Second Division December 12, 2006
No. 1-06-0111
IN RE JANIRA T., a Minor, ) Appeal from the ) Circuit Court of Respondent-Appellee ) Cook County, ) Illinois Child ) Protective Division (The People of the State of Illinois ) ) Petitioner-Appellee, ) No. 03 JA 01022 ) v. ) ) Luz M., ) Honorable ) Kathleen M. Burke, Respondent-Appellant). ) Judge Presiding
MODIFIED UPON DENIAL OF REHEARING
JUSTICE HALL delivered the opinion of the court:
Respondent Luz M. appeals the judgment of the circuit court
of Cook County terminating her parental rights to her minor
daughter Janira T. Janira's natural father, Luis T., voluntarily
relinquished his parental rights to her and is not a party to
this appeal.
On appeal, respondent contends that: (1) the unfitness
findings entered at the termination proceeding should be reversed
because the State failed to provide sufficient evidence showing
that Janira was abused or neglected in the adjudicatory hearing
which was the predicate for the termination proceeding; (2) we
should reverse the termination of her parental rights because the
State failed to prove by clear and convincing evidence that she
was an unfit parent; (3) the trial court erred in finding that 1-06-0111
the termination of her parental rights was in Janira's best
interests; and (4) subsections (b), (c), and (m) of section 1(D)
of the Adoption Act (Adoption Act) (750 ILCS 50/1(D)(b), (D)(c),
(D)(m) (West 2002)), are unconstitutional in violation of her
state and federal procedural due process rights because these
subsections allow the termination of parental rights based on
less than clear and convincing evidence. For the reasons that
follow, we affirm.
BACKGROUND
Prior to Janira's birth (born October 15, 1996), respondent
gave birth to six other children, Melissa M. (born June 28,
1983), Melinda M. (born January 13, 1986), Alberto M. (born
September 11, 1987), Angel M. (born March 20, 1990), Luis (born
December 26, 1991), and Jasmine T. (born November 20, 1994).
Luis T. is the natural father of Luis, Jasmine, and Janira.
The other four children were fathered by Heriberto Q, who, like
Luis T., is not a party to this appeal.
In February 1996, respondent came to the attention of the
Illinois Department of Children and Family Services (DCFS) when
Alberto reported to his teacher that his two older sisters,
Melissa and Melinda, had been sexually abused by their
stepfather, Luis T. As a result, Janira's six older siblings
were taken into protective custody and thereafter adjudicated
abused based on a substantial risk of physical injury and
neglected based on exposure to an injurious environment.
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On October 15, 1996, respondent gave birth to Janira. She
was not immediately removed from respondent's care as she was not
considered at risk of harm since respondent had reportedly
separated from Luis T. after the allegations of abuse and neglect
were made. Janira was, however, monitored monthly by announced
and unannounced home visits by a caseworker.
On June 23, 1997, the trial court ruled that the State had
proven, by a preponderance of the evidence, that Luis T. sexually
abused Melissa and Melinda, that Alberto was the victim of
excessive corporal punishment administered by Luis T., and that
the siblings had been exposed to domestic violence on their
mother administered by Luis T. On September 11, 1997, the trial
court issued an order of protection requiring that any contact
between Luis T. and the six siblings be supervised by DCFS and
approved by the subject child.
Luis T. was later suspected of having seen the children
during their unsupervised visits with respondent in 1999 and
2000. As a result, respondent's unsupervised contact with her
six children was revoked in November 2000. Janira remained in
respondent's care.
Pursuant to an adult-sex-offender risk evaluation of Luis
T., dated April 3, 2003, it was determined, among other things,
that he should not be given custody of any of his three
biological children and should not be allowed unsupervised
contact with them. On June 18, 2003, respondent and Luis T. were
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"indicated" for risk of harm to Janira after a caseworker called
the DCFS hotline and reported that respondent and respondent's
mother were allowing Janira to have unsupervised contact with
Luis T. As a result, on June 23, 2003, Janira was placed with a
maternal great-aunt under a safety plan.
On July 17, 2003, the State filed a petition for
adjudication of wardship on behalf of Janira. The petition
charged her parents with neglect based on exposure to an
injurious environment and abuse based on a substantial risk of
physical injury. At the conclusion of a temporary custody
hearing on August 6, 2003, the trial court granted temporary
custody of Janira to the DCFS guardianship administrator.
Respondent was not present at the hearing, and the order was
entered without prejudice to her.
On August 21, 2003, the trial court held a second temporary
custody hearing regarding Janira, at which respondent was present
and represented by the office of the public defender. At the
conclusion of the hearing, the trial court maintained temporary
custody of Janira with DCFS.
On January 13, 2004, the trial court held an adjudicatory
hearing. Following the hearing, the trial court entered an order
finding that, based on the preponderance of the evidence, Janira
was neglected due to an injurious environment and abused due to a
substantial risk of physical injury in that the parents were
aware that father was not to have unsupervised contact with
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Janira yet such contact occurred; father was a sexual
perpetrator; and mother had extensive history with DCFS.
On February 23, 2004, the trial court conducted the
dispositional hearing. At the conclusion of the hearing, the
court determined it was in Janira's best interest to be made a
ward of the court and appointed D. Jean Ortega-Piron, the DCFS
Guardianship Administrator, as her guardian with the right to
place her. The disposition was based on the trial court's
findings that respondent was unable, unwilling, and unfit to care
for Janira and that Luis T. was unable and unwilling to care for
her. Respondent did not appeal the adjudication order nor the
dispositional order.
On April 19, 2004, the trial court entered a permanency
order finding that respondent had not made substantial progress
towards returning Janira home. The order set a permanency goal
for Janira of return home pending a status hearing because
respondent expressed a willingness to complete the services
required for reunification with her minor daughter.
On October 15, 2004, the trial court entered a permanency
order again finding that respondent had not made substantial
progress towards returning Janira home. The order set a
permanency goal of substitute care pending court determination on
termination of parental rights. The order stated this goal was
selected because Janira was eight years old, she was living with
a nonrelative in a preadoptive home, and her natural parents had
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not made substantial progress toward reunification and were not
visiting consistently.
On February 2, 2005, the State filed a supplemental petition
pursuant to section 2-29(2) of the Juvenile Court Act of 1987
(Juvenile Court Act) (705 ILCS 405/2-29(2) (West 2000)), seeking
the termination of the parental rights of respondent and Luis T.
to Janira and the appointment of a guardian with the right to
consent to her adoption. The supplemental petition contained
three counts of unfitness with respect to respondent: (1) failure
to maintain a reasonable degree of interest, concern or
responsibility as to Janira's welfare as set forth in section
1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2002));
(2) desertion of Janira for more than three months next preceding
the commencement of these termination proceedings as set forth in
section 1(D)(c) of the Adoption Act; and (3) failure to make
reasonable efforts to correct the conditions that led to Janira's
removal from the home, and/or failure to make reasonable progress
toward the return of the child within nine months of an
adjudication of abuse or neglect as set forth in section 1(D)(m)
of the Adoption Act.
On June 29, 2005, Luis T. appeared in trial court and gave
his final and irrevocable consent to Janira's adoption by her
foster parent.
The fitness and best interests portions of the bifurcated
-6- 1-06-0111 termination proceeding1 were both held on December 5, 2005.
Prior to commencement of the fitness hearing, the trial court
took judicial notice of the following orders: (1) the August 21,
2003, paternity order in which Luis T. was found to be Janira's
father; (2) the adjudication order entered January 13, 2004, in
which Janira was found to be neglected and abused; (3) the
dispositional order entered February 23, 2004, in which Janira
was made a ward of the court and respondent was found unable,
unwilling, and unfit to care for her. The trial court later took
judicial notice that the State filed its supplemental termination
petition on February 2, 2005.
The State called two witnesses at the fitness hearing,
Lauren Barker, a caseworker at Casa Central, and Eloisa Rosales,
a former caseworker at the same agency.
Barker testified she was assigned to Janira's case from
February 2004 to July 2004. At the time she received the case,
it was already in the system. The case had come into the system
for failure to protect based upon allegations that respondent
allowed Janira to have unsupervised contact with Luis T. even
1 During the first stage, the trial court considers whether
a respondent is unfit within the meaning of section 1(D) of the
Adoption Act (750 ILCS 50/1(D) (West 2002)); at the second stage,
the court determines whether termination of parental rights would
be in the minor's best interests. See, e.g., In re G.L., 329 Ill.
App. 3d 18, 20-24, 768 N.E.2d 367 (2002).
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though he was accused of sexually abusing her sisters.
After an assessment, it was determined that respondent
needed to complete various recommended services in order to be
reunited with Janira. She needed to take parenting classes to
assess her parenting skills due to her history of involvement
with DCFS. She needed to engage in individual therapy to address
issues that originally brought the case into the system, such as
issues of permanency, allegations of sexual abuse, and issues of
domestic violence. She was also required to have a drug and
alcohol assessment.
Barker testified that during the approximate five-month
period she had the case, respondent did not complete any of the
recommended services offered her. In regard to visitation,
respondent was allowed weekly, one-hour supervised visits with
Janira at Casa Central. Barker testified that respondent
initially visited Janira consistently, but later there was "a
large period of time" where respondent stopped visiting. Barker
testified that overall, respondent attended less than 50% of the
visits she was allowed to have with Janira and when she did
visit, the visits were unorganized and lacked structure, where
Janira was allowed to "run wild" while respondent talked with the
maternal grandmother. Barker stated that during the visits,
respondent never spoke to Janira about school and there was no
real discipline or instruction. Barker observed a bond between
Janira and respondent but did not believe respondent could
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properly parent or discipline her daughter.
In a service plan dated August 1, 2004, covering and
evaluating the preceding six-month period, Barker rated
respondent's overall performance as "unsatisfactory" based on
respondent's failure to comply with recommended services and her
inconsistent and inadequate visitation with Janira.
On cross-examination, Barker testified that respondent never
told her why she missed visitation and never indicated that
illness was the reason she did not comply with recommended
services. Barker stated that if respondent had given advanced
notice that she would not be keeping a visitation appointment,
the missed visit could have been rescheduled or the subsequent
visit extended. Barker also testified that if respondent had
stated that illness prevented her from complying with recommended
services, one of the services could have been "taken out" or
respondent could have been given a different six-month time
period within which to complete the services.
Rosales testified she was assigned to Janira's case from
August 2004 to June 2005. At the time she received the case,
recommended services offered respondent were still outstanding.
Rosales testified that during the entire time she was on the
case, respondent never completed any of the offered services or
substance abuse assessments.
Rosales personally met respondent for the first time on a
visitation day at Casa Central. She briefly spoke to respondent
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about uncompleted services and asked to schedule a meeting to be
held on a nonvisitation day so they could further discuss needed
services in more detail. Rosales also sent respondent two
letters urging her to meet to discuss uncompleted services.
Rosales testified that the meeting never occurred because it was
difficult to get in telephone contact with respondent since she
did not have a telephone. Rosales never referred respondent to
any services or assessments because they were never able to meet
and discuss scheduling.
On October 15, 2004, shortly after Rosales received the
case, the permanency goal for Janira was changed from return
home, to substitute care pending termination of parental rights.
Rosales testified that once the goal changed, Casa Central was no
longer required to provide or pay for services for respondent,
and the visiting schedule changed from once a week to once a
month. Rosales provided respondent with a list of agencies where
she could receive free services but respondent never engaged in
the services.
In regard to visitation, Rosales testified that before the
permanency goal for Janira was changed, respondent only visited
her about twice a month even though she was allowed to visit once
a week. Rosales testified that when respondent visited Janira,
the visits were unstructured and the minor was left to do
whatever she wanted. According to Rosales, Janira was all over
the place jumping on couches, yelling and not using her indoor
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voice. Rosales stated that respondent had difficulty redirecting
Janira.
Rosales testified that although respondent explained that
her inconsistent visitation resulted from medical problems, she
never provided any documentation to support this claim. Rosales
further testified there were a number of times respondent called
to confirm a visit and then failed to show up. Shortly after the
permanency goal for Janira changed, respondent stopped visiting
and would only inquire as to how the child was doing.
In a service plan dated February 1, 2005, covering and
evaluating the preceding six-month period, Rosales rated
respondent's overall performance as "unsatisfactory" based on her
failure to comply with recommended services.
After hearing closing arguments, the trial court found
respondent unfit under subsections (b), (c), and (m) of section
1(D) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(c), (D)(m)
(West 2002)). The trial court then proceeded immediately to the
best interests portion of the termination proceeding.
Gloria Vasquez, a caseworker at Casa Central, was the only
witness who testified at the best interests hearing. She was
Janira's current caseworker having been assigned her case October
17, 2005. She gave testimony regarding Janira's foster home
placement, her relationship with her foster mother, and her
developmental progress. Janira was placed with her current
foster mother in August 2003.
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Since receiving the case, Vasquez testified that she visited
the foster home twice to see Janira, with the most recent visit
occurring just four days prior to the present hearing. Vasquez
described the foster home as a safe, clean, well-kept, three-
bedroom apartment. Janira and her foster mother lived in the
home, along with a dog and two cats. Janira had her own bedroom.
Vasquez found no signs of abuse, neglect, or corporal punishment.
Vasquez observed that Janira and her foster mother were
bonded and described their interaction as "very positive."
Janira seemed happy and appeared to love her foster mother, whom
she called "mom." When Vasquez visited the foster home, Janira
excitedly told her about the activities she and her foster mother
engaged in such as going on trips and to the movies. Janira also
had established ties to the community where she befriended a
number of her neighbors.
The foster mother tutors Janira and enrolled her in private
school. Janira performed so well on the entrance exam she was
skipped to the third grade. She was also taking after-school
music classes.
Vasquez testified that Janira had no special needs but was
participating in individual therapy to deal with issues relating
to separation from her natural parents, the death of her brother,
and adjusting to her foster home. These therapy sessions took
place in the foster home.
Vasquez testified that the foster mother wished to adopt
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Janira and, in turn, Janira, who was eight years old at the time,
wanted to be adopted. The foster mother stated that if she were
allowed to adopt Janira, she would continue to allow sibling
visits.
Vasquez believed it was in Janira's best interests that the
parental rights of her parents be terminated and that D. Jean
Ortega-Piron be appointed her guardian with the right to consent
to her adoption. Vasquez testified her belief was based on the
close bond Janira developed with her foster mother, the
observation that Janira was doing extremely well in the foster
home, and her success in school.
Following closing arguments, the trial court determined that
Janira's best interest would be served by terminating
respondent's parental rights and appointing D. Jean Ortega-Piron
as Janira's guardian with the authority to consent to her
adoption. Respondent now appeals.
ANALYSIS
Respondent first contends that the unfitness findings
entered at the termination proceeding should be reversed because
the State failed to provide sufficient evidence showing that
Janira was abused or neglected in the prior adjudicatory hearing
conducted on January 13, 2004, which was the predicate for the
termination proceeding. The State and public guardian maintain
that we lack jurisdiction to review this issue because respondent
failed to appeal the adjudicatory order within 30 days of the
-13- 1-06-0111 entry of the subsequent dispositional order. We agree with the
State and public guardian.
Supreme Court Rule 660(b) provides that, except in cases of
juvenile delinquency, appeals from final judgments under the
Juvenile Court Act are governed by the rules applicable to civil
cases. 134 Ill. 2d R. 660(b); see also In re M.J., 314 Ill. App.
3d 649, 654, 732 N.E.2d 790 (2000); In re Lee, 73 Ill. App. 3d
449, 449-50, 392 N.E.2d 304 (1979). To properly perfect an
appeal in a civil case, the notice of appeal must be filed within
30 days after entry of the final order (155 Ill. 2d R. 303(a)),
unless an extension of the 30-day time limit is granted under
Supreme Court Rule 303(d) (155 Ill. 2d R. 303(d)). In re M.J.,
314 Ill. App. 3d at 654; see also In re Wheat, 68 Ill. App. 3d
471, 477-78, 386 N.E.2d 278 (1979) (appellate jurisdiction is
generally dependent upon the timely filing of a notice of appeal
after the entry of a final judgment).
In juvenile cases, subject to Supreme Court Rule 662(a) (134 Ill. 2d R. 662(a))2, an adjudicatory order is generally not
considered a final appealable order. In re M.J., 314 Ill. App. 3d
2 Where a dispositional order is not entered within 90 days
of an adjudication of wardship, an appeal may be taken from the
adjudicatory order. 134 Ill. 2d R. 662(a). In such a case, the
notice of appeal must be filed within 30 days after expiration of
the 90 days. 134 Ill. 2d R. 662(c); In re Smith, 80 Ill. App. 3d
380, 381, 399 N.E.2d 701 (1980).
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at 654-55; In re Lee, 73 Ill. App. 3d at 450. Rather, it is the
dispositional order from which an appeal properly lies. In re
Smith, 80 Ill. App. 3d 380, 381, 399 N.E.2d 701 (1980).
In this case, respondent never filed a notice of appeal from
either the trial court's adjudicatory order or its dispositional
order. We therefore lack appellate jurisdiction over
respondent's appeal of the trial court's January 13, 2004,
adjudicatory order and dismiss that portion of the appeal.
Respondent next contends that we should reverse the
termination of her parental rights because the State failed to
prove by clear and convincing evidence that she was an unfit
parent. We disagree.
To terminate the parental rights of a nonconsenting parent,
an adjudication of unfitness is first required. See In re
Chilean, 304 Ill. App. 3d 580, 583, 710 N.E.2d 24 (1999). The
grounds that will support a finding of unfitness are set out in
section 1(D) of the Adoption Act. 750 ILCS 50/1(D) (West 2002).
Although section 1(D) sets out various grounds under which a
parent may be deemed unfit, an unfitness finding may be entered
if there is sufficient evidence to satisfy any one statutory
ground. In re Donald, 221 Ill. 2d 234, 244, 850 N.E.2d 172
(2006).
As previously mentioned, the trial court in this case found
respondent unfit under subsections (b), (c), and (m) of section
1(D) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(c), (D)(m)
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(West 2002)). The trial court discussed respondent's failure to
complete recommended services, her inconsistent visitation, and
her subsequent cessation of visitation after October 2004.
A finding of parental unfitness must be supported by clear
and convincing evidence. In re Katrina, 364 Ill. App. 3d 834,
842, 847 N.E.2d 586 (2006). A trial court's determination that
clear and convincing evidence of a parent's unfitness has been
shown will not be disturbed on review unless its against the
manifest weight of the evidence. In re D.D., 196 Ill. 2d 405,
417, 752 N.E.2d 1112 (2001).
The first ground that the trial court found in favor of the
State was subsection (b) of the Adoption Act. This subsection
provides that a person may be declared an unfit parent for
"[f]ailure to maintain a reasonable degree of interest, concern
or responsibility as to the child's welfare." 750 ILCS 50/1(D)(b)
(West 2002). We believe the trial court's finding of parental
unfitness based upon subsection (b) was not against the manifest
weight of the evidence.
The record shows that shortly after Janira was removed from
respondent's care on August 6, 2003, respondent was assessed for
needed services and it was determined she was in need of
parenting classes, individual therapy, and a drug and alcohol
assessment. Caseworker Barker testified at the fitness hearing
that during the approximate five-month period she had the case,
from February 2004 to July 2004, respondent did not complete any
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of the recommended services offered her.
Caseworker Rosales testified at the fitness hearing that she
was assigned the case from August 2004 to June 2005. At the time
Rosales received the case, recommended services were still
outstanding. Rosales testified that during the entire time she
was on the case, respondent never completed any of the offered
services or substance abuse assessments.
In regard to visitation, Barker testified that respondent
initially visited Janira consistently but later there was "a
large period of time" where respondent stopped visiting. Barker
testified that respondent attended less than half the visits she
was allowed to have with Janira and when she did visit, the
visits were unorganized and lacked structure.
Rosales testified that before the permanency goal for Janira
was changed from return home to substitute care pending
termination of parental rights, respondent only visited about
twice a month, even though she was allowed weekly visits.
Rosales stated there were a few times she brought Janira to the
agency for a visit with respondent and respondent failed to show
up. Rosales testified that when respondent did visit, the visits
were unstructured and that Janira was basically left on her own.
Shortly after the permanency goal for Janira changed, respondent
stopped visiting.
Our courts have determined that noncompliance with an
imposed service plan and infrequent or irregular visitation is
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sufficient evidence warranting a finding of unfitness under
subsection (b) of the Adoption Act. See In re Jaron, 348 Ill.
App. 3d 239, 259, 810 N.E.2d 108 (2004) (and cases cited
therein). Respondent argues that her efforts should be reviewed
in the context of her medical problems, the death of her child,
and the agency's half-hearted attempt to work with her.
Respondent, however, never produced any documentation
showing that her claimed medical problems were the reason she
failed to complete required services or consistently visit
Janira. During one court date, the trial judge informed
respondent's attorney that respondent needed to bring
documentation of her doctor's visits to the next court date.
Respondent failed to come to court on the subsequent court date
and no such documentation appears in the record.
The record also shows that respondent's oldest child
actually died approximately six years prior to the date the
fitness hearing was held and that even after her child Luis was
diagnosed with cancer in January 2005, respondent did not visit
him consistently. The reasons respondent gives for failing to
comply with required services or consistently visit Janira are
not supported by the record. Respondent's continued refusal to
comply with required services and her repeated failure to
maintain regular visitation sufficiently demonstrate that, even
within the context of her alleged circumstances, she has not
maintained a reasonable degree of interest, concern or
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responsibility toward Janira's welfare.
The trial court's finding that respondent was unfit under
subsection (b) of the Adoption Act was not against the manifest
weight of the evidence. Having determined there was sufficient
evidence to satisfy one statutory ground, we need not address the
other findings of unfitness made by the trial court. See In re
M.J., 314 Ill. App. 3d 649, 657, 732 N.E.2d 790 (2000); In re
Shanna, 343 Ill. App. 3d 1155, 1168, 799 N.E.2d 843 (2003).
Respondent next contends the trial court erred in finding
that the termination of her parental rights was in Janira's best
interests. Respondent maintains the trial court made its finding
without fully considering the statutory "best interests" factors.
Respondent also contends the trial court made its finding without
considering what she might have to offer Janira and that the
court discounted the importance of the child's siblings, instead
focusing on the advantages of the foster home. We disagree.
Once a trial court finds a parent unfit, the court must then
determine whether termination of parental rights is in the best
interests of the child. In re D.T., 212 Ill. 2d 347, 352, 818
N.E.2d 1214 (2004); In re J.T.C., 273 Ill. App. 3d 193, 199, 652
N.E.2d 421 (1995). In making this determination, the court is
required to consider factors such as the child's physical safety
and welfare; the child's background and ties, including familial,
cultural, and religious; the child's need for permanence,
including her need for stability and continuity with parental
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figures and other relatives; the risks related to substitute
care; and the preferences of the person available to care for the
child. 705 ILCS 405/1-3(4.05) (West 2004). In rendering its
decision, the trial court is not required to explicitly mention,
word-for-word, the factors listed in section 1-3(4.05) of the
Juvenile Court Act. In re Jaron, 348 Ill. App. 3d at 262-63.
The State bears the burden of proving by a preponderance of
the evidence that termination is in the child's best interests.
In re Katrina, 364 Ill. App. 3d at 845. The trial court's
finding that termination is in the child's best interest will not
be disturbed unless it is against the manifest weight of the
evidence or the court abused its discretion. In re G.L., 329 Ill.
App. 3d 18, 25, 768 N.E.2d 367 (2002).
A review of the evidence in relation to the statutory
factors shows that the trial court's decision to terminate
respondent's parental rights as to Janira was not contrary to the
manifest weight of the evidence or an abuse of discretion.
Evidence presented at the best interest hearing revealed that
Janira was happy in a stable, appropriate, safe home and had
bonded with her foster mother, whom she called "mom" and who
wished to adopt her. Janira also wished to be adopted by her
foster mother. Janira had been living with her foster mother for
over two years, during which time she received educational
tutoring and skipped a grade. She also takes after-school music
lessons.
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Janira has established ties to the community and has
befriended a number of her neighbors. She participates in
individual therapy to cope with issues relating to the separation
from her parents, the death of her brother, and adjusting to her
foster home. In addition, the foster mother stated that if she
were allowed to adopt Janira, she would continue to allow sibling
visits. This evidence supports the trial court's finding that it
was in Janira's best interests to terminate respondent's parental
rights.
Respondent finally contends that subsections (b), (c), and
(m) of section 1(D) of the Adoption Act are unconstitutional in
violation of her state and federal procedural due process rights
because these subsections allow the termination of parental
rights based on less than clear and convincing evidence.
Respondent maintains that a finding of parental abuse and neglect
necessary for a subsequent finding of unfitness under subsections
(b), (c), and (m) need only be proven by a preponderance of the
evidence and therefore these subsections are unconstitutional
because they do not require such underlying findings of abuse and
neglect be proven by clear and convincing evidence. We disagree.
Although respondent failed to raise this due process
argument at the hearings to terminate her parental rights, we
elect to address it because of its constitutional nature. See In
re S.F., 359 Ill. App. 3d 63, 65, 834 N.E.2d 453 (2005). The
United States Supreme Court has determined that, due to the
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importance of the parental relationship, the decision to
terminate parental rights must be supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 71 L. Ed.
2d 599, 102 S. Ct. 1388 (1982); In re Adoption of Syck, 138 Ill.
2d 255, 276, 562 N.E.2d 174 (1990). Respondent urges us to adopt
the same higher standard of proof for abuse and neglect hearings.
We must decline respondent's request.
In Santosky, the Court stated that the test to determine
what process is constitutionally due in a proceeding to terminate
parental rights involves the balancing of three factors set forth
in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33,
96 S. Ct. 893, 903 (1976), the privacy interests affected by the
proceeding; the risk of error created by the state's chosen
procedure; and the governmental interests supporting the use of
the challenged procedure. Santosky, 455 U.S. at 754, 71 L. Ed. 2d
at 607, 102 S. Ct. at 1395.
Our courts, after considering and weighing each of these
three factors, have concluded that a natural parent's due process
rights are not violated where the grounds for termination of
parental rights are established by clear and convincing evidence
and the underlying abuse and neglect determinations are
established by a preponderance of the evidence. See In re S.A.,
296 Ill. App. 3d 1029, 1033-35, 696 N.E.2d 368 (1998); see also
In re Jamarqon, 338 Ill. App. 3d 639, 646, 788 N.E.2d 344 (2003).
In regard to the first factor, the private interests at
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stake are the interest of a parent in the care, custody and
management of her child and on the other hand the child's
interest in a loving, stable and safe home environment. In re
Travarius, 343 Ill. App. 3d 844, 851, 799 N.E.2d 510 (2003). At
the adjudicatory stage, however, the parent's interest in
maintaining the parent-child relationship yields to the child's
interest in a stable, loving home life, since at this stage, the
trial court focuses solely upon whether the child has been
neglected or abused and not on whether the parents were
neglectful or abusive. See In re K.T., 361 Ill. App. 3d 187, 201,
836 N.E.2d 769 (2005); In re Christina, 333 Ill. App. 3d 1030,
1034, 777 N.E.2d 655 (2002) ("purpose of an adjudicatory hearing
is to determine whether the child has been neglected, not to
determine the status of the parent").
In addition, an underlying finding of abuse or neglect does
not affect the parental relationship to the same constitutionally
significant degree as a termination proceeding because under
section 1(D) of the Adoption Act, a parent cannot have his or her
parental rights terminated based solely upon a finding of neglect
or abuse. See In re Jamarqon, 338 Ill. App. 3d at 649. The
parental rights of a nonconsenting parent may be terminated only
upon a finding of unfitness and such finding must be supported by
clear and convincing evidence. In re J.P., 261 Ill. App. 3d 165,
174, 633 N.E.2d 27 (1994). The first factor weighs against
respondent.
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Under the second Mathews factor, we examine the extent to
which the preponderance of the evidence standard creates a risk
of an erroneous deprivation of parental rights and the likelihood
that a higher evidentiary standard would reduce that risk. The
risk of error in question is the risk of erroneous fact finding.
Santosky, 455 U.S. at 755, 71 L. Ed. 2d at 607-08, 102 S. Ct. at
1399.
The risk of error at issue here is the risk that underlying
facts of central importance to a termination proceeding will be
incorrectly determined at an abuse and neglect adjudication under
a preponderance standard. We find this risk is minimal at most
because the statutes require the State to prove by clear and
convincing evidence that the parent is unfit before terminating
his or her parental rights. Imposing an additional requirement
that the underlying adjudication of abuse or neglect be supported
by clear and convincing evidence is not necessary to protect the
private interests at stake. Due process does not require that
the underlying abuse or neglect adjudication be supported by
clear and convincing evidence. The second factor weighs against
The third and final factor to be weighed is the governmental
interests supporting the use of a preponderance of the evidence
standard at an adjudicatory hearing. This factor also weighs
against respondent's position.
A primary purpose of the Juvenile Court Act is to preserve
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and strengthen the minor's family ties whenever possible. In re
Polovchak, 104 Ill. App. 3d 203, 209, 432 N.E.2d 873 (1981). In
dependency and neglect proceedings, both the State's Attorney and
trial court are charged with the duty of ensuring that at each
step of the wardship adjudication process the best interests of
the minor, the minor's family, and the community are served. In
re A.F., 234 Ill. App. 3d 1010, 1014, 602 N.E.2d 480 (1991).
Permitting the State to establish findings of abuse and neglect
under a preponderance standard advances the State's parens
patriae interest in protecting the welfare of its children and
preserving family ties by providing the State with the
jurisdictional bases and necessary flexibility to provide social
services and dispositional remedies that help families address
the root causes of dependency and neglect. See In re Arthur, 212
Ill. 2d 441, 464, 819 N.E.2d 734 (2004) ("A finding of abuse,
neglect or dependency is jurisdictional, '" without [which] the
trial court lacks jurisdiction to proceed to an adjudication of
wardship'").
Heightening the standard of proof for abuse and neglect
proceedings could make it more difficult for the State to protect
its children and could lessen the ability of courts and the State
to fashion workable solutions to preserve family ties. See In re
S.A., 296 Ill. App. 3d at 1034. Preponderance of the evidence is
the appropriate standard of proof to be applied in abuse and
neglect proceedings under the Juvenile Court Act.
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Based on the foregoing analysis of the Mathews factors, we
conclude that due process does not require the imposition of a
clear and convincing standard of proof in an abuse or neglect
adjudication. Under the preponderance standard, respondent's
fundamental right to the care, custody and management of her
child receives full protection, the risk of error in fact finding
is insignificant, and the substantial governmental interest in
intervening to provide necessary remedial assistance is promoted.
See In re A.M.D., 648 P.2d at 640-41.
Accordingly, for the reasons set forth above, the judgment
of the circuit court of Cook County is affirmed.
Affirmed.
WOLFSON, P.J., and SOUTH, J., concur.
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