Austin, In Interest of

• Court: Appellate Court of Illinois
• Writing for the Court: BUCKLEY; GOLDBERG, P. J., and O'CONNOR
• Citation: Austin, In Interest of, 378 N.E.2d 538, 61 Ill.App.3d 344, 19 Ill.Dec. 37 (Ill. App. 1978)
• Decision Date: 12 June 1978
• Docket Number: No. 77-1185,77-1185
• Parties: , 19 Ill.Dec. 37 In the Interest of Michael AUSTIN et al., minors, The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jeffie Dean HARVEY and Jesse Harvey, Respondents-Appellees.

Page 538

378 N.E.2d 538

61 Ill.App.3d 344, 19 Ill.Dec. 37

In the Interest of Michael AUSTIN et al., minors The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jeffie Dean HARVEY and Jesse Harvey, Respondents-Appellees.

No. 77-1185.

Appellate Court of Illinois, First District, First Division.

June 12, 1978.

Bernard Carey, State's Atty. of Cook County (Paul P. Biebel, Jr., Lawrence N. Halperin, Asst. State's Attys., of counsel), for plaintiff-appellant.

James J. Doherty, Public Defender of Cook County (Frances Sowa, Asst. Public Defender, of counsel), for respondents-appellees.

BUCKLEY, Justice:

This is an appeal by the State from a denial of petitions to have Jeffie Dean Harvey and Jesse Harvey declared unfit as parents. Because this denial was based on an erroneous interpretation of law, we reverse and remand.

On May 9, 1974, the Juvenile Court of Cook County entered a finding of neglect as to Michael Austin, Maurice Austin, Carolyn Austin, Rosemary Austin and Cheryl Austin based on abuse by their parents, the Harveys.

On September 24, 1976, the State filed petitions for supplemental relief alleging that the Harveys were unfit. In a hearing on this petition the State produced three witnesses who testified regarding the Harveys' activities since the time of removal of the children. The first of these witnesses, Irmgard Heyman, described two counseling sessions, one with both parents, the other with Mrs. Harvey alone, and stated her opinion that the couple had made no role change, were unable to establish a plan to live together or accept any counseling or to engage in meaningful conversation with their children during visits allowed them. A second witness, Dr. Blanchard Reeb, a clinical psychologist attached to the Juvenile Court, offered his conclusions, based on a February 8, 1977, clinical evaluation interview with the Harveys, and on reports of other agencies and psychiatrists. Among these were the view that the Harveys' relationship was so provocative that anyone in the same relationship would lose control and that their combined difficulties caused an impossible situation for resolving their difficulties. Dr. Reeb recommended that the Austin children be permanently removed from the Harvey home and freed for adoption. The State also called Jesse Harvey to testify that he was, after a separation, living again with his wife.

At the conclusion of the State's case, the court granted a directed finding in favor of the Harveys.

To appreciate the significance of this matter, it is necessary to consider the role of an unfitness hearing under the Adoption Act. Under Section 8 of the Act, a child may not be adopted without the consent of his parents unless his parents have been declared unfit persons. Ill. Rev. Stat. 1977, Ch. 40, par. 1510.

The definition of an unfit person is set forth in Section 1 D of the Act. (Ill. Rev. Stat. 1977, Ch. 40, par. 1501 D.) Accordingly, the State's petition to have the Harveys declared unfit persons was a preliminary step toward making possible their adoption.

At issue here is the validity of the trial court's dismissal of that petition.

For such a petition to be valid, it is necessary that it set forth with particularity the grounds for such a determination (In Interest of Westland (1977), 48 Ill.App.3d 172, 177, 6 Ill.Dec. 331, 335, 362 N.E.2d 1153, 1157), and these grounds must be supported by clear and convincing evidence. In re Love (1977), 50 Ill.App.3d 1018, 1023, 9 Ill.Dec. 25, 28, 366 N.E.2d 139, 142.

The grounds alleged by the State in its petition were those contained in subsections (b) and (m) of Section 1 D. The allegation relating to subsection (b), which provides that a parent may be adjudged unfit for failure to maintain a reasonable degree of interest, concern or responsibility as to a child's welfare, was expressly rejected at trial and is not appealed by the State. Subsection (m), on the other hand, contains two grounds for a determination of unfitness, "(f)ailure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within twelve months" after removal of the child. As to the first of these grounds, the court below expressly found that the efforts of the Harveys, as exemplified by their undergoing counseling, were "reasonable" within the meaning of the statute because, although they were not objectively considerable, they were significant in the light of the Harveys' personal limitations. The State appeals neither the rationale nor the outcome of this finding, so we need consider it no further. The remaining ground under subsection (m), however, presents issues which are the focus of this case.

First, there is no clear, express finding as to this ground. The following passage includes the language which comes closest to a finding as to this particular ground:

"The court finds no can make no criticism of the State in filing this petition because there does not appear to have been any substantial progress that the parents have made towards correcting the conditions which caused the removal of their children. The court is convinced of that fact.

The question is, what did the legislature mean when they said reasonable efforts towards what did they mean when they said reasonable progress towards the return of the children? I construe that to mean reasonable given the limitations of the parents themselves.

I believe that this is a statute which is which is designed to safeguard the interests of children in having a permanent and in having the assurance of a permanent home where they have been raised with a guardian due to the neglect of their parents.

And I think the statute obviously is to prevent the child from remaining in guardianship an overly long time where the parents are not sufficiently motivated or interested in trying to correct the conditions which caused the removal of the child.

That being the case, the Court feels that the special disabilities of the parents where such a provision is relied upon must be taken into consideration by this Court in determining whether or not the progress they have made is reasonable.

This is an unusual case. It is apparent to the Court that both parents want the return of their children.

It is apparent to the Court the parents are not ready for the return of their children and it is quite possible that they will never be ready for the return of their children. That is possible, but it is not a certainty.

It is apparent that there is quite a bit of chaos in the relationship of the father and the mother. The father has been in and out of the home. At one time the evidence indicates at one time he felt that it was necessary for him to separate himself from his wife so that the wife could have the children.

It is apparent that that solution is not one the Court can rely upon because the parents are too apparently are unable to unwilling or unable to separate.

Under the circumstances, it is not clear to me that in this particular case that this Court should penalize them for not separating, even though if they were in fact separated to the satisfaction of the Court, it might possibly improve the chances of the mother to some day rehabilitate herself as custodian of these children.

Another important aspect of this case is that it appears that the mother has been sincere in her efforts to, first of all, to visit with the children and also to the satisfaction of the worker and possibly in time the Court, that she is in fact interested in her children and wants them back.

Of course, it appears that her efforts in this regard have not been sufficient, but the Court is not convinced they have not been reasonable given her disability.

Our reviewing courts have consistently held in accordance with the holdings of other reviewing courts throughout the country that the matter of the termination of the parent's rights or the residual parental rights and the freeing of the child for adoption is a very serious matter and it should be only decreed when the evidence is clear and convincing.

The evidence that this that the State has presented in this case is not clear and convincing to this Court that the parental rights should be terminated.

The Court is not unmindful of the fact that despite the amendment to the statute the ruling today might appear to condemn these children to a childhood spent entirely in a foster home. That of course is not necessarily true because it is possible that at some future date either the parents may, despite the evidence to the contrary, today may in fact be rehabilitated by involving in counseling and by profiting from the counseling.

Although, I must confess, it does not appear as though they are at least the father is amenable to such counseling and, of course, the other possibility is that with the passage of time if there are further efforts and further opportunities afforded to the parents to get involved in counseling to rehabilitate themselves and they do not take advantage of that, it is quite possible that the passage of time alone would require a termination of parental rights.

I do not believe that despite the fact that 24 months have passed since the finding of neglect, I do not believe that there has been sufficient time to arrive at such a decision in this case at this time.

Therefore, the supplemental petition at the close of the State's case, the supplemental petition for termination of parental rights will be denied, will be dismissed and the cases will be returned to the guardianship calendar."

This excerpt provides an understanding of the trial court's interpretation of this standard, but does not contain a clear application of this standard to the facts of this case. There is, however,...