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In re Janine M.A.
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0139 Rel
Case Date: 09/11/2003

NO. 4-03-0139

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: JANINE M.A., CHEYENNE M.A., and 
DANIEL M.A., Minors, 
THE PEOPLE OF THE STATE OF ILLINOIS,
                    Petitioner-Appellee, 
                    v.
JEANETTE ANDERSON,
                    Respondent-Appellant,
                    and
WELDON P. ANDERSON,
                    Respondent.
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Appeal from
Circuit Court of
Mason County
Nos. 00JA10
         00JA8
         00JA9

Honorable
Thomas L. Brownfield,
Judge Presiding.


JUSTICE KNECHT delivered the opinion of the court:

Respondent, Jeanette Anderson, appeals the February2003 order of the circuit court of Mason County finding her to bean unfit parent and terminating her parental rights in Janine A.,Daniel A., and Cheyenne A. (born February 15, 1991, August 15,1989, and January 30, 1996, respectively). Respondent raises twoarguments in this appeal. She argues (1) the trial court'sfindings of unfitness were erroneous as a matter of law becausethe State's petitions to terminate parental rights were notsufficiently specific where they did not comply with a statutorynotice requirement to apprise respondent she could "permanently"lose her parental rights (705 ILCS 405/2-13(4) (West 2002)); and(2) the trial court's determinations she was unfit and it was inthe children's best interests her parental rights be terminatedare against the manifest weight of the evidence. We affirm.

I. BACKGROUND

In August 2000, the State filed a petition for adjudication of wardship for each minor, alleging each wasneglected because he or she resided in an injurious environmentbecause there was a long history of domestic violence within thehome and their father, Weldon P. Anderson, had twisted DanielA.'s arm behind his back and threatened to burn the house downwith Daniel A. inside if he testified against Weldon in a pendingcourt matter.

In September 2000, respondent stipulated to the allegations in the petition. In November 2000, the trial court conducted a dispositional hearing. The parties agreed to thedispositional order of the trial court. Under the order, thechildren were found to be neglected and were made wards of thecourt while continuing to live with respondent. Weldon was notto reside with the family and was only to have supervised visitswith the children. Respondent was to comply with IllinoisDepartment of Children and Family Services (DCFS) recommendationsand complete any counseling requirements. The children werelater removed from respondent's care on March 7, 2001, and placedin foster homes.

In May 2002, the State filed three identical petitionsto terminate parental rights, one for each minor. A hearing onthe State's petitions was begun on September 11, 2002, andcompleted on November 18, 2002. At the close of evidence, thetrial court found the State had proved by clear and convincingevidence respondent had failed to protect the minor children fromconditions within their environment that were injurious to theirwelfare and had failed to make reasonable progress toward thereturn of the minor children to their home within nine months ofthe adjudication of neglect.

Having found respondent unfit, the court held a hearingon the best interests of the children on February 5, 2003. Onthat date, respondent's parental rights were terminated as to allthree children. Respondent filed a notice of appeal on February14, 2003, and on March 12, 2003, the trial court granted hermotion to stay adoption of the children pending this appeal. OnMay 22, 2003, respondent father, Weldon P. Anderson, was dismissed as a party to the appeal after his attorney failed to filea separate brief.

II. ANALYSIS

A. Alleged Pleading Defect Relating to "Permanent"
Termination of Parental Rights

Respondent first contends the trial court's finding ofunfitness was erroneous because the State's petition to terminateher parental rights was defective on its face in that it failedto apprise her her parental rights could be "permanently" terminated. 705 ILCS 405/2-13(4) (West 2002).

Respondent did not raise this issue at trial. Generally, pleading defects must be raised at trial so they may beremedied; otherwise they are forfeited. In re Dragoo, 96 Ill.App. 3d 1104, 1107, 422 N.E.2d 263, 265 (1981). We choose,however, to address the argument on the merits. The forfeiturerule is a limitation on the parties and not the jurisdiction ofthe courts. Committee for Educational Rights v. Edgar, 174 Ill.2d 1, 11, 672 N.E.2d 1178, 1183 (1996). Further, a reviewingcourt may consider an issue not raised in the trial court if theissue is one of law and is fully briefed by the parties. Committee for Educational Rights, 174 Ill. 2d at 11, 672 N.E.2d at1183.

When the sufficiency of pleadings is challenged, it isan issue of law and is reviewed de novo. U.S. Fire Insurance Co.v. Zurich Insurance Co., 329 Ill. App. 3d 987, 1002, 768 N.E.2d288, 299 (2002).

Section 2-13(4) of the Juvenile Court Act of 1987 (Act)provides:

"(4) If termination of parental rightsand appointment of a guardian of the personwith power to consent to adoption of theminor under [s]ection 2-29 is sought, thepetition shall so state. If the petitionincludes this request, the prayer for reliefshall clearly and obviously state that theparents could permanently lose their rightsas a parent at this hearing.

In addition to the foregoing, the petitioner, by motion, may request the termination of parental rights and appointment of aguardian of the person with power to consentto adoption of the minor under [s]ection 2-29at any time after the entry of adispositional order under [s]ection 2-22."  705 ILCS 405/2-13(4) (West 2002).

In each of the State's May 2002 petitions to terminateparental rights, the prayer for relief requested that the parental rights of both Weldon and respondent "be terminated" as toeach of the three minors, and that the guardianship administratorof DCFS "be authorized and empowered *** to consent to suchadoption of said minor without further notice to or consent bythe parents of the minor." The State's May 2002 petitions makeno explicit request for "permanent" termination of respondent'sparental rights.

Respondent argues the State's failure to comply withthe Act's requirement that its petition "clearly and obviously"state respondent could "permanently" lose her rights as a parentrenders the pleadings defective. She relies on In re Andrea D.,336 Ill. App. 3d 335, 339, 783 N.E.2d 681, 684-85 (2003), inwhich the court found the provision of section 2-13(4) of the Actrequiring a petition to terminate parental rights must containclear and obvious notice to parents they could "permanently" losetheir parental rights at the hearing on the petition requires thenotice necessarily use the word "permanently." However, theSupreme Court of Illinois recently directed the Second Districtto vacate its judgment and reconsider. In re Andrea D., 204 Ill.2d 655, 789 N.E.2d 303 (2003) (nonprecedential supervisory orderdirecting Second District to vacate its judgment and reconsider). The Second District has now done so and affirmed the terminationof the father's parental rights. That decision is consistentwith our decision in In re J.R., No. 4-02-0973 (July 30, 2003),___ Ill. App. 3d ___, ___ N.E.2d ___, and our decision in thiscase.

Although the State's May 2002 petitions to terminaterespondent's parental rights does not state her parental rightsmay be "permanently" lost by explicit use of the word "permanently," we hold the State's petition was not defective as amatter of law.

In reviewing the meaning and applicability of thenotice requirement found in section 2-13(4) of the Act (705 ILCS405/2-13(4) (West 2002)), we look not only at subsection (4)itself, but also at the remaining relevant subsections of section2-13 and of related sections of the Act. Section 2-13 of the Actprovides in pertinent part:

"(1) Any adult person, any agency[,] orassociation by its representative may file,or the court on its own motion, consistentwith the health, safety[,] and best interestsof the minor may direct the filing throughthe State's Attorney of a petition in respectof a minor under this Act. The petition andall subsequent court documents shall be entitled 'In the interest of . . . , a minor'.

(2) The petition shall be verified butthe statements may be made upon information and belief. It shall allege that theminor is abused, neglected, or dependent,with citations to the appropriate provisionsof this Act ***.

(3) The petition must allege that it is in the best interests of the minor and of the public that he be adjudged a ward of the court and may pray generally for relief available under this Act. The petition need not specify any proposed disposition following adjudication of wardship.

(4) If termination of parental rightsand appointment of a guardian of the personwith power to consent to adoption of theminor under [s]ection 2-29 is sought, thepetition shall so state. If the petitionincludes this request, the prayer for reliefshall clearly and obviously state that theparents could permanently lose their rightsas a parent at this hearing.

In addition to the foregoing, the petitioner, by motion, may request the termination of parental rights and appointment of aguardian of the person with power to consentto adoption of the minor under [s]ection 2-29at any time after the entry of a disposi-tional order under [s]ection 2-22." 705 ILCS405/2-13 (West 2002).

Section 2-21 of the Act states in part:

"If the court finds that the minor isabused, neglected, or dependent, the courtshall then determine and put in writing thefactual basis supporting that determination,and specify, to the extent possible, the actsor omissions or both of each parent, guardian, or legal custodian that form the basisof the court's findings.

* * *

(5) The court may terminate the parentalrights of a parent at the initialdispositional hearing if all of the followingconditions are met:

(i) the original or amendedpetition contains a request fortermination of parental rights andappointment of a guardian withpower to consent to adoption[.]"  705 ILCS 405/2-21 (West 2002).

Review of subsection (4) of section 2-13 of the Act inconjunction with the other relevant subsections of section 2-13as well as section 2-21 leads us to the conclusion that thenotice provision of section 2-13(4) does not apply to after-filedpetitions to terminate parental rights but only to originalpetitions for adjudication of abuse or neglect filed in respectto a minor. The second paragraph of section 2-13(4) and section2-21(5)(i) of the Act (705 ILCS 405/2-13(4), 2-21(5)(i) (West2002)) indicate an original petition filed in respect to a minormay or may not contain a request to terminate parental rights. If it does not contain such a request, it "need not specify anyproposed disposition following adjudication of wardship" becauseit may just request a minor be adjudged a ward of the court andmay pray generally for relief available under the Act. 705 ILCS405/2-13(3) (West 2002). However, if an original petition seeksto terminate parental rights, "the prayer for relief shallclearly and obviously state that the parents could permanentlylose their rights as a parent at this hearing." 705 ILCS 405/2-13(4) (West 2002).

The State's May 2002 petitions for termination ofparental rights filed in this case were supplemental petitionsfiled over a year and a half after the original petitions foradjudication of wardship. The notice requirement of section 2-13(4) does not apply to them.

Further, the language used in the State's petitions wassufficient to provide notice to respondent that the State soughtto permanently terminate her parental rights. Use of the word"permanently" is not necessary to provide adequate notice of theState's intentions. Notice was provided respondent by theState's prayer that respondent's parental rights be "terminated"(commonly defined as "brought to an end" (see Merriam-Webster'sCollegiate Dictionary 1212 (10th ed. 2000)) and the guardianshipadministrator of DCFS be authorized to consent to the adoption ofthe minors without further notice to or the consent of respondent.

Finally, we note respondent in this case was fullyadmonished of the consequences of the filing of the State'spetitions. At the first appearance hearing following the filingof the petitions for termination of parental rights, the trialcourt admonished respondent as follows:

"If the State were able to prove [these petitions] your parental rights may very well beterminated and these children may be placedfor adoption or something else may occur andyou would be out of the picture. You wouldhave no further parental rights at any time. Do you understand that?"

Respondent replied that she understood. Fundamental fairness wasachieved by the trial court's admonition and respondent's acknowledgment she understood.

B. Trial Court's Order Not Against
Manifest Weight of the Evidence

Respondent's other argument is the trial court'sdeterminations that she was unfit and it was in the children'sbest interests her parental rights be terminated are against themanifest weight of the evidence. The State has the burden ofproving a parent's unfitness by clear and convincing evidence. In re C.N., 196 Ill. 2d 181, 208, 752 N.E.2d 1030, 1045 (2001).Courts of review give great deference to a trial court's findingof unfitness. In re C.M., 305 Ill. App. 3d 154, 163, 711 N.E.2d809, 815 (1999). To reverse a trial court's finding on parentalunfitness, a reviewing court must find it was against the manifest weight of the evidence. C.N., 196 Ill. 2d at 208, 752N.E.2d at 1045. A trial court's findings are against the manifest weight of the evidence where the opposite conclusion isclearly evident. C.N., 196 Ill. 2d at 208, 752 N.E.2d at 1045.

Section 1(D) of the Adoption Act (750 ILCS 50/1(D)(West 2002)) sets forth numerous grounds under which a parent maybe considered "unfit." Any one ground properly proved is sufficient to enter a finding of unfitness. In re C.W., 199 Ill. 2d198, 210, 766 N.E.2d 1105, 1113 (2002). In this case, the trialcourt found respondent unfit under two of those grounds, byfinding she had:

"(a) Failed to protect the minor childrenfrom conditions within her environment thatwere injurious to their welfare; [and]

(b) Failed to make reasonable progress towards the return of the minor children to their home within nine months of the adjudication of neglect."

See 750 ILCS 50/1(D)(g), (D)(m)(ii) (West 2002).

Section 1(D)(g) of the Adoption Act (750 ILCS50/1(D)(g) (West 2002)) was construed by the Illinois SupremeCourt in C.W. There, the court stated:

"Under the clear and unambiguous language of section 1(D)(g), a finding of parental unfitness is only warranted where theevidence establishes that the parent failedto protect the child from conditions in thechild's environment injurious to the child'swelfare. It follows, therefore, that where achild has been removed from an injurious homeenvironment and placed in foster care, aparent cannot be found unfit based on a'failure to protect' during the period thechild is in foster care." C.W., 199 Ill. 2dat 212, 766 N.E.2d at 1114.

The court in C.W. also concluded, however, a parent may be foundunfit pursuant to section 1(D)(g) based on evidence of theparent's conduct that gave rise to the original adjudication ofneglect. C.W., 199 Ill. 2d at 218-19, 766 N.E.2d at 1117.

In this case, the children were placed in foster careon March 7, 2001. Therefore, under C.W., evidence of failure toprotect after this date may not be considered, but evidence ofconduct prior to the filing of the original petitions on August7, 2000, may be considered.

Respondent stipulated to the allegations of the August7, 2000, petition. One of those allegations was the childrenresided in an injurious environment because their father, Weldon, twisted Daniel's arm behind his back and threatened to burn downthe house with Daniel inside if Daniel testified against him in apending court proceedings. The petition also alleged a longhistory of domestic violence in the home.

Since August 23, 2000, when the family first appearedin court upon the petition for adjudication of wardship, thecourt entered an order that Weldon no longer live in the homewith the minor children and he not have unsupervised visitationwith them. Evidence of respondent's actions in regard to herrelationship with Weldon after the filing of the original petition and prior to the removal of the children included thatrespondent had difficulty with issues of codependency and shecontinued to have contact with her husband, the children wereleft with unapproved baby-sitters so respondent could spend timewith Weldon, and Weldon and one of the children were seen together in an unsupervised setting.

Respondent's failure to protect the children wasestablished by the record. Respondent and Weldon had a longhistory of domestic violence. This placed respondent on noticeWeldon might be violent toward the children. Weldon actuallythreatened and physically abused Daniel. Respondent maintained arelationship with Weldon after the original petition was filedand allowed one of children to be in Weldon's presence, contraryto a specific order. Evidence supporting a parent's unfitnesstoward one child may serve as the basis for termination ofparental rights as to all children. In re D.L.W., 226 Ill. App.3d 805, 811, 589 N.E.2d 970, 974 (1992). Thus, respondentallowing one child to have unsupervised contact with Weldonproves her failure to protect all three children from harm.

Respondent argues she generally complied with the DCFSservice plan. However, reasonable efforts and reasonable progress are not affirmative defenses that can be raised by a parentto refute allegations of neglect under one of the other subsections of section 1(D). In re D.F., 201 Ill. 2d 476, 505, 777N.E.2d 930, 946 (2002). Thus, even if respondent did comply withher service plan, it would not be a defense to a failure-to-protect allegation. See C.W., 199 Ill. 2d at 219-20, 766 N.E.2dat 1118.

Although a finding of unfitness on only one groundfound in section 1(D) of the Adoption Act is necessary, we findthe trial court's finding of unfitness on the grounds of failureto make reasonable progress was, likewise, not against themanifest weight of the evidence. Under the statutory provisionfor finding unfitness due to failure to make reasonable progresswithin nine months of an adjudication of neglect (750 ILCS50/1(D)(m)(ii) (West 2002)), only evidence within nine monthsfrom the date of the adjudication of neglect may be considered bythe trial court. In re Brianna B., 334 Ill. App. 3d 651, 656,778 N.E.2d 724, 729 (2002). The statutory period begins from thedate the trial court files the dispositional order finding theminors neglected. Brianna B., 334 Ill. App. 3d at 656, 778N.E.2d at 729. The dispositional orders in this case were filedon November 20, 2000. Therefore, the applicable nine-monthperiod was from November 20, 2000, until August 20, 2001.

Reasonable progress toward return of the child undersection 1(D)(m)(ii) of the Adoption Act may be measured bylooking at the parent's compliance with the service plans and thecourt's directives in light of the conditions that gave rise tothe removal of the child and in light of other conditions thatlater became known and would prevent the court from returningcustody of the child to the parent. C.N., 196 Ill. 2d at 216-17,752 N.E.2d at 1050. The standard for determining whether reasonable progress has been made is an objective one. It may be foundwhen the trial court can conclude the parent's progress issufficiently demonstrable and of such quality that the child canbe returned to the parent in the near future. In re B.W., 309Ill. App. 3d 493, 499, 721 N.E.2d 1202, 1207 (1999). Minimally,reasonable progress requires measurable or demonstrable movementtoward the goal of reunification. In re K.P., 305 Ill. App. 3d175, 180, 711 N.E.2d 478, 482 (1999).

In this case, between November 2000 and August 2001,while respondent attended various counseling sessions andparenting classes, the evidence indicated she did not internalizeand demonstrate the lessons she learned there. The children wereremoved from her care because of her continued relationship withWeldon. The evidence showed respondent did not meet the goalsset for her as Weldon continued to dominate her, and her abilityto apply what she learned in parenting classes was described as"pretty borderline."

Respondent jumped from job to job, often in tandem withWeldon. If he lost his job, respondent went with him. Respondent was told she would need to put her children above herdesires to be with Weldon, but she continued to see him and placeher children with inappropriate baby-sitters. Most of thedomestic violence episodes with Weldon occurred when he had beendrinking. He participated in inpatient care for his alcohol-abuse problem during the relevant time frame of this case. However, when he had a relapse under outpatient care and failedan alcohol test in respondent's presence, she adopted his excusethe machine was inaccurate and minimized the situation. AlthoughWeldon and respondent were not living together, they maintainedconstant contact through two-way radios.

Testimony from Veronica Key, respondent's therapist atthe time of the hearing on the petition to terminate, was thatrespondent had begun counseling with her in January 2002, wellafter the relevant time period for making reasonable progress. However, at that time, respondent had not internalized priorcounseling or made any reasonable progress toward correcting herproblems. Therefore, if respondent had failed to make reasonableprogress by January 2002, she could not have made such progressprior to that, by August 21, 2001. Keys testified respondent wasmaking slow but steady progress in her therapy by September 2002.

Respondent argues she did not fully understand theproblems of codependency on undesirable males and the effect onthe lives of her children until she began regular and individualtherapy. She contends it was not her fault this service was notinitiated until after the nine-month period had run. She contends, therefore, her lack of progress during the nine-monthperiod was due to DCFS negligence in failing to provide timelyservices.

The record indicates, however, respondent was counseledearly and often that she must sever her ties and dependency onWeldon in favor of protecting her children. She was offeredgroup domestic-violence counseling during the applicable nine-month period. DCFS had no fault where appropriate services wereoffered but the necessary messages did not sink into respondent'sconsciousness until a different form of the same service wasoffered.

Finally, while respondent raises the issue of thepropriety of the trial court's determination that the bestinterest of the children required her parental rights be terminated, she does not present any argument. The State, in responseto respondent's lack of argument, does not address the issueeither. We find it has been forfeited.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, J., concurs.

COOK, J., specially concurs.


JUSTICE COOK, specially concurring:

I agree the language used in the State's petition wassufficient to provide notice to respondent that the State soughtto permanently terminate her parental rights. I disagree thenotice provision of section 2-13(4), requiring that the prayerfor relief "clearly and obviously state that the parents couldpermanently lose their rights as a parent" (705 ILCS 405/2-13(4)(West 2002)) applies only to original petitions seeking toterminate parental rights, not to after-filed petitions. Such aholding is not required by the language of the Act and servesonly to further complicate an area of the law which is alreadydifficult. Even without section 2-13(4), every petition fortermination of parental rights should make it clear whether theparents could permanently lose their parental rights.

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