People v. Dennis E. D.

No. 3--05--0582
_________________________________________________________________
filed September 14, 2006.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
In re RYAN B., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
a Minor ) Peoria County, Illinois,
)
(The People of the State )
of Illinois, )
)
Petitioner-Appellee, ) No. 05--JA--22
)
v. )
)
Dennis E. D., ) Honorable
) David J. Dubicki,
Respondent-Appellant). ) Judge, Presiding.
________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
________________________________________________________________
Respondent Dennis E. D. is the father of the minor, Ryan B.
Ryan was found to be neglected by reason of an injurious
environment while living with his mother. Following a
dispositional hearing, the court found respondent unwilling to
care for the minor and awarded guardianship to the Department of
Children and Family Services (DCFS) with the right to place.
Respondent appeals, arguing that the trial court erred in finding
that he was unwilling to care for the minor and in granting DCFS
the right to place the minor in foster care. We reverse and
remand.
BACKGROUND
On February 4, 2005, the State filed a petition for wardship
based on several allegations indicating that Ryan's mother, Tina
B., failed to provide a safe and nurturing environment for her
four children. The State's petition sought an order of
protection requiring Tina to use only DCFS approved caretakers,
to submit to random urine drops or breathalyzer tests, and to
keep unrelated males out of her home. Although the petition
alleged that the children were unclean and lacked supervision,
they were not removed from Tina's care. At arraignment
proceedings on February 9, the court entered an order of
protection as requested by the State. Tina informed the court
that respondent was Ryan's father, and respondent was personally
served with summons on February 18, 2005.
At the adjudicatory hearing, both Tina and respondent
stipulated that the State could prove its allegations of neglect,
none of which pertained to respondent. Based on the
stipulations, the court entered an order on June 14, 2005,
adjudicating the minors neglected.
On July 26, 2005, the cause proceeded to a dispositional
hearing. DCFS child welfare specialist Mary French testified
that she had taken over the case at the end of May 2005. A prior
caseworker told her that the fathers of Tina's children were
interested in placement. However, due to scheduling problems,
French was not able to interview respondent until mid-July. She
said no scheduled visits had been set up for respondent, but he
was free to visit Ryan by making arrangements with Tina whenever
he could "connect." French said she thought respondent picked
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Ryan up at Tina's house and took him "places," but she did not
know where. She said respondent was employed overseas between
January and April 2004. Respondent told French he had not
visited Ryan after he returned to the United States because he
did not know Tina's whereabouts. French said Tina told her that
she had lived at her current residence for a year.
Testifying on his own behalf, respondent said he first
learned of Tina's address when he was served with summons. He
said he wanted to see Ryan and offered to assume custody of him,
but Tina did not agree to give him up pending resolution of the
neglect proceedings. Respondent said he had had only one visit
with Ryan since February 2005. He said he was working the 11
p.m. to 11 a.m. shift at Archer-Daniels-Midland (ADM), where he
had been employed since April 2005. Prior to that, he had worked
for a short time at an automobile dealership. He said he rotated
shifts weekly at ADM according to a fixed yearly schedule. He
was willing and able to arrange either to have visitation with
Ryan or take custody of him if Tina lost custody. Respondent
acknowledged that he really did not know Ryan, but he loved him
and very much wished to get to know and bond with him. Tina
testified that she receives child support from respondent through
his employment.
In addition to the testimony, the court considered a social
history report filed by French. This report showed that
respondent lived in a two-story, six-bedroom home with his
mother, his sister, and his three older sons from two prior
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marriages. French noted that respondent's home was located in
reasonable proximity of schools, hospitals and social service
agencies, and that it met basic health and safety standards.
Respondent told French that he had had a brief intimate
relationship with Tina after his second divorce. Although they
had an agreement not to have children, she became pregnant with
Ryan. Respondent described himself as a "wonderful father, but a
lousy husband."
French reported that respondent's three older sons treated
Ryan like their baby brother and wanted to know when Ryan was
coming to live with them. Respondent told French that Tina had
offered to let him have Ryan for one weekend, but he was working
that weekend and did not return her call. Respondent believed
that Tina had substance abuse problems. Respondent told French
that he loved Ryan; he wanted to give Ryan a home and give Tina
visitation.
At the close of the hearing, the assistant State's Attorney
argued that, even though placement with respondent was "probably
appropriate" for Ryan, the court should find that respondent was
"unwilling" to care for him because respondent had not taken
sufficient steps to build a relationship with Ryan. She stated,
"I'm sure that he is willing as a parent, but as it stands right
now, that willingness has failed to show itself, not to suggest
that it will not."
The court, in ruling that respondent was "unwilling" and
that guardianship of Ryan should be awarded to DCFS, noted only
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that respondent "has not exercised relationship &/or regular
visits with minor although no impediments to doing so." With
regard to placement, the court found that the circumstances
supporting its finding of Tina's unfitness to care for her
children warranted removing Ryan from Tina and granting DCFS the
right to place him. The court made no finding that placement
with respondent would jeopardize Ryan's health, safety and best
interest.
ISSUES AND ANALYSIS
1. Unwillingness to Care for the Minor
On appeal, respondent initially argues that the court's
finding of his "unwillingness" to care for Ryan is contrary to
the manifest weight of the evidence.
Wardship proceedings touch upon fundamental rights, and the
natural ties between parents and their children may be neither
severed nor frayed on the basis of mere speculation. In re
Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734 (2004). Because
biological parents have a superior right of custody to their
children, both parents must be adjudged unfit, unable or
unwilling to care for the minor before placement with DCFS is
authorized. In re Edward T., 343 Ill. App. 3d 778, 799 N.E.2d
304 (2003).
The Juvenile Court Act of 1987 (Act) was enacted to secure
care and guidance for minors, and to preserve and strengthen the
minor's family ties whenever possible, removing him from the
custody of his parents only when his safety or welfare, or the
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protection of the public cannot be adequately safeguarded without
removal. 705 ILCS 405/1--2 (West 2004). Pursuant to the Act,
the court may commit the minor to DCFS for care and services if a
parent is unwilling to care for, protect, train or discipline the
minor and the court finds "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, guardian or custodian." 705
ILCS 405/2--27(1) (West 2004). The standard of proof for a
circuit court's dispositional findings is a preponderance of the
evidence. In re April C., 326 Ill. App. 3d 245, 760 N.E.2d 101
(2001). On review, we must determine whether the trial court's
decision is contrary to the manifest weight of the evidence.
April C., 326 Ill. App. 3d 245, 760 N.E.2d 101.
In this case, the evidence established that respondent had
not established more than a biological relationship with Ryan
prior to the institution of wardship proceedings. However, this
fact, standing alone, did not prove that he was unwilling to
provide parental care and guidance for his son. To the contrary,
the evidence demonstrated that respondent stood ready, willing
and able to care for his son and to provide parental guidance to
him if Tina was found unfit to do so.
The evidence showed that respondent never lived with Tina
after Ryan was born. There was no indication that he even was
aware of Ryan's environment prior to the adjudication hearing in
June 2005, when Tina stipulated that the State could prove the
allegations in its petition. Once he received notice of the
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proceedings, respondent offered to assume custody of his son to
shield him from the disruption in his life that would ensue if he
were removed from Tina's custody. Tina declined respondent's
offer. The evidence also showed that respondent had recently
changed jobs, and he had some difficulty coordinating
arrangements with Tina in order to exercise visitation with Ryan
pending the wardship proceedings. Nevertheless, respondent
testified that he had a fixed work schedule for the year that
allowed him to spend time with Ryan if regular visits were
scheduled. Respondent testified that he loved Ryan, and he
wished to take custody of him.
Under the circumstances, we cannot accept the trial court's
conclusion that respondent's failure to interfere with Tina's
rights as the custodial parent (see Arthur H., 212 Ill. 2d at
473, 819 N.E.2d at 752 (a custodial parent has a right to say
"no" to a non-custodial parent who wishes to remove his child
from her care)) or to exercise unscheduled visitation pending the
wardship proceedings was sufficient proof of his unwillingness to
care for Ryan. The court's finding was contrary to the manifest
weight of the evidence; accordingly, we reverse the finding of
unwillingness.
2. Placement
Respondent also contends that the trial court's decision
granting DCFS the right to place Ryan in foster care was contrary
to the manifest weight of the evidence. Generally, this court
will not reverse a trial court's dispositional determination
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unless we find that the court abused its discretion by selecting
an inappropriate dispositional order. In re Taylor B., 359 Ill.
App. 3d 647, 834 N.E.2d 605 (2005).
Here, the court's dispositional order granted DCFS
guardianship with the right to place the minor based solely on
the court's finding that Tina's home was an injurious environment
for a child. This finding did not warrant granting DCFS the
right to place Ryan with a third party. See In re M.K., 271 Ill.
App. 3d 820, 649 N.E.2d 74 (1995) (holding that a child may not
be placed in custody of a third party without good cause or
reason to deny custody to a fit parent). The evidence before the
court demonstrated that respondent did not live in Tina's home,
and there was no evidence to indicate that respondent's home was
not a safe and nurturing environment for Ryan. See In re S.S.,
313 Ill. App. 3d 121, 728 N.E.2d 1165 (2000) (an important factor
in wardship decision is whether both parents lived in the home
where the minor was neglected). Under the circumstances, we hold
that the court's order granting DCFS guardianship with the right
to place was an abuse of discretion.
In sum, the record establishes that the court did not give
consideration to respondent's superior right to custody of his
own child. Having found that the court's determination that
respondent was unwilling to provide care and guidance was
erroneous, we reverse as well the wardship order granting DCFS
guardianship with the right to place.
CONCLUSION
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For the reasons stated, the dispositional order finding
respondent unwilling to care for the minor and granting
guardianship to DCFS with the right to place is vacated, and the
cause is remanded for further dispositional proceedings
consistent with the views expressed herein.
Order vacated; cause remanded.
O'BRIEN and LYTTON, J.J., concur.
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