People v. Debbie C. ( 1996 )


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  •                              No. 3--96--0418

    _________________________________________________________________

      

                                 IN THE

      

                                 APPELLATE COURT OF ILLINOIS

      

                                 THIRD DISTRICT

      

                                 A.D., 1996

      

    IN RE Y.B., T.M., J.M., S.P.    )  

    and C.B.,                       )  Appeal from the Circuit Court

                                   )  of the 10th Judicial Circuit,

        Minors                     )  Peoria County, Illinois

                                   )

    (THE PEOPLE OF THE STATE        )

    OF ILLINOIS,                    )

                                   )

        Petitioner-Appellee,       )  No. 92--J--22

                                   )

        v.                         )   

                                   )

    DEBBIE C.,                      )  Honorable

                                   )  Stuart P. Borden

        Respondent-Appellant).     )  Judge, Presiding

      

    ________________________________________________________________

      

    PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the Court:

    ________________________________________________________________

      

        The respondent, Debbie C., appeals from orders finding her

    an unfit parent and terminating her parental rights.  She argues

    that (1) parental rights to C.B. could not be terminated based on

    an adjudication under the "no fault" dependency provision of the

    Juvenile Court Act of 1987; (2) unfitness was not proved by clear

    and convincing evidence; and (3) the evidence failed to prove

    that it was in the best interests of the children to terminate

    her parental rights.  For reasons that follow, we reverse and

    remand with respect to C.B. and affirm in all other respects.

                                      FACTS

        On January 22, 1992, the State filed a petition for

    adjudication of wardship in two counts, alleging that the minors,

    Y.B., T.M., J.M. and S.P., were neglected and dependent (705 ILCS

    405/2--3, 4(1)(a) (West 1992)).  Debbie admitted that they were

    dependent as alleged in count II.  Accordingly, the court entered

    adjudicatory and dispositional orders and directed Debbie to

    obtain independent housing, attend parenting classes and submit

    to psychological testing and counseling.  The four children were

    made wards of the court, and guardianship was awarded to the

    Department of Children and Family Services (DCFS).  During the

    next several months, Debbie obtained a psychological evaluation,

    completed parenting classes and obtained a four-bedroom

    apartment.  She also gave birth to C.B.  DCFS returned the other

    children to her care on November 2, 1992.

        On April 22, 1993, DCFS received a report indicating a risk

    of physical harm to Y.B. and T.M.  On June 11, 1993, Debbie

    entered a residential treatment program for chemical dependency.

    She relinquished all of the children to DCFS.  Four days later,

    the State filed a second juvenile petition alleging that C.B. was

    dependent pursuant to section 2--4(1)(c) of the Juvenile Court

    Act of 1987 (Juvenile Court Act) (705 ILCS 405/2--4(1)(c) (West

    1992)).  Debbie denied the petition and moved for return of all

    five children to her custody.  Following a hearing on September

    2, 1993, the court adjudicated C.B. dependent.  Subsequently, on

    September 16, the court entered a dispositional order awarding

    guardianship to DCFS.  The court denied Debbie's request for the

    return of the children, and she was directed to complete a

    residential substance abuse program and obtain a psychological

    evaluation.

        In its ensuing periodic reviews, DCFS rated Debbie's

    progress toward the goal of reunification as unsatisfactory for

    failure to complete chemical dependency treatment.  On June 16,

    1994, the court ordered Debbie to complete all phases of chemical

    dependency treatment and to cooperate with DCFS and its

    designees.  The agency's subsequent six-month reports to the

    court repeated allegations that Debbie had not completed chemical

    dependency treatment or established a stable home environment.  A

    permanency review order was entered on October 12, 1995, in which

    the court found that Debbie had not made reasonable efforts to

    achieve the DCFS service plan and permanency goals.  The court

    reiterated its order that Debbie complete chemical dependency

    treatment and cooperate with DCFS and its designees.

        On October 27, 1995, the State filed a supplemental petition

    for termination of parental rights.  In counts I and II, the

    State alleged that Debbie was unfit because she failed to make

    (1) reasonable efforts to correct the conditions which were the

    basis for the removal of the minors, and (2) reasonable progress

    toward their return within 12 months of adjudication.  750 ILCS

    50/1(D)(m) (West 1994).

        A hearing on the State's supplemental petition was held on

    January 31, February 7, and March 5, 1996.  For the State, Paul

    Keenan, a direct service supervisor for Catholic Social Services

    (CSS) testified that he had been involved with the case since

    September of 1993.  Keenan said that Debbie's service plan goals

    over the years included obtaining appropriate housing, counseling

    for anger control, chemical dependency treatment and visitation

    with the children.  With few exceptions, Debbie's visitations

    were successful.  Debbie lived in numerous locations throughout

    the period, returning often to her mother's home.  After the

    children were returned to foster care in June of 1993, she never

    maintained independent housing for a period longer than six

    months.  At the time of the hearing, Debbie had still not

    completed any treatment program for chemical dependency.  Keenan

    said that Debbie had completed an intensive counseling program

    for managing her anger in December of 1995 and was in continuing

    care at the time of his testimony.

        When the hearing resumed on February 7, Patricia Kennedy,

    Debbie's counseling therapist, testified that she had seen

    improvement in Debbie's anger control since October of 1995 and

    estimated that Debbie would need at least three more months to

    complete the counseling program.  Kennedy acknowledged that

    alcohol dependency remained an unresolved problem for Debbie.

        Debbie testified on her own behalf.  She said that she knew

    she had a problem with alcohol since age 13.  Although she

    admitted having used other drugs, including cocaine, she did not

    believe she had a drug problem.  She stated that she drank more

    after the children were removed from her care.  The last time she

    drank was around Christmas of 1995, when she had a 40-ounce

    bottle of beer.  She reported this relapse to Patricia Kennedy.

    At the time of the hearing, Debbie was living at the YWCA.

        At the close of all testimony, the court found that both

    counts of the State's supplemental petition were proved by clear

    and convincing evidence and entered a finding of unfitness.  

        On April 3, 1996, the matter proceeded to a best interests

    hearing.  Reports of CSS and Children's Home caseworkers were

    received into evidence.  The reports established that all five of

    the children suffer from serious emotional problems.  At the time

    of the hearing, Y.B. resided in a therapeutic foster home and

    suffered from post-traumatic stress disorder.  T.M. lived in a

    specialized foster home and attended school for severely

    emotionally disturbed children.  J.M. was placed in the

    residential unit of Children's Home.  His behavior improved since

    October of 1995, but he still had episodes of violence.  S.P. and

    C.B. remained together in a specialized foster home.  Although

    the three oldest children, Y.B., T.M. and J.M., remained bonded

    to Debbie, the children's behavior and Debbie's reactions to them

    during visitations had continued to deteriorate up to the time of

    the hearing.  Considering all of the unresolved problems that the

    family had, the caseworkers recommended that it was in the best

    interests of all of the children to terminate Debbie's parental

    rights.  The State also presented evidence that Debbie had

    reported another alcohol relapse on the weekend of February 10,

    1996.  

        In her defense, Debbie presented her mother, her CSS

    caseworker and the fathers of two of the children, all of whom

    testified that Debbie related well to the children and that there

    was mutual affection between the children and their mother.

    Other witnesses included Debbie's parenting class instructor, who

    testified that Debbie had participated in all but one session;

    T.M.'s foster mother, who said that T.M. expressed her desire to

    return home to her mother; and a friend, who said that Debbie

    speaks fondly of and longs to be reunited with her children.  In

    addition, Y.B., T.M. and J.M. each told the judge in chambers

    that they wanted to live with their mother.  Finally, Debbie

    testified that she was determined to complete the chemical

    dependency treatment program, whether the State's petition was

    granted or not.

        At the close of testimony and arguments of counsel, the

    court found that it was in the best interests of the children

    that Debbie's parental rights be terminated.  Accordingly, the

    court granted the State's petition.

                             DISCUSSION AND ANALYSIS

                   1.  Termination Proceedings Concerning C.B.

        Debbie first argues that the trial court lacked authority to

    terminate her parental rights to C.B., because he was adjudicated

    dependent under the "no fault" provision of the Juvenile Court

    Act prior to September 10, 1993.  The State and guardian ad litem

    (State) respond that Debbie waived her argument, or that the

    dependency determination is irrelevant because termination

    proceedings were proper with respect to the other children.  See

    In re Henry, 175 Ill. App. 3d 778, 530 N.E.2d 571 (1988).  The

    State's position fails to persuade.

        The termination of parental rights is an extraordinary

    measure that warrants stretching our resources without resort to

    doctrines of judicial convenience, such as waiver, which would

    avoid consideration of the parties' arguments.  See In re

    Petition of Kirschner, 164 Ill. 2d 468, 649 N.E.2d 324 (1995); In

    re A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480 (1991).  Further,

    the Adoption Act and the Juvenile Court Act contain strict

    procedural requirements which embody this State's policy favoring

    the superior right of parents to the custody of their own

    children.  In re Custody of Menconi, 117 Ill. App. 3d 394, 453

    N.E.2d 835 (1983).

        In interpreting the statutes, it is legislative intent, not

    simple logic, that controls.  In re Jankowski, 38 Ill. App. 3d

    95, 347 N.E.2d 474 (1976).  Thus, where the language of a statute

    applicable to a particular stage of juvenile or adoption

    proceedings is clear and unambiguous, it is the duty of the court

    to apply it literally.  Jankowski, 38 Ill. App. 3d 95, 347 N.E.2d

    474.  Subsequent amendments to the statutes may not be borrowed

    on review to "save" a trial court's order, even if the record

    would indicate that such action might better serve the child's

    interests.  See In re J.P.S., 198 Ill. App. 3d 633, 556 N.E.2d

    268 (1990); In re Gibson, 24 Ill. App. 3d 981, 322 N.E.2d 223

    (1975).

        In this case, the statute in effect on September 2, 1993,

    the date C.B. was adjudicated dependent, provided as follows:

                "(1) Those who are dependent include any

             minor under 18 years of age:

                                      * * *

                (c) who is without proper medical or other

             remedial care recognized under State law or

             other care necessary for his *** well being

             through no fault, neglect or lack of concern

             by his parents, ***, provided that no order

             may be made terminating parental rights, nor

             may a minor be removed from the custody of

             his *** parents for longer than 6 months,

             pursuant to an adjudication as a dependent

             minor under this subsection (c)."  (Emphasis

             added.)  Ill. Rev. Stat. 1991, ch. 37, par.

             802--4(1)(c).

    Effective September 10, 1993, the subsection was amended by

    adding the following relevant language:

             "unless it is found to be in his *** best

             interest by the court."  705 ILCS 405/2--

             4(1)(c) (West Supp. 1993).

        We do not find that Debbie waived her argument that the no

    fault dependency determination entered in this case precluded the

    termination of her rights to C.B.  It is true that C.B. remained

    in foster care for more than two years after he was adjudicated

    dependent under subsection 2--4(1)(c); that no extension of the

    six-month removal period was requested; and that the State never

    pursued another petition for adjudication of dependency or

    neglect.  However, once the petition to terminate parental rights

    was filed, counsel for Debbie specifically argued that the no-

    fault dependency adjudication for C.B. could not be the basis for

    a termination of parental rights.  Therefore, the argument is not

    waived.  Nor do we find that the argument is irrelevant.  When

    the State elects to initiate dependency proceedings with respect

    to a child, fairness requires that the State comply with the

    terms of the statute applicable to that child and not rely on

    alternative provisions applicable to the child's siblings.

        On the merits, we find that the statute in effect on the

    date of adjudication -- in this case, September 2, 1993 --

    controls.  Although the amended version arguably would have

    permitted termination proceedings to go forward upon a finding

    that such was in the best interest of the child, the statute that

    was in effect contained no such provision.  It unequivocally

    prohibited a termination of parental rights based on a finding of

    dependency under subsection 4(1)(c).  A.F., 234 Ill. App. 3d

    1010, 602 N.E.2d 480.  The fact that the State could have filed

    and proved up another petition for wardship is not relevant.  The

    State did not do so.  See J.P.S., 198 Ill. App. 3d 633, 556

    N.E.2d 268.  Accordingly, we agree that the court lacked

    authority to terminate Debbie's parental rights with respect to

    C.B., and this cause must be remanded for further proceedings.

    See A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480; J.P.S., 198 Ill.

    App. 3d 633, 556 N.E.2d 268.

                    2.  Sufficiency of Evidence of Unfitness   

        Debbie next contends that the State's evidence of unfitness

    was not clear and convincing.  We do not agree.

        A trial court's finding of parental unfitness is entitled to

    great deference since the court has the opportunity to view and

    evaluate the testimony of the witnesses.  In re Henry, 175 Ill.

    App. 3d 778, 530 N.E.2d 571 (1988).  On review, the court's

    decision may not be disturbed unless it is contrary to the

    manifest weight of the evidence.  In re Allen, 172 Ill. App. 3d

    950, 527 N.E.2d 647 (1988).

        A parent may be found unfit pursuant to section 1(D)(m) for

    failure "to make reasonable efforts to correct the conditions

    which were the basis for removal of the child from [the] parent,

    or to make reasonable progress toward the return of the child

    within 12 months after an adjudication of neglected minor, abused

    minor or dependent minor."  750 ILCS 50/1(D)(m) (West 1994).  The

    finding of unfitness may be sustained on the basis of either

    failed efforts or failed progress, even if the evidence is

    insufficient to support the State's other allegations.  In re

    J.A.S., 255 Ill. App. 3d 822, 627 N.E.2d 770 (1994).  Whether a

    parent's progress is reasonable involves an objective judgment

    based on progress measured from conditions existing at the time

    custody was taken from the parent.  Allen, 172 Ill. App. 3d 950,

    527 N.E.2d 647.  The entire period of the court's wardship should

    be considered in measuring the parent's progress.  In re R.S.,

    174 Ill. App. 3d 132, 528 N.E.2d 25 (1988).  At a minimum,

    reasonable progress requires some measurable or demonstrable

    movement toward the goal of reunification.  Allen, 172 Ill. App.

    3d 950, 527 N.E.2d 647.

        In this case, the court found Debbie unfit under both parts

    of subsection 1(D)(m).  The record amply supports the court's

    finding that Debbie made no measurable progress toward the return

    of her children during the 2½-year period that they were in

    continuous foster care prior to the unfitness hearing.

        Y.B., T.M., J.M. and S.P. were adjudicated dependent in 1992

    because Debbie was unable to care for them.  705 ILCS 405/2--

    4(1)(a) (West 1994).  Although inadequate housing was an

    immediate concern, Debbie's chemical dependency was recognized as

    an underlying problem as early as April of 1993, when DCFS first

    recommended a substance abuse evaluation.  Debbie was aware of

    her alcohol addiction and the fact that her failure to complete

    treatment precluded her from regaining custody of her children.

    Nonetheless, she never maintained sobriety sufficient to complete

    a treatment program.  Nor did she obtain stable housing

    appropriate for the children.

        During the time her children remained in foster care, Debbie

    occasionally submitted to chemical dependency treatment and

    sometimes found appropriate housing.  However, she demonstrated

    absolutely no commitment to either task.  At the start of the

    unfitness hearing, Debbie had been sober for only one month and

    had no permanent address.  We note that she relapsed before the

    hearing was completed.  Thus, while she may be commended for

    honesty in reporting drinking relapses right up to the best

    interest hearing, the evidence overwhelmingly established that

    Debbie has made no measurable progress toward the goal of

    reunification with her children.  Accordingly, we affirm the

    trial court's finding of unfitness on this ground without

    addressing the State's alternate ground of failure to make

    reasonable efforts.  See In re D.L.W., 226 Ill. App. 3d 805, 589

    N.E.2d 970 (1992).

            3.  Sufficiency of Evidence of Children's Best Interests

        Debbie also contends that the State did not prove by clear

    and convincing evidence that it was in the children's best

    interests to terminate her parental rights.  Again, we disagree.

        Initially, this court has recently determined that the State

    is not required to prove its case by clear and convincing

    evidence at the best interest stage.  See In re V.O., No. 3--96--

    0117 (Ill. App. ___ , 1996).  Instead, once a parent has been

    found unfit by clear and convincing evidence, the decision to

    terminate parental rights rests within the sound discretion of

    the trial judge.  V.O., No. 3--96--0117 (Ill. App. ___, 1996).

    On review, we will not overturn that decision unless it is

    against the manifest weight of the evidence.  In re S.O., 272

    Ill. App. 3d 144, 649 N.E.2d 997 (1995).  

        The record establishes that all of Debbie's children have

    serious emotional and behavioral problems.  They require

    specialized care far beyond Debbie's foreseeable ability to

    provide for them.  The trial court was well aware that the three

    older children harbor sincere affection for their mother, but

    found that any possibility of their reuniting with her was

    unrealistic.  The record supports the court's conclusion that it

    was in the children's best interests to sever their relationship

    with Debbie and allow them to move on with their lives without

    further false hopes.  Accordingly, we affirm the trial court's

    decision to terminate Debbie's parental rights with respect to

    Y.B., T.M., J.M. and S.P.

                                   CONCLUSION

        The judgment of the circuit court of Peoria County

    terminating Debbie's parental rights is reversed with respect to

    C.B. and affirmed in all other respects.

        Affirmed in part; reversed in part and remanded.

        MICHELA and McCUSKEY, JJ., concurred.