                                              Second Division
                                              December 12, 2006



No. 1-06-0111


IN RE JANIRA T., a Minor,                )    Appeal from the
                                         )    Circuit Court of
          Respondent-Appellee            )    Cook County,
                                         )    Illinois Child
                                         )    Protective Division
(The People of the State of Illinois     )
                                         )
          Petitioner-Appellee,           )    No. 03 JA 01022
                                         )
          v.                             )
                                         )
Luz M.,                                  )    Honorable
                                         )    Kathleen M. Burke,
          Respondent-Appellant).         )    Judge Presiding


                MODIFIED UPON DENIAL OF REHEARING

     JUSTICE HALL delivered the opinion of the court:

     Respondent Luz M. appeals the judgment of the circuit court

of Cook County terminating her parental rights to her minor

daughter Janira T.   Janira's natural father, Luis T., voluntarily

relinquished his parental rights to her and is not a party to

this appeal.

     On appeal, respondent contends that: (1) the unfitness

findings entered at the termination proceeding should be reversed

because the State failed to provide sufficient evidence showing

that Janira was abused or neglected in the adjudicatory hearing

which was the predicate for the termination proceeding; (2) we

should reverse the termination of her parental rights because the

State failed to prove by clear and convincing evidence that she

was an unfit parent; (3) the trial court erred in finding that
1-06-0111

the termination of her parental rights was in Janira's best

interests; and (4) subsections (b), (c), and (m) of section 1(D)

of the Adoption Act (Adoption Act) (750 ILCS 50/1(D)(b), (D)(c),

(D)(m) (West 2002)), are unconstitutional in violation of her

state and federal procedural due process rights because these

subsections allow the termination of parental rights based on

less than clear and convincing evidence.   For the reasons that

follow, we affirm.

                            BACKGROUND

     Prior to Janira's birth (born October 15, 1996), respondent

gave birth to six other children, Melissa M. (born June 28,

1983), Melinda M. (born January 13, 1986), Alberto M. (born

September 11, 1987), Angel M. (born March 20, 1990), Luis (born

December 26, 1991), and Jasmine T. (born November 20, 1994).

     Luis T. is the natural father of Luis, Jasmine, and Janira.

The other four children were fathered by Heriberto Q, who, like

Luis T., is not a party to this appeal.

     In February 1996, respondent came to the attention of the

Illinois Department of Children and Family Services (DCFS) when

Alberto reported to his teacher that his two older sisters,

Melissa and Melinda, had been sexually abused by their

stepfather, Luis T.   As a result, Janira's six older siblings

were taken into protective custody and thereafter adjudicated

abused based on a substantial risk of physical injury and

neglected based on exposure to an injurious environment.


                                -2-
1-06-0111

     On October 15, 1996, respondent gave birth to Janira.    She

was not immediately removed from respondent's care as she was not

considered at risk of harm since respondent had reportedly

separated from Luis T. after the allegations of abuse and neglect

were made.   Janira was, however, monitored monthly by announced

and unannounced home visits by a caseworker.

     On June 23, 1997, the trial court ruled that the State had

proven, by a preponderance of the evidence, that Luis T. sexually

abused Melissa and Melinda, that Alberto was the victim of

excessive corporal punishment administered by Luis T., and that

the siblings had been exposed to domestic violence on their

mother administered by Luis T.   On September 11, 1997, the trial

court issued an order of protection requiring that any contact

between Luis T. and the six siblings be supervised by DCFS and

approved by the subject child.

     Luis T. was later suspected of having seen the children

during their unsupervised visits with respondent in 1999 and

2000.   As a result, respondent's unsupervised contact with her

six children was revoked in November 2000.   Janira remained in

respondent's care.

     Pursuant to an adult-sex-offender risk evaluation of Luis

T., dated April 3, 2003, it was determined, among other things,

that he should not be given custody of any of his three

biological children and should not be allowed unsupervised

contact with them.   On June 18, 2003, respondent and Luis T. were


                                 -3-
1-06-0111

"indicated" for risk of harm to Janira after a caseworker called

the DCFS hotline and reported that respondent and respondent's

mother were allowing Janira to have unsupervised contact with

Luis T.    As a result, on June 23, 2003, Janira was placed with a

maternal great-aunt under a safety plan.

     On July 17, 2003, the State filed a petition for

adjudication of wardship on behalf of Janira.   The petition

charged her parents with neglect based on exposure to an

injurious environment and abuse based on a substantial risk of

physical injury.   At the conclusion of a temporary custody

hearing on August 6, 2003, the trial court granted temporary

custody of Janira to the DCFS guardianship administrator.

Respondent was not present at the hearing, and the order was

entered without prejudice to her.

     On August 21, 2003, the trial court held a second temporary

custody hearing regarding Janira, at which respondent was present

and represented by the office of the public defender.   At the

conclusion of the hearing, the trial court maintained temporary

custody of Janira with DCFS.

     On January 13, 2004, the trial court held an adjudicatory

hearing.    Following the hearing, the trial court entered an order

finding that, based on the preponderance of the evidence, Janira

was neglected due to an injurious environment and abused due to a

substantial risk of physical injury in that the parents were

aware that father was not to have unsupervised contact with


                                 -4-
1-06-0111

Janira yet such contact occurred; father was a sexual

perpetrator; and mother had extensive history with DCFS.

       On February 23, 2004, the trial court conducted the

dispositional hearing.    At the conclusion of the hearing, the

court determined it was in Janira's best interest to be made a

ward of the court and appointed D. Jean Ortega-Piron, the DCFS

Guardianship Administrator, as her guardian with the right to

place her.    The disposition was based on the trial court's

findings that respondent was unable, unwilling, and unfit to care

for Janira and that Luis T. was unable and unwilling to care for

her.    Respondent did not appeal the adjudication order nor the

dispositional order.

       On April 19, 2004, the trial court entered a permanency

order finding that respondent had not made substantial progress

towards returning Janira home.    The order set a permanency goal

for Janira of return home pending a status hearing because

respondent expressed a willingness to complete the services

required for reunification with her minor daughter.

       On October 15, 2004, the trial court entered a permanency

order again finding that respondent had not made substantial

progress towards returning Janira home.    The order set a

permanency goal of substitute care pending court determination on

termination of parental rights.    The order stated this goal was

selected because Janira was eight years old, she was living with

a nonrelative in a preadoptive home, and her natural parents had


                                  -5-
1-06-0111

not made substantial progress toward reunification and were not

visiting consistently.

     On February 2, 2005, the State filed a supplemental petition

pursuant to section 2-29(2) of the Juvenile Court Act of 1987

(Juvenile Court Act) (705 ILCS 405/2-29(2) (West 2000)), seeking

the termination of the parental rights of respondent and Luis T.

to Janira and the appointment of a guardian with the right to

consent to her adoption.   The supplemental petition contained

three counts of unfitness with respect to respondent: (1) failure

to maintain a reasonable degree of interest, concern or

responsibility as to Janira's welfare as set forth in section

1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2002));

(2) desertion of Janira for more than three months next preceding

the commencement of these termination proceedings as set forth in

section 1(D)(c) of the Adoption Act; and (3) failure to make

reasonable efforts to correct the conditions that led to Janira's

removal from the home, and/or failure to make reasonable progress

toward the return of the child within nine months of an

adjudication of abuse or neglect as set forth in section 1(D)(m)

of the Adoption Act.

     On June 29, 2005, Luis T. appeared in trial court and gave

his final and irrevocable consent to Janira's adoption by her

foster parent.

     The fitness and best interests portions of the bifurcated




                                -6-
1-06-0111
termination proceeding1 were both held on December 5, 2005.

Prior to commencement of the fitness hearing, the trial court

took judicial notice of the following orders: (1) the August 21,

2003, paternity order in which Luis T. was found to be Janira's

father; (2) the adjudication order entered January 13, 2004, in

which Janira was found to be neglected and abused; (3) the

dispositional order entered February 23, 2004, in which Janira

was made a ward of the court and respondent was found unable,

unwilling, and unfit to care for her.    The trial court later took

judicial notice that the State filed its supplemental termination

petition on February 2, 2005.

     The State called two witnesses at the fitness hearing,

Lauren Barker, a caseworker at Casa Central, and Eloisa Rosales,

a former caseworker at the same agency.

     Barker testified she was assigned to Janira's case from

February 2004 to July 2004.    At the time she received the case,

it was already in the system.    The case had come into the system

for failure to protect based upon allegations that respondent

allowed Janira to have unsupervised contact with Luis T. even

     1
         During the first stage, the trial court considers whether

a respondent is unfit within the meaning of section 1(D) of the

Adoption Act (750 ILCS 50/1(D) (West 2002)); at the second stage,

the court determines whether termination of parental rights would

be in the minor's best interests. See, e.g., In re G.L., 329 Ill.

App. 3d 18, 20-24, 768 N.E.2d 367 (2002).

                                 -7-
1-06-0111

though he was accused of sexually abusing her sisters.

     After an assessment, it was determined that respondent

needed to complete various recommended services in order to be

reunited with Janira.    She needed to take parenting classes to

assess her parenting skills due to her history of involvement

with DCFS.   She needed to engage in individual therapy to address

issues that originally brought the case into the system, such as

issues of permanency, allegations of sexual abuse, and issues of

domestic violence.    She was also required to have a drug and

alcohol assessment.

     Barker testified that during the approximate five-month

period she had the case, respondent did not complete any of the

recommended services offered her.       In regard to visitation,

respondent was allowed weekly, one-hour supervised visits with

Janira at Casa Central.    Barker testified that respondent

initially visited Janira consistently, but later there was "a

large period of time" where respondent stopped visiting.       Barker

testified that overall, respondent attended less than 50% of the

visits she was allowed to have with Janira and when she did

visit, the visits were unorganized and lacked structure, where

Janira was allowed to "run wild" while respondent talked with the

maternal grandmother.    Barker stated that during the visits,

respondent never spoke to Janira about school and there was no

real discipline or instruction.    Barker observed a bond between

Janira and respondent but did not believe respondent could


                                  -8-
1-06-0111

properly parent or discipline her daughter.

     In a service plan dated August 1, 2004, covering and

evaluating the preceding six-month period, Barker rated

respondent's overall performance as "unsatisfactory" based on

respondent's failure to comply with recommended services and her

inconsistent and inadequate visitation with Janira.

     On cross-examination, Barker testified that respondent never

told her why she missed visitation and never indicated that

illness was the reason she did not comply with recommended

services.   Barker stated that if respondent had given advanced

notice that she would not be keeping a visitation appointment,

the missed visit could have been rescheduled or the subsequent

visit extended.   Barker also testified that if respondent had

stated that illness prevented her from complying with recommended

services, one of the services could have been "taken out" or

respondent could have been given a different six-month time

period within which to complete the services.

     Rosales testified she was assigned to Janira's case from

August 2004 to June 2005.   At the time she received the case,

recommended services offered respondent were still outstanding.

Rosales testified that during the entire time she was on the

case, respondent never completed any of the offered services or

substance abuse assessments.

     Rosales personally met respondent for the first time on a

visitation day at Casa Central.    She briefly spoke to respondent


                                  -9-
1-06-0111

about uncompleted services and asked to schedule a meeting to be

held on a nonvisitation day so they could further discuss needed

services in more detail.    Rosales also sent respondent two

letters urging her to meet to discuss uncompleted services.

Rosales testified that the meeting never occurred because it was

difficult to get in telephone contact with respondent since she

did not have a telephone.    Rosales never referred respondent to

any services or assessments because they were never able to meet

and discuss scheduling.

     On October 15, 2004, shortly after Rosales received the

case, the permanency goal for Janira was changed from return

home, to substitute care pending termination of parental rights.

Rosales testified that once the goal changed, Casa Central was no

longer required to provide or pay for services for respondent,

and the visiting schedule changed from once a week to once a

month.    Rosales provided respondent with a list of agencies where

she could receive free services but respondent never engaged in

the services.

     In regard to visitation, Rosales testified that before the

permanency goal for Janira was changed, respondent only visited

her about twice a month even though she was allowed to visit once

a week.   Rosales testified that when respondent visited Janira,

the visits were unstructured and the minor was left to do

whatever she wanted.   According to Rosales, Janira was all over

the place jumping on couches, yelling and not using her indoor


                                -10-
1-06-0111

voice.    Rosales stated that respondent had difficulty redirecting

Janira.

     Rosales testified that although respondent explained that

her inconsistent visitation resulted from medical problems, she

never provided any documentation to support this claim.    Rosales

further testified there were a number of times respondent called

to confirm a visit and then failed to show up.   Shortly after the

permanency goal for Janira changed, respondent stopped visiting

and would only inquire as to how the child was doing.

     In a service plan dated February 1, 2005, covering and

evaluating the preceding six-month period, Rosales rated

respondent's overall performance as "unsatisfactory" based on her

failure to comply with recommended services.

     After hearing closing arguments, the trial court found

respondent unfit under subsections (b), (c), and (m) of section

1(D) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(c), (D)(m)

(West 2002)).   The trial court then proceeded immediately to the

best interests portion of the termination proceeding.

     Gloria Vasquez, a caseworker at Casa Central, was the only

witness who testified at the best interests hearing.    She was

Janira's current caseworker having been assigned her case October

17, 2005.   She gave testimony regarding Janira's foster home

placement, her relationship with her foster mother, and her

developmental progress.   Janira was placed with her current

foster mother in August 2003.


                                -11-
1-06-0111

     Since receiving the case, Vasquez testified that she visited

the foster home twice to see Janira, with the most recent visit

occurring just four days prior to the present hearing.      Vasquez

described the foster home as a safe, clean, well-kept, three-

bedroom apartment.   Janira and her foster mother lived in the

home, along with a dog and two cats.      Janira had her own bedroom.

Vasquez found no signs of abuse, neglect, or corporal punishment.

     Vasquez observed that Janira and her foster mother were

bonded and described their interaction as "very positive."

Janira seemed happy and appeared to love her foster mother, whom

she called "mom."    When Vasquez visited the foster home, Janira

excitedly told her about the activities she and her foster mother

engaged in such as going on trips and to the movies.      Janira also

had established ties to the community where she befriended a

number of her neighbors.

     The foster mother tutors Janira and enrolled her in private

school.   Janira performed so well on the entrance exam she was

skipped to the third grade.   She was also taking after-school

music classes.

     Vasquez testified that Janira had no special needs but was

participating in individual therapy to deal with issues relating

to separation from her natural parents, the death of her brother,

and adjusting to her foster home.      These therapy sessions took

place in the foster home.

     Vasquez testified that the foster mother wished to adopt


                                -12-
1-06-0111

Janira and, in turn, Janira, who was eight years old at the time,

wanted to be adopted.   The foster mother stated that if she were

allowed to adopt Janira, she would continue to allow sibling

visits.

     Vasquez believed it was in Janira's best interests that the

parental rights of her parents be terminated and that D. Jean

Ortega-Piron be appointed her guardian with the right to consent

to her adoption.   Vasquez testified her belief was based on the

close bond Janira developed with her foster mother, the

observation that Janira was doing extremely well in the foster

home, and her success in school.

     Following closing arguments, the trial court determined that

Janira's best interest would be served by terminating

respondent's parental rights and appointing D. Jean Ortega-Piron

as Janira's guardian with the authority to consent to her

adoption.   Respondent now appeals.

                             ANALYSIS

     Respondent first contends that the unfitness findings

entered at the termination proceeding should be reversed because

the State failed to provide sufficient evidence showing that

Janira was abused or neglected in the prior adjudicatory hearing

conducted on January 13, 2004, which was the predicate for the

termination proceeding.   The State and public guardian maintain

that we lack jurisdiction to review this issue because respondent

failed to appeal the adjudicatory order within 30 days of the


                               -13-
1-06-0111
entry of the subsequent dispositional order.    We agree with the

State and public guardian.

     Supreme Court Rule 660(b) provides that, except in cases of

juvenile delinquency, appeals from final judgments under the

Juvenile Court Act are governed by the rules applicable to civil

cases. 134 Ill. 2d R. 660(b); see also In re M.J., 314 Ill. App.

3d 649, 654, 732 N.E.2d 790 (2000); In re Lee, 73 Ill. App. 3d

449, 449-50, 392 N.E.2d 304 (1979).    To properly perfect an

appeal in a civil case, the notice of appeal must be filed within

30 days after entry of the final order (155 Ill. 2d R. 303(a)),

unless an extension of the 30-day time limit is granted under

Supreme Court Rule 303(d) (155 Ill. 2d R. 303(d)). In re M.J.,

314 Ill. App. 3d at 654; see also In re Wheat, 68 Ill. App. 3d

471, 477-78, 386 N.E.2d 278 (1979) (appellate jurisdiction is

generally dependent upon the timely filing of a notice of appeal

after the entry of a final judgment).

     In juvenile cases, subject to Supreme Court Rule 662(a) (134
Ill. 2d R. 662(a))2, an adjudicatory order is generally not

considered a final appealable order. In re M.J., 314 Ill. App. 3d

     2
         Where a dispositional order is not entered within 90 days

of an adjudication of wardship, an appeal may be taken from the

adjudicatory order. 134 Ill. 2d R. 662(a).    In such a case, the

notice of appeal must be filed within 30 days after expiration of

the 90 days. 134 Ill. 2d R. 662(c); In re Smith, 80 Ill. App. 3d

380, 381, 399 N.E.2d 701 (1980).

                                -14-
1-06-0111

at 654-55; In re Lee, 73 Ill. App. 3d at 450.    Rather, it is the

dispositional order from which an appeal properly lies. In re

Smith, 80 Ill. App. 3d 380, 381, 399 N.E.2d 701 (1980).

     In this case, respondent never filed a notice of appeal from

either the trial court's adjudicatory order or its dispositional

order.    We therefore lack appellate jurisdiction over

respondent's appeal of the trial court's January 13, 2004,

adjudicatory order and dismiss that portion of the appeal.

     Respondent next contends that we should reverse the

termination of her parental rights because the State failed to

prove by clear and convincing evidence that she was an unfit

parent.    We disagree.

     To terminate the parental rights of a nonconsenting parent,

an adjudication of unfitness is first required. See In re

Chilean, 304 Ill. App. 3d 580, 583, 710 N.E.2d 24 (1999).    The

grounds that will support a finding of unfitness are set out in

section 1(D) of the Adoption Act. 750 ILCS 50/1(D) (West 2002).

Although section 1(D) sets out various grounds under which a

parent may be deemed unfit, an unfitness finding may be entered

if there is sufficient evidence to satisfy any one statutory

ground. In re Donald, 221 Ill. 2d 234, 244, 850 N.E.2d 172

(2006).

     As previously mentioned, the trial court in this case found

respondent unfit under subsections (b), (c), and (m) of section

1(D) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(c), (D)(m)


                                -15-
1-06-0111

(West 2002)).    The trial court discussed respondent's failure to

complete recommended services, her inconsistent visitation, and

her subsequent cessation of visitation after October 2004.

     A finding of parental unfitness must be supported by clear

and convincing evidence. In re Katrina, 364 Ill. App. 3d 834,

842, 847 N.E.2d 586 (2006).    A trial court's determination that

clear and convincing evidence of a parent's unfitness has been

shown will not be disturbed on review unless its against the

manifest weight of the evidence. In re D.D., 196 Ill. 2d 405,

417, 752 N.E.2d 1112 (2001).

     The first ground that the trial court found in favor of the

State was subsection (b) of the Adoption Act.    This subsection

provides that a person may be declared an unfit parent for

"[f]ailure to maintain a reasonable degree of interest, concern

or responsibility as to the child's welfare." 750 ILCS 50/1(D)(b)

(West 2002).    We believe the trial court's finding of parental

unfitness based upon subsection (b) was not against the manifest

weight of the evidence.

     The record shows that shortly after Janira was removed from

respondent's care on August 6, 2003, respondent was assessed for

needed services and it was determined she was in need of

parenting classes, individual therapy, and a drug and alcohol

assessment.    Caseworker Barker testified at the fitness hearing

that during the approximate five-month period she had the case,

from February 2004 to July 2004, respondent did not complete any


                                -16-
1-06-0111

of the recommended services offered her.

      Caseworker Rosales testified at the fitness hearing that she

was assigned the case from August 2004 to June 2005.   At the time

Rosales received the case, recommended services were still

outstanding.   Rosales testified that during the entire time she

was on the case, respondent never completed any of the offered

services or substance abuse assessments.

      In regard to visitation, Barker testified that respondent

initially visited Janira consistently but later there was "a

large period of time" where respondent stopped visiting.    Barker

testified that respondent attended less than half the visits she

was allowed to have with Janira and when she did visit, the

visits were unorganized and lacked structure.

      Rosales testified that before the permanency goal for Janira

was changed from return home to substitute care pending

termination of parental rights, respondent only visited about

twice a month, even though she was allowed weekly visits.

Rosales stated there were a few times she brought Janira to the

agency for a visit with respondent and respondent failed to show

up.   Rosales testified that when respondent did visit, the visits

were unstructured and that Janira was basically left on her own.

Shortly after the permanency goal for Janira changed, respondent

stopped visiting.

      Our courts have determined that noncompliance with an

imposed service plan and infrequent or irregular visitation is


                               -17-
1-06-0111

sufficient evidence warranting a finding of unfitness under

subsection (b) of the Adoption Act. See In re Jaron, 348 Ill.

App. 3d 239, 259, 810 N.E.2d 108 (2004) (and cases cited

therein).   Respondent argues that her efforts should be reviewed

in the context of her medical problems, the death of her child,

and the agency's half-hearted attempt to work with her.

     Respondent, however, never produced any documentation

showing that her claimed medical problems were the reason she

failed to complete required services or consistently visit

Janira.   During one court date, the trial judge informed

respondent's attorney that respondent needed to bring

documentation of her doctor's visits to the next court date.

Respondent failed to come to court on the subsequent court date

and no such documentation appears in the record.

     The record also shows that respondent's oldest child

actually died approximately six years prior to the date the

fitness hearing was held and that even after her child Luis was

diagnosed with cancer in January 2005, respondent did not visit

him consistently.   The reasons respondent gives for failing to

comply with required services or consistently visit Janira are

not supported by the record.   Respondent's continued refusal to

comply with required services and her repeated failure to

maintain regular visitation sufficiently demonstrate that, even

within the context of her alleged circumstances, she has not

maintained a reasonable degree of interest, concern or


                               -18-
1-06-0111

responsibility toward Janira's welfare.

     The trial court's finding that respondent was unfit under

subsection (b) of the Adoption Act was not against the manifest

weight of the evidence.   Having determined there was sufficient

evidence to satisfy one statutory ground, we need not address the

other findings of unfitness made by the trial court. See In re

M.J., 314 Ill. App. 3d 649, 657, 732 N.E.2d 790 (2000); In re

Shanna, 343 Ill. App. 3d 1155, 1168, 799 N.E.2d 843 (2003).

     Respondent next contends the trial court erred in finding

that the termination of her parental rights was in Janira's best

interests.   Respondent maintains the trial court made its finding

without fully considering the statutory "best interests" factors.

Respondent also contends the trial court made its finding without

considering what she might have to offer Janira and that the

court discounted the importance of the child's siblings, instead

focusing on the advantages of the foster home.   We disagree.

     Once a trial court finds a parent unfit, the court must then

determine whether termination of parental rights is in the best

interests of the child. In re D.T., 212 Ill. 2d 347, 352, 818

N.E.2d 1214 (2004); In re J.T.C., 273 Ill. App. 3d 193, 199, 652

N.E.2d 421 (1995).   In making this determination, the court is

required to consider factors such as the child's physical safety

and welfare; the child's background and ties, including familial,

cultural, and religious; the child's need for permanence,

including her need for stability and continuity with parental


                               -19-
1-06-0111

figures and other relatives; the risks related to substitute

care; and the preferences of the person available to care for the

child. 705 ILCS 405/1-3(4.05) (West 2004).   In rendering its

decision, the trial court is not required to explicitly mention,

word-for-word, the factors listed in section 1-3(4.05) of the

Juvenile Court Act. In re Jaron, 348 Ill. App. 3d at 262-63.

     The State bears the burden of proving by a preponderance of

the evidence that termination is in the child's best interests.

In re Katrina, 364 Ill. App. 3d at 845.   The trial court's

finding that termination is in the child's best interest will not

be disturbed unless it is against the manifest weight of the

evidence or the court abused its discretion. In re G.L., 329 Ill.

App. 3d 18, 25, 768 N.E.2d 367 (2002).

     A review of the evidence in relation to the statutory

factors shows that the trial court's decision to terminate

respondent's parental rights as to Janira was not contrary to the

manifest weight of the evidence or an abuse of discretion.

Evidence presented at the best interest hearing revealed that

Janira was happy in a stable, appropriate, safe home and had

bonded with her foster mother, whom she called "mom" and who

wished to adopt her.   Janira also wished to be adopted by her

foster mother.   Janira had been living with her foster mother for

over two years, during which time she received educational

tutoring and skipped a grade.   She also takes after-school music

lessons.


                                -20-
1-06-0111

     Janira has established ties to the community and has

befriended a number of her neighbors.   She participates in

individual therapy to cope with issues relating to the separation

from her parents, the death of her brother, and adjusting to her

foster home.   In addition, the foster mother stated that if she

were allowed to adopt Janira, she would continue to allow sibling

visits.   This evidence supports the trial court's finding that it

was in Janira's best interests to terminate respondent's parental

rights.

     Respondent finally contends that subsections (b), (c), and

(m) of section 1(D) of the Adoption Act are unconstitutional in

violation of her state and federal procedural due process rights

because these subsections allow the termination of parental

rights based on less than clear and convincing evidence.

Respondent maintains that a finding of parental abuse and neglect

necessary for a subsequent finding of unfitness under subsections

(b), (c), and (m) need only be proven by a preponderance of the

evidence and therefore these subsections are unconstitutional

because they do not require such underlying findings of abuse and

neglect be proven by clear and convincing evidence.   We disagree.

     Although respondent failed to raise this due process

argument at the hearings to terminate her parental rights, we

elect to address it because of its constitutional nature. See In

re S.F., 359 Ill. App. 3d 63, 65, 834 N.E.2d 453 (2005).    The

United States Supreme Court has determined that, due to the


                               -21-
1-06-0111

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, 71 L. Ed.

2d 599, 102 S. Ct. 1388 (1982); In re Adoption of Syck, 138 Ill.

2d 255, 276, 562 N.E.2d 174 (1990).   Respondent urges us to adopt

the same higher standard of proof for abuse and neglect hearings.

We must decline respondent's request.

     In Santosky, the Court stated that the test to determine

what process is constitutionally due in a proceeding to terminate

parental rights involves the balancing of three factors set forth

in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33,

96 S. Ct. 893, 903 (1976), the privacy interests affected by the

proceeding; the risk of error created by the state's chosen

procedure; and the governmental interests supporting the use of

the challenged procedure. Santosky, 455 U.S. at 754, 71 L. Ed. 2d

at 607, 102 S. Ct. at 1395.

     Our courts, after considering and weighing each of these

three factors, have concluded that a natural parent's due process

rights are not violated where the grounds for termination of

parental rights are established by clear and convincing evidence

and the underlying abuse and neglect determinations are

established by a preponderance of the evidence. See In re S.A.,

296 Ill. App. 3d 1029, 1033-35, 696 N.E.2d 368 (1998); see also

In re Jamarqon, 338 Ill. App. 3d 639, 646, 788 N.E.2d 344 (2003).

     In regard to the first factor, the private interests at


                              -22-
1-06-0111

stake are the interest of a parent in the care, custody and

management of her child and on the other hand the child's

interest in a loving, stable and safe home environment. In re

Travarius, 343 Ill. App. 3d 844, 851, 799 N.E.2d 510 (2003).    At

the adjudicatory stage, however, the parent's interest in

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

interest in a stable, loving home life, since at this stage, the

trial court focuses solely upon whether the child has been

neglected or abused and not on whether the parents were

neglectful or abusive. See In re K.T., 361 Ill. App. 3d 187, 201,

836 N.E.2d 769 (2005); In re Christina, 333 Ill. App. 3d 1030,

1034, 777 N.E.2d 655 (2002) ("purpose of an adjudicatory hearing

is to determine whether the child has been neglected, not to

determine the status of the parent").

     In addition, an underlying finding of abuse or neglect does

not affect the parental relationship to the same constitutionally

significant degree as a termination proceeding because under

section 1(D) of the Adoption Act, a parent cannot have his or her

parental rights terminated based solely upon a finding of neglect

or abuse. See In re Jamarqon, 338 Ill. App. 3d at 649.    The

parental rights of a nonconsenting parent may be terminated only

upon a finding of unfitness and such finding must be supported by

clear and convincing evidence. In re J.P., 261 Ill. App. 3d 165,

174, 633 N.E.2d 27 (1994).   The first factor weighs against

respondent.


                               -23-
1-06-0111

     Under the second Mathews factor, we examine the extent to

which the preponderance of the evidence standard creates a risk

of an erroneous deprivation of parental rights and the likelihood

that a higher evidentiary standard would reduce that risk.    The

risk of error in question is the risk of erroneous fact finding.

Santosky, 455 U.S. at 755, 71 L. Ed. 2d at 607-08, 102 S. Ct. at

1399.

     The risk of error at issue here is the risk that underlying

facts of central importance to a termination proceeding will be

incorrectly determined at an abuse and neglect adjudication under

a preponderance standard.   We find this risk is minimal at most

because the statutes require the State to prove by clear and

convincing evidence that the parent is unfit before terminating

his or her parental rights.   Imposing an additional requirement

that the underlying adjudication of abuse or neglect be supported

by clear and convincing evidence is not necessary to protect the

private interests at stake.   Due process does not require that

the underlying abuse or neglect adjudication be supported by

clear and convincing evidence.    The second factor weighs against

respondent.

     The third and final factor to be weighed is the governmental

interests supporting the use of a preponderance of the evidence

standard at an adjudicatory hearing.    This factor also weighs

against respondent's position.

     A primary purpose of the Juvenile Court Act is to preserve


                                 -24-
1-06-0111

and strengthen the minor's family ties whenever possible. In re

Polovchak, 104 Ill. App. 3d 203, 209, 432 N.E.2d 873 (1981).    In

dependency and neglect proceedings, both the State's Attorney and

trial court are charged with the duty of ensuring that at each

step of the wardship adjudication process the best interests of

the minor, the minor's family, and the community are served. In

re A.F., 234 Ill. App. 3d 1010, 1014, 602 N.E.2d 480 (1991).

Permitting the State to establish findings of abuse and neglect

under a preponderance standard advances the State's parens

patriae interest in protecting the welfare of its children and

preserving family ties by providing the State with the

jurisdictional bases and necessary flexibility to provide social

services and dispositional remedies that help families address

the root causes of dependency and neglect. See In re Arthur, 212

Ill. 2d 441, 464, 819 N.E.2d 734 (2004) ("A finding of abuse,

neglect or dependency is jurisdictional, '" without [which] the

trial court lacks jurisdiction to proceed to an adjudication of

wardship'").

     Heightening the standard of proof for abuse and neglect

proceedings could make it more difficult for the State to protect

its children and could lessen the ability of courts and the State

to fashion workable solutions to preserve family ties. See In re

S.A., 296 Ill. App. 3d at 1034.   Preponderance of the evidence is

the appropriate standard of proof to be applied in abuse and

neglect proceedings under the Juvenile Court Act.


                              -25-
1-06-0111

     Based on the foregoing analysis of the Mathews factors, we

conclude that due process does not require the imposition of a

clear and convincing standard of proof in an abuse or neglect

adjudication.    Under the preponderance standard, respondent's

fundamental right to the care, custody and management of her

child receives full protection, the risk of error in fact finding

is insignificant, and the substantial governmental interest in

intervening to provide necessary remedial assistance is promoted.

See In re A.M.D., 648 P.2d at 640-41.

     Accordingly, for the reasons set forth above, the judgment

of the circuit court of Cook County is affirmed.

     Affirmed.

     WOLFSON, P.J., and SOUTH, J., concur.




                                -26-
