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In re R.B.

June 24, 1998

IN RE R.B., S.B., AND M.B., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. SANDRA B., RESPONDENT-APPELLANT).


The opinion of the court was delivered by: Justice McLAREN delivered the opinion of the court:

Appeal from the Circuit Court of Kane County.

No. 94--J--77

Honorable Thomas E. Mueller, Judge, Presiding.

Respondent, Sandra B. (Sandra), appeals from the trial court's termination of her parental rights to her children, R.B., S.B., and M.B. We reverse.

The State filed two petitions for adjudication regarding the B. children in 1994, alleging that Sandra and her husband Ronald neglected the children by (1) failing to provide necessary and proper care and support for the children by failing to keep an adequate supply of food in the house and failing to keep current on two of the children's immunizations; and (2) creating an environment injurious to the children's welfare, in that both Sandra and Ronald were substance abusers. The children were taken into custody by the Department of Children and Family Services (DCFS) and placed into foster homes. The petitions were proved, and the children were adjudicated neglected and made wards of the court in August 1994. As a result, Sandra and Ronald were ordered to (1) submit to a substance abuse evaluation and follow all recommendations for treatment; (2) submit to psychological testing as arranged by DCFS and follow all recommendations for counseling; (3) submit to random urine drops as arranged by DCFS; and (4) establish a stable source of income and assure that the children's physical needs were adequately met.

On May 28, 1996, the State filed a petition to terminate Sandra's and Ronald's parental rights. The petition alleged that Sandra and Ronald were unfit to be parents because they (1) failed to maintain a reasonable degree of interest as to the children's welfare; (2) failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children or to make reasonable progress toward the return of the children within 12 months of the adjudication of neglect; and (3) evinced the intent to forego their parental rights. A hearing was held beginning on January 23, 1997. At the end of the State's case, the State moved to withdraw its allegation that Sandra evinced an intent to forego her parental rights and moved that a count be added alleging that Sandra failed to protect her children from an injurious environment. The court granted both motions but also granted Sandra's motions for directed finding as to the newly added count as well as to the count alleging that she had failed to maintain a reasonable degree of interest in the children's welfare. Sandra then presented her evidence.

On June 24, 1997, the court entered an order finding Ronald to be unfit. The court reserved ruling on Sandra. However, on July 7, 1997, the court found Sandra unfit as to paragraph 7.B. of the petition, which alleged that Sandra failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children or to make reasonable progress toward the return of the children within 12 months of the adjudication of neglect. Approximately one month later, the court found that it was in the best interests of the children to terminate the parental rights of Sandra and Ronald. Sandra's appeal followed.

Sandra now contends that the court's finding that she was unfit to be a parent was not supported by the evidence. The parental rights of a non-consenting parent may only be terminated upon an adjudication of unfitness which must be supported by clear and convincing evidence. In re S.G., 216 Ill. App. 3d 668, 669 (1991). A trial court's findings as to unfitness are to be given great deference and will only be overturned on appeal if they are against the manifest weight of the evidence. S.G., 216 Ill. App. 3d at 669. Our review of the evidence in this case leads us to believe that the trial court's finding of unfitness is against the manifest weight of the evidence.

The court found Sandra unfit based on the allegations that she failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children or to make reasonable progress toward the return of the children within 12 months of the adjudication of neglect. See 750 ILCS 50/1 (D)(m) (West 1996). The court noted that Sandra had completed some, but not all, of her client-service plan tasks and that she sometimes did not demonstrate much interest when therapist Colleen Connelly visited her at home. However, the court stated that it did not have to base its decision on those grounds because of the opinion in the case of In re K.S., 203 Ill. App. 3d 586 (1990). The court found that, while Sandra no longer abused drugs, Ronald still had a substance abuse problem. Therefore, the condition that led to the removal of the children, i.e., substance abuser in the children's home, had not been corrected "and there has been no progress made" by Sandra to correct it. At the best interests hearing, the court further clarified its basis for finding Sandra unfit:

"But the basis of the finding of unfitness was that Sandra [B.] refused to make a choice for her children and against her husband. She sat on the stand interestingly today once again defending his absence at visitation because they were short at work and he had to be at work and it just again is -- is yet another illustration of this woman's commitment to her husband at the expense of her children. So the -- the prospect of them going home to this one bedroom home with a substance abuser is not a very bright prospect."

The court's reliance on K.S. was misplaced, and its decision based upon K.S. was against the manifest weight of the evidence.

In K.S., a three-count petition was filed alleging that Leslie Smith neglected her three children. No allegations were made against the father, Walter Smith, who was in the Department of Corrections. Two counts of neglect, including the allegation that Leslie created an environment injurious to the children's welfare, were proved. At the disposition hearing, the court told the Smiths:

"[M]y concern here for Mr. and Mrs. Smith is that Mr. Smith won't allow his own rather unrealistic view of his marriage and Mrs. Smith's use and abuse of controlled substances, to cost him his children. If things aren't corrected and corrected very quickly, Mr. Smith's going to end up in my judgment, without a wife and without his children. ***

I am *** absolutely convinced that Mrs. Smith has serious on-going drug problems and drug dependency that is in serious need of attention. *** And, the volume of evidence that I heard at the adjudicatory hearing, all indicated someone who is having a terrible struggle with drugs. *** The first ray of hope I would see here would be a genuine admission by Mrs. Smith she's got a drug problem. Without that step, I see no ...


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