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In re J.H.

April 07, 1999

IN THE INTEREST OF J.H., K.H., AND C.W., ALLEGED TO BE ABUSED AND NEGLECTED MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
DALE MELLINGER, RESPONDENT-APPELLANT



No. 96JA49

The opinion of the court was delivered by: Justice Garman

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Appeal from Circuit Court of McLean County

Honorable James E. Souk, Judge Presiding

On June 2, 1998, the circuit court of McLean County entered a permanency review order pursuant to section 2-28 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 1996 & Supp. 1997)), changing the permanency goal for minors J.H. and K.H. from "return home" to "substitute care pending court determination." Respondent father, Dale Mellinger, appeals, arguing the evidence did not support a finding the Department of Children and Family Services (DCFS) provided services to him as required by the Act. Therefore, he asserts, the circuit court abused its discretion by finding such services had been provided and changing the permanency goal. We affirm.

BACKGROUND

Respondent is the father of two children by respondent mother, Linda H. They are a son, J.H. (born August 14, 1991), and a daughter, K.H. (born August 27, 1992). Respondent and Linda never married. Linda had another child, C.W., by Grady W. Linda and Grady are not parties to this appeal.

On August 8, 1996, the State filed a petition for adjudication of wardship, alleging the three children were abused and neglected. The alleged abuse was an act of aggravated criminal sexual assault against K.H. committed by Grady. 705 ILCS 405/2-3(2)(iii) (West 1996). The allegation of neglect was based on Linda's failure to protect the children. 705 ILCS 405/2-3(1)(b) (West 1996). After a hearing, the children were placed in shelter care.

The goal stated in the initial return home. The plan was revised on February 2, 1997. The goal remained the return of the children to Linda's home, but Mellinger's progress was rated unsatisfactory overall. The basis for this rating was that he had not been able to maintain stable housing long enough for the caseworker to implement any services. The caseworker noted Mellinger had expressed a desire to visit the children on a regular basis, but he was prevented from doing so because of an order of protection prohibiting any contact between him and Linda, which also prohibited him from having contact with the children.

After a number of delays, an adjudicatory hearing was held on June 5, 1997. Linda stipulated to the allegation of neglect. The circuit court found the abuse by Grady proved by clear and convincing evidence, based on his having pleaded guilty to two counts of aggravated criminal sexual assault to K.H.

An updated service plan was filed on August 29, 1997. Mellinger's progress was again rated unsatisfactory because his housing situation remained unstable and he had not completed a drug and alcohol evaluation or domestic violence counseling. The goal remained to return the children to Linda's custody. Mellinger indicated at that time he would seek custody if Linda were to lose custody of the two children.

At the Dispositional hearing on September 16, 1997, the circuit court entered an order stating that the permanency goal was the return of the children to Linda's home. The circuit court noted that the petition for adjudication of wardship contained no allegations directed at Mellinger; thus, no finding of unfitness was made with regard to him. Nevertheless, the circuit court placed Mellinger under an order of protective supervision and ordered him to cooperate with DCFS, undergo a substance abuse evaluation, submit to drug screening tests, and obtain an assessment and counseling related to domestic violence.

On March 17, 1998, a newly revised service plan was filed with the court. Mellinger's progress was again rated unsatisfactory. He had not complied with any of the plan objectives except visitation with the children. It was also noted that he visited inconsistently and had arrived "high" on marijuana at several visits. On November 25, 1997, he was charged with possession of drug paraphernalia after the police responded to a domestic violence call to Linda's home. The plan noted that the Baby Fold, the private agency assigned by DCFS to provide services to the parties in this case, had referred Mellinger to substance abuse, domestic violence, and sexual abuse programs, but he had not utilized any of these services. The goal remained "return home," but the agency referred the matter for internal legal screening.

At the permanency review hearing on June 2, 1998, the parties were informed that on June 1, 1998, the State filed a petition to terminate the parental rights of Mellinger, Linda, and Grady. 705 ILCS 405/2-29 (West 1996). The petition alleged, inter alia, that Mellinger failed to make (1) reasonable efforts to correct the conditions that led to the removal of the children and (2) reasonable progress toward their return. 750 ILCS 50/1(D)(m) (West 1996).

The sole witness at the permanency review hearing was Linda Polk, a child welfare specialist at the Baby Fold, who prepared the Dispositional report filed on June 1, 1998. Polk was not questioned by the State about Mellinger. On cross-examination by counsel for Mellinger, she agreed that the statement in the Dispositional report, in which she said Mellinger had not completed any service plan objective other than visitation, was inaccurate. Mellinger completed the recommended psychological evaluation in May 1997. Polk also acknowledged Mellinger completed parenting classes while in prison, but she stated these are not recognized by DCFS as acceptable classes. She explained this fact to Mellinger on several occasions. At the Conclusion of cross-examination, the following exchange took place:

Q: "And did you ever inform Mr. Mellinger that it was no longer necessary for him to work on the Client Service Plan?" A: "I told him that if he needed to continue working for himself on the plan because he needed to have the skills at the time of the legal screening, that we took the case for legal screening. But, yes." Q: "You told him to stop working on his Client Service Plan?" A: "I told him it would not make a difference."

Following Polk's testimony, the circuit court asked for recommendations. The State replied:

"The goal of return home has not been achieved with any of these parents. All the services that were provided were appropriate. They were not successful. Reasonable efforts to achieve those goals were made; however, it doesn't appear that the agency adequately provided for the services, and, therefore, reasonable efforts were not made to facilitate the goal."

It is unclear which portion of the State's remarks referred to efforts by DCFS and the Baby Fold and which portion to efforts by any or all of the respondent parents. The State concluded with a recommendation that the goal be changed to "substitute care pending court determination."

Counsel for Linda made no argument. Counsel for Grady "concur[red]" with the State's comment that reasonable efforts had not been made to assist his client in attaining his assigned goals.Counsel for Mellinger did not object to continued guardianship in DCFS, but argued the permanency goal should not be changed and the agency abused its discretion by advising Mellinger to stop working on his client service plan.

The guardian ad litem (GAL) did not make a recommendation. He did, however, state:

"I can say that I'm not really happy with the progress of any parent, but if the agency has not provided services, I don't know if we can go to a change of goal to substitute care if they haven't been provided adequate services. Usually, we have a change of goal to substitute care when services have been provided but the people haven't taken full advantage of it."

The court initially declined to enter a permanency order, but was persuaded by counsel for Mellinger that it was necessary to do so. From ...


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