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In Re S.J., A Minor v. Thomas Dyckman

February 1, 2011

IN RE S.J., A MINOR ILLINOIS, PETITIONER-APPELLEE,
v.
THOMAS DYCKMAN, RESPONDENT-APPELLANT



Appeal from the The People of the State of Circuit Court of Cook County. No. 07 JA 1062 Honorable Maxwell Griffin, Jr.,Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

Justices Karnezis and Connors concurred in the judgment and opinion.

OPINION

On April 30, 2010, the parental rights of the minor S.J.'s mother and father, the respondent, Thomas Dyckman (Dyckman), were terminated by the circuit court of Cook County. A guardian with the right to consent to adoption was appointed for S.J. Dyckman appeals from the judgment of the circuit court of Cook County. He argues that he was deprived of equal protection of the law because the trial court erroneously interpreted the intent of the legislature and used less restrictive rules of evidence applicable to abuse and neglect adjudications pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/2-18(4)(a) (West 2008)), rather than the rules applicable to involuntary termination of parental rights proceedings under the Adoption Act (750 ILCS 50/0.01 et seq. (West 2008)). For the following reasons, we affirm the judgment of the circuit court of Cook County.

BACKGROUND

On December 13, 2007, the State filed a petition in the circuit court of Cook County for adjudication of wardship of the minor girl, 13-day-old S.J. S.J.'s mother was found to be unfit (705 ILCS 405/2-3(1)(b), (2)(ii) (West 2006)), based on the following: prior reports of neglect and harm regarding her other six minor children who were or had been under the care of the Illinois Department of Children and Family Services (DCFS); noncompliance with drug treatment services; and a history of psychiatric problems. S.J.'s paternity had not been established at the time of the adjudication of wardship although Dyckman was said to be the putative father. The juvenile court entered an order giving the State temporary custody of S.J. An order of parentage testing was entered on December 20, 2007, and on January 15, 2008, the trial court entered an order finding that Dyckman was S.J.'s father.

On March 25, 2008, after a hearing in the circuit court of Cook County, S.J. was adjudicated to be neglected because of the injurious environment in which she lived. 705 ILCS 405/2-3(1)(b) (West 2008). There was a disposition hearing on April 14, 2008, wherein S.J. was adjudicated a ward of the court and the trial court entered an order of protective supervision pursuant to section 2-25 of the Juvenile Court Act (705 ILCS 405/2-25 (West 2008)). S.J.'s mother was granted custody of S.J., but specific conditions were imposed. On August 13, 2008, the court entered findings that the mother had violated the court's order of protective supervision and was unfit to protect and care for S.J. As a consequence, the trial court granted guardianship and custody of S.J. to DCFS.

On August 19, 2009, the State filed a supplemental petition for the appointment of a guardian with the right to consent to the adoption of S.J. pursuant to the Adoption Act and the Juvenile Court Act. The supplemental petition alleged various grounds on which S.J.'s mother and Dyckman should be found unfit as parents. The allegations specific to Dyckman were: (1) failure to maintain a reasonable degree of interest, concern or responsibility as to S.J.'s welfare (750 ILCS 50/1(D)(b) (West 2008)) and (2) failure to make reasonable efforts to correct conditions which were the bases for the removal of S.J. from the home and/or failure to make reasonable progress toward the return of S.J. within nine months after the adjudication of neglect, from March 27, 2008, to December 27, 2008, and/or within any nine-month period after the finding of neglect, including the period from December 27, 2008, to September 27, 2009 (750 ILCS 50/1(D)(m) (West 2008)).

A trial to determine the fitness of both parents was held on March 9, 2010, and April 28, 2010. The evidence presented against Dyckman during the trial demonstrated his lack of interest and involvement with S.J. Further, the evidence showed that he was not willing to make lifestyle changes to create a safe environment for S.J. and he was noncompliant in attending parenting classes. There was also evidence that he and S.J.'s mother continued to live together, in spite of the mother's substance abuse and expressed homicidal ideations.

On April 30, 2010, the trial court entered a finding of unfitness as to Dyckman on the grounds listed in the State's petition. The trial court also found S.J.'s mother unfit. The trial court ruled that it was in S.J.'s best interests that the parental rights of both parents be terminated. The court then appointed DCFS as S.J.'s guardian, granting the guardian the right to consent to S.J.'s adoption. 705 ILCS 405/2-29(2) (West 2008).

Dyckman filed a timely appeal on May 18, 2010. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008); R. 306A (eff. Sept. 1, 2006). On appeal, Dyckman raises two issues: (1) whether he was deprived of equal protection of the law under the federal and state constitutions because the trial court used less restrictive rules of evidence applicable to abuse and neglect adjudications pursuant to the Juvenile Court Act (705 ILCS 405/2-18 (West 2008)), rather than using the rules of evidence applicable to involuntary termination of parental rights proceedings under the Adoption Act (750 ILCS 50/0.01 et seq. (West 2008)); and (2) whether the legislature intended that the phrase "construed in concert with the Juvenile Court Act," contained in the Adoption Act (750 ILCS 50/2.1 (West 2008)), should be interpreted to mean that a trial court shall apply the rules of evidence found in section 2-18(4)(a) of the Juvenile Court Act (705 ILCS 405/2-18(4)(a) (West 2008)), during the fitness portion of the State's petition brought under the Adoption Act to involuntarily terminate parental rights.

ANALYSIS

The first issue Dyckman raises concerns his equal protection rights under the federal and state constitutions with regard to the rules of evidence that were used by the trial court in the hearing in which his parental rights were terminated. During the hearing on the termination of his parental rights Dyckman did not object to the evidence on constitutional grounds, as he is now attempting to argue. Thus, he cannot raise this issue for the first time on appeal. Vine Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276, 301, 856 N.E.2d 422, 438 (2006). Dyckman cites a case concerning equal protection, In re Yasmine P., 328 Ill. App. 3d 1005, 767 N.E.2d 867 (2002). In that case, the respondent unsuccessfully made the argument that Dyckman is now attempting to make. However, Dyckman does not articulate the argument from In re Yasmine P. upon which he relies, nor does heanalyze its applicability to this case. Further, our review of the record makes it clear that a plain error analysis is inapplicable to this case (In re M.W., 232 Ill. 2d 408, 430-31, 905 ...


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