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In re S.E.
State: Illinois
Court: 4th District Appellate
Docket No: 4-00-0767, 0768 cons. Rel
Case Date: 04/05/2001

NOS. 4-00-0767, 4-00-0768 cons.
April 05, 2001

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

 
In re: S.E., a Minor,
THE PEOPLE OF THE STATE OF ILLINOIS, 
          Petitioner-Appellee,
          v.
BERNICE BLACK, 
Respondent-Appellant.
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In re: L.H., a Minor,
THE PEOPLE OF THE STATE OF ILLINOIS,
          Petitioner-Appellee,
          v.
BERNICE BLACK,
          Respondent-Appellant.
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Appeal from
Circuit Court of 
Vermillion County
No. 98JA121

 

No. 98JA122


Honorable
Thomas J. Fahey,
Judge Presiding.

_______________________________________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion ofthe court:

In August 2000, the trial court entered a permanencyreview order, pursuant to section 2-28 of the Juvenile Court Actof 1987 (Act) (705 ILCS 405/2-28 (West Supp. 1999)), changing thepermanency goal for L.H. (born August 18, 1993) and S.E. (bornSeptember 22, 1998), the minor children of respondent, BerniceBlack, to substitute care pending the court's decision on termination of parental rights. Respondent appeals, arguing that (1)the court's decision to change the permanency goal was againstthe manifest weight of the evidence, and (2) the court erred byfailing to indicate in writing its reason for changing thepermanency goal, pursuant to section 2-28(2) of the Act (705 ILCS405/2-28(2) (West Supp. 1999)). We affirm.

I. BACKGROUND

The record before us establishes the following. InDecember 1998, the State filed a petition for adjudication ofwardship, alleging that respondent failed to provide a clean,safe, and healthy home environment in that she and S.E.'s father,Clarence Ewing, were intoxicated to the point of being unable tosupervise L.H. and S.E. and had a history of failing to providefor respondent's children due to substance abuse. 705 ILCS405/2-3(1)(a) (West 1998). Following a hearing, the trial courtentered an order granting temporary custody of L.H. and S.E. tothe Illinois Department of Children and Family Services (DCFS).

In January 1999, the trial court conducted anadjudicatory hearing at which respondent stipulated to the factscontained in the State's petition. After a February 1999dispositional hearing, the court made L.H. and S.E. wards of thecourt and ordered respondent to cooperate with DCFS and anyservices recommended by DCFS. The court further ordered respondent and Ewing to (1) attend and participate in alcohol-abusetreatment, parenting education classes, and domestic-violenceprograms; and (2) submit to psychological and psychiatric evaluations. DCFS set a permanency goal of returning L.H. and S.E.home.

According to a permanency review hearing report filedin the trial court in September 1999, respondent had made minimalprogress as an outpatient at the Prairie Center. She had testedpositive for alcohol and cocaine within the previous six monthsand had been terminated from participating in group sessions forviolating confidentiality rules. She was participating inparenting classes and had completed a psychological evaluation.

In October 1999, the trial court conducted a permanencyreview hearing and determined that the permanency goal wouldremain return home.

According to a status review report filed in December1999, respondent and Ewing had both been terminated from drug andalcohol treatment at the Prairie Center for nonattendance oruncooperative behavior. Respondent admitted to Dennis Gaugler,the DCFS caseworker assigned to her case, that she continued todrink and had tested positive for cocaine within the previous sixmonths. Respondent had completed parenting classes and thepsychological and psychiatric evaluations. The psychologistreported that respondent either did not understand the seriousness of her problems or did not wish to understand them. She hadnot obtained suitable housing despite the help of a home interventionist and was not employed.

The report also showed that S.E. and L.H. continued tolive in the foster home where they had lived for one year. S.E.was thriving. L.H. was struggling academically but was receivingadditional assistance from the school and her foster parents, whowere tutoring her at home.

A permanency review report filed on May 15, 2000,showed that respondent had completed the intensive phase ofalcohol- and substance-abuse treatment at New Directions Treatment Center (New Directions) and was participating in aftercaretreatment. She had not entered into a domestic-violence program,and she had not found suitable housing. Ewing had not enteredsubstance-abuse or alcohol treatment and had been drinking priorto one of his visits with L.H. and S.E. DCFS recommended thatthe trial court change the permanency goal to substitute carepending the court's decision on termination of parental rights.

A letter from James Calvert, the executive director ofNew Directions, was also filed in May 2000. Calvert reportedthat respondent had been doing well in treatment but manifested asudden change in attitude and behavior after Ewing had beenreleased from prison. Her attendance dropped, her groomingceased, and she stopped attending support group meetings andchurch.

At the June 2000 permanency review hearing, Gauglertestified that L.H. and S.E. had been in the same foster home for17 months and were doing very well. Their foster parents wereinterested in adopting them. Calvert testified that respondent'sparticipation in the aftercare phase of her drug treatment hadbecome inconsistent after Ewing's release from jail. Respondenthad stopped spending time with sober individuals and was spendingtime with drug users. When she attended treatment she was notattentive. Gaugler concluded that she had a high potential forrelapse. At the conclusion of the hearing, the trial court ruledthat the permanency goal would remain return home.

In a status report filed on August 1, 2000, DCFS againrecommended that the permanency goal be changed to substitutecare pending the court's decision on termination of parentalrights and filed another letter from Calvert along with thereport. According to Calvert, respondent was not respondingappropriately to treatment and very seldom participated in groupdiscussions. Her attendance was inconsistent and it appeared tohim that she attended the aftercare treatment only to appease thecourt and DCFS. His agency had been working with respondentsince December 1999, and she still had not obtained housing. Calvert also expressed concern that respondent remained in arelationship with Ewing.

At the August 4, 2000, permanency review hearing,Gaugler testified that DCFS sought to change the permanency goalfor the following reasons: (1) Calvert's report regardingrespondent's substance-abuse treatment was not favorable, and shehad been in treatment for several months; (2) in June 2000, Ewingbattered respondent, requiring stitches in her lip; and (3)respondent and Ewing had not obtained suitable housing. InGaugler's opinion, respondent had not made substantial progresson her goals.

Gaugler further testified that respondent had beenlooking for housing since L.H. and S.E. were removed. She hadbeen offered housing three times but did not have $230 to make adown payment. He explained that DCFS funds are not available tohelp with housing unless the children are to be returned within60 days. Because L.H. and S.E.'s return home was not certain,DCFS housing funds were not available for respondent.

Mary Dickenson, the home interventionist supervisorwith the Center for Children Services, testified regardingrespondent's efforts to obtain housing. Dickenson, who had beeninvolved with respondent's case since December 1997, stated thata couple of weeks before the August 2000 hearing, the DanvilleHousing Authority had contacted respondent about available units. Respondent was told that she would need about $234 for a depositwithin two days to secure an apartment. Respondent was not ableto come up with the money. This had happened on more than oneoccasion. Dickenson had advised respondent to put money asidefor a deposit. She understood that respondent received close to$500 per month in social security benefits and that Ewing worked.

Ewing testified that respondent and he were stayingwith his sister and that their only expenses were $150/month infood, transportation, and rent expenses. He had recently obtained a full-time job and was earning $8 an hour. Ewing alsotestified that respondent did not have the money for the housingdeposit because she had to pay $339 to the housing authority on apast debt. He further testified that at various times Gauglerand Dickenson failed to keep their word to respondent and provideher with the help that they had promised.

After considering the evidence and the arguments ofcounsel, the trial court entered an order changing the permanencygoal to substitute care pending the court's decision on termination of parental rights. The court explained its ruling, inpertinent part, as follows:

"There's been absolutely no participation bythese parents in order to try to get themselves out of their situation and into somestable housing. They knew that from the getgo $309 [sic] was needed to be paid for thisold debt. They didn't do this, so they knewthey weren't getting to get into housingauthority. They've done absolutely nothingon their own and have been pointing the finger at everybody else and it's their problem. It's because of them that we're here, notbecause of Mr. Gaugler or anyone else, andthey've done absolutely nothing on their ownto help themselves, and made absolutely noprogress in the case, and I think the goalneeds to be changed for the benefit of thechildren.

This case has a rather storied history. The adjudication of wardship was January 14thof '99. When the salient factors the [c]ourtrecalls since taking over this call[,] whichwas in March of 1999[,] was that for a relatively substantial period Mr. Ewing was injail. The court, if I recall correctly, keptthis thing open so that Mr. Ewing could showthat he's responsible, reasonable, that hecould make progress. In their wisdom thelegislature has indicated that their reasonable progress from the date of adjudicationis nine months. The Supreme Court recentlyindicated that those nine[-]month periods forthat particular part of the statute would bethe material portion. We have a case wherewe've had the adjudication over 18 monthsago. We're still spinning our wheels. [Respondent's counsel] attempts to blame everybody except where the blame should be[,]which [is on] the parents it would seem tome. Mr. Ewing was testifying that no onewould give [respondent] help. Well, he's thefather. *** He's making $320 a week. She'smaking $500 per month SSI. There's been noplanning whatsoever. For 18 months they'vebeen trying to get some type of housing.

* * *

*** Neither of you have followed thecase service plan nor tried to finish thethings that you have [to do]. I told you twoeight months ago the problem is alcohol anddrugs. *** You haven't made substantialprogress. You're still violen[t]. There'sstill homelessness. There's substance abuse. There's antisocial behavior on both sides andcriminal behavior. There's failure to complywith the case service plan, Prairie Centerand New Horizons, both. For those reasons Ibelieve it's evident that the goal should bechanged to substitute care pending and itshall be.

There's another point that should bemade, that the children have been in substitute care *** for 20 months. One of theprime objectives of the new legislation ***was to give stability to the children.[Twenty] months is long enough to give youpeople time to change, and the evidence israther clear today that the goal of returnhome is not workable, therefore the goal willbe changed to substitute care pending courtdetermination."

The trial court's August 28, 2000, written orderarticulated the court's findings, in pertinent part, as follows:

"The parents *** are unfit for reasonsother than financial circumstances alone tocare for, protect, train[,] or discipline theminors, and appropriate services aimed atfamily reunification and family preservationhave been unsuccessful in rectifying theconditions which have led to such a findingof inability to care for, protect, train[,]or discipline the minors."

The court's order also stated that the court found that it was inthe children's best interest that they remain wards of the court. Accordingly, the court ordered that L.H. and S.E. remain wards ofthe court and granted DCFS the power to place them. The courtfurther ordered that (1) the permanency goal be changed tosubstitute care pending the court's decision on termination ofparental rights and (2) respondent continue to cooperate withDCFS. This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Respondent first argues that the trial court's orderchanging the permanency goal to substitute care pending thecourt's decision on termination of parental rights was againstthe manifest weight of the evidence. We disagree.

A trial court's determination of a permanency goal willnot be reversed on appeal unless it was against the manifestweight of the evidence. In re J.B., 311 Ill. App. 3d 868, 870,726 N.E.2d 9, 11 (2000). Pursuant to section 2-28(2) of the Act,the court must set a permanency goal that is in the children'sbest interest, and the court's determination must include thefollowing factors: (1) the age of the children; (2) the optionsavailable for permanence; (3) the current placement of thechildren and the intent of the family regarding adoption; (4) theemotional, physical, and mental status or condition of thechildren; (5) the types of services previously offered andwhether the services were successful and, if not successful, thereasons the services failed; (6) the availability of servicescurrently needed and whether the services exist; and (7) thestatus of any siblings. 705 ILCS 405/2-28(2) (West Supp. 1999). The court also must consider (1) the permanency goal contained inthe service plan, (2) the appropriateness of the services contained in the plan and whether those services have been provided,(3) whether reasonable efforts have been made by all the partiesto the service plan to achieve the goal, and (4) whether the planand goal have been achieved. 705 ILCS 405/2-28(2) (West Supp.1999).

According to respondent, the record contains insufficient evidence that she was provided with adequate assistance infinding housing. Specifically, she points out that (1) the trialcourt received no reports enumerating the steps that had beentaken to help her find housing, (2) Dickenson testified that shecontacted the Danville Housing Authority only two or three timeson respondent's behalf, and (3) no evidence was presented regarding the exact type of help that respondent received. Respondentfurther alleges that DCFS stopped assisting her in February 2001when it decided that the permanency goal should be changed. Weare not persuaded.

As the trial court pointed out, respondent had 18months in which to make progress toward obtaining suitablehousing. At the time of the August 2000 hearing, respondent wasvirtually no closer to obtaining housing than she had been at theoutset of her case. The court need not be presented with an"enumerated" plan for it to determine that adequate services wereprovided. The record shows that resources were made available torespondent. In particular, a home interventionist was assignedto respondent, and Gaugler testified that on three occasionsrespondent was offered apartments by the Danville Housing Authority but could not take them because she did not have money for adown payment. The record also reflects that respondent was notable to begin her housing search in earnest until she had completed alcohol- and drug-abuse treatment. Respondent opted notto undergo such treatment until January 2000. Accordingly, thecourt's finding that respondent failed to take significantinitiative despite the resources that were made available to herwas not against the manifest weight of the evidence.

Respondent also contends that the weight of the evidence showed that she had made substantial progress on herservice plan goals. We disagree. Eighteen months after L.H. andS.E. were removed, respondent had not entered treatment fordomestic violence and remained in a violent relationship withEwing, evinced by the serious injury Ewing inflicted upon herjust two months before the August 2000 hearing. Although she hadcompleted a drug- and alcohol-treatment program, her attendanceand participation in aftercare treatment were poor, and she wassocializing with drug users. Calvert considered her to be at ahigh risk of relapse.

Moreover, when determining an appropriate permanencygoal, the trial court is obligated to consider the children'sbest interest. 705 ILCS 405/2-28(2) (West Supp. 1999). At thetime of the August 2000 hearing, L.H. and S.E. had been insubstitute care for 20 months with a family that had expressed aninterest in adopting them. S.E. was thriving, and L.H.'s academic performance was improving. Meanwhile, respondent was at ahigh risk of relapsing into drug and alcohol abuse and lackedadequate housing for her family. Given the minimal amount ofprogress respondent made over 18 months' time and her alcohol-and drug-abuse prognosis, we conclude that the court's orderchanging the permanency goal was not against the manifest weightof the evidence.

B. Written Findings

Last, respondent argues that the trial court erred byfailing to indicate in writing its reasons for changing thepermanency goal as is required by section 2-28(2) of the Act. 705 ILCS 405/2-28(2) (West Supp. 1999). Section 2-28(2), inpertinent part, provides: "In selecting any permanency goal, thecourt shall indicate in writing the reasons the goal was selectedand why the preceding goals were ruled out." 705 ILCS 405/2-28(2) (West Supp. 1999). Citing In re K.H., 313 Ill. App. 3d675, 730 N.E.2d 131 (2000), in which this court affirmed a trialcourt's order changing the permanency goal but remanded the causeand directed the trial court to enter written findings pursuantto section 2-28(2) of the Act, respondent urges us to remand hercause for compliance with section 2-28(2) of the Act. We declineto do so.

First, this case is distinguishable from K.H., in thathere, the basis for the trial court's decision is clearly shownby the court's lengthy finding and remarks on the record at theAugust 2000 hearing. In sum, the court cited (1) an overall lackof progress and initiative on respondent's part, (2) respondent'sfailure to find housing, (3) respondent's substance-abuse anddomestic-violence issues, and (4) the best interest of L.H. andS.E. Given that (1) the evidence of record was more than sufficient to support the court's decision and (2) the basis for thatdecision is ascertainable from the record, we hold that we neednot remand this case for entry of more specific written findings.

Moreover, when the record provides an adequate basisfor review of the trial court's ruling, the legislative intentunderlying the writing requirement is not compromised by adecision not to remand. In light of the overwhelming volume ofcases moving through the trial courts and the bare-bones supportstaff at the disposal of those courts, a court's oral pronouncement of its ruling should be viewed as sufficient to comply withsection 2-28(2) of the Act if (1) those pronouncements appear inthe record and (2) they would constitute a sufficient statementof the court's findings if the court had turned to the courtreporter and requested that its oral pronouncement be typed upand printed in the form of an order. In other words, so long assomething exists in the record stating the basis for the court'sdetermination, the writing requirement should be deemed satisfied, regardless of whether the "writing" was prepared by thecourt reporter or the court's administrative staff.

In conclusion, we decline to remand respondent's causefor the entry of a written order in compliance with section 2-28(2) of the Act because the basis for the court's decision isreadily ascertainable from the record.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

KNECHT, J., concurs.

COOK, J., specially concurs.

JUSTICE COOK, specially concurring:

I concur, but I am troubled by an issue not addressedby the parties.

The majority states:

"Moreover, when determining an appropriate permanency goal, the trial court is obligated to consider the children's best interest. 705 ILCS 405/2-28(2) (West Supp. 1999). At the time of the August 2000 hearing, L.H.and S.E. had been in substitute care for 20months with a family that had expressed aninterest in adopting them." Slip op. at 13.

It has been the law that, when the State seeks toterminate parental rights, the court must determine the parent'sunfitness before it may proceed to a consideration of the child'sbest interests. In re Adoption of Syck, 138 Ill. 2d 255, 276,562 N.E.2d 174, 183 (1990). It is improper to take a child fromfit parents because other individuals might do a better jobraising the child. It is not until after a parent has been foundto be unfit that the court may consider evidence of the child'sbest interests. In re M.S., 302 Ill. App. 3d 998, 1003, 706N.E.2d 524, 528 (1999). For that reason, it is necessary intermination cases to conduct a separate best interests hearingafter the parent has been found to be unfit, in which evidencewill be admitted which was not admissible at the fitness hearing. In re J.T.C., 273 Ill. App. 3d 193, 200, 652 N.E.2d 421, 426(1995); In re A.P., 277 Ill. App. 3d 592, 600, 660 N.E.2d 1006,1012 (1996).

Does section 2-28(2) of the Act purport to change thesebasic rules? Can a decision to terminate parental rights be madebefore it is determined that the parents are unfit? Is it nolonger necessary to have a best interests hearing separate fromthe unfitness hearing? As far as I can tell, the statutesdealing with unfitness hearings in termination cases have notbeen changed. Section 4-27(2) of the Act (705 ILCS 405/4-27(2)(West 1998)) still requires a "finding, based upon clear andconvincing evidence, that a non-consenting parent is an unfitperson" before parental rights may be terminated. In any event,it must be remembered that the legislature does not have completefreedom to act in this area; parental rights are a fundamentalliberty interest protected by the fourteenth amendment (U.S.Const., amend. XIV). Lulay v. Lulay, 193 Ill. 2d 455, 472, 739N.E.2d 521, 530 (2000), quoting Santosky v. Kramer, 455 U.S. 745,753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394 (1982).

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