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In re D.C.

March 18, 2004

IN RE D.C. ET. AL., MINORS
(THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
TONTORYA C., APPELLEE).



The opinion of the court was delivered by: Chief Justice McMORROW

PUBLISHED

Docket No. 95841-Agenda 4-January 2004.

In this appeal we consider whether a court may find a parent unfit pursuant to section 1(D)(m)(iii) of the Adoption Act (750 ILCS 50/1(D)(m)(iii) (West 2000)), with regard to a minor who was born within the statutory nine-month period used to assess the parent's fitness as to other children. In the case at bar, the Peoria County circuit court found that respondent, Tontorya C., failed to make reasonable progress toward the return of her children during the nine-month period between November 1, 2000, and July 31, 2001. Based on that finding, the court ruled Tontorya an unfit parent pursuant to section 1(D)(m)(iii) and terminated her parental rights as to all four of her children, including P.C., who was born on January 20, 2001. In an unpublished order, the appellate court affirmed the finding of unfitness and termination of parental rights as to Tontorya's three older children, but reversed as to P.C. No. 3-02-0408 (unpublished order under Supreme Court Rule 23). The State now argues that where, as here, a parent has been shown to be unfit because the parent failed to make reasonable progress toward the return of her children during a particular nine-month period, the parent is unfit as to all of her children, including one who was born within the nine-month statutory period used to determine parental fitness.

We allowed the State's petition for leave to appeal (177 Ill. 2d R. 315) and now affirm the judgment of the appellate court.

BACKGROUND

On June 7, 1999, 20-year-old Tontorya C. and her three daughters, 3½-year-old D.C. (born December 10, 1995); 22-month-old E.A. (born August 13, 1997); and 10-month-old I.A. (born August 22, 1998), came to the attention of the Department of Children and Family Services (DCFS) as a result of a call made to the child abuse hotline by Peoria police. The police reported that they had responded that day to a call about a domestic dispute at Tontorya's residence. When officers arrived on the scene, they found that Earnest A., Tontorya's paramour and the putative father of E.A. and I.A., had locked Tontorya out of her residence after beating her because she would not get him money to buy more cannabis. Once the police gained entry into the residence, they found the home in the following condition: "bad odor throughout the home, piles of trash and dirty clothes throughout, kitchen counter and sink were filthy and dirty dishes piled up, only two lights worked in the entire house, the toilet had feces floating in it and the toilet and tub upstairs were filthy, filthy mattresses on the floor, a child's potty seat with feces in it, the kitchen table had a plate of cannabis on it that had been there for a week, the refrigerator was filthy and had only a small amount of food and milk in it, the minors and mother were filthy and there was a `porta-potty' that had been inside the apartment for more than a year, filled with urine and feces." Earnest was arrested on charges of domestic battery and possession of a controlled substance, *fn1 Tontorya was arrested on charges of endangering the welfare of her children, and the children were placed with Tontorya's mother, Sharon Brown.

On June 30, 1999, DCFS filed a petition in the Peoria County circuit court alleging that D.C., E.A., and I.A. were neglected minors because their home environment was injurious as a result of domestic violence and filthy living conditions. A preliminary hearing was held on July 2, 1999, at which time the court ordered that the children were to remain with the maternal grandmother under an order of protection which prohibited Tontorya and Earnest from: having any contact with the children unless authorized and supervised by DCFS; living in the same residence with the children; or staying in that residence overnight.

At the adjudicatory hearing on August 6, 1999, Tontorya admitted the allegations of neglect in open court and D.C., E.A., and I.A. were adjudicated neglected minors. *fn2 A dispositional hearing was held on October 15, 1999, at which time D.C., E.A., and I.A. were made wards of the court with DCFS as their guardian. The three children remained with the maternal grandmother until October 2000, when they were moved to a foster home after it was discovered that the children had high levels of lead in their systems due to exposure to lead at the Brown residence. In September 2000, Tontorya finally found stable housing suitable for both her and the children. However, return of the children was not possible. Tontorya, who was then pregnant with a fourth child, had difficulty controlling her children during supervised visits and failed to keep the apartment clean and safe. In addition, despite the fact that Tontorya had obtained an order of protection against Earnest, she had regular contact with him punctuated by several incidents of violence.

On January 20, 2001, Tontorya gave birth to a fourth daughter, P.C. *fn3 DCFS took P.C. into protective custody on January 23, 2001, and placed her in foster care. On January 25, 2001, DCFS filed a neglect petition alleging P.C. to be in substantial risk of physical harm due to the fact that her siblings were already under the guardianship of DCFS as a result of neglect by Tontorya, and that Tontorya had not made sufficient efforts or progress to allow for the return of those children. That same day, the court issued a temporary shelter care order placing P.C. in the temporary custody of DCFS. On February 16, 2001, Tontorya admitted in court the allegations of neglect contained in the State's petition concerning P.C. and the court found P.C. to be a neglected minor. At a May 18, 2001, dispositional hearing, P.C. was made a ward of the court with DCFS as her guardian.

Although Tontorya made some initial efforts to comply with service plan requirements by attending parenting classes and domestic violence counseling, she made no behavioral changes. Tontorya failed to keep herself or her apartment clean. More importantly, despite repeated episodes of abuse, Tontorya did not sever ties to Earnest. In addition, Tontorya lied about her involvement with Earnest to DCFS and the supervising agency, Catholic Social Services (CSS), and her cooperation with these agencies steadily declined. Consequently, on September 18, 2001, DCFS filed a petition to terminate Tontorya's parental rights to her four children, alleging in a single count that Tontorya was an unfit parent as defined by section 1(D)(m)(iii) of the Adoption Act (750 ILCS 50/1(D)(m)(iii) (West 2000)), because she failed to make reasonable progress toward the return of her children during the nine-month period beginning November 1, 2000, and ending July 31, 2001. *fn4

The hearing to determine Tontorya's parental fitness commenced on January 30, 2002, and was completed on March 19, 2002. The court took judicial notice of the following documentary evidence: the neglect petition filed on June 30, 1999, with respect to D.C., E.A., and I.A.; the order of protection dated July 2, 1999; the adjudication order dated August 6, 1999; the dispositional order dated October 15, 1999; permanency orders dated January 28, 2000, September 1, 2000, November 3, 2000, and May 18, 2001; the neglect petition with respect to P.C., dated January 25, 2001; the adjudication order regarding P.C., dated April 27, 2001; and the dispositional order with regard to P.C., dated May 18, 2001. The court also received into evidence the following: a copy of Tontorya's psychological evaluation; a copy of the order of protection against Earnest; a certified copy of Tontorya's counseling records from Catholic Social Services; and a certified copy of Tontorya's records from the Human Services Center. The court then heard testimony concerning Tontorya's conduct during the period of November 1, 2000, to July 31, 2001.

On March 19, 2002, at the close of the hearing, the court issued a finding that Tontorya had been proven unfit by clear and convincing evidence that she failed to make reasonable progress during the November 1, 2000, to July 31, 2001, period. At the best interests hearing held on May 8, 2002, the court concluded that it was in the best interests of D.C., E.A., I.A., and P.C. to terminate Tontorya's parental rights to them.

As noted earlier, the appellate court reviewed the matter and upheld the finding of unfitness and termination of parental rights as to D.C., E.A. and I.A., but reversed with regard to P.C., finding that "the [trial] court could not have determined that respondent failed to make reasonable progress toward the return of P.C. during the nine-month period."

The State filed a petition for leave to appeal, which this court allowed. 177 Ill. 2d R. 315. No cross-appeal has been filed and, thus, no challenge has been made to that part of the appellate court judgment which affirms the finding of Tontorya's ...


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