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12/05/96 V.S. v. WILLIAM W.

December 5, 1996

IN RE V.S., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
WILLIAM W., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois. No. 92--J--98. Honorable Terence M. Madsen, Judge, Presiding.

Released for Publication January 16, 1997.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Justice Lytton delivered the opinion of the court: Holdridge, P.j., and McCUSKEY, J., concur.

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

The trial court found the respondent, William W., to be an unfit parent and terminated his parental rights. The issue on appeal is whether the trial court improperly allowed the State to introduce evidence of the child's best interest prior to a finding of unfitness. For reasons that follow, we reverse.

FACTS

On September 21, 1992, William, a resident of the Department of Corrections, consented to orders adjudicating V.S. dependent and placing her in the custody of the Department of Children and Family Services (DCFS) for care and services. On December 20, 1993, four months after William's release from prison, the State filed a petition to terminate his parental rights. The petition alleged that William was an unfit parent because he (1) abandoned V.S.; (2) failed to maintain a reasonable degree of interest, concern or responsibility as to V.S.'s welfare; (3) showed his intent to forego parental rights by failing for a period of 12 months to visit V.S., although not prevented from doing so by an agency or by court order, or to maintain contact with her or plan for her future; and (4) failed to provide V.S. with adequate food, clothing or shelter, although physically and financially able (750 ILCS 50/1(D)(a),(b),(n)(1),(o) (West 1994)).

Prior to the hearing on the petition, counsel for William moved to exclude testimony relating to William's sexual misconduct with his three sisters. The court denied William's motion, and the cause proceeded to a unified hearing on parental unfitness and the best interest of the child.

Over counsel's objection, William's three sisters, Sandra W., Catherine P. and Michelle W., each testified that William had performed various sexual acts with them between the mid-1970's and the early 1980's, while William and his sisters were all children and living with their mother and stepfather. Following their testimony, V.S.'s mother, Cindy V., testified that V.S. was born August 28, 1988, and William had seen her only twice, once in 1989 and once in 1991. William was subsequently incarcerated from March 22, 1992, until August 16, 1993, for aggravated battery and forgery.

DCFS caseworker Tru Wahlgren testified that four service plans were mailed to William between the date of his release from prison and the date of the hearing, only one of which was sent before the State filed its petition to terminate parental rights. Wahlgren admitted that it was DCFS' goal at all times to terminate William's parental rights and not to reunite him with V.S. She said that her records indicated that William attended only one service plan meeting, and he did not complete the tasks assigned in the plans. She denied telling William that the State would terminate his parental rights no matter what he did.

In his defense, William testified that his attempts to visit V.S., when he was not in prison, were frustrated by Cindy and DCFS. He said that he tried several times to see the child, but Cindy and her boyfriend refused to let him. William said Cindy moved frequently. She did not tell him where she was living, and at times she did not have a telephone. He said he offered to pay child support, but Cindy would not consider it and told him that she had given the child up for adoption. William also testified that he attended two of the service plan meetings, but stopped because Wahlgren told him that DCFS intended to terminate his parental rights regardless of what he did.

Melanie Girts, William's current girlfriend, testified that she attended a service plan meeting with William in the fall of 1994. She said that they asked Wahlgren whether the termination proceedings would be dropped if they completed all of the tasks in the plan, and Wahlgren replied that it would make no difference.

At the close of all evidence, the court granted the State's petition to terminate parental rights. In a written order, the court stated:

"Based on the evidence taken and its experience, the Court has made assessments as to the true credibility and intentions of all of the parties and has considered very carefully the best interest of the minor and all of those touched by this case. This Court has determined that the Petition to Terminate Parental Rights is well taken. Although Mr. [W.] has espoused continuing interest in the child, it is the Court's finding that in reality he is unfit and has fully refused to take the steps required of him to develop a relationship with the child, specifically for extended period [sic] as required by statute he ...


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