In re Julieanna M. , 2018 IL App (1st) 172972 ( 2019 )

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Appellate Court Date: 2019.07.22
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In re Julieanna M., 2018 IL App (1st) 172972
Appellate Court In re JULIEANNA M., STEVEN M., MICHAEL M., and JAX M.,
Caption Minors (The People of the State of Illinois, Petitioner-Appellee, v.
Iris M., Respondent-Appellant (Julieanna M., Steven M., Michael M.,
and Jax M., Respondents-Appellees)).
District & No. First District, First Division
Docket No. 1-17-2972
Filed December 10, 2018
Decision Under Appeal from the Circuit Court of Cook County, Nos. 13-JA-1062,
Review 13-JA-1063, 13-JA-1064, 13-JA-1065; the Hon. Nicholas
Geanopoulos, Judge, presiding.
Judgment Affirmed.
Counsel on Amy P. Campanelli, Public Defender, of Chicago (Maurice Sykes,
Appeal Assistant Public Defender, of counsel), for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Gina DiVito, Assistant State’s Attorneys, of counsel), for the
People.
Charles P. Golbert, Acting Public Guardian, of Chicago (Kass A.
Plain and Christopher Williams, of counsel), for respondents-
appellees.
Panel JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Walker concurred in the judgment
and opinion.
OPINION
¶1 This appeal arises out of a case brought by the State to terminate the parental rights of the
respondent mother, Iris M., and the father, Brian M., and concerns the parental rights of their
four minor children. The Cook County trial court terminated both parents’ parental rights.
Before us now is the respondent mother’s appeal. The father also appealed the termination
order, and we affirmed following counsel’s withdrawal from representation under Anders v.
California, 386 U.S. 738 (1967). In re J.M., No. 1-17-2662 (June 25, 2018) (unpublished
summary order under Illinois Supreme Court Rule 23(c)). We affirm the trial court’s judgment
terminating respondent’s parental rights and ordering that the minor children be placed for
adoption.
¶2 I. BACKGROUND
¶3 In their briefs in this appeal, the parties have provided lengthy recitations of the facts that
led to the respondent mother’s parental rights being terminated. However, respondent does not
challenge the trial court’s finding that she is an unfit parent or that the evidence supported the
termination of her parental rights under the applicable statutory scheme. Respondent’s only
asserted basis for relief on appeal is that section 2-28 of the Juvenile Court Act of 1987 (705
ILCS 405/2-28 (West 2016)) is unconstitutional. Therefore, the majority of the facts recited by
the parties are not pertinent to this appeal, and we will just address the relevant facts where
appropriate—the facts are undisputed. Respondent did not file a reply brief.
¶4 The Adoption Act (750 ILCS 50/0.01 et seq. (West 2016)) enumerates the grounds on
which the court may find that a person is unfit to have a child. Id. § 1(D). One of those grounds
for finding a parent to be unfit is where the parent fails to make reasonable progress toward the
return home of the child or correct the conditions that were the basis for the removal of the
child after the child has been adjudicated neglected or abused under the Juvenile Court Act. Id.
§ 1(D)(m). In this case, after a parental fitness hearing where the trial court received testimony
from several doctors and clinicians, the trial court found that respondent was unfit under the
Adoption Act because of her lifelong intellectual disability and failure to make reasonable
progress toward the minors returning home.
¶5 As Illinois law requires (In re O.S., 364 Ill. App. 3d 628, 633 (2006)), the trial court then
moved to the “best interests portion” of the termination hearing. The trial court heard from the
caseworker and from each of the children’s foster parents and, after the hearing, found that it
was in the best interests of the children that respondent’s parental rights be terminated. The
trial court entered termination orders and permanency orders for all four children. The new
permanency goal for three of the children was adoption from their then-current foster
relationships. One child, Michael, was given a final permanency goal of private guardianship
rather than adoption because the foster parents knew respondent well and wanted her to
continue to remain in Michael’s life. The parties raise no issue with regard to the private
guardianship permanency goal set for Michael.
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¶6 Article II of the Juvenile Court Act contains the laws applicable to abused, neglected, or
dependent minors. 705 ILCS 405/2-1 et seq. (West 2016). Section 2-28, which respondent
argues is unconstitutional, gives the court the authority to determine the child’s future legal
status and set permanency goals. Id. § 2-28(2). Two of the available forms of permanency are
adoption and private guardianship. See id. § 2-28(2)(D)-(E). Adoption is only an accepted
permanency goal when parental rights have already been terminated or are relinquished. Id.
§ 2-28(2)(D). Permanent private guardianship is only an accepted permanency goal when
short-term care options and adoption have already been ruled out. Id. § 2-28(2)(E). The basis
for respondent’s appeal is that the statute is unconstitutional because adoption requires the
termination of parental rights and adoption must be ruled out as an option before guardianship
can be considered as a permanency solution.
¶7 II. ANALYSIS
¶8 A. Jurisdiction and Mootness
¶9 The Public Guardian argues that we lack jurisdiction to hear respondent’s appeal or that the
issues she raises regarding the court review/permanency statute (id. § 2-28) are moot. The
State, which joined the Public Guardian’s arguments in all other respects, disagrees that the
issues are moot or that we lack jurisdiction.
¶ 10 The Public Guardian contends that, because respondent never petitioned to appeal the
January 2016 permanency goal set under section 2-28, we lack jurisdiction to address the order
and the issues raised in the appeal are now moot. Our supreme court has stated that the
“supreme court rules currently contain a provision which would allow for appeals of
permanency orders to be brought on a discretionary basis in the appellate court.” In re Curtis
B., 203 Ill. 2d 53, 61 (2002). That mechanism is Illinois Supreme Court Rule 306(a)(5) (eff.
Nov. 1, 2017), which allows a party to petition for leave to appeal orders affecting the care and
custody of minors. In re Curtis B., 203 Ill. 2d at 61. “Under Rule 306(a)(5), a party who wishes
to petition the appellate court for leave to appeal a permanency order may do so.” Id. at 63; see
also In re Alicia Z., 336 Ill. App. 3d 476, 493 (2002). So it is clear that respondent could have
petitioned to appeal the permanency goal when it was set in January 2016, but the Public
Guardian argues that she cannot appeal it now—at the conclusion of the termination hearing.
¶ 11 Respondent is challenging the constitutionality of the statute—the portion that appears to
favor adoption over private guardianship. She timely filed this appeal within 30 days after the
entry of the orders terminating her parental rights and setting the permanency goal to adoption.
Once the orders were entered terminating her parental rights and setting the final permanency
goal to adoption, the case was over, and the prior, nonfinal interlocutory rulings are appealable.
In re E.L., 152 Ill. App. 3d 25, 30 (1987). While respondent could have petitioned to appeal the
permanency orders when they were entered, she was not required to do so. And she is entitled
to appeal the constitutionality of the statutory scheme that led to her alleged deprivation at the
time that the orders in the case became final, which is now. Respondent did not need to file an
interlocutory appeal to assert her objection to the constitutionality of the statute when the issue
she raises ultimately arises from the final order. Respondent is challenging the statutory
process that favors adoption over private guardianship as a final permanency goal, and she
timely appealed from the order setting adoption as the final permanency goal. The issue is now
ripe for review.
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¶ 12 B. Whether Section 2-28 Violates a Parent’s Right to Due Process
¶ 13 Respondent argues that the statutory scheme is unconstitutional on due process grounds.
Respondent contends that section 2-28 of the Juvenile Court Act (705 ILCS 405/2-28 (West
2016)) deprives individuals of their fundamental liberty interest in the familial relationship,
where the statute has a preference for adoption over private guardianship. The statutory
scheme requires that adoption must be ruled out before private guardianship can be considered
(id. § 2-28(2)(D)), and respondent believes those priorities are misplaced—that the court
should be able to consider private guardianship without having to rule out adoption. According
to respondent, “private guardianship is less restrictive than achieving the permanency goal of
adoption” and, in this case, “achieves all of the stated goals of each party involved.”
Respondent’s position is that, in this case, even though “the parents have been determined to be
unfit it is not necessary to terminate all of their parental rights.”
¶ 14 Procedures involved in terminating parental rights must meet the requirements of the due
process clause. In re M.H., 196 Ill. 2d 356, 363 (2001). In determining what due process
requires with respect to the termination of parental rights, a court must consider (1) the private
interest affected by the official action; (2) the risk of an erroneous deprivation of the interest
through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and (3) the government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute safeguards would entail.
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). “[D]ue process, unlike some legal rules, is
not a technical conception with a fixed content unrelated to time, place and circumstances” but
is instead flexible and calls for such procedural protections as the particular situation demands.
(Internal quotation marks omitted.) Id. at 334.
¶ 15 The overarching purpose of the Juvenile Court Act is “to secure for each minor subject
[t]hereto such care and guidance, preferably in his or her own home, as will serve the safety
and moral, emotional, mental, and physical welfare of the minor and the best interests of the
community.” 705 ILCS 405/1-2 (West 2016). To do so, the Act aims to “preserve and
strengthen the minor’s family ties whenever possible, removing him or her from the custody of
his or her parents only when his or her safety or welfare or the protection of the public cannot
be adequately safeguarded without removal.” Id. When the minor is removed from his or her
own family, the Juvenile Court Act impresses on the interested parties to “secure for [the
minor] custody, care and discipline as nearly as possible equivalent to that which should be
given by his or her parents, and in cases where it should and can properly be done to place the
minor in a family home so that he or she may become a member of the family by legal adoption
or otherwise.” Id.
¶ 16 Both the United States and Illinois Constitutions protect a parent’s fundamental right in the
care, custody, and control of her children. In re M.H., 196 Ill. 2d at 362. When laws affecting
fundamental liberty interests are challenged, the laws are subject to strict scrutiny. In re D.W.,
214 Ill. 2d 289, 311 (2005). For us to uphold a law under a strict scrutiny challenge, the law
must be shown to serve a compelling government interest and employ the least restrictive
means to further the attainment of the government’s goal. Id. We review the constitutionality
of a statute de novo. Casey’s Marketing Co. v. Hamer, 2016 IL App (1st) 143485, ¶ 11.
¶ 17 There are several reasons respondent believes that private guardianship should be
considered ahead of adoption and found to be a less restrictive way to accomplish the goals of
the Juvenile Court Act and the Adoption Act. For adoption to be selected as a permanency
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goal, parental rights must be terminated, whereas no termination of parental rights is required
for guardianship. In guardianship, parents might retain a legal relationship with the child and
have other residual rights not available in adoption. Private guardianship might also allow for
the modification of rights if changes in circumstances occur, whereas adoption is final once it
is complete. In this case, pointing to the result obtained for Michael, respondent maintains that
private guardianship is an acceptable and less restrictive permanency goal for all of the
children.
¶ 18 Respondent does not challenge the sufficiency of the evidence on which the court found
her to be an unfit parent or that led the court to terminate her parental rights. Nor do we have
any indication that the trial court might have chosen private guardianship if the statute was
revised to respondent’s liking. Nonetheless, respondent’s position on appeal is simply that,
insofar as her constitutional rights are concerned, private guardianship is a less restrictive
alternative by which the State may achieve its interests than through adoption. Respondent
maintains that, even if she should not have custody of her children, she should be afforded the
opportunity to have some residual rights of parenthood that she loses through adoption.
¶ 19 Respondent’s argument has superficial appeal because private guardianship ostensibly
appears to be a less restrictive method of accomplishing the Juvenile Court Act’s goals than
adoption from the parent’s perspective. However, the statutory preference for adoption does
not violate a parent’s right to due process because the only way to achieve the State’s
compelling imperative for stability for neglected and dependent children when the parent
cannot now or in the future care for the child is to allow the child to be adopted into a safe and
stable home. When the parent cannot care for the child and it is clear that the child cannot
return home, the constitutional rights of the parents must be viewed in light of the
constitutional rights of the children. See In re D.T., 212 Ill. 2d 347, 364 (2004).
¶ 20 It is not and cannot be disputed that “the state, as parens patriae, has a compelling interest
in protecting the welfare of children.” In re R.C., 195 Ill. 2d 291, 305 (2001). Our supreme
court has held that the State’s interest in protecting minors can be sufficiently compelling to
satisfy strict due process scrutiny when the child is being raised by a parent who is, and will
remain for an unreasonable time, unable to give the child proper care. Id. at 305-06. That is the
situation in this case. Having established that there is a compelling government interest at
stake, we move to whether the statute uses the least restrictive means for achieving its
objective.
¶ 21 Adoption is given preference over guardianship when the natural parent cannot give proper
care because adoption better insures the child’s stability and permanency in a safe, comfortable
environment. In re B’yata I., 2014 IL App (2d) 130558-B, ¶ 42. The state must act to meet the
child’s needs for safety and moral, emotional, mental, and physical welfare while also
promoting the best interests of the community. 705 ILCS 405/1-2(1) (West 2016). Ultimately,
the paramount consideration is the child’s best interests. In re Ashley K., 212 Ill. App. 3d 849,
879 (1991). In this case, there was a sincere need for the children to have some permanency.
The family had been unstable and engaged with Department of Children and Family Services
for most of the last 10 years or more.
¶ 22 The General Assembly has made a determination that private guardianship is an inferior
option for children who cannot be returned to their parents. While the statutes default to the
rights of the natural parents—removing a child from the custody of the parents only when
necessary—the goals shift when a parent is not able to care for the child. See In re D.T., 212 Ill.
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2d at 364. Once a parent is found to be unfit, “the parent’s interest in maintaining the
parent-child relationship must yield to the child’s interest in a stable, loving home life.” Id.
Adoption is the only effective way to effectuate that stability, and it enables the child to grow
up in a new, permanent family, advancing the child’s best interests.
¶ 23 Private guardianship does not accomplish the same goals. Private guardianship is not
permanent or stable as it is revocable and subjects the children to uncertainty with regard to
their custodial situation. In re P.F., 265 Ill. App. 3d 1092, 1105-06 (1994); In re Tr. O., 362 Ill.
App. 3d 860, 864 (2005). In many cases, a natural parent having residual rights is actually
harmful to the children, and that concern outweighs the parent’s desire to have rights to the
child. See, e.g., In re D.T., 212 Ill. 2d at 368 (the child spent 10 years in legal limbo with
uncertainty about who to call “ ‘mom’ ” and where he could call “ ‘home’ ”); In re Tajannah
O., 2014 IL App (1st) 133119, ¶ 29 (despite the mother’s efforts, the best result was to sever
that parent-child relationship for the child’s imperative need for permanency and stability). For
example, in this case, if private guardianship without a termination of parental rights was
ordered, there were genuine concerns laid bare in the record, in particular about the father, that
an attempt would be made to reconnect with the children that would harm their welfare. It is a
realistic risk and concern in any case of private guardianship. Stability is not ensured and is, in
fact, impeded.
¶ 24 Moreover, private guardianship is in absolutely no way precluded. If the trial court finds
that it is in the best interests of the child that parental rights remain intact, it may rule out
adoption and set the goal to private guardianship. There are a series of hearings and other
prophylactic measures before adoption may be ordered that guard against any potentially
erroneous deprivation and give parents every right to make their case for maintaining a legal
relationship with their child. Section 2-28 does not promote a system-wide due process
deprivation for parents of dependent children as respondent suggests; it just provides the sole
method by which the court can consider the child’s rights as truly paramount.
¶ 25 While terminating parental rights is always a serious measure, there was extensive
evidence from the foster parents in this case regarding their willingness to allow respondent
and the children to cultivate a relationship if adoption went forward. We are not only
concerned with the parent’s constitutional rights at this point. We also must protect the
statutory and constitutional rights of the child. The child has a protected liberty interest in
being raised in a “ ‘normal family home,’ ” a “ ‘loving, stable and safe home environment.’ ”
In re D.T., 212 Ill. 2d at 363. The Juvenile Court Act “establishes an elaborate and carefully
tailored scheme to effect a balance between the constitutional rights of parents and the
statutorily-created rights of children to health, safety, and protection.” In re O.S., 364 Ill. App.
3d at 638. Adoption is the only way to achieve finality—a permanent and stable situation for
the child after years of uncertainty. A preference for adoption is not unconstitutional, as it is the
means to surely carry out the compelling interest at stake and, in terms of section 2-28, it is
sufficiently narrowly tailored to pass constitutional muster.
¶ 26 III. CONCLUSION
¶ 27 Respondent’s position here is that, even though both parents were found to be unfit, “it is
not necessary to terminate all of their parental rights.” But the statute does not demand that
parental rights be terminated; it directs the trial court, in its discretion, to make that decision in
consideration of the best interests of the child. Respondent offers no developed argument that
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the trial court’s actual decision to terminate parental rights as being in the best interests of the
children was erroneous or against the manifest weight of the evidence. The trial court
terminated parental rights, based on the evidence, after hearing substantial testimony from
several witnesses.
¶ 28 The statutes at issue give the parties and the court a fair and meaningful opportunity to
address what final measures are in the best interests of the child. Section 2-28 passes
constitutional muster because adoption is the least restrictive method that the State can pursue
to resolve the array of competing interests and considerations that compose the serious,
life-altering issues that make up its compelling interest of protecting dependent children. The
statutory mechanics do not deprive those subject to it of their constitutional guarantee of due
process.
¶ 29 Accordingly, we affirm.
¶ 30 Affirmed.
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