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People v. M.D.

June 21, 2001


The opinion of the court was delivered by: Justice McMORROW

Docket No. 89061-Agenda 3-January 2001.

On April 23, 1999, the circuit court of Kane County issued an order terminating M.D.'s parental rights to his son, D.D., after finding M.D. to be an unfit parent pursuant to sections 1(D)(m) and 1(D)(s) of the Adoption Act (750 ILCS 50/1(D)(m), (D)(s) (West 1998)). The order was affirmed by the appellate court on appeal. 309 Ill. App. 3d 581. This court granted M.D.'s petition for leave to appeal. 177 Ill. 2d R. 315(a). For the reasons that follow, we now affirm.


On July 18, 1996, Copley Hospital notified the Department of Children and Family Services (DCFS) that on July 17, 1996, Penny Warren (Warren) gave birth to a son, D.D., who had been exposed to cocaine. A DCFS Division of Child Protection (DCP) investigator went to Copley Hospital and spoke with Warren, offering her services and drug treatment. Warren refused the offer of services and informed the investigator that she planned to give D.D. to Elizabeth Washington (Washington), a woman whom she had met two months earlier. After the investigator's visit, Warren had no further contact with DCFS. Warren left Copley Hospital and disappeared. Despite diligent searches, DCFS was unable to locate her.

D.D. was taken into protective custody by DCFS and, on July 23, 1996, DCFS filed a petition for adjudication of wardship on the basis that D.D. was abused and neglected. See 705 ILCS 405/2-13 (West 1996). The petition alleged that D.D. was neglected "in that he was born with cocaine in his urine which is not a result of medical treatment administered to the mother or infant," and abused "in that his mother created a substantial risk of physical injury to [D.D.] when she was pregnant; to wit: the mother was taking cocaine or ingesting cocaine while pregnant." *fn1 The petition listed D.D.'s father as "unknown."

Shortly after the petition was filed, DCFS was contacted by M.D., who identified himself as D.D.'s putative father. M.D. requested a blood test to establish paternity and notified DCFS that, if he was D.D's father, he wanted D.D. placed with Washington, whom he identified as his fiancé. M.D. was unable to take custody of D.D. himself, however, because he was being held in the Kane County jail, awaiting trial on charges of home invasion and armed violence.

On August 12, 1996, M.D. appeared before the court, acknowledged paternity for D.D., and stipulated to the State's neglect petition, admitting that D.D. was a neglected minor because he had been born with cocaine in his system. The court declined, at that time, to remove D.D. from the care and custody of DCFS. The court ordered shelter care to continue pending the completion of a home study on Washington. The court also directed DCFS to determine whether any blood relatives were willing and able to care for D.D.

On September 17, 1996, DCFS filed a court report indicating that it had been in contact with Paulette D., D.D.'s paternal grandmother, and June S., D.D.'s maternal grandmother, and learned that there were no relatives available to care for D.D.

On December 17, 1996, Washington married M.D. at the Kane County jail. Shortly thereafter, on December 23, 1996, M.D. was tried and found guilty of home invasion and armed violence (predicated on aggravated battery causing great bodily harm). He was sentenced to a term of 10 years' imprisonment for the armed violence conviction, with a concurrent term of 6 years' imprisonment for the home invasion conviction.

On January 6, 1997, M.D. and his now-wife, Washington, petitioned the court to set aside the adjudication of neglect and all previous shelter care orders and have D.D. placed in the guardianship and custody of Washington.

On January 10, 1997, DCFS filed with the court its completed home study and investigation of Washington. According to the report, the physical environment of Washington's home was adequate, but Washington was unqualified to become a registered foster care provider under DCFS standards due to her extensive criminal history. *fn2

On January 14, 1997, the court denied M.D.'s petition to set aside the adjudication and shelter care orders. However, M.D. was given leave to file a new motion for change of custody and guardianship. M.D. filed this motion on March 10, 1997. Evidentiary hearings were held on May 29 and June 27, 1997, and the motion was denied.

In July 1997, at an administrative case review, DCFS changed the permanency goal for D.D. to substitute care pending the filing of a termination petition. The case passed legal screening in September 1997 and was referred to the State's Attorney for the filing of a termination petition.

On March 9, 1998, the State filed a petition for the termination of M.D.'s parental rights. Five grounds for finding M.D. unfit were alleged: (a) failure to maintain a reasonable degree of interest, concern, or responsibility; (b) failure to make reasonable efforts to correct the conditions which were the basis for removal and/or failure to make reasonable progress toward the return of D.D. within 12 months of adjudication; (c) desertion; (d) incarceration which prevents the discharge of parental duties for a period in excess of two years, accompanied by little or no previous contact and/or little or no support; and (e) repeated incarceration as a result of criminal convictions, which has prevented the discharge of parental duties. See 750 ILCS 50/1(D)(b), (D)(c), (D)(m), (D)(r), (D)(s) (West 1998).

Hearing on the petition was initially set for July 9, 1998. However, on that date, M.D. filed a motion seeking a substitution of judges. After a number of continuances, the motion was heard and granted on October 7, 1998. After several more continuances, evidentiary hearings on the termination petition were held on March 25 and 26, 1999.

In addition to the background evidence set forth above, the court received testimonial and documentary evidence, which revealed the following.

When D.D. was born on July 17, 1996, M.D. was in jail awaiting trial on charges of armed violence and home invasion. After a trial on December 23, 1996, M.D. was found guilty as charged after it was shown that, on June 22, 1996, he entered the home of Jeffrey Martin without permission and stabbed Martin with a knife. M.D. was sentenced to concurrent terms of 10 years and 6 years, respectively. Darlene Bridge, the record office supervisor at Sheridan Correctional Center (Sheridan), testified that M.D. was incarcerated and serving his sentences at Sheridan. According to her most recent calculations, M.D. was scheduled to be released on June 24, 2001.

DCFS records showed that, due to M.D.'s incarceration, M.D.'s opportunity to interact with D.D. was extremely limited. Between July 1996 and March 1997, M.D.'s only contact with D.D. occurred at the court house, on the few occasions when M.D. was brought from jail to attend court hearings regarding D.D.'s care and custody.

After M.D. was convicted and moved to Sheridan, a visitation schedule was established. Beginning March 11, 1997, a case aide brought D.D. to Sheridan once each month for a scheduled one-hour supervised visitation. Visits at Sheridan took place in a large, cafeteria-like room where other inmates and their guests also were present. Before a visitation began, there often was a long wait while everyone was searched and processed. The visits generally did not last the full hour because D.D. did not react well to the surroundings and typically spent ...

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