In re Kelvion V. ( 2015 )

Illinois Official Reports
Appellate Court
In re Kelvion V., 2014 IL App (1st) 140965
Appellate Court In re KELVION V. and TYLEA V., Minors, Respondents-Appellees
Caption (The People of the State of Illinois, Petitioner-Appellee, v. Tiffany V.,
Respondent-Appellant).
District & No. First District, Third Division
Docket No. 1-14-0965
December 23, 2014
Filed
Held An order vacating an order of protective supervision allowing
(Note: This syllabus respondent’s minor children to reside with her subject to certain
constitutes no part of the conditions was upheld over respondent’s contention that the evidence
opinion of the court but presented at the hearing on the public guardian’s emergency motion to
has been prepared by the vacate the order did not support the finding that respondent violated
Reporter of Decisions certain provisions of the order and did not warrant removing the
for the convenience of children from her custody.
the reader.)
Decision Under Appeal from the Circuit Court of Cook County, Nos. 12-JA-211,
Review 12-JA-212; the Hon. Maureen F. Delehanty, Judge, presiding.
Judgment Affirmed.
Counsel on Law Offices of Anthony M. Petrone, P.C., of Chicago (Anthony M.
Appeal Petrone, of counsel), for appellant.
Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and
Susan S. Wigoda, of counsel), for the People.
Panel JUSTICE MASON delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the
judgment and opinion.
OPINION
¶1 Respondent-appellant Tiffany V. appeals from a March 7, 2014 order of the circuit court of
Cook County vacating a December 16, 2013 order of protective supervision, which allowed
her minor children to reside with her subject to certain conditions. Tiffany V. contends that the
evidence at a hearing on the Cook County public guardian’s emergency motion to vacate the
order did not support the trial court’s finding that she violated certain provisions of the order
and did not warrant removing the children from her care and custody. We disagree and affirm.
¶2 BACKGROUND
¶3 Tiffany V.’s older child, Kelvion, was born on September 27, 2007, and was six years old
at the time of the hearing; his younger sister, Tylea, born on January 10, 2012, was two years
old when the hearing was held.
¶4 Kelvion and Tylea first came to the attention of the Department of Children and Family
Services in February 2012 when Tylea, then less than two months old, was hospitalized and
diagnosed with nonorganic failure to thrive. During Tylea’s hospitalization, Tiffany V. did not
adhere to Tylea’s feeding schedule, threatened to remove Tylea from the hospital against
medical advice, and when Tylea was discharged on February 17, 2012, failed to follow the
hospital’s discharge instructions for Tylea’s care. On February 21, 2012, a follow-up
investigation revealed no food or infant formula in Tiffany V.’s home and there was a strong
stench of urine in the residence. It was also observed that Tiffany V., who had been diagnosed
with lipodermatosclerosis–a chronic and painful skin condition affecting the lower legs as a
result of venous insufficiency–exuded a fetid odor and had been prescribed medication that
had a sedative effect. Kelvion and Tylea were taken into protective custody on February 23,
2012.
¶5 On February 24, 2012, the State filed petitions for adjudication of wardship for both
children. On August 13, 2012, the trial court found that Tylea was neglected because she
lacked necessary care and that both children were neglected because they were in an injurious
environment. The court also found that Tiffany V. was unable to care for, protect and train her
children, and as a result, the court made Kelvion and Tylea wards of the court.
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¶6 Tiffany V. both appealed and sought reconsideration of the August 13, 2012 order. She
later dismissed her appeal and her motion for reconsideration was denied on October 19, 2012.
¶7 The trial court proceeded with permanency planning hearings for Kelvion and Tylea, who
had been placed together in a nonrelative foster home. On February 5, 2013, following a
hearing, the court entered the goal of return home within 12 months. The court noted that
Tiffany V. had made progress in therapy and was required to continue her involvement in
parenting classes.
¶8 Another permanency planning hearing was held on July 29, 2013. The court continued the
goal of return home and noted that Tiffany V. needed to continue to make progress in
necessary services.
¶9 In December 2013, Tiffany V. filed a motion to return Kelvion and Tylea to her care and
custody. At a hearing on the motion held on December 16, Jennifer Costello, a caseworker
from ChildLink assigned to work with Tiffany V. and her family, testified that the agency
supported Tiffany V.’s motion. Costello noted that Tiffany V. had successfully completed all
recommended services and had been discharged from therapy. Although the agency where
Tiffany V. was engaged in parenting coaching had closed, Costello’s agency filled in with play
therapy and Costello also conducted weekly observations of the family. Costello noted that
Tiffany V. had adhered to her agreement not to have any contact or to allow her children to
have any contact with a man named Omar who lived in her building. Tiffany V. had been
allowed unsupervised overnight visits twice weekly since September 2013, and based on her
observations, Costello was of the opinion that Tiffany V. was meeting her children’s needs and
that her home was safe and appropriate for them.
¶ 10 The State and public guardian ultimately agreed to Tiffany V.’s motion with the stipulation
that the children be permitted continued contact with their foster parent, with whom they had
established a bond. Based on the evidence and the parties’ agreement, the court entered a
modified dispositional order finding Tiffany V. fit, willing and able to parent her children. The
court also entered an order of protective supervision pursuant to section 2-24 of the Juvenile
Court Act of 1987 (705 ILCS 405/2-24 (West 2012)), which allows the court to impose
conditions upon release of children under the court’s jurisdiction to the custody of their
parents. Pursuant to the order of protective supervision, Tiffany V. was obligated to provide all
care necessary for the minors, and ensure (i) appropriate supervision of the minors at all times,
(ii) an appropriate care plan for the minors, (iii) attendance at school by school-age minors and
(iv) that her children have no contact with any individual not approved by DCFS.
¶ 11 During the hearing, the court specifically admonished Tiffany V. that its paramount
concern was that she not permit the children to have contact with Omar or anyone that had not
been previously vetted by Costello while the order of protective supervision was in place. The
court informed Tiffany V. that if she violated that provision of the order, the children would be
removed from her care immediately. The court also ordered Tiffany V. to ensure that her
children were appropriately supervised at all times and that any caregivers be approved by
Costello. Finally, the court ordered Costello to conduct at least five unannounced visits per
month with the family. The court advised Tiffany V. that the visits were necessary to ensure
the children’s safety and well-being.
¶ 12 On the evening of March 4, 2014, Costello made an unannounced visit to Tiffany V.’s
home. When she arrived, she observed Tiffany V. and Kelvion outside about a half block from
their home. Tiffany V. informed Costello that her aunt was taking care of Tylea. In Costello’s
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presence, Tiffany V. used her cell phone to make a call and Costello heard her ask when Tylea
would return home. She then informed Costello that her aunt did not plan to return Tylea for
some time and so Costello would be unable to see her. Costello informed Tiffany V. that she
wanted to inspect the home because of a concern raised during her last visit about the presence
of an unapproved man. It took Tiffany V. about 20 minutes to traverse the short distance to her
home and she had to stop frequently. She claimed to have fallen on the ice recently. After
stalling, Tiffany V. ultimately let Costello into her apartment where Costello, over Tiffany V.’s
objection, entered her bedroom to find Tylea alone and asleep on Tiffany V.’s bed. At that
point, Tiffany V. offered no explanation why Tylea was in the home alone. Costello stayed in
the home for about an hour and did not observe any of Tiffany V.’s relatives there during her
visit.
¶ 13 On March 5, 2014, the public guardian filed an emergency motion to vacate the order of
protective supervision. Tiffany V.’s attorney, who had not yet been served with the emergency
motion, participated in the hearing via speaker phone. Having moved the children from foster
care to Tiffany V.’s home less than two months earlier, the court was reluctant to take Kelvion
and Tylea back into care immediately because of the potential adverse impact on them. The
court ultimately instructed Costello to increase her visits to the home and to develop a safety
plan with Tiffany V. pending the hearing on the emergency motion, which was scheduled for
March 7, 2014.
¶ 14 On March 7, 2014, the public guardian filed an amended emergency motion alleging a
violation of and seeking to vacate the order of protective supervision. New matter included in
the amended motion represented that Costello attempted to schedule an emergency meeting
with Tiffany V. on March 5, but Tiffany V. refused to meet with her and claimed to have
scheduling conflicts, including picking Kelvion up from school. Costello was able to meet with
Tiffany V. later on March 5 only after showing up at her home and persuading Tiffany V., who
was screaming at her, to open the door. Further, Kelvion did not attend school on March 5 and
Costello learned that he had 12 unexcused absences from school and numerous late arrivals
since he was returned to Tiffany V.’s care.
¶ 15 When the case was called on the afternoon of March 7, counsel for Tiffany V. informed the
court that his client had called his office and left several messages. When he spoke to her most
recently, she was waiting for a cab to come to court. When he called the cab company, Tiffany
V.’s attorney learned that she had cancelled two orders for cabs that morning and the company
would not go to pick her up again. She had also not called another cab. Counsel requested that
the hearing be continued to the following Monday. Before ruling on counsel’s request, the
court indicated that it wanted to hear from Costello about her most recent visit to Tiffany V.’s
home.
¶ 16 Costello was sworn and testified that when she arrived at Tiffany’s home in the late
afternoon of March 5, Tiffany V. refused to open the door, accusing Costello of trying to take
her children. Tiffany V. eventually opened the door and spoke to Costello as well as Costello’s
supervisor on the phone. With respect to Tylea being left alone, Tiffany V. claimed that she left
Tylea in the care of her aunt and did not know that the aunt had left Tylea with Tiffany V.’s
cousin. Tiffany V. claimed her cousin was present on March 4 when Costello visited, but was
outside the home during the entirety of Costello’s visit. Costello noted the apparent conflict
between Tiffany V.’s current version and her conduct in supposedly speaking to her aunt on
March 4 and later informing Costello that Tylea would not be returned for some time.
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Although the agency had received sufficient information to approve Tiffany V.’s aunt as a care
provider for the children, they had received no information about Tiffany V.’s cousin. When
Tiffany V. informed Costello that she had a disagreement with her aunt, Costello told her she
needed to identify another source of support, but Tiffany V. refused to give Costello any
further information about her aunt or cousin, claiming that they did not want to have anything
to do with DCFS. Costello informed Tiffany V. about the necessity of her appearance at the
hearing scheduled for March 7.
¶ 17 In response to a question from Tiffany V.’s counsel designed to elicit testimony that this
was Tiffany V.’s only violation of the order, Costello also testified regarding an incident that
occurred during the visit immediately preceding the March 4 visit. On that occasion, Costello
heard the noise of a man snoring coming from Tiffany V.’s bedroom. When asked, Tiffany V.
claimed the noise was coming from the television, but during the remainder of the visit, the
snoring got louder and Costello was convinced there was a man in Tiffany V.’s bedroom. At
that point, Costello was not comfortable entering the bedroom, but her supervisor later told her
that she should have, which is what prompted her to do so over Tiffany V.’s objection on
March 4 when she found Tylea alone.
¶ 18 Costello testified that the agency believed Kelvion and Tylea should be removed from the
home because of safety concerns resulting from Tylea being left alone as well as Tiffany V.’s
contradictory versions of events leading to that situation. Costello was also of the opinion,
based on her observations of Tiffany V. on March 4, that Tiffany V.’s mobility was
compromised to the extent that Costello did not believe she was physically capable of running
after her children.
¶ 19 Following the hearing, the court expressed its concerns about Tiffany V.’s dishonesty
regarding the circumstances of Tylea being left alone and her reluctance to allow Costello into
her home on March 5 to check on the safety and well-being of the children. The court found
such conduct inconsistent with the “absolute transparency” required in order to ensure the
children’s safety. Further, although Costello informed Tiffany V. of the date and time of the
hearing on March 7, the court noted that Tiffany V. had not arranged for transportation and
failed to appear. Although the court acknowledged Tiffany V.’s previous efforts to comply
with court-ordered services, those efforts could not outweigh the paramount concern over the
children’s well-being. Consequently, the court granted the public guardian’s motion and
entered a modified dispositional order vacating the December 16, 2013 order, finding Tiffany
V. unable to care for Kelvion and Tylea and removing them from her care. The children were
again placed in foster care. Tiffany V. timely appealed.
¶ 20 ANALYSIS
¶ 21 Tiffany V. challenges the trial court’s order on two bases: first, she contends the finding
that she violated the order of protection is contrary to the manifest weight of the evidence;
second, she claims that the court’s ultimate decision to remove Kelvion and Tylea from her
care constituted an abuse of discretion. Neither contention has merit.
¶ 22 Dispositional hearings under the Juvenile Court Act focus on “whether it is in the best
interests of the minor and the public that [the minor] be made a ward of the court.” 705 ILCS
405/2-22(1) (West 2012). Under section 2-27 of the Juvenile Court Act, the court may commit
a minor to, among other placements, a DCFS wardship, if the court finds that the parents “are
unfit or are unable, for some reason other than financial circumstances alone, to care for,
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protect, train or discipline” the child and that “the health, safety, and best interest of the minor
will be jeopardized if the minor remains in the custody of his or her parents.” 705 ILCS
405/2-27(1) (West 2012).
¶ 23 In all dispositional hearings, “[t]he best interests of the child is the paramount
consideration to which no other takes precedence.” In re Austin W., 214 Ill. 2d 31, 46 (2005).
The party requesting a finding that a parent is unable to care for, protect, train or discipline her
children must establish the parent’s inability by a preponderance of the evidence. In re D.W.,
386 Ill. App. 3d 124, 139 (2008). We will reverse a dispositional order only if it is contrary to
the manifest weight of the evidence. Id. A finding will be deemed contrary to the manifest
weight of the evidence when the record demonstrates that “the result opposite to that reached
by the trial court was the proper result.” In re Stephen K., 373 Ill. App. 3d 7, 25 (2007). We
review the trial court’s decision regarding the proper disposition for an abuse of discretion.
In re P.P., 261 Ill. App. 3d 598, 605 (1994).
¶ 24 In re P.P. is closely analogous to this case. In that case after the court declared the minor
child a ward of the court, the court, based on the mother’s progress in pursuing rehabilitation
for her substance abuse problem, returned the minor to the mother’s care. After the minor
suffered a serious scalding injury, the court returned the minor to DCFS guardianship. On
appeal from that order, this court affirmed that when a minor has been adjudged abused and/or
neglected, been made a ward of the court and placed under the protective shield of an order of
supervision, the court retains the ability to alter the custodial placement of the child as the best
interests of the child warrant. Id. at 602. Although evidence was presented at the hearing on the
public guardian’s petition to vacate the order of protective supervision that the injury to the
child could have been accidental, the court nevertheless concluded that removal of the child
from her mother’s care was warranted. This court determined that the trial court did not abuse
its discretion in reaching that result. Id. at 606.
¶ 25 Here, the evidence we have summarized above overwhelmingly supports the result reached
by the trial court. Within two months of being placed in Tiffany V.’s care, the caseworker
reported disturbing events in Tiffany V.’s home: Tylea was left alone in the home, Tiffany V.
lied to Costello about Tylea’s whereabouts and arrangements she had made for her care and
Tiffany V. later resisted efforts by Costello to check on the children’s safety. Evidence
adduced regarding these events clearly established Tiffany V.’s violations of the order of
protective supervision and thus the public guardian sustained its burden to prove the violations
by a preponderance of the evidence. Further, although not the subject of Costello’s testimony
at the abbreviated hearing and thus not a basis for the trial court’s order, the public guardian’s
representations regarding Kelvion’s absences from school constitute independent grounds for
concern over Tiffany V.’s compliance with the order of protective supervision.
¶ 26 The court’s determination that based on Tiffany V.’s violations, Kelvion and Tylea should
be removed from her care and custody does not constitute an abuse of discretion. Tiffany V.’s
conduct in leaving Tylea alone and resisting Costello’s efforts to check on the children’s safety
posed a substantial risk of harm to the children, which justified removing them from her care.
¶ 27 For these reasons, we affirm the decision of the trial court.
¶ 28 Affirmed.
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