2018 IL App (2d) 180001
Ill. App. Ct.2018Background
- In Feb 2014 DCFS took protective custody of two minor boys (J.S., age 7; T.S., age 3) after police found J.S. home alone and drug paraphernalia in the house. Their father, Jonathon S., was incarcerated in a federal prison in Wisconsin throughout the proceedings.
- The State filed neglect petitions (Feb 2014); the court appointed counsel for Jonathon after learning he wished representation and conducted integrated assessment contact by phone.
- Over multiple permanency reviews the caseworkers reported sporadic contact from Jonathon, his refusal to sign consents allowing prison verification of claimed programming, and limited documentary submissions (certificates). The court found Jonathon made insufficient efforts/progress; the goal later changed to substitute care pending termination.
- The State filed a petition to terminate parental rights (July 2017), alleging five grounds of unfitness including depravity (based on multiple felony convictions) and failure to make reasonable efforts/progress and to maintain parental responsibility.
- At the unfitness hearing (Dec 22, 2017) Jonathon was absent because the federal facility would not produce him and telephonic participation could not be arranged despite counsel’s efforts; counsel represented and presented evidence. The court found Jonathon unfit (including statutory presumption of depravity) and, after a best-interest hearing, terminated his parental rights. Jonathon appealed, arguing statutory and constitutional violations for proceeding in his absence.
Issues
| Issue | State's Argument | Jonathon's Argument | Held |
|---|---|---|---|
| Whether the trial court violated the statutory right to be present by conducting unfitness/best-interest hearings without Jonathon | Parents do not have an absolute right to be physically present when incarceration makes attendance impossible; court took reasonable steps to accommodate | Court erred by denying continuance and holding hearings in his absence | No statutory violation; incarceration rendered presence unavailable and court reasonably attempted accommodations |
| Whether due process was violated by proceeding without Jonathon | Due process satisfied: alternative participation offered, counsel represented him, and delaying harms children’s permanency | Denial of continuance and inability to participate personally deprived him of process | No due process violation under Mathews balancing: private interest acknowledged but risk of erroneous deprivation minimal and government’s interest in prompt permanency strong |
| Whether evidence supported finding of depravity (statutory presumption) | State relied on Jonathon’s felony convictions to trigger rebuttable presumption of depravity; also submitted charging instruments | Jonathon argued convictions/presumption were insufficient and he had submitted rehabilitation evidence (certificates) | Presumption arose and was not rebutted; the court also found depravity on the underlying facts independently |
| Whether Jonathon made reasonable efforts/progress and maintained parental responsibility | Caseworkers testified to sparse contact, refusal to sign consents (blocking verification), and no verified program completion | Jonathon pointed to certificates and counsel argued insufficient proof of lack of progress | Court found failure to make reasonable efforts/progress and to maintain responsibility; refusal to consent to record access was significant and self-defeating |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parental rights are a fundamental liberty interest requiring due process)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (balancing test for procedural due process)
- Wolff v. McDonnell, 418 U.S. 539 (U.S. 1974) (incarceration limits certain rights and privileges)
- Goldberg v. Kelly, 397 U.S. 254 (U.S. 1970) (due process requires procedures tailored to capacities and circumstances of persons to be heard)
- In re D.T., 212 Ill. 2d 347 (Ill. 2004) (two-step termination framework: unfitness then best interests)
- In re C.J., 272 Ill. App. 3d 461 (Ill. App. Ct. 1995) (incarcerated parent's participation: courts should consider alternative means and continuances under some circumstances)
- In re M.R., 316 Ill. App. 3d 399 (Ill. App. Ct. 2000) (parental presence is not mandatory when incarceration prevents attendance)
- In re A.M., 402 Ill. App. 3d 720 (Ill. App. Ct. 2010) (proceedings may go forward despite an absent incarcerated parent)