Find Legal Information

7 July 2000

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JUSTICE RAPP delivered the opinion of the court:Respondent, K.J., appeals from orders terminating her parentalrights to her two children, M.J. and A.J. The presumed andputative fathers of the children are not parties to this appeal,having previously surrendered their parental rights. Respondentargues that (1) the trial court lacked jurisdiction over thetermination proceedings due to flaws in the underlying neglectproceedings; and (2) the trial court's findings of parentalunfitness were against the manifest weight of the evidence. Weaffirm.

I. FACTUAL BACKGROUND

In December 1997, the State filed separate petitions toadjudicate M.J. and A.J. neglected minors. Both petitions alleged,among other things, that the children were neglected because theirenvironments were injurious to their welfare in that respondent haduntreated mental health issues that placed her children at a riskof harm. An adjudicatory hearing was held in June 1998. Thoughrespondent did not appear at the hearing, respondent's counsel waspresent and conducted cross-examination of the State's witnesses. After the hearing, the trial court entered orders adjudicating bothchildren neglected minors pursuant to section 2--3(1) of theJuvenile Court Act of 1987 (705 ILCS 405/2--3(1) (West Supp.1997)). A dispositional hearing was held on July 1, 1998. Respondent failed to appear although she was notified earlier inopen court of the date and time of the hearing.

At the dispositional hearing, the trial court orderedrespondent, in absentia, to cooperate with the Department ofChildren and Family Services (DCFS), to follow through withrecommended mental health counseling, and to refrain fromthreatening DCFS personnel during visits with the children. Visitation between respondent and the children was to be at thediscretion of DCFS. The trial court then made the children wardsof the court and appointed DCFS legal guardian and custodian of theminors. No appeal was taken from the dispositional order.

Late in January 1999, the State separately petitioned toterminate respondent's parental rights as to both children. Thepetitions alleged that respondent was an unfit parent because (1)she failed to maintain a reasonable degree of interest, concern, orresponsibility as to the children's welfare (750 ILCS 50/1(D)(b)(West 1998)); (2) she continuously or repeatedly neglected thechildren (750 ILCS 50/1(D)(d) (West 1998)); and (3) she failed tomake reasonable efforts to correct the conditions that were thebasis for the removal of the children or to make reasonableprogress toward the return of the children within nine months afterthe adjudication of neglect (750 ILCS 50/1(D)(m) (West 1998)). An"unfitness" hearing was conducted in June 1999 at which respondentwas present and the following evidence was presented.

Linda Mase, a DCFS supervisor with a master's degree inclinical psychology, was respondent's caseworker from December 1997through October 1998. She had previously been employed as a mentalhealth specialist and crisis counselor. Mase testified that afterrespondent was arrested for disorderly conduct in December 1997,A.J. and M.J. were taken into protective custody. M.J. was placedin foster care and A.J. was initially placed with his naturalfather and then later placed with another relative. At the time ofthe hearing, M.J. was 3 years old and A.J. was 12 years old. According to Mase, at the time respondent was arrested she wasliving with the children in a homeless shelter. Yet Mase notedthat the children appeared clean and well fed. Mase testified thatshe met with respondent in the Winnebago County jail to discussservices that might be needed in order to return the children home. According to Mase, respondent's thought process was difficult tofollow. Respondent failed to stay focused on the conversation andjumped from one subject to the next.

As a result of the discussion, Mase recommended thatrespondent have a mental health assessment, to which respondentagreed. Mase prepared a written service plan with the goal toeventually return the children to respondent. The service planprovided for weekly supervised visitation and, in addition toobtaining the mental health assessment, recommended a drug andalcohol assessment because respondent admitted to prior drug useand tested positive for cocaine. The service plan additionallyrequired that respondent follow all court orders, attend courtdates, visit the children according to the visitation schedule, andlocate suitable housing. Finally, the service plan requiredrespondent to complete any services recommended pursuant to themental health and drug and alcohol assessments. Mase's testimony,for the most part, was identical to that offered at theadjudicatory hearing.

According to Mase, respondent initially cooperated with theservice plan. Respondent located suitable housing and attended allscheduled visitations. Respondent also obtained a mental healthassessment. However, after only a few weeks, respondent stoppedattending therapy and stopped taking her prescribed medication. Respondent never returned to therapy and never obtained a drug andalcohol assessment.

Mase testified that the case was subsequently transferred toLutheran Social Services and the permanency goal was changed fromreturning the children home to "substitute care pending courtdecision." Mase testified that the goal was changed becauserespondent was making very little progress toward the goal ofreturning the children home. Specifically, Mase cited respondent'sfailure to follow through with the alcohol and drug assessment andher failure to follow through with her mental health therapy. Masealso noted that respondent was generally combative every time shehad contact with DCFS or another agency.

Julie Melan, a child welfare specialist with Lutheran SocialServices, testified that she had been respondent's caseworker fromOctober 1998 through the time of the termination hearing. At thetime Melan took over the case from DCFS, the goal was substitutecare pending the termination of parental rights. According toMelan, at the time of the termination hearing respondent did nothave a permanent address. Respondent told Melan that she could bereached at the Rescue Mission. Melan never formally discussed theobjectives and goals set out in the service plans with respondentbut respondent was given copies of each service plan. According toMelan, respondent was aware of the requirements set out in theservice plan but had failed to follow through on any of them exceptvisitation with the children.

Melan further testified that she was concerned that thechildren's safety would be jeopardized if they were returned torespondent. Melan based her opinion on respondent's history ofunstable relationships with men. Melan also noted that respondentsaid she heard voices and heard her baby cry out at night eventhough the baby was not living with her. Respondent also toldMelan that a coffee table was possessed with the soul of her deadbaby. Melan further noted that respondent did not have stableemployment. According to Melan, the only services respondentparticipated in were the visitations with her children. Respondentnever addressed her mental health and drug and alcohol problemswith Melan while she was her caseworker.

After closing arguments, the trial court found that the Statehad presented clear and convincing evidence that respondent was anunfit parent. The trial court found that respondent failed tomaintain a reasonable degree of interest, concern, orresponsibility regarding the children's welfare in that she did notresolve her mental health and drug and alcohol issues and shefailed to make reasonable progress or reasonable efforts toward thereturn of the children within nine months of the dispositionalorder. However, the trial court further found that the Statefailed to prove that the children were continuously or repeatedlyneglected. The trial court determined after a best interesthearing that the termination of respondent's parental rights was inthe children's best interest. Respondent failed to appear at the"best interest" hearing, and the report submitted indicated thatshe could not be found. This appeal followed.

II. ANALYSIS

A. Appellate Jurisdiction Over the Challenge to the UnderlyingNeglect Proceedings

Respondent's first argument is that the trial court lackedjurisdiction over the termination proceedings because the Statefailed to meet its burden of proof in the underlying neglectproceedings. The State responds that this court lacks jurisdictionto consider this argument because respondent failed to perfect anappeal after the original dispositional order was entered. Weagree with the State and, for the following reasons, we dismissthat portion of respondent's appeal attacking the original neglectproceedings.

Initially, respondent appears to be arguing that, because thetrial court made errors in the introduction of evidence at theadjudicatory hearing, it lacked jurisdiction to make a findingnecessary to adjudicate the children neglected. Where a courtfails to proceed within rules of evidence or the strictures of astatute, the court does not lose its constitutionally conferredsubject matter jurisdiction. See In re C.S., 294 Ill. App. 3d 780,786 (1998). Rather, it proceeds in possible error subject toappellate review of its decisions. See C.S., 294 Ill. App. 3d at786.

Supreme Court Rule 660(b) provides that, except in delinquencycases, "[i]n all other proceedings under the Juvenile Court Act,appeals from final judgments shall be governed by the rulesapplicable to civil cases." 134 Ill. 2d R. 660(b). To properlyperfect an appeal in a civil case, a notice of appeal must be filedwithin 30 days after the entry of a final order (155 Ill. 2d R.303(a)), unless an extension of the 30-day limitation is grantedpursuant to Supreme Court Rule 303(d) (155 Ill. 2d R. 303(d)). Compliance with the rules governing the deadline for filing anotice of appeal is mandatory and jurisdictional. In re C.S., 294Ill. App. 3d at 787.

In general, subject to Supreme Court Rule 662(a) (134 Ill. 2dR. 662(a)), an adjudicatory order is not a final and appealableorder. In re Smith, 80 Ill. App. 3d 380, 381 (1980). Rather, injuvenile cases, the dispositional order generally is the finalorder from which an appeal properly lies. In re C.S., 294 Ill.App. 3d at 787.

In this case, respondent never filed a notice of appeal fromthe trial court's dispositional order. Furthermore, the notice ofappeal that respondent filed does not mention the dispositionalorder or any of the neglect proceedings. Therefore, appellatejurisdiction was never perfected with respect to the neglectproceedings. We dismiss that portion of this appeal challengingthe findings at the neglect proceedings.

B. Findings of Parental Unfitness

We now turn to respondent's second contention. Respondentargues that the trial court's findings of parental unfitness wereagainst the manifest weight of the evidence. For the followingreasons, we disagree.

The Juvenile Court Act of 1987 provides a two-stage mechanismwhereby parental rights may be involuntarily terminated. 705 ILCS405/2--29(2)(West 1998). Under this bifurcated procedure theremust be a threshold showing of parental unfitness based upon clearand convincing evidence and then a subsequent showing that the bestinterests of the child are served by severing parental rights. SeeIn re Adoption of Syck, 138 Ill. 2d 255, 277 (1990).

A trial court's determination of parental unfitness involvesfactual findings and credibility assessments that the trial courtis in the best position to make. In re A.B., 308 Ill. App. 3d 227,240 (1999). We therefore defer to the trial court's factualfindings, and we will not reverse the trial court unless the recordshows that the factual findings are against the manifest weight ofthe evidence. In re A.B., 308 Ill. App. 3d at 240. A factualfinding is against the manifest weight of the evidence only if theopposite conclusion is clearly evident or the determination isunreasonable, arbitrary, and not based on the evidence presented. Brazas v. Ramsey, 291 Ill. App. 3d 104, 109 (1997).

Parental unfitness is determined with reference to section1(D) of the Adoption Act (750 ILCS 50/1(D) (West 1996)). 705 ILCS405/2--29(2)(West 1996). Because parents have superior rightsagainst all others to raise their children (see In re T.D., 268Ill. App. 3d 239, 245 (1994)), before a trial court can adjudicatea parent unfit and terminate his or her parental rights, the Statemust prove by clear and convincing evidence at least one statutoryground of parental unfitness. In re A.B., 308 Ill. App. 3d at 240. This means that, on review, if there is sufficient evidence tosatisfy any one statutory ground we need not consider otherfindings of parental unfitness. In re A.B., 308 Ill. App. 3d at240.

Section 1(D)(b) of the Adoption Act provides that a person maybe declared an unfit parent for "[f]ailure to maintain a reasonabledegree of interest, concern or responsibility as to the child'swelfare." 750 ILCS 1(D)(b) (West 1998). In evaluating anallegation under section 1(D)(b), a trial court must focus on thereasonableness of the parent's efforts to show interest, concern,or responsibility and not necessarily on the success of thoseefforts. In re E.O., 311 Ill. App. 3d 720, 726-27 (2000). Thetrial court also must consider any circumstances that would havemade it difficult for the respondent to show interest, concern, orresponsibility for the well-being of the child. In re E.O., 311Ill. App. 3d at 727. However, the supreme court has recentlyimplied that a parent's failure to comply with the directives of aservice plan, i.e., failure to make reasonable efforts orreasonable progress toward the return of the children, is analogousto a parent's failure to maintain a reasonable degree of interest,concern, or responsibility as to the welfare of the children. SeeIn re D.L., 191 Ill. 2d 1, 11-12 (2000). The only difference isthat in determining reasonable efforts or reasonable progress thetrial court must limit its findings to a specific time frame,whereas in determining the degree of interest, concern, orresponsibility as to the welfare of the children no such time frameexists. See In re D.L., 191 Ill. 2d at 24 (Freeman, J., speciallyconcurring).

We believe, in this case, that the trial court's finding ofparental unfitness based upon respondent's failure to maintain areasonable degree of interest, concern, or responsibilityconcerning the children's welfare was not against the manifestweight of the evidence. The record shows that Linda Mase met withrespondent in the Winnebago County jail to discuss services thatwere needed in order for the children to be returned home. Basedon this discussion and on respondent's admitted drug use, a writtenservice plan was prepared and given to respondent. The serviceplan required weekly supervised visitation and, in addition toobtaining a mental health assessment, required a drug and alcoholassessment. The service plan further required respondent to followall court orders, attend court dates, and to locate suitablehousing. Finally, the service plan required respondent to completeany services recommended pursuant to the mental health and drug andalcohol assessments.

While the record shows that respondent consistently attendedscheduled visitations with her children, it also demonstrates afailure to comply with the remainder of the service plan despiteher knowing that the compliance was necessary in order for herchildren to be returned home. Except for obtaining an initialmental health evaluation, attending a few counseling sessions, andbriefly obtaining suitable housing, respondent failed to complywith the requirements of the service plan established by DCFS. Respondent never obtained a drug and alcohol assessment, did notfollow the recommendations of her mental health counselor, andstopped taking her prescribed medication soon after obtaining themental health assessment. Respondent also quit her job because hernew boyfriend had to know where she was at all times, andrespondent moved out of her apartment and back into a homelessshelter.

Based on these facts, the trial court found that respondent'sfailure to follow through with most of the requirements of theservice plan demonstrated her lack of interest, concern, orresponsibility toward her children. Respondent argues that simplybecause she consistently attended scheduled visitations with herchildren, her interest, concern, or responsibility toward herchildren was reasonable.

We disagree with respondent because a parent is not fit simplybecause she has demonstrated some interest in or affection for herchildren. In re E.O., 311 Ill. App. 3d at 727. The interest,concern, or responsibility must be objectively reasonable. In reE.O., 311 Ill. App. 3d at 727. Moreover, as we noted earlier, thefailure to comply with the directives of a service plan with thestated goal of returning a child home is tantamount to objectivelyunreasonable interest, concern, or responsibility as to the child'swelfare. See In re D.L., 191 Ill. 2d at 11-12, 24.

We hold that consistent attendance at scheduled visitationsalone does not demonstrate objectively reasonable interest,concern, or responsibility as to the children's welfare where aparent otherwise fails to substantially comply with the otherdirectives of the service plan in the face of knowing thatsubstantial compliance is necessary in order to have childrenreturned home. The trial court's finding under section 1(D)(b) wasnot against the manifest weight of the evidence. Having determinedthat there was sufficient evidence to satisfy one statutory ground,we need not address the other findings of parental unfitness by thetrial court.

IV. CONCLUSION

For the foregoing reasons, the judgment of the circuit courtof Winnebago County is affirmed.

Affirmed.

BOWMAN, P.J., and GALASSO, J., concur.