The opinion of the court was delivered by: Justice Barth
Appeal from the Circuit Court of Cook County.
Honorable Carol Pearce McCarthy, Judge Presiding.
Respondents, Ralph and Gloria M., are the natural parents of C.M., born May 8, 1997, B.M., born January 18, 1989, and E.M., born October 15, 1991. On May 3, 1999, Gloria's parental rights were terminated as to all three children on the basis of findings that she failed to maintain a reasonable degree of interest in her children's welfare; failed to protect her children from an injurious environment; failed to make reasonable progress toward the return of her children; and was unable to discharge her parental responsibilities due to mental impairment. Ralph's parental rights were also terminated on May 3, 1999, on the same grounds as Gloria, save that no finding of unfitness based on mental impairment was entered in Ralph's case. The trial court further found that it was in the best interests of the three minors that the parental rights of respondents be terminated, and a guardian was appointed for the minors with the right to consent to their adoption.
On appeal, respondents ask that both of the above orders be vacated, and present for our consideration the following issues: (1) whether the trial court properly allowed Allison Greenwald, a case manager, to testify telephonically where respondents objected and the State proffered no explanation for Greenwald's absence from the courtroom; (2) whether the State proved by clear and convincing evidence that respondents were unfit; and (3) whether it was in the best interests of the children to terminate respondents' parental rights.
The children first came to the attention of the Illinois Department of Children and Family Services (DCFS) on May 1, 1993, after a citizen witnessed Gloria dragging B.M. onto a bus. An investigation was begun, as a result of which all three children were removed from the custody of respondents from May 17, 1993, to April 6, 1995, on allegations of inadequate food and injurious environment. One year later, in April 1996, DCFS again became involved, as a result of a phone call from the counselor of B.M.'s school.
On or about April 18, 1996, B.M.'s speech pathologist at Hammond Elementary School took her to Carmen Martinez, the school's counselor, and showed Martinez a bruise on B.M.'s forehead. When asked about the origins of the bruise, B.M. explained that Ralph had grabbed her by the hair and dragged her across the floor, after she received a "D" on her report card. B.M. stated that, after she was dragged, Ralph made her stand in the corner, on one leg at a time, with her hands raised above her head for over an hour. B.M. also stated that she hated Ralph because he did "nasty" things to her, specifically, her made her "sit on his stick," which she identified as his penis. B.M. claimed that Ralph did this to her siblings as well. In addition, B.M. told Martinez that Ralph took baths with her and sometimes slept with her. Martinez called DCFS.
On or about April 19, 1996, Ralph admitted to Chicago police officer Jerry Simandel that he had disciplined B.M. and caused her bruises. Protective custody was then taken of the three children.
On April 19, 1996, the State filed petitions to adjudicate C.M., B.M., and E.M. wards of the court. The petitions alleged sexual abuse and excessive corporal punishment of B.M., and substantial physical risk of physical injury to C.M. and E.M. based on the treatment of B.M..
On May 1, 1996, a temporary custody hearing was held at which both parties stipulated that, if called to testify, DCFS worker James Johnson would state that on April 25, 1996, B.M. was observed in school with a large bruise on her forehead. It was also stipulated that Johnson would state that on April 25, 1996, a protective plan was implemented with Gloria, requiring that she not allow Ralph to come into contact with the children. However, on April 26, 1996, Gloria violated that plan by allowing Ralph back into the home and allowing him to have contact with the children. Finally, it was stipulated that Johnson would state that B.M.'s complaints were also heard by medical personnel at Cook County Hospital and that probable cause and immediate necessity existed.
The trial court then awarded temporary custody to DCFS; ordered that all visits between the children and respondents be supervised; and provided that the children did not have to visit with respondents if they chose not to. All three children were then taken to Mount Sinai Hospital for a five-day comprehensive evaluation before being placed into foster care. On October 1, 1996, the trial court adjudicated all three children wards of the court and granted DCFS guardianship. On January 16, 1997, a permanency hearing was held and the hearing officer determined that the goal for all three children should be changed from return home to adoption. Ralph filed an objection the permanency goal, but on March 18, 1997, this court found the change in goal appropriate.
On May 3, 1999, the unfitness hearings were held.
The first to testify at the hearings was Ralph. Ralph could not recall the dates of his children's birthdays. He conceded that he had been convicted in July 1992 of armed violence and burglary, and in January 1996 of aggravated driving under the influence. Ralph admitted to having engaged in domestic disputes with Gloria, and admitted that Gloria checked herself into the hospital following one of those disputes in May 1996. Although he was not arrested for the May 1996 dispute, he was arrested for a prior dispute, during which Gloria's finger was broken. Ralph recalled that the children were present in the home during some of those disputes.
Ralph stated that, at the time of the hearing, he was living with Gloria. He admitted that they continue to argue. Ralph claimed to have been under the influence of alcohol and/or drugs during the times he and Gloria fought.
Next to testify was Gloria , although she was initially very reluctant to do so. She expressed to the trial court her fear of having a stroke if called, as a result of the pressure she believed would be placed on her while she was on the witness stand. She threatened to sue the trial court judge for "attempted murder," for forcing her to testify, and was heard to mutter "bitch" under her breath as she approached the stand. Finally, she warned the trial court,"I can't promise you there will be no attitude."
Gloria remembered having received a letter from B.M., which stated "I hate you Gloria and Ralf. I don't want to do anything with you." The letter was dated October 10, 1996, and was signed "B.M.," except the child's last name was crossed out, and an arrow drawn toward it next to which it was written "I don't want that name anymore." Gloria insisted the letter was a forgery.
Gloria admitted to having checked herself into St. Anthony's Hospital in May 1996 following a fight with her husband which commenced when she woke up with "a fist in [her] face." Gloria stated that she and Ralph were still living together. She explained that Ralph was home "90 percent" of the time, and during the rest of the time he would run in and out, sometimes staying away for weeks at a time. Gloria stated that Ralph was still drinking at the time of the hearing.
Next was Dr. John Murray, a licensed psychologist and assistant director of psychology at the Juvenile Court Forensic Clinical Services. Both parties stipulated to his status as an expert in his field. Dr. Murray testified that he evaluated Gloria on June 20, 1998. *fn1 The evaluation consisted of Dr. Murray's review of documents, and a 3½ hour interview. Pursuant to his evaluation, Dr. Murray diagnosed Gloria with borderline personality disorder. He explained that this sort of disorder is by definition chronic and long-standing, with its origins in childhood. He also explained that people who have borderline personality disorder "basically decompensate and become psychotic and/or paranoid" under periods of stress.
In Dr. Murray's opinion, Gloria's borderline personality disorder prevents her from discharging her parental responsibilities, and this inability extends to the future, "limiting the likelihood that she would respond to treatment in any reasonable time frame."
Next to testify was Allison Greenwald. The State called her as a "telephonic" witness, to which attorneys for both respondents immediately objected. The State produced no explanation for Greenwald's absence from the courtroom. The trial court overruled the objections and allowed Greenwald to testify telephonically, stating:
"I think the only thing that it actually causes is not rigorous cross-examination. It just causes me not to be able to entirely evaluate the demeanor of the witness as the witness testifies. And for that, I will allow it for weight. And that will also necessarily impact the weight of the testimony; but having said that, I think there should be full and fair cross-examination. And I will of course allow that."
Greenwald then testified that she was the case manager assigned to manage this case between December 30, 1996, and June 1997. Her duties included supervising the visits between respondents and C.M., which initially took place on a weekly basis and then, after the goal in this case was changed to adoption, on a monthly basis. According to Greenwald, neither Gloria nor Ralph completed the tasks assigned to them in their service plans, which were implemented November 11, 1996, and evaluated on June 9, 1997. Both received an evaluation of "unsatisfactory." Greenwald explained that Gloria failed to attend weekly counseling and did not seek legal help in escaping her abusive relationship with Ralph. Greenwald also testified that, during Gloria's supervised visits with C.M., "there was not much parental guidance" and that Gloria seemed to relate to C.M. on his level and often "lost her temper in front of him." Greenwald testified, however, that Gloria completed parenting classes in accordance with the service plan.
She stated that Ralph failed to take responsibility for or even to recognize the reasons why this case was brought to the attention of DCFS. Although Ralph attended some Alcoholics Anonymous and Narcotics Anonymous meetings, he did not do so with the frequency outlined in the service plan. Ralph too completed parenting classes.
Next to testify was Carmen Martinez, the school counselor who spoke to B.M. in May 1996 and subsequently contacted DCFS, as summarized above.
Next was Gwendolyn Coleman, an employee of Youth Outreach Services, and the caseworker assigned to this case from July 1997 to October 1998. During the time Coleman was assigned to this case, neither Gloria nor Ralph was participating in services. Coleman stated that since the goal in this case was changed to adoption, such services were optional, although referrals were readily available.
Coleman evaluated respondents' October 1997 and April 1998 service plans. She gave "unsatisfactory" evaluations to both Gloria and Ralph on both plans. Coleman explained that this was due to the fact that neither parent was engaged in any of the services recommended to them in the service plans, nor did they express any interest in being referred for those services.
Coleman also supervised Gloria and Ralph's monthly visits with C.M. As to the visits between Gloria and C.M., Coleman observed inappropriate displays of affection by Gloria toward C.M., including a tendency on Gloria's part to kiss C.M. frequently on the mouth.
During a visit in December 1997, C.M. told Gloria that his favorite basketball player was Michael Jordan. Gloria became visibly upset and asked C.M., "[C]an't you find a white basketball player who you like?"
During a visit in January 1998, C.M. was very excited because he had just gotten a new haircut and was anxious to show it to Gloria. Gloria immediately disapproved of the haircut, and told C.M. that it was in the style of "gangbanging spics." Later that visit, C.M. presented Gloria with a school picture of himself, along with a letter in which he wrote that he was happy and that she (Gloria) didn't have to worry about him. Gloria became upset and threatened to kill C.M.'s foster ...