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 Septem ber 5, 2003, the Stat e 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 re spondent had previously been diagnosed with schizoaffective disorder and had resided in psychiatric rehabilitation facilities for approximately five years. Following an adjudicatory hearing on Febr uary 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 placi ng him in the guardianship of the Department of Child and Family Services (DCFS). T he State filed a supplemental pet ition for the appointment of a1-06-1206

-2- guardian with the right to consent to adoption on March 15, 2005. On September 5, 2005, the respondent's atto rney filed a motion asking the court to hold a fitness to stand trial hearing. The ci rcuit 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 work er, testified that C. A. was brought to the attention of the DCFS because the respondent had a history of m ental illness, the respondent tested positive for coca ine at the time of the bi rth, 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 dr ug and alcohol evaluation and treatment plan, treatment for her mental illne ss, and a parenting assessment. Re ynolds 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 psychologis t, testified that the respondent was referred to her for an evaluation by the court. A fter examining the respondent and reviewing her medical records, Dr. Masson diagnosed her with schizophrenia and schizoaffective disorder. Dr. Masson opined t hat the respondent's mental ill ness 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 believ ed that the respondent's mental illness would last throughout her lifetime. At the conclusion of the hear ing, the circuit court f ound the respondent unfit based on her failure to maintain a reasonable degree of interest, failure to make reasonable1-06-1206

-3- progress toward the return of the child , and inability to discharge her parental responsibilities. The court furt her found that it was in C.A.'s best interest to terminate the respondent's parental rights and appoint a guardian wit h the right to consent to adoption. This appeal followed. The respondent argues that the circuit c ourt erred in denying her request for a fitness hearing. Under long-established principl es of due process, an individual may not be criminally prosecuted if he or she is unf it 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 ci rcuit court is required to conduct a mental fitness hear ing 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 heari ng to determine whether she was able to understand and participate in her def ense at the termination heari ng. 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 Consti tution, a person cannot be1-06-1206

-4- deprived of life, liberty, or pr operty without due process of law. U.S. Const., amend. XIV, ' 1. A parent has a fundamental liber ty 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 requi rements 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 right s termination proceeding satisfied the constitutional requirements of due process, t he 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 incl ude: (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 va lue, 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 t he additional or alternative pr ocedures would require.

Matthews , 424 U.S. at 335. Two private interests are involved in a pr oceeding 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 t he companionship, care, custod y, and management of his1-06-1206

-5- 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 br ought, the State seeks not only to infringe this right, but to end it. Santosky , 455 U.S. at 759. Theref ore, 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 intere st 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, 49 2, 677 N.E.2d 920 (1997). The postponement of termination proceedi ngs, for a fitness hearing or until the respondent could be restored to fitness, would fu rther delay a child's interest in finding a permanent home. In re Bernice B. , 352 Ill. App. 3d at 178. A ccordingly, such an indefinite postponement would frustr ate the State's parens patriae interest in promot ing 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 woul d be required to expend legal1-06-1206

-6- resources to establish the respondent's com petency 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 du ring the delay caused by the fitness hearing. In re Bernice B. , 352 Ill. App. 3d at 178. Finally, we must consider to what ext ent the absence of a fi tness hearing increased the risk of an erroneous deprivation of the re spondent'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 t he likelihood that her par ental rights were erroneously terminated where she was unable to understand or participate in her defense. The respondent, however, has failed to explai n how she could have better assisted her attorney had she been found competent to participat e in the termination proceedings. She has not identified any additional evidence t hat 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 unt il 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 fit ness hearing that the respondent was not mentally fit could have pr ovided additional evidence weighing in favor of termination. In re Bernice B. , 352 Ill. App. 3d at 177. The current procedures prov ided for under the Act properly safeguard a parent's1-06-1206

-7- rights. Parents have the right to be present, to be heard, to present evidence, to crossexamine 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 offer ed little or no risk that the respondent's parental rights were erroneously terminated. After considering the Matthews factors, we find that t he respondent was not denied due process by the circuit court's failure to hol d a fitness hearing. Having rejected the only basis for reversal raised by the respondent, we affirm the circuit cour t's order terminating the respondent's parental rights. Affirmed.

SOUTH, J., concurs.

HALL, J., dissenting

.1-06-1206

-8- 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 t he record before the court contains specific factual allegations that, if true, would constitu te 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 t hat postponing a termination proceeding until a competency hearing is complet ed or until a parent's competency is restored would delay a child's interest in finding a pe rmanent home and undermine the State's parens patriae interest in protecting the child's welfare. This argument is too br oad 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 ti me. Holding a competency hearing would give the parties an opportunity to present evidenc e concerning the like lihood that the parent1-06-1206

-9- could be restored to compet ency 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 co mpetency hearing would impose an increased fiscal cost and administrative bur den on the State. I do not belie ve that the administrative costs of holding a competency hearing are prohibitive when balanced against a parent's fundamental right to the care, companionshi p, custody, and management of his or her child. The United States Supreme Court has dete rmined that a parent's interest in retaining custody of his or her child out weighs 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 under stand the nature of a termination proceeding or assist his or her atto rney in presenting the case could be at a severe disadvantage. A mentally incompet ent 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 know n 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 offer1-06-1206

-10- affirmative proof of the existence or prospec t 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 natur e 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.