In Re DW
In re D.W., a Minor (The People of the State of Illinois, Appellee,
v.
Lisa M., Appellant).
In re Amanda D., a Minor (The People of the State of Illinois, Appellant,
v.
Lisa Z., Appellee).
Supreme Court of Illinois.
*469 Edwin A. Burnette, Public Defender, Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant in No. 97292.
Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda Woloshin, Assistant *470 Attorney General, Chicago, Renee Goldfarb, Nancy Grauer Kisicki, Annette Collins, Assistant State's Attorneys, of counsel), for the People in No. 97292.
Patrick T. Murphy, Charles P. Golbert, Janet L. Barnes, Office of the Cook County Public Guardian, Chicago, for the minor in No. 97292.
Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, John P. Schmidt, Assistant Attorney General, Chicago, of counsel), for the People in 98896.
Samuel S. Melei, of Coonen & Roth, Ltd., Crystal Lake, for appellee in 98896.
Justice KARMEIER delivered the opinion of the court:
At issue in these consolidated appeals is the constitutionality of section 1(D)(q) of the Adoption Act (
The controversy in this case involves what are really two subsections of
"D. `Unfit person' means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption. The grounds of unfitness are any one or more of the following, except that a person shall not be considered an unfit person for the sole reason that the person has relinquished a child in accordance with the Abandoned Newborn Infant Protection Act:
* * *
(i) Depravity. Conviction of any one of the following crimes shall create a presumption that a parent is depraved which can be overcome only by clear and convincing evidence: (1) first degree murder in violation of paragraph 1 or 2 of subsection (a) of Section 9-1 of the Criminal Code of 1961 or conviction of second degree murder in violation of subsection (a) of Section 9-2 of the Criminal Code of 1961 of a parent of the child to be adopted; (2) first degree *471 murder or second degree murder of any child in violation of the Criminal Code of 1961; (3) attempt or conspiracy to commit first degree murder or second degree murder of any child in violation of the Criminal Code of 1961; (4) solicitation to commit murder of any child, solicitation to commit murder of any child for hire, or solicitation to commit second degree murder of any child in violation of the Criminal Code of 1961; or (5) aggravated criminal sexual assault in violation of Section 12-14(b)(1) of the Criminal Code of 1961.
There is a rebuttable presumption that a parent is depraved if the parent has been criminally convicted of at least 3 felonies under the laws of this State or any other state, or under federal law, or the criminal laws of any United States territory; and at least one of these convictions took place within 5 years of the filing of the petition or motion seeking termination of parental rights.
There is a rebuttable presumption that a parent is depraved if that parent has been criminally convicted of either first or second degree murder of any person as defined in the Criminal Code of 1961 within 10 years of the filing date of the petition or motion to terminate parental rights.
* * *
(q) The parent has been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child."750 ILCS 50/1(D)(i) , (D)(q) (West 2002).
The constitutional issues in this case concern the omission of any opportunity for rebuttal in
The details of the proceedings below have been set forth with specificity in the appellate court's opinions. We reiterate only those facts necessary to provide a framework for our disposition. Because of the standing issue raised in cause No. 97292, our recitation of facts in that case is necessarily more comprehensive.
BACKGROUND
Cause No. 97292
In 1990, respondent, Lisa M., was convicted of the attempted murder of her infant son, D.E. Respondent was sentenced to six years' imprisonment. At that time, respondent had three children: M.E., Q.E., and D.E. The children were placed in their father's custody when respondent went to prison.
After her release from prison, respondent gave birth to D.W. on March 7, 1994. Court records indicate that the State filed a petition for adjudication of wardship of D.W. on April 3, 1995, based on respondent's prior conviction and her history of reports with the Department of Children and Family Services (DCFS) from 1987 to 1990. Following a temporary custody hearing, the State removed D.W. from respondent's home, pending an adjudicatory hearing. At the conclusion of the adjudicatory hearing, on February 16, 1996, the circuit court of Cook County found that D.W. was at substantial risk of physical injury and ordered D.W. permanently removed from respondent's custody. However, the judgment of the circuit court was reversed on appeal due to the circuit court's failure to conclude the adjudicatory hearing within the time constraints set forth in section 2-14(b) of the Juvenile Court Act of 1987 (
*472 Thereafter, the State filed another petition for adjudication of wardship of D.W. on April 3, 1998, alleging, under section 2-3(2)(ii) of the Juvenile Court Act (
On September 16, 1999, the State filed a supplemental petition for appointment of a guardian with the right to consent to D.W.'s adoption. The State alleged in the petition, inter alia, that respondent: (1) failed to maintain a reasonable degree of interest, concern or responsibility as to D.W. (
After an abortive attempt to arrange a related adoption, the matter proceeded to a fitness hearing on May 17, 2002. Prior to commencement of the hearing, the State requested leave "to withdraw all grounds except for Ground Q," electing to proceed only under
The State first called respondent to testify as an adverse witness. Respondent testified that, in 1990, she had been convicted of attempting to kill her son, D.E. The State introduced both a certified copy of respondent's 1990 conviction, which stated that respondent was guilty of attempted first degree murder, and the 1990 indictment, in that case, which alleged that respondent was guilty of "intentionally and knowingly" attempting to kill D.E. Finally, the State had a prior disposition order admitted into evidence, which named respondent as the mother of D.E. The State presented no other evidence at the fitness hearing.
Respondent's counsel then called respondent as a witness and attempted to introduce evidence of respondent's rehabilitation efforts subsequent to her conviction. The State interposed repeated objections on relevancy grounds, maintaining that, under
Thereafter, respondent's counsel argued that the circuit court's application of section *473 1(D)(q) violated the due process and equal protection clauses of the United States and Illinois Constitutions. Counsel noted that a conviction for attempted murder of a child is a ground for a finding of unfitness under either
The State and the public guardian argued that the court's application of
After hearing the parties' arguments, the circuit court found that respondent's case was "factually different" from J.B. in that the instant case involves a conviction (attempted murder of a child) which is addressed in two statutory sections: one containing a rebuttable presumption (
"I'm going to hear the testimony, regardless [sic] of rehabilitation. I'm going to hear [respondent's] testimony. It is just a matter of am I going to hear it at the unfitness hearing or the best interest hearing.
If I were to wait and hear it only at the best interest hearing, it is possible that the Appellate Court might see this case differently than they saw J.B. and say that is an equal protection problem. Therefore, reverse the finding. * * *
* * *
The Court, assuming the statute is constitutional, noting depravity is not alleged, has not been alleged in this case, that the only allegation of unfitness that has been acted upon or prosecuted or is being prosecuted by the State in Q is going to, despite the fact that the Appellate Court has in February upheld the constitutionality of Paragraph Q, going to allow the natural mother to offer her evidence of rehabilitation * * *."
Thus, the circuit court allowed the testimony over the relevancy objections of the State and the public guardian.
Respondent's evidence of rehabilitation consisted only of her abbreviated testimony. Respondent testified that, upon her release from prison, she "went into therapy on [her] own to seek help." For approximately three yearsfrom 1992 to 1995she attended therapy sessions at West Side Family Health Center with Dr. *474 DeePak Kapoor. Her therapy was "successfully terminated." Respondent also stated that she successfully completed her parole in 1995. Moreover, respondent testified that she attended parenting classes in 1994 at Mt. Sinai Hospital and received a certificate at the end of the 10-week program. Respondent stated she got a court-ordered psychological evaluation and a drug and alcohol assessment. She was not required to pursue any other services as a result of the drug and alcohol assessment. She claimed she wanted to participate in family counseling with her children, but she was not afforded the opportunity. Respondent stated she was working at a "temp agency" and going to school part-time.
At the conclusion of respondent's testimony, the State argued that, in order to establish unfitness under
The circuit court then stated:
"The Court will rule as follows: With regard to unfitness, the Court does find that the State has met their burden of proof in this case, which is clear and convincing evidence with regard to Paragraph Q. The State has proved that [respondent] was criminal [sic] convicted of the attempted murder of a child. There is a certified copy of conviction admitted into evidence.
And [respondent] has herself testified and admitted she was convicted of that crime with regard to her child * * *.
* * *
I allowed [respondent] * * * the opportunity to testify to her rehabilitative efforts, because of the arguments made by counsel regarding the constitutionality of the statute.
It appears to me, first of all, under In re J.B. the statute is constitutional. As applied in this case, I think the Court would have been correct not to allow the testimony. But I'm considering it."
The court briefly summarized respondent's testimony and noted, even under
"This Court does not believe that there has been clear and convincing evidence presented by [respondent] to overcome the presumption, if this case were brought under Paragraph I, depravity. Had Dr. [Kapoor] come in and testified that he counseled you for three years and that based on your progress in counseling he believes that you would not be a risk to your child, that you made sufficient progress, or it wouldn't necessarily be Dr. [Kapoor] that would have to testify. Perhaps somebody else who witnessed what you have done over the years. But all I know is you attempted to kill one of your children.
* * * I don't find that you have overcome any presumption of unfitness that's been made in this case. And that's assuming that there is a presumption that would be able to be overcome.
So, the Court is finding, so the record is clear, [respondent] unfit pursuant to Paragraph Q of the Adoption Act." (Emphases added.)
The evidence adduced by the State at the best-interests hearing is not pertinent *475 to the issue before us. That evidence is recounted at length in the appellate court's opinion. In re D.W.,
Based on the evidence presented at the fitness and best-interests hearings, the circuit court found respondent unfit pursuant to
On appeal, respondent argued that
Initially, the appellate court rejected the argument of the State and the public guardian that respondent lacked standing to challenge the constitutionality of
On the merits, the appellate court held
The appellate court ultimately rejected respondent's due process and equal protection challenges on two bases urged by the State and the public guardian. First, with respect to due process and equal protection, the court noted that those to whom
Cause No. 98896
On March 17, 1997, respondent Lisa Z. pled guilty to a charge of aggravated battery (
On December 3, 2000, Amanda D. was born. The State filed a petition for adjudication of wardship on September 3, 2002, alleging, inter alia, that Amanda D. was abused and neglected because respondent left the child with respondent's paramour for two days while she went to Chicago to use drugs; she used crack cocaine in front of Amanda D.; she suffered from depression and was not taking her prescribed medications on a regular basis; and she had yet to complete a recommended substance abuse program. On December 26, 2002, the circuit court of McHenry County found that the State had proven the allegations set forth in the petition.
On January 30, 2003, the State filed a petition for termination of parental rights. The sole allegation regarding respondent's unfitness to be a parent was that respondent previously had been convicted of aggravated battery of a child. On the same date, the State moved for summary judgment and attached to the motion a certified copy of respondent's conviction. The trial court ultimately granted the motion on February 25, 2003. Thereafter, a best-interests hearing was held, and, on November 25, 2003, the trial court terminated respondent's parental rights.
Respondent appealed, arguing, inter alia, that
The appellate court noted that governmental action that impairs a fundamental rightsuch as the right to raise one's childrenmust be narrowly tailored to advance a compelling state interest. In re Amanda D.,
The appellate court ultimately determined that the statute's "proxy class" (people convicted of
"A parent could attempt to rebut the presumption, for example, through evidence of rehabilitation, evidence that the offense occurred under unique circumstances, or the showing of the passage of time during which the parent has led an upstanding life. However,section 1(D)(q) includes no such provisions." In re Amanda D.,349 Ill.App.3d at 949 ,285 Ill.Dec. 358 ,811 N.E.2d 1237 .
The appellate court disagreed with the reasoning of In re D.W.,
"Although the [D.W.] court began its analysis by stating that the statute was subject to strict scrutiny and was constitutional only if narrowly tailored to promote a compelling interest (D.W.,344 Ill.App.3d at 47 ,278 Ill.Dec. 692 ,799 N.E.2d 410 ), its analysis of the issue reads as if it utilized the deferential rational-basis standard, under which a statute is required only to bear a rational relationship to the legislature's purpose in enacting the statute (see In re D.P.,319 Ill.App.3d 554 , 557,253 Ill.Dec. 597 ,745 N.E.2d 720 (2001)). Specifically, the court concluded thatsection 1(D)(q) survived constitutional attack because `section 1(D)(q) promotes [the *478 state's compelling interest in protecting children] by allowing courts to consider a parent's conviction for the attempted murder of a child when determining whether the parent is also fit to parent his or her other current or future children.' D.W.,344 Ill.App.3d at 49 ,278 Ill.Dec. 692 ,799 N.E.2d 410 . That the statute promotes a state interest is not enough. Any statute that bears a rational relationship to its goal does so. What is required when a fundamental right is at issue, however, is that the statute promote the State's interest in a way that is narrowly tailored to achieving that end." In re Amanda D.,349 Ill.App.3d at 951 ,285 Ill.Dec. 358 ,811 N.E.2d 1237 .
The appellate panel in Lisa Z.'s case concluded that
Consequently, we are confronted with conflicting appellate court decisions regarding the constitutionality of
ANALYSIS
As a threshold matter, the State argues that Lisa M. lacks standing to challenge the constitutionality of
First, we are not convinced that the hearing which took place was of the caliber respondent would have received but for the trial court's vacillation. The State's election to proceed only under
Second, the words and actions of the circuit court inspire little confidence that respondent actually received due consideration of the testimony that was presented. The circuit court's decision to reverse its initial ruling and hear evidence of rehabilitation seems to have been prompted, in part, by a fear that the appellate court might see things differently, and by a belief that the court could simply ignore the procedural aspects of
"It is just a matter of am I going to hear [evidence of rehabilitative efforts] at the unfitness hearing or the best interest hearing.
If I were to wait and hear it only at the best interest hearing, it is possible *479 that the Appellate Court might see this case differently than they saw J.B. and say that is an equal protection problem. Therefore, reverse the finding. * * *
* * *
The Court, assuming the statute is constitutional, noting depravity is not alleged, has not been alleged in this case, that the only allegation of unfitness that has been acted upon or prosecuted or is being prosecuted by the State in Q is going to, despite the fact that the Appellate Court has in February upheld the constitutionality of Paragraph Q, going to allow the natural mother to offer her evidence of rehabilitation * * *."
The court obviously recognized only
Though the court permitted and purportedly considered respondent's evidence, the court repeatedly and unequivocally stated that its ruling, finding respondent unfit, was based solely on
"The Court will rule as follows: With regard to unfitness, the Court does find that the State has met their burden of proof in this case, which is clear and convincing evidence with regard to Paragraph Q. The State has proved that [respondent] was criminal [sic] convicted of the attempted murder of a child. There is a certified copy of conviction admitted into evidence.
And [respondent] has herself testified and admitted she was convicted of that crime with regard to her child * * *."
The court recounted respondent's testimony in a rather cursory manner and concluded, speaking to respondent, "[A]ll I know is you attempted to kill one of your children." Lest there be any doubt about the basis of its finding, the court added, yet again: "So, the Court is finding, so the record is clear, [respondent] unfit pursuant to Paragraph Q of the Adoption Act."
By enacting
*480 As this court has previously stated, it is improper to terminate a parent's rights on grounds not alleged in a petition to terminate. In re D.C.,
The constitutional source of a circuit court's jurisdiction does not carry with it a license to act in ways inconsistent with controlling statutory law. In re Lawrence M.,
Given the coalescence of the aforementioned circumstances, we believe Lisa M. has standing to challenge the constitutionality of
An issue concerning the constitutionality of a statute presents a question of law that we review de novo. In re Parentage of John M.,
When confronted with a claim that a statute violates constitutional guarantees of due process or equal protection, a court must first determine the nature of the right purportedly infringed by the statute. People v. Cornelius,
There is no doubt that the right of parents to control the upbringing of their children is a fundamental constitutional right. In re R.C.,
With these precepts in mind, we consider the means the legislature has chosen in pursuit of what is undeniably the state's compelling interest in the safety and welfare of children. See American Federation of State, County & Municipal Employees v. Department of Central Management Services,
While
So, there is a rebuttable presumption that a person who murders a child is an unfit parent; however, there is a mandatory conclusive (irrebuttable) presumption that a parent convicted of aggravated battery or attempted murder of a childoffenses no more serious than murderis an unfit parent. Had the State alleged conviction of attempted murder of a child under
As this court has observed, statutory classifications that affect a fundamental right violate the equal protection clause unless they are narrowly tailored to serve a compelling state interest. In re Adoption of L.T.M.,
"[A] parent who stands to lose his rights under the Adoption Act if he is found unfit is in a very similar situation to a parent who stands to lose the very same constitutional right, based on the very same finding, in proceedings under the Juvenile Court Act." L.T.M.,214 Ill.2d at 76 ,291 Ill.Dec. 645 ,824 N.E.2d 221 .
In L.T.M., this court defined the pertinent classification for purposes of equal protection analysis as follows:
"In this case, the classification is the distinction between parents who must answer a petition to terminate their parental rights under the Juvenile Court Act and those, like John, who must answer *483 under the Adoption Act." L.T.M.,214 Ill.2d at 75 ,291 Ill.Dec. 645 ,214 N.E.2d 221 .
The right to counsel is a procedural safeguard (In re D.T.,
The applicability of L.T.M.'s holding to the case at bar is unmistakable; the reasoning of L.T.M. is even more compelling when applied to the circumstances of this case. This court has stated that a rebuttable presumption is a rule of procedure. First National Bank of Chicago v. King,
It is no answer to suggest that there is a unique "moral" element to
Moreover, notwithstanding any previous statements to the contrary, we believe, after our decision in In re D.T., there is little force left in the argument that a respondent who has been deprived of the opportunity to present evidence of parental fitness at a hearing purporting to address that very issue is no worse off for having to present such evidence at the best-interests hearing, after having been found unfit.
Recently, in In re D.T., this court held that parents are not entitled to all of the same procedural safeguards at the best-interests hearing that they enjoy at the fitness hearing. Specifically, this court found that the clear and convincing standard of proof that applies at the fitness hearing gives way to a lesser, preponderance, standard of proof at the best-interests phase of termination proceedings. In re D.T.,
"Following a finding of unfitness * * * the focus shifts to the child. The issue is no longer whether parental rights can be terminated; the issue is whether, in light of the child's needs, parental rights should be terminated. Accordingly, at a best-interests hearing, the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." (Emphases in original.) In re D.T.,212 Ill.2d at 364 ,289 Ill.Dec. 11 ,818 N.E.2d 1214 .
This court explained why a higher standard of proof is required at the fitness hearing and a lesser standard of proof is permissible at the best-interests phase:
*484 "At the unfitness stage, the interests of the parent and the child coincide to the extent that they both `share a vital interest in preventing erroneous termination of their natural relationship.' Santosky,455 U.S. at 760-61 ,102 S.Ct. at 1398 ,71 L.Ed.2d at 611 . The alignment of these interests at the unfitness hearing favors the use of error-reducing procedures, i.e., use of a more stringent burden of proof than a preponderance. See Santosky,455 U.S. at 760-61 ,102 S.Ct. at 1398 ,71 L.Ed.2d at 611 . The same, however, is not true at the best-interests hearing. Once the State proves parental unfitness, the interests of the parent and the child diverge. Santosky,455 U.S. at 760 ,102 S.Ct. at 1398 ,71 L.Ed.2d at 611 . Thus, at a best-interests hearing, the parent and the child may become adversaries, as the child's interest in a loving, stable and safe home environment becomes more aligned with the State's interest in terminating parental rights and freeing the child for adoption. Although the parent still possesses an interest in maintaining the parent-child relationship, the force of that interest is lessened by the court's finding that the parent is unfit to raise his or her child." In re D.T.,212 Ill.2d at 363-64 ,289 Ill.Dec. 11 ,818 N.E.2d 1214 .
Clearly, a parent found unfit at the first phase of termination proceedings enters the second phase at a disadvantage from a procedural and evidentiary standpoint. See In re C.W.,
A parent who is denied the opportunity to adduce evidence of fitness at the hearing where a fitness determination will be made is clearly at a disadvantage by the time of the best-interests hearinga disadvantage not faced by those who are allowed to present evidence of their fitness at the first phase of termination proceedings. The latter are accorded an "error-reducing" procedure that is inexplicably denied the former. To suggest that this inequity does not exist is to ignore the reality of results, and a fundamental requirement of due process, i.e., that a respondent be afforded the opportunity to be heard at a meaningful time and in a meaningful manner. See Mathews v. Eldridge,
As the Supreme Court stated in Stanley, addressing another mandatory conclusive (irrebuttable) presumption, that also impacted the fundamental family relationship between parent and child:
"Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care * * * it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand." Stanley,405 U.S. at 656-57 ,92 S.Ct. at 1215 ,31 L.Ed.2d at 562 .
In L.T.M., we rejected any suggestion that controlling expenditures was a valid basis for denying equal protection to the class affected by the deprivation. L.T.M.,
In short, there is no rational basis for treating persons subject to fitness proceedings under
It remains for us to decide whether the remedy for this constitutional violation is to require the state to extend the benefit of timely and meaningful rebuttal to those who have been denied it under
For the reasons stated, we affirm the judgment of the appellate court in cause No. 98896. We reverse the judgments of the appellate and circuit courts in cause No. 97292 and remand to the circuit court for further proceedings.
No. 98896Appellate court judgment affirmed.
No. 97292Judgments reversed; cause remanded.