Illinois Appellate Court Ruling on Due Process Rights of Incarcerated Parents

A recent ruling in the Illinois Appellate Court decided if an incarcerated father had his due process rights violated because he was unable to attend a hearing terminating his parental rights since he was in a federal correctional facility in Wisconsin.

Two very young children J.S. and T.S. were found home alone by the Rockford police in their mother’s home. J.S. (seven years old) stated to the responding officers that he sometimes would babysit his brother T.S. (one-year-old). During the investigation, police found marijuana, scales, and a BB Pistol at the unattended home. The Department of Children and Family Service took J.S. and T.S. under protective custody. At this time their father was already in a federal correctional facility in Wisconsin. The father was previously indicted and convicted of drug trafficking crimes and possession of a firearm in furtherance of drug trafficking crimes. The father had other prior convictions.

As a result of the incident, the State filed neglect petitions as to J.S. and T.S. The trial court was aware that the father was in Wisconsin due to his incarceration. The trial court appointed counsel to the children’s father and a writ of habeas corpus was issued asking the federal correctional facility to have the father delivered to the trial court, but the writ was denied. Typically, the federal government does not honor a state writ of habeas corpus. The mother of the children stipulated to one count of the neglect petition, which alleged that the minors were left unsupervised for an unreasonable period of time. The trial court concluded that J.S. and T.S. were neglected minors and DCFS was appointed as their legal guardian and custodian.

Then, the State filed a petition to terminate the parental rights of both parents. The State alleged the father was unfit on five grounds. (750 ILCS 50/1 (D)(m)(i); 750 ILCS 50/1 (D)(m)(ii); 750 ILCS 50/1 (D)(b); 750 ILCS 50/1 (D)(i); and 750 ILCS 50/1 (D)(g)). The father sent a letter directly to the trial court stating that he would be released to a halfway house in the spring of 2018, he secured employment upon release, and that he would like the court to delay proceeding until he had a chance to get out and prove himself. The trial court decided that it would not delay the proceedings due to the permanency needs of the children. The unfitness hearing proceeding in the absence of the father, but in the presence of his counsel. The court found the father unfit on all counts and then conducted a best-interest hearing. The court decided that J.S. and T.S. were doing well in their foster home and that the foster family wanted to adopt them, and that it was in the best interest of the children to terminate their biological father’s parental rights.

On appeal, the father argued that his statutory and constitutional rights were denied because his continuance motion was denied, and the unfitness and best-interest hearings were conducted without him being present. The Due Process Clause of the Fourteenth Amendment to the United States Constitution, guarantees the right of parents to the care and custody of their children. The fundamental liberty of care and custody of one’s children is guaranteed by the Due Process Clause. Parental termination cases with due process claims are analyzed by the three factors in the Matthews case, which are: 1. the private interest affected by the official action; 2. the risk of erroneous deprivation of that interest through the procedures used; and 3. the government’s interest, which includes the function involved as well as the fiscal and administrative costs of any additional procedures. Matthews v. Eldridge, 424 U.S. 319, 335 (1976). The appellate court determined that although there is a statutory right for a parent to be present during the unfitness and best-interest hearings, is not mandatory for the parent to be present. It was held that lawful incarceration makes many rights and privileges of ordinary citizens unavailable to those who are incarcerated.

The case is In re J.S., 2018 IL App (2d) 180001018 .

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