Appeal from the Circuit Court of Lake County; the Hon. Richard
C. Christian and the Hon. Charles F. Scott, Judges, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
The respondents, Larry and Cynthia Enis (the Enises), appeal from the judgment of the trial court of Lake County finding them to be unfit and terminating their parental rights in regard to Sabrina Enis, their natural child. The Enises raise one issue on appeal: whether section 1(D)(f) of the Illinois Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(f)) violates due process.
Eleven-month-old Sabrina Enis was admitted to a Waukegan hospital in April 1982 and treated for second- and third-degree burns to her thighs, buttocks, genital area, and both feet. She also had bruises of varying ages in numerous places on her body. Sabrina was placed in the temporary custody of the Department of Children and Family Services (the Department), and the State petitioned to have the child adjudicated a ward of the court pursuant to section 4-8 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 704-8). In July 1982, following a hearing at which Sabrina was represented by one public defender and her parents were represented by another public defender, Judge Scott entered a finding that Sabrina had been abused. The following September, after a dispositional hearing, Sabrina was adjudicated a ward of the court. Her parents were directed to cooperate with the Department, which was appointed guardian, and were to be allowed weekly visits. In December 1982 the court ordered that Sabrina remain a ward of the court but returned her to the custody of her parents, and again ordered the parents to cooperate with the Department and the Lake County public health visiting nurse, as well as with a number of services intended to benefit Sabrina.
Three months later, in March 1983, a comatose Sabrina was brought to the hospital emergency room suffering from an injury to the head which required emergency surgery and placement on a respirator. Examination revealed bruises in various spots on her body. At a shelter care hearing the court again removed Sabrina from the custody of her parents and ordered them to cooperate with the Department. At the same time, the court found no probable cause to believe that the other three children in the parents' custody were abused. Nevertheless, the Department was ordered to monitor all of the children. On May 5, 1983, pursuant to a supplemental petition from the State, and after an adjudicatory hearing, Judge Scott once again found, under the Juvenile Court Act, that Sabrina had been physically abused by both parents. The court also ordered that Sabrina remain in foster care, that parental visitation be scheduled twice a month with the parents confirming visiting time 48 hours in advance, and that the Enises were to seek counseling and to cooperate with both the Department and Central Baptist Family Services.
In May 1983 the State also petitioned for termination of parental rights alleging that the Enises were unfit parents because, among other things, two prior findings of physical abuse had been entered against them, and because of failure to make reasonable efforts to correct the conditions which were the basis for Sabrina's removal from them. The hearing on the termination petition took place on March 1, 1984, before Judge Christian. At that time the court took judicial notice of the two prior findings of abuse and agreed to take judicial notice of the September 1982 order directing the parents to cooperate with the Department. The court also heard testimony, from a Department caseworker and a Central Baptist Family Services social worker, that the Enises refused to sign the plan that had been worked out for them to try to prevent termination of their parental rights. The testimony also showed that the Enises did not visit with Sabrina as often as they could have, or enter into regular counseling. No testimony was offered by or on behalf of the parents.
After the close of testimony, the court once again cited the two prior findings of physical abuse; found that the Enises had substantially neglected Sabrina because they had not cooperated with the Department; concluded that since the first finding of physical abuse there had been a failure by the parents to make reasonable efforts to correct the conditions which had led to the removal of Sabrina; and held that it was in the child's best interests to terminate parental rights. The Enises' parental rights were then terminated, and the Department was confirmed as guardian with the right to consent to adoption.
The Enises' post-trial motion was denied, and this appeal was timely filed.
• 1 The Enises posit that the statutory provision which served as a basis for termination of their parental rights is unconstitutional in that it denied them due process. The Illinois Adoption Act (Adoption Act) (Ill. Rev. Stat. 1983, ch. 40, par. 1501 et seq.) provides that a parent may be found unfit and his or her rights terminated upon any one of several grounds. The Adoption Act requires that the court's findings of unfitness must be based on clear and convincing evidence. The grounds for unfitness that the trial court relied on, and to which the Enises object, are as follows: "two or more findings of physical abuse to any children under section 4-8 of the Juvenile Court Act * * *." (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(f).) The Enises object because, under section 4-6(1) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 704-6(1)), physical abuse need be proved only by a preponderance of the evidence, rather than the clear and convincing proof otherwise called for in the Adoption Act. It is uncontested that the two findings of physical abuse in this case were proved by a preponderance of the evidence.
The Enises point out that Santosky v. Kramer (1982), 455 U.S. 745, 71 L.Ed.2d 599, 102 S.Ct. 1388, demands that when parental rights are at stake, parental unfitness must be shown by clear and convincing evidence. Here, the Enises claim, parental unfitness has never been shown by more than a preponderance of the evidence. While recognizing the command of Santosky, the State argues that the legislature could properly conclude that two findings of physical abuse by a preponderance, cumulatively, amount to clear and convincing evidence of the condition of unfitness. Thus, the State maintains that its only burden at the termination proceeding was to prove, clearly and convincingly, the bare fact that two prior findings of parental physical abuse had been made pursuant to the Juvenile Court Act. In accord with this position, the State offered as evidence at the termination hearing only the orders of July 1982 and May 1983 setting forth the court's findings of abuse. Although the constitutionality of section 1(D)(f) was raised before it, the trial court took judicial notice of the prior abuse findings and made it clear that those findings were highly significant to its decision to terminate the Enises' parental rights in regard to Sabrina.
While the matter before us is one of first impression, our review of Santosky v. Kramer (1982), 455 U.S. 745, 71 L.Ed.2d 599, 102 S.Ct. 1388, persuades us that the statutory procedure followed here denied the Enises the full measure of due process guaranteed them by the Constitution of the United States.
In Santosky, the court struck down a New York statute which allowed the termination of parental rights after a declaration that a child was permanently neglected. The State had to prove its allegation of permanent neglect by a fair preponderance of the evidence. The court held that the fair preponderance burden of proof violated the parents' due process rights.
The Santosky court first characterized the interest of natural parents in the care, custody and management of their children as a fundamental liberty interest. If the State moved to destroy this interest, parents must be provided with fundamentally fair procedures. The court then explained that the nature of the process due in parental termination proceedings depends on the balancing of three distinct factors, as set out in Mathews v. Eldridge (1976), 424 U.S. 319, 47 L.Ed.2d 18, 96 S.Ct. 893: the private interests affected; the risk of error created by the State's chosen procedure; and the governmental interest favoring use of the challenged procedure. The court asserted that in the balancing process "the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight." Santosky v. Kramer (1982), 455 U.S. 745, 758, 71 L.Ed.2d 599, 609, 102 S.Ct. 1388, 1397.
The court then evaluated the three factors mentioned above. It first found that termination proceedings caused the loss of a parental interest far more precious than any property right and that the loss is final and irrevocable. The court also noted that at the fact-finding stage the interests of the parent and child are the same in that, until unfitness is proved, they share an interest in preventing erroneous termination of their natural relationship. Thus, they also share an interest in keeping the fact-finding procedures as free from error as possible.
Next, the court examined the relative risk of error created by use of a preponderance standard as compared to a clear and convincing standard. The court stated the relevant question to be whether the lower standard fairly allocates the risk of an error in fact finding between the State and the natural parents. The fact-finding stage of the New York proceeding, according to the court, had many of the characteristics of a criminal trial. For example, charges were made, service was by summons, formal rules of evidence controlled the hearing, all parties were represented by counsel, testimony was heard, and witnesses were subject to cross-examination. The court asserted that at such a proceeding several factors combined to increase the risk of error in fact finding. Use of imprecise substantive standards allows the court to exercise unusual discretion and leaves factual determinations open to subjective judicial evaluation. Also, the resources available to the State generally outweigh whatever means the parents can marshall in their own defense. Moreover, if the State does not achieve its aim of termination the first time around, it can always try again, and there is nothing the parents can do to stop the State's repeated efforts. The court concluded that these factors, combined with the preponderance standard, ...