*1 (No. 63986. re SABRINA ENIS of the State of Illi (The People al., Enis et v.
nois, Appellant, Larry Appellees). Opinion February Rehearing 1988.— filed 5, 1988. April denied J., CUNNINGHAM, part. took no MILLER, J., J., concurring. SIMON, joined by specially *2 Neil F. General, of Hartigan, Attorney Springfield, Foreman, and Fred Waukegan State’s of Attorney, (Roma Jones and Denney, Stewart Shawn W. Solicitors General, Rotert, Mark L. Terence Arleen M. Madsen and Anderson, C. General, Assistant all of Chi- Attorneys cago, Browers, and Kenneth R. William L. Boyle, and Schneider, N. Cynthia of the State’s Attorney’s Appel- Prosecutor, late of of Elgin, counsel), for the People. Mary Robinson, of Skelnik, Robinson & of Elgin, appellees.
JUSTICE WARD delivered the opinion of the court: The State’s of Lake on Attorney County, May 1983, filed petition in the circuit court of Lake County under section 5—9 the (Ill. Juvenile Court Act Rev. Stat. ch. par. 9) terminate parental defendants, Enis, Larry Cynthia and in their Sabrina, natural child iswho now six old and years in foster care. The petition that the Enises were alleged “unfit persons” under sections and of the Illi l(D)(f) (m) nois Adoption (Ill. Act Rev. Stat. pars. 1501(D)(f), (D)(m)). These grounds sections state for the termination of parental rights under the Juvenile Court Act. The Enises moved to strike the allegations that un der section were l(D)(f) they unfit on the persons ground the section violates the due process clause fourteenth amendment of the Constitution United States. The circuit court and, denied the motion after a the State’s The hearing, granted court petition. appellate reversed and remanded for further Ill. proceedings. (145 753.) The held App. court that section clause and that process Act violates due in to termi there was insufficient evidence the record l(D)(m). under nate Enises’ the State’s for leave granted petition appeal We Ill. 2d 317. Rule 317.107 R.
Earlier, 25, 1982, the State filed a May petition on Sabrina, of Lake asking the circuit court County who in the of her custody parents, adjudicated was to section 4—8 of the Juve ward pursuant (Ill. 8). nile Court 704 — minor” Sabrina was an “abused stated that petition 2—4 the Act as defined in section that while she was 4), alleged par. 702 — had suffered seri in the of her Sabrina custody parents, buttocks, genital her area and feet thighs, ous bums body found on various her had parts bruises The court granted been inflicted at various times. 2, 1982, Sabrina on and ordered September motion *3 of the of Chil custody transferred to Department was (DCFS), appointed dren and Services which Family to the Enises co as her The court also ordered guardian. them to granted the DCFS and operate with visitations with Sabrina. weekly 2, 1982, the court returned Sabrina On December ordered that she was to of Enises but the custody a of the court. The court also directed remain ward with the DCFS and with cooperate to continue to Enises services. a of other social number State filed a supplemental peti- In March of 1983 the court of of the circuit wardship tion for adjudication had suffered further that Sabrina alleging Lake County, viz., on had 7, 1983, Sabrina re- abuse, March physical emergency which required a head injury ceived severe that bruises inflicted alleged State The further surgery. various of parts on at times discovered different were and ordered petition her The court body. granted in foster care visita- placed again, Sabrina be with tion for the scheduled twice a month. parents be 1983, the later,
Two months on State filed the May here, which we consider to terminate petition, Enises’ It that under section parental rights. alleged 1(D) Stat. (Ill. Rev. on 1501(D)) the Enises were “unfit
par. persons” there had been the two of ground prior findings their a Ill. Rev. (see abuse of child physical (Sabrina) Stat. and on the 1501(D)(f)), ground par. had failed to make reasonable efforts to cor they rect the conditions its which caused the to enter order a ward September adjudicating Sabrina the court 1501(D)(m)).
The Enises moved to strike unfit- allegations ness based the two upon prior findings abuse referred to in section termi- l(D)(f). Enises contended that a nation of unfitness requires proof by clear and evidence and an of ter- order mination could not based child prior findings abuse supported by of the evi- only dence.
The court denied motion and after hearing granted People’s petition, stating: already judicial “The Court has that it’s taking indicated case, important parts notice two most this wit, that there been have two acts of separate found by Judge Scott on the children. *** the Court finds that there has been substan- [A]nd neglect tial they parents] these children because [the not with cooperated have DCFS. The evidence uncontradicted, it’s preponderance, they because is that *4 cooperated fully have not ***. IAnd think that within the since the time first abuse, which was physical September ’82
there has been a failure to the and it is correct situation rights minor the parental
in the interest of the .that best be terminated.”
The court reversed and remanded the cause appellate de for further that the Enises were holding proceedings, The nied due Ill. court held (145 App. 753.) process. Stat. (Ill. that section Rev. which the termina par. 1501(D)(f)), permits tion of on or more parental rights findings based two child, to a court violates due The physical process. stated that clear and of unfitness convincing evidence terminated, and required parental rights may before the Juvenile Court abuse under findings the Act are on the standard of made (Ill. 6(1).) evidence. par. 704— l(D)(f) provides The court found section because the termination of on a parental constitutionally the to process. insufficient violates due ground, right The the State’s rejected argu court also appellate in the record to ment that there was sufficient evidence l(D)(m) find the Enises “unfit” under section permits which par. 1501(D)(m)), fail parents termination of where which make efforts to correct conditions reasonable the child from the were the for the court’s taking basis The held that State court custody parents. evidence that had failed to clear prove “unfit” under l(D)(m). the Enises were court did not have court stated because circuit juvenile from earlier court proceed transcripts it had on another no basis which ings judge, before an as to the Enises make accurate assessment whether conditions had made reasonable efforts correct found in the juvenile proceedings. Santosky v. Kramer 71 L. U.S. (1982), 455
Ed. 2d 102 S. de Supreme Ct. Court “care, in the clared that interest of natural parents
129
is
management
and
of their children”
a funda
custody
mental
interest protected
the fourteenth
liberty
amendment,
and that when a State seeks to terminate
rights
parents
child,
their natural
the State
must
provide
parents
protections
with procedural
“meeting
the Due Process Clause.”
requisites
(455
753,
1394-95;
U.S. at
71
606,
L. Ed. 2d at
102
Ct. at
S.
v. Department
Lassiter
Social Services
see also
18, 27,
640,
452
68
(1981),
649-50,
U.S.
L. Ed. 2d
101 S.
v.
2153, 2159-60;
Little
Streater
Ct.
452
(1981),
U.S.
13, 68 L.
Re
627, 637,
2202, 2209;
Ed. 2d
101 S. Ct.
Fold,
genold
Baby
v.
Inc.
(1977),
68 Ill.
438.)
2d
Santosky involved the
of a New York
constitutionality
statute which permitted
the State to terminate
in their
rights
parents
natural child
finding by
a “fair
preponderance
evidence” that
the child
was
“permanently neglected.”
holding the statute un
constitutional,
the Court stated that
a fair
applying
pre
ponderance of the evidence standard was inappropriate
in the context of proceedings
to terminate
The
rights.
observed
that standard of proof
the risk of
allocates
error nearly equally between the
i.e.,
parties,
between the
State,
and the
parents
“when
the possible
to the
injury
individual
significantly
greater
than any possible harm to the state.” (Santosky,
at
court’s standard, of a of the evidence basis the case for and remanded judgment Court vacated under a constitutionally a new to be conducted hearing standard. proper whether the Enises were afforded must determine
We under Santosky in the fair fundamentally procedures *6 their rights. terminating parental proceedings are governed termination procedures Our parental 1983, 37, ch. (Ill. par. Court Act Rev. Stat. Juvenile 701—2 et seq.) (Ill. Act Rev. Stat. Adoption et seq.). 5—9 of the 40, ch. 1501 Under par. Stat. (Ill. par. Juvenile Court Act Rev. parental a court terminate an individual’s 9), may 705 — finds, on clear and if the court based as that evidence, person” is an “unfit parent (Ill. Act 1(D) term is defined in section An “unfit person” par. 1501(D)). Stat. Rev. is: to unfit to the court shall find be whom “[A]ny person child, being of unfitness grounds any such
have a following: one or more of the
* * * any abuse to (f) findings physical two or more Court Act section 4—8 of the Juvenile children under ***» i * * * efforts to to make reasonable by parent failure
(m) for the re the basis which were correct the conditions ***.” Ill. parent from such of the child moval 1501(D)(f), (D)(m). 1983, ch. pars. a termination to
In addition providing a court also authorizes Court Act the Juvenile rights, if the from his or her home child temporarily remove a child “abused” of section meaning within appears 4). 2—4 as any An “abused minor” defined minor under age: years member,
“(a) parent family whose or immediate or welfare, any or any person responsible for the minor’s person family who is in the same or as the mi- household nor, any or individual home as the residing the same minor, or a paramour parent: of the minor’s
(i) inflicts, inflicted, causes or allows to be inflicted such physical injury, by minor other means, death, disfigure- than accidental which causes ment, impairment health, or emotional or function; impairment or any bodily loss (ii) creates substantial risk of physical injury to minor by such other than accidental means which death, likely disfigurement, would be cause impair- health, ment of emotional or or impairment loss function; any bodily
(iii) commits or allows to be committed sex of- any minor, fense against such such sex are as offenses de- amended, fined in the Criminal Code as extending those definitions sex offenses to include years minors under 18 of age; *7 (iv) or commits allows to be committed act an or minor; acts of torture such or (v) inflicts corporal excessive punishment; or (b) whose environment is or injurious his her welfare.” 37, par. Il l. Rev. Stat. ch. 702—4. the
Under Act clear and Adoption convincing evi dence of “unfitness” is required before parental (Ill. be terminated. Rev. Stat. may Section 4—6 of the Act 9(3).) Juvenile Court 705— however, 6(1)), pro par. vides that “the in the nature of proof standard a civil is for “abuse.” proceedings” applicable finding While the statute not whether specify does applicable is of the or evidence clear and preponderance been evidence, the statute has
convincing consistently, a of the evi preponderance construed to require simply In dence. See In re Urbasek 535, 543; 2d (1967), 38 Ill. 948; In re Nitz re Simmons 127 Ill. 3d (1984), App. 76 Ill. 20. (1979), App. erred in that
The State claims appellate violates' l(D)(f) that section holding the termination paren- in that it permits due process of abuse findings sup- to be based on prior tal rights the evidence. The a by ported only preponderance the leg- that in section was enacting l(D)(f) State says of parental intent base the termination islature’s dem- a of a of conduct which rights upon finding pattern unwilling is or onstrates that the parent incapable is unfit. This pattern for the child and thus care properly State, shown, finding to the according by of conduct or child on has abused his her parent that physically said that and from this it can be two occasions separate evidence convincing it was established clear and is unfit. parent findings two of the State that argument con considered to Act can be under the Juvenile Court is not of unfitness evidence stitute clear whether a minor is “abused” determining convincing. Act, the court need only the Juvenile Court (Ill. Rev. of the evidence convinced aby accuracy of 6(1)) par. 704 — as the standard, of this allegations Application abuse. Santosky, ren a risk error creates court held to form not reliable adequately ders proceeding rights, simply termination basis does not eliminate of abuse second adding in either determination. inhering error risk of can be further argues The State determine the court must to mean that construed referred of abuse incidents or more underlying the two *8 to clear and evidence proved by convincing have been before it order of un- may parental rights a termination the der that subsection of Act. The State Adoption says the can the from transcripts juvenile court examine the court as as well other evidence to determine proceedings a petition whether a for of unfitness has finding been by clear and evidence. proved convincing however, ignores
The State’s argument, language of section l(D)(f) which states two find plainly prior under ings abuse the Juvenile Court Act (ac to a cording preponderance the evidence standard (Ill. 6(1)))provides grounds finding of unfitness. There is to nothing suggest, much less that the require, court review the at evidence prior hearings determine if those allegations proved were clear and evidence. convincing We conclude that section not l(D)(f) does satisfy require ment of due process because it authorizes the termina tion of parental rights upon proof physical abuse aby Santosky, the evidence. Under if the State seeks to terminate parental rights on the ground that has his parent physically abused or her child on two or or separate occasions, more another ground, must due prove, those satisfy process, allegations by clear and evidence. The trial erred in strike failing to the State’s of “unfitness” allegations that were on section predicated the Adoption Act.
Another People that, contention in any event, the evidence introduced at termination hear- ing was sufficient for l(D)(m) were unfit in parents failed correct the they conditions the court to causing make a ward of the Sabrina court. how- Unquestionably, ever, trial court did not use the proper evidentiary its deci- making finding. In announcing *9 sion the court stated that evidence aby prepon “[t]he derance, uncontradicted, is is that because it they [the Thus, not that cooperated fully.” have parents] terminate also was insufficient because it rights a was made on of the evidence standard convincing and not on the standard of clear and required evidence. the trial court the evidence judged by Because standard of we order a new proof, the improper hearing the consti on the State’s to be conducted under petition i.e., standard, and convincing clear evi tutionally proper v. Kramer Santosky (1982), 455 U.S. dence. In re Urbasek 599, 617, 1388, 1403;
L. 102 S. Ct. Ed. 38 Ill. 2d 543. (1967), of the given, appellate
For reasons the judgment affirmed the cause is remanded for a new is and has opinion consistent with what this hearing expressed. Judgment affirmed. in the consid- part CUNNINGHAM took no JUSTICE or of this eration decision case. SIMON, concurring:
JUSTICE specially I that majority opinion with that agree part clause of the fourteenth states due process 5—9 of reading us from section precludes amendment a as the ter Court in such to allow way Juvenile of unfitness showing of parental rights upon mination I also of the evidence standard. under a preponderance remanded, the reason cause must be but this agree with the is my disagreement separate opinion for this the re not satisfy does l(D)(f) that “section conclusion termi authorizes it of due because process quirement by proof rights upon of parental nation 133). In Ill. 2d at (121 evidence.” a preponderance holding correct in is short, opinion I believe majority in was applied of proof unconstitutional an case, this but the conclusion that section is fa invalid both and incorrect. cially unnecessary Act, As I read section 5—9 of the Juvenile Court State, or other interested requires prove party, unfitness clear evidence before convincing paren tal can be terminated and consent to adoption given. (Ill. 9.) Specifi 705— for the termination of cally, 9(2) provides pa rental “after clear finding, based [a] evidence, that is an non-consenting parent unfit as in defined Section 1 of Illinois person Adop [the tion majority lose appears sight Act].” proof standard of explicitly stated section 5—9 when *10 out that points section Act l(D)(f) Adoption pro vides for only preponderance of evidence standard of proof. Section 1 of the Act is defini Adoption purely tional, section l(D)(f) defines an “unfit as person” “any person whom the shall find be unfit to have a child two or more findings of physical [because of] abuse to any children Section 4—8 of the Juvenile Court Ill. Act.” par. 1501(D)(f). read, section
Properly is merely definitional: it defines the term “unfitness.” It provides that two or more findings abuse constitute unfitness. Section 5—9 the Juvenile Court Act articu- lates the applicable standard of clear by proof proof— and convincing evidence that a is unfit. Taken parent to- gether these sections that a require finding of unfitness for the purposes section 5—9 based on two inci- dents of proved clear and by evidence. convincing Because the of abuse in this findings case were made only under standard, of the evidence is remand required determine whether the is proof sufficient to establish abuse clear and convincing evi- dence.
I see no reason to section 5—9 of the Juve invalidate fact, nile I do not know Court Act. how legisla ture have more than in explicit could been to expressly clude clear I flows 9(2). interpretation propose naturally
from our rul previous the statute consistent with that assume the ings interpretations that favor statutory See, a constitutional statute. legislature pass intended Braun v. Board e.g., Retirement Ill. 2d (1985), 127. in this concurrence. joins special
JUSTICE MILLER (No. 64182. ILLINOIS,
THE THE STATE Appel- PEOPLE OF OF lant, HOLLAND, Appellee. DANIEL v. 21,1987. Rehearing Opinion December — filed 5, 1988. April denied