In re: S.J., a Minor , 368 Ill. App. 3d 749 ( 2006 )

NOS. 4-06-0562, 4-06-0596 Filed: 11/30/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: S.J., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Champaign County
v. (No. 4-06-0562) ) No. 03JA11
MARK ROEMER, )
Respondent-Appellant. )
________________________________________)
In re: S.J., a Minor, )
THE PEOPLE OF THE STATE OF ILLINOIS, )
Petitioner-Appellee, )
v. (No. 4-06-0596) ) Honorable
KIM SLATER, ) Holly F. Clemons,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
On August 30, 2005, the Champaign County trial court
entered an order placing custody and guardianship of S.J. (born
January 30, 2003) with his foster mother, Debra Faulkner.
Respondents, Kim Slater, formerly known as Kim Johnson-Slater,
and Mark Roemer, are S.J.'s biological parents, and each appealed
the trial court's order. On appeal, we reversed and remanded,
ordering that the trial court comply with section 2-28 of the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-
28 (West 2004)). Upon remand, the trial court entered a revised
order again placing permanent custody and guardianship of S.J.
with Faulkner. Kim and Roemer appeal. We reverse and remand
with directions.
I. BACKGROUND
The facts and procedural history of this case are fully
set forth in our previous opinion (In re S.J., 364 Ill. App. 3d
432, 846 N.E.2d 633 (2006)) and will only be repeated as needed
to resolve the issues presented in this appeal.
At the time of the trial court's August 30, 2005,
order, S.J., who was then 2 1/2 years old, was living with his
foster mother, Faulkner, whom he had been living with since he
was 6 days old. S.J. had been removed from his biological
mother, Kim, because he was neglected in that Kim continued to
reside with her third husband, who had sexually molested Kim's
daughters. Roemer, S.J.'s biological father and Kim's first
husband, had been indicated for sexually molesting his
stepdaughter and daughters. On January 11, 2005, the trial court
set a permanency goal of returning S.J. home to Kim within five
months as she had made reasonable efforts and progress. A month
later, Faulkner filed a motion to intervene, which was granted.
The court also granted Faulkner's motion for a bonding
assessment.
Dr. Judy Osgood completed a bonding assessment and
concluded that S.J. had a strong bond with Faulkner and a lesser
bond with Kim. Dr. Osgood concluded that S.J. should remain with
Faulkner as removing him could cause him to develop reactive-
attachment disorder and posttraumatic stress disorder. Dr.
Osgood recommended, though, that S.J. continue to have visits
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with his biological family. The trial court held a permanency
hearing in which it heard a great deal of testimony and evidence.
On August 30, 2005, the court concluded that it was in S.J.'s
best interest that his custody and guardianship be permanently
transferred to Faulkner with continued visitation with his
biological family as recommended by Dr. Osgood. Kim and Roemer
appealed this decision.
Pending the outcome of this court's decision, the trial
court held a hearing on November 7, 2005, regarding the
guardianship of three of S.J.'s halfsiblings. The attorney for
the half siblings requested that guardianship be returned to the
Department of Children and Family Services (DCFS), as issues
needed to be addressed that had arisen upon the children's return
home and because the children needed to have their own individual
counselor, not the same one Kim had. None of the parties
objected to the request, as a change in guardianship allowed DCFS
to provide and pay for necessary services. Guardianship was
eventually switched to Kim.
At a hearing on January 23, 2006, Dr. Osgood, the
author of the bonding assessment, submitted a letter to the trial
court along with the foster-parent report. The letter suggested
that visitation between Kim and S.J. be more limited and
supervised. S.J.'s attorney requested that the court order a
third party to attend certain interactions between S.J. and all
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parties. None of the parties objected to this suggestion.
On February 9, 2006, the trial court held a review
hearing. At the hearing, Roemer testified that Faulkner refused
him a regularly scheduled visit with S.J. because Roemer had
attended S.J.'s birthday party during Kim's court-ordered
visitation. Dr. Osgood testified about her recommendation that
S.J.'s visits with his biological parents be reduced and
supervised. Dr. Osgood reported that since Osgood last
testified, Faulkner had called her and come into her office on
various occasions with concerns about S.J.'s behavior after the
visits with his biological parents. Aside from Faulkner's visits
to her office, Dr. Osgood also went to Faulkner's home once to
observe Faulkner and S.J. Dr. Osgood opined that the
difficulties Faulkner reported S.J. having were consistent with
the concerns expressed in her previous testimony. While Faulkner
was the primary source of information concerning S.J.'s problems,
Dr. Osgood also spoke with Dashon Jones, S.J.'s day-care worker,
who also reported S.J. having problems after visits with his
biological parents. Dr. Osgood admitted that other things such
as changes in S.J.'s routine could also be the cause of S.J.'s
apparent stress. Dr. Osgood also discussed the possibility of an
independent third party observing S.J. and all of the parties.
On February 14, 2006, the trial court resumed the
review hearing. Kim's attorney submitted stipulated evidence
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that a birthday party for S.J. had gone well. In arguments to
the court, Faulkner's attorney argued that as Faulkner was the
custodian and guardian, she should be the one determining the
time and length of the visits between S.J. and anyone else. The
other parties argued that visits should not be reduced and an
independent person should observe S.J.'s interactions with the
parties. The court continued S.J.'s case to a status hearing.
At the status hearing, the trial court indicated that a
University of Illinois student observer had been located to
observe S.J. and the parties. Arrangements for the observations
were discussed.
This court's opinion in the first appeal was issued in
March 2006 with our mandate scheduled to issue on April 25, 2006.
In our opinion, we found that the trial court failed to set a
permanency goal and failed to comply with the requirements of
section 2-28 of the Juvenile Court Act. S.J., 364 Ill. App. 3d
432, 846 N.E.2d 633.
On March 7, 2006, the trial court held a brief hearing
concerning the logistics for the independent observer and the
parties' concerns. On May 15, 2006, the trial court held a
hearing wherein the parties reported that the observer had
prepared a report but not all of the parties had the opportunity
to fully review it.
On May 22, 2006, the trial court held a permanency
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review hearing. Some off-the-record discussions were had
apparently concerning this court's mandate. On the record,
Roemer's attorney objected to the court considering previously
adduced evidence. The court and S.J.'s attorney stated that
based on our mandate, the court need only prepare a new order
that satisfied section 2-28 of the Juvenile Court Act (705 ILCS
405/2-28 (West 2004)). The court did, though, set a hearing for
July 6, 2006, in the event that any of the parties wished to
present additional evidence.
The trial court entered a written formal order on June
8, 2006. In the written order, the court found that reasonable
efforts had been made by DCFS to achieve the permanency goal and
reasonable efforts and progress had been made by Kim and Roemer.
Despite the reasonable efforts and progress, the court found Kim
and Roemer unable, for reasons other than financial circumstances
alone, to care for, protect, train, and discipline S.J. and
placing S.J. with either of them would jeopardize his health,
safety, and best interests. The court held that S.J. must remain
in DCFS care because Kim and Roemer must complete counseling and
continue to maintain stable lifestyles. As to Roemer, the court
found he had health issues that had not been resolved and caused
him significant pain. S.J.'s current placement with Faulkner was
deemed necessary and appropriate to the current service goal and
plan. Stating that it considered the factors specified in
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section 2-28(2), the court found that the permanency goal that is
in S.J.'s best interest is transfer of guardianship to Faulkner
on a permanent basis (705 ILCS 405/2-28(2) (West 2004)). The
court explained its reasons for this permanency goal as follows:
"the respondent minor has been in the care of
Ms. Faulkner continuously since the beginning
of February 2003, when he was a few days old.
Due to the extensive period of time that he
has spent in Ms. Faulkner's loving care, and
the stability he has received there, [S.J.]
has developed a very strong bond with Ms.
Faulkner and her children. *** The court
has numerous concerns with both biological
parents that must be addressed. First, [Kim's]
relationship with [Roemer] remains problematic
and antagonistic. They continue to argue
regularly. Second, the court has concerns with
respect to [Kim's] credibility. In particular,
the court has misgivings about [Kim's] ability
to self-report incidents that would reflect
adversely on her parenting skills. This,
coupled with [S.J.'s] young age, two years old,
make him especially vulnerable, because he has
limited verbal skills, and his ability to
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verbalize his concerns to another adult who
could act on his behalf is questionable.
Third, [Kim] lacks empathy, which is parti-
cularly essential in caring for a young child.
Fourth, both respondent parents have violated
court orders in the past. [Roemer] violated
the De Witt County court's visitation order,
and despite [Kim's] protestations, the court
believes that this was done with her tacit
approval. Fifth, although [Roemer] is engaged
in individual counseling, and he is making
progress, he ha[s] not fully addressed his
issues. Sixth, he was indicated by DCFS
for sexual abuse of S.J.'s siblings *** and
[Kim] has stated that [S.J.] was conceived as
a result of [Roemer] raping her. Dr. Osgood
has opined that [S.J.] is at great risk of
developing reactive[-]attachment disorder and
post[]traumatic stress disorder if he is
removed from [Faulkner's] care and from the
family he had bonded with for years. He has
demonstrated symptoms consistent with Dr.
Osgood's diagnoses following visits with [Kim
and Roemer]. For the foregoing reasons, the
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court has eliminated the 'return home' goals.
[705 ILCS 405/2-28(2)(A), (2)(B) (West 2004)].
While the court recognizes that respondent
parent's [sic] parental rights remain intact,
a return home would be psychologically devas-
tating to the minor, and not in his best
interest."
The court concluded that the goals of "short-term care with a
continued goal to return home pending a status hearing" (705 ILCS
405/2-28(2)(B-1) (West 2004)) and "substitute care pending court
determination on termination of parental rights" (705 ILCS 405/2-
28(2)(C) (West 2004)) are inappropriate as Kim and Roemer have
made reasonable efforts and progress. Further, the court stated
the goal of "[a]doption" (705 ILCS 405/2-28(2)(D) (West 2004)) is
not appropriate because parental rights remain intact. The court
found no just reason to delay enforcement or appeal. Kim and
Roemer both appealed.
II. ANALYSIS
Kim and Roemer both argue on appeal that the trial
court abused its discretion when it ruled out return home to Kim.
Kim and Roemer allege that the court's finding that it was in
S.J.'s best interest to transfer custody and guardianship of S.J.
to Faulkner was against the manifest weight of the evidence.
Parental rights may be terminated only upon a finding
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of unfitness, and such finding must be supported by clear and
convincing evidence. In re D.T., 212 Ill. 2d 347, 352-53, 818
N.E.2d 1214, 1220 (2004). Under certain circumstances it is not
necessary that the natural parent be found unfit if it is in the
best interest of the child that he be placed in the custody of
someone other than the parent. In re Austin W., 214 Ill. 2d 31,
51, 823 N.E.2d 572, 584 (2005). That is the case under section
2-28(2)(E) of the Juvenile Court Act (705 ILCS 405/2-28(2)(E)
(West 2004)), but the court must follow other procedural
requirements of the Act, first ruling out any return home
possibilities. In re Custody of T.W., 365 Ill. App. 3d 1075,
1083-84, 851 N.E.2d 881, 889 (2006).
As we stated in the first appeal, we review the trial
court's best-interest determination under the manifest-weight-of-
the-evidence standard. S.J., 364 Ill. App. 3d at 441, 846 N.E.2d
at 641, citing Austin W., 214 Ill. 2d at 51-52, 823 N.E.2d at
585. We further noted in the previous appeal, that "[i]t is well
settled that a parent has superior rights to the care and custody
of a child, unless the child is placed elsewhere due to an
adjudicated finding that the parent abused or neglected the
child." S.J., 364 Ill. App. 3d at 442, 846 N.E.2d at 641, citing
In re J.J., 327 Ill. App. 3d 70, 77, 761 N.E.2d 1249, 1255
(2001); In re S.S., 313 Ill. App. 3d 121, 132, 728 N.E.2d 1165,
1174 (2000). We recognize a biological parent's superior right
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to the custody of her child but acknowledge that in a custody
case the natural parent's right must "yield to the best interests
of the child." S.J., 364 Ill. App. 3d at 442, 846 N.E.2d at 641,
citing In re J.K.F., 174 Ill. App. 3d 732, 733, 529 N.E.2d 92, 93
(1988).
In S.J., we acknowledged that a trial court may
determine that it is in a minor's best interest to place custody
of that minor with someone other than a "fit" biological parent,
but that court must comply with section 2-28 of the Juvenile
Court Act (705 ILCS 405/2-28(1) (West 2004)). S.J., 364 Ill.
App. 3d at 442, 846 N.E.2d at 641. To comply with section 2-28,
the court must determine, at a permanency hearing, the future
status of the child and select one of the eight enumerated
permanency goals. 705 ILCS 405/2-28(2) (West 2004). Upon
selecting a goal, the court must enter a written order setting
forth that goal. 705 ILCS 405/2-28(3) (West 2004).
In this case, the trial court originally did not select
any of the eight enumerated permanency goals. The first six of
the eight goals are as follows:
"(A) The minor will be returned home
by a specific date within 5 months.
(B) The minor will be in short-term care
with a continued goal to return home within
a period not to exceed one year, where the
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progress of the parent or parents is sub-
stantial giving particular consideration to
the age and individual needs of the minor.
(B-1) The minor will be in short-term
care with a continued goal to return home
pending a status hearing ***.
(C) The minor will be in substitute care
pending court determination on termination of
parental rights.
(D) Adoption, provided that parental
rights have been terminated or relinquished.
(E) The guardianship of the minor will
be transferred to an individual or couple
on a permanent basis provided that goals (A)
through (D) have been ruled out." 705 ILCS
405/2-28(2)(A) through (2)(E) (West 2004).
In the current order, the court clearly selected the sixth goal
of private guardianship under section 2-28(2)(E) (705 ILCS 405/2-
28(2)(E) (West 2004)). After selecting a goal, section 2-28(2)
provides that the court must also indicate in writing the reasons
the goal was selected and why the preceding goals were ruled out.
705 ILCS 405/2-28(2) (West 2004). If the court selects private
guardianship as a goal, the court must rule out the preceding
five permanency goals (return home within five months, return
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home within one year, return home pending a status hearing,
substitute care pending termination of parental rights, and
adoption) and indicate its reasons for ruling out those five
goals. 705 ILCS 405/2-28(2)(E) (West 2004). While the court did
not originally follow this procedure, the new order does indicate
in writing the reasons the court selected private guardianship
and discusses the reasons why it ruled out the preceding goals.
As the trial court has now complied with section 2-28
of the Juvenile Court Act, the issue becomes whether the court's
decision regarding the goals it rejected and the goal it selected
was against the manifest weight of the evidence. In setting a
permanency goal that is in the best interest of the child, the
court must consider the following factors:
"(1) Age of the child.
(2) Options available for permanence.
(3) Current placement of the child and
the intent of the family regarding adoption.
(4) Emotional, physical, and mental
status or condition of the child.
(5) Types of services previously offered
and whether or not the services were success-
ful and, if not successful, the reasons the
services failed.
(6) Availability of services currently
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needed and whether the services exist.
(7) Status of siblings of the minor."
705 ILCS 405/2-28(2)(1) through (2)(7) (West
2004).
The court must also consider the permanency goal recommended by
DCFS, the appropriateness of the services provided, the parties'
efforts to achieve the goal, and the extent to which the goal has
been achieved. 705 ILCS 405/2-28(2) (West 2004).
In S.J. we noted that the trial court originally seemed
to rely heavily on only one factor, the child's emotional status.
S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643. In the new
order, the court reiterates S.J.'s emotional status as a reason
for selecting the goal by stating that S.J. "has been in the care
of Ms. Faulkner continuously since the beginning of February
2003, when he was a few days old. Due to the extensive period of
time that he has spent in Ms. Faulkner's loving care, and the
stability he has received there, [S.J.] has developed a very
strong bond with Ms. Faulkner and her children." While this
statement arguably also shows the court considered S.J.'s age and
his bond with his foster siblings, the court did not specifically
discuss any of the other factors. We look, therefore, to whether
the evidence in the record supports the court's determination.
We agree that the evidence supports ruling out the goal
of return home to Roemer. The court found Roemer unable to care
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for, protect, train, and discipline his children. The court
specifically found that (1) Roemer's relationship with Kim
remained antagonistic; (2) Roemer admittedly and knowingly
violated a court visitation order restricting visitation with his
three oldest children; (3) Roemer was indicated by DCFS for
sexual abuse of his two daughters and stepdaughter; (4) Kim
alleged S.J. was conceived when Roemer raped her; and (5) Roemer
has continued to refuse to address some of his issues in
counseling sessions. The court further noted that Roemer
admitted that he had a medical condition that prevented him from
caring for his children for more than short periods of time. The
court's decision to rule out the goal of return home to Roemer
was not against the manifest weight of the evidence.
The real issue is whether the trial court's
determination that return home to Kim was not feasible is against
the manifest weight of the evidence. As we stated in S.J., the
court determined Kim was fit and able to care for three of her
five children. S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643.
Kim's irreparably fractured relationship with her oldest daughter
made her unable to care for her oldest child. As for Kim's
inability to care for S.J., the court indicated that the primary
reason Kim was deemed unable to care for him was that S.J. had
lived continuously with Faulkner and recognized Faulkner as his
primary caretaker. Upon remand, the court advanced further
reservations about Kim, including her antagonistic relationship
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with Roemer, credibility issues, her lack of empathy, and her
violation of previous court orders. These reservations, though,
existed at the time of the first appeal and were apparently not
troubling enough to keep three of Kim's children from her.
In S.J., we advanced our reservations about the trial
court's decision to rule out return home to Kim based solely on
S.J.'s bond with Faulkner. S.J., 364 Ill. App. 3d at 444, 846
N.E.2d at 643. We determined as follows:
"Such reasoning runs counter to the Juvenile
Act and to the concept that parents have
superior rights to the care and custody of
their children. The fact that a child has
developed a relationship with his custodian
is irrelevant once the goal of return home
has been achieved. Even if parental rights
have been terminated, the relationship with
the custodian must yield to the rights of
an adoptive parent, if one can be found.
It is desirable that the child have some per-
manency in his life, regardless of his
relationship with his custodian. For that
reason, the goal of transfer of guardianship
on a permanent basis is available only 'pro-
vided that goals (A) through (D) [variations
on return home or adoption] have been ruled
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out.' 705 ILCS 405/2-28(2)(E) (West 2004)."
S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at
643.
We remanded, though, to allow the court to state any other
reasons S.J. should not be returned home to Kim. As the new
reasons advanced by the trial court did not prevent return home
of Kim's three middle children, we fail to see how they can
prevent return home of S.J. Further, these reasons existed
before the bonding assessment when the court was going to return
S.J. home to Kim. Only after Dr. Osgood's conclusion that S.J.
had developed a bond with Faulkner, did the court conclude return
home was no longer a viable option. Again, it looks as if the
sole reason the court determined S.J. should not be returned home
is because of his bond with Faulkner.
The "purpose and policy" section of the Juvenile Court
Act states that a goal of the Act is to achieve permanency at the
"earliest opportunity" for the subject children. 705 ILCS 405/1-
2 (West 2004). Placing S.J. with Kim would achieve permanency as
S.J. would be back with his biological family and the court would
no longer need to supervise. Placing S.J. with Faulkner is
inconsistent with this goal as the record clearly shows that the
court continues to be involved as a referee in the tug-of-war
between Faulkner and Kim concerning visitation with S.J. We do
not see how the trial court could rule out a permanent placement
with a fit biological parent who is able to parent some of her
children in favor of a placement, which will require constant
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court supervision, with a foster parent who is not obligated to
keep S.J.
It is unfortunate that the delay in this case has
resulted in a child being with a foster parent for so many years.
When an infant is placed with a foster parent, quick resolution
is especially important to prevent situations like these. When a
natural parent of a removed infant does not quickly make
reasonable efforts and progress, waiting for that parent to turn
things around will only create a more difficult situation,
especially if that parent eventually achieves fitness. No good
resolution is possible when delay in the system results in an
infant spending the first several years of his life with a foster
parent while the natural parent is given time to improve. It is
understandable that, after a period of years, a bonding within a
foster family would occur that would make separation difficult,
but the goal of the Juvenile Court Act is still to reunify the
original family. The Juvenile Court Act attempts to avoid long-
term foster placements with the heart-wrenching separations
created by return or adoption elsewhere. Johnson v. Burnett, 182
Ill. App. 3d 574, 582, 538 N.E.2d 892, 897-98 (1989).
For the foregoing reasons we find that the trial
court's placement of S.J. with Faulkner is against the manifest
weight of the evidence as the evidence does not support ruling
out the goal of short-term care with a continued goal of return
home to Kim within a period not to exceed one year. 705 ILCS
405/2-28(2)(B) (West 2004).
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III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand with directions that the court institute the
goal of short-term care with a continued goal of return home to
Kim within a period not to exceed one year in compliance with
section 2-28(2)(B) of the Juvenile Court Act.
Reversed and remanded with directions.
TURNER, P.J., and McCULLOUGH, J., concur.
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