In re O.B. , 2022 IL App (4th) 220419 ( 2022 )

2022 IL App (4th) 220419FILED
NOS. 4-22-0419, 4-22-0420 cons. October 6, 2022
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re O.B. and E.R., Minors ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Peoria County
Petitioner-Appellee, ) Nos. 19JA412
v. ) 20JA487
Okittous B., )
Respondent-Appellant). )
) Honorable
) Derek G. Asbury,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Presiding Justice Knecht and Justice Turner concurred in the judgment and
opinion.
OPINION
¶1 Within days of their respective births in November 2019 and October 2020, the
State filed petitions for adjudication of neglect with respect to O.B. and E.R., the minor children
of respondent Okittous B. (Father) and Bridget R., who is now deceased and not a party to this
appeal. In due course, the trial court adjudicated the minors neglected, made them wards of the
court, and placed custody and guardianship with the Illinois Department of Children and Family
Services (DCFS). The State filed motions to terminate Father’s parental rights to both children in
December 2021. Following a hearing on the State’s motions in April 2022, the court found
respondent an “unfit person” within the meaning of section 1(D) of the Adoption Act (750 ILCS
50/1(D) (West 2020)). The court then found it was in the minors’ best interests to terminate
respondent’s parental rights.
¶2 In May 2022, respondent moved to consolidate the two cases into this one appeal,
and we granted the motion. On appeal, respondent argues the trial court erred in terminating his
parental rights; specifically, he alleges the trial court’s unfitness finding stands against the
manifest weight of the evidence because the State failed to provide competent evidence that he
suffered a mental impairment or intellectual disability. We disagree.
¶3 I. BACKGROUND
¶4 On November 7, 2019, the State filed a petition for adjudication of neglect with
respect to O.B. (born November 3, 2009), alleging her environment proved injurious to her
welfare, in part, because of Father’s criminal record and a 2010 incident where he left his nieces
unsupervised. The State’s October 6, 2020, petition for adjudication of neglect regarding E.R.
(born October 2, 2020) contained the same allegations. After shelter care hearings, the trial court
found probable cause existed that the minor children were neglected as alleged in the petitions.
Finding immediate and urgent necessity based upon the neglect, the trial court placed temporary
custody and guardianship of the children with DCFS.
¶5 A. Adjudicatory Proceedings
¶6 At the adjudicatory hearings (February 2020 and October 2020), Father stipulated
to the petition’s allegations and the trial court found factual bases for the stipulation. The trial
court entered concomitant orders, adjudicating O.B. and E.R. neglected based on the contents of
the State’s petition, i.e., Father’s criminal record and history of leaving two young children
unattended. In both matters, the trial court held the dispositional hearings immediately following
the adjudication. The trial court’s two dispositional orders both contained admonishments for
Father to comply with recommended services and cooperate with DCFS or risk termination of
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his parental rights. But while the order concerning O.B. found Father unfit to care for, protect,
train, or discipline her due to the petition’s allegations, the order regarding E.R. found Father
unable to do so. Beyond instructing Father to complete the tasks assigned to him in the service
plan, the trial court’s order directed him to visit his children at the times and places set by DCFS
and demonstrate appropriate parenting conduct.
¶7 The family service plan outlined recommended services for Father. Besides
having to cooperate with DCFS, the plan required the following services: (1) identify supports in
his life and utilize them when needed, especially when parenting O.B. and E.R.; (2) participate
and complete individual counseling; (3) participate and complete a parenting course; (4) random
monthly drug drops; (5) obtain and maintain stable, safe housing; and (6) maintain a legal source
of income. As these matters proceeded through the juvenile court system, the record reflected
when Father completed services. Over the course of time, Father obtained employment and
moved to a house with his sister and her two children. He successfully completed the necessary
parenting class in May 2020. He began individual counseling in June 2020, made moderate
progress, and was discharged in December 2020.
¶8 On December 3, 2020, Father participated in a psychological evaluation with Dr.
Richard A. Hutchison, Ph.D., a clinical psychologist, based upon DCFS’s “concern about
[Father’s] ability to raise his child due to his ‘cognitive functioning abilities and deficits in his
ability to reason, plan, solve problems, think abstractly, comprehend complex ideas, learn
quickly, and/or learn from experiences.’ ” Dr. Hutchison reviewed pertinent case records,
interviewed Father, and administered various tests, including intelligence testing. Dr. Hutchison
used the Stanford-Binet Intelligence Scales, Fifth Edition, to evaluate Father’s intellectual
functioning. Father scored the following: nonverbal intelligence quotient (IQ) 83; verbal IQ 78;
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full-scale IQ 80. Dr. Hutchison interpreted Father’s scores to indicate the following:
“[Father’s] Nonverbal IQ is in the Low Average range. His
Verbal IQ is in the Borderline range. His Full Scale IQ is at the
bottom of the Low Average, top of the Borderline range. The
difference between his IQ scores is not significant but would
indicate that his Nonverbal abilities are somewhat more highly
developed.”
After all testing, Dr. Hutchison made no diagnoses, but he opined Father’s “scores fit with his
history of Special Education while in school” and “indicate that he would have difficulty
learning and retaining new things.” Dr. Hutchison went on to note Father’s scores “indicate that
his knowledge of the world and how it operates is quite limited” and “would tend to make
parenting difficult as it would be a new thing with many things to learn and remember.”
¶9 Following a May 26, 2021, permanency review hearing, the trial court ordered
Father to undergo a parenting capacity assessment. Due the service provider’s congested
schedule, the assessment was delayed until November 2021. Jonna Tyler, LCPC, RPT-S,
conducted the assessment and was tasked to answer several questions about Father’s parenting
capabilities, including, “What effect has [Father’s] intellectual deficits had on his ability to
parent his children?” Tyler’s report recapped part of Dr. Hutchison’s psychological evaluation of
Father in December 2020, particularly, “ ‘[Father’s] verbal IQ is 78, in the borderline range of
intellectual abilities. His non-verbal IQ is 83, in the low average range.’ ” Tyler further noted Dr.
Hutchison’s opinion that Father’s scores indicated the above-referenced difficulties he would
experience with parenting. As part of the parenting capacity assessment, Tyler interviewed the
children’s caseworker, who reported, “Dr. Hutchison’s report identified [Father’s] intellectual
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disability as in the mild range.” Tyler also interviewed Father, who reported he received special
education services in school, but he noted he also attended “some mainstream classes.” Tyler
administered the Marschak Intervention Method (MIM), a test “designed to assess the quality
and nature of the parent-child relationship.” The MIM showed Father had weaknesses in the
categories of structure, challenge, and nurturance. Father had limited awareness of when to
attend to his children’s needs. Tyler next administered the “Child Abuse Potential Inventory” on
which Father obtained a low abuse score, though Tyler noted Father’s elevated score on the lie
scale invalidated those findings. Finally, Tyler observed the children’s interactions with Father
and with their foster parents. Ultimately, Tyler opined, “Father is not able to meet minimum
parenting standards independently for [O.B.] and [E.R.] due to their complex medical needs.
Tyler further stated: “It is this examiner’s opinion that [Father’s] intellectual deficits may impair
his ability to manage the dietary needs and daily care needs of his daughters.” She then opined:
“[Father] does not have the capacity to care for the safety and security needs of his children or
attend to the higher level of care they are in need of, due to their complex medical needs.”
¶ 10 B. Termination of Respondent’s Parental Rights
¶ 11 On December 10, 2021, the State filed petitions seeking a finding of unfitness and
termination of Father’s parental rights to O.B. and E.R. The State alleged Father was an unfit
person pursuant to section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2020)). The
State’s petition identified one ground of unfitness as to Father: “[He] is an unfit person as that
term is defined in the Illinois Compiled Statutes, Chapter 750, Section 50/1 D(p), in that he is
unable to discharge parental responsibilities supported by competent evidence from a psychiatrist
or clinical psychologist of mental impairment, mental illness or mental retardation as defined in
Section 1-116 of the Mental health and Development Disabilities Code, or developmental
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disability as defined in Section 1-106 of that Code, and there is sufficient justification to believe
that such inability to discharge parental responsibilities shall extend beyond a reasonable time
period.” See 750 ILCS 50/1(D)(p) (West 2020). The State further contended termination of
Father’s parental rights was in the children’s best interests and asked for custody and
guardianship to remain with DCFS, giving it the authority to consent to the minors’ adoption.
¶ 12 C. Fitness
¶ 13 On April 25, 2022, the trial court held a fitness hearing. The State offered one
exhibit, records of Father’s parenting capacity assessment from the Antioch Group. Father’s
counsel objected on hearsay and foundational grounds, but the trial court admitted them over the
objection, noting section 2-18(4)(a) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705
ILCS 405/2-18(4)(a) (West 2020)), provided that properly certified and delegated records are
hearsay exceptions. The State called one witness, Tyler, who administered the parenting capacity
assessment and authored the report. On direct examination, she testified she found Father “to not
be capable or equipped to parent medically-complex children.” Regarding Father’s inabilities to
meet his children’s needs or interact appropriately with them, Tyler stated: “All these things
point toward intellectual disability.” She testified Father’s abilities were unlikely to change in the
near future.
¶ 14 On cross-examination by Father’s counsel, Tyler testified Father could not
complete services help him meet minimum parenting standards “[b]ecause his deficits appear to
be due to an intellectual disability not due to not just having a service.” Tyler opined it would be
impossible for a person with an intellectual disability to become a fit parent, explaining: “You
can’t change the intellectual capacity of the brain. You can change through services teaching and
training where there’s deficits, but this was seen to be more than a deficit.”
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¶ 15 On examination by the trial court, Tyler testified to her professional
qualifications, noting she was a licensed clinical professional counselor (LCPC), a registered
play therapist supervisor, and child therapist. She noted she has performed countless parental
assessments over the past 15 years, probably averaging one per week with some exceptions for
holidays and summers.
¶ 16 Neither Father nor the guardian ad litem (GAL) presented any evidence.
¶ 17 Following brief arguments of counsel and the GAL, the trial court recessed to
review the parenting capacity assessment the State presented as “Exhibit One.” When the parties
reconvened, the trial court issued its ruling from the bench. Noting the only evidence presented
included the one exhibit and Tyler’s testimony, the trial court found Tyler credible. Though
neither the State nor the GAL made the request, the trial court noted it “probably would have
found [Tyler] to be an expert in the field of psychology,” given her experience in administering
parenting capacity assessments. Based on the evidence, the court found Father’s “verbal IQ was
a 78, which is in the borderline range of intellectual abilities.” The trial court noted a
psychologist had referred Father to Tyler. The trial court then outlined the assessment and
Tyler’s conclusions. It noted Father “underwent a full-scale psychological testing” and Tyler
suggested “that the court refer to and defer to Dr. Hutchinson’s psychological report for more
information on this referral question.” Reading from Tyler’s report, the trial court observed:
“The psychological evaluation conducted by Dr. Hutchinson supports this examiner’s concern
and observations regarding [Father’s] cognitive limitations and how this limitation will impair
his ability to provide for the care of the children independently, particularly the children that
have complex medical needs.” The trial court summed up its ruling by saying:
“So the court believes in this matter that it’s really
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unrefuted and overwhelming the State has by clear and convincing
evidence established and proven up Count 1 of its petition to
terminate parental rights in that [Father] is an unfit person as the
term is defined in the Illinois Compiled Statutes, Chapter 750,
Section 50/1(D)(p) [(750 ILCS 50/1(D)(p) (West 2020))] in that he
is unable to discharge the parental responsibilities supported by
competent evidence from a psychiatrist or clinical psychologist of
mental impairment, mental illness, or mental retardation as defined
in Section 1-116 of the Mental Health and Developmental
Disabilities Code [(405 ILCS 5/1-116 (West 2020))].
There is sufficient justification to believe that such inability
to discharge parental responsibility shall extend beyond the
reasonable time period.”
The trial court’s written order noted, “[t]he petition is proved by clear and convincing evidence,”
but referred to the transcript for detailed findings.
¶ 18 D. Best-Interests Hearing
¶ 19 The trial court, with consent from the parties, immediately transitioned into a
best-interests hearing. The State called Avery Gutwein, of Children’s Home, who testified she
had been the children’s caseworker since fall 2020. Gutwein noted O.B. and E.R. lived in the
same traditional foster home. She testified the foster parents provide for the children’s needs for
food, clothing, and shelter, as well as their educational and mental development. Similarly, the
foster parents provided for the children’s emotional needs, and the children look to the foster
parents for safety and security. Gutwein testified the children share a strong bond with their
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foster parents, explaining the parents show affection and attention to the kids. She noted O.B.
and E.R. also share a bond with Father, but she opined their bond with the foster parents was
stronger. Gutwein stated a doctor diagnosed both O.B. and E.R. with GLUT 1(Glucose Transport
Type 1 Deficiency Syndrome), which requires specialized diets and seizure management.
Gutwein testified the foster parents expressed their willingness to adopt O.B. and E.R.
¶ 20 On cross-examination by Father’s counsel, Gutwein testified O.B. and E.R. call
their foster parents “momma” and “dada.” She noted Father will hold the children during visits,
but the children receive affection from the foster parents. On examination by the trial court,
Gutwein testified both O.B. and E.R. had lived continuously with their foster parents since they
were three days old. Neither Father nor the GAL presented evidence at this hearing.
¶ 21 After brief closing arguments, the trial court rendered its decision on the record.
Considering the statutory best-interests factors along with the evidence presented, the trial court
found, “it is in the best interest of both minor children to terminate *** the parental rights of
[Father].” The trial court noted O.B. and E.R. are “having all of their educational, medical,
emotional, physical needs being met by the foster parents, even with the medical complexities
they have as described by the caseworker since three days from their birth.” Though Father was
not present, the trial court read the appellate rights into the record and asked Father’s counsel to
make the appellate admonishment clear should Father choose to appeal.
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 Father argues the trial court erroneously terminated his parental rights;
specifically, he contends the unfitness finding stands against the manifest weight of the evidence.
We disagree and affirm the trial court’s judgment.
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¶ 25 The Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2020)) and the Adoption
Act (750 ILCS 50/1 et seq. (West 2020)) govern how the State may terminate parental rights.
In re D.F., 201 Ill. 2d 476, 494, 777 N.E.2d 930, 940 (2002). Together, the statutes outline two
necessary steps the State must take before terminating a person’s parental rights. The State must
first show the parent is an “unfit person,” and then it must show terminating parental rights
serves the best interests of the child. D.F., 201 Ill. 2d at 494-95 (citing the Adoption Act (750
ILCS 50/1(D) (West 1998)) and the Juvenile Court Act (705 ILCS 405/2-29(2) (West 1998))).
Here, Father challenges the trial court’s first-step decision only—the unfitness finding.
¶ 26 “ ‘The State must prove parental unfitness by clear and convincing evidence
***.’ ” In re A.L., 409 Ill. App. 3d 492, 500, 949 N.E.2d 1123, 1129 (2011) (quoting In re
Jordan V., 347 Ill. App. 3d 1057, 1067, 808 N.E.2d 596, 604 (2004)). The Adoption Act
provides several grounds on which a trial court may find a parent unfit, including the one the
State alleged here:
“Inability to discharge parental responsibilities supported by competent evidence
from a psychiatrist, licensed clinical social worker [(LCSW)], or clinical
psychologist of mental impairment, mental illness or an intellectual disability as
defined in Section 1-116 of the Mental Health and Developmental Disabilities
Code, or developmental disability as defined in Section 1-106 of that Code, and
there is sufficient justification to believe that the inability to discharge parental
responsibilities shall extend beyond a reasonable time period. However, this
subdivision (p) shall not be construed so as to permit a [LCSW] to conduct any
medical diagnosis to determine mental illness or mental impairment.” 750 ILCS
50/1(D)(p) (West 2020).
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¶ 27 When the State’s termination petition alleges this unfitness ground it must make
the threshold showing—by competent evidence from a psychiatrist, LCSW, or clinical
psychologist—that the parent suffers a mental disability, namely a mental impairment, mental
illness, intellectual disability, or developmental disability. In re K.B., 2019 IL App (4th) 190496,
¶¶ 68, 70, 145 N.E.3d 661 (citing 750 ILCS 50/1(D)(p) (West 2016)). This court previously
observed that “by separately referring to ‘mental illness,’ ‘mental impairment,’ ‘[intellectual
disability],’ and ‘developmental disability,’ the legislature meant to distinguish the meanings of
these terms.” In re Michael M., 364 Ill. App. 3d 598, 606, 847 N.E.2d 911, 919 (2006). The
terms are not synonymous, and ideally, the State’s evidence should be tailored to the mental
disability the petition alleges the parent suffers. Illinois’s Mental Health and Developmental
Disabilities Code (Code) (405 ILCS 5/1-100 et seq. (West 2020)) defines the terms “mental
illness” (405 ILCS 5/1-129 (West 2020)), “intellectual disability” (405 ILCS 5/1-116 (West
2020)), and “developmental disability” (405 ILCS 5/1-106 (West 2020)). The Code does not
define “mental impairment,” but we have noted “the word ‘impairment’ is defined as ‘[t]he fact
or state of being damaged, weakened, or diminished.’ ” Michael M., 364 Ill. App. 3d at 608(quoting Black’s Law Dictionary 754 (7th ed. 1999)). The State’s evidence must show the
parent’s disability meets the applicable definition of the ailment alleged. Here the State’s petition
listed all four types of statutory mental disabilities, even though it had to provide competent
evidence of any one of those disabilities.
¶ 28 Once the State establishes a mental disability through competent evidence, it must
then prove: “(1) the mental [disability] makes the parent unable to discharge his or her parental
responsibilities and (2) such inability will persist for an unreasonably long time.” K.B., 2019 IL
App (4th) 190496, ¶ 67 (citing 750 ILCS 50/1(D)(p) (West 2016)). The evidence necessary to
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make these two showings need not come from a psychiatrist, LCSW, or clinical psychologist, but
can come from less qualified mental health professionals or even “from common knowledge and
experience.” K.B., 2019 IL App (4th) 190496, ¶ 70.
¶ 29 This court pays “ ‘great deference’ ” to a trial court’s fitness finding “ ‘because of
[that court’s] superior opportunity to observe the witnesses and evaluate their credibility.’ ” A.L.,
409 Ill. App. 3d at 500 (quoting Jordan V., 347 Ill. App. 3d at 1067). We “will not reverse a trial
court’s fitness finding unless it was contrary to the manifest weight of the evidence, meaning that
the opposite conclusion is clearly evident from a review of the record.” A.L., 409 Ill. App. 3d at
500. Since “ ‘ “[e]ach case concerning parental unfitness is sui generis, requiring a close analysis
of its individual facts” ’ ” (In re Jacorey S., 2012 IL App (1st) 113427, ¶ 19, 980 N.E.2d 91(quoting In re Konstantinos H., 387 Ill. App. 3d 192, 203, 899 N.E.2d 549, 558 (2008), quoting
In re Daphnie E., 368 Ill. App. 3d 1052, 1064, 859 N.E.2d 123, 135 (2006))), we now turn our
attention to the facts of this case.
¶ 30 Here, the State presented competent evidence from a clinical psychologist (Dr.
Hutchison), albeit through Tyler’s report, that Father had a verbal IQ of 78, which placed him “in
the borderline range of intellectual abilities,” and a “non-verbal IQ [of] 83, in the low average
range.” Tyler, who is not a competent source per subsection 1(D)(p) (i.e., a psychiatrist, clinical
psychologist, or LCSW) but whose report contained admissible hearsay from a competent source
(see In re M.S., 210 Ill. App. 3d 1085, 1095-96, 569 N.E.2d 1282, 1288 (1991) (medical records
of parent created as direct result of ongoing juvenile proceeding which relate to condition also
directly related to proceeding satisfies statutory requirement of “relating to a minor” under
section 2-18(4)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1989, ch. 37, ¶ 802-18(4)(a)))),
quoted the following from Dr. Hutchison’s report, describing Father:
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“His weakest are[a] was in general knowledge and the next
to lowest was working memory. Academic screening has his
ability to comprehend reading sentences in the borderline range at
a grade equivalent of 6.5. His math ability was in the low average
range at the grade equivalent of 6.1. These scores fit his history of
special education while in school. This would indicate that his
knowledge of the world and of how it operates is quite limited. It
also would indicate that he has difficulty learning and retaining
new things. This would tend to make parenting difficulty as it
would be a new thing with many things to learn and remember. His
ability to generalize and think abstractly is limited. Therefore
learning something in the situation may be difficult to apply in a
similar, but different situation.”
Since she was not qualified to testify to Father’s mental disability, Tyler deftly testified that
based on her observations Father’s parenting, “deficits appear to be due to an intellectual
disability.”
¶ 31 The trial court found Tyler credible. But since its written order contained no
detailed findings, we rely on the trial court’s oral ruling, which found the State proved by clear
and convincing evidence that Father was “an unfit person *** in that he is unable to discharge
the parental responsibilities supported by competent evidence from a psychiatrist or clinical
psychologist of mental impairment, mental illness, or [intellectual disability] as defined in
Section 1-116 of the [Code].” Though the State seemed to rely on intellectual disability as the
threshold showing for this unfitness ground, especially considering Tyler’s report and testimony,
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we conclude the State’s evidence, however, did not clearly and convincingly establish Father
suffered an intellectual disability according to the statutory definition. Section 1-116 of the Code
defines “Intellectual disability” as “significantly subaverage general intellectual functioning
which exists concurrently with impairment in adaptive behavior and which originates before the
age of 18 years.” 405 ILCS 5/1-116 (West 2020). Courts have “previously described
‘[intellectual disability]’ as ‘requiring an IQ of less than 70’ and even ‘less than 75.’ ” People v.
Wilson, 2020 IL App (1st) 162430, ¶ 48, 170 N.E.3d 83 (quoting In re S.W.N., 2016 IL App (3d)
160080, ¶ 73, 58 N.E.3d 877, citing People v. Jones, 2014 IL App (1st) 120927, ¶ 59, 8 N.E.3d
470, and People v. Daniels, 391 Ill. App. 3d 750, 754, 908 N.E.2d 1104, 1108 (2009)). Heeding
the statutory definition for “intellectual disability” alongside the case law interpreting and
applying it, we observe Father’s IQ scores do not indicate he suffered “significantly subaverage
general intellectual functioning.” (Emphasis added.) 405 ILCS 5/1-116 (West 2020). Regarding
proof of intellectual disability, the evidence was sparse. Tyler’s report quoted Dr. Hutchison’s
report documenting Father’s nonverbal IQ (78) was borderline and his verbal IQ (83) was low-
average. Tyler’s report also quoted Dr. Hutchison’s observations that Father’s scores placed him
at a sixth-grade level for reading and math. Tyler quoted Dr. Hutchison’s opinions that Father’s
knowledge was “quite limited,” and his scores “tend to make parenting difficult” because he
would have to learn and retain new information. But without the benefit of competent testimony
from a clinical psychologist, like Dr. Hutchison, explaining Father’s deficiencies vis-à-vis the
statutory definition for intellectual disability, no court could conclude Father showed
significantly subaverage general intellectual functioning. Rather, the court is left to compare
scores. Since Father’s scores do not fall to 75 or 70, we do not find the State clearly and
convincingly proved Father suffered an intellectual disability by competent evidence.
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¶ 32 This leaves either “mental impairment” or “mental illness” for the requisite
mental disability necessary for this allegation of unfitness. “Mental impairment” is not defined
by statute, but this court has used the definition from Black’s Law Dictionary for “impairment”
as “ ‘[t]he fact or state of being damaged, weakened, or diminished.’ ” Michael M., 364 Ill. App.
3d at 608 (quoting Black’s Law Dictionary 754 (7th ed. 1999)). Based on this broader
guideline—a damaged, weakened, or diminished mental state—we conclude the State met its
burden for “mental impairment.” Through Dr. Hutchison’s findings, the State provided evidence
that Father’s “knowledge of the world and of how it operates is quite limited.” Father’s
borderline and low-average IQ scores “indicate that he has difficulty learning and retaining new
things” and “would tend to make parenting difficult as it would be a new thing with many things
to learn and remember.” Even based on this limited information from Dr. Hutchison that was
quoted in Tyler’s report, we conclude a reasonable fact finder could have determined Father
suffered a mental impairment. Therefore, the State made the requisite threshold showing for a
mental disability by competent evidence from clinical psychologist under section 1(D)(p), and
we need not address the “mental illness” allegation. We move on to consider if the State satisfied
the next two necessary showings: (1) whether Father’s mental impairment renders him unable to
discharge his parental responsibilities and (2) whether Father’s inability to parent will persist for
an unreasonably long time. We take each in turn.
¶ 33 Tyler’s report detailed O.B. and E.R.’s complex needs. She noted both girls had
been diagnosed with GLUT 1, a disorder that can cause glucose deficiencies in the brain and
result in seizures. Tyler’s report noted O.B. and E.R. “require a strictly managed special diet,
daily medication, and close supervision due to their seizures.” Tyler noted how the children’s
caseworker opined “that [Father] is not capable of meeting the children’s daily care needs, given
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the dietary needs and medical care, and appointments required for their current medical
condition.”
¶ 34 Tyler’s own observation and evaluation of Father mirrored the caseworker’s view.
Tyler noted that while she was observing Father interact with his children, O.B. began having
seizures and Father did not notice until Tyler told him. Tyler observed Father had limited eye
contact and physical touch with O.B. and E.R. When he cared for O.B. and E.R. at the same
time, he “appeared to have difficulty noticing and keeping track of both of his girls.” Tyler
explained Father “appeared able to attend to one child’s needs and able to observe one child,
however, he had difficulty noticing the child’s needs when he was not directly focused on that
child, in keeping track of what they were getting into or what they were doing with this
examiner’s assistance.” Though she described Father as “kind and gentle in his approach to his
children,” Tyler noted Father needed assistance or direction to meet the children’s caregiving
needs, like feeding and changing diapers. After interviewing Father, observing him with his
children, and administering him various tests, Tyler concluded Father “is not able to meet
minimum parenting standards independently for [O.B.] and [E.R.] due to their complex medical
needs.” Tyler testified in accordance with her report, saying Father’s diminished mental capacity
rendered him “not *** capable or equipped to parent medically-complex children.”
¶ 35 Tyler also testified Father’s inability to parent O.B. and E.R. would continue for
an unreasonably long time. She noted Father’s capabilities were unlikely to change in the near
future. She opined Father would not be able to learn (or be taught) because of his deficits. The
trial court found Tyler credible, and we pay that determination “ ‘great deference’ ”. See A.L.,
409 Ill. App. 3d at 500 (quoting Jordan V., 347 Ill. App. 3d at 1067). Through Tyler’s testimony
and report, the State clearly and convincingly established Father’s inability to discharge his
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parental responsibilities and further established his inability would persist for an unreasonably
long time. See K.B., 2019 IL App (4th) 190496, ¶ 70.
¶ 36 We find certain aspects of this case troubling, namely the State relying solely on
Tyler’s report and testimony (and the admissible hearsay statements therein as competent
evidence) rather than admitting Dr. Hutchison’s report or calling him to testify. But sometimes
cases are decided by the standard of review. Based on this evidence, not matter how slight, the
State proved with competent evidence from a psychologist that Father suffered a mental
impairment, and it then proved Father’s mental impairment rendered him unable to parent O.B.
and E.R. and he would remain unable to discharge his parenting responsibilities in the near
future. Accordingly, we cannot conclude the trial court erred in finding Father unfit and
terminating his parental rights. The trial court’s conclusion does not stand against the manifest
weight of the evidence. See A.L., 409 Ill. App. 3d at 500.
¶ 37 III. CODA
¶ 38 It bears noting the special concurrence in In re I.W., 2018 IL App (4th) 170656,
¶ 60, 115 N.E.3d 955 (DeArmond, J., specially concurring), where, like here:
“This case began with a clear understanding by all parties involved regarding the
parents’ developmental and/or cognitive delays. Trial courts and the State should
pay special attention to these cases to ensure the Department of Children and
Family Services (DCFS) has made reasonable accommodations in providing
services to aid parents in family reunification, as the Americans with Disabilities
Act of 1990 (ADA) (42 U.S.C. §§ 12101 to 12213 (2012)) and section 504 of the
Rehabilitation Act of 1973 (section 504) (29 U.S.C. §§ 701 to 794 (2012))
demand, which simply was not done in this case.”
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¶ 39 Although the record is replete with references to Father’s cognitive limitations,
and even referenced how he would probably need accommodations, there is no indication they
were provided. Quoting again from I.W., 2018 IL App (4th) 170656, ¶¶ 89-91 (DeArmond, J.,
specially concurring):
“Title II of the ADA (Title II) provides that ‘no qualified
individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs or activities of a public entity, or be subjected
to discrimination by such entity.’ 42 U.S.C. § 12132 (2012). A
child-welfare agency or trial court may not engage in any practice
or administration of a program in such a way as to ‘have the effect
of discriminating on the basis of disability, or that [has] the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the child welfare agency’s or
court’s program for persons with disabilities.’ U.S. Dep’t Health &
Human Servs. & U.S. Dep’t Justice, Protecting the Rights of
Parents and Prospective Parents with Disabilities: Technical
Assistance for State and Local Child Welfare Agencies and Courts
Under Title II of the Americans with Disabilities Act and Section
504 of the Rehabilitation Act (Aug. 2015),
https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html.
As that publication notes, individuals with disabilities must
be provided with opportunities to benefit from participation in
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‘child welfare programs, services, and activities that are equal to
those extended to individuals without disabilities,’ as well as the
necessary ‘aids, benefits, and services different from those
provided to other parents and prospective parents where necessary
to ensure an equal opportunity to obtain the same result or gain the
same benefit, such as family reunification.’ Id. ‘[S]ervices must be
adapted to meet the needs of a parent or prospective parent who
has a disability in order to provide meaningful and equal access to
the benefit.’ Id.; see also 28 C.F.R. § 35.130(b)(1)(ii)-(iv) (2015).
Title II requires child-welfare agencies to make all
reasonably necessary modifications to programs or activities to
allow disabled participants to fully engage, furnish auxiliary aids
and services where necessary to ensure effective communication,
administer services in the most integrated setting appropriate to the
needs of the disabled participant, and provide, as needed, services
or advantages beyond those required by regulation to people with
disabilities. Nat’l Council on Disability, Ch. 5: The Welfare
System: Removal, Reunification, and Termination, Rocking the
Cradle: Ensuring the Rights of Parents with Disabilities and Their
Children, https://ncd.gov/publications/2012/Sept272012/Ch5 (last
visited Jan. 22, 2018).”
¶ 40 Now, 10 years after that groundbreaking report, we find DCFS and the courts
continue to proceed to termination of parental rights for parents with disabilities with no
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indication in the record of proceedings that appropriate accommodations were ever sought or
made before concluding the parent is unfit. Further, just as in I.W., this failure remained
unquestioned before the trial court. It may be true the father in this case was incapable and, even
with proper accommodations, would remain incapable of adequately parenting medically
challenging children, but he is entitled to programs and services through DCFS which
accommodate his particular limitations first, before reaching that conclusion.
¶ 41 IV. CONCLUSION
¶ 42 For the reasons stated, we affirm the trial court’s judgment.
¶ 43 Affirmed.
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In re O.B., 2022 IL App (4th) 220419Decision Under Review: Appeal from the Circuit Court of Peoria County, Nos. 19-JA-412,
20-JA-487; the Hon. Derek G. Asbury, Judge, presiding.
Attorneys Dana M. Kelly, of Peoria, for appellant.
for
Appellant:
Attorneys Jodi M. Hoos, State’s Attorney, of Peoria (Patrick Delfino and
for Rosario David Escalera Jr., of State’s Attorneys Appellate
Appellee: Prosecutor’s Office, of counsel), for the People.
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