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05/10/94 M.M. v. R.H.M. AND M.M.

May 10, 1994

IN RE M.M., JR., AND R.M., MINORS (THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES EX REL. SHARON KINCAID, PETITIONER-APPELLEE,
v.
R.H.M. AND M.M., SR., RESPONDENTS-APPELLANTS).



Appeal from the Circuit Court of St. Clair County. Nos. 86-J-207 and 91-J-163. Honorable Ellen A. Dauber, Judge Presiding.

Chapman, Goldenhersh, Maag

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

The respondents, R.H.M. (mother) and M.M., Sr. (father), appeal from an order which found them to be unfit parents, terminated their parental rights, and granted the State the power to consent to the adoption of their minor children, R.M. and M.M., Jr. We affirm.

On April 15, 1991, the trial court entered a default judgment against the respondents and found that both minor children were neglected. Nine months later, the Department of Children and Family Services (DCFS) filed a petition to terminate respondents' parental rights. A hearing was held on June 22, 1992, and the court found that the State had proven that the parents were unfit by clear and convincing evidence. After a Dispositional hearing, the court terminated the respondents' parental rights and granted DCFS guardianship with the power to consent to adoption.

The respondents contend that because the children were removed from their home based upon a finding of neglect, the parents were entitled to a statutory 12-month period between the time the children were adjudicated neglected and the filing of the petition to terminate rights in order to make progress toward the return of the children. Respondents base their argument upon section 1501 (D)(m) of the Adoption Act, which states that a finding of unfitness may be based upon:

"failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such a parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under the Juvenile Court Act or the Juvenile Court Act of 1987." Ill. Rev. Stat. 1989, ch. 40, par. 1501 (D) (m).

Respondents argue that that statutory provision guarantees them at least 12 months between the time that the children were adjudicated neglected and the filing of the petition to terminate parental rights. Respondents have misinterpreted the statute.

Section 1501(D) of the Adoption Act lists statutory grounds which will support a finding of unfitness, not a list of parents' rights. DCFS did not seek to terminate the respondents' parental rights based upon respondents' failure to make reasonable progress toward the return of the children within 12 months, nor did the court base its determination upon that statutory ground. Rather, respondents were alleged to be unfit based upon the following statutory grounds:

"(b) failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare;

(c) desertion of the child for more than 3 months next preceding the commencement of the Adoption proceeding;

(n) evidence of intent to forego his or her parental rights, whether or not the child is a ward of the court, (1) as manifested by his or her failure for a period of 12 months (i) to visit the child, (ii) to communicate with the child or agency, although able to do so and not prevented from doing so by an agency or by court order, or (iii) to maintain contact with or plan for the future of the child, although physically able to do so * * *." Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D) (b), (c), (n).

The court found respondents unfit based upon their failure to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the children. (See Ill. Rev. Stat. 1989, ch. 40, par. 1501 (D) (b).) Therefore, respondents' argument that they were denied 12 months in which to make reasonable progress toward the return of the children, based upon section 1501(D) (m) of the Adoption Act, is without merit. Also, the record shows that approximately 14 months passed between the finding of neglect and the termination hearing and finding.

Respondents further argue that DCFS failed to establish by clear and convincing evidence that respondents failed to show a reasonable degree of interest, concern, or responsibility in the care and future of the minors, as required to terminate ...


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