                                                        SECOND DIVISION
                                                        FILED: September 26, 2006

No. 1-06-1206


In re CHARLES A., minor,          )  APPEAL FROM THE
(THE PEOPLE OF THE STATE OF ILLINOIS )    CIRCUIT COURT OF
                                         )     COOK COUNTY
           Petitioner-Appellee,   )
                                         )
                         v.              )
                                         )
 WANDA A.,                           )    HONORABLE
                                         )     BETTINA M. GEMBALA
           Respondent-Appellant).    )   JUDGE PRESIDING.


       JUSTICE HOFFMAN delivered the opinion of the court:

       The respondent, Wanda A., appeals from an order of the circuit court terminating her

parental rights with her son, C.A. For the reasons which follow, we affirm.

       C.A. was born on August 25, 2003. On September 5, 2003, the State filed a petition

for adjudication of wardship, alleging that C.A. was neglected pursuant to section 2-4(1)(b)

of the Juvenile Court Act (Act) (705 ILCS 405/2-4(1)(b) (West 2002)) because of the

respondent's mental disability. According to the petition, the respondent had previously

been diagnosed with schizoaffective disorder and had resided in psychiatric rehabilitation

facilities for approximately five years.

       Following an adjudicatory hearing on February 11, 2004, C.A. was found to be

neglected based on an injurious environment. On May 19, 2004, a dispositional order was

entered, finding that the respondent was unable to care for C.A., adjudicating the minor a

ward of the court, and placing him in the guardianship of the Department of Child and

Family Services (DCFS). The State filed a supplemental petition for the appointment of a
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guardian with the right to consent to adoption on March 15, 2005.

       On September 5, 2005, the respondent's attorney filed a motion asking the court to

hold a fitness to stand trial hearing. The circuit court subsequently denied the motion.

       A termination hearing was held on December 19, 2005, and February 21, 2006. At

the hearing, Chrissy Reynolds, C.A.'s case worker, testified that C.A. was brought to the

attention of the DCFS because the respondent had a history of mental illness, the

respondent tested positive for cocaine at the time of the birth, and the respondent stated

that she did not want to care for C.A. The respondent was assessed for services, and it

was determined that she was in need of a drug and alcohol evaluation and treatment plan,

treatment for her mental illness, and a parenting assessment. Reynolds testified that the

only service the respondent had complied with was the treatment plan for her mental

illness, but not on a consistent basis.

       Dr. Tiffany Masson, a clinical psychologist, testified that the respondent was referred

to her for an evaluation by the court. After examining the respondent and reviewing her

medical records, Dr. Masson diagnosed her with schizophrenia and schizoaffective

disorder. Dr. Masson opined that the respondent's mental illness directly impacted her

ability to discharge her parental responsibilities and that she could not care for the basic

needs of her child. Dr. Masson also believed that the respondent's mental illness would

last throughout her lifetime.

       At the conclusion of the hearing, the circuit court found the respondent unfit based

on her failure to maintain a reasonable degree of interest, failure to make reasonable



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progress toward the return of the child, and inability to discharge her parental

responsibilities. The court further found that it was in C.A.'s best interest to terminate the

respondent's parental rights and appoint a guardian with the right to consent to adoption.

This appeal followed.

         The respondent argues that the circuit court erred in denying her request for a

fitness hearing. Under long-established principles of due process, an individual may not be

criminally prosecuted if he or she is unfit to stand trial. Medina v. California, 505 U.S. 437,

446, 120 L. Ed.2d 353, 112 S. Ct. 2572 (1992); People v. Johnson, 206 Ill. 2d 348, 361,

794 N.E.2d 294 (2002). To ensure these due process rights, a circuit court is required to

conduct a mental fitness hearing if there exists a bona fide doubt as to a criminal

defendant's fitness to understand the nature and purpose of the proceedings and to assist

in his or her defense. People v. Birdsall, 172 Ill. 2d 464, 475, 670 N.E.2d 700 (1996); 725

ILCS 5/104-10 (West 2002). Should a criminal defendant be found unfit at the hearing, the

proceedings may be suspended until he or she recovers. See 725 ILCS 5/104-16 (West

2002).

         The respondent maintains that, because of her history of mental illness, the circuit

court was required to conduct a fitness hearing to determine whether she was able to

understand and participate in her defense at the termination hearing. Because the circuit

court failed to hold such a hearing, the respondent contends that she was denied her

constitutional right to due process. We disagree.

         Under the 14th Amendment of the United States Constitution, a person cannot be



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deprived of life, liberty, or property without due process of law. U.S. Const., amend. XIV, '

1. A parent has a fundamental liberty interest in maintaining custody of his or her child.

Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed.2d 599, 102 S. Ct. 1388 (1982); In re

Andrea F., 208 Ill. 2d 148, 165, 802 N.E.2d 782 (2003). Accordingly, the procedures

employed in terminating parental rights must comply with the requirements of the due

process clause. Santosky, 455 U.S. at 753; In re M.H., 196 Ill. 2d 356, 363, 751 N.E.2d

1134 (2001).

       In determining whether a parental rights termination proceeding satisfied the

constitutional requirements of due process, the factors set forth in Matthews v. Eldridge,

424 U.S. 319, 47 L. Ed.2d 18, 96 S. Ct. 893 (1976), must be considered. Lassiter v.

Department of Social Services, 452 U.S. 18, 27, 68 L. Ed.2d 640, 101 S. Ct. 2153 (1981);

In re Andrea F., 208 Ill. 2d at 165. These factors include: (1) the private interest affected

by the proceeding; (2) the risk of an erroneous deprivation of that interest through the

procedures used and the probable value, if any, of additional or alternative procedural

safeguards; and (3) the government's interest, including the function involved and the fiscal

and administrative burdens that the additional or alternative procedures would require.

Matthews, 424 U.S. at 335.

       Two private interests are involved in a proceeding to terminate parental rights: the

parent's interest in raising his or her child and the child's interest in a safe and stable home

environment. In re D.T., 212 Ill. 2d 347, 363, 818 N.E.2d 1214 (2004). A parent has a

fundamental desire and right to the companionship, care, custody, and management of his



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or her children.   Lassiter, 452 U.S. at 27; In re M.H., 196 Ill. 2d at 365. When a parental

rights termination proceeding is brought, the State seeks not only to infringe this right, but

to end it. Santosky, 455 U.S. at 759. Therefore, a parent has a commanding interest in the

outcome of a termination proceeding. Lassiter, 452 U.S. at 27. The child also has a

private interest in his or her own well-being and a stable environment. People v. R.G., 131

Ill. 2d 328, 354, 546 N.E.2d 533 (1989). Additionally, a child has an interest in ending State

custody. In re Bernice B., 352 Ill. App. 3d 167, 176, 815 N.E.2d 778 (2004).

       The State, likewise, has an important interest in a parental rights termination

proceeding. Its interest is twofold: a parens patriae interest in the welfare of the child and

a fiscal and administrative interest in reducing the cost and burden of such proceedings.

Santosky, 455 U.S. at 766; In re M.H., 196 Ill. 2d at 367.

       Because a delay in the adjudication of a termination proceeding can cause grave

harm to a child and the family, (705 ILCS 405/2-14(a) (West 2002)), parental termination

cases must be resolved expeditiously. See In re S.G., 175 Ill. 2d 471, 492, 677 N.E.2d 920

(1997). The postponement of termination proceedings, for a fitness hearing or until the

respondent could be restored to fitness, would further delay a child's interest in finding a

permanent home. In re Bernice B., 352 Ill. App. 3d at 178. Accordingly, such an indefinite

postponement would frustrate the State's parens patriae interest in promoting the welfare of

the child. In re Bernice B., 352 Ill. App. 3d at 177-78.

       Determining whether a parent is mentally fit would also impose an increased fiscal

cost and administrative burden on the State. The State would be required to expend legal



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resources to establish the respondent's competency and, possibly, be required to pay for

the treatment to restore her to fitness. In re Bernice B., 352 Ill. App. 3d at 178. The State

would also be required to continue to pay for the child's foster care during the delay caused

by the fitness hearing. In re Bernice B., 352 Ill. App. 3d at 178.

       Finally, we must consider to what extent the absence of a fitness hearing increased

the risk of an erroneous deprivation of the respondent's rights and the probable value, if

any, of additional or alternative procedural safeguards. The respondent argues that the

failure to hold a fitness hearing increased the likelihood that her parental rights were

erroneously terminated where she was unable to understand or participate in her defense.

The respondent, however, has failed to explain how she could have better assisted her

attorney had she been found competent to participate in the termination proceedings. She

has not identified any additional evidence that would have been introduced or presented

any argument explaining how the outcome of the termination hearing would have been

different had the proceedings been stayed until she was restored to fitness.

       Additionally, a parent may be found unfit if the parent suffers from a mental

impairment which renders him or her unable to discharge a parent's normal responsibilities

for a reasonable period of time. In re R.C., 195 Ill. 2d 291, 305, 745 N.E.2d 1233 (2001);

750 ILCS 50/1(D)(p) (West 2002). Accordingly, a finding at a fitness hearing that the

respondent was not mentally fit could have provided additional evidence weighing in favor

of termination. In re Bernice B., 352 Ill. App. 3d at 177.

       The current procedures provided for under the Act properly safeguard a parent's



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rights. Parents have the right to be present, to be heard, to present evidence, to cross-

examine witnesses, to examine court files and records, and to be represented by counsel.

705 ILCS 405/105(1) (West 2002). In this case, the respondent was represented by

counsel, who cross-examined witnesses and argued her case. Based upon the record

before us, we conclude that the absence of a fitness hearing offered little or no risk that the

respondent's parental rights were erroneously terminated.

       After considering the Matthews factors, we find that the respondent was not denied

due process by the circuit court's failure to hold a fitness hearing. Having rejected the only

basis for reversal raised by the respondent, we affirm the circuit court's order terminating

the respondent's parental rights.

       Affirmed.


       SOUTH, J., concurs.

       HALL, J., dissenting.




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       JUSTICE HALL dissenting.

       I respectfully dissent. In applying the Mathews' factors, I believe the due process

clause of the federal constitution (U.S. Const. Amend. XIV, ' 1) requires a trial court in a

termination proceeding to hold a competency hearing for a parent where the parent's

attorney requests such a hearing, or in the absence of such a request, the behavior of the

parent suggests to the court that a competency hearing should be held. See In re

Alexander, 223 Conn. 557, 566, 613 A.2d 780, 785 (1992). In either situation, the standard

the trial court should be guided by is whether the record before the court contains specific

factual allegations that, if true, would constitute substantial evidence of mental impairment.

In re Alexander, 223 Conn. at 566, 613 A.2d at 785, citing State v. Lloyd, 199 Conn. 359,

365, 507 A.2d 992 (1986).

       In this case, the majority maintains that postponing a termination proceeding until a

competency hearing is completed or until a parent's competency is restored would delay a

child's interest in finding a permanent home and undermine the State's parens patriae

interest in protecting the child's welfare. This argument is too broad to comport with due

process and fundamental fairness because in certain cases a parent's competency may be

restored within a relatively short period of time. Holding a competency hearing would give

the parties an opportunity to present evidence concerning the likelihood that the parent




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could be restored to competency within a reasonable time. In re Alexander, 223 Conn. at

564, 613 A.2d at 785. The trial court would then be in a position to determine the most

appropriate and beneficial course of action.

       The majority also contends that a competency hearing would impose an increased

fiscal cost and administrative burden on the State. I do not believe that the administrative

costs of holding a competency hearing are prohibitive when balanced against a parent's

fundamental right to the care, companionship, custody, and management of his or her

child. The United States Supreme Court has determined that a parent's interest in retaining

custody of his or her child outweighs the State's interest in avoiding the comparatively

minimal costs of a fitness hearing. See Stanley v. Illinois, 405 U.S. 645, 657 n. 9, 31 L. Ed.

2d 551, 562 n. 9, 92 S. Ct. 1208, 1215-16 n. 9 (1972).

       The majority finally contends that where a parent is represented by counsel, the

absence of a fitness hearing offers little or no risk of an erroneous deprivation of parental

rights. I disagree.

       A mentally incompetent parent who is unable to understand the nature of a

termination proceeding or assist his or her attorney in presenting the case could be at a

severe disadvantage. A mentally incompetent parent may be unable to supply an attorney

with sufficient information to rebut evidence offered by the State, which, although

superficially damaging, could be refuted by a competent parent or a witness whose

availability would be made known by a competent parent. See In re Alexander, 223 Conn.

at 563, 613 A.2d at 784. In addition, a mentally incompetent parent's ability to offer



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affirmative proof of the existence or prospect of an ongoing parent-child relationship might

be significantly compromised. See In re Alexander, 223 Conn. at 563, 613 A.2d at 784. A

mentally incompetent parent might also be unable to assist his or her attorney in

establishing tactical and substantive goals at a termination proceeding. See In re

Alexander, 223 Conn. at 563, 613 A.2d at 784. In sum, there is a substantial risk that a

mentally incompetent parent, who is unable to understand the nature of a termination

proceeding or assist his or her attorney in presenting the case, might suffer an erroneous

deprivation of parental rights even where the parent is represented by counsel.




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