In re A.S.

Illinois Official Reports
Appellate Court
In re A.S., 2014 IL App (3d) 130163
Appellate Court In re A.S., A Minor (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Spencer B., Respondent-Appellant).
District & No. Third District
Docket No. 3-13-0163
Rule 23 Order filed March 11, 2014
Motion to publish
allowed April 30, 2014
Opinion filed April 30, 2014
Held The trial court did not abuse its discretion in removing respondent’s
(Note: This syllabus son from respondent’s custody and naming DCFS as the child’s
constitutes no part of the guardian, since placement with respondent was not in the child’s best
opinion of the court but interest, where the child had recently been adjudicated neglected
has been prepared by the based on the injurious environment related to his mother and placed
Reporter of Decisions with respondent, but then respondent’s previous involvement with
for the convenience of DCFS surfaced and the caseworker from respondent’s case informed
the reader.) the caseworker in the instant case, inter alia, that respondent’s family,
including his wife and father-in-law, were hostile and uncooperative,
the wife had unresolved substance abuse, mental health and parenting
issues, and respondent had been arrested for cannabis possession.
Decision Under Appeal from the Circuit Court of Peoria County, No. 12-JA-189; the
Review Hon. Mark E. Gilles, Judge, presiding.
Judgment Affirmed.
Counsel on Timothy D. McCarthy, of Peoria, for appellant.
Appeal
Jerry Brady, State’s Attorney, of Peoria (Richard T. Leonard, of
State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Justices McDade and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Following a dispositional hearing, the circuit court made A.S. a ward of the court and
found his mother dispositionally unfit. The circuit court found A.S.’s father, respondent
Spencer B., to be dispositionally fit and granted him guardianship of A.S. Subsequently, after
reopening the dispositional hearing for additional evidence, the circuit court modified its
dispositional order, removing A.S. from respondent and granting guardianship to the
Department of Children and Family Services (DCFS). On appeal, the respondent argues that
the circuit court’s finding that it was in the best interest of A.S. to remove him from respondent
and name DCFS as his guardian was against the manifest weight of the evidence. We affirm.
¶2 FACTS
¶3 On August 7, 2012, the State filed a petition for wardship alleging that four-year-old A.S.
was a neglected minor in that his environment was injurious to his welfare. The allegations
pertained to solely to A.S.’s mother, Brittany S. On December 6, 2012, A.S. was adjudicated
neglected.
¶4 On January 24, 2013, a dispositional hearing report was filed. The report was completed by
a caseworker from the Center for Youth and Family Solutions, Meagan Novak. The report
indicated that the respondent and his wife, Kelsey B., fully cooperated with all of the agency’s
requests and were committed to assuring the safety and stability of their family. The report also
indicated that there was no indication that the respondent would attempt to reestablish a
relationship with Brittany S. The respondent was honest about his criminal history and prior
involvement with DCFS. It was recommended that the respondent be found fit and A.S. remain
in his care.
¶5 On January 24, 2013, a dispositional hearing took place. The circuit court entered a
dispositional order finding that it was in the best interest of A.S. to make him a ward of the
-2-
court. The circuit court found that Brittany S. was dispositionally unfit and that respondent was
fit. The circuit court placed A.S. in the care of respondent and named respondent guardian of
A.S.
¶6 The respondent was ordered to cooperate with DCFS, comply with the terms of the service
plans, and correct the conditions which required the child to be in care. He was also ordered to:
(1) execute all authorizations for release of information requested by DCFS; (2) obtain and
maintain stable housing conducive to the safe and healthy rearing of A.S.; (3) provide the
caseworker with any change in address within three days; and (4) provide the name, date of
birth, social security number, and relationship of any individual DCFS believed would affect
A.S.
¶7 On January 31, 2013, Novak performed a scheduled home visit with the respondent,
Kelsey, and A.S. Also present were Kelsey’s father, John Godez, and A.S.’s stepsister G.B.,
who is the daughter of Kelsey and the respondent.
¶8 On February 7, 2013, the State’s Attorney’s office filed a “Motion to Reopen Dispositional
Hearing and/or Motion to Modify Guardianship.” The motion requested that the court reopen
the dispositional hearing for additional evidence to be presented or, alternatively, modify
guardianship of A.S. to DCFS with the right to place and consent to medical treatment.
¶9 On February 21, 2013, Novak filed a “status alert.” The status alert indicated that the
respondent and his family had previous involvement with DCFS’s intact family services. The
case was closed because the family was reported as having relocated to Iowa. Following the
dispositional hearing in this case, Jean Marlow, the DCFS caseworker previously involved
with the family, contacted Novak. Marlow described the family as uncooperative and hostile.
Marlow indicated that Kelsey had unresolved substance abuse issues and was recommended
for substance abuse assessment and treatment, a mental health evaluation and treatment, and
parenting skills classes. Marlow reported that respondent was arrested on April 9, 2012, for
possession of cannabis. She also indicated that the respondent and Kelsey were unwilling to
sign any consents, verbally attacked caseworkers, and threatened to sue Marlow and DCFS.
¶ 10 The status alert also indicated that on January 29, 2013, Novak held a telephone conference
with Kelsey to discuss Kelsey’s concerns regarding her family’s juvenile court involvement.
Kelsey expressed continued frustration with not being allowed access to the courtroom during
proceedings involving A.S., even though the proceedings profoundly impacted herself and
G.B. She felt “bullied” by DCFS. Novak reported that Kelsey “presented” as unwilling to
allow unannounced home visits due to inconvenience. An announced home visit was
scheduled for January 31, 2013.
¶ 11 On February 21, 2013, Novak filed an addendum to the status alert, which included a case
note regarding the home visit that took place on January 31, 2013. The addendum indicated
that during the home visit, A.S. and his stepsister, G.B., appeared to be clean, appropriately
dressed, and free from signs of physical abuse. A.S.’s bedroom was clean and adequately
furnished with a bed and appropriate toys for a child. It was noted that: (1) the respondent and
Kelsey would not sign consents to discuss the case in front of each other; (2) the tone in the
home was hostile and caseworkers did not feel welcomed; and (3) respondent may have been
under the influence of drugs or alcohol because his eyes were bloodshot and his eyelids
-3-
appeared partially open, red, and swollen. Initially, Kelsey would not allow the caseworkers to
speak with A.S. alone because he suffered from behavioral problems and mental illness. After
Kelsey and respondent telephoned respondent’s attorney, they allowed the caseworkers to
speak with A.S. alone. A.S. indicated that he loved his stepsister. A.S. reported being a good
boy and not being harmed by anyone in the home. He said the three scabs on his face were from
his stepsister, G.B. Kelsey declined an offer for A.S. to receive counseling services because he
was too young.
¶ 12 The addendum also indicated that during the time Kelsey and respondent were telephoning
respondent’s attorney, Godez told caseworkers that they were violating the respondent’s
constitutional rights and asked caseworkers about their knowledge of the Illinois state
constitution. He also questioned whether the caseworkers were parents. Novak indicated that
the question was inappropriate and irrelevant. Novak also indicated that she felt threatened by
Godez and the caseworkers would not return to the home without a police escort.
¶ 13 Since the home visit, Kelsey reported her dissatisfaction with the caseworkers and their
agency. Kelsey believed that agency workers lied to police and the court. She also believed that
the caseworker’s supervisor had personal issues against her family and abused her power.
Kelsey sent Novak up to six emails per day and called her supervisor five times within an hour.
Kelsey was informed of the proper procedures for filing a grievance with the agency.
¶ 14 The addendum included additional information regarding the family’s previous intact
services with DCFS. Marlow’s final consultation note indicated that if the family was
indicated again for issues of drug or alcohol abuse leading to the neglect of the children, then
the case should be referred for court involvement. It was also noted that: (1) respondent did not
participate in the recommended substance abuse evaluation, substance abuse treatment, or
parenting skills education; (2) after undergoing a substance abuse evaluation on January 10,
2012, Kelsey met the diagnostic criteria for opioid dependence and cannabis abuse; and (3)
Kelsey failed to obtain the recommended treatment and failed to understand mental illness and
its effects on parenting and relationships.
¶ 15 On February 21, 2013, a hearing took place on the State’s motion to reopen the
dispositional hearing or modify guardianship. The parties stipulated that Novak would testify
consistently with the addendum to the status alert. Novak additionally testified that a few days
after the initial dispositional hearing, she was informed that during the family’s prior
involvement with DCFS, the respondent and Kelsey were uncooperative and refused to sign
consents. Without consents being signed, their level of cooperation with recommended
services could not be provided.
¶ 16 On cross-examination, Novak testified that on January 29, 2013, she was able to schedule a
home visit. A home visit was required so she could observe A.S., speak with A.S., and monitor
A.S. for any signs of abuse or neglect as part of DCFS’s standard protocol. Neither respondent
nor Kelsey refused to have the home visit. On January 31, 2013, Novak arrived at the
respondent’s home and was allowed inside. After respondent spoke with his attorney, Novak
was allowed to speak with A.S. The respondent has offered to sign a release for Novak to speak
with A.S.’s pediatrician.
-4-
¶ 17 At the conclusion of the evidence, the assistant State’s Attorney requested that the court
order additional services for the respondent, including a drug and alcohol evaluation, drug
testing, and counseling. The guardian ad litem requested that A.S. be removed from the
respondent’s care. The respondent’s attorney objected to the removal of A.S., indicating that
there had been no prior pleadings requesting A.S. be removed and that the circuit court did not
have the power to order removal at that juncture in the case. The circuit court overruled the
objection, finding that placement with the respondent was detrimental to the best interests of
A.S.
¶ 18 In its written order, the trial court indicated, “Behavior of [Kelsey] and her father and
[respondent’s] inability to control behaviors was irrational, unwarranted and concerning.” The
court additionally indicated, “Court finds immediate and urgent necessity that [A.S.’s]
placement with [respondent] is terminated as it is not in child’s best interest. The Department
and Agency made reasonable efforts to prevent removal of child from the home.” The circuit
court appointed DCFS as the guardian of A.S.
¶ 19 Respondent appeals.
¶ 20 ANALYSIS
¶ 21 On appeal, the respondent argues that the court’s decision to remove A.S. from his care and
name DCFS as guardian was against the manifest weight of the evidence. We will not reverse a
circuit court’s dispositional determination unless the factual findings are against the manifest
weight of the evidence or the circuit court abused its discretion by selecting an inappropriate
dispositional order. In re J.C., 396 Ill. App. 3d 1050 (2009).
¶ 22 Pursuant to the Juvenile Court Act of 1987 (Act), once a child is adjudicated abused,
neglected or dependent, the court must hold a dispositional hearing to determine whether it is
in the child’s best interests to be made a ward of the court and the proper disposition best
serving the health, safety and interests of the minor and the public. 705 ILCS 405/2-21, 2-22
(West 2012); In re Austin W., 214 Ill. 2d 31 (2005). Only after a finding that it is in the best
interest of the child to make him a ward of the court can the court issue a dispositional order
affecting the future conduct of the parents. 705 ILCS 5/2-23 (West 2012); In re C.L., 384 Ill.
App. 3d 689 (2008).
¶ 23 A minor found to be neglected and made a ward of the court may be: (1) continued in the
care of his parent, guardian or legal custodian; (2) restored to the custody of his parent,
guardian or legal custodian; (3) ordered partially or completely emancipated; or (4) placed in
accordance with section 2-27 of the Act. 705 ILCS 405/2-23(1)(a) (West 2012). Under section
2-27, the circuit court may place the minor with DCFS:
“If the court determines and puts in writing the factual basis supporting the
determination of whether the parents, guardian, or legal custodian of a minor adjudged
a ward of the court are unfit or are unable, for some reason other than financial
circumstances alone, to care for, protect, train or discipline the minor or are unwilling
to do so, and that the health, safety, and best interest of the minor will be jeopardized if
-5-
the minor remains in the custody of his or her parents, guardian or custodian ***[.]”
705 ILCS 405/2-27 (West 2012).
Under certain circumstances it is not necessary that the natural parent be found unfit or be
found to have legally forfeited his rights to custody, if it is in the child’s best interest that he be
placed in the custody of someone other than the natural parent. Austin W., 214 Ill. 2d 31; In re
Y.A., 383 Ill. App. 3d 311 (2008) (a finding of unfitness was not necessary if it is in the minor’s
best interest to do so).
¶ 24 Although dispositional orders are generally considered “final” for appeal purposes, they
are subject to modification. Austin W., 214 Ill. 2d 31. The Illinois Supreme Court has indicated:
“[O]nce a child has been made a ward of the court and a dispositional order has been
entered, the court may, at any time, vacate the original dispositional order and enter any
other dispositional order that it could have entered under section 2-23(a) of the Act,
thereby effecting a change in the custody and guardianship of the minor, if the court
finds that to do so would be in the best interests of the child.” Austin W., 214 Ill. 2d at
44.
¶ 25 Here, the circuit court found that A.S. was neglected. The case proceeded to a dispositional
hearing, and the circuit court found that it was in the best interest of A.S. to make him a ward of
the court. The court found that respondent was fit and named him as guardian of A.S. Due to its
wardship of A.S., the court had authority to direct the respondent to cooperate with DCFS,
provide caseworkers with certain information, execute releases, comply with the terms of the
service plans, obtain stable housing, and correct the conditions which required A.S. to be in
care. See C.L., 384 Ill. App. 3d 689 (when one parent is found dispositionally unfit and the
other parent is without fault, a court may not interfere unless the court determines it is in the
best interest of the minors to become wards of the court); see also 705 ILCS 405/2-28 (West
2012); In re S.S., 313 Ill. App. 3d 121 (2000) (a fit parent may maintain custody of a minor
while the circuit court exercises its supervisory powers over the child’s relationship with the
other parent). There are no arguments on appeal regarding the circuit court’s finding that it was
in A.S.’s best interest to make him a ward of the court.
¶ 26 At the hearing on the State’s motion to reopen the dispositional hearing, the circuit court
determined that it was in A.S.’s best interest to terminate placement with the respondent
because respondent was unable to control the irrational and unwarranted behavior of his wife
and father-in-law. In light of the evidence of prior substance abuse and possible mental health
issues in the home, a proper assessment of A.S.’s living situation was imperative to determine
the appropriate services and care to be provided for A.S. and the family. The evidence
indicated that the negative behaviors of the respondent’s wife and father-in-law inhibited the
caseworkers’ ability to make such a determination.
¶ 27 Therefore, based on the evidence of circumstances surrounding this case, the circuit court’s
finding that it was in A.S.’s best interest to terminate placement in the respondent’s custody
was not against the manifest weight of the evidence. Additionally, removing A.S. from the
respondent’s custody and naming DCFS as his guardian was an appropriate dispositional order
and was not an abuse of the trial court’s discretion.
-6-
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, we affirm judgment of the circuit court of Peoria County.
¶ 30 Affirmed.
-7-