In re D.F.

Case Date: 11/22/2000
Court: 4th District Appellate
Docket No: 4-00-0479 Rel

NO. 4-00-0479
22 November 2000
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re:  D.F., T.K., and E.K., Minors,
THE PEOPLE OF THE STATE OF ILLINOIS,
                    Petitioner-Appellee,
                    v.
CHRISTOPHER FLEMING,
                    Respondent-Appellant.
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Appeal from
Circuit Court of
McLean County
No.  97JA90

Honorable
James E. Souk,
Judge Presiding.

JUSTICE STEIGMANN delivered the opinion of the court:

In December 1999, the State filed a petition to terminate the parental rights of respondent, Christopher Fleming,regarding his minor child, D.F. (born February 13, 1997). (TheState also filed a motion to terminate the parental rights ofrespondent's wife, Nancy Fleming, as to D.F. and two of herchildren from a prior marriage, T.K. and E.K.) Following a May2000 hearing on the State's petition, the trial court foundrespondent unfit. The court later determined that it would be inD.F.'s best interest to terminate respondent's parental rights.

Respondent appeals, arguing that (1) the trial court'sfinding of parental unfitness was against the manifest weight ofthe evidence, and (2) the court's decision to terminate hisparental rights was not in D.F.'s best interest. We vacate andremand with directions.

I. BACKGROUND

In December 1997, the State filed a petition for theadjudication of wardship of D.F., T.K., and E.K. In paragraph5(A) of its petition, the State alleged that the minors wereneglected, pursuant to section 2-3(1)(a) of the Juvenile CourtAct of 1987, in that they were not receiving the proper ornecessary support or remedial care necessary for their well-being(705 ILCS 405/2-3(1)(a) (West 1996)). Specifically, the Statealleged the following:

"[T]he family residence was found by theIllinois Department of Children and FamilyServices [(DCFS)] [i]nvestigator to befilthy. The floors were covered with catfeces, cat litter, and clutter to such adegree that the floors were impassible. Thebedroom doors were unable to be openedbecause of the clutter stacked against thedoors and wall, and old food was found alongthe walls in the kitchen area."

In paragraph 5(B), the State alleged that D.F. was living in anenvironment injurious to her welfare in that she had beendiagnosed with "Non-organic Failure to Thrive Syndrome." 705ILCS 405/2-3(1)(b) (West 1996).

In April 1998, respondent admitted and stipulated tothe allegations in paragraph 5(A) of the State's petition foradjudication of wardship. The State dismissed the allegationcontained in paragraph 5(B), and the trial court adjudicatedD.F., T.K., and E.K. neglected.

The dispositional hearing on the trial court'sadjudication of neglect took place on May 27, 1998, and August12, 1998. After the May 1998 hearing, the court entered an ordernaming DCFS temporary custodian of all three of the minors. However, D.F. was not removed from respondent's home until afterthe hearing concluded in August 1998. At the close of thathearing, the court entered a dispositional order that adjudicatedD.F. a ward of the court and appointed DCFS D.F.'s guardian withthe power to place her. 705 ILCS 405/2-27(1) (West 1998).

In December 1999, the State filed a petition toterminate respondent's parental rights pursuant to section1(D)(m) of the Adoption Act (Act) (750 ILCS 50/1(D)(m) (West1998)). In its May 2000 amended petition, the State alleged thatrespondent was unfit because (1) he failed to make reasonableefforts to correct the conditions that were the basis for theremoval of D.F. (750 ILCS 50/1(D)(m)(i) (West Supp. 1999)); (2)he failed to make reasonable progress toward the return of D.F.since the adjudication of neglect (750 ILCS 50/1(D)(m)(ii) (WestSupp. 1999)); and (3) he failed to make reasonable progresstoward D.F.'s return during any nine-month period after the endof the initial nine-month period following the adjudication ofneglect (750 ILCS 50/1(D)(m)(iii) (West Supp. 1999)).

Following a May 2000 fitness hearing, the trial courtfound that the State had proved respondent unfit based on thefirst and third grounds alleged. The court conducted adispositional hearing later that day and found that it was inD.F.'s best interest to terminate respondent's parental rights. This appeal followed.

II. ANALYSIS

A court can sever a natural parent's rights to his orher child only through proceedings that strictly comply with theAct. In re C.M., 305 Ill. App. 3d 154, 163, 711 N.E.2d 809, 815(1999). Because the trial court here considered evidence ofconduct that occurred outside of the statutorily prescribed timeperiods for each of the alleged grounds of unfitness, we vacateits order and remand for reconsideration of the evidence.

On January 1, 2000, an amended version of section1(D)(m) of the Act went into effect. See Pub. Act 91-373,