*1 compensation probation department circuit. Section 6—5 addresses personnel. responsibilities These sections of the Act refer certain particular circuit, are they activities that to each but do not demon- legislature ability that the intended to restrict a circuit court’s strate 8(3) under enter an order section to counties within the court’s own circuit. stated, for the we
Accordingly, judgment reasons affirm the of the Page Du County. circuit court of
Affirmed.
HUTCHINSON, GEIGER, J., EJ., and concur. (The Illinois, F., People Petitioner- re ANDREA Minor State T.F.,
Appellee, Respondent-Appellant). v. No. 2 - 01-1099 Second District February 28, Opinion filed *2 O’MALLEY,J., specially concurring. Bischoff,
Kathryn Rockford, appellant. of (Martin Logli, Attorney, Paul A. State’s of Rockford E Moltz and Paul Benjamin Linton, Attorneys Appellate Office, both of State’s Prosecutor’s counsel), People. for the
Gary Golian, Services, Rockford, Department Family J. of Children & guardian ad litem. opinion
JUSTICE BYRNE delivered the of the court: Respondent, T.E, appeals judgment of the circuit court of Win- nebago County adjudicating him parent, terminating an unfit parental Andrea, daughter, appointing to his minor and (DCFS) Children Department and Family guardian Services of the power minor with the her adoption. to consent to (1) On appeal, respondent argues adjudica- the trial court’s (2) evidence; tion against weight of unfitness was of the the manifest the trial court’s failure to admonish that his failure to co- of his could result the termination operate with DCFS services 5(3) of the Juvenile Court Act of parental rights violated section (Act) (705 5(3) (West (3) 1996)); the trial court ILCS 405/1— fifth amendment not to incriminate himself because violated his findings improperly upon respondent’s based of unfitness were sexually admit that he abused Shannon H. refusal to violated complete that the court’s lack of a admonition We hold Act, parental rights. denying respondent a fair determination of his error, Therefore, deciding other contentions of without and the order terminat- findings unfitness we reverse further rights, and we remand the cause for ing respondent’s parental disposition appeal. to the of the following facts are relevant petition alleging filed a November the State and in father, neglected and that she was respondent, abused placed her at risk of injurious because an environment half-sister, Shannon H. At sexually he abused Andrea’s harm when allegations petition hearing, the trial court read preliminary following respondent: neglect explained for abuse and true, proven to be allegations [sic] “If of those are either one neglected or abused minors. children could be declared to be minors, indicate abused the Court must they’re If found to be of that and then determine the fitness [who]had caused the abuse with, custody of the minor. guardianship or person to have contact *3 true declare the allegation if is found to be The Court can either they age the of 19. until reach children to be wards of the Court requiring that to enter orders Basically,that enables the Court intended to eliminate counseling in services parents participate the minors, any harm that’s oc- to minimize any future risk of the in past. to the minors the curred adequately parents [the] if it are unable
The can finds Court minors, train, the Court can remove for, disciplinethe protect, care par- another custody parent, place with from the of one the minors place with a rela- custody parents, of both or from the ent remove guardianship the of DCFS.” place or under tive present to be the their explained further The court trial, have a and to question at hearings, witnesses during the respondent that his never advised them. The court lawyer represent with cooperate if failed to terminated he rights could be parental plans. the recommended service comply or with DCFS the hearing, 1996, adjudication the 30, at the close of July On The trial neglected. H. abused and Andrea and Shannon court found it would be and found that to reconsider the motion court denied court wards of the them to be interest to declare the minors’ best 19, the court terminated the or- they age until reached the unless Andrea to her guardianship The court the der. ordered Andrea, Respondent visitations with to be mother. was allowed The court further ordered: supervised at the discretion DCFS. mother, actually, cooper- the father and minors “[T]he father and— counseling participate any and all [DCFS] ate with and shall contracting agency, which shall recommended DCFS or its counseling, protective offense include but not be limited to sexual counseling, counseling, alcohol services assessment victimization counseling.” and substance abuse losing parental
The that he risked respondent court did not advise comply if or the recom- cooperate he failed to with DCFS with plans. mended service
Respondent appealed judgment of the trial court. We found finding trial support evidence sufficient to court’s that Shan- neglected non H. had been abused and that Andrea and in an was injurious respondent sexually environment because had abused Shan- However, support non H. we found the evidence insufficient to A.F., finding respondent that abused Andrea. In re No. 2—96—1050 (1997) (unpublished Supreme order under Court Rule
A reflect the disposition modified order to Rule 23 was entered 11, May Respondent modify the trial court on filed a motion to order, plan asking the service to reflect the decision of the Rule 23 28, 1998, court permit respondent to visit with Andrea. On October following modify disposition, on the motion to supervised respondent court ordered that visits between Andrea respondent could occur at the caseworker’s discretion and that must fully cooperate counseling for these visits to occur. The court did cooperate not admonish that his failure to could result in parental rights. the termination of his August 11, 2000,
On petition the State filed a for the termination parental rights power adoption. petition and the to consent to alleged that was unfit because he failed to maintain a rea- Andrea; interest, concern, degree responsibility sonable manner; neglected he and that repeated a continuous and he failed to make reasonable efforts to correct the conditions progress were the basis of removal or to make reasonable toward May adjudication. return home within nine months of the On rights. voluntarily Andrea’s mother surrendered her May 30, 2001, On found to be following hearing, respondent *4 and, thereafter, unfit that it was in the best the court determined rights and respondent’s parental interests of the minor to terminate adoption. Respondent timely to authorize DCFS to consent to Andrea’s appeals.
1076 the appropriate Ordinarily,
We first address
standard of review.
finding
great
a trial court’s
as to
is afforded
deference on
fitness
review.
(2001).
M.H.,
356,
However,
case,
present
In re
196 Ill. 2d
361
in the
question presented,
required
whether the trial court was
to admon
cooperate
ish
that he must
with DCFS services or risk the
parental
a
rights,
question
termination of his
is
of law and will be
M.H.,
reviewed de novo. In re
Section 1—5 of the Act in effect at the time of the initial adjudication neglect original and abuse and at the time of the in in dispositional July provided, pertinent part: order “Rights (1) parties to *** subject proceeding and his [T]he minor who is the *** heard, right present parents present, have the to be to be to ev- witnesses, proceedings, idence material to the to cross-examine *** pertinent and records and also examine court files represented by be counsel. * * * *** (3) appearance At the before the court the minor first *** parents explain
[and] his the court shall the nature of the rights first 2 proceedings parties and inform the of their under the (3) (West (1), paragraphs of this Section.” 705 ILCS 405/1—5 Although specific requirement there is no under the Act that the parents regarding the termination of their courts admonish 5(3) rights in parental rights, it is clear that the set forth section 1— The inter meaningless parents would be if the are unaware of them. care, custody, and control of their children is est of liberty recognized. interests perhaps the oldest of the fundamental Granville, 57, 65, 49, 56, 2d 120 S. Ct. Troxel v. 530 U.S. 147 L. Ed. recognize parent’s liberty a While Illinois courts children, that raising recognize the courts also interest M.H., rights be terminated. at 362-63. must sometimes raising legislature parents’ liberty balanced the interest those in which the best interests their children with situations parental rights must be terminated. children sometimes establish 1996)) (705 (West II et sets out seq. Article of the Act ILCS 405/2—1 alleges that a minor is procedures adjudicating petition 1996)). (705 (West Af abused, neglected, dependent or ILCS 405/2—3 21(1) (West (705 entry of the determination ILCS ter the 405/2 — (705 1996)), ILCS dispositional the court must hold 405/2— 22(2) (West 1996)). purpose a crucial dispositional hearing A serves actions are in the best trial court decide what further allowing the abused, gives minor. It also neglected, dependent interests of a their their they must do to retain parents fair notice of what *5 G.F.H., In re future termination any children the face of (2000). 711, right deep is “of human This App. 315 Ill. 3d 715 Paul, In 101 Ill. 2d lightly be terminated.” re importance and will not (1984). dispositional hearing a to 345, importance the of 351-52 Given believe that the any proceedings, the fairness of future termination we of all of the trial courts inform the legislature intended that they must do to retain rights proceedings, including their to what the rights their to their children. Smith, App. In Ill. 3d find for this conclusion in re 77 support We (1979), Moore, App. and In re Ill. 3d 1117 Both cases
1048 87 (Ill. the Act Rev. were based on the 1977 version of section 1—20 of 20). 1977, that, the 37, par. provided Stat. ch. Section 1—20 at 701— appearance parents, first before the court the minor’s “the court proceedings parties the and inform the of explain shall nature the (Ill. rights” 1977, 37, 20(3)), their par. including Rev. Stat. ch. 701— “right heard, the present, present to be to be to evidence material to witnesses, proceedings, pertinent the to cross-examine to examine records,” court represented by public files and to be the defender (Ill. 20(1)). appointed 1977, 37, par. counsel Rev. Stat. ch. 701— Smith, being placed In the mother consented to the minor temporary custody upcoming adjudica until the date the DCFS tory hearing. The trial the mother that entitled court informed she was attorney to an hearing, acknowledged right at the and the mother adjudicatory hearing, but chose not to exercise it. After the the court found that neglected the minor was and ordered that the minor be made a Following dispositional hearing, ward of the court. the the custody court ordered that the child be removed from the of his parents and placed permanent custody appeal, of DCFS. On by failing mother contended that the court erred to advise her of her juvenile proceedings required and of the nature of the court as 20(3) (Ill. 20(3)). 37, par. section Rev. Stat. ch. 1— 701— to consti Although authority there was little or no as what would section, adequate appellate tute admonitions under this court clearly statutory language imposed mandatory duty found that proceed parties on the trial court to inform the of the nature of the Smith, that, in ings. App. Ill. 3d at 1053. The court held cases 77 adjudication neglect or a child is which the State seeks an where minimum, supervision, parents, very otherwise in need of at the a ward of the State and may must be informed that their child become that, determination, their they may custody lose the upon such that, Smith, App. child. 77 Ill. 3d at 1053. The court believed without admonitions, including procedural rights, these basic the other counsel, Smith, App. Ill. 3d at right meaning. would have little 1053. Because the mother was unaware that her son could be taken her, unprepared challenge the evidence that the inter from she was him in by keeping est of the child would best be served foster care. Smith, Accordingly, at the court held that the App. 77 Ill. failing appear trial court erred in inform the mother at her first deprived custody ance that she could be of her son at the Smith, hearing. 3d at 1053. dispositional and, Moore, neglected the trial found the minor to be fol court dispositional hearing, to the maternal lowing awarded grandmother. mother, neglect, had admitted to contended on who appeal process that she was denied due when the trial court failed to explain adjudicatory proceedings to her the nature of the and 1977, this (Ill. 1—20 of the Act Rev. Stat. ch. failure violated section determine from the record par. The court was unable to allegations whether the mother knew she had the contest *6 adjudication wardship. The court also was unable to neglect of and of the
determine the mother was aware of the nature of whether her child. adjudicatory proceedings or that she could lose of Moore, App. Rejecting argument Ill. 3d at 1121. the State’s that the 87 rights explanation proceed of and an of the lack of an admonishment the court believed ings adjudicatory stage prejudicial, at the was not parent is not necessary “[i]f that the admonishment was because the neglect, an petition’s allegations aware of the to contest the of the neglect might prejudicial, particularly of well be where admission permanent custody and not informed that of parent did not know was hearing as a result of that dispositional the child could be lost at the Moore, very App. 87 Ill. 3d at admission.” 20(3) required a trial court to The 1977 version of section 1— parties of their proceedings nature of the and inform the “explain the 1977, ch. parents’ appearance. the first court Ill. Rev. Stat. rights” at 20(3). held that section The courts Smith and Moore par. 701— 20(3) parents they the that required a trial court to admonish 1— that a similar admo custody of their children. We conclude might lose case adjudicatory hearing this required July nition was at the (705 5(3) 5(3) ILCS the 1996 version of section because 405/1 — 1— 1996)) (West section substantially to the 1977 version of is similar 20(3). 1— parent the is even
Moreover, that the admonition to we believe could his case, parent the lose important present more where contrast, a termination rights. Custody can be modified. parental the of the child from complete final and severance parental rights is a and noncustodial entire bundle of custodial and removes the parent P.F., 1092, 1101 rights. In re (Pub. 28, § 10— Act Act 90—28 through Public Significantly, 90— sections of several 1, 1998), legislature the amended January eff. admonish the trial court to Act, mandating the expressly the the [DCFS], the terms of comply with cooperate with they that “must the child to be require that and correct the conditions plans, service added) (emphasis rights” care, parental termination their or risk 22(6) (West (705 1998); 5(3), see 705 ILCS ILCS 405/2— 405/1 — 1998)). 21(1) (West in effect at requirement that this We note on October modify disposition hearing on the motion to time of the explicitly opportunity had a second 11, 1998, the trial court when parental the termination that he risked respondent inform failed to do so. rights, but in a argument is found only reply
The State’s that brief, in the State asserts appellee’s footnote in the which 30, 1996, July on and properly respondent trial court admonished extremely 28, 1998, respondent it that it was October when warned important cooperate that he with DCFS services. The State asserts respondent never testi respondent was aware of the risk because consequences fied at the that he did not understand the fitness explained not those conse noncooperation attorney or that his had Here, the quences argument disingenuous to him. We find this at best. that he record fails to disclose that was ever admonished cooperate if parental rights could lose his to his child he failed to warning of the comply plans. DCFS and with the service Without hearing, dispositional at least the time of the risks, We cannot assume appreciate importance compliance. could not if he parent that he lose his is aware could court; trial cooperate comply fails to with the directives of the legislature parent the trial to inform the at placed duty on court adjudicatory dispositional stages expressed by the Act is primary
We are mindful that the concern *7 that the child has a ignore the best interests of the child. Nor do we However, right finality. we believe that to a stable environment conclusive- process right parent outweighs the due of the our desire for parents’ that the Moreover, legislature it clear that the believes ness. is welfare. necessary fair is a element of the minor’s to notice trial here, hold that the circumstances we Accordingly, under of the Act necessitates reversal comply court’s failure to with the unfitness, terminating respondent’s finding order the minor to judgment awarding order rights, and the pursu- dispositional The cause is remanded for a new DCFS. (West 1998)). (705 2—22 ILCS ant to section of the Act 405/2 —22 pres- remain with the Custody pending of the minor the outcome is to ent custodian or as the trial court pending shall otherwise determine completion of the decision, respondent’s
Based on our we need not address remain ing contentions other than to note that remand may on the court or der DCFS to plans, including requires structure new service one that respondent engage However, to therapy. effective sexual abuse DCFS may compel not therapy require respondent treatment that would to himself, incriminate may and the court not base its decision parental rights terminate on failure to admit to a crime. (1999). “[Tjhere L.F., See In re 306 Ill. App. very is a fine but important taking steps parent’s distinction between to terminate a specifically right against based on a refusal to waive a self- doing incrimination upon parent’s comply so based failure to L.F., with an order for meaningful therapy.” 3d at 753. foregoing reasons, For the the decision of the circuit court of Win- nebago reversed, County is and the cause is remanded with directions.
Reversed and remanded with directions.
McLAREN, J., concurs. O’MALLEY,specially concurring: JUSTICE I agree necessary that reversal is because the trial court failed to 5(3) respondent, Act, advise the of section of the words 1— [DCFS], obligated “cooperate comply he was with the terms of plans, require and correct the child to service the conditions *** care, parental rights.” be in or risk termination of 705 ILCS 405/ 5(3) (West 1998). I plan designed write to stress that the service progress curing reunite Andrea with her father has made no toward father; instead, it separated the conditions that Andrea from her has fact, harmed her. In before the visitations that traumatized Andrea effects, negative the ser- by terminated the court because of their were plan grossly purposes governing inconsistent with the of the vice was law. 2, 1996, adjudged sexually abused July
On was have buttocks, half-sister, H., fondling her and to Andrea’s Shannon living thereby neglected have Andrea because she was with Shannon respondent’s custody removed from follow- H. at the time. was instituted DCFS ing report plan of abuse. Pursuant to a service weekly supervised visits dur- August was allowed 30, 1996, fol- ing pendency abuse/neglect petition. July of the On adjudication petition, Andrea was declared a ward lowing the mother, K. placed with her Connie guardianship the court and *8 by “supervised Andrea Also, allowed visitation with respondent was visitation between per Supervised their discretion.” DCFS plan. under the service and Andrea indeed continued DCFS, therapist, Chris Andrea’s report In a December 1996 Rockford, Advocate, Inc., of wrote: Magnelia, Family *** traumatic, abuse exhibiting post sexual appears “[I]t is father, biological [re- after visitation with her related behaviors specific trauma reinactment spondent], These behaviors involve abuse, [sic], past distressing surrounding recurrent dreams play, episodes.These chara- difficulting staying asleep, [sic] and enuretic by being exasperated [sic] are no doubt symptoms [sic] teristics exposure perpetrator to the of abuse.” be Magnelia respondent’s recommended that visits with Andrea weekly biweekly that “further decrease reduced from noted to il- frequency may necessary become if Andrea’s visitations continue type development [sic] licit further of Post Traumatic Stress Disorder symptomotology.” February 11, 1997, Magnelia
On to DCFS that Andrea reported longer “displaying nightmares wetting” was no or bed after visitations continuing with but was “to manifest considerable opposition/defiant type Magnelia behaviors at home after her visits.” during previous counseling noted that Andrea told him a session that very hand, “she feels uncomfortable when her father would hold her (on goodbye during and when he her the lips) would kiss visitations prefers with him. Andrea that her father not hold her hand and that only Magnelia he kisses her on the cheek departing when from visits.” concerning recommended that physical Andrea’s wishes contact with her during father be honored the visits. February 24, 1997, DCFS,
In a report Magnelia wrote: “Andrea express continues to considerable distress and confusion father, having [respondent]. in terms of her visitation with [Respondent’s] holding hand and affections terms Andrea’s (which do) kissing goodbye interrupted he told not to are being prelude frighten- [sic] Andrea as to sexual abuse. Andrea T if ingly stated that when her father holds her hand don’t know going anything reported ‘My says he’s to do more.’ Andrea dad he (stated indifference). I him’ loves me ... so love This associa- being tion of told that one loved someone who has also been is abusive, affec- very problematic can be if Andrea confuseslove and abuse, likely tion in turn her more with sexual which would make future, exploited by perpetrator [sic] to be who exclaims affection, exploitative. love and but are whose behaviors [respondent] At this time it is recommendedthat visitations with psychological are not in the best of Andrea’s or emotional interests well-being, and therefore visitations be terminated. Andrea’s feelings vulnerability mistrust and subsequent abuse/ exploitation appears only [sic] to manifest itself with her father. extremely important Andrea needs to feel safe and it is that Andrea exposed not be to an environment which continues to traumatize her.” request
At the on the termination of *9 visitation, respondent argued counsel for that Andrea initiating “large majority” the physical during contact the and visitations respondent that lips during never kissed Andrea on the the visits. Observing that throughout reports “a common thread the regarding visitation is that Andrea manifests some kind of disturbed behavior at conclusion, the initiating whether or not it be from conduct that she’s not,” terminating the court entered an order respondent’s visita- tion with Andrea. motion, respondent’s
On the modified the in court order October permit supervised 1998 to visits “at the discretion of the caseworker therapeutic purposes.” for The court conditioned the on visitation respondent’s completion counseling. According of sex offender to caseworker, Johnson, respondent’s requirement Christine of sex of- counseling having fender was that admit to abused either Andrea or Respondent Shannon H. has never made such an admission completed counseling. and has never sex offender His visits with Andrea have not been reestablished.
At petition on the for the termination of that, rights, Johnson testified while she was the caseworker for re- spondent 2000, June August reported between 1997 and that “angry” she was with and “scared of” Andrea told respondent. (Andrea) Johnson that she was afraid to see and did not Rector, him want to meet at court. Julie who became August caseworker in testified that Andrea stated in March did father scared 2001 “she not want to see her because she was of him.” important purposes
It is to note what are to be served governing purpose [Juvenile “It is well settled that the law. Jo is to serve the interest of the minor.” re Bettie Act] Court best words, R., purpose In its own the Act’s 405 is: guidance, subject minor hereto such care and
“to secure for each home, safety and or her as will serve the preferably own moral, emotional, mental, minor and physical and welfare of the community; preserve strengthen the best interests of removing him or her family possible, the minor’s ties whenever safety only his or when custody his or her from adequately be public cannot protection of or the or welfare safeguarded 1998). 2(1)(West 705 ILCS removal.” without 405/1— concern, only not of humane spirit in a Act is to be “administered The the limits of fears and also for the parties, but for the ILCS court.” 705 before the understanding appear of all who 405/1— 2(2) (West 1998). by the guided Act are to be under the procedures All their child shall parents’ right to precept “[t]he health, contrary to the that it is the court determines prevail not when (West 2(3)(c) ILCS interests of the child.” 705 safety, and best 405/1 — 1998). finding of of a plan imposed the wake purpose of a service that were the basis the conditions neglect
abuse or is “to correct 50/l(D)(m) (West child ILCS parent.” from the the removal of the 1998). correcting toward to make reasonable efforts parent’s A failure plan is a basis for the terms of a service pursuant those conditions (D)(m) (West ILCS parental rights. See 750 the termination 50/1 reunite however, attempts that not all recognizes, The law neglected the has been found to have parent the minor with the who Neglected Child 8.2 of the Abused appropriate. minor are Section (325 (West 1998)) part: provides relevant Reporting Act ILCS 5/8.2 offered, ap- safe and “Family shall be where preservation services in substitute care placement of children propriate, prevent *10 custody the of the children can be cared for at home or when endangering without person responsible for the children’s welfare reunite them with their families safety, the children’s health or goal, or to appropriate is an placed if so when reunification (West adoptive placement.” 325 ILCS maintain an 5/8.2 that, the fact representative are of provisions quoted The above Neglected and places in the Court Act and the Abused all Juvenile reunifying parent of Reporting importance Child Act where the qualification emphasized, the minor is there is also reunification, reunification in the form of service attempts at the minor’s welfare. The expense not occur at the plans, should did not plan of the service attempted part visitation that DCFS as fact, her father. In Andrea and promote healing of the rift between of closeness with led not to an increased sense for Andrea the visits nightmares, bed-wetting, sleeplessness, her father but rather to father; she is fearful of her openly Andrea is emotional disturbance. Andrea’s Magnelia, hand. attempts to hold her suspicious even of profes that her father’s opinion an uncontroverted therapist, offered may cause attempts at abuse accompanied by perceived sions of love case, I this doubt history harm. Andrea severe emotional Given whether appropriate goal; reunification is an I am even more doubtful of the propriety plan of a to allow visitation between Andrea and an individual like upon his confession that he abused either Andrea or Shannon H. worthy Rehabilitation of sex offenders is goal, in light profound but suspicion Andrea’s fear and father apparent and his throughout indifference bettering this case toward himself (e.g., as directed DCFS and the court failing appear court for months at a time and failing complete counseling for drug violence), alcohol and abuse and domestic I would think that such a grounds confession would be decisive disallowing visitation. urge DCFS, I in formulating remand, would plan service on to take full account the harm inflicted the previous plan. service . Juvenile Court Act is not to be construed in favor of at the expense K.B.J., of children. See In re (The B., Illinois, People re JESSIE a Minor of the State of Petitioner-
Appellee, B., Respondent-Appellant). v. Jessie
Third District No. 3 - 00-0413 Opinion February 26, filed