Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re Smith

OPINION FILED APRIL 23, 1981.

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

v.

MARTIN SMITH ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding. MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The parents appeal from an order of the trial court terminating parental rights. In May 1978, a petition alleged that the child's environment was injurious to her welfare and prayed that she be declared to be a ward of the court as a neglected child. At an adjudication hearing neglect was found, including a finding of parental physical abuse. At the subsequent dispositional hearing, the Department of Children and Family Services was appointed her guardian, and the child was removed from the custody of her parents.

The court also found it to be in the best interests of the child for the parents to take steps within a period not to exceed 12 months to correct their family problems in the following aspects (1) obtaining and following competent psychiatric or psychological counseling; (2) to demonstrate an awareness of the marital problem in the home which led to the physical abuse of the child; (3) to cooperate with the Department of Children and Family Services in eliminating the problems in the home; (4) to visit with the child but to cease conduct which caused troubled and chaotic visitation, such visitation to be made in the proximity of law enforcement officers.

An appeal from such orders was dismissed as untimely.

In February 1980, a supplemental petition alleged that the parents had been previously found to be unfit, that they had failed to make reasonable efforts to correct the injurious conditions which required the appointment of the child's guardian, and that they failed to make reasonable efforts or progress to obtain the return of the child's custody within 12 months. The petition prayed for the termination of parental rights. Section 1 of "An Act in relation to adoption of persons" (Ill. Rev. Stat. 1979, ch. 40, par. 1501D) provides that such allegations when proven shall support a finding that a parent is an unfit person for purposes of terminating parental rights.

Upon motion of the People and without objection, the trial judge took judicial notice of the prior proceedings and orders. Following a hearing of evidence, the trial court found that the evidence clearly and convincingly established that the parents had made no reasonable effort to improve the conditions in the home and that it was "overwhelmingly" in the best interests of the child that the guardianship be made permanent with authority to consent to adoption.

It is first argued that the petition alleging neglect failed to allege that the parents were unfit and that the trial court could not properly find that there was a want of parental fitness. In the proceedings under the supplemental petition, it is argued that in the neglect petition, the parents had no knowledge that parental fitness was to be an issue.

In section 4-1 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 704-1(2)), subparagraph (2) provides that a petition shall allege that the minor is neglected within section 2-1 of the Act. (Par. 702-1.) The remaining allegations required by the statute are essentially housekeeping matters. Subparagraph (3) provides:

"The petition must allege that it is in the best interests of the minor and of the public that he be adjudged a ward of the court and may pray generally for relief available under this Act. The petition need not specify any proposed disposition following adjudication of wardship."

Section 4-8(2) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 704-8(2)) directs that if the court finds that a child is neglected:

"[T]he court shall then find whether such neglect or dependency is the result of physical abuse to the minor inflicted by a parent * * * and such finding shall appear in the order of the court."

The statutory theme is enlarged in that section 5-2(c) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 705-2(c)) provides that if a minor is found to be neglected and there is further finding that such neglect is the result of physical abuse:

"[C]ustody of the minor shall not be restored to any parent * * * found by the court to have inflicted physical abuse on the minor until such time as a hearing is held on the issue of the fitness of such parent * * * to care for the minor."

Again, section 5-8(3) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 705-8(3)) further enlarges the theme and reiterates that in those instances where there is an adjudication of neglect with a finding of physical abuse inflicted by the parents, custody shall not be restored to any parent until investigation has been made and a hearing held on the issue of the fitness of the parents to care for the minor and the court enters an order determining the parents fit.

• 1 It is apparent that the finding of physical abuse in the order adjudicating neglect was required under operation of the several statutes where the evidence discloses parental physical abuse. It is apparent, however, that the statutory requirements in the petition to adjudicate the child ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.