UNFITNESS HEARING (1ST STEP-TERMINATION)
A. Burden of Proof :
The burden of proving unfitness is upon those who have petitioned for adoption of
the child. In re Adoption of Syck, 138 Ill.2d 255, 276, 562 N.E.2d 174 (1990) The United
States Supreme Court has determined that, due to the importance of the parental
relationship, the decision to terminate parental rights must be supported by clear and
convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982); In re
Adoption of Syck, 138 Ill.2d 255, 276, 562 N.E.2d 174 (1990) A finding of parental
unfitness must be supported by clear and convincing evidence. 750 ILCS 50/8(a)(1); In re
Katrina, 364 Ill. App. 3d 834, 842, 847 N.E.2d 586 (2006); Paul v. Steele, 101 Ill.2d 345,
352, 461 N.E.2d 983 (1984); In re F.S., 322 Ill. App. 3d 486, 749 N.E.2d 1033 (1st Dist.
2001) (determining that because State failed to prove by clear and convincing evidence
that mother failed to make reasonable efforts and reasonable progress towards correction
of conditions that led to removal of child within nine months of the neglect adjudication,
trial court's finding of unfitness was against the manifest weight of the evidence); In re
C.M., 305 Ill. App. 3d 154, 711 N.E.2d 809 (4th Dist. 1999) (same); In re Dixon, 81 Ill.
App. 3d 493, 401 N.E.2d 591 (3rd Dist. 1980) Accordingly, if the State's evidence is not
clear and convincing, it cannot withstand review on appeal. See In re D.T., 338 Ill. App.
3d at 155, 788 N.E.2d 133 (1st Dist. 2003) A hearing on a petition to terminate must be
based solely upon the evidence presented during the hearing. In re H.C., 305 Ill. App. 3d
869, 713 N.E.2d 784 (4th Dist. 1999) Termination of an eligible Native American’s
parental rights requires proof beyond a reasonable doubt pursuant to the Indian Child
Welfare Act of 1978. 25 U.S.C. §1912(f)
Courts have reached different conclusions concerning the meaning of “clear and
convincing evidence.” For example, in P.A. Bergner & Company of Illinois v. Lloyds
Jewelers, Inc., 130 Ill. App. 3d 987, 474 N.E.2d 1256 (3rd Dist. 1984) rev’d other
grounds 112 Ill.2d 196, 492 N.E.2d 1288 (1986), the Court noted that “courts have not
yet settled on a single definition of clear and convincing evidence. For example, clear and
convincing evidence has been variously defined as; “evidence which leaves the mind well
satisfied of the truth of a proposition" citing Hotze v. Schlanser , 410 Ill. 265, 102 N.E.2d
131 (1951); evidence which "strikes all minds alike as being unquestionable" P.A.
Bergner & Company of Illinois v. Lloyds Jewelers, Inc., 130 Ill. App. 3d 987, 474 N.E.2d
1256 (3rd Dist. 1984) rev’d other grounds 112 Ill.2d 196, 492 N.E.2d 1288 (1986) citing
Lines v. Willey, 253 Ill. 440, 97 N.E. 843 (1912); evidence which "leads to but one
conclusion" Johnson v. Johnson, 1 Ill.2d 319, 115 N.E.2d 617 (1953); "more than a
preponderance while not quite approaching the degree of proof necessary to convict a
person of a criminal offense" Estate of Ragen, 79 Ill. App. 3d 8, 398 N.E.2d 198 (1st
Dist.1979) There are also a number of cases which define clear and convincing evidence
as proof which leaves no reasonable doubt in the mind of the trier of fact. Galapeaux v.
Orviller, 4 Ill.2d 442, 123 N.E.2d 321 (1954); In Interest of Drescher, 91 Ill. App. 3d 658,
415 N.E.2d 636 (1st Dist.1980); In Interest of Jones, 34 Ill. App. 3d 603, 340 N.E.2d 269
(1st Dist. 1975) Although stated in terms of reasonable doubt, clear and convincing
evidence is considered to be more than a preponderance while not quite approaching the
degree of proof necessary to convict a person of a criminal offense. Estate of Ragen, 79
Ill. App. 3d 8, 14, 398 N.E.2d 198 (1st Dist. 1979); In re Timothy H., 301 Ill. App. 3d
1008, 704 N.E.2d 943 (2nd Dist. 1998) citing Bazydlo v. Volant, 164 Ill.2d 207, 213, 647
N.E.2d 273 (1995) “Clear and convincing evidence is defined, according to Illinois
Pattern Jury Instructions, Criminal, No. 4.19, as ‘that degree of proof which, considering
all the evidence in the case, produces the firm and abiding belief that it is highly probable
that the proposition on which the defendant has the burden of proof is true.’” In re
Timothy H., 301 Ill. App. 3d 1008, 704 N.E.2d 943 (2nd Dist. 1998) citing Illinois Pattern
Jury Instructions, Criminal, No. 4.19 (3d ed. Supp.1996) Mere suspicion does not rise to
the level of clear and convincing evidence. In re J.J., 316 Ill. App. 3d 817, 737 N.E.2d
1080 (3rd Dist. 2000) Because wardship proceedings and termination proceedings have
different standards of proof, it is better practice to not have consolidated hearings but to
bifurcate them although it is not necessarily reversible error to do so. In R.G., 165 Ill.
App. 3d 112, 518 N.E.2d 691 (2nd Dist. 1988)
A higher standard of proof is required to remove an Indian child from his or her
parents or Indian custodian or to terminate an Indian parent’s parental rights. 25 USC
§1912(f) The ICWA provides:
“No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.” 25 USC §1912(f)
Thus, the ICWA provides that a court may order an involuntary termination of
parental rights only if it determines, based on evidence beyond a reasonable doubt,
including the testimony of qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional or physical
damage to the child. 25 USC §1912(f).
The ICWA also provides that: “In any case where State or Federal law applicable
to a child custody proceeding under State or Federal law provides a higher standard of
protection to the rights of the parent or Indian custodian of an Indian child than the rights
provided under this subchapter, the State or Federal court shall apply the State or Federal
standard.” 25 USC §1921
B. Rule(s) of Evidence :
The rules of evidence, as modified by the Juvenile Court Act of 1987, apply in
proceedings for the termination of parental rights. In re J.G., 298 Ill. App. 3d at 629, 699
N.E.2d at 175 (4th Dist. 1998); In re M.F., 304 Ill. App. 3d 236, 710 N.E.2d 519, 523 (5th
Dist. 1999) citing In re M.S., 210 Ill. App. 3d 1085, 1095, 569 N.E.2d 1282 (2nd Dist.
1991)
Section 20 of the Adoption Act [750 ILCS 50/20] provides in pertinent part as
follows:
“Practice.
The provisions of the Civil Practice Law and all existing and future amendments
of that Law and the Supreme Court Rules now or hereafter adopted in relation to
that Law shall apply to all adoption proceedings except as otherwise specifically
provided in this Act.
Proceedings under this Act shall receive priority over other civil cases in being set
for hearing.
No matters not germane to the distinctive purpose of a proceeding under this Act
shall be introduced by joinder, counterclaim or otherwise.
* * *”
Also, §2.1 of the Adoption Act provides that it shall be construed in concert with
the Juvenile Court Act of 1987 and other child related statutes. 750 ILCS 50/2.1 This has
been deemed by one court to mean that the rules of evidence under the JCA are
incorporated into the Adoption Act. In re Yasmine P., 767 N.E.2d 867, 328 Ill. App. 3d
1005 (3rd Dist. 2002) Other Illinois courts have held that the rules of evidence to be
applied in civil cases also apply to parental rights termination proceedings. In re J.B., 346
Ill. App. 3d 77, 803 N.E.2d 997 (1st Dist. 2004) Due process of law required a trial court
to determine whether a factual basis existed for an allegation that a parent was unfit,
before a court accepts a parent’s admission of unfitness. In re M.H., 196 Ill. 2d 356, 751
N.E.2d 1134 (2001) see also In re A.L., 2012 IL App (2d) 110992, 969 N.E.2d 531 (2nd
Dist. 2012)
The petitioner must specify the nine-month period it intends to rely on in prosecuting
the charge of failure to make reasonable progress not later than three weeks before discovery
cutoff. 750 ILCS 50/1(D)(m)(iii); In re S.L., 2012 Il App. (5th) 120271, 980 N.E.2d 796 (5th
Dist. 2012) but see In re A.L., 409 Ill. App. 3d 492, 949 N.E.2d 1123 (4th Dist. 2011) The
Petitioner cannot rely on a parent’s waiver of the issue to rectify the failure to specify the
nine-month time period. In re S.L., 2012 Il App. (5th) 120271, 980 N.E.2d 796 (5th Dist.
2012) The nine month period in statute applies to reasonable
progress issues. In re D.L., 191 Ill.2d 1, 10, 727 N.E.2d 990, 994 (2000) The trial court
may not consider conduct outside the statutorily prescribed time periods for each ground
of parental unfitness. In re D.F., 317 Ill. App. 3d 461, 465, 740 N.E.2d 60 (2000) (Court
should not have considered conduct that occurred before the adjudicatory hearing and
before the trial court’s order making DCFS the custodian of the child); In re J.D., 314 Ill.
App. 3d 1109, 734 N.E.2d 93 (2000); In re R.L., 352 Ill. App. 3d 985, 817 N.E.2d 954
(1st Dist. 2004) Court can consider evidence of parent’s conduct after termination petition
filed where nine month period was selected including subsequent period. In re A.J., 323
Ill. App. 3d 607, 753 N.E.2d 551 (3rd Dist. 2001)
It goes without saying that a trial court’s decision regarding a parent’s fitness
should be based only on evidence properly admitted at the fitness hearing. In re J.J., 316
Ill. App. 3d 817, 737 N.E.2d 1080 (3rd Dist. 2000) citing In re J.G., 298 Ill. App. 3d 617,
699 N.E.2d 167 (1998) and In re L.L.S., 218 Ill. App. 3d 444, 577 N.E.2d 1375 (4th Dist.
1991) Under certain circumstances, parental rights may not be terminated when all the
evidence is hearsay. In re M.F., 304 Ill. App. 3d 236, 710 N.E.2d 519 (5th Dist. 1999)
Also, the court may not consider the child’s best interests when ruling on the issue of
parental unfitness. In re Doe, 159 Ill.2d 347, 638 N.E.2d 181 (1994); In re Burton, 43 Ill.
App. 3d 294, 356 N.E.2d 1279 (5th Dist. 1976)
Lack of clarity in record as to what evidence the circuit court considered and the
time period/frame within which such evidence occurred necessitated remand in
proceeding to terminate parental rights. In re E.B., 313 Ill.App.3d 672, 730 N.E.2d 617
(4th Dist. 2000)
C. Admissible Evidence :
Unless hearsay falls within a recognized exception, it is inadmissible. In re M.F.,
304 Ill. App. 3d 236, 710 N.E.2d 519, 523 (5th Dist. 1999) citing In re A.J., 296 Ill. App.
3d 903, 916, 695 N.E.2d 551 (2nd Dist. 1998) (Social worker’s unsubstantiated
allegations that man with whom mother resided had a history of abuse and criminality
constituted inadmissible hearsay). It has been recognized that hearsay statements have
been excluded in proceedings to terminate parental rights. See In re A.J., 296 Ill. App. 3d
903, 916, 695 N.E.2d 551, 560 (1998) (reversing judgment of circuit court which had
allowed admission of hearsay of caseworkers that respondent had positive drug tests).
Thus, except as to what may be allowed under JCA, hearsay evidence is inadmissible
during unfitness stage of termination proceeding. In re J.B., 346 Ill. App. 3d 77, 803
N.E.2d 997 (1st Dist. 2004) (Statements made to caseworker by parents excluded)
However, hearsay exceptions contained in section 2-18(4)(a) of the JCA would apply
equally, whether suit to terminate parental rights is initiated under the JCA or the
Adoption Act. In re Yasmine P., 328 Ill. App. 3d 1005, 767 N.E.2d 867 (3rd Dist. 2002)
The admissibility of hearsay evidence under §2-18(4) in a termination or adoption
proceeding may be called into question where the plain language of the statute provides
that the record, document or statement is to relate to a minor in an abuse, neglect or
dependency proceeding. 705 ILCS 405/2-18(4) compare In re Charles W., 2014 IL App.
(1st) 131281, 6 N.E.3d 399 (1st Dist. 2014) (Section 2-18(4)(c) applies to abuse, neglect
and dependency proceedings); In re I.H., 238 Ill.2d 430, 939 N.E.2d 375 (2010)(Because
the court is not making a finding of abuse or neglect at a temporary custody hearing, §2-
18(4)(c) of the JCA does not apply to a minor’s out -of-court statement in the temporary
custody hearing) There are, of course, very different State interests at play in termination
and adoption matters as compared to a wardship proceeding.
A prior finding of unfitness does not prove per se unfitness as to another child.
Compare In re A.W., 231 Ill.2d at 105, 896 N.E.2d at 324 (2008) (affirming finding of
unfitness where respondent had been previously found unfit and failed to produce
evidence that he had taken steps to correct the conditions that led to the previous
unfitness determination); see also In re D.C., 209 Ill.2d 287, 807 N.E.2d 472, 478-80
(2004) (rejecting State's argument that "unfitness as to one child is unfitness as to all" and
holding that when deciding whether a parent is unfit under section 1(D)(m)(iii) of the
Adoption Act courts must find "clear and convincing evidence of a lack of reasonable
progress during the applicable time period with respect to each child") However,
evidence supporting a finding of unfitness as to one of a parent’s children may be
relevant and serve as a basis for a finding of unfitness as to another child. In re D.F., 201
Ill.2d 476, 777 N.E.2d 930 (2002) citing In re G.V., 292 Ill. App. 3d 301, 307, 685
N.E.2d 406 (1997) (Evidence of failure to protect child who was killed by boyfriend
could serve as basis for termination of parental rights of other child); In re S.H., 284 Ill.
App. 3d 392, 400-01, 672 N.E.2d 403 (1996) (evidence of parent’s sexual abuse of one
child may serve as basis for terminating parental rights to other children, even if prior to
second child’s birth); In re Henrly, 175 Ill. App. 3d 778, 792, 530 N.E.2d 571 (1988)
(neglect of some children prior to birth of some did to prevent finding of unfitness as to
all)
Guilty pleas are regarded as judicial admissions that are admissible, if relevant, in
proceedings to terminate parental rights. In re J.R.Y., 157 Ill. App. 3d 396, 510 N.E.2d
541 (4th Dist. 1987) citing People v. Powell, 107 Ill. App. 3d 418, 437 N.E.2d 1258
(1982) but see In re R.G., 165 Ill. App. 3d 112, 518 N.E.2d 691 (2nd Dist. 1988) (certified
copy of parent’s conviction for aggravated criminal sexual assault against son would not
have, standing alone, supported circuit court’s finding of unfitness based on depravity in
termination proceeding)
D. Rebuttal Evidence :
Notwithstanding that the State may have established a parent is depraved due to
multiple felony convictions under 750 ILCS 50/1(D) of the Adoption Act, a parent may
still present evidence showing that despite the convictions, the parent is not depraved and
has been rehabilitated. In re Shanna W., 343 Ill. App. 3d 1155, 799 N.E.2d 843 (1st Dist.
2003) citing In re J.A., 316 Ill. App. 3d 553, 562, 736 N.E.2d 678, 686 (2000) compare
In re T.S., 312 Ill. App. 3d 875, 728 N.E.2d 98 (2000)
