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04/13/95 M.K. AND K.K. v. JANIE M. KINKAID

April 13, 1995


Appeal from Circuit Court of Champaign County. No. 94J16. Honorable John R. DeLaMar, Judge Presiding.

Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

The circuit court of Champaign County found Janie Kinkaid's minor children, K.K. (born March 4, 1981) and M.K. (born July 19, 1983), to be abused and neglected. The trial court placed custody and guardianship of the children with their father, Dennis Kinkaid, who resides with his current wife in Iowa. Janie now appeals the adjudication of abuse and neglect and placement of custody with Dennis Kinkaid. We affirm in part, reverse in part, and remand with directions.

On January 28, 1994, the State filed a two-count complaint alleging the children were neglected and abused. Count I alleged neglect by reason of an injurious environment. Count II alleged abuse by Janie for creating a substantial risk of physical injury to the children by other than accidental means and for acts which would likely cause impairment of the emotional health or bodily functions of the children.

A shelter-care hearing was held on January 28, 1994. The court found there was probable cause to believe the children were neglected and abused, that it was a matter of immediate and urgent necessity that a temporary custodian be appointed, and that DCFS made reasonable efforts to prevent or eliminate the need for removal of the children from their home. Dennis was appointed temporary custodian of the children.

An adjudicatory hearing was held on April 4, 1994. Francis Austin, a child-protection investigator with the Department of Children and Family Services (DCFS), related the following. Kevin McDuffie was Janie's paramour. In early January 1994, Austin took protective custody of McDuffie's four children, based upon a report that he had physically abused one of his children. McDuffie's children were living with him, Janie, and Janie's children. Austin had a meeting with Janie on January 7, 1994. He informed her that K.K. and M.K. were in a risky situation and it would be a good idea if they did not have any contact with McDuffie. Janie indicated she would take some action, but she did not believe McDuffie had abused his children. He never told Janie or McDuffie that it was permissible for McDuffie to move back in with Janie.

On cross-examination, Austin stated that McDuffie had four prior involvements with DCFS. He explained to Janie that if she allowed McDuffie to be around her children, they would be taken into protective custody. Austin interviewed K.K., who stated the alleged incident of McDuffie abusing his son never happened. K.K. was not in the room when it allegedly occurred, but she said she would have heard the abuse if it had occurred. M.K. told Austin he was in the room at first and then left. According to M.K., McDuffie came in and yelled at his sons, but M.K. did not see him hit any of them. M.K. told Austin that McDuffie never hit anyone in the house.

Sandra Daniel testified to the following. She had interviewed M.K., K.K., and Janie on January 27, 1994, the day before the shelter-care hearing. According to Janie, the children went to the home of McDuffie's mother on January 7, 1994, and returned on January 10, 1994. McDuffie moved out from January 10 to January 13, 1994. McDuffie told Janie that his caseworker, Marilyn Walker, said it was okay for him to move back in. Janie denied that McDuffie abused his children. She had never seen him do so, and she did not see any risk to her children. K.K. and M.K. told Daniel that McDuffie was residing with the family. M.K. stated McDuffie was engaged to Janie. The children stayed at the home of McDuffie's mother for a few days, and then moved back home. K.K. stated that McDuffie moved in with the family a few days later. Both children said neither they nor McDuffie's children had ever been abused by him. They also stated McDuffie had a bad temper, became frustrated, and tended to lose control of his temper. Dennis reported to Daniel that neither child had ever mentioned being abused.

Marilyn Walker related the following. She had a phone conversation with Janie about McDuffie on January 20 or 21, 1994. Janie wanted to know if McDuffie could reside with her and her children. Walker told her DCFS was not legally responsible for her children. Walker made her aware of the risk factors; namely, if McDuffie shared a residence with her, she risked losing K.K. and M.K. based upon his actions with his sons. Walker did not give permission for McDuffie to reside with them again.

On cross-examination, Walker reported telling Janie that if McDuffie resided with K.K. and M.K., they were in danger of being physically abused; if he had abused his own children, there was nothing to stop him from abusing K.K. and M.K. Janie indicated she did not believe McDuffie abused his children. She did not have a safety plan if McDuffie resided with them. Walker did not tell Janie that DCFS would take custody of K.K. and M.K. if McDuffie resided with them.

Janie Dawson, Janie Kinkaid's mother, testified to the following on behalf of Janie. She lives in Rock Falls, Illinois. She supervised three visits between Janie and the children, and McDuffie was present at two of those visits. He relates well to the children. They like him very much and are not frightened by him. Dawson had visited Janie and the children on three prior occasions. McDuffie's children were present on those occasions. Dawson saw no physical abuse and had no concerns that it had occurred. Janie indicated to Dawson in March 1994 that she did not believe McDuffie had abused his children.

The guardian ad litem (GAL) called Marilyn Walker as a witness. Walker stated Oscar Gipson allowed Dawson to supervise two visits on February 18 and March 6, 1994, because of the distances involved. Walker and Gipson were aware that McDuffie would be present at the visits. McDuffie was allowed visitation with the children because he and the children had indicated they had a relationship. DCFS was working toward a reunification of the children with both Janie and McDuffie.

The trial court rendered its order based upon the foregoing evidence. The court noted an adjudicatory order dated March 8, 1994, finding McDuffie's children to be neglected and abused. The order found that McDuffie creates a substantial risk of physical injury to his children which means, the court noted, that he is a continuing risk to his children. Since he was a continuing risk to his own children, the court found him to be a continuing risk to K.K. and M.K. The court found Janie's decisions suspect, because she allowed McDuffie to reside with her and the children when he was a risk to the children. Specifically, the court found K.K. and M.K. to be neglected because they have an environment injurious to their welfare when they reside with Janie. The court also found K.K. and M.K. to be abused, because Janie allows McDuffie to reside with them and creates a serious risk of physical injury to them, by other than accidental means, likely to cause impairment of emotional health or bodily functions.

At the dispositional hearing, the court considered the home and background report and addendum thereto (background report). Oral corrections were made to the report. The GAL noted that K.K. and M.K. were not always happy living with Dennis. Janie indicated that McDuffie moved out of her residence several days after the April 4, 1994, adjudication. She also indicated she thought the problem could be resolved and that she was working hard to achieve a resolution.

The GAL recommended that Janie have unsupervised visitation with the children and that McDuffie have no contact with the children unless supervised by DCFS or a responsible person. The GAL noted the children were anxious to return home to their mother. They like McDuffie very much and want to have a relationship with him. The GAL disagreed with the background-report recommendation that Dennis be given guardianship of the children and recommended that DCFS have guardianship of the children for two reasons. First, DCFS would be able to pay for counseling for K.K. Second, DCFS could ensure that K.K. received the counseling.

The State's Attorney recommended that DCFS be given guardianship of the children so that DCFS could monitor the case and because the children ultimately wished to be reunited with their mother. The State had no objection to limited, unsupervised visitation by Janie, or to supervised visitation by McDuffie if it were monitored by DCFS or someone other than Janie.

Janie agreed with the recommendation of the GAL. Since she wanted her children back in time for them to begin school in August, she asked the court for either (1) a bifurcated order that would allow discretion for extended, unsupervised visitation before the next review hearing, or (2) a shorter review period.

Dennis asked the court to adopt the recommendations in the background report. These recommendations included: (1) Dennis to retain custody of K.K. and M.K.; (2) Janie's visitation to remain supervised; and (3) Dennis to cooperate with DCFS regarding the children's medical, educational, emotional, and social needs. Dennis recommended that Janie be given supervised visitation until she received counseling, and then it could be determined whether she should be allowed unsupervised visitation. Dennis did not think McDuffie should have any visitation with the children since he is not related to them.

The court made its decision and discussed its reasoning as follows. It was a juvenile court, not a dissolution court. Also, there were over 400 active cases, and over 1,000 children in foster placement. The court's function ends when the children are placed with a biological parent who is adequately caring for them. Furthermore, there is no legal basis to terminate a fit parent's guardianship and custody of his or her children and place guardianship and custody with a third party, such as DCFS or Janie. The court's responsibility was to determine the children's best interests today, not six months later. The function of a juvenile court is not to pick between two parents, but to place the children in a permanent, safe environment. The court found the children to be abused and neglected. Janie was found to be unable, for reasons other than financial circumstances alone, to care, protect, train, and discipline the children. It was determined that reasonable and appropriate services had been unavailing in removing the circumstances leading to those findings. ...

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