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01/13/89 In Re N.F.

January 13, 1989



Petitioner-Appellee, v.

Shirley Fontana, Respondent-Appellant)

533 N.E.2d 952, 178 Ill. App. 3d 662, 127 Ill. Dec. 870 1989.IL.30

Appeal from the Circuit Court of De Kalb County; the Hon. Richard D. Larson, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, J., concurs. JUSTICE NASH, Dissenting.


Respondent, Shirley Fontana, appeals from an order of the circuit court of De Kalb County finding her unfit, terminating her parental rights, and granting the Department of Children and Family Services the power to consent to the adoption of her natural child, N.F. On appeal, respondent challenges the constitutionality of section 1(p) of the Illinois Adoption Act (Adoption Act) (Ill. Rev. Stat. 1985, ch. 40, par. 1501(p)), under which the court found her unfit due to a mental illness that precluded her from discharging her parental responsibilities for a reasonable time. Respondent further argues that the trial court's findings of unfitness were against the manifest weight of the evidence. We affirm.

On February 17, 1983, respondent gave birth to N.F. while she was a resident of the H. Douglas Singer Mental Health Center (Singer), where she was being treated for a mental disorder. Because of respondent's illness, N.F. was taken from respondent at birth. On April 28, 1983, N.F. was adjudicated a neglected and dependent minor. While N.F. has lived with foster parents since her birth, she has had weekly supervised visits with respondent for most of her life.

On December 9, 1985, the State filed a petition to terminate respondent's parental rights on the basis that respondent and N.F.'s natural father, who is unknown, were unfit to have a child. At the subsequent hearing on the State's petition, Dr. Thomas Kirts, a psychiatrist, testified that he treated respondent from December 1980 to December 1982. Kirts noted that respondent had been hospitalized on two prior occasions and stated that he initially diagnosed respondent as suffering from an undifferentiated type of schizophrenic disorder generally characterized by bizarre behavior and delusions. Respondent was admitted to Singer in December 1982, and Kirts resumed seeing her when she was released from Singer in April 1983. Based on his later examinations of respondent, Kirts modified his diagnosis and concluded that respondent was suffering from a paranoid type of schizophrenic disorder characterized by delusions of persecution and suspiciousness. Kirts further testified that although respondent was uncooperative and kept appointments only sporadically during the years 1980 through 1982, she had become very cooperative, was regularly keeping her appointments and attending therapy sessions at an outpatient treatment center for the mentally ill, and was able to cope well on one-quarter of the medication he originally prescribed for her. He also testified that respondent had not had any delusions or hallucinations since her hospitalization at Singer, but noted that schizophrenics can have remissions which may be caused by stress, such as that associated with parenting a child. Kirts further stated that although respondent had not had any serious problems or relapses since her release from Singer in April 1983, and while there was no perceived physical danger to N.F., respondent was not able to adequately parent a child. According to Kirts, respondent could meet N.F.'s physical needs, but did not have the capacity to emotionally relate to N.F. or N.F.'s needs. Kirts doubted respondent's ability to know when to support N.F. and when to discipline her. Kirts stated that it was extremely unlikely that his opinion would change within the next few years. On cross-examination, Kirts stated that paranoid schizophrenics can raise normal children and that it was possible that respondent could raise a normal child.

Frederick McNelly, a registered clinical psychologist called by respondent, testified that he met with respondent and N.F. and characterized N.F. as a fairly strong-willed girl of below average to average capabilities. McNelly further stated that there was a bond between N.F. and respondent. McNelly observed that although respondent occasionally turned to him for assistance in managing N.F., she nonetheless related appropriately to N.F. and attempted to manage N.F.'s behavior. McNelly opined that respondent would not be able to parent N.F. independently for a long time, but would be capable of parenting N.F. if she received professional support and monitoring from an agency such as DCFS. He also testified that schizophrenics almost always have periods of decompensation when the person would not be able to function normally or rationally, that the stress of parenting can contribute to such a period of decompensation, and that during such periods, respondent could not retain custody of N.F. McNelly also stated that, even with professional support, he did not believe respondent could provide N.F. with a sufficiently permanent home. Nonetheless, it was McNelly's opinion that it would not be in the best interests of either N.F. or respondent to be permanently separated, and that if N.F. were placed with another family, she should be allowed to visit respondent.

Michele Kelly, a family services homemaker, worked with respondent and N.F. from December 1984 until the time of trial. Kelly testified that respondent had difficulty controlling her emotions when with N.F. and cried in front of N.F. during 75% of her visits. On cross-examination, Kelly stated that respondent would generally cry only when N.F. had to leave at the end of the visitation period. Kelly also testified that respondent was making little progress in developing appropriate parenting skills and in budgeting the disability income she received. Kelly prepared reports after each visitation which stress that, while respondent stated that she did not have money to buy things such as milk, respondent always had soft drinks and cigarettes in the house. During cross-examination, Kelly stated that she had discussed budgeting with respondent, but had never sat down with her to draft a formal, written budget. Kelly's reports also indicate that respondent had quit smoking, and Kelly testified that respondent told her that she was saving $70 to $80 per month since she quit. While Kelly observed that the floors and the bathroom in the house where respondent lived were dirty, she stated that she never saw bugs or vermin in the house. On examination by the trial Judge, Kelly stated that she, and not respondent, took the initiative to discipline N.F., but that respondent had recently been more willing to comply with Kelly's suggestions.

On June 17, 1987, the trial court granted the State's petition to terminate respondent's parental rights. In so ruling, the court found respondent unfit pursuant to section 1(m) of the Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1501(m)), in that she failed to make reasonable progress toward the return of N.F. within 12 months after N.F.'s having been adjudicated a neglected minor, and pursuant to section 1(p) of the Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1501(p)), in that she was unable to discharge her parental responsibilities due to mental illness and her inability would extend beyond a reasonable time. Respondent brought this timely appeal after denial of her post-trial motion.

Respondent initially challenges the constitutionality of section 1(p) of the Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1501(p)), contending that it is unconstitutionally vague and denies her equal protection under the law. It is well settled that issues of constitutionality of a statute are properly preserved for review only when they have been raised in and passed upon by the trial court. (In re Ladewig (1975), 34 Ill. App. 3d 393, 396.) We note that respondent did not raise either constitutional challenge in the trial court or in her post-trial motion, and while respondent did object on vagueness grounds to a question by the State relative to whether respondent was able to discharge her parental responsibilities, our review of the record indicates ...

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