In re Y.B. , 285 Ill. App. 3d 385 ( 1996 )

                             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.