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In re D.F.

September 19, 2002

IN RE D.F. ET AL., MINORS
(THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
NANCY F., APPELLEE).



The opinion of the court was delivered by: Justice Garman

Docket No. 91556-Agenda 6-March 2002.

In December 1999, the State filed a petition to terminate respondent mother's parental rights, pursuant to the Adoption Act (Act) (750 ILCS 50/1 et seq. (West 1998)). The petition, as amended in May 2000, alleged six separate grounds for a finding of unfitness: (1) substantial neglect of the children that was continuous or repeated (750 ILCS 50/1(D)(d) (West Supp. 1999)); (2) other neglect of, or misconduct toward the children (750 ILCS 50/1(D)(h) (West Supp. 1999)); (3) inability to discharge parental responsibilities (750 ILCS 50/1(D)(p) (West Supp. 1999)); (4) failure 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) failure 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) failure 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)). Following a fitness hearing in May 2000, the trial court found respondent unfit under the first, second, fourth, and sixth grounds alleged. A dispositional hearing was held and the trial court found it to be in the children's best interest to terminate respondent's parental rights. She appealed.

The appellate court reversed in part, vacated in part, and remanded the matter to the trial court for further proceedings. Specifically, the appellate court held that the trial court's finding regarding the first ground, substantial neglect (750 ILCS 50/1(D)(d) (West Supp. 1999)), was against the manifest weight of the evidence. 321 Ill. App. 3d 211, 221. As to the second ground, "[o]ther neglect of, or misconduct toward" the children (750 ILCS 50/1(D)(h) (West Supp. 1999)), the appellate court reversed the trial court's ruling on the basis that section 1(D)(h) is unconstitutionally vague. 321 Ill. App. 3d at 223. Finally, as to the fourth and sixth grounds, the appellate court vacated the judgment of the trial court on the basis that the trial court considered evidence of events occurring outside the applicable time periods. 321 Ill. App. 3d at 223.

Respondent also argued on appeal that the trial court erred by denying her motion for substitution of judge for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West 1998)). The appellate court rejected this argument, finding that respondent's motion was premature because it was filed prior to the filing of the State's motion to terminate parental rights, which "initiated an entirely new proceeding." 321 Ill. App. 3d at 224. The appellate court further stated, in dicta, that if the motion had been identified as a motion to substitute judge as of right (735 ILCS 5/2-1001(a)(2) (West 1998)) and filed promptly after the filing of the termination petition, it would have been error for the trial court to deny it. 321 Ill. App. 3d at 224.

We granted the State's petition for leave to appeal pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315(a)).

BACKGROUND

Respondent is the mother of three daughters, E.K. (born September 16, 1987), T.K. (born November 30, 1991), and D.F. (born February 13, 1997). In December 1997, the State filed a petition for adjudication of wardship, alleging that the girls were neglected, pursuant to section 2-3(1) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1) (West 1996)). In April 1998, respondent admitted and stipulated to the State's allegations that the children were not receiving proper or necessary support or other care necessary for their well-being (705 ILCS 405/2-3(1)(a) (West 1996)), based on the unsanitary condition of the home. The State agreed to the dismissal of a separate allegation that D.F. was living in an environment injurious to her welfare (705 ILCS 405/2-3(1)(b) (West 1996)), based on the diagnosis of "nonorganic failure to thrive" syndrome. The girls were adjudicated neglected minors and made wards of the court. D.F. continued to reside with respondent and her husband, Chris F., while E.K. and T.K. spent an extended period of visitation in Wisconsin with their father, John K., and his wife, Karen K. Later, the Department of Children and Family Services (DCFS) was appointed guardian and placed the two older girls with their father. The baby, D.F., who is a half-sister to the older girls, was placed with foster parents.

On September 17, 1999, following a permanency hearing, the trial court entered a permanency order setting the goal for E.K. and T.K. as remaining in their father's home and for D.F., as substitute care pending a court determination on a petition to terminate parental rights. On that same date, respondent filed a motion for substitution of judge for cause, pursuant to section 2-1001(a) of the Code of Civil Procedure (735 ILCS 5/2-1001(a) (West 1998)). A hearing was held on November 1, 1999, before a different judge. Counsel for respondent argued that certain comments made by the original judge evidenced bias or prejudice against the respondent parents. The State argued that the judge's comments related to the credibility of witnesses, including the respondent parents, and were therefore appropriate. Counsel for DCFS pointed out that at the same hearing in which the judge made the disputed comments, he also made comments that were favorable to the respondent parents. The guardian ad litem opposed the motion. The motion for substitution of judge for cause was denied.

In December 1999, the State filed a petition to terminate respondent's parental rights as to all three children. (The petition also sought to terminate the parental rights of D.F.'s father. He is not a part of the present appeal. See In re D.F., 317 Ill. App. 3d 461 (2000).) After conducting the required hearings into the fitness of respondent and the best interests of the children, the trial court terminated her parental rights, placing full legal and physical custody of E.K. and T.K. with their father and also giving him the authority to consent to their adoption by their stepmother. The trial court also terminated respondent's rights with respect to D.F., appointing DCFS as her guardian, with the power to consent to adoption. Because the issues in this case relate only to the trial court's finding of unfitness, we limit our summary of the testimony to that adduced at the fitness portion of the termination proceedings.

Child protective investigator Mike Mucci testified that he visited respondent's home in September 1995 in response to a hot-line report of environmental neglect. The home was extremely cluttered, with the floors and flat surfaces such as chairs and countertops piled with clothing and other items. A litter box in the bathroom was overflowing with cat feces and there were cat feces throughout the house. Three cats and three kittens were present. The electricity had been turned off and the food in the refrigerator was spoiled. The house smelled strongly of spoiled food and cat urine and feces. E.K. was seven years old at the time and T.K. was four. As a result of this investigation, respondent was indicated for environmental neglect and services were offered. The household also included respondent's second husband, Robert Riley, whom she accused of domestic violence. Mucci subsequently learned that Riley was a sex offender and he informed respondent of this fact. The children were interviewed and given physical examinations. E.K. reported that she had seen Riley touch her sister in the vaginal area. Riley was indicated for risk of sexual harm and respondent was advised to allow her children to have no further contact with him.

Betty Schapmire, another DCFS investigator, received a hot-line report of environmental neglect in November 1997. She visited respondent's home and found respondent living with her new husband, Chris F.; their infant daughter, D.F.; her two daughters, E.K. and T.K.; and an adult roommate in a two bedroom apartment. The apartment was very cluttered, particularly in the bedrooms and the kitchen. A cat litter box in the hallway was "filled to the top" with feces and overflowing onto the floor. The odor of cat feces was "heavy" and noticeable when she entered the door to the apartment. The bedroom floors were covered with clothing to the point that the doors could not be fully opened. The floor in the girls' bedroom was not visible due to the clutter. Dishes were stacked on the kitchen counters and bits of food were scattered on the kitchen floor. Schapmire filed an indicated report on the basis of environmental neglect and referred the family for services.

Schapmire also noticed during the visit that D.F. was quite small for her age. When questioned, respondent and her husband were unconcerned about D.F.'s size or weight. Schapmire arranged for a medical examination and the doctor diagnosed D.F. with nonorganic failure to thrive syndrome. Schapmire made an indicated report to that effect as well. It was this second indicated report that precipitated the filing of a petition for wardship.

Schapmire stated that she checked DCFS records prior to her initial visit to respondent's apartment and was aware of the prior indicated reports for environmental neglect and risk of sexual abuse. However, when she asked respondent and her husband about prior involvement with DCFS, they denied any prior contacts. She also learned from the DCFS records that there had been a contact in 1994, prior to Mucci's investigation. Respondent was informed at that time that her then-husband, Riley, was a sex offender. Thus, she had already been aware of Riley's status as a sex offender when Mucci informed her of that fact following his 1995 investigation, but had continued to give Riley access to her daughters.

DCFS caseworker Theresa Kelly testified that she had been assigned to respondent's case since late 1997. Schapmire had referred this case to Family First for intensive services, first to deal with the cleanliness issue and later to address D.F.'s failure to thrive. One of Kelly's duties was to monitor the effectiveness of the services provided by Family First. Initially, T.K. was thin, her hair was dull, and she had poor hygiene and body odor. E.K. was combative and argumentative. She yelled and swore at the Family First workers. Kelly stated that E.K. had become "parentified," that is, the adults in the household had placed adult expectations on her and she responded by attempting to perform parental functions. For example, she would answer the door when social services personnel arrived, and would lie to the workers, telling them that her mother was not at home. E.K. was also failing in school. D.F. had been diagnosed with nonorganic failure to thrive, indicating problems with feeding and bonding. Respondent was in the habit of feeding the baby in her walker, which is not conducive to either weight gain or bonding. She made some progress in this area and D.F. slowly began to gain weight. Kelly also testified that respondent was frequently dishonest with the service providers and that the time needed to get to the truth took away from providing services. The family moved frequently. At the time Kelly became involved, an adult roommate named Kevin was also living with respondent, her husband, and the three children.

In early 1998, during a visit, John K. took the two older girls to the dentist because T.K. was complaining of a toothache. The dentist discovered four deep holes in her molars, including one that was abscessed and one that was very close to being abscessed. He recommended a dental procedure that would have required treatment on two separate days. DCFS asked respondent to allow the children to remain in Wisconsin for the additional time needed to complete the dental work. They were on spring break at the time and it would not have disrupted school attendance. Respondent, however, obtained an emergency order of protection in Du Page County (where her divorce from John had been entered) and utilized the services of the sheriff's department in Wisconsin to remove the children. Respondent later explained to Kelly that she had intended to take T.K. to a dentist, but admitted that she had not tried to make an appointment and could not afford to pay for dental care in any event. The needed dental work was eventually completed on a subsequent visit to Wisconsin.

Kelly further explained that the initial plan developed for the family called for the children to remain in the home. Specific goals included maintaining an adequate environment; getting rid of the cats that were the source of much of the filth; following the doctor's recommendations regarding feeding of the infant; obtaining routine medical care such as immunizations; obtaining steady employment or benefits sufficient to meet basic needs; and refraining from negative comments about John and Karen K. In April 1998, respondent and her husband were rated "satisfactory" on their progress under the initial plan, but the Family First personnel commented that they "had just minimally made the minimal parenting standards." In addition, Family First expressed grave concerns about the family's economic and housing situations remaining stable.

At the August 1998 case review, respondent and her husband were rated "unsatisfactory" on every goal except cooperation with Services for Parent Infant Child Education (SPICE) by participating in therapy for the developmental delay that resulted from D.F.'s failure to thrive. Unmet goals included maintaining employment, maintaining stable and suitable housing, cooperating with the home interventionist, attending counseling on a regular basis, and adhering to court orders.

Kelly also testified regarding an incident that occurred in July 1998, when E.K. and T.K. returned from a visit with John and Karen K. Kelly was present at the "hand off" between John and respondent. The girls appeared clean and healthy. They were tan and their hair was shiny. T.K. had gained some weight and lost her "waif-like appearance." Respondent and the children left as Kelly was talking to John and Karen about the summer visit. Kelly asked about a bruise she had noticed on T.K.'s thigh and Karen explained that her leg had been pinched by the restraining bar of a carnival ride several days before. Respondent then reappeared, "visibly agitated," and insisted that T.K. show Kelly the bruise on her thigh and a smaller bruise on her arm. Kelly stated that she was aware of the bruises and that Karen had already explained the cause. T.K. smiled and nodded in agreement when Kelly mentioned the carnival ride. Respondent, however, insisted that T.K. had been abused. Despite Kelly's suggestion that it was a violation of a court order to have such a discussion in front of the children, respondent persisted.

Respondent subsequently contacted the caseworker in Wisconsin to inform her of the alleged abuse. She told the Wisconsin caseworker, falsely, that Kelly had been reprimanded and taken off this case. Respondent also took T.K. to a hospital emergency room to have the bruise examined. Kelly then insisted that the girls be brought to her office for an interview regarding the alleged abuse. When they arrived, they smelled of urine, feces, and body odor. Their skin was ashen and their hair was dull. The interview took place within a week of their return from Wisconsin. During the interview, E.K. said that her mother left her at a friend's house rather than take her along to the emergency room because E.K. would have told the doctor the truth. T.K. admitted telling the doctor that Karen hit her with a wooden spoon but also admitted that this was a lie. She lied to the doctor because her mother and her grandparents promised her "lots of fun things" and a swimming pool.

Kelly also testified about difficulties with telephone contacts between the girls and their father. Respondent would not allow the girls to talk to their father, telling them that it was against a court order for them to do so. By this time, in August 1998, respondent had taken in another cat. D.F. was beginning to gain weight, but she was still thin and her hair was dull. Respondent indicated to Kelly that she thought the baby was gaining too much weight and that the pediatrician agreed with her. However, when Kelly contacted the doctor, she learned that the doctor was pleased with the baby's weight gain and advised that it should continue. Rather than being below the lowest percentile on the growth charts, D.F. had reached the twenty-fifth percentile for her age.

Dr. Marty Traver, a licensed clinical psychologist, testified that she evaluated respondent for DCFS on two occasions, in November 1998 and December 1999. In 1998, Traver found respondent to have average intelligence and appropriate affect, but "no insight into her situation with DCFS." For example, she did not accept the diagnosis of failure to thrive regarding D.F., and she did not agree that unsanitary conditions in her home were a serious concern.

Respondent made several statements to Traver that were "not congruent with the report" provided by DCFS. Respondent told Traver that she first became involved with DCFS in September 1997. The case history, however, showed involvement as far back as 1994. Respondent did not acknowledge unsanitary conditions in her home, admitting only to the "normal amount of dirty dishes." Respondent also believed that her youngest ...


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