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People in Interest of E.M. v. Anderson

March 27, 1998

(NO. 4-97-0707) IN THE INTEREST OF E.M., JR., A MINOR, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
SHEILA ANDERSON RESPONDENT-APPELLANT. (NO. 4-97-0708) IN THE INTEREST OF E.M., JR., A MINOR, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ERIC MOTTON, SR., RESPONDENT-APPELLANT.



Appeal from Circuit court of Champaign County No. 95J268 Honorable John R. DeLaMar judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Following adjudicatory hearings, the trial court entered an order on August 11, 1997, terminating the parental rights of respondent mother, Sheila Anderson (Sheila), and respondent father, Eric Motton, Sr. (Eric), as to their minor child, E.M., Jr., born June 30, 1995. Respondents' counsel on appeal has filed a motion for leave to withdraw as to the mother, contending there are no colorable issues as to the order terminating her parental rights and citing Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and In re Brazelton, 237 Ill. App. 3d 269, 604 N.E.2d 376 (1992). While reviewing courts have held that the Anders procedure is applicable to an appeal from a Judgement terminating parental rights when appointed counsel moved to withdraw on the ground that the appeal was without merit (In re Keller, 138 Ill. App. 3d 746, 748, 486 N.E.2d 291, 291-92 (1985)), respondents' counsel has submitted an appellate brief on behalf of the mother raising issues also raised with respect to the appeal by the father, for whom counsel has not requested leave to withdraw. Counsel has submitted an appellate brief raising cogent arguments in support of the mother's position contesting the order terminating her parental rights, and we will review those issues in the context of this consolidated appeal.

The issues are (1) whether the trial court abused its discretion in denying the State's motion to dismiss the termination proceeding prior to the adjudicatory hearing and (2) whether the decision terminating the parental rights of respondents was in the best interest of the child. As to respondent father, there is the additional issue of whether the trial court's finding of unfitness was an abuse of discretion and against the manifest weight of the evidence.

The facts will be referred to only as necessary in determining the issues on appeal.

On July 5, 1995, the Peoria County State's Attorney filed a petition naming respondents as the parents of E.M., Jr. At a hearing in Peoria County on July 18, 1995, Sheila admitted the allegations of neglect. On August 3, 1995, an order of ad prosequendum was entered in Peoria County directing the warden of the Taylorville Correctional Center, where Eric was incarcerated for theft, to produce him on August 18, 1995, for an appearance and answer in the case. On August 15, 1995, the Peoria County circuit court entered a Dispositional order finding Sheila unfit, making E.M. a ward of the court, and appointing the Department of Children and Family Services (DCFS) as guardian. The case was then transferred to Champaign County.

Eric appeared at a hearing held in Peoria County on August 18, 1995, where he was informed of the charges and Disposition of the case as regards E.M., Jr. He indicated he had insufficient knowledge to admit or deny the allegations of the neglect petition but had no objection to the Disposition. He was informed of his appeal rights and that the case had been transferred to Champaign County. Eric acknowledged receipt of a service plan requiring him to obtain employment and suitable housing and not engage in criminal activity. Eric remained incarcerated until December 4, 1995.

On October 28, 1996, the State filed a supplemental petition to terminate both respondents' parental rights as to E.M., Jr., alleging in count II that respondents failed to make reasonable progress toward the return of the minor to them within 12 months of the adjudication of neglect. Adjudicatory hearings on the termination petition previously allotted for January 30, 1997, and March 6, 1997, were vacated by the court and the matter scheduled for April 3, 1997. On that date, the State moved to withdraw and dismiss the termination petition, the motion was denied, and the adjudicatory hearing was held.

At the Conclusion of the adjudicatory hearing, the trial court noted that when the case began Sheila was in treatment with CICTA and had two prior periods of residential treatment for substance abuse. A month after her release from CICTA she again began using cocaine, refused all treatment, and only ceased substance abuse when she entered residential treatment at Gateway in April 1997. The court found that 13 months of refraining from treatment, with no attempt to abstain from substance abuse, was not reasonable progress. As to Eric, the court noted that the Dispositional order from the Peoria County circuit court was unclear regarding what was expected of him. However, it was clear that DCFS required Eric to refrain from committing criminal offenses and stay out of jail and to establish a residence where E.M., Jr., would not be compelled to live with two people convicted of drug offenses. The court found it inappropriate for a child to have to wait 18 months for a parent to obtain a suitable residence in order to obtain custody, and expressed doubt that Eric would do so in the coming month as he claimed. The court then found both parents unfit for failing to make reasonable progress toward the return of E.M., Jr., within 12 months of the adjudication of neglect in August 1995.

A Disposition hearing was held July 24, 1997, focusing on whether termination of respondents' parental rights would be in the best interest of E.M., Jr. The report from DCFS indicated that Sheila had been discharged from Gateway and was residing in a halfway house, attending parenting classes and scheduled to begin general equivalency diploma classes in September. Counsel reported that Eric had obtained his own residence in the past four or five days but did not have a copy of the lease and had not informed DCFS. E.M., Jr., had been in the only home he had ever known for two years and the home was an adoptive resource. The court found that Sheila had waited a long time to address her addiction but hoped that with the change in environment she would be able to persist in her sobriety and establish a healthy lifestyle. However, it would not be in E.M., Jr.'s best interests to tear him away from the only family he had ever known. The petition for termination of Sheila's parental rights was granted and the guardian was given authority to consent to adoption. As for Eric, the court found his credibility doubtful regarding a recently acquired residence in view of his prior testimony denying knowledge of his aunt's conviction for intent to deliver a controlled substance and the fact that while both respondents denied a relationship, they were about to parent their third child. The court found that Eric was not now, nor in the near future would he be, in a position to provide E.M., Jr., the home stability and nurturing that E.M., Jr., had with his foster parents and it was in E.M., Jr.'s best interests to grant the petition. The court then terminated Eric's parental rights to E.M., Jr., and granted the guardian authority to consent to adoption.

On appeal, respondents first contend that the trial court abused its discretion in denying the State's motion to withdraw and dismiss the termination petition because the April 3 (and apparently the June 23) adjudicatory hearings were not held within 90 days, or even a "good cause" extension of an additional 30 days, of the date of service of the petition as required by section 2-14 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-14 (West 1996)). That section provides in part:

"(b) When a petition is filed alleging that the minor is abused, neglected or dependent, an adjudicatory hearing shall be held within 90 days of the date of service of process upon the minor, parents, any guardian and any legal custodian.

(c) Upon written motion of a party *** or upon the court's own motion and only for good cause shown, the Court may continue the hearing for a period not to exceed 30 days, and only if the ...


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