People v. Maurice B. (In re M.B.)

• Citation: 432 Ill.Dec. 413,129 N.E.3d 631,2019 IL App (2d) 181008
• Decision Date: 06 May 2019
• Docket Number: No. 2-18-1008,2-18-1008
• Parties: IN RE M.B., D.B., and D.B., Minors. (The People of the State of Illinois, Petitioner-Appellee, v. Maurice B., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 181008

129 N.E.3d 631

432 Ill.Dec. 413

IN RE M.B., D.B., and D.B., Minors.

(The People of the State of Illinois, Petitioner-Appellee,

v.Maurice B., Respondent-Appellant).

No. 2-18-1008

Appellate Court of Illinois, Second District.

Opinion filed May 6, 2019

Andrew J. Vella, of Rockford, for appellant.

Marilyn Hite Ross, State’s Attorney, of Rockford (Patrick Delfino, David J. Robinson, and Cora Moy, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 On November 13, 2018, the circuit court of Winnebago County found that the State had established by clear and convincing evidence that respondent, Maurice B., was unfit to parent his children, M.B., D.B., and D.B. (ages three, six, and eight at the time of the hearing) and that it was in the children's best interests that respondent's parental rights be terminated. Respondent appeals, arguing that the court's findings that he was unfit and that termination was in the children's best interests are contrary to the manifest weight of the evidence and, further, that his due process rights were violated when the court vacated his attorney's appointment before the unfitness hearing. As we agree with respondent's due process argument, we vacate the court's judgment and remand.

¶ 2 I. BACKGROUND

¶ 3 In January 2017, the Department of Children and Family Services (DCFS) was called to respondent's home after his two-month-old infant's death was reported. (The pathologist concluded that the infant's cause of death was suffocation upon co-sleeping.) Respondent and Doneisha T., the children's mother,¹ reportedly gave varying accounts of the events leading to the death, and the three other children were told not to talk to DCFS. After an investigation revealed multiple reports of domestic violence between respondent and Doneisha and police found 30 bags of marijuana in the residence, DCFS took protective custody of the children.

¶ 4 On August 1, 2017, the children were adjudicated neglected. The report of proceedings reflects seven hearings between February 2, 2017, and August 7, 2017; respondent was present at four of the hearings and his appointed counsel was present at all of them. During a hearing at which respondent was not present, the court learned that respondent's counsel had not had any contact with respondent since the previous court date and that respondent had missed appointments with the caseworker; as such, the court found that respondent forfeited his right to be present at the hearing.

¶ 5 On September 28, 2017, the court held a dispositional hearing. Respondent was present with counsel. The court reminded respondent that he must cooperate and make reasonable progress or the State had could petition to terminate his parental rights. A permanency hearing was scheduled.

¶ 6 At the February 28, 2018, permanency hearing, respondent was present with counsel. However, at the next permanency hearing, on August 10, 2018, respondent was not present. Counsel reported that she had not had any recent contact with respondent. The court noted that there was an outstanding warrant for respondent's arrest. The court continued the hearing to August 22, 2018.

¶ 7 On August 22, 2018, neither respondent nor Doneisha appeared, and their respective attorneys reported that they had not had any contact with them. A caseworker represented that she believed that they were in Chicago, that they had missed their last scheduled visit, and that respondent had an outstanding warrant. Doneisha's attorney stated that Doneisha had expressed a wish to move the case to Chicago because the entire family was there. The court confirmed, however, that the children were not placed in Chicago. The court further learned that respondent had been discharged from counseling and substance-abuse services because he committed, and was convicted of, aggravated battery of Doneisha and was incarcerated. The court commented, "I think I arraigned him during this period in bond court. I seem to have run into him once or twice." Further, respondent was required to have only supervised visitation but had engaged in unsupervised contact with the children. The court changed the goal to substitute care pending termination of parental rights and set an arraignment date, finding:

"[Respondent] was convicted of aggravated battery against the mother. He currently has a warrant outstanding. He is a fugitive from justice. He has failed to appear here in court, and is at this point, as [the guardian ad litem ] says, no closer to reunification than he was the day we entered the disposition, in the Court's opinion. Therefore, he has not made reasonable progress at this time nor efforts."

¶ 8 On September 25, 2018, the court held an arraignment on the petition to terminate parental rights. Respondent was not present. The court noted that respondent had, from time to time, been in custody, and it inquired as to respondent's status. Regarding her efforts to contact respondent, counsel stated:

"I attempted to contact him by every phone number that I have on file. I don't have an up-to-date address to reach him at. The last I knew from [the previous caseworker,] he had relocated to Chicago, and I did not have a Chicago address for him.

* * *

So I have not had contact with him for some time."

Doneisha and the caseworkers also represented that they had not had contact with respondent and/or did not know whether respondent had relocated. The court found that respondent had forfeited his right to be present at the hearing.

¶ 9 On November 6, 2018, the unfitness hearing commenced. Respondent was not present. His counsel was present and reported that she had not had any contact with him. The court, recollecting the outstanding warrant, questioned whether respondent was in custody and asked the assistant state's attorney to check "our jail." After a discussion off the record, the assistant state's attorney reported that respondent was not in custody in Winnebago County. The court made the following findings:

"Parents have not communicated with their attorneys and have not taken advantage or assisted them in the preparation of this case for termination. They have indicated that they are not inclined to participate in this termination of parental rights. They are now—they have not assisted their attorneys in preparation for this termination of parental rights, so I'm going to vacate their appointments. Both counsels were previously appointed, are not retained. And then we will proceed with the [termination of parental rights] essentially as a prove up.

* * * [T]he findings are quite clear that they've waived their right to be present, and they've waived their right to counsel because they have not cooperated with counsel in the preparation, counsel's preparation of this case." (Emphasis added.)

¶ 10 Accordingly, respondent's counsel was discharged and did not participate further in the proceedings. Thereafter, the State presented the children's current caseworker, who laid the foundation for the admission of service plans, and the court admitted additional documentary evidence and received argument from the State and the guardian ad litem . The court found that the State proved by clear and convincing evidence that respondent was unfit on both bases alleged in the petition: (1) failing to protect the children from conditions within their environment injurious to their welfare ( 750 ILCS 50/1(g) (West 2016) ) and (2) failing to make reasonable progress toward the return of the children within any nine-month period after the neglect adjudication (id. § 1(m)(ii) ). The court again noted that the parents had "absented themselves from these proceedings without excuse." The court also noted that respondent had failed to complete services necessary for reunification, that respondent had not made progress toward unsupervised visitation, and that respondent had presented no evidence to contradict the State's case.

¶ 11 The case immediately proceeded to a best-interests hearing, again without respondent or his counsel present. The caseworker testified that the children were split between two traditional foster homes (the oldest in one, and the other two in another) and had been in those homes for approximately two months. The foster homes were safe and appropriate, the children were comfortable in them, and the foster parents were providing for the children's needs. The foster parents were not yet sure whether they would be willing to adopt the children, as the placements were relatively new. The court found that it was in the children's best interests to terminate both parents' parental rights. It noted that "both parents are still unfit, and reunification with those parents is certainly bleak to say the least."

¶ 12 The record does not reflect when or how respondent was notified of the court's decision, but, on December 5, 2018, respondent, pro se , filed a timely notice of appeal.

¶ 13 II. ANALYSIS

¶ 14 We find dispositive respondent's contention that his due process rights were violated when the trial court dismissed his appointed counsel before the unfitness hearing. Respondent notes that his counsel was present and prepared to participate in the hearing, that conducting the hearing would not have been a great burden to either counsel or the State, and that counsel could have cross-examined the caseworker and made arguments on respondent's behalf.² For the following reasons, we agree.

¶ 15 The due process clause of the United States Constitution provides heightened protection against government interference with parents' fundamental rights, including their right to make decisions concerning the care, custody, and control of their children. Wickham v. Byrne , 199 Ill. 2d 309, 316, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002). In limited instances, however, State interference with fundamental parental rights is justified to protect the health, safety, and...