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People v. E.W.

September 20, 2001

IN RE H.G., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
E.W. ET AL., APPELLEES)
IN RE C.S. ET AL., MINORS
(THE PEOPLE OF THE STATE OF ILLINOIS ET AL., APPELLANTS, V. M.H., APPELLEE)



The opinion of the court was delivered by: Justice McMORROW

UNPUBLISHED

Docket Nos. 89115, 89783, 90053 cons.-Agenda 16-January 2001.

At issue in this appeal is the constitutionality of section 1(D)(m-1) of the Adoption Act (750 ILCS 50/1(D)(m-1) (West 1998)). Section 1(D)(m-1) provides, in part, that a parent may be found unfit if "[p]ursuant to the Juvenile Court Act of 1987, a child has been in foster care for 15 months out of any 22 month period." 750 ILCS 50/1(D)(m-1) (West 1998). The circuit court of Kane County, in cause No. 89115, and the circuit court of Cook County, in cause Nos. 89783 and 90053, held section 1(D)(m-1) unconstitutional. Direct appeal was taken to this court and the cases were consolidated for review. For the reasons that follow, we affirm the judgment of the circuit court in cause No. 89115. In cause Nos. 89783 and 90053, we dismiss the appeals as moot.

BACKGROUND

In 1980, Congress enacted the Adoption Assistance and Child Welfare Act (AACWA). See 42 U.S.C. §§620 through 628, 670 through 679a (1994). AACWA created a program which authorizes the federal government to reimburse the states for certain expenses incurred by the states in the administration of foster care and adoption services. To be eligible for federal funds under AACWA, the states must have in place a plan which provides, in pertinent part, that "reasonable efforts" will be made to prevent the removal of children from their homes into foster care and, after removal, that "reasonable efforts" will be made to reunify the children with their parents. See 42 U.S.C. §671(a)(15) (1994); Suter v. Artist M., 503 U.S. 347, 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992). Through the establishment of the reimbursement program under AACWA, Congress sought to prevent the unnecessary placement of children in foster care. See generally C. Kim, Note, Putting Reason Back Into the Reasonable Efforts Requirement in Child Abuse and Neglect Cases, 1999 U. Ill. L. Rev. 287, 314.

Some time after the passage of AACWA, it became apparent to Congress that the courts and state agencies which were interpreting and implementing the "reasonable efforts" requirement of the Act were placing too great an emphasis on the goals of family preservation and reunification. As a result, a number of children were "languish[ing] in foster care" and "remain[ing] in limbo as to their permanency" while the states attempted to rehabilitate their parents. 1999 U. Ill. L. Rev. at 293. In response to this and other problems, Congress passed the Adoption and Safe Families Act of 1997. Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in various sections of 42 U.S.C.).

Among other issues, the Adoption and Safe Families Act of 1997 (ASFA) addressed the question of how long the states must pursue the goal of family reunification under the "reasonable efforts" standard. ASFA mandates that, to retain eligibility for federal funding, and unless certain exceptions apply, the states "shall file a petition to terminate the parental rights of [a] child's parents" when the child "has been in foster care under the responsibility of the State for 15 of the most recent 22 months." 42 U.S.C. §675(5)(E) (Supp. 1997). The exceptions to this rule requiring the filing of a petition to terminate parental rights are (1) the child is being cared for by a relative, (2) there is no compelling reason for filing such a petition, or (3) the state has not provided services necessary for the safe return of the child to the child's home. 42 U.S.C. §675(5)(E) (Supp. 1997).

In 1998, the General Assembly responded to Congress' enactment of the 15-month time frame for pursuing family reunification set forth in ASFA by adding section 1(D)(m-1) to the Adoption Act and section 2-13(4.5)(i) to the Juvenile Court Act of 1987 (705 ILCS 405/2-13(4.5)(i) (West 1998)). Section 2-13(4.5) of the Juvenile Court Act simply mirrors the language found in ASFA pertaining to the 15-month period for reunification. Section 2-13(4.5)(i) requires the Department of Children and Family Services to request the State to file a petition to terminate parental rights once a child has spent 15 months out of the most recent 22 months in foster care, unless one of the exceptions to filing such a petition listed in the federal legislation exists. See 705 ILCS 405/2-13(4.5)(i) (West 1998).

Section 1(D)(m-1) of the Adoption Act, however, goes a step further. Section 1(D)(m-1) creates a new ground of parental unfitness based upon the presumption that a parent is unfit if his or her child has been in foster care for 15 months out of a 22-month period. Section 1(D)(m-1) states that a parent may be unfit if:

"Pursuant to the Juvenile Court Act of 1987, a child has been in foster care for 15 months out of any 22 month period *** unless the child's parent can prove by a preponderance of the evidence that it is more likely than not that it will be in the best interests of the child to be returned to the parent within 6 months of the date on which a petition for termination of parental rights is filed under the Juvenile Court Act of 1987. The 15 month time limit is tolled during any period for which there is a court finding that the appointed custodian or guardian failed to make reasonable efforts to reunify the child with his or her family ***." 750 ILCS 50/1(D)(m-1) (West 1998).

Cause No. 89115

On March 12, 1996, the State filed a petition in the circuit court of Kane County in which it alleged that H.G. was a neglected minor. See 705 ILCS 405/2-3(1), 2-13 (West 1998). The allegations of neglect were contained in two counts, both of which asserted that H.G. was in an environment injurious to her welfare. See 705 ILCS 405/2-3(1)(b) (West 1998). Count I alleged that H.G.'s mother, E.W., had allowed H.G. to have contact with her father, in violation of an order of protection. Count II alleged that E.W. had "grabbed [H.G.'s] arm on two separate occasions causing a dislocation."

Following a temporary custody hearing (see 705 ILCS 405/2-10 (West 1998)), the circuit court determined that H.G. "did receive injuries" to her arm and, thus, that there was probable cause to believe that H.G. was neglected under count II of the State's petition. The court also found that it was "a matter of immediate and urgent necessity" (705 ILCS 405/2-10(2) (West 1998)) that H.G. be placed in the temporary custody of the Department of Children and Family Services (DCFS).

On October 10, 1996, *fn1 the circuit court entered an order adjudicating H.G. neglected based upon the allegations set forth in count II of the State's petition. See 705 ILCS 405/2-21 (West 1998).

On December 23, 1996, *fn2 the circuit court entered a dispositional order making H.G. a ward of the court. The court placed H.G. in the legal custody of DCFS and appointed the guardianship administrator of DCFS her legal guardian. See 705 ILCS 405/2-27(d) (West 1998). At the same time, the circuit court ordered E.W. to cooperate with DCFS and to follow a number of directives, including, inter alia, obtaining appropriate housing, participating in therapy, and completing parenting classes.

From December 1996 to August 1998, DCFS continued to monitor E.W.'s progress toward reaching the various goals and objectives that had been established for her. By the end of August 1998, DCFS concluded that E.W.'s progress was unsatisfactory and, therefore, that termination of her parental rights was warranted. On October 13, 1998, the State filed a petition for termination of parental rights. See 705 ILCS 405/2-13, 2-29 (West 1998). In that petition, the State alleged that E.W. was unfit under section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 1994)) because she had failed to make reasonable efforts to correct the conditions which were the basis for removal of H.G. or to make reasonable progress toward the return of the child within 12 months after adjudication. The matter was set for trial on March 11 and 12, 1999.

On March 8, 1999, E.W.'s attorney filed a motion for continuance because an indispensable witness was unavailable for trial. The circuit court granted the motion and continued the trial date until May 24 and 25. On May 17, the guardian ad litem for H.G. filed a motion seeking a continuance because he had an oral argument scheduled before the appellate court on May 25. The circuit court granted the motion and continued the case until October 8, 14 and 15. The circuit court chose dates some five months ahead because the court wished to avoid a piecemeal trial and because October 14 and 15 were the first consecutive, open dates on the court's calendar.

On October 4, 1999, the State filed an amended petition to terminate parental rights. In this petition, the State retained its allegation that E.W. was unfit under section 1(D)(m). In addition, for the first time, the State alleged that E.W. was unfit under section 1(D)(m-1) ...


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