In Re MW

557 N.E.2d 959, 199 Ill. App. 3d 1050
CourtAppellate Court of Illinois
DecidedJuly 13, 1990
Docket3-88-0089
StatusPublished
Cited by15 cases

This text of 557 N.E.2d 959 (In Re MW) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MW, 557 N.E.2d 959, 199 Ill. App. 3d 1050 (Ill. Ct. App. 1990).

Opinion

199 Ill. App.3d 1050 (1990)
557 N.E.2d 959

In re M.W. et al., Minors (Michael Walker et al., Appellants,
v.
The State of Illinois, Appellee).

No. 3-88-0089.

Illinois Appellate Court — Third District.

Opinion filed July 13, 1990.

*1051 William Mack Anderson IV, of Peoria, and Joseph O'Donnell, of Macomb, for appellants.

John R. Clerkin, State's Attorney, of Macomb (Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Reversed and remanded.

JUSTICE STOUDER delivered the opinion of the court:

Following hearings in the circuit court of McDonough County, the trial court entered a judgment terminating the parental rights of Virgil Zapplin, and appellants Michael and Sandra Walker. Michael Walker is the natural father of S.W. and M.W. Sandra Walker is the natural mother of S.W., M.W., and W.I. Virgil Harris Zapplin, the natural father of W.I., has never appeared in this case, was served by *1052 publication, and the termination of his parental rights is not at issue in the instant case. The trial court found inter alia that:

(1) the Walkers have exhibited extreme and repeated cruelty to the minors;
(2) the Walkers have failed to protect the minors from conditions within their environment injurious to the minor's welfare; and
(3) the Walkers have shown an inability to discharge their parental responsibilities due to their mental retardation and mental impairment, respectively, and there is sufficient justification to believe their inability to discharge their parental responsibilities, particularly in light of the special needs of the minors, will extend indefinitely.

Based on these findings, the court appointed a guardian for the minors with the authority to consent to their adoption. The Walkers appeal.

• 1, 2 On appeal, the issue is whether the State established by clear and convincing evidence that the Walkers are unfit to be parents. A trial court may appoint a guardian with the authority to consent to the adoption of a minor under section 2-29 of the Juvenile Court Act of 1987 (the Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802-29), whenever it finds by clear and convincing evidence that a nonconsenting parent is unfit as defined in section 1(D) of the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501(1)(D)). The Adoption Act defines an "unfit person" as:

"[A]ny person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption * * *." (Ill. Rev. Stat. 1989, ch. 40, par. 1501(1)(D).)

Section 1(D) of the Adoption Act then lists various specific grounds of unfitness. Those alleged in the instant case were: (1) extreme and repeated cruelty to the minors; (2) failure to protect the minors from conditions within their environment injurious to their welfare; (3) continuous and substantial neglect of the minors; and (4) that the Walkers are incapable of discharging their responsibilities as parents due to mental illness, mental retardation, or mental impairment.

• 3-5 It has been recognized that cases of this nature are sui generis; each must be decided in accordance with the particular facts of each individual and varying situation. (Perkins v. Breitbarth (1981), 99 Ill. App.3d 135, 424 N.E.2d 1361.) Hence, in matters involving children and the possible permanent severance of parental rights, the facts must be reviewed with careful scrutiny. (Perkins v. Breitbarth *1053 (1981), 99 Ill. App.3d 135, 424 N.E.2d 1361.) In addition, it is the settled law of this State that to justify termination of the rights of natural parents, their unfitness for the exercise of their parental rights must be established by clear and convincing evidence. (In re Drescher (1980), 91 Ill. App.3d 658, 415 N.E.2d 636.) The reason for such a heavy burden of proof is obvious. "Termination of parental rights is as drastic and permanent an action as can be taken." (Blakey v. Blakey (1979), 72 Ill. App.3d 946, 947, 391 N.E.2d 222, 223.) While reviewing courts will not substitute their judgment for those of the trial court when the trial court's judgment is clearly supported in the record, reversal is required where the trial court's decision is contrary to the manifest weight of the evidence. (Peyla v. Martin (1976), 40 Ill. App.3d 373, 352 N.E.2d 407.) After a meticulous scrutiny of the record, we find that the evidence presented by the State in the instant case fails to meet the heavy burden of proof. Accordingly, the trial court's findings were against the manifest weight of the evidence.

The State initially filed petitions for adjudication of wardship of the minors, without requesting a termination of parental rights. The petitions alleged that the minors were abused, their environment was injurious, the minors were possibly sexually abused, and that M.W. needed further medical evaluation of her physical and mental condition. These petitions were filed after M.W. exhibited unusual behavior in school and after the Department of Children and Family Services (DCFS) found the Walker home to be inadequately cleaned and the meals to be inadequately prepared. Following a hearing, the trial court found the minors to be abused and placed the minors in the temporary custody of DCFS. In addition, the court directed the Child Development Clinic at the University of Iowa Hospital to perform a developmental assessment of the family (the Iowa Report).

On November 26, 1986, following the filing of the Iowa Report, a supplemental petition to terminate the Walkers' parental rights was filed. The petition's allegations mirrored the allegations in the earlier petitions for adjudication of wardship. A hearing was held and the trial court entered an order terminating the Walkers' parental rights.

We initially address the sexual abuse charge. The State presented the testimony of Dr. Randell Alexander of the University of Iowa. Dr. Alexander noted that his job is to determine if a child has been sexually abused and that in 99% of the cases he reviews he finds sexual abuse. However, Dr. Alexander testified that he could reach no definite conclusion of child abuse in the instant case. He stated that in his examination of these children, six months after they were removed from the Walker household, he found the abnormal scarring in the *1054 children's vaginal areas to be consistent with a case of sexual abuse or other circumstance. Dr. Alexander, however, could not determine the cause of the scars.

The Walkers presented the testimony of their family pediatrician and a pediatrician who examined the children at the request of DCFS. The family pediatrician, Dr. An-Shin Lin, testified that he has attended to the children since 1984. Dr. Lin stated that the scarring around M.W.'s vagina was due to a severe diaper rash, complicated by a secondary staph infection.

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Cite This Page — Counsel Stack

Bluebook (online)
557 N.E.2d 959, 199 Ill. App. 3d 1050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mw-illappct-1990.