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In re Andrea D.

August 01, 2003

IN RE ANDREA D., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ANDRE D., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 01-JA-41 Honorable Judith M. Brawka, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

PUBLISHED

Respondent, Andre D., appealed the trial court's orders finding him unfit and terminating his parental rights to his daughter, Andrea D. Respondent raised two arguments on appeal. First, he argued that the court's findings of unfitness were erroneous as a matter of law because the State's amended motion for termination of parental rights was not sufficiently specific, where it (1) did not state a cause of action; (2) did not comply with a statutory notice requirement to apprise respondent that he could "permanently" lose his parental rights (705 ILCS 405/2-- 13(4) (West 2000)); and (3) was not verified. Respondent next asserted that the trial court's determination that he was unfit was against the manifest weight of the evidence. We reversed. In re Andrea D., 336 Ill. App. 3d 335 (2003). The State petitioned for leave to appeal to the supreme court. The State's petition was denied, but the supreme court, in an exercise of its supervisory authority, directed this court to vacate our judgment and to reconsider it, "including (1) whether the State's amended petition for termination of parental rights was included in the State's petition for adjudication of abuse or neglect; and (2) if not, whether the State's amended petition for termination of parental rights is governed by section 2--13(4) of the Juvenile Court Act of 1987 (705 ILCS 405/2--13(4) (West 2002))." In re Andrea D., No. 95940 (June 4, 2003). We vacate our prior judgment, and, upon reconsideration of the issues, we affirm.

I. FACTS

Andrea D. was born on July 6, 2001, to Carrie B. and respondent. Jerry Waite, an investigator at the Illinois Department of Children and Family Services (DCFS), testified that his office took a hotline report relating to both parents that suggested a risk of physical harm to Andrea D. On July 11, 2001, the State filed a petition for the adjudication of Andrea D. as a neglected and dependent minor and requested that the minor be made a ward of the court because her parents are bipolar and were not taking their medications and because Carrie B.'s substance abuse placed the child at risk of harm. See 705 ILCS 405/2--13 (West 2000).

A shelter care hearing was held on July 12, 2001. Respondent was not present. Waite testified that he spoke to the parents' landlord, who reported that the parents paid their rent and had not caused problems. The parents' apartment was appropriately furnished and free of alcohol and had adequate food. At the hospital, a nurse informed Waite that the child did not have special needs and was eating on her own. Both Carrie B. and respondent are bipolar. Carrie B. indicated that she was not taking all of her medications, and respondent stated that he was not taking any medications. Mary D., respondent's sister, testified that respondent had rages and would threaten people.

A safety plan was implemented. It provided that Andrea D. would be placed with Mary D. Carrie B. signed the safety plan, agreeing that she would see the child only with supervision. Respondent signed the plan on July 11, 2001. Mary Beth Corrigan, a follow-up worker with DCFS, testified that she spoke to respondent, and he was agitated and angry and blamed Carrie B. for their problems. He also had difficulty focusing on one topic. The court found probable cause as to the State's allegations, and it placed the child in the temporary custody of DCFS and continued her placement with her aunt.

On August 1, 2001, respondent was arrested and charged with felony misconduct and possession of a weapon after he threatened to blow up the Aurora post office. In October 2001, he was sentenced to three years' imprisonment.

At the hearing on the petition for adjudication of neglect on October 2, 2001, respondent stipulated to two counts of neglect: Andrea D. was neglected in that she was under 18 and her environment was injurious to her welfare (see 705 ILCS 405/2--3(b) (West 2000)) in that (1) her parents were diagnosed as bipolar and were not taking their medications; and (2) her mother's substance abuse placed her at risk of harm.

The dispositional hearing took place on October 11, 2001. Respondent was present at the hearing. The trial court found that it was in Andrea D.'s best interest to be made a ward of the court. See 705 ILCS 405/2--22(1) (West 2000). As to respondent, the court found that, although he had indicated that he was willing to care for Andrea D., he was unable to do so due to his incarceration. The court also stated that respondent needed to complete the mental health portion of his client service plan and take parenting classes.

In a client service plan evaluation dated December 14, 2001, respondent was rated unsatisfactory in terms of his progress towards all of his goals, with the exception of taking his medications, for which he was rated satisfactory.

On February 4, 2002, the State filed a motion for termination of parental rights (see 705 ILCS 405/2--29 (West 2000)), alleging that respondent was an unfit person to have a child in that (1) he failed to maintain a reasonable degree of interest, concern, or responsibility as to the minor's welfare (750 ILCS 50/1(D)(b) (West 2000)); (2) he was depraved (750 ILCS 50/1(D)(i) (West 2000)); (3) the child was in the temporary custody of DCFS, respondent was incarcerated and had little contact with the child prior to incarceration, and his incarceration would prevent him from discharging his parental responsibilities for a period in excess of two years after the filing of the motion for termination of parental rights (750 ILCS 50/1(D)(r) (West 2000)); and (4) the child was in the temporary custody of DCFS, respondent was incarcerated at the time the motion for termination was filed, respondent had been repeatedly incarcerated as a result of criminal convictions, and respondent's repeated incarceration had prevented him from discharging his parental responsibilities for the child (750 ILCS 50/1(D)(s) (West 2000)). The motion also contained allegations addressing Carrie B.'s unfitness. In its prayer for relief, the State requested that Andrea D. be continued as a neglected minor and ward of the court; that the parental rights of Carrie B. and respondent be terminated; that the Guardianship Administrator be continued as legal guardian and custodian of the minor and that she be given the power to consent to the minor's adoption; and that the consent of the guardian to the adoption of the minor be binding upon Carrie B. and respondent without any further notice to them or consent by them. On June 7, 2002, the State filed an amended motion for termination of parental rights that added citations to the allegations relating to subsections (D)(r) and (D)(s) of section 1 of the Adoption Act (750 ILCS 50/1(D)(r), (D)(s) (West 2000)).

At the hearing on the State's motion on July 11, 2002, the court admitted respondent's correctional records and certified copies of respondent's convictions. Kerri MacKowiak, a Catholic Charities caseworker, testified that respondent told her that he had punched a man in the face because the man was a street person and, if anyone said something that he did not like, he was going to take it out on the street. Respondent blamed DCFS workers for his problems in paying his rent and for losing a job. When MacKowiak spoke to respondent on July 20, 2001, he did not want visitation with his daughter.

MacKowiak further testified that she conducted a social history of respondent in the Kane County jail. Respondent told her that he often filled out work applications with his cousin's name so that he would not lose his Social Security benefits. He also picked up extra jail time on two occasions for fighting a cell mate and being involved in gangs. MacKowiak set up a client service plan for respondent, but there were no services available for him in the Kane County jail. In January 2002, respondent was on the waiting list for parenting classes at Logan Correctional Facility (Logan). He was eventually able to participate in parenting and GED classes. He wrote to MacKowiak on a regular basis and indicated that he was interested in his daughter's progress. During the first year of Andrea D.'s life, respondent was incarcerated for 11 months. MacKowiak received only one letter from respondent addressed to his daughter.

The trial court took judicial notice of several of respondent's convictions, including theft of a firearm, residential burglary, felony disorderly conduct, unlawful use of a weapon by a felon, criminal damage to property, disorderly conduct, and violation of an order of protection.

Respondent, age 32, testified that he was currently housed at Danville Correctional Center. He had argued with a postmaster, who was brutal and belligerent. When a security guard started to shove respondent out of the post office, respondent stated that someone ought to blow the place up. However, he did not say that he was going to do so. He was angry because someone changed his address. This incident occurred after Andrea D. was born. Respondent further testified that, until age 23, he was involved with gangs. He estimated that he had been incarcerated about 10 times as an adult and that his longest prison stay was 25 months. His expected release date was July 29, 2002.

Respondent further testified that, when he was 18 or 19 years old, he beat up sex offenders in prison because that was the way it was done. He lied about hearing voices in order to stay out of the general prison population, which was loud. He wrote to MacKowiak that everyone was used to him being in prison and that they felt it was part of his life. While he was at Illinois River Correctional Facility, respondent had gotten "into it" with another inmate and the two had to be placed in separate facilities. He was sent to Logan, where he had no problems. Respondent was taking his medications in prison.

On cross-examination, respondent testified that he had daily contact with his daughter prior to his incarceration. He changed diapers and sometimes stayed with his daughter overnight. He sent letters to MacKowiak to inquire about his daughter and wrote to his sister once or twice a month to ask about Andrea D. Respondent's mother, Darlene D., and his sister, Linda D., also kept him apprised of his daughter's progress. Respondent earned a parenting certificate, participated in GED classes, and was on the waiting list for anger management classes. Respondent came to the realization that he could not control everything, and he had to learn to deal with his anger. Some of the crimes he committed could have been caused by his failure to take his medications, which he did not take because he was unable to pay for them. He began to realize that something was wrong with his life if he could not retain custody of his daughter.

Respondent moved for a directed finding. The trial court granted the motion with respect to the allegation that respondent's incarceration will prevent him from discharging his parental responsibilities for a period in excess of two years after the filing of the motion for termination of parental rights (750 ILCS 50/1(D)(r) (West 2000)). The court denied the motion with respect to the State's other allegations.

Darlene D. testified that respondent called about his daughter two or three times and wrote six or seven letters asking about her. Mary D. testified that respondent contacted her many times about Andrea D. during the seven months that Mary was caring for Andrea D. Before his incarceration, he visited his daughter almost daily and bought her formula, a teddy bear, and outfits. Linda D. stated that respondent called her several times to inquire about his daughter. He also wrote letters twice a month and asked for pictures.

Respondent testified that his plans after release were to go to the community counseling center, to get into therapy, and to take his medication. When he takes his medication, he is more in control of his actions, and therapy helps him stay focused.

The trial court found both C.B. and respondent unfit. As to the first count against respondent, the court found that he had not shown a reasonable degree of interest, concern, or responsibility by virtue of his incarceration and as a result of his actions after Andrea D. was placed in foster care. Respondent did not come to court when the child was placed in care, and he did not want visitation prior to his incarceration. Further, he committed a felony after his child was born. The court also found respondent depraved, noting that, for each of the last 14 years, excluding the year 2000, he was incarcerated or involved in criminal actions. He had ample opportunities for rehabilitation, on which he had not followed up. The court noted that further evidence of respondent's depravity was his pattern of lying, including receiving Social Security benefits and then maintaining employment under someone else's name. In addition, he feigned mental illness to receive preferential jail treatment. The court noted ...


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