In re Veronica J. , 371 Ill. App. 3d 822 ( 2007 )

NO. 4-06-0849 Filed 3/1/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: VERONICA J., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Logan County
v. ) No. 04JA4
JULIE YARBROUGH, )
Respondent-Appellant. ) Honorable
) Charles M. Feeney,
) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
In May 2006, the State filed a petition to terminate
the parental rights of respondent, Julie Yarbrough, as to her
daughter, Veronica J. (born May 26, 2003). Following an August
2006 hearing on the State's petition, the trial court found
respondent unfit. After a September 2006 best-interest hearing,
the court found it would be in Veronica's best interest to
terminate respondent's parental rights. (The court also termi-
nated the parental rights of Veronica's father, Chad J.; however,
he is not a party in this appeal.)
On appeal, respondent argues (1) the trial court's
findings of unfitness were against the manifest weight of the
evidence and (2) the court erred in terminating her parental
rights. We affirm.
I. BACKGROUND
On February 4, 2004, the State filed a petition for
adjudication of wardship, alleging Veronica was dependent because
she was without a parent, guardian, or legal custodian to care
for her. Respondent mother was then a juvenile herself and was
"in custody" in a separate case (Logan County case No. 02-J-11).
Paternity had not been established, although Chad was named as
Veronica's putative father. Chad's paternity was later estab-
lished. The trial court entered a shelter-care order, finding an
immediate and urgent need to remove the minor from respondent's
home (it is unclear from the record where respondent and Veronica
were living at the time).
On April 22, 2004, respondent, who was then 15 years
old, admitted that Veronica was a dependent minor and agreed to
continue the matter for one year under the supervision of the
trial court pursuant to section 2-20 of the Juvenile Court Act of
1987 (Juvenile Court Act) (705 ILCS 405/2-20 (West 2002)). The
court entered an order continuing the matter under supervision
for one year conditioned upon respondent's cooperation with the
Illinois Department of Children and Family Services (DCFS) in
this matter as well as in Logan County case No. 04-JA-2 (wherein
respondent was the dependent minor). The supervision was also
conditioned upon respondent attending school "each and every day,
each and every class for the full class period." She was to use
her best efforts to maintain passing grades in each and every
class and any absence, tardiness, or truancy, not caused by
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illness, would be deemed a violation of the court's order.
On May 20, 2004, the State filed a petition to revoke
the continuance, alleging that on April 30, 2004, respondent "ran
away from her foster home" and did not return until she was
detained by the police on May 1, 2004. The petition also alleged
respondent was "not using best efforts to maintain passing grades
in each and every class at school."
On September 2, 2004, respondent admitted the allega-
tions in the State's petition to revoke the continuance. On
November 4, 2004, the trial court entered an adjudicatory order
pursuant to section 2-4(1)(a) of the Juvenile Court Act, adjudi-
cating Veronica dependent because she was without a parent,
guardian, or legal custodian. The court based its finding on
respondent's "age, unwillingness to comply with authority, foster
placement, and prior detention." On the same day, the court
entered a dispositional order, finding it was in Veronica's best
interest that she be made a ward of the court and placed in the
custody and guardianship of DCFS.
On May 2, 2006, the State filed a petition to terminate
respondent's parental rights, alleging she was unfit because she
had failed to (1) make reasonable efforts to correct the condi-
tions that were the basis for the child's removal (750 ILCS
50/1(D)(m)(i) (West 2004)); (2) make reasonable progress toward
the return of the child within the initial nine months following
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adjudication (November 4, 2004 through August 4, 2005) (750 ILCS
50/1(D)(m)(ii) (West 2004)); and (3) protect the child from
conditions within her environment that were injurious to the
child's welfare (750 ILCS 50/1(D)(g) (West 2004)).
Testimony at the August 25, 2006, fitness hearing
revealed the following. Upon removal, Veronica was placed by
DCFS with her paternal grandmother, Rose Falcone. Chad and
Rose's brother, Oscar, lived in the same house as well. On
February 18, 2006, the Lincoln police department executed a drug-
search warrant on Falcone's residence, naming Oscar as the
primary target. When the police arrived at the residence, they
found Chad, respondent, and Veronica asleep in a garage that had
been converted into a bedroom. The police recovered approxi-
mately 14 pounds of marijuana, scales, smoking devices, and cash
from the residence. The police found open beer bottles (some
empty and some partially full) in the room where Chad, respon-
dent, and Veronica were found.
In her interview with the police, respondent said she
was residing at Falcone's house as well. (It is not clear from
the record if DCFS approved of this living arrangement.) She
knew Chad and Oscar sold drugs out of the house. She had seen
Chad sell drugs from the same room in which she slept. Veronica
was also present during those transactions.
Respondent testified that she turned 18 years old on
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August 14, 2006, the week before the hearing. At the time of the
hearing, she was living with her 19-year-old friend, Katy Day.
She had been living with her for "a couple of weeks." Prior to
living with Katy, respondent lived with another friend, Angie
Cronin, for one month and with respondent's grandmother (name
unknown) for "a few months" before that. She was working as a
certified nursing assistant (CNA) at Maple Ridge Care Center,
where she had been employed for one week. Prior to working at
Maple Ridge, she had worked as a CNA at Kraus Retirement home for
"a few days." She left Kraus in May 2006 to accept employment at
Maple Ridge, but she did not start at Maple Ridge until August
2006. Between May and August, respondent was unemployed. As of
the date of the hearing, she had not received a paycheck from
Maple Ridge. She had not paid Angie, Katy, or her grandmother
rent when she lived with each of them.
Respondent testified that she had been receiving $100
per month from DCFS but, because she had recently turned 18, she
would not be receiving that support any longer. Her only means
of support would come from employment. She had planned to obtain
her own residence at an apartment complex that was being remod-
eled. At Maple Ridge, she earned $6.50 per hour and worked 40
hours per week.
Respondent stated that she chose to leave her grand-
mother's residence and live someplace else. She did not have
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Veronica living with her at that time. If Veronica was with
respondent, she would move back to her grandmother's.
Kelly Brooks, a DCFS caseworker, testified that she had
been working with respondent in this case since 2004. In addi-
tion to Veronica's case, Brooks worked with respondent on her own
dependency case, which was closed when respondent turned 18.
Brooks also had an open case with respondent and Chad's four-
month-old daughter, Carmen J. (born April 2006), who had also
been adjudicated neglected and dependent.
The case plans in Veronica's case were dated March 21,
2005, August 22, 2005, February 6, 2006, and June 16, 2006.
Brooks personally delivered each of those plans to respondent.
One of respondent's tasks was to obtain suitable housing. Brooks
said she was unaware that Oscar lived at Rose Falcone's house,
and had she known, Veronica would not have been placed there.
After the February 18, 2006, drug search, Veronica was placed in
a traditional foster home, where she remained. Respondent had
not maintained any permanent residence.
After February 2006, DCFS added the requirement to
respondent's case plan that she remain drug- and alcohol-free,
and respondent was referred for a drug and alcohol assessment.
To date, respondent has not complied.
Brooks also testified that respondent had not main-
tained consistent employment since 2004. She was supposed to
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obtain her general equivalency diploma (GED), but she has failed
to do so. While she was pregnant (it is unknown to which preg-
nancy Brooks refers), DCFS placed her in the "homeward bound
program." Respondent was dropped from the program for failing to
comply.
Brooks further testified that respondent had been
court-ordered to comply with a psychological evaluation. DCFS
received approval for the evaluation in May 2006, but respondent
had failed to cooperate and obtain one. As of April 2006, DCFS
required that respondent attend a parenting course, but she had
failed to comply. Respondent was also required to demonstrate
responsible decision-making, which, according to Brooks, she had
failed to do. For example, while respondent was a ward of the
court, she failed to remain in her DCFS-assigned placement.
Brooks opined that respondent's failure to complete her education
and the drug and alcohol evaluation were also examples of respon-
dent's poor decision-making. In addition, respondent had not
followed through with visitation with Veronica. She had not
visited Veronica between May 2006 and August 2006. Between
February 2006 and April 2006, respondent frequently attended her
weekly visitation. Respondent's visitation was sporadic in April
and May and had been nonexistent since.
Brooks testified that she was the caseworker for
respondent's juvenile case. In 2002, when respondent was 14
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years old, DCFS filed a petition for adjudication of wardship
based upon respondent's truancy issues. Respondent was involved
in a relationship with Chad at the time. Pursuant to her case
plan, respondent was required to complete her education. At the
time, she had successfully completed eighth grade. Respondent
had been placed in six or seven different foster placements, and,
according to Brooks, respondent was lacking consistent support
from anyone.
Brooks testified that, in May 2005 and November 2005,
she considered respondent to have made reasonable efforts and
progress toward the return of Veronica. After the execution of
the search warrant in February 2006, DCFS added to respondent's
tasks that she obtain an alcohol and drug evaluation, which she
had not done. By the date of the hearing, respondent had suc-
cessfully completed only the Constitution portion of the GED
exam. Brooks said she did not find out until respondent's
testimony that respondent was residing with Katy Day and that she
had learned respondent previously resided with Angie Cronin by
her subsequent investigation. The last of respondent's resi-
dences of which Brooks was aware was in June 2006 when respondent
resided with her grandmother.
The trial court granted respondent's motion for di-
rected verdict with regard to the State's allegation that respon-
dent was unfit because she had failed to make reasonable progress
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toward the return of the child within the initial nine-month
period following adjudication (750 ILCS 50/1(D)(m)(ii) (West
2004)). Respondent presented no evidence.
After considering the evidence and arguments of coun-
sel, the trial court found the State had proved, by clear and
convincing evidence, that respondent had failed to make reason-
able efforts to correct the conditions that were the basis for
the child's removal (750 ILCS 50/1(D)(m)(i) (West 2004)) and had
failed to protect the child from conditions in the environment
injurious to her welfare (750 ILCS 50/1(D)(g) (West 2004)).
On September 14, 2006, the trial court conducted the
best-interests hearing. The State called Chad, who testified he
was still regularly consuming drugs and had not pursued treat-
ment. He also stated he had not been in a relationship with
respondent since July 2006.
Respondent testified that she last visited with Veron-
ica in May 2006. After the fitness hearing, respondent called
DCFS to schedule a visit with Veronica. The caseworker scheduled
the visit for 8 a.m., the morning of the best-interest hearing.
Respondent did not attend the visit because she was sleeping.
She testified that she had returned home from work at 7 a.m. and
gone to bed. She had planned to take the GED exam in a matter of
days. She had contacted Community Action for assistance in
obtaining housing. She stated that "in a couple of weeks" she
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would be able to care for Veronica.
Brooks testified that respondent had failed to appear
at scheduled visits with Veronica numerous times. Brooks also
testified that Veronica's foster mother was willing to adopt her.
(The State did not attempt to elicit this testimony from the
foster mother.)
Jennifer K., Veronica's foster mother, testified that
she had been Veronica's foster mother since February 2006. Also
residing in Jennifer's home was Veronica's younger sister,
Carmen, and Jennifer's adopted daughter, H.K. Jennifer had
Carmen since she was two days old (April 2006). Jennifer stated
that Veronica "was not at all potty trained" when she came into
Jennifer's home but was "fully potty trained" in three months.
Jennifer had to stop telling Veronica when visits with respondent
were scheduled because respondent repeatedly failed to attend,
which made Veronica very upset. After such events, Veronica
would wet the bed and throw temper tantrums. She reverted to
behavior that she had when she first came into placement.
Jennifer described a recent incident when a caseworker
came to retrieve Carmen for a visit with respondent. Veronica
said: "It doesn't matter. She won't show up anyways." Jennifer
responded to Veronica: "She [(respondent)] called and said she
would be there. And she's [(Carmen)] only going to be gone for
an hour and you'll be at the babysitter's when she comes back."
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According to Jennifer, Veronica replied, "She's not going to show
up." Respondent had called to confirm but, in fact, did not
appear.
At the close of the evidence, the trial court held that
"[t]he lack of visitation since May [was] startling." "Such a
simple little thing that could mean so much to a child." Now the
"child has these memories of irresponsible, unreliable parents."
The court indicated that it foresaw the benefit that the child
would experience upon a termination of respondent's parental
rights. According to the court, the case was "abundantly clear
that the best interest of this child favors termination of each
of these parent's [sic] rights." This appeal followed.
II. ANALYSIS
A. Unfitness
Respondent argues the trial court's findings of unfit-
ness were against the manifest weight of the evidence. We
disagree.
When proceeding on a petition to terminate parental
rights under the Juvenile Court Act, the State must first demon-
strate by clear and convincing evidence that the parent is
"unfit" under one or more of the grounds set forth in section
1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2004)). Here,
the trial court found respondent was unfit under the grounds set
forth in sections 1(D)(m)(i) and 1(D)(g). As a reviewing court,
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we accord great deference to the court's finding and will not
disturb the finding on appeal unless it is against the manifest
weight of the evidence. In re T.A., 359 Ill. App. 3d 953, 960,
835 N.E.2d 908, 913 (2005). Because each of the statutory
grounds of unfitness is independent, the court's finding may be
affirmed if the evidence supports the findings of unfitness on
any one of the alleged statutory grounds. In re H.D., 343 Ill.
App. 3d 483, 493, 797 N.E.2d 1112, 1120 (2003).
1. Reasonable Efforts
At the time the State filed its petition to terminate
respondent's parental rights (May 2006), section 1(D)(m)(i)
defined unfitness as the "[f]ailure by a parent (i) to make
reasonable efforts to correct the conditions that were the basis
for the removal of the child from the parent." 750 ILCS
50/1(D)(m)(i) (West 2004). For the purposes of determining a
parent's fitness under this particular statutory ground, the
trial court must focus on the parent's "reasonable efforts"
during the initial nine-month period following the adjudication
of neglect. In re D.F., 208 Ill. 2d 223, 239, 802 N.E.2d 800,
809 (2003). The "initial nine-month period" begins upon the
entry of the court's order of adjudication. D.F., 208 Ill. 2d at
241-42, 802 N.E.2d at 811.
Here, the only relevant evidence for purposes of the
unfitness finding under section 1(D)(m)(i) (750 ILCS
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50/1(D)(m)(i) (West 2004)) is evidence of respondent's conduct
during the period November 4, 2004, through August 4, 2005. The
only evidence presented to the trial court concerning this time
period was the following. Respondent was a dependent minor in
the custody of DCFS, placed in a traditional foster home.
Veronica resided with Rose Falcone, her paternal grandmother, and
her father Chad. Respondent often and regularly visited Veron-
ica. The original and primary issues with regard to Veronica's
adjudication were respondent's failure to remain in foster
placement and her failure to attend school.
The State failed to present any evidence regarding
respondent's conduct during the applicable nine-month period. On
the contrary, upon questioning by respondent's counsel, Brooks
testified that during the applicable time frame, respondent had
made reasonable efforts and reasonable progress. Throughout the
fitness hearing, the State's evidence focused primarily on
respondent's conduct since February 18, 2006, the date designated
by DCFS as the date "when things started to fall apart."
When announcing its ruling in open court, the trial
court set forth in detail the particular facts upon which it
relied. As to the "reasonable efforts" ground, the court stated
that it had relied on the facts that respondent had failed to
attend school, remain in placement, comply with the ordered
psychological evaluation, and maintain employment. Given the
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particular time frame at issue, we find the court's reliance on
certain facts misplaced. The State failed to present sufficient
evidence that respondent had failed to do any of those things
during the initial nine-month period. For example, the State did
not present any evidence as to when respondent was enrolled and
subsequently dropped from the "homeward bound" program. The only
evidence presented regarding respondent's education was that (1)
she had successfully completed eighth grade, (2) she was enrolled
in the "homeward bound" program, (3) she was dropped from the
"homeward bound" program, and (4) she had completed the Constitu-
tion examination. The record is silent as to when each of these
events occurred.
The same can be said for the timing and duration of
respondent's residential placements. The evidence indicated only
that respondent was placed in several foster homes, lived at
Falcone's house as of February 18, 2006, and, at some point,
resided with her grandmother. Beyond that, the evidence did not
support the court's finding that respondent failed to remain in
placement between November 4, 2004, and August 4, 2005.
Further, the evidence did not provide sufficient
details of respondent's employment history (as it pertained to
the nine-month time frame) to justify the finding that she had
failed to make reasonable efforts in resolving the dependency
issue due to her lack of employment stability. The only evidence
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relating to respondent's employment history concerned her CNA
positions beginning in May 2006.
Finally, Brooks testified that respondent was ordered
to submit to a psychological evaluation only "eight or nine
months" prior to the fitness hearing. For obvious reasons,
respondent's failure to comply with that evaluation had no
bearing on her reasonable efforts during the applicable nine-
month evaluation period. Without clear and convincing evidence
that respondent had failed to make reasonable efforts as evi-
denced by her conduct between November 4, 2004, through August 4,
2005, the trial court's finding of unfitness on that ground was
manifestly erroneous.
2. Injurious Environment
The trial court also found respondent was unfit pursu-
ant to section 1(D)(g) of the Adoption Act (750 ILCS 50/1(D)(g)
(West 2004)), which provides that a parent is unfit due to his or
her "[f]ailure to protect the child from conditions within his
environment injurious to the child's welfare." The court relied
on evidence "much broader" than that of the February 18, 2006,
raid at Falcone's residence. In particular, the court emphasized
the fact that respondent was aware drugs had been sold from the
residence at a time when she and Veronica were present. Respon-
dent had witnessed Chad engage in drug sales 10 times from the
same room in which she and Veronica were found sleeping. She had
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also witnessed Oscar sell drugs an additional 5 to 10 times from
the residence.
Although it minimized the significance of its finding,
the trial court also mentioned the fact that the police had found
open beer bottles in the room where Veronica had been sleeping.
The court placed great significance on the risk of harm associ-
ated with drug sales in the presence of a minor and noted the
inherent danger in conducting such activity, speculating as to
the possibility of an armed robbery or "any other kind of bad
activity that occurs when you're dealing drugs." Based upon the
evidence, the court found the State had proved by clear and
convincing evidence, that respondent was unfit for failing to
protect Veronica from dangerous environmental conditions.
As a matter of law, a parent may not be found unfit
under section 1(D)(g) during a time after the child was removed
from the parent's custody. See In re C.W., 199 Ill. 2d 198, 212,
766 N.E.2d 1105, 1114 (2002). However, this principle of law
presumes that, once the child has been removed from the parent,
he or she has been placed in foster care separate and apart from
the parent's environment. See C.W., 199 Ill. 2d at 212, 766
N.E.2d at 1114. "Logic dictates that once the child is removed
from the injurious environment, there can be no further failure
to protect." C.W., 199 Ill. 2d at 215, 766 N.E.2d at 1115.
In the case sub judice, the basis for the trial court's
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finding of unfitness under the failure-to-protect ground (the
February 18, 2006, raid and the realization that respondent knew
drugs were sold out of the residence) occurred after the child
had been removed from respondent's care. That fact makes this
case distinguishable from the traditional principle set forth
above. Although Veronica had been legally removed from respon-
dent's care, she was placed in relative placement--the same
physical residence in which respondent resided at the time.
Thus, respondent had the opportunity, yet failed to, protect
Veronica by allowing her to reside in a home where drug sales
often occurred.
There exists no requirement under section 1(D)(g)
that a respondent be permitted a period of time to correct or
improve an injurious environment before she may be found unfit on
this ground. In re B.R., 282 Ill. App. 3d 665, 670, 669 N.E.2d
347, 351 (1996). Thus, a parent's actions before the child was
removed may serve as a basis for terminating his or her parental
rights without forewarning. This makes respondent's case more
egregious. Veronica had already been removed from respondent's
custody, and respondent had already admitted Veronica was depend-
ent. Respondent was aware that she had certain tasks to perform
and that she had to abide by a certain standard of conduct in
order to regain the privilege of caring for her daughter. In
this vein, respondent ultimately failed. On the record evidence,
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we find the trial court's finding that respondent was unfit for
failing to protect Veronica from an environment injurious to her
welfare pursuant to section 1(D)(g) of the Adoption Act (750 ILCS
50/1(D)(g) (West 2004)) was not against the manifest weight of
the evidence.
B. Best Interest
Respondent argues the trial court's decision terminat-
ing her parental rights was against the manifest weight of the
evidence. We disagree.
Courts will not lightly terminate parental rights
because of the fundamental importance inherent in those rights.
In re M.H., 196 Ill. 2d 356, 362-63, 751 N.E.2d 1134, 1140
(2001). Once the trial court finds the parent unfit, the par-
ent's rights are no longer of concern. The parent's rights must
yield to the best interest of the child. In re Tashika F., 333
Ill. App. 3d 165, 170, 775 N.E.2d 304, 307 (2002). The court's
best-interest finding will not be reversed unless it is against
the manifest weight of the evidence. H.D., 343 Ill. App. 3d at
494, 797 N.E.2d at 1121.
The best-interest report indicated Veronica had been
placed in a traditional foster home as of February 2006. Her
younger sister, Carmen, was placed in the same home upon her
birth in April 2006. Since being in the home, Veronica had
become potty-trained, stopped cursing, and developed healthy
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eating habits. According to the report, when Veronica first
arrived in the home, she frequently used unacceptable language
and refused to eat anything but hotdogs and snack foods. The
report found Veronica was thriving in her new home, as she had a
very consistent schedule for bedtime, nap time, and meal times.
Her needs of emotional and physical stability were being met.
She seemed very attached to her foster mother and her foster
mother's adopted daughter and enjoyed placement with Carmen. The
report recommended respondent's parental rights be terminated.
The evidence presented at the best-interest hearing
indicated that Veronica's placement was an adoptive home. The
evidence further indicated that Veronica, who was three years old
at the time, emotionally suffered from respondent's failure to
appear at her scheduled visitation times. Respondent testified
that she had not visited with Veronica since May 2006. Prior to
that time, she regularly visited Veronica. After May, Veronica
would anticipate the visits only to be repeatedly disappointed
when her mother failed to attend. Jennifer K. testified that for
a day or two after the unsuccessful visit, Veronica would act in
an atypical manner, via temper tantrums or bed-wetting. Veronica
also made comments when Carmen was scheduled to visit respondent
regarding respondent's likelihood of failing to appear.
We find it is in Veronica's best interest to allow her
to obtain the permanency, stability, and support she deserves and
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requires. Based on the evidence presented, we find the trial
court's order terminating respondent's parental rights was not
against the manifest weight of the evidence.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
judgment.
Affirmed.
COOK, J., concurs.
STEIGMANN, P.J., specially concurs.
PRESIDING JUSTICE STEIGMANN, specially concurring:
Although I agree with the result, I disagree with some
of the majority's analysis in reaching that result. Accordingly,
I specially concur.
The majority discusses at some length the sufficiency
of the State's evidence during a given nine-month period, as
required by section 1(D)(m)(i) of the Adoption Act. However,
respondent mother, in appealing the trial court's judgment
terminating her parental rights, has not raised any issue con-
cerning the sufficiency of the State's evidence during any nine-
month period.
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Because the majority addresses this issue sua sponte,
we do not know what response, if any, the State might have
provided if respondent mother had raised the issue in her brief.
It is at least possible that the State's response might have
caused the majority to modify its discussion or, perhaps, to
eliminate it entirely.
Although this court is otherwise affirming, the major-
ity nonetheless deems the State's evidence insufficient (in part)
and declares that one aspect of the trial court's finding of
unfitness was "manifestly erroneously." I conclude it is neither
fair to either the State or the trial court nor appropriate for
the majority to reach these conclusions sua sponte. Indeed, the
first time that the State or the trial court will know that this
issue even exists is when they receive a copy of this opinion.
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