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People v. Fleming

April 13, 2001


Appeal from Circuit Court of McLean County No. 97JA90 Honorable James E. Souk, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

In December 1999, the State filed a petition to terminate the parental rights of respondent, Nancy Fleming, regarding her minor children, E.K. (born September 16, 1987), T.K. (born November 30, 1991), and D.F. (born February 13, 1997). The State also filed a petition to terminate the parental rights of respondent's husband, Christopher Fleming, as to his daughter D.F. (T.K. and E.K. are respondent's children from a prior marriage.) Following a May 2000 hearing on the State's May 2000 amended petition, the trial court found respondent unfit. The court later determined that it would be in the children's best interest to terminate respondent's parental rights. It likewise terminated Christopher's parental rights and this court addressed his appeal separately. In re D.F., 317 Ill. App. 3d 461, 740 N.E.2d 60 (2000).

Respondent appeals, arguing that (1) the trial court's finding of parental unfitness was against the manifest weight of the evidence; (2) the court erred by denying respondent's motion to substitute judge for cause; and (3) the court's decision to terminate her parental rights was not in the children's best interest. We reverse in part, vacate in part, and remand with directions.


In December 1997, the State filed a petition for the adjudication of wardship of E.K., T.K., and D.F. Paragraph 5(A) of that petition alleged that the minor children were neglected, pursuant to section 2-3(1)(a) of the Juvenile Court Act of 1987 (Juvenile Court Act), in that they were not receiving the proper or necessary support or remedial care necessary for their well-being (705 ILCS 405/2-3(1)(a) (West 1996)). Specifically, the State's petition alleged the following:

"[T]he family residence was found by the Illinois Department of Children and Family Services [(DCFS)] [i]nvestigator to be filthy. The floors were covered with cat feces, cat litter, and clutter to such a degree that the floors were impassible. The bedroom doors were unable to be opened because of the clutter stacked against the doors and wall, and old food was found along the walls in the kitchen area."

In April 1998, respondent admitted and stipulated to the allegations in paragraph 5(A) of the petition and the State dismissed other allegations. The trial court then adjudicated E.K., T.K., and D.F. neglected.

The trial court conducted dispositional hearings on May 27, 1998, and August 12, 1998. Following the May 1998 hearing, the court appointed DCFS temporary custodian of all three children. The court granted E.K. and T.K.'s father, John K., who then resided in Wisconsin, extended visitation with E.K. and T.K. At the close of the August 1998 hearing, the court entered a dispositional order that adjudicated respondent's children wards of the court and appointed DCFS as their guardian with the power to place them. 705 ILCS 405/2-27(1) (West 1998). The court also removed D.F. from respondent's home and placed her in a foster home. E.K. and T.K. were placed with John.

On September 17, 1999, the trial court entered a permanency order setting the goal, as to E.K. and T.K., as remaining home with their father; and as to D.F., as substitute care pending court determination on the petition to terminate parental rights.

In December 1999, the State filed a petition to terminate respondent's parental rights pursuant to several sections of the Adoption Act (Act) (750 ILCS 50/1 through 24 (West 1998)). In its May 2000 amended petition, the State alleged that respondent was unfit because (1) she substantially neglected the children in a continuous or repeated fashion (750 ILCS 50/1(D)(d) (West Supp. 1999)); (2) other neglect of, or misconduct toward, the children occurred (750 ILCS 50/1(D)(h) (West Supp. 1999)); (3) she had an inability to discharge her parental responsibilities (750 ILCS 50/1(D)(p) (West Supp. 1999)); (4) she failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children (750 ILCS 50/1(D)(m)(i) (West Supp. 1999)); (5) she failed to make reasonable progress toward the return of the children within nine months following the adjudication of neglect (750 ILCS 50/1(D)(m)(ii) (West Supp. 1999)); and (6) she failed to make reasonable progress toward the return of the children during any nine-month period after the end of the initial nine-month period following the adjudication of neglect (750 ILCS 50/1(D)(m)(iii) (West Supp. 1999)).

A summary of the pertinent evidence presented at the May 2000 hearing on the State's petition to terminate respondent's parental rights follows.

Betty Schapmire, a DCFS investigator, testified that she became involved with respondent's case in November 1997 when she received a hot-line report alleging environmental neglect. She later visited respondent's home and observed that it was cluttered throughout, although the bedrooms and kitchen were the most severely cluttered areas. The bedrooms were covered with clothing, and the door to the master bedroom would not open completely because clothes were piled behind the door. Very little floor space was available in the children's bedroom. Dishes were stacked in the kitchen, and Schapmire could not tell if they were clean or dirty. She observed food particles on the floor. A cat litter box located in the entryway to the bathroom and bedroom area of the house was filled to the top with animal feces. She also saw animal feces on the floor near the box. Upon entering the residence, she smelled animals and cat feces.

After her visit, Schapmire made an indicated report and referred the family to Family First services. She did not think the household situation warranted immediate removal of the children but that the family could, with the help of referral services, deal with the situation. She was concerned that D.F.'s size and weight were low for a child D.F.'s age and initiated an investigation regarding nonorganic failure-to-thrive syndrome. As a result of that investigation, a doctor diagnosed D.F. as suffering from nonorganic failure to thrive, and Schapmire made an indicated report to that effect.

Theresa Kelly, a DCFS caseworker, testified that she became involved with respondent's case in November or December 1997. When Family First became involved, T.K. was thin, and her hair was dull. Family First personnel were concerned about the children's dirty clothes, body odor, and lack of hygiene. All of the children needed dental care. E.K. was combative and had become "parentified," meaning that she was attempting to protect the family as a parent would and performed parental functions, such as greeting the social services personnel at the door. E.K. also was failing in school.

In April 1998, respondent's progress on her client service plan was rated "satisfactory." However, Family First personnel reported that the family "just minimally made" the minimal parenting standards and expressed grave concerns about the family remaining stable. The Family First staff believed that DCFS needed to stay involved.

Kelly testified generally that respondent was dishonest with social service providers and that the family moved frequently and displayed little stability. After Family First became involved, D.F. gradually began to gain weight.

Kelly also testified regarding respondent's ratings at an August 1998 case review based on the May 1998 client service plan goals. Respondent's work with Services for Parent Infant Child Education (SPICE) regarding D.F.'s care was satisfactory. She was rated unsatisfactory on the goals of (1) maintaining a stable environment and (2) understanding child and family development. She did not attend counseling on a regular basis and did not adhere to all of the trial court's orders.

In April 1999, Family First reported that it had successfully addressed D.F.'s failure to thrive and the home environment met minimal parenting standards.

Dr. Marty Traver, a clinical psychologist, testified that she evaluated respondent for DCFS in November 1998 and December 1999. At the November 1998 evaluation, she concluded that respondent "failed to maintain stability in her housing, employment, and relationships; that she failed to meet the minimal expectation for hygienic conditions in the household, and appeared to have neglected her children's medical well-being through the dental care issue." She also concluded that respondent did not understand the concerns about her parenting.

Following the December 1999 evaluation, respondent still did not understand why D.F. had been removed from her custody. Traver believed that respondent had the psychological and intellectual capacity to meet minimal parenting standards but she had not done so because of her continuing denial about the issues. She concluded that respondent's prognosis was poor based on her failure to acknowledge her past deficits as a parent and the amount of time remaining for her to remedy deficiencies.

Holly Hardin, a clinical psychologist for Chestnut Health Systems, counseled respondent and Christopher from February 1999 to August 1999. She testified that during that time, respondent's progress on minimum parenting standards was unsatisfactory. Respondent had reached no successful resolution of the issues and had not progressed to the level needed for "true change." Hardin cited respondent's unwillingness to change and her failure to do homework assignments.

Shannon Perkins testified that she was the court- appointed special advocate assigned to respondent's case from April 1999 to May 2000. Respondent and Christopher changed employers several times during that year, and caseworkers found inconsistencies between respondent's explanations for job changes and the explanations provided by her various employers. In January 2000, Perkins concluded that although respondent and Christopher tried to comply with the client service plan, when "things got too much for them, they quit and put the blame on somebody else." They therefore did not succeed.

Respondent testified that she had been married to John from 1985 to 1993. She and John were awarded joint custody of E.K. and T.K., and she was granted physical custody. Respondent and John had no contact between 1993 and July 1997, but John could have reached respondent by contacting her mother. She denied that she intentionally kept the children from John. She moved seven times between 1993 and 1997 and changed her name twice (due to remarriage). She kept in touch with John's parents.

Karen K., John's wife, testified that between 1994 and 1997, when John and the children were not in contact, John had called respondent's mother on more than one occasion, and she told him that she did not know where respondent was. Finally, in 1997, Karen obtained a phone number for respondent by having one of her friends call respondent's mother and pretend to be looking for respondent for a high school reunion.

Following the May 2000 fitness hearing, the trial court found that the State had proved respondent unfit based on the first, second, fourth, and sixth grounds alleged. The court conducted a dispositional hearing later that day and found that it was in the children's best interest to terminate respondent's parental rights. This appeal followed.


Because termination of parental rights is an extraordinarily serious matter, the State must prove parental unfitness by clear and convincing evidence. In re M.F., 304 Ill. App. 3d 236, 238, 710 N.E.2d 519, 522 (1999). A finding of unfitness will not be disturbed on appeal unless it is against the manifest weight of the evidence (In re A.P., 277 Ill. App. 3d 592, 598, 660 N.E.2d 1006, 1010 (1996)), and great deference is afforded the trial court, given its far superior opportunity to view and evaluate the witnesses and their testimony (In re D.L.W., 226 Ill. App. 3d 805, 811, 589 N.E.2d 970, 974 (1992)). This court will uphold a finding of unfitness if the record contains sufficient evidence on any one statutory ground, even if the evidence is not sufficient to support the other grounds alleged. M.F., 304 Ill. App. 3d at 238, 710 N.E.2d at 522.

A. Unfitness Pursuant to Section 1(D)(d) of the Act

Respondent first argues that the State failed to prove by clear and convincing evidence that she was unfit pursuant to section 1(D)(d) of the Act, which provides that a parent can be found unfit based on evidence of "[s]ubstantial neglect of the child if continuous or repeated." 750 ILCS 50/1(D)(d) (West Supp. 1999). In its oral ruling, the trial court indicated that it based its section 1(D)(d) finding on evidence of the following four matters: (1) environmental neglect; (2) D.F.'s failure-to-thrive diagnosis; (3) respondent's withholding T.K. and E.K. from John between 1993 and 1997; and (4) respondent's inducing T.K. to lie about a bruise on her thigh and accuse Karen of abuse. For the following reasons, we disagree with the court's finding that these incidents constitute "substantial neglect" that is "continuous or repeated" so as to satisfy the requirements of section 1(D)(d) of the Act. We therefore reverse the court's finding of unfitness on this ground.

Under section 1(D)(d) of the Act, the State must prove that (1) the neglect was "substantial," and (2) it was either "continuous or repeated." In other words, the State must prove more than that the neglect was either "substantial" or "continuous or ...

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