In re Ta.A. ( 2008 )

No. 3--07--0513
(Consolidated with Nos. 3--07--0514 and 3--07--515)
_________________________________________________________________
Filed July 7, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
In re Ta.A., Te.A., and G.A., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) Nos. 07--JA--02, 07--JA--03,
) and 07--JA--04
v. )
)
G.A., ) Honorable
) Albert L. Purham, Jr.,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________
PRESIDING JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________
The trial court adjudicated the minors, Ta.A. (Age 7), Te.A.
(Age 6), and G.A. (Age 3), neglected, pursuant to stipulations by
the parties. At the dispositional hearing, the trial court found
the respondent, G.A. (hereafter the respondent), fit but made the
minors wards of the court and named the Department of Children
and Family Services (DCFS) as guardian. The respondent appeals,
arguing that the trial court's placement of the children outside
his home was against the manifest weight of the evidence. We
vacate the trial court's order and remand the cause for further
proceedings consistent with this decision and the decision in In
re C.B., T.A., T.A., and G.A., No. 3--07--0496 (2008)
(unpublished order under Supreme Court Rule 23).
FACTS
On January 3, 2007, the State filed petitions, alleging that
the minors and their brother, Cameron (Age 9), who has a
different father, were neglected in that they lived in an
environment that was injurious to their welfare. The petitions
alleged that on December 22, 2006, Carlos I., Cameron's father,
stole $60 from the minors' mother, Robin B. Carlos left the
house but returned later. When Robin told him to leave, he
grabbed Robin and threw her into the front door, resulting in
cuts to her hand as it went through the door. Carlos then
threatened Cameron that he would hurt him if he told anyone about
the incident. The minors, Ta.A. and Te.A., were also in the
house at the time. Carlos returned to the house on December 24,
2006, and was arrested. He returned again on December 27, 2006.
The petitions further alleged that Robin knew that Carlos
had a substance abuse problem and a tendency to be violent but
allowed him to be around the minors. On December 29, 2006, Robin
refused to sign a DCFS safety plan to keep Carlos out of the
house. She also refused to obtain an order of protection against
Carlos. The petitions concluded with general allegations about
the criminal histories of Carlos, Robin, and the respondent. As
to the respondent, it alleged that he was convicted of armed
robbery and the manufacture and distribution of a controlled
substance in 1994.
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On May 8, 2007, the trial court held an adjudication
hearing. It found that the minors were neglected in that they
were living in an environment injurious to their welfare because
the respondent and Robin stipulated that the State could prove
the allegations in the petitions. At the time of the
adjudication, Ta.A. and Te.A. lived in relative foster care
following the incidents of neglect. G.A., who was not present
when the incidents of neglect occurred, lived in Maine with her
maternal grandmother.
DCFS prepared a dispositional hearing report on May 25,
2007. The respondent and Robin had an intermittent relationship,
beginning in 1998. At the time, the respondent had four children
and Robin had three children. The relationship resulted in the
birth of two children, Ta.A. and Te.A., in 1999 and 2000. Six
months after Ta.A.'s birth, the respondent began to be actively
involved in her life. She stayed with the respondent about five
or six days a week, and the respondent paid for her day care and
bought her clothes. The respondent maintained an active
relationship with Ta.A. until Robin moved to Maine in 2002 when
Ta.A. was three years old. The respondent did not have much of a
relationship with Te.A. when Robin moved. The respondent's
relationship with Robin apparently ended when she moved with the
children to Maine. However, in 2002, the respondent visited
Robin in Maine, and she became pregnant with G.A., who was born
in 2003. The respondent did not have any contact with the
children while they were in Maine.
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In June 2006, Robin moved back to Illinois with the
children. Robin allowed Ta.A. to live with the respondent on a
full-time basis for a couple of months. During this time,
Robin's sister took care of Te.A. In August 2006, the respondent
told Robin that he wanted guardianship of Ta.A., who wanted to
live with him. The respondent also made the same offer as to
Te.A., but Te.A. declined because he did not have a relationship
with the respondent. The report does not indicate whether Ta.A.
came to live with the respondent at this time, but it appears
that she did not. According to the respondent, he did not know
that the minors were at risk until Robin told him that the
children were taken into protective custody and he read the
State's petitions.
The report further indicated that the respondent was
convicted in 1994 for armed robbery and the manufacture and
distribution of a controlled substance. He served three years in
prison and was released in 1997. The respondent stated that he
never experimented with alcohol or any other substances. As a
condition of his parole, he submitted to over 80 drug screens,
all of which were negative. The respondent's assessment for
treatment and services concluded that he did not need drug and
alcohol treatment or any other services.
While in prison, the respondent passed the general
educational development test and earned his bachelor's degree in
food service in 1997. He is currently employed full-time at two
restaurants. He pays child support.
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The respondent had three more children with two women
following his relationship with Robin. He currently resides with
one of the women, although they are not involved in a romantic
relationship, and their two children.
The respondent indicated that he wanted Ta.A., Te.A., and
G.A. to live with him. Ta.A. expressed a desire to live with the
respondent. Te.A. would like to visit with the respondent, as he
is not familiar with him.
On July 9, 2007, DCFS prepared an addendum to their initial
dispositional hearing report. The addendum indicated that the
respondent participated in weekly supervised visits with Ta.A.
and Te.A. The visits had been positive and beneficial for the
children. The addendum recommended that the respondent be
allowed unsupervised visitation at the discretion of DCFS.
On July 24, 2007, the trial court held a dispositional
hearing. Robin testified that between August 2006 and December
2006 she lived in various homes in Peoria. During this time, the
respondent visited the children about two times. In October
2006, Robin decided to not allow the respondent to visit with the
children because she believed that he favored Ta.A. and that he
was not interested in visiting with Te.A. Specifically, she
believed, although not confirmed by the caseworker, that the
respondent's former paramour and the woman he lived with did not
like Te.A. Also, Te.A. did not seem interested in visiting with
the respondent.
The respondent confirmed Robin's testimony about his
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visitation with the children between August 2006 and December
2006. However, he stated, and the caseworker confirmed, that his
supervised visits with the children had gone well since they have
been in foster care. He believed that his relationship with
Te.A. had improved, and Te.A. appeared to respond well to the
respondent's disciplinary measures. The respondent wanted Ta.A.
and Te.A. to live with him. He did not think that G.A. should
live with him as she lived in Maine, and he had not developed a
relationship with her. He would like to develop a relationship
with her.
The trial court found that the respondent was fit and that
Robin was unfit. The trial court made the minors wards of the
court and named DCFS as guardian with the right to place. The
trial court gave DCFS discretion to order unsupervised visits
between the respondent and the minors. The minors could not be
returned home without a court order.
The respondent appeals.
ANALYSIS
On appeal, the respondent argues that the trial court's
placement of the children outside his home was against the
manifest weight of the evidence.
Under section 2--27(1) of the Juvenile Court Act of 1987,
the trial court may commit a minor to DCFS wardship if the trial
court determines that the parents are "unfit or are unable, for
some reason other than financial circumstances alone, to care
for, protect, train or discipline the minor or are unwilling to
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do so, and that the health, safety, and best interest of the
minor will be jeopardized if the minor remains in the custody of
his or her parents[.]" 705 ILCS 405/2--27(1) (West 2006).
Generally, both parents must be adjudged unfit, unable, or
unwilling before placement with DCFS is authorized because
biological parents have a superior right to custody. In re Ryan
B., 367 Ill. App. 3d 517, 855 N.E.2d 272 (2006). On review, the
trial court's decision will be reversed if the findings of fact
are against the manifest weight of the evidence or the trial
court committed an abuse of discretion by selecting an
inappropriate dispositional order. In re April C., 326 Ill. App.
3d 245, 760 N.E.2d 101 (2001).
In this case, the trial court committed the minors to DCFS
wardship even though it did not find the respondent unfit,
unable, or unwilling to care for, protect, train, or discipline
the minors. In fact, the trial court found that he was fit, and
the evidence showed that he was willing to care for the minors,
particularly Ta.A. and Te.A.
The evidence showed that, prior to the neglect proceedings,
the respondent had little involvement in the minors' lives
because the minors lived in Maine for many years. He only really
had a relationship with Ta.A prior to their move to Maine.
However, after the respondent received notice of the neglect
proceedings, the respondent expressed a desire to have the minors
live with him. He pursued visitation with Ta.A. and Te.A., and
such visitation had been successful in fostering a relationship
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between the respondent and the minors. Ta.A. had expressed a
desire to live with the respondent. Te.A. had become more
comfortable with the respondent, and he responded well to the
respondent's disciplinary measures. Thus, we find that the trial
court properly found that the respondent was fit, but we question
the trial court's decision to grant DCFS the right to place the
minors in foster care. See Ryan B., 367 Ill. App. 3d 517, 855
N.E.2d 272 (finding that the trial court erred in finding that
the respondent father was unwilling where he expressed a desire
to have the child live with him even though he had established
little more than a biological relationship with the child prior
to the institution of wardship proceedings).
The trial court's decision to grant DCFS guardianship with
the right to place was an abuse of discretion. The trial court
did not articulate a reason as to why it granted DCFS
guardianship with the right to place, and we refuse to speculate.
As such, it was inappropriate for the trial court to place the
minors with a third party, considering the respondent's superior
right to custody. See In re M.K., 271 Ill. App. 3d 820, 649
N.E.2d 74 (1995) (stating that a child may not be placed with a
third party without good cause or reason to deny custody to a fit
parent); see also Ryan B., 367 Ill. App. 3d 517, 855 N.E.2d 272
(finding that the trial court erred in granting guardianship to
DCFS with the right to place where the respondent, a parent with
a superior right to custody of his own child, did not live in
mother's house--the injurious environment to the child--and he
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had a safe and nurturing house for the child).
The record shows that the trial court did not consider the
respondent's superior right to custody of his children. The
trial court properly found that the respondent was fit but
erroneously ordered DCFS guardianship with the right to place.
We vacate the trial court's dispositional order, granting
guardianship to DCFS with the right to place, and remand for
further proceedings. We note to the trial court that we reversed
the finding of unfitness against the minors' mother, Robin, in In
re C.B., T.A., T.A., and G.A., No. 3--07--0496 (2008)
(unpublished order under Supreme Court Rule 23). On remand, the
trial court should read this order in conjunction with the order
in that case when it conducts its further proceedings.
CONCLUSION
For the foregoing reasons, we vacate the dispositional order
of the trial court, granting guardianship to DCFS with the right
to place, and remand the cause for further proceedings consistent
with this decision and the decision in In re C.B., T.A., T.A.,
and G.A., No. 3--07--0496 (2008) (unpublished order under Supreme
Court Rule 23).
Order vacated; cause remanded.
WRIGHT and HOLDRIDGE, JJ., concur.
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