In re S.R. , 2014 IL App (3d) 140565 ( 2014 )

2014 IL App (3d) 140565
Opinion filed December 11, 2014
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
In re S.R., a Minor ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
(The People of the State of Illinois, ) Peoria County, Illinois,
)
Petitioner-Appellee, ) Appeal No. 3-14-0565
) Circuit No. 12-JA-62
v. )
) The Honorable
Tarah H., ) Kirk D. Schoenbein,
) Judge, Presiding.
Respondent-Appellant). )
_____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Presiding Justice Lytton and Justice Wright concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 The circuit court of Peoria County found respondent, Tarah R., unfit to parent her child
S.R. The court also found it was in S.R's best interest to terminate respondent's parental rights.
Respondent appeals, arguing the court's findings were against the manifest weight of the
evidence. We affirm.
¶2 FACTS
¶3 On November 5, 2012, S.R. was adjudicated neglected on the basis that respondent
suffered from schizophrenia and was currently in a nursing home. On June 28, 2014, the State
filed a petition for termination of parental rights. The petition alleged respondent was unable to
discharge her parental responsibilities and there was sufficient justification to believe that such
inability to discharge parental responsibilities would extend beyond a reasonable time.
¶4 At the hearing on the State's petition, the State moved to admit the medical report of Dr.
Terry Killian. Respondent's objection was sustained and the State continued the hearing to
secure the in-person testimony of Killian. Ultimately, the hearing commenced on May 28, 2014.
¶5 The parties stipulated that Killian was an expert in the field of forensic psychiatry.
Killian testified he interviewed respondent on June 26, 2012, at the Sharon Woods Health Care
Center (the Health Center). At the time of the interview, respondent was residing at the Health
Center. Killian testified that he was appointed to conduct a forensic psychiatric evaluation of
respondent, which focused on four questions: (1) was respondent fit to stand trial in her pending
criminal case, (2) were the previous mental diagnoses that respondent received correct, (3) was
respondent fit to care for S.R., and (4) whether treatment could help respondent improve to the
point where she could develop minimum parenting capabilities.
¶6 Killian testified that he reviewed the documents sent by respondent's attorney and
respondent's medical history and had noted that respondent had previously been diagnosed with
schizophrenia or schizoaffective disorder. He explained that schizophrenia is a biologically
based severe and chronic mental illness, lasting "for a very, very long time, probably
permanently." It involves deterioration in function, including becoming more withdrawn and
social interactions becoming more autistic, and experiencing hallucinations and delusions.
Schizoaffective disorder is "essentially schizophrenia with some significant mood symptoms
added, especially manic symptoms."
2
¶7 Killian testified that he interviewed respondent for about an hour and a half. Respondent
was not very interested in the exam and repeatedly wished to stop it. Respondent stated her date
of birth that was different from the one in her medical records. She did not know why the
Department of Children and Family Services (DCFS) took S.R. away but believed that to regain
custody, she only had to tell the judge that she was ready. She adamantly insisted that she did
not have a mental illness and that she had never been diagnosed with one. Killian opined that if
a person suffering from schizophrenia does not acknowledge the mental illness, he or she is
unlikely to stick with treatment.
¶8 Respondent was unable to do abstract thinking or to name any recent presidents or states
that share a border with Illinois. Killian believed respondent's IQ was near the normal range, but
her performance was impaired by her psychiatric illness. Respondent had very flat emotional
responses, which are associated with schizophrenia.
¶9 Respondent did not respond appropriately when informed that it was unlikely she would
get her child back, merely saying "okay" in an unemotional tone. She left the interview twice to
smoke and did not return until located by staff, appearing to be much more interested in smoking
than in discussing how to get S.R. back.
¶ 10 Respondent's thought process was very disjointed, and she had a loosening of
associations, "meaning that she would say one thing and then immediately make a comment that
didn't seem to have any relationship to what we had been talking about, and bounce back and
forth." She also made delusional comments, telling Killian that she had custody of her children
and that they were all at home with a babysitter.
¶ 11 Killian confirmed the diagnosis of schizoaffective disorder. He based his opinion on the
fact that respondent "has a long history of having schizophrenic-like symptoms with the
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delusions, hallucinations, poor functioning, and poor insight, had been hospitalized multiple
times, [and] been found unfit to stand trial on the basis of her illness on three separate occasions,
in 2002, 2006, and 2011."
¶ 12 Killian could not evaluate whether respondent had a personality disorder because she was
far too ill for him to develop a sense of her underlying personality. Records showed that she had
not been psychiatrically well enough in the last 10 to 12 years for anyone to really be able to
assess her underlying personality. She had been found unfit to stand trial 10 years earlier, when
she was in her late teens. Killian opined that it was very unlikely that she would regain fitness in
the foreseeable future, if ever. He explained that a diagnosis of schizoaffective disorder does not
automatically mean an individual would be unable to care for his or her children but, rather
would depend on the severity of the illness.
¶ 13 Respondent, in Killian's opinion, was "very, very much unable" to parent a child.
Although such a conclusion is very unusual, Killian explained that respondent had a very
prominent schizophrenic component to her illness, with some history of manic symptoms.
Consequently, respondent was unable to perform most parental responsibilities. Killian could
not imagine how respondent could be responsive to a child's needs given her total inability to
connect with others. Additionally, to parent a child, respondent would have to live on her own
somewhere other than a facility like the Health Center. Killian explained this was unlikely since
respondent never stayed with treatment unless she was in a facility where she was given her
medications every day. Killian also did not believe that there was any treatment that could ever
get respondent to the point where she could parent a child.
¶ 14 He acknowledged he had not had any contact with respondent since his interview with
her almost two years earlier. At the time of the interview, respondent was taking prescription
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Zyprexa at a dose of 30 milligrams per day, and no new treatment had come out since the
interview that would get respondent to the point where she could reasonably care for a child.
Killian reiterated that he could not "imagine that at any point in her life she would improve
unless some new miraculous medication came along." He kept abreast of treatments in
development, and no such miracle drug was in the pipeline. Nothing anywhere in the
foreseeable future could improve respondent to the point of her being able to parent a child.
¶ 15 Killian testified that the passage of two years without interaction with respondent had not
changed his opinion. It was very atypical for him to say that someone would never be able to
improve, but he gave that rare opinion in this case because it was so clear to him based on the
severity of respondent's illness. Even if she was consistent with taking her medication, the high
dose of one of the most effective antipsychotic drugs would still leave her unable to parent.
¶ 16 Upon the conclusion of Killian's testimony, respondent moved for a directed verdict,
asserting that the State failed to present any evidence of her current medical condition. The
circuit court denied her motion, finding that she had failed to present any evidence and had
prevented the admission of updated medical records. Ultimately, the circuit court found
respondent unfit.
¶ 17 The matter proceeded to a best interest hearing. The best interest report described S.R.'s
foster placement. S.R. was two years old and had been in the same foster home since being
released from the hospital following his birth on March 28, 2012. S.R. had never lived with
respondent and had not visited with her since October 2012. The lack of visitation was "due to
respondent's mental health issues and inability to perform basic parenting skills without
significant prompting." S.R. had no bond or attachment with respondent. S.R.'s father was
unknown.
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¶ 18 According to the report, S.R. had bonded with the foster family. S.R.'s biological sister
lived in the same home and had already been adopted by the foster parents. The foster parents
loved S.R. and wished to provide permanency through adoption. The foster sisters and S.R.'s
biological sister also wanted S.R. to become a permanent part of the family. S.R. loved the
foster family and referred to them as his family. The foster parents had provided for all S.R.'s
needs.
¶ 19 The circuit court found it was in S.R.'s best interest to terminate respondent's parental
rights. In doing so, the court rejected respondent's guardianship request. The court held that
S.R.'s attachments were with the foster family and that S.R.'s safety and welfare favored
termination. These interests overruled any "wait and see" approach associated with an award of
guardianship.
¶ 20 ANALYSIS
¶ 21 Respondent appeals the circuit court's order terminating her parental rights. Specifically,
she contends the court's order finding her unfit due to her inability to discharge parental
responsibilities was against the manifest weight of the evidence. She further contends that the
court's order finding it was in S.R's best interest to terminate her parental rights was against the
manifest weight of the evidence. We reject both of respondent's claims.
¶ 22 Unfitness Finding
¶ 23 In reviewing a finding of unfitness, we consider the following:
"Under section 1(D)(p) of the [Adoption] Act [(750 ILCS
50/1(D)(p) (West 1990))], the State must produce competent
evidence showing the parent has a mental inability sufficient to
preclude her from discharging normal responsibilities. Second, the
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State must show there is sufficient justification to find the inability
will extend beyond a reasonable time period. [Citation.] The
standard of proof in a fitness case is clear and convincing evidence.
[Citation.] The circuit court's finding of unfitness will not be set
aside on review unless contrary to the manifest weight of the
evidence. [Citation.] 'The rationale underlying this standard is
that the trial court's opportunity to view and evaluate the parties
and their testimony is superior to that of a reviewing court.
Accordingly, the trial court's findings should be given great
deference.' [Citations.] A parent can be unfit without fault, as '[a]
child is no less exposed to danger *** because his parent is unable
rather than unwilling to give him care.' [Citation.]" In re K.S.T.,
218 Ill. App. 3d 431, 435 (1991) (quoting In re Brown, 86 Ill. 2d
147, 152 (1981)).
¶ 24 The record establishes the respondent has a mental inability sufficient to preclude her
from discharging normal responsibilities. Killian diagnosed respondent with schizoaffective
disorder and noted that she has been found unfit to stand trial on three separate occasions in
2002, 2006 and 2011–a period of 10 years. Respondent's insight, logic and judgment were poor.
She did not understand why DCFS believed she was unfit to parent. Her emotional response was
very flat. She denied having a mental illness. She suffered from delusions and was residing at
the Health Center. She did not take her medication when she was outside and on her own. All
these facts support Killian's expert opinion that respondent was "very, very much unable" to
parent a child.
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¶ 25 The record also establishes that respondent's inability will extend beyond a reasonable
time period. Killian testified that "it was very unlikely [respondent] would ever improve to
where she would be to a point where she would be able to parent." The facts discussed above
also support this conclusion. Moreover, Killian specifically explained that the only way
respondent would be able to conceivably parent a child would be if "some new miraculous
medication came along"; however, no such medication was in the pipeline.
¶ 26 Respondent argues the above evidence was insufficient to establish unfitness because
Killian's interview was only approximately an hour and a half in length and took place two years
prior to the fitness hearing. We disagree. Killian acknowledged this time span and the length of
the interview, however, these facts did not change his opinion in light of the fact that
respondent's schizoaffective disorder was severe in both duration and its impact on her daily life.
Killian reiterated he could not imagine respondent caring for a child "at any point in her life."
Lastly, we find it significant that respondent objected to the admission of updated mental health
records. 1 Under the doctrine of invited error, a defendant may not request to proceed in one
manner and later contend on appeal that the course of action was in error. People v. Villarreal,
198 Ill. 2d 209, 227 (2001).
¶ 27 Best Interest Finding
¶ 28 Respondent next contends that the Americans with Disabilities Act (the ADA) (42 U.S.C.
§ 12132 (2006)) "applies in this matter and that a guardianship goal would be a reasonable
1
The parties do not discuss the outcome of respondent's objection; however, it appears that the
State ultimately withdrew its motion to admit after the circuit court announced it was likely
going to sustain respondent's objection.
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accommodation while not penalizing respondent for having the illness she has." 2 At the outset,
we note that the two cases cited by respondent (In re Adoption of Gregory, 747 N.E.2d 120
(Mass. 2001); In re B.S., 693 A.2d 716 (Vt. 1997)) do not actually support her argument. Both
cases expressly hold that the ADA does not apply to proceedings to terminate parental rights.
Gregory, 747 N.E.2d at 125; B.S., 693 A.2d at 720. We agree with the reasoning expressed by
the court in B.S.:
"[Termination] proceedings are not 'services, programs or
activities' within the meaning of Title II of the ADA [citation].
[Citations.] Thus, the anti-discrimination requirement does not
directly apply to termination proceedings.
Even if the ADA applied to [termination] proceedings,
there is no specific discrimination against disabled persons in the
[termination] process. Mental retardation is not, by itself, a ground
for terminating parental rights." B.S., 693 A.2d at 720.
¶ 29 We now turn to the substantive question of termination of respondent's parental rights.
The State must prove by a preponderance of the evidence that termination is in the best interest
of the minor. In re D.T., 212 Ill. 2d 347, 366 (2004). The circuit court's best interest finding will
not be disturbed unless it is against the manifest weight of the evidence. In re T.A., 359 Ill. App.
3d 953, 961 (2005).
2
The portion of the ADA invoked by respondent provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132 (2006).
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¶ 30 In this termination phase, all considerations of the parent yield to the best interest of the
child. In re Tashika F., 333 Ill. App. 3d 165, 170 (2002). While we have great sympathy for a
mother losing her child in circumstances which she bears no blame, the child, too, is without
fault and is entitled to the protection afforded by the statute.
¶ 31 Whenever a "best interest" determination is required, the following factors shall be
considered:
"(a) the physical safety and welfare of the child, including
food, shelter, health, and clothing;
(b) the development of the child's identity;
(c) the child's background and ties, including familial,
cultural, and religious;
(d) the child's sense of attachments ***;
(e) the child's wishes and long-term goals;
(f) the child's community ties, including church, school,
and friends;
(g) the child's need for permanence which includes the
child's need for stability and continuity of relationships with parent
figures and with siblings and other relatives;
(h) the uniqueness of every family and child;
(i) the risks attendant to entering and being in substitute
care; and
(j) the preferences of the persons available to care for the
child." 705 ILCS 405/1-3(4.05) (West 2012).
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¶ 32 Here, S.R. has been in the same foster home since birth. According to the best interest
report, S.R. has clearly bonded with the entire foster family. Further, the foster parents are able
to effectively provide for S.R.'s safety and welfare. Significantly, the foster parents wish to
provide S.R. permanency through adoption. Conversely, the record demonstrates that
respondent is unable, at this time and likely ever, to provide S.R. with permanency. Virtually all
relevant statutory factors weigh in favor of termination. Thus, we conclude the circuit court's
decision to terminate respondent's parental rights was not against the manifest weight of the
evidence.
¶ 33 For the reasons stated, we affirm the circuit court's judgment.
¶ 34 Affirmed.
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