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In re A.J.

May 27, 1998


The opinion of the court was delivered by: Justice Bowman

Appeal from the Circuit Court of Lake County.

No. 97--JA--55

Honorable David M. Hall, Judge, Presiding.

Respondent, R.V., appeals the judgment of the circuit court of Lake County finding him an unfit parent and terminating his parental rights to his minor daughter, A.J. Respondent contends that (1) the court's finding that respondent failed to maintain a reasonable degree of interest, concern, or responsibility for the minor's welfare was against the manifest weight of the evidence; (2) the trial court's finding that respondent failed to make reasonable progress toward the return of the minor was against the manifest weight of the evidence; (3) the court erred in admitting and considering hearsay; and (4) the court erred in finding that it was in the minor's best interest that respondent's parental rights be terminated.

A.J. was born on February 29, 1992, with cocaine in her system. The court adjudicated the minor neglected on May 7, 1992. Respondent acknowledged paternity of A.J. on December 10, 1992.

On February 20, 1997, the State filed a petition to terminate respondent's parental rights, alleging that respondent was an unfit parent. During a two-day bench trial, the State's only witness was Terri Cummings, a caseworker from Central Baptist Family Services (CBFS), who testified regarding the various client service plans developed for respondent.

Cummings testified that, because respondent had not acknowledged paternity, the first case plan involved only the minor's mother, T.J., who is not a party to this appeal. The first case plan specifically involving respondent was prepared in January 1993. It called for respondent to obtain adequate housing, obtain a mental health assessment, obtain a drug and alcohol evaluation and follow its recommendations, submit to random urine tests, complete parenting classes, provide proof of income sufficient to support himself and the minor, and cooperate with caseworkers from CBFS and the Department of Children and Family Services (DCFS).

When that plan was evaluated in July 1993, respondent received an overall unsatisfactory rating. However, he received satisfact-ory ratings with regard to five of the seven specific tasks outlined in the plan, including obtaining a drug and alcohol assessment and following the recommendations, completing parenting classes, and showing proof of income. However, respondent had not completed a home study to determine whether his housing situation was adequate and had not received a mental health assessment. Respondent's visitations were rated satisfactory. The report appears to contain a satisfactory rating for submitting to random urine screens. However, the remarks at the bottom of the page state that drug screening was canceled because respondent was unavailable.

The minor's mother received a satisfactory rating, although she had not been heard from since June 25, 1993, and had not returned to drug treatment. Cummings testified that she was not the caseworker assigned to the case at that time.

Cummings testified that she prepared a court report in October 1993. At that time, respondent was not working on the assigned tasks and had not provided a drug test. Respondent told Cummings that he did not return from work until 5 p.m., at which time the agency that was to perform the tests was closed. Cummings said that "there were not a lot of other options" for drug testing at that time. Cummings characterized respondent as uncooperative in providing urine screens between 1992 and mid-1996.

In another court report dated December 1993, Cummings stated that respondent had not been able to accomplish any of the assigned tasks. However, in the evaluation of the case plan on January 21, 1994, respondent's overall progress was rated satisfactory. Respondent was rated unsatisfactory for failing to submit to random urine screens, show proof of income, and obtain a psychological evaluation.

Respondent reported that he did not have an ongoing relationship with the minor's mother. At that time, T.J. had not been in contact with the caseworkers for more than a year. The goal of the service plan was the return of the child to respondent.

Despite his denials, respondent was referred to Al-Anon based on the belief that he had an ongoing relationship with T.J. According to Cummings, it was important for respondent to "address issues surrounding being in a relationship with a substance abuser."

Cummings prepared another court report on April 4, 1994. At that time, respondent had not been maintaining consistent contact with her. He had not obtained a psychological evaluation or been given a drug test. Cummings had asked respondent to call her on a day he was not working to see if a screen could be arranged for that day. Respondent did not call. Respondent did not provide proof of income or verify his attendance at Al-Anon meetings.

The minor was then living with a foster family. Respondent told Cummings that he saw A.J. every day, but the foster mother said this was not true. Respondent said that things between him and T.J. were "so so," but said that, if the child were returned to him, he would terminate his relationship with T.J.

On June 2, 1994, Cummings prepared another court report. By then, respondent had completed a parenting class but was not complying with random drug testing.

Cummings testified that respondent did have a drug screen on April 17, 1994, and that he tested positive for cocaine. Respondent objected on the basis of hearsay. The trial court stated that the evidence was inadmissible to prove the allegation in the State's petition that respondent was unfit by virtue of being a habitual drug user. The court further stated:

"The Court can weigh that evidence. It would not be treated as evidence that the drug screen was actually proven to be a positive drug screen or that it positively showed the presence of cannabis or cocaine. But to the extent that the workers testify as to the ACRs, the goals, and the work towards return home of the child, they may testify as to the information that they received and their Conclusions from that."

Over objection, Cummings testified that respondent had another positive drug test on May 9 and canceled another on May 18. At that time, the recommended permanency goal was to return the child to respondent. At a court hearing on June 9, 1994, the court found that the plan and goal had not been achieved and that DCFS had abused its discretion in setting the goal of returning the minor to her parents. The court further found that to return home was not in the minor's best interests and ordered DCFS to reconsider its permanency goal.

Cummings and DCFS caseworker Ann Wells conducted a case review on July 25, 1994. At that time, the goal was still to return the child home. Respondent's overall progress was rated satisfactory although he had failed to submit to random urine screens or attend Al-Anon meetings. The handwritten comments show that respondent obtained a psychological evaluation and provided CBFS with the report. He submitted to two drug screens while reporting that his work schedule hindered his ability to submit to more tests. Respondent completed a parenting class and attended one Al-Anon meeting, although the plan called for weekly attendance. The report concludes, "[Respondent] has been cooperative on most recommendations with the exception of urine screens and Al-Anon."

Respondent was given numerous tasks to perform for the ensuing six-month period, including continuing to submit to random urine drops and attend Al-Anon meetings. Apparently T.J. had resurfaced and respondent and T.J. were directed to "assess their relationship; if they decide to remain a couple[,] they will become involved in couples counseling."

During August 1994, respondent missed approximately three drug tests. Apparently, at a September 1994 court hearing, the Judge again requested that DCFS consider abating its plan to have the minor returned home and ordered the agency to seek "preadoptive placement" of the minor.

Another court hearing was set for November 10, 1994. Since the previous hearing, respondent had completed three drug screens. Over objection, Cummings stated that two came back negative and one was positive. Respondent missed another scheduled test on October 31. He later stated that he had gone home and gone right to sleep.

During this time, respondent maintained that he was not involved in a relationship with T.J. Over respondent's hearsay objection, Cummings was permitted to testify that respondent's mother had said that they were "seeing each other and talking on the phone."

When a case review was conducted on December 16, 1994, the goal had been changed to long-term foster care. The report states that at the September 15 hearing, "the Judge stated she didn't feel it was feasable [sic] to have a return home goal. The Department would like to continue working with [respondent] as a return home option but realizes he has his issues to work on."

Respondent was rated unsatisfactory on the tasks of assessing his relationship with the minor's mother and attending couples counseling. Typewritten remarks state that respondent denied hav-ing a relationship with T.J. and felt that Al-Anon and relationship counseling were unnecessary. However, "there have been conflicting ...

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