In re Adoption of LTM

• Decision Date: 21 January 2005
• Docket Number: No. 95746, No. 97947.
• Citation: 214 Ill.2d 60,824 N.E.2d 221,291 Ill.Dec. 645
• Parties: In re ADOPTION OF L.T.M. (Jo Ellen J. et al., Appellees, v. John M., Appellant. Ellen Jenkins Curry, Appellee, v. The County of Franklin, Appellant).
• Court: Illinois Supreme Court

824 N.E.2d 221

214 Ill.2d 60

291 Ill.Dec. 645

In re ADOPTION OF L.T.M. (Jo Ellen J. et al., Appellees, v. John M., Appellant. Ellen Jenkins Curry, Appellee, v. The County of Franklin, Appellant).

Nos. 95746, 97947.

Supreme Court of Illinois.

January 21, 2005.

Ellen Jenkins Curry, Benton, for appellant, and John M., Ina, appellant pro se in No. 95746.

No appearance for appellee in No. 95746.

William K. Richardson, State's Attorney, Benton (Norbert J. Goetten, Stephen E. Norris and Patrick D. Daly, of the Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, of counsel), for appellant in No. 97947.

Ellen Jenkins Curry, Benton, appellee pro se in No. 97947.

Justice GARMAN delivered the opinion of the court:

In the underlying case, No. 95746, John M. appeals the circuit court's finding that he is an unfit parent, as defined by section 1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2000)), as to his son, L.T.M. Based on that finding, on September 27, 2002, the circuit court entered a judgment of adoption that terminated John's parental rights. John appealed first to the appellate court, where he moved, inter alia, for appointment of counsel and for a certified copy of the entire record. The appellate court denied both motions. Subsequently, on January 29, 2003, the appellate court dismissed John's appeal for want of prosecution, based on his failure to file the record on appeal. John then filed a petition for leave to appeal, which we allowed. On August 26, 2003, we allowed John's motion for stay of adoption pending appeal.

The consolidated case, No. 97947, arises from this court's order, entered July 8, 2003, which directed the circuit court of Franklin County to appoint counsel for John. The circuit court appointed attorney Ellen Jenkins Curry. Curry prepared and filed John's brief in No. 95746, and then petitioned the circuit court for approval of attorney fees. Franklin County, by State's Attorney William K. Richardson, entered a limited appearance and objected to the fee petition. After a hearing, the circuit entered an order on November 7, 2003, requiring Franklin County to pay Curry fees and costs to date in the amount of $6,153.94. The County filed a notice of appeal and, subsequently, filed a motion for leave to appeal directly to this court, which we allowed and consolidated with No. 95746.

BACKGROUND

The following description of the facts in the underlying adoption case is based primarily on the testimony at the hearing preceding the judgment of adoption from which John appeals. Some facts are drawn from transcripts and orders in other proceedings involving John, which have been made part of the record in this case.

L.T.M. was born on December 28, 1989. He was the second child born to John and Jo Ellen E., now known as Jo Ellen J. The first child, D.M., a daughter, is not involved in this appeal. John and Jo Ellen were never married. They did not live together at any time after L.T.M. was born. L.T.M. has always lived with Jo Ellen and has never lived with John. The record further indicates that at some time John was married to one Kelly M., that the marriage has been dissolved, and that Kelly has adopted D.M. The record does not provide dates for these events.

Jo Ellen went to work when L.T.M. was about 3 ½ months old. On weekdays, Jo Ellen would leave L.T.M. at John's house while she worked or attended school. Jo Ellen testified that a "child care provider," not John, cared for L.T.M. while he stayed at John's house. The parties agree that John saw L.T.M. for the last time when the boy was approximately 19 months old. The parties also agree that John has never paid child support for L.T.M. On February 27, 1995, the circuit court of Williamson County entered an order granting sole custody of L.T.M. to Jo Ellen, and awarding restricted visitation to John under the supervision of the Department of Children and Family Services (DCFS). The custody proceeding had been initiated by John. No visitation ever occurred.

On April 3, 1996, John was convicted in the circuit court of Jackson County of armed violence, unlawful use of a weapon, and aggravated unlawful restraint. He was sentenced on those convictions to concurrent terms of 25, 2, and 10 years, respectively. John had entered the grade school where D.M. was in a classroom, menaced her teacher with a handgun, removed D.M. from the school, and fled with her to Washington state. John testified he was taken into custody in Washington on September 9, 1995. He has been incarcerated ever since. He testified that he is due to be released from the penitentiary in 2010.

John testified at length about his efforts, both before and after his incarceration, to visit or support L.T.M. (We discuss that testimony below, when we analyze the merits of his appeal.) John also testified at length about his reasons for abducting D.M. Briefly, he believed that Kelly was abusing D.M. physically and sexually, and he was frustrated by the failure of his attempts to obtain custody of D.M. through the courts. The record amply demonstrates that John has been an energetic litigant, both before and after his incarceration, with counsel and without, in this proceeding and in others. John argued to the court at the fitness hearing that, because his attempts to care for and protect his children by other means have been thwarted, litigation has been his only avenue.

By 2000, Jo Ellen had married Randall J. On June 22, 2000, the couple filed a petition for Randall to adopt L.T.M. Initially, John was represented by attorney Timothy Capps. However, on May 14, 2002, Capps moved for leave to withdraw, stating that he and John disagreed on matters of case strategy and that John wished to represent himself. On June 14, 2002, John appeared in open court and confirmed that he and Capps disagreed and that he wished to represent himself. The court then granted Capps' motion to withdraw. At no time did John ask the court to appoint counsel for him.

Jo Ellen and Randall's petition alleged John was an unfit parent on four grounds. However, at the hearing on their petition on September 16, 2002, they elected to proceed on two grounds only: depravity (750 ILCS 50/1(D)(i) (West 2000)) and failure to maintain a reasonable degree of interest, concern or responsibility (750 ILCS 50/1(D)(b) (West 2000)). After the fitness portion of the hearing, the court found John was not depraved, but found him unfit for failure to maintain a reasonable degree of interest, concern or responsibility. The court then proceeded to the best-interests hearing and found that it was in L.T.M.'s best interests that the petition for adoption be granted and that John's parental rights be terminated. These appeals ensued, as previously described. John stated in open court that, although he disputed the finding of unfitness, he "would waive any argument, the best interest [sic]. If I am unfit as a parent, [Randall] seems okay." Thus our review of the judgment of adoption is limited to the finding of unfitness.

ANALYSIS

I. No. 95746 — The Adoption Action

A. Right to a Free Record in an Appeal as of Right

The order immediately before us is that of the appellate court, entered January 29, 2003, dismissing John's appeal for want of prosecution based on his failure to file the record on appeal. That order implicates the appellate court's prior order denying John's motion for a copy of the record. We review de novo the appellate court's conclusion that John had no right to a record.

The federal constitution requires that, when a state affords an appeal as of right from an order terminating parental rights in a private adoption, it may not deny indigent parents a record of sufficient completeness to permit proper appellate review. M.L.B. v. S.L.J., 519 U.S. 102, 128, 117 S.Ct. 555, 570, 136 L.Ed.2d 473, 495 (1996). Therefore, upon motion and showing of indigency, the State was obliged to provide a sufficient record to John. It is clear from the undisputed claims in his financial affidavit that John was indigent when he petitioned the appellate court for a free copy of the record. Accordingly, the appellate court erred in denying John's request for a free copy of the record. The appellate court erred again when it dismissed his appeal for failure to file the record on appeal, because John's failure to file the record was obviously caused by the fact he had none to file. Accordingly, we reverse the appellate court's dismissal of John's appeal.

B. The Circuit Court's Finding of Unfitness

We choose not to remand John's appeal to the appellate court. In the interest of judicial economy and, more importantly, because of L.T.M.'s interest in the speedy resolution of his status, we choose instead to review the circuit court's finding that John is an unfit parent.

Generally, the adoption of a minor child requires the consent of both parents. See 750 ILCS 50/8(b) (West 2000). However, if the trial court finds a parent to be an unfit person, as defined in the Adoption Act, by clear and convincing evidence, that parent's consent is not required. 750 ILCS 50/8(a)(1) (West 2000) (referring to grounds for unfitness enumerated at 750 ILCS 50/1(D) (West 2000)). The burden of presenting clear and convincing evidence of unfitness is on those petitioning for adoption. In re Adoption of Syck, 138 Ill.2d 255, 274, 149 Ill.Dec. 710, 562 N.E.2d 174 (1990). We will reverse a trial court's finding of unfitness only if it is against the manifest weight of the evidence. Syck, 138 Ill.2d at 274, 149 Ill.Dec. 710, 562 N.E.2d 174.

In this case, the trial court found John unfit on the ground that he failed to maintain a reasonable degree of interest, concern or responsibility as to L.T.M.'s welfare. See 750 ILCS 50/1(D)(b) (West 2000). When a parent is alleged unfit on that ground, the trial court "is to examine the parent's efforts to communicate with and show interest in the child, not the success of those efforts." Syck, ...