People v. Powers

418 N.E.2d 1145, 94 Ill. App. 3d 646, 50 Ill. Dec. 151, 1981 Ill. App. LEXIS 2322
CourtAppellate Court of Illinois
DecidedMarch 27, 1981
Docket80-320
StatusPublished
Cited by8 cases

This text of 418 N.E.2d 1145 (People v. Powers) 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
People v. Powers, 418 N.E.2d 1145, 94 Ill. App. 3d 646, 50 Ill. Dec. 151, 1981 Ill. App. LEXIS 2322 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

The facts of this case are somewhat unusual. The minor was placed in a foster home on March 17, 1977. The reasons for this placement are not disclosed in the record. In October 1977 a series of visits between the child and the parents were begun. On March 29,1979, the State filed its petition in this case to have the minor declared a dependent, and, at the same time, the visitations between the parents and the child were expanded to provide for such periods three times a week, four hours each, at the home of the parents. These visits were supervised in part by a homemaker from the Northwest Suburban Homemakers Service and in . part by the foster mother. On August 2, 1979, a supplemental petition to adjudicate was filed on the grounds that, while she was in the home of her parents, the minor was neglected in that her environment was injurious to her health and that the minor was dependent due to the mental and physical disabilities of her parents so that the parents were unfit to have the care, custody and control of the minor.

The respondents, the parents of the minor, appeal from the adjudication and dispositional order and the findings of the circuit court of Kane County adjudicating their daughter a neglected and dependent minor and finding them to be unfit and unable to care for the minor pursuant to the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, pars. 702 — 4, 702 — 5, 705 — 2 and 705 — 7).

The respondents contend that the finding of the trial court that the minor was dependent and neglected and that they were unfit was against the manifest weight of the evidence and should be reversed. (In re Christenberry (1979), 69 Ill. App. 3d 565.) Initially, the respondents contend that although the applicable burden of proof on the issue of dependence and neglect is the preponderance of the evidence, the State must prove the parents to be unfit by clear and convincing evidence in order to deprive them of their custodial rights. (See In re Nitz (1979), 76 Ill. App. 3d 15, 21.) Their reliance on Nitz is misplaced because the State sought to terminate parental rights in that case rather than custodial rights as in the present case. To deprive the parents of custodial rights requires a finding that the parents are unfit or unable, other than for financial reason alone, to properly care for the minor or unwilling to do so and that the custody change is in the minor’s best interest. Ill. Rev. Stat. 1979, ch. 37, pars. 705 — 2 and 705 — 7.

While clear and convincing evidence of unfitness is necessary to terminate parental rights, wide discretion is vested in the trial judge in child custody cases. (In re Hurley (1976), 44 Ill. App. 3d 260, 266.) Although parents have a superior right to the custody of their children (Giacopelli v. The Florence Crittenton Home (1959), 16 Ill. 2d 556, 565), their right is not absolute and “shall not prevail when the court determines that it is contrary to the best interest of the child” (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2(3)(c); In re Martin (1975), 31 Ill. App. 3d 288, 292-93). Cases involving custody rights of parents are sui generis, and each of them must be decided in accordance with the particular facts of each case; the determination of the trial court in these cases will not be disturbed unless it is against the manifest weight of the evidence. (Martin, at 293.) We turn then to determine whether or not the findings of the trial court were against the manifest weight of the evidence.

In the case at bar, respondents argue that the State failed to show that Lois was a neglected or dependent child or that they were unfit to have custody of the child. They point particularly to the lack of evidence indicating any abuse, malnutrition or psychological problems of the child. Sections 2 — 4 and 2 — 5 of the Juvenile Court Act provide in relevant part:

Section 2 — 4(1) (b): “Those who are neglected include any minor under 18 years of age “ “ “(b) whose environment is injurious to his welfare “ “ “.” (Ill. Rev. Stat 1979, ch. 37, par. 702 — 4.) Section 2 — 5(1) (b): “Those who are dependent include any minor under 18 years of age “ * “ (b) who is without proper care because of the physical or mental disability of his parentjs] “ “ “.” (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 5.)

A good deal of evidence in this case dealt with the activities of the parents and the child during the supervised visitations. The homemaker testified that she continually had to remind the parents to cook lunch and that when it was prepared it was often inadequate. More striking is the evidence of the parents’ failure to take the proper precautions for the child’s safety and failure to exert active and effective supervision over the child during the visitations. The parents also demonstrated a lack of care, emotional support or love for the minor child. The mother failed to play with the child, and both parents failed to attain any rapport with the child through playing with her or holding her. There was testimony that of the 12-hours-per-week visitation period the parents actually spent only two hours with the child. These facts, as presented by the homemaker and the foster mother, demonstrate that the natural parents did not and probably cannot develop many of the parenting skills that are needed to raise the child.

Additionally, by stipulation of the parties, the court considered the reports of two psychiatrists, Dr. Steven J. Kingsbury and Dr. F. P. Johnson. It was Dr. Kingsbury’s opinion that neither parent has the capability to function effectively as a parent although motivation of both parents to assume the parental role appeared sincere and strong. While Dr. Johnson found that both parents demonstrated features of inadequate personality (ineffectual responses to emotional and social demands, ineptness and social instability) and schizoid personalities (seclusiveness and eccentricity), he felt that these aspects of their character and lifestyle would not necessarily prevent their combined and/or separate capacity to effectively parent. Despite the personality and lifestyle deficiencies and difficulties demonstrated by the parents and despite the mother’s history of numerous psychiatric hospitalizations and current apparent need of psycho-active medication and periodic out-patient care, it was Dr. Johnson’s opinion that until hard evidence of clear parental inadequacy, neglect and/or abuse is demonstrated by either or both parties the parents should be considered capable of parenting.

We recognize the tragedy present in this case where both parents show a sincere desire to care for their child but the evidence indicates that they are unable to do so. This court need not and should not wait until the child is abused or suffers grave emotional, psychological or physical damage where there is sufficient evidence of the parents’ behavior with the child depicting the previous neglect of the child. (In re Brooks (1978), 63 Ill. App. 3d 328, 339.) There was sufficient evidence in this case concerning the respondents’ behavior with reference to the minor child in their home environment to support the finding of the trial court that the minor was a neglected and dependent child pursuant to sections 2 — 4 and 2 — 5 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, pars. 702 — 4 and 702 — 5) and sufficient evidence for the court to find the natural parents to be unfit.

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Cite This Page — Counsel Stack

Bluebook (online)
418 N.E.2d 1145, 94 Ill. App. 3d 646, 50 Ill. Dec. 151, 1981 Ill. App. LEXIS 2322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-powers-illappct-1981.