fitnessto stand trial as opposed to "parental fitness" as it relates to the first stage of a terminationproceeding. Respondent has not challenged the sufficiency of the evidence for the trial court'sparental unfitness and best interest findings.

This is a case of first impression. We have found no Illinois case addressing a parent's dueprocess rights to a fitness to stand trial hearing in the context of a parental rights termination case. Our analysis will focus on the narrow question presented by the factual context of this case:whether due process requires fitness to stand trial hearings for parents in termination trials whofail to cooperate with the fitness evaluation process. In resolving that question, we do not resolvethe question of whether fitness hearings in termination trials should be afforded to parents whocooperate with the fitness evaluation process. We emphasize we confine our conclusion to thefacts of the instant case. Where the father respondent has refused to cooperate with the fitnessevaluation process, we conclude that due process does not require a fitness to stand trial hearingin the context of a parental rights termination case.

BACKGROUND

Bernice was born on July 25, 1986. She has severe developmental delays and has beendiagnosed with severe to profound mental retardation. She requires assistance with virtually allaspects of daily life, including but not limited to dressing and hygiene. Bernice first came to theattention of the Department of Children and Family Services (DCFS) in 1998 through the ChicagoBoard of Education, which received a hotline report stating that Bernice was not toilet trained,was apparently retarded, and had not been attending school. Bernice was removed from thecustody of respondent and her mother and was placed in a nonrelative, specialized foster home.

In December 1999 the trial court entered an adjudication order finding Bernice neglectedbased on a lack of care and an injurious environment. On June 1, 2000, following a dispositionalhearing, the trial court adjudicated Bernice a ward of the court, finding her mother unable to carefor her and finding respondent unable and unwilling to care for her. The trial court also enteredan order requiring respondent to undergo a psychological evaluation pursuant to a "Request forClinical Information" filed by counsel. The request stated respondent appeared "erratic inthought" and "does not appear to comprehend questions being asked of him." The requestfurther noted that respondent had been referred for a psychological evaluation and servicesthrough DCFS but had never cooperated or complied with referrals and services previouslyoffered.

In April 2001, the State filed a motion to terminate respondent's right to parent Berniceand to appoint a guardian with power to consent to Bernice's adoption. The State alleged thefollowing grounds for termination: (1) failure to maintain a reasonable degree of interest, concern,or responsibility as to Bernice's welfare pursuant to section 1(D)(b) of the Act (750 ILCS50/1(D)(b) (West 2000)); (2) desertion of Bernice for more than three months "next preceding thecommencement of these termination proceedings" pursuant to section 1(D)(c) of the Act (750ILCS 50/1(D)(c) (West 2000)); (3) failure to make reasonable efforts to correct the conditionsthat were the basis for Bernice's removal and/or failure to make reasonable progress towards herreturn pursuant to section 1(D)(m) of the Act (750 ILCS 50/1(D)(m) (West 2000)); and (4) intentto forgo parental rights based on failure to visit Bernice, communicate with the agency, andmaintain contact with or plan for the future of Bernice pursuant to section 1(D)(n) of the Act(750 ILCS 50/1(D)(n) (West 2000)).

On June 7, 2001, approximately one year after filing its original request for clinicalinformation regarding respondent, a second "Request for Clinical Information" was filed bycounsel. The request was made in order to determine "[p]arental competence to understand andparticipate in judicial proceedings." Pursuant to this request, the trial court entered an orderreferring respondent for a clinical evaluation.

Respondent ultimately attended a psychological evaluation conducted by Ascher Levy,Psy.D., on September 26, 2001. Dr. Levy stated in the report that respondent was only"minimally cooperative" during the assessment, and "would not allow [Dr. Levy] to ask certainquestions and/or would not respond to many inquiries directly." Dr. Levy opined that respondentwas not able to cooperate with his attorney "whom he irrationally believe[d] [was] not working inhis best interest." Dr. Levy opined that respondent was unfit to participate in termination-of-parental-rights proceedings. However, Dr. Levy also concluded that respondent understood thepurpose of the termination proceedings as well as the roles of the judge and respondent's counselin those proceedings.

As a result of respondent's failure to cooperate, Dr. Levy was only able to obtain aminimal assessment and could not determine whether respondent suffered from a treatable mentalillness. Respondent's lack of cooperation also prevented Dr. Levy from forming an opinion as towhether respondent "can be restored to fitness to participate in these proceedings within areasonable period of time." Dr. Levy recommended that a psychiatrist evaluate respondent todetermine if his "irrational beliefs" and "disruption of court" were the result of a treatable mentalillness or "characterological traits that are unlikely to change" and to determine whetherpsychotropic medication could restore him to fitness.

On October 17, 2001, a third "Request for Clinical Information" was filed. It sought apsychiatric evaluation of respondent to determine a mental health diagnosis and whetherpsychiatric medication could restore him to fitness. Pursuant to that request, the trial courtentered an order referring respondent for a psychiatric assessment. In December 2001, the trialcourt held a brief hearing regarding the status of respondent's psychiatric examination. Afternoting it had received a letter from the Clinical Evaluation and Services Initiative indicatingrespondent had missed the examination, the trial court indicated it would not further postpone thetermination proceedings to "get [respondent] to go to his psychiatric exam."

Respondent had three different attorneys over the course of five years during the instantcase. The trial court first appointed the office of the public defender to represent respondent inMay 1998. In October 1998, approximately five months after its appointment, the public defenderfiled a motion to withdraw. The motion noted that respondent informed an assistant publicdefender in August 1998 that he wanted a "real lawyer" and was dissatisfied with the services ofthe public defender's office. The motion further noted that on October 13, 1998, respondentinformed an assistant public defender that he would not cooperate with any services or courtorders, and that he had filed a suit against the public defender's office. In December 1998, thetrial court granted the public defender's motion to withdraw.

In March 2001, the trial court ordered that private counsel be appointed for respondent.Kimberly Seymore, the appointed counsel, represented respondent for approximately sevenmonths before filing a motion to withdraw in November 2001. Ms. Seymore's motion notedrespondent had stated on numerous occasions he wanted to fire her and cited Dr. Levy'spsychological report, which stated respondent irrationally believed his attorney was not workingin his best interest. The motion also noted respondent had filed a complaint against her with theAttorney Registration and Disciplinary Commission.

At a December 2001 hearing, Ms. Seymore advised the trial court of her motion towithdraw. The trial court stated, "[b]ased upon your client's apparent mental condition, I'mprobably not going to allow you to withdraw." The court further noted as follows:

"The problem is that [respondent] can defeat this entire caseif every time I appoint a lawyer for him, he files a complaint withthe ARDC. I don't intend to allow him to do that. We're dealingwith a man who has been found to not even be competent to standtrial."

Ms. Seymore subsequently filed another motion to withdraw based on her acceptance ofemployment with the circuit court of Cook County. Thereafter, the trial court appointed JamesWilliams as counsel for respondent.

At the outset of the parental fitness hearing conducted on January 15, 2003, Mr. Williamsorally moved to withdraw as counsel for respondent. Mr Williams advised the trial court thatrespondent suggested he was mishandling the case. The court responded as follows:

"[Respondent] and his wife have been almost masters ofdelaying this matter. They don't cooperate with attorneys, theydon't cooperate when I order them to do things. *** I dare say, if Iwere to allow you to withdraw and a new lawyer to come in, Isuspect that at the time that that matter is set for trial, [respondent]will do the same thing. He will come in here and complain aboutthat lawyer's representation so that again, hopefully, the matter willbe continued. *** [T]he Court has now observed [respondent andhis wife] for two years with this pattern of non-appearance and then*** [respondent] complains and [he] gets a new lawyer."

The court then ordered the parties to proceed with the parental fitness hearing and did not permitMr. Williams to withdraw.

At the parental fitness hearing, Charles Taylor, who had been Bernice's caseworker sinceJune 2000, testified that during the summer of 2000 he scheduled a visit between respondent andBernice. Respondent did not show up for the visit. Mr. Taylor scheduled another visit for May24, 2001, but respondent canceled the visit because of car trouble. Mr. Taylor could not recallany other occasion when respondent requested a visit with Bernice.

Mr. Taylor stated respondent did not appear for his first psychological appointment,scheduled in November 2000. Mr. Taylor scheduled a second appointment for later that monthand informed respondent of that appointment through letters. Respondent did not attend thatappointment and never completed a psychological evaluation while Mr. Taylor was hiscaseworker. Mr. Taylor also recommended that respondent take a class for parents of childrenwith special medical needs. Respondent never took such a class. Respondent tested positive forcannabis in December 2000. Mr. Taylor rated respondent unsatisfactory for services inNovember 2000 and May 2001 service plans. The basis for the May 2001 unsatisfactory ratingwas that his whereabouts were unknown and he had no contact with the agency. On cross-examination, Mr. Taylor stated respondent visited Bernice twice since he had been assigned thecase, and that these visits were appropriate.

Respondent testified that he wanted to have Bernice returned to his care and stated he hadnot done anything to harm his daughter. When asked what he had done to get Bernice back,respondent answered that there was "nothing a parent can do without the help of the worker,"and that Mr. Taylor was not willing to help him. Following counsel's direct examination ofrespondent, the trial court asked respondent, "Do you recall what year it was that you last sawyour daughter?" Respondent answered, "2000. I think it was closer to 2002."

The trial court found respondent unfit based on desertion, his failure to maintain areasonable degree of interest, concern, or responsibility for Bernice's welfare, and his failure tomake reasonable progress toward Bernice's return home pursuant to sections 1(D)(b),(c), and (m)of the Act (750 ILCS 50/1(D)(b),(c), and (m) (West 2000)). In support of its findings, the trialcourt noted that "[respondent's] complaints about Mr. Taylor lack credibility. There's no reasonto believe that Mr. Taylor was doing anything but trying to help [respondent]." In addition, thecourt noted "[respondent's] testimony was, as it was obvious here on the stand, at timesincoherent and at many times wandered from the point that was being pursued both by hisattorney and as a matter of fact by this Court."

At the best interest hearing, Angela Blalock, Bernice's current caseworker, testified thatBernice's foster mother of almost five years was willing to adopt Bernice and was committed tocaring for Bernice beyond her twenty-first birthday. Bernice was attending a school fordevelopmentally delayed children. The foster mother had completed special training to care forBernice. Ms. Blalock opined that the foster mother took very good care of Bernice, there was acloseness between them, and it was in Bernice's best interest to be adopted by her foster mother. According to Ms. Blalock, Bernice would always need someone to take care of her.

Respondent testified that he had Bernice evaluated by a doctor and that at the age of threeBernice was mentally at a one-year-old level. He stated Bernice used sign language tocommunicate with him and was bonded to him. He testified Bernice taught herself to play videogames by watching her brothers. During his testimony, the court admonished him to focus on hisanswers.

Respondent further testified that Bernice was bonded to her brothers. He stated he triedto visit Bernice but had problems arranging visits with the social service agency in question. Respondent stated he tried to communicate with Bernice, including through her writing andscribbling. He said he was trying to get her to communicate so that she "won't be handicap, soshe will be independent for her life." He thought he was a good parent and did not want hisparental rights terminated.

The trial court found by a preponderance of the evidence that Bernice is a special needsminor who is profoundly developmentally delayed. While the trial court noted there is no doubtrespondent loves Bernice, it also stated as follows:

"[I]t is clear that there is at least some dysfunction in thehome of [respondent], perhaps through no fault of his wife or hisown, but it is clear to this Court based upon everything that's beenpresented, not only here today but in previous hearings, that[respondent] unfortunately cannot provide adequate care for thisminor and he is not capable of providing the special needs that thisminor needs."

Accordingly, the trial court found that termination of respondent's parental rights was in the bestinterest of Bernice.

ANALYSIS

Respondent contends on appeal that due process "requires that only fit parents be allowedto proceed to trial." Respondent reasons that "[a] parent found to be unfit due to inability toassist in his own defense cannot meaningfully reap the benefit of being represented by counsel,presenting evidence and being heard, and cross-examining witnesses." Respondent argues thatDr. Levy's psychological report as well as his own erratic behavior during the parental fitness andbest interest hearings showed that he was not mentally fit to participate in the terminationproceedings, and that the trial court therefore violated his right to due process by conductingthose proceedings without first conducting a hearing to determine whether he was "restored tofitness." Respondent specifically argues that "[t]he trial should not have commenced until thecourt made a determination that respondent was restored to fitness."

We apply de novo review to the question of whether termination of respondent's parentalrights without a hearing to determine respondent's fitness to stand trial violated due process. SeePeople v. Hall, 198 Ill. 2d 173, 177 (2001) (applying de novo review to question of whetherdefendant's due process rights were violated when trial court accepted his admission to probationviolations without admonishing him of his right to a probation revocation hearing at which hecould confront adverse witnesses).

"The due process clause of the fourteenth amendment to the United States Constitutionprovides that no state shall 'deprive any person of life, liberty, or property, without due process oflaw.' " In re D.T., 338 Ill. App. 3d 133, 151 (2003), quoting U.S. Const., amend. XIV,