In re B.A. , 283 Ill. App. 3d 930 ( 1996 )

                             No. 3--96--0571

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                                A.D. 1996

_________________________________________________________________

IN RE B.A., B.A. and J.M.,     )   Appeal from the Circuit Court

MINORS (THE PEOPLE OF THE      )   of the 9th Judicial Circuit,

STATE OF ILLINOIS),            )   Fulton County, Illinois

                              )

    Plaintiff,                )

                              )

       v.                     )   No. 95--J--68

                              )

B.A., B.A. and J.M.,           )

                              )

    Defendants-Appellees,     )   

____________________________   )

THE ILLINOIS DEPARTMENT OF     )

CORRECTIONS,                   )   Honorable

                              )   Patricia A. Walton,

    Intervenor-Appellant.     )   Judge Presiding

_________________________________________________________________

JUSTICE McCUSKEY delivered the opinion of the court:

_________________________________________________________________

    The Illinois Department of Corrections (IDOC) brings this

interlocutory appeal from an order of the circuit court of Fulton

County and its refusal to vacate the order.  The trial court

ordered IDOC to bring James Hughes, an inmate at the Pontiac

Correctional Center, to the Fulton County courthouse for visitation

with his minor daughter, J.M.  The order also required IDOC to

allow J.M. to take pictures of Hughes and gave Hughes certain

privileges to telephone J.M. and his attorney.                   

    IDOC filed a timely notice of appeal from the trial court's

order and the refusal to vacate.  Initially, we note the parties

have only cited authority and legal reasoning on the single issue

of Hughes' visitation with J.M.  Therefore, we will only review the

propriety of the trial court's order directing IDOC to transport

Hughes to the circuit court for visitation with J.M.  We find that

all other issues that could have been argued on appeal have been

waived because the parties did not properly preserve them for

review.  See Supreme Court Rule 341 (e)(7) (155 Ill. 2d R. 341

(e)(7)); Weber v. Cueto, 253 Ill. App. 3d 509, 524, 624 N.E.2d 442,

453 (1993).

    On appeal, Hughes defends the trial court's visitation order

on the grounds that: (1) it is permissible under the Juvenile Court

Act of 1987 (the Act) (705 ILCS 405 et seq. (West 1994)); (2)

section 10-135 of the Code of Civil Procedure (habeas corpus ad

testificandum statute) (735 ILCS 5/10-135 (West 1994)) provides a

basis for the order; and (3) his procedural and substantive due

process rights are implicated in this case.  

    Following our careful review of the record and applicable law,

we reverse and vacate that portion of the trial court's order

directing IDOC to transport Hughes to the Fulton County courthouse

for visitation with his daughter.

                                  FACTS

    On October 11, 1995, the State instituted abuse and neglect

proceedings regarding J.M. and other minor children based on the

conduct of their mother and stepfather.  A guardian ad litem was

appointed to represent the interests of the minor children.  The

record shows that Hughes, J.M.'s biological father, had never met

his 13 year-old daughter prior to the trial court's order.  Hughes

is incarcerated at the Pontiac Correctional Center as the result of

a felony conviction for threatening a public official.  Hughes was

given notice of the proceedings in Fulton County, and an attorney

was appointed to represent Hughes' interests.  J.M. expressed,

through the guardian ad litem, a desire to meet her biological

father.                        

    On March 5, 1996, the trial court issued an order directing

IDOC: (1) to allow Hughes to receive telephone calls from his

attorney at various times selected by the court; (2) to allow J.M.

to photograph Hughes; (3) to bring Hughes to the Fulton County

courthouse for visitation with J.M. approximately one hour prior to

each court proceeding related to the abuse and neglect proceedings;

and (4) to allow J.M. to call Hughes once per month for 30 minutes.

    IDOC intervened and sought to vacate the trial court's order.

On June 4, 1996, the court denied IDOC's request to vacate the

order.  The court determined: (1) the case is controlled by the

provisions of the Act, which require that it should be "liberally

construed" to strengthen a minor's family ties whenever possible;

(2) that People v. Lego, 212 Ill. App. 3d 6, 570 N.E.2d 402 (1991)

does not provide a basis for vacating the order; and (3) a slight

modification of the telephone portion of the order was necessary to

comply with IDOC's policies.

                                ANALYSIS

                        I. The Juvenile Court Act

    The trial court stated that its order was based on the Act.

Section 1-5 of the Act states: "the minor *** and his parents,

guardian, legal custodian or responsible relative who are parties

respondent have the right to be present, to be heard, to present

evidence material to the proceedings, to cross-examine witnesses,

to examine pertinent court files and records and also *** to be

represented by counsel."  705 ILCS 405/1-5 (West 1994).  We note

that while Hughes is a necessary party respondent under the Act,

his presence in court is not required during the abuse and neglect

hearing.  See In re C.J., 272 Ill. App. 3d 461, 465, 650 N.E.2d

290, 293 (1995).  The record is clear that the abuse and neglect

hearing involves allegations against J.M.'s mother and stepfather,

not Hughes.

    Hughes claims the authority for the trial court's order comes

from the language of the Act which says it is to be "liberally

construed" to "strengthen the minor's family ties."  705 ILCS

405/1-2 (West 1994).  We find no merit to this argument.  

    IDOC is charged by the General Assembly with maintaining

programs of control, rehabilitation and employment of prisoners.

730 ILCS 5/3-2-2(a) (West 1994).  IDOC has the power to assign

prisoners to any of its facilities throughout the State.  730 ILCS

5/3-2-2(b) (West 1994).  Courts should not intervene in the

internal operations of the penitentiary system of this State

without specific statutory authority.  People ex rel. Willis v.

Department of Corrections, 51 Ill. 2d 382, 385, 282 N.E.2d 716, 718

(1972); Lego, 212 Ill. App. 3d at 8, 570 N.E.2d at 404.

    Our supreme court has cautioned against using the Act's

language as an excuse to engage in judicial legislation.  In re

M.M., 156 Ill. 2d 53, 67, 619 N.E.2d 702, 710 (1993).  The court

has also warned trial courts not to use the "best interests of the

child" standard as a means to impose conditions which are not

contained in the Act.  In re M.M., 156 Ill. 2d at 69, 619 N.E.2d at

712.  The court noted: "[w]hen a court's power to act is controlled

by statute, the court is governed by the rules of limited

jurisdiction [citation], and courts exercising jurisdiction over

such matters must proceed within the strictures of the statute."

In re M.M., 156 Ill. 2d at 66, 619 N.E.2d at 710.

    We find no language in the Act or in any reported case

supporting Hughes' claim that the trial court has authority to

order the transportation of an IDOC inmate to the circuit court of

Fulton County for visitation with his daughter.  

             II. The habeas corpus ad testificandum statute

     The proper procedure for bringing a prisoner before the

circuit court is the habeas corpus ad testificandum statute.

People v. Collins, 249 Ill. App. 3d 924, 927, 619 N.E.2d 871, 874

(1993).  The statute provides:

         "The several courts having authority to grant

         relief by habeas corpus, may enter orders,

         when necessary, to bring before them any

         prisoner to testify, or to be surrendered in

         discharge of bail, or for trial in a criminal

         charge lawfully pending in the same court or

         to testify in a criminal proceeding in another

         state."  735 ILCS 5/10-135 (West 1994).

                              In the case before us, the habeas corpus ad testificandum

statute does not support the trial court's order.  Moreover, there

is absolutely no mention in the trial court's order of the habeas

corpus ad testificandum statute.  In addition, Hughes was not

brought to the circuit court: (1) to testify; (2) for surrender in

discharge of bail; (3) for trial in a pending criminal charge; or

(4) to testify in a criminal proceeding in another state.  Because

none of the statutory conditions apply, we find no authority in the

habeas corpus ad testificandum statute to support the trial court's

order.  Lego, 212 Ill. App. 3d at 8, 570 N.E.2d at 404 (1991).

                       III. Procedural Due Process

    Next, Hughes argues that his procedural due process rights

require his presence in the circuit court to secure the visitation

privileges granted by the trial court's order.  Again, we disagree.

    It is axiomatic that lawful incarceration necessarily deprives

an individual of many of the rights and privileges which are

available to an ordinary citizen.  Ivey v. Harney, 47 F.3d 181, 186

(7th Cir. 1995); In re C.J., 272 Ill. App. 3d at 464, 650 N.E.2d at

293.  We agree with Hughes that the law is well settled that a

parent's interest in maintaining a relationship with his child is

a fundamental liberty interest protected by the due process clause

of the fourteenth amendment.  See In re C.J., 272 Ill. App. 3d at

464, 650 N.E.2d at 293.  However, we find no support in this case

for Hughes' claim that his procedural due process rights have been

violated.  

    The circuit court proceeding involving J.M. does not seek to

terminate Hughes' parental rights.  Also, the abuse and neglect

petition affects the rights of J.M.'s mother, not Hughes.  The

record clearly reflects that Hughes had no involvement in J.M.'s

life prior to the State's filing of the abuse and neglect petition.

Finally, we note that none of the parties intend to call Hughes as

a witness in the abuse and neglect case.  Accordingly, we find from

the record that Hughes has no fundamental liberty interest

implicated in this appeal.

    Hughes is represented by appointed counsel in the abuse and

neglect proceedings.  Hughes' attorney should be able to adequately

represent and protect Hughes' legal interests before the circuit

court.  Furthermore, from our review, we find no statutory reason

or procedural right requiring Hughes to be physically present in

the circuit court of Fulton County.  Consequently, we find no merit

to Hughes' claim that IDOC should transport him to the circuit

court because his procedural due process rights are implicated in

the abuse and neglect case.  Cf. In re C.J., 272 Ill. App. 3d 461,

650 N.E.2d 290 (1995).  

                       IV. Substantive Due Process

    Finally, Hughes argues that he has a substantive due process

right to visitation with his daughter.  We agree with Hughes'

statement that, under substantive due process, the right to

familial relations is a fundamental liberty interest protected by

the Illinois and United States Constitutions.  People v. R.G., 131

Ill. 2d 328, 342-43, 546 N.E.2d 533, 540-41 (1989).  However, the

United States Supreme Court has said in the context of a prisoner's

fundamental rights that a prison regulation need only be reasonably

related to legitimate penological objectives to pass constitutional

muster.  Turner v. Safley, 482 U.S. 78, 87, 96 L. Ed. 2d 64, 77,

107 S. Ct. 2254 (1987).

    As IDOC correctly points out, Hughes is free to visit J.M.

during regular visitation hours at the Pontiac Correctional Center.

Certainly, IDOC has a legitimate interest in maintaining the

security of prisoners and the safety of the citizens of Illinois,

in addition to limiting the cost of unnecessarily transporting

prisoners.  Consequently, we determine that IDOC's curtailment of

Hughes' courthouse visitation is reasonably related to legitimate

penological objectives.  

    Finally, we would be remiss if we did not take judicial notice

of the fact that the Pontiac Correctional Center is a maximum

security facility currently on lockdown.  Hughes was lawfully

convicted of a felony punishable by imprisonment and IDOC assigned

him to Pontiac.  It is clearly within the sound discretion of IDOC

to determine whether Hughes poses a security risk, and to restrict

his visitation rights to the Pontiac Correctional Center.        

    In sum, we find no violation of Hughes' substantive due

process rights and agree with IDOC that the trial court's order is

"inconsistent with imprisonment itself [and] incompatible with the

objectives of incarceration."  Hudson v. Palmer, 468 U.S. 517, 523,

82 L. Ed. 2d 393, 401, 104 S. Ct. 3194, 3198 (1984).

                               CONCLUSION

    For the reasons stated, we find the trial court's order has no

support in the Act, the habeas corpus ad testificandum statute or

the constitutional requirements of procedural and substantive due

process.  As a consequence, we find the trial court had no

authority to enter that portion of the order requiring IDOC to

transport Hughes to the Fulton County courthouse to facilitate

visitation with his daughter.

    Accordingly, we reverse and vacate the order of the circuit

court of Fulton County.

    Reversed and vacated.

    SLATER and LYTTON, JJ., concur.