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In Re Joshua S., A Minor v. Nunu S

July 20, 2012

IN RE JOSHUA S., A MINOR
THE PEOPLE OF THE STATE OF ILLINOIS,
PETITIONER-APPELLEE,
v.
NUNU S.,
RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Justice Schosto

Appeal from the Circuit Court of Du Page County. No. 09-JA-44 Honorable C. Stanley Austin and Robert J. Anderson, Judges, Presiding.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice McLaren concurred in the judgment and opinion.

OPINION

¶ 1 The respondent, Nunu S., appeals from an order terminating her parental rights to her minor son, Joshua S., and appointing a guardian with the power to consent to the minor's adoption. On appeal, the respondent argues that the prosecution of the petition to terminate her parental rights was in violation of a constitutionally protected plea agreement. Additionally, the respondent argues that the trial court erred in denying her motion for substitution of judge for cause and in finding that she was unfit. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The record reveals the following facts. The respondent gave birth to the minor outside in the very early morning hours of June 12, 2009. After the minor's birth, the respondent placed him on the ground, under a tree with very low hanging branches. The respondent then returned to her apartment. Later that morning, a man who lived nearby discovered the minor under the tree and called 911. Paramedics attended to the minor, and the Wheaton police department began an investigation. The minor was hospitalized and taken into temporary protective custody by the Department of Children and Family Services (DCFS), and the State filed an abuse and neglect petition that same day.

¶ 4 On June 13, 2009, a criminal prosecution was initiated against the respondent, case number 09-CF-1439, charging her with, in part, one count of obstructing justice. On March 30, 2010, the trial court, Judge C. Stanley Austin, adjudicated the minor abused and neglected. On May 4, 2010, at the dispositional hearing on the abuse and neglect petition, the trial court adjudged the minor a ward of the court, placed him in the guardianship and custody of DCFS, and set the permanency goal as "return home within 12 months."

¶ 5 On October 15, 2010, in the criminal case, the respondent entered a negotiated plea of guilty to one count of obstructing justice, in exchange for a sentence of three years' imprisonment, with one year of mandatory supervised release (MSR), and the dismissal of all remaining charges. Additionally, the State's Attorney informed the trial court, Judge Blanche Hill Fawell, as follows:

"Part of this agreement will include that from the date of the crime up until today's date everything that the People have already known or do know about this case will not seek to terminate on that basis. We will not seek to terminate on the basis of her pleading guilty and going to the Department of Corrections.

As we apprised the Court in our 402 conference, up to today's date she has been compliant with the juvenile proceedings; but that is not to say that if in the future she becomes noncompliant with the juvenile proceedings the People in their discretion may seek to terminate her parental rights."

Judge Fawell accepted the plea agreement.

¶ 6 At a March 1, 2011, permanency review hearing in the juvenile case, the trial court, Judge Austin, changed the permanency goal to "substitute care pending court determination on termination of parental rights." The trial court noted that the respondent had not made substantial progress toward the return home of the minor. The trial court further noted that the goal change was in the minor's best interest, as he had been in foster care since birth and would be almost three years of age before the respondent had any chance to be released from prison.

¶ 7 On May 10, 2011, the minor's guardian ad litem (GAL), Kathleen Anderson, filed a petition for termination of parental rights and power to consent to adoption. The petition contained seven counts of unfitness with respect to the respondent. Specifically, the petition alleged that, by leaving the minor outside after his birth without protection, the respondent abandoned the minor (750 ILCS 50/1(D)(a) (West 2008)); engaged in substantial neglect of the minor (750 ILCS 50/1(D)(d) (West 2008)); engaged in extreme cruelty to the minor (750 ILCS 50/1(D)(e) (West 2008)); failed to protect the minor from conditions within his environment injurious to his welfare (750 ILCS 50/1(D)(g) (West 2008)); and failed to demonstrate a reasonable degree of interest, concern, or responsibility as to the welfare of the minor during the first 30 days after his birth (750 ILCS 50/1(D)(l) (West 2008)). Additionally, the petition alleged that the respondent failed to make reasonable efforts to correct the conditions that were the basis for the removal or reasonable efforts toward the return of the minor within any nine-month period following his adjudication of neglect (750 ILCS 50/1(D)(m) (West 2008). Finally, the petition alleged that the respondent had engaged in a repeated and continuous failure to provide the minor with adequate food, shelter, and clothing (750 ILCS 50/1(D)(o) (West 2008)) in that, by abandoning the minor, she caused herself to become incarcerated and unavailable to him.

¶ 8 On May 31, 2011, the respondent filed a motion under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) to dismiss the petition to terminate her parental rights. In her motion, the respondent argued that the bases for the petition to terminate her parental rights were the same bases for the criminal case against her. The respondent noted that in the criminal case she had entered a plea agreement wherein the State agreed that it would not seek to terminate her parental rights for any actions or inactions or events occurring prior to October 15, 2010. In other words, the State agreed it would not seek to terminate her parental rights based on the circumstances of the minor's birth. The respondent argued that she was entitled to the benefit of her bargain and that the petition to terminate her parental rights was barred by the plea agreement in her criminal case.

¶ 9 On July 5, 2011, the trial court granted the petition of the minor's foster parents, Kathleen H. and Thomas H., to intervene in this matter. That same day, following a hearing, the trial court denied the respondent's motion to dismiss the petition to terminate her parental rights. The trial judge indicated that the plea agreement, as he read it, barred only the State from bringing a petition to terminate parental rights. The trial court noted that, under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2008)), any interested adult may file a petition to terminate parental rights. The trial court further noted that the GAL was not a party to the plea agreement and that it would be improper to bar her from filing the petition. Accordingly, the trial court denied the motion to dismiss and, citing In re D.S., 198 Ill. 2d 309 (2002), directed the State to prosecute the GAL's petition.

ΒΆ 10 Thereafter, in the criminal case, the respondent filed a petition for a rule to show cause against the Du Page County State's Attorney's office, requesting that it be held in contempt for the failure to honor the plea agreement. On August 10, 2011, a hearing was held on that petition. The State admitted that the plea agreement was improper, argued that the only proper remedy was to vacate the plea, and stated that it stood ready to do so if a motion to vacate were filed. The respondent stated that she "may not be seeking" to vacate the sentence but, rather, wanted to seek the benefit of what she agreed to in the plea agreement. At the close of arguments, the trial court, Judge Fawell, entered an ...


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