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People v. Fleming

November 22, 2000

IN RE: D.F., T.K., AND E.K., MINORS,
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
CHRISTOPHER FLEMING, RESPONDENT-APPELLANT.



Appeal from Circuit Court of McLean County No. 97JA90 Honorable James E. Souk, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

In December 1999, the State filed a petition to terminate the parental rights of respondent, Christopher Fleming, regarding his minor child, D.F. (born February 13, 1997). (The State also filed a motion to terminate the parental rights of respondent's wife, Nancy Fleming, as to D.F. and two of her children from a prior marriage, T.K. and E.K.) Following a May 2000 hearing on the State's petition, the trial court found respondent unfit. The court later determined that it would be in D.F.'s best interest to terminate respondent's parental rights.

Respondent appeals, arguing that (1) the trial court's finding of parental unfitness was against the manifest weight of the evidence, and (2) the court's decision to terminate his parental rights was not in D.F.'s best interest. We vacate and remand with directions.

I. BACKGROUND

In December 1997, the State filed a petition for the adjudication of wardship of D.F., T.K., and E.K. In paragraph 5(A) of its petition, the State alleged that the minors were neglected, pursuant to section 2-3(1)(a) of the Juvenile Court Act of 1987, in that they were not receiving the proper or necessary support or remedial care necessary for their well-being (705 ILCS 405/2-3(1)(a) (West 1996)). Specifically, the State alleged the following:

"[T]he family residence was found by the Illinois Department of Children and Family Services [(DCFS)] [i]nvestigator to be filthy. The floors were covered with cat feces, cat litter, and clutter to such a degree that the floors were impassible. The bedroom doors were unable to be opened because of the clutter stacked against the doors and wall, and old food was found along the walls in the kitchen area."

In paragraph 5(B), the State alleged that D.F. was living in an environment injurious to her welfare in that she had been diagnosed with "Non-organic Failure to Thrive Syndrome." 705 ILCS 405/2-3(1)(b) (West 1996).

In April 1998, respondent admitted and stipulated to the allegations in paragraph 5(A) of the State's petition for adjudication of wardship. The State dismissed the allegation contained in paragraph 5(B), and the trial court adjudicated D.F., T.K., and E.K. neglected.

The dispositional hearing on the trial court's adjudication of neglect took place on May 27, 1998, and August 12, 1998. After the May 1998 hearing, the court entered an order naming DCFS temporary custodian of all three of the minors. However, D.F. was not removed from respondent's home until after the hearing concluded in August 1998. At the close of that hearing, the court entered a dispositional order that adjudicated D.F. a ward of the court and appointed DCFS D.F.'s guardian with the power to place her. 705 ILCS 405/2-27(1) (West 1998).

In December 1999, the State filed a petition to terminate respondent's parental rights pursuant to section 1(D)(m) of the Adoption Act (Act) (750 ILCS 50/1(D)(m) (West 1998)). In its May 2000 amended petition, the State alleged that respondent was unfit because (1) he failed to make reasonable efforts to correct the conditions that were the basis for the removal of D.F. (750 ILCS 50/1(D)(m)(i) (West Supp. 1999)); (2) he failed to make reasonable progress toward the return of D.F. since the adjudication of neglect (750 ILCS 50/1(D)(m)(ii) (West Supp. 1999)); and (3) he failed to make reasonable progress toward D.F.'s return during any nine-month period after the end of the initial nine-month period following the adjudication of neglect (750 ILCS 50/1(D)(m)(iii) (West Supp. 1999)).

Following a May 2000 fitness hearing, the trial court found that the State had proved respondent unfit based on the first and third grounds alleged. The court conducted a dispositional hearing later that day and found that it was in D.F.'s best interest to terminate respondent's parental rights. This appeal followed.

II. ANALYSIS

A court can sever a natural parent's rights to his or her child only through proceedings that strictly comply with the Act. In re C.M., 305 Ill. App. 3d 154, 163, 711 N.E.2d 809, 815 (1999). Because the trial court here considered evidence of conduct that occurred outside of the statutorily prescribed time periods for each of the alleged grounds of unfitness, we vacate its order and remand for reconsideration of the evidence.

On January 1, 2000, an amended version of section 1(D)(m) of the Act went into effect. See Pub. Act 91-373, ยง5, eff. January 1, 2000 (1999 Ill. Laws 4971, 4973-74). Section 1(D)(m) of ...


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