Appeal from Circuit Court of McLean County No. 98JA5 Honorable James E. Souk, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
On September 3, 1998, the trial court adjudicated R.E. (born August 28, 1997), the minor child of respondent, Albert Edwards, and Heidi Peden neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 1998)). On December 17, 1998, the court adjudicated R.E. a ward of the court and appointed the Department of Children and Family Services (DCFS) as her guardian with the power to place her. DCFS initially left R.E. in the custody of Albert and Heidi, later removed and then returned her to their care in the summer of 1999, and then finally removed her on September 24, 1999.
The State filed a petition to terminate both Albert's and Heidi's parental rights on October 8, 1999, alleging both parents were unfit because they (1) failed to make reasonable efforts to correct the conditions that were the basis for removing R.E.; (2) failed to make reasonable progress toward R.E.'s return within nine months of the adjudication of neglect; and (3) failed to protect the child from conditions within her environment injurious to her welfare. 750 ILCS 50/1(D)(m), (D)(g) (West 1998). On March 7, 2000, the trial court found both Albert and Heidi unfit on all grounds alleged and granted the State's petition.
Albert appeals arguing, first, the trial court erred in finding he failed to make reasonable progress or efforts within nine months of the adjudication of neglect because these provisions do not apply as he retained custody of R.E. during the applicable period. Second, Albert contends the trial court's finding he failed to protect R.E. from conditions within her environment that were injurious to her was against the manifest weight of the evidence. We affirm.
The case began when the State alleged R.E. was residing in an environment injurious to her welfare due to unresolved issues of domestic violence that placed R.E. at risk of harm. In September 1998, both parents stipulated to the allegations of the petition at the adjudicatory hearing and the trial court adjudged R.E. neglected. In December 1998, the court conducted a dispositional hearing, made R.E. its ward and appointed DCFS as her guardian. The court entered a dispositional order setting the permanency goal as "remain home," placing both parents under an order of protective supervision, and directing that the client service plan require Heidi to address domestic violence issues.
On June 4, 1999, the trial court found the permanency goal of "remain home" was still the proper permanency goal. The court also found Albert unfit within the meaning of section 2-27(1) of the Act. 705 ILCS 405/2-27(1) (West 1998).
The trial court removed R.E. from Heidi's care on June 15, 1999, reportedly because of unauthorized contact between R.E. and Albert. On July 23, 1999 the court entered an agreed order of protective supervision returning R.E. to Heidi, forbidding contact between R.E. and Albert except during supervised visits and requiring Heidi to undergo a domestic violence assessment and cooperate with and complete any recommended treatment.
The trial court held another permanency hearing on September 24, 1999. The court found the goal of "remain home" had not been achieved and adopted the goal of "substitute care pending court determination." The trial court found both Albert and Heidi unfit within the meaning of section 2-27(1) of the Act (705 ILCS 405/2-27(1) (West Supp. 1999)) and placed R.E. into non-relative foster care. Heidi appealed that order and this court affirmed. In re R.E., No. 4-99-1004 (June 30, 2000) (unpublished order under Supreme Court Rule 23).
In October 1999, the State filed its petition to terminate Albert's parental rights, and in March 2000, the trial court conducted a hearing on the petition. The trial court terminated both Albert and Heidi's parental rights at that time.
Albert and Heidi had a history of domestic violence requiring police intervention and resulting in two convictions for Albert for domestic battery prior to R.E.'s birth. Domestic strife occurred when Albert was intoxicated. Another incident in November 1997 precipitated DCFS involvement. According to a witness to the incident, Albert and Heidi engaged in an argument and Albert swung at Heidi while R.E. was in her arms. Albert either struck or brushed R.E. R.E. was frightened and cried and Heidi took R.E. to the emergency room on the advice of the responding police officer. No injuries to R.E. were found.
Other violence between the parties was denied except for once when Albert punched Heidi, causing injuries requiring stitches, although DCFS investigators were aware of another incident where Albert had pulled Heidi's hair. Heidi minimized the violence in their relationship and made excuses.
The conditions that caused the removal of R.E. from Albert's parental authority were the unaddressed issues of violence between himself and Heidi that caused an injurious environment for R.E. At the termination hearing in March 2000, approximately 17 months after the adjudication of neglect and 15 months after the dispositional order completing the adjudication, concerns about Albert's domestic abuse and anger management were still largely unaddressed despite his completion of a domestic violence counseling treatment program. It appeared Albert would require additional long-term counseling to deal with this issue. Albert also had a problem with illicit drug abuse that he denied or minimized and he did not seek treatment until after the petition to terminate parental rights had been filed.
Albert contends, as a matter of law, the finding of unfitness based on his failure to make either reasonable progress or efforts toward the return of R.E. was improper. Albert does not contest the trial court's factual finding there had been insufficient efforts or progress on his part. Instead, he argues the provisions of section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 1998)) providing a parent may be found unfit and his or her parental rights terminated for failure to make reasonable efforts or ...