In re. D. H.

Annotate this Case
Fourth Division
April 9, 1998

No. 1-96-3977

In re D.H., a Minor ) APPEAL FROM THE
) CIRCUIT COURT OF
Minor-Appellant, ) COOK COUNTY.
)
THE PEOPLE OF THE STATE OF ILLINOIS, )
)
Petitioner, ) No. 94 JA 9405
)
v. )
)
ISABELLA H. and JARAMEL H., ) HONORABLE
) STEPHEN Y. BRODHAY,
Respondents-Appellees. ) JUDGE PRESIDING.


JUSTICE WOLFSON delivered the opinion of the court:
The office of the public guardian, as attorney and guardian
ad litem for the minor, D.H., appeals from an order of the
circuit court of Cook County affirming a hearing officer's
finding that a goal of long-term relative care, rather than
adoption, was proper. The public guardian contends the court
ignored the plain language of section 1(D)(m) of the Illinois
Adoption Act (750 ILCS 50/1(D)(m) (West 1994)) when it measured
the parents' progress from the time of the dispositional hearing
rather than from the adjudicatory hearing. The Public Guardian
also contends the court's decision was against the manifest
weight of the evidence and contrary to the best interest of the
child.
The State of Illinois, designating itself as an appellee in
this matter, has filed a brief arguing that progress should be
measured from the adjudicatory hearing rather than the
dispositional hearing, but the State takes no position regarding
the propriety of the court's decision entering a goal of long-
term care.
The respondents contend that whether the 12-month period
runs from the adjudicatory hearing or the dispositional hearing
is irrelevant to this proceeding since that section is used to
determine unfitness when a petition to terminate parental rights
has been filed. None was filed in this case. We affirm the
trial court.
FACTS
The respondents are the biological parents of D.H., born
February 20, 1994. On December 4, 1994, the Cook County State's
Attorney filed a petition for adjudication of wardship alleging
that D.H. was neglected due to a lack of care pursuant to section
2-3(1)(a) of the Juvenile Court Act. 705 ILCS 405/2-3(1)(a)
(West 1994). The petition alleged that the parents or another
person responsible for the child's care left the child alone in a
situation that required judgment or actions that were beyond the
child's level of maturity, physical condition, and/or mental
abilities.
On December 6, 1994, the court entered a temporary custody
order, removing D.H. from the parents' home and placing him in
the temporary custody of the Illinois Department of Children and
Family Services (hereinafter "DCFS"). The court found probable
cause existed to believe D.H. was neglected, and found an
immediate and urgent necessity to remove him from the parents'
custody, based upon the stipulation that his mother left D.H. and
his two-year-old sister home alone when D.H. was five months old.
On April 26, 1995, an adjudicatory hearing was held, and an
order was entered finding that D.H. was neglected because of lack
of care. The case was continued to June 19, 1995, for a
dispositional hearing. The court ordered DCFS to tender a
written supplemental social investigation to the parties two
weeks prior to that date. On June 19, 1995, although the social
worker was in court, no written report had been prepared, and the
case was continued to August 28, 1995, for a dispositional
hearing. On August 28, 1995, the social investigation report
had not been prepared, and the court reordered it. The court
also entered an order for DCFS to refer the child's mother to
parenting classes, and the case was continued to October 23,
1995
The case was again set for a dispositional hearing, but
Isabella H. made a motion for a continuance, stating that her
parenting classes were beginning that day. The court granted the
motion and continued the case to January 17, 1996. The court
also ordered a drug and alcohol assessment.
The court held a dispositional hearing on January 17, 1996,
and made the following finding: that the parents were unable for
some reason other than financial circumstances alone to care for,
protect, train, or discipline the child.
The case was set for a permanency planning hearing on March
21, 1996, but was continued because DCFS had not entered the
service plan 14 days in advance, as required by statute. Twice
thereafter the case was continued because the attorney for
Isabella H. was unable to attend.
On August 5, 1996, a permanency planning hearing pursuant to
sections 2-28 and 2-28.1 of the Juvenile Court Act (750 ILCS
405/2-28, 2-28.1 (West 1994)) was held before a hearing officer.
There is no official report of that proceeding included in the
record.
After the proceeding, the hearing officer accepted the DCFS
permanency goal of relative care and made the following findings:
(1) the child was 2« years old; (2) he was placed with his
paternal grandmother, who was interested in adoption; (3) Jaramel
H. is not involved in services, but is visiting his son; and (4)
Isabella H. completed a substance abuse evaluation and a
psychological evaluation. The evaluations recommended individual
counseling and substance abuse counseling. The hearing report
also noted that Isabella H. had two urine tests, one positive for
cocaine, and she needed to obtain verification of completion of
parenting classes and to maintain clean urine tests. The cause
was continued to January 23, 1997, for another permanency
hearing.
On September 4, 1996, the public guardian filed an objection
to the hearing officer's recommendation of long-term care as a
permanency goal. Attached to the objection were exhibits which
purportedly had been admitted at the permanency planning hearing.
The exhibits contained the parents' substance abuse evaluations
with a laboratory report dated June 28, 1996, indicating that
Jaramel H. exhibited a positive toxicology for marijuana, and a
laboratory report dated June 24, 1996, which indicated Isabella
H. tested positive for marijuana. Other portions of the exhibits
contained Isabella H.'s substance abuse evaluation dated May 3,
1996, which indicated that she had a positive toxicology for
marijuana, and her psychological evaluation. However, the report
of that proceeding is not part of the record on appeal.
Although the public guardian's objection asked that adoption
should be the permanency goal,[fn1] and the parents' rights
should be terminated, no explicit notice was given to the parents
that their rights might be terminated, and no showing of
unfitness by "clear and convincing evidence" was made. Before
the State may terminate parental rights those due process
considerations must be met, as well as the filing of a petition
explicitly alleging parental unfitness under sections 2-13 and 2-
29(2). In re P.F., 265 Ill. App. 3d 1092, 1100 (1995).
On October 18, 1996, the court heard arguments on the goal.
At the hearing, an issue arose as to whether the 12-month period
began to run from the adjudication of neglect or from the
dispositional hearing on January 17, 1996. The Illinois Adoption
Act, as a ground for finding parental unfitness, includes:
"[f]ailure by a parent to make reasonable
efforts to correct the conditions which were
the basis for the removal of the child from
such parent, or to make reasonable progress
toward the return of the child to such
parent within 12 months after an adjudication
of neglected minor *** under the Juvenile
Court Act or the Juvenile Court Act of
1987." 750 ILCS 50/1(D)(m) (West 1994).
The trial court first noted that there was no case specifically
addressing the issue of when the 12-month period began to run.
The court then commented on the procedural history of the case,
including the fact the case was continued several times, and the
court did not order parenting classes or drug and alcohol
assessments until October 23, 1995. The court stated that at the
January 17, 1996, dispositional hearing it was indicated that a
drug and alcohol assessment was needed and that parenting classes
would be completed. The case was set for permanency planning to
March 21, 1996.
The court then said that when the permanency planning
hearing was finally held, Isabella H. had completed a substance
abuse evaluation and a psychiatric evaluation which recommended
counseling and educational classes. Additionally, she had two
urine samples which tested positive for marijuana. Also, she had
been told to verify completion of parenting classes and to
maintain clean urine. The court said:
"Therefore, the Court at this time, at
least in this case, based upon the fact that
it was not the mother's fault that this
matter has to be continued almost six months
for a dispositional hearing, based upon the
fact the Court could not obtain a written
supplemental social that I am not going to
hold that period of time against the mother
considering it was not until my specific
findings on January 17, 1996, that she needed
a drug-and-alcohol assessment and that drug
rehab was necessary. I will also add that I
did not order a psychological evaluation.
That was done apparently as part of the
service plan.
Based upon that finding, the reasonable
progress or reasonable efforts are going to
be looked at from January 17th. I find it
has not been 12 months. The mother has made
some progress. Certainly not enough as of
yet and she does [not have] much time left
before her rights can be terminated. The
Court at this time is not going to find that
the goal set by DCFS and [which] is
recommended by the hearing officer is not in
the best interests of the minor and is not
[sic] an abuse of discretion."
DECISION
The public guardian contends the court erred in considering
the 12-month period to run from the date of the adjudicatory
hearing. The public guardian also contends the parents failed to
raise the issue of whether section 1(D)(m) of the Adoption Act
even applies to permanency planning hearings, and have waived
this issue.
Although the parents did not argue this point before the
trial court, "[t]he waiver rule is an admonition to the litigants
and not a limitation upon the jurisdiction of a reviewing court."
Barnett v. Zion Park District, 171 Ill. 2d 378, 389 (1996); Hunt
v. Daley, 286 Ill. App. 3d 766, 771 (1997). Whether the time
limits set in the Adoption Act apply to permanency planning
hearings under the Juvenile Court Act is an issue of statutory
construction we choose to address.
No case has specifically determined if the Adoption Act's
12-month period runs from the date of adjudication of neglect or
from the date of the dispositional hearing. However, we do not
believe the answer makes any difference in this case.
The public guardian has cited no case where section 1(D)(m)
has been applied at a permanency hearing.[fn2] While the
Adoption Act does provide for its construction "in concert with
the Juvenile Court Act" (750 ILCS 50/2.1 (West 1993)), section
1(D)(m) is not cross referenced in any of the provisions laying
out the guidelines for permanency hearings (705 ILCS 405/2-28, 2-
28.1 (West 1994)). We must assume if 12-month period specified
in the Adoption Act applied to the Juvenile Court Act, the
General Assembly would have said so.
Furthermore, section 2-28(2) states that at the permanency
hearing, the court, or hearing officer, is to "review *** whether
reasonable efforts have been made by all the parties to the
service plan to achieve that goal." (Emphasis added.) 705 ILCS
405/2-28(2) (West 1994). This section prescribes no time
limitation on reasonable efforts, and all the efforts by all the
parties are to be considered. We believe the discretion provided
at a dispositional hearing is considerably wider than the public
guardian contends. The remaining question is whether the trial
court erred in finding that the permanency goal was not an abuse
of discretion.
At the hearing held before the court on the public
guardian's objections, the court noted there was not any type of
"service plan" until October 23, 1995, and it was not until
January 17, 1996, that a drug and alcohol assessment was proposed
and that parenting classes would be completed. The court found
that since many of the continuances and failures were the fault
of the State, the parents were making progress. The goal of
long-term care was not an abuse of discretion. While the public
guardian contends this finding was against the manifest weight of
the evidence, we are unable to examine the evidence because we do
not have a transcript of the permanency hearing. Based on the
findings at the permanency hearing that can be gleaned from the
record, we cannot say that the court manifestly erred.
For the foregoing reasons the judgment of the circuit court
of Cook County is affirmed.
JUDGEMENT AFFIRMED.
CERDA, P.J. and SOUTH, J., concur.
[fn1]Under the version of the statute in effect at the time
of this permanency hearing, it appears that adoption was an
option as a permanence goal. Under the new statute, adoption
cannot be set as a permanence goal until after termination of
parental rights. See Public Act 90-28, approved June 25, 1997,
effective January 1, 1998.
[fn2]The parents contend that a finding under section
1(D)(m) of the Adoption Act is relevant only when there is a
petition for termination of parental rights. This has some
support under P.A. 90-28 which states:
"(b) the State's Attorney may file a motion to terminate parental
rights of any parent who has failed to make reasonable efforts to
correct the condition which led to the removal of the child or
reasonable progress toward the return of the child, as defined in
subsection (D)(m) of the Adoption Act or for whom any other
unfitness ground for termination of parental rights as defined in
subsection (D) of Section 1 of the Adoption Act exists."
(Emphasis added.)


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