The right of parents to the care, control, and custody of their children is a fundamental right that courts will not easily terminate.1 Nevertheless, it is sometimes necessary to terminate parental rights when children have been the victims of abuse and neglect.2 In the past few months, the Illinois Supreme Court has decided three cases in which issues relating to the termination of parental rights have been raised. Interestingly, in all three cases, the Supreme Court reviewed decisions of the Second District Appellate Court. This article will examine the Supreme Court’s resolution of the issues raised in these cases, and its efforts to draw a proper balance between the right of parents to care for their children and the need for the State to sometimes terminate parental rights.
In In re C.N.,3 the Supreme Court resolved a conflict concerning the proper interpretation of the "reasonable progress" prong of section 1(D)(m) of the Adoption Act.4 Under that section, the "[f]ailure by a parent to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or to make reasonable progress toward the return of the child to the parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under the Juvenile Court Act" constitutes a ground for a finding of parental unfitness that can result in the termination of parental rights.5 Because the disjunctive word "or" is present, section 1(D)(m) provides two independent grounds for termination of parental rights.6
The Appellate Court had issued conflicting decisions regarding the proper benchmark for measuring reasonable progress under section 1(D)(m). In some cases, the Appellate Court measured the parent’s progress by looking solely at the extent to which the parent had corrected the condition that led to the child’s removal.7 In other cases, the Appellate Court took the view that progress should be measured by examining the parent’s compliance with provisions of service plans prepared by the Department of Children and Family Services and the circuit court’s directives.8 This line of cases allowed the circuit court to take into account parental deficiencies identified after the child’s removal that would prevent return of the child.9 Finally, other decisions stated that the circuit court’s primary focus in measuring reasonable progress should be the condition that led to removal of the child, but that a parent’s failure to comply with court directives is not necessarily irrelevant in determining whether reasonable progress has been made.10
The Second District had adopted the first of these approaches in its unpublished Rule 23 order in In re C.N.11 Applying this standard, the Second District held that the parents had clearly made reasonable progress in correcting the condition that led to the child’s removal.12 Accordingly, the Second District reversed the circuit court’s order terminating the respondents’ parental rights.13
The Illinois Supreme Court rejected the view that the circuit court may look only to the conditions that led to the child’s removal in evaluating whether a parent had made reasonable progress toward the return of the child under section 1(D)(m).14 The court first noted that the language of section 1(D)(m) limited the "reasonable efforts" prong to the conditions that were the basis of the child’s removal, but it imposed no such limitation on the "reasonable progress" prong.15 The court also stated that other serious parental deficiencies might not come to light until after the child is removed from the custody of his or her parents.16
This does not mean that non-compliance with the provisions of a service plan automatically constitutes a lack of reasonable progress toward the return of the child under section 1(D)(m). Instead, the proper approach is to consider the parent’s compliance with the service plans and the circuit court’s directives in light of the conditions which led to removal of the child and any other conditions which became known later and which would prevent the circuit court from ordering the return of the child to the parent.17 Applying this standard, the Supreme Court held that the circuit court’s decision to terminate the parental rights of the natural mother and father was not against the manifest weight of the evidence, and it reinstated that order.18
The same day that it decided C.N., the Illinois Supreme Court also decided In re M.H.19 In M.H., the State filed a petition to terminate the respondent’s parental rights as to one of her daughters, and the petition alleged three grounds of unfitness.20 The natural mother admitted in open court the existence of one of the three alleged grounds, which was that the she had failed to make reasonable progress toward the return of her child.21 The circuit court accepted the admission, although the factual basis for this ground was never stated on the record.22
The Second District reversed, noting that Supreme Court Rule 402(c) requires the circuit court to elicit a factual basis from the State when a defendant pleads guilty in a criminal case. While Rule 402(c) does not apply directly to proceedings to terminate parental rights, the Second District held it appropriate to apply the same requirement to termination proceedings in light of the fundamental rights at stake.23
The Supreme Court affirmed, holding that the circuit court had violated the respondent’s due process rights by accepting her admission to the existence of a ground for the termination of her parental rights when no factual basis was elicited from the State.24 The Court applied the factors set forth by the United States Supreme Court in Mathews v. Eldridge,25 for determining what procedures are required under the due process clause when the State seeks to deprive a person of a right or benefit.26 Those factors are: 1) the private interest affected by the State’s action; 2) the risk of erroneous deprivation of the interest through the procedures employed and the likely value of additional or alternative safeguards; and 3) the government’s interest, including the costs and burdens resulting from additional or alternative safeguards.27
The private interest at stake, a parent’s right to control and custody of a child, is a fundamental interest.28 The Illinois Supreme Court stated that the failure to elicit a factual basis for an admission of parental unfitness created a risk of erroneous deprivation of parental rights.29 Requiring circuit courts to elicit a factual basis for such an admission assures that the State actually has a basis for terminating the respondent’s parental rights.30 Additionally, this helps to ensure that the admission is knowing and voluntary.31 The resultant burden on the State is minimal because counsel for the State must merely recite the facts showing that grounds for termination exist; there is no need to call witnesses or present evidence.32 The Illinois Supreme Court concluded, therefore, that "application of the Mathews balancing factors makes clear that due process requires a circuit court to determine whether a factual basis exists for an admission of parental unfitness before it accepts the admission."33
The Illinois Supreme Court also recently decided In re D.S.,34 a case in which the circuit court ordered the Kane County State’s Attorneys Office to prosecute a petition for termination of parental rights filed by the guardian ad litem (GAL) of a minor who had been adjudicated a neglected minor under the Juvenile Court Act. The State argued that this order violated the separation of powers doctrine set forth in article II, section 1 of the Illinois Constitution.35 The Second District affirmed the circuit court.36
The Illinois Supreme Court noted that State’s Attorneys enjoy great discretion in deciding whether to initiate criminal prosecutions.37 But, according to the court, child dependency and neglect proceedings are a different matter because both the State’s Attorney and the court have a duty to advance a minor’s best interests in such proceedings.38 The roles of the circuit court and the State’s Attorney do not conflict because both have the same obligation to act in accordance with the minor’s best interests.39 Therefore, there is no separation of powers problem.40
Furthermore, when a minor has been removed from the custody of his or her parents under the Juvenile Court Act, the circuit court must conduct a permanency hearing within 12 months and at least every six months thereafter and select a permanency goal.41 The permanency goal in the case at bar was substitute care pending termination of parental rights.42 Under these circumstances, it was appropriate for the circuit court to order the State’s Attorney’s office to prosecute the GAL’s termination petition in order to accomplish the permanency goal chosen by that court.43 Otherwise, the circuit court would be unable to fulfill its obligation of advancing the minor’s best interests.44 If the State disagrees with a permanency goal, it can appeal immediately because permanency goals are immediately appealable as a matter of right under Supreme Court Rule 304(b).45
In D.S., the Illinois Supreme Court also addressed the GAL’s argument that it should have been allowed to prosecute the termination petition it had filed. The Court rejected this argument, holding that petitions for termination of parental rights under the Juvenile Court Act may only be prosecuted by the State’s Attorney.46 As the Court pointed out, Section 1-6 of the Act states that the People of the State of Illinois "shall be represented by the State’s Attorney" in proceedings under the Act.47
The Illinois Supreme Court has recently taken a great interest in issues arising in proceedings to terminate parental rights, as illustrated by the three recent decisions cited above. The decision in C.N. will likely have the greatest impact of these three decisions because the Supreme Court resolved a conflict among the appellate districts as to the proper benchmark for evaluating reasonable progress under section 1(D)(m) of the Adoption Act, a common ground asserted for termination of parental rights. It will not be surprising if the Illinois Supreme Court’s interest in this area continues in light of the fundamental nature of the right of parents to the care and custody of their children and the importance of protecting children who are the subjects of abuse and neglect petitions.
1 In re Paul, 101 Ill. 2d 345, 351-52, 461 N.E.2d 883 (1984).
2 In re M.H., 2001 Ill. LEXIS 491 at *10 (May 24, 2001).
3 2001 Ill. LEXIS 484 (May 24, 2001).
4 750 ILCS 501/1(D)(m)(2000).
6 In re C.N., 2001 Ill. LEXIS 484 at *45-46.
7 See, e.g., In re Allen, 172 Ill. App. 3d 950, 956, 527 N.E.2d 647 (2nd Dist. 1988).
8 See, e.g., In re C.S., 294 Ill. App. 3d 780, 787-88, 691 N.E.2d 161 (4th Dist. 1998).
10 See, e.g., In re S.J., 233 Ill. App. 3d 88, 120-21, 598 N.E.2d 456 (2nd Dist. 1992).
11 C.N., 2001 Ill. LEXIS 484 at *44.
14 Id. at *50.
15 Id. at *50-51.
16 Id. at *51-52.
17 Id. at *56.
18 Id. at *64-69.
19 2001 Ill. LEXIS 491 (Ill. May 24, 2001).
20 M.H., 2001 Ill. LEXIS 491 at *3.
21 Id. at *5.
22 Id. at *6.
23 In re M.H., 313 Ill. App. 3d 205, 212-15, 729 N.E.2d 86 (2nd Dist. 2000).
24 Id. at *15-19.
25 424 U.S. 319, 335 (1976).
26 M.H., 2001 Ill. LEXIS 491 at *11-12.
27 Id., citing Mathews, 424 U.S. at 335.
28 M.H., 2001 Ill. LEXIS 491 at *14-15.
29 Id. at *15.
31 Id. at *15-16.
32 Id. at *19.
34 2001 Ill. LEXIS 773 (Ill. June 21, 2001).
35 D.S., 2001 Ill. LEXIS 773 at *15.
36 In re D.S., 307 Ill. App. 3d 249, 717 N.E.2d 557 (2nd Dist. 2000).
37 Id. at *23.
39 Id. at *26.
41 Id. at *27-28, citing 705 ILCS 405/2-28(2) (1998).
42 Id. at *28.
43 Id. at *29.
45 Id., citing 705 ILCS 405/2-28(3)(1998). Supreme Court Rule 304(b) states that "[a] judgment or order entered in the administartion of an estate, guardianship or similar proceeding which finally determines a right or status of a party" may be appealed. The First, Fourth, and Fifth Districts have recently held that because permanency review orders are not final orders, section 2-28(3) of the Juvenile Court Act violates the doctrine of separation of powers by encroaching unduly upon the inherent powers of the judiciary to determine finality for purposes of appeal. In re Curtis B., 2001 WL 872077 (1st Dist., August 1, 2001); In re C.B., 322 Ill. App. 3d 1011, 1014, 750 N.E.2d 1271, 1273 (4th Dist. 2001); In re D.D.H., 319 Ill. App. 3d 989, 991, 749 N.E.2d 31, 32 (5th Dist. 2001).
46 Id. at *39-40.
47 Id. at *20-21.
John Schmidt is an Assistant Attorney General in the Civil Appeals Division of the Illinois Attorney General’s Office. He received his B.A. from Knox College and his J.D. from DePaul University. He has served as a law clerk to the Honorable Marvin Dunn, Illinois Appellate Court, Second District, as a staff attorney for the same court, and as a staff attorney with the Office of the State’s Attorneys Appellate Prosecutor in Elgin.