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In re D.W.

September 30, 2003

IN THE MATTER OF D.W., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
L.M., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. Honorable Richard A. Stevens, Judge Presiding.

The opinion of the court was delivered by: Justice Burke

UNPUBLISHED

Respondent L.M. appeals from an order of the circuit court terminating her parental rights with respect to her minor son, D.W., pursuant to section 2-29(2) of the Juvenile Court Act (705 ILCS 405/ 2-29(2) (West 1998)) and section 1(D)(q) of the Illinois Adoption Act, as amended in 1998 (750 ILCS 50/1(D)(q) (West 1998)). On appeal, respondent argues that: (1) section 1(D)(q) of the Illinois Adoption Act violates the due process and equal protection clauses of the United States and Illinois Constitutions; and (2) the trial court abused its discretion in finding that it was in D.W.'s best interests to terminate respondent's parental rights. For the reasons set forth below, we affirm.

In 1990, respondent was convicted of the attempted murder of her infant son, D.E. The indictment alleged that respondent poisoned D.E. with Pine Sol by feeding it to him in his bottle. Respondent was sentenced to six years' imprisonment. At that time, respondent had three children, M.E., Q.E., and D.E. The children were placed in their father's custody when respondent went to prison.

Following her early release from prison, on March 7, 1994, respondent gave birth to D.W. In 1995, the State filed a petition for adjudication of wardship of D.W. based on respondent's prior conviction and her history of reports with the Department of Children and Family Services (DCFS) from 1987 to 1990, including reports of neglect, inadequate supervision, and the alleged poisoning of another one of her children. Following a temporary custody hearing, the State removed D.W. from respondent's home, pending an adjudicatory hearing. The adjudicatory hearing began in October 1995, but was continued until February 1996. At the adjudicatory hearing in 1996, the juvenile court found that D.W. was at substantial risk of physical injury and permanently removed D.W. from respondent's custody. On appeal, this court reversed the juvenile court's decision after finding that the juvenile court violated the time limitation for an adjudicatory hearing provided in section 2-14(b) of the Juvenile Court Act (705 ILCS 405/ 2-14(b) (West 1994)). In the Interest of D.W., No. 1-96-1996 (1998) (unpublished order under Supreme Court Rule 23).

The State then filed another petition for adjudication of wardship of D.W. on April 3, 1998. The State alleged in the petition that D.W. was abused and faced substantial risk of physical injury under section 2-3(2)(ii) of the Juvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 1996)). The petition included respondent's prior conviction and her previous contacts with DCFS. On August 28, the juvenile court found that D.W. was abused or neglected under section 2-3(2)(ii) based on respondent's: (1) criminal conviction for the attempted murder of her child, D.E.; (2) five prior DCFS reports of abuse and neglect; and (3) failure to undergo recommended mental health treatment. At that time, D.W. was placed with his maternal grandmother.

On September 16, 1999, the State filed a supplemental petition for appointment of a guardian with the right to consent to D.W.'s adoption. The State alleged in the petition, inter alia, that respondent: (1) failed to maintain a reasonable degree of interest, concern or responsibility as to D.W.; (2) failed to make reasonable efforts to correct the conditions which were the basis for D.W.'s removal and failed to make reasonable progress toward his return; and (3) had been criminally convicted of the attempted murder of a child. On October 15, respondent signed a specific consent to adoption for her mother to adopt D.W. However, in May 2000, D.W. was removed from respondent's mother's custody because DCFS discovered that respondent's mother allowed unsupervised contact between D.W. and respondent. D.W. was thereafter placed in the custody of a foster mother.

Subsequently, respondent successfully sought to vacate her specific consent to adoption. As a result, on July 25, 2000, the State's September 16, 1999, petition for appointment of a guardian with the right to consent to D.W.'s adoption was reinstated. At first, the State sought to terminate respondent's parental rights based upon the three grounds outlined in its initial petition. However, prior to the fitness hearing, the State withdrew two of the three grounds and proceeded only under section 1(D)(q) of the Illinois Adoption Act (750 ILCS 50/1(D)(q) (West 1998)) based on respondent's criminal conviction for the attempted murder of a child. Following both a fitness and a best interests hearing, detailed below, the juvenile court found respondent unfit pursuant to section 1(D)(q) and that it was in D.W.'s best interests to terminate respondent's parental rights. Accordingly, the trial court entered an order on May 17, 2002, terminating respondent's parental rights.

Fitness Hearing

The record reveals the following regarding the fitness hearing held by the juvenile court on May 17, 2002. As stated above, the State attempted to prove that respondent was an unfit parent only under section 1(D)(q) of the Illinois Adoption Act, as amended (750 ILCS 50/1(D)(q) (West 1998). Under that section, a parent is presumed unfit if the parent "has been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child." 750 ILCS 50/1(D)(q).

The State first called respondent to testify as an adverse witness. Respondent testified that in 1990, she was convicted of attempting to kill her son, D.E. The State then had a certified copy of respondent's 1990 conviction admitted into evidence, which stated that respondent was guilty of attempted first degree murder and respondent's 1990 indictment which alleged that respondent was guilty of "intentionally and knowingly" attempting to kill D.E. "by poisoning him by feeding him Pine Sol, in violation of chapter 38, 8-4/38-9-1 of Illinois Revised Statutes, 1985 as amended." Additionally, the State had a disposition order previously entered by Judge Kawamoto, which named respondent as the mother of D.E., admitted into evidence. The State presented no other evidence at the fitness hearing.

Respondent's counsel then called respondent as a witness and attempted to introduce evidence of respondent's rehabilitation efforts since her conviction. The State objected on relevancy grounds, maintaining that under section 1(D)(q), there is no defense of rehabilitation. The State argued that under section 1(D)(q), if there is competent evidence of a respondent's prior conviction for the attempted murder of a child, there is an irrebuttable presumption of unfitness. The trial court initially agreed with the State and sustained the State's objection.

Respondent then argued to the court that its application of section 1(D)(q), i.e., its refusal to allow rehabilitation evidence at the fitness hearing, violated the due process and equal protection clauses of the United States and Illinois Constitutions. The State and the public guardian responded that the trial court's application of section 1(D)(q) was not unconstitutional. In support of their argument, the State and the public guardian cited In re J.B., 328 Ill. App. 3d 175, 765 N.E.2d 1093 (2002), which specifically held that barring rehabilitation evidence from a fitness hearing pursuant to section 1(D)(q) does not violate a parent's equal protection or due process rights. *fn1

The trial court then stated that respondent's case was conceivably factually distinct from In re J.B. and allowed the rehabilitation evidence at the fitness hearing. Specifically, the trial court stated:

"I'm going to hear the testimony, regard[ing] rehabilitation. I'm going to hear Miss [L.M.'s] testimony. It is just a matter of am I going to hear it at the unfitness hearing or the best interest hearing.

If I were to wait and hear it only at the best interest hearing, it is possible that the Appellate Court might see this case differently than they saw JB and say that is an equal protection problem. Therefore, reverse the finding. If the child were adopted, they would have to undo the adoption. This could all take a couple years, unless it would be an expedited appeal.

On the other hand, I could overrule the objection by the State and Guardian, allow natural Mother to present her evidence of rehabilitation at the unfitness hearing and then make a determination as to whether she's unfit under the statute.

The Court believes that, in fact, this would not overly [sic] prejudicial to the State or Guardian, because you must have anticipated she's going to be presenting evidence of her rehabilitation at either the unfitness or the best interest hearing in any event.

The Court, assuming the statute is constitutional, noting depravity is not alleged, has not been alleged in this case, that the only allegation of unfitness that has been acted upon or prosecuted or is being prosecuted by the State in [paragraph] Q [of section 1(D)] is going to, despite the fact that the Appellate Court has in February upheld the constitutionality of Paragraph Q, going to allow the natural mother to offer her evidence of rehabilitation in light of the equal protection argument raised by Mr. Hahn [respondent's attorney], which is, I think, a little bit different than the equal protection argument made in JB."

Respondent then testified at the fitness hearing that following her release from prison, she successfully completed her parole. She also testified that she had individual therapy sessions with a psychiatrist for three years after her release from prison and that she went to parenting classes for approximately 10 weeks in 1994 and received a "certificate." Respondent also stated that she was working at a "temp agency" and going to school part-time at "Harold Washington." Despite respondent's rehabilitation evidence, the trial court found respondent unfit pursuant to section 1(D)(q). Specifically, the trial court stated:

"The Court will rule as follows: With regard to unfitness, the Court does find that the State has met their [sic] burden of proof in this case, which is clear and convincing evidence with regard to Paragraph Q. The State has proved that [respondent] was criminal[ly] convicted of the attempted murder of a child. There is a certified copy of conviction admitted into evidence.

And [respondent] has herself testified and admitted she was convicted of that crime with regard to her child, [D.E.].

Now, it's been argued now that she's presented testimony sufficient to rebut the presumption of unfitness, that [respondent's] attorney argued [sic] was raised by the State, proving the attempted murder conviction.

I allowed [respondent] to -- the opportunity to testify to her rehabilitative efforts, because of the arguments made by Counsel regarding constitutionality of the statute.

It appears to me, first of all, under [I]n re JB the statute is constitutional. As applied in this case, I think the Court would have been correct not to allow that testimony. But I'm considering the testimony.

The testimony is that [respondent] successfully completed her parole. While she was on parole she was in individual counseling with a Dr. Kapor. That she also completed parenting classes. She's now working. She would like to have done family counseling. She [did not] do that.

She did do a psychiatric evaluation in 1995 that had a recommendation of counseling.

Under Paragraph I, the depravity paragraph, the rebuttable presumption is that Counsel has argued states or the Legislature states in five, that presumption that a parent is depraved can be overcome only by clear and convincing evidence.

This Court does not believe that there has been clear and convincing evidence presented by [respondent] to overcome the presumption, if this case were brought under Paragraph I, depravity. Had Dr. Kapor come in and testified that he counseled you [respondent] for three years and that based on your progress in counseling he believes that you would not be a risk to your child, that you made sufficient progress, or it wouldn't necessarily be Dr. Kapor that would have to testify. Perhaps somebody else who witnessed what you have done over the years. But all I know is you attempted to kill one of your children.

Subsequent to that, you successfully completed parole. The fact that you did do counseling which ended in '95 and you haven't done any counseling since then, to me, I don't find that you have overcome any presumption of unfitness that's been made in this case. And that's assuming that there is a presumption that would be able to be overcome.

So, the Court is finding, so the record is clear, [that respondent is] unfit pursuant to Paragraph Q of the Adoption Act."

Best Interests Hearing

After finding respondent unfit, the trial court then proceeded with the hearing regarding D.W.'s best interests. The trial court first heard the public guardian's motion to quash respondent's notice to produce D.W. to testify. In support of the motion, the public guardian had three exhibits admitted into evidence. Exhibit one was a letter written by D.W.'s therapist, Dr. Kimberly Mula of Mount Sinai Hospital, to the public guardian regarding D.W.'s ability to testify. In the letter, Mula stated that D.W. was first referred to her hospital in September 2000 for "treatment of sexual and physical abuse and neglect that occurred while [D.W.] was in the care of his mother and maternal grandmother." Mula further stated that "[r]eports from DCFS and [D.W.'s] own statements indicate[d] that his mother, unknown men, and his brothers were involved in the sexual abuse." According to Mula, D.W. told his foster mother that respondent "put two fingers in his rectum," that a "man put his penis in D.W.'s rectum," that he witnessed "his mother perform oral sex on a man and watched her being spanked by a man," and that he watched "pornographic films and television." Mula further stated in the letter that D.W. "attempted to engage in these behaviors with [his foster mother]."

Mula also stated in her letter that D.W. was diagnosed with post-traumatic stress disorder. According to Mula, D.W. exhibited the following symptoms: (1) smearing feces; (2) sexually reactive behaviors; (3) nightmares; and (4) hypervigilance. Mula also stated that D.W. had been working with her and his foster mother to "learn the difference between good touches and bad touches as well as develop personal safety skills." Mula reported that D.W.'s foster mother indicated that he was "doing very well learning about good touches and [was] working on maintaining appropriate boundaries." Mula expressed concerns in the letter about exposing D.W. to his biological mother and his siblings because reports from DCFS indicated that such exposure could "result in an increase in his symptoms of Post Traumatic Stress Disorder." She noted that after a recent visit with his siblings, D.W. had urinated in a closet. Also, after respondent had called D.W. at his foster mother's home, D.W. was crying because respondent had told him "he had to go home." Further, after respondent's telephone call, D.W.'s foster mother reported that D.W. began making statements that he needed a knife in order to "keep him safe."

Exhibit two was a "Therapy Progress Report," also written by Mula. In the report, Mula stated that in August 2000, when D.W. was visiting with two of his brothers in their foster home, D.W. "tried to insert his penis in his brother's rectum." Also, in September 2000, D.W. reported to his foster mother that respondent had "inserted her fingers into his rectum and fondled his penis on a daily basis." Mula further stated in ...


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