In re Andrea F.

• Decision Date: 28 February 2002
• Docket Number: No. 2-01-1099.,2-01-1099.
• Parties: In re ANDREA F., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.F., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

764 N.E.2d 1281

327 Ill. App.3d 1072

262 Ill.Dec. 164

In re ANDREA F., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.F., Respondent-Appellant).

No. 2-01-1099.

Appellate Court of Illinois, Second District.

February 28, 2002.

Donald P. Sullivan and Lathryn Bischoff (Court-appointed), Rockford, for T.F.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Paul Benjamin Linton, Northbrook, for the People.

Gary J. Golian, Guardian Ad Litem, Dept. of Children & Family Services, Rockford, for A.N.F Justice BYRNE delivered the opinion of the court:

Respondent, T.F., appeals the judgment of the circuit court of Winnebago County adjudicating him an unfit parent, terminating his parental rights to his minor daughter, Andrea, and appointing the Department of Children and Family Services (DCFS) guardian of the minor with the power to consent to her adoption.

On appeal, respondent argues that (1) the trial court's adjudication of unfitness was against the manifest weight of the evidence; (2) the trial court's failure to admonish respondent that his failure to cooperate with DCFS services could result in the termination of his parental rights violated section 1-5(3) of the Juvenile Court Act (Act) (705 ILCS 405/1-5(3) (West 1996)); and (3) the trial court violated his fifth amendment right not to incriminate himself because the findings of unfitness were improperly based upon respondent's refusal to admit that he sexually abused Shannon H.

We hold that the court's lack of a complete admonition violated the Act, denying respondent a fair determination of his parental rights. Therefore, without deciding respondent's other contentions of error, we reverse the findings of parental unfitness and the order terminating respondent's parental rights, and we remand the cause for further proceedings.

The following facts are relevant to the disposition of the appeal. In November 1995, the State filed a petition alleging that Andrea was abused by her father, respondent, and that she was neglected and in an injurious environment because respondent placed her at risk of harm when he sexually abused Andrea's half-sister, Shannon H. At a preliminary hearing, the trial court read the allegations of the petition for abuse and neglect and explained the following to respondent:

"If either one of those allegations are [sic] proven to be true, the children could be declared to be neglected or abused minors.

If they're found to be abused minors, the Court must indicate [who] had caused the abuse and then determine the fitness of that person to have contact with, guardianship or custody of the minor.

The Court can if either allegation is found to be true declare the children to be wards of the Court until they reach the age of 19.

Basically, that enables the Court to enter orders requiring that the parents participate in counseling services intended to eliminate any future risk of the minors, to minimize any harm that's occurred to the minors in the past.

The Court can if it finds [the] parents are unable to adequately care for, protect, train, discipline the minors, the Court can remove the minors from the custody of one parent, place with another parent or remove from the custody of both parents, place with a relative or place under the guardianship of DCFS."

The court further explained to the parents their right to be present during the hearings, to question witnesses at trial, and to have a lawyer represent them. The court never advised respondent that his parental rights could be terminated if he failed to cooperate with DCFS or comply with the recommended service plans.

On July 30, 1996, at the close of the adjudication hearing, the court found Andrea and Shannon H. abused and neglected. The trial court denied the motion to reconsider and found that it would be in the minors' best interest to declare them to be wards of the court until they reached the age of 19, unless the court terminated the order. The court ordered the guardianship and custody of Andrea to her mother. Respondent was allowed visitations with Andrea, to be supervised at the discretion of DCFS. The court further ordered that:

"the mother, father and—actually, the father and minors cooperate with [DCFS] and shall participate in any and all counseling recommended by DCFS or its contracting agency, which shall include but not be limited to sexual offense counseling, protective services assessment counseling, victimization counseling, alcohol and substance abuse counseling."

The court did not advise respondent that he risked losing his parental rights if he failed to cooperate with DCFS or comply with the recommended service plans.

Respondent appealed the judgment of the trial court. We found the evidence sufficient to support the trial court's finding that Shannon H. had been abused and that Andrea was neglected and in an injurious environment because respondent had sexually abused Shannon H. However, we found the evidence insufficient to support the finding that respondent abused Andrea. In re A.F., No. 2-96-1050, 291 Ill. App.3d 1128, 240 Ill.Dec. 289, 716 N.E.2d 883 (1997)(unpublished order under Supreme Court Rule 23).

A modified order to reflect the Rule 23 disposition was entered by the trial court on May 11, 1998. Respondent filed a motion to modify the service plan to reflect the decision of the Rule 23 order, asking the court to permit respondent to visit with Andrea. On October 28, 1998, following the hearing on the motion to modify the disposition, the court ordered that supervised visits between respondent and Andrea could occur at the caseworker's discretion and that respondent must fully cooperate with counseling for these visits to occur. The court did not admonish respondent that his failure to cooperate could result in the termination of his parental rights.

On August 11, 2000, the State filed a petition for the termination of parental rights and the power to consent to adoption. The petition alleged that respondent was unfit because he failed to maintain a reasonable degree of interest, concern, or responsibility for Andrea; that he neglected Andrea in a continuous and repeated manner; and that he failed to make reasonable efforts to correct the conditions that were the basis of removal or to make reasonable progress toward her return home within nine months of the adjudication. On May 23, 2001, Andrea's mother voluntarily surrendered her parental rights. On May 30, 2001, following a hearing, respondent was found to be unfit and, thereafter, the court determined that it was in the best interests of the minor to terminate respondent's parental rights and to authorize DCFS to consent to Andrea's adoption. Respondent timely appeals.

We first address the appropriate standard of review. Ordinarily, a trial court's finding as to fitness is afforded great deference on review. In re M.H., 196 Ill.2d 356, 361, 256 Ill.Dec. 297, 751 N.E.2d 1134 (2001). However, in the present case, the question presented, whether the trial court was required to admonish respondent that he must cooperate with DCFS services or risk the termination of his parental rights, is a question of law and will be reviewed de novo. In re M.H., 196 Ill.2d at 361, 256 Ill.Dec. 297, 751 N.E.2d 1134

.

Section 1-5 of the Act in effect at the time of the initial adjudication of neglect and abuse and at the time of the original dispositional order in July 1996, provided, in pertinent part:

"Rights of parties to proceedings.

(1) * * * the minor who is the subject of the proceeding and his parents * * * have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also * * * the right to be represented by counsel.

* * *

(3) * * * At the first appearance before the court by the minor [and] his parents * * * the court shall explain the nature of the proceedings and inform the parties of their rights under the first 2 paragraphs of this Section." 705 ILCS 405/1-5 (1), (3) (West 1996).

Although there is no specific requirement under the Act that the courts admonish the parents regarding the termination of their parental rights, it is clear that the rights set forth in section 1-5(3) would be meaningless if the parents are unaware of them. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000). While Illinois courts recognize a parent's liberty interest in raising children, the courts also recognize that parental rights must sometimes be terminated. M.H., 196 Ill.2d at 362-63, 256 Ill.Dec. 297, 751 N.E.2d 1134.

The legislature balanced the parents' liberty interest in raising their children with those situations in which the best interests of the children sometimes establish that parental rights must be terminated. Article II of the Act (705 ILCS 405/2-1 et seq. (West 1996)) sets out the procedures for adjudicating a petition that alleges that a minor is abused, neglected, or dependent (705 ILCS 405/2-3 (West 1996)). After the entry of the determination (705 ILCS 405/2-21(1) (West 1996)), the court must hold a dispositional hearing (705 ILCS 405/2-22(2) (West 1996)). A dispositional hearing serves a crucial purpose in allowing the trial court to decide what further actions are in the best interests of a neglected, abused, or dependent minor. It also gives the parents fair notice of what they must do to retain their rights to their children in the face of any future termination proceedings. In re G.F.H., 315 Ill.App.3d 711, 715, 248 Ill.Dec. 591, 734 N.E.2d 519 (2000). This right is "of deep human importance and will not be lightly terminated." In re Paul, 101 Ill.2d 345, 351-52, 78 Ill.Dec. 149, ...