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In re S.B.

June 22, 1999

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



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 94--J--488 Honorable Michael E. Brandt Judge, Presiding

The opinion of the court was delivered by: Justice Koehler

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The respondent, Mildred B., appeals from a Peoria County circuit court order finding her to be an unfit parent and terminating her parental rights to the minor, S.B. On appeal, we must determine whether the circuit court erred and, in so doing, we must answer the following question: May the circuit court terminate the respondent's parental rights without directing that a petition or motion to terminate her parental rights be filed? Because we conclude that the circuit court erred, we reverse the circuit court's decision and vacate the order of termination.

FACTS

The respondent has given birth to eight children. Her six oldest children, including nine-year-old S.B., were adjudicated neglected in March 1995 and placed in the custody of the Department of Children and Family Services (DCFS). After losing custody of her six children, the respondent gave birth to two more children. These two children were also adjudicated neglected and placed under DCFS guardianship.

The State filed a supplemental petition for termination of parental rights with respect to all of the children in April 1997, alleging that respondent was an unfit parent because she: (1) failed to make reasonable progress toward the return of her children within 12 months of the adjudication of neglect; and (2) failed to make reasonable efforts to correct the conditions that led to their removal (750 ILCS 50/1(D)(m) (West 1996)). The circuit court found that the State had proved that the respondent was unfit as to all of the children on both grounds by clear and convincing evidence. Subsequently, at the best interest hearing in November 1997, the court granted the State's supplemental petition terminating the respondent's parental rights to S.B.'s siblings. At the same time, however, the court found that it was not in S.B.'s best interest to terminate the respondent's parental rights and set a permanency review hearing for January 1998.

The record on appeal does not include a report or transcript of the January permanency review hearing. However, an entry in the client service plan, submitted to the circuit court as the guardian's six-month report by Lutheran Social Services of Illinois (LSSI) caseworker discloses the following:

"On 1/15/98, a Permanency Review Hearing was held on [S.B.] in which LSSI requested that a new Best Interest Hearing be held due to [respondent's] failure to maintain contact with LSSI/DCFS. The court ordered a new Best Interest Hearing set for May 14, 1998 at 2:00 p.m."

At the May 1998 hearing, the circuit court heard testimony from the respondent, the respondent's mother, and Heidi Johnston. Following their testimony, the Judge spoke with S.B. in chambers. After hearing arguments of counsel, the court noted that the circumstances had not improved since the respondent was found unfit. The court found, therefore, that it was in S.B.'s best interest to terminate respondent's parental rights to him. A formal order terminating respondent's rights and granting DCFS power to consent to S.B.'s adoption was entered on May 20, 1998. The respondent appeals.

Analysis

The respondent initially contends that the circuit court's order denying termination of the petitioner's parental rights to S.B. was res judicata and that, therefore, the circuit court had no authority to conduct a second best interest hearing in May 1998. She argues that the evidence at both hearings was essentially the same except that at the second hearing the circuit court had results available from S.B.'s psychological evaluation that recommended that S.B. and the respondent maintain regular contact. The respondent argues that, based on the evidence, the court findings at the second hearing should not have differed from those at the first hearing.

The petitioner, the State, argues that the circuit court's November 1997 order was not a final order and that, even if it was, res judicata would only apply as to the facts which existed as of that date. In a neglect proceeding the circuit court may consider cumulative evidence, and that the evidence showed that S.B.'s circumstances had changed substantially between the November 1997 hearing and the May 1998 hearing.

The guardian ad litem (guardian) argues that because the respondent did not object to the hearing either before or during the proceeding, she has waived the argument. Furthermore, the November 1997 best interest hearing was not a final determination. Rather, at that hearing, the court took into consideration S.B.'s circumstances, ordering a psychological evaluation of S.B. and noting that S.B.'s foster parents at that time did not intend to adopt him or provide long-term care for him.

None of the parties have directed this court's attention to case law presenting factually analogous circumstances, and our independent research has failed to disclose any precedent for conducting successive best interest hearings in the absence of a motion or petition specifically seeking termination of parental rights. See 705 ILCS 405/2--13(4) (West Supp. 1997). The issue, therefore, appears to be one of first impression in Illinois. Because the issue of the court's authority presents a question of law, not fact, our ...


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