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People v. Kenya C.

June 25, 2001

IN RE K.C., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
KENYA C., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. No. 96 JA 866 The Honorable Carol P. McCarthy, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Not Released For Publication

IN RE K.C., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
KENYA C., RESPONDENT-APPELLANT).

Appeal from the Circuit Court of Cook County. No. 96 JA 866 The Honorable Carol P. McCarthy, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Article XI-A of the Probate Act of 1975 (755 ILCS 5/11a-1 et seq. (West 1998)) (Probate Act) empowers the courts of this state to appoint plenary guardians of the person for adults who lack the ability to care for themselves and manage their own lives. Kenya C. was adjudicated disabled under the above article. On March 25, 1993, the probate court appointed a plenary guardian over Kenya's person. In 1996, Kenya gave birth to a child, K.C. The State filed a petition for wardship and temporary custody of K.C., which was granted. The State later filed a petition for the termination of Kenya's parental rights and the appointment of a guardian with the power to consent to K.C.'s adoption, which was also granted. At each dispositional hearing described above, the juvenile court judge was advised that the plenary guardian of Kenya was neither named in the petitions nor served with notice of motion. The juvenile court judge chose to proceed with the hearings resulting in K.C. becoming a ward of the court and Kenya subsequently having her parental rights terminated.

 The issue: whether the plenary guardian of a person adjudicated disabled under the Probate Act is a necessary party under the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 1998)) (Juvenile Court Act) when the disabled person's parental rights are at stake. This court's answer is the only answer consistent with constitutional guarantees, Illinois law, the purposes of plenary guardianship and the dictates of common sense. The plenary guardian of a disabled parent whose parental rights are the subject of proceedings under the Juvenile Court Act is a necessary party under the Act and must be named as a party respondent and served notice of all such proceedings.

The judgments of the juvenile court judge are reversed.

1. Background

The record reflects that respondent Kenya C. was adjudicated disabled in the probate division of the circuit court of Cook County under section 11a-3 of the Probate Act (755 ILCS 5/11a-3 (West 1998)). The letter of office issued by the probate court on March 25, 1993, states: "THE OFFICE OF THE STATE GUARDIAN has been appointed plenary guardian of the person of KENYA [C.], a disabled person, and is authorized to have under the direction of the court the custody of the ward and to do all acts required by law." (Emphasis added.)

On February 3, 1996, Kenya gave birth to a son, K.C. K.C. tested positive at birth for the presence of both serum cocaine metabolites and syphilis antibodies. On February 16, 1996, the State filed a petition for adjudication of wardship and a motion for temporary custody with respect to K.C., alleging both neglect (predicated on both injurious environment and drug exposure) and abuse (predicated on substantial risk of physical injury). 705 ILCS 405/2-3(1)(b), (1)(c), (2)(ii) (West 1998). The State's petition further alleged that K.C. was dependent, stating that the "mother is diagnosed as paranoid schizophrenic and refuses to take medication; [the] mother is unable to care for [the] child due to hospitalizations and [the] father is unknown." 705 ILCS 405/2-4 (West 1998). Notice of the disposition hearing was served on Kenya by substitute service: the unknown father was served by publication, as allowed under section 2-15 of the Juvenile Court Act (705 ILCS 405/2-15 (West 1998)). Kenya's plenary guardian of the person was not served. After a disposition hearing, the trial court adjudged K.C. (who was represented in that hearing by appointed bar attorney Martin J. Wilson as guardian ad litem) a ward of the court and granted temporary custody of K.C. to D. Jean Ortega-Piron, the Department of Children and Family Services (DCFS) guardianship administrator. 705 ILCS 405/2-27 (West 1998). *fn1

On November 5, 1997, the State filed a petition for the termination of Kenya's parental rights to K.C. and the appointment of a guardian with the power to consent to K.C.'s adoption. 705 ILCS 405/2-29 (West 1998). Notice of the hearing on the petition was served personally on Kenya, Ortega-Piron, and K.C. (in care of Ortega-Piron). The unknown father was served by publication. Kenya's plenary guardian of the person was not served. In her answer to the State's petition, Kenya disputed that termination of her parental rights would be in K.C.'s best interests.

A hearing was scheduled on the State's petition for March 31, 1998, but was subsequently continued. On March 31, 1998, the court entered an order appointing Mr. Patrick Schlee as guardian ad litem for Kenya. *fn2 After nine more continuances of the matter, an order was finally entered setting the case for hearing on January 28, 1999, on the petition for termination of parental rights.

On January 25, 1999, Kenya's attorney, assistant public defender Nancy Joslyn, filed on Kenya's behalf a motion to dismiss the termination proceedings. The motion stated that Kenya was disabled, had been under adult guardianship since 1993 and that both the fact of Kenya's wardship and the identity of Kenya's adult guardian, Ms. Patricia Young, had been available to the State. The motion argued that because Kenya was a necessary party to the termination proceedings, and because Kenya's guardian "stands in, in effect, by operation of law" for her ward, the guardian was therefore a necessary party as well. The motion also noted that nowhere in the Juvenile Court Act is the plenary adult guardian of an otherwise necessary party to termination proceedings exempted from service. The motion concluded that failure to serve the plenary guardian with proper notice of motion should result in the dismissal of the State's petition.

The record on appeal contains no written response from the State to Kenya's motion to dismiss. The trial court addressed the merits of the motion on January 28, 1999, when the parties appeared for the scheduled termination hearing. In discussing the matter of Kenya's adult guardian, the trial court engaged in the following dialog with Mr. Schlee, whom the court had previously appointed as guardian ad litem for Kenya:

"THE COURT: The situation is this: It's clear from the pleadings and from the causes in front of me concerning [K.C.] *** that the mother in fact had a guardian appointed for her and that guardian preceded your appointment, counsel. And actually Ms. Joslyn, who is the public defender appointed for the mother, has applied in a pleading before this court that the office of the State ...


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