In re B.A.

No. 3--96--0571
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 1996
_________________________________________________________________

IN RE B.A., B.A. and J.M., ) Appeal from the Circuit Court
MINORS (THE PEOPLE OF THE ) of the 9th Judicial Circuit,
STATE OF ILLINOIS), ) Fulton County, Illinois
)
Plaintiff, )
)
v. ) No. 95--J--68
)
B.A., B.A. and J.M., )
)
Defendants-Appellees, )
____________________________ )
THE ILLINOIS DEPARTMENT OF )
CORRECTIONS, ) Honorable
) Patricia A. Walton,
Intervenor-Appellant. ) Judge Presiding
_________________________________________________________________

JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________

The Illinois Department of Corrections (IDOC) brings this
interlocutory appeal from an order of the circuit court of Fulton
County and its refusal to vacate the order. The trial court
ordered IDOC to bring James Hughes, an inmate at the Pontiac
Correctional Center, to the Fulton County courthouse for visitation
with his minor daughter, J.M. The order also required IDOC to
allow J.M. to take pictures of Hughes and gave Hughes certain
privileges to telephone J.M. and his attorney.
IDOC filed a timely notice of appeal from the trial court's
order and the refusal to vacate. Initially, we note the parties
have only cited authority and legal reasoning on the single issue
of Hughes' visitation with J.M. Therefore, we will only review the
propriety of the trial court's order directing IDOC to transport
Hughes to the circuit court for visitation with J.M. We find that
all other issues that could have been argued on appeal have been
waived because the parties did not properly preserve them for
review. See Supreme Court Rule 341 (e)(7) (155 Ill. 2d R. 341
(e)(7)); Weber v. Cueto, 253 Ill. App. 3d 509, 524, 624 N.E.2d 442,
453 (1993).
On appeal, Hughes defends the trial court's visitation order
on the grounds that: (1) it is permissible under the Juvenile Court
Act of 1987 (the Act) (705 ILCS 405 et seq. (West 1994)); (2)
section 10-135 of the Code of Civil Procedure (habeas corpus ad
testificandum statute) (735 ILCS 5/10-135 (West 1994)) provides a
basis for the order; and (3) his procedural and substantive due
process rights are implicated in this case.
Following our careful review of the record and applicable law,
we reverse and vacate that portion of the trial court's order
directing IDOC to transport Hughes to the Fulton County courthouse
for visitation with his daughter.
FACTS
On October 11, 1995, the State instituted abuse and neglect
proceedings regarding J.M. and other minor children based on the
conduct of their mother and stepfather. A guardian ad litem was
appointed to represent the interests of the minor children. The
record shows that Hughes, J.M.'s biological father, had never met
his 13 year-old daughter prior to the trial court's order. Hughes
is incarcerated at the Pontiac Correctional Center as the result of
a felony conviction for threatening a public official. Hughes was
given notice of the proceedings in Fulton County, and an attorney
was appointed to represent Hughes' interests. J.M. expressed,
through the guardian ad litem, a desire to meet her biological
father.
On March 5, 1996, the trial court issued an order directing
IDOC: (1) to allow Hughes to receive telephone calls from his
attorney at various times selected by the court; (2) to allow J.M.
to photograph Hughes; (3) to bring Hughes to the Fulton County
courthouse for visitation with J.M. approximately one hour prior to
each court proceeding related to the abuse and neglect proceedings;
and (4) to allow J.M. to call Hughes once per month for 30 minutes.
IDOC intervened and sought to vacate the trial court's order.
On June 4, 1996, the court denied IDOC's request to vacate the
order. The court determined: (1) the case is controlled by the
provisions of the Act, which require that it should be "liberally
construed" to strengthen a minor's family ties whenever possible;
(2) that People v. Lego, 212 Ill. App. 3d 6, 570 N.E.2d 402 (1991)
does not provide a basis for vacating the order; and (3) a slight
modification of the telephone portion of the order was necessary to
comply with IDOC's policies.
ANALYSIS
I. The Juvenile Court Act
The trial court stated that its order was based on the Act.
Section 1-5 of the Act states: "the minor *** and his parents,
guardian, legal custodian or responsible relative who are parties
respondent have the right to be present, to be heard, to present
evidence material to the proceedings, to cross-examine witnesses,
to examine pertinent court files and records and also *** to be
represented by counsel." 705 ILCS 405/1-5 (West 1994). We note
that while Hughes is a necessary party respondent under the Act,
his presence in court is not required during the abuse and neglect
hearing. See In re C.J., 272 Ill. App. 3d 461, 465, 650 N.E.2d 290, 293 (1995). The record is clear that the abuse and neglect
hearing involves allegations against J.M.'s mother and stepfather,
not Hughes.
Hughes claims the authority for the trial court's order comes
from the language of the Act which says it is to be "liberally
construed" to "strengthen the minor's family ties." 705 ILCS
405/1-2 (West 1994). We find no merit to this argument.
IDOC is charged by the General Assembly with maintaining
programs of control, rehabilitation and employment of prisoners.
730 ILCS 5/3-2-2(a) (West 1994). IDOC has the power to assign
prisoners to any of its facilities throughout the State. 730 ILCS
5/3-2-2(b) (West 1994). Courts should not intervene in the
internal operations of the penitentiary system of this State
without specific statutory authority. People ex rel. Willis v.
Department of Corrections, 51 Ill. 2d 382, 385, 282 N.E.2d 716, 718
(1972); Lego, 212 Ill. App. 3d at 8, 570 N.E.2d at 404.
Our supreme court has cautioned against using the Act's
language as an excuse to engage in judicial legislation. In re
M.M., 156 Ill. 2d 53, 67, 619 N.E.2d 702, 710 (1993). The court
has also warned trial courts not to use the "best interests of the
child" standard as a means to impose conditions which are not
contained in the Act. In re M.M., 156 Ill. 2d at 69, 619 N.E.2d at
712. The court noted: "[w]hen a court's power to act is controlled
by statute, the court is governed by the rules of limited
jurisdiction [citation], and courts exercising jurisdiction over
such matters must proceed within the strictures of the statute."
In re M.M., 156 Ill. 2d at 66, 619 N.E.2d at 710.
We find no language in the Act or in any reported case
supporting Hughes' claim that the trial court has authority to
order the transportation of an IDOC inmate to the circuit court of
Fulton County for visitation with his daughter.
II. The habeas corpus ad testificandum statute
The proper procedure for bringing a prisoner before the
circuit court is the habeas corpus ad testificandum statute.
People v. Collins, 249 Ill. App. 3d 924, 927, 619 N.E.2d 871, 874
(1993). The statute provides:
"The several courts having authority to grant
relief by habeas corpus, may enter orders,
when necessary, to bring before them any
prisoner to testify, or to be surrendered in
discharge of bail, or for trial in a criminal
charge lawfully pending in the same court or
to testify in a criminal proceeding in another
state." 735 ILCS 5/10-135 (West 1994).
In the case before us, the habeas corpus ad testificandum
statute does not support the trial court's order. Moreover, there
is absolutely no mention in the trial court's order of the habeas
corpus ad testificandum statute. In addition, Hughes was not
brought to the circuit court: (1) to testify; (2) for surrender in
discharge of bail; (3) for trial in a pending criminal charge; or
(4) to testify in a criminal proceeding in another state. Because
none of the statutory conditions apply, we find no authority in the
habeas corpus ad testificandum statute to support the trial court's
order. Lego, 212 Ill. App. 3d at 8, 570 N.E.2d at 404 (1991).
III. Procedural Due Process
Next, Hughes argues that his procedural due process rights
require his presence in the circuit court to secure the visitation
privileges granted by the trial court's order. Again, we disagree.
It is axiomatic that lawful incarceration necessarily deprives
an individual of many of the rights and privileges which are
available to an ordinary citizen. Ivey v. Harney, 47 F.3d 181, 186
(7th Cir. 1995); In re C.J., 272 Ill. App. 3d at 464, 650 N.E.2d at
293. We agree with Hughes that the law is well settled that a
parent's interest in maintaining a relationship with his child is
a fundamental liberty interest protected by the due process clause
of the fourteenth amendment. See In re C.J., 272 Ill. App. 3d at
464, 650 N.E.2d at 293. However, we find no support in this case
for Hughes' claim that his procedural due process rights have been
violated.
The circuit court proceeding involving J.M. does not seek to
terminate Hughes' parental rights. Also, the abuse and neglect
petition affects the rights of J.M.'s mother, not Hughes. The
record clearly reflects that Hughes had no involvement in J.M.'s
life prior to the State's filing of the abuse and neglect petition.
Finally, we note that none of the parties intend to call Hughes as
a witness in the abuse and neglect case. Accordingly, we find from
the record that Hughes has no fundamental liberty interest
implicated in this appeal.
Hughes is represented by appointed counsel in the abuse and
neglect proceedings. Hughes' attorney should be able to adequately
represent and protect Hughes' legal interests before the circuit
court. Furthermore, from our review, we find no statutory reason
or procedural right requiring Hughes to be physically present in
the circuit court of Fulton County. Consequently, we find no merit
to Hughes' claim that IDOC should transport him to the circuit
court because his procedural due process rights are implicated in
the abuse and neglect case. Cf. In re C.J., 272 Ill. App. 3d 461,
650 N.E.2d 290 (1995).
IV. Substantive Due Process
Finally, Hughes argues that he has a substantive due process
right to visitation with his daughter. We agree with Hughes'
statement that, under substantive due process, the right to
familial relations is a fundamental liberty interest protected by
the Illinois and United States Constitutions. People v. R.G., 131 Ill. 2d 328, 342-43, 546 N.E.2d 533, 540-41 (1989). However, the
United States Supreme Court has said in the context of a prisoner's
fundamental rights that a prison regulation need only be reasonably
related to legitimate penological objectives to pass constitutional
muster. Turner v. Safley, 482 U.S. 78, 87, 96 L. Ed. 2d 64, 77,
107 S. Ct. 2254 (1987).
As IDOC correctly points out, Hughes is free to visit J.M.
during regular visitation hours at the Pontiac Correctional Center.
Certainly, IDOC has a legitimate interest in maintaining the
security of prisoners and the safety of the citizens of Illinois,
in addition to limiting the cost of unnecessarily transporting
prisoners. Consequently, we determine that IDOC's curtailment of
Hughes' courthouse visitation is reasonably related to legitimate
penological objectives.
Finally, we would be remiss if we did not take judicial notice
of the fact that the Pontiac Correctional Center is a maximum
security facility currently on lockdown. Hughes was lawfully
convicted of a felony punishable by imprisonment and IDOC assigned
him to Pontiac. It is clearly within the sound discretion of IDOC
to determine whether Hughes poses a security risk, and to restrict
his visitation rights to the Pontiac Correctional Center.
In sum, we find no violation of Hughes' substantive due
process rights and agree with IDOC that the trial court's order is
"inconsistent with imprisonment itself [and] incompatible with the
objectives of incarceration." Hudson v. Palmer, 468 U.S. 517, 523,
82 L. Ed. 2d 393, 401, 104 S. Ct. 3194, 3198 (1984).
CONCLUSION
For the reasons stated, we find the trial court's order has no
support in the Act, the habeas corpus ad testificandum statute or
the constitutional requirements of procedural and substantive due
process. As a consequence, we find the trial court had no
authority to enter that portion of the order requiring IDOC to
transport Hughes to the Fulton County courthouse to facilitate
visitation with his daughter.
Accordingly, we reverse and vacate the order of the circuit
court of Fulton County.
Reversed and vacated.
SLATER and LYTTON, JJ., concur.