In re S.H. ( 2015 )

Illinois Official Reports
Appellate Court
In re S.H., 2014 IL App (3d) 140500
Appellate Court In re S.H., D.H., M.H., A.H., S.W. and S.B., Minors (The People of
Caption the State of Illinois, Petitioner-Appellee, v. Angel H., Respondent-
Appellant).
District & No. Third District
Docket No. 3-14-0500
Rule 23 Order filed November 12, 2014
Motion to publish
allowed December 4, 2014
Opinion filed December 4, 2014
Held In proceedings seeking the termination of respondent’s parental rights
(Note: This syllabus based primarily on the sexual abuse of respondent’s daughter by
constitutes no part of the respondent’s paramour, the termination of respondent’s parental rights
opinion of the court but to one son was vacated on the ground that the wardship case of the son
has been prepared by the had been closed previously and the son’s custody had been awarded to
Reporter of Decisions his father, and the son had never been adjudicated abused, neglected,
for the convenience of or dependent or made a ward of the court at the dispositional hearing
the reader.) in the instant case; however, the finding that respondent was unfit and
that the termination of respondent’s parental rights was in the best
interest of her children was not against the manifest weight of the
evidence.
Decision Under Appeal from the Circuit Court of Knox County, No. 12-JA-11; the
Review Hon. James R. Standard, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Louis P. Milot, of Peoria, for appellant.
Appeal
John T. Pepmeyer, State’s Attorney, of Galesburg (Richard Leonard,
of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
Panel PRESIDING JUSTICE LYTTON delivered the judgment of the court,
with opinion.
Justices Carter and O’Brien concurred in the judgment and opinion.
OPINION
¶1 In December 2013, the State filed a petition to terminate the parental rights of respondent,
Angel H., as to her children, S.H., D.H., M.H., A.H., S.W. and S.B. The trial court found
respondent unfit pursuant to sections 1(D)(m)(i), 1(D)(m)(ii), 1(D)(m)(iii), 1(D)(g), and
1(D)(b) of the Adoption Act (750 ILCS 50/1(D) (West 2012)). Following a best interests
hearing, the court terminated respondent’s parental rights. Respondent appeals, arguing that
the trial court (1) lacked jurisdiction to terminate her parental rights as to M.H., (2) erred in
finding her unfit and (3) erred in determining that it was in the children’s best interests to
terminate her parental rights. We vacate the trial court’s decision to terminate respondent’s
parental rights as to M.H. and otherwise affirm.
¶2 FACTS
¶3 In April 2012, the State filed a neglect petition alleging that S.H., D.H., M.H., A.H., S.W
and S.B. were neglected due to an injurious environment in that, among other things, S.H.
(born September 25, 2002) alleged that she was sexually abused when she was eight and nine
years old by respondent’s paramour, that respondent refused to believe S.H., that respondent
refused to cooperate with investigators regarding the abuse allegations, that after being taken
into protective custody by the Department of Children and Family Services (DCFS) three of
the minors were found to have yeast infections, and that respondent is currently facing felony
charges for permitting the sexual abuse of a child and endangering the life or health of a child.
¶4 By agreed order, the neglect case involving M.H. was closed and custody was awarded to
the minor’s father (Knox County case No. 12-F-55). On September 11, 2012, the trial court
entered an adjudication of neglect as to the remaining five children.
¶5 On October 2, 2012, respondent was found dispositionally unfit. S.H., D.H., A.H., S.W.
and S.B. were made wards of the court, and respondent was ordered to complete certain tasks
before the children would be returned to her custody. The court ordered respondent to (1)
attend individual domestic violence therapy and joint therapy for the children’s victim issues,
(2) establish a legal source of income and suitable housing upon her release from jail, (3)
maintain participation in drug and alcohol abuse support groups, (4) establish a consistent
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parent-child visitation schedule, (5) report all incidents of domestic violence and secure orders
of protection if warranted, (6) discontinue relations with anyone prone to domestic violence,
(7) participate in parenting classes, and (8) complete a psychological evaluation.
¶6 On December 6, 2013, the State filed an amended petition to terminate respondent’s
parental rights pursuant to “section 2-13(5)” of the Juvenile Court Act of 1987 (705 ILCS
405/2-13(5) (West 2012)). The petition alleged that respondent was unfit in that she failed to
(1) make reasonable efforts to correct the conditions that were the basis for the removal of the
children under section 1(D)(m)(i) of the Adoption Act (750 ILCS 50/1(D)(m)(i) (West 2012)),
(2) make reasonable progress between September 11, 2012, and June 12, 2013, toward the
return home of the children under section 1(D)(m)(ii) of the Adoption Act, (3) protect her
children from conditions within their environment injurious to their welfare under section
1(D)(g) of the Adoption Act, and (4) maintain a reasonable degree of interest, concern or
responsibility as to the minor’s welfare under section 1(D)(b) of the Adoption Act. An
addendum was added on March 25, 2014, alleging respondent failed to make reasonable
progress between June 13, 2013, and March 13, 2014, toward the return home of the children
under section 1(D)(m)(iii).
¶7 At the fitness hearing conducted on March 25, 2014, Frances Hawthorne, a family social
worker, testified that she supervised the visits between respondent and her children.
Respondent’s visits were scheduled one time per week for two hours; she was offered 45 visits
in 2013 and missed 14. Three of the missed visits were due to respondent’s incarceration.
Hawthorn testified that beginning in April of 2013, respondent began leaving the visits 30 to
60 minutes early.
¶8 Melody Iles-Bennett testified that she was the caseworker for the family from April 2012
to October 2013. She created a client service plan for respondent and her children that went
into effect in May of 2012. Bennett stated that respondent received an unsatisfactory rating on
the task of completing parenting classes because she cancelled and rescheduled numerous
classes. She did not successfully complete parenting classes until the fall of 2013. Bennett
testified that respondent had been aware of the task since May of 2012 and would have been
able to complete the task in only two or three months if she had attended classes regularly.
¶9 Bennett testified that respondent completed a psychological evaluation and had stable
housing but failed to complete other tasks because she refused to believe that her daughter S.H.
had been sexually abused by her boyfriend, Calvin W. Respondent received an unsatisfactory
rating on the task of completing individual counseling addressing her relationship with men to
prevent the sexual abuse of her children. She also received an unsatisfactory rating on the goal
of attending group therapy with her daughter and being supportive of the children. Respondent
refused to believe S.H. when she told respondent that she was sexually abused by Calvin W. in
December of 2011, and she continued to have contact with Calvin W. until she was
incarcerated. Bennett stated that respondent even testified in support of Calvin W. at his
criminal trial for predatory criminal sexual assault of S.H.
¶ 10 Bennett testified that respondent’s visits with the children between September of 2012 and
June of 2013 were also unsatisfactory. Respondent attended several scheduled visits, but she
was passive in her interaction with the children. The children initiated contact with respondent
rather than respondent engaging with the children. Also, respondent’s visits with the two older
girls were suspended because the girls were afraid of her.
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¶ 11 Karen Byom testified that she has been the child advocate since October 2012. She testified
that she believed it was not in S.H.’s and D.H.’s best interests to visit respondent. S.H. was
afraid of respondent and believed that respondent was going to kill her. Byom stated that when
respondent was arrested, respondent told S.H. that the situation was all her fault and that S.H.
broke up the family. Before the children were taken into DCFS care, respondent was allowed
to hug the children. S.H. told Byom that when respondent gave her a hug, she whispered into
S.H.’s ear that she was going to kill S.H. The trial court found respondent unfit based on all the
grounds asserted in the State’s amended and supplemental petitions.
¶ 12 The best interests hearing was held on May 20, 2014. Bertha Becton testified that she has
been the foster mother of S.B. and S.W. for the last two years. At the time of the hearing, S.B.
was three years old and S.W. was four years old. S.B. had been with Becton since she was one,
and S.W. had been with her since S.W. was two. Both children called Becton “mom” and her
fiancé “dad.” Becton has bonded with the children, and they have bonded with her family.
Becton is meeting the children’s daily and medical needs. She testified that she signed a
permanency agreement stating that it is her and her fiancé’s intention to adopt S.B. and S.W.
¶ 13 Michelle Roberts testified that she has been the caseworker for the family since October
2013. She submitted the best interests reports to the court and corroborated Becton’s testimony
that S.B. and S.W. are thriving in their foster home. Roberts recommended that respondent’s
parental rights to S.B. and S.W. be terminated.
¶ 14 Roberts also recommended that the respondent’s parental rights to A.H., D.H and S.H. be
terminated. She testified that A.H. was seven years old at the time of the hearing. He is happy
in his foster home and has formed a bond with his foster parents, their two sons and the
grandmother that lives in the home. The foster parents’ sons are approximately 13 and 14 years
old. They play with A.H. and refer to him as “brother.” A.H. has his own bedroom in the foster
home, and the foster family has been meeting all his needs. A.H. said that he wants to be
adopted by his foster family, and the foster parents signed a permanency agreement indicating
that they want to adopt him.
¶ 15 D.H. was nine years old at the time of the hearing, and she has been placed with a foster
family as well. Roberts testified that D.H.’s foster parents have two biological sons, and D.H.
has bonded with the entire family. She calls her foster parents “mom” and “dad.” The foster
parents have been meeting D.H.’s needs, and they want to adopt her. D.H. also wants to be
adopted by her foster family.
¶ 16 S.H. was 11 years old when the best interests hearing was conducted. Roberts testified that
S.H. has been placed in a restricted therapeutic care facility. S.H. has expressed to Roberts that
she would like to be adopted by a foster family. S.H. has only bonded with her sister, D.H. Her
relationship with respondent is nonexistent because they have not had any communication or
visitation for two years. According to Roberts, respondent has not had any contact with S.H.
because she is unable to make sound choices to provide S.H. with a safe environment.
¶ 17 Byom also testified that S.H. has an extreme fear of respondent. She stated that S.H. is
afraid respondent will find her someday and kill her. S.H. told Byom that she misbehaves so
that she will be placed in locked mental facilities where she feels safe from respondent and
Calvin W. Based on this evidence, the trial court found that it was in the children’s best
interests to terminate respondent’s parental rights.
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¶ 18 ANALYSIS
¶ 19 I. Defects in Amended Petition
¶ 20 Respondent first argues that the amended petition to terminate her parental rights was
facially defective because it failed to cite the appropriate section of the Juvenile Court Act of
19871 and failed to state that respondent could “permanently” lose her parental rights.
¶ 21 Respondent did not raise these issues at trial. Generally, pleading defects must be raised at
trial so that they may be remedied. Where the respondent fails to raise them, the defects are
forfeited. In re Andrea D., 342 Ill. App. 3d 233, 242 (2003). Here, respondent failed to raise the
issues in the trial court. Thus, she has forfeited her claims on appeal.
¶ 22 An appellate court may address a forfeited issue under the plain error doctrine if the
evidence is closely balanced or the error affects substantial rights. Id. While the termination of
parental rights affects a fundamental liberty interest, we decline to address the issues under the
circumstances of this case. There is no allegation that respondent was prejudiced by the
defects. Respondent had already been informed at the dispositional hearing on the original
neglect petition that she could permanently lose her parental rights if she did not cooperate
with DCFS. Moreover, the State’s petition sufficiently stated the specific statutory grounds for
unfitness. See In re S.L., 2014 IL 115424, ¶ 17. Thus, any defect in the pleading did not
prejudice the respondent, nor was it reversible error.
¶ 23 II. Jurisdiction as to M.H.
¶ 24 Respondent argues that the trial court lacked jurisdiction to terminate her parental rights as
to M.H. because the wardship case involving M.H. had been closed and his father was awarded
custody. The State agrees.
¶ 25 The record indicates that the wardship case as to M.H. was closed in April of 2012, a few
days after the filing of the State’s neglect petition and before the adjudicatory and dispositional
orders were entered regarding fitness. A parent’s parental rights cannot be terminated under
section 2-29 of the Juvenile Court Act unless the minor is adjudicated abused, neglected or
dependent and a subsequent dispositional order is entered by the court. 705 ILCS 405/2-29
(West 2012); In re A.E., 368 Ill. App. 3d 1142, 1145 (2006). In this case, the trial court did not
have the authority to terminate respondent’s parental rights because M.H. was never
adjudicated abused, neglected or dependent, or made a ward of the court at the dispositional
hearing. We therefore vacate the trial court’s order terminating the respondent’s parental rights
as to M.H.
¶ 26 III. Fitness Finding
¶ 27 Respondent also claims that the trial court’s finding that she was an unfit parent was
against the manifest weight of the evidence.
¶ 28 The State has the burden of proving parental unfitness by clear and convincing evidence.
In re Jordan V., 347 Ill. App. 3d 1057, 1067 (2004). A reviewing court will not overturn the
trial court’s finding of unfitness unless it is against the manifest weight of the evidence. Id. The
trial court’s decision is given great deference due to “its superior opportunity to observe the
1
The amended petition stated that it was being brought pursuant to section 2-13(5) of the Juvenile
Court Act of 1987 rather than section 2-29. 705 ILCS 405/2-13(5), 2-29 (West 2012).
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witnesses and evaluate their credibility.” Id. Where multiple allegations of unfitness are made,
a finding that any one allegation has been proved obviates the need to review other statutory
grounds. In re J.J., 307 Ill. App. 3d 71, 76 (1999).
¶ 29 Respondent asserts the trial court erred by finding her unfit on numerous grounds. We will
begin by addressing whether the court erred in finding respondent failed to make reasonable
progress toward the return home of the children from September 11, 2012, to June 12, 2013,
pursuant to section 1(D)(m)(ii) of the Adoption Act. 750 ILCS 50/1(D)(m)(ii) (West 2012).
¶ 30 Under an objective standard, reasonable progress requires, at a minimum, the parent make
measurable steps toward the goal of reunification through compliance with court directives,
service plans or both. In re J.A., 316 Ill. App. 3d 553, 564-65 (2000). The trial court is to
consider evidence occurring only during the relevant nine-month period mandated in section
1(D)(m) in determining whether a parent has made reasonable progress toward the return of
the children. In re J.L., 236 Ill. 2d 329, 341 (2010). In this case, we review respondent’s efforts
for the nine-month period following the September 11, 2012, adjudication.
¶ 31 The primary reason the children were removed from respondent’s care was due to
allegations that Calvin W. sexually abused respondent’s daughter, S.H. Following the
September 11, 2012, adjudication, respondent failed to discontinue contact with Calvin W.
The record demonstrates that between September 11, 2012 and June 12, 2013, respondent
remained in contact with him and testified in support of him at his trial for sexually abusing
S.H. In addition, respondent failed to complete parenting classes until after the relevant
nine-month period. She also failed to consistently attend scheduled visits with the children, and
in April of 2013, she began leaving those that she did attend early. Even though respondent
completed her psychological evaluation and had stable housing, she failed to make reasonable
progress to correct the conditions which led to the removal of the children from her custody by
continuing to have a relationship with Calvin W. The trial court’s finding that respondent
failed to make reasonable progress between September 2012 and June 2013 was not against the
manifest weight of the evidence.
¶ 32 IV. Best Interests Finding
¶ 33 Respondent also argues that the trial court’s determination that it was in the best interests of
the children to terminate her parental rights was against the manifest weight of the evidence.
¶ 34 Once the trial court determines a parent to be unfit, the next stage is to determine whether it
is in the best interests of the children to terminate parental rights. In re Jaron Z., 348 Ill. App.
3d 239, 261 (2004). At this stage, the court’s focus shifts from the rights of the parent to the
best interests of the children. 705 ILCS 405/1-3(4.05) (West 2012); In re B.B., 386 Ill. App. 3d
686, 697 (2008). The trial court must consider the following factors, in the context of the
child’s age and developmental needs, in determining whether to terminate parental rights: (1)
the physical safety and welfare of the child, including food, shelter, health, and clothing; (2)
the development of the child’s identity; (3) the child’s familial, cultural and religious
background and ties; (4) the child’s sense of attachments; (5) the child’s wishes and long-term
goals; (6) the child’s community ties; (7) the child’s need for permanence, including the need
for stability and continuity of relationship with parent figures, siblings and other relatives; (8)
the uniqueness of every family and child; (9) the risks related to substitute care; and (10) the
preferences of the persons available to care for the child. 705 ILCS 405/1-3(4.05) (West 2012).
No single factor is dispositive. In re Austin W., 214 Ill. 2d 31, 50 (2005). A trial court’s
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determination that termination of parental rights is in the child’s best interests will not be
disturbed on review unless it is contrary to the manifest weight of the evidence. In re R.L., 352
Ill. App. 3d 985, 1001 (2004).
¶ 35 Here, the evidence at the best interests hearing showed that D.H., A.H., S.W. and S.B. are
in stable and safe foster homes, that they refer to their foster parents and “mom” and “dad,”
that they have developed a bond with their foster families and that they would like to be
adopted by their foster parents. They are happy in their new environments, and their foster
parents have expressed a desire to adopt them. Moreover, the record demonstrates that S.H. has
no emotional connection to respondent, is fearful of reuniting with her mother and feels safe in
the special care facility in which she currently resides. This evidence supports the trial court’s
decision to terminate respondent’s parental rights. The trial court’s best interests finding was
not against the manifest weight of the evidence.
¶ 36 CONCLUSION
¶ 37 The judgment of the circuit court of Knox County is affirmed in part and vacated in part.
¶ 38 Affirmed in part and vacated in part.
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