In re Andrea F.

Case Date: 02/28/2002
Court: 2nd District Appellate
Docket No: 2-01-1099 Rel

No. 2--01--1099


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT




In re ANDREA F., a Minor ) Appeal from the Circuit Court
) of Winnebago County,
)
) No. 95--J--743
)
(The People of the State of ) Honorable
Illinois, Petitioner-Appellee, ) Janet Clark Holmgren,
v. T.F., Respondent-Appellant). )  Judge, Presiding.
 

JUSTICE BYRNE delivered the opinion of the court:

Respondent, T.F., appeals the judgment of the circuit court ofWinnebago County adjudicating him an unfit parent, terminating hisparental rights to his minor daughter, Andrea, and appointing theDepartment of Children and Family Services (DCFS) guardian of theminor with the power to consent to her adoption.

On appeal, respondent argues that (1) the trial court'sadjudication of unfitness was against the manifest weight of theevidence; (2) the trial court's failure to admonish respondent thathis failure to cooperate with DCFS services could result in thetermination of his parental rights violated section 1--5(3) of theJuvenile Court Act (Act) (705 ILCS 405/1--5(3) (West 1996)); and(3) the trial court violated his fifth amendment right not toincriminate himself because the findings of unfitness wereimproperly based upon respondent's refusal to admit that hesexually abused Shannon H.

We hold that the court's lack of a complete admonitionviolated the Act, denying respondent a fair determination of hisparental rights. Therefore, without deciding respondent's othercontentions of error, we reverse the findings of parental unfitnessand the order terminating respondent's parental rights, and weremand the cause for further proceedings.

The following facts are relevant to the disposition of theappeal. In November 1995, the State filed a petition alleging thatAndrea was abused by her father, respondent, and that she wasneglected and in an injurious environment because respondent placedher at risk of harm when he sexually abused Andrea's half-sister,Shannon H. At a preliminary hearing, the trial court read theallegations of the petition for abuse and neglect and explained thefollowing to respondent:

"If either one of those allegations are [sic] proven tobe true, the children could be declared to be neglected orabused minors.

If they're found to be abused minors, the Court mustindicate [who] had caused the abuse and then determine thefitness of that person to have contact with, guardianship orcustody of the minor.

The Court can if either allegation is found to be truedeclare the children to be wards of the Court until they reachthe age of 19.

Basically, that enables the Court to enter ordersrequiring that the parents participate in counseling servicesintended to eliminate any future risk of the minors, tominimize any harm that's occurred to the minors in the past.

The Court can if it finds [the] parents are unable toadequately care for, protect, train, discipline the minors,the Court can remove the minors from the custody of oneparent, place with another parent or remove from the custodyof both parents, place with a relative or place under theguardianship of DCFS."

The court further explained to the parents their right to bepresent during the hearings, to question witnesses at trial, and tohave a lawyer represent them. The court never advised respondentthat his parental rights could be terminated if he failed tocooperate with DCFS or comply with the recommended service plans.

On July 30, 1996, at the close of the adjudication hearing,the court found Andrea and Shannon H. abused and neglected. Thetrial court denied the motion to reconsider and found that it wouldbe in the minors' best interest to declare them to be wards of thecourt until they reached the age of 19, unless the court terminatedthe order. The court ordered the guardianship and custody ofAndrea to her mother. Respondent was allowed visitations withAndrea, to be supervised at the discretion of DCFS. The courtfurther ordered that:

"the mother, father and--actually, the father and minorscooperate with [DCFS] and shall participate in any and allcounseling recommended by DCFS or its contracting agency,which shall include but not be limited to sexual offensecounseling, protective services assessment counseling,victimization counseling, alcohol and substance abusecounseling."

The court did not advise respondent that he risked losing hisparental rights if he failed to cooperate with DCFS or comply withthe recommended service plans.

Respondent appealed the judgment of the trial court. We foundthe evidence sufficient to support the trial court's finding thatShannon H. had been abused and that Andrea was neglected and in aninjurious environment because respondent had sexually abusedShannon H. However, we found the evidence insufficient to supportthe finding that respondent abused Andrea. In re A.F., No. 2--96--1050 (1997)(unpublished order under Supreme Court Rule 23).

A modified order to reflect the Rule 23 disposition wasentered by the trial court on May 11, 1998. Respondent filed amotion to modify the service plan to reflect the decision of theRule 23 order, asking the court to permit respondent to visit withAndrea. On October 28, 1998, following the hearing on the motionto modify the disposition, the court ordered that supervised visitsbetween respondent and Andrea could occur at the caseworker'sdiscretion and that respondent must fully cooperate with counselingfor these visits to occur. The court did not admonish respondentthat his failure to cooperate could result in the termination ofhis parental rights.

On August 11, 2000, the State filed a petition for thetermination of parental rights and the power to consent toadoption. The petition alleged that respondent was unfit becausehe failed to maintain a reasonable degree of interest, concern, orresponsibility for Andrea; that he neglected Andrea in a continuousand repeated manner; and that he failed to make reasonable effortsto correct the conditions that were the basis of removal or to makereasonable progress toward her return home within nine months ofthe adjudication. On May 23, 2001, Andrea's mother voluntarilysurrendered her parental rights. On May 30, 2001, following ahearing, respondent was found to be unfit and, thereafter, thecourt determined that it was in the best interests of the minor toterminate respondent's parental rights and to authorize DCFS toconsent to Andrea's adoption. Respondent timely appeals.

We first address the appropriate standard of review.Ordinarily, a trial court's finding as to fitness is afforded greatdeference on review. In re M.H., 196 Ill. 2d 356, 361 (2001). However, in the present case, the question presented, whether thetrial court was required to admonish respondent that he mustcooperate with DCFS services or risk the termination of hisparental rights, is a question of law and will be reviewed de novo. In re M.H., 196 Ill. 2d at 361.

Section 1--5 of the Act in effect at the time of the initialadjudication of neglect and abuse and at the time of the originaldispositional order in July 1996, provided, in pertinent part:

"Rights of parties to proceedings.

(1) *** the minor who is the subject of the proceedingand his parents *** have the right to be present, to be heard,to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files andrecords and also *** the right to be represented by counsel.



* * *

(3) *** At the first appearance before the court by theminor [and] his parents *** the court shall explain the natureof the proceedings and inform the parties of their rightsunder the first 2 paragraphs of this Section." 705 ILCS405/1--5 (1), (3) (West 1996)).

Although there is no specific requirement under the Act thatthe courts admonish the parents regarding the termination of theirparental rights, it is clear that the rights set forth in section1--5(3) would be meaningless if the parents are unaware of them. The interest of parents in the care, custody, and control of theirchildren is perhaps the oldest of the fundamental liberty interestsrecognized. Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d49, 56, 120 S. Ct. 2054, 2060 (2000). While Illinois courtsrecognize a parent's liberty interest in raising children, thecourts also recognize that parental rights must sometimes beterminated. M.H., 196 Ill. 2d at 362-63.

The legislature balanced the parents' liberty interest inraising their children with those situations in which the bestinterests of the children sometimes establish that parental rightsmust be terminated. Article II of the Act (705 ILCS 405/2--1 etseq. (West 1996)) sets out the procedures for adjudicating apetition that alleges that a minor is abused, neglected, ordependent (705 ILCS 405/2--3 (West 1996)). After the entry of thedetermination (705 ILCS 405/2--21(1) (West 1996)), the court musthold a dispositional hearing (705 ILCS 405/2--22(2) (West 1996)). A dispositional hearing serves a crucial purpose in allowing thetrial court to decide what further actions are in the bestinterests of a neglected, abused, or dependent minor. It alsogives the parents fair notice of what they must do to retain theirrights to their children in the face of any future terminationproceedings. In re G.F.H., 315 Ill. App. 3d 711, 715 (2000). Thisright is "of deep human importance and will not be lightlyterminated." In re Paul, 101 Ill. 2d 345, 351-52 (1984). Giventhe importance of a dispositional hearing to the fairness of anyfuture termination proceedings, we believe that the legislatureintended that the trial courts inform the parents of all of theirrights to the proceedings, including what they must do to retaintheir parental rights to their children.

We find support for this conclusion in In re Smith, 77 Ill.App. 3d 1048 (1979), and In re Moore, 87 Ill. App. 3d 1117 (1980). Both cases were based on the 1977 version of section 1--20 of theAct (Ill. Rev. Stat. 1977, ch. 37, par. 701--20). Section 1--20provided that, at the first appearance before the court by theminor's parents, "the court shall explain the nature of theproceedings and inform the parties of their rights" (Ill. Rev.Stat. 1977, ch. 37, par. 701--20(3)), including the "right to bepresent, to be heard, to present evidence material to theproceedings, to cross-examine witnesses, to examine pertinent courtfiles and records," and to be represented by the public defender orappointed counsel (Ill. Rev. Stat. 1977, ch. 37, par. 701--20(1)).

In Smith, the mother consented to the minor being placed inthe temporary custody of DCFS until the upcoming date of theadjudicatory hearing. The trial court informed the mother that shewas entitled to an attorney at the hearing, and the motheracknowledged her right but chose not to exercise it. After theadjudicatory hearing, the court found that the minor was neglectedand ordered that the minor be made a ward of the court. Followingthe dispositional hearing, the court ordered that the child beremoved from the custody of his parents and placed in the permanentcustody of DCFS. On appeal, the mother contended that the courterred by failing to advise her of her rights and of the nature ofthe juvenile court proceedings as required by section 1--20(3)(Ill. Rev. Stat. 1977, ch. 37, par. 701--20(3)).

Although there was little or no authority as to what wouldconstitute adequate admonitions under this section, the appellatecourt found that clearly the statutory language imposed a mandatoryduty on the trial court to inform the parties of the nature of theproceedings. Smith, 77 Ill. App. 3d at 1053. The court held that,in cases in which the State seeks an adjudication of neglect orwhere a child is otherwise in need of supervision, the parents, atthe very minimum, must be informed that their child may become award of the State and that, upon such a determination, they maylose the custody of their child. Smith, 77 Ill. App. 3d at 1053. The court believed that, without these basic admonitions, the otherprocedural rights, including the right to counsel, would havelittle meaning. Smith, 77 Ill. App. 3d at 1053. Because themother was unaware that her son could be taken from her, she wasunprepared to challenge the evidence that the interest of the childwould best be served by keeping him in foster care. Smith, 77 Ill.App. 3d at 1054. Accordingly, the court held that the trial courterred in failing to inform the mother at her first appearance thatshe could be deprived of the custody of her son at thedispositional hearing. Smith, 77 Ill. App. 3d at 1053.

In Moore, the trial court found the minor to be neglected and,following the dispositional hearing, awarded custody to thematernal grandmother. The mother, who had admitted to neglect,contended on appeal that she was denied due process when the trialcourt failed to explain to her the nature of the adjudicatoryproceedings and that this failure violated section 1--20 of the Act(Ill. Rev. Stat. 1977, ch. 37, par. 701--20). The court was unableto determine from the record whether the mother knew she had theright to contest the allegations of neglect and adjudication ofwardship. The court also was unable to determine whether themother was aware of the nature of the adjudicatory proceedings orthat she could lose custody of her child. Moore, 87 Ill. App. 3dat 1121. Rejecting the State's argument that the lack of anadmonishment of rights and an explanation of the proceedings at theadjudicatory stage was not prejudicial, the court believed that theadmonishment was necessary because "[i]f the parent is not aware ofthe right to contest the petition's allegations of neglect, anadmission of neglect might well be prejudicial, particularly wherethe parent did not know and was not informed that permanent custodyof the child could be lost at the dispositional hearing as a resultof that very admission." Moore, 87 Ill. App. 3d at 1122.

The 1977 version of section 1--20(3) required a trial court to"explain the nature of the proceedings and inform the parties oftheir rights" at the parents' first court appearance. Ill. Rev.Stat. 1977, ch. 37, par. 701--20(3). The courts in Smith and Mooreheld that section 1--20(3) required a trial court to admonish theparents that they might lose custody of their children. Weconclude that a similar admonition was required at the July 1996adjudicatory hearing in this case because the 1996 version ofsection 1--5(3) (705 ILCS 405/1--5(3) (West 1996)) is substantiallysimilar to the 1977 version of section 1--20(3).

Moreover, we believe that the admonition to the parent is evenmore important in the present case, where the parent could lose hisparental rights. Custody can be modified. In contrast, atermination of parental rights is a final and complete severance ofthe child from the parent and removes the entire bundle ofcustodial and noncustodial rights. In re P.F., 265 Ill. App. 3d1092, 1101 (1994).

Significantly, through Public Act 90--28 (Pub. Act 90--28,