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6 October 2000

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JUSTICE HUTCHINSON delivered the opinion of the court:

Respondent, J.P. (respondent), appeals from an orderterminating her parental rights of the minor J.P. and appointing aguardian with the power to consent to J.P.'s adoption. On appealrespondent contends, inter alia, that the trial court erred when itaccepted her admission that she was unfit for failure to makereasonable progress without requiring the State to present thefactual basis for the admission. The trial court also erred whenit conducted a best interests hearing in respondent's absence afterallowing her counsel to withdraw without complying with therequirements of Supreme Court Rule 13(c) (134 Ill. 2d R. 13(c)). We reverse and remand.

On November 11, 1996, the State filed a neglect petitionalleging that J.P. was a neglected minor because he had been bornwith cocaine in his blood in violation of section 2--3(c) of theJuvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS405/2--3(c) (West 1996)). The trial court subsequently orderedrespondent to obtain substance abuse treatment. The matter wascontinued several times, and on May 21, 1997, the trial court foundthat J.P. was a neglected minor. The cause was continued severalmore times, and on August 25, 1998, the State filed a petition toterminate respondent's parental rights, alleging, inter alia, thatshe failed to make reasonable efforts to correct the conditionsthat were the basis for the removal of J.P. and that she failed tomake reasonable progress toward the return of J.P. The petitionalso alleged that J.P.'s father was unfit.

On May 5, 1999, the trial court conducted a hearing on theState's petition to terminate respondent's parental rights. Atthat hearing respondent admitted the allegation contained in theState's petition that she had failed to make reasonable progress. The following discussion was held regarding the admission:

"MR. GOLIAN [special prosecutor]: *** I would like toput it on the record the admission to *** count two ofparagraph eight by [respondent] of [J.P.'s] petition.

THE COURT: [Respondent], with regard to [J.P.], theState has advised me that you are in agreement that they couldprove the allegations of--

Is it count three or count two?

MR. GOLIAN: Count two.

THE COURT: That from one year of the date that [J.P.]was found to be neglected by this court that you failed tomake reasonable progress or reasonable efforts to correct theconditions that caused him to be taken from your care. Haveyou discussed that with your counsel?

THE RESPONDENT MOTHER: Uh-Huh, yeah.

THE COURT: Is there a stipulation as to that count?

MR. KIEL [respondent's counsel]: Yes, Your Honor.

THE COURT: Then I'll show the stipulation to count twoof [J.P.'s] petition by [respondent]."

The trial court subsequently entered an order finding thatrespondent was unfit, and the cause was continued until August 9,1999, for a hearing on J.P.'s father's fitness and a best interestshearing. On the same date in a separate proceeding, respondentconsented to the adoption of another child, A.L., by his maternalgrandmother, respondent's mother.

On June 17, 1999, Roger Kellerman, with the firm of Vella,Sparkman, Wheeler & Lund (the Vella firm), entered an appearance onbehalf of respondent in this matter, the adoption of A.L., and infour other juvenile proceedings involving respondent. On August 2,1999, respondent moved for a continuance. The trial court grantedthe motion and entered an order that stated in pertinent part:

"Respondent['s] *** motion for a continuance of the bestinterests hearing set for August 9, 1999 is granted. A newdate will be set later. The case remains on the call August9, 1999 at 9:00 a.m. for unfitness matters."

On August 9, 1999, the trial court conducted a hearing on thefather's fitness and found that he was unfit. The report ofproceedings indicates that the trial court set the matter for abest interests hearing on November 8, 1999; the trial court alsoset a status hearing for A.L.'s adoption on the same date. However, the written order entered indicates that the matter wasset for "review" and "status in adoption." The report ofproceedings does not indicate that either respondent or herattorney was present at the August 9, 1999, hearing.

On October 8, 1999, the trial court continued the matter untilOctober 21, 1999. The written order entered that day indicatesthat the matter was continued for "motion to withdraw by attorneySloan." The trial court also ordered respondent to appear at thenext court date. The common-law record also contains a copy of adocument entitled "Notice of Hearing Date," indicating that thematter was continued until October 21, 1999. The notice identifiedthe cause as "in the interest of A.L.," but also included the casenumbers for this matter, the A.L. adoption proceeding, and threeother juvenile proceedings. The notice was addressed torespondent, but bears only her name and no mailing address. Therecord does not contain a report of proceedings for the October 8,1999, hearing.

On October 21, 1999, the trial court heard the motion towithdraw and engaged respondent's counsel in the followingcolloquy:

"THE COURT: All right. Mr. Sloan. [sic] Last courtdate we didn't have a green card back on [respondent]. Howare we doing in that department? Do you have the green card?

MR. KELLERMAN: No, Your Honor. I spoke to Mr. Sloanjust before coming over here and we have lost contact with ourclient.

THE COURT: With regard to the Motion to Withdraw, I willgrant the motion based on lack of cooperation."

The court entered a written order granting the Vella firm leave towithdraw as counsel for respondent. The order stated thatrespondent was granted 21 days to retain other counsel. The orderalso stated that the matter remained set for a best interestshearing on November 8, 1999.

On November 8, 1999, the trial court conducted a hearing onthe best interests of J.P. The following colloquy occurred beforethe hearing:

"MR. GOLIAN [special assistant State's Attorney]: Judge,does [respondent] currently have an attorney?

THE COURT: No. She failed to appear on the date set byher counsel, and she was present when this court date was setfor hearing on best interests.

MS. KASPER [caseworker]: Yes, she was.

THE COURT: Just to--just to state the procedural postureof the case, I would note that [respondent] was present incourt on July 1st when the petition to terminate was set forpretrial conference and hearing was set for August 9th at1:30.

On August 2nd Attorney Kellerman on behalf of[respondent] came in before the court and asked to continuethe best interests hearing on her behalf, indicating that hemight be filing a motion to set aside the stipulation ***. *** Such a motion was never filed, and since that time[respondent] has not appeared in court, and ultimately counselfor [respondent] requested to withdraw as counsel based on herlack of cooperation and lack of [sic] failure to remain incontact with counsel, which was heard and granted on our lastcourt date.

We are set this afternoon then for dispositional hearingon best interest [sic] as to [J.P.'s] case. I would find[respondent] to be in default. She's had notice of thesetermination proceedings, and failure to appear renders her indefault and we are able to proceed."

The trial court then conducted the best interests hearing. DonnaKasper, a caseworker for Catholic Charities, testified for theState and testified regarding her contact with respondent asfollows:

"Q. Okay. Just for the record, have you had any contactwith [respondent] since the last Court hearing?

A. I've had several *** phone conversations with her. I have only met with her once though.

Q. All right. Did you talk to her today?

A. Yes, I did.

Q. What did you say to her today?

A. She called me at 9:30 this morning and stated thatshe was too sick to come to court. I immediately advised herthat no matter how sick she was, that she should come intocourt today because they would proceed with terminationwithout her. She again said that she was too ill to come in,and I again repeated in front of witnesses that she had to bein court today 'cause they would proceed without her if shedid not. She then stated she didn't care, that she wouldsimply file an appeal."

The trial court heard additional testimony from Kasper regardingJ.P.'s foster home placement, his relationship with his fosterparents, and his developmental progress. The trial court foundthat it was in J.P.'s best interests that respondent's parentalrights be terminated and that a guardian be appointed with thepower to consent to adoption. When announcing its judgment thetrial court commented:

"Now throughout this case and as documented in the courtreport that's submitted today, keep in mind [J.P.] was bornwith cocaine in his system. That was delivered to him by[respondent] through her ingestion of cocaine, that she usedcocaine while she was nursing him, that for a long period oftime her substance use has continued, that she has notevidenced to this Court or to any other that she has in anyway meaningful [sic] addressed her cocaine issues. She's illtoday. I'm not sure why. I can make a surmise. I can guess,probably with some accuracy, as to why she is not presenttoday. But regardless of appearances of good care, whensomeone is addicted to cocaine they cannot be there as aparent for a child, and that's why [J.P.] was initially takeninto care."

The trial court subsequently entered a judgment terminatingrespondent's parental rights and appointed a guardian to consent toadoption. Respondent timely appeals.

Respondent contends that an admission to an allegation ofunfitness in a termination of parental rights proceeding isanalogous to the entry of a guilty plea in a criminal trial andshould be accompanied by procedural safeguards analogous to thoseprovided criminal defendants by Supreme Court Rule 402(c) (177 Ill.2d R. 402(c)). Rule 402(c) provides that "[t]he court shall notenter final judgment on a plea of guilty without first determiningthat there is a factual basis for the plea." 177 Ill. 2d R.402(c). The State responds that respondent's admission orstipulation should be treated like a settlement agreement in acivil case and that neither the Juvenile Court Act nor the AdoptionAct (750 ILCS 50/0.01 et seq. (West 1998)) requires the admonitionsof Rule 402(c). Whether the trial court was required to determinea factual basis before accepting respondent's admission is a legalquestion that we may review de novo. See Woods v. Cole, 181 Ill.2d 512, 516 (1998).

This court recently considered a similar challenge to anadmission of unfitness in In re M.H., 313 Ill. App. 3d 205 (2000). The M.H. court noted that a termination of parental rightsproceeding involves fundamental liberty interests and direconsequences can result if the State succeeds in proving its case. M.H., 313 Ill. App. 3d at 214, citing Lassiter v. Department ofSocial Services, 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153(1981). Consequently, a parent admitting an allegation ofunfitness should be accorded procedural safeguards analogous tothose provided a criminal defendant pleading guilty plea. M.H.,313 Ill. App. 3d at 214. The M.H. court concluded:

"In our view, a determination that a factual basis existsfor an admission of unfitness is necessary to insure that aparent's admission is knowing and voluntary. Otherwise thereis a danger that a parent may understand the State's allegedgrounds of unfitness but may not realize that his or herconduct does not fall within those allegations. [Citations.] Because of the dire consequences of a finding of parentalunfitness, it is important for the trial court to insure thatan admission of unfitness is made intelligently andvoluntarily. The burden on courts of conducting an inquiryinto the factual basis for an admission of unfitness will beminimal. As we discuss in more detail below, courts can usea number of different methods to satisfy themselves that anadmission has a basis in fact.

In keeping with our analogy to a guilty plea situation,we further hold that the factual basis that is required beforethe court may accept an admission of unfitness need not riseto the level of the State's burden of proof, which in thiscase is clear and convincing evidence. See People v. Nyberg,24 Ill. App. 3d 41, 48 (1974) (holding that the quantum ofproof necessary to sustain a factual basis for a guilty pleais less than that required to prove a defendant guilty beyonda reasonable doubt at trial). Additionally, the trial courtmay determine the best method for ascertaining whether asufficient factual basis exists. We are guided by thecommittee comments to Rule 402(c), which provide that 'noparticular kind of inquiry is specified; the court maysatisfy itself by inquiry of the defendant or the attorney forthe government, by examination of the presentence report, orby any other means which seem best for the kind of caseinvolved.' 177 Ill. 2d R. 402(c), Committee Comments, atlxxvii. Whatever the method, though, in our view a trialcourt cannot determine whether a parent made reasonableprogress toward the return of his or her children withoutfirst knowing the goals the parent was supposed to work towardand what efforts, if any, the parent made toward reachingthose goals." M.H., 313 Ill. App. 3d at 215.

In the case before us, the record does not indicate that, atthe time the trial court accepted respondent's admission, it hadbefore it any facts supporting the State's allegation that respondent failed to make reasonable progress. The count in theState's petition to terminate parental rights to which respondentadmitted merely repeated the statutory definition of unfitnessfound in the Adoption Act. See 750 ILCS 50/1(D)(m) (West 1998). The State did not identify what goals were assigned respondent orthe efforts, if any, she made toward reaching those goals. TheState presented no additional facts at the time of the admission. Therefore, we conclude that respondent's admission lacked a factualbasis and accordingly vacate her admission. See M.H., 313 Ill.App. 3d at 216. Without respondent's admission, there is noevidence in the record to support the trial court's finding thatshe was unfit. Accordingly, we reverse the order findingrespondent unfit and the subsequent order terminating her parentalrights, and we remand the cause for a new hearing to determinewhether respondent is unfit to parent J.P.

Respondent also contends that the trial court erred when itconducted the November 8, 1999, best interests hearing in herabsence. This contention subsumes two interrelated issues: (1)whether the trial court's action deprived respondent of her rightto counsel, and (2) whether due process required respondent'spresence at the hearing. Our determination regarding respondent'sadmission of unfitness obviates the need to address this contentionon appeal. However, because similar issues may arise again onremand, we will address them briefly at this time.

A respondent parent has a right to the effective assistance ofcounsel in both a neglect proceeding and in any subsequenttermination of parental rights proceeding that might arise from theunderlying finding of neglect. In re Kr. K., 258 Ill. App. 3d 270,280 (1994). This right to counsel flows from the fourteenthamendment to the United States Constitution as well as fromIllinois statutes. Kr. K, 258 Ill. App. 3d at 279; see also U.S.Const., amend. XIV; 705 ILCS 405/1--5(1) (West 1998). SupremeCourt Rule 13(c)(2) prevents an attorney from withdrawing withoutleave of the court and requires notice to the client. 134 Ill. 2dR. 13(c)(2). The entry of a default judgment or other order in theabsence of a party who was not given proper notice under SupremeCourt Rule 13 is unjust, and the judgment may be vacated orreversed on appeal. In re Marriage of Santa Cruz, 179 Ill. App. 3d611, 621 (1989); see also Safety-Kleen Corp. v. Canadian UniversalInsurance Co., 258 Ill. App. 3d 298, 304 (1994).

In this case, the record contains no indication thatrespondent's counsel complied with the minimal requirements of Rule13. Rule 13(c)(3) requires that any motion to withdraw be inwriting and contain the last known address of the partyrepresented. 134 Ill. 2d R. 13(c)(3). The record on appealcontains no such motion. Rule 13(c)(2) requires counsel to providenotice of a motion to withdraw to the party represented by personalservice or certified mail at the party's last known address. Although the common-law record does not contain a copy of a motionto withdraw or notice of that motion, the report of proceedings forOctober 21, 1999, suggests that any attempt to notify respondent bycertified mail was unsuccessful. Counsel for respondent indicatedthat his firm had lost contact with respondent. However,respondent's caseworker, Kasper, testified that respondent hadremained in contact with her. This testimony suggests thatrespondent's attorney could have, with reasonable effort, locatedhis client to provide notice of the motion to withdraw. Rule13(c)(4) requires that a copy of the order granting an attorneyleave to withdraw be served upon the client within three days. Therecord on appeal contains no indication that counsel for respondentattempted to serve her with a copy of the order granting him leaveto withdraw. Finally, Rule 13 contemplates that a client will begranted at least 21 days to appear pro se or retain substitutecounsel. See 134 Ill. 2d Rs. 13(c)(2), (c)(5). Although the ordergranting respondent's counsel leave to withdraw recites therequired 21-day period to obtain substitute counsel, the order alsoindicates that the matter remained set for hearing on a date only18 days after the order was entered. In short, there is noindication that counsel for respondent complied with any of therequirements of Supreme Court Rule 13.

In this case the right-to-counsel issue is interrelated withthe issue of whether due process required respondent's presence atthe best interests hearing. Although a parent has a right to bepresent at a hearing to terminate parental rights, presence is notmandatory, and the trial court is not obligated to delay theproceedings until the parent chooses to appear. In re C.L.T., 302Ill. App. 3d 770, 778 (1999). In C.L.T., the respondent motherfailed to appear at a hearing on a petition to terminate herparental rights, and the trial court denied her attorney's requestfor a continuance. C.L.T., 302 Ill. App. 3d at 779. The reviewingcourt observed that the mother had received notice of the hearingdate through her attorney; that a caseworker contacted the motherthe date of the hearing, reminded her of the court date, andoffered the mother a ride; and that the mother's attorneyrepresented her at the hearing in her absence. C.L.T., 302 Ill.App. 3d at 778-79. The reviewing court concluded that the trialcourt did not abuse its discretion or deny the mother her right todue process when it denied the continuance. C.L.T., 302 Ill. App.3d at 779.

When evaluating whether due process requires a trial court tocontinue the proceedings in a termination case, a reviewing courtmay consider the governmental interests affected by a delay in theproceedings. In re M.R., No. 1--98--2859, slip op. at 3 (August31, 2000). In a termination proceeding, delay imposes a seriouscost on the function of government, as well as intangible costs tothe lives of the children involved. M.R., slip op. at 3. Theseconsiderations are so important that, even if her or his absence from the hearing is involuntary, a parent's right to due process isnot violated when the conditions preventing the parent's presenceare likely to continue indefinitely. M.R., slip op. at 3-4(holding that the trial court did not err when it denied acontinuance to a mother confined to psychiatric hospital when herinterests at the termination hearing were represented by counsel).

In this case, the record does not support a finding thatrespondent had adequate notice of the best interests hearing. Although the trial court stated that respondent was present incourt when it set a date for the best interests hearing, the recorddoes not support the trial court's assertion. The report ofproceedings for August 11, 1999, contains no indication thatrespondent was present and clearly indicates that her attorney wasnot present when the trial court set November 8, 1999, as the datefor the best interests hearing. Because respondent's attorneyindicated that he had lost contact with respondent, we cannotpresume that notice to her attorney was communicated to respondent. Cf. C.L.T., 302 Ill. App. 3d at 778 (holding that notice to counselwas a reasonable means of providing notice to the mother). Kasper's testimony suggests that respondent was aware that the bestinterests hearing was scheduled. However, we do not find thisstatement to Kasper sufficient to establish that notice of thehearing was provided by reasonable means or that respondent'sabsence constituted a voluntary relinquishment of her due processrights.

More importantly, unlike M.R. and C.L.T., respondent'sinterests were not represented by counsel at the hearing. Thislack of representation is particularly significant in light of thefailure to comply with the requirements of Supreme Court Rule 13. We conclude that the trial court erred when it granted respondent'scounsel leave to withdraw without requiring compliance with SupremeCourt Rule 13 and that the trial court compounded this error whenit conducted the best interests hearing in respondent's absence. Although the decision to continue a juvenile proceeding is a mattercommitted to the trial court's discretion, and this courtappreciates the trial court's efforts to conclude this matter toinsure J.P.'s stability, the combination of errors in this casedeprived respondent of her right to due process. Therefore, thetrial court's decision to conduct the hearing in respondent'sabsence constituted an abuse of that discretion.

We also note that the trial court stated that its ruling onthe best interests of J.P. was based, in part, on respondent'saddiction to cocaine and her failure to address her addiction. Atrial court's determination of whether a parent is unfit andwhether the termination of parental rights is in the child's bestinterest must be based only on evidence properly admitted duringthe termination-of-parental-rights proceedings. See In re A.B.,308 Ill. App. 3d 227, 239 (1999); In re J.G., 298 Ill. App. 3d 617,629 (1998). In this case, no evidence was presented during thebest interests hearing that respondent was addicted to cocaine. Further, because the trial court did not make a determinationregarding the factual basis for respondent's admission, heradmission of unfitness provides no support for the trial court'sconclusion that she is addicted to cocaine. The record doessuggest that respondent is addicted to cocaine, and we presume thatthe trial court's assertion was based on its knowledge of theunderlying proceedings. However, during a typical proceeding toterminate parental rights, a trial court will likely receivevarious service plans and reports that may contain information thatis hearsay or otherwise inadmissible. J.G., 298 Ill. App. 3d at628-29. Wholesale judicial notice of all matters occurring priorto the unfitness hearing is unnecessary and inappropriate, and a trial court should only take judicial notice of those portions ofthe underlying court files that have been proffered by the Stateand to which the respondent is given an opportunity to object. A.B., 308 Ill. App. 3d at 238-39; J.G., 298 Ill. App. 3d at 629. Therefore, the trial court erred when it considered respondent'salleged addiction in its best interests determination, and onremand we caution the trial court to limit its consideration to theevidence presented to it and properly admitted.

Finally, we wish to address some issues related torespondent's conduct. We cannot, on the record before us, make adefinitive finding regarding respondent's mental state. However,if true, respondent's statement to Kasper that she did not carewhether the trial court conducted the best interests hearing in herabsence because she could simply appeal the ruling suggests thatrespondent possessed a sufficient understanding of terminationprocedures to manipulate the system to her advantage. Few legalprocedures exist that are incapable of abuse, regardless of theefforts of the judiciary, by those who place their own interestsahead of the concerns of justice and fairness. See In re Marriageof Thomas, 89 Ill. App. 3d 81, 84 (1980). A respondent parent whowished to delay an unfitness finding could certainly do so byrefusing to cooperate with counsel or failing to appear in court atstrategic times. When the alleged unfitness is the result ofmental illness or drug addiction, similar delays may occur withouta conscious effort on the parent's part. See M.R., slip op. at 3. A child's need for stability is significant and weighs heavily infavor of the swift determination of allegations of parentalunfitness. M.R., slip op. at 3. Accordingly, a trial court shouldnot hesitate to determine fitness in the absence of a parent who isattempting to manipulate the system to her or his own advantage. See C.L.T., 302 Ill. App. 3d at 778. However, when balancing aparent's interests and right to due process against the interestsfavoring a prompt disposition, a trial court must cautiouslyobserve the relevant procedural requirements because a dispositionthat must be reversed on appeal serves neither interest.

In conclusion, we hold that the trial court erred when itaccepted respondent's admission of unfitness without determiningthat a factual basis existed for the admission in a manneranalogous to that required by Supreme Court Rule 402(c) for guiltypleas in criminal cases. Accordingly, we vacate respondent'sadmission of unfitness, reverse the order terminating her parentalrights, and remand the cause for further proceedings consistentwith this order.

Reversed and remanded.

INGLIS and RAPP, JJ., concur.