Appeal from the Circuit Court of Kendall County. No. 96-JA-24 Honorable James M. Wilson, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Respondents, W.H. and T.H., appeal orders adjudicating them unfit parents, terminating their parental rights to their minor son, G.F.H., and appointing the Department of Children and Family Services (DCFS) guardian of the minor with the power to consent to his adoption. Initially, the circuit court adjudicated G.F.H. neglected (see 705 ILCS 405/2--3 (West 1996)) and dependent (see 705 ILCS 405/2--4 (West 1996)) but did not hold a dispositional hearing as required by section 2--21(2) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--21(2) (West 1998)). Later, the State petitioned to terminate respondents' parental rights. The circuit court found respondents unfit and, after a "best interests" hearing, terminated their parental rights.
On appeal, respondents argue that (1) the circuit court's failure to hold a dispositional hearing or declare the minor a ward of the court deprived the court of jurisdiction to adjudicate the State's petition to terminate respondents' parental rights; (2) the failure to hold a dispositional hearing or declare the minor a ward of the court violated respondents' due process rights; (3) respondents were denied proper notice of the best interests hearing; and (4) the findings of parental unfitness are against the manifest weight of the evidence.
We hold that, although the lack of a dispositional hearing did not deprive the court of subject matter jurisdiction over the termination petition, the court's failure to hold a hearing as required by section 2--21(2) of the Act denied respondents a fundamentally fair determination of their parental rights. Therefore, without deciding respondents' other contentions of error, we reverse the findings of parental unfitness and the order terminating respondents' parental rights.
The procedural history of this case requires recounting in some detail. On October 31, 1996, the State filed a petition alleging that G.F.H. was neglected because his environment was injurious to his welfare (705 ILCS 405/2--3(1)(b) (West 1996)); that he was abused in that his "parent" created a substantial risk of injury to him by other than accidental means (705 ILCS 405/2--3(2)(ii) (West 1996)); and that it was in his best interest that he be made a ward of the court. On October 31, 1996, the circuit court entered an agreed shelter care order that set December 19, 1996, for an adjudicatory hearing. Meanwhile, G.F.H. was placed in the care of W.H.'s grandparents.
On December 19, 1996, the circuit court continued the cause until December 26, 1996. On that date, with respondents not present, the court continued the cause to February 20, 1997. On February 20, 1997, the circuit court entered an "Agreed Adjudicatory Order" reciting that T.H. had appeared for the adjudicatory hearing but that W.H. had not appeared; that the State had proved by a preponderance of the evidence that G.F.H. was neglected (705 ILCS 405/2--3 (West 1998)) and dependent (705 ILCS 405/2--4 (West 1998)); and that, in accord with the minor's best interests, he would remain in the custody of DCFS pending the dispositional hearing on the petition. The order scheduled the dispositional hearing for March 27, 1997.
On March 24, 1997, the court entered judgment on a rule to show cause against T.H. The order states in part, "The dispositional hearing scheduled for March 27, 1997, is stricken, and said Dispositional Hearing shall be scheduled by the State, following the discharge of [T.H.] from [treatment]." The order also states, "The cause is otherwise continued to May 28, 1997 *** for Dispositional Hearing." The order sets a permanency review hearing (see 705 ILCS 405/2--28(2) (West 1998)) for May 28, 1997.
On May 28, 1997, the trial court entered a "Permanency Planning Review Order" in which the court found that, during the preceding six months, the permanency goal (the return of the minor to respondents) had not been achieved and that the services DCFS provided were unsuccessful because respondents had not followed the service providers' requests. The court approved the permanency goal and ordered that G.F.H. continue in long-term foster care with his great-grandparents, with DCFS as his legal custodian and guardian. The court remanded the case to DCFS for respondents to comply with the service plan and set the next permanency review hearing for August 27, 1997. Later, the hearing was moved to August 20, 1997.
On August 20, 1997, with neither respondent appearing, the circuit court continued the permanency review hearing to November 12, 1997. On November 12, 1997, with both respondents present, the court continued the cause until March 4, 1998, for status. On March 4, 1998, the court continued the cause until April 29, 1998, for status. After several more continuances, the court set January 6, 1999, for a status hearing.
On December 30, 1998, the State filed its petition to terminate respondents' parental rights. The petition recited that, on February 20, 1997, G.F.H. had been adjudicated neglected; that, on that date, the court made DCFS his guardian; and that, since that date, G.F.H. had remained in the care and custody of DCFS. The petition alleged that respondents were unfit parents because (1) they failed to maintain a reasonable degree of interest, concern or responsibility as to the minor's welfare (750 ILCS 50/1(D)(b) (West 1998)); (2) they failed to make reasonable efforts to correct the conditions that were the basis of the removal of G.F.H. from respondents (750 ILCS 50/1(D)(m) (West 1998)); and (3) they failed to make reasonable progress toward the return of G.F.H. within 12 months after G.F.H. was adjudicated neglected (750 ILCS 50/1(D)(m) (West 1996)). (At the time the State filed its petition, the Adoption Act specified that a parent could be found unfit if he or she had failed to make reasonable progress toward the return of the child within nine months after an adjudication of neglect, abuse or dependency. See 750 ILCS 50/1(D)(m) (West 1998). The statute formerly allowed the parent 12 months. See 750 ILCS 50/1(D)(m) (West 1996); In re E.O., 311 Ill. App. 3d 720, 721 n.1 (2000). Here, the State's petition relied on the earlier version of the statute.)
The trial court heard evidence on the petition. On September 29, 1999, the court entered an order holding that the State had proved respondents were unfit for all the reasons alleged in the petition. After a hearing at which respondents did not appear, the court terminated their parental rights and appointed DCFS as the minor's guardian with the power to consent to his adoption. Respondents filed a timely notice of appeal.
Respondents raise several challenges to the judgment, but we address only those that turn on the circuit court's failure to hold a dispositional hearing under section 2--21(2) of the Act. In this regard, respondents claim that the lack of a dispositional hearing (1) deprived the court of jurisdiction to proceed on the petition to terminate their parental rights; and (2) violated the statute, denied them due process, and tainted the subsequent termination proceedings. We explain why we agree with the second of these contentions.
Article II of the Act (705 ILCS 405/2--1 et seq. (West 1998)) sets out procedures for adjudicating a petition that alleges that a minor is abused, neglected, or dependent. Section 2--21(1) of the Act specifies that, after hearing evidence on the petition, the circuit court shall determine whether the minor is abused, neglected, or dependent, and that the court shall state this determination in writing with an appropriate factual basis. See 705 ILCS 405/2--21(1) (West 1998). Subsection 2--21 of the Act continues:
"(2) If, pursuant to subsection (1) of this Section, the court determines and puts in writing the factual basis supporting the determination that the minor is either abused or neglected or dependent, the court shall then set a time not later than 30 days after the entry of the finding for a dispositional hearing *** to be conducted under Section 2--22 at which hearing the court shall determine whether it is consistent with the health, safety and best interests of the minor and the public that he be made a ward of the court. *** The dispositional hearing may be continued once for a period not to exceed 30 days if the court finds that such continuance is necessary to complete the dispositional report. (3) The time limits of this Section may be waived only by ...