No. 3‐‐96‐‐0340

_________________________________________________________________

                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT

                              A.D., 1996

IN RE V.S.,                     )  Appeal from the Circuit Court

                                )  of the 13th Judicial Circuit,

     a Minor                    )  Bureau County, Illinois

                                ) 

(THE PEOPLE OF THE STATE        )

OF ILLINOIS,                    )

                                )

     Petitioner‐Appellee,       )  No. 92‐‐J‐‐98

                                )

     v.                         )   

                                )

WILLIAM W.,                     )  Honorable

                                )  Terence M. Madsen

     Respondent‐Appellant).     )  Judge, Presiding

________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:

________________________________________________________________

     The trial court found the respondent, William W., to be an

unfit parent and terminated his parental rights.  The issue on

appeal is whether the trial court improperly allowed the State to

introduce evidence of the child's best interest prior to a

finding of unfitness.  For reasons that follow, we reverse.

                                   FACTS

     On September 21, 1992, William, a resident of the Department

of Corrections, consented to orders adjudicating V.S. dependent

and placing her in the custody of the Department of Children and

Family Services (DCFS) for care and services.  On December 20,

1993, four months after William's release from prison, the State

filed a petition to terminate his parental rights.  The petition

alleged that William was an unfit parent because he (1) abandoned

V.S.; (2) failed to maintain a reasonable degree of interest,

concern or responsibility as to V.S.'s welfare; (3) showed his

intent to forego parental rights by failing for a period of 12

months to visit V.S., although not prevented from doing so by an

agency or by court order, or to maintain contact with her or plan

for her future; and (4) failed to provide V.S. with adequate

food, clothing or shelter, although physically and financially

able (750 ILCS 50/1(D)(a),(b),(n)(1),(o) (West 1994)).  

     Prior to the hearing on the petition, counsel for William

moved to exclude testimony relating to William's sexual

misconduct with his three sisters.  The court denied William's

motion, and the cause proceeded to a unified hearing on parental

unfitness and the best interest of the child. 

     Over counsel's objection, William's three sisters, Sandra

W., Catherine P. and Michelle W., each testified that William had

performed various sexual acts with them between the mid‐1970's

and the early 1980's, while William and his sisters were all

children and living with their mother and stepfather.  Following

their testimony, V.S.'s mother, Cindy V., testified that V.S. was

born August 28, 1988, and William had seen her only twice, once

in 1989 and once in 1991.  William was subsequently incarcerated

from March 22, 1992, until August 16, 1993, for aggravated

battery and forgery.

     DCFS caseworker Tru Wahlgren testified that four service

plans were mailed to William between the date of his release from

prison and the date of the hearing, only one of which was sent 

before the State filed its petition to terminate parental rights. 

Wahlgren admitted that it was DCFS' goal at all times to

terminate William's parental rights and not to reunite him with

V.S.  She said that her records indicated that William attended

only one service plan meeting, and he did not complete the tasks

assigned in the plans.  She denied telling William that the State

would terminate his parental rights no matter what he did.

     In his defense, William testified that his attempts to visit

V.S., when he was not in prison, were frustrated by Cindy and

DCFS.  He said that he tried several times to see the child, but

Cindy and her boyfriend refused to let him.  William said Cindy

moved frequently.  She did not tell him where she was living, and

at times she did not have a telephone.  He said he offered to pay

child support, but Cindy would not consider it and told him that

she had given the child up for adoption.  William also testified

that he attended two of the service plan meetings, but stopped

because Wahlgren told him that DCFS intended to terminate his

parental rights regardless of what he did.

     Melanie Girts, William's current girlfriend, testified that

she attended a service plan meeting with William in the fall of

1994.  She said that they asked Wahlgren whether the termination

proceedings would be dropped if they completed all of the tasks

in the plan, and Wahlgren replied that it would make no

difference.

     At the close of all evidence, the court granted the State's

petition to terminate parental rights.  In a written order, the

court stated:

          "Based on the evidence taken and its

          experience, the Court has made assessments as

          to the true credibility and intentions of all

          of the parties and has considered very

          carefully the best interest of the minor and

          all of those touched by this case.  This

          Court has determined that the Petition to

          Terminate Parental Rights is well taken. 

          Although Mr. [W.] has espoused continuing

          interest in the child, it is the Court's

          finding that in reality he is unfit and has

          fully refused to take the steps required of

          him to develop a relationship with the child,

          specifically for extended period [sic] as

          required by statute he has failed to

          cooperate with the Department of Children &

          Family Services in virtually any way.  ***

          William [W.]'s parental rights *** are

          ordered terminated." 

                          DISCUSSION AND ANALYSIS

     On appeal, William argues that the trial court improperly

considered the testimony of his sisters before reaching a

determination of unfitness.  The State does not attempt to argue

that evidence of William's sexual conduct with his sisters was

relevant to any of the grounds of unfitness alleged in the

petition to terminate parental rights.  Clearly, it was not. 

Instead, the State contends that the court did not commit

reversible error because the record does not demonstrate that the

trial judge considered incompetent evidence in finding William

unfit.  

     Before terminating parental rights, the State must establish

unfitness by clear and convincing evidence.  Perkins v.

Breitbarth, 99 Ill. App. 3d 135, 138, 424 N.E.2d 1361, 1364

(1981).  A determination of unfitness may be made only upon

consideration of evidence relevant to the grounds alleged in the

State's petition.  In re Adoption of Syck, 138 Ill. 2d 255, 277,

562 N.E.2d 174, 184 (1990).  Evidence of the parent's past

conduct is admissible at the unfitness hearing only if relevant

to the grounds charged in the State's petition.  In re Adoption

of A.S.V., 268 Ill. App. 3d 549, 557, 644 N.E.2d 500, 505‐06

(1994).  It is not until after a parent has been found to be

unfit that the court may consider evidence of the child's best

interests.  Syck, 138 Ill. 2d 255, 277, 562 N.E.2d 174, 184. 

     A single hearing consolidating issues of unfitness and best

interests carries a risk of prejudice from considering evidence

irrelevant to the unfitness question before determining that

issue.  See Syck, 138 Ill. 2d 255, 275‐76, 562 N.E.2d 174, 183. 

To ensure a proper focus, separate hearings are mandatory.  In re

A.P., 277 Ill. App. 3d 592, 600, 660 N.E.2d 1006, 1012 (1996). 

The trial judge may hear best interest evidence immediately after

the unfitness hearing.  In re B.R., 282 Ill. App. 3d 665, 671,

669 N.E.2d 347, 352 (1996).    

     Separate hearings are clearly the better procedure (see In

re Dalton, 98 Ill. App. 3d 902, 424 N.E.2d 1226, 1228 (1981)),

because they avoid the possibility of prejudice to a respondent. 

Therefore, unless it clearly appears that no prejudice resulted,

the conduct of a single hearing commingling the issues is

reversible error.  To establish prejudice resulting from a

consolidated hearing, a respondent must show:  (1) that a timely

objection was made in the trial court (In re Jackson, 243 Ill.

App. 3d 631, 656, 611 N.E.2d 1356, 1373 (1993)); (2) that there

is reason to believe that the trial judge considered incompetent

evidence in its unfitness determination (In re J.W., 187 Ill.

App. 3d 988, 998, 543 N.E.2d 974, 980 (1989)); and (3) that the

erroneous commingling of evidence of the parent's unfitness and

the child's best interests was not reversible error.  In re R.G., 

165 Ill. App. 3d 112, 132, 518 N.E.2d 691, 703 (1988).  

     In this case, William's attorney timely objected to the

conduct of a unified hearing prior to the introduction of any

evidence of unfitness, when he moved to exclude the testimony of

William's three sisters.  In response to the State's argument

that the testimony was relevant to the child's best interest,

counsel specifically stated that he was prepared to proceed only

on the issue of unfitness, not on best interests.  However, the

court denied William's motion with no explanation and immediately

proceeded to hear the contested testimony.  

     Further, the record does not indicate that the court

understood that a finding of William's unfitness was a

prerequisite to considering V.S.'s best interest.  On the

contrary, both the sequence in which the court allowed the

evidence to be presented at the hearing and the court's written

order indicate that issues of unfitness and the child's best

interest were impermissibly commingled.  In addition,  we note

that the court did not state that evidence of unfitness was

"clear and convincing."  Accordingly, we may not rely on a

presumption that the court considered only competent evidence in

finding William unfit.  See J.W., 187 Ill. App. 3d 988, 543

N.E.2d 974.

     Finally, we do not find that the evidence of unfitness was

so overwhelming that any error was harmless and further

proceedings would be unnecessary.  From the court's order, it

appears that the finding of unfitness was based primarily on

William's failure to cooperate with DCFS.  In this regard,

Wahlgren alluded to service plans and said that William had not

completed the tasks assigned to him.  However, the plans were not

introduced into evidence, and the record does not reveal what

tasks William was asked to perform before the State initiated

termination proceedings.  William explained why he did not work

with the agency after his release from prison, testifying that

DCFS was not interested in his efforts to develop a relationship

with V.S.  His testimony was corroborated by his girlfriend as

well as by Wahlgren's admission that DCFS's goal was always to

terminate William's parental rights, never to reunite him with

V.S.  Based on the record, we cannot say that the evidence of

unfitness was so overwhelming that no prejudice resulted from the

consolidated hearing.  William's failure to cooperate with DCFS

or complete its service plans might not, by itself, require a

finding of unfitness.  See In re T.D., 268 Ill. App. 3d 239, 643

N.E.2d 1315 (1994).  Thus, we cannot conclude that the trial

court would have found sufficient evidence of William's unfitness

without considering improperly admitted testimony of his

childhood sexual misconduct.  See Perkins, 99 Ill. App. 3d 135,

424 N.E.2d 1361.  

                                CONCLUSION

     The judgment of the circuit court of Bureau County is

reversed, and the cause is remanded for a new unfitness hearing.

     Reversed and remanded.

     HOLDRIDGE, P.J., and McCUSKEY, J., concur.