                             2019 IL App (2d) 181008
                                  No. 2-18-1008
                            Opinion filed May 6, 2019
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re M.B., D.B., and D.B., Minors.    ) Appeal from the Circuit Court
                                       ) of Winnebago County.
                                       )
                                       ) Nos. 17-JA-35
                                       )      17-JA-36
                                       )      17-JA-37
                                       )
(The People of the State of Illinois,  ) Honorable
Petitioner-Appellee, v. Maurice B.,    ) Francis M. Martinez,
Respondent-Appellant).                 ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Justices McLaren and Hudson concurred in the judgment and opinion.

                                            OPINION

¶1     On November 13, 2018, the circuit court of Winnebago County found that the State had

established by clear and convincing evidence that respondent, Maurice B., was unfit to parent his

children, M.B., D.B., and D.B. (ages three, six, and eight at the time of the hearing) and that it

was in the children’s best interests that respondent’s parental rights be terminated. Respondent

appeals, arguing that the court’s findings that he was unfit and that termination was in the

children’s best interests are contrary to the manifest weight of the evidence and, further, that his

due process rights were violated when the court vacated his attorney’s appointment before the

unfitness hearing. As we agree with respondent’s due process argument, we vacate the court’s

judgment and remand.
2019 IL App (2d) 181008


¶2                                     I. BACKGROUND

¶3     In January 2017, the Department of Children and Family Services (DCFS) was called to

respondent’s home after his two-month-old infant’s death was reported.          (The pathologist

concluded that the infant’s cause of death was suffocation upon co-sleeping.) Respondent and

Doneisha T., the children’s mother, 1 reportedly gave varying accounts of the events leading to

the death, and the three other children were told not to talk to DCFS. After an investigation

revealed multiple reports of domestic violence between respondent and Doneisha and police

found 30 bags of marijuana in the residence, DCFS took protective custody of the children.

¶4     On August 1, 2017, the children were adjudicated neglected. The report of proceedings

reflects seven hearings between February 2, 2017, and August 7, 2017; respondent was present at

four of the hearings and his appointed counsel was present at all of them. During a hearing at

which respondent was not present, the court learned that respondent’s counsel had not had any

contact with respondent since the previous court date and that respondent had missed

appointments with the caseworker; as such, the court found that respondent forfeited his right to

be present at the hearing.

¶5     On September 28, 2017, the court held a dispositional hearing. Respondent was present

with counsel. The court reminded respondent that he must cooperate and make reasonable

progress or the State had could petition to terminate his parental rights. A permanency hearing

was scheduled.

¶6     At the February 28, 2018, permanency hearing, respondent was present with counsel.

However, at the next permanency hearing, on August 10, 2018, respondent was not present.

       1
           Doneisha was a party to the trial court proceedings, and her parental rights were also

terminated. She is not, however, a party to this appeal.



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Counsel reported that she had not had any recent contact with respondent. The court noted that

there was an outstanding warrant for respondent’s arrest. The court continued the hearing to

August 22, 2018.

¶7     On August 22, 2018, neither respondent nor Doneisha appeared, and their respective

attorneys reported that they had not had any contact with them. A caseworker represented that

she believed that they were in Chicago, that they had missed their last scheduled visit, and that

respondent had an outstanding warrant. Doneisha’s attorney stated that Doneisha had expressed

a wish to move the case to Chicago because the entire family was there. The court confirmed,

however, that the children were not placed in Chicago. The court further learned that respondent

had been discharged from counseling and substance-abuse services because he committed, and

was convicted of, aggravated battery of Doneisha and was incarcerated. The court commented,

“I think I arraigned him during this period in bond court. I seem to have run into him once or

twice.” Further, respondent was required to have only supervised visitation but had engaged in

unsupervised contact with the children. The court changed the goal to substitute care pending

termination of parental rights and set an arraignment date, finding:

       “[Respondent] was convicted of aggravated battery against the mother. He currently has

       a warrant outstanding. He is a fugitive from justice. He has failed to appear here in

       court, and is at this point, as [the guardian ad litem] says, no closer to reunification than

       he was the day we entered the disposition, in the Court’s opinion. Therefore, he has not

       made reasonable progress at this time nor efforts.”

¶8     On September 25, 2018, the court held an arraignment on the petition to terminate

parental rights. Respondent was not present. The court noted that respondent had, from time to




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2019 IL App (2d) 181008


time, been in custody, and it inquired as to respondent’s status. Regarding her efforts to contact

respondent, counsel stated:

                “I attempted to contact him by every phone number that I have on file. I don’t

        have an up-to-date address to reach him at.        The last I knew from [the previous

        caseworker,] he had relocated to Chicago, and I did not have a Chicago address for him.

                ***

                So I have not had contact with him for some time.”

Doneisha and the caseworkers also represented that they had not had contact with respondent

and/or did not know whether respondent had relocated. The court found that respondent had

forfeited his right to be present at the hearing.

¶9      On November 6, 2018, the unfitness hearing commenced. Respondent was not present.

His counsel was present and reported that she had not had any contact with him. The court,

recollecting the outstanding warrant, questioned whether respondent was in custody and asked

the assistant state’s attorney to check “our jail.” After a discussion off the record, the assistant

state’s attorney reported that respondent was not in custody in Winnebago County. The court

made the following findings:

                “Parents have not communicated with their attorneys and have not taken

        advantage or assisted them in the preparation of this case for termination. They have

        indicated that they are not inclined to participate in this termination of parental rights.

        They are now—they have not assisted their attorneys in preparation for this termination

        of parental rights, so I’m going to vacate their appointments.        Both counsels were

        previously appointed, are not retained. And then we will proceed with the [termination of

        parental rights] essentially as a prove up.



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2019 IL App (2d) 181008


                *** [T]he findings are quite clear that they’ve waived their right to be present,

       and they’ve waived their right to counsel because they have not cooperated with counsel

       in the preparation, counsel’s preparation of this case.” (Emphasis added.)

¶ 10   Accordingly, respondent’s counsel was discharged and did not participate further in the

proceedings. Thereafter, the State presented the children’s current caseworker, who laid the

foundation for the admission of service plans, and the court admitted additional documentary

evidence and received argument from the State and the guardian ad litem. The court found that

the State proved by clear and convincing evidence that respondent was unfit on both bases

alleged in the petition: (1) failing to protect the children from conditions within their

environment injurious to their welfare (750 ILCS 50/1(g) (West 2016)) and (2) failing to make

reasonable progress toward the return of the children within any nine-month period after the

neglect adjudication (id. § 1(m)(ii)). The court again noted that the parents had “absented

themselves from these proceedings without excuse.” The court also noted that respondent had

failed to complete services necessary for reunification, that respondent had not made progress

toward unsupervised visitation, and that respondent had presented no evidence to contradict the

State’s case.

¶ 11   The case immediately proceeded to a best-interests hearing, again without respondent or

his counsel present. The caseworker testified that the children were split between two traditional

foster homes (the oldest in one, and the other two in another) and had been in those homes for

approximately two months. The foster homes were safe and appropriate, the children were

comfortable in them, and the foster parents were providing for the children’s needs. The foster

parents were not yet sure whether they would be willing to adopt the children, as the placements

were relatively new. The court found that it was in the children’s best interests to terminate both



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2019 IL App (2d) 181008


parents’ parental rights. It noted that “both parents are still unfit, and reunification with those

parents is certainly bleak to say the least.”

¶ 12    The record does not reflect when or how respondent was notified of the court’s decision,

but, on December 5, 2018, respondent, pro se, filed a timely notice of appeal.

¶ 13                                        II. ANALYSIS

¶ 14    We find dispositive respondent’s contention that his due process rights were violated

when the trial court dismissed his appointed counsel before the unfitness hearing. Respondent

notes that his counsel was present and prepared to participate in the hearing, that conducting the

hearing would not have been a great burden to either counsel or the State, and that counsel could

have cross-examined the caseworker and made arguments on respondent’s behalf. 2 For the

following reasons, we agree.

¶ 15    The due process clause of the United States Constitution provides heightened protection

against government interference with parents’ fundamental rights, including their right to make

decisions concerning the care, custody, and control of their children. Wickham v. Byrne, 199 Ill.

2d 309, 316 (2002). In limited instances, however, State interference with fundamental parental

rights is justified to protect the health, safety, and welfare of children. Id. at 317. “Due process

        2
            We note that respondent’s brief dedicates one paragraph to this issue (and he did not file

a reply brief). Respondent provides a few relevant citations, but, instead of presenting a fully

developed argument, he concludes simply that “it is clear” that his due process rights were

violated.     His arguments on the remaining issues are similarly abbreviated.           We remind

respondent that this court is entitled to cohesive arguments and is not simply a repository into

which an appellant may foist the burden of argument and research. See, e.g., In re Marriage of

Knoll, 2016 IL App (1st) 152494, ¶ 69.



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2019 IL App (2d) 181008


in the context of interference with parental rights is achieved by compliance with the provisions

of the Juvenile Court Act [of 1987] and fundamental fairness.” In re D.T., 2017 IL App (3d)

170120, ¶ 23. We review de novo claims concerning due process violations. In re A.M., 402 Ill.

App. 3d 720, 723 (2010).

¶ 16   Although a respondent parent has no constitutional right to counsel in proceedings under

the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2016)), the parent has a

statutory right to counsel. Specifically, as relevant here, section 1-5(1) of the Act (id. § 1-5(1))

provides that a respondent parent has the right to be present at the proceedings and to the

appointment of counsel (if he or she is financially unable to employ counsel). That section

further provides:

              “Counsel *** shall appear at all stages of the trial court proceeding, and such

       appointment shall continue through the permanency hearings and termination of parental

       rights proceedings subject to withdrawal or substitution pursuant to Supreme Court Rules

       or the Code of Civil Procedure. Following the dispositional hearing, the court may

       require appointed counsel *** to withdraw his or her appearance upon failure of the party

       for whom counsel was appointed under this Section to attend any subsequent

       proceedings.” (Emphases added.) Id.

¶ 17   Here, although the trial court did not reference section 1-5 of the Act, the parties view the

court as having implicitly relied on section 1-5’s option to “require” appointed counsel’s

withdrawal. Under this framework, we cannot conclude that the court erred in determining that,

as respondent had failed to appear at multiple hearings following the dispositional hearing,

requiring counsel’s withdrawal was permitted by the Act.




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2019 IL App (2d) 181008


¶ 18   However, and as the State concedes, the court did not follow the statute’s procedures,

which provide that, although the court may require an attorney to withdraw, the withdrawal must

follow “Supreme Court Rules.” Id. Illinois Supreme Court Rule 13(c) (eff. July 1, 2017)

provides that counsel must submit a written motion to withdraw and provide notice to the

represented party by personal service or certified mail before withdrawal is allowed. Further,

after withdrawal is allowed, Rule 13(c) establishes a 21-day period for the party to retain new

counsel or enter his or her own appearance. As there was no written motion, service, or

continuance here, the court erred in dismissing counsel.

¶ 19   The State argues that, despite the Rule 13(c) violations, respondent’s due process rights

were not infringed. The State contends that any error was harmless, given the strength of the

evidence and respondent’s decision to absent himself from proceedings. We disagree.

¶ 20   When determining what due process requires in proceedings that implicate a fundamental

liberty interest, three factors must be considered: (1) the private interest implicated by the official

action; (2) the risk of erroneous deprivation of that interest through the procedures used, and the

probable value, if any, of additional or substitute safeguards; and (3) the government’s interest,

including the function involved and the fiscal and administrative burdens that the additional or

substitute safeguards would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976); In re Andrea

F., 208 Ill. 2d 148, 165 (2003) (same factors apply to assess due process under Illinois

Constitution). These factors have been applied in cases concerning termination of parental

rights. See Andrea F., 208 Ill. 2d at 165.

¶ 21   As to the first factor, the private interest at stake is respondent’s fundamental interest in

the control, custody, and care of his children.




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2019 IL App (2d) 181008


¶ 22   As to the second factor, we cannot conclude that there is only a minimal risk that the

court’s error erroneously deprived respondent of his fundamental interest. Indeed, respondent’s

interest was completely unrepresented at the termination hearings, as he was absent and his

counsel was discharged. The State argues that any error was harmless because the proceedings

to terminate respondent’s parental rights arose due to respondent’s own acts or omissions,

namely his objective failure to make reasonable progress toward the return of his children.

Therefore, the State argues, as reasonable progress could be objectively determined from the

record, respondent’s lack of representation did not affect the court’s finding of unfitness.

Similarly, the State argues, the court’s best-interests finding could not have been affected by the

absence of respondent’s counsel, as the evidence reflected that the children could not be returned

to respondent’s care in the near future and were being adequately cared for in their foster

placements.

¶ 23   Of course, the objective evidence the State references was not subject to cross-

examination by respondent or his counsel at the proceedings. As respondent’s appellate counsel

noted at oral argument, we do not know what arguments counsel might have made, what

evidence might have been presented, or what questions might have been asked of the State’s

witness, had counsel not been discharged. Accordingly, while it is easy to argue that the record

objectively supported the court’s findings, it remains that the court was not presented with “both

sides” of that record. Thus, to the extent that the State suggests that there can be no due process

violation here simply because the case was ultimately a “slam dunk” for the State, we disagree.

“At a minimum, procedural due process requires notice, an opportunity to respond, and a

meaningful opportunity to be heard.” In re Estate of Gustafson, 268 Ill. App. 3d 404, 409

(1994). Where there was no notice to respondent of the unfitness hearing and no notice that his



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2019 IL App (2d) 181008


counsel would be discharged—and accordingly the State’s evidence was uncontested—we

cannot say that the Rule 13(c) violations were harmless and did not infringe due process.

¶ 24   We acknowledge that, in the recent decision In re S.P., 2019 IL App (3d) 180476, ¶¶ 43-

44, the Third District held that, despite Rule 13(c) violations, allowing the respondent father’s

counsel to withdraw did not constitute a due process violation. Specifically, counsel orally

requested to withdraw when the respondent failed to appear and counsel had not had any contact

with him in almost one year, and the trial court granted the request. The appellate court held

that, because counsel did not follow Rule 13(c), the trial court erred in allowing counsel to

withdraw. Nevertheless, the appellate court held that the error did not constitute a due process

violation, as the risk that the respondent was erroneously deprived of his fundamental right to

parent was minimal. Id. ¶ 44. The court recounted that the record showed that the respondent

(1) had appeared at the adjudication and dispositional hearings and thus was aware of the

proceedings; (2) had received a service plan; (3) had been admonished to comply with the terms

of the service plan or risk termination of his parental rights; (4) had failed to make himself

available to the caseworker; (5) had failed to remain in contact with counsel; and (6) was

incarcerated while counsel was withdrawn and there was no indication that the respondent

attempted to contact counsel for any reason, let alone for advice or assistance regarding making

progress. Id.

¶ 25   Each of the foregoing six factors is also present here. 3 However, there are two critical

distinctions. First, in S.P., the court also noted that the only proceedings that took place while

       3
           As to the sixth circumstance, incarceration, it is not entirely clear, but it appears that

there was an outstanding warrant for respondent’s arrest and that respondent was incarcerated for

a period. In any event, he certainly did not reach out to counsel for assistance with making



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2019 IL App (2d) 181008


the respondent was without counsel concerned the mother’s progress. Id. Here, in contrast, the

proceedings that occurred in respondent’s and counsel’s absence were those most critical to

respondent’s parental rights, i.e., the termination proceedings. Second, in S.P., after counsel was

allowed to withdraw, the respondent reappeared in court at a subsequent hearing and, after the

court admonished him to keep in contact with counsel, it reappointed counsel. As such, the

respondent was fully represented at the termination hearings. Id. Here, there was no opportunity

for respondent to reappear or for counsel to be reappointed, as there was no notice of counsel’s

dismissal and no continuance of the case.       Rather, the court vacated the appointment and

dismissed counsel at the unfitness hearing, outside of respondent’s presence, and he lacked any

representation at the termination hearings. Accordingly, this case lacks two critical facts that

allowed the court in S.P. to find that the Rule 13(c) violations resulted in only a minimal risk of

an erroneous deprivation of rights. Under these facts, we find S.P. distinguishable.

¶ 26   We instead find instructive In re Robert S., 357 Ill. App. 3d 214 (2005). Although not in

a due process framework, the court in Robert S. held that the trial court erred by granting the

attorney’s motion to withdraw and then immediately conducting hearings on the termination

petition. Id. at 218. The respondent had received notice of the attorney’s motion (unlike here),

and the notice advised the respondent that if withdrawal were granted she would have 21 days to

secure new counsel or file an appearance. As the court instead granted the motion to withdraw

and immediately conducted hearings on the petition, Rule 13(c) was violated and the respondent

was neither present nor represented by counsel at the termination proceedings. The appellate

court held that the error required reversal and a remand. Id.




reasonable progress or to advise counsel of his whereabouts.



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2019 IL App (2d) 181008


¶ 27   We also find instructive In re J.P., 316 Ill. App. 3d 652, 663 (2000), wherein this court

concluded that a respondent’s due process rights were violated when the trial court conducted the

best-interests hearing in the absence of both the respondent and her counsel, who was allowed to

withdraw without Rule 13(c) compliance. We reversed the order finding the respondent unfit

and the subsequent order terminating her parental rights, and we remanded the cause for a new

hearing to determine whether the respondent was unfit. Id. at 659.

¶ 28   We are not immune to the frustration caused by respondent’s absence. Indeed, after the

dispositional hearing, respondent was not only absent from four out of the five remaining

hearings—his whereabouts were completely unknown. Respondent had no contact with his

counsel or the caseworker. Doneisha did not know where he was. Counsel tried to reach him on

every phone number that she had, to no avail, and she had no current address for him. Ten

months passed between respondent’s last court appearance and the court’s dismissal of counsel;

thus, respondent was absent for approximately two-thirds of this case. (The entire proceedings,

from the neglect adjudication (August 2017) through termination (November 2018), took place

over approximately 15 months). When present in court, respondent was routinely admonished

that his cooperation and reasonable progress were required or he risked termination of his

parental rights.     Nevertheless, without excuse, respondent absented himself from these

proceedings and from contact with counsel. We note that, even on appeal, respondent offers no

explanation or excuse for his absences and his failure to contact or cooperate with either counsel

or the caseworker.

¶ 29   However, respondent was an active participant in the process prior to the dispositional

hearing. The timing of respondent’s absences appears to coincide with criminal issues and an

outstanding warrant, perhaps suggesting fear that a court appearance would result in an arrest.



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Setting aside that speculation, it is objectively true that respondent’s counsel was present at every

single hearing. It is not unreasonable to presume that respondent might have absented himself

with the understanding that, even when he was not present, his counsel would be present and

that, if counsel were to withdraw, respondent would receive notice. Indeed, as that is, in fact,

what section 1-5(1) of the Act and Rule 13(c) collectively provide, that presumption would be

reasonable.

¶ 30   As to the third and final due process factor, the State contends that, had the termination

proceedings been further delayed upon the court’s decision to dismiss counsel, the State’s

interest would have been burdened. Without minimizing the importance of efficiency and

finality in these cases, we do not agree that any such burden on the State would have been great.

A little over one month passed between the September 25, 2018, arraignment on the termination

petition and the November 6, 2018, termination proceedings. One 21-day continuance to comply

with Rule 13(c) would not have been onerous. Moreover, we emphasize that, if the burden of

delay was the overarching concern, a reasonable alternative existed: as counsel was already

present for the hearing, the court could have simply proceeded, leaving counsel’s appointment

intact. Again, counsel here did not request to withdraw. The court acted sua sponte. Instead of

doing so, the court could have found that respondent forfeited only his statutory right to be

present and it could have proceeded, with counsel, in his absence. See, e.g., J.P., 316 Ill. App.

3d at 661 (“[a]lthough a parent has a right to be present at a hearing to terminate parental rights,

presence is not mandatory, and the trial court is not obligated to delay the proceedings until the

parent chooses to appear” and “even if her or his absence from the hearing is involuntary, a

parent’s right to due process is not violated when the conditions preventing the parent’s presence

are likely to continue indefinitely”). Under these facts, proceeding in respondent’s absence, but



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leaving intact counsel’s appointment, would have also alleviated the State’s concern that a

respondent parent who wishes to delay an unfitness or best-interests finding could do so by

refusing to cooperate with counsel or failing to appear in court at strategic times. We reiterate:

       “[A] trial court should not hesitate to determine fitness in the absence of a parent who is

       attempting to manipulate the system to her or his own advantage. [Citation.] However,

       when balancing a parent’s interests and right to due process against the interests favoring

       a prompt disposition, a trial court must cautiously observe the relevant procedural

       requirements because a disposition that must be reversed on appeal serves neither

       interest.” Id. at 663.

¶ 31   Unfortunately, neither a continuance nor a retention of counsel’s appointment was chosen

here and, consequently, the court’s action, taken presumably in the name of efficiency and

finality, has, regrettably, resulted in the opposite: delay, inefficiency, and uncertainty. As due

process in the context of interference with parental rights is achieved by compliance with the

provisions of the Act and fundamental fairness (In re D.T., 2017 IL App (3d) 170120, ¶ 23),

neither of which was satisfied here, we vacate the court’s judgment and remand for proceedings

consistent with this decision.

¶ 32                                    III. CONCLUSION

¶ 33   For the foregoing reasons, the judgment of the circuit court of Winnebago County is

vacated and the cause is remanded.

¶ 34   Vacated and remanded.




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