Appendix Vol IV — Joneson v. Illinois

(6) Supreme Court, U.S

is FILED

01 297 ave | 0 200%

OPFICE OF THE GLEWK

NO.

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

APPENDIXES J -K

Eugene Joneson

Pro Se

11732 S, Prairie

Chicago, Illinois 60628

773-568 -4132

Date August 8th, 2001

90401

In The Supreme Court of the State of Illinois

IN THE INTEREST )

OF: )Appeal from The Circuit

LUELLA JONESON ) Court of Cook County

No 94JA1107 )

Minor-Respondent ) .

Appellee )

) Appellate No. 98-3336

PEOPLE OF THE )

STATE OF ILLINOIS )

Petitioner-Appellee )

V. )

)

EUGENE JONESON ) Mary Mulhern,

Respondent-Appellant ) Judge Residing.

EUGENE JONESON, Pro Se_

2043 W. Dickens

Chicago, Illinois 60647

telephone 773-645-9695

“Appendix J”

213

Alternative Prayer For Leave To Appeal And Appeal

AS Of Right

Eugene J. Pursuant to Illinois Supreme Court

Rule 315 (a), respectfully petitions this court for leave

to appeal from the Judgement of the Appellate Court of

Illinois 1* District to use its discretionary power and

accept the appeal due to the need for supervisory

authority, the finality of judgement of this case.

(preponderance of the evidence that the petitioner was

thwarted by the efforts of the caseworkers and others

related to this case v, father was unable to make

reasonable progress in his parenting skills for the return

home of the children) and conflicts between jurisdiction

interpretation (manifest weight of evidence measured by

evaluator or caseworker reports vs manifest weight of

that brought the case into care),

Petitioner also petitions under rule 317 petition

for appeal as a matter of both nght and discretion as

several questions under the constitution of the United

States and Illinois has arisen for the first time in the

appellate court with respect to religion, children’s and

putative father’s rights with respect to visitation and

custody before and after adoption, and the mentally ill.

JURISDICTIONAL STATEMENT AMD

JUDGEMENT BELOW

On December 2™, 1997 judgement was passed

from the Circuit Court of Cook County finding the

father, Eugene Joneson, unfit to parent. On April 7“,

1998 the father and mother’s parental rights to Luella

214

Joneson were terminated. Post trial motions to

reconsider unfitness and termination of parental rights

and to reinstate visitation were denied on August 6th,

1998. The Notice of Appeal was filed on. On

September 3” 1998. On August 24, 1999 the appellant

brief was allowed to be filed instanter.

The Appellate Court affirmed the trial court’s decision

and entered an order affirming the trial court decision

on June 30", 2000. After one extension of time, the

Petition to rehear was filed on 8/15/2000. It was denied

on September 7", 2000. On September 25", 2000 an

affidavit of intent to file was m ailed 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 |* extension

of time was allowed til November 14th, 2000.

POINTS RELIED UPON FOR REVERSAL

Under Illinois Supreme Court Rule 315 (a) the

Illinois Supreme Court can use its discretionary power

and accept the appeal due to the need for supervisory

authority, the finality of judgement. And because of

conflicts between jurisdiction interpretation of this

case

In this case the finding of unfitness of the father

Eugene Joneson was:

1. against the preponderance of the evidence, II].

Revised Statues Domestic Relations 40 @ 1501 and

Inre Bentsen v. Bentsen 412 N. E. 2d 1167 It shall be

an affirmative defense to any allegation under subsection

(N\2) that the father’s failure was due to circumstances

beyond his control or to impediments created by the

215

mother or any other person having legal custody. Proof

of such fact need only be by a preponderance of the

evidence. Countless exampies are listed in the argument

section of this petition.

2. not clear and convincing_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

rights is proper, In this case substantial evidence has

been presented that contradicts the conclusions that the

State of Illinois Department of Children and Family

Services agencies and hired evaluators have made.

3. against the manifest weight of the evidence in re

Perez 528 N.E. 2d 815 A trial court’s findings of

parental unfitness in a proceeding to terminate parental

rights and appoint a guardian with authonity to consent to

adaption will not be reversed by appellate court unless

finding of unfitness is against the manifest wight of the

evidence.. In this case the manifest weight of the

evidence presented by the state and guardian is basically

that which the state has provided through court ordered

evacuations and agency progress reports and not

supported by actual case reports, court records and

evidence presented in court from the day the case came

into care as is the manifest weight of the evidence for the

petitioner is.

4. in violation of Due Process in People vs, Fierer 529

N. E. 2d 972 constitutional errors must be show to be

harmless beyond reasonable doubt in_Santosky V.

Kramer. 102 S. Ct. 1388 m (1982) 1397 [8] The

extent to which procedural due process must be

216

afforded the recipient is in influenced by the exteni to

which he may be condemned to suffer grievous loss

5. An abuse of discretion of the trial court judge .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.

It was also not in the best interest of Luella

Joneson to be adopted when her fathers nghts to

custody and visitation were lost due to termination of

parental rights 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.

Supreme Court Rule 317 provides for appeals

to the Supreme Court as a matter of right when a

question under the Constitution of the United States and

or Dlinois has arisen for the first time in the Appellate

Court.

This included:

1..her right to an interview with regard to her

preferences of custodian or visitation in re Custody of

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. Devoung 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

217

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 the 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 to his custodian and as to

visitation is mandatory and cannot be waived by the

parties

2. “ The agency Catholic Charities falsified their

reports in order to present evidence that would support

adoption due to their budget financial reasons This is

evidenced by their falsely reporting that Luella was in a

home of similar ethnic and cultural background, and a

home of the same religion. This reporting continued even

after Mr. Joneson had his daughter Luella baptized

Methodist and is evidenced in all the case review reports

from the beginning of this case until the end under

placement listing (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) This all being done without

regards to Luella’s birth family religion her right to be

brought up in that same religion, and ethnic and racial

heritage. I n 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

218

decision also ince Santos 105 N.Y. S. 2d 7163 In 331

Mass. 647.121 N.E. 2d the court held that the children

had a natural and legal nght to their religious faith, which

temporary exposure to another religion could not erase

(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

3. Luella’s right to visitation and custody by her

birth father. In Interest of Otto B. 393 N.E. 2d 676

While a parent may be unfit to have custody of children,

it does not automatically follow that such parent is unfit

to remain the child’s legal parent with attendant rights

and privileges; on the other hand, the fact that parent

makes an attempt to rehabilitate himself it does not

necessarily preclude a finding of unfitness where such an

attempt is unavailing Also in re Hurley (1976), 44 III.

App. 3d 260, 2 Ill. Dec. 595 , 357 N_E. 2d 815)

UNDER Rule 315 Ist Argument Finality of

Decision the finding of unfitness of the father Eugene

Joneson was ;

1. against the preponderance of the evidence, [Jl

Revised Statues Domestic Relations 40 @ 1501 and

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

an affirmative defense to any allegation under subsection

(N\2) that the father’s failure was due to circumstances

beyond his control or to impediments created by the

mother or any other person having legal custody. Proof

of such fact need oniy be by a preponderance of the

evidence.

219

In this case the appellate court simply refused to

accept any evidence presented in the record as being

- able to support that Luella’s caseworkers were bias in

their efforts to complete her adoption and thus thwarted

her father, Mr. Joneson, in his attempts for her return..

This even though substantial evidence was produced for

review from the record.

The Substantial evidence that Mr. Joneson was

thwarted by the efforts of the caseworkers is included

the following:

(1). Telephone calls were never retumed to his therapist

for feedback and services. Tod Harrison, Mr. Joneson's

therapist, also noted the non-cooperation of the

Catholic Charities agency and testified about this in tial

court. This was also evidenced by letters he wrote to

Catholic Charities during this period of time.. Testmony

and evidence indicate the caseworkers did not

cooperate with Tod Harrison by either writing or

returning phone calls when written or telephoned for

recommendations or suggestions on what could be done

toimprove Mr. J's parenting ability for the return of Mr.

J's children (Vol 5 of 6, R 65 In 15-18 and Vol 3 of 9,

TE 15 letter dated 1 1/6/96)

(2). At the beginning of Luella's case, caseworker

services and help provided to the father were non-

existent and unqualified unless father was to determine

the services needed and than request them (Vol 5 of 9,

TE 156 Case review 8/12/94 Task at 3 DCFS and CC

workers will continue to offer services to parents should

they request them. ) This even though the service plan

task objectives specifically state in every review that the

220

C.C. worker will provide parents with the appropriate

referral for services recommended in the plan (vol 5 of

9, R 57 at 2)

. The only services available were those that existed

from Luella’ older sibling sister's being in care and

intense psychotherapy by LCSW Tod Harrison because

the caseworkers were not aware of what services to

provide (Vol. | of 9, TE 66 and Vol 2 of 9, Gal ex. #3,

184 or TE 155) . Also services needed were not

provided in a timely manner and could not be as case

workers and evaluators alike had no training in analyzing

parents for parenting skills. This was true NOT ONLY

for Julie Yalowitz, (Vol 3 of 6, R 70 In 10- 14, R 72 In

5-10) and Christine Foley, ( Sr 1 of 2 1/8/99 C 109)

caseworkers for Luella (Vol 5 of 6, R 221 In 3-8), but

the coordinator of the parenting assessment team, Kathy

Pesek (Vol 4 of 6, R 98 In 20-24, R 99 In 1-7). She

was the states main evaluator along with the above

mentioned caseworkers used as witnesses for

determining the unfitness of the father Eugene Joneson.

This evaluator was also responsible for conclusion of

unfitness on hundreds of other parents evaluated by the

parenting assessment team §, CT. Rule 236 All other

circumstances of the making of the writing of the record

including the lack of personal knowledge by the maker,

may be shown to affect its weight, but shall not affect it's

admissibility

What is even worse, Pesek's conclusion that

nothing could be done to improve Mr. Joneson's

parenting skills, was used by both the state and the

guardian in their conclusion why no reasonable progress

221

could never be made in Mr. Joneson's parenting skills

(Vol 5 of 6, R 229 In 17- R 230 In 5). In actuality, no

progress was made because the evaluators and

caseworkers had no training in evaluating parents for

improving the skills of parents as evidenced above.

. (3) . Caséworkers provided the wrong services or

none at all. The following includes just a few examples..

A. Because of confusion over volunteer parental

stress group attendance and parenting classes by the

caseworker Hector Rivera, H. R. testified that Mr.

Joneson had been attending parenting skills classes for

over 9 years and still was unable to improve in setting

limits and the disciplining of his children at visits ( Vol 1

of 6, R 137 In 24- R 138 In 1, R 145 In 6-8, R 186 In

14-22, R 206 In 22-24- R 207 In 1, R 210 In 14-16). In

reality Mr. Joneson had attended only one parenting

class in ten years due to this error by the Catholic

Charities agency ( Voi 1 of 6, R 193 In 13-16 and Vol

3 of 9, TE 176). This new substantial evidence

reviewed by the trial court judge in a motion to vacate

the unfitness judgement of Luella Joneson and obtained

through the Cook County Commissioner's Office clearly

indicates that parenting class services said to be offered

for a period of nine years by the caseworker Hector

Rivera could not have been.(Vol | of 6, R 228 In 18-R

229 In 4 and Sr 1 of 2, C 227) Even Mr. Joneson's

testimony was that he had attended only one parenting

Class in ten years. (Vol 3 of 9, TE 176) This certainly

could be viewed as another reason no progress could be

seen in the parenting skills of Mr. Joneson Cormack v.

Marshall 211 fil. 519, 71 N. E. 1077. 671 LR.A. 787

222

new conditions must have arisen to warrant the changing

its pnior custody determination

B. An evaluation update of the parenting

assessment team to provide a measure of progress on

the petitioner's ability to parent was ordered by the

court. It was ordered on August 6th 1996 and given 30

days to complete (Vol | of 2, September 25th, C 126-

127, and 142).. But It was not completed through

Catholic Charities. Therefore there was no measure of

progress that could be used through the parenting

assessment team reports (Vol 4 of 6, R 120). IN

Interest of Austin 378, N.E.2d 543 without referring to

a prior status, current status and the process by which

movement from one status to the other occurred,

absence of evidence regarding the prior status would

render a determination of "reasonable progress"

meaningless.

The evaluation was done eventually by Doctor

Marty Blackman who Mr. Joneson hired personally in

1997 ( Vol 7 of 9, TE 146-154) It was considered

inadequate by the state because it only measured

progress of Mr. Joneson's mental and financial stability

but did not provide any e vidence for the parenting skills

progress because the children were not evaluated with

it (Vol 5 of 6, R 230 In 9-13) In Ballweg v, City of

Springfield 114 Il. 2d 107 499 N_E. 2d 1373, 102 Ill.

Dec. 360 (1986) Evidentiary error, namely the

improper admission or exclusion of evidence, is an

important ground for a new trial when the error was

C. Dyadic therapy also was never offered to

223

i ai |

Mr. Joneson by Catholic Charities although it was

recommended by Amy Anson of Michael Reese

Hospital (Vol 7 of 9, TE 196 Dispositions and

Recommendations) This even though Mr. Joneson's

therapist Tod Harrison repeatedly wrote letters asking

for services and therapy so Mr. Joneson could have his

children returned(Vol 8 of 9 TE 128 trusting a copy of

this letter was delivered to C.C. about providers for

family therapy 2/25/97, TE 115 Mr. Harrison requests

a further conference to define planning and measurable |

goals in order to have the children returned to Mr.

- Joneson,. TE 131& 132 Please write me to let me know

how I can better serve Mr. Joneson 11/27/95, TE 137

Please grant Mr. Joneson all the support and services to

which you feel he is entitled to.)..

(4) Caseworker testimony and information they passed

on to evaluators was bias and oriented for adoption.

Evidence given is ; |

A. Luella came into the system because Ms.

O’Neill gave birth at home ( with father attending) in

_order to prevent the Department of Children and Family

services (DCFS) from finding about Luella’s existence.

Testmony by caseworker Julie Yalowitz stated this was

done because they were afraid that if they had gone to

the hospital Luella would have been taken initially from

the hospital. (Vol 2 of 6, R 246 In 15-18) This was also

part of Judge Mulhern’s judgement reading (Vol 2 of 6,

R211 In 12-17)

As argued in appellant’s argument DCFS knew

there was another baby to be born. In fact Mr.

Joneson had told and written a letter to Willa Henning in

224

court (Vol | of 2, 1/8/99 C 137-140) several days after

the baby had been born and that is how DCFS originally

knew to go to the Joneson household. Substantial

records are available that Luella Joneson was brought to

Weiss Memorial after delivery at home by ambulance so

both mother and daughter could receive proper medical

treatment through Willa Henning’s testimony (Vol 1 of 6,

R 1031 ,In 7-10), and DCFS records. (Vol 3 of 9, TE

194-210) and the defendant’s own records (Vol | of 2,

1/8/99 C 132-136) This evidence found in the record

of both the state and the guardian certainly contradicts

the above testimony of the caseworker Julie Yalowitz,

the accusations of the state, and the judgement reading

of the trial court judge, Judge Mulhern..

B. The caseworkers allege in their statements

that the defendant had been under a court order with

Emily and Marilyn’s case (Luella’s older sisters) not to

reside with the mother. This court order has never been

found in the record of Luella Joneson or been presented

as evidence and therefore should be considered as an

invalid argument. DCFS has had many years to present

certified copies of this court order but have never done

so.(Vol 1 of 6, R 101, In 21-24-R 1021-7) Agency

workers and attorneys have used this order in many of

their testimonies but have never supported it with the

evidence that it ever existed. This statement which has

caused serious bias against the appellant with respect to

the court should be considered as hearsay unsupported

by fact and moot as to argument. Evidentiary error,

namely the improper admission of evidence is important

ground for a new trial when the error was prejudice

225

Ballweg v. City of Springfield 499 N.E .2d 1373

C. The caseworkers and attomeys also bring up

the issue of feeding adult cereal to Luella fourd in the

initial intake investigation. Again the caseworkers do

not give the complete story. The actual intake report

only indicates cereal ( Vol | of 9, Te 19, 21) It does

not indicate adult cereal as the guardian plaintiff

argued(Vol 5 of 6, R 233 In 21-23) or that it was of a

liquid consistency fed in a bottle as this defendant

motioned in his order to vacate (Vol 1 of 2, 3/5/99, C

174)

D Caseworker reports throughout Luella's case

since Julie Yalowitz became a worker have indicated

that Mr. Joneson threw the mother and Luella's older

sister, Emily, out of the apartment and they had no

where to go (Vol. 6 of 9,.TE 152) This contradicts the

actual hearing because nothing of this nature was

indicated or said ( Vol 1 of 6,R 127 Emily O'NEILL

was abandoned by the natural mother Frances O'Neill

at a Catholic Charities office located at 721 North

Lasalle. The staff there reported that mother had stated

that she could not care for the child. ).

E. Another example of how caseworkers

passed on bias information about the father of Luella

Joneson. is in the letters wntten when they were

searching for Luella's mother. The letters were written

as if the father was the only one they were searching for.

In (Vol 3 of 9, TE 103) Since we do not know the

whereabouts of the child's father, we are contacting all

F. O'NEILL as in an attempt to locate the correct

person. ) The agency knew all the time where to find the

226

emer, Eee aN ee ne anal

father of Luella all the time but really wanted to locate

the mother (Vol 5 of 6, R 219 In 15- R 220 In 10).

F. Before Luella's case came in to care,

caseworkers started indicating that there was a court

order that father was not to be with the mother of the

children ( Vol 9 of 9, TE 31 1.at the time of Luella's

birth, Mr. Joneson was court ordered not to be living

with mother) But to this very day None has ever been

presented this order as indicated by Judge Swzed ( Vol

1 of 6, R 101, In 21-24-R 102 In 1-7)

G Testimony and reports by Julie Yalowitz also

indicates a bias about a knife incident reported at a visit.

It was also withdrawn as a conclusion under cross

examination (Vol 6 of 6, In 6-23). Numerous other

examples of these false reports are given in the appellant

brief which included accusations of: (1) the children

swimming in the lake of which evidence in the transcript

record contradicts (Vol | of 6, R 177 In 9-24- R 179)

and (2) non evidenced statements by an evaluator that

the father struck a two year(Vol 4 of 6, R 58 1-10) This

the father denied and argued as here say in an appeal

letter written on 5/18/96 (SR 1 of 2, App. stamp 3/5/99,

C 155) and Vol 9 of 9, TE 99) and no case worker

notes or recordings of the interview that contained this

information were ever presented in court to validate the

evaluators testimony

(5).. Visitation appointments lost were never

rescheduled by Julie Yalowitz, Luella J’s caseworker

On June 21, 1995 Jude Swzed ordered and granted in

part the return of visits every week (Vol 1 of 2, 9/25/98

C 42) On November 9", 1995 actual visits were

227

changed to once every two weeks. Coincidentally

visitation anxiety continued throughout the summer for

Luella Joneson because Julie Yalowitz, her caseworker

would not and did not comply with the court order of

every two weeks. In fact the visits remained at

approximately once a month all summer long until

Yalowitz retumed them to at least twice a month. but not

every two weeks. In court Julie denies she had any

problem in determining the number of visits (Vol 3 of 6,

R 140 In 12-14) The appellant Mr. Joneson also wrote

a letter to Catholic Charities about June of 96 indicating

that CC was not following the court order made by

Judge Swzed and that unto that date they had missed at

least 14 visits due lo manipulating the visits to twice a

month instead of every two weeks as ordered by court

order (Vol 3 of 9, TE 25-26) This was also brought up

in the appeal letter written on May 23, 1996 to DCFS

(Vol 3 of 9, TE 67. Mr. Joneson asked for mediation

with C.C. because Catholic Charities had constantly

ignored the court order of visitation for Luella for every

_2 weeks for the last 9 months (Vol 3 of 9, TE 64) (Also

note the complete documenting of appellant’s letter for

the file of CC by Catholic Charities

(6)..Caseworkerreports by Julie Yalowitzand Christine

Foley were inaccurate and only included information

that would not benefit Mr. Joneson There are lots of

guod example of this. In the ACR Case Review for

11/7/94- 5/95. On one page it states that the CC

worker will aid father in developing an appropriate care

plan for Luella if requested to do so, and father will

develop an appropniate care plan if she is returned home

228

ym

SR

(Vol 6 of 9, TE 97, 101) Father also will do the same

thing in individual therapy with Tod Harmson as agreed

upon in the letter sent by C.C. on what Mr. Joneson

can do to have his children returned to him (Vol 6 of 9,

TE 64, 4). But in his case review evaluation Mr.

Joneson was given unsatisfactory progress with regards

to this issue because he was discussing day care

arrangements with Tod Harrison (Vol 6 of 9, R 134

bottom of page) This was a no win situation for Mr.

Joneson as the caseworkers were onented towards

adoption..

Nothing could be done to convince CC that Mr.

Joneson had the proper parenting skills. Even actions

such as_ bringing flash cards was considered

inappropriate and unsatisfactorily progress because

Luella was not at an age where she could recognize

words (Vol 3 of 6, R 45 In 10-15)

or the game of hearts or using glitter to make a picture

(Vol 3 of 6, R 80 In 12-17) Inre SJ. 233 Ill. App. 3d at

121, 598 N.H. 2d at 477 (" To place compliance with

DCFS plans ahead of the ultimate fact of progress

would to let the tail wag the dog”) Furthermore, there

exist a danger of “bootstrapping” which would occur if

the parents fails to do things on a service plan which

were not necessarily related to previous shortcomings.,

(7) Bonding with Mr. Joneson and his daughters,

Luella also had tow older sibling sisters in custody was

hindered when letters written to his daughters were

edited for content (SR 2 of 2, C 272)

(8). Previous case reviews before this case came into

229

care had been canceled for over three years not allowing

the father feedback for improvement of his parenting

skills as confirmed by the case notes of Mr, J's family

counselor Minna Greene (Vol 5 of 9, YE 239 canceled

4/30/02, TE 243 /13/93, Vol 4 of 9, TE 23 held a case

review without notifying, TE 34 no case reviews for 2

years, TE 42 the Sth case review canceled, TE 106 no

notification of case reviews that were held in October

1990 and Apmil of 1991) The state argues that even

though services were offered Mr. Joneson was unable to

make reasonable progress in his parenting skills. This

completely contradicts the evidence which indicates the

state never even tried to provided services for Mr.

Joneson and if they did it would be services that did not

apply to his parenting problems.

Under Rule 315 2nd argument on Finality of Decision

and Conflicts between Jurisdiction Interpretation

The appellate court erred when it found the

father of Luella Joneson unfit using evidence that the _

state had ordered for an evaluation 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 afterwards. ©

The father of Luella Joneson was found unfit and

his parental nights were terminated for failure to make

reasonable progress for the return home of Luella

Joneson.. Reasonable progress should have been

determined by an objective judgement The bench mark

for measuring such progress is the situation which

230

triggered the initial removal of the children. Inre MC.

201 Til. App.2d 792 , 559 N.E. 2d 236 ,239 (1* Dist

1980) Certain courts have interpreted this statue to hold

that “reasonable progress” involves an objective

judgement. The benchmark for measuring such progress

is the conditions in existence when custody was taken

from the parents. Also in re Interest of L. N. 278 Ill.

App. 2d 50-51 and Inre S.J. 598 N..E 2d 477. But

instead the manifest weight of the evidence presented by

the state was from reports ordered and created by the

state. In 34_POF 2d 424 Child custody 34-407

annotation 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 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.

In this case the cause for Luella Joneson’s

removal was the possible risk of harm that could occur

to Luella Joneson due to her parents mental illness or by

Mr. Joneson living with Luella’s mother who was noi

cooperating by going through services with DCFS for

her mental illness diagnosis. But Mr. Joneson the

defendant completed over 60 session of therapy through

231

Tod Harrison his therapist who was accepted by

Catholic Charities as adequately prepared to counsel

Mr. Joneson for the return home of Luella Joneson and

also moved away from the mother of his children.

All charges of mental illness were dropped at

pretrial hearing as reason for a unfitness argument (Vol

2 of 6, R 136) due to this substantial psychotherapy

progress provided by Tod Harrison, LCS (SR | of 2,

Jan. 8*, 1998, C 90-93) and validated by Doctor Marty

Blackman ,psychologist (Vol 2 of 6, R 180), Doctor

Childers psychiatrist (Vol 8 of 9, Te 137), and John

Lietzau, family interventionist (SR | of 2 Jan, 8", C 94)

Even so the state submittea as the basis of their

evidence reports that indicate mental illness. This

includes for the state |. the entire parenting assessment

team report cover to cover, 2. a clinical Services report

done by doctor Reebe from down stairs (ordered by the

court and completed by a state psychologist), and 3. a

psychiatric evaluation of the father by Doctor Tepas

(Vol 4 of 6, R 128 In 17-R 129 In 14). Again 34 POF

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

investigators applies to this situation.

Also when mental illness of the father lrving with

the mother was no longer an issue for the return of Luella

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

restructuring of the Department Of Children and Family |

Services, began to create objectives for parenting for

Mr. Joneson and demanded strict compliance to them.

In re L.L.S., 218 Ill. App 3d at 461, 577 N.E.2d at

1387 which erected the standard that progress is

232

ee

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. Inte S.J., 233 ll. 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 would occur if the parents fails to

do things on a service plan which were not necessarily

related to previous shortcomings. Many unsatisfactory

progress reports were given even though Mr. Joneson

had cooperated with all services demanded by Catholic

Charities. In Interest of Drescher Ill. App. 415 N_E. 2d

641 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.

Other evidence done by evaluators appointed by

State appointed agencies submitted by the state was a

bonding assessment done by Amy Anson of Michael

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

parenting assessment team. State Law that is applicable

to the weight of this evidence is read in Blakey v. Blakey

391 NE. 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

233

otherwise would allow the state to terminate parental

rights for non-statutory reasons which were originally

uncharged and which parents have no reason to know

are possible bases for the removal of their children.

Where a parent has made substantial progress

toward correcting the condition that led to the removal

of the child, the lack of what DCFS deems satisfactory

interaction between parent and child in not justification

for the termination of parental rights._in re S.J. 598 N.E.

2d 477

In this case in interest of Luella Joneson, the

lower courts have completely overlooked or

misapprehended the evidence presented in the record

which show progress has been made by correcting the

parent Eugene Joneson. This includes the dropping of

risk of harm charges due to mental illness, separation

from the mother, and substantial improvement in

parenting skills as indicated by the record.

. 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 penod 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.

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

234

<>

Acknowledgment 1 1/7/94)and Laura Scott (Vol 1 of 9,

R 43-46 Transfer Summary , R 63 Service plan

evaluation of progress 6/13/94, R 92 Case Planning

Acknowledgment | 1/7/94) did not even testify in court

as witnesses and neither did Terry Weck from the

Department of Children and Family Services (Vol 1 of

9, R 50 Client Service Plan ),

Luella Joneson’s case came into care on

2/8/94. (Vol 1 of 9, R 18). Adjudication was on

3/28/95 where she was found abused due to injurious

environment (Vol | of 2,1/8/99, C 26)

The dispositional order was on 6/21/95 where it was

determined reasonable efforts had been made and

appropriate services aimed at family intervention were

unsuccessful. (Vol 1 of 2, C 38). The supplemental

petition for appointment of a guardian with right to

consent to adoption was filed on May 10, 1996 (Vol |

of 2, 1/8/99 C 65) a little over one year after case was

adjudicated...

The issue in argument is wether the appropriate

services offered in the 12 month after adjudication and

during the entire period between adjudication and the

filing of the termination petition resulted in reasonable

progress for the return home of Luella Joneson.

This includes the arguments that reasonable

progress was made because; 1. the charges of mental

illness were dropped , one of the main reasons the

petitioner believes the case came into care(Vol 1 of 2, C

10). Thus mental illness was also one of the benchmarks

from which to measure reasonable progress. 2 The

father stopped seeing the mother of Luella Joneson as

235

she would no longer cooperate with DCFS in the retum

home of Luella and as it was recommended by Catholic

Charities as a condition for reasonable progress for the

return home of Luella Joneson. 3. Case aid reports and

cross examination of witnesses indicated that the

manifest weight of the evidence was not clear and

convincing that Mr. Joneson was unfit to parent his

children. 4 Father complied with all service plan

objectives which included a. documented A.A.

attendance and sponsorship b. over 100 hours of

parenting classes to improve his parenting abilities In

Interest of L.L.S 577 N.E. 2d 1375 Infants 156 the

Standard by which progress is to be measured is

parental compliance with court’s directives, the service

plan or both In interest of Drescher Ill. App. 415 N. E.

2d 641 Both the Guardian and the State testified that

Mr. Joneson had undeniably made the efforts in

following their final arguments (Vol 5 of 6 R 219 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. But the reverse has

happened in the ruling of the trial court Judge Mulhern.

Rule 317. A parenting Assessment was used in

court whose basis for selection was that of the parent

being mentally ill and tts original purpose was to provide

recommendations for the father to improve his parenting

skills (Vol 1 of 2, 9/25/98 C 80)

236

. 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 do and cannot do about what could 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 reports were used as evidence in court,

this petitioner believes it is a violation of due process

through fraud and is reversible error to invalidate this

adoption Racine Fuel Co. v. Rawlins, 377 Ill. 375, 36

N.E. 2d 710 (1941)

It was objected to by Mr. Joneson at the Best

interest hearing in trial court on 4/17/ 98 as to its

constitutionality (Vol 1 of 1, Nov. 17", 1998 R 27 line

14-17).. Itisa violation of the 14" amendment because

it is discriminating against a certain class of parents with

regards to mental illness. In People vs, Fierer 529 N.E.

2d 972. It reads Constitutional errors must be shown to

be harmless beyond reasonable doubt. This petitioner

believe that this has not been proven in this case.

Govermor 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 a result of this commission. (Vol 7 of 9, R

155) Even though the father did not meet the

requirements for being severely ill , being hospitalized for

over 5 years , the report was still done and included and

concentrated on this perspective of mental illness. This

is evidenced by the assessment made by Laura Miller,

237

psychiatrist , and Teresa Jacobson, psychologist.(Vol 2

of 9 ,R 159).

Also the main coordinator of the Parenting

Assessment Team, Kathy Peek, who was a child

development specialist 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), 2. No experience for

evaluating fathers (SR 1 of 2, C 84-88 The agency

doing the evaluation The Thresholds for Mothers Project

only provided services for women) and 3. No training in

evaluating emotionally disturbed adults (Vol 4 of 6, R

93) In her case report summary and in trial court

testimony

until she actually started doing the evaluations agency

was

Mr. Harmison, Mr. Joneson’s therapist and the head

supervisor of the Community Health 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, but this is exactly what the P. AT. did.

As mentioned earlier this probably had to do with the

_ inexperience of the coordinator Kathy Peek at analyzing

parents with parenting skills.

Supreme Court Rule 317 provides for appeals to the

Supreme Court as a matter of right when a question

under the Constitution of the United States and or Illinois

has arisen for the first time in the Appellate Court Under

Rule 317

The appellate court erred in affirming the trial

court’s decision to terminate parental right. One of the

238

reasons being that there was no recorded interview

made or presented in court with regards to Luella

Joneson’s wishes _ In 3 Ill Fam Law & Practice

annotation 9:367 Practice Commentary The law is now

that the custody and visitation sections in the [Ilinois

Marriage and Dissolution of Marriage Act apply to

parentage cases. In re Marriage of Ronald R. Slavenas

487 N.E 2d 739 Infants Record of in-chambers

interview of child to ascertain child’s wishes as to his

custodian and as to visitation is mandatory and cannot

be waived by parties. At 741 (3,4) It was therefore

error to conduct the interview without making a record

In Lear 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 rights.

Also in_3 Illinois Family Law and Practice reads at

annotation 9,322 on interviews that the court may

interview the child in chambers to ascertain the child’s

wishes as to his or her custodian. If counsel desires the

court to cover any specific areas in the interview or ask

any questions, they should submit those in writing and

have then on record. Counsel must be present at the

interview unless otherwise agreed upon by the parties,

and the court must provide a court reporter who will

make a complete record of the interview instantaneously

to be part of the record in the case. The requirement that

the interview of a child be recorded cannot be waived

by the parties Petitioner interprets these statues as

indicating that it was a violation of due process by not

recording Luella Joneson's wishes with regards to

239

custody and visitation for the court.

The department of Children and family Services

also should have considered important racial, ethnic and

religious differences between her birth family's ethnic

and cultural background and the prospective adoptive

parents as is legislated for Illmois Department of

Children and Family Services’ Policy and thus as

determined by legislative law.

The trial court Judge even admitted herself that

there is no case law that indicates that a parent can have

custody or visitation nghts after their children are

adopted (Vol | of 1, R 22 In 119), but state statues

indicate differently.

Conclusion

The court should accept this case for review

because it conflicts with the basic rules and statues for

determining the finding of unfitness of a parent,

Especially determining wether the manifest weight of the

evidence should be measured by the evidence produced

by the state through its evaluators and caseworkers

reports or the progress made from the conditions that

brought the case into care). Also to determine the

_ finality of judgement of the state, if the state in its efforts

to cut down the over bloated system of foster care

actually thwarted the efforts of the father in the return of

his daughter Luella Joneson. In this case. did the

preponderance of the evidence show that the petitioner

was thwarted by the efforts of the caseworkers and

others related to this case. This is largely due to the new

social policy to cut down state caseloads for monetary

reasons, and caseworker personal error and the loss of

240

representation of the department of Children and family

services to provide caseworkers to monitor the services

of Catholic Charities for the same financial reasons .

This virtually puts the determination factors for unfitness

of the parents of children accused of abuse and neglect

soles in the hands of a private agency and whoever they

hire. This case is a prim example of how this abuse

occurs with countless examples of how this happens.

Also several important basic violations of due

process and 14th amendment rights provided by the

United States Constitution for all parents have been

violated with respect to: | religion... adoption across

religious faiths not condoned by parent 2. mental

health.... use of 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 illegitimate children’s

nghts...no court recorded interview was made of the

petitioner's daughter Luella Joneson with regards to her

preferences of custody and visitation rights and 4

putative father’ . rights before and after adoption has

Thin whibininy ventions the Sepieriis ctvirvot

Illinois's supervisory authority. This especially since the

act of adoption severs all ties with the birth parent and.

. Childand undercurrent legislation offers no alternatives

to this tragic conclusion. In this case, further legislation is

needed that will allow the return of a child on a joint

custody basis when there has been no evidence proven

of severe mental , emotionnal or physical abuse of child

241

by the parent only a lack of parenting skills that the

untrained social system is uncomfortable with for the

children's return. This occurring when substantial efforts

had been made to improve these skills by the parent by

complete participation in DCFS plans and visitation of

the children .Simply stated further legislation needs to be

developed on the lines with that in Lael V. Warga 508

N.E. 2d 1095 and In re Hurley (1976), 44 Ill. A.. 3d

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 nghts. Petitioner requests the court

to review as further legislation is needed to clarify what

conditions under the above statues will apply to this

case. In Lear v. Robertson 463 U.S. 248, 261-262

(1983) Clearly fathers who have participated in raising

their illegitimate children and have developed a

relationship with them have constitutionally protected

parental rights.

Again this case should also be considered under

the 14th amendment as a constitutional right for putative

parents with respect to custody and visitation,

Especially when they are found unfit due to

unreasonable progress in parenting skills and have

maintained contact with their children and there is no

dispute that reasonable efforts had been made for the for

the return of their children. -

Petitioner prays that this Court grant his request

for leave to appeal

Respectfully submitted,

242

tae

243

90401244

In The Supreme Court of the State of Illinois

IN THE INTEREST _)

OF: )Appeal from The Circuit

LUELLA JONESON _) Court of Cook County

No 94JA1107 )

Minor-Respondent ) -

Appellee )

) Appellate No. 98-3336

PEOPLE OF THE )

STATE OF ILLINOIS )

Petitioner-Appellee )

V. )

)

EUGENE JONESON _) Mary Mulhern,

Respondent-Appellant ) Judge Residing.

Motion For reconsideration of Motion For denying

Leave To Appeal

EUGENE JONESON, Pro Se_

2043 W. Dickens

Chicago, Illinois 60647

telephone 773-645-9695-

“Appendix K*

244

MOTION FOR LEAVE TO FILE MOTION FOR

RECONSIDERATION OF THE ORDER FOR DENYING

PETITION TO LEAVE TO APPEAL

Eugene J. birth father acting pro se, respectfully

motions the Illinois Supreme Court for motion for leave

to file motion for reconsideration of the order for denying

petition to leave to appeal.

JURISDICTIONAL STATEMENT AND

JUDGEMENT BELOW

On December 2™, 1997 judgement was passed

from the Circuit Court of Cook County finding the

father, Eugene Joneson, unfit to parent. On April 7",

1998 the father and mother’s parental rights to Luella

Joneson were terminated. Post trial motions to

reconsider unfitness and termination of parental rights

and to reinstate visitation were denied on August 6th,

1998. The Notice of Appeal was filed on. On

September 3" 1998. On August 24, 1999 the appellant

brief was allowed to be filed instanter.

The Appellate Court affirmed the trial court’s decision

and entered an order affirming the trial court decision

on June 30", 2000. After one extension of time, the

Petition to rehear was filed on 8/15/2000. It was denied

on September 7”, 2000. On September 25", 2000 an

affidavit of intent to file was mailed to the clerk’s office

of the appellate court 1* 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.

245

The petition for leave to appeal was denied on January

29", 2001. 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 |*, 2001 and was timely

filed on March 1*, 2001.

POINTS RELIED UPON FOR REVERSAL FOR

MOTION FOR RECONSIDERATION OF THE

ORDER DENYING PETITION FOR LEAVE TO

APPEAL \

UNDER RULE 317

1. Factors balancing the nature of due process due

parental rights termination were in direct violation of the

fourteenth amendment and inconsiderate of gnevous

loss. Mathews v. Eldridge 424 U.S., at 343, 96 S. Ct.

At 893 & 903, 47 L. Ed. 2d 18 The nature of the

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 The fourteenth amendment Article 14,

Section | Due Process and Equal Protection Aill

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

246

state shall make or enforce any law which shall abnidge

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

protection of the laws.

Santosky v. Kramer 102 S. Ct. 1388 m(1982) 1397 [3]

The extent to which procedural due process must be

afforded the recipient is influenced by the extent to which

he may be * condemned to suffer grievous loss”

These constitutional violations include

A. a parenting assessment that was used that

selects parents for evaluation of parenting skills solely on

the reason of wether they have been diagnosed as

mentally ill in the past. Psychologicals and psychiatric

reports were very negative and supported the finding of

unfitness based on a mental illness or impairment of the

father Eugene Joneson. People v, Fierer 529 Ne2d 972

constitutional errors must be shown to be harmless

beyond a reasonable doubt

Adding even more in violation of due process is

that none of the evaluators or social workers involved

in the case of Luella Joneson had any previous training

in assessing parents for parenting skills. What knowledge

they had was learned from the experience of the job

which all had recently started. But their testimonies and

reports provided the basis and manifest weight of the

evidence for the finding of unfitness and termination of

parental nights of the birth father In 34 POF 24 424

Child Custody at 34-407 annot. 10 Use of investigators

247

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 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. In re Perez 528 N.E. 2d 815 A tnal court’s

findings of parental unfitness in a proceeding to terminate

parental rights and appoint a guardian with authority to

consent to adaption will not be reversed by appellate

court unless finding of unfitness is against the manifest

wight of the evidence

B.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 7163 In 331 Mass. 647.121 N.E. 2d the

court held that the children had a natural and legal right

to their religious faith, which temporary exposure to

248

another religion could not erase (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

C. Visitation and custody rules for putative

father were denied by the trial court judge even though

reinstatement of visitation , a stay of judgement, was

motioned for by the birth father in post trial motions

before the notice of appeal was filed. This was solely

for jurisdiction reasons which petitioner argues is an

erroneous ruling

Also. Luella J’s right to an interview with regard

to her preferences of custodian or visitation was

overlooked by the trial court judge. In re Custody of

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 the parties and we believe the

imperative “ shall mandates that a record be made of the

interview) Records of in chambers interview of child to

249

ascertain Child’s wishes as to his custodian and as to

visitation is mandatory and cannot be waived by the

parties

D. The trial court judge also abused her

discretion by not allowing a continuance of the best

interest hearing and not allowing new substantial

evidence and testimony to be presented or heard in post

trial motions which indicated it was in Luella’s best

interest to maintain contact with her father.

In Hearson v. Graudine 87 [ll 115, it reads that a court

should not refuse a continuance where the ends of justice

clearly require it and an abuse of discretion in doing so

will justify a reversal. And in Czyzewski v.Gleeson -

364 NE 2d at 560 It is not necessary for the reviewing

court to determine, as a matter of law, that the trial court

exceeded or abused its discretion, but only to resolve

wether justice is being done. 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

| In Lehr v. Robertson 463 U.S.248, 261-262

(1983) clearly that fathers who have participated in -

raising ther illegitimate children and have developed a

relationship with them have constitutionally protected

parental nghts:

Under Rule 315

2. The Preponderance of the evidence indicated it was

not in the best interest of Luella Joneson to be

permanently separated from her father permanently

through adoption and no compelling evidence presented

250

was clear and convincing _In 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 child 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 health of all

the individuals involved, subsection (6) allegations or

threats of physical violence.

The trial court has completely ignored these

factors in determining the best interests of Luella

Joneson. No interview had been made of Luella

Joneson with regards to her wishes with regards to

custody. Luella’s adoptive father was not of the same

race as Luella or Luella’s father. The adoptive parents

were not of the same religion as Luella was baptized in

or her father was raised with. Adjustment to the

community was considered residing in a day care center

because both of Luella’s parents had to work in order to

afford her upbringing.

251

Since the above factors were ignored by the

trial court along with the efforts of the Catholic Chanties

agency to prevent the return of Luella, special attention

for this case should be given to subsection (5) which

directs the court to consider the mental and physical

health ofall the individuals involved. The father of Luella

Joneson believes that if the order is not granted to

reverse the adoption.or retrial granted at least some type

of open adoption should be allowed to remedy any

damage caused by the current separation during

litigation. In Lael V. Warga 508 N.E. 2d 1095 and In

re Hurley (1976), 44 lll. 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

nights. Petitioner requests the court to review as further

interpretation is needed to clarify what conditions under

the above statues will apply in this case.

3. Terminating parental nghts solely for the reason of

_ failure to make reasonable progress when parent

complied withall service requests demanded by Catholic

Charities Agency but was unable to convince them there

would be a safe home return for Luella Joneson was not

clear and convincing. In re Woods (1* Dist 1977,54

Ill.App.3d 729, 735, 12 IllDec. 342, 369

N.E.2d1356).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

re Taylor (1* dist. 1975) 80 Ill.aPP.3D 906, 909,

334N.E.2D 194 Traditionally, one of the obstacles that

252

could thwart a parent’s actual visitation of his child

7 included the misconduct of Department employees. This

is especially true in the case of Luella Joneson because

. there is substantial evidence that Mr. Joneson’s efforts

for the return of Luella Joneson were thwarted by the

efforts of the caseworkers. _In Ill, Revised Statues

Domestic Relations 40 @ 1501 and In re Bentsen v.

Bentsen 412 N. E. 2d 1167 It shall be an affirmative —

defense to any allegation under subsection (N\2) that

the father’s failure was due 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 by a preponderance of the evidence These

impediments included: (1). Telephone calls were never

returned to his therapist for feedback and services Vol

5 of 6, R 65 In 15-18 and Vol 3 of 9, TE 15 letter dated

11/6/96). (2). At the beginning of Luella’s case,

caseworker services and help provided to the father

were non- existent and unqualified unless father was to

determine the services needed and than request them

(Vol 5 of 9, TE 156 Case review 8/12/94 Task at 3

DCFS and CC workers will continue to offer services to

parents should they request them. ) (vol 5 of 9, R 57 at

2), (3) . Caseworkers provided the wrong Services or

none at all because of inadequate training(Vol. 1 of 9,

TE 66 and Vol 2 of 9, Gal ex. #3, 184 or TE 155\Vol

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

C 109) (Vol 5 of 6, R 221 In 3-8),(Vol 4 of 6, R 98 In

20-24, R 99 In 1-7).(4) Caseworker testimony and

information they passed on to evaluators was bias and

oriented for adoption.(Vol 4 of 6, R 98 In 20-24, R 99

253

In 1-7).(Vol 3 of 9, TE 176), (5).. Visitation

appointments lost were never rescheduled by Julie

Yalowitz, Luella J’s caseworker, (6)..Caseworker

reports by Julie Yalowitz and Chnistine Foley were

inaccurate and only included information that would not

benefit Mr. Joneson, (7) .Bonding with Mr. Joneson

and his daughters, Luella also had two older sibling

sisters in custody, was hindered when letters written to

his daughters were edited for content

(8). Previous case reviews before this case came into

care had been canceled for over three years not allowing

the father feedback for improvement of his parenting

skills as confirmed by the case notes of Mr, J's family

counselor Minna Greene ;

There is also conflict in jurisdictional

interpretation of the determination of unfitness statues.

This being the benchmark for progress of the 1 “district

versus strict compliance to Catholic Chanities directives

and court orders The appellate court erred when it

found the father of Luella Joneson unfit using evidence

that the state had ordered for an evaluation 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 afterwards.

The father of Luella Joneson was found unfit and

his parental nghts were terminated for failure to make

reasonable progress for the return home of Luella

Joneson.. Reasonable progress should have been

determined by an objective judgement The bench mark

for measuring such progress is the situation which

254

triggered the initial removal of the children. Inre M.C.

201 Ill. App.2d 792 , 559 N.E. 2d 236 ,239 (1" Dist

1980) Certain courts have interpreted this statue to hold

that “reasonable progress” involves an objective

Judgement. The benchmark for measuring such progress

is the conditions in existence when custody was taken

from the parents. 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.

But instead the manifest weight of the evidence

presented by the state was from reports ordered and

created by the state evaluators and caseworkers.

Re _In_re L.LS., 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 Dl. 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 would occur if the

parents fails to do things on a service plan which were

not necessarily related to previous shortcomings.

Many unsatisfactory progress reports were

255

given even though Mr. Joneson had cooperated with all

services demanded by Catholic Charities. In Interest of

Drescher Ill. App. 415 NE. 2d 641 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.

The father Eugene J., petitioner pro se, again pleads with

the court to reconsider the order denying the petition for

leave to appeal as serious violations of due process and

equal protection have occurred in the Illinois judicial

system, there is a need for review of the finality of the

judgement of unfitness and best interest and there is also

conflict in jurisdictional interpretation of the

determination of unfitness statues. This being the

benchmark for 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.

Respectfully submitted,

petitioner