2012 IL App (5th) 110321
NOTICE
Decision filed 04/12/12. The text of
NO. 5-11-0321
this decision may be changed or
corrected prior to the filing of a
Petition
for
Rehearing
disposition of the same.
or
IN THE
the
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
DOUGLAS R.S.,
)
)
)
)
)
)
)
)
)
Petitioner-Appellant,
v.
JENNIFER A.S.,
Respondent-Appellee.
Appeal from the
Circuit Court of
Wayne County.
Nos. 01-D-83 & 09-AD-2
Honorable
Thomas J. Foster,
Judge, presiding.
PRESIDING JUSTICE DONOVAN delivered the judgment of the court, with
opinion.
Justices Chapman and Spomer concurred in the judgment and opinion.
OPINION
¶1
Douglas R.S. (Father) filed an application for leave to appeal pursuant to Illinois
Supreme Court Rule 308 (eff. Feb. 26, 2010) in connection with the adoption proceedings
initiated by Jennifer A.S. (Mother) attempting to terminate his parental rights to the parties'
minor child. The circuit court of Wayne County granted the application and certified the
parties' question without objection. We affirm.
¶2
The marriage of Father and Mother was dissolved in September of 2002. At the time
of the dissolution, the parties had a joint-parenting agreement regarding custody of their
minor child. In March of 2005, Mother filed a petition to modify that agreement seeking an
increase in child support and to reduce Father's time with the child. Father, on the other
hand, filed a petition for enforcement of visitation and for rule to show cause alleging that
his former wife had withheld visitation of the minor child from him. Both petitions were
1
never resolved and remain pending.
¶3
In January 2009, Mother and her new husband filed a petition in Hamilton County
seeking to adopt the minor child. Before a minor may be adopted, it is necessary either for
the minor's natural parent or guardian to consent to the adoption or for a court to find that the
natural parent is unfit. In the petition, Mother alleged that Father had not communicated with
the minor child since December 15, 2005, and pursuant to section 1(D)(n) of the Adoption
Act (750 ILCS 50/1(D)(n) (West 2004)) had evidenced his intent to forego his parental
rights. The case was transferred to Wayne County and consolidated with the original
dissolution-of-marriage case. Mother filed an amended petition for adoption on March 8,
2010, again alleging the same single ground for adoption. Father subsequently filed an
amended affirmative defense raising several matters relating to conduct and incidents that
Father claimed explained his lack of communication with the minor child. All of the alleged
incidents occurred before December 15, 2005. In fact, the last incident listed in Father's
defense as creating an impediment to his communication with the minor child allegedly took
place on May 18, 2005. No allegation was made as to why Father's communications
continued to take place up to December 15, 2005, however. Mother responded by filing a
motion to strike the amended affirmative defense, arguing that any events occurring prior to
December 15, 2005, were not relevant and did not constitute a defense. The trial court chose
not to strike Father's defense but ruled that matters which may have occurred prior to the last
date of communication alleged, December 15, 2005, would not be admissible at the fitness
prong of the adoption proceeding. Mother filed a motion for clarification or in the alternative
to certify a question pursuant to Supreme Court Rule 308. In a further ruling, the trial court
did clarify that Father's evidence could be considered at the second prong of the hearing on
the issue of best interests of the child. A motion was then filed by Father to certify for appeal
the same question as had been posed by Mother. The court entered the order without
2
objection, granting the motion and certifying the question both parties raised. The question
certified, as posed by the parties, is: "In relation to determining parental unfitness pursuant
to 750 ILCS 50/1(D)(n) must any act which [Father] claims to have deprived him of the
ability to visit or communicate arise after the twelve month is alleged to have begun." The
trial court answered the certified question in the affirmative by determining that acts which
may constitute a defense for the fitness portion of the hearing must have taken place during
the 12-month period in which no communication took place, commencing with the last date
of communication. We conclude that the trial court's ruling is correct.
¶4
Given that this appeal involves only a legal question and interpretation of a statute,
the standard of review is de novo. In re C.N., 196 Ill. 2d 181, 208, 752 N.E.2d 1030, 1046
(2001). We therefore turn our attention to the language of the Adoption Act, in particular
to section 1(D)(n) (750 ILCS 50/1(D)(n) (West 2004)).
¶5
Termination of parental rights is a two-stage process. In re Adoption of Syck, 138 Ill.
2d 255, 276, 562 N.E.2d 174, 183-84 (1990). At the first stage "fitness hearing," the
petitioning parent must prove that the respondent parent is "unfit" by clear and convincing
evidence. The focus is solely upon the conduct of the parent at this point. If the petitioning
parent proves unfitness by clear and convincing evidence, then the case proceeds to a second
stage "best-interests hearing" at which the petitioning parent must prove by a preponderance
of the evidence that it is in the best interests of the minor child that the parental rights of the
respondent parent be terminated. In re Adoption of Syck, 138 Ill. 2d at 276-77, 562 N.E.2d
at 183-84; see also In re D.T., 212 Ill. 2d 347, 365-66, 818 N.E.2d 1214, 1227-28 (2004).
At the best-interests hearing, the focus shifts from the respondent parent to the child, and the
issue becomes whether, in light of the child's needs and best interests, the respondent's
parental rights should be terminated. In re D.T., 212 Ill. 2d at 364, 818 N.E.2d at 1227.
Because the focus of the two hearings is different, and each has differing purposes, evidence
3
that is admissible at one hearing may not be admissible at the other. See In re D.L., 191 Ill.
2d 1, 10-13, 727 N.E.2d 990, 994-96 (2000) (only evidence of parent's conduct in 12 months
following adjudication of neglect could be introduced at fitness hearing, but at best-interests
hearing, parent could then introduce evidence of parent's conduct occurring outside
applicable 12-month period).
¶6
Section 1(D)(n) of the Adoption Act provides that a parent evidences his intent to
forego parental rights by failing to visit or communicate with a child for a period of 12
months. The language of the statute specifically states that a parent evidences an intent to
forego his or her parental rights, whether or not the child is a ward of the court:
"(1) as manifested by his or her failure for a period of 12 months: (i) to visit the child,
(ii) to communicate with the child or agency, although able to do so and not prevented
from doing so by an agency or by court order, or (iii) to maintain contact with or plan
for the future of the child, although physically able to do so ***." 750 ILCS
50/1(D)(n) (West 2004).
Section 1(D)(n) further provides:
"In the absence of evidence to the contrary, the ability to visit, communicate, maintain
contact, pay expenses and plan for the future shall be presumed. The subjective intent
of the parent, whether expressed or otherwise, unsupported by evidence of the
foregoing parental acts manifesting that intent, shall not preclude a determination that
the parent has intended to forgo his or her parental rights." 750 ILCS 50/1(D)(n)
(West 2004).
The language clearly establishes a 12-month period for a parent failing to communicate with
or keep in contact with the child. The 12-month line of demarcation begins with the date of
the last visit or communication between the parent and the child. It is the same type of line
of demarcation as found in subsection 1(D)(m) (750 ILCS 50/1(D)(m) (West 2004)), with
4
the former 12-month period (amended in 1997 to 9 months) beginning on the date of
adjudication of neglect. Both subsections set forth a time frame within which a parent must
perform one or more activities to avoid a finding of unfitness. Our Illinois Supreme Court
declared in In re D.L., a case arising under the Juvenile Court Act of 1987 interpreting the
earlier subsection 1(D)(m), that only evidence of a parent's conduct during the 12 months
following adjudication of neglect can be introduced at the fitness hearing, but at the bestinterests hearing, the parent could then introduce evidence of any conduct occurring outside
the applicable 12-month period. In re D.L., 191 Ill. 2d at 10-13, 727 N.E.2d at 994-96.
Given that the Juvenile Court Act of 1987 (705 ILCS 405/1-1 to 7-1 (West 2004)) and the
Adoption Act are to be construed in concert with and consistent with each other (see 750
ILCS 50/2.1 (West 2004)), we agree that both subsections should be interpreted consistently.
We therefore see no reason to treat the admission of evidence with respect to subsection
1(D)(n) any differently. Again, as the Illinois Supreme Court noted in In re D.L., the varying
presence and absence of time periods in the provisions contained under section 1(D)
demonstrate that the legislature believed that, for purposes of establishing certain allegations
of unfitness, a parent's conduct in a specified period of time is relevant. In re D.L., 191 Ill.
2d at 10-11, 727 N.E.2d at 994-95. The legislature emphasized that intent by enacting
section 20a, specifically directing that the language should not be construed so as to result
in extending the time limits beyond those set forth in the Adoption Act. 750 ILCS 50/20a
(West 2004). Accordingly, we agree with the trial court's determination that any evidence
Father wished to present during the unfitness portion of the hearing explaining his reasons
for not communicating with his child for a 12-month period had to have occurred during that
12-month time frame. Any evidence occurring outside of that time period is, however,
allowable at the second-stage best-interests hearing.
¶7
For the foregoing reasons, we affirm the ruling of the circuit court of Wayne County
5
rendered in answering the certified question posed by the parties and remand this cause for
further proceedings.
¶8
Affirmed; cause remanded.
6
2012 IL App (5th) 110321
NO. 5-11-0321
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
DOUGLAS R.S.,
)
Appeal from the
)
Circuit Court of
Petitioner-Appellant,
)
Wayne County.
)
v.
)
Nos. 01-D-83 & 09-AD-2
)
JENNIFER A.S.,
)
Honorable
)
Thomas J. Foster,
Respondent-Appellee.
)
Judge, presiding.
___________________________________________________________________________________
Opinion Filed:
April 12, 2012
___________________________________________________________________________________
Justices:
Honorable James K. Donovan, P.J.
Honorable Melissa A. Chapman, J., and
Honorable Stephen L. Spomer, J.,
Concur
___________________________________________________________________________________
Attorney
Gary E. Milone, Coble & Milone, 832 West North Avenue, P.O. Box 538,
for
Flora, IL 62839
Appellant
___________________________________________________________________________________
Attorney
Morris Lane Harvey, Law Office of Morris Lane Harvey, 2029 Broadway,
for
Mt. Vernon, IL 62864
Appellee
___________________________________________________________________________________
