In re P.M.C. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Donald C., Respondent-Appellant)
No. 5—07—0127
Fifth District
August 3, 2007
Rehearing denied September 4, 2007
376 Ill. App. 3d 867
The majority implies that the fact that the judge was fed up with counsel’s antics —“the last in a series of blatant indiscretions” (376 Ill. App. 3d at 864)—justifies the court’s sua sponte decision to declare a mistrial. While that may account for the court’s hasty reaction, it was defense counsel’s comment about the polygraph that required the judge’s careful consideration. No amount of frustration allows the court to forgo the deliberate process imperative in safeguarding the defendant’s constitutional rights against double jeopardy. Two minutes is two minutes. A judge cannot undertake the rigorous analysis required and arrive at a determination that manifest necessity warranted a mistrial in that extraordinarily short span of time. Despite the judge’s pronouncements and the majority’s contentions to the contrary, I do not believe that the court undertook any serious reflection or consideration of alternatives to preserve the trial’s fairness. Based on the facts in this case, the court did not demonstrate a manifest necessity for a mistrial. I believe that both Street and Dahlberg support this conclusion. People v. Street, 316 Ill. App. 3d 205 (2000); People v. Dahlberg, 355 Ill. App. 3d 308 (2005). For those reasons, I believe that the judge’s decision declaring a mistrial was clearly against logic and therefore an abuse of discretion. See People v. Largent, 337 Ill. App. 3d 835, 839 (2003). I would rule that double jeopardy barred a retrial of the defendant.
Matthew Wilzbach, State’s Attorney, of Salem (Norbert J. Goetten, Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
JUSTICE WEXSTTEN delivered the opinion of the court:
The respondent, Donald C., appeals the circuit court’s order finding him unfit to parent his minor children —J.L.C., who was born on December 9, 1996, and P.M.C., who was born on June 13, 1998. See
On appeal, the respondent argues that the circuit court erred in finding that he had made no reasonable progress toward the return of J.L.C. and P.M.C. See
FACTS
On January 16, 2001, the State filed petitions for the adjudication of wardship, alleging that J.L.C. and P.M.C. were abused minors because the respondent had committed predatory criminal sexual assault upon J.L.C. After a temporary custody hearing, the circuit court found probable cause to believe that the minors were abused, found an urgent and immediate necessity to remove the children from the respondent’s home and place them in shelter care, and granted temporary custody of the children to the Department of Children and Family Services (DCFS). After an adjudicatory hearing on July 2, 2001, and August 10, 2001, the circuit court, by docket entry, entered its order of adjudication finding that J.L.C. and P.M.C. were abused minors. At the dispositional hearing on October 25, 2001, the parties consented to an agreed disposition that DCFS place the children with
On March 31, 2005, the State filed a petition for the termination of parental rights. In the petition, the State alleged that the respondent was unfit to parent J.L.C. and P.M.C. because, pursuant to section 1(D)(m)(i) of the Adoption Act (
On November 6, 2006, at the hearing on the petition to terminate the respondent’s parental rights, the respondent testified that he attended every scheduled visit with his children. The respondent also testified that, following the dispositional hearing, he continuously attended sex-offender counseling sessions. The respondent denied committing any sexual offense against J.L.C. The respondent testified that during therapy sessions with Ray Swift, Todd Holsapple, Dale Spitler, Linda Stover, and his therapy group, he admitted that he had sexually abused J.L.C. The respondent testified that he admitted the offense in therapy only because his attorney had advised him to do so.
Linda Stover, a licensed clinical professional counselor, testified that she specialized in sex-offender treatment and evaluation. Stover testified that she first treated the respondent on March 25, 2003. Stover testified that the respondent received a certificate of completion in July 2003 for successfully completing the sex offenders’ outpatient program. Stover testified that at that time, she felt as though the respondent could evaluate boundary violations for himself. Stover testified, however, that in a July 30, 2003, letter written to the respondent’s probation officer (regarding an intimidation charge unrelated to the present case), she stated that the respondent had completed his probation and would no longer be seeking treatment, but she suggested that the respondent continue treatment to address anger-management, relationship, and relapse-prevention issues. Stover testified that after July 29, 2003, the respondent returned for treatment on February 10, 2004, but that she had no further contact with the respondent after August 24, 2004.
Dr. Alexander James testified that he performed a psychological evaluation of the respondent and a bonding assessment involving the respondent and his children. The respondent stipulated to Dr. James’s qualifications and to the admission of Dr. James’s two reports. Dr.
Todd Holsapple, a mental health therapist for the Community Resource Center (CRC), testified that the respondent began level one of sex-offender therapy on September 7, 2004, when the respondent transferred from a previous provider, and that Holsapple began treating the respondent in February 2006. Holsapple testified that in the course of maintaining a counseling position with the respondent, he reviewed only CRC’s history information on the respondent. Holsapple was unaware of the respondent’s denials of abuse.
Lenora Williams, a previous case manager with Illinois Mentor, testified that she had managed J.L.C.’s and P.M.C.’s cases from June 2004 until April 2006. Similarly, Amanda Wagner, also a case manager with Illinois Mentor, testified that she had managed J.L.C.’s and P.M.C.’s cases, monitoring the respondent’s progress in sex-offender therapy, since April 2006.
In replying to the respondent’s motion for a directed finding, the State indicated that it was only pursuing termination based on the respondent’s failure to make reasonable efforts to correct the conditions that were the basis for the removal of the children (
“[A]s I indicated in the beginning of the hearing, and as I indicated to [the respondent’s attorney] plenty [of] times, we were only pursuing failure to correct conditions, not on the reasonable progress grounds. Otherwise, this hearing would have been a lot longer.”
When the circuit court asked whether the State was moving to dismiss the reasonable-progress allegations in the petition, the attorney for the State replied: “I guess, yes. We were not proceeding on that.”
In its order entered on November 30, 2006, the circuit court noted that while the respondent had admitted to several counselors that he had abused his daughter, he testified that these statements were untrue and had been asserted only to please the counselors; that the respondent remained at level one of treatment and could not reach level two without taking responsibility for the sex offense; and that Dr. James’s psychological evaluation clearly indicated that the respondent did not view the sex-offender information as applying to him. The circuit court concluded that although the respondent had participated “in a considerable amount of sex-offender-specific
The best-interests hearing was held on January 24, 2007. In its order entered on February 9, 2007, the circuit court found clear and convincing evidence that it was in J.L.C.’s and P.M.C.’s best interests to terminate the respondent’s and Ruth H.’s parental rights. On March 5, 2007, the respondent filed a notice of appeal.
ANALYSIS
The Juvenile Court Act of 1987, as amended, provides a two-stage process whereby parental rights may be involuntarily terminated.
We accord the trial court’s finding of parental unfitness great deference because it is in the best position to make factual findings and credibility assessments. In re D.L., 326 Ill. App. 3d 262, 269 (2001). We will reverse the trial court’s finding only if it is against the manifest weight of the evidence. In re D.L., 326 Ill. App. 3d at 270. “A finding is against the manifest weight of the evidence when the opposite conclusion is clearly evident.” In re D.L., 326 Ill. App. 3d at 270.
The Adoption Act specifies the following as grounds for a finding of parental unfitness:
“(m) Failure by a parent (i) to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or (ii) to make reasonable progress toward the return of the child to the parent within 9 months after an adjudication of neglected or abused minor ***, or (iii) to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the
adjudication of neglected or abused minor ***.” 750 ILCS 50/1(D)(m) (West Supp. 2005) .
Either the failure to make reasonable efforts or the failure to make reasonable progress can be a ground for an adjudication of unfitness. In re M.A., 325 Ill. App. 3d 387, 391 (2001). Only one ground of unfitness needs to be proved by clear and convincing evidence for the court to find a parent unfit. In re J.A., 316 Ill. App. 3d 553, 564 (2000).
In the present case, after the unfitness hearing on November 6, 2006, the circuit court found that because the respondent had failed to meaningfully participate in sex-offender counseling, he failed to make reasonable efforts to correct the conditions that were the basis for the children’s removal (
While, at the respondent’s unfitness hearing, the State presented the testimony of the respondent’s therapists to demonstrate that he had failed to participate in “meaningful therapy,” these therapists began treating the respondent after the relevant 2001-2002 time period, the nine-month period beginning on the date of the circuit court’s adjudication of abuse on August 10, 2001 (August 2001 to May 2002). The only remaining evidence at the unfitness hearing regarding the respondent’s efforts or progress during the relevant time period consisted of the respondent’s testimony that he attended scheduled visits with his children, that he consistently attended sex-offender counseling sessions, but that he made insincere admissions in sex-offender therapy.
Accordingly, the sole remaining basis for the circuit court’s findings—that the respondent had failed to make reasonable efforts to correct the conditions that were the basis for removal (
The fifth amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”
Accordingly, the fifth amendment bars a state from explicitly ordering a parent to choose between losing his parental rights or waiving his privilege against self-incrimination. See In re A.W., 373 Ill. App. 3d 574, 578 (2007); In re L.F., 306 Ill. App. 3d 748, 753 (1999); see also Mullin v. Phelps, 162 Vt. 250, 268, 647 A.2d 714, 724-25 (1994); In re M.C.P., 153 Vt. 275, 300, 571 A.2d 627, 641 (1989); In re Welfare of J.G.W., 433 N.W.2d 885, 886 (Minn. 1989); In re Welfare of J.W., 415 N.W.2d 879, 883 (Minn. 1987); In re Clifford M., 6 Neb. App. 754, 765-66, 577 N.W.2d 547, 554-55 (1998); In re Amanda W., 124 Ohio App. 3d 136, 141, 705 N.E.2d 724, 727 (1997). There is a fine, but important, distinction between terminating parental rights based specifically upon a parent’s refusal to admit that which he denies, thereby forcing him to waive the fifth amendment privilege against self-incrimination, and terminating parental rights based upon a parent’s failure to comply with an order to undergo meaningful therapy or rehabilitation, because a parent’s refusal to admit sexual abuse inhibits meaningful therapy. The latter is constitutionally permissible, while the former is not. See In re A.W., 373 Ill. App. 3d at 578-79; In re L.F., 306 Ill. App. 3d at 753; see also Mullin, 162 Vt. at 268, 647 A.2d at 724-25; In re M.C.P., 153 Vt. at 300, 571 A.2d at 641; In re Welfare of J.G.W., 433 N.W.2d at 886; In re Welfare of J.W., 415 N.W.2d at 883; In re Clifford M., 6 Neb. App. at 765-66, 577 N.W.2d at 554-55; In re Amanda W., 124 Ohio App. 3d at 141, 705 N.E.2d at 727.
In the present case, the circuit court did not overtly require the respondent to admit to the abuse or face the termination of his parental rights. However, because the therapists’ testimony did not involve the time period relevant for assessing the respondent’s efforts or progress, the sole remaining basis for the circuit court’s order finding the respondent unfit involves the respondent’s refusal, at the hearing, to admit the abuse and his corresponding testimony that his admissions during the relevant time period were insincere. Accordingly, the circuit court’s determination of unfitness was improper because it was based solely on the respondent’s denial of sexual abuse.
We note that the State alleged in the petition for the termination of parental rights that the respondent had failed to make reasonable progress toward the children’s return during any nine-month period after the end of the initial nine-month period following the adjudication of abuse. See
We also note that the State is not prejudiced from filing another petition to terminate the respondent’s parental rights on lawful grounds and presenting evidence to support that petition, if and when it becomes appropriate. To avoid a fifth amendment infringement and to encourage the respondent to participate in “meaningful therapy” in the present case, the State may offer the respondent protection from the use of any compelled statements and any evidence derived from those answers in a subsequent criminal case against him. See Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). The respondent may also offer evidence that refusing to admit that which he denies may not inhibit “meaningful therapy.”
CONCLUSION
For the foregoing reasons, we reverse that part of the judgment of
Affirmed in part and reversed in part.
SPOMER and STEWART, JJ., concur.