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In re Alicia Z.

November 7, 2002

IN RE ALICIA Z. AND ZAYDA Z., MINORS
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
JOSE Z., RESPONDENT-APPELLANT). IN RE ALICIA Z. AND ZAYDA Z., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. JOSE Z., RESPONDENT (KATIE PENOWSKY, RESPONDENT; D.M. AND E.M., INTERVENORS; DEPARTMENT OF CHILDREN AND FAMILY SERVICES, GUARDIAN-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 97--JA--0080 Honorable Judith M. Brawka, Judge, Presiding. Appeal from the Circuit Court of Kane County No. 97--JA--0080 Honorable Judith M. Brawka, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

UNPUBLISHED

Following adjudicatory and dispositional hearings, the trial court entered neglect adjudications for Alicia Z. and Zayda Z., the daughters of respondent, Jose Z., and awarded guardianship of the girls to the Department of Children and Family Services (DCFS). Respondent did not appeal the court's orders. On August 7, 2001, more than two years after DCFS was awarded guardianship and after several permanency review hearings, respondent filed a motion to modify guardianship and custody of his children. See 705 ILCS 405/2--28(4) (West 2000). On November 21, 2001, the trial court denied the motion, and respondent challenges the order in appeal No. 2--01--1465.

On April 12, 2002, the trial court transferred guardianship of the minors from DCFS to the foster parents, and respondent and DCFS each filed notices of appeal from that order. In appeal No. 2--02--0395, respondent argues that the trial court should have transferred guardianship and custody of the children to him rather than to the foster parents. In appeal No. 2--02--0505, DCFS argues that guardianship should have remained with DCFS and that the permanency goal should have been set to "return home" to respondent. In this regard, DCFS and respondent agree that the trial court erred when it set a permanency goal of private guardianship by the foster parents. The foster parents are not parties to these consolidated appeals.

We dismiss appeal No. 2--01--1465 for lack of jurisdiction. As to appeal Nos. 2--02--0395 and 2--02-0505, we conclude that the trial court's transfer of guardianship from DCFS to the foster parents is against the manifest weight of the evidence. However, we further conclude that the denial of respondent's request for guardianship and custody is not against the manifest weight of the evidence. Accordingly, we reverse the trial court's April 12, 2002, order transferring guardianship and remand the cause with directions.

FACTS

Alicia was born on February 17, 1997. DCFS took custody of her six months later when Elgin police responded to a report of a break-in and observed Alicia's mother handling the girl roughly. The mother refused to cooperate with the police and assaulted a DCFS worker the next day. Respondent and the mother were never married. When the case began, Alicia lived with her mother and her maternal grandmother in Elgin. Respondent lived in Elgin and worked there and in Beloit, Wisconsin. Respondent gave the mother $50 per week for Alicia, expressed a desire to gain custody of the girl, and offered to have family members watch her while he was at work.

DCFS filed a petition for an adjudication of neglect alleging that Alicia's parents had failed to immunize Alicia and that the mother had used illegal drugs in Alicia's presence. At the September 17, 1997, hearing, respondent appeared pro se and admitted to a neglect adjudication but insisted that he would do everything he could to regain custody. DCFS recommended "return home to the parents" as the first permanency goal.

At a subsequent status hearing, the trial court told respondent that his appearance at the dispositional hearing was unnecessary if he was "willing to allow [DCFS] to have guardianship and custody in this case." Respondent did not attend the dispositional hearing. Following two hearings in October 1997, the trial court awarded DCFS guardianship of Alicia, set the permanency goal of "return home," and authorized weekly supervised visitation by the parents. DCFS placed Alicia in foster care after the maternal grandmother declined to take custody.

After the first permanency review in January 1998, the trial court permitted the parents to visit Alicia more frequently. At the April 1998 permanency review, the court found that the parents had attended parenting classes as directed, and the court directed the parents to demonstrate parenting skills during the supervised visits.

Zayda was born on May 16, 1998, and the trial court granted DCFS temporary custody after hearing evidence that the mother verbally abused hospital and DCFS staff and tested positive for marijuana when Zayda was born. Zayda was placed with Alicia's foster family. On August 26, 1998, the trial court appointed an attorney for respondent and began an adjudicatory hearing in Zayda's case. Psychologist Julia Klco testified that she evaluated the mother and respondent and observed one of respondent's visits with Alicia and Zayda. Klco stated that respondent was "extremely attentive" to Alicia and that he told Klco that he stayed with the mother for his daughters' sake. Klco recommended that respondent terminate his relationship with the mother. Klco believed that respondent could parent successfully if he received legal assistance and day care services.

Chris Hinde, a DCFS caseworker, testified that respondent was "very gentle and very delicate" when interacting with the children. Respondent attended nearly all of the scheduled visits and otherwise cooperated. However, Hinde was concerned that respondent's status as an illegal alien showed his disregard for this country's laws, including the child welfare laws.

The adjudicatory hearing was delayed because the mother initially denied that respondent was Zayda's father. A subsequent paternity test confirmed that respondent is the girl's father, and respondent readily admitted paternity.

On November 30, 1998, the court adjudicated Zayda neglected, concluding that Zayda's home environment was injurious to her welfare because Alicia was still in the custody of DCFS, the mother had been violent toward respondent, and the mother had tested positive for marijuana when Zayda was born. The trial court made Zayda a ward of the court, appointed DCFS guardian, and granted the foster parents custody. The court also changed Alicia's permanency goal of return home to "substitute care pending termination of parental rights" after reviewing a report in which Hinde indicated that both parents were emotionally unstable, failed to cooperate with DCFS, and repeatedly disregarded the authority of the judicial system. Hinde noted that respondent had immigrated illegally and that respondent and the mother had been arrested repeatedly for traffic violations. Furthermore, the mother continued to vacillate between respondent and another boyfriend, and she often verbally abused respondent.

At Zayda's December 16, 1998, dispositional hearing, John Ayala, a DCFS caseworker who speaks both English and Spanish, testified to respondent's conduct during visits with Alicia and Zayda. Ayala stated that respondent had bonded with the girls and that he was very tender and very nurturing when interacting with them. Ayala believed that respondent's visits could be unsupervised if the mother did not participate in them. The court granted DCFS guardianship of Zayda and directed respondent to continue the recommended counseling, sign any necessary releases, complete parenting classes, submit to a substance abuse evaluation, and provide a safe home environment. The court permitted DCFS to schedule unsupervised visits for respondent. Nancy M., the court-appointed special advocate (CASA) and the guardian ad litem, suggested that respondent's parental rights should be terminated, and the court stated that a discussion of such a termination was premature because respondent had been denied the opportunity to reunite with the children.

At the June and August 1999, permanency review hearings, the CASA and the foster parents again recommended terminating respondent's parental rights. However, the court found that respondent had made substantial progress toward the return of both Alicia and Zayda and set the permanency goal for both girls at return home within 12 months as recommended by DCFS and the State. The court permitted unsupervised visits at respondent's home in Beloit, Wisconsin.

At a December 1999, permanency review hearing, the court reviewed a parenting assessment prepared by Patricia Voloschin-Weiner, a psychologist retained by DCFS. In her evaluation, Voloschin-Weiner stated that respondent had been prejudiced because DCFS had provided respondent with services in English even though his primary language is Spanish. She also opined that respondent possessed adequate parenting skills and that he had developed a loving relationship with his daughters. The court left the permanency goal at return home and authorized overnight unsupervised visits with respondent in Wisconsin.

In January 2000, Zayda was diagnosed with fetal alcohol syndrome (FAS), and the court ordered early intervention therapies, developmental classes, and occupational and speech therapy. By this time, DCFS was developing a plan to coordinate services with the appropriate Wisconsin agencies. Around that time, respondent learned that the foster parents baptized Alicia and Zayda in a religion other than respondent's.

On June 22, 2000, the court ordered respondent to "actively participate" in Zayda's early intervention therapies. The therapies were administered at or near the foster parents' home in Aurora, and respondent's visits were conducted at his home in Wisconsin, which was several hours away. Respondent attended the therapy sessions, but the foster parents did not allow him to participate when he occasionally arrived late. After acknowledging that some hostility had developed between the parties, the court authorized the foster parents to exclude respondent from a session if he was more than 10 minutes late.

The next permanency review hearing ran from October through November 2000. Dr. Constance Blade, a pediatrician, testified that Zayda suffered from FAS but had an IQ of 100, which is in the "normal" range. Dr. Blade had never met respondent to evaluate him and his household for the appropriateness of a transition. However, Dr. Blade opined that Zayda would regress and require even more services if she left the foster parents' home permanently.

Ayala testified that respondent had ended all contact with the girls' mother. Respondent was rated "satisfactory" for the client service plan tasks of investigating Zayda's developmental delays and participating in her treatment. Respondent prepared nutritious meals for the girls and planned age-appropriate activities for them. The interpreter who participated in the sessions told Ayala that the foster parents were rude and that there was "a lot of tension in the air." Respondent and a second interpreter told Ayala that the foster parents excluded respondent from some of the sessions. Ayala concluded that respondent exceeded the minimum standards of parenting set by DCFS because he could provide shelter and food and could address Zayda's special needs. After noting that social services were in place in Wisconsin, Ayala recommended return home as a permanency goal.

David Langenstrass, Ayala's DCFS supervisor, rated respondent as "satisfactory" for his compliance with the service plan tasks. DCFS recommended that the permanency goal remain at return home because respondent had bonded emotionally with the children and developed adequate parenting skills. He also recently attended more therapy sessions than usual. Dr. Alome Stein, respondent's therapist, testified that respondent understood Zayda's FAS diagnosis and used that knowledge while interacting with his daughters.

The foster mother testified that she hired a private investigator to investigate respondent and his family. She contacted a state senator and expressed frustration that DCFS and other agencies knew of respondent's status as an illegal immigrant but had not taken any action against him.

Respondent testified that the foster parents had treated him very badly, excluding him from several of Zayda's therapy sessions after he had driven several hours from Wisconsin. Respondent acknowledged that Zayda suffers from FAS and that she requires extra attention. Respondent used games, puzzles, and toys to teach her to remain focused on tasks. He also calmed Zayda when she became disoriented, frustrated, anxious, and afraid. Respondent recently stopped attending Zayda's speech therapy sessions because no interpreter was present. Ayala told respondent that he should not participate in the sessions until the trial court reviewed the permanency goal.

On November 3, 2000, the court changed the permanency goal from return home within 12 months to private guardianship by the foster parents. The court decided that the goals of return home within five months and within one year were inappropriate because the previous goal of return home within one year had not been achieved.

The court found that DCFS had rendered adequate services since the fall of 1998 even though an interpreter did not consistently attend Zayda's therapy sessions until July 2000. The court noted that respondent possessed at least the minimum parenting skills because he could feed, clothe, baby-sit, and shelter the children. He had made reasonable progress toward the return of the children and possessed "a rudimentary understanding" of Zayda's condition, but he had not attended all of the therapy sessions. The court believed that the FAS diagnosis was a "significant" change in the case and that Zayda would "regress" if respondent regained custody. The court believed that respondent could learn to care for Zayda but that he was unprepared to do so at that time.

On August 7, 2001, respondent filed a "Motion for Modification of the Dispositional Order of Guardianship to the Department of Children and Family Services and for Return of Custody to Father-Respondent." The trial court agreed to combine a hearing on respondent's motion with a previously scheduled permanency hearing.

Ayala testified that respondent understood Zayda's special needs but had not completed several tasks recently assigned by DCFS. The foster parents completed the "KIDS" program, but respondent attended only one session. Respondent failed to furnish holiday visitation or transportation plans, and he did not meet with a particular psychologist as directed. Ayala acknowledged that the therapists denied respondent's request to change Zayda's therapy schedule. A translator was not consistently provided at the therapy sessions, and respondent was often forced to miss work.

Respondent did not attend Zayda's therapy sessions after the court set the permanency goal of transferring guardianship to the foster parents, but Ayala believed that respondent was not required to do so. Zayda's sessions ended upon her third birthday because the Aurora school district concluded that she did not require special education. Ayala had never seen respondent treat the children inappropriately, and when ...


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