In Re H.G.

Facts

In 1980, Congress enacted the AACWA. Sometime after the passage of AACWA, it became apparent to Congress that the courts and state agencies which were interpreting and implementing the 'reasonable efforts' requirement of the Act were placing too great an emphasis on the goals of family preservation and reunification. A number of children were 'languishing in foster care' and 'remaining in limbo as to their permanency' while the states attempted to rehabilitate their parents. The Adoption and Safe Families Act of 1997 (ASFA) addressed the question of how long the states must pursue the goal of family reunification under the 'reasonable efforts' standard under the AACWA. ASFA mandates that, to retain eligibility for federal funding, and unless certain exceptions apply, the states 'shall file a petition to terminate the parental rights of [a] child's parents' when the child 'has been in foster care under the responsibility of the State for 15 of the most recent 22 months.' State law was enacted to mirror this requirement. But it goes a step further and creates a new ground of parental unfitness based upon the presumption that a parent is unfit if his or her child has been in foster care for 15 months out of a 22-month period. The State filed a petition in the circuit court of Kane County in which it alleged that H.G. was a neglected minor. The circuit court determined that H.G. 'did receive injuries' to her arm and, thus, that there was probable cause to believe that H.G. was neglected. The circuit court entered an order adjudicating H.G. neglected. On December 23, 1996, the circuit court entered a dispositional order making H.G. a ward of the court. The court placed H.G. in the legal custody of DCFS and appointed the guardianship administrator of DCFS her legal guardian. From December 1996 to August 1998, DCFS continued to monitor E.W.'s progress toward reaching the various goals and objectives that had been established for her. By the end of August 1998, E.W.'s progress was unsatisfactory and, it was determined that termination of her parental rights was warranted. The State filed a petition for termination of parental rights. It alleged that E.W. was unfit because she had failed to make reasonable efforts to correct the conditions which were the basis for removal of H.G. or to make reasonable progress toward the return of the child within 12 months after adjudication. E.W.'s attorney filed a motion for continuance because an indispensable witness was unavailable for trial. Delays and continuances were granted. Eventually, the State filed an amended petition to terminate parental rights. It also alleged that E.W. was unfit under section 1(D)(m-1) because H.G. had been in foster care for 15 out of the preceding 22 months. Eventually E.W. asserted that section 1(D)(m-1) violates the federal and state constitutional guarantees of substantive due process and equal protection because it 'is not narrowly tailored to achieve its manifest purpose, improperly shifts the burden of proof to a respondent parent, and improperly invites consideration of best interest issues at the fitness portion of a termination hearing.' In an oral ruling, the court determined that section 1(D)(m-1) implicated a fundamental interest, i.e., parental rights and, therefore, that the statute had to withstand strict scrutiny under the due process clause of the federal and state constitutions. The court held that section 1(D)(m-1) failed this test because it was not narrowly tailored. 'The problem is inherent in that this particular statute, unlike all of the other provisions for finding unfitness, relates not to conduct of a parent or an internal flaw of character or behavior or mental illness or physical infirmity, but rather the mere passage of time. I do agree that there is a due process problem.' The circuit court also held that section 1(D)(m-1) was 'constitutionally infirm' because it shifted the burden of proof to the parent within the fitness proceeding and because it introduced the concept of best interests of the child into the determination of the unfitness of the parent. On March 7, 2000, the court determined that H.G. 'can be cared for at home (of Mother) without endangering her health or safety.' However, the court also concluded that return was not in H.G.'s best interests at that time. Accordingly, the court denied E.W.'s petition. In the next cause of action, M.H. is the mother of C.S. and J.S. The State filed petitions to terminate M.H.'s parental rights with respect to both children. M.H. was unfit because she was a habitual drunkard or addicted to drugs. The circuit court ruled that the State had failed to prove by clear and convincing evidence that M.H. was unfit under any of the grounds set forth in the petitions. The State and C.S. and J.S., through the office of the public guardian, appealed the circuit court's decision. The appellate court concluded that it could not 'agree with the trial court's determination that [M.H.'s] progress was substantial enough to warrant a finding of not unfit' under section 1(D)(m) with respect to either C.S. or J.S. The appellate court reversed the judgments of the circuit court and remanded the cause to determine whether the termination of M.H.'s parental rights would be in the best interests of C.S. and J.S. The State filed new petitions to terminate M.H.'s parental rights. In these petitions, the State alleged that M.H. was unfit under section 1(D)(m-1) of the Adoption Act because C.S. and J.S. had been in foster care for 15 out of the preceding 22 months. M.H. filed motions to strike the petitions in which she argued that section 1(D)(m-1) violates the due process clause of the federal and state constitutions. The circuit court granted M.H.'s motions to strike the State's petitions to terminate her parental rights. The State appealed, and the cases were consolidated. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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