# Petition for Writ of Certiorari — Joneson v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 896

## Text

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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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

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

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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

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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

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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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2325%3A1. Public record. Not legal advice.