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In re J.B.

February 26, 2002

IN THE INTEREST OF J.B. AND T.B., MINORS-RESPONDENTS-APPELLEES
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
W.B., RESPONDENT-APPELLANT)



The opinion of the court was delivered by: Presiding Justice Burke

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Lynne Kawamoto, Judge Presiding.

Respondent W.B. appeals from an order of the circuit court granting the State summary judgment on its petition to declare that she is an unfit parent under section 1(D)(q) of the Illinois Adoption Act (Act) as amended in 1998. 750 ILCS 50/1(D)(q)(West 1998). On appeal, respondent contends that the 1998 amendment of section 1(D)(q) of the Act could not be applied retroactively to her case and the amendment is unconstitutional in violation of the due process and equal protection clauses of the United States and Illinois Constitutions. For the reasons set forth below, we affirm.

In 1992, respondent pled guilty to the aggravated battery of one of her children. The indictment against respondent alleged that she struck her son S.J. with an extension cord. Respondent was sentenced to 70 days' imprisonment, which she had already served while incarcerated, and probation. Respondent's son, J.B., was born on March 4, 1993. The Department of Children and Family Services (DCFS) subsequently took custody of him.

On September 4, 1994, an "adjudication hearing" was held with regard to J.B. during which a stipulation was read into the record that respondent had been experiencing psychiatric problems and had failed at times to "follow through" with "any and all" recommendations she received through counseling and DCFS. Ivett Riley, a caseworker at the Bensonville Home Society, also testified at the hearing. She stated that she had been assigned to respondent's case since July 1992 and that respondent had been having supervised visits with J.B., who was currently in a traditional, "non-relative" foster home. Respondent was participating in the services provided and was starting individual psychotherapy. Riley stated that respondent had also completed a parenting class. According to Riley, respondent did not currently need other services. The trial court informed respondent that she would have one year in which to work for the possible return of J.B. to her custody.

On February 1, 1995, a "disposition hearing" was held on J.B.'s case. Kevin Connolly, a DCFS case manager assigned to J.B.'s case, testified that respondent was having regular visits with J.B. once a week. According to Connolly, respondent had been ordered to take psychiatric medicine for her mental health problem, but she was not taking the medication. Although he was aware that respondent was currently pregnant, he did not know if the pregnancy was the reason respondent was not taking her medication. He also reported that respondent was attending group therapy and parenting classes. Connolly stated that it was also recently recommended that respondent receive individual therapy.

Following Connolly's testimony, the State recommended that respondent be found unfit due to her mental health concerns and the fact that she had not been taking her medication. The State also offered evidence of respondent's 1992 conviction for aggravated battery of a child. The trial court found that it was in the "best interests" of J.B. that he be made a ward of the court and that respondent was "unable and unfit" based on her criminal conviction, her mental health, and her failure to take her medication for "whatever reason."

Connolly then offered additional testimony that the current goal for J.B. was "return home" and that there was no reason to believe the "minors" would be abused or neglected in the home. Respondent's counsel then asked the trial court to reconsider its finding of unfitness based on Connolly's and DCFS's goal of returning J.B. to his home. The trial court stated that it would reconsider its finding, but again determined that respondent was unfit.

On March 6, 1995, respondent's son, T.B., was born and DCFS took custody of him on March 7. On August 14, 1995, an adjudication hearing was held on T.B.'s case. Kevin Connolly from DCFS again testified, stating that the case was brought with respect to T.B. because of a "risk of harm" to him based on respondent's failure to comply with prior recommended services and her mental health history. He reported that respondent was currently required to participate in counseling and take medication for schizophrenia, but that respondent had told him that she had not been taking her medication between September 1994 and March 1995. Connolly also stated that respondent had a history of abuse against her oldest child, S.J., on whom she had left permanent marks with an electrical cord. She also had prior psychiatric hospitalizations. According to Connolly, despite respondent's guilty plea to aggravated battery in 1992, she continued to insist that she did not abuse her son. He further stated that respondent also told him that she had been taken off of her medication during her pregnancy, but he also was told that she was "weaned" off of the drugs. Connolly did not have medical records to support either of these statements. He further stated that T.B. was healthy and did not have drugs in his system when he was born. He also stated that respondent was in the hospital from May 3, 1994 to May 9, 1994, with symptoms of suicidal tendencies, and she was diagnosed there with major depression and psychosis.

Based on this testimony and supporting records, the trial court found that there was a "substantial risk" of abuse to T.B.

On February 26, 1996, a dispositional hearing was held on T.B.'s case. Darryl Powell, a caseworker from Reaching the Mark Family Services, testified that respondent had been having supervised visits with T.B. and exhibited appropriate behavior. Jacqueline Chester, a caseworker at Bensonville Home Society, testified that respondent had been given random urine "drops" for the last three months. Respondent's first two drops were negative, and Chester did not have the results from the third drop. According to Chester, on February 16, 1996, respondent received a psychological examination with a subsequent recommendation for her to participate in psychotherapy and receive behavior modification techniques for possible family therapy with her children. Respondent was seeing a psychiatrist and receiving medication for depression. She was cooperating with services, but she did not attend individual psychotherapy. After a recent psychotherapy examination, respondent was diagnosed with an early onset of dysthymic disorder and personality disorder. According to her information, Chester believed that respondent was not taking medication for schizophrenia at that time. Chester stated that respondent's symptoms were being well controlled with the medication. Chester also stated that according to a letter from Dr. Rebecca Lewis Falluf, respondent had been seeing Falluf for more than a year for individual psychotherapy. Falluf recommended in the letter that respondent participate in family therapy, if and when, her children returned home. There was no recommendation in the letter for continued individual psychotherapy.

Following the hearing, the trial court found respondent "unable and unwilling" to care for T.B., declared him a ward of the court and appointed a guardian.

On December 21, 1998, the State filed supplemental petitions to terminate respondent's parental rights to both J.B. and T.B. based, in part, on her prior aggravated battery conviction and amended section 1(D)(q) of the Act. On July 15, 1999, the State filed a motion for summary judgment on its supplemental petitions, arguing that section 1(D)(q) of the Act, as amended in 1998, stated as a matter of law that respondent was unfit under the Act because of her 1992 conviction for aggravated battery of her oldest child, S.J. Respondent filed a response to the motion, arguing that the 1998 amendment to the Act could not be applied retroactively to her case because the amendment would affect her "vested right" in raising her children. According to respondent, because a vested right would be affected, the amendment could only be applied prospectively.

On August 8, 1999, a hearing was held on the State's motion for summary judgment. The State based its entire argument on section 1(D)(q), as amended, arguing that as a matter of law the Act deemed respondent unfit because of her 1992 conviction and that, because raising one's own child was not a "vested right," there was no improper application of the amended statute to the case. Respondent argued that her 1992 conviction should not be considered because both J.B. and T.B. were born after the conviction and her vested right in raising them would be affected through application of the amendment. The trial court granted the State's motion, finding that a parent's right or interest in raising a child did not constitute an absolute vested property right and that respondent was unfit as a matter of law. The fathers of both J.B. and T.B. were also found unfit based upon clear and convincing evidence of their abandonment of the children.

The parties then conducted a "best interests" hearing with respect to both J.B. and T.B. Adrea Brown, a case supervisor at Lifelink, testified that she had worked as a supervisor on J.B.'s case for over two years. J.B. had been in a foster home since July 1993. Respondent had not visited J.B. for one and one-half years, and Brown believed that it was in J.B.'s best interests that respondent's parental rights be terminated. Eva Holland-Switchett, a caseworker from Reaching the Mark Family Services, testified that she was working on T.B.'s case. Respondent's last visit with T.B. was on July 6, 1999. She also stated that respondent had shown inconsistencies in her desire to visit T.B. Switchett also believed that based on the length of time that T.B. had been with his foster parents and his need for stability, respondent's parental rights to T.B. should also be terminated.

Respondent, who was 36 years old, testified that she loved her children and still wished to care for them. She bought them Christmas and birthday gifts, but T.B.'s foster parents would reject the gifts. She blamed her inability to visit J.B. on his caseworker whom she claimed often cancelled visits. She admitted that she might have cancelled one visit herself. Respondent also stated that she had been participating in services for five or six years with the hope that she would regain custody of her children. The services had helped her to control her anger and frustration. She stated that she would like to continue her visits and that, although she believed that she was currently a fit parent, she would continue to work to become a better parent. She also stated that she had not been convicted of a crime since either J.B. or T.B. had been born.

Following the testimony, the trial court found that it was in the best interests of the children to terminate respondent's parental rights to both children as requested by the State in its supplemental petition. This appeal followed.

I. RETROACTIVE APPLICATION

Respondent first contends that the trial court erred in applying the 1998 amendment to the Act "retroactively" to terminate her parental rights. She argues that the former version of section 1(D)(q) of the Act should have been applied and that her criminal conviction for aggravated battery of a child should not have been a basis for the court's determination that she was "unfit" because that conviction occurred prior to the births of J.B. and T.B. Respondent claims that the 1998 amendment affected her "fundamental liberty interest" in having and raising her own children, "chang[ing] substantive law," and that the amendment therefore should not have been applied retroactively. She requests that this matter be remanded for a new termination hearing.

The State contends that the trial court's application of the 1998 amendment to the Act was proper because respondent failed to show that she had an "absolute vested property right in beating her children." Because respondent did not have such a vested property right, the State argues that the "subsequent legislative enactment [of amended section 1(D)(q)] is valid within the ambits of the ex post facto laws of the United States and Illinois Constitutions." The State also notes that the supplemental petitions for "Appointment of a Guardian with Right to Consent to the Adoption" of J.B. and T.B., thereby terminating respondent's parental rights, were filed after the effective date of the 1998 amendment of the Act. Although the State admits that respondent has a fundamental interest in controlling the upbringing of her children, it claims that the application of the ...


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