                                                           NO. 5-07-0127
                        N O T IC E

 Decision filed 08/03/07. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                            FIFTH DISTRICT
________________________________________________________________________
In re P.M.C. and J.L.C., Minors                   ) Appeal from the Circuit
                                                  ) Court of Marion County.
(The People of the State of Illinois, Petitioner- )
Appellee, v. Donald C., Respondent-               ) Nos. 01-JA-2 & 01-JA-3
Appellant).                                       )
                                                  ) Honorable Patrick J. Hitpas,
                                                  ) Judge, presiding.
________________________________________________________________________
                  JUSTICE WEXSTTEN delivered the opinion of the court:

                  The respondent, Donald C., appeals the circuit court's order finding him unfit to
parent his minor children–J.L.C., who was born on December 9, 1996, and P.M.C., who was

born on June 13, 1998. See 750 ILCS 50/1(D)(m) (West Supp. 2005). The circuit court

also determined that the children's mother, Ruth H., was unfit, but she did not appear at the

unfitness hearing and does not appeal the circuit court's determination.

                  On appeal, the respondent argues that the circuit court erred in finding that he had
made no reasonable progress toward the return of J.L.C. and P.M.C. See 750 ILCS
50/1(D)(m)(ii) (West Supp. 2005). We affirm in part and reverse in part.

                                                              FACTS

                  On January 16, 2001, the State filed petitions for the adjudication of wardship,
alleging that J.L.C. and P.M.C. were abused minors because the respondent had committed
predatory criminal sexual assault upon J.L.C. After a temporary custody hearing, the circuit

court found probable cause to believe that the minors were abused, found an urgent and
immediate necessity to remove the children from the respondent's home and place them in
shelter care, and granted temporary custody of the children to the Department of Children


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and Family Services (DCFS). After an adjudicatory hearing on July 2, 2001, and August 10,

2001, the circuit court, by docket entry, entered its order of adjudication finding that J.L.C.
and P.M.C. were abused minors. At the dispositional hearing on October 25, 2001, the
parties consented to an agreed disposition that DCFS place the children with the
respondent's parents. Accordingly, the circuit court entered its dispositional order, finding
J.L.C. and P.M.C. abused and placing guardianship and custody with DCFS.

       On March 31, 2005, the State filed a petition for the termination of parental rights.

In the petition, the State alleged that the respondent was unfit to parent J.L.C. and P.M.C.
because, pursuant to section 1(D)(m)(i) of the Adoption Act (750 ILCS 50/1(D)(m)(i) (West
Supp. 2005)), he had failed to make reasonable efforts to correct the conditions that were

the basis for the removal of the children and because, pursuant to sections 1(D)(m)(ii) and
1(D)(m)(iii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii), (D)(m)(iii) (West Supp. 2005)),

he had failed to make reasonable progress toward the return of the children to him within

the relevant nine-month periods.

       On November 6, 2006, at the hearing on the petition to terminate the respondent's

parental rights, the respondent testified that he attended every scheduled visit with his
children. The respondent also testified that, following the dispositional hearing, he
continuously attended sex-offender counseling sessions. The respondent denied committing

any sexual offense against J.L.C. The respondent testified that during therapy sessions with

Ray Swift, Todd Holsapple, Dale Spitler, Linda Stover, and his therapy group, he admitted
that he had sexually abused J.L.C. The respondent testified that he admitted the offense in
therapy only because his attorney had advised him to do so.

       Linda Stover, a licensed clinical professional counselor, testified that she specialized
in sex-offender treatment and evaluation. Stover testified that she first treated the
respondent on March 25, 2003. Stover testified that the respondent received a certificate of


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completion in July 2003 for successfully completing the sex offenders' outpatient program.

Stover testified that at that time, she felt as though the respondent could evaluate boundary
violations for himself. Stover testified, however, that in a July 30, 2003, letter written to the
respondent's probation officer (regarding an intimidation charge unrelated to the present
case), she stated that the respondent had completed his probation and would no longer be
seeking treatment, but she suggested that the respondent continue treatment to address

anger-management, relationship, and relapse-prevention issues. Stover testified that after

July 29, 2003, the respondent returned for treatment on February 10, 2004, but that she had
no further contact with the respondent after August 24, 2004.
        Dr. Alexander James testified that he performed a psychological evaluation of the

respondent and a bonding assessment involving the respondent and his children. The
respondent stipulated to Dr. James's qualifications and to the admission of Dr. James's two

reports. Dr. James's psychological evaluation report, dated August 25, 2004, was based on

an August 9, 2004, evaluation of the respondent.

        Todd Holsapple, a mental health therapist for the Community Resource Center

(CRC), testified that the respondent began level one of sex-offender therapy on September
7, 2004, when the respondent transferred from a previous provider, and that Holsapple
began treating the respondent in February 2006. Holsapple testified that in the course of

maintaining a counseling position with the respondent, he reviewed only CRC's history

information on the respondent. Holsapple was unaware of the respondent's denials of abuse.
        Lenora Williams, a previous case manager with Illinois Mentor, testified that she had
managed J.L.C.'s and P.M.C.'s cases from June 2004 until April 2006. Similarly, Amanda

Wagner, also a case manager with Illinois Mentor, testified that she had managed J.L.C.'s
and P.M.C.'s cases, monitoring the respondent's progress in sex-offender therapy, since April
2006.


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          In replying to the respondent's motion for a directed finding, the State indicated that

it was only pursuing termination based on the respondent's failure to make reasonable efforts
to correct the conditions that were the basis for the removal of the children (750 ILCS
50/1(D)(m)(i) (West Supp. 2005)) and that it was not pursuing termination based on the
respondent's failure to make reasonable progress toward the return of the children (750 ILCS
50/1(D)(m)(ii), (D)(m)(iii) (West Supp. 2005)). Specifically, the attorney for the State

stated:

          "[A]s I indicated in the beginning of the hearing, and as I indicated to [the
          respondent's attorney] plenty [of] times, we were only pursuing failure to correct
          conditions, not on the reasonable progress grounds. Otherwise, this hearing would

          have been a lot longer."
          When the circuit court asked whether the State was moving to dismiss the reasonable-

progress allegations in the petition, the attorney for the State replied: "I guess, yes. We were

not proceeding on that."

          In its order entered on November 30, 2006, the circuit court noted that while the

respondent had admitted to several counselors that he had abused his daughter, he testified
that these statements were untrue and had been asserted only to please the counselors; that
the respondent remained at level one of treatment and could not reach level two without

taking responsibility for the sex offense; and that Dr. James's psychological evaluation

clearly indicated that the respondent did not view the sex-offender information as applying
to him. The circuit court concluded that although the respondent had participated "in a
considerable amount of sex[-]offender[-]specific counseling since the date of adjudication,"

the evidence in its totality suggests that the counseling was of no value to the respondent
because he denied sexually abusing his daughter. Accordingly, the circuit court found that
because the respondent had failed to participate in meaningful counseling to address the sex-


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offender issues, he failed to make reasonable efforts to correct the conditions that were the

basis for removal (750 ILCS 50/1(D)(m)(i) (West Supp. 2005)) and failed to make
reasonable progress toward the return of the child to him within nine months of adjudication
(750 ILCS 50/1(D)(m)(ii) (West Supp. 2005)). Therefore, the circuit court determined that
the respondent was unfit.
       The best-interests hearing was held on January 24, 2007. In its order entered on

February 9, 2007, the circuit court found clear and convincing evidence that it was in

J.L.C.'s and P.M.C.'s best interests to terminate the respondent's and Ruth H.'s parental
rights. On March 5, 2007, the respondent filed a notice of appeal.
                                           ANALYSIS

       The Juvenile Court Act of 1987, as amended, provides a two-stage process whereby
parental rights may be involuntarily terminated. 705 ILCS 405/2-29 (West 2006). Under

this bifurcated procedure, the State must make a threshold showing of parental unfitness

based upon clear and convincing evidence and, thereafter, a showing in a separate hearing

that it is in the child's best interests to sever the parental rights. In re Adoption of Syck, 138

Ill. 2d 255, 276 (1990). Accordingly, a finding of unfitness may lead to the termination of
parental rights if the court finds it to be in the best interests of the minor. In re C.R., 221 Ill.
App. 3d 373, 379 (1991).

       We accord the trial court's finding of parental unfitness great deference because it is

in the best position to make factual findings and credibility assessments. In re D.L., 326 Ill.
App. 3d 262, 269 (2001). We will reverse the trial court's finding only if it is against the
manifest weight of the evidence. In re D.L., 326 Ill. App. 3d at 270. "A finding is against

the manifest weight of the evidence when the opposite conclusion is clearly evident." In re
D.L., 326 Ill. App. 3d at 270.
       The Adoption Act specifies the following as grounds for a finding of parental


                                                 5
unfitness:

              "(m) Failure by a parent (i) to make reasonable efforts to correct the conditions
       that were the basis for the removal of the child from the parent, or (ii) to make
       reasonable progress toward the return of the child to the parent within 9 months after
       an adjudication of neglected or abused minor ***, or (iii) to make reasonable
       progress toward the return of the child to the parent during any 9-month period after

       the end of the initial 9-month period following the adjudication of neglected or

       abused minor ***." 750 ILCS 50/1(D)(m) (West Supp. 2005).
       Either the failure to make reasonable efforts or the failure to make reasonable
progress can be a ground for an adjudication of unfitness. In re M.A., 325 Ill. App. 3d 387,

391 (2001). Only one ground of unfitness needs to be proved by clear and convincing
evidence for the court to find a parent unfit. In re J.A., 316 Ill. App. 3d 553, 564 (2000).

       In the present case, after the unfitness hearing on November 6, 2006, the circuit court

found that because the respondent had failed to meaningfully participate in sex-offender

counseling, he failed to make reasonable efforts to correct the conditions that were the basis

for the children's removal (750 ILCS 50/1(D)(m)(i) (West Supp. 2005)), which was the basis
asserted by the State during the hearing. Notwithstanding the State's attempted waiver of
the reasonable-progress ground, the circuit court also found that the respondent had failed

to make reasonable progress toward the return of the children within nine months of the

adjudication of abuse (750 ILCS 50/1(D)(m)(ii) (West Supp. 2005)). See In re D.F., 208
Ill. 2d 223, 229 (2003) (the version of section 1(D)(m) in effect at the time of the fitness
hearing is applicable). The first nine-month period to assess a parent's fitness begins on the

date the court adjudicates the minor neglected or abused and applies to both grounds relied
on by the circuit court in the present case: the reasonable-efforts ground enumerated in
subsection (D)(m)(i) and the reasonable-progress ground enumerated in subsection


                                              6
(D)(m)(ii). In re D.F., 208 Ill. 2d at 243; 750 ILCS 50/1(D)(m)(i), (D)(m)(ii) (West Supp.

2005).
         While, at the respondent's unfitness hearing, the State presented the testimony of the
respondent's therapists to demonstrate that he had failed to participate in "meaningful
therapy," these therapists began treating the respondent after the relevant 2001-2002 time
period, the nine-month period beginning on the date of the circuit court's adjudication of

abuse on August 10, 2001 (August 2001 to May 2002). The only remaining evidence at the

unfitness hearing regarding the respondent's efforts or progress during the relevant time
period consisted of the respondent's testimony that he attended scheduled visits with his
children, that he consistently attended sex-offender counseling sessions, but that he made

insincere admissions in sex-offender therapy.
         Accordingly, the sole remaining basis for the circuit court's findings–that the

respondent had failed to make reasonable efforts to correct the conditions that were the basis

for removal (750 ILCS 50/1(D)(m)(i) (West Supp. 2005)) or reasonable progress toward the

return of the children within nine months after the adjudication of abuse (750 ILCS

50/(D)(m)(ii) (West Supp. 2005))–was the respondent's testimony that his admissions during
the relevant time period were insincere and that he did not sexually abuse J.L.C. The circuit
court's determination of unfitness is improper to the extent that it is based solely on the

respondent's denial of sexual abuse.

         The fifth amendment provides that no person "shall be compelled in any criminal case
to be a witness against himself." U.S. Const., amend V. This provision of the fifth
amendment applies to the states through the fourteenth amendment. Allen v. Illinois, 478

U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986). This prohibition permits a person to
refuse to testify against himself at a criminal trial in which he is a defendant and permits him
"not to answer official questions put to him in any other proceeding, civil or criminal, formal


                                               7
or informal, where the answers might incriminate him in future criminal proceedings."

Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 281, 94 S. Ct. 316, 322 (1973). The
state may not impose a substantial penalty against an individual who elects to exercise his
fifth amendment privilege against self-incrimination. Minnesota v. Murphy, 465 U.S. 420,
434, 79 L. Ed. 2d 409, 424, 104 S. Ct. 1136, 1146 (1984). If the state, expressly or by
implication, imposes a penalty for the exercise of the privilege, the failure to assert the

privilege is excused. Murphy, 465 U.S. at 435, 79 L. Ed. 2d at 424, 104 S. Ct. at 1146.

       Accordingly, the fifth amendment bars a state from explicitly ordering a parent to
choose between losing his parental rights or waiving his privilege against self-incrimination.
See In re A.W., 373 Ill. App. 3d 574, ___ (2007); In re L.F., 306 Ill. App. 3d 748, 753

(1999); see also Mullin v. Phelps, 162 Vt. 250, 268, 647 A.2d 714, 724-25 (1994); In re
M.C.P., 153 Vt. 275, 300, 571 A.2d 627, 641 (1989); In re Welfare of J.G.W., 433 N.W.2d

885, 886 (Minn. 1989); In re Welfare of J.W., 415 N.W.2d 879, 883 (Minn. 1987); In re

Clifford M., 6 Neb. App. 754, 765-66, 577 N.W.2d 547, 554-55 (1998); In re Amanda W.,

124 Ohio App. 3d 136, 141, 705 N.E.2d 724, 727 (1997). There is a fine, but important,

distinction between terminating parental rights based specifically upon a parent's refusal to
admit that which he denies, thereby forcing him to waive the fifth amendment privilege
against self-incrimination, and terminating parental rights based upon a parent's failure to

comply with an order to undergo meaningful therapy or rehabilitation, because a parent's

refusal to admit sexual abuse inhibits meaningful therapy. The latter is constitutionally
permissible, while the former is not. See In re A.W., 373 Ill. App. 3d at ___; In re L.F., 306
Ill. App. 3d at 753; see also Mullin, 162 Vt. at 268, 647 A.2d at 724-25; In re M.C.P., 153

Vt. at 300, 571 A.2d at 641; In re Welfare of J.G.W., 433 N.W.2d at 886; In re Welfare of
J.W., 415 N.W.2d at 883; In re Clifford M., 6 Neb. App. at 765-66, 577 N.W.2d at 554-55;
In re Amanda W., 124 Ohio App. 3d at 141, 705 N.E.2d at 727.


                                              8
       In the present case, the circuit court did not overtly require the respondent to admit

to the abuse or face the termination of his parental rights. However, because the therapists'
testimony did not involve the time period relevant for assessing the respondent's efforts or
progress, the sole remaining basis for the circuit court's order finding the respondent unfit
involves the respondent's refusal, at the hearing, to admit the abuse and his corresponding
testimony that his admissions during the relevant time period were insincere. Accordingly,

the circuit court's determination of unfitness was improper because it was based solely on

the respondent's denial of sexual abuse.
       We note that the State alleged in the petition for the termination of parental rights that
the respondent had failed to make reasonable progress toward the children's return during

any nine-month period after the end of the initial nine-month period following the
adjudication of abuse. See 750 ILCS 50/1(D)(m)(iii) (West Supp. 2005). However, the

State asserted during the unfitness hearing that it was not pursuing the termination of the

respondent's parental rights based on the respondent's failure to make reasonable progress

toward the return of the children, and the circuit court did not rely on subsection (D)(m)(iii)

to find the respondent unfit. Accordingly, we decline to affirm on this basis. See generally
In re Chilean D., 304 Ill. App. 3d 580, 582 (1999) (where the State asked that the matter not
proceed to the best-interests phase and that parental rights not be terminated, the State

effectively withdrew the petition and voluntarily dismissed the statutory action).

       We also note that the State is not prejudiced from filing another petition to terminate
the respondent's parental rights on lawful grounds and presenting evidence to support that
petition, if and when it becomes appropriate. To avoid a fifth amendment infringement and

to encourage the respondent to participate in "meaningful therapy" in the present case, the
State may offer the respondent protection from the use of any compelled statements and any
evidence derived from those answers in a subsequent criminal case against him. See


                                               9
Lefkowitz v. Cunningham, 431 U.S. 801, 805, 53 L. Ed. 2d 1, 6-7, 97 S. Ct. 2132, 2135-36

(1977). The respondent may also offer evidence that refusing to admit that which he denies
may not inhibit "meaningful therapy."
                                    CONCLUSION
      For the foregoing reasons, we reverse that part of the judgment of the circuit court
of Marion County finding the respondent, Donald C., unfit. We affirm that part of the

judgment finding Ruth H. unfit.



      Affirmed in part and reversed in part.


      SPOMER and STEWART, JJ., concur.




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