In re Alexander R.

• Decision Date: 30 November 2007
• Docket Number: No. 2-07-0779.,2-07-0779.
• Citation: 880 N.E.2d 1016,377 Ill. App.3d 553
• Parties: In re ALEXANDER R. and Charles H., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Alexander R., Sr., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

880 N.E.2d 1016

377 Ill. App.3d 553

In re ALEXANDER R. and Charles H., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Alexander R., Sr., Respondent-Appellant).

No. 2-07-0779.

Appellate Court of Illinois, Second District.

November 30, 2007.

Karen L.S. Wilkerson (Court-appointed), DeKalb, IL, for Appellant.

Ronald G. Matekaitis, DeKalb County State's Attorney, Sycamore, IL, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, IL, Stephanie Hoit Lee, Algonquin, IL, for Appellee.

Presiding Justice GROMETER delivered the opinion of the court:

Respondent, Alexander R., Sr., appeals the judgment of the circuit court of De Kalb County terminating his parental rights to the minors, Alexander R. and Charles H. Respondent raises two issues on appeal. First, he contends that the trial court's order finding that the minors were neglected is contrary to the manifest weight of the evidence. Second, he argues that the order terminating his parental rights was entered erroneously because the trial court failed to identify the time period it considered as to whether he had failed to "make reasonable efforts to correct the conditions which were the basis for the removal of the children." See 750 ILCS 50/1(D)(m)(i) (West 2006). We find that we lack jurisdiction regarding the first order respondent challenges, so we dismiss that portion of the appeal. As to respondent's second point, we disagree and therefore affirm.

We lack jurisdiction regarding the order in which the neglect finding is embodied, because respondent did not appeal from that order in a timely manner. Pursuant to Supreme Court Rule 660(b), except in delinquency cases, "the rules applicable to civil cases" apply to appeals of proceedings under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2006)). 134 Ill.2d R. 660(b). Hence, in order to vest a reviewing court with jurisdiction, a notice of appeal must be filed within 30 days of a final order. In re Marriage of Singe, 373 Ill.App.3d 554, 556, 311 Ill.Dec. 418, 868 N.E.2d 1079 (2007). In this case, the minors were adjudicated neglected on February 11, 2003, and a dispositional order making them wards of the court was entered on April 25, 2003. Respondent filed his notice of appeal on August 3, 2007, which was within 30 days of the order terminating his parental rights.

We find this case controlled by In re M.J., 314 Ill.App.3d 649, 247 Ill.Dec. 735, 732 N.E.2d 790 (2000). In that case, the court first noted that while an adjudicatory order is not a final and appealable order, a dispositional order generally is. M.J., 314 Ill.App.3d at 654-55, 247 Ill.Dec. 735, 732 N.E.2d 790. The court explained:

"In this case, [the] respondent never filed a notice of appeal from the trial court's dispositional order. Furthermore, the notice of appeal that respondent filed does not mention the dispositional order or any of the neglect proceedings. Therefore, appellate jurisdiction was never perfected with respect to the neglect proceedings. We dismiss that portion of this appeal challenging the findings at the neglect proceedings." M.J., 314 Ill.App.3d at 655, 247 Ill.Dec. 735, 732 N.E.2d 790.

Similarly, in this case, respondent did not file a notice of appeal until after his parental rights were terminated, over four years after the dispositional order in the underlying neglect proceeding. We therefore lack jurisdiction over and must dismiss that portion of this appeal. See also In re Janira T., 368 Ill.App.3d 883, 891, 307 Ill.Dec. 369, 859 N.E.2d 1046 (2006) (reviewing court lacked jurisdiction to consider issue of whether sufficient evidence supported trial court's findings of abuse and neglect where respondent failed to appeal adjudicatory order within 30 days of subsequent dispositional order).

Respondent next contends that the trial court "erred in failing to articulate the time period during which it assessed reasonable efforts to correct the condition[s] which were the basis [for] removal of the minor child[ren]." Section 1(D)(m) of the Adoption Act defines grounds for unfitness, in pertinent part, as:

"Failure by a parent (i) to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or (ii) to make reasonable progress toward the return of the child to the parent within 9 months after an adjudication of neglected or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under Section 2-4 of that Act, or (iii) to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of neglected or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under Section 2-4 of that Act." 750 ILCS 50/1(D)(m) (West 2006). Here, the trial court relied on subsection (i) in finding respondent unfit. The State also alleged that respondent failed to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare (750 ILCS 50/1(D)(b) (West 2006)), but the trial court found that the State had not proven that ground.

Respondent complains that the trial court "did not articulate the time period being considered" with regard to its finding that he failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children." This complaint is ill founded. There is only one time period relevant in judging the reasonable efforts of a parent. In In re Tiffany M., 353 Ill.App.3d 883, 890, 289 Ill.Dec. 317, 819 N.E.2d 813 (2004), we explained:

"The nine-month periods that apply to each subsection are as follows: subsections (i) and (ii) are to be examined in light of only the first nine months after the adjudication of neglect, and subsection (iii) may be examined in light of any nine-month period following the expiration of the first nine months after the adjudication of neglect."

Applying this rule, both parties arrive at the proper conclusion that the applicable period ran for nine months following the date of the adjudication of neglect—February 11, 2003.

It is true, as respondent points out, that evidence of parental unfitness relating to periods outside of the initial nine months following the adjudication of neglect was admitted at the fitness hearing. The mere fact that this evidence was admitted is not problematic. In addition to the allegation regarding reasonable efforts and reasonable progress, the State had also alleged that respondent did not maintain a reasonable, degree of interest, concern, or responsibility regarding the children's welfare. See 750 ILCS 50/1(D)(b) (West 2006). This ground of unfitness is not subject to the time limitations contained in section 1(D)(m) of the Adoption Act. See 750 ILCS 50/1(D)(b) (West 2006); In re Grant M., 307 Ill.App.3d 865, 869, 241 Ill.Dec. 334, 719 N.E.2d 195 (1999) ("In this case, the evidence is undisputed that, during the first five years Grant was in foster care with Rosie, Arthur demonstrated an almost total lack of interest, concern, or responsibility as to Grant's welfare"). Since evidence from outside of the nine-month period following the adjudication of neglect was relevant to the other ground alleged by the State, its admission was not improper.

One additional question remains: Was the trial court required to expressly state on the record that it was not relying on evidence from outside of the relevant nine-month period in making its finding that respondent failed to make reasonable efforts to correct the conditions that were the basis for the removal of the minors? Requiring such a finding would contradict some well-established principles of appellate review. Normally, we "presume that the trial judge knows and follows the law unless the record indicates otherwise." People v. Gaultney, 174 Ill.2d 410, 420, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996); see also In re Marriage of Sharp, 369 Ill. App.3d 271, 278, 307 Ill.Dec. 885, 860 N.E.2d 539 (2006) ("Thus, because the record does not allow us to know what occurred at this hearing or the basis for the court's support order, we must presume that the court followed the law and had a sufficient factual basis for its ruling"). Similarly, unless the record reveals otherwise, the trial court is presumed to disregard incompetent evidence. People v. Gant, 18 Ill.App.3d 61, 66, 309 N.E.2d 265 (1974) ("Ordinarily, we would presume that a trial judge would disregard incompetent evidence at a presentence hearing [citation], but where the record shows that the judge allowed his determination of what sentence to impose to be affected by incompetent evidence, then we must vacate the sentence"); see also People v. Cortes, 181 Ill.2d 249, 291, 229 Ill.Dec. 918, 692 N.E.2d 1129 (1998); Ferguson v. Bill Berger Associates, Inc., 302 Ill.App.3d 61, 76, 235 Ill.Dec. 257, 704 N.E.2d 830 (1998). Furthermore, it is usually the appellant's burden to affirmatively demonstrate error from the record. See People v. Majer, 131 Ill.App.3d 80, 83, 86 Ill.Dec. 272, 475 N.E.2d 269 (1985) ("The well-established rule is that an appellant must demonstrate the existence of error in the record and failure to do so creates a presumption of regularity that attaches to all trial court proceedings"); Schioniger v. County of Cook, 116 Ill.App.3d 895, 899, 72 Ill.Dec. 530, 452 N.E.2d 783 (1983) ("The presumption on appeal is that the trial court heard sufficient evidence on which to base its judgment, and the appellant has the burden of demonstrating that the record fails to support that judgment").

If we were to answer this final question affirmatively and find error from the trial court's failure to explain that it was applying section 1(D)(m) properly, we would be ignoring all of these principles. In effect, we would be saying that the trial court was not aware of the nine-month limitation contained...