author: JUSTICE GREEN

text:
    BETTY VANCE, Indiv. and as Special Adm’r of the Estate of Marvin J. Vance, et al., Plaintiffs-Appellants, v. NORTH AMERICAN ASBESTOS CORPORATION et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0085
    Opinion filed September 20, 1990.
    James Walker, Ltd., of Bloomington, for appellants.
    Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (John L. Morel, of counsel), for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

At all times applicable here, section 94 of the Business Corporation Act (Act) stated:

“The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by the order of the court when the court has not liquidated the assets and business of the corporation, or (3) by expiration of its period of duration, shall not take away or impair any remedy available to or against such corporation, its directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name.” Ill. Rev. Stat. 1977, ch. 32, par. 157.94.

We are concerned here with the question of whether, if ever, a party allegedly tortiously injured by a corporation subject to the Act can seek redress against such a corporation beyond the statutory grace period after a dissolution of that corporation. We conclude it could not be done here.

On May 27, 1986, plaintiffs Betty Vance, as special administrator of the estate of Marvin Vance, and individually, Willard Tipsord, and Otto Kessinger filed suit in the circuit court of McLean County against defendants North American Asbestos Corporation (NAAC) and Max Meyer seeking damages arising from tortiously inflicted asbestos-related injuries to Marvin Vance, Tipsord, and Kessinger. The complaint anticipated a response by NAAC that the Secretary of State had issued a certificate of its dissolution on May 19, 1978, and so alleged. Plaintiffs then set forth various reasons why they deemed the dissolution of NAAC should not make NAAC immune to the instant suit. Substantial supporting documents incorporated into the complaint accompanied the complaint. An amended complaint incorporating this material was filed. On July 21, 1986, a motion was filed on special and limited appearance seeking to quash the summons served on NAAC. It purported to be brought by NAAC and alleged the court could acquire no personal jurisdiction of NAAC as the two-year period of section 90 of the Act had expired.

After a hearing, the circuit court agreed with NAAC and entered an order on July 21, 1986, quashing the summons and dismissing the complaint as to NAAC. By that time, the complaint had been amended. The order of July 21, 1986, became appealable recently when summary judgment was entered in favor of defendant Meyer. Plaintiffs have appealed the order of July 21, 1986, dismissing NAAC. Plaintiffs do not dispute that ordinarily a business corporation subject to the Act is immune from suit when, as set forth in section 94 of the Act, more than two years have elapsed after issuance of a certificate of dissolution. Rather, plaintiffs maintain (1) if NAAC was validly dissolved, it had no power to appear and seek dismissal; (2) NAAC waived its right to claim it was dissolved when it brought suit against another entity more than four years after its dissolution; and (3) the dissolution was fraudulent or was improperly brought against plaintiffs. We disagree and affirm.

Plaintiffs’ argument that the dismissal of the suit against NAAC was in error because it was made pursuant to a motion by NAAC which was a nonentity is analogous to the dispute as to which originated first, the chicken or the egg. NAAC contends the argument it could not make a motion because of its lack of capacity constitutes an admission NAAC also lacks the capacity to be sued. The issue is an interesting philosophical one. However, the better rule seems to be that a party sued as a corporation can appear in that capacity to assert its lack of existence. (9A W. Fletcher, Cyclopedia Corporations §4531, at 185 (perm. ed. rev. 1985).) A contrary rule would result in further proceedings but would not eliminate the necessity for an ultimate determination as to whether NAAC can be sued under present circumstances as the issue could be raised at any stage of the proceedings. See Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 36 N.E.2d 573; Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 496 N.E.2d 323.

In regard to plaintiffs’ second claim of error, the record shows that on July 22, 1982, well more than two years after receiving its certificate of dissolution, NAAC and Mary Openheim, its liquidating receiver, filed a complaint in the circuit court of McLean County against UNARCO Industries, Inc., seeking contribution in regard to NAAC’s possible liability in pending litigation. Plaintiffs cite no authority holding the filing for such relief constitutes a waiver by NAAC of any right to subsequently rely upon its certificate of dissolution in response to future suits brought against it. We know of no such authority. Accordingly, we hold no waiver resulted.

Finally, we come to the heart of the case. The issue is whether plaintiffs’ allegations are sufficient to present a factual question as to whether, because of fraud or other circumstances, the NAAC’s dissolution should be disregarded even though the suit was not commenced until many years after the expiration of the two-year period of section 94 of the Act. The record undisputedly indicates that upon dissolution, the assets of NAAC were turned over to Mary Openheim as a liquidating receiver. However, plaintiffs’ lead counsel, in responding to defendants’ motion to dismiss, presented an uncontested affidavit that, on information and belief, on October 3, 1986, policies of liability insurance issued by Zurich Insurance Company covering NAAC were still in existence with coverage in excess of $3 million not yet exhausted. Plaintiffs also presented correspondence between NAAC and its sole shareholder, Cape Industries, indicating the purpose of dissolving NAAC was because of its exposure to liability and suggesting a new Canadian corporation be formed to perform the same function in selling asbestos that NAAC had performed.

When NAAC dissolved, section 80 of the Act (Ill. Rev. Stat. 1977, ch. 32, par. 157.80) required that in order to obtain a certificate of dissolution from the Secretary of State pursuant to section 81 of the Act (Ill. Rev. Stat. 1977, ch. 32, par. 157.81), NAAC issue articles of dissolution which stated, inter alia, “[t]hat there are no suits pending against the corporation in any court, or that adequate provision has been made for any judgment” obtained (Ill. Rev. Stat. 1977, ch. 32, par. 157.80(e)). Plaintiffs alleged in their complaint that NAAC executed such articles knowing it had many suits pending and would have many more. This statement in these articles together with the information indicating NAAC dissolved to avoid further liability is the basis of plaintiffs’ claim NAAC was guilty of fraud in its dissolution.

Plaintiffs’ position finds little support in Illinois decisions. At common law, dissolution of a corporation prevented suit against the corporation and the required abatement of existing proceedings. (Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Building Corp. (1937), 302 U.S. 120, 124-25, 82 L. Ed. 147, 150-51, 58 S. Ct. 125, 127; Blankenship v. Demmler Manufacturing Co. (1980), 89 Ill. App. 3d 569, 572, 411 N.E.2d 1153, 1155.) Such is still the law in regard to criminal prosecutions of corporations. (People v. Parker (1964), 30 Ill. 2d 486, 197 N.E.2d 30; People v. Boyce (1987), 156 Ill. App. 3d 1036, 509 N.E.2d 776.) However, section 94 of the Act gives survival to civil causes of action commenced within its two-year period. Blankenship, 89 Ill. App. 3d at 573, 411 N.E.2d at 1156; Poliquin v. Sapp (1979), 72 Ill. App. 3d 477, 481, 390 N.E.2d 974, 978.

In Blankenship, a plaintiff brought suit against a corporation and its former president more than two years after its dissolution, seeking recovery in strict liability for defective product. That plaintiff alleged the corporation and its president had failed to provide for likely future liability resulting from the dangerous nature of the corporation’s product. Dismissals as to both defendants because of the untimeliness of the complaint were affirmed. The court reasoned that the reference in section 94 of the Act concerning provision by the corporation in regard to debts, liabilities or obligations of the corporation refers to those incurred before dissolution and not debts, liabilities, or obligations which might be anticipated but had not ripened. This was deemed to be so regardless of when the cause of action accrued. The appellate court also held the circuit court did not err in refusing to dismiss without prejudice so that suit could be renewed if a liability insurance policy covering the dissolved corporation for the plaintiffs was later discovered. The court stated that discovery of such a policy would not render the corporation subject to suit.

In O’Neill v. Continental Illinois Co. (1950), 341 Ill. App. 119, 93 N.E.2d 160, a complaint alleged a defendant had purchased for her a $350,000 treasury certificate in 1929 and never turned it over to her. The defense pleaded the dissolution of that corporation in 1930, more than two years before suit was brought. The plaintiff contended that defendant’s statement, in its articles of dissolution, that all its debts, obligations, and liabilities had been paid was fraudulently false. There, as here, the summons was quashed and the complaint dismissed. The appellate court held the failure to proceed within the two-year period was fatal to any cause of action. However, the language of the court also emphasized that the plaintiff made no demand for the certificate for 18 years.

More favorable to plaintiffs is the decision of the First District Appellate Court in Moore v. Nick’s Finer Foods, Inc. (1984), 121 Ill. App. 3d 923, 460 N.E.2d 420. There, a suit was filed on May 1, 1981, on behalf of a minor for tort inflicted injuries allegedly occurring January 18, 1974. A general appearance was filed on behalf of that defendant corporation, and its motion to dismiss, purporting to be on special and limited appearance, was filed alleging the dissolution of that defendant on December 1, 1978. That motion requested dismissal of that complaint pursuant to section 94 of the Act. The circuit court allowed the motion but, on appeal, the appellate court reversed and remanded.

In Moore, as here, the record indicated the existence of liability insurance available to cover the occurrence if no dissolution had taken place. That plaintiff’s attorney filed an affidavit stating an independent insurance adjuster had acknowledged that attorney’s notice of lien in a letter of January 8, 1975, and that correspondence had continued until February 1978, when the defense refused plaintiff’s request and negotiations ceased. The affidavit also asserted plaintiff had received no notice of that defendant’s dissolution. However, the appellate court did not decide the case primarily upon the foregoing allegations. Instead, the court concluded that the policy favoring protecting the rights of minors prevailed over the policy established by section 94 of the Act.

The Moore court noted the exclusion of minors to the (1) statutory notice required before bringing tort suit against a city (McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476); and (2) the six-month period for filing workers’ compensation claims (Walgreen Co. v. Industrial Comm’n (1926), 323 Ill. 194, 153 N.E. 831). The Moore court also pointed out that in Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784, the requirement for filing a wrongful death complaint within two years was also held inapplicable to minors. These cases were contrasted with the situation, as under the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135), where timely filing was a condition of the action and thus applicable to all litigants. Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 9, 440 N.E.2d 112, 116.

In conclusion, the Moore court pointed out that the existence of liability insurance to cover the claim of the minor would seem to prevent the court’s decision from disrupting the corporate dissolution proceedings which the rule prohibiting suits after the end of the two-year period of section 94 was intended to prevent. However, we do not interpret Moore to indicate that the time limits of section 94 were to be disregarded in all cases where unexhausted liability policies covering the dissolved corporation are still in existence. Such a holding would be contrary to the tenor of cases covering Illinois law on the subject, which indicate even fraud is insufficient to extend the grace period from bringing actions beyond the time limits of section 94. Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co. (7th Cir. 1980), 629 F.2d 1183; Blankenship, 89 Ill. App. 3d 569, 411 N.E.2d 1153; O’Neill, 341 Ill. App. 119, 93 N.E.2d 160.

We recognize the problem created by the situation alleged here. However, we know of no rule prohibiting a corporation from dissolving because of fear of liability arising in the future. When section 94 was enacted, the two-year grace period must have been deemed by the legislature to be the appropriate time span to allow suit against the dissolved corporation thus balancing the need to protect injured parties against the need to give finality to a corporate dissolution. In our present industrial economy, a long period of time may. elapse between conduct by industrial corporations which injures people and the discovery of those injuries by the injured parties.

When the Business Corporation Act of 1983 (1983 Act) (Ill. Rev. Stat., 1984 Supp., ch. 32, parrl.01 et seq. (eff. July 1, 1984)) was enacted, section 94 (Ill. Rev. Stat. 1983, ch. 32, par. 157.94) was replaced by section 12.80 of the 1983 Act (Ill. Rev. Stat., 1984 Supp., ch. 32, par. 12.80), which contained the same wording, except that the grace period was extended from two years to five years. We are unaware of any official explanation for that change, but, logically, the General Assembly must have made the change as its response to the problem arising because of the increasing time span between injuries and the discovery of those injuries by injured persons. We deem this to be the new balance given by the legislature to the conflicting interests we have described. Otherwise, we detect no legislative intent to upset the previous decisions giving a strict interpretation to the stated grace period for suits against dissolved corporations.

Accordingly, we affirm.

Affirmed.

KNECHT, P.J., and LUND, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD JAMES NORTON, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0014
    Opinion filed September 26, 1990.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert •J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Donald James Norton’s convictions of attempt (first-degree murder), home invasion, and armed robbery were affirmed by this court. (People v. Norton (1989), 182 Ill. App. 3d 1109, 554 N.E.2d 1126 (unpublished order under Supreme Court Rule 23).) Defendant’s amended pro se petition for post-conviction relief was dismissed after (1) the court appointed counsel for defendant; (2) counsel represented that he could not allege any additional claims involving deprivation of defendant’s constitutional rights; and (3) counsel stated defendant’s allegations were not supported by the record. Defendant appeals and argues he is entitled to a new hearing on his post-conviction petition because he was not present at the last hearing and his appointed counsel failed to advise him that he would not file a new petition for post-conviction relief. We affirm.

In his amended pro se petition, defendant alleged (1) his second appointed trial counsel did not have adequate time to investigate his case before trial; (2) his second appointed trial counsel coerced defendant into a bench trial; (3) defendant was not fully informed regarding the nature of a bench trial; (4) defendant was refused counsel for six days after his arrest; (5) defendant was not fully advised of his right to counsel after police interrogation; (6) defendant was denied a change of venue without due process; and (7) defendant received unfavorable pretrial publicity in the media.

A hearing on defendant’s amended petition was held October 31, 1989. The prosecutor and defendant’s attorney were present, defendant was not. The trial court dismissed the amended petition, but granted defendant 28 days to file a second-amended petition.

After receiving the extension of time to file a second-amended petition, defendant’s appointed counsel for post-conviction relief filed a certificate pursuant to Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), stating he (1) consulted with defendant by mail to ascertain his contentions of deprivation of constitutional rights; (2) examined the record of the trial proceedings; and (3) made any amendments to defendant’s amended pro se petition that were necessary for an adequate presentation of defendant’s contentions. At a hearing on December 26, 1989, counsel stated he was unable to make any amendments to the amended petition on file because he could not allege any deprivations of defendant’s constitutional rights. Further, he stated that defendant’s allegations in his amended pro se petition were not supported by the record.

Defendant essentially argues he was entitled to be present at the December 26, 1989, hearing because his counsel’s interests were separate from his and relies on People v. Sherman (1981), 101 Ill. App. 3d 1131, 428 N.E.2d 1186. There, the Third District Appellate Court stated a post-conviction petitioner was entitled to notice of either his counsel’s motion to withdraw or the State’s motion to dismiss the petition. That court reasoned that the failure to notify the petitioner effectively deprived him of any representation at a hearing when the petition was dismissed. Counsel in Sherman complied with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)).

The Sherman case was decided prior to Pennsylvania v. Finley (1987), 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990. In Pennsylvania, court-appointed counsel consulted with the post-conviction petitioner and reviewed the trial record. After concluding there was no arguable basis for collateral relief, counsel so advised the court in writing and requested permission to withdraw. The trial court then independently reviewed the record, found no meritorious issues, and dismissed the petition. On appeal in the State courts, it was concluded that Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, required that the petitioner be given notice of his counsel’s intent to withdraw and time to raise any countervailing arguments. The Supreme Court concluded in Pennsylvania a post-conviction petitioner is not entitled to Anders procedures.

After Pennsylvania was decided, the Third District Appellate Court in People v. Robinson (1987), 160 Ill. App. 3d 366, 513 N.E.2d 603, held compliance with Supreme Court Rule 651(c) was sufficient representation. There, a post-conviction petitioner alleged he was entitled to the Anders procedures. The Robinson court rejected petitioner’s argument and relied on Pennsylvania.

We find the Robinson case is dispositive of defendant’s issue. There is no allegation that defendant’s counsel did not consult with defendant. Further, defendant has not (1) alleged that his counsel’s failure to amend his pro se petition resulted in the omission of a significant allegation, or (2) suggested the manner in which the petition should have been amended. (See People v. Dodd (1974), 58 Ill. 2d 53, 56, 317 N.E.2d 28, 30 (absent such allegation, adequate representation will be found).) We find defendant received adequate representation on his post-conviction petition.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LUND and SPITZ, JJ., concur.


text:
      In re ESTATE OF VERN V. WALLS, Deceased (Albert Walls et al., Plaintiffs-Appellants, v. Cyril DeClercq, Indiv. and as Ex’r of the purported Will of Vern V. Walls, et al., Defendants-Appellees).
    Fourth District
    No. 4 — 90—0192
    Opinion filed September 25, 1990.

      Barber, Segatto, Hoffee & Hines, of Springfield (Carl 0. Hoffee and R. Kurt Wilke, of counsel), for appellants.
    Edward Booth, of Booth, Pasek & Gollings, of Decatur, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs, the heirs at law of Vern V. Walls (Walls heirs), filed a will contest action alleging (1) the last will and testament of Vem V. Walls (decedent) was the result of undue influence by Cyril DeClercq (Cyril) and Floyd DeClercq (Floyd), brother and nephew, respectively, of decedent’s predeceased wife, Kathryn; and (2) decedent lacked testamentary capacity. The jury returned a verdict for the Walls heirs on the grounds of undue influence. The trial court entered a judgment notwithstanding the verdict (n.o.v.) for the defendants, the DeClercq heirs. On appeal, the Walls heirs argue the trial court erred in entering judgment for the defendants where the evidence established undue influence. The plaintiffs raise no issue regarding decedent’s testamentary capacity. We affirm.

Decedent died on March 31, 1986, at the age of 79. Decedent’s wife, Kathryn, died two months earlier after a long illness. Decedent and Kathryn had one child, who predeceased them at age 14. Decedent was survived by several brothers and sisters. Cyril is Kathryn’s brother; Louella Drone (Louella) is Kathryn’s sister.

Prior to Kathryn’s death, decedent’s and Kathryn’s 1985 wills provided that on the death of the survivor, their estate would be divided equally between the Walls heirs and the DeClercq heirs. Cyril was appointed executor; Cyril’s son, Maurice, was appointed alternate executor. On March 15, 1986, decedent, then in the hospital for emphysema, executed a new will which directed the bulk of decedent’s estate, valued at $275,000 to $300,000, to the DeClercq heirs. Only $34,000 in cash bequests were given to the Walls heirs.

Harold Tenney, the lawyer who prepared the 1985 wills for Kathryn and decedent, testified for plaintiffs that the 1985 wills of decedent and Kathryn split their total estate equally between the Walls heirs and the DeClercq heirs on the death of the survivor of them. Tenney stated the Walls wanted their 1985 wills to be substantially the same as their prior wills executed in 1975 when they were living in Arkansas. Of the one-half devised to the DeClercq heirs, Cyril and his family were to receive one-half and Louella was to receive one-half. Cyril was again appointed executor, and Maurice was appointed alternate executor.

On cross-examination, Tenney testified that after the wills were executed, he represented the decedent in connection with a roof problem at decedent’s house. Tenney terminated his representation of decedent because a problem developed with decedent. Tenney never met Cyril and had no reason to believe anyone other than decedent was the cause of the problem that resulted in the termination of his representation. Tenney stated the last day he did any work for decedent was February 17,1986.

Louella testified as an adverse witness for plaintiffs. She stated that decedent was close to her children. Louella moved in with decedent and Kathryn after they moved to Decatur to help care for Kathryn during her illness. After Kathryn got sick, Louella stated the decedent hired someone to handle his financial affairs because Kathryn had done it previously. On October 1, 1985, the day decedent and Kathryn executed their wills, decedent and Kathryn explained to Louella and Cyril that each would receive 25% of their combined estates. Kathryn and decedent kept their new wills in a chest of drawers in their bedroom. Louella remained close to decedent after Kathryn died but did not continue to live in his house. Louella stated when she called decedent, often Cyril was at decedent’s house. Louella recalled decedent’s brother, A1 Walls, came to visit with decedent after Kathryn’s death. According to Louella, decedent and his brother did not have a “falling out.” Louella stated decedent’s personality changed totally after Kathryn’s death. Decedent would often sit at a table for long hours at a time. After decedent went into the hospital, he told Louella that Cyril came to visit him every night. Louella stated Cyril called her after she received a summons in this action and told her not to worry about getting a lawyer, that he would handle everything. Louella testified Cyril came to visit her at her apartment on July 11, 1988, for the first time in four years and told her not to say anything about decedent because “all would be lost.”

Cyril testified as an adverse witness for plaintiffs. Cyril stated Kathryn and decedent told him he would be appointed executor of their wills. Cyril stated Kathryn and decedent did not explain the contents of their 1985 wills to him and Louella but merely told them new wills were executed on October 1, 1985. Cyril testified Donald Baird was his attorney in 1985 and had been for 35 to 40 years. Cyril learned from decedent on February 28, 1986, that decedent had fired his lawyer, Tenney.

Cyril stated he knew decedent was then thinking about executing a power of attorney. Cyril identified a note he prepared, addressed to Baird, which was admitted into evidence. The note read: “Please furnish a legal PDQ [as] mentioned in our conversation.” The note was dated February 24, 1986, four days before decedent fired his prior attorney, and had Cyril’s name in the lower right-hand corner. Cyril stated “PDQ” meant “pretty darn quick.” Cyril stated he gave the note to the decedent to assist decedent when he went to visit Baird. Baird prepared a power of attorney for decedent naming Cyril as decedent’s agent on March 6, 1986. Cyril admitted taking decedent to Baird’s office for decedent’s first visit with Baird for probating Kathryn's will but he could not recall the date of the visit. Cyril stated the power of attorney allowed him to handle all decedent’s financial affairs. Cyril stated decedent delivered Kathryn’s will to Baird’s office before he went into the hospital on March 9,1986.

Cyril recalled a statement decedent made to him prior to entering the hospital, to wit: “Cyril, I don’t think you’re going to like my Will.” Cyril also recalled, after being presented with his prior deposition testimony, that decedent made the following statement to him in the hospital: “Cyril, I don’t think we treated you right in this Will.” Cyril also stated he found out decedent had made out another will after it was executed.

On direct examination, Cyril stated he did have a conversation with his sister, Louella, on July 11, 1988, in her apartment at which time he advised her not to discuss the will contest case. Cyril admitted that his contrary answers to an interrogatory on the same subject and to an interrogatory regarding whether he had visited his sister in the past five years were erroneous. Cyril also stated he helped the decedent with his roof problem by going to the school district from which decedent had purchased the house.

On examination by his counsel, Cyril denied suggesting to decedent how to divide his estate and did not hear anyone suggest such a thing to decedent.

Gene Pride testified for defendants. Pride shared a room with decedent in Decatur Memorial Hospital from March 12 to March 15, 1986. Pride discussed decedent’s will and estate planning with him. Decedent told Pride he was going to make some changes in his will and he was displeased with portions of his family that he had not seen for a while.

David Baumberger, decedent’s physician during his March 1986 hospitalization, testified for defendants that most of the time decedent was in the hospital he was alone. Baumberger never met any of the DeClercqs. On March 15, 1986, Baumberger was asked by decedent to call his attorney because he (decedent) wanted to talk with him about his will. Baumberger called attorney Baird. Baumberger did not know why decedent wanted to talk with his attorney.

Donald G. Baird testified his office received a call from decedent on February 26, 1986. The written message Baird received indicated decedent was Cyril’s brother-in-law. Baird stated decedent’s reason for contacting his office was to ask Baird to handle the probate of Kathryn’s estate. Baird also prepared a power of attorney for decedent to Cyril. Baird stated he received a call from Dr. Baumberger on March 15, 1986. Baumberger told Baird decedent wanted to see him about making a new will. Baird went to see decedent on March 15. Decedent told Baird he was quite ill, probably terminal, and he wanted to execute a new will. Baird prepared a new will that same day at decedent’s direction. Baird returned to the hospital with the new will. Decedent then executed the will after initialing one change in a bequest to Louella. Baird stated decedent was of sound mind and memory when he executed the new will. Baird stated no one else was present when the new will was signed except his partner and a patient in the adjoining bed.

On cross-examination, Baird stated he had known Cyril for about 30 years and had represented Cyril occasionally in the past. Baird stated he prepared wills for Cyril and his wife and represented Cyril as executor of both Kathryn’s and decedent’s estates. Baird stated he met personally with decedent in his office shortly after the February 26, 1986, telephone call and Cyril accompanied decedent. Baird stated Kathryn’s will was brought to him in his office on March 12 or March 13, 1986. Baird did not specifically recall who delivered the will to his office but stated Cyril could have delivered it. Baird stated the power of attorney to Cyril was executed on March 5, 1986, and it gave Cyril broad power to act for decedent in all matters except the conveyance of real estate. Baird stated Cyril was in a position of trust to decedent by virtue of the power of attorney. Baird admitted the March 1986 will was substantially different from the October 1985 will because in the later will Cyril’s family received over one-half of decedent’s estate. The 1985 will provided for an equal division between the Walls heirs and the DeClercq heirs. Decedent never told Baird he had any falling out with any family member.

Hugh Rowden, Baird’s law partner, testified he assisted in the preparation and attended the execution of decedent’s will on March 15, 1986. Rowden did not see anyone in the area of decedent’s hospital room on March 15 and stated decedent was alert and appeared to freely and voluntarily execute his will. Decedent did not mention that he had any falling out with any family member. Rowden did not learn what decedent’s motivation was for making a new will.

The jury returned a verdict for plaintiffs. Defendants filed a post-trial motion, alleging the verdict must be set aside because the evidence did not sustain a finding of undue influence as a matter of law. The trial court granted defendant’s motion for judgment n.o.v., finding Cyril and the other defendants did not participate directly in the procuring of decedent’s will and the evidence was legally insufficient to support the jury’s verdict.

The plaintiffs argue the evidence established the necessary elements of undue influence. That is, (1) Cyril held a position of trust with decedent to such an extent that Cyril could have exerted undue influence; (2) Cyril caused the preparation of the 1986 will; and (3) Cyril received substantial benefit under the 1986 will. Plaintiffs further contend the fact that Cyril’s testimony at trial differed from his prior deposition testimony is substantive evidence of undue influence which the jury obviously considered compelling.

Defendants argue plaintiffs’ evidence did not establish that Cyril directly procured the execution of the 1986 will and, therefore, defendants were entitled to judgment n.o.v. Defendants maintain any prior inconsistent statements Cyril made were introduced for impeachment purposes and did not constitute substantive evidence of undue influence.

A court should enter judgment n.o.v. only when all of the evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence would ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Accordingly, our review of the evidence will be in the light most favorable to the Walls heirs.

The undue influence necessary to set aside a will must be of such a nature as to destroy the testator’s freedom concerning the disposition of his estate and render his will that of another. (Breault v. Feigenholtz (1973), 54 Ill. 2d 173, 296 N.E.2d 3.) The undue influence must be specifically directed toward procuring the will in favor of a particular person or persons. (Peters v. Catt (1958), 15 Ill. 2d 255, 263, 154 N.E.2d 280, 285.) A presumption of undue influence arises when it is shown that: (1) a person in a fiduciary relationship with a testator receives a substantial benefit under the will; (2) the fiduciary is in a position of dominance over the testator; (3) the testator reposes trust and confidence in the fiduciary; and (4) the will is written by or its preparation is procured by the fiduciary. (In re Estate of Letsche (1979), 73 Ill. App. 3d 643, 646, 392 N.E.2d 612, 614, citing Redmond v. Steele (1955), 5 Ill. 2d 602, 610, 126 N.E.2d 619, 624.) More than the mere existence of a fiduciary relationship must be shown to raise the presumption. (Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 566, 361 N.E.2d 134, 136.) The fiduciary must have actually participated in procuring the execution of the will. (Anthony v. Anthony (1960), 20 Ill. 2d 584, 587, 170 N.E.2d 603, 604.) Once a presumption of undue influence is shown, the burden is on the proponents of the will to produce evidence that the will was the free and voluntary act of the testator. Mitchell v. Van Scoyk (1953), 1 Ill. 2d 160,115 N.E.2d 226.

Plaintiffs’ evidence established that Cyril held a position of trust with the decedent as attorney in fact by virtue of a power of attorney. The existence of the power of attorney evidenced further that decedent had enough trust and confidence in Cyril to allow him to handle all of his daily financial affairs. The evidence did show that Cyril and his family received an increased benefit under the 1986 will. However, there is no evidence that Cyril procured the preparation of the will. While Cyril accompanied decedent to Baird’s office on one occasion, the purpose of that visit was for decedent to request Baird to assist in the probate of Kathryn’s will. No discussion of decedent’s will took place at that visit. Further, the evidence showed decedent was alone in his hospital room (1) when he requested to speak with his attorney on March 15; (2) later when Baird first discussed the details of the new will for decedent on March 15; and (3) again when Baird returned to decedent’s hospital room on March 15 for the execution of the will. There is no evidence Cyril ever discussed with the decedent what the terms of his will should be and no evidence Cyril secured witnesses for decedent by prearrangement. On the contrary, the evidence presented, without more, showed the decedent initiated the idea of changing his will for reasons that may never be known.

As to plaintiffs’ argument that Cyril’s conflicting statements regarding his visit and conversation with his sister, Louella, in July 1988 constitute substantive evidence of undue influence, we disagree. Plaintiffs provide no case which supports their position. Further, while the fact that Cyril gave conflicting testimony reflects on his credibility, it does not constitute evidence of procurement of the will, which plaintiffs wholly failed to prove. Accordingly, we find no error in the trial court’s order entering judgment n.o.v. for the defendants.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER N. EVANS, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0114
    Opinion filed September 25, 1990.

      Michael J. Costello, of Immel, Zelle, Ogren, McClain & Costello, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant appeals from denial of a motion to withdraw his guilty plea and reconsider his sentence for burglary. We affirm.

On April 28, 1989, defendant pleaded guilty to four counts of burglary which he committed August 22 and 23, 1988. Defendant then applied for sentencing under section 10 — 101 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (111. Rev. Stat. 1987, ch. 1111/2, par. 6360 — 1). On January 2, 1990, the court denied defendant’s election under the Act and sentenced him to concurrent five-year terms of imprisonment on each count1. These five-year terms were to be served concurrently with concurrent prison sentences defendant was already serving in another county for residential burglary (six years) and theft over $300 (three years). Defendant was convicted of the residential burglary and theft over $300 charges on April 7, 1988, in Menard County.

Defendant filed a motion to vacate his guilty plea under Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) and a motion to correct and reconsider his sentence. The court denied defendant’s motions, and the defendant filed a timely notice of appeal. On appeal, defendant argues that the court erred in finding him ineligible for sentencing under the Act and that the court’s sentence was excessive and should be reduced.

Defendant’s first argument, that the court erred in determining he was not eligible for sentencing under the Act, is without merit. Section 10 — 101(g) of the Act provides that an addict or alcoholic who is convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department of Alcoholism and Substance Abuse unless the person has been convicted of residential burglary and has a record of one or more felony convictions. The court noted that defendant had a conviction for residential burglary and had, through his pleas in the instant case, a record of one or more felony convictions. Thus, the court found section 10 — 101(g) applied, and defendant was ineligible for sentencing under the Act. Defendant contends, however, that only the residential burglary conviction requirement of section 10 — 101(g) was satisfied here because he had no other felony record except the instant charges. Defendant believes the instant charges may not be used to satisfy the “one or more felony convictions” of section 10 — 101(g) to find him ineligible for sentencing under the Act. We need not address this argument, however, as defendant did have a prior felony record, the conviction for theft over $300, which the trial court apparently overlooked. Defendant, therefore, was not eligible to elect sentencing under the Act due to section 10 — 101(g).

Defendant next argues the conviction for theft over $300 cannot be used as the felony to satisfy the “one or more felony” requirements of section 10 — 101(g) because the conviction arose from the same incident as the residential burglary conviction. A similar argument was raised in People v. McCray (1983), 116 Ill. App. 3d 24, 451 N.E.2d 985. In McCray, the trial court found the defendant ineligible for sentencing under the Act’s predecessor statute, section 8 of the Dangerous Drug Abuse Act, because of his two previous convictions for crimes of violence. Section 8(c) of the Dangerous Drug Abuse Act provided that an addict charged with, or convicted of, a crime was ineligible to elect treatment instead of prosecution or probation if the addict had a record of two or more convictions for crimes of violence. (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.8(c).) The defendant in McCray argued that two or more convictions resulting from the same incident should count as only one conviction under section 8. The appellate court disagreed and noted the unambiguous language of the statute and the plain meaning of the word “conviction.”

In the instant case, defendant argues that McCray is not on point because the crimes in McCray were crimes of violence. Defendant further argues that because residential burglary is closely associated with theft, the two should not be separate convictions for the purposes of the Act. However, the language of the Act does not reveal any intention of the legislature to disqualify a felony conviction because it occurred at the same time of the residential burglary. Specific words in a statute, not defined by the legislature, will be assumed to have their ordinary and popularly understood meaning. (People v. Fink (1982), 91 Ill. 2d 237, 240, 437 N.E.2d 623, 624.) The word “conviction” as used throughout the Criminal Code of 1961 results from a judgment or sentence upon the finding of guilty to “an offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 5.) Even though the convictions for residential burglary and theft over $300 arose from the same incident, each was for a separate offense based on a different physical act. Section 10 — 101 of the Act unambiguously refers to convictions without regard to whether they arise from the same course of conduct. We cannot restrict or enlarge the plain meaning of an unambiguous statute. (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 133,302 N.E.2d 313, 316.) Defendant has separate convictions for residential burglary and a felony and was thus not eligible for sentencing under the Act.

Defendant next argues that the sentences imposed were excessive and should be reduced. This argument is also without merit. Defendant believes that considering his past record (consisting of only misdemeanors prior to the residential burglary conviction), his age, and his drug problem, the court abused its discretion in sentencing him to five years’ imprisonment on each count. Specifically, defendant believes the court failed to consider his rehabilitative potential.

A sentence imposed within statutory guidelines should not be disturbed on review as excessive unless there has been an abuse of discretion or the sentence is greatly at variance with the purpose of the law. (People v. Michels (1979), 72 Ill. App. 3d 182, 390 N.E.2d 927.) This is true because the trial court is best suited to tailoring a sentence to fit the needs of the case. (People v. Brooks (1989), 179 Ill. App. 3d 767, 534 N.E.2d 1063.) The permissible sentencing range for burglary is three to seven years. (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1, 1005 — 8—1(a)(5).) Defendant received a sentence of five years. The record shows that the trial court properly weighed aggravating and mitigating factors before imposing the concurrent five-year sentences. No abuse of discretion occurred. Accordingly, the sentences are affirmed.

Affirmed.

LUND and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re K.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Leslie Smith, Respondent-Appellant). — In re K.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Walter Smith, Respondent-Appellant). — Ira re K.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Leslie Smith, Respondent-Appellant). — Ira re K.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Walter Smith, Respondent-Appellant).
    Fourth District
    Nos. 4 — 90—0021, 4 — 90—0022, 4 — 90—0140, 4 — 90—0141 cons.
    Opinion filed September 25, 1990.

      Larry Silkwood, of Urbana, for appellant Leslie Smith.
    Lynne R. Feldman, of Kirtley-Pavia-Marsh, of Urbana, for appellant Walter Smith.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Betsy Bier and James Kuehl, Assistant Public Defenders, of Urbana, guardians ad litem.

   JUSTICE STEIGMANN

delivered the opinion of the court:

Section l(D)(m) of the Adoption Act (111. Rev. Stat. 1989, ch. 40, par. 1501(D)(m)) defines “unfit person” as “any person whom the court shall find to be unfit to have a child” because of the “failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under the *** Juvenile Court Act of 1987.” These consolidated cases raise this question: Does section l(D)(m) apply to a parent who has failed to make reasonable progress toward the return of a child even though that parent is not the parent who earlier had been found to be abusive or neglectful of the child in question? We answer that question in the affirmative and, for the reasons later discussed in this opinion, we affirm the orders of the trial court terminating the parental rights of both parents as to all three children and appointing a guardian with the authority to consent to their adoption.

I. The Procedural History Of The Case

On May 12, 1988, the State’s Attorney of Champaign County filed a three-count petition alleging neglect under the Juvenile Court Act of 1987 (Juvenile Court Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.). Leslie Smith and Walter Smith, the appellants in these consolidated cases, were designated the respondent parents in that petition, and their three children were designated the respondent minors. (Because the children all have the same initials — K.S.—we will refer to them by the first two letters of their first names.) The three respondent minors in the May 1988 petition and their ages at that time are KW, then seven years old; KY, then four years old; and KA, then five months old. Count I of the petition alleged that KW was neglected by reason of being a minor under 18 years of age whose parent, Leslie Smith, “does not provide the minor the education required by law.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(a).) Count II alleged that all three children were neglected by reason of being minors under 18 years of age whose parent, Leslie Smith, “does not provide the proper or necessary support for the said minors.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3(l)(a).) Count III alleged that all three children were neglected by reason of being minors under 18 years of age “whose environment is injurious to their welfare when they reside with their mother, Leslie Smith.” (Ill. Rev. Stat. 1989, ch. 37, pars. 802 — 3(l)(a), (l)(b).) None of these three counts made any reference to allegations of abuse or neglect committed by respondent father, Walter Smith.

In October 1987, Walter Smith was imprisoned, due to his conviction for possession of a controlled substance, cocaine, with intent to deliver. However, in May 1988, when the neglect petition was filed, Walter was a work-release prisoner in the Urbana Community Correctional Center of the Illinois Department of Corrections.

A shelter-care hearing was held on May 12, 1988. At its conclusion, the minors were ordered placed in the temporary custody of the guardianship administrator of the Illinois Department of Children and Family Services (DCFS).

All five respondents were served with summons, separate counsel were appointed for the respondent parents, Walter and Leslie, and a guardian ad litem was appointed for the respondent minors.

On June 22, 1988, the adjudicatory hearing on the neglect petition was conducted, and the court entered findings in favor of the petitioner on counts I and III, finding the children to be neglected. However, the court entered a finding against the petitioner on count II. Both Walter and Leslie were present at the adjudicatory hearing with their respective counsel. At the conclusion of the adjudicatory hearing, DCFS was ordered to conduct a home and background investigation and to prepare a written dispositional report for use at the dispositional hearing, which was then allotted for July 26, 1988. The court also directed that the shelter-care order remain in full force and effect pending the dispositional hearing.

Because the finding that these children were neglected minors is not before us on appeal, we only need to review the evidence presented at the adjudicatory hearing on the neglect petition to the extent necessary to put subsequent proceedings into context. A portion of that evidence demonstrated that on at least one occasion drugs and drug paraphernalia were lying about the house, along with 20 to 25 razor blades, at a time when the children were playing inside the premises with access to these items. On other occasions, the children, including then two-year-old KY, were permitted to play outside the house without any supervision. Further, when KY was three years old, she was locked in the family’s residence with no one else inside. There was also evidence presented that Leslie went shopping with three-year-old KY to a local K mart at a time when Leslie was in such a drug stupor that she was unable to stand, lying instead across her shopping cart for support. The police officer who was called to the scene testified that Leslie was under the influence of drugs and barely able to keep her eyes open as she conversed with the officer.

At the dispositional hearing conducted on July 26, 1988, Walter and Leslie were again present with their respective counsel. The court formally adjudicated all respondent minors to be wards of the court and appointed the guardianship administrator of DCFS as guardian of the minors with the power to place them. In accordance with section 2 — 27(1) of the Juvenile Court Act (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 27(1)), the court'specifically found that “the respondent mother is unfit for reasons other than financial circumstances alone, to care for, protect, train or discipline the respondent minors and the respondent father is unable to do so.” (Emphasis added.)

At the conclusion of the dispositional hearing, the court set forth detailed directions to the respondent parents of what they must do in order to have their children returned from foster placements. Before stating those directions, however, the court spoke directly to the parents and stated, in part, the following:

“[M]y concern here for Mr. and Mrs. Smith is that Mr. Smith won’t allow his own rather unrealistic view of his marriage and Mrs. Smith’s use and abuse of controlled substances, to cost him his children. If things aren’t corrected and corrected very quickly, Mr. Smith’s going to end up in my judgment, without a wife and without his children. ***
lam*** absolutely convinced that Mrs. Smith has serious ongoing drug problems and drug dependency that is in serious need of attention. *** And, the volume of evidence that I heard at the adjudicatory hearing, all indicated someone who is having a terrible struggle with drugs. *** The first ray of hope I would see here would be a genuine admission by Mrs. Smith she’s got a drug problem. Without that step, I see no hope for any progress from Mrs. Smith. And, I see no hope for return of the custody of the children to her.
That, of course, gives Mrs. Smith a real tough decision to make. It gives you a real tough decision to make, Mr. Smith. And, unless and until Mrs. Smith acknowledges she’s got a drug problem, *** she’s not even going to come close to a return of the children to her custody. And, that leaves me with the only alternative of your custody, at such time as you’re finally released from the work release program and in a position to exercise custody.
Now, I am just warning you, you may be looking at the very unpleasant and, frankly, horrible choice of living with your children or living with your wife. But, right now, you’re not going to be able to do both. *** Unless Mrs. Smith starts to address the problem, I’m not sending those children back to her.
* * *
And, what I mean is this, and it’s real important that both you and Mr. Smith understand this. The law provides that where children are removed from the custody of parents, and the parents fail to make reasonable efforts to correct the problems, and the parents fail to make reasonable progress towards correcting the problems, *** for 12 months from the date that the judge found the children were abused or neglected, the State has the right to come to court and ask that judge to terminate parental rights and authorize the Department of Children and Family Services to consent to the child’s adoption. What that means is, if you fail to make reasonable progress, if you fail to make reasonable efforts, either one, after a year from the adjudicatory hearing, the last hearing, the State can come in and ask that I terminate your parental rights. If that happens, you have no more right to ever see these children again, to have any contact with them, to hear from them, to know whether they’re alive or dead, sick or well, adopted or in foster care.” (Emphasis added.)

The court then appropriately admonished both respondent parents of their right to appeal the court’s findings and its placement of the children in foster homes. However, no appeal of those orders was ever taken by either parent.

On September 25, 1989, the State’s Attorney filed a petition seeking a finding of unfitness and a termination of the parental rights of both respondent parents. That petition alleged that Walter and Leslie were unfit persons within the meaning of section l(D)(m) of the Adoption Act because they had failed to make reasonable progress toward the return of their children to them within 12 months of the adjudication of neglect. On October 31, 1989, the State’s Attorney filed a count 11 to the supplemental petition, alleging that Walter was an unfit person under section 1(D)(Z) of the Act, “because he has failed to maintain a reasonable degree of interest, concern or responsibility” as to the respondent minors. Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(Z).

The adjudicatory hearing on the supplemental petition was conducted on October 31, 1989, and both respondent parents, having been duly served, appeared personally and by their separate counsel. At that hearing, the court found by clear and convincing evidence that both respondent parents were unfit persons within the meaning of section l(D)(m) of the Act, “because they have failed to make reasonable progress toward the return of the above-named minors to them within 12 months of the adjudication of neglect.” The court found against the petitioner on count II.

At the conclusion of the dispositional hearing on December 28, 1989, the court entered an order terminating the parental rights of both Walter and Leslie as to respondent minors KY and KA, finding that it was in the best interests of these minors that all parental rights be terminated.

Because KW was nine years old at the time of the dispositional hearing, he was aware of the nature of that hearing and, through his counsel, stated his wish that he not be placed for adoption. KW also wished to remain with his sisters. KW’s lawyer said KW was fearful of not seeing his sisters again.

Based upon these representations and some indications that perhaps Walter and Leslie were beginning to change their behavior, the court granted the parents’ request that the dispositional hearing as to KW be continued until February 20, 1990. The court stated its hope that it might find, based upon the activities of the respondent parents in the interim, that their parental rights as to KW need not be terminated. However, after receiving reports and further evidence at the February 20, 1990, dispositional hearing, the court made the same findings regarding KW that it had earlier made with regard to KW’s sisters, thereby terminating the parental rights of both Walter and Leslie as to KW. The orders terminating their parental rights as to all three children are the subject of these consolidated appeals, the December 28 order as to KY and KA in appeal Nos. 4 — 90—0021 and 4— 90 — 0022, and the February 20 order as to KW in appeal Nos. 4 — 90— 0140 and 4-90-0141.

II. The Termination Of The Parental Rights Of Leslie Smith

Leslie argues that the trial court erred in finding her to be an unfit parent under section l(D)(m) of the Adoption Act and also erred in finding that it was in the best interests of the respondent minors that a guardian be appointed with authority to consent to the adoption of each. This court in In re Boolman (1986), 141 Ill. App. 3d 508, 511-12, 491 N.E.2d 1, 3, stated the following:

“A finding of unfitness as the basis for termination of parental rights must be supported by clear and convincing evidence [citation], but will not be disturbed by the reviewing court unless against the manifest weight of the evidence. [Citation.]
In order for respondents to make ‘reasonable progress’ [under section l(D)(m) of the Adoption Act] toward the return of a child, they must make a minimum measurable or demonstrable movement toward that goal.”

We will apply these standards in reviewing the trial court’s orders.

A. The Trial Court’s Finding That Leslie Had Not Made “Reasonable Progress” Toward the Return of the Children.

At the conclusion of the adjudicatory hearing on October 31, 1989, concerning the petition to terminate parental rights, the trial court made extensive findings based upon the evidence it had heard. Instead of setting forth in this opinion the evidence presented at that hearing, we will quote from portions of the trial court’s findings:

“When this case began, the respondent mother was obviously dependent on substances, and the respondent father, of course, was incarcerated. The question is, what progress has been made since then by the parents to supply a drug-free, safe, nurturing home for these children and is that progress reasonable? *** [T]he uncontradicted evidence establishes *** that when the respondent mother was [recently] advised that one of her urine tests yielded a positive result, she acknowledged that she was, indeed, using cocaine, but had cut down substantially. I believe that illustrates rather graphically that the respondent mother has not made progress, reasonable or otherwise. She was addicted to cocaine when this case began, she’s addicted now. *** [S]he has not pursued the aftercare [treatment for her cocaine addiction] that was so urgently offered to her by the Department of Children and Family Services [and others] ***. Unfortunately, she’s in no better position today than she was when this case began.
*** I don’t think anyone could suggest that I could return any of these children to her custody at this time, leaving aside the fact that she is now living in a hotel. Certainly the adverse financial situation in which the respondent mother has found herself throughout the pendency of this case, at one point having her power shut off and now living in a hotel, would suggest that the family funds which have regularly been produced, apparently, by Mr. Smith since he’s been on work release, have been going to something other than housing, and something other than power bills.”

The trial court also noted that Leslie in the past had been so heavily into drug abuse that she was unconscious or semi-comatose much of the day and the children were left to fend for themselves with predictable results.

We agree with the trial court that Leslie had failed to make “reasonable progress” toward the return of these children within 12 months after the adjudication of their neglect. Leslie’s abuse of drugs led not only to the neglect of her children, but endangered them as well. Yet despite the warnings of the trial court and the best efforts of DCFS workers and drug treatment counselors to get Leslie to change her life and kick her drug habit, she had clearly and convincingly demonstrated that she was either unable or unwilling to do so. The trial court’s finding that Leslie had made no progress towards the return of these children by correcting the circumstances that led to their removal is not contrary to the manifest weight of the evidence.

B. The Trial Court’s Finding That It Was in the Best Interests of the Minors That Leslie’s Parental Rights Be Terminated.

Leslie further argues that even if the trial court’s finding that she was an unfit person under section l(D)(m) of the Adoption Act were correct, the appointment of a guardian with authority to consent to the adoption of her children, thereby terminating her parental rights, was in error. Leslie argues that while a parent may be found to be unfit to have the current custody of a child, “that does not necessarily mean that said parent cannot remain the child’s legal parent with the future possibility of the return of the child to that parent.”

Just as a finding of unfitness under section l(D)(m) of the Adoption Act will not be disturbed by a reviewing court unless it is against the manifest weight of the evidence, a finding under section 2 — 29(2) of the Juvenile Court Act that it is in the best interest of the minor that a guardian be appointed and authorized to consent to the adoption of the minor also will not be disturbed unless that finding is against the manifest weight of the evidence. Ill. Rev. Stat. 1989, ch. 37, par. 802-29(2).

Our review of this record demonstrates that the trial court’s finding on this point was not against the manifest weight of the evidence. Indeed, other than the vague hope that perhaps some day Leslie will possess the strength of character to overcome her drug abuse — the root cause for the removal of her children into foster homes in the first place — there is no evidence whatsoever to suggest that the appointment of a guardian with authority to consent to the adoption of these children was not in their best interests.

Given the stakes at issue, proceedings seeking to terminate parental rights must be handled with the greatest care. Because no two cases are ever precisely the same, the trial courts are expected to assess carefully the particular circumstances of each individual case.

In the present case, Leslie argues that the trial court abused its discretion by refusing to grant a 60-day continuance of the dispositional hearing on the question of whether Leslie’s parental rights should be terminated as to the two youngest children after she had been found to be an unfit parent. We disagree, noting that the decision to grant or deny a continuance is left to the sound discretion of the trial court. Indeed, we view with skepticism motions, such as that made here, that a dispositional hearing be continued after a finding of parental unfitness in the hope that perhaps some evidence can be shown that the movant’s parental rights need not be terminated. Such a motion could be made in every case and would have equal validity for requested continuances of 60 days or 6 months. By setting forth a time frame of 12 months after adjudication for a parent to make “reasonable progress” toward the return from foster care of a child found to be neglected or abused, the legislature intended, with good reason, that proceedings involving the termination of parental rights be handled with dispatch. The legislature also intended to give parents a reasonable time to correct the errors of their ways. Typically, as in this case, some or all of the children are of tender years, making them more attractive for adoption than they would be at an older age, and increasing the likelihood of a successful bonding with their adoptive parents at that younger age as well. There is certainly no abuse of the trial court’s discretion in this case in denying a continuance of the dis-positional hearing as to the two youngest siblings.

We note that the trial court did grant the request for a continuance of the dispositional hearing regarding the oldest child, nine-year-old KW. Yet at the subsequent dispositional hearing conducted after that continuance, the court found that it was in the best interest of KW that a guardian be appointed to consent to his adoption as well. The court noted at this hearing that, once again, the parents were talking about getting straightened out “tomorrow” or “soon.” However, the evidence demonstrated that the parents’ circumstances had not improved during the continuance. We agree and find that the court’s order regarding the appointment of a guardian for KW with authority to consent to his adoption is not against the manifest weight of the evidence.

Leslie also argues that the trial court’s appointment of a guardian for KW with authority to consent to his adoption was in error because the DCFS update report filed for that hearing stated that KW was trying to render himself “unadoptable.” The pathetic and unsurprising posture of this nine-year-old child is precisely the reason why courts must act, if at all possible, to terminate parental rights in appropriate cases before the children involved reach an impressionable age. The record shows that the trial court was fully aware of this heart-wrenching situation, but concluded that KW’s best interests lay nonetheless in the hope that at some point he would make “the decision to accept the alternative family since he’ll then know he can’t have the one he dearly wants.” We recognize the difficulty of the decision the court was confronted with, but we view this case essentially as one in which the court appropriately declined to delegate its judgment to a nine-year-old child. The court was fully justified in taking the action it did.

III. The Termination Of The Parental Rights Of Walter Smith

Respondent father, Walter Smith, argues that the trial court erred in finding that he was an unfit parent pursuant to section l(D)(m) of the Adoption Act because he was not the parent who was found to be neglectful of the children to begin with, thereby causing their placement in a foster home. Walter also argues that even if the provisions of section l(D)(m) are applicable to him, the finding that he was an unfit parent was contrary to the manifest weight of the evidence. Last, Walter argues that even if the trial court properly found him to be an unfit parent, the court erred in finding that it was in the best interest of KW, Walter’s nine-year-old son, that a guardian be appointed with authority to consent to his adoption, thereby terminating Walter’s parental rights as to KW. We will address these arguments in turn.

A. The Applicability of Section l(D)(m) to a Parent Who Is Not the Parent Who Earlier Had Been Found To Be Abusive or Neglectful.

As previously noted, the trial court’s findings in 1988 that the three children of Walter and Leslie Smith were neglected minors were based entirely upon allegations regarding Leslie’s conduct. Walter was not mentioned at all in a petition alleging neglect. At the time that petition was filed on May 12, 1988, Walter was a work-release prisoner in the Urbana Community Correctional Center of the Illinois Department of Corrections.

Walter claims that a finding of parental unfitness pursuant to section l(D)(m) of the Adoption Act “presupposes that the parent found unfit was first found to have neglected said minor(s)” under the Juvenile Court Act. Because no allegations or findings of neglect were ever made against Walter, he argues that the State cannot then seek to terminate his parental rights pursuant to section l(D)(m). We disagree.

We first note that Walter was a party to the underlying neglect proceedings. Walter was duly served with summons, appeared, had counsel appointed for himself, and participated in both the adjudicatory and dispositional hearings leading to the court’s finding that his children were neglected minors and the orders making them wards of the court.

Section 2 — 23(l)(a)(2) of the Juvenile Court Act (111. Rev. Stat. 1989, ch. 37, par. 802 — 23(l)(a)(2)) states that minors under 18 years of age found to be neglected may be placed in accordance with section 2— 27 of the Juvenile Court Act. Section 2 — 27(1) provides that the court may commit a minor adjudged a ward of the court to DCFS for care and service if the court finds that:

“[T]he parents, guardian or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that appropriate services aimed at family preservation and family reunification have been unsuccessful in rectifying the conditions which have led to such a finding of unfitness or inability to care for, protect, train or discipline the minor, and that it is in the best interest of the minor to take him from the custody of his parents, guardian or custodian ***.” (111. Rev. Stat. 1989, ch. 37, par. 802-27(1).)

Thus, even when the court has, as here, found one parent to be the cause of the neglect of the children, the court may not place those children with DCFS unless the court first finds that the second parent, living apart from the first parent, is also “unfit or *** unable *** to care for, protect, train or discipline” the children or is “unwilling to do so.”

In the present case, consistent with these statutory requirements, the court at the dispositional hearing on July 26, 1988, placed the children in the custody of DCFS and specifically found not only that the respondent mother was unfit for reasons other than financial circumstances alone to care for, protect, train or discipline the children, but also found that the respondent father was unable to do so.

Even though not required for our resolution of this issue, we note that Walter was personally put on notice by the court at the dispositional hearing that his parental rights could be terminated if he failed to make reasonable progress to have these children returned from foster care. The court even specifically warned him that he may be looking at the “very unpleasant choice” of living with his children or living with his wife.

Just as section 2 — 27 of the Juvenile Court Act provides that the court must find some parental deficiency in both parents if they live apart before children found to be neglected may be placed with the Department of Children and Family Services, section l(D)(m) of the Adoption Act contemplates that one parent or the other must either make reasonable efforts to correct conditions which were the basis for the removal of the children or make reasonable progress towards the return of the children within 12 months after an adjudication of neglect. To hold otherwise might add years to the procedures contemplated by the legislature in which parents of neglected children are given a set time in which to correct serious parenting deficiencies before their parental rights may be terminated.

We find support for this conclusion in section 2.1 of the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, par. 1503), which states the following: “This Act shall be construed in concert with the Juvenile Court Act of 1987, the Child Care Act of 1969, and the Interstate Compact on the Placement of Children.” One of the purposes of the Juvenile Court Act is to provide a stable, secure, and loving environment for all children subject to its provisions, and “in cases where it should and can properly be done to place the minor in a family home so that he or she may become a member of the family by legal adoption or otherwise.” (See Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2.) We also note that the Juvenile Court Act contemplates that a parent shall be a respondent in all proceedings conducted under that Act and shall 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 *** to be represented by counsel.” See Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(1).

Because the Juvenile Court Act intends the involvement of a parent in all proceedings under the Act, and because Walter actually participated in the underlying neglect proceedings through which his children were placed in foster homes, we conclude that Walter was fully subject to the requirements of section l(D)(m) of the Adoption Act regarding “reasonable progress” he had to demonstrate or risk having his parental rights terminated.

Before concluding this discussion, we emphasize that the term “unfit” means very different things when used in the Juvenile Court Act than it does when used in the Adoption Act. Under section 2 — 27(1) of the Juvenile Court Act, a court needs to determine whether a parent, guardian, or legal custodian is “unfit” to care for, protect, train or discipline the minor before the court may place that minor out of the home of such parent, guardian, or legal custodian. The term “unfit” under section 1(D) of the Adoption Act signifies, however, not merely a parent from whom a child may be temporarily removed and placed in foster care, but a parent who is unfit to have any further parental relationship with the child in question. (111. Rev. Stat. 1989, ch. 40, par. 1501(D).) Because the same term — “unfit”—is used in both section 2 — 27(1) of the Juvenile Court Act and section 1(D) of the Adoption Act, it is important for the court and counsel in juvenile court proceedings to be aware of the different meanings of that term depending upon which Act is then involved in the court proceedings.

B. The Trial Court’s Finding That Walter Had Not Made “Reasonable Progress” Toward the Return of the Children.

Walter next argues that the trial court’s finding that he failed to make reasonable progress towards the return of his children from foster care is contrary to the manifest weight of the evidence. In support of this argument, Walter claims that he could not be expected to make much “progress” within the meaning of section l(D)(m) of the Adoption Act because he was an inmate of the Illinois Department of Corrections on June 22, 1988, the date of the adjudicatory hearing, when his three children were found to be neglected minors. This argument, however, fails to take into consideration Walter’s peculiar status as an inmate, namely, that he was a work-release prisoner at the Urbana Community Correctional Center.

The evidence shows that as a work-release prisoner, Walter was able to have extensive contact with Leslie and his children. In July 1988, weekly visits were arranged by DCFS workers for Walter and Leslie to meet with the children every Thursday night at the Urbana Community Correctional Center. In October 1988, Leslie had an apartment for herself and Walter on North Fifth Street in Champaign, and Walter was permitted to go to that apartment two evenings a week for six hours at a time. The weekly visits with the children were moved in October 1988 to the apartment on North Fifth Street. These visits were normally two hours long. Walter was also released from the correctional center during the day in order to continue his employment. In the late fall of 1988, Leslie entered the residential detoxification program of Prairie Center, and after approximately 30 days, she returned to the apartment on North Fifth Street. In the spring of 1989, the power in this apartment was turned off, and the visits were moved to Leslie’s grandmother’s home.

Evidence presented at the adjudicatory hearing on the petition to terminate parental rights showed that DCFS workers constantly admonished both Walter and Leslie regarding the need to establish a drug-free environment for their children before the children could be returned. However, following Leslie’s inpatient treatment at Prairie Center, she did not pursue the outpatient treatment necessary for her to control her drug-abuse problem.

The record reveals that Walter was in almost weekly contact with DCFS workers from the June 1988 adjudicatory hearing in which his children were found to be neglected until the September 1989 filing of the petition to terminate his and Leslie’s parental rights. In July 1989, DCFS workers informed Walter that if he was requesting the return of his children, he could not allow Leslie to reside in the home he established until she was able to verify that she had successfully completed drug-abuse programs and no longer had a drug-abuse problem.

In the summer of 1989, Leslie moved into an apartment on North Fourth Street, and serious problems regarding visitation with Leslie at that residence began to occur. These problems were suggestive of Leslie’s continued drug abuse, and on June 15, 1989, a counselor at Prairie Center evaluated Leslie as “once again cocaine dependent.”

On August 19, 1989, a Champaign police officer had occasion to accompany Robert Mason to the North Fourth Street apartment in which Mason was living, along with Leslie and Jacqueline Frazier, so that Mason could recover some of his property. When the officer entered the apartment, he saw a table with a mirror on it that contained a white powdery substance. Also present on the mirror were a spoon, wire, and assorted drug paraphernalia. A second mirror had a razor blade on it. When the officer found some baggies containing a white powdery substance that tested positive for cocaine, Frazier was arrested.

Other evidence before the court showed that Walter often had weekend passes away from the Urbana Community Correctional Center, in addition to the two weekday passes each week. During the time that Walter was on authorized leave away from the Urbana Community Correctional Center, he was residing, and spending his time, with Leslie. Given all of the circumstances in this case, Walter clearly was aware of (1) the basis for the court’s finding that his children were neglected, (2) the reasons why the court determined that his children should be placed in foster homes away from the parents, (3) the steps that either he or Leslie or the both of them together needed to take within 12 months of the adjudication of neglect in order for his children to be returned from foster care, (4) the ongoing support and assistance being provided on a weekly basis by DCFS workers in an effort to assist Walter and Leslie in meeting the requirements set by the court for the return of their children, (5) Leslie’s failure to appropriately address her drug problem, and (6) the consequences if Walter did not establish an appropriate drug-free residence to which his children could be returned.

We also note the remarks of the trial court on July 6, 1989, at a routinely scheduled review hearing at which the court reviewed the circumstances of its wards, Walter’s and Leslie’s children, in their placement out of the parental home. At that hearing, the court addressed both Walter and Leslie and pointed out that the assistant State’s Attorney had indicated that unless their circumstances improved, the State would be filing a petition to terminate their parental rights. The court once again explained the seriousness of that action and encouraged Walter and Leslie to take steps to ensure that it did not become necessary. The court told both parents that there could be no more missed appointments, no more missed counseling sessions, and no more difficulty by DCFS in contacting them. The court also directed Leslie once again to pursue a regular course of outpatient treatment in order to address her drug problem.

In part II A of this opinion, we quoted at some length from the trial court’s findings regarding Leslie’s failure to make reasonable progress for the return of the children. Without quoting those remarks again, we simply note that some of those remarks are applicable to Walter as well. In addition, the court stated the following regarding Walter:

“For the respondent father, it boils down to this. Obviously I can’t return custody of any of the children to him today because he’s living with the respondent mother. He’s working, so in effect I would be returning custody of the children to the respondent mother, which again, I don’t believe I could responsibly or reasonably do. *** [H]e places me in a position today where to return custody of these children to him is to return custody to the respondent mother. He’s living in a hotel with her. Obviously I can’t do that.
Now, I would expect that during all of this time he was attending the group sessions as part of his work release from the Urbana Community Correctional Center all the time he was working with the family aid specialists *** and going through individualized parent training, I would expect that during all of that time he gained some understanding and some appreciation of the devastation that has been heaped upon his family by drug abuse, particularly that of the respondent mother. I would expect that he would come to understand how emotionally that destroys children, how these children can’t possibly grow up successfully in a home where one of the parents is abusing drugs. *** However, judging by the fact that he has now been at liberty for a month, and judging by the fact that even before he was completely released from the correctional program he was spending more time at home than he was in the correctional center, he resides with the respondent mother. That tells me one of two things. Either he didn’t learn what drug abuse does to children and drug abuse does to families and what happens to children that have to grow up in homes where drugs are being abused, and if he didn’t learn it then he hasn’t made reasonable progress because he wasn’t paying attention; if he learned it, he’s not acting on it, because he’s leaving me in a position where I would have to return the children to a parent and to a home — to a parent who is abusing drugs and a home where drugs are being abused, in which case that’s not reasonable progress either. It is the responsibility of the parent to make reasonable progress. It’s the responsibility of the parent to supply the court with a safe home for the children. He hasn’t done that ***

We conclude that the above findings of the court are reasonably based upon the evidence presented at the adjudicatory hearing on the petition to terminate parental rights and are not against the manifest weight of the evidence. Boolman, 141 Ill. App. 3d at 511, 491 N.E.2d at 3.

As a possible explanation for Walter’s failure to take appropriate action to establish a drug-free home to which his children could return, we note that evidence presented at the dispositional hearing on the question of parental termination revealed that Walter still believed that the drug-abuse counselors at Prairie Center “greatly exaggerated” the extent of Leslie’s cocaine abuse.

The opinion of this court in In re E.J.F. (1987), 161 Ill. App. 3d 325, 514 N.E.2d 544, supports our position that Walter’s incarceration (such as it was) is not an excuse for his failure to make “reasonable progress” toward the return of the children from foster placement. In E.J.F., the respondent parent, who was suffering from a mental illness, had spent several months in the county correctional center after the respondent minor had been found to be neglected and placed in a foster home. (E.J.F., 161 Ill. App. 3d at 325, 514 N.E.2d at 546.) Respondent mother argued that her period of incarceration should not be included in the 12-month period under section l(D)(m) of the Adoption Act in which she had to show “reasonable progress” to avoid having her parental rights terminated. In response to that argument, this court stated the following:

“The legislature recognized the interests of both parents and children in setting a specified period of time [in section l(D)(m) of the Adoption Act]. The parents are required to make progress in returning the child to their home. They must do so within a reasonable period of time in order to allow the child the opportunity to be raised in a normal family setting. It is unfortunate that respondent spent several months in the county correctional center without treatment. As for her minor son, the clock did not stop while she was incarcerated. The minor has continued to grow and develop, needing the nurture and care of parents. Respondent’s rights as the natural mother of E.J.F. are important, and a decision to terminate those rights must be made with due care for those rights. The legislature determined that 12 months is a reasonable period to wait for the parent to make demonstrable progress before a finding of unfitness can be made. In this case, the 12-month period passed before the hearing was held on the petition to terminate parental rights. Respondent’s interest does not outweigh the interest of the minor in having a chance for a normal home environment.” (Emphasis added.) (E.J.F., 161 Ill. App. 3d at 330, 514 N.E.2d at 548.)

We reaffirm the views expressed in E.J.F. and find them applicable to Walter’s case.

. The abuse of drugs had been ongoing in the lives of Walter and Leslie for many years prior to the court proceedings in 1988 and 1989. Walter not only was a user of drugs, he was convicted of possession of cocaine with intent to deliver and sentenced to prison. The extent of Leslie’s drug abuse and the extent to which drugs and drug paraphernalia infested their residence have already been described. Given this background, we think the trial court acted appropriately in warning Walter that a drug-free environment would have to be obtained by him before his children would be returned to him, specifically including the exclusion of Leslie from that environment if, as proved to be the case, she was not able to control her drug abuse.

In In re A.D. (1990), 199 Ill. App. 3d 158, 556 N.E.2d 799, this court recently dealt with a juvenile court proceeding (although one not involving termination of parental rights) in which we approved trial court orders that in effect required one parent to establish a residence independent from the other parent until and unless the other parent had taken and successfully completed affirmative steps to address the perverse behavior which was the cause of the removal of the children from the home in the first place. In A.D., we noted that the children involved were entitled to no less, and we emphasized that, “only the courts of this State, through proceedings under the [Juvenile Court] Act, can protect *** children from their abusive or neglectful parents.” (A.D., 199 Ill. App. 3d at 161, 556 N.E.2d at 801.) These same concerns are applicable to the present case.

C. The Trial Court’s Finding That It Was in the Best Interests of the Minors That Walter’s Parental Rights Be Terminated.

Last, Walter argues that the determination at the dispositional hearing that it was in the best interest of KW that Walter’s parental rights be terminated was contrary to the manifest weight of the evidence. The argument Walter makes on this point is essentially the same argument made by Leslie, and for the same reasons we rejected Leslie’s argument, we reject Walter’s. We conclude that the trial court acted appropriately in finding that it was in the best interests of all three children that Walter’s parental rights be terminated and a guardian appointed to consent to their adoption.

For the reasons stated, the judgments and orders of the circuit court are affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.