In re L.M. ( 2022 )

2022 IL App (1st) 220018-UFOURTH DIVISION
July 7, 2022
No. 1-22-0018
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
In re L.M., a Minor, ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County
)
Petitioner-Appellee, )
) No. 19 JA 308
v. )
)
L.T.-M., ) Honorable
) John L. Huff,
Respondent-Appellant). ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices Rochford and Martin concurred in the judgment.
ORDER
¶1 Held: Affirming the judgment of the circuit court finding the natural mother unable to
care for, protect, train, or discipline her son and placing him with his natural father.
¶2 Respondent L.T.-M., the natural mother of minor L.M., appeals from a judgment of the
circuit court of Cook County finding her unable to care for, protect, train, or discipline L.M. and
placing L.M. with his natural father, E.M. The State, the Cook County Public Guardian, and
E.M. challenge her contentions. For the following reasons, we affirm.
1-22-0018
¶3 BACKGROUND
¶4 Petition for Adjudication of Wardship
¶5 In April 2019, the State filed a petition for adjudication of wardship as to L.M. (born in
2010), alleging that L.M. was abused and neglected as defined in section 2-3 of the Juvenile
Court Act of 1987 (Act) (705 ILCS 405/2-3 (West 2020)) due to an injurious environment (id.
§ 2-3(1)(b)) and a substantial risk of physical injury (id. § 2-3(2)(ii)). The petition alleged that
L.M.’s half-sister B.T. 1 was observed with a periorbital hematoma, i.e., a black eye, in January
2019. B.T. stated that respondent injured her by repeatedly hitting her in the face with a
cellphone. Medical personnel opined that B.T.’s injury was consistent with her explanation.
Respondent admitted throwing a cellphone at B.T.
¶6 An intact case was opened, and a safety plan was put in place for the family. According
to the petition, respondent failed to attend multiple meetings and family sessions regarding B.T.
Respondent also violated the terms of the safety plan by being unsupervised with L.M.
Both children reported that they feared respondent and did not want to return to her care.
¶7 The circuit court granted temporary custody of L.M. to the guardianship administrator of
the Illinois Department of Children and Family Services (DCFS). The Public Guardian was
appointed as the attorney and guardian ad litem for L.M., and attorneys were appointed to
represent L.M.’s parents: respondent and E.M. The case proceeded to an adjudicatory hearing.
¶8 Adjudicatory Hearing and Order
¶9 The testimony at the adjudicatory hearing included the following. Hannah McCarthy
(McCarthy), a social worker at B.T.’s high school, contacted DCFS after observing discoloration
1
L.M. and B.T. have different fathers; both fathers were non-custodial during the relevant time
period. Although the State also filed a petition for adjudication of wardship as to B.T. (19 JA 307) – and
the two cases appear to have proceeded jointly in the circuit court – the instant appeal is limited to L.M.
2
1-22-0018
below B.T.’s eye. McCarthy testified that B.T. told her that respondent struck her with a
cellphone based on respondent’s belief that B.T. had inappropriately touched respondent’s
paramour. B.T. reported to McCarthy that respondent had stated she “was going to kill [B.T.].”
¶ 10 Enoe Napoles (Napoles), a child protection specialist for DCFS assigned to the case,
testified that respondent had one prior indicated report. 2 During an interview, respondent denied
hitting B.T. but admitted throwing a cellphone at her. When interviewing B.T., Napoles
observed a bump on her forehead, swelling on the bridge of her nose, and light bruising beneath
her eye. B.T. stated that she had missed more than a week of school after respondent punched
her in the lip and repeatedly struck her with a cellphone. B.T. told Napoles that respondent had
been upset, as she believed that B.T. had hit respondent’s paramour’s “private area.” Napoles
testified that B.T. indicated that respondent drank wine and smoked cannabis. According to
Napoles, B.T. asked to be placed with her father.
¶ 11 Napoles testified that she also interviewed L.M. He displayed no visible signs of abuse
or neglect and did not report any concerns. Napoles visited the apartment where E.M. resided
with his mother (L.M.’s grandmother); the apartment was found to be safe and appropriate.
¶ 12 Elizabeth Ramirez (Ramirez), the intact worker assigned to investigate this case,
interviewed respondent in February 2019. Ramirez testified that certain services were
recommended for respondent, e.g., parenting classes and a mental health assessment and
counseling. When Ramirez subsequently confirmed that respondent had not yet attended her
mental health assessment, respondent became upset and stated she would “cuss everybody out.”
¶ 13 Ramirez also testified regarding her interviews of L.M. and B.T. in March 2019. L.M.
reported that respondent had taken him to an indoor trampoline park for his birthday by herself –
2
One of respondent’s older children, C.B., was previously found to be abused and neglected.
3
1-22-0018
a violation of the safety plan. L.M. also told Ramirez that respondent frequently physically
punished B.T. L.M. stated that he was physically punished by respondent as well, but less often
than his sister. Ramirez testified that B.T. was psychiatrically hospitalized after threatening to
commit arson.
¶ 14 Respondent testified that her daughter B.T. rubbed her eyes due to allergies and sleep
apnea, which caused a “brush burn” near her eye. Respondent also testified B.T. had been sick
in January 2019 and missed a few days of school. Although respondent acknowledged that she
“tossed” a cellphone, she denied causing any bruising, and she characterized B.T. as “dramatic.”
She denied ever physically punishing her son L.M. or violating the safety plan by taking him to a
trampoline park on his birthday.
¶ 15 B.T.’s paternal grandmother, A.R., testified that she never noticed a bruise or other sign
of abuse on B.T. A.R. suggested that B.T. was not truthful.
¶ 16 After closing arguments, the circuit court entered an adjudication order in December
2019, finding L.M. was abused and neglected as defined in section 2-3 of the Act (705 ILCS
405/2-3 (West 2020)) due to an injurious environment (id. § 2-3(1)(b)) and a substantial risk of
physical injury (id. § 2-3(2)(ii)) based on respondent’s abuse of B.T. The case eventually
proceeded to a multi-day dispositional hearing, wherein the testimony and other evidence
included the following.
¶ 17 Dispositional Hearing – July 16, 2021
¶ 18 During the initial hearing on July 16, 2021, Cordelia Harris (Harris), a DCFS case
manager, testified that L.M. was placed with his paternal grandmother, D.S., in April 2019.
E.M. also resided with D.S. Harris reported that D.S.’s home was safe and appropriate, and L.M.
displayed no signs of abuse or neglect. Harris testified that L.M. was doing well in occupational,
4
1-22-0018
physical, and speech therapy, and his grades were good. According to Harris, E.M. was required
to participate in family counseling with L.M. Approximately once a month, Harris observed
interactions between L.M. and E.M., which she characterized as appropriate.
¶ 19 Although respondent participated in telephonic and FaceTime calls with L.M., she did
not have many supervised in-person visits due to her behavior. Harris reported that respondent
had participated in individual counseling and had completed parenting classes; respondent was
also required to submit to toxicology screenings, commonly referred to as “drops.”
¶ 20 Harris testified that DCFS recommended L.M.’s placement with E.M. – which aligned
with the wishes of both L.M. and E.M. and was supported by D.S. Harris opined that E.M. and
respondent would be able to agree upon a visitation schedule.
¶ 21 Daniella Macrito (Macrito), a case manager at Maryville (Maryville), a residential
treatment center, testified that B.T. had been residing at Maryville for more than seven months.
According to Macrito, respondent participated consistently in supervised visitation with B.T.
except for the prior two weeks. Macrito testified there were no concerns regarding the visitation.
¶ 22 Respondent testified that she wanted her children returned to her care, although she
acknowledged that B.T. needed additional treatment. Respondent admitted that she “[broke] a
lot of the rules,” e.g., by going to D.S.’s home to help L.M. with his homework. According to
respondent, L.M. wanted to return to her home but was concerned about hurting his father and
grandmother. Respondent represented that E.M. was her former husband and that they separated
in 2013 and divorced in 2020.3 Respondent claimed that she was awarded custody of L.M. in the
divorce decree. She also testified that L.M. had spent time at D.S.’s home throughout his life.
¶ 23 Keith Conway (Conway), respondent’s therapist, testified that respondent had made
3
At a subsequent hearing, respondent clarified that her divorce from E.M. was finalized in 2019.
5
1-22-0018
progress during her 10 months of therapy, e.g., she demonstrated the ability to express her
feelings and to moderate her temperament. Conway’s agency did not recommend any further
individual therapy for respondent at that time.
¶ 24 The circuit court stated that it was impressed with both respondent and E.M. and that
both appeared to be devoted parents. The circuit court, however, continued the hearing to
determine whether respondent and E.M.’s divorce decree already addressed custody issues.
¶ 25 Continued Dispositional Hearing – July 21, 2021
¶ 26 The divorce decree and related transcripts – which were submitted by the State at the
continued dispositional hearing on July 21, 2021 – revealed certain inaccuracies in respondent’s
prior testimony, i.e., respondent had represented to the domestic relations court that she and E.M.
did not have children together. When recalled to the stand, respondent testified that she did not
pursue child custody in the divorce proceedings, as E.M. was largely absent from L.M.’s life at
that time. She maintained that she was best positioned to supervise and motivate her son, given
D.S.’s advanced age and E.M.’s busy work schedule. Respondent further testified that L.M.
expressed daily that he wished to return to her home.
¶ 27 During cross-examination, respondent acknowledged that E.M.’s paternity had been
established through DNA testing in the instant proceedings in 2019, yet she subsequently
represented to the domestic relations court that she and E.M. did not have any children.
Respondent suggested, however, that she had been uncertain if E.M. was L.M.’s biological father
at that time, as he had previously denied paternity.
¶ 28 Beverly Mims Taylor (Mims Taylor), a DCFS supervisor assigned to L.M.’s case, was
called as an impeachment witness. Mims Taylor testified that E.M. had been assessed for
substance usage and had received a referral for family therapy. She testified that DCFS
6
1-22-0018
concluded that E.M. was able to safely parent L.M.
¶ 29 As to respondent, DCFS did not believe she was able to parent L.M. at that time. Mims
Taylor testified that respondent had not completed all of the recommended services, and DCFS
had concerns regarding her anger. According to Mims Taylor, respondent’s outbursts of anger
had negatively affected the ability of DCFS staff members to assess her parenting. Although
respondent had expressed concerns during her testimony regarding L.M. always being outside,
Mims Taylor had never received any report that L.M. was being improperly supervised.
¶ 30 Continued Dispositional Hearing – December 9, 2021
¶ 31 At the continued dispositional hearing on December 9, 2021, DCFS case manager
Cordelia Harris provided updated testimony. Harris testified that respondent had completed
parenting classes. Although respondent’s individual therapy was discontinued after her
therapist’s departure from the agency, DCFS recommended that such therapy continue and that
she receive a certificate of completion.
¶ 32 Harris also testified that respondent provided biweekly drops; respondent tested positive
for marijuana in September 2021. Shortly before the December hearing, respondent missed a
scheduled drop, although she claimed that the drop location had closed early on that date.
¶ 33 According to Harris, DCFS was concerned that respondent may have mental health
issues. Harris testified that respondent’s supervised visits with DCFS were previously
discontinued based on her disrespectful behavior toward the transportation agencies, e.g.,
threatening and insulting the staff members.
¶ 34 When E.M. and D.S. agreed to supervise respondent’s visits with L.M., respondent
continued to engage in inappropriate behavior. On one occasion in June 2021, D.S. arrived
home to find respondent bathing in D.S.’s bathtub. When confronted by D.S., respondent cursed
7
1-22-0018
at her. On another occasion in August 2021, respondent observed L.M. on the street in the
afternoon, picked him up unsupervised, and did not return him to D.S. until almost midnight.
During an argument in front of L.M. in September 2021, respondent broke the knob on D.S.’s
door. Although respondent previously completed a mental health assessment, Harris testified
that DCFS recommended that respondent undergo another psychological assessment.
¶ 35 As to E.M., Harris testified that he had a long history of employment and had planned on
continuing to reside with D.S. for the indefinite future. According to Harris, E.M. had
unsupervised overnight visits with L.M. During cross-examination, Harris testified that E.M.
had stated that he had a pending driving under the influence (DUI) case from 2020. According
to Harris, E.M. “went to court for that and he says that would be removed.”
¶ 36 Respondent provided additional testimony. She testified that L.M. was not involved in
any activities, and she expressed concern that he played outside and crossed busy streets without
supervision. According to respondent, E.M. told L.M. that he was “too big” for Christmas and
birthdays and that L.M. should start engaging in sexual activity with girls.
¶ 37 At the conclusion of the dispositional hearing, the circuit court found that respondent’s
testimony was not credible, noting that she had admitted that she had previously lied under oath.
The circuit court found Harris’s testimony to be credible. In a written order entered on
December 9, 2021, the circuit court found that respondent was unable for some reason other than
financial circumstances alone to care for, protect, train, or discipline L.M. The circuit court
found that E.M. was fit, able, and willing to care for, protect, train, and discipline L.M.; he was
granted custody of L.M. The circuit court also entered an order of protection pursuant to
sections 2-24 and 2-25 of the Act (705 ILCS 405/2-24, 2-25 (West 2020)) which delineated the
terms and conditions of the protective supervision. Respondent timely filed a notice of appeal.
8
1-22-0018
¶ 38 ANALYSIS
¶ 39 Prior to addressing respondent’s contentions on appeal, we address the timeliness of our
decision. The instant appeal is designated as accelerated pursuant to Illinois Supreme Court Rule
311(a) (eff. July 1, 2018). Rule 311(a)(5) provides that “[e]xcept for good cause shown,” the
appellate court shall issue its decision within 150 days after the filing of the notice of appeal. Id.
The 150-day period herein expired on June 3, 2022. We note, however, that each of the parties
requested (and was granted) an extension of time for filing a brief. The three appellee briefs –
from the State, the Public Guardian, and E.M. – were filed in May 2022. Respondent’s counsel
informed our clerk’s office on June 3, 2022, that a reply brief would not be filed. As the case
was not ready for disposition until June 2022, we find good cause for issuing our decision after
the 150-day deadline. E.g., In re B’Yata I., 2013 IL App (2d) 130558, ¶ 26.
¶ 40 Turning to the merits, respondent advances two primary arguments on appeal. She
initially contends that the circuit court’s finding that she was unable to care for, protect, train, or
discipline L.M. was against the manifest weight of the evidence. Respondent also argues that the
circuit court’s decision to place L.M. with his father E.M., based on a finding that E.M. was fit,
able, and willing to care for his son, was against the manifest weight of the evidence. The State,
Public Guardian, and E.M. challenge her contentions. We begin with a brief review of the Act.
¶ 41 Legal Framework and Standard of Review
¶ 42 The Act sets forth the two-step process that the circuit court must follow in determining
whether a minor should be removed from his parents’ custody and made a ward of the court. In
re Z.L., 2021 IL 126931, ¶ 58. The first step is the adjudicatory hearing, wherein the court
considers only the question of whether the minor is abused, neglected, or dependent. Id. ¶ 59.
¶ 43 If the circuit court determines that a minor is abused or neglected at the adjudicatory
9
1-22-0018
hearing, the court then moves to the second step, which is the dispositional hearing. Id. ¶ 60,
citing 705 ILCS 405/2-21(2) (West 2018). “At the dispositional hearing, the trial court
determines whether it is consistent with the health, safety, and best interests of the minor and the
public that the minor be made a ward of the court.” Id. In any proceeding under the Act, the
paramount consideration is the best interest of the child. In re Arthur H., 212 Ill. 2d 441, 464
(2004). See also In re Desiree O., 381 Ill. App. 3d 854, 865 (2008) (noting that the “health,
safety and interests of the minor remain the guiding principle when issuing an order of
disposition regarding the custody and guardianship of a minor ward”).
¶ 44 The burden of proof at a dispositional hearing is on the party requesting a finding that a
parent is unable to care for, protect, train, or discipline a child. In re Daniel G., 2021 IL App
(1st) 210640, ¶ 58. The movant must establish the parent’s inability by a preponderance of the
evidence. Id. See also In re Jennifer W., 2014 IL App (1st) 140984, ¶ 43.
¶ 45 The choice of a dispositional order rests within the sound discretion of the circuit court.
In re L.W., 2021 IL App (5th) 200311, ¶ 26. A dispositional order will be reversed “only if the
factual findings at the dispositional hearing are against the manifest weight of the evidence or if
the court abused its discretion by selecting an inappropriate dispositional order.” Daniel G.,
2021 IL App (1st) 210640, ¶ 54. A finding is against the manifest weight of the evidence when
the opposite conclusion is clearly evident or if the finding itself is arbitrary, unreasonable, or not
based on the evidence presented. Id. “Ultimately, there is a ‘strong and compelling presumption
in favor of the result reached by the trial court’ in child custody cases.” In re William H., 407 Ill.
App. 3d 858, 866 (2011) (citing Connor v. Velinda C., 356 Ill. App. 3d 315, 323 (2005)).
¶ 46 As respondent makes no arguments in her appellate brief regarding the circuit court’s
findings at the adjudicatory hearing, we consider herein only the findings at the dispositional
10
1-22-0018
hearing. E.g., Jennifer W., 2014 IL App (1st) 140984, ¶ 41. See also Ill. S. Ct. R. 341(h)(7) (eff.
Oct. 1, 2020) (providing that “[p]oints not argued are forfeited”).
¶ 47 Finding that Respondent was Unable to Care for L.M.
¶ 48 Respondent contends that the circuit court’s finding that she was unable to care for,
protect, train, or discipline L.M. was against the manifest weight of the evidence, as she had
completed all of the services recommended by DCFS. As discussed below, we reject this
contention. The evidence suggests that respondent did not complete all recommended services.
Furthermore, even assuming her compliance, a reversal is not warranted where the record
otherwise supports the circuit court’s determination that she was unable to care for L.M.
¶ 49 Respondent accurately observes that she completed parenting classes and a psychiatric
evaluation. Harris testified, however, that DCFS recommended that respondent undergo another
psychological assessment. Respondent also notes that her therapist Keith Conway testified that
he was under the impression that “once we’re done with court, basically, her therapy goals are
reached.” A written summary from the counseling agency, however, expressly stated that the
reason for the termination of respondent’s therapy was that the “[t]herapist no longer works for
the [a]gency” – not that the treatment was completed. Citing In re Daniel G., 2021 IL App (1st)
210640, respondent suggests that the circuit court improperly speculated regarding what future
services may be recommended by DCFS. We disagree. The evidence presented at the
dispositional hearing made clear that DCFS had continuing (and legitimate) concerns based on
respondent’s prior conduct and had recommended additional therapy and periodic drops.
¶ 50 In any event, respondent’s participation in recommended services is not dispositive.
See In re M.B., 332 Ill. App. 3d 996, 1006 (2002) (noting that “[t]he fact a parent exhibits
compliance with recommended services and a willingness to be a good parent is not dispositive
11
1-22-0018
and has been held not to warrant reversal of [an] unfitness or inability finding where the record
contains evidence otherwise supporting the circuit court’s determination”). See also In re
Stephen K., 373 Ill. App. 3d 7, 26 (2007) (observing that the court “was not limited only to
considering the respondent’s compliance with DCFS service plans”); In re Kamesha J., 364 Ill.
App. 3d 785, 796 (2006) (stating that “[a]lthough respondent did participate in some
recommended services, that fact does not mean that a disposition other than the one entered by
the trial court would be in the best interests of the children”).
¶ 51 In the instant case, there is ample support for the circuit court’s finding that respondent
was unable to care for, protect, train, or discipline L.M. Despite the fact that she was never
granted unsupervised visitation with L.M., respondent admittedly “[broke] a lot of the rules” to
visit him, including taking him without permission and unsupervised and returning him at
midnight. The testimony indicates that respondent’s anger issues negatively affected the ability
of DCFS and its agents to assess her or to transport her to visits. She engaged in certain erratic
behavior, including entering D.S.’s residence, bathing in her tub without permission, and
becoming angry when confronted about her behavior. While most of her drops were negative,
respondent tested positive for marijuana in September 2021, and she missed a drop before the
hearing.
¶ 52 Based on our review of the record, it appears that the circuit court “conscientiously took
into account all of the evidence presented at the dispositional hearing.” Z.L., 2021 IL 126931,
¶ 96. The circuit court’s finding that respondent was unable to care for, protect, train, or
discipline L.M. was not against the manifest weight of the evidence. E.g., Jennifer W., 2014 IL
App (1st) 140984, ¶ 45.
12
1-22-0018
¶ 53 Finding that E.M. was Fit, Able, and Willing to Care for L.M.
¶ 54 Respondent also contends that the decision to place L.M. in the custody of his father
E.M. was against the manifest weight of the evidence. As an initial matter, we note that the
parties disagree regarding which party bore the burden of proof at the dispositional hearing with
respect to E.M. Respondent asserts that she bore the burden of proving that E.M. was unable to
care for, protect, train, or discipline L.M. E.g., L.W., 2021 IL App (5th) 200311, ¶ 33 (noting
that the burden of proof at a dispositional hearing is on the party requesting a finding that a
parent is unable to care for, protect, train, or discipline a child); In re Kelvion V., 2014 IL App
(1st) 140965, ¶ 23 (same). Conversely, the State contends that “at no point in the proceedings
did respondent argue that [E.M.] was unable to parent, and therefore the burden was always on
the [State] to show who was able to parent the minor.” The Public Guardian agrees with the
State, noting that the dispositional hearing stemmed from the petition for adjudication of
wardship, which was filed by the State. We need not resolve this issue, however, as the record
clearly supports the circuit court’s determination.
¶ 55 The evidence at the dispositional hearing established that E.M. had unsupervised
overnight visits with L.M. at D.S.’s home throughout the proceedings. D.S.’s home – where
E.M. intended to continue to reside for the indefinite future – was found to be safe. DCFS staff
periodically observed E.M.’s interactions with L.M. and found such interactions to be
appropriate. According to DCFS staff, L.M. had expressed his desire to be placed with E.M.
Although E.M. apparently had a pending DUI case at the time of the dispositional hearing, DCFS
representatives did not express any concern regarding E.M.’s ability to care for and protect L.M.
¶ 56 The sole witness who raised concerns regarding E.M.’s parenting ability was respondent.
The circuit court, however, expressly found respondent’s testimony to be lacking in credibility
13
1-22-0018
based on, among other things, her documented misrepresentations in court proceedings.
Conversely, the circuit court found Harris’s testimony – which supported L.M.’s placement with
E.M. – to be credible. “The circuit court was in the best position to determine the credibility and
weight of the witnesses’ testimony and to resolve conflicts in their testimony because the circuit
court had the opportunity to observe their demeanor and conduct.” In re A.P., 179 Ill. 2d 184,
204 (1997). See also Daniel G., 2021 IL App (1st) 210640, ¶ 71 (noting that the only individual
who questioned the father’s ability to care for the minor was the mother, whose own actions
caused the minor to be adjudged a neglected minor and a ward of the court).
¶ 57 As our supreme court has observed, “[i]t is apparent that the preferred result under the
[Act] is that a child remain in his or her home, in the custody of his or her parents.” In re R.C.,
195 Ill. 2d 291, 308 (2001). Based on our review of the record, we cannot find that the circuit
court’s decision to grant custody of L.M. to his father E.M. was in error.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 60 Affirmed.
14