BEST INTEREST HEARING (2ND STEP-TERMINATION)

[750 ILCS 50/15.1(b)]

A. Burden of Proof :

At the best interest stage of termination, the State is required to prove by a

preponderance of the evidence that it is in the child's best interest to terminate parental

rights. In re R.L., 352 Ill. App. 3d at 1001, 817 N.E.2d 954 (1st Dist. 2004) citing In re

D.T., 338 Ill. App. 3d 133, 154, 788 N.E.2d 133 (2003), aff'd, 212 Ill. 2d 347, 366, 818

N.E.2d 1214, 1228 (2004) see also In re M.F., 326 Ill. App. 3d 1110, 762 N.E.2d 701 (4th

Dist. 2002)

"By a preponderance of the evidence is meant the greater weight of the evidence,

not necessarily in numbers of witnesses, but in merit and worth that which has more

evidence for it than against it is said to be proven by a preponderance. Preponderance of

the evidence is sufficient if it inclines an impartial and reasonable mind to one side rather

than the other. New York Life Insurance Co. v. Jennings/Williams v. City of Atlanta, 61

Ga. [App.] 557, 6 S.E.2d 431 (1939)" (Moss-American, Inc. v. Fair Employment

Practices Com. (1974), 22 Ill. App. 3d 248, 259, 317 N.E.2d 343) "A proposition proved

by a preponderance of the evidence is one that has been found to be more probably true

than not. (See generally Illinois Pattern Jury Instructions, Civil Nos. 21.00 and 21.01 (2d

ed. 1971).)" (In re Estate of Ragen, 79 Ill. App. 3d 8, 13, 398 N.E.2d 198 (1979))

Removal of an Indian child from his or her family must be based on competent

testimony from one or more experts who are qualified to speak specifically to the issue of

whether continued custody by the child’s parents or Indian custodian is likely to result in

serious physical or emotional damage to the child. See Guidelines for State Courts; Indian

Child Custody Proceedings, 44 Fed Reg. 67584 (Nov. 26, 1979), §D.4(a);

B. Rule(s) of Evidence :

The best interest hearing is subject to the same relaxed standard regarding the

admission of evidence as those rules of evidence in the dispositional hearing in a

wardship proceeding. In re Jay H., 395 Ill. App. 3d 1063, 918 N.E.2d 284 (4th Dist. 2009)

In making this determination, the Court is required to consider the factors set forth in

section 1-3 of the Juvenile Court Act. 705 ILCS 405/1-3(4.05); In re Dominique W., 347

Ill. App. 3d 557, 568-69, 808 N.E.2d 21 (1st Dist. 2004); In re R.L., 352 Ill. App. 3d 985,

817 N.E.2d 954 (1st Dist. 2004)

C. Admissible Evidence :

At the best interest hearing, all evidence helpful in the trial court’s judgment in

determining the questions before the court may be admitted and may be relied upon to the

extent of its probative value, even though that evidence would not be admissible in a

proceeding where the formal rules of evidence applied. In re Jay H., 395 Ill. App. 3d

1063, 918 N.E.2d 284 (4th Dist. 2009) citing 705 ILCS 405/2-22(1) All relevant evidence

that would be helpful to the judge in making the best-interest decision is

admissible. In re Jay H., 395 Ill. App. 3d 1063, 918 N.E.2d 284 (4th Dist. 2009) (e.g.

criminal history, documented intoxication by mother) but see In re A.W. Jr., 231 Ill.2d

241, 897 N.E.2d 733 (2008)(Son barred from testifying at best interest hearing)

The best interest factors to be considered by the court are set out in §1-3(4.05) of

the JCA as follows:

“(4.05) Whenever a "best interest" determination is required, the following factors

shall be considered in the context of the child's age and developmental needs:

(a) the physical safety and welfare of the child, including food, shelter, health, and

clothing;

(b) the development of the child's identity;

(d) the child's sense of attachments, including:

(i) where the child actually feels love, attachment, and a sense of being valued (as

opposed to where adults believe the child should feel such love, attachment, and a

sense of being valued);

(ii) the child's sense of security;

(iii) the child's sense of familiarity;

(iv) continuity of affection for the child;

(v) the least disruptive placement alternative for the child;

(e) the child's wishes and long-term goals;

(f) the child's community ties, including church, school, and friends;

(g) the child's need for permanence which includes the child's need for stability

and continuity of relationships with parent figures and with siblings and other

relatives;

(h) the uniqueness of every family and child;

(i) the risks attendant to entering and being in substitute care; and

(j) the preferences of the persons available to care for the child.” 705 ILCS 405/1-

3(4.05)

Evidence relating to the best interests factors set forth under §15.1 of the

Adoption Act would be as follows:.

“***

(b) Such guardian shall give preference and first consideration to that application

over all other applications for adoption of the child but the guardian's final

decision shall be based on the welfare and best interest of the child. In arriving at

this decision, the guardian shall consider all relevant factors including but not

limited to:

(1) the wishes of the child;

(2) the interaction and interrelationship of the child with the applicant to adopt the

child;

(3) the child's need for stability and continuity of relationship with parent figures;

(4) the wishes of the child's parent as expressed in writing prior to that parent's

execution of a consent or surrender for adoption;

(5) the child's adjustment to his present home, school and community;

(6) the mental and physical health of all individuals involved;

(7) the family ties between the child and the applicant to adopt the child and the

value of preserving family ties between the child and the child's relatives,

including siblings;

(8) the background, age and living arrangements of the applicant to adopt the

child;

(9) the criminal background check report presented to the court as part of the

investigation required under Section 6 of this Act.

sole discretion of the court, which shall base its decision on the welfare and best

interest of the child. In arriving at this decision, the court shall consider all

relevant factors including but not limited to the factors in subsection (b). . .”

(Emphasis added) 750 ILCS 15.1(b-c)

Parental behavior following an adjudication of abuse or neglect is potentially

relevant and admissible at a best interest hearing relating to the termination of parental

rights. See generally In re S.B., 348 Ill. App. 3d 61, 808 N.E.2d 1094 (1st Dist. 2004)

Evidence that a parent substantially completed offered services, or otherwise refrained

from objectionable conduct following the removal of the child is appropriately

considered at the second stage of the termination proceeding and Dispositional hearing.

In re Kenneth D., 364 Ill. App. 3d 797, 847 N.E.2d 544 (1st Dist. 2006) citing In re C.W.,

199 Ill.2d 198, 217, 766 N.E.2d 1105, 1116 (2002) A parent possesses the right and

opportunity at a best interests hearing to present evidence of her rehabilitation and her

desire and ability to be a parent to her children. In re O.R., 2-01-1084 (2nd Dist. 2001); In

re J.B., 328 Ill. App. 3d 175, 765 N.E.2d 1093 (1st Dist. 2002) A Parenting/bonding

Assessment Report is relevant and admissible in a best interest hearing. In re C.B., 248

Ill. App. 3d 168, 618 N.E.2d 598 (1st Dist. 1993) Also, the court may consider the nature

and length of the child’s relationship with the child’s current caretaker and the effect that

a change of placement would have upon the child’s emotional and psychological well-

being. See generally In re J.L., 308 Ill. App. 3d 859, 865, 721 N.E.2d 638 (1999) Trial

court need not state each factor in its ruling, however. In re Jaron Z., 348 Ill. App. 3d

239, 810 N.E.2d 108 (1st Dist. 2004) citing McMahon v. Chicago Mercantile Exchange,

221 Ill. App. 3d 935, 950-51, 582 N.E.2d 1313 (1991); In re Marriage of Lehr, 317 Ill.

App. 3d 853, 862, 740 N.E.2d 417 (2000) Evidence that the agency or the court

undertook a course of conduct that undermined a parent’s ability to maintain a bond with

the parent’s child such as preventing visitation or placing unreasonable restrictions on

visitation is admissible at the best interest hearing. In re O.S., 364 Ill. App. 3d 628, 848

N.E.2d 130 (3d Dist. 2006)

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