In re DW

Decision Date30 September 2003
Docket NumberNo. 1-02-1606.,1-02-1606.
Citation799 N.E.2d 410,278 Ill.Dec. 692,344 Ill. App.3d 30
PartiesIn the Matter of D.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.M., Respondent-Appellant).
CourtUnited States Appellate Court of Illinois

Rita A. Fry and Edwin A. Burnette, Public Defender of Cook County (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Nancy Grauer Kisicki, Annette Collins, Assistant State's Attorneys, of counsel), Chicago, for Appellee.

Patrick T. Murphy, Office of the Public Guardian (Charles P. Golbert, Allison I. Ortlieb, of counsel), Chicago, for Appellee Minor.

Justice BURKE delivered the opinion of the court:

Respondent L.M. appeals from an order of the circuit court terminating her parental rights with respect to her minor son, D.W., pursuant to section 2-29(2) of the Juvenile Court Act (705 ILCS 405/2-29(2) (West 1998)) and section 1(D)(q) of the Illinois Adoption Act, as amended in 1998 (750 ILCS 50/1(D)(q) (West 1998)). On appeal, respondent argues that: (1) section 1(D)(q) of the Illinois Adoption Act violates the due process and equal protection clauses of the United States and Illinois Constitutions; and (2) the trial court abused its discretion in finding that it was in D.W.'s best interests to terminate respondent's parental rights. For the reasons set forth below, we affirm.

In 1990, respondent was convicted of the attempted murder of her infant son, D.E. The indictment alleged that respondent poisoned D.E. with Pine Sol by feeding it to him in his bottle. Respondent was sentenced to six years' imprisonment. At that time, respondent had three children, M.E., Q.E., and D.E. The children were placed in their father's custody when respondent went to prison.

Following her early release from prison, on March 7, 1994, respondent gave birth to D.W. In 1995, the State filed a petition for adjudication of wardship of D.W. based on respondent's prior conviction and her history of reports with the Department of Children and Family Services (DCFS) from 1987 to 1990, including reports of neglect, inadequate supervision, and the alleged poisoning of another one of her children. Following a temporary custody hearing, the State removed D.W. from respondent's home, pending an adjudicatory hearing. The adjudicatory hearing began in October 1995, but was continued until February 1996. At the adjudicatory hearing in 1996, the juvenile court found that D.W. was at substantial risk of physical injury and permanently removed D.W. from respondent's custody. On appeal, this court reversed the juvenile court's decision after finding that the juvenile court violated the time limitation for an adjudicatory hearing provided in section 2-14(b) of the Juvenile Court Act (705 ILCS 405/2-14(b) (West 1994)). In the Interest of D.W., No. 1-96-1996, 294 Ill.App.3d 1089, 242 Ill.Dec. 568, 721 N.E.2d 847 (1998) (unpublished order under Supreme Court Rule 23).

The State then filed another petition for adjudication of wardship of D.W. on April 3, 1998. The State alleged in the petition that D.W. was abused and faced substantial risk of physical injury under section 2-3(2)(ii) of the Juvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 1996)). The petition included respondent's prior conviction and her previous contacts with DCFS. On August 28, the juvenile court found that D.W. was abused or neglected under section 2-3(2)(ii) based on respondent's: (1) criminal conviction for the attempted murder of her child, D.E.; (2) five prior DCFS reports of abuse and neglect; and (3) failure to undergo recommended mental health treatment. At that time, D.W. was placed with his maternal grandmother.

On September 16, 1999, the State filed a supplemental petition for appointment of a guardian with the right to consent to D.W.'s adoption. The State alleged in the petition, inter alia, that respondent: (1) failed to maintain a reasonable degree of interest, concern or responsibility as to D.W.; (2) failed to make reasonable efforts to correct the conditions which were the basis for D.W.'s removal and failed to make reasonable progress toward his return; and (3) had been criminally convicted of the attempted murder of a child. On October 15, respondent signed a specific consent to adoption for her mother to adopt D.W. However, in May 2000, D.W. was removed from respondent's mother's custody because DCFS discovered that respondent's mother allowed unsupervised contact between D.W. and respondent. D.W. was thereafter placed in the custody of a foster mother.

Subsequently, respondent successfully sought to vacate her specific consent to adoption. As a result, on July 25, 2000, the State's September 16, 1999, petition for appointment of a guardian with the right to consent to D.W.'s adoption was reinstated. At first, the State sought to terminate respondent's parental rights based upon the three grounds outlined in its initial petition. However, prior to the fitness hearing, the State withdrew two of the three grounds and proceeded only under section 1(D)(q) of the Illinois Adoption Act (750 ILCS 50/1(D)(q) (West 1998)) based on respondent's criminal conviction for the attempted murder of a child. Following both a fitness and a best interests hearing, detailed below, the juvenile court found respondent unfit pursuant to section 1(D)(q) and that it was in D.W.'s best interests to terminate respondent's parental rights. Accordingly, the trial court entered an order on May 17, 2002, terminating respondent's parental rights.

Fitness Hearing

The record reveals the following regarding the fitness hearing held by the juvenile court on May 17, 2002. As stated above, the State attempted to prove that respondent was an unfit parent only under section 1(D)(q) of the Illinois Adoption Act, as amended (750 ILCS 50/1(D)(q) (West 1998)). Under that section, a parent is presumed unfit if the parent "has been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child." 750 ILCS 50/1(D)(q).

The State first called respondent to testify as an adverse witness. Respondent testified that in 1990, she was convicted of attempting to kill her son, D.E. The State then had a certified copy of respondent's 1990 conviction admitted into evidence, which stated that respondent was guilty of attempted first degree murder and respondent's 1990 indictment which alleged that respondent was guilty of "intentionally and knowingly" attempting to kill D.E. "by poisoning him by feeding him Pine Sol, in violation of chapter 38, 8-4/38-9-1 of Illinois Revised Statutes, 1985 as amended." Additionally, the State had a disposition order previously entered by Judge Kawamoto, which named respondent as the mother of D.E., admitted into evidence. The State presented no other evidence at the fitness hearing.

Respondent's counsel then called respondent as a witness and attempted to introduce evidence of respondent's rehabilitation efforts since her conviction. The State objected on relevancy grounds, maintaining that under section 1(D)(q), there is no defense of rehabilitation. The State argued that under section 1(D)(q), if there is competent evidence of a respondent's prior conviction for the attempted murder of a child, there is an irrebuttable presumption of unfitness. The trial court initially agreed with the State and sustained the State's objection.

Respondent then argued to the court that its application of section 1(D)(q), i.e., its refusal to allow rehabilitation evidence at the fitness hearing, violated the due process and equal protection clauses of the United States and Illinois Constitutions. The State and the public guardian responded that the trial court's application of section 1(D)(q) was not unconstitutional. In support of their argument, the State and the public guardian cited In re J.B., 328 Ill.App.3d 175, 262 Ill.Dec. 485, 765 N.E.2d 1093 (2002), which specifically held that barring rehabilitation evidence from a fitness hearing pursuant to section 1(D)(q) does not violate a parent's equal protection or due process rights.1

The trial court then stated that respondent's case was conceivably factually distinct from In re J.B. and allowed the rehabilitation evidence at the fitness hearing. Specifically, the trial court stated:

"I'm going to hear the testimony, regard[ing] rehabilitation. I'm going to hear Miss [L.M.'s] testimony. It is just a matter of am I going to hear it at the unfitness hearing or the best interest hearing.
If I were to wait and hear it only at the best interest hearing, it is possible that the Appellate Court might see this case differently than they saw JB and say that is an equal protection problem. Therefore, reverse the finding. If the child were adopted, they would have to undo the adoption. This could all take a couple years, unless it would be an expedited appeal.
On the other hand, I could overrule the objection by the State and Guardian, allow natural Mother to present her evidence of rehabilitation at the unfitness hearing and then make a determination as to whether she's unfit under the statute.
The Court believes that, in fact, this would not overly [sic] prejudicial to the State or Guardian, because you must have anticipated she's going to be presenting evidence of her rehabilitation at either the unfitness or the best interest hearing in any event.
The Court, assuming the statute is constitutional, noting depravity is not alleged, has not been alleged in this case, that the only allegation of unfitness that has been acted upon or prosecuted or is being prosecuted by the State in [paragraph] Q [of section 1(D)] is going to, despite the fact that the Appellate Court has in February upheld the constitutionality of Paragraph Q, going to allow the natural mother to offer her evidence of rehabilitation in light of the equal protection argument raised
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5 cases
  • In re DW
    • United States
    • Illinois Supreme Court
    • March 24, 2005
    ...1(D)(q). The First District of the appellate court upheld the constitutionality of the statute in L.M.'s appeal (In re D.W., 344 Ill.App.3d 30, 278 Ill.Dec. 692, 799 N.E.2d 410); in Lisa Z.'s case, the Second District of the appellate court held the statute unconstitutional on due process g......
  • In re DT
    • United States
    • Illinois Supreme Court
    • October 21, 2004
    ...of the trial judge and/or that termination orders are reviewed for an abuse of discretion. E.g., In re D.W., 344 Ill.App.3d 30, 55-56, 278 Ill.Dec. 692, 799 N.E.2d 410 (2003); In re Diane L., 343 Ill.App.3d 419, 425, 278 Ill.Dec. 116, 797 N.E.2d 711 (2003); In re Jeffrey S., 329 Ill.App.3d ......
  • In re Amanda D.
    • United States
    • United States Appellate Court of Illinois
    • June 24, 2004
    ...terms of an irrebuttable presumption, which suggests that a procedural analysis is appropriate. See, e.g., In re D.W., 344 Ill.App.3d 30, 35, 278 Ill.Dec. 692, 799 N.E.2d 410 (2003); J.B., 328 Ill.App.3d at 186, 262 Ill.Dec. 485, 765 N.E.2d 1093; In re O.R., 328 Ill.App.3d 955, 962, 263 Ill......
  • People v. Carmichael
    • United States
    • United States Appellate Court of Illinois
    • September 30, 2003
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