                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                    Douglas R.S. v. Jennifer A.S., 2012 IL App (5th) 110321




Appellate Court            DOUGLAS R.S., Petitioner-Appellant, v. JENNIFER A.S., Respondent-
Caption                    Appellee.



District & No.             Fifth District
                           Docket No. 5-11-0321


Filed                      April 12, 2012


Held                       Certified question as to whether, for purposes of determining parental
(Note: This syllabus       unfitness under section 1(D)(n) of the Adoption Act, any act that a father
constitutes no part of     claims deprived him of the ability to visit or communicate with his child
the opinion of the court   must arise after the 12-month period is alleged to have begun was
but has been prepared      answered by appellate court by the statement that any evidence he wishes
by the Reporter of         to present during the unfitness portion of the hearing explaining his
Decisions for the          reasons for not communicating with his child for a 12-month period must
convenience of the         have occurred during that 12-month time frame, but evidence occurring
reader.)
                           outside that time period is allowable at the second-stage best-interests
                           hearing.


Decision Under             Appeal from the Circuit Court of Wayne County, Nos. 01-D-83, 09-AD-
Review                     2; the Hon. Thomas J. Foster, Judge, presiding.



Judgment                   Affirmed; cause remanded.
Counsel on                 Gary E. Milone, of Coble & Milone, of Flora, for appellant.
Appeal
                           Morris Lane Harvey, of Law Office of Morris Lane Harvey, of Mt.
                           Vernon, for appellee.


Panel                      PRESIDING JUSTICE DONOVAN delivered the judgment of the court,
                           with opinion.
                           Justices Chapman and Spomer concurred in the judgment and opinion.


                                             OPINION

¶1           Douglas R.S. (Father) filed an application for leave to appeal pursuant to Illinois
        Supreme Court Rule 308 (eff. Feb. 26, 2010) in connection with the adoption proceedings
        initiated by Jennifer A.S. (Mother) attempting to terminate his parental rights to the parties’
        minor child. The circuit court of Wayne County granted the application and certified the
        parties’ question without objection. We affirm.
¶2           The marriage of Father and Mother was dissolved in September of 2002. At the time of
        the dissolution, the parties had a joint-parenting agreement regarding custody of their minor
        child. In March of 2005, Mother filed a petition to modify that agreement seeking an increase
        in child support and to reduce Father’s time with the child. Father, on the other hand, filed
        a petition for enforcement of visitation and for rule to show cause alleging that his former
        wife had withheld visitation of the minor child from him. Both petitions were never resolved
        and remain pending.
¶3           In January 2009, Mother and her new husband filed a petition in Hamilton County
        seeking to adopt the minor child. Before a minor may be adopted, it is necessary either for
        the minor’s natural parent or guardian to consent to the adoption or for a court to find that
        the natural parent is unfit. In the petition, Mother alleged that Father had not communicated
        with the minor child since December 15, 2005, and pursuant to section 1(D)(n) of the
        Adoption Act (750 ILCS 50/1(D)(n) (West 2004)) had evidenced his intent to forego his
        parental rights. The case was transferred to Wayne County and consolidated with the original
        dissolution-of-marriage case. Mother filed an amended petition for adoption on March 8,
        2010, again alleging the same single ground for adoption. Father subsequently filed an
        amended affirmative defense raising several matters relating to conduct and incidents that
        Father claimed explained his lack of communication with the minor child. All of the alleged
        incidents occurred before December 15, 2005. In fact, the last incident listed in Father’s
        defense as creating an impediment to his communication with the minor child allegedly took
        place on May 18, 2005. No allegation was made as to why Father’s communications
        continued to take place up to December 15, 2005, however. Mother responded by filing a
        motion to strike the amended affirmative defense, arguing that any events occurring prior to
        December 15, 2005, were not relevant and did not constitute a defense. The trial court chose

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     not to strike Father’s defense but ruled that matters which may have occurred prior to the last
     date of communication alleged, December 15, 2005, would not be admissible at the fitness
     prong of the adoption proceeding. Mother filed a motion for clarification or in the alternative
     to certify a question pursuant to Supreme Court Rule 308. In a further ruling, the trial court
     did clarify that Father’s evidence could be considered at the second prong of the hearing on
     the issue of best interests of the child. A motion was then filed by Father to certify for appeal
     the same question as had been posed by Mother. The court entered the order without
     objection, granting the motion and certifying the question both parties raised. The question
     certified, as posed by the parties, is: “In relation to determining parental unfitness pursuant
     to 750 ILCS 50/1(D)(n) must any act which [Father] claims to have deprived him of the
     ability to visit or communicate arise after the twelve month [period] is alleged to have
     begun.” The trial court answered the certified question in the affirmative by determining that
     acts which may constitute a defense for the fitness portion of the hearing must have taken
     place during the 12-month period in which no communication took place, commencing with
     the last date of communication. We conclude that the trial court’s ruling is correct.
¶4       Given that this appeal involves only a legal question and interpretation of a statute, the
     standard of review is de novo. In re C.N., 196 Ill. 2d 181, 208, 752 N.E.2d 1030, 1046
     (2001). We therefore turn our attention to the language of the Adoption Act, in particular to
     section 1(D)(n) (750 ILCS 50/1(D)(n) (West 2004)).
¶5       Termination of parental rights is a two-stage process. In re Adoption of Syck, 138 Ill. 2d
     255, 276, 562 N.E.2d 174, 183-84 (1990). At the first stage “fitness hearing,” the petitioning
     parent must prove that the respondent parent is “unfit” by clear and convincing evidence. The
     focus is solely upon the conduct of the parent at this point. If the petitioning parent proves
     unfitness by clear and convincing evidence, then the case proceeds to a second stage “best-
     interests hearing” at which the petitioning parent must prove by a preponderance of the
     evidence that it is in the best interests of the minor child that the parental rights of the
     respondent parent be terminated. In re Adoption of Syck, 138 Ill. 2d at 276-77, 562 N.E.2d
     at 183-84; see also In re D.T., 212 Ill. 2d 347, 365-66, 818 N.E.2d 1214, 1227-28 (2004). At
     the best-interests hearing, the focus shifts from the respondent parent to the child, and the
     issue becomes whether, in light of the child’s needs and best interests, the respondent’s
     parental rights should be terminated. In re D.T., 212 Ill. 2d at 364, 818 N.E.2d at 1227.
     Because the focus of the two hearings is different, and each has differing purposes, evidence
     that is admissible at one hearing may not be admissible at the other. See In re D.L., 191 Ill.
     2d 1, 10-13, 727 N.E.2d 990, 994-96 (2000) (only evidence of parent’s conduct in 12 months
     following adjudication of neglect could be introduced at fitness hearing, but at best-interests
     hearing, parent could then introduce evidence of parent’s conduct occurring outside
     applicable 12-month period).
¶6       Section 1(D)(n) of the Adoption Act provides that a parent evidences his intent to forego
     parental rights by failing to visit or communicate with a child for a period of 12 months. The
     language of the statute specifically states that a parent evidences an intent to forego his or her
     parental rights, whether or not the child is a ward of the court:
         “(1) as manifested by his or her failure for a period of 12 months: (i) to visit the child,
         (ii) to communicate with the child or agency, although able to do so and not prevented

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         from doing so by an agency or by court order, or (iii) to maintain contact with or plan for
         the future of the child, although physically able to do so.” 750 ILCS 50/1(D)(n) (West
         2004).
¶7       Section 1(D)(n) further provides:
         “In the absence of evidence to the contrary, the ability to visit, communicate, maintain
         contact, pay expenses and plan for the future shall be presumed. The subjective intent of
         the parent, whether expressed or otherwise, unsupported by evidence of the foregoing
         parental acts manifesting that intent, shall not preclude a determination that the parent
         has intended to forgo his or her parental rights.” 750 ILCS 50/1(D)(n) (West 2004).
     The language clearly establishes a 12-month period for a parent failing to communicate with
     or keep in contact with the child. The 12-month line of demarcation begins with the date of
     the last visit or communication between the parent and the child. It is the same type of line
     of demarcation as found in subsection 1(D)(m) (750 ILCS 50/1(D)(m) (West 2004)), with
     the former 12-month period (amended in 1997 to 9 months) beginning on the date of
     adjudication of neglect. Both subsections set forth a time frame within which a parent must
     perform one or more activities to avoid a finding of unfitness. Our Illinois Supreme Court
     declared in In re D.L., a case arising under the Juvenile Court Act of 1987 interpreting the
     earlier subsection 1(D)(m), that only evidence of a parent’s conduct during the 12 months
     following adjudication of neglect can be introduced at the fitness hearing, but at the best-
     interests hearing, the parent could then introduce evidence of any conduct occurring outside
     the applicable 12-month period. In re D.L., 191 Ill. 2d at 10-13, 727 N.E.2d at 994-96. Given
     that the Juvenile Court Act of 1987 (705 ILCS 405/1-1 to 7-1 (West 2004)) and the Adoption
     Act are to be construed in concert with and consistent with each other (see 750 ILCS 50/2.1
     (West 2004)), we agree that both subsections should be interpreted consistently. We therefore
     see no reason to treat the admission of evidence with respect to subsection 1(D)(n) any
     differently. Again, as the Illinois Supreme Court noted in In re D.L., the varying presence and
     absence of time periods in the provisions contained under section 1(D) demonstrate that the
     legislature believed that, for purposes of establishing certain allegations of unfitness, a
     parent’s conduct in a specified period of time is relevant. In re D.L., 191 Ill. 2d at 10-11, 727
     N.E.2d at 994-95. The legislature emphasized that intent by enacting section 20a, specifically
     directing that the language should not be construed so as to result in extending the time limits
     beyond those set forth in the Adoption Act. 750 ILCS 50/20a (West 2004). Accordingly, we
     agree with the trial court’s determination that any evidence Father wished to present during
     the unfitness portion of the hearing explaining his reasons for not communicating with his
     child for a 12-month period had to have occurred during that 12-month time frame. Any
     evidence occurring outside of that time period is, however, allowable at the second-stage
     best-interests hearing.
¶8       For the foregoing reasons, we affirm the ruling of the circuit court of Wayne County
     rendered in answering the certified question posed by the parties and remand this cause for
     further proceedings.

¶9       Affirmed; cause remanded.


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