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In Re Jankowski

OPINION FILED APRIL 9, 1976.

IN RE LISA JANKOWSKI, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

BARBARA JANKOWSKI, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR N. HAMILTON, Judge, presiding.

MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Respondent, Barbara Jankowski, appeals from an order declaring her an unfit parent, terminating her parental rights and responsibilities, and appointing a guardian to consent to the adoption of her daughter, Lisa Jankowski, a/k/a Perri.

On appeal, respondent raises two issues for this court's consideration: (1) whether the State proved by clear and convincing evidence that respondent is an unfit parent pursuant to section 1(D)(l) of the Adoption Act, *fn1 and (2) whether the court committed reversible error when it allowed the child's foster parent to testify that he would adopt respondent's child during the hearing on the fitness of the mother.

The evidence adduced at the hearing discloses the following occurrences.

Lisa Jankowski, a/k/a Perri, was born September 20, 1965, and declared a dependent child and ward of the State on October 1, 1965 pursuant to the Family Court Act (Ill. Rev. Stat. 1965, ch. 23, par. 2001).

Lisa lived in an orphanage until she was one year of age, at which time she was placed in a foster home by her guardian. When Lisa was three years old, respondent requested that she be returned to her care. Lisa was returned to respondent who then hired a person to care for Lisa while respondent worked. Subsequently, the person caring for Lisa became incapacitated, and respondent was unable to find another person to take her place. Lisa was returned to the foster home where her parents continued to visit her as suggested by the foster agency. In April, 1973, the Department of Children and Family Services contacted respondent to inquire whether she would consent to her child's adoption. Respondent indicated her desire for the child's return, and in August, 1973, began to visit Lisa every week.

In May, 1973, the Department of Children and Family Services filed a petition alleging that Lisa's parents were unfit for failure to maintain a reasonable degree of interest, concern and responsibility as to the child's welfare pursuant to section 1(D)(b) of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1(D)(b)), and praying for the appointment of a guardian to consent to adoption. Prior to a hearing on the cause, the above mentioned ground for a declaration of unfitness was stricken, and in its place the State alleged that respondent was unfit because she failed to make reasonable progress toward the return of the child within 24 months after an adjudication of neglect under section 2-4 of the Juvenile Court Act. (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1(D)(l).) On June 28, 1973, respondent filed a petition requesting Lisa's return. Lisa was returned to her in October, 1973.

Several meetings were held in respondent's apartment between Lisa, respondent and the caseworker for the Department of Children and Family Services. During these meetings, and in other conversations, a conflict developed between the caseworker and respondent concerning whether behavior modification should be employed to assist Lisa in her behavior problems.

On February 12, 1974, the caseworker telephoned respondent to inquire whether Lisa should be removed from her home. Respondent answered affirmatively. The caseworker removed Lisa the following day and placed her in a potential adoption home, respondent then agreeing that she would consent to Lisa's adoption. Respondent stated that on the day following Lisa's removal she changed her mind concerning the adoption, telephoned the caseworker, and requested Lisa's return a week later. On the day of the trial, respondent stated she desired to have her daughter returned to her.

Over defense counsel's objection Lisa's present foster parent was allowed to testify that Lisa was presenting no behavior problems in his home and that he intended to adopt Lisa if that became possible.

After closing argument, the trial court entered a finding that Lisa's parents are unfit because they failed to make reasonable progress toward the return of the child within 24 months after an adjudication of neglect under section 2-4 of the Juvenile Court Act. (Ill. Rev. Stat. 1973, ch. 4, par. 9-1.1(D)(l).) It is from this order of the trial court that respondent appeals.

OPINION

The first issue raised by respondent is whether the State proved by clear and convincing evidence that respondent is an unfit parent pursuant to section 1(D)(l) of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1(D)(l)). Within this issue, respondent presents two independent contentions: (1) that the State failed to prove that respondent's child was adjudicated as being neglected pursuant to section 2-4 of the Juvenile Court Act where respondent's child was adjudicated to be a dependent under the Family Court Act rather than neglected, and (2) that the State failed to prove that respondent did not make reasonable progress toward the return of her child within the 24-month statutory time period provided in section 1(D)(l) of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1(D)(l)).

Resolution of respondent's contention that the State failed to prove that respondent did not make reasonable progress toward the return of her child within 24 months after an adjudication of neglect under section 2-4 of the Juvenile Court Act requires this court to analyze sections of both the Juvenile Court Act and the Adoption Act. Section 5-9 of the ...


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