In re AL. S., 2016 IL App (4th) 160737, March 7, 2017, Champaign Co., KNECHT, Affirmed. Respondents, mother and father, admitted and stipulated to State’s petition for adjudication of wardship of 2 minor children. Court entered adjudicatory order finding minors neglected. Court found father unfit to care for either minor, and found mother unfit to care for younger child (an infant); and found mother fit to care for older child. Respondent father has standing to contest court’s finding as to mother’s fitness to care for older child. Court’s dispositional findings are not against manifest weight of evidence, as recent observations indicated mother made improvements in her parenting and safety of home. (TURNER and POPE, concurring.)
In re Keyon R., 2017 IL App (2d) 160657, February 23, 2017, Winnebago Co., ZENOFF, Reversed. Court erred in finding Respondent father an unfit parent. State failed to prove unfitness on ground of depravity. State failed to raise rebuttable presumption of depravity, as Respondent’s 3 felony convictions were entered 8 years prior to filing of motion to terminate parental rights. Certified copies of convictions, alone, are not clear and convincing proof of depravity. Court erred in finding that Respondent failed to make reasonable progress toward goal of returning minor to him, as DCFS never recommended any services for him to complete upon which his progress could be measured. (HUDSON and BURKE, concurring.)
In re N.G., 2017 IL App (3d) 160277 (January 20, 2017). Court found Respondent father unfit, based on depravity due to his 2008 felony conviction of aggravated unlawful use of a weapon (AUUW), and terminated his parental rights. As AUUW statute has been declared unconstitutional by Illinois Supreme Court, Respondent’s AUUW conviction was void ab initio and was thus a nullity, and cannot serve as basis for a depravity consideration pursuant to Section 1(D)(i) of the Adoption Act. (O’BRIEN, concurring; WRIGHT, dissenting.)
People v. Washington, 2017 IL App (4th) 150054, February 17, 2017, Coles Co., POPE, Reversed and remanded with directions. Court found Defendant unfit to stand trial. Court erred by, once court had bona fide doubt as to Defendant’s fitness, failing to appoint counsel to represent Defendant at fitness hearing. Remanded for new fitness hearing, during which Defendant is to be represented by counsel. (STEIGMANN and APPLETON, concurring.)
Thank you to ISBA eclips and Family Law Section newsletter for its contributions this month.
Third District Follows First District’s Altman Decision and Holds Attorneys’ Fees Earned and Already Paid to Counsel Not Subject to Disgorgement
Acknowledging that the First and Second Districts have conflicting holdings as to how §501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., should be interpreted for the purpose of disgorging fees already earned by and paid to an attorney, the Third District, in In re Marriage of Goesel, 2017 IL App (3d) 150101, aligned with the First District case In re Marriage of Altman, 2016 IL App (1st) 143076, 59 N.E.3d 914, 406 Ill.Dec. 136, and held that a trial court may not require payment of interim attorneys’ fees by way of disgorgement of retainer funds previously paid to an attorney when, prior to the attorney receiving notice of the petition for interim fees, the attorney already earned the money and was under no obligation to return those funds to the client. Thus, such funds were not “available” under the §501(c-1)(3) of the IMDMA.
Trial Court’s Denial of Motion To Continue and Motion To Reopen Proofs Upheld
In In re Parentage of I.I., 2016 IL App (1st) 160071, the father appealed the denial of a motion to continue and motion to reopen proofs with respect to a support modification hearing. After a final hearing was set on the mother’s petition to modify child support, the father made an oral motion to continue the trial based on his unavailability. The hearing proceeded without the father’s presence or testimony. He later moved to reopen proofs prior to closing arguments so that he could testify, which was also denied. The appellate court affirmed and justified the trial court’s decisions due to the father’s lack of due diligence displayed throughout the case: He had ignored discovery requests and court orders; he had repeatedly failed to appear at court dates; his financial disclosure statement was not credible with respect to his income; and he failed to disclose bank accounts and business interests in which he was involved. The appellate court further noted that the father did not make an offer of proof after the denial of the motion to reopen proofs, which would have permitted it to understand what additional evidence he wanted to introduce. The court also affirmed the trial court’s award of $3,000 per month, which was a needs-based order, but ordered that retroactivity could be applied only back to the date the mother filed her motion to modify.
Thank you to IICLE Family Law Flashpoints for its contributions this month, Donald C. Schiller & Michelle A. Lawless, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest & Wheaton.