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In re K.P. and K.P.

May 27, 1999

IN RE: K.P. AND K.P., MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. (NO. 4-98-0931) ATRICIA WATTS AND BUTCH POWELL, RESPONDENTS-APPELLANTS. IN RE: T.B., A MINOR, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. (NO. 4-98-0932) ATRICIA WATTS, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Adams County Nos. 96JA34 96JA35 No. 96JA36 Honorable Chet W. Vahle, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

On September 9, 1996, the State filed petitions to adjudicate T.B., then almost age three; K.P., then about one year old; and K.P., then 2½ months old (hereinafter Kn.P.), wards of the court. The children lived with respondents Atricia Watts, the mother of all three children, and Butch Powell, the father of Kn.P. and K.P.

On February 24, 1997, the children were adjudicated neglected and made wards of the court. On April 28, 1997, the children were removed from respondents' home. On March 30, 1998, the State filed a petition to terminate respondents' parental rights for failure to make reasonable efforts and reasonable progress to correct the conditions requiring removal within 12 months after an adjudication of neglect (750 ILCS 50/1(D)(m) (West 1996)). On September 11, 1998, respondents were declared unfit parents based solely on their failure to make reasonable progress, and their parental rights were subsequently terminated. T.B.'s father was also declared unfit but is not a party to this appeal. Respondents appeal, arguing the petition to terminate parental rights was not sufficient because they were not given 12 months from the date of removal to improve conditions in their home, and the evidence did not support the finding they were unfit. We affirm.

The respondents first argue the trial court could not terminate their parental rights for failure to make reasonable progress within 12 months of the adjudication of neglect because 12 months had not elapsed since their children were removed from their home. At the time the children were adjudicated neglected, section 1(D)(m) of the Adoption Act provided, as a ground for unfitness:

"Failure by a parent to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or to make reasonable progress toward the return of the child to the parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under Juvenile Court Act or the Juvenile Court Act of 1987." 750 ILCS 50/1(D)(m) (West 1996).

The State counters that the respondents waived this argument by failing to present it at trial and that the statutory period started running from the date the respondents' children were adjudicated neglected, not the date the children were removed from the home. Over 12 months had passed since the respondents' children were adjudicated neglected before the respondents' parental rights were terminated.

We will not apply waiver and will address the merits of the respondents' argument. Illinois Supreme Court Rule 366 (155 Ill. 2d R. 366(b)(1)(i)) provides that "[a]ny error of law affecting the judgment or order appealed from may be brought up for review." Pursuant to Rule 366, we may overlook waiver where an appeal presents a substantial question as to whether a petition to terminate parental rights states a cause of action. In re J.P.S., 198 Ill. App. 3d 633, 634, 556 N.E.2d 268, 269-70 (1990).

The parties argue the application and interpretation of the 12- month improvement period. However, the legislature has recently amended section 1(D)(m) of the Adoption Act to provide that a parent of a child adjudicated neglected is given only nine months to correct the conditions that were the basis for removal of the child before his parental rights can be terminated. Pub. Act 90-27, §45, eff. January 1, 1998 (1997 Ill. Laws 1488, 1489); Pub. Act 90-28, §10-25, eff. January 1, 1998 (1997 Ill. Laws 1575, 1576). This amendment took effect after the children were adjudicated neglected, but before the 12-month period had run and before the petition to declare respondents unfit was filed.

When a statute is amended while an appeal is pending, we are to apply the law by its terms at the time of the appeal, unless doing so would interfere with a vested right. The supreme court has rejected more conservative approaches that emphasize the distinction between procedural and substantive rights, or that apply a law prospectively only absent a clear expression that the statute is to be applied retroactively. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 288-89, 664 N.E.2d 36, 39 (1996).

The first version of section 1(D)(m) was added to the Adoption Act in 1973. Pub. Act 78-854, §1, eff. October 1, 1973 (1973 Ill. Laws 2616, 2617). This amendment provided a parent was unfit if he failed to make reasonable efforts to correct the conditions that were the basis for the removal of the child from his parents or to make reasonable progress toward return of the child to his parents within 24 months after an adjudication of neglect. 1973 Ill. Rev. Stat., ch. 4, par. 9.1-1(D)(l). In In re Ladewig, 34 Ill. App. 3d 393, 398, 340 N.E.2d 150, 153-54 (1975), the first district rejected a claim that this amendment was unconstitutional as ex post facto legislation, because the section was not criminal in nature and because the section did not affect any vested property right of the parent. The Ladewig opinion presumed, as a starting point for its analysis, that the section was to be applied retroactively to parents of children who had been adjudicated neglected at the time the amendment went into effect.

We hold Public Acts 90-27 and 90-28 apply to this case. As Ladewig indicates, a parent's obligation to improve once his child is adjudicated neglected does not amount to a vested right to improve in that period. Section 1(D) of the Adoption Act lists the statutory grounds that will support a finding of unfitness, not a list of parental rights. In re B.R., 282 Ill. App. 3d 665, 670, 669 N.E.2d 347, 351 (1996). Therefore, under the retroactivity analysis of First of America Trust, the acts apply retroactively and shorten the period for improvement as to those children already adjudicated neglected. This holding is consistent with Ladewig. The recent amendment, reducing the period for parental improvement to nine months, applies in this case.

Respondents also argue the evidence here did not support the trial court's decision that they were unfit. A finding of parental unfitness must be supported by clear and convincing evidence. The findings of the trial court must be given great deference since it has the opportunity to view and evaluate the testimony of the witnesses, and the trial court's decision should not be reversed on appeal unless it is contrary to the manifest weight of the evidence. In re L.L.S., 218 Ill. App. 3d 444, 458, 577 N.E.2d 1375, 1385 (1991), quoting In re Allen, 172 Ill. App. 3d 950, 956, 527 N.E.2d 647, 651 (1988).

Section 1(D)(m) provides for a finding of unfitness if the parent either fails to make reasonable efforts or fails to make reasonable progress during the nine months following the adjudication ...


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