In re Z.S.

2023 IL App (4th) 220977-U

• Court: Appellate Court of Illinois
• Decided: March 27, 2023
• Docket: 4-22-0977
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220977-U FILED This Order was filed under Su- March 27, 2023 preme Court Rule 23 and is not NO. 4-22-0977 Carla Bender precedent except in the limited th 4 District Appellate circumstances allowed under IN THE APPELLATE COURT Court, IL Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

In re Z.S., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Tazewell County Petitioner-Appellee, ) No. 21JA14 v. ) Kelsey R., ) The Honorable Respondent-Appellant). ) David A. Brown, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Justices Zenoff and Lannerd concurred in the judgment.

ORDER

¶1 Held: The appellate court vacated respondent’s admission of parental unfitness, reversed the trial court’s order terminating respondent’s parental rights, and remanded for a new fitness hearing because the trial court accepted respondent’s admission of unfitness without first determining whether a factual basis existed therefor, in violation of respondent’s right to due process.

¶2 Respondent, Kelsey R., is the mother of Z.S. (born January 2021). In October

2022, the trial court found (1) respondent was an unfit parent and (2) it was in Z.S.’s best interest

to terminate respondent’s parental rights. Respondent appeals, arguing the trial court erred by

accepting her admission of parental unfitness without first determining whether a factual basis

existed therefor, in violation of respondent’s constitutional right to due process.

¶3 The State concedes that the trial court erred by failing to elicit a factual basis

before accepting respondent’s admission of parental unfitness.

¶4 We agree and (1) vacate respondent’s admission of unfitness, (2) reverse the trial court’s order terminating respondent’s parental rights, and (3) remand the cause for a new fitness

hearing.

¶5 I. BACKGROUND

¶6 A. Procedural History

¶7 In January 2021, the State filed a petition for adjudication of wardship, alleging

Z.S. was a neglected minor in that his environment was injurious to his welfare when he lived

with respondent because respondent had been found unfit in Tazewell County case Nos.

19-JA-323 and 20-JA-1 and “ha[d] not completed services that would restore her to minimal

parenting.” The same day the petition was filed, the trial court conducted a shelter care hearing

and placed temporary custody and guardianship of Z.S. with the guardianship administrator of

the Department of Children and Family Services (DCFS).

¶8 In February 2021, the trial court appointed counsel to represent respondent. Later

that month, respondent filed a written “Answer to Petition Filed Under Juvenile Court Act,” in

which she stipulated that the allegations could be proven by a preponderance of the evidence and

waived her right to “demand strict proof or a trial thereon.”

¶9 In July 2021, the trial court entered a written adjudicatory order, finding Z.S. was

a neglected minor as alleged in the petition. That same day, the trial court entered a written

dispositional order, finding that it was in the best interest of Z.S. and the public that Z.S. be made

a ward of the court and adjudicated a neglected minor. The court further found respondent unfit

for reasons other than financial circumstances alone to care for, protect, train, and discipline the

minor and that it would be contrary to the Z.S.’s health, safety, and best interest to be in her

custody. The court placed guardianship and custody with the guardianship administrator of

DCFS. (We note that the record on appeal contains no report of proceedings from the

-2- adjudicatory or dispositional hearings.)

¶ 10 B. The Petition for Termination of Parental Rights

¶ 11 In June 2022, the State filed a petition for termination of respondent’s parental

rights. The State alleged respondent was an unfit parent because she failed to make reasonable

progress toward the return of the minor to her care within the nine-month period following the

adjudication of neglect (September 8, 2021, through June 8, 2022). See 750 ILCS 50/1(D)(m)(ii)

(West 2020).

¶ 12 1. Respondent’s Admission of Unfitness

¶ 13 In August 2022, the trial court conducted a hearing regarding “attorney

appearance and answer [to the petition].” Respondent appeared with counsel and filed a written

“Answer to Juvenile Petition,” which was a form document. Respondent had checked the line

indicating that she stipulated to the allegation of unfitness in the petition for termination of

parental rights and waived her right to “demand strict proof thereof.” The following colloquy

occurred:

“THE COURT: The case is set for an answer by the mother. Mother’s

filed an answer, and it appears she’s stipulating, is that correct, [counsel]?

[RESPONDENT’S COUNSEL]: It is, [Y]our Honor.

THE COURT: Mom, the State’s filed a petition back on June 15th

alleging that you failed to make reasonable progress toward the return of the

minor to your care during a nine-month period of time. If that is established, we

could proceed to a best interest hearing where I determine whether it’s in the best

interest of the minor that your parental rights be terminated. If you stipulate to

that count, there would be no trial on it and we’d just proceed to a best interest

-3- hearing. Do you understand that? Does that make sense?

(No verbal response.)

THE COURT: Nods her head yes.

All right. Is that how you want to answer the petition?

[RESPONDENT]: Yes.

THE COURT: All right. The Court will accept the answer, find that it’s

knowingly and intelligently made.”

¶ 14 2. The Fitness Portion of the Termination Proceedings

¶ 15 In October 2022, the trial court conducted a hearing on the fitness portion of the

termination proceedings. (We note that Z.S.’s father, Thomas S.—who is not a party to this

appeal—had not stipulated to unfitness.) After the court called the case for hearing, the following

exchange occurred:

“THE COURT: How does the State wish to proceed?

[THE STATE]: I would just ask based on mom’s stipulation if she’s

requesting any evidence? If not, I will be proceeding just on dad.

THE COURT: [Counsel]?

[RESPONDENT’S COUNSEL]: We do not request any evidence at this

time, Judge.

THE COURT: Waiving a factual basis on stipulation?

[RESPONDENT’S COUNSEL]: We would, Judge.

THE COURT: All right. Does the [guardian ad litem (GAL)] have any

objection to that?

[GAL]: No, Your Honor.

-4- THE COURT: Well, we will proceed with regard to the father then.”

The court then heard evidence regarding the allegations of unfitness against Thomas. The court

received no evidence regarding respondent’s parental fitness.

¶ 16 At the conclusion of the evidence and arguments, the trial court made factual

findings regarding Thomas’s failure to make reasonable progress. Regarding respondent, the

court remarked only as follows:

“With that, I’ll find the father unfit as to Count I and mother stipulated,

waived a factual basis and the, I think even—well, and so the Court will find that

the State has met its burden of proof on Count I as to mom also failing to make

reasonable progress during the nine-month period of time.”

The court made no factual findings regarding respondent’s failure to make reasonable progress.

3. The Best-Interest Portion of the Termination Proceedings

¶ 17 Immediately following the fitness finding, the trial court conducted the best-

interest portion of the termination proceedings, at the conclusion of which the court found that it

was in Z.S.’s best interest that respondent’s parental rights be terminated.

¶ 18 That same day, the trial court entered a handwritten order, stating that the

allegations of the petition were proven and it was in Z.S.’s best interest that parental rights be

terminated. The order did not contain any factual findings.

¶ 19 The following day, the trial court entered a typewritten order, titled “Dispositional

Order Terminating Parental Rights,” which again stated that (1) the allegations in the petition

were proven by clear and convincing evidence and (2) the court found by a preponderance of the

evidence that it was in Z.S.’s best interest to terminate the parental rights of respondent and

Thomas. This order likewise contained no factual findings supporting the court’s finding that

-5- respondent was unfit.

¶ 20 This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 Respondent appeals, arguing the trial court erred by accepting her admission of

unfitness without first determining whether a factual basis existed therefor, in violation of

respondent’s constitutional right to due process. The State concedes that the court erred by

failing to elicit a factual basis.

¶ 23 A. The Applicable Law

¶ 24 A parent has a fundamental liberty interest in the care, custody, and control of her

child. In re M.H., 196 Ill. 2d 356, 362-63, 751 N.E.2d 1134, 1139-1140 (2001) (citing Pierce

Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925), and

Lulay v. Lulay, 193 Ill. 2d 455, 470-71, 739 N.E.2d 521, 530 (2000)). Because the State’s goal

upon the filing of a termination petition is “ ‘not merely to infringe that fundamental liberty

interest, but to end it,’ ” the procedures used in termination proceedings must satisfy the

requirements of the due process clause of the United States Constitution. Id. at 363 (quoting

Santosky v. Kramer, 455 U.S. 745, 759 (1982)).

¶ 25 An admission of parental unfitness must be knowingly and voluntarily made. Id.

at 366. The recitation of a factual basis (1) “allows the parent to hear the State describe the

alleged facts relating to fitness” and (2) “gives the parent an opportunity to challenge or correct

any facts that are disputed.” Id. “[I]f a parent is not fully informed of the factual basis underlying

the State’s allegations, the risk is increased that her parental rights will be erroneously terminated

because of an ill-advised admission of unfitness.” Id. at 367. Accordingly, “due process requires

a circuit court to determine whether a factual basis exists for an admission of parental unfitness

-6- before it accepts the admission.” Id. at 368; see also In re Dal. D., 2017 IL App (4th) 160893,

¶ 31, 74 N.E.3d 1185 (“When a trial court accepts an admission of unfitness, due process

requires that the trial court ensure the State’s allegations are based in fact.”).

¶ 26 Whether a trial court is required to elicit a factual basis prior to accepting an

admission of parental unfitness is reviewed de novo. M.H., 196 Ill. 2d at 361. A challenge to the

sufficiency of a factual basis is reviewed for an abuse of discretion. Dal. D., 2017 IL App (4th)

160893, ¶ 31. “An abuse of discretion occurs when the trial court’s ruling is fanciful,

unreasonable, or when no reasonable person would adopt its view.” Id.

¶ 27 B. This Case

¶ 28 The parties agree that (1) pursuant to the Illinois Supreme Court’s clear direction

in M.H., the trial court was required to determine whether a factual basis existed before accepting

respondent’s admission of unfitness and (2) the court failed to do so. We also agree.

¶ 29 In August 2022, respondent admitted that the State could prove the allegation that

she was an unfit parent because she had failed to make reasonable progress toward the return of

Z.S. within the nine-month period following adjudication. Without confirming that the State

could, in fact, prove the allegation by eliciting a factual basis therefor, the trial court accepted

respondent’s admission and found that it was knowingly and voluntarily made. However, under

the reasoning of M.H., respondent’s admission could not have been knowing and voluntary

because she was denied the opportunity to (1) hear the State’s recitation of facts relating to

unfitness and (2) challenge or correct any disputed facts.

¶ 30 We also note that the trial court could have sua sponte found that a factual basis

existed based upon evidence it had heard during earlier proceedings. Dal. D., 2017 IL App (4th)

160893, ¶ 31 (“In determining whether a factual basis exists, a court need not rely on the State’s

-7- factual basis provided at the unfitness hearing, but it could sua sponte rely on evidence heard

during earlier proceedings.”). However, here, the court neither (1) made any reference to a

factual basis, nor (2) made any factual findings, oral or written, that would support a finding of

unfitness.

¶ 31 In In re P.W., 2022 IL App (4th) 220373-U, this court was presented with a

similar situation in which the trial court accepted a respondent’s stipulation of parental unfitness

without determining whether a factual basis existed. There, we determined that the respondent’s

due process rights were not violated because “the trial court had an abundance of evidence in the

record to support its accepting respondent’s stipulation.” Id. ¶ 39. Specifically, (1) the same

judge had presided over the entirety of the case from shelter care to termination, as well as

termination proceedings relating to P.W.’s siblings and (2) the trial court had created “an

exceptionally thorough record at the permanency hearings through live testimony of the

caseworker.” Id.

¶ 32 In the present case, this court ordered the parties to address in their briefs the

applicability of P.W. to the facts of this case. Both respondent and the State agree that P.W. is

distinguishable, and we agree with their reasoning.

¶ 33 First, unlike in P.W., the judge in the present case who accepted respondent’s

admission of unfitness had not presided over the entire case. Instead, a different judge had

presided over the adjudicatory and dispositional phases of the case.

¶ 34 Next, although the judge who accepted respondent’s admission presided over two

permanency hearings and entered permanency orders finding that respondent had failed to make

reasonable efforts or progress, the record on appeal contains no transcripts of those hearings. As

a result, unlike in P.W., this court is unable to look to an “exceptionally thorough record” to

-8- determine precisely what information the trial court had before it from prior proceedings. Id.

¶ 35 Moreover, there is no indication in the record that the trial court presided over any

termination proceedings relating to any siblings of Z.S.

¶ 36 For these reasons, we cannot say, as we did in P.W., that the trial court had such

an abundance of knowledge as to satisfy the factual basis requirement such that respondent’s due

process rights were well protected.

¶ 37 However, we can say that the following admonition from P.W. applies equally to

this case:

“[T]he circumstances of this record on which respondent bases her appeal should

never have occurred. The issue on appeal could have—and should have—been

avoided if at the fitness portion of the termination proceedings, the trial court

either (1) asked the State for a factual basis to support the allegations or

(2) explained that it was sua sponte finding an adequate factual basis based on the

information and testimony it had received during earlier proceedings. Using either

option would have taken no more than a few seconds. And if a trial court does not

ask for a factual basis for a respondent’s stipulation at the fitness portion of a

termination proceeding, the State should volunteer one anyway. The need to show

a factual basis for the stipulation should not be overlooked.” (Emphasis added.)

Id. ¶ 43 (citing M.H. 196 Ill. 2d at 365-68).

¶ 38 Finally, we note that both respondent and the State request as a remedy that this

court remand the case for the recitation of a factual basis. However, in M.H., the Illinois

Supreme Court did not merely remand the cause for the recitation of a factual basis, but instead

vacated the respondent’s admission of unfitness, reversed the trial court’s order terminating

-9- parental rights, and remanded the case for a new fitness hearing. M.H., 196 Ill. 2d at 368. We

follow the precedent of the supreme court, as we are bound to do.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we conclude that the trial court’s failure to determine that

respondent’s admission of parental unfitness was supported by a factual basis before accepting

the stipulation violated respondent’s right to due process. Accordingly, we (1) vacate

respondent’s admission of unfitness, (2) reverse the court’s order terminating respondent’s

parental rights, and (3) remand the cause for a new fitness hearing.

¶ 41 Vacated, reversed, and remanded.

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