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03/08/94 DONTE v. CHARLENE T.

March 8, 1994


Appeal from the Circuit Court of Cook County. The Honorable Harry B. Aron, Judge Presiding.

DiVito, Scariano, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

The question this case presents is whether, when appointing a guardian with the power to consent to adoption, the circuit court has the authority to limit that power by requiring the guardian to provide pre-adoption sibling visitation and to consent to adoption only if the prospective adopting family agrees to reasonable post-adoption sibling visitation. For the reasons that follow, we hold that it does not.

The events leading to this appeal began in January 1985, when the Department of Children and Family Services (DCFS) was awarded custody of Donte, David, Dewon, Derrick, and Demarcus A., after petitioning for adjudication of wardship for all five boys. The two youngest, Demarcus and Dewon, were allowed to remain with their mother, Charlene T., under an order of protection; the other three were ordered temporarily into DCFS custody, but within a week were returned to their mother under an order of protection. Three months later, DCFS petitioned for and obtained custody of all five children because the mother had not attended substance abuse programs and, in violation of the order of protection, had used excessive corporal punishment. Some time prior to August 1986, the boys were placed in three foster homes: Derrick and David in one, Donte in another, and Demarcus and Dewon in a third. On November 17, 1987, after a hearing, the circuit court entered Dispositional orders giving DCFS custody and guardianship of the five boys, with their parents' agreement. Few visits among the children or between the children and either parent occurred in the subsequent year, despite repeated court orders that DCFS arrange such visits and a DCFS caseworker's ready acknowledgment, at one of the interim hearings, that it "had been remiss in keeping with a regular visiting schedule with all the minors."

Just before Christmas 1988, the boys filed a supplemental petition asking the court to order DCFS to provide, at a minimum, monthly visits among them, and to allow regular telephone contact. At the hearing the next month, a caseworker from another agency, which had responsibility for two of the children, testified that attempts had been made to bring the children together, but that all but one such attempt had been cancelled due to illness or similar events. The court refused to enter the order requested, and it suggested that the children file another supplemental petition in the future if no visits took place. Over objections by the attorneys for the mother and the children, the court also transferred the matter to the guardianship calendar, a less active call with no scheduled review.

About six months later, in June 1989, DCFS filed supplemental petitions for four of the children, requesting termination of the mother's parental rights and appointment of Gary T. Morgan, the DCFS Guardianship Administrator, as guardian with the right to consent to their adoption. The boys' father had died. In reply, the four boys filed cross-petitions, asking the court to find that it was in their best interests to have semi-monthly visits with one another and with Donte, and to order Morgan to provide such visits while he was their guardian. The cross-petitions also asked that if the court granted the DCFS petitions, it simultaneously order Morgan to refrain from consenting to adoption by anyone unwilling or unable to make such arrangements. DCFS did not file a petition to terminate the mother's parental rights as to Donte, but he too filed a supplemental petition, asking for visitation.

The hearing on the DCFS petitions began on July 17, 1990. Generally, the testimony was that sibling visits were in the boys' best interests. For example, Dennis McGuire, a social worker and therapist, testified for the minors as an expert on the role of sibling relationships in a child's development. In his opinion, arrangements should have been made for the children to see each other at least twice a month, and any pending adoption process would be unaffected, or helped if anything, by such visitation, even though traditionally it was recommended that a child "never look back" to their biological families after adoption. McGuire had not met the children prior to the day of his testimony, but he had read the DCFS treatment plan and a two- or three-year-old social summary to familiarize himself with the children's circumstances. Likewise, Donald Edgren, the DCFS caseworker for the children for a number of years, testified that in his opinion, "it is in the best interest of children generally to have visitation with each other" when siblings cannot be placed with the same family. He testified that various DCFS service plans had included a task to arrange sibling visits to maintain family contact, but that few visits had occurred. He too mentioned difficulty in arranging visits with the parents. In addition, Sidney Goldberg, the DCFS caseworker for Donte since May 1989, testified that he believed that it was in Donte's best interest to have sibling visitation with his brothers even if the others were adopted or he was adopted, saying, "to me[,] it is as basic as eating lunch." In the opinion of Jeanna Ogwude, the Volunteers of America caseworker for David and Derrick since December 1989, it was in the best interest of the two boys that Morgan be appointed guardian with power to consent to adoption, for their foster parents wanted to adopt them; she also believed that it would be in the boys' best interest to visit with their other brothers regularly, even after adoption. She testified that the sibling visits since she became the boys' caseworker had not caused any significant behavior problems, and that the visits had not affected in any way their attachment to their foster parents.

The only testimony presenting the opposite view was that of Roberta Molonar, since January 1989 the DCFS caseworker for the family, especially Dewon, Donte, and Demarcus. She had been an adoption worker for over nine years, averaging 25 to 28 adoptions per year. In her opinion, finding Dewon and Demarcus an adoptive home would be "nil" unless the mother's parental rights were terminated and Morgan were appointed guardian with right to consent to adoption, for the boys' aunt and uncle, with whom they were living, would not adopt them and did not want to provide a foster home for an extended period. She agreed that "there was nothing to suggest that sibling visits among the boys was not in their best interest," including Donte, and she believed that sibling visitation prior to adoption would be "important," and "very nice" after adoption, assuming the mother's parental rights were terminated. Nevertheless, she characterized mandatory post-adoption sibling visits as "just another shackle" around a "prospective adopting family," commenting that finding them an adoptive home would be almost impossible if there were an order for post-adoption visitation.

Some of the minors also testified, as did their mother. Derrick, Donte, and Demarcus all testified to the effect that they wanted to see each other every day if possible. Charlene T., the mother, testified that the oldest three children had been removed from her custody for six months sometime prior to 1985 because the father had become "very violent, abusive," but that they had been returned home after a trial. In 1985, she decided to turn the children over to DCFS voluntarily. She testified that she occasionally had unsupervised visits with the children, which DCFS did not know about, and that she had difficulty arranging the formal visits. When she attempted to telephone her children, Donte's foster mother would not allow it but the other two foster mothers did.

At the close of the testimony, the assistant State's Attorney argued that as proof of the mother's unfitness, she had made no reasonable efforts to regain custody of the children in that she had not fulfilled even the simplest requirement of the service plans, that is, visitation. He also argued that it was in the four boys' best interest to have Morgan appointed guardian with right to consent to adoption because David and Derrick were in a good, pre-adoptive home, and the placement opportunities for Dewon and Demarcus would be severely hampered otherwise.

The children asked that the appointment be denied because Morgan did not deserve the "unfettered right" to consent to adoption after DCFS's history of failure in providing contact so that they could develop and maintain their relationships with each other. As an alternative, they suggested that the court limit Morgan's right to consent to adoption so that only adoptive parents who were willing and able to facilitate sibling visitation would be approved. The boys also asked that Morgan be required to provide visitation for them prior to any adoption, in light of the general agreement among the witnesses that sibling visits were in the boys' best interest, the desire of the boys themselves, and the willingness of the foster parents of David and Derrick and of Dewon and Demarcus. Without such an order, they warned, no visitation would occur, as indicated by DCFS's history of not arranging visitation until threatened with a court order in December 1988.

DCFS opposed the boys' cross-petitions to limit Morgan's right to consent, albeit agreeing that the boys should see each other, on the ground that Illinois law is "that courts do not have the authority to allow post-adoption sibling visitation" because the adoption statute was written when the public policy was to sever completely all biological relationships when adoption occurs, as in the child's best interest.

The mother argued that the State had not met the burden of proof on unfitness, claiming that DCFS had failed to help the family reunite. She asserted that it was illogical to ask for termination of her parental rights with regard to only four of the five boys, reasoning that if she was a fit parent for Donte, she must be fit for the others too. She alternatively contended that stability was in the children's best interest, that sibling visits would provide that continuity, and that it was not in the children's best interest to ...

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