In re Janira, No. 1-06-0111 (Ill. App. 12/12/2006)

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IN RE JANIRA T., a Minor, Respondent-Appellee (The People of the State of Illinois Petitioner-Appellee, v. Luz M., Respondent-Appellant).

No. 1-06-0111.

Appellate Court of Illinois, First District, Second Division.

December 12, 2006.

Appeal from the Circuit Court of Cook County, Illinois Child Protective Division, No. 03 JA 01022, Honorable Kathleen M. Burke, Judge Presiding.

MODIFIED UPON DENIAL OF REHEARING

JUSTICE HALL delivered the opinion of the court:

Respondent Luz M. appeals the judgment of the circuit court of Cook County terminating her parental rights to her minor daughter Janira T. Janira's natural father, Luis T., voluntarily relinquished his parental rights to her and is not a party to this appeal.

On appeal, respondent contends that: (1) the unfitness findings entered at the termination proceeding should be reversed because the State failed to provide sufficient evidence showing that Janira was abused or neglected in the adjudicatory hearing which was the predicate for the termination proceeding; (2) we should reverse the termination of her parental rights because the State failed to prove by clear and convincing evidence that she was an unfit parent; (3) the trial court erred in finding that the termination of her parental rights was in Janira's best interests; and (4) subsections (b), (c), and (m) of section 1(D) of the Adoption Act (Adoption Act) (750 ILCS 50/1(D)(b), (D)(c), (D)(m) (West 2002)), are unconstitutional in violation of her state and federal procedural due process rights because these subsections allow the termination of parental rights based on less than clear and convincing evidence. For the reasons that follow, we affirm.

BACKGROUND

Prior to Janira's birth (born October 15, 1996), respondent gave birth to six other children, Melissa M. (born June 28, 1983), Melinda M. (born January 13, 1986), Alberto M. (born September 11, 1987), Angel M. (born March 20, 1990), Luis (born December 26, 1991), and Jasmine T. (born November 20, 1994).

Luis T. is the natural father of Luis, Jasmine, and Janira. The other four children were fathered by Heriberto Q, who, like Luis T., is not a party to this appeal.

In February 1996, respondent came to the attention of the Illinois Department of Children and Family Services (DCFS) when Alberto reported to his teacher that his two older sisters, Melissa and Melinda, had been sexually abused by their stepfather, Luis T. As a result, Janira's six older siblings were taken into protective custody and thereafter adjudicated abused based on a substantial risk of physical injury and neglected based on exposure to an injurious environment.

On October 15, 1996, respondent gave birth to Janira. She was not immediately removed from respondent's care as she was not considered at risk of harm since respondent had reportedly separated from Luis T. after the allegations of abuse and neglect were made. Janira was, however, monitored monthly by announced and unannounced home visits by a caseworker.

On June 23, 1997, the trial court ruled that the State had proven, by a preponderance of the evidence, that Luis T. sexually abused Melissa and Melinda, that Alberto was the victim of excessive corporal punishment administered by Luis T., and that the siblings had been exposed to domestic violence on their mother administered by Luis T. On September 11, 1997, the trial court issued an order of protection requiring that any contact between Luis T. and the six siblings be supervised by DCFS and approved by the subject child.

Luis T. was later suspected of having seen the children during their unsupervised visits with respondent in 1999 and 2000. As a result, respondent's unsupervised contact with her six children was revoked in November 2000. Janira remained in respondent's care.

Pursuant to an adult-sex-offender risk evaluation of Luis T., dated April 3, 2003, it was determined, among other things, that he should not be given custody of any of his three biological children and should not be allowed unsupervised contact with them. On June 18, 2003, respondent and Luis T. were "indicated" for risk of harm to Janira after a caseworker called the DCFS hotline and reported that respondent and respondent's mother were allowing Janira to have unsupervised contact with Luis T. As a result, on June 23, 2003, Janira was placed with a maternal great-aunt under a safety plan.

On July 17, 2003, the State filed a petition for adjudication of wardship on behalf of Janira. The petition charged her parents with neglect based on exposure to an injurious environment and abuse based on a substantial risk of physical injury. At the conclusion of a temporary custody hearing on August 6, 2003, the trial court granted temporary custody of Janira to the DCFS guardianship administrator. Respondent was not present at the hearing, and the order was entered without prejudice to her.

On August 21, 2003, the trial court held a second temporary custody hearing regarding Janira, at which respondent was present and represented by the office of the public defender. At the conclusion of the hearing, the trial court maintained temporary custody of Janira with DCFS.

On January 13, 2004, the trial court held an adjudicatory hearing. Following the hearing, the trial court entered an order finding that, based on the preponderance of the evidence, Janira was neglected due to an injurious environment and abused due to a substantial risk of physical injury in that the parents were aware that father was not to have unsupervised contact with Janira yet such contact occurred; father was a sexual perpetrator; and mother had extensive history with DCFS.

On February 23, 2004, the trial court conducted the dispositional hearing. At the conclusion of the hearing, the court determined it was in Janira's best interest to be made a ward of the court and appointed D. Jean Ortega-Piron, the DCFS Guardianship Administrator, as her guardian with the right to place her. The disposition was based on the trial court's findings that respondent was unable, unwilling, and unfit to care for Janira and that Luis T. was unable and unwilling to care for her. Respondent did not appeal the adjudication order nor the dispositional order.

On April 19, 2004, the trial court entered a permanency order finding that respondent had not made substantial progress towards returning Janira home. The order set a permanency goal for Janira of return home pending a status hearing because respondent expressed a willingness to complete the services required for reunification with her minor daughter.

On October 15, 2004, the trial court entered a permanency order again finding that respondent had not made substantial progress towards returning Janira home. The order set a permanency goal of substitute care pending court determination on termination of parental rights. The order stated this goal was selected because Janira was eight years old, she was living with a nonrelative in a preadoptive home, and her natural parents had not made substantial progress toward reunification and were not visiting consistently.

On February 2, 2005, the State filed a supplemental petition pursuant to section 2-29(2) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-29(2) (West 2000)), seeking the termination of the parental rights of respondent and Luis T. to Janira and the appointment of a guardian with the right to consent to her adoption. The supplemental petition contained three counts of unfitness with respect to respondent: (1) failure to maintain a reasonable degree of interest, concern or responsibility as to Janira's welfare as set forth in section 1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2002)); (2) desertion of Janira for more than three months next preceding the commencement of these termination proceedings as set forth in section 1(D)(c) of the Adoption Act; and (3) failure to make reasonable efforts to correct the conditions that led to Janira's removal from the home, and/or failure to make reasonable progress toward the return of the child within nine months of an adjudication of abuse or neglect as set forth in section 1(D)(m) of the Adoption Act.

On June 29, 2005, Luis T. appeared in trial court and gave his final and irrevocable consent to Janira's adoption by her foster parent.

The fitness and best interests portions of the bifurcated termination proceeding¹ were both held on December 5, 2005. Prior to commencement of the fitness hearing, the trial court took judicial notice of the following orders: (1) the August 21, 2003, paternity order in which Luis T. was found to be Janira's father; (2) the adjudication order entered January 13, 2004, in which Janira was found to be neglected and abused; (3) the dispositional order entered February 23, 2004, in which Janira was made a ward of the court and respondent was found unable, unwilling, and unfit to care for her. The trial court later took judicial notice that the State filed its supplemental termination petition on February 2, 2005.

The State called two witnesses at the fitness hearing, Lauren Barker, a caseworker at Casa Central, and Eloisa Rosales, a former caseworker at the same agency.

Barker testified she was assigned to Janira's case from February 2004 to July 2004. At the time she received the case, it was already in the system. The case had come into the system for failure to protect based upon allegations that respondent allowed Janira to have unsupervised contact with Luis T. even though he was accused of sexually abusing her sisters.

After an assessment, it was determined that respondent needed to complete various recommended services in order to be reunited with Janira. She needed to take parenting classes to assess her parenting skills due to her history of involvement with DCFS. She needed to engage in individual therapy to address issues that originally brought the case into the system, such as issues of permanency,...