In re V.S.

No. 3--96--0340
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1996

IN RE V.S., ) Appeal from the Circuit Court
) of the 13th Judicial Circuit,
a Minor ) Bureau County, Illinois
)
(THE PEOPLE OF THE STATE )
OF ILLINOIS, )
)
Petitioner-Appellee, ) No. 92--J--98
)
v. )
)
WILLIAM W., ) Honorable
) Terence M. Madsen
Respondent-Appellant). ) Judge, Presiding

________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:
________________________________________________________________

The trial court found the respondent, William W., to be an
unfit parent and terminated his parental rights. The issue on
appeal is whether the trial court improperly allowed the State to
introduce evidence of the child's best interest prior to a
finding of unfitness. For reasons that follow, we reverse.
FACTS
On September 21, 1992, William, a resident of the Department
of Corrections, consented to orders adjudicating V.S. dependent
and placing her in the custody of the Department of Children and
Family Services (DCFS) for care and services. On December 20,
1993, four months after William's release from prison, the State
filed a petition to terminate his parental rights. The petition
alleged that William was an unfit parent because he (1) abandoned
V.S.; (2) failed to maintain a reasonable degree of interest,
concern or responsibility as to V.S.'s welfare; (3) showed his
intent to forego parental rights by failing for a period of 12
months to visit V.S., although not prevented from doing so by an
agency or by court order, or to maintain contact with her or plan
for her future; and (4) failed to provide V.S. with adequate
food, clothing or shelter, although physically and financially
able (750 ILCS 50/1(D)(a),(b),(n)(1),(o) (West 1994)).
Prior to the hearing on the petition, counsel for William
moved to exclude testimony relating to William's sexual
misconduct with his three sisters. The court denied William's
motion, and the cause proceeded to a unified hearing on parental
unfitness and the best interest of the child.
Over counsel's objection, William's three sisters, Sandra
W., Catherine P. and Michelle W., each testified that William had
performed various sexual acts with them between the mid-1970's
and the early 1980's, while William and his sisters were all
children and living with their mother and stepfather. Following
their testimony, V.S.'s mother, Cindy V., testified that V.S. was
born August 28, 1988, and William had seen her only twice, once
in 1989 and once in 1991. William was subsequently incarcerated
from March 22, 1992, until August 16, 1993, for aggravated
battery and forgery.
DCFS caseworker Tru Wahlgren testified that four service
plans were mailed to William between the date of his release from
prison and the date of the hearing, only one of which was sent
before the State filed its petition to terminate parental rights.
Wahlgren admitted that it was DCFS' goal at all times to
terminate William's parental rights and not to reunite him with
V.S. She said that her records indicated that William attended
only one service plan meeting, and he did not complete the tasks
assigned in the plans. She denied telling William that the State
would terminate his parental rights no matter what he did.
In his defense, William testified that his attempts to visit
V.S., when he was not in prison, were frustrated by Cindy and
DCFS. He said that he tried several times to see the child, but
Cindy and her boyfriend refused to let him. William said Cindy
moved frequently. She did not tell him where she was living, and
at times she did not have a telephone. He said he offered to pay
child support, but Cindy would not consider it and told him that
she had given the child up for adoption. William also testified
that he attended two of the service plan meetings, but stopped
because Wahlgren told him that DCFS intended to terminate his
parental rights regardless of what he did.
Melanie Girts, William's current girlfriend, testified that
she attended a service plan meeting with William in the fall of
1994. She said that they asked Wahlgren whether the termination
proceedings would be dropped if they completed all of the tasks
in the plan, and Wahlgren replied that it would make no
difference.
At the close of all evidence, the court granted the State's
petition to terminate parental rights. In a written order, the
court stated:
"Based on the evidence taken and its
experience, the Court has made assessments as
to the true credibility and intentions of all
of the parties and has considered very
carefully the best interest of the minor and
all of those touched by this case. This
Court has determined that the Petition to
Terminate Parental Rights is well taken.
Although Mr. [W.] has espoused continuing
interest in the child, it is the Court's
finding that in reality he is unfit and has
fully refused to take the steps required of
him to develop a relationship with the child,
specifically for extended period [sic] as
required by statute he has failed to
cooperate with the Department of Children &
Family Services in virtually any way. ***
William [W.]'s parental rights *** are
ordered terminated."
DISCUSSION AND ANALYSIS
On appeal, William argues that the trial court improperly
considered the testimony of his sisters before reaching a
determination of unfitness. The State does not attempt to argue
that evidence of William's sexual conduct with his sisters was
relevant to any of the grounds of unfitness alleged in the
petition to terminate parental rights. Clearly, it was not.
Instead, the State contends that the court did not commit
reversible error because the record does not demonstrate that the
trial judge considered incompetent evidence in finding William
unfit.
Before terminating parental rights, the State must establish
unfitness by clear and convincing evidence. Perkins v.
Breitbarth, 99 Ill. App. 3d 135, 138, 424 N.E.2d 1361, 1364
(1981). A determination of unfitness may be made only upon
consideration of evidence relevant to the grounds alleged in the
State's petition. In re Adoption of Syck, 138 Ill. 2d 255, 277,
562 N.E.2d 174, 184 (1990). Evidence of the parent's past
conduct is admissible at the unfitness hearing only if relevant
to the grounds charged in the State's petition. In re Adoption
of A.S.V., 268 Ill. App. 3d 549, 557, 644 N.E.2d 500, 505-06
(1994). It is not until after a parent has been found to be
unfit that the court may consider evidence of the child's best
interests. Syck, 138 Ill. 2d 255, 277, 562 N.E.2d 174, 184.
A single hearing consolidating issues of unfitness and best
interests carries a risk of prejudice from considering evidence
irrelevant to the unfitness question before determining that
issue. See Syck, 138 Ill. 2d 255, 275-76, 562 N.E.2d 174, 183.
To ensure a proper focus, separate hearings are mandatory. In re
A.P., 277 Ill. App. 3d 592, 600, 660 N.E.2d 1006, 1012 (1996).
The trial judge may hear best interest evidence immediately after
the unfitness hearing. In re B.R., 282 Ill. App. 3d 665, 671,
669 N.E.2d 347, 352 (1996).
Separate hearings are clearly the better procedure (see In
re Dalton, 98 Ill. App. 3d 902, 424 N.E.2d 1226, 1228 (1981)),
because they avoid the possibility of prejudice to a respondent.
Therefore, unless it clearly appears that no prejudice resulted,
the conduct of a single hearing commingling the issues is
reversible error. To establish prejudice resulting from a
consolidated hearing, a respondent must show: (1) that a timely
objection was made in the trial court (In re Jackson, 243 Ill.
App. 3d 631, 656, 611 N.E.2d 1356, 1373 (1993)); (2) that there
is reason to believe that the trial judge considered incompetent
evidence in its unfitness determination (In re J.W., 187 Ill.
App. 3d 988, 998, 543 N.E.2d 974, 980 (1989)); and (3) that the
erroneous commingling of evidence of the parent's unfitness and
the child's best interests was not reversible error. In re R.G.,
165 Ill. App. 3d 112, 132, 518 N.E.2d 691, 703 (1988).
In this case, William's attorney timely objected to the
conduct of a unified hearing prior to the introduction of any
evidence of unfitness, when he moved to exclude the testimony of
William's three sisters. In response to the State's argument
that the testimony was relevant to the child's best interest,
counsel specifically stated that he was prepared to proceed only
on the issue of unfitness, not on best interests. However, the
court denied William's motion with no explanation and immediately
proceeded to hear the contested testimony.
Further, the record does not indicate that the court
understood that a finding of William's unfitness was a
prerequisite to considering V.S.'s best interest. On the
contrary, both the sequence in which the court allowed the
evidence to be presented at the hearing and the court's written
order indicate that issues of unfitness and the child's best
interest were impermissibly commingled. In addition, we note
that the court did not state that evidence of unfitness was
"clear and convincing." Accordingly, we may not rely on a
presumption that the court considered only competent evidence in
finding William unfit. See J.W., 187 Ill. App. 3d 988, 543 N.E.2d 974.
Finally, we do not find that the evidence of unfitness was
so overwhelming that any error was harmless and further
proceedings would be unnecessary. From the court's order, it
appears that the finding of unfitness was based primarily on
William's failure to cooperate with DCFS. In this regard,
Wahlgren alluded to service plans and said that William had not
completed the tasks assigned to him. However, the plans were not
introduced into evidence, and the record does not reveal what
tasks William was asked to perform before the State initiated
termination proceedings. William explained why he did not work
with the agency after his release from prison, testifying that
DCFS was not interested in his efforts to develop a relationship
with V.S. His testimony was corroborated by his girlfriend as
well as by Wahlgren's admission that DCFS's goal was always to
terminate William's parental rights, never to reunite him with
V.S. Based on the record, we cannot say that the evidence of
unfitness was so overwhelming that no prejudice resulted from the
consolidated hearing. William's failure to cooperate with DCFS
or complete its service plans might not, by itself, require a
finding of unfitness. See In re T.D., 268 Ill. App. 3d 239, 643 N.E.2d 1315 (1994). Thus, we cannot conclude that the trial
court would have found sufficient evidence of William's unfitness
without considering improperly admitted testimony of his
childhood sexual misconduct. See Perkins, 99 Ill. App. 3d 135,
424 N.E.2d 1361.
CONCLUSION
The judgment of the circuit court of Bureau County is
reversed, and the cause is remanded for a new unfitness hearing.
Reversed and remanded.
HOLDRIDGE, P.J., and McCUSKEY, J., concur.