IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The respondent-mother, Teresa R. (Teresa), appeals from theorders of the trial court finding her to be an unfit parent andsubsequently terminating her parental rights to four-year-oldC.S. and ordering subsidized guardianship for fifteen-year-oldA.V. For the following reasons, we find that the State'sevidence failed to establish that Teresa was an unfit parent as amatter of law. Therefore, we reverse the trial court's orders: (1) finding Teresa to be an unfit parent; (2) terminating herparental rights to C.S.; and (3) ordering subsidized guardianshipfor A.V.

Two of Teresa's children are the subject of this appeal. Andrew V. (A.V.) was born on June 2, 1987. Cheyenne S. (C.S.)was born on May 12, 1998. In January of 1998, Teresa picked upA.V. after a weekend visit from his father's home and observedmarks and bruises on him. A.V. told Teresa that his father,Andrew S. (Andrew), had caused the bruises. Teresa then calledthe Department of Children and Family Services' (DCFS) hotline. At that time, Teresa was five months pregnant with C.S. C.S.'sbiological father is James S. (James).

On March 30, 1998, the State filed a petition alleging thatA.V. was both abused and neglected.⁽¹⁾ Counts I, II, and III ofthe petition alleged that Andrew abused and neglected A.V. See705 ILCS 405/2--3(2)(ii), 2--3(1)(b), 2--3(1)(a) (West 1998). Count IV of the petition alleged that Teresa neglected A.V.because she did not provide proper care or support for him. See705 ILCS 405/2--3--1(a) (West 1998).

On August 7, 1998, the court entered an adjudication orderstating that A.V.'s father did not appear in court and wastherefore found guilty of counts I, II, and III in the State'spetition by default. The order noted that Teresa admitted thecounts directed against A.V.'s father. However, Theresa did notadmit the allegations in Count IV directed against her and thecourt made no finding on that count. Finally, the court foundA.V. to be abused and neglected and set a date for adispositional hearing.

The dispositional hearing was held on October 23, 1998. Atthat time, Teresa had given birth to C.S. and was married toC.S.'s father, James. However, neither C.S. nor James were madeparties to these proceedings.

DCFS prepared a dispositional report for the court. In thereport, it referred to James' prior involvement with DCFS foralleged sexual exploitation, sexual molestation, burns byneglect, medical neglect, and lack of supervision. DCFS gave nodetails concerning these prior involvements. Instead, it notedthat James had denied the allegations and taken a polygraph testthat had proved to be inconclusive. It also noted that nocriminal charges had been filed against James.

The trial court's dispositional order made A.V. a ward ofthe court with guardianship and custody of A.V. remaining withTeresa. In addition, although Teresa was never found to haveneglected or abused A.V., she was ordered by the court to get apsychological evaluation, complete counseling, allow unannouncedvisits at her home by DCFS, allow A.V. to have no contact withJames and to obtain an order of protection prohibiting contact"between minors and [James] with help of DCFS."⁽²⁾

On December 4, 1998, the State filed a second petitionalleging neglect. This petition was directed toward Teresa andJames and involved both A.V. and C.S. In the petition the Statealleged a single count of neglect based upon an injuriousenvironment. See 705 ILCS 405/2--3--(1)(b) (West 1998). Specifically, the State alleged that on December 1, 1998, Teresaallowed contact between C.S. and James in violation of the orderof protection filed on November 13, 1998. As a result of thisincident, DCFS removed the children and placed them in temporaryfoster care.

On June 17, 1999, the State filed an amended neglectpetition. Count I repeated the allegation in the earlierpetition that Teresa neglected A.V. and C.S. when she allowedcontact between C.S. and James in violation of the order ofprotection. Count II alleged that Teresa neglected A.V. and C.S.based upon her long standing substance abuse problems. Count IIIalleged that the children were neglected based on Teresa'sfailure to protect herself from numerous abusive relationshipswith men.

On July 1, 1999, the trial court held a hearing on theState's amended neglect petition. At the hearing, the Statemoved to dismiss a portion of the allegations in count II. Thetrial court then dismissed counts II and III in their entiretyfor lack of proof.

Following dismissal of counts II and III, the trial courtproceeded to hear evidence with respect to count I. Teresatestified that she had C.S. in her vehicle with her when shepicked up her husband, James, at the airport on December 1, 1998. Teresa said she was driving him to her mother's home where Jameswas then living.

Teresa testified that prior to obtaining the order ofprotection she met with two DCFS representatives, Tom Ivey andJean Tifft, who asked her to sign a paper agreeing that she wouldonly allow supervised visitation between her husband and thechildren. Teresa said she was told that the supervisor had to bea person over the age of 18. However, Teresa was never told thatshe could not be the supervising adult. Since the order ofprotection stated that visitation between James and C.S. had tobe supervised by DCFS, and DCFS representatives had told her thatthe visitation with C.S. was authorized if the supervisor wasover the age of 18, Teresa believed that the order of protectionwas not violated if James saw C.S. in the presence of anotheradult over the age of 18.

Teresa said that she did not want the order of protectionwhich was then in place against her husband. She only obtainedthe order because she was ordered to do so. She abided by theterms of the order and never allowed contact between A.V. andJames, and believed that supervised visits with C.S., as approvedby DCFS, were still permitted.

On July 6, 1999, the trial court filed an order finding count I of the petition against Teresa proved. The trial courtfound no need for a further dispositional hearing and reaffirmedthe previous dispositional order of October 23, 1998. The trialcourt then returned A.V. and C.S. to Theresa's custody and sheretained guardianship of them.

On July 19, 1999, the trial court entered an order makingC.S. a ward of the court for the first time. Teresa was grantedguardianship and custody of A.V. and C.S.

This case then proceeded through various stages ofpermanency reviews. The first reviews resulted in favorablereports of the children's relationship with Teresa and theirindividual progress. However, the reviews eventually resulted inincreasingly negative reports of Teresa's lack of cooperationwith DCFS. At a February 8, 2001, permanency review, DCFSrequested and received an order transferring guardianship fromTeresa to DCFS. However, Teresa continued to have custody of thechildren.

On September 3, 2001, DCFS received a report that James wasagain living with Teresa and the children. Three days later,DCFS removed both children from Teresa's custody.

On September 6, 2001, the State filed a petition allegingthat Teresa and both the children's fathers were unfit. In thepetition the State requested that Teresa and the fathers'parental rights be terminated to A.V. and C.S.

In count I of the petition the State alleged that Teresa wasan unfit person because she had failed to make reasonable effortsto correct the conditions that were the basis for the removal ofthe children from her care within nine months after theadjudication of neglect. See 750 ILCS 50/1(D)(m) (West 2000). Count II of the petition alleged that Teresa was an unfit personfor failure to make reasonable progress toward the return of theminors to her care within nine months after the adjudication ofneglect. See 750 ILCS 50/1(D)(m) (West 2000). The remainingcounts in the petition were directed toward the children'sbiological fathers.

The allegations in the petition do not state whether theState is referring to the first adjudication of neglect, thesecond, or both.

On June 14, 2002, the fitness hearing began. DCFScaseworker Jean Tifft testified about the various ways thatTeresa failed to comply with the DCFS' service plans. Hertestimony was supported by two other witnesses who testifiedabout Teresa's missed appointments for counseling.

At the conclusion of the evidence the trial court ruled thatthe state had proven that Teresa had failed to make reasonableefforts or reasonable progress to correct the conditions whichwere the basis for the removal of the children within nine monthsafter their adjudication of neglect. See 750 ILCS 50/1(D)(m)(West 2000).

The best interest hearing began on October 10, 2002. DCFSsubmitted a report for the trial court. In the report, DCFSsummarized the children's foster placements and stated thatC.S.'s foster care family was committed to adopting her. Thereport also noted Teresa's strong bond with her children and thatshe had been observed to be loving, caring and affectionate. However, DCFS concluded that Teresa failed to address herproblems and recommended that her parental rights be terminated

Karen Green, a visitation facilitator, testified that C.S.said she loved her foster father but not her foster mother. C.S.told Green that she wanted to live with her mother. Greenbelieved that C.S. would be better off with her foster parents. However, Green acknowledged that she had not spent any time inthe foster home and knew nothing about its cleanliness or safety.

Teresa testified that she tried to show both childrenattention during her visits and that she spoke with A.V. on thetelephone at least three times per week. Teresa said she wantedboth children to return home to her.

After taking the matter under advisement, the trial courtterminated Teresa's parental rights to C.S and it orderedsubsidized guardianship for A.V.

On appeal, Teresa first argues that the State's evidencefailed to establish a prima facie case of her unfitness as amatter of law. In the alternative, she contends that the Statefailed to prove by clear and convincing evidence that she was anunfit parent.

Teresa raises numerous points of error on the part of theState which she claims caused her to be unconstitutionally deniedof her parental rights. Specifically, she claims: (1) thefinding of unfitness based on her failure to make reasonableprogress or efforts toward the return of her children wasimproper because she retained both custody and guardianship ofher children during the applicable nine-month statutory period(see 705 ILCS 405/1(D)(m) (West 2000)); (2) it cannot bedetermined from the State's petition to terminate her parentalrights whether the State was proceeding on the first or thesecond adjudication of neglect; (3) after a hearing on the firstneglect petition the trial court only found that A.V.'s father,Andrew, not Teresa, neglected and abused A.V.; (4) C.S. was notthe subject of the first neglect petition; (5) although thesecond adjudication of neglect was directed toward Teresa and thetrial court found that she had neglected A.V. and C.S., the nine-month review period did not run because the trial courtnever held a dispositional hearing; and (6) the unfulfilledconditions which were the basis for the State's petition toterminate her parental rights were completely unrelated to theremoval of her children.

A natural parent's right to raise her child is a basicfundamental liberty interest and, thus, a proceeding toinvoluntarily terminate a parent's rights is a drastic measure. In re D.C., 209 Ill. 2d 287, 807 N.E.2d 472 (2004). A trialcourt's authority to involuntarily terminate parental rights andto appoint a guardian with the right to consent to adoption isstatutorily derived and the scope of the court's authority isdefined by the language of the Juvenile Court Act of 1987(Juvenile Court Act) (705 ILCS 405/1--1 et seq. (West 2000)) andthe Illinois Adoption Act (Adoption Act) (750 ILCS 50/0.01 etseq. (West 2000)).

Pursuant to sections 2--13 and 2--29 of the Juvenile CourtAct, termination proceedings may be initiated by the filing of apetition brought "in the interest of" and on behalf of an abused,neglected or dependent minor at any time after a dispositionalorder has been entered pursuant to section 2--22 of the JuvenileCourt Act. 705 ILCS 405/2--13, 2--29, 2--22 (West 2000).

When a termination petition has been filed, the trial courtmust first decide whether any of the statutory grounds forunfitness alleged in the petition has been proven by clear andconvincing evidence. In re D.C., 209 Ill. 2d 287, 807 N.E.2d 472(2004). If the court finds that at least one of the severaldiscrete grounds for finding a person "unfit", as set forth insection 1(D) of the Adoption Act, has been proven by clear andconvincing evidence, the court may then consider whethertermination of parental rights is in the best interest of thechild. In re D.C., 209 Ill. 2d at 296, 807 N.E.2d at 476-77. We will first address Teresa's argument that she could nothave been found unfit for failure to make reasonable progress orreasonable efforts toward the return of her children within ninemonths of their adjudication of neglect because she did notrelinquish custody or guardianship of them during that timeperiod. See 750 ILCS 50/1(D)(m) (West 2000).

Section 1(D)(m) of the Adoption Act contains three distinctgrounds for finding a parent unfit. See 750 ILCS 50/1(D)(m)(West 2000). The three possible grounds are the failure: (1) to make reasonable efforts to correct the conditions thatwere the basis for the removal of the child from the parent; or(2) to make reasonable progress toward the return of the child tothe parent within nine months after an adjudication of the childas abused, neglected or dependent; or (3) to make reasonableprogress toward the return of the child during any nine-monthperiod after the end of the initial nine-month period followingthe adjudication of the child as abused, neglected, or dependent. 750 ILCS 50/1(D)(m) (West 2000).

We are not persuaded by Teresa's argument that the trialcourt's finding of unfitness based on her failure to makereasonable progress or efforts toward the return of her childrenwas improper because she retained both custody and guardianshipof her children during the applicable nine-month statutory periodSee 705 ILCS 405/1(D)(m) (West 2000). The Adoption Act does notrequire that the parent lose guardianship or custody of herchildren for the statutory period to begin to toll. See 750 ILCS50/1(D)(m) (West 2000). Instead, the statutory nine-month periodbegins to toll when the trial court adjudicates the childrenabused, neglected or dependent. In re D.F., 208 Ill. 2d 223, 802N.E.2d 800 (2003).

Since the nine-month period statutory period begins to runafter the date of adjudication, we also reject Teresa'scontention that the nine-month statutory period did not begin torun after the second adjudication of neglect because nodispositional hearing was held.

A review of Teresa's remaining claims of error, however,indicate that the State's evidence failed to establish that shewas an unfit parent as a matter of law. As Teresa claims, manyerrors below caused her to be unconstitutionally denied of herparental rights to A.V. and C.S.

First, the State did not make it clear in its petition toterminate Teresa's parental rights whether it was basing itstermination petition on the first or the second adjudication ofneglect. After a careful review of the record, we find that, asa matter of law, both adjudications were inadequate to serve as abasis for the State's termination petition against Teresa.

The first adjudication of neglect could not be the properbasis for the termination petition because the trial court'sfindings of abuse and neglect on the first petition were onlydirected toward A.V.'s father, Andrew, and not Teresa. TheJuvenile Court Act authorizes the State to file a terminationpetition after a minor has been found by the court to be abusedor neglected and the court has entered a dispositional order. 705 ILCS 405/2--13, 2--29 (West 2000). Although the parties havecited no case law on point, common sense dictates, however, thatthe State cannot file a termination petition alleging that aparent is unfit before the parent that is the subject of thetermination petition has been found to have abused or neglectedthe child in question.

Likewise, the second adjudication of neglect was not aproper basis for the State's termination petition. After ahearing on the second petition, the trial court found that Teresahad neglected the children when she picked up James at theairport with C.S. in her vehicle. That trip to the airportviolated the terms of the order of protection that Teresa hadfiled against James in November of 1998. However, Teresa onlyfiled the order of protection because she had been ordered to doso after the trial court found that Andrew abused and neglectedA.V.

Without a finding that Teresa had neglected A.V., however,the trial court had no authority to order Teresa to file such anorder. Therefore, the violation of that order could not, as amatter of law, be the basis for the finding that Teresa neglectedher children.

Since neither adjudication of neglect could serve as aproper basis for the termination petition, we find that theState's evidence failed to prove that Teresa was an unfit parentas a matter of law. The fact that Teresa may have failed tocomply with DCFS' service plans is irrelevant since she shouldnot have been subject to such plans in the first place.

We find that the trial court erred in finding that Teresawas an unfit parent to A.V. and C.S. Therefore, we reverse thetrial court's order of unfitness as well as its ordersterminating Theresa's parental rights to C.S. and orderingsubsidized guardianship for A.V.

The judgment of the circuit court of Tazewell County isreversed.

Reversed.

BARRY, J., concurs.

PRESIDING JUSTICE HOLDRIDGE, specially concurring:

I concur in the result of Justice Slater's order and agreewith most of his analysis. My only point of disagreement stemsfrom the first claim addressed in the analysis section. JusticeSlater observes that "[t]he Adoption Act does not require thatthe parent lose guardianship or custody of her children for thestatutory period to begin to toll." Although this statement istechnically correct, the tolling of the statutory period is onlyrelevant if the statute itself applies to the allegedly-unfitparent. By its plain language, the statute only applies whenthere has been a "removal of the child from the parent"(reasonable efforts), and a failure to sufficiently work toward "the return of the child to the parent" (reasonable progress). 750 ILCS 50/1(D)(m) (West 2000). These provisions are inappositeunder the instant facts because, during the relevant period,Teresa had both custody and guardianship of the minors. Theresimply was no prospect of "returning" the minors to her becausethe minors were never "removed" in the first place.

Thus, I would reverse on this basis as well.

1. At that time, Teresa was still pregnant with C.S. Therefore, C.S. was not named in the State's petition.

2. For purposes of this appeal we will assume the trialcourt's reference to "minors" included C.S. even though she wasnot yet made a party to these proceedings.