{ "id": 3718524, "name": "In re DIANE L., n/k/a Diane E., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. James L., Respondent-Appellant)", "name_abbreviation": "People v. James L.", "decision_date": "2003-08-29", "docket_number": "No. 3\u201402\u20140814", "first_page": "419", "last_page": "426", "citations": [ { "type": "official", "cite": "343 Ill. App. 3d 419" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "673 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 686", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260438 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0686-01" ] }, { "cite": "555 N.E.2d 111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2483942 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0802-01" ] }, { "cite": "610 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5118198 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0568-01" ] }, { "cite": "777 N.E.2d 930", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2002, "opinion_index": 0 }, { "cite": "201 Ill. 2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1476994 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-2d/201/0476-01" ] }, { "cite": "789 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "204 Ill. 2d 655", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "783 N.E.2d 681", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "Andrea D. I." } ], "opinion_index": 0 }, { "cite": "336 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599242 ], "year": 2003, "pin_cites": [ { "parenthetical": "Andrea D. I." } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0335-01" ] }, { "cite": "342 Ill. App. 3d 233", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472777 ], "weight": 3, "year": 2003, "pin_cites": [ { "parenthetical": "Andrea D. II" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0233-01" ] } ], "analysis": { "cardinality": 679, "char_count": 13788, "ocr_confidence": 0.734, "pagerank": { "raw": 6.201045849262137e-08, "percentile": 0.3841374535735481 }, "sha256": "d7c914a16fe93eb14752432974640c177431497f2788472fd1bc0699ec60a4d9", "simhash": "1:7af3c0387a9d62e9", "word_count": 2274 }, "last_updated": "2023-07-14T15:02:30.760533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SLATER and SCHMIDT, JJ., concur." ], "parties": [ "In re DIANE L., n/k/a Diane E., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. James L., Respondent-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE McDADE\ndelivered the opinion of the court:\nThe circuit court granted a juvenile petition for wardship, finding that the minor, Diane E., was sexually abused by respondent James L., her adoptive father. The State subsequently filed a petition to terminate parental rights. The court granted the State\u2019s petition, and respondent appeals. We are asked to determine whether: (1) the State\u2019s petition to terminate parental rights was defective on its face; (2) the finding of unfitness was contrary to the manifest weight of the evidence; and (3) the trial court abused its discretion in terminating his parental rights. We affirm.\nFACTS\nOn April 19, 1999, the State filed a one-count juvenile petition for wardship, alleging that the minor, born July 6, 1986, had been sexually abused by respondent and taken into protective custody. Following an adjudicatory hearing, the court found the minor abused. The court subsequently entered a dispositional order granting the State\u2019s petition for wardship and awarding the Illinois Department of Children and Family Services (DCFS) temporary custody. Meanwhile, the State charged respondent with aggravated criminal sexual abuse in connection with his conduct toward Diane between March 1998 and April 1999 (Mercer County court case No. 99 \u2014 CF\u201428). On November 24, 1999, respondent was found guilty but mentally ill and sentenced to a five-year term of imprisonment.\nOn February 1, 2000, the State filed a supplemental petition to terminate respondent\u2019s parental rights. The petition alleged that respondent was unfit to have a child in that he (1) acted with extreme cruelty to the minor (750 ILCS 50/l(D)(e) (West 2000)); (2) committed other misconduct \u2014 i.e., aggravated criminal abuse \u2014 upon the minor (750 ILCS 50/l(D)(h) (West 2000)); and (3) was incarcerated and would be unable to discharge his parental responsibilities for more than two years while the minor was in DCFS guardianship (750 ILCS 50/l(D)(r) (West 2000)). In its prayer for relief, the State asked the court to: (a) find respondent unfit; (b) forever terminate all of respondent\u2019s parental rights and any residual rights to the minor; and (c) appoint DCFS as the minor\u2019s guardian with power to consent to her adoption.\nAt the hearing on the supplemental petition, Diane E. testified that respondent and his wife, Sandra, were her foster parents for a year or more before Sandra died in the spring of 1998. A few days after Sandra\u2019s death, respondent started touching Diane\u2019s genitalia. At first, the touching was done through Diane\u2019s clothing. However, over time, respondent removed her clothes and touched her genitalia directly. Diane said the conduct took place in the basement, in the living room and in respondent\u2019s bedroom. It occurred six or eight times, the last time being the night before she was interviewed by the police. Respondent told her he loved her and not to tell anyone what he was doing. He told her that he and his sister did \u201cintimate things\u201d when he was a boy. Diane told no one about the conduct until the police interviewed her in the spring of 1999.\nRespondent was the only other witness called by the State in its case in chief. Respondent testified that Diane was placed in his home for foster care in August 1997. He admitted that he had been convicted following a stipulated bench trial in case No. 99 \u2014 CF\u201428 and that he served 21/z years in prison in that case. Respondent denied, however, that he was guilty of the offense charged. He further denied that the conduct Diane testified to in this case had occurred. Respondent said he must have been mistaken when he gave a statement to the police. He said he enrolled in a sex offender treatment program to address the sexual issues in this case only because the court ordered him to do so.\nMichael L., respondent\u2019s 31-year-old adopted son, testified for respondent. Michael returned home to live with respondent and Diane immediately after Sandra\u2019s death. He said he stayed in the house because of medical problems and slept on a sofa bed in the living room. Michael said he never observed respondent doing anything inappropriate with Diane, and he never saw her unclothed.\nRespondent, testifying on his own behalf, stated that Sandra died on March 4, 1998. He said Diane\u2019s birth father\u2019s parental rights were terminated in February 1998 and he adopted Diane after Sandra died. He said he agreed to a stipulated bench trial in case No. 99 \u2014 CF\u201428 on the advice of his attorney. Respondent said he thought he would be released to return home without, serving time in prison. Respondent was taking medication for mental illness at the time. When he went to see the police on April 19, 1999, respondent thought he was supposed to talk about Diane telling lies. He denied that he told the police he had fondled Diane\u2019s genitalia. He said he signed blank sheets of paper at the police station.\nIn rebuttal, the State presented deputy sheriff Jonathan Weakley. Weakley testified that he and DCFS investigator Hector Vasquez interviewed respondent on April 16, 1999. At that time, respondent indicated that he may have touched Diane\u2019s genital area accidentally while wrestling with her. Three days later, respondent called the sheriffs office and said he wanted to talk. On that occasion, respondent told Weakley that he would not have molested Diane if his wife had been alive. Weakley gave respondent Miranda warnings, and respondent subsequently signed a written statement admitting that he had touched Diane\u2019s vaginal area four times. Weakley denied that the pages of the statement were blank when respondent signed them. He stated that he completed the statement by hand, wrote down respondent\u2019s answers and then asked respondent to sign the statement after he reviewed it. Respondent\u2019s written statement was admitted into evidence.\nFollowing arguments of counsel, the trial court found clear and convincing evidence of unfitness by misconduct as alleged in the State\u2019s petition pursuant to section l(D)(h) of the Adoption Act (750 ILCS 50/l(D)(h) (West 2000)). Accordingly, the court entered a finding of unfitness and set the cause for a best interest hearing.\nOn March 19, 2002, in anticipation of the hearing, Diane\u2019s caseworker, Lynn Lohman, submitted a report to the court. Diane had been placed in a traditional foster home, and she had expressed a desire to reunite with her birth father. She was frustrated by having to use the name respondent had given her and by the delay in terminating respondent\u2019s parental rights.\nAt the hearing, Lohman testified that respondent had telephoned her office to inquire about the possibility of having Diane returned to him. She said that there was no realistic chance that Diane would ever be returned to respondent\u2019s care. Lohman said she also had had conversations with Diane\u2019s birth father, Steve E., who sought to have Diane placed with him for potential adoption. Diane had visited with Steve E., and she told Lohman that she wished to have her name restored to Diane E. Lohman said that DCFS was actively pursuing placing Diane with Steve E. She recommended both that respondent\u2019s parental rights be terminated so that Diane could be freed for potential adoption by Steve E. and that her name be changed from Diane L. to Diane E., as she wished.\nRespondent gave an unsworn statement. After arguments of counsel, the court reviewed the caseworker\u2019s report, the evidence of record and the statements of respondent and counsel. The court ultimately stated that it believed closure was needed to allow Diane to move forward in her life, and that it was in her best interest that respondent\u2019s parental rights be terminated. The court accordingly granted the State\u2019s supplemental petition and ordered the minor\u2019s name changed from Diane L. to Diane E.\nISSUES AND ANALYSIS\n1. Defective Pleading\nRespondent initially argues that the State\u2019s supplemental petition to terminate his parental rights was facially defective for failure to state in its prayer for relief that respondent could \u201cpermanently\u201d lose his rights as a parent. Eespondent contends that such language is mandated by section 2 \u2014 13(4) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2 \u2014 13(4) (West 2000)).\nThis issue was recently resolved in In re Andrea D., 342 Ill. App. 3d 233 (2003) (Andrea D. II). Under procedural facts analogous to those before us today, the court in Andrea D. initially remanded the cause for the State\u2019s failure to include notice in its prayer for relief that the respondent could \u201cpermanently\u201d lose his parental rights. See In re Andrea D., 336 Ill. App. 3d 335, 783 N.E.2d 681 (2003) (Andrea D. I.). The State appealed, and the supreme court issued a supervisory order directing the appellate court to determine whether the petition to terminate parental rights was governed by the procedure in section 2 \u2014 13(4). In re Andrea D., 204 Ill. 2d 655, 789 N.E.2d 303 (2003).\nOn remand, the court observed that there are two separate mechanisms for requesting the termination of parental rights. In expedited proceedings brought pursuant to section 2 \u2014 13, where the petitioner seeks parental termination in an original juvenile wardship petition, the petitioner must provide explicit language to convey that the respondent parent stands to \u201cpermanently\u201d lose parental rights. 705 ILCS 405/2 \u2014 13(4) (West 2000). By contrast, where the State does not seek to terminate parental rights until after the minor has been adjudicated abused and made a ward of the court, the petition must be filed pursuant to section 2 \u2014 29 of the Act (705 ILCS 405/2 \u2014 29 (West 2000)). When the bifurcated procedure under section 2 \u2014 29 applies, the petition need not include the explicit language that is required under section 2 \u2014 13(4). Andrea D. II, 342 Ill. App. 3d 233.\nIn this case, the State\u2019s supplemental petition to terminate respondent\u2019s parental rights was brought pursuant to section 2 \u2014 29. Accordingly, the additional notice required for expedited petitions under section 2 \u2014 13(4) did not apply. Andrea D. II, 342 Ill. App. 3d 233.\n2. Unfitness\nNext, respondent argues that the State\u2019s evidence of unfitness was insufficient. He does not deny that the conduct described by Diane established unfitness under section l(D)(h) of the Adoption Act (750 ILCS 50/l(D)(h) (West 2000)). He asks only that this court reassess the minor\u2019s credibility.\nA trial court\u2019s finding of unfitness will not be reversed on review unless the finding is contrary to the manifest weight of the evidence. In re D.F., 201 Ill. 2d 476, 777 N.E.2d 930 (2002). A determination is against the manifest weight of the evidence if the opposite conclusion is clearly evident or the determination is unreasonable, arbitrary or not based on the evidence presented. D.F., 201 Ill. 2d 476, 777 N.E.2d 930. For purposes of this court\u2019s review, we give deference to the trial court as the finder of fact because it is in the best position to observe the conduct and demeanor of the witnesses and to assess the evidence based on its observations. This court may not substitute its judgment for that of the trial court with regard to the credibility of witnesses, the weight assigned to the evidence and the inferences to be drawn. D.F., 201 Ill. 2d 476, 777 N.E.2d 930.\nHere, the trial court believed the testimony of Diane and disbelieved respondent\u2019s denials. The mere fact that Michael did not observe the conduct described by Diane is hardly surprising and does not compel a reversal of the trial court\u2019s finding of unfitness. The secrecy of sexual abuse is well documented. See People v. Dempsey, 242 Ill. App. 3d 568, 610 N.E.2d 208 (1993). Diane testified clearly and consistently to multiple acts of sexual abuse by respondent, some of which were admitted in statements respondent gave to investigating authorities. We conclude, therefore, that the trial court\u2019s finding of unfitness was not contrary to the manifest weight of the evidence.\n3. Best Interest\nIn his last argument, respondent claims that the trial court erred in terminating his parental rights. He argues that his mental illness brought on by his wife\u2019s death was a sufficient mitigating circumstance to preclude the termination.\nWe note that the trial court, in rendering its decision at the close of the best interest hearing, was not unsympathetic to the grief respondent displayed as he faced the loss of his parental rights to Diane. Nevertheless, the court\u2019s overriding concern at a best interest hearing is the well-being of the child, not the parent. In re M.C., 197 Ill. App. 3d 802, 555 N.E.2d 111 (1990). The relevant inquiry on review is whether the trial court\u2019s decision to terminate parental rights was an abuse of the trial court\u2019s discretion. In re V.O., 284 Ill. App. 3d 686, 673 N.E.2d 439 (1996).\nEvidence admitted at the best interest hearing established that there was no reasonable likelihood that respondent would ever regain custody of Diane. Diane required closure of her relationship with respondent and freedom to pursue a potentially beneficial relationship with her birth father. The court\u2019s determination that it was in Diane\u2019s best interest to terminate respondent\u2019s parental rights was not an abuse of discretion.\nCONCLUSION\nThe judgment of the circuit court of Mercer County is affirmed. .\nAffirmed.\nSLATER and SCHMIDT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McDADE" } ], "attorneys": [ "Raymond J. Conklin, of Robertson & Conklin, of Rock Island, for appellant.", "Gregory McHugh, State\u2019s Attorney, of Aledo (Lawrence M. Bauer and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re DIANE L., n/k/a Diane E., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. James L., Respondent-Appellant).\nThird District\nNo. 3\u201402\u20140814\nOpinion filed August 29, 2003.\nRaymond J. Conklin, of Robertson & Conklin, of Rock Island, for appellant.\nGregory McHugh, State\u2019s Attorney, of Aledo (Lawrence M. Bauer and Terry A. Mertel, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0419-01", "first_page_order": 437, "last_page_order": 444 }