Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, No. 90 J 99. Honorable Fred S. Carr, Judge, Presiding.
Released for Publication April 2, 1996.
Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. McCUSKEY, Justice, Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the court: Lytton and McCUSKEY, J.j., concur.
The opinion of the court was delivered by: Slater
The Honorable Justice SLATER delivered the opinion of the court:
The State filed a petition to terminate the parental rights of Kimberly N. (respondent) to her daughter, L.N. L.N.'s father was defaulted and his rights were terminated. Following a series of evidentiary hearings, the court terminated the parental rights of respondent. Respondent now appeals, raising the following issues for our consideration: (1) whether the court improperly relied upon a non-statutory factor in terminating her parental rights; (2) whether the court applied the proper standard of proof; (3) whether the actions of the Department of Children and Family Services (DCFS) excuse her failure to comply with portions of her service plans; and (4) whether the evidence showed by clear and convincing evidence that her parental rights should be terminated. We reverse.
The State filed a two-count petition on January 25, 1990, alleging that L.N. was an abused and neglected minor. Count I alleged that L.N. was abused in that respondent allowed Jeff Humek to commit an act of sexual conduct with L.N. Count II alleged that L.N. was neglected in that her environment was injurious to her welfare. Count I was dismissed, and L.N. was adjudicated a neglected minor pursuant to Count II and placed in the custody of DCFS on June 19, 1990.
On June 14, 1993, the State filed a petition to terminate parental rights. Two statutory grounds for termination were alleged in the petition: (1) "failure to protect the child from conditions within his environment injurious to the child's welfare," (750 ILCS 50/1D(g) (West 1992)) and (2) "failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under the Juvenile Court Act or the Juvenile Court Act of 1987." (750 ILCS 50/1D(m) (West 1992).) Following an evidentiary hearing on March 23, 1994, the court entered an order finding that respondent had made reasonable progress towards the goal of reunification with the child, and had made reasonable efforts to correct the conditions that were the basis for the child's removal. However, the court kept the matter under advisement and gave respondent 60 days to sever her relationships with her father, James N., and her live-in companion, Gene Franklin. The court found that these relationships prevented the respondent from providing the minor with an environment free from the threat of abuse.
The parties appeared at a supplemental hearing on January 4, 1995, at which time the court heard evidence on the issue of whether respondent had complied with its previous order. After taking the matter under advisement, the court concluded that respondent had not satisfied the conditions set forth by the court in its previous order. The court entered an order terminating respondent's parental rights on March 22, 1995.
We agree with the respondent that the State did not prove her unfit by clear and convincing evidence, and therefore we address only that issue. Parental rights of a nonconsenting parent may only be terminated upon an adjudication of unfitness, and a finding of unfitness must be supported by clear and convincing evidence. ( In re S.G. (1991), 216 Ill. App. 3d 668, 575 N.E.2d 932, 159 Ill. Dec. 125.) "Termination of parental rights is as drastic and permanent an action as can be taken." ( Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 947, 391 N.E.2d 222, 223, 29 Ill. Dec. 63.) A reviewing court will not substitute its judgment for that of the trial court when the trial court's decision is clearly supported by the record, but reversal is required when the trial court's decision is contrary to the manifest weight of the evidence. ( In re M.W. (1990), 199 Ill. App. 3d 1050, 557 N.E.2d 959, 146 Ill. Dec. 17.) After careful review of the record, we do not believe the State proved its case by clear and convincing evidence.
Initially, we believe it was improper for the State to allege as one of the grounds for termination that respondent failed to protect the child from an environment injurious to her welfare. L.N. had been in foster care for several years, and thus respondent could not have failed to protect the child from an injurious environment. (See In re Massey (1976), 35 Ill. App. 3d 518, 521-22, 341 N.E.2d 405, 408 ("Since the child has been in a foster home for the past 6 years, the parents could not have failed to protect it during this time").) While certainly respondent's alleged failure to protect the child could form the basis for the initial removal of the child from the home, we do not believe that such an allegation is relevant in a subsequent termination proceeding when the child has been in foster care.
Thus, the only pertinent allegations in the State's petition were those that respondent failed to make reasonable efforts to correct the conditions that were the basis for the removal of the child, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglect. These are separate and independent bases for a finding of unfitness. ( In Re S.J. (1992), 233 Ill. App. 3d 88, 598 N.E.2d 456, 174 Ill. Dec. 259.) Whether a parent has made reasonable efforts to correct the conditions involves a subjective judgment based upon the amount of effort that is reasonable for a particular person, while a parent's reasonable progress toward the return of the children involves an objective judgment based upon progress measured from the conditions in existence when custody was taken from the parent and requires demonstrable movement toward the goal of reunification. ( S.G., 216 Ill. App. 3d 668, 575 N.E.2d 932, 159 Ill. Dec. 125.) We agree with the finding of the trial judge that respondent made both reasonable efforts to correct the original problems and reasonable progress towards the return of the child, and accordingly conclude that the trial court should not have found respondent to be unfit.
The record clearly reveals that, not only did respondent make reasonable efforts to correct the conditions that were the basis for the removal of the child, she in fact did correct those conditions. L.N. was originally removed from respondent's care because of sexual conduct perpetrated on L.N. by respondent's husband. Earlier, three members of respondent's family also abused L.N. L.N. reported this abuse to respondent in the spring of 1989. Respondent had L.N. examined by a doctor, and then reported the incidents to DCFS. Two of the three abusers were prosecuted for the offense. In January 1990, respondent found out that her husband, Jeff Humek, was abusing L.N. Respondent immediately began divorce proceedings, and her divorce became final in April 1990. It is difficult to conceive what else respondent could have done besides having the offenders prosecuted and severing her ties with them. Thus, we conclude that the State failed to show by clear and convincing evidence that respondent failed to make reasonable efforts to correct the conditions that were the basis for L.N.'s removal.
Next, we turn our attention to whether respondent made reasonable progress toward the return of the child within 12 months of the adjudication of neglect. As previously stated, this involves an objective judgment based upon progress measured from the conditions in existence when custody was taken and requires demonstrable movement toward the goal of reunification. ( S.G., 216 Ill. App. 3d 668, 575 N.E.2d 932, 159 Ill. Dec. 125.) The benchmark for measuring such progress is the situation which triggered the initial removal of the child. M.W., 199 Ill. App. 3d 1050, 557 N.E.2d 959, 146 Ill. Dec. 17.
After respondent's divorce was final, she moved in with her father. DCFS recommended that she find her own place to live. She then moved into Tiko Jordan's apartments in Bradley for approximately six months. However, DCFS encouraged her to move out because Jordan had molested children and sexually abused women. She then moved into a three bedroom house at 579 West Station Street, but DCFS told her that this was an improper place to be living because it was across the street from respondent's father, a known perpetrator. Respondent's father had sexually abused respondent as a child, but he had not been accused of abusing L.N. Respondent testified that while living on Station Street, she took steps to keep L.N. shielded from her family members. After ...