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In re Jacob K.
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-0909, 4-02-0910 cons. Rel
Case Date: 06/30/2003

NOS. 4-02-0909, 4-02-0910 cons.

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


In re: JACOB K., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
                Petitioner-Appellee, ) Logan County
                v. (No. 4-02-0909) ) No. 00JA13
MELISSA FAULKNER, )
                Respondent-Appellant. )

)
In re: ALIXANDRA F., a Minor ) No. 00JA14
THE PEOPLE OF THE STATE OF ILLINOIS, )
                Petitioner-Appellee, )
                v. (No. 4-02-0910) ) Honorable
MELISSA FAULKNER, ) Charles M. Feeney,
                Respondent-Appellant. ) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

Respondent, Melissa Faulkner, appeals from the order ofthe circuit court of Logan County finding her an unfit parent andterminating her parental rights. Respondent argues (1) that thetrial court violated her rights to due process, and (2) the trialcourt's findings were against the manifest weight of the evidence. We reverse.

I. BACKGROUND

On March 2, 1999, the State filed a petition in PeoriaCounty for adjudication of wardship with respect to respondent'sminor children, Alixandra F. (born November 30, 1992) and JacobK. (born March 16, 1996). The petition alleged that Jacob was anabused minor in that his father, Wesley Kile (not a party to thisappeal), hit Jacob in the face causing a bruise (count I) andthat both Jacob and Alixandra were neglected minors in that theirenvironment was injurious to their welfare based upon the aboveincident of abuse (count II). On June 10, 1999, the trial courtin Peoria County entered an order for shelter care. The childrenremained at home with respondent. At the shelter-care hearing,respondent admitted the allegations in the petition and agreed tokeep the children away from Jacob's father.

On September 9, 1999, the trial court entered adispositional order placing the children under the guardianshipof the Department of Children and Family Services (DCFS). Thetrial court found Jacob's father unfit based upon proof of thepetition and his lack of cooperation with DCFS. At the time, thetrial court expressly reserved a ruling on respondent's fitness. The court ordered both parents to cooperate with DCFS and tocomply with the requirements contained in their client serviceplans. Respondent's plan required that she (1) undergo a psychological evaluation, following all recommendations containedtherein, (2) engage in individual counseling for domestic batteryand sexual abuse, (3) attend parenting classes, and (4) submit torandom drug tests. (The later requirement was apparently imposedonly because respondent, an epileptic, suffered a seizure in opencourt.) Respondent retained custody of both children.

In April 2000, respondent moved from Peoria County toLogan County; therefore, the case was transferred to CatholicSocial Services (CSS) in Lincoln, Logan County, Illinois. OnApril 17, 2000, after her move, respondent voluntarily relinquished custody of her children to DCFS. Due to her epilepticseizures, respondent felt that she was unable to properly carefor the children.

On November 5, 2001, the State filed a petition toterminate respondent's parental rights, alleging she was an unfitparent pursuant to section 1(D)(m)(iii) of the Adoption Act (750ILCS 50/1(D)(m)(iii) (West 2000)) in that she failed to makereasonable progress toward the return of the children during anynine-month period after the end of the initial nine-month periodfollowing the adjudication of the children as neglected or abusedminors under section 2-3 of the Juvenile Court Act of 1987(Juvenile Court Act) (705 ILCS 405/2-3 (West 2000)).

On March 14, 2002, respondent filed a motion to dismissthe State's termination petition, alleging that because the trialcourt did not find respondent unfit as required by section 2-27(1) of the Juvenile Court Act (705 ILCS 405/2-27(1) (West2000)) in the order of adjudication, the court could not proceedon the petition to terminate. On March 14, 2002, at the hearingon respondent's motion, the trial court denied respondent'srequest for relief.

On March 14, 2002, the trial court began to hearevidence on the State's petition to terminate. Bambi Downing,the CSS caseworker, testified that she received this case fromDCFS upon respondent's move from Peoria to Lincoln in April 2000. When Downing received the case, respondent had recently givenbirth to her third child, whom she gave up for adoption. Respondent had also already completed the court-ordered psychologicalevaluation. Downing testified that respondent visited herchildren regularly. In August 2000, respondent moved to Connecticut after she was evicted from her apartment in Lincoln becauseof her inability to pay rent. After respondent's move, Downingcontacted an investigator with the Connecticut Department ofChildren and Families, who informed her that respondent washomeless. Downing was unable to contact respondent from mid-Julythrough mid-November 2000. Because of the lack of communication,Downing rated respondent's progress unsatisfactory on her February 19, 2001, service plan. Respondent's reason for moving toConnecticut was to reconnect with her birth mother and to seektreatment for her epilepsy at the Epilepsy Research Foundation inConnecticut. Because respondent was involved with the epilepsyfoundation, Downing gave respondent a satisfactory rating on herservice plan pertaining to treatment.

Downing testified that respondent had begun, but hadnot completed, domestic-violence counseling and parenting classeswhile living in Lincoln. Downing told respondent that CSS wouldcontact the Interstate Compact Unit in Connecticut to help herwith services there. However, Downing later learned that theInterstate Compact Unit was only for children's services. Downing told respondent that she would have to seek out serviceson her own. Downing contacted respondent's counselor in Connecticut, who reported to Downing that respondent initially failed tokeep her appointments but had not missed any in the last couplemonths. Downing also received confirmation that respondent hadsuccessfully completed an eight-week parenting class in July2001. Downing rated respondent unsatisfactory on her domestic-violence counseling objective.

Downing testified that respondent stayed in touch withher children initially through weekly telephone visits facilitated by CSS. No telephone visits occurred between mid-Julythrough mid-November 2001, when Downing lost contact with respondent. Respondent later informed Downing that she was homelessand without a phone during that time. Kerri McAvay, a caseworkerwith the Epilepsy Foundation of Connecticut, contacted Downingand informed her that respondent wanted to resume the telephonevisits with her children. Downing agreed. Downing testifiedthat she discussed with respondent the necessity of completingthe tasks required by her service plan or she risked having herparental rights terminated.

Although she knew respondent had applied for federaland state assistance and had worked several jobs, Downing ratedrespondent unsatisfactory on the requirement of obtaining a legalsource of income because Downing had not received proof fromrespondent. Downing admitted that some of the unsatisfactoryratings were due to her inability to verify the facts. Downingadmitted she did not ask McAvay for assistance in verifyinginformation.

Respondent testified she had suffered from epilepsysince she was a child. Respondent suffered seizures despitetaking medication and therefore was prevented from driving,maintaining employment, and caring for her children.

Respondent moved from Peoria to Lincoln near her ex-husband, Alixandra's father, and his wife, Michelle. In April2000, respondent voluntarily placed her children with DCFS due toher epilepsy problems. DCFS placed Jacob in the foster care ofWayne and Kathy Boatman and Alixandra with her father.

In August 2000, respondent moved to Connecticut withthe hope that she would receive better medical treatment. Shehad received treatment in Connecticut as a child. She testifiedthat she left her children in Illinois because she did not knowwhat to expect in Connecticut, worried about their stability,wanted to avoid the dislocation from their fathers, and felt itwas in their best interest to stay together in Illinois.

Respondent lived with her mother for only one month inConnecticut. Respondent described her mother as mentally ill. She then lived in an apartment and worked at various jobs. InFebruary 2001, respondent gave birth to a boy, her third child. Respondent gave him up for adoption because she felt she wasunable to properly care for him. At the time, she was homelessand without access to a phone. However, while she was homeless,she completed the parenting classes ordered by the trial court.

In August 2001, respondent contacted the EpilepsyFoundation of Connecticut and was assigned to a caseworker, KerriMcAvay. McAvay helped respondent get appropriate medical carewith a specialist at Yale Medical Center, established counselingservices, and arranged for respondent to receive public assistance. Respondent met a friend, Danny Patton, with whom shebegan to live. With her medical condition under control, respondent was hopeful of moving back to Illinois and regaining custodyof her children. During her stay in Connecticut, respondentremained in contact with her children through telephone visitsarranged by CSS.

Respondent had made great strides with her medicaltreatment and completed her family and domestic-violence counseling. Respondent admitted that she had been dropped by an individual counselor due to missed appointments but then successfullysought treatment from another counselor.

Respondent testified she planned to return to Illinois. She admitted that it might take up to six months to return, butshe wanted to get her financial and medical assistance in placebefore returning because she did not want to recreate the problems she had in Illinois and be left with no source of income andno housing.

After considering the evidence and arguments of counsel, the trial court found that respondent had failed to makereasonable progress toward the return of the children during anynine-month period after the end of the initial nine-month periodfollowing the adjudication of neglected or abused minor undersection 2-3 of the Juvenile Court Act. The trial court stated,"This is not a case about reasonable efforts. There's no assertion made that mom failed or didn't fail either way to makereasonable efforts. This is about whether reasonable progresswas made." The trial court found respondent lacked credibility. The court also questioned the quality of work done by CSS andDCFS, but stated, "This isn't their child. This is the mother'schild, and it is incumbent upon the parents to step up to theplate and perform. That is what is required, period." The trialcourt found respondent unfit pursuant to section 1(D)(m)(iii) ofthe Adoption Act. The court's order included the following:

"This finding is based upon lack of adequatehousing since the [dispositional] order, lackof progress on individual counseling, failureto complete domestic[-]battery and parentingclasses in a timely manner, the mother's ownstatement that she will not be ready to resume parental responsibilities for [six] months to one year from today, and her recognition of her unfitness as evidenced by hersurrender of two children since the[dispositional] order and her statement todaydescribing herself as unfit."

On October 24, 2002, the trial court conducted a best-interest hearing. Downing testified that Alixandra was initiallyplaced with her father and his wife, Michelle, and their son. After two months, Alixandra's father and his wife requestedAlixandra be placed in another foster home while they searchedfor a larger home. They had difficulties in having Alixandrashare space with their son. Alixandra was placed in theBoatmans' home, with her brother, Jacob, for 15 months. Afterher father purchased a larger home, she moved in with him and hiswife. Alixandra was doing well in their care. They expressed adesire to adopt her. Jacob was doing well in foster care withthe Boatmans, who expressed a desire to adopt him as well.

Downing had recently spoken to the children about theirmother. Alixandra wanted to visit her mother more often, andJacob wanted the visits to continue. Downing testified thatrespondent and her children showed a great deal of affection foreach other. Their phone visits lasted a full hour and the children talked about school, their friends, and Jacob loved to tellhis mother jokes. The children apparently enjoyed talking withtheir mother. Downing opined that although respondent had maintained interest in her children, she had failed to make reasonable progress toward the children's return.

Linda Lobue, from the Illinois Epilepsy ResourceCenter, testified that she was working with respondent and McAvayto obtain housing, public assistance, and medical care for respondent in Springfield, Illinois. She testified she had beenwith respondent when she visited with her children in March 2002. She said the children "jumped out of the car and ran over to[respondent] calling her [']mommy['] and hugged her and wereextremely excited to see her." She further stated that respondent had returned to Illinois and was staying at a shelter inSpringfield until she could obtain other housing. When asked whyrespondent did not get these services in the past, Lobue replied,"Well, [to] access services you either need to be able to driveback and forth or get a ride back and forth, and that's a problemif you don't drive or you don't have a car. We run into that allthe time with our clients who live in rural communities or ruralareas getting to services because you don't--you don't just goonce and it's set up. You have to go back and forth."

Respondent testified that she had recently moved toSpringfield, Illinois, and was temporarily living in a shelter. Her move was delayed due to the necessity of emergency surgerythat she underwent in Connecticut. Respondent expressed herconcern that the children were not living together. She felt herchildren were bonded to her; however, she knew she needed areliable income to be able to raise them properly. The trialcourt found that it was in the children's best interest to terminate respondent's parental rights. This appeal followed.

II. ANALYSIS

Respondent contends that the trial court violated herdue process rights under the state and federal constitutions(U.S. Const., amend. XIV; Ill. Const. 1970, art. I,

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