In re MH

Decision Date25 April 2000
Docket NumberNo. 2-99-0864.,2-99-0864.
Citation246 Ill.Dec. 86,313 Ill. App.3d 205,729 N.E.2d 86
PartiesIn re M.H. and T.H., Minors (The People of the State of Illinois, Petitioner-Appellee v. V.D., Respondent-Appellant).
CourtUnited States Appellate Court of Illinois

Donald P. Sullivan (Court-appointed), Rockford, for V.D.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Sally A. Swiss, Wheaton, for the People.

Presiding Justice BOWMAN delivered the opinion of the court:

Respondent, V.D. (respondent), appeals from the trial court's termination of her parental rights with respect to her two daughters, M.H. and T.H. Respondent argues that (1) the State failed to prove she was unfit by clear and convincing evidence and (2) her admission of unfitness was involuntary and contrary to public policy. We reverse the trial court's judgment and remand for further proceedings.

Respondent has six children. This appeal involves respondent's rights only with respect to T.H. and M.H. On May 1, 1995, the State filed petitions alleging that T.H. and M.H. were neglected minors because one of their brothers occasionally set things on fire, thus placing T.H. and M.H. at risk of harm. Respondent admitted the petitions and, on August 1, 1995, the trial court declared T.H. and M.H. to be neglected minors and wards of the court. In its order of disposition, the trial court appointed Department of Children and Family Services (DCFS) as the girls' guardian and custodian and allowed them to be released to respondent. The court further ordered that (1) no other persons could live in respondent's home without prior approval from DCFS; (2) respondent's son, J.H., must receive counseling; (3) respondent must attend parenting class and counseling; (4) respondent must maintain a safe and clean home; (5) no alcohol could be consumed around the children; and (6) no one who was intoxicated was allowed in the home.

On or around February 13, 1996, respondent's children were removed from her custody because of poor conditions in their home. T.H., M.H., and their brother, J.H., were placed with their aunt. Later, M.H. and T.H. were placed with different foster parents. Eventually it came to light that T.H. had been sexually abused by her brother, S.H., and M.H. had been sexually abused by her brother, J.H. The record is silent as to when the abuse occurred and when respondent and DCFS learned of the abuse.

During the pendency of this matter, the court entered the following orders: the minors' parents and relatives were not to discuss child abuse and neglect issues with the minors; respondent's son, S.H., could have no unsupervised contact with his siblings or with respondent; respondent must cooperate in a psychological evaluation; and no one was to threaten or harass the caseworkers. The court entered this last order in response to reports that members of respondent's family had been harassing caseworkers.

Prior to the termination of respondent's parental rights as to T.H. and M.H., respondent was before the court numerous times for proceedings related to her children. On February 25, 1998, the trial court conducted an adjudicatory hearing on the State's petition to have respondent's youngest son declared an abused minor. During the hearing, respondent's counsel stipulated that M.H. and T.H. had been sexually abused by their brothers and respondent had not been able to protect them. The State introduced evidence that respondent recently had become romantically involved with B.D., who had been convicted of the aggravated sexual assault of a 13-year-old girl.

The State also introduced evidence that respondent allowed her brother to use cocaine in her home. There was conflicting evidence regarding whether respondent's youngest son was present while her brother was using cocaine. There was further evidence that on several occasions respondent's son, S.H., had run away from his foster placement to respondent's home and respondent had not informed DCFS of S.H.'s presence in her home. A family caseworker from Catholic Charities testified that respondent's protective skills were poor and she did not exercise good judgment concerning whom she allowed around her children.

On July 9, 1998, the State filed a "Supplemental Petition for Termination of Parental Rights and Power to Consent to Adoption" (supplemental petition) with respect to both T.H. and M.H. The supplemental petitions appear to be forms with blanks for dates and the parties' names. The supplemental petitions alleged that respondent was unfit to have a child because:

She has failed to maintain a reasonable degree of interest, concern, or responsibility as to the said minor's welfare.
She has failed to protect the said minor from conditions within Minor's environment which are injurious to the child's welfare.
She failed to make reasonable efforts to correct the conditions which were the basis of the removal of the said minor from her, or to make reasonable progress toward the return of the minor to her within 12 months after an adjudication of a neglected Minor und [sic] under Illinois Revised Statutes, ILCS705 [sic], Section 405/2-3."

The supplemental petitions also sought to terminate the rights of T.H.'s father and M.H.'s father.

The trial on the termination of respondent's parental rights was scheduled for January 20, 1999. On that date, the State indicated it would dismiss the petition to terminate respondent's parental rights as to her son, J.H., because J.H. did not want to be adopted. The State also informed the court that it would not seek to terminate respondent's parental rights with respect to her youngest son. The State went on to advise the court that respondent agreed to admit to the allegations in count III of the supplemental petitions that she was unfit for failing to make reasonable progress toward the return of M.H. and T.H. The State further advised that it would try to work out an open adoption for T.H. and M.H. that would allow respondent to remain in contact with her daughters. Respondent's attorney represented that he had thoroughly discussed the matter with respondent. The court then questioned respondent on whether she understood her right to require the State to prove her unfit:

"THE COURT: Okay. I want to be clear on the record, [V.D.], that you have a right of requiring the State prove the allegations, including the allegations that you failed to make reasonable progress on your service plan, that the State has a very high burden of proof, they can demonstrate by clear and convincing evidence that you failed to follow through or failed to progress, basically, in terms of meeting your service plan goals, finishing whatever classes or counseling that was required in order that [M.H.] and [T.H.] can be returned to you. Do you understand that you have the right to require that the State present a trial, and if you agree to this you are giving up your right to that?
THE COURT: Did you want to take a moment to talk to your attorney more? You are hesitating, so I don't want to be—This is a big step and I want you to be comfortable with it, and I want your [sic] to understand what's being said. What I understand is if you admit to this then the question becomes, at the point in time we set the second portion of it. It's a two-part consideration, first the unfitness issue and then what's in the best interests, and before anything would be done affecting your parental rights findings would have to be made. It would have to be found it would not be in the children's best interests to go home with you, or whatever, but the first part is—what we are talking about today—and you do have the right to require the State to prove that you are unfit, so if you give up that right I just want that to be made with your understanding and your agreement. Do you understand that?
THE COURT: Are you agreeable to that?

The court then accepted respondent's admissions on count III of the supplemental petitions. The parties conducted a prove-up on the issue of whether T.H.'s father and M.H.'s father were unfit. The trial court declared both fathers unfit.

In April and June 1999 the trial court conducted hearings to determine the best interests of T.H. and M.H. Ann Gerber, a family caseworker, testified that T.H. went back and forth between wanting to be adopted by her foster family and wanting to return to her mother. According to Gerber, M.H. wanted to stay with her foster family permanently.

Gerber did not want to work toward returning T.H. and M.H. to respondent because she felt respondent had made minimal progress toward improving her parenting skills. According to Gerber, most of respondent's counselors felt that she was either unable or unwilling to discuss the sexual abuse that happened to T.H. and M.H. Gerber said, "She discusses [the sexual abuse issues] now, but she still has a hard time understanding how this has affected her children and how she would have to protect them in the future from it occurring again." In Gerber's opinion, it was in the children's best interests to free them for adoption.

Gerber testified further that, when she observed family visits, respondent had a hard time interacting with T.H. and M.H. Although respondent was happy to see the children and sometimes gave them a hug, there was little other interaction between them.

Gerber indicated that respondent had completed Catholic Charities' parenting class twice. However, Gerber and the parenting class coordinator did not see much improvement in respondent's parenting skills. Gerber was also aware that respondent was attending counseling both individually and with her husband, B.D.

Respondent testified that, in the past four years, things had gone "not so good." She felt she had made "a little bit" of progress. When asked what...

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