Petition for Writ of Certiorari — Joneson v. Illinois

01 297 aus 1 0200) |

NO = OFICE Ur Te CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

October term 2000

EUGENE JONESON-PETITIONER

VS.

THE PEOPLE OF THE STATE OF

ILLINOIS

IN THE INTEREST OF

LUELLA JONESON

On Petition For Writ of Certiorari to the United

States Court For the 1* District of Illinois

PETITION FOR WRIT OF CERTIORARI OF

EUGENE HERMAN JONESON

Eugene Joneson

Pro Se

11732 S. Prairie

Chicago, Illinois 60628

773-568 -4132

Date August 12, 2001

Questions Presented For Review

I. Was it a violation of Due Process when denial of trial court

motions for a continuance, discovery, and post trial evidence by the

tria! court judge for the best interest hearing, caused evidence to

improperly omitted that was in petitioner’s favor.

I]. Was it an abuse of discretion by the trial court judge when

she: |. allowed the return of visitation to be determined by the

wishes of the foster parents instead of the interpretation of state

statue for the best interest hearing and with additional consideration

given to open adoption for the birth parent Eugene J.

II]. Was it an Equal Protection violation for putative parents

and family and a violation of the 14" amendment when no recorded

interview of L.J’s wishes aboutadoption were made as dictated by

Illinois law.

IV. Was it a 1st amendment violations and establishment clause

when adoption was completed across religious faith without

compelling evidence and the consent of the birth parent.

V. Was ita violation of Due Process and Equal Protection when:

Child custody evidence created by the was used as the manifest

weight and the clear and convincing evidence for the determination

of unfitness of the father E. J. and termination of parental rights in the

best interests of L. J. Especially when one of the criteria for

evaluation was that the parents must be suspected of mental illness.

VI. Should the United States Supreme Court review the final

judgement for unfitness of the father Eugene J Would this review

show the preponderance of the evidence shows that E. J. was

i

thwarted by the efforts of the Caseworkers by using evaluator and

caseworker reports as the clear and convincing and the manifest

weight of the evidence instead of determining reasonable progress

from the benchmark of progress made from the conditions in

existence from when custody was taken from the parents

VII. Was it a violation of the 14" amendment due process clause

when the termination of parental nghts solely for the reason of

failure to make reasonable progress in parenting skills was ordered

without compelling evidence about change of religion, adoption

without parents consent and without consideration of open adoption

parties to the proceeding and rule 29.1 statement

Eugene H. Joneson

11732 S. Prairie

CHICAGO, ILLINOIS 60628

James E. Ryan

State of Illinois Center

100 West Randolph St.

12" fl. Chicago, I] 60601

Richard A. Devine

the State’s attorney of Cook County

Room 309 Richard J. Daley Center

Chicago, Illinois 60602

Attn. Kenneth T. McCurry

The Public Guardian of Cook County

2245 W. Ogden Avenue. 5" floor

Chicago, Illinois 60612

Attn. Jane Burwell

The Illinois Department of Children and Family Services

100 W. Randolph, 6" floor

Chicago, Illinois 60601

Attn: Cheryl Cesario

TABLE OF CONTENTS

Page

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Constitutional and Suasery Provisions Involved......................+. 2

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Appendixes

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TR rene re ARE IID eoiMc Ts 61-137

BE iiscnninsisisintinnssinesipcanseninalincteeasccaiiaantinaana 138-212

SIE PUD incsensinssevioniccapalnacipasiiitiainciccdiiatmianmelaaaials 213-256

Booklet L. LsesiiecebibsbincanasasousbisiuilinhadieidhienadikinisacaliaieAaeaaaaa 1-30

Iv

Reasons for Granting The Writ..............0.......

I. It was a violation of Due Process by denial of trial court

motions for a continuance and discovery. by the trial court

judge for the best interest hearing,

I]. [t was an abuse of discretion by the trial court judge when she:

1. allowed the return of visitation to be determined by the wishes

if the foster parents instead of the interpretation of state law

and 2. when no consideration was given to open adoption for the

birth parent Eugene J.

Ill. It was an Equal Protection violation for putative parents and

family and a violation of the 14th amendment when no recorded

interview of Luella J’s wishes about adoption was made

[V. It was a lst amendment violation when adoption was

completed across religious faith without compelling evidence

and consent of the birth parents.

V It was a violation of Due Process and Equal Protection when:

Investigator reports and social workers reports based on mental

Illness, were as the manifest weight and the clear and

convincing evidence for the determination of unfitness of the

father E. J. and termination of parental rights in the best

interests of L. J.

VL The United States Supreme Court should review the final

judgement for unfitness of the father E.J. Would this review

show the preponderance of the evidence shows that E. J. was

thwarted by the efforts of the caseworkers by using evaluator

and caseworker reports as the clear and convincing and the

manifest weight of the evidence instead of determining

reasonable progress from the benchmark of progress made

v

from the conditions in existence from when custody was taken

from the parents

VIL It was a Violation of the 14" amendment with the termination

of parental nghts solely for the reason of failure to make

reasonable progress in parenting skills without compelling

evidence about religion, race, consent of parents and

without consideration of open adoption

INDEX TO APPENDICES

Appendix A-1 Order of Appellate Court of Illinois Ist Judicial

District affirming trial court decision

A-2 Order Denying Petition to Rehear 1 * Judicial

District

Appendix B-] Order on Motion to Close Proceedings because

adoption is completed

B-2 Unfitness Ruling by Trial Court Judge

B-3 Best interest Ruling by Trial Court Judge

Appendix C-1 Order of the State Supreme Court Denying Petition

for Leave To Appeal

Appendix D Order Denying Motion for Reconsideration of The

Order Denying Petition For Leave to Appeal

Appendix E Motion For Return of Visitation

Appendix F Order Affirming The Trial Court Decision To

terminate Parental Rights of Eugene J. to Older Sibling

Sisters of Luella J.

Appendix G Notice to Appeal Brief

Appendix H Reply Brief

vii

Appendix! Petition to Rehear

Appendix J The Petition for Leave to appeal to The Supreme

Court of Illinois

Appendix K Motion for Reconsideration of Leave to Appeal

Appendix L Common law and Transcript Records

Vill

TABLE OF CITED AUTHORITIES

STATE CASE AUTHORITIES

In_Interest of Austin Cite as 378 . N. E. 2d 543 [5]

PE OT 21

In Interest of Otto B. 393 N.E. 2d 676.000.0000. cccccccccceecceeee 13

In Re Ballweg v City of Springfield, 114 Ill. 2d 107 499 N.E. 2d

es I I icc covesctsnocansenecdssvcnesuncce 17

In Re Bentsen v. Bentsen 412 N.E. 2d 1167 .o.....oocccccccccccceeee ri |

Eieatonne 7, Fitaioey 391 NE. 26 222...0.......ncscccesccccscosessesscsnsese 23

In re MC, 201 Ill. App.2d 792 , 559 N.E. 2d 236 ,239 (

1980).....19,20

Cebrzynski v. Cebrzynski (1978), 63 Ill. App.3d 66,72,19 Ill. Dec.

or canaauansinvasineds 24

In DeYoung v. Devoung 379 N.E. 2nd 399 at (9)... 14

reser eee y 1980,47 Ill. Dec. 631, 91 Ill. App. 3d 658,

ie. eee ae ya fi 6:36

RS AIEEE IES PF SOREN NAIM OO a 22,25,26

In Harris y. manor Healthcare Corp. 489 N.E. 2d 1374,1375

PRESEN REESE SS TEES Bra OSNews oP TO TT 12

5 I Ce TG iin csccecccscscacccocsatecaseoec. 9

Inre Hurley (1976), 44 Ill. App.3d 260, 2 Ill. Dec. 595, 357 NE

arcu

FTIR DEES Re Oe TCT 14

In Re custody of Krause 444 N.E.2d 646-647..000..-ccccccscsssssesse 24

Kubisz v. Johnson 329 N.E. 2d 815 o..ccccccccccccccsssssssesesesecossse 22

In Lael v Warga 508 NE 2d 1095.......ccccccccccsssccssssessesssssee 13,26

BR Fe TO MN apices csbescse Seis cnecsnaccsecceesie 18

In re Interest of L. N, 278 Ill. App. 2d 50-51 ooo. eee 20

jo OGD), : * ER ee F 14,17

OO I ST RI cis nncsslincdbeptinconseiiiie ak Dicasebeencetiintns 21

In Perkins v. Breilbarth 424 N.E. 2d 1361.00... 24

In Regenold v. Baby Fold, Inc., 42 Ill. App. 3d 39, 355 N.E. 2d

DOE 6 Peer dtinsaniiehogithbesigncteadiihesikitleinn tubestisiinahte teidianusdanin ata tehahads

17

In Re Santos 105 N.Y. S. 2d 7163 In 331 Mass. 647.121 N.E.

2 d

<aninabdpssitibiguamsaseiebiiibiahishnsaieiiomieneisiianiaaccm amanda: 15

_In re L.LS., 218 Ill. App 3d at 461, 577 N.E.2d at 1387

snthialednginisiasielsimbadiaemeaasdenibataiaa a acddetcaaieoonee 20,21,22.

In nperest of L.LS 577 Ne 2d 1387.....0.........0......ccccccccseceess 22.

In re Marmiage of Ronald R. Slavenas 487 N.E 2d 7339.............. 14

In Interest of A.T. Cite at 555 N.E.2d 403 (ILL App. 4 Dist

PUTT i snacautossspuhinntiniearndindapadadgsiolankaxiasiuickbepiesiie ta GaRL aan 20

In re Woods (1* Dist 1977,54 Ill_App.3d 729, 735, 12 Ill.Dec.

3 4 2 ; E 3 6 9

| Rae ID SRG SEER RO RT TN MERE LIEN Cee) 22

Woods v Woods 498 NE2d 906.200.000.000. cee ceeeeeeeeeee 12

Inre Workman 390 N. E.2d 900 for the proposition that paragraph

Sa Liihsilicdeiscihisicinscibleaicin Set ccas danadiecididiag sanmenieaniaaaelieadaileaaa 11.

MISCELLANEOUS

Family Law Quarterly, Volume xxv, Number 2, Summer 1991 and

Mass. 647,121 NE. 2d 843

£2 | Re SE OA ewe eae LP A 15 Family Law Quarterly,

Volume XXV, Number 2 ....000.c.. 15 89 Tllinois

Administrative Code Chapter 111, Sec. 304.2.............. 12

3 [Mimeie Remnity I [ Practi ;

, & Te aE MLM OA 50 <8 See S Rene CS 14

Ill. Rev. Statues for Domestic Relations 40 @ 1501.................. 25

In 34 POF 2d 424 Child custody 34-407 annotation 10.Use of

WIN Sieh ela cence esoicasaritscavasaccnssntdcnaussics 18

IN I iia csccnsnssassnacennnennceinece 9

UNITED STATES AUTHORITIES

In__Addington. 441 US. at 427, 99 S. Ct At

8 ea EES SE BSS! BP PEERED pen Eitan Ai RRC OER 12.27

In Caban v Mohammet, 441 U.S. supra at 392.0000. 12

Lemon v.Kurtzman 403 USS. at 612.0000 eee eeeeeeees 16

In Lehr v. Robertson 463 U.S. 248, 261-262 (1983)............ 10,13

Mathews v. Eldndge, 424 U.S. 319,335, 96 S. Ct.893,903,47 L.

RU WI Meade asthe icin oc ceeh EN ren ssc, s Sasdch ancncexSisucacascanaois 10

Mathews v. Eldridge, supra, 424 U.S., at 343, 96S. Cte... 13

Michael H_.v. Gerald D.491 U.S. 110, 145.00. 11

Michael H. V. Gerald D. 491 U.S. 145 (1989)... 13

Roe _v. Wade, 410 U.S. 113, 93 S. Ct 705, 35 L. Ed.2d

ge SOIR AE SIE BAS OEE RRR OPIS PGl A Rb SE GED EDEN SIE PTO IOR ATE 36

Quillion v Wolcott ,434 U.S. 246, 255, 98 S. CT. 549,554, 54

Ef RERIIR EDS ORES Miri the fs Be CRM A OTE 13

In_Santosky V. Kramer 102 S. Ct. 1388 m (1982) 1397

ERE BBR Ey a Oe MT RENE AR NOE CaO EO 9

Santosky v. Kramer 102 S. Ct. 1401 at C

10, Smith v, Organization of Foster Families, supra, at 862-863, 97

Se RB titan pace lads kas haebeheas ccs ns ddcancssdacaon nce napreessa 12

Ke Spey v, Ties (92 S: Ct 1295S). annonces ccccccccccseeees 10

Stanlev_v_ Illinois, 405 U.S. 645, 651-652. N 92 S. Ct.

DDOR ZU AAUS SUL B25 (YGTZ) isa ech ccsssncesccncsacenes 13

In_Santosky V. Kramer 102 S. Ct. 1388 m(1982) 1397

a onscbiutaseaeannen 9

Seattle’ Keene 08. Ge Be ihc ies ctes ees 9

XI

Petitioner respectfully prays that a wnt of certioran issue to review

the judgment below.

OPINIONS BELOW

The opinion of the highest state court ,The Appellate Court of

Illinois 1* Judicial District, to review the merits appears in

“Appendix A-1" and is unpublished. The Order denying the petition

for rehearing Appellate 1st Judicial District is located in “Appendix

A-2" and is unpublished. The Order of the State trial Court

completing adoption is in “Appendix B-1" and is unpublished. The

Ruling of the tnal court Judge in the unfitness hearing is located in

“Appendix B-2" and unpublished.. The Ruling of the trial court

judge for the best interest hearing is located in “Appendix B-3" and

unpublished.. The Order denying the petition for leave to appeal in

the Supreme Court of Illinois is located in “Appendix C-1" and

unpublished. The Order denying motion for reconsideration of the

order denying petition for leave to appeal is located in “Appendix

D” and unpublished. The order denying the reinstatement of

visitation in toto by the Appellate 1 “district court is in “Appendix

E”

JURISDICTION

On December 2™, 1997 judgement was passed from the Circuit

Court of Cook County finding the father, Eugene J. unfit to parent.

On April 7", 1998 the father and mother’s parental rights to Luella

J. were terminated The order for completion of adoption appears

in Appendix C. Post trial motions to reconsider unfitness and

termination of parental nghts and to reinstate visitation were denied

on August 6th, 1998.

The Notice of Appeal was filed on September 3% 1998. On

August 24, 1999 the appellant brief was allowed to be filed

instanter. A copy of that decision appears at Appendix A After

l

one extension of time, the Petition to rehear was filed on 8/15/2000.

It was denied on September 7", 2000. A copy of this order is

found in Appendix B.

On September 25", 2000 an affidavit of intent to file was mailed

to the clerk’s office of the appellate court | “District. On October

_ 12", 2000 a motion for the extension of filing time was filed with the

Illinois Supreme Court Clerk. The 1* extension of time was

allowed til November 14th, 2000. The petition for leave to appeal

was filed timely on that date. The petition for leave to appeal was

denied on January 29", 2001. A copy of this order is found in

Appendix D.A motion for extension of time to file motion for leave

to file motion for reconsideration of the order for denying petition to

leave to appeal was filed on February 9", 2001. The extension of

time was granted and the due date to file motion for leave to file

motion for reconsideration of the order denying petition for leave to

appeal was ordered for March 1*, 2001 and was timely filed on

March 1*, 2001. On March 15". 2001, an order was entered by

the Supreme Court of Illinois denying the motion for leave to file a

motion for reconsideration of the order denying petition for leave to

appeal. A copy of the order appears in Appendix E.

The date on which the highest state court decided on my case

was March 15th, 2001.An extension of time within to file a petition

for a writ of certiorari was granted to and including August 12",

2001 on May 23” in application No.00A1012

The jurisdiction of this Court is invoked under 28

U,S.C. at 1257(a)

CONSTITUTIONAL PROVISIONS, TREATIES, STATUES,

ORDINANCES AND REGULATIONS INVOLVED IN THIS

CASE

The first Amendment ..Freedom of Religion. Congress shall make

no lawrespecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the

2

press; or the nght of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

The fourteenth amendment Article 14, Section 1 Due Process and

Equal Protection All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due process

of law: nor deny to any person within its jurisdiction the equal

SE Ge GI diswsicmssetiseccacisgenitnnnlesoccteenen 7,14,16.23,25

42 USCS annotation 5103 at (B\1)& (2) (D)

(b) (1) The secretary, through the Center, is authorized to make

grants to the States for the purpose of assisting the States in

developing, strengthening, and carrying out child abuse and neglect -

prevention and treatment programs.

(2D) In order for a State to qualify for assistance under this

subsection such State shall—demonstrate that there are in effect

throughout the State, in connection with the enforcement of child

abuse and neglect laws and with the reporting of suspected

instances of child abuse and neglect, such administrative

procedures, such personnel trained in child abuse and neglect

prevention and treatment, such training procedures, such institutional

and other facilities (public and private), and such related multi

disciplinary programs and services as may be necessary or

appropriate to assure that the State will deal effectively with child

Bese ated MOGIOCE CRBOE. noi. ..0.-sccccnccscsessasenssssssvcdsascsotonnne 17,22

Statement of the Case

L. J. was born on January 3oth, 1994 at home to mother F. O.

and father E. J. When E.’J. told and wrote Willa Henning

(Appendix L pg 22) , a department and Children and Family

services caseworker about her birth and asked for DCFS help,

especially since F. O. might be suffering from Post Partum

depression L.J. was taken from F. O. while E. J. was at work, by

a department of special investigations employee for DCFS for risk

of harm (Vol 1 of 6, R 106).(Appendix L pg 10). Reasons given

were because F. O. had no proof she was on medication

prescribed, had no doctor records of the birth and she had

threatened the case worker. When L. J.’s case came into care on

February 22nd. 1994.the temporary custody order specifically

stated that the parents of this minor are mentally ill and unable to

care for this minor. (Sr | pf 2. C 74 & Vol 1 of 2. C 10-11) (

Appendix L pg 11) E. J. was not named as the person responsible

for the child abuse or neglect (Sr | of 22, C 141).

Arguments by the state to make L. J. a ward of the state were

that: 1. E. J. was under court order not to be living with F.O. But

this order was never produced as evidence and also has never

been found. 2. F. O. had also abandoned two older sibling sisters

of L. J., 3. and the two older sibling sisters were currently being

appealed for the termination of parental rights because E. J. had

been in services for many years for parental skills but was unable to

convince anyone that he was able to adequately parent his children

for their return home (Vol 7 of 9, TE 129). 4. Psychologicals and

psychiatrics made by the state also indicated E. J. was unable to

parent due to a mental impairment.

At the unfitness trial of E. J., his attorney submitted the most

recent psychiatric by a Doctor Childers indicating no auditory

hallucinations (Vol 8 of 9, trial exhibits, 114, 137), An evaluation

from Christopher Randolph from Northwestem University indicating

there were no neuropsychological abnormalities (Vol 6 of 9, Te

4

205), a report from Doctor J. Anderson from the University; of

Illinois recommending that no further neurological studies be made

at this time (Vol 6 of 9, Te 203), testimony from notes of over 60 —

hours of therapy by therapist Tod Harrison, that did not see E.J. as

having a severe personality disorder (Sr | of 2, C 91 KAppendix

L, pg 14), and a psychological update from Doctor Marty

Blackman that concluded E. J. did not meet the criteria for a

personality disorder,( Vol 2 of 6, R 180Appendix L, pg 15-16).

LCSW Tod Harmison of Chicago Community Counseling Center,

testified Catholic Charities was not cooperating with E. J in

providing therapy and services for father E. J. with his daughter L.

J. Since 1995 to trial date they never called and discussed specific

issues (Vol 5 of 6,, R127 In 10-14) even though he wrote and

asked for their response. (Vol 8 of 9, Te 137, TE 115, TE 131 &

133, TE 128)

A special investigation team was mandated by the governor

using mental illness as its basic criteria for selection of parents who

could not make reasonable progress for the return of their children

(Vol 1 of 2, 9/25/98 C 78). More importantly because the State

Department of Children and Family Services was bloated with

cases they could not make clear and convincing decisions about, the

P.A.T. was used to provide this information. (Vol | of 9, TE 66,

Vol 2 of 9 , Gal ex3 TE 184 or TE155) (Vol 1 of 8, TE 66 Vol 2

of 9 , Gal EX # 3. 184 or TE 185) These reports were used as

evidence to in the unfitness and best interest hearings..

State arguments in court for unfitness and termination of parental

rights were that E. J. had been in court for over 9 years and had

been in Catholic Charities Agency supervision and services at that

time, especially parenting class, and had made no reasonable

progress in the return of L. J.. Also that not one caseworker of

Catholic Charities would recommend the return of L.J. E. J. was

found to be unfit due to failure to make reasonable progress..

At the Best Interest Hearing, a continuance was asked for

5

aiid,

because E. J’s attorney’s motion to be dismissed was granted. The

continuance was denied even though all witnesses could not attend

and all evidence was not available for the hearing. E. J. represented

himself pro se.(SR 1 of 2, Appellate stamp 3/5/99 C 027-29\SR

1 of 2, App stamp 3/5/99 C30) (SR 1 of 2, C27-31)

On the best hearing trial date, E. J.’s_ parental nghts were

terminated in respect to L. J. The reason also being for failure to

make reasonable progress for L.J.’s return as in the unfitness

hearing.. The manifest weight of the evidence as in the unfitness

hearing consisted of the special investigation team reports and

psychologicals and psychiatrics over six years old.

Compelling evidence needed because of differences in religion

and ethnic heritage of the birth father and the non-consent by the

birth parent was presented. Adoption and the compelling evidence

for it was determined by bonding with foster parents and length of

time case was in care. No recorded interview was made with

regards to L. J.’s wishes for custody. Open adoption was not

considered an option because the judge was unaware of any law

that would justify such a judgement.

Motions to vacate or retrial for unfitness or dismissal of best

interest hearing were also presented that day. New substantial

evidence, validated by David Devalle of the Cook County

Commissioners Office was that parenting classes that were testified

to as having been offered for the last six years had not been and

never were (SR | of 2, C 227) (appendix L pg 23-24) Catholic

Charities never had appropriate service plan for E.J. (Vol 1 of 6,R

31).It was brought out in the motion that |. Only one parenting class

was Offered for E_J. for the entire period of time from 1985 to 1995

(Vol 3 of 9, Te 176 )” appendix G page 128" Hector Rivera , the

caseworker at that time had testified that they had.(Appendix L pg

25-27) been offered for all the time he was on the case.

for 3 years in arow “Appendix G pg 77” (appendix L pg 29 or Vol

6

1 of 2 Clerk Stamp 1/8/99 C199)and in addition more evidence

included a family therapist testimony that E. J.’s alleged personality

disorder simply does not exist and a misdiagnosis had been made.

(Sr | of 2, Jan. 8", C 94)or (Appendix L page 17-18). Mr. Lietzau

had also observed E.J. interacting with children at Loyola Medical

Hospital in the pediatrics department where E.J. is a volunteer but

not allowed by Catholic Charities to attend visits with E. J. and L.

J.(Vol 2 of 2, 9/265/96, C 291) besides having 9 therapy sessions

with E. J. (SR 2 of 2, January 8th 1996, C 279- Treatment at

Family Interventions). This therapist evidence was not admitted

due to late filing of the post tral motion Returm of visitation or a

stay of judgement was also denied due to loss of jurisdiction by the

trial court judge or late filing of post tral motions. This occurred

even before all proceedings had been closed by the court with the

completion of adoption or the filing of the notice of appeal.. All

motions to vacate or retnal for unfitness and to dismiss the best

interest hearing were denied even with these considerations of new

substantial evidence for failure to make reasonable progress

Argument

Reasons for Granting The Petition for Wnt of Certiorari

I. Violation of Due Process of the 14" amendment

by denial of tral court motions fora continuance and discovery. by

the tnal court judge for the best interest hearing,

On the day that the best Interest hearing was held E.J., the

petitioner filed a motion to dismiss his attorney and so did his

attorney Wilson because of disagreements occurnng in the unfitness |

portion of the tnal with the submitting of evidence. But both had

asked for a continuance for the best interest hearing.(Vol | of 1,

11/17/98 R 58 In 21-59 In 4)As attorney Wilson had done nothing

for him except to file a motion to withdraw#¥tiie appellant’s

attorney (Appendix L pgs 1-2). E. J. had no witnesses and was

unprepared for trial because he thought this was the pretrial date

7

a SG Se ON Nee Le ee ar SEN ey eee A

(Vol | of 1, 11/17/98 R65) and he had filed motions for discovery

for witnesses (Vol | of 2, 1/8/99, C 27- C 31)\Vol | of 1 ‘

11/17/98, R 65) (Appendix L, pgs 3-6)

Judge Mulhern denied the continuance regardless. . (Vol | of 1,

R65 In 5-21) The appellate court has overlooked the fact in their

affirmation of the trial court judgement denial of the continuance,

that although E.J. was willing to represent himself pro se, E.J. was

not wanting to have the best interest hearing on the same day as his

appointment. The appellate court also overlooked the fact that a

continuance was even filed . This found in “ Appendix A-1 pg. 19,

3™ para.-pg. 20 para. 1". Further on in the transcript dictated by the

appellate court but overlooked, E.J. later argued with the trial court

Judge Mulhem for the continuance or dismissal of the best interest

hearing so witnesses could be called.(Vol 1 of 1 , 11/17/98 R64,

In23-R65, In24) Judge Mulhern “With regard to the motion to

dismiss the best interest hearing, you indicate that a notice of appeal

will be filed. **** There is also a statement that the discovery

includes recalling witnesses not thoroughly evaluated. **** You can

call them and ask them to be here. This motion to Dismiss the Best

Interest Hearing is found in{ Vol 1 of 2, January 8", 1999 at C27-C

31) This was argued to the appellate court in “Appendix G pg 138-

140" , “Appendix I 203 -204” and the Supreme court of Illinois in

“appendix K pgs. 252-253"

The best interest hearing was held even though E.J. did not have

all of his witnesses or evidence available., This included E.J.’ pastor

Greg Dell and CC files of case notes and visitation reports favorable

to E.J These Catholic Charities records for L. J’s case were not

available because they had to be duplicated from Alice Wilson files

(Vol | of 1, R69 In 2-11), (Vol 1 of 1, November i7", 1998, R

69 In 2-In 11) .. During the best interest trial it was brought up

about Pastor Dell’s letter that he could not attend (SR 1 of 2, App

stamp 3/5/99 C 30) in the motion to dismiss the best interest

hearing. (Vol 1 of 1, R 46 In 20-23) She continued the trial with

8

evidence of what the appellant thought would be testified to and did

not grant a continuance for his testimony (Vol | of 1 R 44 In 16-R

45 In 1-11). The trial court essentially decided wether the witnesses

were important or not(Vol | of 1, November 17th, 1998 R 44 ,In

16- R 47 In 2 and R 64 In 23- R 65 In 24). Other witnesses

motioned for who were not included; |. caseworker. Julie Yalowitz,

who had been on L.J."s case since January of 1995 (SR | of 2,

Appellate stamp 3/5/99 C 27-31), 2.The Catholic Charities

caseworkers who supervised this case for almost all of the first year,

Nora Rodriguez ( Vol 1 of 9, R 91 Case Planning Acknowledgment

11/7/94), 3. Laura Scott (Vol | of 9, R 43-46 Transfer Summary

4.. Amy Anson, child psychologist, (stated contact with father for

Luella should be continued even if Luella was adopted (vol 4 of 9,

TE 187) ), and therefore could not testify in court. 5. E.J’s family

therapist. John Lietzau was also not allowed to testify even though

motioned for in post trial. Vol | of 1, November 17", 1998, R

116 In 5-11).

In Supreme Court Rule 318 at © dates set for the disclosure of

~ Opinion witnesses and the completion of discovery shall be chosen

to ensure that discovery will be completed not later than 60 days

before the date on which the trial court reasonably anticipates the

trial will commence. In Hearson v. Graudine 87 IIL 115, it reads that

a court should not refuse a continuance where the ends of justice

clearty require it and an abuse of discretion in doing so will justify a

reversal. In Santosky V. Kramer. 102 S. Ct. 1388 m (1982) 1397

[8] The extent to which procedural due process must be afforded

the recipient is in influenced by the extent to which he may be

condemned to suffer grievous loss | E_J. though he was willing to

represent himself pro se at the best interest hearing was in no way

accepting the conclusion of the trial court to deny a continuance as

it was in the best interests for Luella to have her birth father as best

prepared for the best interest hearing as possible Santosky v.

Kramer 102 S. Ct. 1401 at C Two state interests are at stake in

9

~< >

parental rights termination proceedings- a parents Patrai interest in

preserving and promoting the welfare of the child and a fiscal and

administrative interest in reducing the cost and burden of such

proceedings. In Stanley v. Illinois (92 S. Ct 1215) The constitution

recognizes higher values than speed and efficiency. Indeed , one

might fairly say of the Bill of rights in general, and the Due Process

‘in Partcular, that they were designed to protect the fragile values of

a vulnerable citizenry from the overbearing concern for efficiency

and efficacy that may characterize praiseworthy government officials

no less, and perhaps more, than mediocre ones.

Judge Mulhern also abused her discretion by not allowing Al

Lungowski from A.A to testify about being a sponsor for E.J. after

the adoption petition was passed in the unfitness hearing (Vol 4 of

6, R158, In1-3) but allowing the testimony of Christine Foley (vol

| of 1, 11/17/98, R70 In14-16) who had been on L. J’s case since

September of 1997, over one year after the petition had been

passed May 10, 1996 (Vol | of 2, 1/8/99 C 65) None of the

caseworkers in the time penod from adjudication to passing of the

adoption petition testified in court for the best interest hearing

because of the continuance denial. In Lehr v. Robertson 463 U.S.

248, 261-262 (1983) clearly that fathers who have participated in

raising their illegitimate children and have developed a relationship

with them have constitutionally protected parental nghts:

I].. It was an abuse of discretion by the trial court judge and

appellate court when they: |. allowed the return of visitation to be

determined by the wishes of the foster parents instead of the

interpretation of state law ( A special appeal to the appellate court

for reinstatement of visitation is found in “Appendix E”) and 2.

when no consideration was given to open adoption for the birth parent

E. J. since the only reason for being unfit was failure to make

reasonable progress for the return of the children due to his parenting

skills. Mathews v. Eldridge. 424 U.S. 319,335, 96S. Ct.893,903,47 L.

Ed.2d 18 The nature of the process due parental rights termination

10

proceedings tums on balancing three factors: the private interests

affected by the proceedings; the risk of error created by the state’s

chosen procedure; and the countervailing governmental interest

supporting use of the challenge of the procedure

At the Best Interest Hearing, on Apnil 7th, 1998, the tral court,

Judge Mulhern presiding, made the decision to continue visits

through Catholic Chanities or the foster parents if the foster parents

so chose (Vol 1 of 1, November 17", 1998 R 52 In 13-20). C.C.

decided separately to discontinue visits thereafter because the

adoption had been completed in the tral court. E. J. was not

allowed the foster parents telephone number to call.

Inre Workman 390 N.E.2d 900 for the proposition that

paragraph 1521 of the Illinois Adoption Act must be read as

providing that an interim order terminating parental nghts severs the

parent-child relationship after the expiration of petitioner’s nght to

appeal the order. As this order is still under appeal, petitioner

argues visitation can still be returned if the wnt of certiorari is

granted In Michael H_.v. Gerald D.491 U.S. 110, 145 it reads the

appropnate level of scrutiny in determining wether statue violates

due process is rational basis test when statue under consideration

does not affect fundamental constitutional nght; courts will subject

legislation to strict scrutiny if law impinges upon fundamental nght

U.S.C.A Const Amend 14 ,

The above rulings by Judge Mulhern has virtually left all visitation

at the discretion of the foster parents during the appeals process.

The foster parents have not made a good effort or decision in not

allowing contact between father and daughter to occur. Since L. J.

was never told she wouid not be seeing her father for a long period

of time, it prevents her from maintaining or continuing a her healthy

mental relationship with him as recommended by Dr. Anson in her

bonding assessment.(Vol 7 of 9 TE 196)or “Appendix G pgs. 74-

75". Itis also detrimental because it allows bonding to occur which |

is deceitful and hurtful to LJ. This in itself is violating the minimum

1]

en Y

parenting requirements the state is trying so hard to preserve 89

Illinois Administrative Code Chapter 111. Sec, 304.2 .found in

“Appendix F pg 45”

. Smith v. Organization of Foster Families, supra, at 862-863,

97 S. Ct. At 2119 (Stewart J. Concurring in judgement) The

interests of parents in their relationship with their children is_

sufficiently fundamental to come within the finite class of liberty

interests protected by the Fourteenth Amendment.” In Caban v

Mohammet, 441 U.S. supra at 392 reads “ When an unwed father

demonstrates a full commitment to the responsibilities of parenthood

by “com[ing] forward to participate in the rearing of his child , he

therefore has a liberty interest, entitled to protection under the Due

Process Clause of the Fourteenth Amendment, this interest in

personal contact with his children acquires substantial protection

under the Due Process Clause. In Harris v. Manor Healthcare

Corp. 489 N.E. 2d 1374,1375 We first ask whether the person

claiming constitutional protection hasan interest that the Constitution

recognizes; if we find that he or she does, we next consider the

State’s interest in limiting the extent of the procedures that will

attend the deprivation of that interest . And in In Addington. 441

U.S., at 427, 99 S. Ct. At 1810 “ the individual should not be

asked to share equally with society the risk of error, when the

possible injury to the individual is significantly greater than any

possible harm to the state. Thus at a parental rights termination

proceeding, a near-equal allocation of risk between the parents and

the State is constitutionally intolerable.”

Petitioner argues visitation should be maintained until all

parental nights are severed by the court by a mandate because all

appeals are exhausted. and guided by the endangerment standard

Woods v Woods 498 NE2d 906. The court is in error where it

restricts a parent’s visitation rights where the court does not make

the requisite finding that the visitation will seriously endanger the

child’s physical,. mental , moral or emotional health but rather, the

12

court finds that the restriction in visitation is in the best interests of

the children. This relationship between E. J. and his daughter L. J.

should be maintained. In all the rulings of visitation on L. J., there

never was any reason given to stop visitation due to a endangerment

standard

In Quillion v Wolcott ,434 U.S. 246, 255, 98 S. CT. 549,554,

54 L.Ed.2d 511 (1978) and Stanley v Illinois, 405 U.S. 645, 651-652.

N92 S. Ct. 1208,1212.,1213,31 L.Ed. 2d 551 (1972) The absence of

dispute reflected this Court’s historical recognition that freedom of

personal choice in matters of family life is a fundamental liberty

interest protected by the Fourteenth Amendment.

State statues as In Lael V. Warga 508 N.E. 2d 1095

Although a parent may be unfit to have custody of children, it does

not follow that parent is unfit to remain children's legal parent with

attendant nights also In re Hurley (1976), 44 Ill. A.. 3 d 260, 2 Il.

Dec. 595, 357 NE 2d 815) and In Interest of Otto B. 393 N.E. 2d

676 indicate there is a chance for visitation even after a parent has

been found unfit. Petitioner requests the court to review. Mathews

v. Eldridge, supra,424 U.S., at 343, 96S. Ct, at 907 Courts must

examine all procedural protections offered by the State, and must

assess the cumulative effect of such safeguards. As we have stated

before, courts must consider” the fairness and reliability of the

existing... procedures” before holding that the Constitution requires

more” and Lehr v Robertson, 463 U.S. supra, at 261.

The trial court Judge Mulhern admitted herself that she was

unaware of any case law that indicates that a parent can have -

custody or visitation rights after their nghts have been terminated

(Vol | of 1, Nov. 17", 1998, R22 In18-in19) Michael H, V.Geralald

491 Us 145(1989) Brenan J. Dissenting The plurality’s exclusive

rather than inclusive definition of the “unitary family” is out of step

with our decisions as well. This pinched conception of ” the family”

is jarring in light of our many cases preventing the States from

denying important interests or statuses to those whose situations do

13

not fit the government’s narrow view of the family.

III. It was an Equal Protection violation for putative parents and

family and a violation of the 14" amendment when A. no recorded

interview of L. J’s wishes about adoption were made

It was not in the best interest of L. J. to be adopted when her

fathers nghts to custody and visitation were lost due to termination

of parental nights because all safeguards to protect her rights to her

birth family which are also protected by the 14"amendment of the

Constitution were not taken or provided by the Catholic Charities

agency or the State of Illinois.

This included: 1. L. J.’s night to an interview with regard to her

preferences of custodian or visitation in re _3 Illinois Family Law and

Practice reads at annotation 9.322 The requirement hat interview —

of a child be recorded cannot be waived by the parties Custody f

Krause Ill. App.,444 N.E. 2d 647 Subsection (2) directs the court

to consider the wishes of the child as to his custodian, in 750 ILCS

5/602 (a) (2) A child’s preference is an important factor in deciding

custody, In Deyoung v. Deyoung 379 N.E. 2d 399 at (9) The law

requires that competing custody be resolved in accordance with the

best interest of the child, and the places upon the court the burden

of determining where the interest resides. At 3-5) The second

sentence says that counsel] shall “ shall be present unless otherwise

agreed upon by the parties “ thus expressly allowing the parties to

waive the right to have counsel present. The third sentence states

that the “ court shall causes a court reporter to be present “ This

provision does not authorize a waiver by t he parties and we believe

the imperative “ shall mandates that a record be made of the

interview) Records of in chambers interview of child to ascertain

child’s wishes as as to his custodian and as to visitation is mandatory

and cannot be wa waived by the parties In re Marriage of Ronald R.

Slavenas 487 N.e2d 739 and at 741 (3,4)

It was therefore error to conduct the interview without making a

record. The father of L. J. believes that this interview is additional

is

evidence to reverse the adoption or to grant visitation. People v.

Fierer 529 NE 2d 972 constitutional errors must be shown to be

harmless beyond a reasonable doubt

IV.. It was a ist amendment violations when L. J.’s adoption

was completed across religious faith and ethnic heritage, in this case

without compelling evidence and consent of the birth parents.

This case is an unsupported adoption by the birth father across

religious lines. (Vol 6 of 9, TE 111 11/7/94, TE 186 10/18/95, TE

244, 04/09/96, Vol 7 of 9, TE 47 10/08/96, TE 84 4/7/97) The

birth father was Methodist and the adoptive parents were Catholic.

In Family Law Quarterly, Volume XXV, Number 2 Summer 1991

adoption across religious lines is further discouraged by imposing an

additional procedural requirement, if adoption is granted a person

of a religion different than that of the child, the court must recite for

the record the facts that compel the decision also in_re Santos 105

N.Y. S. 2d 716 3 and In 331 Mass. 647.121 N.E. 2d the court

held that the children had a natural and legal night to their religious

faith, which temporary exposure to another religion could not erase

Family Law Quarterly, Volume xxv, Number 2, Summer 1991

(Adoption denied to Jewish couple who had custody for three years

of twins born to Catholic mother.) Also in 66 ALR 2d 1410

Religion as a factor in awarding child custody

The agency Catholic Charities falsified their reports in order to

present evidence that would support adoption of L. J. to a different

religion, ethnic and racial heritage due to their budget and financial

reasons (Appendix |, pg 30). This allowed the agency to use bonding

of L.J. to the foster parents as the compelling evidence to terminate

parental rights without giving compelling evidence that will support

adoption across religious , racial, ethnic and without consent of the

parent This reporting continued even after E.J. had L. J. baptized

Methodist and is evidenced in all the case review reports except the

first (Vol 1 of 9, C88) from after the first report of this case until the

end under placement listing (Vol 6 of 9, TE 111 11/7/94, TE 186

15

10/18/95, TE 244, 04/09/96, Vol 7 of 9, TE 47 10/08/96, TE 84

4/7/97)a copy of one report is found in( Appendix L, ;pg 30)

At the best interest hearing, Christine Foley even testified that

the only requirement for the foster parents was to be Catholic(Vol

1 of 1, 11/17/98, RS Inl-12) In Lemon v.Kurtzman 403 U.S. at

612, a “practice which touches upon religion, if it is to be

permissible under the Establishment Clause, “ must not inter alia, “

advance [or] inhibit religion in its principal or primary

effect."Although, in refining the definition of governmental action that

unconstitutionaily “:advances” religion, the Court’s subsequent

decisions have various

y spoken in terms of “endorsement”, “favoritism”, preference,”

or promotion,” the essential principle remains the same: the Clause

, at the very least, prohibits government from appearing to take a

position on questions of religious belief or from “making adherence

to a religion relevant in any way to a person’s standing in the

political community.

V. It was a violation of Due Process and Equal Protection when

special investigations childcustody evidence was improperly used,

in violation of state statue and federal law when used as the

manifest weight of the evidence for the determination of unfitness of

the father E. J. and in the best interests of L.J. The sole criteria for

selection of parents for this evaluation was wether they had been

diagnosed as mentally ill in the past. (Vol 3 of 9, TE 142)

Governor Edgar of the State of Illinois mandated that a commission

to assess the parents of parents suspected of mental illness and the

parenting assessment team was result of this commission. (Vol 7

of 9,R 155). |

This is evidenced by the sboceament made by Laura Miller,

psychiatrist, and Teresa Jacobson, psychologist.(Vol 2 of 9, R

159). Psychological and psyc latric reports were very negative and

Supported the finding of unfitness based on a mental illness or

impairment of the father E. J,. It’s admission as evidence was

16

entered in the unfitness portion of the trial{ Vol | of 1, 11/17/98R

26 In21-R 27 In24) . Ballweg v, City of Springfield 499 N.E. 2d

1373 Evidentiary error, namely the improper admission or omission

of evidence is important ground for a new tnal when the error was

prejudice People v, Fierer 529 Ne 2d 972 constitutional errors

must be shown to be harmless beyond a reasonable doubt.

This same parenting assessment was also presented in its

orginal purpose as to provide recommendations for the father to

improve his parenting skills (Vol 2 of 6, R 122, In 15-16\SR 1 of

2 1/8/99 C 83 In 12-19 Appendix L, pg 13) The petitioner was

also informed that this assessment or team would not be used to

make decisions about custody but was only to determine |.what the

parent could and could not do to improve parenting problems and

to help develop the best possible service plan to improve the

parenting ability of the parent This is evidenced by the pamphlet

given to the petitioner before the assessment (SR 1 of 2, 1/8/99 C

85). As these parenting assessment reports were used as evidence

in court along with testrmony to find the father unfit and to terminate

his parental rights , this petitioner believes it is a violation of due

process through fraud and is reversible error to invalidate this

adoption In Regenold v, Baby Fold, Inc., 42 Ill. App. 3d 39, 355

N.E. 2d 361 (1976) ifit is a violation of due process through fraud,

it is reversible error so as to invalidate an adoption

The main coordinator of the Parenting Assessment Team, Kathy

Pesek who worked fro the Threshoids for Mothers project which

only provided services for women had 1. no prior or previous

training at evaluating the parenting capabilities of parents for the

improvement of their parenting skills (Vol 4 of 6, R 98 In 20-24, R

99 in 1-7), and 2. No experience for evaluating fathers (SR | of

2, C 84-88 3. No training in evaluating emotionally disturbed adults

(Vol 4 of 6, R 93 Appendix L, pg 19).This in violation of 42

USCS annotation 5103 In her case report summary and in trial

court testimggyshe testified that nothing could be done toumprove

17

E. J. s parenting skills

But Mr. Harrison, E.J.’s therapist and the head supervisor

of the Counseling Center testified at the unfitness hearing that it was

not the standard of the medical health industry that nothing could be

done to help a patient (Vol 8 of 9, TE 129).

A review of the record and the appellate court final order will

show The manifest weight of the evidence presented by the state

was from |. the entire parenting assessment team report cover to

cover, 2. a clinical Services report done by doctor Reebe which

was over three years old (ordered by the court and completed by

a state psychologist), 3. a psychiatric evaluation of the father by

Doctor Tepas (Vol 4 of 6, R 128 In 17- R 129 In 14)which was

over 6 years old, and 4 The head coordinator, Kathy Pesek of the

parenting assessment team and the caseworkers, Julie Yalowitz and

Christine Foley all had no training in evaluating parents for parenting

skills but were responsible for determining reasonable progress in

parenting skills for E.J(Appendix L pgs 19-20) What knowledge

they had was leamed from the experience of their jobs which all had

recently started.,(Vol 4 of 6, R 98 In 20-24, R 99 In 1-7),(Vol 3 of

6, R 70 In 10- 14, R 72 In 5-10), ( Sr 1 of 2 1/8/99 C

109) Appendix L, pg 19-20)..In Loitz 532 N.E. 2d at 1103 It reads

that it is the principle that the credibility of the expert and the weight

to be assigned to the experts opinion are matters to be decided by

the trier of fact in light of the expert’s credentials and the basis for

the expert’s opinions. And 5. The State’s only family therapist

witness ,Minna Greene had never seen E. J. with L.J (Vol 5 of 6,

R226 In10-24) In Kubisz v. Johnson 329 N.E. 2d 815 Where

there is failure to produce clear and convincing evidence that parent

is unfit within statutory definition, reversal of order terminating

parental nghts is proper. In 34 POF 2d 424 Child Custody at 34-

407 annot. 10 Use of investigators In some jurisdictions, the court

may have an independent investigation made in court proceedings,

by virtue either of statutory authorization or the exercise of the

18°

may have an independent investigation made in court proceedings,

by virtue either of statutory authorization or the exercise of the

court’s discretion, in order to obtain information needed by the

court to make its decision. As to the weight to be given the results

of the independent investigation, on the one hand they are advisory

only and may be disregarded by the court. On the other hand, they

may not be made the conclusive basis of the court’s decision, since

that would mean that the court would be delegating its power to

decide questions of child custody, and the court may not do that

VI. Petitioner seeks review of the final judgement for unfitness of

the father E. J. by the lower courts. The Preponderance of the

evidence shows that E.J. was: thwarted by the non-efforts and

efforts of the Caseworkers and therefore was not able to make

reasonable progress for the return of L. J. by following DCFS

directives and 2. that E. J. made reasonable progress for the return

home of L. J. by the benchmark of progress by the correction of the

reasons why the case came into care.

The state of Illinois had recently started reorganization of DCFS

by providing an incentive plan for their agencies to reduce the over

bloated system of abuse and neglect cases (Appendix L pgs 7-9)

Directly related to recent tragic cases of children in care returned

home who were murdered called the Amanda Wallace and Frank

Torres cases. Governor Edgar from Illinois mandated a special

investigation team for this purpose. Petitioner argues agency goals

and caseworker reports were oriented for adoption because of

these incentives;

The father of L. J. was found unfit using evidence that the state

had created through their evaluations and caseworker testimony as

the manifest weight of the evidence instead of using the benchmark

measure of progress from when the case came into care and

progress made within 12 months

This case is a perfect example of the conflict in jurisdictional

interpretation of the determination of unfitness statues. This being the

19

compliance to Catholic Charities directives and court orders of the

4" district In re L.LS., 218 Ill. App 3d at 461, 577 N_E. 2d at

1387

Substantial evidence exists that E. J made reasonable progress

if it would have been determined by an objective judgement, The

bench mark for measuring such progress is the situation which

triggered the initial removal of the children. In re M.C. 201 Ill.

App.2d 792 , 559 N_E. 2d 236 ,239 (1* Dist 1980) s. Also in re

Interest of L. N. 278 Ill. App. 2d 50-51 and InreS.J. 233 Ill.

App.3d at 121, 598 N..E 2d 477 The ultimate issue is the

reasonableness of the progress that the parent has made, in light of

all the circumstances in “ moving beyond the parental deficiencies

that led to initial removal of the child.

. In_Interest of A.T. 555 N 2d 409 it reads the first

interpretation of unfitness must be based solely on parenting efforts

or progress during the period beginning with adjudication and

ending 12 months thereafter. The second interpretation must be

based upon parenting efforts or progress made during the entire

period between adjudication and filing of the termination petition.

Under this latter interpretation, the length of the period is not limited

by the statue.

_ L. J.’s case came into care on 2/8/94. (Vol | of 9, R 18).

Adjudication was on 3/28/95 where she was found abused due to

injurious environment(Vol 1 of 2,1/8/99, C 26). The supplemental

petition for appointment of a guardian with nght to consent to

adoption was filed on May 10, 1996 (Vol 1 of 2, 1/8/99 C 65)..

Benchmark arguments that reasonable progress was made

were: 1. the charges of mental illness were dropped , (Vol | of 2,

C 10) (Vol 2 of 6, R 136)”appendix G pgs 131-132 "(SR 1 of 2,

Jan. 8", 1998, C 90-93 Vol 2 of 6, R 180 Vol 8 of 9, Te

137XSR 1 of 2 Jan, 8*, C 94)... 2 EJ. stopped seeing the mother

of L. J. as she would no longer cooperate with DCFS in the return

home of L. J. and as it was recommended by Catholic Chanties as

20

of L. J. as she would no longer cooperate with DCFS in the retum

home of L. J. and as it was recommended by Catholic Charities as

a condition for reasonable progress for the return home of L. J.

Interest of Austin Cite as 378 .E.2d 543 [5] Because it is impossible

to measure progress without referring to a prior status, current status

and the process by which movement from the one status to the other

occurred, absence of evidence regarding the prior status would

render a determination of" reasonable progress” meaningless Ip re

Perez 528 N.E. 2d 815 A tal court’s findings of parental unfitness

in a proceeding to terminate parental rights and appoint a guardian

with authority to consent to adoption will not be reversed by

appellate court unless finding of unfitness is against the manifest

wight of the evidence.

Catholic Charities began to concentrate on parenting skills for

E.J. by creating objectives for parenting for and demanded strict

compliance to them. This allowed CC was who was providing the

only workers monitoring L.J.’s case due to a recent restructuring

of the Department Of Children and Family Services full control over

active case management (Appendix L pgs 7-9) , Inre L.L.S., 218

Ill. App 3d at 461, 577 N.E. 2d at 1387 which erected the

standard that progress is measured by the compliance with the

court’s directives, DCFS service plans or both such that the court

will be able to return the child to the parent in the near future. This

standard has been criticized as too mechanical: These plans are a

means to an end, not an end in and of itself. In re S.J, 233 Il. App.

3d at 121, 598 N. E.2d at 477 (“ To place compliance with DCFS

plans ahead of the ultimate fact of progress would be to let the tail

wag the dog”) Furthermore, there exist a danger of “bootstrapping”

which wouid occur if the parents fails to do things on a service plan

which were not necessarily related to previous shortcomings.

Petitioner argues that he was thwarted by the efforts of the

caseworkers In re Bentsen v, Bentsen 412 N.E. 2d 1167 It shall be

an affirmative defense to any allegation that father’s failure was due

21

to circumstances beyond his control or to impediments created by

the mother or any other person having legal custody. Proof of such

fact need only be a preponderance of the evidence. Evidence to

support this that was overlooked by the appellate court was found

in L.J.’s arguments to the appellate court found in “appendix G pgs.

122-130, 170-183" and “ Appendix J pgs 220-230" This included

irregular visitation schedules, untimely offering of services, passing

on false information with regards to services offered and E.J.’s

progress (especially indicating parenting classes taken that were

never offered Appendix L 24-27), false representation in case

reports, statements such as foster family is of same religion and

ethnic background (Appendix L pg 30) and that there was a court

order that father was not supposed to be with mother, also canceled -

case reviews( Appendix L, pg 29).Again this is in total violation of

42 USCS annotation 5103 at (BX1)& (2)(D) The appellate court

erred when it said there was no evidence in the record to support

the above statements “Appendix A, pg 17-18"

Both the Guardian and the State testified that E. J. had

undeniably made the efforts (Vol 5 of 6 R219 In21-R 220 In 21),

but the bottom line was that he could not parent because his efforts

were unsuccessful. (Vol 5 of 6, R 220 In 22-R 222 In 22). The law

emphasizes that it is the efforts of the parent to carry out parental

responsibilities, rather than their success, which should be

considered in determining the correctness of a finding of unfitness In

Interest of Drescher Ill. App. 415 N.E. 2d 641. Also In re Woods

(1* Dist 1977,54 Ill. App.3d 729, 735, 12 Il. Dec. 342, 369 N_E.

2d 1356) This is where the lower courts have erred.

An abuse of discretion without a doubt is proven by following

the final judgemients of Judge Mulhern. which was not clear and

convincing” Appendix B2-B3". In interest of L.L.S 577 Ne 2d

1387 a reviewing court will not substitute its judgement for that of

the circuit court unless an abuse of discretion is shown. In Kubisz

y. Johnson. 329 N.E. 2d 815 Where there is failure to produce

22

clear and convincing evidence that parent is unfit within statutory

definition, reversal of order terminating parental nights is proper.

In the judgements of judge Mulhern these errors included | that

Luella was born at home to keep her his from Catholic Charities.

Substantial evidence is in the record to show she was taken to the

hospital immediately after birth (Appendix L, pg 21) and a letter

was written to DCFS telling them of her birth.(SR 1 of 2 January

8® C57C 112-140 Vol | of 6, R 103) 2 Luella was abandoned

by her mother when she was really taken by DCFS for fear of nsk

of harm and (vol | of 1, 11/17/98, R70 Inl4-16) Appendix | pg

10) 3. Assumed Minna Greene saw E.J. with L. J. when she never

did (Vol 5 of 6, R226 In10-24) 4. Incorrectly assumed the strikingly

similar instances of failure to make reasonable progress were the

same in the older sister case as L.J.’s. In the order of the

termination of parental nghts of the older sibling sisters E.O. and

F.O. termination is affirmed for failure to make reasonable progress

largely due to the chronic personality disorder of E.J (Appendix L

pg 12). wherein the case of Luella J. all charges of mental disability

or personality disorder for failure to make reasonabie progress had

been dropped., (Vol 1 of 2,C 10) (Vol 2 of 6, R 136)” ix

G pgs 131-132 "(SR 1 of 2, Jan. 8", 1998, C 90-93) Vol 2 of 6,

R 180 Vol 8 of 9, Te 137XSR | of 2 Jan, 8", C 94). .

VII. It was a violation of the 14" amendment with the

termination of parental rights solely for the reason of failure to make

reasonable progress and without consideration of open adoption

and compelling evidence.

The Preponderance of the evidence indicated it was not in the

best interest of L. J. to be permanently separated from her father

permanently through adoption and no compelling evidence

presented was clear and convincing

State evidence was a bonding assessments done by Amy Anson

of Michael Reese Hospital (Vol 4 of 6, R 128, In 7 - 16), the

parenting assessment team report and testimony of caseworker

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Christine Foley.. State Law that is applicable to the weight of this

evidence is read in Blakey v. Blakey 391 N.E. 2d 222 the inability

to nurture or interact is not a proper statutory basis for the removal

of children in this state. The children were originally take away

because of the injurious environment and the parents should not

have their parental rights terminated for these other nebulous,

uncharged reasons. To decide otherwise would allow the state to

terminate parenta! rights for non-statutory reasons which were

onginally uncharged and which parents have no reason to know are

possible bases for the removal of their children. Jn Cebrzynski v.

Cebrzynski (1978), 63 Ill. App.3d 66,72,19 Ill. Dec. 841,379 N_E.

2d 713) In a custody dispute between a natural parent and a third

person, the latter must demonstrate a “ compelling reason” why the

natural parent should not be granted custody of a child. In Re

Custody of Krause cite as, Ill. App., 444 N.E. 2d 647 Six factors

for custody determination subsection (1) thereof states that the

wishes of the child’s parent or parents as to his custody is one of the

relevant factors., subsection (2) directs the court to consider the

wishes of the child as to his custodian, subsection(3) is the

interaction and interrelationship of the chiid with his parent or

parents, siblings, and any other person who may significantly affect

his best interest, subsection (4) lists the child’s adjustment to his

home, school and community as a relevant factor for consideration. ,

subsection (5) directs the court to consider the mental and physical

heaith of all the individuals involved, subsection (6) allegations or

threats of physical violence.

In this case terminating parental rights solely for the reason of

failure to make reasonable progress without compelling evidence

was not clear and convincing..[p Perkins v. Breilbarth 424 N.E. 2d

1361 Natural parent has superior right to custody of his children as

against others; this inherent right should not be abrogated absent

compelling reason.

In Volume ! of 1, 11/17, 1998, In6- Christine Foley , the

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only witness at the best interest hearing, testifies “ Luella living with

you is not a viable option at this time. You have already been found

an unfit parent.****that’s the only reason?**** ’'That’s the only

reason***the only reason on they should not be living with E.J

Conclusion.

The above argued due process, equal protection, 14"

amendment violations, and 1“ amendment violation will also prove

how the lower courts has overlooked or misapprehended this

evidence that was presented to them, The evidence being | .religious

discrimination... adoption across religious faiths not condoned by

parent or with compelling evidence 2. mental health. discrimination

by use of a report based on mental health that was fraudulently

represented as being used to determine what could be done to

improve parenting skills 3. visitation and custody with regards to

iilegitimate children’s nghts...no court recorded interview was made

of the petitioner's daughter Luella Jones on with regards to her

preferences of custody and visitation nghts and 4 putative father’s

rights before and after adoption has been finalized....especially with

regards to visitation and legal custody pertaining to opernadoption

For unfitness finding, the father E. J. was thwarted by the efforts

of the caseworkers and others involved with the return of L. J. for

which there is substantial proof: . This is largely due to caseworker

personal error that virtually puts the determination factors for

unfitness of the parents of children accused of abuse and neglect

soley in the hands of a privately run religious agency and whoever

they hire.

In the best interest of L. J. no compelling evidence was

presented by the state which would allow 1. No interview being

made of L. J’s wishes, 2 allowing adoption across religious faiths.

.3 the adoptive family to be of different ethnic heritage and race.

There is also conflict in jurisdictional interpretation of the

determination of unfitness statues This being the benchmark for

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progress of the 1" district versus 4" district’s strict compliance to

court directives and DCFS service plans with Catholic Charities as

their representative agency. Especially determining wether the

manifest weight of the evidence should be measured by the evidence

produced by the states or by the progress made from the conditions

that brought the case into care.

Further review and legislation is also needed that will allow the

return of a child on a joint custody basis when there has been no

evidence proven of severe mental , emotional or physical abuse of

child by the parent only a lack of parenting skills.. This on the lines

with that in Lael V. Warga 508 N.E. 2d 1095 and In re Hurley

(1976), 44 Ill. A.. 3 d 260, 2 Ill. Dec. 595, 357 NE 2d 815)

Although a parent may be unfit to have custody of children, it does

not follow that parent is unfit to remain children's legal parent with

attendant rights. Roe v. Wade, 410 U.S. 113, 93 S. Ct 705, 35

L.Ed.2d 147 This court has long recognized that freedom of personal

choice in matters of marriage and family life is one of the liberties

protected by the Due Process Clause of the Fourteenth Amendment

Petitioner requests that some form of open adoption be granted

Petitioner prays that this Court grant his request for Writ of

Certiorari Respectfully submitted,

: Eugene Herman Joneson

11732 S. Prairie

Chicago, Illinois 60628

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