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In re Travarius O.

October 15, 2003

IN RE TRAVARIUS O., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
HERMAN O., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. The Honorable Susan M. Coleman, Judge Presiding.

The opinion of the court was delivered by: Justice South

UNPUBLISHED

Following a hearing, the circuit court found respondent, Herman O., to be an unfit parent and unable to care for his son, Travarius O., based on his depraved behavior and his repeated incarcerations. At a subsequent hearing, the court held it was in the best interest of the child to terminate respondent's parental rights and to appoint a guardian with the right to consent to adoption. Respondent contends on appeal: (1) that the circuit court abused its discretion by failing to appoint respondent an attorney to represent him during the hearings; (2) that the court's finding of unfitness was against the manifest weight of the evidence; and (3) that the court's finding that it was in the minor's best interest to terminate respondent's parental rights was against the manifest weight of the evidence. We affirm.

Travarius was born May 3, 1997, and tested positive for exposure to cocaine and heroin. A finding of neglect was entered July 29, 1997. Respondent and the child's mother, Tracy H., who is not a party to this appeal, were found to be unable, for some reason other than financial circumstances alone, and to be unwilling to care for, protect, train, or discipline Travarius. On the same date, the child was adjudicated a ward of the court and placed under the guardianship of the Department of Children and Family Services (DCFS).

The State filed petitions on August 2, 1999, and on September 6, 2000, for termination of parental rights and appointment of a guardian with the right to consent to adoption. The petitions alleged respondent was an unfit parent because he behaved in a depraved manner; because he was incarcerated as a result of a conviction and the incarceration would prevent him from discharging his parental responsibilities in excess of two years after the filing of the petitions; and because respondent's repeated incarcerations had prevented him from discharging his parental responsibility in violation of subsections 1(D)(i), 1(D)(r), and 1(D)(s) of the Adoption Act. 750 ILCS 50/1(D)(i), (D)(r), (D)(s) (West 2002).

Respondent appeared in court on September 17, 1999, on which date attorney Paul Katz was appointed to represent him in contesting the State's petitions. During an April 2000 discovery hearing, respondent indicated to the circuit court that he no longer wished Katz to represent him. Katz asked leave to withdraw, which the court granted. The trial judge admonished respondent, "This is the one and only time. If you don't like the attorney that you're gonna [sic] speak to today, you could hire your own lawyer to represent you." The judge thereafter appointed attorney Charles Aron to represent respondent.

During a July 2000 status hearing, Aron addressed the court and stated that he could not proceed in representing respondent without violating the Canons of Ethics. The trial judge again warned respondent, "[Y]ou can't keep picking lawyers until somebody decides to go along with what you want to do." The judge explained to respondent that his attorneys could not be made to make statements in open court that the attorneys did not believe were true. Aron asked respondent permission to disclose the contents of their conversations with the judge. Respondent declined. The judge stated that she would not appoint another attorney and that respondent would have to represent himself. The judge granted Aron leave to withdraw. Respondent indicated that he would not participate in discovery or the termination hearing without representation.

At the intended close of discovery in August 2000, the trial judge offered to appoint respondent new counsel but would not appoint any further attorneys if new counsel subsequently moved to withdraw. She stated, "You have fair warning that this is the third and final lawyer that is going to be appointed." Thereafter, the court appointed attorney Larry Necheles to represent respondent.

At a case management conference in March 2001, respondent stated that he did not wish Necheles to represent him. The judge repeated her warning from the prior hearing that she was unwilling to appoint respondent any new counsel were Necheles to withdraw. Respondent again stated that he would not proceed with Necheles as counsel. The court vacated Necheles's appointment and advised respondent that he would have to proceed pro se.

At the trial on the termination petition, respondent indicated to the court that he was unaware of what was taking place because his appointed attorneys had not apprised him of the proceedings. The trial judge stated that Necheles was present in court and offered to reappoint him to assist respondent. Respondent declined and the court proceeded to trial. The court took judicial notice of the July 1997 adjudications as to neglect and guardianship as well as certified copies of respondent's April 1997 burglary conviction, for which he was sentenced to 10 years in prison; respondent's January 1993 burglary conviction, for which he was sentenced to 6 years; and respondent's 1991 conviction of unlawful use of a weapon by a felon, for which he was sentenced to 2 years.

The State called respondent as a witness, but respondent refused to take the stand and to be sworn. He eventually agreed to be sworn in, but refused to answer any questions from the assistant State's Attorney or the public guardian. When asked to state his name for the record, respondent declared that he was invoking his fifth amendment right against self-incrimination and refused to answer. The trial judge advised respondent, several times, that she would treat his refusal to answer any questions as an admission.

By asking questions that respondent refused to answer, the assistant State's Attorney elicited the following facts: that respondent was the natural father of Travarius O.; that respondent was presently incarcerated; that respondent was convicted of burglary in April 1997 and sentenced to 10 years' imprisonment, and that he was still incarcerated on that count; that respondent was taken into custody for that offense on November 16, 1996; that respondent had been incarcerated since before Travarius' birth; that respondent was convicted of burglary in January 1986 and sentenced to five years; that respondent was convicted of aggravated battery in September 1982 and sentenced to five years; that respondent was convicted of robbery in August 1982 and sentenced to five years; that respondent was convicted of burglary in November 1992 and sentenced to six years; that respondent was convicted of burglary in January 1993 and sentenced to six years; that respondent was convicted of unlawful use of a weapon by a felon in May 1991 and sentenced to two years; that respondent was incarcerated on August 2, 1999, the date that the State filed its petition to terminate respondent's parental rights; and that respondent would not be released until November 2001.

The State then called Yolanda Dunmars, a social worker for Chicago Associates for Retarded Citizens (CARC), who was assigned to Travarius O.'s case. Dunmars testified that she had begun service for Travarius and his older sister, Sashiana H. (who has the same mother but a different father), in March 1998 and that she had offered Travarius' natural mother, Tracy H., assistance in obtaining drug treatment services, parenting classes, and counseling. The mother indicated an interest in obtaining services, but Dunmars lost contact with her in October 1998. In March 1999, Dunmars sent the mother a letter informing her that her children's cases were progressing toward termination of her parental rights. Dunmars received no response to the letter.

On cross-examination, Dunmars stated that Travarius' mother had submitted to seven compulsory urine drops and had failed to appear for three others. One of the performed drops tested positive for narcotics, but Dunmars was unaware of the date that the drop took place and whether it was performed before or after the mother ...


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