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In re Andrea F.

December 18, 2003

IN RE ANDREA F., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS ET AL., APPELLANTS, V. T.F., APPELLEE).


The opinion of the court was delivered by: Justice Rarick

UNPUBLISHED

Docket No. 93595-Agenda 6-November 2002.

The State and the Department of Children and Family Services (DCFS) appeal from a judgment of the appellate court reversing the circuit court's termination of T.F.'s parental rights. The circuit court of Winnebago County adjudicated T.F. an unfit parent, terminated his parental rights to his daughter, Andrea, and appointed DCFS guardian of Andrea with the power to consent to adoption. The appellate court reversed, finding that the circuit court failed to comply with section 1-5(3) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-5(3) (West 1996)) because it did not admonish T.F. that if he should fail to cooperate with the DCFS, comply with the terms of the service plans, and correct the conditions that required to Andrea to be in its care, he risked termination of his parental rights. The appellate court remanded the cause to the circuit court for a new dispositional hearing pursuant to section 2-22 of the Act. 327 Ill. App. 3d 1072. This court granted leave to appeal. 177 Ill. 2d R. 315. For the following reasons, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

On November 6, 1995, the State filed separate petitions of abuse and neglect with respect to Andrea and S.H., T.F.'s daughter and stepdaughter, respectively. In the first petition, the State alleged in count I that T.F. had sexually abused Andrea, and alleged in count II that T.F. had neglected Andrea, in that he had placed her at risk of harm by sexually abusing S.H. In the second petition, the State alleged in count I that T.F. had sexually abused S.H., and alleged in count II that T.F. had neglected S.H., in that he had placed her at risk of harm by sexually abusing Andrea.

At his first appearance on December 1, 1995, the circuit court admonished T.F. that if either allegation were found to be true, or if the court found that the parents were unable to adequately care for, protect, train, or discipline the children, the children could be declared wards of the court, removed from the custody of one or both parents, and placed under the guardianship of DCFS. The trial court also admonished T.F as to his rights under sections 1-5(1) and 1-5(2) of the Act. T.F. was not specifically advised that his parental rights could be terminated if he should fail to cooperate with DCFS, comply with the terms of the service plans, or correct the conditions that caused Andrea to be in DCFS's care.

The adjudication hearing began on May 2, 1996, and continued through July 2, 1996, at which time the trial court found that the allegations of each petition had been proved by a preponderance of the evidence. Following a dispositional hearing on July 30, 1996, the trial court declared Andrea and S.H. to be wards of the court. C.J., Andrea's mother, was given custody and guardianship of Andrea, and both parents were ordered to cooperate with DCFS and participate in any counseling DCFS recommended. Again, T.F. was not specifically told that his parental rights could be terminated if he should fail to cooperate with DCFS. T.F. appealed.

The appellate court found that while there was sufficient evidence to support the finding that T.F. had sexually abused S.H., there was insufficient evidence to support the finding that T.F. had sexually abused Andrea. Thus, in Andrea's case, the appellate court affirmed the judgment on count II (neglect based on an injurious environment resulting from sexual abuse of S.H.), but reversed the judgment on count I (sexual abuse of Andrea). In S.H.'s case, the appellate court reversed the judgment on count II (neglect based on an injurious environment resulting from sexual abuse of Andrea) but affirmed the judgment on count I (sexual abuse of S.H.). In re A.F., No. 2-96-1050 (1997) (unpublished order under Supreme Court Rule 23).

T.F. subsequently filed a motion to modify the order of disposition. Following a hearing on May 11, 1998, *fn1 the trial court entered a modified order of adjudication finding that Andrea was neglected, in conformity with the decision of the appellate court. The order of disposition was not modified. In July 1998, DCFS was given custody and guardianship of Andrea.

On August 11, 2000, the State filed a petition to terminate the parental rights of T.F. and C.J. with respect to Andrea and to appoint DCFS as guardian of Andrea with the power to consent to adoption. The petition alleged that T.F. and C.J. were unfit parents in that: one, they had failed to maintain a reasonable degree of interest, concern or responsibility as to Andrea's welfare; two, they had substantially neglected Andrea in a continuous or repeated manner; and three, they had failed to make reasonable efforts to correct the conditions that were the basis of the removal or to make reasonable progress toward the return of Andrea to them within nine months after an adjudication of neglect or abuse.

Immediately prior to the hearing on the petition, C.J. surrendered her parental rights to Andrea. Following the hearing, the trial court found that the State had demonstrated by clear and convincing evidence that T.F. had failed to maintain a reasonable degree of interest, concern or responsibility for Andrea, and had failed to make reasonable efforts to correct the conditions that led to Andrea's removal and failed to make reasonable efforts toward her return. The trial court found the evidence insufficient to prove that T.F. had substantially neglected Andrea in a repeated or continuous manner. Following a best interests hearing on September 6, 2001, the trial court terminated T.F.'s parental rights and authorized the DCFS to consent to her adoption. T.F. appealed.

The appellate court reversed, holding that the circuit court's failure to admonish T.F. that his failure to cooperate with DCFS, comply with the service plans, or correct the conditions that caused Andrea to be in DCFS's care could result in the termination of his parental rights violated section 1-5(3) of the Act and deprived T.F. of a fair determination of his parental rights. The appellate court acknowledged that under the version of section 1-5(3) in effect at the time of the initial adjudication of neglect and abuse, and at the time of the order of disposition, there was no specific requirement that courts admonish parents regarding the termination of their parental rights. The court concluded, however, that the rights set forth in section 1-5(3) would be "meaningless if the parents [were] unaware of them." 327 Ill. App. 3d at 1076. Noting that parents have a fundamental liberty interest in the care, custody, and control of their children, the appellate court concluded that "the legislature intended that the trial courts inform the parents of all of their rights to the proceedings, including what they must do to retain their parental rights to their children" (327 Ill. App. 3d at 1077), and that while "the primary concern expressed by the Act is the best interest of the child *** the due process right of the parent outweighs our desire for conclusiveness" (327 Ill. App. 3d at 1079).

T.F. also argued that the adjudication of unfitness was contrary to the manifest weight of the evidence and that the trial court violated his fifth amendment right not to incriminate himself because the findings of unfitness were improperly based on his refusal to admit that he had sexually abused S.H. The appellate court declined to address these arguments, other than to note that on remand DCFS could not compel therapy treatment that would require T.F. to incriminate himself and that the trial court could not base its decision to terminate parental rights on T.F.'s refusal to admit to a crime. 327 Ill. App. 3d at 1080.

Prior to addressing the merits of the appellant's argument, we must consider whether this appeal should be dismissed as moot. At oral argument, counsel for the State disclosed that several days earlier, T.F. had executed a surrender of his parental rights.

The existence of an actual controversy is an essential requisite to appellate jurisdiction, and courts of review will generally not decide abstract, hypothetical, or moot questions. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523 (2001). An appeal is considered moot where it presents no actual controversy or where the issues have ceased to exist. Richardson v. Rock Island County Officers Electoral Board, 179 Ill. 2d 252, 256 (1997), quoting First National Bank of Waukegan v. Kusper, 98 Ill. 2d 226, 233 (1983), quoting People v. Redlich, 402 Ill. 270, 278-79 (1949). The test for mootness is whether the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party. In re A Minor, 127 Ill. 2d 247, 255 (1989). A reviewing court can take judicial notice of events which, while not appearing in the record, disclose that an actual controversy no longer exists, rendering the issue before the court moot. Dixon v. Chicago & North Western Transportation Co., 151 Ill. 2d 108, 116-17 (1992). Where the issue or issues before the court have become moot, the appeal will generally be dismissed.

Notwithstanding these general rules, a reviewing court may nevertheless review an otherwise moot issue pursuant to the public interest exception to the mootness doctrine. Richardson, 179 Ill. 2d at 256. The criteria for application of the public interest exception are: (1) the public nature of the question; (2) the desirability of an authoritative determination for the purpose of guiding public officers; and (3) the likelihood that the question will recur. In re A Minor, 127 Ill. 2d at 257.

The issue in this case clearly falls within the public interest exception. The question of whether circuit courts were required under former section 1-5(3) of the Act to admonish parents that they risked termination of their parental rights if they failed to cooperate with DCFS is one of public importance. Further, the circumstances are likely to recur because, as the State points out, the appellate court's decision threatens to disturb a great number of dispositions under the Act where the initial court appearance, adjudicatory hearing, or dispositional hearing occurred prior to January 1, 1998. For this reason, authoritative guidance from this court is required.

This determination does not conflict with our pervious holdings in In re Adoption of Walgreen, 186 Ill. 2d 362 (1999), In re India B., 202 Ill. 2d 522 (2002), and In re J.B., 204 Ill. 2d 383 (2003).

In Walgreen, Charles and Kathleen Walgreen filed a petition to adopt two of their grandchildren, arguing that the children's biological mother, Loren, was unfit. DCFS was granted leave to intervene. The trial court denied the Walgreens' petition based on its finding that several provisions of the Adoption Act were unconstitutional. Subsequent to the Walgreens' direct appeal to this court, Loren consented to the adoption. Loren and the Walgreens agreed to dismissal of the appeal on mootness grounds, but DCFS argued that this court should address the issues raised in the case in order to provide guidance for future cases. We declined to do so, stating that a court should not resolve questions merely for the sake of setting precedent to govern potential cases. With respect to the public interest exception, we concluded that the exception did not apply. We acknowledged that the question of whether the challenged statutory provisions were constitutional was one of public importance, but found no need for authoritative determination for the future guidance of public officers because various panels of the appellate court had considered similar constitutional challenges to the provision in question and had consistently found them to be constitutional. Walgreen, 186 Ill. 2d at 364-66.

In the present case, by contrast, it was the appellate court, rather than a circuit court, which held in a written opinion that the pre-January 1, 1998, version of section 1-5(3) required trial courts to admonish parents that they had to cooperate with DCFS and comply with the service plans or risk termination of their parental rights. This is an incorrect statement of the law which, if allowed to stand, will, as the State has argued, disturb a great number of dispositions under ...


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