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In Re Hillyer





APPEAL from the Circuit Court of Hancock County; the Hon. RICHARD C. RIPPLE, Judge, presiding. MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 25, 1980.

Marjorie Hillyer, mother of Benjamin, Jerry, and Clarence Hillyer, appeals from an order of the Circuit Court of Hancock County terminating her parental rights and placing custody, guardianship, and the power to consent to adoption in the Department of Children and Family Services of the State of Illinois.

In 1970, at the behest of the Department, Hazel, Benjamin, Jerry, and Clarence Hillyer, all minors, were adjudged neglected and removed from the custody of their parents, Wayne and Marjorie Hillyer. In 1971, the Department filed a petition seeking to have parental rights terminated. The father, who was then 75 years of age, executed proper consents for the adoption of the children, but after an evidentiary hearing, the trial court denied the petition to terminate the mother's parental rights. During those proceedings and thereafter, the mother was represented by a court-appointed attorney.

In June of 1972, after a hearing upon the mother's petition for a return of custody, the court ordered Hazel and Benjamin returned to their mother. In March of 1973, a further order was entered giving physical custody of Clarence to his mother and directing a later transfer of physical custody of Jerry at such time as the guardian feels she can take proper care of Jerry. Apparently Jerry was never returned to his mother. In September 1975, the Department filed a supplemental petition requesting termination of the mother's parental rights to Benjamin, Jerry, and Clarence. Numerous motions, pleadings, and proceedings not relevant to this appeal followed.

In June of 1977, the record indicates that a specially retained attorney entered an appearance as co-counsel for the Department and thereafter an amended supplemental petition was filed. The mother filed a motion to strike the petition, and as one of several grounds, she asserted that the case was being improperly prosecuted by privately employed counsel instead of by the State's Attorney. The motion to strike was denied, and on January 17, 1978, the Department filed a second amended supplemental petition which alleged the mother's failure to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of her three minor sons. A trial was held in April 1978, after which the trial court found the mother unfit as alleged. The court order terminated her parental rights, placed the children in the custody and guardianship of the Department, and empowered the guardian to consent to the adoption of the three boys.

The mother's attorney petitioned the trial court to fix attorney's fees in the amount of $2,571.15 based upon an hourly rate of $40 per hour and also to pay expenses of $55, for a total of $2,626.15. A hearing was held upon the petition, at which the mother's counsel presented evidence in support of his claim for fees. The court fixed the attorney's fees plus expenses at $1,626.20. The court used as a basis the usual and customary fees for attorneys representing indigents in juvenile proceedings in the Ninth Judicial Circuit, which are $20 per hour for the time spent in preparation out of court and $30 for time spent in court.

The mother has appealed from the orders of the circuit court, and she assigns as error (1) that the finding of unfitness was contrary to the manifest weight of the evidence; (2) that the Department's representation by special counsel was improper; and (3) that the award of attorney's fees was arbitrary. We affirm on all issues.

A summary of the evidence is necessary for an understanding of the mother's arguments. At trial, the Department social worker, Robert Trine, testified that he was assigned to the Hillyer family in 1972 after two of the children had been returned to the custody of their mother. In May of 1973, the mother separated from her husband, and in June she moved to the Indian Hills Housing Project in Quincy where she lived with Benjamin, Clarence, and her daughter Hazel. (Son Jerry remained in foster care.) She received aid for dependent children, was visited two or three times each month by Trine, and three times each week by a homemaker to help her improve her housekeeping skills. Both Trine and the homemaker, who is no longer employed by the Department, testified at length to the filthy conditions of the mother's apartment and her refusal to do anything about the unhealthy, unsanitary situation. She did not wash dishes or pans, did not do laundry, did not remove garbage and trash, did not bathe or shampoo or cut the hair of the children, and did not get up in the morning to get the children off to school. Trine stated that upon occasion he told the mother that he would have to remove the children from her custody if she did not keep them clean and improve her housekeeping. Both witnesses testified to the presence of flies and roaches and to the dirtiness of the children. Both described in detail the deplorable condition of the home, and the mother's refusal to make any effort to improve. After the children started a fire in a closet one morning while the mother was asleep, the family was evicted from the housing project, and a short time later, on April 7, 1974, the Department moved the children from the mother's custody.

Trine testified that he visited the mother three times after the children were taken from her in 1974, and that each time he told her that she had a right to visit the children and that he would arrange a visit. He talked to her about making plans for suitable housing and for getting the children back, but she said she was going to make her life with her boyfriend. Thereafter she moved several times, spending some time in Tennessee and St. Louis before returning to the area in March of 1977.

In September of 1975, Trine decided to seek termination of the mother's parental rights since the mother had not contacted him and had no plans for the return of the children. Generally, after a petition to terminate parental rights has been filed, it is Department policy not to arrange or encourage visits. Social Worker Lou White was assigned to the Hillyer case in August of 1976, and in March of 1977 she visited the mother solely for the purpose of meeting her. Mrs. White testified that the mother did not inquire about the children then or two months later when they met accidentally. The mother's only contact with the children consisted of two visits in December of 1977, and another one week before the trial.

The foster father of the children testified that in December of 1977, the Department gave the mother permission to visit once every two weeks, that he invited her to come to their home for her visits, that she never came again, and that at the time of the December 1977 visits, one boy recognized her but the other two did not.

At the time of trial Ben was 12 1/2 years old, Jerry was 11 1/2 years, and Clarence was 10 years old. The mother requested that the boys be called as witnesses. At an informal proceeding in chambers, the trial court determined that Jerry was not competent to testify but that Clarence and Benjamin were. Clarence could not remember living with his mother. Benjamin remembered living in the apartment in Quincy and recalled attending a special school there.

The mother testified in minute detail as to her methods of washing dishes, doing laundry, and giving the children baths. She said she wore herself out with all this work plus playing with the children so that she could not clean up the dishes or uneaten food at night, but had to leave them until morning. She admitted that she often slept late. At the time of trial she was 41 years old, and supported herself by baby-sitting for her sister with whom she stayed. Before that, she resided with her mother. She cannot read, can write only her name, can add but not subtract, multiply or divide, and she can use the telephone but cannot find a number in the telephone book. She also stated that after the children were taken from her, Trine told her not to try to see them again because she would never get them back. As a result she made no effort to see the children and did not ask anyone for advice. The court took judicial notice that the mother has had court-appointed counsel since 1971. She also testified that she walked to Memphis, Tennessee, and that she was disabled with knee surgery after she returned.

On rebuttal, Trine emphatically denied ever telling the mother that she could not visit her children and stated that, to the contrary, when the children were first placed in foster care, he told her it was important to the children for her to see them. He also contradicted the ...

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