In re Kenneth F., 2-01-1479.

• Decision Date: 24 July 2002
• Docket Number: No. 2-01-1479.,2-01-1479.
• Citation: 773 N.E.2d 1259,332 Ill. App.3d 674,266 Ill.Dec. 189
• Parties: In re KENNETH F., Justin S., and Angel F., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Christy F., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

773 N.E.2d 1259

332 Ill. App.3d 674

266 Ill.Dec. 189

In re KENNETH F., Justin S., and Angel F., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Christy F., Respondent-Appellant).

No. 2-01-1479.

Appellate Court of Illinois, Second District.

July 24, 2002.

Donald P. Sullivan (Court-appointed), Rockford, for Christy F.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Stephen J. Norris, Deputy Director, Kevin D. Sweeney, State's Attorneys Appellate Prosecutor, Mt. Vernon, for the People.

Guardian Ad Litem, for Angel F., Kenneth F., Justin S.

Justice GROMETER delivered the opinion of the court:

Respondent, Christy F., appeals the orders of the circuit court of Winnebago County finding her an unfit parent and terminating her parental rights to three of her children, Kenneth F., Justin S., and Angel F. On appeal, respondent raises the following two issues: (1) whether respondent was properly admonished as required by section 1-5(3) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-5(3) (West 2000)), and (2) whether the trial court conducted a proper permanency review hearing as required by section 2-28 of the Juvenile Court Act (705 ILCS 405/2-28 (West 2000)). For the reasons that follow, we affirm.

A trial court's determination that a parent is unfit is entitled to great deference and will not be disturbed unless it is contrary to the manifest weight of the evidence or constitutes a clear abuse of discretion. In re A.A., 324 Ill.App.3d 227, 234, 257 Ill.Dec. 834, 754 N.E.2d 826 (2001). Nevertheless, questions of law are reviewed de novo. In re A.J., 323 Ill. App.3d 607, 609-10, 257 Ill.Dec. 356, 753 N.E.2d 551 (2001)

. When a trial court bases a finding of unfitness upon more than one ground, we must affirm if any one of the grounds justifies the finding. In re C.L.T., 302 Ill.App.3d 770, 772, 235 Ill.Dec. 863, 706 N.E.2d 123 (1999).

In the instant case, the trial court found respondent unfit on two of the grounds defined in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2000)). First, based upon respondent's sporadic visitation with the children, the trial court found that respondent failed to maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare. See 750 ILCS 50/1(D)(b) (West 2000). Second, the trial court found that respondent had failed to make reasonable efforts or reasonable progress toward having the children returned to her. See 750 ILCS 50/1(D)(m) (West 2000). We must affirm if either of these grounds warrants a finding of unfitness (C.L.T., 302 Ill.App.3d at 772,235 Ill.Dec. 863,706 N.E.2d 123), and we will thus focus on the former ground, where relevant, in the balance of this opinion. Relevant facts will be discussed as they pertain to the issues raised by the parties.

I. ADMONISHMENTS

We will first address respondent's argument that the trial court failed to properly admonish her that she risked the termination of her parental rights if she did not comply with service plans, cooperate with the Department of Children and Family Services (DCFS), and correct the conditions that required her children to be in care. See 705 ILCS 405/1-5(3) (West 2000). Respondent asserts that the record contains no such admonishment. Implicit in respondent's argument is the premise that if she had been properly admonished as to this possibility, she would have altered her behavior in such a manner that would have prevented the termination of her parental rights. Given the state of the record, we find this premise untenable.

Section 1-5(3) of the Juvenile Court Act provides, in pertinent part, the following:

"If the child is alleged to be abused, neglected or dependent, the court shall admonish the parents that if the court declares the child to be a ward of the court and awards custody or guardianship to the Department of Children and Family Services, the parents must cooperate with the Department of Children and Family Services, comply with the terms of the service plans, and correct the conditions that require the child to be in care, or risk termination of their parental rights." 705 ILCS 405/1-5(3) (West 2000).

We considered this portion of the Juvenile Court Act and its predecessors in In re Andrea F., 327 Ill.App.3d 1072, 262 Ill.Dec. 164, 764 N.E.2d 1281 (2002). In that case, we reversed an order of a trial court because the trial court failed to admonish the respondent that he could lose his parental rights if he did not cooperate with DCFS: Andrea F. is factually distinguishable from the instant case.

Before proceeding further, however, we note that respondent has waived this argument. On January 14, 1998, the trial-court adjudicated the minors neglected. Neither a transcript of this proceeding nor a bystander's report (see 166 Ill.2d R. 323(c)) appears in the record. The burden is on the appellant to present a sufficient record on appeal to substantiate any claims of error. Foutch v. O'Bryant, 99 Ill.2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). Any doubts arising as a result of omissions in the record must be resolved against the appellant. Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 546-47, 215 Ill.Dec. 108, 662 N.E.2d 1248 (1996). Given this omission, we must presume that the trial court acted properly and that respondent received the proper admonishments.

Even if we were to deem this argument properly preserved for review, respondent would not prevail, for the error that she complains of was harmless. In Andrea F., before holding that the trial court's failure to properly admonish' the respondent required a reversal, we observed the following:

"Here, the record fails to disclose that respondent was ever admonished that he could lose his parental rights to his child if he failed to cooperate with DCFS and comply with the service plans. Without a warning of the risks, at least by the time of the dispositional hearing, respondent could not appreciate the importance of compliance." Andrea F., 327 Ill.App.3d at 1079, 262 Ill.Dec. 164, 764 N.E.2d 1281.

Thus, in Andrea F., the record did not demonstrate that respondent was aware of the importance of compliance. By implication, had the respondent been aware of the consequences of noncompliance, he may well have complied with his service plans. Conversely, where the record demonstrates that, even if properly admonished, a respondent would not have complied with a service plan or cooperated with DCFS, the failure to admonish the respondent results in no prejudice and the error is harmless.

In Andrea F., this court relied primarily on In re Smith, 11 Ill.App.3d 1048, 33 Ill.Dec. 856, 397 N.E.2d 189 (1979) and In re Moore, 87 Ill.App.3d 1117, 42 Ill.Dec. 820, 409 N.E.2d 435 (1980), which interpreted a predecessor to section 1-5(3) of the Juvenile Court Act. Both Smith and Moore recognize that a harmless-error analysis is appropriate when a trial court fails to properly admonish a respondent in a proceeding such as the present one. In Smith, the court observed that the respondent, "apparently unaware that her son could be taken from her, was unprepared to challenge [the] evidence or to present evidence to the contrary." Smith, 11 Ill. App.3d at 1054, 33 Ill.Dec. 856, 397 N.E.2d 189. Thus, the Smith court was not concerned with admonishments merely for their own sake; it reversed because the failure to admonish the respondent had a tangible effect on the outcome of the proceedings. In other words, the error was prejudicial. We also note that the Smith court stated that a nonprejudicial defect in the pleadings would not warrant reversal. Smith, 11 Ill.App.3d at 1052, 33 Ill.Dec. 856, 397 N.E.2d 189. Pleadings are like admonishments in that they are intended to put parties on notice of things that are important to the conduct of an action. Johnson v. Mini Mutual Insurance Co., 18 Ill.App.2d 211, 221, 151 N.E.2d 634 (1958) (Reynolds, J., dissenting); J. Parness, Illinois Civil Procedure § 3-1 (1998).

The Moore court expressly recognized that a harmless-error analysis is appropriate when a court fails to properly admonish a respondent, stating, "While under the statute it is clearly error if the court fails to admonish the parents of their rights, it does not follow that such error would require reversal in every case." Moore, 87 Ill.App.3d at 1120, 42 Ill.Dec. 820, 409 N.E.2d 435. The court also noted it was unable to determine from the record whether the respondent was aware of the nature of the proceeding. Moore, 87 Ill. App.3d at 1121, 42 Ill.Dec. 820, 409 N.E.2d 435. Hence, the court did not simply consider whether the trial court admonished the respondent; it inquired into respondent's actual knowledge regarding the nature of the proceedings. The Moore court made several other observations that demonstrate that it was concerned with respondent's actual knowledge. First, it observed that "[n]either the trial court nor counsel addressed respondent as to her rights at any time." (Emphasis added.) Moore, 87 Ill.App.3d at 1121, 42 Ill.Dec. 820, 409 N.E.2d 435. Second, it noted that "the petition for adjudication of wardship failed to apprise respondent of the possibility of losing permanent custody of her child." Moore, 87 Ill.App.3d at 1121, 42 Ill.Dec. 820, 409 N.E.2d 435. Third, the court stated that it would not "presume such an awareness from the mere fact that respondent was represented by counsel." Moore, 87 Ill.App.3d at 1121-22, 42 Ill.Dec. 820, 409 N.E.2d 435. The Moore court was examining the record to see if it could locate something that would have put respondent on actual notice regarding the nature of the proceedings despite the lack of admonishments. Considering its statement that all such errors need not require reversal, it is apparent that, had such a collateral source of knowledge been located, the Moore court would not have reversed. In...