People v. M.L.

No. 3--09--0547
_________________________________________________________________
Filed December 30, 2009
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2009

In re I.B., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
a Minor ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) No. 08--JA--218
)
v. )
)
M.L., ) Honorable
) Chris L. Fredericksen,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________

JUSTICE HOLDRIDGE delivered the opinion of the court:
_________________________________________________________________

The trial court found the respondent father, M.L., unfit to

care for the minor, I.B., and that it was in the best interest of

the minor that the respondent's parental rights be terminated.

The respondent appeals, arguing that: (1) the trial court was

prohibited from finding him unfit because he was a minor, age 15

years old; (2) he was denied his right to procedural due process

because the State sought to find him unfit under section 1(D)(e)

of the Adoption Act (Act) (750 ILCS 50/1(D)(e) (West 2008)), and

he was not allowed the opportunity to correct the conditions that

led to the removal of the minor; and (3) the trial court's best

interest determination was against the manifest weight of the

evidence. We affirm.
 FACTS

On November 4, 2008, the State filed a juvenile petition,

alleging that the minor (born May 25, 2008) was: (1) abused; and

(2) neglected in that his environment was injurious to his

welfare. The petition alleged that the minor was abused between

July 1, 2008, and October 26, 2008, because the respondent (born

on July 26, 1993) and Stephanie, the minor's mother, inflicted

physical injuries on the minor by other than accidental means in

that: (1) the minor was at Methodist Medical Center on

October 26, 2008, and was diagnosed with bruising to a number of

areas of the body, multiple rib fractures, a fractured tibia, a

fractured fibula, and a fractured radius in the wrist; (2)

Stephanie had shaken and squeezed the minor; and (3) the

respondent had bitten the minor on the cheek, shaken and squeezed

the minor, and lifted the minor in the air by the minor's ankles.

The petition alleged that the minor was living in an

environment injurious to his welfare because: (1) of the

allegations of abuse; (2) the respondent and Stephanie attempted

to leave the hospital with the minor after bruises were found on

the minor but were stopped by security; (3) the respondent and

Stephanie initially told hospital staff and the police that the

minor's injuries were caused by the minor hitting himself in the

face or sleeping on a bottle, which appeared unlikely based on

the minor's age; (4) the respondent and Stephanie repeatedly lied

to the police as to the cause of the minor's injuries; (5)

Stephanie had been aware of the respondent's abusive actions but

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had not taken action to protect the minor; (6) Stephanie had been

previously indicated for inadequate supervision of her aunt's

children on April 17, 2008, by the Department of Children and

Family Services (DCFS); and (7) the minor, the respondent, and

Stephanie lived with the minor's maternal grandmother, who had a

long history with DCFS and the juvenile court. Pursuant to a

court order, the minor was placed in temporary shelter care.

On November 25, 2008, the State filed a petition for

termination of parental rights. The petition alleged that the

respondent was unfit because he committed extreme or repeated

cruelty to the minor in that: (1) he squeezed the minor by the

ribs, held the minor upside down by his ankles, bit the minor on

the cheek, and shook the minor; and (2) the minor had been

diagnosed with bruising to a number of areas of the body,

multiple rib fractures, a fractured tibia, a fractured fibula,

and a fractured radius in the wrist. 750 ILCS 50/1(D)(e) (West

2008).

On January 15, 2009, the trial court held an adjudication

hearing on the juvenile petition and found that the allegations

had been proven by a preponderance of the evidence. The trial

court concluded that the minor was abused and neglected because

of the physical abuse inflicted by the respondent and Stephanie.

On January 29, 2009, the trial court held a dispositional

hearing. The trial court found the respondent unfit to care for

the minor and ordered that the minor be made a ward of the court.

The trial court also ordered the respondent to complete service

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plan tasks, such as a psychological examination and a domestic

violence course. The trial court denied visitation because the

respondent was in jail on charges of aggravated battery and

aggravated domestic battery related to the minor's injuries.

On March 11, 2009, the trial court held a hearing on the

petition to terminate parental rights. The State entered the

minor's medical records into evidence and presented the testimony

of the officers who investigated the allegations of abuse. The

respondent told the officers that the minor received the chest

bruises either because he had thrown the minor in the air and

caught him while they were playing or because he had hugged the

minor too hard. The respondent stated that the minor got the

bruise on his cheek because he bit the minor on the cheek when

the minor would not stop crying. The respondent admitted that he

had lifted the minor by the ankles and raised him over his head

when he was playing with the minor. After doing this a few

times, the respondent heard a popping noise and the minor began

to cry. The respondent also admitted that he shook the baby when

he cried. Stephanie told the officers that the respondent

squeezed the minor and caused a popping noise. The trial court

found that the petition had been proven by clear and convincing

evidence.

On April 9, 2009, Amber Nichols of Catholic Charities filed

a best interest hearing report. The report indicated that the

minor had been placed with his foster parents since November 25,

4
2008. The foster parents had previously adopted the minor's

uncle, who was 16 years old.

The report indicated that the foster parents had provided

for the minor's needs, as the minor appeared to be in good

health. The report also indicated that the foster parents and

the minor had bonded to one another. The foster parents

expressed a commitment to adopt the minor.

The minor had no visitation with the respondent since he was

placed in foster care because the respondent was in jail on the

pending criminal charges arising from the abuse. The report

indicated that the respondent had not had the opportunity to

complete service plan tasks because he was in custody on the

criminal charges. The respondent had not signed a release form

so that Nichols could speak with his counselor in the detention

center.

On April 23, 2009, Nichols filed an addendum to her best

interest report. The addendum indicated that the respondent had

been given a plea offer, which included a prison sentence.

On the same date, the trial court held a best interest

hearing. Nichols testified that the minor had no apparent

permanent problems and that his health appeared to be

appropriate. She also testified that the respondent could not do

his service plan tasks because they were not available in jail.

The trial court found that it was in the best interest of the

minor to terminate the respondent's parental rights.

The respondent appeals.

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 ANALYSIS

On appeal, the respondent first argues that the trial court

was prohibited from finding him unfit because he was a minor, age

15 years old. The respondent claims, without citation to

authority, that his minority imposed a legal impediment and that

the trial court should have been prevented from finding him unfit

until he reached the age of majority. In particular, he notes

that minors cannot enter into certain contracts and that they may

voluntarily sign an acknowledgment of paternity but that

paternity would not be established conclusively until six months

after the minor reaches majority. See 750 ILCS 45/5(b) (West

2008).

While we agree that a minor cannot enter into certain

contracts and that a minor's voluntary acknowledgment of

paternity does not conclusively establish paternity until the

minor reaches majority, it is unclear how this is relevant to

this case. The respondent, a minor, was found to be the father

of the child through court-ordered paternity testing, and an

acknowledgment of paternity was unnecessary.

The respondent appears to argue that he was not subject to

the Act (750 ILCS 50/0.01 et seq. (West 2008)) because of his

minority. The Act is not so limited. The Act recognizes that a

"putative father" may be a "male who is less than 18 years of

age." 750 ILCS 50/1(R) (West 2008). It also provides that a

consent to adoption or a surrender of a child is not voidable

because the parent is a minor. 750 ILCS 50/11(a) (West 2008).

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The Act applied to the respondent, and the trial court was not

prohibited from finding the respondent unfit because of his

minority. See In re M.M., 261 Ill. App. 3d 71, 634 N.E.2d 36

(1994) (affirming the trial court's finding of unfitness and

termination of parental rights where the parents were wards of

the court).

The respondent next argues that he was denied his right to

procedural due process because the State sought to find him unfit

under section 1(D)(e) of the Act (750 ILCS 50/1(D)(e) (West

2008)), and he was not allowed the opportunity to correct the

conditions that led to the removal of the minor. The respondent

cites no relevant authority to support his argument, and he does

not challenge the finding of unfitness.

Section 1(D) of the Act lists statutory grounds which

support a finding of unfitness, not a list of parental rights.

In re B.R., 282 Ill. App. 3d 665, 669 N.E.2d 347 (1996). Section

1(D)(e) provides that a parent may be found unfit for extreme or

repeated cruelty to a child. 750 ILCS 50/1(D)(e) (West 2008).

It does not entitle a parent to a specific period of time before

a trial court may find a parent unfit on this ground. See B.R.,

282 Ill. App. 3d 665, 669 N.E.2d 347 (finding that the parent was

not entitled to a period of time to correct her problems where

the ground of unfitness did not entitle her to any time to

correct the problems); In re M.M., 261 Ill. App. 3d 71, 634

N.E.2d 36 (finding that parents were not entitled to 12 months

between the adjudication of neglect and filing of the termination

7
petition to make progress toward the return of the children

because they were found unfit based on their failure to maintain

a reasonable degree of interest, concern, or responsibility as to

the children's welfare). Therefore, we find the respondent's

argument is without merit.

Lastly, the respondent argues that the trial court's best

interest determination was against the manifest weight of the

evidence.

Once the trial court has found the parent to be unfit, all

considerations must yield to the best interest of the child. In

re D.T., 212 Ill. 2d 347, 818 N.E.2d 1214 (2004). Accordingly,

at the best interest hearing, the parent's interest in

maintaining a parent-child relationship yields to the child's

interest in a stable, loving home life. D.T., 212 Ill. 2d 347,

818 N.E.2d 1214. The State must prove by a preponderance of the

evidence that termination is in the child's best interest. D.T.,

212 Ill. 2d 347, 818 N.E.2d 1214. The court's decision requires

consideration of statutory factors, including: (1) the child's

physical safety and welfare; (2) the development of the child's

identity; (3) the child's sense of attachment, including love,

security, familiarity, and continuity of relationships with

parental figures; (4) the risks related to substitute care; and

(5) the preferences of persons available to care for the child.

705 ILCS 405/1--3(4.05) (West 2008). The "trial court is not

required to explicitly mention, word-for-word," the statutory

factors in its decision. In re Janira T., 368 Ill. App. 3d 883,

8
894, 859 N.E.2d 1046, 1056 (2006). On review, the trial court's

determination will not be disturbed unless it is contrary to the

manifest weight of the evidence. In re Austin W., 214 Ill. 2d

31, 823 N.E.2d 572 (2005).

The trial court's best interest finding was not against the

manifest weight of the evidence. The evidence showed that the

minor had bonded with his foster parents, who provided for his

needs and expressed a desire to adopt him. Under the care of his

foster parents, the minor was in good health and appeared to be

developing normally. The minor had no bond with the respondent

because he was in custody for the criminal charges related to the

abuse for almost half of the minor's life, and the minor's

physical safety and welfare would be in jeopardy with the

respondent based on the prior acts of abuse. Thus, it was not

against the manifest weight of the evidence for the trial court

to terminate the respondent's parental rights.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

Affirmed.

SCHMIDT, J., concurs.

JUSTICE McDADE, specially concurring:

I concur in the judgment of the majority but write

separately to clarify that there are some circumstances where a

parent is entitled to a specific period of time to correct the

conditions that led to the removal of the minor.

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 While section 1(D)(e) of the Adoption Act (Act) (750 ILCS

50/1(D)(e) (West 2008)) does not entitle a parent to a specific

period of time before a trial court may find the parent unfit,

section 1(D)(m) (750 ILCS 50/1(D)(m) (West 2008)) of the Act

does. Section 1(D)(m)(ii) provides that a parent can be deemed

unfit where he or she has failed to “make reasonable progress

toward the return of the child to the parent within 9 months

after an adjudication of neglected or abused minor *** or

dependent minor” has been made. 750 ILCS 50/1(D)(m)(ii) (West

2008). If the State had sought a finding of unfitness on this

basis, section (1)(D)(m)(ii) would have guaranteed respondent 9

months after I.B. was adjudicated abused and neglected to make

reasonable progress toward the return of I.B. See 750 ILCS

50/1(D)(m)(ii) (West 2008). Thus, the question of whether a

parent is entitled to a specific period of time to correct the

conditions that led to the removal of the minor is dependent upon

what prong the State seeks to establish the parent’s unfitness.

10