Appeal from the Circuit Court of Cook County 90 J 006893 90 J 006894 The Honorable Stephen Y. Brodhay Judge Presiding.
The opinion of the court was delivered by: Justice Cerda
Respondents, J.Y. and D.Y., appeal from the circuit court's termination of their parental rights. The trial court found that both parents had failed to make reasonable progress or efforts toward the return home of their children during any nine-month period after the end of the initial nine-month period following the adjudication of neglect or abuse; that the mother was unable to discharge her parental responsibilities due to her mental illness and would be unable to do so for a period extending beyond a reasonable time; that the father was a habitual drunkard; and that the father had failed to maintain a reasonable degree of responsibility for the children. Respondents argue on appeal that (1) the trial court erred in retroactively applying the amended statute, which allows the court to consider any nine-month period following the adjudication of neglect or abuse in determining whether the parents made reasonable efforts toward the return of their children; (2) the State did not prove that the father was unfit due to habitual drunkenness; and (3) the State did not prove that the mother was unfit due to mental illness.
The mother, J.Y., and father, D.Y., are married and two of their three children are the subject of the neglect and abuse proceedings involved in this appeal. The daughter, T.Y., was born on January 27, 1990, and the son, T.Y., was born on November 25, 1987 (hereinafter T.Y. and T.Y. will be referred to as "the children").
On April 17, 1990, petitions for adjudication of wardship alleging neglect and dependency were filed for both of the children. The allegations of neglect were based on a lack of necessary care for the children's well being and their exposure to an injurious environment; the allegation of dependency was based on the mental and/or physical disability of the mother. There was evidence that the case arose when J.Y. contacted the authorities, reporting that she was overwhelmed and was afraid she would hurt the children. Although the record is not clear, it indicates the petitions may have been amended on August 15, 1990, to add allegations of physical abuse.
According to a subsequent supplemental petition filed by the State, on September 13, 1990, the court made a finding of "neglect/lack of care" as to the girl and a finding of physical abuse as to the boy. The orders regarding these findings do not appear in the record.
On January 29, 1991, dispositional orders were entered finding that the parents were unable, for reasons other than financial circumstances, to care for, protect, train, or discipline the children. Both children were placed under the guardianship of the Department of Children and Family Services (DCFS).
Four months later, however, the parents were granted unsupervised visitation. Then, on October 9, 1991, the court found the parents were able to care for the children and the children were returned home under an order of protective supervision.
On December 16, 1991, the State filed petitions alleging that the parents had not cooperated with the reasonable requests of DCFS, that the father continued to physically and mentally abuse the mother, and that the father continued to use corporal punishment on the children. On April 24, 1992, the State filed additional petitions alleging that the mother had not provided all the care necessary for the children's well being. The State also alleged that the mother had not cooperated with all reasonable requests of DCFS and she was using corporal punishment on the children.
On May 7, 1992, the court entered another dispositional order, finding that the girl had been neglected, and the court again placed her under DCFS guardianship. A dispositional order regarding the boy does not appear in the record, but there is no dispute that both children were again removed from the home in 1992. At the time of the children's removal, D.Y. was incarcerated for driving under the influence of alcohol, and the mother had been hospitalized for psychiatric reasons. The exact dates of the incarceration and hospitalization do not appear in the record.
Beginning September 7, 1995, unsupervised day visits between respondents and the children were allowed, but they were suspended three months later. On June 13, 1996, a permanency goal of long-term foster care was entered by the court for all three children. The order found that the parents were visiting regularly and were involved in family counseling. The order noted, however, that a therapist smelled alcohol on D.Y.'s breath at February, March, and April visitations and that he needed to attend counseling and undergo urine screening. On January 13, 1997, the court ordered D.Y. to submit to random urine drops at least twice a month.
On January 12, 1999, the court entered a permanency goal of substitute care pending court determination of parental rights. Subsequently, on April 9, 1999, the State filed supplemental petitions requesting that respondents be found unfit, that their parental rights be terminated, and that the children be appointed a guardian with the right to consent to their adoption.
The petitions alleged that the parents had failed to maintain a reasonable degree of interest, concern, or responsibility for the children; that the parents had failed to protect the children from injurious conditions in the children's environment; that the parents had failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children within nine months after the adjudication of abuse, neglect, or dependency, and/or failed to make reasonable progress toward the return home of the children within nine months after the adjudication of abuse, neglect, or dependency; that D.Y. was a habitual drunkard and/or addicted to drugs other than those prescribed by a physician for at least one year immediately prior to the commencement of the unfitness proceeding; and that the mother was unable to discharge parental responsibilities because of mental impairment, and there was sufficient justification to believe that the mother's inability to discharge parental responsibilities would extend beyond a reasonable time.
The fitness portion of the bifurcated termination proceeding began in December 1999. At the hearing, therapist Jodi Bessinger testified that she conducted sessions with D.Y. in October, November, and December of 1995. The purpose of the therapy was to work toward the return home of the children and to address the issues of domestic violence, substance abuse, parenting, and the mother's mental illness. At that time, D.Y. was not receiving treatment for alcoholism, he was not attending Alcoholic Anonymous (AA) meetings, and he denied that he had a drinking problem. Bessinger testified that D.Y. did not understand the scope of J.Y.'s mental illness or the children's attention deficit disorder. D.Y. did not understand the children's emotional needs or how to develop a loving and nurturing relationship with them. Bessinger characterized D.Y.'s bringing of gifts and money to the children every visit as very disturbing. She believed that D.Y. did not take responsibility for any of the reasons that the children were removed from the home.
Bessinger also reported that respondents' daughter told her during therapy that sometime in 1995 or 1996 the children were in the car with D.Y. when they got into an accident. D.Y. was drinking at the time. The son also told Bessinger that his father kept a trash can next to his chair for his beer cans.
Susan Barry, the caseworker assigned to the children's case from September 1996 through February 1997, identified the main issues that D.Y. needed to address at that time: anger management, domestic violence, drinking problem based on several incidents of driving while under the influence, parenting skills, and a tendency to minimize the mother's mental illness. There was no evidence of the dates of the driving incidents.
Barry did not believe that D.Y. made progress in controlling his anger while she was assigned to the case. She based her opinion on the mother's concern that D.Y. would be upset, evidenced by comments such as, "He's not going to like this." However, the mother never said she was fearful of D.Y., and Barry never observed any explosive behavior.
Barry also concluded that, during her time on the case, D.Y. had not progressed in controlling his alcohol abuse. Although she admitted he complied with the required urine drops and was attending AA meetings, the children reported that he had openly consumed alcohol in front of them during an unsupervised visit. D.Y. did not deny that the incident had occurred. The children's foster parents further reported that they smelled alcohol on D.Y.'s breath when he returned the children to their home.
Barry observed the parents in 10 to 20 supervised visits. D.Y. participated in the visits and did things such as cook meals. She never saw D.Y. get angry or hit the children, nor did she ever see him drink alcohol or smell alcohol on his breath. Barry did not believe that D.Y. had more than a minimal understanding of the mother's mental illness.
Barry never recommended the return of the children to their mother because of the seriousness of J.Y.'s psychotic breaks and the reports of D.Y.'s drinking.
D.Y. and J.Y. were not receiving marriage counseling during the time that Barry was assigned to the case, as they stated they no longer needed it. However, J.Y. continued attending visits with a psychiatrist.
The court entered into evidence a service plan dated April 17, 1997, which rated D.Y. unsatisfactory for counseling and for submitting to random blood screens. D.Y. was also rated unsatisfactory for another task, however, the meaning of the task is unclear: "Provide documentation from any referral sources who assess Mr. [Y] as not appropriate for treatment." D.Y. was rated satisfactory for signing a release of information concerning his participation and progress in counseling. The evaluation noted that the parents had not continued ...