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In re A.A.
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0116 Rel
Case Date: 08/10/2001

NOTICE
Decision filed 08/10/01.  The text of
this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-99-0116

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________

In re A.A. and B.B., Minors)Appeal from the
)Circuit Court of
(The People of the State of Illinois, )Madison County.
)
Petitioner-Appellee, )
v.)Nos. 95-J-934 & 95-J-935
)
Linda A. and RichardA., )Honorable
)Lola P. Maddox,
Respondents-Appellants).)Judge, presiding.

___________________________________________________________________________

PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

This appeal arises from the termination of the parental rights of Linda A. and RichardA. to their daughters, A.A. and B.B. Linda and Richard argue that the trial court abused itsdiscretion in terminating their parental rights. They also argue that the termination of rightswas inappropriate since the State failed to prove the alleged sexual abuse which was thebasis for the removal of the children from the home. On June 6, 2000, this court filed thisdecision as an unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23). On June29, 2001, the Illinois Supreme Court entered a supervisory order vacating our Rule 23 orderand ordering this court to reconsider our decision in light of the Illinois Supreme Court'sdecision in In re M.H., No. 89599 (May 24, 2001). Therefore, in addition to the issuesraised and resolved in our original disposition, we now consider this case in light of thesupreme court's holding in In re M.H. We affirm.

BACKGROUND

On October 30, 1995, juvenile petitions were filed on behalf of minors A.A. andB.B., Linda and Richard's children. The petitions alleged that the minors were abusedbecause of their brother's sexual abuse of A.A. and that they were neglected minors whoseenvironment was injurious to their welfare in that the minors' mother failed to takereasonable steps to protect the minors from sexual abuse.

The court entered an order as to shelter care on October 30, 1995. It found that therewas probable cause to believe that the minors were neglected and abused. The court alsofound that it was a matter of urgency for the protection of the minors that they be placed inshelter care. The court placed the minors in the temporary custody and guardianship of theDepartment of Children and Family Services (DCFS) and scheduled a hearing on thejuvenile petitions.

At the hearing, Richard and Linda admitted the allegations of the petition. The courtdetermined that A.A. and B.B. were abused and neglected, ordered that they remain in thecustody of DCFS, and ordered a dispositional hearing.

The dispositional hearing was held on April 30, 1996. The court found that it wasin the minors' best interest that they be made wards of the court and placed in the custodyof DCFS. The court also ordered Richard and Linda to make sure their son J.A., the brotherwho allegedly sexually abused A.A., completed sexual abuse counseling. The parents wereto provide the results of the counseling to DCFS. The court further ordered Richard andLinda to attend and complete counseling for the prevention of sexual abuse, to completeparenting classes, and to cooperate with DCFS.

A service plan was completed for Richard, Linda, and J.A. on November 27, 1995. The plan required, among other things, the following: J.A. was to obtain a psychologicalassessment, J.A. was to cooperate with the psychological assessment, J.A. was to cooperateand comply with any and all recommendations of treatment, J.A. was not to reside in thehome with the minors, Richard and Linda were to receive a clinical/psychological/psychiatric assessment, Richard and Linda were to attend counseling to learn about sexualabuse and ways to prevent it, Richard and Linda were to participate in counseling to preventsexual abuse, Richard and Linda were to comply with counseling and attend all scheduledsessions, Richard and Linda were to prevent J.A. from having contact with, providing childcare for, or residing in the home with A.A. and B.B., and Richard and Linda were tocooperate with DCFS. Richard and Linda discussed the service plan with a DCFS employeeand signed an acknowledgment that the service plan was explained to them and that theyreceived a copy.

A service plan review was held on June 3, 1997. At that time, it was determined thatRichard and Linda failed to meet minimum parenting standards. J.A. had failed to meet anyof the goals set out for him in the service plan. Richard and Linda had not submitted to aclinical/psychological/psychiatric assessment but had undertaken some counseling. Sincethe goals of the service plan had not been met, DCFS determined that the minors wouldremain in foster care, with a goal to return home by December 31, 1997.

On April 7, 1998, a petition to terminate parental rights and for the appointment ofa guardian to consent to adoption was filed regarding A.A. and B.B. The petitions allegedthat Richard and Linda were unfit persons as described in section 1 of the Adoption Act(750 ILCS 50/1(D) (West 1994)), because: (1) they had failed to maintain a reasonabledegree of interest, concern, or responsibility as to the welfare of the minors, (2) they hadfailed to make reasonable efforts to correct the conditions that were the bases for theremoval of the children from them, and (3) they had failed to protect the minors fromconditions in their environment that were injurious to their welfare.

At the hearing on the petition to terminate parental rights, the court heard testimonyfrom Gary Crone, a child welfare specialist with DCFS. Crone first became familiar withRichard and Linda in 1979, when there was a report of cuts, welts, and bruises to L.H.,Richard's daughter. Crone also testified that there had been a previous indicated reportinvolving an older son of Richard and Linda, M., who reportedly sexually abused B.B. Crone stated that he became involved in the current case when A.A. and B.B. were takeninto protective custody after an adjudication of abuse and neglect. The reported incidentwas that A.A. had been sexually abused by her brother, J.A. A.A. and B.B. were allowedto return home with Richard and Linda after this incident, but Linda was told that she shouldnot allow the minors to be unsupervised with J.A. That night, however, Linda allowed A.A.and B.B. to sleep in the same room with J.A. This incident caused the girls to be adjudicatedabused and neglected and taken into DCFS custody.

Service plans in the case had the goal, according to Crone, for Richard and Linda tochange their home environment and to learn adequate skills to protect their children. DCFShas received no proof that these goals have been sufficiently met.

Crone testified that when A.A. and B.B. were first taken into protective custody,Linda was told that she should lock J.A. out of the house so he could get the treatment heneeded. Linda was told that DCFS would help the family find living arrangements for J.A.and that he would receive assistance from DCFS. Crone stated that Linda told him that sherefused to lock J.A. out because she needed his supplemental security income check.

Crone stated that J.A. has been referred to counseling several times but hasconsistently failed to show up for or to follow up on the treatment for sexual offenders. Crone stated that despite the fact that they were told that the treatment for J.A. was in thebest interest of A.A. and B.B., Richard and Linda have not accepted the responsibility forseeing that J.A. follows up on his treatment.

The service plan also called for both Linda and Richard to complete a sexualperpetrator and protection assessment through Alternative Counseling. The first referral wasmade for Richard and Linda in 1996. However, neither of them submitted to the assessmentuntil 1998. Crone testified that even though treatment was recommended after theassessments, he has not received any proof that Linda or Richard received this treatment.

Richard and Linda did attend some counseling to deal with stress at home. Cronestated that the progress reports he received from the counselors working with Linda andRichard stated that the parents had reached their potential, but the counselor did not believethat the parents could protect their children. The counselor recommended that both parentsobtain sexual abuse counseling. Although Crone conveyed the need for Richard and Lindato obtain this counseling, they have failed to obtain it.

Crone stated that Richard and Linda have completed a parenting class. The class,however, did not include specific information about protecting children from sexual abuse. Crone also stated that in the three years after the adjudication of abuse and neglect, he hadconcerns over some people who lived in Richard and Linda's home. In March 1996, Cronefound that Lisa Hardester was living in the home, even though the service plan required hernot to live in the home because of her potential to cause danger to the minors. Another man,known to Linda only as Ed, was also living in the home. Crone testified that Ed wassuspected of being a child molester. Crone contacted Linda and advised her that Ed neededto move out. Linda told Crone that she had given Ed 30 days to move out.

The visitation plan allowed the family to visit the minors one time a week for onehour. Crone stated that Linda has attended all visitations and interacts fairly well with theminors. Richard's visits were sporadic. J.A. attended one of the visitations. Crone testifiedthat at that visit, J.A. talked to A.A. and tried to tell her that he had not sexually abused her. Crone stated that Linda and Richard did nothing to stop or interrupt J.A., and Crone had totell J.A. that his behavior was inappropriate and he would have to leave if he persisted.

Finally, Crone testified that both J.A. and M., the son who had previously beenlocked out for the sexual abuse of B.B., are currently living in Richard and Linda's home.

Jennifer Johnson, a counselor at Alternative Counseling, testified regardingassessments she conducted on J.A., Richard, and Linda. J.A. was referred to AlternativeCounseling in 1996, but he attended only two sessions. He was discharged after the secondsession because he failed to attend sessions, showed elevated hostility, and failed tocooperate with the counseling. It was recommended that J.A. be placed in residentialtreatment.

In February 1998, J.A. was referred for an assessment of the risk of his committingsexual-offending acts in the future. Johnson stated that J.A. participated in an assessmenton September 24, 1997. Prior to his assessment, Linda became very upset. Johnson statedthat her testing of J.A. was limited, because Linda intervened and ended the evaluation whenJohnson questioned J.A. regarding sexuality issues. Johnson recommended that J.A. receivesex-offender-specific counseling because he had originally admitted to abusing his sister andlater recanted, and Johnson stated that he exhibited some indications for sex-offendingbehavior. Johnson also recommended that J.A. receive drug counseling.

Johnson conducted an assessment with Linda on January 28, 1998. Linda toldJohnson during the assessment that she believed that M. was sexually "curious" rather thanabusive to B.B. Linda also indicated that she did not believe that J.A. had sexually abusedA.A. She stated that she did not know whether she could believe A.A. Johnson furthertestified that testing on Linda revealed that she was generally misinformed about sexualityand had a tendency to blame the victim for rape or abuse. Johnson recommended furthercounseling for Linda.

Johnson conducted an assessment with Richard in February 1998. Richard stated thathe did not believe that J.A. had sexually abused A.A. but that he did believe that M. hadsexually abused J.A. and possibly others. Richard also stated that he believed that DCFSand the sex offender treatment M. underwent had brainwashed M. into stating that hecommitted sexually offensive acts. Johnson also recommended counseling for Richard.

After the assessments, DCFS referred Richard and Linda to Alternative Counselingfor further treatment as recommended by Johnson. They attended one session in June 1998. After that session, they were referred for more counseling but failed to attend threescheduled appointments.

Carol Coulson, a social worker and therapist at Chestnut Health Systems, alsotestified. She provided counseling to Linda from January 1996 to October 1997. Coulsonwas working with Linda on her depression and her parenting skills in an effort to help Lindaget her children back. Coulson's notes from therapy on October 7, 1996, indicate that Lindawas willing to participate in therapy but was unable to deal with abstract ideas likeboundaries and protection from sexual abuse. Linda was willing to protect her children fromsexual abuse but did not understand how to provide the protection. On April 23, 1997,Coulson again made an assessment of Linda's progress based on her therapy sessions. Coulson believed that Linda cared for her daughters physically and emotionally but did notshow an ability to protect them from sexual abuse. Coulson's assessment remained the sameat the June 30, 1997, review. Coulson's final assessment was that Linda was still unable toprotect the girls from sexual abuse, partly because she did not believe that J.A.'s behaviorwas a concern or threat to the girls.

Linda also testified on her own behalf. She stated that she understood the serviceplans that DCFS had made in her case. She also stated that DCFS told her to lock J.A. outof the home after the abuse of A.A. but that she did not do it because Richard refused toallow J.A. to be locked out. She also stated that she was confused about possible changesin the law, so she was afraid to lock J.A. out. She testified that she had tried to help J.A. gettherapy but that he rebelled and refused to attend his sessions. She admitted that sheinterrupted and stopped J.A.'s assessment at Alternative Counseling. She also said that sheknew in 1996 that DCFS wanted her to receive an assessment, but she did not get theassessment until 1998.

Linda attended counseling at Chestnut Health Systems for almost two years. She alsoattended counseling at an agency called Victims First but was informed that the counselingthere did not meet DCFS requirements. She then began attending counseling at AlternativeCounseling. Linda stated that she always attended visitations with the girls. She testifiedthat at the time of the hearing both M. and J.A. were living in Richard and Linda's home. She stated that she had been trying to get them to move out.

On December 4, 1996, the court entered an order finding that Richard and Linda wereunfit for each of the reasons set forth in the petition. On January 12, 1999, a hearing washeld to determine whether Richard and Linda's parental rights should be terminated. GaryCrone of DCFS testified that at the time of the hearing both A.A. and B.B. were placed inhomes where they were safe and secure and that he believed it was in the best interest of thegirls to terminate Richard and Linda's parental rights and to authorize DCFS to consent tothe girls' adoption. The court's written order of January 12, 1999, terminated Richard's andLinda's parental rights. It is from that order that Linda and Richard now appeal.

STANDARD OF REVIEW

In cases regarding child custody issues, there is a strong and compelling presumptionin favor of the result reached by the trial court. See In re Marriage of Jerome & Martinez,255 Ill. App. 3d 374, 396 (1994). The trial court's determination will not be disturbedunless there is a clear abuse of discretion or the decision was contrary to the manifest weightof the evidence. See In re Marriage of Fuesting, 228 Ill. App. 3d 339, 344 (1992).

DISCUSSION

The trial court found that Richard and Linda were unfit parents for the reasons setforth in the petition. The three bases for the termination of parental rights listed in thepetition were that they failed to maintain a reasonable degree of interest, concern, orresponsibility for the welfare of the children, they failed to make reasonable efforts to correctthe conditions that were the basis for the removal of the children, and they failed to protectthe children from conditions in their environment which were injurious to their welfare.

The first basis for termination was that they failed to maintain a reasonable degree ofinterest, concern, or responsibility as to the welfare of A.A. and B.B. Before finding aparent unfit based upon this ground, the trial court is to examine the parent's conduct in thecontext of the parent's circumstances. See In re Adoption of Syck, 138 Ill. 2d 255, 278(1990). These circumstances can include things such as poverty, a lack of transportation,or a need to cope with personal problems, rather than indifference toward the child. See Inre T.D., 268 Ill. App. 3d 239, 246 (1994); Syck, 138 Ill. 2d at 278-79.

In this case, the record shows that Linda maintained contact with the children throughweekly visitation while they were in the custody of DCFS. However, the trial court foundthat both Linda and Richard failed to show a reasonable degree of interest, concern, orresponsibility for the girls. The record is replete with testimony, some of it from Lindaherself, showing that Richard and Linda have not received the recommended therapy to helpparents to protect their sexually abused children. Both Linda and Richard waited almostthree years to submit to the assessment, recommended by DCFS, to determine parentingskills and their ability to protect the children from sexual abuse. When the assessments wereperformed and more therapy regarding sexual abuse was suggested, neither Linda norRichard sought the therapy.

A.A. and B.B. were initially taken from Richard and Linda's home due to a report thattheir son J.A. had sexually abused A.A. After A.A. was seen at the hospital when theincident was reported, Richard and Linda were allowed to take A.A. and B.B. home butwere specifically informed that J.A. should not be left with the girls unsupervised. However, Linda allowed J.A. to sleep in the same room with the girls that very night.

When the custody of the girls was given to DCFS, Richard and Linda were told thatpart of their service plan required J.A. to submit to an assessment to determine the likelihoodof him reoffending and for sexual-offender-specific counseling. However, when J.A. wentto the assessment, he became upset and Linda stopped the assessment and allowed J.A. toleave. Linda and Richard have not taken the responsibility to see that J.A. receives thetherapy he needs. In fact, they refused to lock J.A. out of the house so that DCFS couldinsure that he received needed sex offender treatment.

Richard stated in his assessment that he did not believe that J.A. had abused A.A. Linda stated that she also did not believe that J.A. abused A.A. In fact, she indicated thatshe was not sure that A.A. was telling the truth. Linda testified at the hearing that she is stillnot sure that J.A. did anything wrong.

Although A.A. and B.B. had been removed from their home and Gary Crone hadinformed Richard and Linda that J.A. living in their home posed a risk to both the girls, atthe time of the hearing on the petition J.A. was still living in Richard and Linda's home. Weconclude that this behavior by Linda and Richard supports the trial court's conclusion thatthey have not maintained a reasonable degree of interest, concern, or responsibility as to thewelfare of A.A. and B.B. Therefore, we find that the trial court's finding of unfitness on thisground was not against the manifest weight of the evidence.

The second ground relied upon by the trial court for the termination of parental rightswas that Linda and Richard failed to make reasonable efforts to correct the conditions whichwere the basis for the removal of the children and/or that they failed to make reasonableprogress toward the return of the children within nine months after the adjudication of abuseand neglect under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1998)). Each of these are distinct bases upon which removal may be premised. See In re C.M., 305Ill. App. 3d 154, 163-64 (1999).

The removal of the girls was based upon the report of the sexual abuse of A.A. byJ.A. However, after the incident, Richard and Linda allowed J.A. to sleep in the same roomwith the girls. They also refused to lock J.A. out of the house, interrupted the assessmentrecommended by DCFS to determine the likelihood of reoffense by J.A., and did not see toit that J.A. received the therapy he needed to deal with his sexual abuse of A.A. In addition,during the time that DCFS had custody of the girls, there was evidence of inappropriateindividuals living in Richard and Linda's home. Linda and Richard also failed to receive allof the therapy recommended by DCFS to deal with sexual abuse in the home and how toprotect the children from sexual abuse. For these reasons, we conclude that the trial court'sfinding that Linda and Richard failed to correct the conditions which resulted in the removalof A.A. and B.B. was not against the manifest weight of the evidence.

In addition, the trial court found that Linda and Richard failed to make reasonableprogress toward the return of the girls within nine months after the adjudication of neglectand abuse. This determination is an objective standard applied by the trial court, focusingon the amount of progress toward the goal of reunification that can be reasonably expectedunder the circumstances. See In re C.M., 305 Ill. App. 3d at 164. "[T]he standard by whichprogress is to be measured is parental compliance with the court's directives, the serviceplan, or both." In re L.L.S., 218 Ill. App. 3d 444, 463-64 (1991).

After the minors were adjudicated neglected and abused and were made wards of thecourt, the court ordered Linda and Richard to attend and complete counseling for theprevention of sexual abuse and to make sure that J.A. completed sexual abuse counseling. In addition, the detailed service plan set forth earlier required J.A., Linda, and Richard to doseveral things.

As discussed above, the requirements of the court and DCFS in this case were notmet, and reasonable progress toward the return of the girls was not made within nine monthsof the adjudication of abuse and neglect. Linda and Richard have summarily failed to meetthese requirements by failing to attend counseling, allowing J.A. to stay in their home,refusing to submit to assessments until years after they are recommended, and not takingresponsibility for getting sex offender therapy for J.A. Therefore, the trial court's findingon this basis was not against the manifest weight of the evidence.

Finally, the court found that Linda and Richard failed to protect A.A. and B.B. fromconditions in their environment which were injurious to their welfare. The record showsthat J.A. was not removed from the home, that other persons who could be considered adanger to the girls were allowed to live in the home, and that J.A., Linda, and Richard haveall failed to receive the proper therapy to deal with sexual abuse in the home. In fact, thecounselor who worked with Linda for over 1

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