Appeal from the Circuit Court of Cook County Honorable Frank M. Siracusa, Judge Presiding.
The opinion of the court was delivered by: Justice McNULTY
To resolve this case we must interpret section 2-6.5 of the Probate Act of 1975 (755 ILCS 5/2-6.5 (West 1998)), which permits the probate court to reduce or eliminate a parent's share in the estate of his or her child in certain circumstances. The Department of Children and Family Services (DCFS) took William Jackson III (William III) from the custody of his parents, William Jackson, Jr. (Jackson), and Cynthia Hill, in 1996. William III died in 1998. His estate's sole asset is a potential cause of action for wrongful death. The office of the Cook County public guardian (Guardian) petitioned for a declaration that Jackson and Hill had no right to receive any portion of the estate. After an evidentiary hearing the trial court granted the judgment the Guardian sought. Jackson and Hill appeal.
We hold that the statute requires the court to address the factors specified in the statute before reducing or eliminating a parent's share in the child's estate. Because the record here does not show that the trial court considered those factors we reverse the judgment and remand the case in part for further proceedings.
Hill gave birth to William III on June 5, 1996. In the last two weeks of July 1996, domestic disputes between Jackson and Hill led to six separate visits by police. None of the calls involved child abuse. Again in the early morning of July 31, 1996, a police officer came to the apartment in response to a call concerning a domestic dispute. The officer found Jackson's arm cut, Hill's face bruised, and William III in a messy bedroom wearing only a diaper. William III appeared healthy and showed no sign of injury. The officer arrested both Hill and Jackson and placed William III in the care of a neighbor. Police released Hill and Jackson later that morning and never charged them with any offense based on that or any other domestic incident. Neither Hill nor Jackson sought or received medical care for his or her injuries.
Vivian Church, from DCFS, came to the apartment that afternoon. Hill told Church that she and Jackson had been drinking before the fight. Both Hill and Jackson still smelled of alcohol when Church arrived. Jackson admitted that he had a chronic problem with alcohol. Church took William III into custody. Although she noted that the apartment was messy, she found that the condition did not warrant removal of the child from the parents' custody. Hospital records show that William III was then a healthy baby of just over 10 pounds, which put him in the twenty-fifth percentile for weight for children his age. He also fell into the twenty-fifth percentile for height and head size.
DCFS petitioned for custody of William III based on the parents' fights and alcohol abuse. Church did not tell Hill and Jackson where DCFS placed William III until the first court hearing on the petition for temporary custody. At the hearing the parties stipulated that William III was not in the room with Hill and Jackson during the fight, but he was in the apartment with them.
The court adjudged William III neglected. The court later entered a disposition order making William III a ward of the court because both parents were "unable for some reason other than financial circumstances alone to care for, protect, train, or discipline the minor." Jackson's sister, Thelma Harmon, volunteered to take care of William III. DCFS placed William III in Harmon's care in December 1996.
Harmon's income decreased and she asked DCFS for financial assistance. DCFS did not help. At a hearing in May 1998 the court found that DCFS had not made reasonable efforts to comply with its own goals for the child because DCFS had not paid Harmon for the foster care.
In August 1998 a DCFS employee took William III to a hospital for developmental testing. The evaluator observed that William III "had dropped [from] 25% for wt, ht, [to] below 5%." At 26 months of age, William III weighed only 23½ pounds, which placed him under the fifth percentile for children his age. On September 2, 1998, DCFS removed William III from Harmon's care and placed him in the foster care of an unrelated family.
When William III arrived at the hospital five weeks later, on October 7, 1998, he weighed only 18½ pounds. Third degree burns covered his legs, and his back had sustained second degree burns. The hospital needed the consent of William III's custodian for necessary surgery. On October 14, 1998, a doctor noted, for the medical record:
"Several attempts were made over the past 5 days to get in contact with The Department of Children and Family Services. The Consent for Surgery was faxed to DCFS on 10-14-98 and [was] not returned. Attempts to contact DCFS have been problematic. As this patient is in need of this surgical procedure, the plan remains to take the child on 10-15-98. Further attempts will be made to contact DCFS."
Despite the surgery and intensive care, William III suffered septic shock. He died on October 15, 1998, with Jackson and Hill at his side. The Guardian, after working to take William III from his family during his brief life, filed a petition for an "adjudication of parental neglect pursuant to §2-6.5" of the Probate Act (755 ILCS 5/2-6.5 (West 1998)). The Guardian also petitioned for the appointment of the Cook County public administrator as administrator of William III's estate.
At the hearing on the petitions, Church testified that she had contact with Jackson and Hill exactly three times: once when she called Hill before coming to the apartment, a second time when she took William III into custody, and finally when she saw them in court at the temporary custody hearing. DCFS had not prepared an initial service plan by the time of the court hearing. Church did not give any indication that she ever consulted Hill or Jackson about steps they would need to take to regain custody of William III.
The case manager for DCFS who prepared client service plans for Jackson and Hill admitted that she spoke to Hill or Jackson "maybe once or twice, if that much" in the course of her work as their case manager. Once, when she ran into Jackson at a court hearing, he asked what he needed to do to regain custody of William III. He also left messages on the case manager's voice mail seeking that information. The case manager admitted that she never gave either Hill or Jackson a copy of any service plans. She rated the parents' progress in services as unsatisfactory because they did not visit William III enough. She admitted that if they visited William III at his aunt's home without arranging the visit through DCFS, she would not know of the visit. She also rated Hill and Jackson unsatisfactory because they failed to comply with the service plans.
An attorney for the Guardian testified that she learned from Harmon that while William III was in Harmon's custody "Jackson often came over" to Harmon's home. She later testified that, according to the case manager's reports, when Harmon acted as William III's foster parent, "[t]he parents never visited. They never came forward and asked for visits." She admitted that case reports showed no incidents of domestic violence between Hill and Jackson following removal of William III from the custody of his parents.
Jackson testified that he tried to earn a living by salvaging old metal materials, like discarded car parts. Per week he earned "[a] couple of hundred dollars, if [he] could get it." He used a 1979 truck for his work. He recounted his efforts to track down William III after DCFS assumed custody. Because Jackson's truck was not then working, he and Hill applied for transportation assistance. DCFS approved the request and on October 12, 1996, about 10 weeks after taking William III from their home, DCFS sent Jackson and Hill one roll of tokens each.
Although Hill had considerable experience with DCFS, as DCFS had custody of several of Hill's children by other men, Jackson had no prior contact with DCFS. Once Jackson realized that DCFS meant to prevent him from regaining custody of William III, he asked his sister to be his son's foster mother. DCFS agreed to place William III in his aunt's care. Thereafter Jackson tried to contact his case manager, but DCFS personnel told him only that she was not available ...