In re Kenneth J.
| Decision Date | 21 September 2004 |
| Docket Number | No. 1-02-3543.,1-02-3543. |
| Parties | In re KENNETH J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Carmen D., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
Edwin A. Burnette, Public Defender of Cook County (Eileen T. Pahl, Assistant Public Defender, of counsel), Chicago, for Appellant.
Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, James E. Fitzgerald, Peter Maltese, Assistant State's Attorneys, of counsel), Chicago, for Appellee.
Patrick T. Murphy, Cook County Public Guardian, Office of the Cook County Public Guardian (Patrick T. Murphy, Charles P. Golbert, Christopher J. Williams, of Counsel), Chicago, for Minor-Appellee.
Respondent Carmen D. appeals from an order of the circuit court, finding her unfit on the basis that she failed to make reasonable progress toward the return of her child, Kenneth J., within the nine-month period following adjudication of neglect or abuse and/or within any nine-month period thereafter and terminating her parental rights. On appeal, respondent contends that: (1) the petition for termination denied her due process because it failed to identify the nine-month period at issue; (2) the trial court erred in admitting into evidence a "Parenting Assessment Report" (Report) as relevant and as a business record; (3) the trial court erred in admitting testimony from case workers; and (4) the trial court's finding of unfitness was against the manifest weight of the evidence. For the reasons set forth below, we affirm.
Respondent and her children first became involved with child protection agencies in October 1990. On August 7, 1996, the State filed a petition for adjudication of wardship over respondent's three children, including Kenneth, born February 17, 1996, alleging that Kenneth was abused and neglected on the bases that his two siblings, Michael and Tiffany, had been sexually molested by respondent's paramour on August 28, 1995, respondent refused services, and respondent refused to comply with requests, including counseling. On August 8, Patrick Murphy was appointed guardian ad litem (GAL) and temporary custody of Kenneth was granted to his maternal aunt, Wanda, respondent's sister, and her husband, Derrick.
On February 20, 1997, an adjudication order was entered, finding Kenneth abused or neglected based on an injurious environment and substantial risk of injury. On May 30, a dispositional order was entered, adjudicating Kenneth a ward of the court. At all times thereafter, respondent's visits with her children were supervised pursuant to court order.
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
On March 4, 1999, the trial court ordered a parenting assessment evaluation to be done of respondent. This assessment was undertaken in late 1999 by members of a team from Thresholds Mothers' Project, an agency funded by the Department of Children and Family Services (DCFS), whose purpose was to assist DCFS and the juvenile court in evaluating parenting capabilities of mentally ill parents. The Report, consisting of a summary and four individual evaluations, was subsequently entered into evidence at respondent's termination hearing over respondent's objection. The Report summary indicated that respondent's case was referred to the team on May 4, 1999. Respondent and her children were evaluated by Kathleen Pesek, M.Ed., a child development specialist, on November 8, 1999; Mark Amdur, M.D., a psychiatrist, on October 28; Nycole Bridle, B.A., a case aide, and Frank Lani, Ph.D., a psychologist, on October 27; and Barbara White, L.C.S.W., A.C.S.W., a social worker, on October 25. White's evaluation took place at respondent's home and the other evaluations took place at the team's office. The summary identified the referral questions and the team's subsequent answers as:
The summary also identified significant risk factors, including respondent's primary difficulty as being her extremely limited intellectual capacity. According to the Report, respondent had no clear understanding of why her children were taken away and disagreed with the decision to do so. As such, the Report indicated that respondent's "lack of insight suggests low probability that problematic issues would change." The Report further noted that respondent was driven by her need for the children or how they made her feel and not by their needs. She tended toward role reversal and held unreasonably high expectations of her children. The Report continued that respondent's understanding of child development was deficient and that she was "in significant psychological distress." As a result of this, her relationships with others tended to be "unrewarding or difficult." The Report also indicated that respondent's social support network was very limited. The Report recommended that, given respondent's difficulties, there were "no additional services that would sufficiently increase her parenting capability to an acceptable level."1
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
On May 30, 2001, the State filed a supplemental petition to appoint a guardian with the right to consent to adoption. The petition alleged that respondent was unfit under section (1)(D)(b) of the Adoption Act (Act), failure to maintain a reasonable degree of interest, concern or responsibility, and under section (1)(D)(m), in that she "failed to make reasonable effort to correct the conditions which were the basis for the removal of the children from [her] and/or [has] failed to make reasonable progress toward the return of the children to [her], within 9 months after the adjudication of neglect or abuse * * * and/or within any 9 month period after said finding." 750 ILCS 50/1 (West 2002).
Hearings on the termination petition began on May 15, 2002.
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
After hearing the evidence and the arguments of the parties, the court found respondent unfit only with respect to section (1)(D)(m)(iii) of the Act. 750 ILCS 50/1(D)(m) (West 2002). Following an immediate best interests hearing, the court concluded that it was in Kenneth's best interests to appoint a guardian with the right to consent to adoption. On October 15, 2002, the trial court entered a termination hearing order, finding respondent unfit with respect to reasonable progress. The trial court also entered a permanency order terminating respondent's parental rights and stating that the goal was adoption. This appeal followed.
Respondent first contends that the State's petition for termination violated her due process rights because it did not identify the nine-month period in which she allegedly failed to make reasonable progress. Respondent argues that it is impossible to determine from the petition which nine-month period, of the five different nine-month periods existing, the State was going to litigate and, thus, she did not have sufficient notice as required by due process. Respondent maintains that the law requires the State to set forth a specific and distinct time period. Respondent further argues that her failure to raise the issue in the trial court did not waive it for review because the failure to state a cause of action, as is the case here, can be raised at any time.
The Guardian contends that respondent waived review of this issue because she failed to object to it in the trial court and give the State an opportunity to cure any alleged defect, that the petition did not deny respondent due process because the State is not required to set forth a specific nine-month time period-the State is only required to allege respondent's unfitness and the statutory ground for same — and, alternatively, even if the State was required to do so, respondent suffered no prejudice and failed to demonstrate how she was surprised or prejudiced by the petition. The Guardian relies on several cases to support his position that the State need not allege a specific time frame.2 The State presents essentially the same arguments.
Section 1(D)(m) of the Act sets forth the following bases for the termination of parental rights:
"Failure by a parent (i) to make reasonable efforts to correct the conditions that were the basis...
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