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In re S.A. and P.A.

June 15, 1998

IN THE INTEREST OF S.A. AND P.A., MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
TONY ASHBY, RESPONDENT-APPELLANT.



Garman, P.j., and McCULLOUGH, J., concur.

The opinion of the court was delivered by: Justice Green

Appeal from Circuit Court of Champaign County

No. 95J65

Honorable John R. DeLaMar, judge Presiding.

On July 26, 1995, the circuit court of Champaign County declared minors, S.A. (born August 9, 1984) and P.A. (born March 13, 1991), neglected (705 ILCS 405/2-3(1)(b) (West 1994)) because they lived in an environment injurious to their welfare in that they were exposed to sexual abuse arising from the sexual abuse of their father, Tony Ashby, in their home upon a minor who was not a member of their family. On appeal, this court affirmed. In re S.A., Nos. 4-95-0684, 4-95-0705 cons. (March 29, 1996) (unpublished order under Supreme Court Rule 23). On March 24, 1997, a supplemental petition was filed in that court, alleging respondent and his wife, Debra, were unfit parents because they failed to make reasonable progress toward the return of the minors and failed to make reasonable efforts to correct the conditions that led to the removal of the minors from the family home.

The March 24, 1997, petition sought to terminate the parental rights of the Ashbys to the two children. After several hearings, the court entered an order on October 3, 1997, finding respondent was an unfit parent and terminating his parental rights to the children because he had failed to make reasonable progress toward return of the children and reasonable efforts to correct the conditions of neglect. The same order determined that Debra, who was not living with respondent, was not proved to be unfit, and the court did not terminate her rights to the children. Respondent has appealed. We affirm.

The rule in this State has been that because of the great importance of parental rights to a child, those rights cannot be properly terminated except upon proof by clear and convincing evidence. In re Paul, 101 Ill. 2d 345, 352, 461 N.E.2d 983, 986 (1984). Moreover, in Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982), the United States Supreme Court held that because of the impor-tance of the parental relationship, due process requires that relation-ship can only be permanently severed upon clear and convincing evidence.

In contrast to the requirement of clear and convincing proof of parental unfitness upon which parental rights can be terminated, proof leading to a finding of neglect by parents need only be proved by a preponderance or greater weight of the evidence. In re C.C., 224 Ill. App. 3d 207, 215, 586 N.E.2d 498, 504 (1991); In re Prough, 61 Ill. App. 3d 227, 232, 376 N.E.2d 1078, 1082 (1978). The major thrust of respondent's argument on appeal is that because the decree of neglect was necessary for the findings that respondent had failed to make reasonable progress toward the return of the children or that he had failed to make reasonable efforts in that respect, the doctrine of Santosky requires that neglect must also be proved by clear and convincing evidence.

The theory raised by respondent was rejected by this court in the case of In re I.D., 205 Ill. App. 3d 543, 563 N.E.2d 1200 (1990), where it was almost a side issue. A finding of abuse by the father had been made in a proceeding where the standard of proof was the preponderance of the evidence. Later, in a fitness hearing where the standard of proof was clear and convincing evidence, the father's parental rights were terminated for failure to make reasonable efforts to rectify the situation creating the abuse. There, as here, the argument was made that both the abuse and the finding of unfitness must be proved by clear and convincing evidence. In an opinion by Justice Lund, this court explained:

"However, respondents misapprehend the nature of the court's termination findings. The court is not finding respondent father unfit based on that earlier conduct. Rather, the court's findings were based on new conduct. That conduct is the failure of the father to make reasonable efforts and rea-sonable progress toward the return of [the minor] within 12 months after the earlier adjudication. (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m).) It is to this determination that the clear and convincing standard applies. The first finding is only relevant as a starting point for the 12 months. Thus, the proper standard was applied and there can be no argument, based on father's failure to receive the requested counseling, that the determination of the court's [sic] finding him unfit is correct." I.D., 205 Ill. App. 3d at 551, 563 N.E.2d at 1206.

The Supreme Court of Illinois has not passed on the foregoing question directly, but its opinion in In re Enis, 121 Ill. 2d 124, 520 N.E.2d 362 (1988), indicates that court would uphold a determination of parental unfitness terminating parental rights even though the neglect, which placed the burden upon the parent to take some rehabilitative action, was only proved by a preponderance of the evidence.

In Enis, a child had been found by the circuit court to be an "abused minor" (Ill. Rev. Stat. 1983, ch. 37, par. 702-4) because of bruises inflicted on her by her parents. The child was placed with the Department of Children and Family Services and the parents were ordered to cooperate. Later, a supplemental petition was filed, alleging further abuse by the parents. A hearing was held and the court found the allegations were proved. At both foregoing proceedings, the preponderance of the evidence standard was applied by the court. Subsequently, a petition was filed seeking to terminate the parental rights. At that time, two findings of physical abuse were grounds for declaring the parents unfit. Ill. Rev. Stat. 1983, ch. 40, pars. 1501(D)(f), (D)(m). That petition alleged the two findings of physical abuse and the failure to correct the conditions causing the original abuse charge.

In the proceeding to find unfitness, the Enis trial court took judicial notice of the two findings of physical abuse and further recited that the failure of the parents to remedy the decision had been proved "by a preponderance [of the evidence], because it is uncontradicted." Enis, 121 Ill. 2d at 134, 520 N.E.2d at 367. The supreme court upheld a reversal and remandment by the appellate court. Following Santosky, the Enis court held that the two findings of physical abuse by a preponderance of the evidence could not be the basis of a termination of parental rights. The supreme court then stated:

"Another contention of the People is that, in any event, the evidence introduced at the termination hearing was sufficient for a finding under section 1(D)(m) of the Adoption Act that the parents were unfit in that they failed to correct the conditions causing the court to make [the minor] a ward of the court. Unquestionably, however, the trial court did not use the proper evidentiary standard in making that finding. In announcing its decision the court stated that '[t]he evidence by a preponderance, because it is uncontradicted, is that they [the parents] have not cooperated fully.' Thus, that finding to terminate parental rights also was insufficient because it was made on a preponderance of the evidence standard and not on the required standard of clear and convincing evidence. Because the trial court Judged the evidence by the improper standard of proof, we order a new hearing on the State's petition to be conducted under the constitutionally ...


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