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In re J.R.
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-0973 Rel
Case Date: 07/30/2003

NO. 4-02-0973

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



In re: J.R., Alleged to be an Abused 
and Neglected Minor
,
THE PEOPLE OF THE STATE OF ILLINOIS,
                      Petitioner-Appellee,
                      v.
LONA GRIFFIN,
                      Respondent-Appellant.
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Appeal from
Circuit Court of
McLean
County
No. 01JA8

Honorable
Ronald C. Dozier
,
Judge Presiding.


JUSTICE STEIGMANN delivered the opinion of the court:

In April 2002, the State filed a petition to terminatethe parental rights of respondent, Lona Griffin, as to her son,J.R. (born July 1, 1999). Following a November 2002 hearing, thetrial court found respondent unfit, and following a separatehearing that same day, the court found that it would be in J.R.'sbest interest to terminate respondent's parental rights. (Thecourt also terminated the parental rights of J.R.'s father,Frederick Robb, subject to the terms of a final and irrevocableconsent to adoption by specified persons--namely, Robb's parents,Joyce and Larry Hyatt. However, he is not a party to thisappeal.)

Respondent appeals, arguing that the trial court'sorder terminating her parental rights should be reversed because(1) the State's termination petition failed to state that shecould "permanently" lose her parental rights, as is requiredunder section 2-13(4) of the Juvenile Court Act of 1987 (Act)(705 ILCS 405/2-13(4) (West 2000)); and (2) the court's findingthat it was in J.R.'s best interest to terminate her parentalrights was against the manifest weight of the evidence. Weaffirm.

I. BACKGROUND

In January 2001, the State filed a petition for adjudication of wardship regarding J.R. and his younger brother, JosephR. (born December 22, 2000), alleging that (1) they were abusedminors in that a person responsible for or residing in the samehousehold as J.R. and Joseph R. caused physical injury to Joseph,by other than accidental means, such that he was brain dead withbruises in the folds of his neck and on his scalp; and (2)information provided by respondent was not consistent with JosephR.'s injuries (705 ILCS 405/2-3(2)(i) (West 2000)). Later inJanuary 2001, the State filed an amended petition, alleging thatJ.R. and Joseph R. were neglected minors in that (1) they wereresiding in an environment injurious to their welfare when in thecare of respondent and Robb, in that respondent and Robb hadunresolved issues of domestic violence (705 ILCS 405/2-3(1)(b)(West 2000)); and (2) they were residing in an environmentinjurious to their welfare when in the care of Robb, in that Robbhad unresolved issues of anger management (705 ILCS 405/2-3(1)(b)(West 2000)). In April 2001, the State filed a second amendmentto its adjudication petition, alleging that the children wereneglected due to Robb's unresolved issues of substance abuse (705ILCS 405/2-3(1)(b) (West 2000)). At an April 2001 hearing, Robbadmitted the allegation in the State's second-amended petition,and the court adjudicated J.R. and Joseph R. neglected minors.

Finally, in September 2001, the State filed a third-amended adjudication petition, alleging that (1) J.R. and JosephR. were abused in that respondent had inflicted injuries, byother than accidental means, which caused Joseph's death (705ILCS 405/2-3(2)(i) (West 2000)); and (2) respondent had beenconvicted of the first degree murder of Joseph R. (McLean Countycase No. 01-CF-90).

At a September 2001 adjudicatory hearing, respondentstipulated to the allegations contained in the State's third-amended petition, and the trial court accepted her stipulationand adjudicated J.R. and Joseph R. abused minors. The court thenconducted a dispositional hearing and adjudicated J.R. a ward ofthe court and placed him in the guardianship of the IllinoisDepartment of Children and Family Services (DCFS).

In April 2002, the State filed its petition to terminate respondent's parental rights, alleging that respondent wasunfit under section 1(D)(q) of the Adoption Act (750 ILCS50/1(D)(q) (West 2000)), in that she had been criminally convicted of murdering a child.

At the November 2002 hearing on the State's terminationpetition, the trial court took judicial notice that (1) in caseNo. 01-CF-90, respondent was charged with the first degree murderof Joseph R.; (2) in June 2001, a jury convicted respondent ofthat crime; and (3) in September 2001, respondent was sentencedto 25 years in prison. The State presented no other evidence ofrespondent's unfitness. At the conclusion of the hearing, thecourt found respondent unfit based on the ground alleged in theState's petition.

At the best-interest hearing, DCFS caseworker GlendaBassett testified that she was assigned to the case for a fewweeks in January 2001, was reassigned to the case in April 2002,and had been the caseworker ever since. At the time of thehearing, J.R. had been living with his paternal grandparents, theHyatts, for one year. J.R. was doing well in the Hyatts' homeand appeared "very bonded" to them. Joyce was at home with J.R.during the day, J.R. had many toys to play with, and the Hyattsmade sure he received his asthma medication. DCFS recommendedthat terminating respondent's parental rights would be in J.R.'sbest interest. The Hyatts had expressed a desire to adopt J.R.,and DCFS believed that they would meet the applicable standardsregarding financial means and the ability to meet J.R.'s emotional needs. Bassett opined that the Hyatts should adopt J.R.

The trial court took judicial notice of all the proceedings in the case and admitted into evidence the November 12,2002, dispositional report prepared by the Court AppointedSpecial Advocates (CASA). The CASA report indicated that J.R.was doing well with the Hyatts. He was receiving appropriatemedical care, and his asthma and sleep patterns were improving. He was in a safe, stable, and nurturing environment. CASArecommended termination of respondent's parental rights based on(1) her conviction for murdering Joseph R.; and (2) the fact thather long-term incarceration would make it impossible for her toplay a meaningful role in J.R.'s life.

J.R.'s guardian ad litem also recommended terminationof respondent's parental rights.

At the conclusion of the hearing, the trial court foundit in J.R.'s best interest to terminate respondent's parentalrights.

This appeal followed.

II. ANALYSIS

A. The State's Termination Petition

Respondent first argues that the State's petition toterminate her parental rights was defective in that it did notstate that she could "permanently" lose her parental rights, asis required under section 2-13(4) of the Act (705 ILCS 405/2-13(4) (West 2000)). The State responds that its failure to usethe word "permanently" in its termination petition does notwarrant reversal in this case. We agree with the State.

1. Section 2-13(4) of the Act

Section 2-13(4) of the Act provides as follows:

"If termination of parental rights andappointment of a guardian of the person withpower to consent to adoption of the minorunder [s]ection 2-29 is sought, the petitionshall so state. If the petition includesthis request, the prayer for relief shallclearly and obviously state that the parentscould permanently lose their rights as aparent 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 dispos-itional order under [s]ection 2-22." 705ILCS 405/2-13(4) (West 2000)).

2. Forfeiture

In support of her argument, respondent cites one case,In re Andrea D., 336 Ill. App. 3d 335, 783 N.E.2d 681 (2003). Inthat case, the respondent argued that the State's petition toterminate his parental rights was defective on its face becauseit "failed to apprise [him] that his parental rights could be'permanently' terminated," citing section 2-13(4) of the Act (705ILCS 405/2-13(4) (West 2000)). In that case, as here, therespondent failed to raise any objection to the State's petitionin the trial court. Andrea D., 336 Ill. App. 3d at 337, 783N.E.2d at 683. On review, the Second District Appellate Court(1) opted to review the issue under the plain-error exception tothe forfeiture rule, (2) concluded that due to the omission ofthe word "permanently," the State's petition was defective on itsface, and (3) based on that conclusion, reversed the trialcourt's order terminating the respondent's parental rights. Andrea D., 336 Ill. App. 3d at 337-39, 783 N.E.2d at 683-85. Wedecline to follow Andrea D. because we disagree with the SecondDistrict's holding and the analysis upon which it is based.

Initially, we note that termination-of-parental-rightsproceedings are civil in nature (750 ILCS 50/20 (West 2000)); Inre E.S., 246 Ill. App. 3d 330, 335, 615 N.E.2d 1346, 1349-50(1993)), and under section 2-612(c) of the Code of Civil Procedure, "[a]ll defects in pleadings, either in form or substance,not objected to in the trial court are waived" (735 ILCS 5/2-612(c) (West 2000)). In some circumstances, however, justicerequires relaxation of this forfeiture rule. Therefore, courtshave relaxed the rule when the State's termination petition failsto state a cause of action. See In re Rauch, 45 Ill. App. 3d784, 787-89, 359 N.E.2d 894, 896-97 (1977) (relaxing the forfeiture rule to consider the respondent's claim that the State'stermination petition failed to state a cause of action when itfailed to (1) allege that the respondent was an unfit parent, and(2) set forth an alleged ground for unfitness); In re J.P.S., 198Ill. App. 3d 633, 634, 556 N.E.2d 268, 269-70 (1990) (reviewingthe respondent's claim, raised for the first time on appeal, thatthe State's supplemental termination petition failed to state acause of action); cf. In re L.M., 205 Ill. App. 3d 497, 502-03,563 N.E.2d 999, 1002 (1990) (declining to review the respondent'sclaim that the State's termination petition was deficient whenthe respondent (1) had not raised the claim in the trial court,and (2) did not claim that the petition failed to state a causeof action). Thus, the threshold question before us in this caseis whether the alleged defect in the State's petition resulted inits failure to state a cause of action. We conclude that it didnot.

The State's petition alleged, in pertinent part, thatrespondent was an unfit person under section 1(D)(q) of theAdoption Act (750 ILCS 50/1(D)(q) (West 2000)) for the reasonthat she had been criminally convicted of murdering a child. Thepetition clearly stated that the State sought the termination ofher parental rights based on that ground. Given that the State'spetition clearly stated what action it sought the trial court totake, and the legal grounds that justify that action, the defectrespondent complains of did not constitute a failure to state acause of action. Accordingly, we hold that it is not a defectthat may be raised for the first time on appeal. By failing toobject to the State's petition in the trial court, respondent hasforfeited the right to raise this issue on appeal.

We acknowledge that this result might appear harsh inlight of the special nature of termination proceedings. Werecognize that although termination-of-parental-rights proceedings are civil in nature, termination proceedings involve fundamental liberty interests and invoke some constitutional concernsakin to those implicated in criminal cases. In re J.P., 316 Ill.App. 3d 652, 658, 737 N.E.2d 364, 368-69 (2000); In re M.H., 313Ill. App. 3d 205, 214-15, 729 N.E.2d 86, 94-95 (2000). However,even if we were to afford respondent the greatest proceduralprotections available--that is, those afforded to criminaldefendants alleging defects in a charging instrument--her claimwould fail if brought for the first time on appeal.

Under Illinois criminal law, the existence of certaindefects in a charging instrument may be raised at any time,including for the first time on appeal. For example, a charginginstrument that fails to state an offense contains a defectimplicating due process concerns and thus may be attacked at anytime. People v. Alvarado, 301 Ill. App. 3d 1017, 1022, 704N.E.2d 937, 941 (1998). However, when a criminal defendantchallenges the charging instrument for the first time on appeal,the reviewing court considers the claim under a lower standardthan that which the trial court would have applied had theobjection been raised below. People v. Thingvold, 145 Ill. 2d441, 448, 584 N.E.2d 89, 91 (1991). If an indictment is attackedeither before or during trial, the instrument must strictlycomply with statutory pleading requirements. Alvarado, 301 Ill.App. 3d at 1022-23, 704 N.E.2d at 941. When a charging instrument is attacked for the first time on appeal, however, thereviewing court considers only whether the indictment apprisedthe accused of the precise offense charged with enough specificity to (1) allow preparation of a defense, and (2) allow pleadinga resulting conviction as a bar to future prosecution arising outof the same conduct. People v. Smith, 337 Ill. App. 3d 819, 823,786 N.E.2d 1121, 1124 (2003). Thus, a criminal defendant'sconviction will not be reversed based on a technical defect inthe charging instrument raised for the first time on appealunless the defendant shows that the defect prejudiced him inpreparing his defense. People v. Maggette, 311 Ill. App. 3d 388,394-95, 723 N.E.2d 1238, 1243 (2000).

In this case, respondent does not contend that theState's failure to state that it sought to "permanently" terminate her parental rights in its termination petition misled heror that she was in any way prejudiced by the omission. She doesnot claim that she did not know that the termination of herparental rights would be permanent. The record contains noindication that respondent or her counsel failed to grasp theimport of the proceedings. In light of respondent's failure toallege, and our inability to ascertain from the record, any wayin which the alleged defect affected respondent's rights orinterests, her claim would fail even under the most generousanalytical framework.

We are perplexed by the Second District's reliance onthe plain-error doctrine. As previously discussed, a frameworkfor reviewing pleading-defect claims raised for the first time onappeal already exists, and application of the plain-error doctrine to civil cases is "'exceedingly rare and limited to circumstances amounting to an affront to the judicial process.'" Holder v. Caselton, 275 Ill. App. 3d 950, 959, 657 N.E.2d 680,687 (1995), quoting Allison v. Stalter, 251 Ill. App. 3d 127,131, 621 N.E.2d 977, 979 (1993). Moreover, even under thecriminal law, plain error is not implicated when a defendantchallenges a charging instrument; rather, courts apply theanalysis set forth above.

Although we have determined that the forfeiture rulebars respondent's claim, we acknowledge that this rule is anadmonition to the parties and does not impose a limitation on thereviewing court. In re K.A., 335 Ill. App. 3d 1095, 1099, 782N.E.2d 937, 940 (2003). This court may overlook considerationsof forfeiture in the interest of developing a sound body of law(In re Marriage of King, 336 Ill. App. 3d 83, 91, 783 N.E.2d 115,122 (2002)), and may review any issue so long as the recordcontains facts sufficient for its resolution (Ward v. CommunityUnit School District No. 220, 243 Ill. App. 3d 968, 974, 614N.E.2d 102, 107 (1993)). In light of these principles, we willaddress on the merits respondent's claim regarding the pleadingrequirement of section 2-13(4) of the Act (705 ILCS 405/2-13(4)(West 2000)).

3. The Pleading Requirement of Section 2-13(4) of the Act

As stated above, respondent contends that section 2-13(4) of the Act required the State to include the word "permanently" in its termination petition. The State responds that thesection 2-13(4) requirement that petitions "clearly and obviouslystate that the parents could permanently lose their rights as aparent at this hearing" (1) applies only when the State seeks toterminate parental rights in the same proceeding in which itseeks an adjudication of neglect, abuse, or dependency; and (2)does not apply when, as here, the State files a terminationpetition under section 2-29 of the Act (705 ILCS 405/2-29 (West2000)) after there has been an adjudication of abuse and adispositional order has been entered. We agree with the State.

We review de novo questions of statutory construction. "The cardinal rule of statutory construction is to ascertain andgive effect to the true intent of the legislature [citations],while presuming the legislature did not intend to create absurdity, inconvenience, or injustice." In re D.D., 196 Ill. 2d 405,418-19, 752 N.E.2d 1112, 1119-20 (2001). The most reliableindicator of legislative intent is the language of the statuteitself; thus, our analysis of any statute begins with its language. When the language is plain and unambiguous, courts maynot read in exceptions, limitations, or other conditions. D.D.,196 Ill. 2d at 419, 752 N.E.2d at 1120. However, when themeaning of a statute cannot be ascertained from its language,courts may resort to aids for statutory construction, including astatute's legislative history and transcripts of legislativedebates. Krohe v. City of Bloomington, 204 Ill. 2d 392, 397-98,789 N.E.2d 1211, 1214 (2003).

Without question, section 2-13 of the Act, in itsentirety, pertains to petitions seeking an adjudication ofneglect, abuse, or dependency. Subsection (2) of section 2-13provides, "[the petition] shall allege that the minor is abused,neglected, or dependent, with citations to the appropriateprovisions of this Act, and set forth (a) facts sufficient tobring the minor under [s]ection 2-3 or 2-4." 705 ILCS 405/2-13(2) (West 2000). (Section 2-3 of the Act defines "neglectedand abused minors" (705 ILCS 405/2-3 (West 2000)), and section 2-4 of the Act defines "dependent minor" (705 ILCS 405/2-4 (West2000)).) Subsection (3) of section 2-13 states that "[t]hepetition must allege that it is in the best interests of theminor and of the public that he be adjudged a ward of the court." 705 ILCS 405/2-13(3) (West 2000).

The next subsection of section 2-13 is subsection (4),which, as previously stated, provides as follows:

"If termination of parental rights andappointment of a guardian of the person withpower to consent to adoption of the minorunder [s]ection 2-29 is sought, the petitionshall so state. If the petition includesthis request, the prayer for relief shallclearly and obviously state that the parentscould permanently lose their rights as aparent 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 dispos-itional order under [s]ection 2-22." 705ILCS 405/2-13(4) (West 2000)).

Consistent with our interpretation of preceding subsections (2)and (3), we conclude that where subsection (4) refers to "thepetition," it is referring to the aforementioned petition foradjudication of neglect, abuse, or dependency, and where itrefers to "this hearing," it is referring to the adjudicatoryhearing on that petition. Any other interpretation would rendersuperfluous the second paragraph of section 2-13(4), which statesthat "in addition" to "the foregoing"--that is, seeking termination of parental rights "at this hearing"--a petitioner may seektermination of parental rights "at any time after the entry of adispositional order under [s]ection 2-22." 705 ILCS 405/2-13(4)(West 2000). Thus, "this hearing" must refer to the adjudicatoryhearing, which necessarily takes place before a dispositionalorder under section 2-22 of the Act (705 ILCS 405/2-22 (West2000)) has been entered.

The logic and consistency of our interpretation ofsection 2-13(4) is apparent when the Act is viewed as a whole. The language at issue in this case became part of the Act whenthe legislature enacted Public Acts 89-704 and 90-28 (Pub. Act89-704

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