In re D.M.
State: Illinois
Court: 3rd District Appellate
Docket No: 4-97-0982
Case Date: 08/17/1998
No. 4--97--0982
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
IN THE INTEREST OF ) Appeal from the Circuit Court
D.M., W.M., and L.L., ) for the 10th Judicial Circuit
Minors, ) Peoria County, Illinois
)
(THE PEOPLE OF THE )
STATE OF ILLINOIS, )
)
Petitioner-Appellee, ) No. 94--J--346
)
v. )
)
BETTY M., ) Honorable
) Michael Brandt,
Respondent-Appellant). ) Judge Presiding
PRESIDING JUSTICE HOMER delivered the opinion of the court:
The respondent, Betty M., appeals the trial court's
determination that she is an unfit parent and its subsequent
decision to terminate her parental rights. We affirm.
FACTS
Betty M. is the biological mother of four children: P.W.
born July 1, 1991; D.M. born February 16, 1993; W.M. born July 1,
1994; and L.L. born December 20, 1996. This appeal involves the
termination of Betty's parental rights to D.M., W.M., and L.L.
Her parental rights to P.W. were terminated in previous
proceedings and are not the subject of this appeal.
On September 20, 1994, D.M. and W.M. were adjudicated
neglected. 705 ILCS 405/2--3(1)(b), (c) (West 1994). The
petition for neglect was based upon the following allegations,
which were admitted by Betty: that in 1993, Betty had been found
unfit to parent her first child, P.W., she had not been
subsequently found fit, and her parental rights to P.W. were
terminated; that W.M. was born with cocaine in his system; and
that these facts rendered the minors' environment injurious to
their welfare.
D.M. and W.M. were subsequently made wards of the court and
temporarily placed in foster care. Betty was ordered to undergo
inpatient drug treatment and was only permitted contact with the
children through visitation supervised by the Department of
Children and Family Services (DCFS). In January 1996, the
children were placed with William M., their biological father and
Betty's estranged husband. While the children resided with
William, Betty repeatedly violated the court order prohibiting
unsupervised contact with the children.
William died of heart failure on December 21, 1996, while
the children were still under his care. Without notice to DCFS,
D.M. and W.M. were then moved to Betty's sister's home, where
Betty was living at the time, and Betty began having unsupervised
contact with the children. Also, on December 20, 1996, Betty
gave birth to her fourth child, L.L.
The State filed another petition for neglect against Betty
on January 10, 1997. The allegations in the amended petition,
which were admitted by Betty, were that: D.M., W.M., and L.L.
were neglected; their environment was injurious to their welfare
because their mother was found unfit on two separate occasions
and there had been no subsequent finding of fitness; and Betty's
three-week-old child, L.L., tested positive for cocaine at birth.
The children were adjudicated neglected and placed in shelter
care and Betty's visitation was suspended.
In a supplemental petition, the State sought termination of
Betty's parental rights to all three children. The amended
supplemental petition for termination of parental rights, filed
on February 5, 1997, alleged that Betty was unfit pursuant to
section 1(D)(k) of the Adoption Act in that she was habitually
addicted to drugs, other than those prescribed by a physician,
for at least one year immediately prior to commencement of these
proceedings and that she has given birth to three "cocaine
babies." 750 ILCS 50/1(D)(k) (West 1996); 705 ILCS 405/2--13
(West 1996).
The fitness hearing was held on April 23, 1997. The court
took judicial notice of three prior petitions for neglect to
which Betty had admitted. Also, medical records were admitted
into evidence showing that three of Betty's children, P.W., W.M.,
and L.L., tested positive for cocaine at birth.
Joy Juroff, the DCFS caseworker assigned to this case,
testified that on March 20, 1997, she asked Betty to submit to a
drug test. Because Betty voluntarily admitted that she had
recently used crack cocaine, the drug test was not completed.
Betty testified that she had been addicted to crack cocaine
since 1991. When asked what efforts she had made to resolve her
addiction, she explained that she had completed a 60-day
inpatient treatment program beginning on December 20, 1995. Upon
completing the program, Betty held a job as a temporary day
laborer for a month and a half. Although she did not participate
in the after-care program as was required by the treatment
facility, she claimed that she did not use drugs for four months
after completing treatment. However, she resumed using crack
cocaine on a regular basis in July 1996.
Betty testified that the only other time she voluntarily
abstained from using drugs was a three-week period surrounding
the birth of L.L., from mid-December 1996 to January 1997. After
her social worker suggested treatment again, she entered a 90-day
program in late January 1997. She acknowledged, however, that
after two weeks she was either asked to leave the program or
voluntarily left to clear out her deceased husband's house. She
explained that she wanted to be readmitted to the treatment
program after taking care of William's affairs, but was not
permitted to do so. Betty testified that she continued to use
drugs and that she took no steps toward getting back into
treatment until a few weeks before the subject fitness hearing
when she began to inquire about her treatment options. However,
she admitted that she was still using crack cocaine; in fact, the
last time she had used the drug was one week prior to the
hearing.
In rendering his decision finding Betty unfit, the trial
judge noted her longstanding addiction to drugs, the fact that
she had given birth to three children with cocaine in their
systems, and her continued use of crack cocaine throughout the
neglect proceedings. He noted that it was not until after the
commencement of these termination proceedings that she decided to
attempt treatment again, yet she abandoned those efforts after
just two weeks and returned to using drugs. The judge stated
that he did not find believable her testimony regarding periods
of abstinence from drug use. He found the allegations of
unfitness proved by clear and convincing evidence and set the
case for a best interest hearing.
At the best interest hearing held in June 1997, Betty
testified that she had recently entered a drug treatment program
and had not used drugs in the past 35 days. She testified that
she had made the decision to choose her children over drugs, and
that this time she chose to participate in the rehabilitation
program for herself, unlike in 1995 when she was asked to enter a
program. Her current rehabilitation program includes three to
four months of inpatient treatment, of which she has completed
one month, to be followed by three to four months of intensive
outpatient care.
Betty stated that she believed that she would be ready to be
a parent to her children sometime after January of 1998. She
said that she maintains a two bedroom apartment where she and the
children would live. Betty's only relative living nearby is her
sister who has five children of her own. Betty indicated that
her sister would be willing to help her with the children.
The best interest report completed by Catholic Social
Services described two-year-old W.M. as a very likeable child.
He experienced frequent nightmares and appeared generally tense,
fearful and anxious when he was first placed in foster care;
however, he has since improved. During his two visits with
Betty, W.M. did not appear to know who she was and his reaction
was "distant and weary." Although no family member has come
forward expressing interest in adopting him, his current foster
family expressed a desire to keep him in their family until an
adoptive home becomes available.
The report indicated that four-year-old D.M. has significant
behavior problems that have improved somewhat during his stay in
foster care. He has been diagnosed as autistic and possibly
suffering from cerebral palsy. He has lived with his current
foster family since March 1997. His foster mother reported that
D.M. has become a part of her family and she expressed interest
in adopting him. The report indicated that D.M.'s foster mother
would like D.M. to continue to develop a relationship with his
sibling, W.M., even though they will likely be adopted into
separate families.
Six-month-old L.L. was described in the report as a happy
and healthy child with no current behavior problems. Because
Charles L., L.L.'s putative father, has expressed interest in
gaining custody of L.L., the issue of adoption by his foster
family has not been pursued. The report shows that Charles L.,
who lives in Wisconsin, has attended every hearing and seems
willing to do whatever it will take to gain custody of L.L.
The Catholic Social Services report recommended that Betty's
parental rights be terminated and that D.M. and W.M. be placed
under the guardianship of DCFS for adoption. It recommended that
L.L. also be placed in the guardianship of DCFS until the
feasibility of turning custody over to Charles L. could be
ascertained. Although she considered it unfortunate that the
children would be separated from one another, the guardian ad
litem concurred with Catholic Social Services' assessment of this
case. The trial court also agreed and found that it was in the
best interest of all three children that Betty's parental rights
be terminated. Betty appealed.
ANALYSIS
Betty's first contention on appeal is that the State failed
to prove, by clear and convincing evidence, that she was unfit
due to habitual drug addiction as defined in section 1(D)(k) of
the Adoption Act. 750 ILCS 50/1(D)(k) (West 1996).
A finding of unfitness as the basis for termination of
parental rights will not be reversed on appeal unless it is
contrary to the manifest weight of the evidence. Regan v. Joseph
P., 286 Ill. App. 3d 889, 892, 677 N.E.2d 434, 436 (1996).
Reviewing courts give great deference to the findings of the
trial judge in such instances since the trial judge is in the
better position to observe the witnesses and evaluate the
credibility of the evidence. In re B.C. & W.C., 247 Ill. App. 3d
803, 805, 617 N.E.2d 1207, 1209 (1993).
In the instant case, the allegations of unfitness were based
upon section 1(D)(k) of the Adoption Act which defines an "unfit
person" as:
"any person whom the court shall find to be unfit to
have a child, without regard to the likelihood that the
child will be placed for adoption. The grounds of
unfitness are any one or more of the following:
* * *
(k) habitual drunkenness or addiction to drugs, other
than those prescribed by a physician, for at least one
year immediately prior to the commencement of the
unfitness proceeding." 750 ILCS 50/1(D)(k) (West
1996).
Betty contends that because she had two periods of sobriety
during the year prior to commencement of the fitness proceedings,
the court could not have found her unfit under section 1(D)(k).
We disagree.
We have found no cases directly interpreting the phrase
"addiction to drugs other than those prescribed by a physician"
as it is used in the Adoption Act. However, we may derive its
meaning from cases which have interpreted the term "habitual
drunkenness" used in the same context. See In re Sanders, 77
Ill. App. 3d 78, 82, 395 N.E.2d 1228, 1232 (1979) (finding cases
interpreting the term "habitual drunkenness" as it is used in the
Illinois Marriage and Dissolution of Marriage Act (750 ILCS
5/401(a)(1) (West 1996)) persuasive in interpreting the use of
the term in the Adoption Act).
In Garrett v. Garrett, 252 Ill. 318, 96 N.E. 882 (1911), our
supreme court set forth the often cited definition of habitual
drunkenness:
"an irresistible habit of getting drunk [citation]; a
fixed habit of drinking to excess [citation]; an
involuntary tendency to become intoxicated, which is
acquired by frequent repetition--such a frequent
indulgence to excess as to show a formed habit and
inability to control the appetite [citation]."
Garrett, 252 Ill. at 326, 96 N.E. at 885.
An habitual drunkard has been defined as "a person given to
inebriety or excessive use of intoxicating drink who has lost the
power of will by frequent indulgence to control his appetite for
it." Ash v. Ash, 327 Ill. App. 656, 659, 64 N.E.2d 741, 743
(1946). In Lael v. Warga, 155 Ill. App. 3d 1005, 1013, 508
N.E.2d 1095, 1101 (1987), the court explained that a finding of
habitual drunkenness depends upon determination of whether the
individual had a fixed habit of drinking to excess, and whether
his usage was so frequent as to show an inability to control his
need or craving for alcohol.
Based upon these principles, we interpret "addiction to
drugs" under section 1(D)(k) as the inability or unwillingness to
refrain from the use of drugs because frequent indulgence has
instilled in the person an habitual craving which is manifested
in an ongoing pattern of drug use. As with habitual drunkenness,
we find that evidence of indulgence without intermission is not
necessary to prove drug addiction (See Vesolowski v. Vesolowski,
403 Ill. 284, 287, 85 N.E.2d 695, 697 (1949); Grikietis v.
Grikietis, 319 Ill. App. 216, 217, 48 N.E.2d 775, 776 (1943)),
and the fact that one may voluntarily abstain for short periods
of time will not preclude a finding of drug addiction (See
Holmstedt v. Holmstedt, 383 Ill. 290, 297, 49 N.E.2d 25, 29
(1943)). It is sufficient to show that a person has demonstrated
an inability to successfully gain control over his or her
habitual craving to use the drug.
In the instant case, Betty admitted that she had been
addicted to crack cocaine since 1991. At the time of the fitness
hearing, she had attempted rehabilitation through treatment on
two occasions, neither of which was ultimately successful.
Despite the fact that she claimed to have a desire to change her
ways, she admitted that she continued to use crack cocaine
throughout the pendency of these proceedings and last used the
drug one week prior to the fitness hearing. Further evidence of
the gravity of her addiction is found in the fact that she was
unable to refrain from drug use during three of her pregnancies,
which resulted in the birth of three children testing positive
for cocaine.
Even accepting Betty's testimony that she had two periods of
abstinence from drug use during the previous year, which the
trial court expressly found unbelievable, it would not negate the
overwhelming evidence that she has been dominated by her
addiction for the past six years. Therefore, because we find no
support for Betty's contention that the trial court's finding of
unfitness was against the manifest weight of the evidence, we
affirm.
Betty also argues that the trial court erred in finding that
termination of her parental rights was in the best interest of
her children. Betty contends that the interests of her children
would have been best served by returning them to her. Again, we
disagree.
Although parental rights and responsibilities are of deep
human importance and will not be lightly terminated, the
deference accorded to parental rights does not negate a court's
responsibility to protect minors from neglect and abuse. In re
E.M., 295 Ill. App. 3d 220, 227, 692 N.E.2d 431, 436 (1998).
Therefore, once parental unfitness has been found, all of the
parent's rights must yield to the best interests of the child.
In re T.G., 147 Ill. App. 3d 484, 488, 498 N.E.2d 370, 373
(1986). A trial court's determination that it is in a child's
best interest to terminate the rights of his or her parent is
given great deference and will not be reversed on appeal unless
it is contrary to the manifest weight of the evidence. In re
V.O., 284 Ill. App. 3d 686, 690, 673 N.E.2d 439, 442 (1996).
In the instant case, Betty has failed to point to any
evidence justifying reversal of the trial court's decision. She
suggests that her current 35 days of sobriety demonstrates both a
sincere desire to stop using drugs and an expression of her
recommitment to her children. Her re-entry into a drug treatment
program is commendable, and we hope that Betty will someday have
the personal strength to overcome her drug addiction. However,
in this record there is no evidence to suggest that the
termination of her parental rights and the appointment of a
guardian with the authority to consent to the adoption of these
children was not, in fact, in their best interest. See In re
K.S., 203 Ill. App. 3d 586, 596, 560 N.E.2d 1380, 1386 (1990).
Betty's current attempt at rehabilitation is immensely
overshadowed by the rest of the evidence presented in this case
of her longstanding drug dependency.
Meanwhile, all three of the children are developing well and
located in secure and loving, although separate, foster homes.
L.L.'s putative father who lives in Wisconsin is interested in
obtaining custody of him. D.M., who has special needs, has grown
to be a part of his foster family's home so much so that his
foster parent is interested in adopting him. W.M. is content in
his foster home and his foster parent is willing to keep him as a
part of her family until an adoptive home becomes available.
Based upon all of the evidence in the record, we cannot say
that the trial court's decision to terminate Betty's parental
rights was against the manifest weight of the evidence.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Judgment affirmed.
LYTTON and SLATER, JJ., concur.
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