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In re Brianna B.

October 16, 2002

IN RE: BRIANNA B., A MINOR,
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,
v.
BRUCE BROWNLEE AND LATRINA BAILEY, RESPONDENTS-APPELLEES.



Appeal from Circuit Court of Sangamon County No. 98JA55 Honorable George H. Ray, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

The People of the State of Illinois appeal the order of the Sangamon County circuit court denying the State's petition to terminate the parental rights of respondent mother Latrina Bailey, respondent father Maurice Brownlee, and the unknown father, in their daughter Brianna B. This court issued an order which affirmed in part and remanded in part with directions. In re Brianna B., No. 4-01-0391 (December 6, 2001) (unpublished order under Supreme court Rule 23). The State filed a petition for rehearing in this court, which was denied. The Illinois Supreme Court, in the exercise of its supervisory authority, directed this court to vacate the December 6, 2001, Rule 23 order in this case and to reconsider its judgment in light of Public Act 91-373 (Pub. Act 91-373, §5, eff. January 1, 2000 (1999 Ill. Laws 4971, 4973-74)), which amended section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 2000)), to determine the effect, if any, that the amendment may have on our judgment. Respondents were given leave to respond. Upon reconsideration, we find that the amendment has no effect on our judgment and again affirm in part and remand in part with directions.

I. BACKGROUND

Respondent minor, Brianna B., born December 5, 1997, has severe medical problems, including cerebral palsy, general brain atrophy, the inability to swallow, the inability to clear her throat of accumulated fluids, severe asthma, severe allergies, and quadriplegia. Brianna B. is fed through a tube directly in her stomach. Brianna B. must be attached to multiple monitoring devices at all times because of the risk of reflux of fluid from her stomach into her esophagus and breathing passages. When these frequent episodes occur, someone must suction the fluid from Brianna B.'s mouth and airways to prevent her from choking to death. Children born with Brianna B.'s conditions generally have a life expectancy of six to seven years. Proper care for Brianna B. requires constant attention and specific skills. The requirements Brianna B. places on any caregiver are obviously very demanding.

Respondent mother is the natural mother of Brianna B. Respondent father is the only person to ever claim paternity of Brianna B. Respondent parents lived together with Brianna B. in their care until Brianna B. was taken into protective custody and a shelter-care hearing was held on March 5, 1998.

The State's petition for adjudication of wardship alleged that Brianna B. was a neglected minor in that her environment was injurious to her welfare and she was not receiving the care and supervision, including medical care, necessary for her well-being. Specifically, witnesses testified that Brianna B. was observed to be unhooked from her monitors at times. The adjudicatory hearing was held on June 26, 1998, where Brianna B. was found to be a neglected minor on the grounds alleged in the petition. The dispositional hearing was held on July 30, 1998, where Brianna B. was made a ward of the court and placed in the custody and guardianship of the Department of Children and Family Services (DCFS). The July 30, 1998, dispositional order required the "[p]arents to cooperate with counseling, psychological evaluations[,] and continued medical treatment training that can be offered. Parents to attend all visits and be prompt for visits. Parents to cooperate with DCFS and any other service provider."

On July 2, 1999, the State filed a petition to terminate the parental rights of respondent mother, respondent father, and the unknown father. The petition alleged the following statutory grounds for finding both respondent mother and respondent father unfit pursuant to the Adoption Act (750 ILCS 50/1 et seq. (West 1998)):

"Failure to maintain a reasonable degree of interest, concern[,] or responsibility as to the child's welfare." 750 ILCS 50/1(D)(b) (West 1998).

"Failure by a parent [1] to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or [2] to make reasonable progress toward the return of the child to the parent within 9 months after an adjudication of neglected or abused minor ***." 750 ILCS 50/1(D)(m) (West 1998).

The petition alleged the unknown father was unfit on the following statutory bases: abandonment (750 ILCS 50/1(D)(a) (West 1998)); failure to maintain a reasonable degree of interest, concern, or responsibility as to the child's welfare (750 ILCS 50/1(D)(b) (West 1998)); and evidence of intent to forgo his parental rights in a 12-month period (750 ILCS 50/1(D)(n) (West 1998)). Service by publication was made on the unknown father, but the record before us fails to show that the State filed an affidavit of due diligence describing the State's efforts to locate the unknown father.

Testimony and argument regarding the respondent parents' fitness was taken at four hearings between January and May 2000. The first caseworker testified that she was on the case from March 13, 1998, until November 5, 1998. According to this caseworker, respondent parents attended at least 80% of the visits. Both parents saw Brianna B. on at least a weekly basis, if not multiple times per week. This caseworker did not think the visits were productive, however, because respondent mother did not learn how to care for Brianna B. and respondent father complained about the foster parents and asked for second opinions when doctors recommended elective surgeries for Brianna B.

Brianna B.'s occupational therapist testified about sessions between her and respondent parents where the therapist would teach the parents how to care for Brianna B. This therapist testified that respondent mother asked too many questions and asked the same questions repeatedly, which interfered with the sessions. Respondent father complained a lot and was quick to anger. At one session, the foster mother, who was observing from another room, actually burst in and shouted the session was over because she did not like what respondent father said about the foster mother's care of Brianna B.

The second social worker assigned to this case testified that she was on the case from November 1998 until March 1999. She testified that she had 6 visits with respondent mother and Brianna B. alone, 13 visits with respondent father and Brianna B., and 4 visits with Brianna B. and both parents. This did not include doctor's appointments and hospital visits, which would be supervised visitations as well. This caseworker also found the visits to be unproductive because of respondent mother's seeming unwillingness or inability to treat Brianna B. when she had episodes, and respondent father's temper often got in the way of progress.

A DCFS child-welfare specialist testified about her evaluation of service plans for respondent parents from September 1999 until February 2000. Her evaluations mirrored those of the caseworkers. Respondent mother did not know how to properly care for Brianna B. and respondent father had anger issues. Respondent father did successfully complete a parenting class, but it was not the class DCFS wanted him to take because it did not address "medically complex" children. Respondent father would not take the recommended class because he did not like the teacher. From the end of November 1999 until March 2000 neither parent was allowed ...


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