In re EC

Decision Date05 March 2003
Docket NumberNo. 1-01-0097.,1-01-0097.
Citation337 Ill. App.3d 391,786 N.E.2d 590,272 Ill.Dec. 51
PartiesIn the Interest of E.C. and D.C., Minors (The People of the State of Illinois, Plaintiff-Appellee, v. E.C., Sr., Defendant-Appellant).
CourtUnited States Appellate Court of Illinois

Randy Crumpton, Chicago, for Appellant.

Patrick T. Murphy, Charles P. Golbert and Deborah Pergament, Office of the Cook County Public Guardian; Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Nancy Grauer Kisicki and Peter Maltese, of counsel), Chicago, for Appellees.

Justice WOLFSON delivered the opinion of the court:

Following a hearing, the circuit court found respondent, Eddie C. Sr., to be an unfit parent to his children, Eddie C. and Darryl C., based on his repeated incarceration as a result of criminal convictions, which prevented the discharge of his parental duties. 750 ILCS 50/1(D)(s) (West 1998). The court granted the State's motion for summary judgment on this issue. At a subsequent hearing, the court held it was in the best interest of the minors to terminate respondent's parental rights.

Respondent contends on appeal: (1) the trial court erred in granting summary judgment for the State because there was a genuine issue of material fact; (2) the trial court erred in allowing the State to amend its petition to include an allegation that would apply retroactively to respondent; and (3) the court's decision to terminate his parental rights was against the manifest weight of the evidence. We affirm.

FACTS

Eddie was born on March 18, 1988; Darryl was born on June 17, 1989.1 A finding of neglect was entered for both children on September 12, 1990. Respondent and the children's mother, Zina C., who is not a party to this appeal, were found unable, for some reason other than financial circumstances alone, and unwilling, to care for, protect, train, or discipline the boys. On December 18, 1990, the children were adjudicated wards of the court and placed under the guardianship of the Department of Children and Family Services (DCFS).

The State filed petitions on September 18, 1998, for termination of parental rights and appointment of a guardian with right to consent to adoption. The petitions alleged respondent was an unfit parent because he abandoned the children; failed to maintain a reasonable degree of interest, concern or responsibility as to their welfare; failed to protect them from conditions in the environment injurious to the children's welfare; behaved in a depraved manner; failed to make reasonable efforts to correct the conditions which were the basis of removal of the children or to make reasonable progress toward the return of the children within nine months of the adjudication of neglect; and evidenced intent to forego his parental rights as manifested by his failure for 12 months to visit the children, communicate with them or their agency, and to maintain contact with them or plan for their future, in violation of subsections 50/1(D)(a, b, g, i, m, and n) of the Adoption Act and section 2-29 of the Juvenile Court Act. 750 ILCS 50/1(D)(a), (b), (g), (i), (m), (n) (West 1998); 705 ILCS 405/2-29 (West 1998).

The State filed a motion to amend its petition on June 2, 2000, seeking to include two additional allegations. Under subsection 1(D)(r) of the Adoption Act, the State alleged respondent was incarcerated as a result of criminal conviction at the time the petition was filed, prior to incarceration he had little or no contact with the children and provided little or no support for them, and his incarceration would prevent him from discharging his parental responsibilities for more than two years after filing of the petition. 750 ILCS 50/1(D)(r) (West 1998); 705 ILCS 405/2-29 (West 1998). The State also alleged under subsection 1(D)(s), respondent was incarcerated at the time of filing of the petition, has been repeatedly incarcerated as a result of criminal convictions, and his repeated incarceration has prevented him from discharging his parental responsibilities for the children. 750 ILCS 50/1(D)(s) (West 1998); 705 ILCS 405/2-29 (West 1998).

The State also filed a motion for summary judgment on June 6, 2000, contending no genuine issue of material fact exists, that the court should find respondent unfit as a matter of law. The State attached certified copies of respondent's three criminal convictions—possessing a stolen motor vehicle in 1994, burglary in 1993, and battery in 1989. Respondent was sentenced to three years, twelve years, and 250 days, respectively, for these convictions. The three-year and twelve-year sentences were to be served concurrently. The motion alleged respondent was currently incarcerated and was not scheduled for release until September 9, 2002.

Respondent filed a motion to strike the affidavits attached to the summary judgment motion, contending they were not based on the affiants' personal knowledge, but on information and belief. Respondent also filed a motion for involuntary dismissal under section 2-619(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(9) (West 2000)), contending the additional grounds of unfitness alleged by the State under subsections 1(D)(r) and 1(D)(s) became effective July 30, 1998,2 and could not be applied retroactively to respondent.

On July 17, 2000, the court held a hearing on the State's motion to amend the petition for termination of parental rights and motion for summary judgment. After hearing testimony from Mary Witherspoon, the children's foster parent, and Monese DeRamus, the children's caseworker, the court denied respondent's motion to strike the affidavits.3 The court also allowed the State's motion to amend the petition for termination of parental rights to include the additional allegations.

On August 7, 2000, respondent filed a response to the summary judgment motion, contending he repeatedly sought visitation with his children, attempted to maintain contact and plan for his children's future, and never had the requisite intent to abandon his children or forego his parental rights. Respondent also contended the State's motion failed to establish he had been incarcerated more than once for a criminal conviction. Respondent attached a personal affidavit, contending since his incarceration in 1994 he had been unable to visit his children except on court dates. He had repeatedly sought visitation with the children by asking the foster mother and DCFS workers and seeking court orders, but he was denied all visitation. Finally, since his incarceration he had attempted to maintain contact with and plan for his children's future through written and verbal communication with their mother, foster mother, and DCFS workers. Before his incarceration, he provided for the support of the children and had frequent contact with them.

On September 19, 2000, after hearing arguments from all sides, the court granted summary judgment for the State on one of the added grounds. The court found by clear and convincing evidence respondent was unfit based on subsection 1(D)(s), because his repeated incarceration as a result of criminal convictions prevented him from discharging his parental responsibilities. 750 ILCS 50/1(D)(s) (West 1998); 705 ILCS 405/2-29 (West 1998). The court denied summary judgment on the other grounds in the State's petition.

On December 12, 2000, the State elected not to proceed on any of the additional allegations of unfitness against respondent. At the best interest hearing, Thetis Cromie, a psychotherapist, testified she had been counseling the children since May of 1997. They were referred to her for anxiety and behavioral problems as a result of past neglect and abuse. The boys' problems at the time of referral included bed-wetting, problems focusing and concentrating, and behavioral disturbances. The boys both expressed strong anxiety and fear regarding visiting respondent. Since her assignment to the case, the boys had not visited respondent nor requested visits with him. Cromie testified the boys were attached to their foster parents and expressed a desire to remain with them until adulthood. In Cromie's opinion, the children's placement with the foster parents was a nurturing and protective environment, and it would be traumatic for them to be removed from that placement. She said Darryl supported the idea of terminating his father's rights because he was afraid of him and did not want to visit him. Eddie did not want his father's rights terminated but did not give a reason.

DeRamus testified she had been assigned as the children's caseworker since October 1997. To her knowledge, their last visit with respondent was in April 1995 at the Cook County Jail. Since then, no visits had taken place because the children did not wish to visit respondent. Respondent had no contact with the children by phone or mail. Respondent had sporadically sent letters to the foster parents but was ordered to stop by the court because the letters were inappropriate. The children had been in their current foster home since April 1991. DeRamus testified the home was safe and appropriate.

Beverly Gordon, a DCFS employee, testified she was assigned to the family's case from 1995 until September 1998. On February 25, 1998, she conducted a visit between respondent and two siblings of Eddie and Darryl. Respondent was verbally abusive toward Gordon and threatened her in front of the children. Gordon testified she and the children were frightened by respondent.

DCFS employee Chris Cunningham testified he had been assigned to the family's case since September 1998. He said he offered respondent services in 1998, but respondent was not interested. Since that time, respondent had not been offered services or provided any verification that he had received therapy.

Witherspoon testified she had been the children's foster parent since April of 1991. Between 1991 and 1994, before respondent was incarcerated, he had...

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