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In Re Austin

OPINION FILED JUNE 12, 1978.

IN RE MICHAEL AUSTIN ET AL., MINORS. — (THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

JEFFIE DEAN HARVEY ET AL., RESPONDENTS-APPELLEES.)



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

MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

This is an appeal by the State from a denial of petitions to have Jeffie Dean Harvey and Jesse Harvey declared unfit as parents. Because this denial was based on an erroneous interpretation of law, we reverse and remand.

On May 9, 1974, the Juvenile Court of Cook County entered a finding of neglect as to Michael Austin, Maurice Austin, Carolyn Austin, Rosemary Austin and Cheryl Austin based on abuse by their parents, the Harveys.

On September 24, 1976, the State filed petitions for supplemental relief alleging that the Harveys were unfit. In a hearing on this petition the State produced three witnesses who testified regarding the Harveys' activities since the time of removal of the children. The first of these witnesses, Irmgard Heyman, described two counseling sessions, one with both parents, the other with Mrs. Harvey alone, and stated her opinion that the couple had made no role change, were unable to establish a plan to live together or accept any counseling or to engage in meaningful conversation with their children during visits allowed them. A second witness, Dr. Blanchard Reeb, a clinical psychologist attached to the juvenile court, offered his conclusions, based on a February 8, 1977, clinical evaluation interview with the Harveys, and on reports of other agencies and psychiatrists. Among these were the view that the Harveys' relationship was so provocative that anyone in the same relationship would lose control and that their combined difficulties caused an impossible situation for resolving their difficulties. Dr. Reeb recommended that the Austin children be permanently removed from the Harvey home and freed for adoption. The State also called Jesse Harvey to testify that he was, after a separation, living again with his wife.

At the conclusion of the State's case, the court granted a directed finding in favor of the Harveys.

To appreciate the significance of this matter, it is necessary to consider the role of an unfitness hearing under the Adoption Act. Under section 8 of the Act, a child may not be adopted without the consent of his parents unless his parents have been declared unfit persons. Ill. Rev. Stat. 1977, ch. 40, par. 1510.

The definition of an unfit person is set forth in section 1D of the Act. (Ill. Rev. Stat. 1977, ch. 40, par. 1501D.) Accordingly, the State's petition to have the Harveys declared unfit persons was a preliminary step toward making possible their adoption.

At issue here is the validity of the trial court's dismissal of that petition.

• 1 For such a petition to be valid, it is necessary that it set forth with particularity the grounds for such a determination (In re Westland (1976), 48 Ill. App.3d 172, 177, 362 N.E.2d 1153, 1157), and these grounds must be supported by clear and convincing evidence (In re Love (1977), 50 Ill. App.3d 1018, 1023, 366 N.E.2d 139, 142).

The grounds alleged by the State in its petition were those contained in subsections (b) and (m) of section 1D. The allegation relating to subsection (b), which provides that a parent may be adjudged unfit for failure to maintain a reasonable degree of interest, concern or responsibility as to a child's welfare, was expressly rejected at trial and is not appealed by the State. Subsection (m), on the other hand, contains two grounds for a determination of unfitness, "[f]ailure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within 12 months" after removal of the child. As to the first of these grounds, the court below expressly found that the efforts of the Harveys, as exemplified by their undergoing counseling, were "reasonable" within the meaning of the statute because, although they were not objectively considerable, they were significant in the light of the Harveys' personal limitations. The State appeals neither the rationale nor the outcome of this finding, so we need consider it no further. The remaining ground under subsection (m), however, presents issues which are the focus of this case.

First, there is no clear, express finding as to this ground. The following passage includes the language which comes closest to a finding as to this particular ground:

"The court finds no — can make no criticism of the State in filing this petition because there does not appear to have been any substantial progress that the parents have made towards correcting the conditions which caused the removal of their children. The court is convinced of that fact.

The question is, what did the legislature mean when they said reasonable efforts towards — what did they mean when they said reasonable progress towards the return of the children? I construe that to mean reasonable given the limitations of the parents themselves.

I believe that this is a statute which is — which is designed to safeguard the interests of children in having a permanent and — in having the assurance of a permanent home where they have been raised ...


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