People v. William W. ( 1996 )


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  • 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.
    

Document Info

Docket Number: 3-96-0340

Judges: Lytton

Filed Date: 12/5/1996

Precedential Status: Precedential

Modified Date: 11/8/2024