In re V.O. , 284 Ill. App. 3d 686 ( 1996 )

                             No. 3--96--0117

_________________________________________________________________

                             IN THE

         APPELLATE COURT OF ILLINOIS

                       THIRD DISTRICT

                           A.D., 1996

IN RE V.O., D.P., J.P., T.P.,    )  Appeal from the Circuit Court

J.P., P.P., J.P., J.P., & M.P., )  of the 10th Judicial Circuit,

    Minors                      )  Peoria County, Illinois

                                )

(THE PEOPLE OF THE STATE      )

OF ILLINOIS,                     )

                                )

    Petitioner-Appellee,        )  No. 92--J--519

                                )

    v.                          )

                                )

JONATHAN P.,                     )  Honorable

                                )  Stuart P. Borden

    Respondent-Appellant).      )  Judge, Presiding

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JUSTICE LYTTON delivered the opinion of the court:

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    The respondent, Jonathan P., appeals from the judgment of the

circuit court which found him to be an unfit parent and terminated

his parental rights.  We affirm.

BACKGROUND

    On February 25, 1993, seven of the respondent's nine children

were adjudicated neglected.  The counts of neglect were based upon

their mother's drug addiction and the injurious nature of their

environment stemming from that addiction.  705 ILCS 405/2--3(b)

(West 1992).  The remaining two children were subsequently adjudi-

cated neglected after they were born with cocaine in their systems.

705 ILCS 405/2--3(c) (West 1992).  The children ranged in age from

12 years to 6 months.

    The unfitness hearing was held on November 8, 1995.  Elizabeth

Clayton, a Department of Children and Family Services (DCFS) case-

worker, testified that she had been involved in this case since

March 1, 1993.  At that time, the respondent's service plan

objectives were to obtain employment, attend parenting classes, and

receive drug, alcohol and psychological evaluations.  When that

service plan was later evaluated, the only goal the respondent had

completed was the psychological evaluation.  In November 1993, the

respondent began unsupervised visits with his children.  However,

in April 1994, those visits were terminated because he repeatedly

allowed the children to see their mother in violation of a court

order.  

    His next service plan, devised in April 1994, required  him to

participate in a 12-step program to learn about substance abuse and

the effects of such abuse on his family.  However, he had not

attended the program at the time of his next evaluation.  Clayton

further testified that the respondent made poor progress with the

November 1994 service plan.  He eventually went to a drug and

alcohol evaluation in January 1995.  The evaluators told him that

they thought he had an alcohol problem and that he should partici-

pate in a weekly class. He refused to participate, however, because

he did not believe that he had a problem.

    According to Clayton, during the time she was the respondent's

caseworker, he failed to attend 25% of the scheduled visits.  She

also said that from about October 1993 to January 1995, the

respondent had the same address as the children's mother, Bunny P.

The court had prohibited Bunny from seeing the children due to her

drug addiction.  To the best of Clayton's knowledge, the respondent

and Bunny lived together during the time they shared an address.

At other times, Clayton did not have an address for the respondent.

    Kelly Anderson, a caseworker for Counseling and Family

Services, testified that she evaluated the respondent's compliance

with the May 1995 service plan.  At that time, he still had not

completed a 12-step program which DCFS had requested in 1994.

Anderson also observed the respondent's visits with the children

beginning in June 1995.  The respondent would sit in a chair and

occasionally ask one of the children to sit in his lap.  He would

direct the children from the chair to stop fighting and hitting

each other.  At one point, however, the respondent said, "go ahead

and tear up the room, because we have to be in such a small place

anyway."

    The State then called the respondent as an adverse witness.

He testified that he lived alone at the Shamrock Hotel and had

lived there for about three months.  However, he admitted that his

wife had spent the night with him there about a month before. He

said that he and his wife last lived together on a full-time basis

in September 1994, when he was found in contempt for allowing her

to have contact with the children.  He said that they have

continued to see each other and she sometimes spent the night with

him.  Finally, the respondent denied allowing any contact between

the children and their mother other than yelling out the window,

which he did not consider "contact" with the children.  He denied

having previously told the court at a review hearing that he had

allowed contact between the children and his wife.

    Clayton was recalled as a rebuttal witness.  She testified

that in a court review on January 28, 1994, the trial judge asked

the respondent if he was allowing contact between his wife and the

children.  The respondent said that he was allowing her to see them

and that she was their mother and would not harm them.       

    The respondent then testified on his own behalf.  He admitted

that he did not complete the 12-step program.  He said he did not

do so because its purpose was to understand the effects of drug

abuse on the family and, since he no longer lived with his wife, he

did not need to attend the sessions.  He said he had not lived with

his wife for 1½ to 2 years and did not intend to live with her

again.  He said he understood that her parental rights have been

terminated and that she is allowed no contact with the children.

    At the conclusion of the evidence, the trial court found the

respondent unfit because he (1) failed to make reasonable efforts

to correct the conditions which were the basis for the removal, and

(2) failed to make reasonable progress toward the return of the

children within 12 months of adjudication.  750 ILCS 50/1(D)(m)

(West 1992).  

    At the best interests hearing, Anderson and Clayton submitted

reports about the children to the court.  Emily McGhee of Counsel-

ing and Family Services and Pat Alexander of DCFS also submitted

reports.  In general, their reports concluded that the respondent

had failed to take any responsibility for his children being in

foster care.  He continued to believe that he and his wife were

good parents who had done nothing wrong, and he continued to

support his wife rather than work toward the return of the

children.  According to the reports, the respondent told the

children during visits that the only reason they were not at home

was because he needed to find a large enough place for them all to

live.  This explanation left the older children hopeful, confused,

and frustrated.  The reports also stated that the respondent's

sporadic attendance at visits belied his claims of interest.  On

October 6, 1993, the caseworkers began requiring him to call the

day before a visit to confirm that he would attend because he had

missed five visits in a six-month period without explanation.

Since March 1994, the respondent did not attend 14 of the 35

scheduled visits.  Finally, the authors concluded that it would be

in the best interests of the children to terminate the respondent's

parental rights.  

    The respondent testified that he had moved from the Shamrock

Hotel to his sister's house and was saving money to obtain living

arrangements suitable for himself and the children.  He said that

although he would like all of the children returned to him, he

would particularly like a chance with the three oldest ones.  He

testified that it was not his fault that his children were taken

away.  He also noted that he had completed a 12-step Al-Anon

program and had begun working at the Peoria Civic Center.  

    Thelma Munoz, the respondent's mother and the foster mother of

two of the children, testified that the girls always talked about

their father and hoped that some day he would come home.  She said

that prior to the children going into foster care, the respondent

took care of them more than his wife did.

    Tina Hopson, the respondent's sister, testified that when she

was younger and "running the streets" her brother lived with her

and took care of her child.  She said that when her brother has his

children he takes good care of them and neighbors call him Mr. Mom.

    After hearing all the evidence, the court terminated the

respondent's parental rights.

DISCUSSION

    On appeal, the respondent first argues that the trial court's

finding that he was unfit was against the manifest weight of the

evidence.

    In this case, the State alleged that the respondent failed to

make reasonable efforts to correct the conditions that were the

basis for removal of the children and failed to make reasonable

progress toward the return of the children.  750 ILCS 50/1(D)(m)

(West 1992).  Whether a parent's efforts to correct conditions are

reasonable involves a subjective judgment of a particular parent's

efforts; however, the reasonableness of a parent's progress toward

the child's return is measured objectively by the amount of

movement toward the goal of reunification.  In re L.L.S., 218 Ill.

App. 3d 444, 577 N.E.2d 1375 (1991).  A finding of unfitness must

be based on evidence that is clear and convincing.  In re Adoption

of Syck, 138 Ill. 2d 255, 562 N.E.2d 174 (1990).  Once such a

finding has been made, however, it will be given great deference

and will not be disturbed on appeal unless it is contrary to the

manifest weight of the evidence.  In re J.B., 198 Ill. App. 3d 495,

555 N.E.2d 1198 (1990).

    Here, we find that there was ample evidence of unfitness.  The

respondent's children were removed from his home due to his wife's

drug abuse problem.  However, he allowed the children to see their

mother even after being ordered by the trial court not to do so.

He repeatedly failed to complete a 12-step program to understand

how drug abuse affected his family until after the unfitness

hearing.  He lived with his wife for much of the time that he was

supposed to be working toward the return of his children.  He

failed to attend many of the visits that DCFS arranged for him to

see his children.  In sum, we find that the respondent consistently

demonstrated both a lack of reasonable effort and reasonable

progress.  Accordingly, we hold that the trial court's decision

finding him unfit is not against the manifest weight of the

evidence.  

    Next, the respondent argues that the State did not prove by

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

interests to terminate his parental rights.  

    In response, the State argues that the proper burden of proof

of the children's best interest lies within the sound discretion of

the trial court, and its decision will not be reversed absent an

abuse of that discretion.  See In re Jason U., 214 Ill. App. 3d

545, 574 N.E.2d 90 (1991).  Within this argument, the State submits

that our decision in In re B.C., 247 Ill. App. 3d 803, 617 N.E.2d

1207 (1993), is incorrect.  In B.C., we indicated that clear and

convincing evidence was necessary to terminate parental rights.

B.C., 247 Ill. App. 3d at 806, 617 N.E.2d at 1210.  We have re-

examined this issue, however, and agree with the State that once a

parent has been found unfit by clear and convincing evidence, the

decision to terminate an individual's parental rights rests within

the sound discretion of the trial judge.

    The remaining question is whether the trial court abused its

discretion in terminating the respondent's parental rights.  In

this case, the respondent failed to take responsibility for his

children being in foster care.  As late as the best interest

hearing, he did not believe that it was his fault that his children

were taken from him.  He misled the children about an eventual

homecoming, which only confused and frustrated them.  He could not

even manage to show enough interest or concern to attend the

planned visits with the children, missing almost half of the visits

from March 1994 to the time of the hearings.  The trial court did

not abuse its discretion in terminating the respondent's parental

rights.  

    The judgment of the circuit court of Peoria County is

affirmed.

    Affirmed.

    MICHELA and SLATER, JJ., concur