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In re C.N.

May 24, 2001


The opinion of the court was delivered by: Justice Fitzgerald

Docket No. 87519-Agenda 7-September 2000.

Following an evidentiary hearing in the circuit court of Kane County, the circuit court found that respondents, Diane N. and Mark N., were unfit parents under section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 1996)), because they failed to make "reasonable progress" toward the return of their daughter, C.N., within 12 months of her adjudication as a neglected minor. The circuit court subsequently terminated respondents' parental rights to C.N., and respondents appealed. The appellate court reversed, holding that the circuit court's finding of unfitness was against the manifest weight of the evidence. Nos. 2-98-0565, 2-98-0674 cons. (unpublished order under Supreme Court Rule 23). We reverse the judgment of the appellate court, and affirm the judgment of the circuit court terminating respondents' parental rights to C.N.


On October 17, 1994, the Department of Children and Family Services (DCFS) took protective custody of S.S. (born August 2, 1990) and her half-sister, C.N. (born May 15, 1994). *fn1 Two days later, the State filed a petition for adjudication of wardship as to both minors, naming Diane N. as the minors' mother, and Diane's reported husband, Marin N., as C.N.'s father. The State alleged that Diane and Marin physically abused S.S., or allowed such abuse to occur, and that C.N. was at risk. According to the State's petition, S.S. was hospitalized with two skull fractures, a laceration to the forehead, and bruises to the head, chest, and buttocks. The State further alleged that C.N. and S.S. were neglected in that their environment was injurious to their welfare.

On January 3, 1995, Diane admitted that the minors' environment was injurious to their welfare. As to Diane only, the court adjudged S.S. and C.N. neglected. The court found that it was in the minors' best interests that they be made wards of the court, and appointed DCFS guardian. S.S. and C.N. were placed in foster care, but S.S. was later placed in a residential treatment center. The court ordered Diane to cooperate with DCFS and its contracting agencies; comply with all aspects of the client service plan; submit to a substance abuse evaluation and follow all recommendations; undergo a psychological evaluation and follow all treatment recommendations; and complete parenting classes.

On January 31, 1995, the State filed a "petition II" for adjudication. The State alleged that Marin committed aggravated criminal sexual assault against S.S.; that C.N. showed signs of sexual abuse; and that Diane failed to protect S.S. and C.N. from sexual abuse.

During the course of the circuit court proceedings, the parties learned that Diane was not divorced from her first husband at the time she married Marin. Accordingly, Diane's first husband, whom she married in 1990, would have been the presumptive father of C.N. Amid claims by respondents, however, that Mark, Marin's brother, is C.N.'s father, on August 8, 1995, the circuit court ordered paternity testing. The November 1995 test results confirmed that Mark is C.N.'s father. On May 6, 1996, the State filed an amended petition for adjudication, and an amended petition II for adjudication, naming Marin as C.N.'s uncle and Mark as C.N.'s father. Shortly thereafter, Mark filed a petition seeking a determination of paternity as to C.N. The court ruled on that petition on May 21, 1996, finding Mark to be C.N.'s father.

On June 5, 1996, Diane and Mark stipulated that S.S. and C.N. were sexually abused by Marin, that S.S. was physically abused by Marin, and that Diane caused or allowed such physical abuse. Accordingly, the circuit court adjudged C.N. a neglected and abused minor as to both respondents. For a second time, the circuit court found that it was in the best interest of the minors that they be made wards of the court, and again placed guardianship in DCFS.

The circuit court ordered Diane to cooperate with DCFS, its agents, and the client service plan; begin counseling at Sinnissippi Centers and follow all treatment recommendations; continue to participate in in-home parent education classes until she consistently exhibited appropriate parenting and nurturing behavior; and cooperate with the psychological evaluation and sexual offenders assessment. The circuit court ordered Mark to continue participating in in-home parenting classes until he consistently exhibited appropriate parenting and nurturing behavior; participate in a psychological evaluation; participate in a drug and alcohol assessment; participate in a comprehensive social assessment; and cooperate with DCFS, its agents, and the client service plan. Although the circuit court also ordered Mark to participate in counseling for sexual offenders, that portion of the order was stricken and Mark was, instead, ordered to participate in counseling for the family of sexual offenders.

Sixteen months later, on October 7, 1997, the State filed a petition to terminate respondents' parental rights to C.N. The State alleged, in relevant part, that respondents were unfit under section 1(D)(m) of the Adoption Act because they failed "to make reasonable progress towards the return of the child within 12 months after an adjudication of neglected minor, abused minor or dependent minor." An evidentiary hearing on the State's petition commenced on February 3, 1998. The State called several witnesses.

Peggy Everling

DCFS investigator Peggy Everling testified that she responded to a hot line call on July 11, 1994, informing her that S.S. and C.N. were at risk, and that S.S. had been injured by Marin, the putative father. At the time of the hot line call, Diane, Marin, and the two minors were living together at the Maple Park Motel. S.S. told Everling that she had been lying in bed with Marin, became sick, and vomited in the bed. Marin became upset and "whacked" her on the head. When Diane returned home, S.S. told her what had happened, and Diane confronted Marin. Marin grabbed a steel pipe and, in the course of trying to hit Diane, hit S.S. in the mouth, chipping her tooth. Diane disputed S.S.'s account of how the injuries occurred, but told Everling that she was aware that Marin had a temper and that he had previously hit S.S.

Mark told Everling that he, too, had seen Marin hit S.S. on prior occasions. Mark also witnessed the July 1994 incident, and in response had called the police. Mark signed the complaint against Marin in connection with that incident because Diane refused to do so. Although Mark appeared concerned about the children and was cooperative, Everling was concerned that Mark had failed to intervene when Marin became abusive. Diane was minimally cooperative and appeared more concerned about Marin than the children. Diane did not want to keep Marin away from S.S. and C.N. during the DCFS investigation, and posted Marin's bail following his arrest.

Lynn Appelt

DCFS investigator Lynn Appelt responded to another hot line call in October 1994, informing DCFS of certain injuries to S.S. Appelt testified that in a telephone conversation on October 17, 1994, Diane advised Appelt that Marin was no longer living with her, that Marin was staying with a friend whose name and address she could not remember, and that she wanted nothing to do with him. Diane told Appelt that C.N. was with a baby-sitter, and that she wanted to give guardianship of C.N. to her brother.

Investigation by DCFS revealed that C.N. was with Marin at the baby- sitter's home. Appelt determined that the baby-sitter was not an appropriate caregiver in light of the baby-sitter's prior contact with DCFS due to an injurious home environment. Appelt eventually located Diane, Marin, and C.N. at the Oregon, Illinois, home of Diane's father, where Appelt took C.N. into protective custody. Appelt later learned that the brother with whom Diane wished to place C.N. had sexually abused Diane, making placement with him inappropriate.

Appelt also testified that she spoke to S.S. at her foster home in early November 1994, and observed an injury to the child's forehead, with 20 to 25 stitches. S.S. told Appelt that she had been hit on her feet with a stick, that she had been hit with a "Mr. Big Stick," and that her mother had slapped her in the face. S.S. also stated that Marin would leave her and C.N. at home alone, and that she had told her mother this was happening. Diane denied slapping S.S., and told Appelt that Marin did not abuse S.S. Diane admitted that S.S. had been hit and sexually abused, but implicated a former husband and other men with whom Diane had been involved.

Appelt testified that she took C.N. into protective custody because of the current injuries to S.S., the past history of abuse, Diane's lack of cooperation with DCFS, Diane's lack of judgment in suggesting placement for the minors with her brother, Diane's inability to protect her children, and Diane's inability to appreciate the dangerous situations in which she placed her children. Mark had not been implicated in the abuse and was not a subject of Appelt's investigation at that time.

Rich Maier

Rich Maier, a DCFS child welfare specialist, testified that DCFS received another hot line call during November 1994, indicating that S.S. and C.N. had been sexually abused.

Maier drafted the initial client service plan that month, which was directed to Diane and Marin. Under the plan, Diane was to obtain a substance abuse evaluation and a psychological evaluation; participate in counseling and parenting classes; and obtain and maintain appropriate housing. The permanency goal of the initial service plan was "return home." In early February 1995, Maier rated Diane's progress toward this goal satisfactory. Maier testified that Diane had started counseling with Amy Unterborn at St. Charles Family Center; she had obtained a substance abuse evaluation; and she was either attending or about to begin parenting classes at the Four C's (Community Coordinated Child Care). Although the substance abuse evaluation revealed no alcohol or substance abuse by Diane, based on Diane's family history and Diane's own drinking pattern, the evaluator recommended alcohol education.

Maier also drafted the February 1995 service plan. By this time, Mark and Diane had advised Maier that Mark may be C.N.'s father. The February 1995 service plan, however, was directed only to Diane and Marin because Mark's paternity was not yet established. Under the plan, Diane was required to participate in counseling to examine her role in the removal of her children and to receive the recommended alcohol education. She was also required to participate in parenting classes and set up a stable housing situation. On his own accord, Mark accompanied Diane to all six parenting classes at the Four C's, successfully completing the program.

Tim Rezash

Tim Rezash, an intern at the Ben Gordon Community Mental Health Center, completed a psychological assessment of Diane in early 1995. Rezash testified that, normally, parents in Diane's situation blame themselves for the abuse of their children and ask themselves what they could have done differently. Diane did not exhibit this behavior. She did not feel responsible in any way for the abuse of her daughters and did not empathize with them. Rezash did not consider Diane a good candidate for insight-oriented therapy and, instead, recommended behavior and cognitive therapies. His prognosis for success was poor to guarded.

Amelia Apperson

Amelia Apperson, a DCFS child welfare specialist, was the primary case worker between March 1995 and September 1996. At the time she assumed responsibility for the case, Mark and Diane resided together.

In August 1995, Apperson evaluated Diane's progress with respect to the February 1995 service plan goal of "return home." Apperson rated Diane's progress unsatisfactory. Apperson testified that Diane was uncooperative and failed to complete tasks and objectives set forth in the client service plan. Diane failed to attend counseling on a regular basis, continued to deny any responsibility for the abuse of her children, and, notwithstanding her completion of a parenting class, failed to exhibit appropriate parenting skills during visits with C.N. Based on Apperson's own observations, and a recommendation from Amy Unterborn, Diane's counselor, Apperson suggested in-home parenting classes involving both Diane and Mark. Apperson explained to them the specific behaviors with which she was concerned. Although at this point paternity testing had not yet been completed, Mark told Apperson that he knew he was C.N.'s father. The August 1995 service plan was therefore directed to Diane, Marin, and Mark. In drafting the August 1995 service plan, Apperson took into account an assessment of C.N. which indicated that she was developmentally delayed by six months due to a prior lack of stimulation and nurturing. The plan specified that, during supervised visits, Diane spend more time interacting with C.N., rather than with the visit supervisor.

Apperson further testified regarding a September 8, 1995, visit by respondents with C.N. at the DCFS office. Apperson's supervisor terminated the visit after respondents became visibly angry in response to a parenting suggestion made by the visit supervisor. Diane raised her voice and hit a wall outside the visiting room. Mark commented that it was "bullshit" and a "Gestapo regime." Apperson testified that this visit was the first in a long line of visits which appeared to cause C.N. great stress. C.N. would cry, bite herself, pull her hair out, and bang her head.

During the period November 1995 to January 1996, Apperson felt that respondents had failed to make progress toward the goal of "return home." Although Diane consistently attended counseling sessions, the couple's progress in the in-home parenting classes was inconsistent. In addition, visits with C.N. were still going poorly.

In late February 1996, Apperson rated respondents' progress unsatisfactory. Apperson cited Diane's lack of cooperation with DCFS service providers, her failure to be present for all in-home appointments, her inconsistent attendance at counseling, her failure to address the past abuse, her failure to keep rent and utilities current, and her poor judgment in allowing various individuals to live with her and Mark. Apperson's written evaluation reflected many of the same concerns about Mark. Apperson also testified that respondents failed to complete in-home parenting classes. In the February 1996 service plan, Apperson changed the permanency goal from "return home" to "foster parent placement," but testified that the goal could be changed at any time, based on the cooperation and progress of the parents.

In March 1996, Apperson had discussions with Mark concerning his plan to obtain custody of C.N. Apperson was concerned about Mark's understanding of C.N.'s emotional health. Other than regaining custody, Mark had no plan to deal with C.N.'s emotional needs.

Apperson further testified that sometime during the period March 1996 through May 1996, Amy Unterborn discharged Diane from counseling. Diane's attendance was poor and her efforts in therapy were sporadic. Believing that the commute to Unterborn's office may have been a problem for Diane, Apperson referred Diane to the Sinnissippi Centers, an agency closer to Diane's home. Diane did not complete the initial assessment at Sinnissippi, explaining to Apperson that she would not discuss her personal life with a counselor.

Apperson was also concerned about the stability in respondents' present home because they continued to allow other persons to live with them. Diane reported that one of the women who lived with them had stolen from her, and that a cousin had taken one of respondents' vehicles to Arkansas without their permission. Mark also reported an incident in which he discovered one of the persons who was living with them going through their belongings.

Following the circuit court's determination that Mark is C.N.'s father, Apperson did not explore the possibility of returning C.N. to Mark because he continued to live with Diane. Apperson was also concerned about Mark's judgment and ability to care for C.N. Mark admitted that he had been involved in C.N.'s life before she had been placed in foster care. C.N., however, was developmentally delayed due to a lack of stimulation and nurturing. In addition, Mark continued to minimize the impact of the abuse on C.N. Mark felt that if he simply brought C.N. home and loved her, she would get better. Apperson explained that C.N. had special needs, requiring "serious therapy, serious structure, serious care."

In August 1996, Apperson evaluated respondents' progress under the February 1996 service plan. Apperson rated Diane's cooperation and completion of tasks unsatisfactory, citing Diane's unsuccessful discharge from counseling with Amy Unterborn; Diane's failure to complete the assessment at Sinnissippi Centers; and her failure to advise Apperson at one point that she was homeless. Apperson rated Mark's cooperation unsatisfactory, noting the adversarial role he took with her and his failure to sign certain releases, thus preventing referrals for counseling. Apperson also rated respondents' progress in demonstrating adequate parenting skills unsatisfactory. Apperson relied on her own observations, as well as reports from the visit supervisor and the in-home educator. Apperson testified that during the August 1996 administrative case review, as she discussed the reduced visitation schedule with respondents, they became belligerent and the reviewer asked them to leave.

Amy Unterborn

Amy Unterborn, a licensed social worker at Therapeutic Solutions, Inc., an affiliate of St. Charles Family Center, began counseling Diane individually in November 1994. Unterborn testified that the focus of the counseling was on parenting skills relative to establishing a safe environment, anger management, problem solving, and appropriate child development expectations.

From November 1994 to June 1995, Diane missed two appointments. During this time, Diane had difficulty processing issues involving the creation of a safe environment in the home and how her actions might impact safety and stability in the home. Diane also did not recognize that her children would suffer long-term consequences due to the abuse.

From June 1995 through July 1995, Diane missed one appointment. During this period, therapy continued to focus on the establishment of a safe environment for Diane's children, problem-solving skills, and appropriate child development expectations.

From July 1995 through October 1995, Unterborn had sessions with Diane and C.N. Unterborn testified that Diane expected C.N. to use logic and reason that a child of C.N.'s age would not possess. Diane expressed her lack of understanding of C.N.'s special needs, and admitted that she had exposed S.S. and C.N. to an inadequate environment. According to Unterborn, this understanding is the first step in taking responsibility and establishing new behaviors. During this period, Diane had difficulty expressing anger in appropriate ways; she did not internalize the concepts that were worked on in therapy; and did not demonstrate the skills necessary for a safe environment. Unterborn was also concerned about miscommunication Diane created, which frustrated the efforts of professionals to coordinate care for Diane and her children. Unterborn testified that Diane's prognosis was guarded.

From October 1995 through January 1996, Diane missed four appointments, one of which was an excused absence. During this period, Diane's life was chaotic with respect to employment and housing, and she made no progress toward stability. She was not responding constructively to daily stressors. Diane also made little progress in her ability to empathize with C.N. in that she failed to recognize the impact of the emotional distress stemming from the abuse. Diane did not demonstrate a mature relationship with Mark focused on child rearing. Diane disclosed that she had frequent transient house guests with whom she had verbal and physical altercations. In therapy, Diane focused on her anger at DCFS, rather than focusing on the skills she needed to develop. Diane's progress was minimal and the prognosis was guarded.

Between January 1996 and April 1996, Diane had one unexcused absence and three excused absences. Diane told Unterborn that she was confident that once her children were returned to her that they would then be able to get the care they needed. Unterborn testified, however, that Diane's home was not stable enough to handle the emotional disturbances that C.N. was exhibiting. Diane was not able, in therapy, to articulate possible ways of dealing with C.N.'s self-mutilating behavior or instances where C.N. acted out sexually. Diane did not indicate that she ...

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