In re K.H., No. 4-99-0969

4th District, 22 May 2000

JUSTICE KNECHT delivered the opinion of the court:

On November 23, 1999, the circuit court of McLean County entered a permanency order pursuant to section 2-28 of theJuvenile Court Act of 1987 (Act) (705 ILCS Ann. 405/2-28 (Smith-Hurd Supp. 2000)), changing the permanency goal forthe minor, K.H., from "return home" to "substitute care pending court determination." Respondent mother, Chasidy Huff,appeals, arguing (1) the trial court exceeded its statutory authority in changing the permanency goal to "substitute carepending court determination" absent a petition to terminate parental rights filed by the State; (2) the trial court erred infailing to apply a clear and convincing standard of proof to its determination to change the permanency goal; and (3) thetrial court erred in failing to comport with the procedural requirements of section 2-28 of the Act. We affirm but remandwith directions.

I. BACKGROUND

The record before us establishes the following. The female minor, K.H., was born on August 8, 1998. Chasidy Huff is theminor's mother. Zachary Johnson is the father.

On December 9, 1998, K.H., an infant earlier diagnosed with sickle cell anemia, was hospitalized for water intoxication andpossible failure to thrive. The Department of Children and Family Services (DCFS) took protective custody of K.H. onDecember 10, 1998.

The State filed a petition for adjudication of wardship on December 14, 1998, alleging K.H. was a neglected minor asdefined in section 2-3 of the Act (705 ILCS 405/2-3 (West 1998)). The petition alleged respondent mother created asubstantial risk of physical injury to the infant in that she repeatedly fed water to K.H., after having been instructed bymedical personnel not to so do. The petition further alleged respondent's actions resulted in the infant's water intoxication.

An initial report filed with trial court by DCFS indicated K.H. had previously been diagnosed with sickle cell anemia, andrespondent mother frequently failed to take K.H. to scheduled visits with her doctor. In addition, respondent mothervoluntarily discontinued K.H.'s penicillin, after having been informed by her pediatrician K.H. would need to take themedication until she saw a specialist. During K.H.'s hospitalization for water intoxication, respondent once again fed waterto K.H. after being instructed by hospital staff not to do so. Based on this evidence, the trial court placed temporary custodyof K.H. with DCFS.

At the adjudicatory hearing on January 21, 1999, respondent mother admitted to the allegation of neglect due to substantialrisk of personal injury resulting from water intoxication. The trial court adjudicated K.H. a neglected minor and foundrespondent father in default due to his failure to appear.

The trial court held a dispositional hearing on March 12, 1999. Evidence before the trial court included a dispositionalreport filed by DCFS on March 5, 1999. This report reiterated the findings of a December 14, 1998, report andrecommended guardianship of K.H. be placed with DCFS until respondent could meet minimum parenting standards.Following the hearing, the trial court made K.H. a ward of the court and transferred guardianship to DCFS with authority torequest and consent to routine medical procedures. The trial court adopted the permanency goal recommendation of DCFSof "return home within 12 months" and ordered K.H. remain in foster care until successful completion of reunificationservices. The trial court found respondent father unfit, but declined to make a fitness determination as to respondent mother.

The trial court held a permanency review hearing on September 3, 1999. Respondent mother testified and other evidenceincluded a permanency review report filed on August 20, 1999. The evidence established the following. On July 25, 1999,respondent gave birth to her second child, K.B., a boy, but failed to notify the hospital of DCFS involvement and of thehistory of sickle cell anemia in her family. Respondent acknowledged she received an unsatisfactory rating regarding herprogress toward the goal of "return home within 12 months" based on her failure to attend all appointments pertaining toK.H.

The evidence presented further revealed K.H.'s "extremely fragile health," establishing she had been hospitalization over 10times in the first year of her life. The permanency review report detailed K.H.'s propensity to move swiftly into medicalcrises, noting the need to constantly monitor her moods, movements, and temperature. This report further noted the criticalissue of respondent's inability to parent a "medically complex child." At the conclusion of the hearing, the trial court foundthe goal of "return home within 12 months" had not been achieved, but ordered continued services consistent with that goal,pending a permanency review hearing.

The trial court held a second permanency review hearing on November 23, 1999. Two child welfare specialists with theBaby Fold, a private organization selected by DCFS to provide services to respondent, testified at the hearing: Laura Dick,the caseworker assigned to respondent through October 12, 1999, and Ann Crump, respondent's current caseworker. Inaddition, respondent testified on her own behalf. Other evidence before the trial court included a permanency review reportfiled by the Baby Fold on October 12, 1999.

The evidence before the trial court established the following. During September and October of 1999, K.H. had beenhospitalized approximately three times. On September 2, 1999, respondent arrived late to a dermatology appointment forK.H. On September 10, 1999, respondent arrived 30 minutes late to a scheduled hospital visit with K.H. On September 13,1999, the foster mother reported to respondent K.H. had been diagnosed with pneumonia, but respondent did not call tocheck on K.H. in the days following the diagnosis. On September 15, 1999, respondent arrived 25 minutes late to ascheduled visit with K.H. in the hospital. Within minutes of being told K.H. had a temperature of 102.6 degrees, respondentleft the visit early, stating she had to catch a bus. On September 21, 1999, respondent canceled a scheduled in-homeservices visit, indicating she had personal problems she could not discuss. On October 5, 1999, respondent informed DCFSshe would not be available for her appointment that day, nor would she be available for appointments on Tuesdays orWednesdays. That same day, respondent's caseworker discovered respondent at home at the time of her scheduledappointment. The dispositional report filed by the Baby Fold recommended both respondent mother and father be foundunfit, but that the permanency goal remain "return home within 12 months."

Further evidence before the trial court included respondent's testimony wherein she recanted her previous admission to theallegation of the neglect in the State's petition. At the close of evidence, the trial court found the goal of "return home within12 months" had not been achieved. The trial court found respondent mother unfit and changed the permanency goal to"substitute care pending court determination." This appeal followed.

II. ANALYSIS

Respondent mother's first contention on appeal is the trial court exceeded its statutory authority under the Act (705 ILCS405/1-1 et seq. (West 1998)) by ordering the permanency goal of "substitute care pending court determination," absent arequest for termination in the State's petition and in advance of the State's motion to termination. Respondent's contentioncalls into question the authority granted to the trial court by section 2-28 of the Act (705 ILCS Ann. 405/2-28 (Smith-HurdSupp. 2000)), which governs the procedure for selecting a permanency goal.

Section 2-28 of the Act (705 ILCS Ann. 405/2-28(2) (Smith-Hurd Supp. 2000) (as amended by Pub. Act 90-608,