No. 3--04--0722

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

The trial court found the respondent father, Anthony C.,unfit to care for his minor child, A.C., because of (1)substantial neglect that was continuous and repeated (750 ILCS50/1(D)(d) (West 2002)) and (2) depravity (750 ILCS 50/1(D)(i)(West 2002)). The court also terminated the respondent'sparental rights regarding A.C. On appeal, the respondent arguesthat the trial court (1) violated his due process rights becauseof his telephonic participation in the fitness hearing; and (2)erred by terminating his parental rights. We affirm.

BACKGROUND

A.C. was born on October 20, 2001. On March 5, 2004, theState petitioned the trial court to terminate the respondent'sparental rights concerning A.C. In the petition, the Statealleged that the respondent was unfit because of (1) substantialneglect that was continuous and repeated, (2) depravity, and (3)a previous finding of unfitness regarding another child. Thedepravity allegation was based on the respondent's convictionsfor five felonies and six misdemeanors. On April 15, 2004, theState amended the petition to include a sixth felony conviction.

The trial court began the fitness hearing on June 17, 2004. At that time, the respondent was in the custody of the ScottCounty, Iowa, sheriff's department. The Illinois court hadarranged for the respondent to participate in the fitness hearingby speaker phone from the Iowa jail. The respondent's attorney,Dennis DePorter, was present in the courtroom. Before thehearing began, the judge cleared the courtroom and allowed therespondent and his attorney to confer privately by phone.

After the respondent's conference with his counsel, therespondent's attorney explained why the respondent wasincarcerated in Iowa. The respondent was eligible for a pretrialrelease program in Iowa. However, there was a warrant for therespondent's arrest in Illinois "for nonpayment of a periodicinstallment." The Iowa sheriff's department would not releasethe respondent because he had an outstanding arrest warrant inIllinois.

The respondent's attorney then objected to the respondent'sparticipation in the hearing by telephone. The attorneyrequested a continuance so that the respondent could attend thehearing in person.

The State objected to a continuance. During the State'sobjection, the following exchange took place among the assistantState's Attorney, the respondent, and the court:

"[ASSISTANT STATE'S ATTORNEY]: *** I believe thatit's in [A.C.'s] interests that this hearing proceedtoday.

[RESPONDENT]: Hello.

THE COURT: Yes.

[RESPONDENT]: Okay. The speaker cut out.

THE COURT: The motion to continue, you know, it isa problem when you do these hearings by telephone and Irecognize that. But the Illinois Appellate Court hasgiven this as an option when we have somebody who is incustody and we can't secure their attendance in court,and that's the situation we have right now."

The trial court then denied the respondent's request for acontinuance.

Before the parties presented evidence, the trial judge toldthe respondent, "if you have any problem hearing what's beingsaid[,] interrupt so we know you can't hear it." The judge alsoassured the respondent that the court periodically would allowhim to confer with his attorney privately by phone.

The assistant State's Attorney offered A.C.'s birthcertificate as evidence. The respondent then said that he couldnot hear what was being said. The judge explained that the Statehad offered A.C.'s birth certificate. The respondent replied,"All right."

The assistant State's Attorney next tendered copies of aseries of the respondent's convictions that began in 1993. During the discussion of State's exhibit five, the respondentsaid, "I can't hear." The judge explained, "No one is sayinganything right now. I'm just looking at the document." Then,the respondent and the judge discussed the conviction in exhibitfive.

The assistant State's Attorney submitted more copies of therespondent's convictions. The series of convictions ended withState's exhibit 14, for which he had been sentenced on March 15,2004.

Next, the assistant State's Attorney called Kathie McAdamsto testify. Before McAdams began her testimony, the judge toldthe respondent, "if you have any trouble hearing the witness[,]be sure you speak up so we know to make sure you hear thetestimony."

McAdams explained that she had been the Catholic Charities'(CC) caseworker for A.C. since the child's birth in 2001. Atthat point in the proceedings, the respondent said, "I can'thear." The judge then said, "Okay. Speak up, Miss McAdams." The caseworker then resumed her testimony.

McAdams said that the respondent had visited with A.C. atthe respondent's parents' home. She stated that the last visithad occurred on November 19, 2003. The assistant State'sAttorney asked McAdams, "Why did visitation stop at that time?" McAdams replied, "That was the last contact we had with himbefore he went into jail."

The respondent then said, "I can't hear." Attorney DePortersaid the following to the respondent:

"Sometimes there's not anything being said, so wehonestly I don't know how to say that. There arepauses and so if you can't hear us just say so. But ifwe don't respond that might be because the attorney orthe witness or someone is just thinking and notactually saying anything. Okay?"

The respondent replied, "Okay."

McAdams resumed her testimony by saying that the respondenthad been "in and out" of jail several times since November 2003. She said that prior to Christmas 2003 the respondent asked tovisit with A.C. on Christmas day, but later he cancelled thatvisit. CC had been notified that the respondent was releasedfrom custody in March 2004. However, the respondent did notcontact CC to reestablish visitation with A.C. after his release.

During cross-examination, McAdams said that she had observedapproximately six visits between the respondent and A.C. Shestated that those visits began in September or October 2003, andended after the visit on November 19. McAdams submitted that therespondent interacted appropriately with his daughter during thevisits. She contended that sometimes A.C. got along well withher father, and at other times A.C. did not want to interact withhim. McAdams said that the visits took place twice a week duringthis period.

The respondent's attorney asked McAdams if the respondentvisited with A.C. after November 19. McAdams stated, "We hadbeen told at one point that the mother had taken her to jail." Again, the respondent said, "I can't hear." McAdams reiterated,"We had been told at one time that the mother had taken [A.C.] togo see him when he was incarcerated."

The guardian ad litem cross-examined McAdams. Therespondent did not mention that he could not hear any of thistestimony. The assistant State's Attorney then said that theState would not present any more witnesses.

Next, the trial judge again cleared the courtroom so thatthe respondent could confer with his lawyer privately by phone. After this conference, attorney DePorter called the respondent asa witness. The respondent and his attorney discussed therespondent's criminal record. Then, they began to review therespondent's visitation with A.C. However, during the discussionconcerning visitation, the telephone connection with Iowa waslost and reestablished four times.

After the connection was broken a fifth time, the trialjudge spoke directly with the respondent on the phone's hand set. The judge told the respondent that he was recalling two warrantsfor the respondent's arrest so that the respondent could attendthe remainder of the fitness hearing in person. The judgeordered a continuation of the proceedings and again allowed therespondent to confer with his attorney privately by phone.

The trial court held the continuation of the fitness hearingon July 6, 2004. The respondent, however, was not present. TheState had served the respondent with notice of the continuationon June 21, 2004. There was a new warrant for the respondent'sarrest for acts he allegedly committed on June 26, 2004, in RockIsland County.

Attorney DePorter stated that he did not know where therespondent was and asked for another continuance. The judgeexpressed doubt that the respondent would appear even if thecontinuance was granted. The court denied the request foranother continuance. Attorney DePorter said that he did not haveother evidence to present on the respondent's behalf.

The trial court found the respondent to be unfit because therespondent had exhibited substantial neglect of A.C. that wascontinuous and repeated. The judge stated that this finding wasbased on the respondent's repeated incarceration, which had ledto the respondent's failure to provide support or an appropriatehome for A.C. The court also found the respondent unfit on thebasis of depravity.

The best interest hearing was conducted on August 17, 2004. The respondent was present at this hearing. The court consideredthe best interest report that was prepared by McAdams for CC. Inthe report, McAdams stated that A.C. had been placed in fostercare on January 6, 2002. Initially, she was placed with licensedfoster parents. On September 25, 2002, A.C. and her half-siblings were moved into the home of the half-siblings' paternalgrandparents. These foster parents had expressed an interest inproviding subsidized guardianship for A.C.

According to the report, the foster parents "have loved andcared for [A.C.] as if she was their own grandchild since thebeginning." McAdams said that A.C. was attached to her fosterparents "and has referred to them as 'mom and pop' sincebeginning to speak." The foster parents provided A.C. and hersiblings with "structure, security and predictability." Thefoster parents had accepted A.C. into their extended family. A.C. had become emotionally attached to her half-siblings. Inthe report, CC recommended (1) terminating the respondent'sparental rights to A.C., and (2) guardianship for A.C. with thefoster parents.

McAdams testified at the best interest hearing. She statedthat A.C. had adjusted to living with the foster parents andconsidered them "pretty much as her parents." McAdams submittedthat A.C. was "very accepted" as a member of the foster parents'family. McAdams said that CC recommended terminating therespondent's parental rights because of his history of violence.

On cross-examination, McAdams stated that the respondent hadfinished a parenting course. She said that he had completed ananger management course, but CC had not received verification ofits completion because the respondent failed to pay a bill forthe course. McAdams reiterated that the respondent had notvisited with A.C. since November 2003.

The court then questioned McAdams. Most of the court'squestions concerned A.C.'s relationship with her foster parentsand half-siblings. McAdams' answers were consistent with herstatements in the best interest report.

The assistant State's Attorney then called the respondent asa witness. The respondent stated that he currently was in jailfor alleged home invasion and aggravated battery.

The respondent also testified on his own behalf. Herecalled his visits with A.C. The respondent asserted that hehad completed an anger management course, but could not pay thefinal bill of $80. He also had completed a parenting course. The respondent asked the court not to terminate his parentalrights to A.C.

At the conclusion of the hearing, the judge stated that therespondent had failed to care for A.C. because of his repeatedincarceration. A.C. had lived most of her life with the fosterparents. She had bonded with her foster parents and her half-siblings. The trial court found that it was in A.C.'s bestinterest to terminate the respondent's parental rights. Therespondent appeals.

ANALYSIS

I. Due Process

The respondent contends that the trial court violated hisdue process rights during the fitness hearing by (1) conductingthe proceedings by phone; and (2) conducting the proceedings witha faulty phone system. The respondent argues, therefore, thatthe trial court erred in finding him unfit.

Under the United States and Illinois Constitutions, a personcannot be deprived of a liberty interest without due process oflaw. U.S. Const., amend. XIV; Ill. Const. 1970, art. I,