Find Legal Information

JUSTICE KAPALA delivered the opinion of the court:

Respondent, Michelle L., appeals from the judgment of the circuit court of Ogle Countyterminating her parental rights to her son Brandon L. We affirm.

I. BACKGROUND

On September 10, 1999, a petition seeking the adjudication of wardship of Brandon pursuantto section 2--4(c) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--4(c) (West 2002)) wasfiled in the circuit court of Ogle County. The petition stated:

"On or about September 13, 1999 [sic], through no fault, neglect, or lack of concernof his parents, Michelle [L.] and Elmer [M.], said minor was without proper medical carenecessary for his well being in that the minor of [sic] July 9, 1999 [,] was diagnosed with peri-orbital rhabdomyosarcoma of the right eye, a potentially lethal cancerous tumor, for whichthe minor's parents are unable to provide the necessary hygiene and medication upon theminor's discharge from the University of Wisconsin-Madison Children's Hospital."

On January 11, 2000, the trial court adjudicated Brandon a dependent child and placed guardianshipwith the Department of Children and Family Services (DCFS), with power to place and power toconsent to medical treatment if necessary. Respondent and Elmer were ordered to cooperate withDCFS and follow various conditions.

On April 25, 2002, the State brought a petition to terminate the parental rights of respondentand Elmer. The petition alleged that respondent and Elmer were unfit parents pursuant to section 1Dof the Adoption Act (750 ILCS 50/1D (West 2002)) and section 2--29 of the Act (705 ILCS 405/2--29 (West 2002)) in that:

"(a) They have failed to maintain a reasonable degree of interest, concern orresponsibility as to the welfare of the minor, pursuant to 750 ILCS 50/1 D(b);

(b) They have substantially or repeatedly neglected the minor pursuant to 750 ILCS50/1 D(d);

(c) They have failed to protect the minor from conditions within the environmentinjurious to the minor's welfare, pursuant to 750 ILCS 50/1 D(g);

(d) They have demonstrated habitual drunkenness or addiction to drugs other thanthose prescribed by a physician for at least one year prior to the filing date of the Petition toTerminate Parental Rights, pursuant to 750 ILCS 50/1 D(k);

(e) They have failed to make reasonable efforts to correct the conditions that were thebasis for the removal of the minor, pursuant to 750 ILCS 50/1 D(m)(I); and

(f) They have continuously or repeatedly failed to provide the minor with adequatefood, clothing, or shelter, pursuant to 750 ILCS 50/1 D(o)."

On October 8, 2002, a fitness hearing was conducted. At the conclusion of the hearing, the trial courtfound that the State had proven the parents unfit only under grounds (a) and (e) of its petition.

On January 14, 2003, a best interest hearing was held. At the commencement of theseproceedings, the guardian ad litem moved to exclude respondent during Brandon's testimony. Theguardian ad litem argued that respondent could be excluded pursuant to section 2--18(4)(d) of theAct (705 ILCS 405/2--18(4)(d) (West 2002)). The State concurred with the guardian ad litem'srequest, arguing that in camera testimony would ensure that Brandon would not be unjustlyinfluenced during his testimony. Respondent objected, contending that section 2--18(4)(d) appliedonly to abuse and neglect cases. The trial court granted the State's motion to exclude respondentduring Brandon's testimony. The trial court also ruled that after the State and Brandon's guardianad litem were finished questioning Brandon, the parents' attorneys would be allowed a recess toconfer with their clients before they questioned Brandon. Brandon testified outside of respondent'spresence, and in the presence of only the trial judge, court reporter, guardian ad litem, and counselfor each parent. Counsel for each parent had an opportunity to examine Brandon. Brandon testified,inter alia, that he wished to remain with his foster father. Respondent's parental rights wereterminated and this appeal followed. Only respondent appeals, because Elmer passed away duringthe pendency of the trial court proceedings.

II. ANALYSIS

Respondent's sole contention on appeal is that the trial court committed reversible error bynot allowing her to be present during Brandon's testimony. She contends that she had both astatutory right and a due process right to be present. The State agrees that respondent had astatutory right to be present and that, therefore, the best interest determination of the trial courtshould be vacated and this cause should be remanded for a new best interest hearing. The Stateexpresses no opinion regarding respondent's constitutional argument. This court is not bound by theState's confession of error. In re Guardianship of Muellner, 335 Ill. App. 3d 1079, 1083 (2002). Wedisagree with respondent's contention that because the Act provided that she had a right to bepresent, her exclusion constitutes reversible error. We also find that respondent's due process rightswere not violated.

A. Respondent's Statutory Right to Be Present

Section 1--5(1) of the Act states, in relevant part:

"Except as provided in this Section in paragraph (2) of Sections 2--22, 3--23, 4--20,5--610 or 5--705, the minor who is the subject of the proceeding and his parents, guardian,legal custodian or responsible relative who are parties respondent have the right to be present,to be heard, to present evidence material to the proceedings, to cross-examine witnesses, toexamine pertinent court files and records and also, although proceedings under this Act arenot intended to be adversary in character, the right to be represented by counsel." 705 ILCS405/1--5(1) (West 2002).

None of the sections cited in the excerpt quoted above allow a court to exclude a parent from beingpresent during a minor's testimony. Here, however, the minor did testify in conformity with section2--18(4)(d) of the Act (705 ILCS 405/2--18(4)(d) (West 2002)), which indicates that a minor maytestify without the parents being present:

"There shall be a rebuttable presumption that a minor is competent to testify in abuseor neglect proceedings. The court shall determine how much weight to give to the minor'stestimony, and may allow the minor to testify in chambers with only the court, the courtreporter and attorneys for the parties present." 705 ILCS 405/2--18(4)(d) (West 2002).

We do not, as the parties urge, read section 2--18(4)(d) to allow a minor to testify in camera in onlyabuse and neglect proceedings.

In construing the meaning of a statute, the primary objective of the court is to ascertain andgive effect to the intention of the legislature. Carver v. Sheriff of La Salle County, 203 Ill. 2d 497,507 (2003). The most reliable indicator of the legislature's intention is the language of the statute. Carver, 203 Ill. 2d at 507. We must give the statutory language its plain and ordinary meaning.Carver, 203 Ill. 2d at 507. We review the construction of a statute de novo. Carver, 203 Ill. 2d at506-07. Furthermore, we must not construe a statute such that it will achieve absurd results. Gerwinv. Livingston County Board, 345 Ill. App. 3d 352, 361 (2003).

In this case, we first note that section 2--18(1) discusses which rules of evidence areapplicable to "this Article." 705 ILCS 405/2--18(1) (West 2002). Article II of the Act is entitled,"ABUSED, NEGLECTED OR DEPENDENT MINORS." Therefore, we start our analysis bypresuming that the evidentiary rules enunciated in section 2--18 are applicable in abuse, neglect, anddependency proceedings. Section 2--18(4)(d) mentions abuse and neglect proceedings only in thefirst sentence, which addresses competency to testify. The second sentence, which addresses theweighing of the minor's testimony and the ability of the court to have the minor testify in camera, doesnot reference abuse and neglect proceedings. We read the plain meaning of this sentence as givingthe trial court authority to conduct in camera examination of a minor in dependency proceedings aswell as abuse and neglect proceedings. If we read the second sentence of section 2--18(4)(d) as theparties suggest, then one could argue that the trial court "shall determine how much weight to giveto the minor's testimony" only in abuse and neglect proceedings. We cannot see how testimony couldbe weighed only in abuse and neglect proceedings. Stripping the trial court of its ability to weightestimony would be antithetical to its role as trier of fact in these cases. Clearly, the legislature couldnot have intended for such an absurd result.

We note that in construing the second sentence of section 2--18(4)(d), we make nodetermination as to the scope of the first sentence of that section. Our discussion of that sentencewas merely to distinguish the wording of the two sentences. We further note that respondent hasmade no contention that the trial court's order was an abuse of discretion and, therefore, we do notexpress any opinion as to whether the trial court abused its discretion.

B. Respondent's Due Process Rights

Having determined that the exclusion of respondent did not run afoul of section 2--18(4)(d),we address respondent's due process argument. "A parent has a fundamental due process right to thecare, custody and control of his or her children, but that right is subject to termination." In re AndreaF., 208 Ill. 2d 148, 165 (2003). A parental rights termination proceeding must comport with theguarantees of procedural due process because such a proceeding implicates a fundamental libertyinterest. In re Andrea F., 208 Ill. 2d at 165. In analyzing whether a parent's procedural due processrights were violated in a termination proceeding, we apply the test enunciated by the United StatesSupreme Court in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). In reAndrea F., 208 Ill. 2d at 165. In Mathews, the Supreme Court stated that the factors to beconsidered in determining whether a due process violation has occurred are: (1) the private interestimplicated by the official action; (2) the risk of an erroneous deprivation of that interest through theprocedures used, and the probable value, if any, of additional or substitute safeguards; and (3) thegovernment's interest, including the function involved and the fiscal and administrative burdens thatthe additional or substitute safeguards would entail. Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33,96 S. Ct. at 903.

Taking into account all of the Mathews factors, we do not find that respondent's due processrights were violated in this case. As to the first factor, a parent's right to care, custody, and controlof his or her child is a fundamental right that will not be lightly terminated by the courts. In re AndreaF., 208 Ill. 2d at 166. Of equal importance is the minor's interest in "a stable and safe homeenvironment and in maintaining a relationship with his foster parents." In re Travarius O., 343 Ill.App. 3d 844, 851 (2003). Furthermore, we note that in the best interest phase of a termination ofparental rights proceeding, the interests of the parent and the child diverge and due process does notrequire standards as strict as in the unfitness phase. See In re D.T., 338 Ill. App. 3d 133, 150 (2003)(holding that due process requires only a preponderance of the evidence burden of proof in the bestinterest phase versus a clear and convincing evidence standard in the unfitness phase); see alsoSantosky v. Kramer, 455 U.S. 745, 760-61, 71 L. Ed. 2d 599, 611, 102 S. Ct. 1388, 1398 (1982). By the time of the best interest phase of the proceedings, "the parent has been found unfit by clearand convincing evidence. While the parent retains a fundamental interest, the proper focus of thishearing is on the child. [Citation.] Once a finding of unfitness has been made, all considerations,including the parent's rights, must yield to the best interest of the child. [Citations.]" In re D.T., 338Ill. App. 3d at 153.

"Under the second factor, we must balance the rights of the child versus the rights ofrespondent to determine who should shoulder the risk of error at the termination and best interesthearings." In re Travarius O., 343 Ill. App. 3d at 851. The risk of erroneous deprivation ofrespondent's interest is that, because respondent's absence could dispose Brandon not to give truthfultestimony and could prevent respondent from adequately questioning Brandon, respondent's parentalrights could be wrongfully terminated. We find such a risk to have been minimal in this case and thatthere were adequate substitute safeguards employed by the trial court. Not only was respondent'sattorney present during Brandon's questioning, she was also given the opportunity to take a recessafter the guardian ad litem and the State questioned Brandon in order to confer with respondent aboutBrandon's testimony and what questions needed to be asked. Although respondent and her attorneychose not to take such a recess, the opportunity was available to them should they have desired todo so. We realize that respondent did not have an opportunity to view the mannerisms and demeanorof Brandon as he testified, but we find that the value of such an opportunity was minute, especiallyin light of the other safeguards afforded respondent.

Finally, we recognize that the State has an interest in preserving and promoting the welfareof the child and in reducing the cost and burden of termination proceedings. In re Travarius O., 343Ill. App. 3d at 852. This goal is partly achieved by eliciting the truthful testimony of the minor. Clearly, having the minor testify without possible influence from his mother or any other party helpsensure that truthful testimony is elicited. By allowing respondent's attorney to be present andallowing a recess if she so desired, the trial court protected respondent's rights at minimal burden tothe government and aided in the pursuit of determining the best interest of the minor. We find thatthe cost of the procedures employed by the trial court do not weigh into our consideration, since boththe methods actually employed by the trial court and the methods requested by respondent involvedno significant cost to the State.

The procedures used by the trial court adequately protected respondent's interest, minimizedthe risk of compromising that interest, and at the same time accommodated the interest of the State. Accordingly, we find that respondent's due process rights were not violated in this case.

III. CONCLUSION

For the foregoing reasons, we affirm the order of the circuit court of Ogle County excludingrespondent from the courtroom during the minor's testimony.

Affirmed.

BYRNE and GILLERAN JOHNSON, JJ., concur.