In re Bernice B., 1-03-1887.

• Court: United States Appellate Court of Illinois
• Citation: 352 Ill. App.3d 167,278 Ill.Dec. 134,815 N.E.2d 778
• Docket Number: No. 1-03-1887.,1-03-1887.
• Parties: In re BERNICE B., a Minor, Respondent-Appellee (The People of the State of Illinois, Petitioner-Appellee, v. Johnny D., Respondent-Appellant).
• Decision Date: 20 August 2004

815 N.E.2d 778
352 Ill. App.3d 167
278 Ill.Dec. 134

In re BERNICE B., a Minor, Respondent-Appellee (The People of the State of Illinois, Petitioner-Appellee, v. Johnny D., Respondent-Appellant)

No. 1-03-1887.

Appellate Court of Illinois, First District, Sixth Division.

August 20, 2004.

815 N.E.2d 780

Bruce H. Bornstein, Chicago, for Respondent-Appellant

Patrick T. Murphy, Cook County Public Guardian, Chicago (Charles P. Golbert and Christopher Willis, of counsel), for Minor-Respondent-Appellee.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb, Nancy Kisicki and Colleen M. Nevin, of counsel), for Petitioner-Appellee.

Presiding Justice FROSSARD delivered the opinion of the court:

Following a parental fitness hearing, the trial court found respondent father Johnny D. unfit to parent Bernice B. based on failure to maintain a reasonable degree of interest, concern, or responsibility for Bernice's welfare, pursuant to section 1(D)(b) of the Adoption Act (Act) (750 ILCS 50/1(D)(b) (West 2000)), desertion, pursuant to section 1(D)(c) of the Act (750 ILCS 50/1(D)(c) (West 2000)), and failure to make reasonable progress towards Bernice's return home, pursuant to section 1(D)(m) of the Act (750 ILCS 50/1(D)(m) (West 2000)). Following a best interest hearing, the court terminated respondent's parental rights as to Bernice. The court also terminated the parental rights of Bernice's mother; she is not a party to the instant appeal. Respondent now appeals the termination of his right to parent Bernice, contending that due process precludes the termination of parental rights of parents who are not fit to stand trial, that evidence before the court indicated respondent was not mentally fit to "stand trial" at the time of the termination proceedings, and that the trial court's commencement of termination proceedings without first conducting a hearing to determine whether he had been "restored to fitness" violated his right to due process. The term "fitness hearing" will be used in the opinion to indicate fitness to stand trial as opposed to "parental fitness" as it relates to the first stage of a termination proceeding. Respondent

815 N.E.2d 781

has not challenged the sufficiency of the evidence for the trial court's parental unfitness and best interest findings

This is a case of first impression. We have found no Illinois case addressing a parent's due process rights to a fitness to stand trial hearing in the context of a parental rights termination case. Our analysis will focus on the narrow question presented by the factual context of this case: whether due process requires fitness to stand trial hearings for parents in termination trials who fail to cooperate with the fitness evaluation process. In resolving that question, we do not resolve the question of whether fitness hearings in termination trials should be afforded to parents who cooperate with the fitness evaluation process. We emphasize we confine our conclusion to the facts of the instant case. Where the father respondent has refused to cooperate with the fitness evaluation process, we conclude that due process does not require a fitness to stand trial hearing in the context of a parental rights termination case.

BACKGROUND

Bernice was born on July 25, 1986. She has severe developmental delays and has been diagnosed with severe to profound mental retardation. She requires assistance with virtually all aspects of daily life, including but not limited to dressing and hygiene. Bernice first came to the attention of the Department of Children and Family Services (DCFS) in 1998 through the Chicago Board of Education, which received a hotline report stating that Bernice was not toilet trained, was apparently retarded, and had not been attending school. Bernice was removed from the custody of respondent and her mother and was placed in a nonrelative, specialized foster home.

In December 1999 the trial court entered an adjudication order finding Bernice neglected based on a lack of care and an injurious environment. On June 1, 2000, following a dispositional hearing, the trial court adjudicated Bernice a ward of the court, finding her mother unable to care for her and finding respondent unable and unwilling to care for her. The trial court also entered an order requiring respondent to undergo a psychological evaluation pursuant to a "Request for Clinical Information" filed by counsel. The request stated respondent appeared "erratic in thought" and "does not appear to comprehend questions being asked of him." The request further noted that respondent had been referred for a psychological evaluation and services through DCFS but had never cooperated or complied with referrals and services previously offered.

In April 2001, the State filed a motion to terminate respondent's right to parent Bernice and to appoint a guardian with power to consent to Bernice's adoption. The State alleged the following grounds for termination: (1) failure to maintain a reasonable degree of interest, concern, or responsibility as to Bernice's welfare pursuant to section 1(D)(b) of the Act (750 ILCS 50/1(D)(b) (West 2000)); (2) desertion of Bernice for more than three months "next preceding the commencement of these termination proceedings" pursuant to section 1(D)(c) of the Act (750 ILCS 50/1(D)(c) (West 2000)); (3) failure to make reasonable efforts to correct the conditions that were the basis for Bernice's removal and/or failure to make reasonable progress towards her return pursuant to section 1(D)(m) of the Act (750 ILCS 50/1(D)(m) (West 2000)); and (4) intent to forgo parental rights based on failure to visit Bernice, communicate with the agency, and maintain contact with or plan for the future of Bernice pursuant to section

815 N.E.2d 782

1(D)(n) of the Act (750 ILCS 50/1(D)(n) (West 2000))

On June 7, 2001, approximately one year after filing its original request for clinical information regarding respondent, a second "Request for Clinical Information" was filed by counsel. The request was made in order to determine "[p]arental competence to understand and participate in judicial proceedings." Pursuant to this request, the trial court entered an order referring respondent for a clinical evaluation.

Respondent ultimately attended a psychological evaluation conducted by Ascher Levy, Psy.D., on September 26, 2001. Dr. Levy stated in the report that respondent was only "minimally cooperative" during the assessment, and "would not allow [Dr. Levy] to ask certain questions and/or would not respond to many inquiries directly." Dr. Levy opined that respondent was not able to cooperate with his attorney "whom he irrationally believe[d][was] not working in his best interest." Dr. Levy opined that respondent was unfit to participate in termination-of-parental-rights proceedings. However, Dr. Levy also concluded that respondent understood the purpose of the termination proceedings as well as the roles of the judge and respondent's counsel in those proceedings.

As a result of respondent's failure to cooperate, Dr. Levy was only able to obtain a minimal assessment and could not determine whether respondent suffered from a treatable mental illness. Respondent's lack of cooperation also prevented Dr. Levy from forming an opinion as to whether respondent "can be restored to fitness to participate in these proceedings within a reasonable period of time." Dr. Levy recommended that a psychiatrist evaluate respondent to determine if his "irrational beliefs" and "disruption of court" were the result of a treatable mental illness or "characterological traits that are unlikely to change" and to determine whether psychotropic medication could restore him to fitness.

On October 17, 2001, a third "Request for Clinical Information" was filed. It sought a psychiatric evaluation of respondent to determine a mental health diagnosis and whether psychiatric medication could restore him to fitness. Pursuant to that request, the trial court entered an order referring respondent for a psychiatric assessment. In December 2001, the trial court held a brief hearing regarding the status of respondent's psychiatric examination. After noting it had received a letter from the Clinical Evaluation and Services Initiative indicating respondent had missed the examination, the trial court indicated it would not further postpone the termination proceedings to "get [respondent] to go to his psychiatric exam."

Respondent had three different attorneys over the course of five years during the instant case. The trial court first appointed the office of the public defender to represent respondent in May 1998. In October 1998, approximately five months after its appointment, the public defender filed a motion to withdraw. The motion noted that respondent informed an assistant public defender in August 1998 that he wanted a "real lawyer" and was dissatisfied with the services of the public defender's office. The motion further noted that on October 13, 1998, respondent informed an assistant public defender that he would not cooperate with any services or court orders, and that he had filed a suit against the public defender's office. In December 1998, the trial court granted the public defender's motion to withdraw.

In March 2001, the trial court ordered that private counsel be appointed for respondent. Kimberly Seymore, the appointed counsel, represented respondent

815 N.E.2d 783

for approximately seven months before filing a motion to withdraw in November 2001. Ms. Seymore's motion noted respondent had stated on numerous occasions he wanted to fire her and cited Dr. Levy's psychological report, which stated respondent irrationally believed his attorney was not working in his best interest. The motion also noted respondent had filed a complaint against her with the Attorney Registration and Disciplinary Commission.

At a December 2001 hearing, Ms. Seymore advised the trial court of her...