Appeal from the Circuit Court of Cook County. No. 98 JA 00402 Honorable Mark Lopez, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Theis
Following an evidentiary hearing, the trial court found respondent mother, B.T., an unfit parent for failing to protect her son, D.T. (born December 18, 1993), from conditions within his environment injurious to his welfare. 750 ILCS 50/1(D)(g) (West 2000). After a best interest hearing, the trial court terminated respondent's parental rights to D.T. on June 8, 2001. *fn1 Respondent appeals, arguing that (1) during the unfitness hearing, the trial court misinterpreted section 1(D)(g) of the Adoption Act (750 ILCS 50/1(D)(g) (West 2000)) by foreclosing consideration of any evidence that did not directly relate to respondent's past failing to protect D.T.; (2) the court erred in deciding that termination of respondent's parental rights was in D.T.'s best interests on the basis of its own discretion, without imposing a burden of proof on the State; (3) the court improperly failed to hold the State to a "clear and convincing" standard of proof or a "preponderance of the evidence" standard in the best interest hearing; (4) the State failed to meet its burden to prove that terminating respondent's rights was in D.T.'s best interests; and (5) the trial court's finding on best interests was incorrect and an abuse of discretion. We reverse and remand for further proceedings.
Following a hearing on February 5, 1998, the trial court granted temporary custody of four-year-old D.T. to the Department of Children and Family Services (DCFS). On May 5, 1998, following an adjudicatory hearing, the court found that D.T. had been physically abused by respondent's boyfriend, Brian Weisenritter, neglected due to respondent's failure to take D.T. to the hospital after he was injured, and subjected to an injurious environment. On May 27, 1998, the court appointed DCFS as D.T.'s guardian. Following another hearing on August 27, 1998, the court entered an order establishing the permanency goal as substitute care pending court determination on termination of parental rights. *fn2 On July 19, 1999, the State filed a supplemental petition for appointment of a guardian with right to consent to adoption alleging four separate allegations of unfitness. The State later amended the petition to allege only that respondent was unfit because she failed to protect D.T. from conditions in his environment injurious to his welfare. 750 ILCS 50/1(D)(g) (West 2000).
At the unfitness hearing held from September 2000 to April 2001, Dr. Alan Johnson, a physician at Children's Memorial Hospital, testified that he treated D.T. on February 2, 1998, after he was transferred from Ravenswood Hospital. D.T. had several bruises on his face, multiple cuts and bruises on his arm, various scratches on his back, and several bruises on his buttocks and thighs. Johnson testified that D.T. had a linear bruise on his left cheek that had the characteristic appearance of an opened-handed slap mark. His bruises were inconsistent with those of a normal four-year-old boy.
Johnson explained that D.T.'s scrotum was swollen to the size of an orange, approximately 5 to 10 times its normal size, and was dark purple. The bruising extended down his leg and up to his abdomen. D.T. was in a significant amount of pain from a puncture wound to the scrotum, which leaked bloody fluid. Johnson opined that D.T.'s scrotum injury had occurred more than 48 hours earlier. D.T. underwent surgery to explore the nature and extent of his injuries, remained in the hospital for two to three days and required narcotic pain medication. Johnson testified that this injury was caused by repetitive blunt blows to the scrotum and that D.T. was a victim of child abuse. He stated that D.T.'s explanation for his injury, that he fell off the couch on to "some junk," was not consistent with his injury.
Charles Rocek, a child protective investigator with DCFS, testified that on February 2, 1998, he noticed 11 marks and bruises on D.T.'s face and 8 other circular bruises on his arms and chest. Respondent told Rocek that she had known her boyfriend, Weisenritter, for approximately two months at that time and had met him through a telephone dating service. She stated that she went to Weisenritter's house on Friday, but later told him that she arrived on Thursday, Wednesday or Tuesday. Respondent also told Rocek that Weisenritter left the apartment Friday night and did not return until Saturday morning. Rocek asked respondent how D.T. sustained the facial injuries, and she responded that he slipped and fell several times in the bathtub. Rocek also asked her how D.T. suffered his groin injury, and she responded that he fell off the couch on to "some junk" at Weisenritter's apartment. Respondent told Rocek that she did not seek medical care earlier because she did not think D.T. was in pain. On as many as 30 occasions during their two-month relationship, respondent saw Weisenritter wrap D.T. in a towel for several hours and strike him to control his behavior.
Rocek again spoke with respondent on February 4, 1998. During this conversation, respondent stated that she was present with D.T. and Weisenritter the entire weekend except for two instances when she left for several hours to shop for groceries. Respondent told Rocek that after she and D.T. left Weisenritter's house at approximately 7 p.m. on Sunday, February 1, 1998, she spoke with a friend, and three hours later, brought D.T. to the hospital. Respondent never stated that Weisenritter prevented her from leaving his apartment.
Lisa Froemel, a social worker at Children's Memorial Hospital, testified that she spoke with respondent on February 2, 1998. Respondent told her that she and D.T. went to Weisenritter's apartment on January 29. Respondent stated that she did not know how D.T. sustained his injuries, but she noticed some redness to D.T.'s penis on January 30. On January 31, respondent noticed that D.T.'s scrotum was "black and blue" and he told her that he fell off the couch. The next day, after D.T. complained of pain and she noticed his scrotum was swollen and bleeding, respondent took him to Ravenswood Hospital. Respondent told Froemel that D.T. sustained several bruises from slipping in the bathtub and running into the kitchen island, but had "no real explanation" for D.T.'s groin injury. Respondent also stated that she gave Weisenritter permission to spank D.T. on his buttocks as a form of discipline and she saw him wrap D.T. in a blanket on a number of occasions. Respondent told Froemel that she left D.T. with Weisenritter for 30 to 40 minutes that weekend, but, she never stated that she was not allowed to leave Weisenritter's apartment. D.T. told Froemel that respondent was not present when he was injured.
Sharon Marach testified that she was respondent's case manager from 1995 to 1997 at Open Door Clinic in Elgin, a service provider for individuals with life-threatening illnesses. She testified that D.T. was always with respondent at her appointments and he appeared well cared for and happy. Respondent never told Marach that Weisenritter abused her or D.T.
Kristen James testified that she was a clinical supervisor and therapist at The Children's Place Association, which provided services to families with life-threatening illnesses. D.T. entered The Children's Place Association day care program in the fall of 1997. D.T. was very bright, articulate and advanced for his age. After D.T.'s hospitalization, respondent attended parenting classes, domestic abuse counseling and all of her supervised visits with D.T. D.T. told James through play therapy that Weisenritter kicked him. Respondent never told James that Weisenritter prevented her from leaving the apartment.
Johanna Sonnenfeld, a therapist at Midwest Family Resource who was qualified as an expert in psychodynamic therapy, had counseled respondent since January 2000. She stated that respondent's parents physically abused her and she "turned off her awareness" of what was happening to cope. After her father abused respondent, respondent's mother did not protect her, was not supportive, minimized her injuries and did not seek medical attention. Sonnenfeld testified that respondent similarly disassociated from the situation and minimized D.T.'s injuries. Respondent told Sonnenfeld that Weisenritter kept the keys to respondent's car during the weekend she stayed with him, although she left the apartment to go grocery shopping. When she left Weisenritter's apartment, she realized the extent of D.T.'s injuries and brought him to the hospital.
Respondent testified that her parents physically abused her as a child. After she married D.T., Sr., and became pregnant, D.T., Sr., also became physically abusive. When D.T. was approximately one year old, respondent left D.T., Sr., and returned to her parents' house. She later learned that she had contracted a life-threatening illness. In August 1997, she and D.T. moved to Chicago House, which provided low-income housing for individuals with her life-threatening illness. Respondent met Weisenritter through a telephone dating service in late December 1997. In January 1998, Weisenritter would wrap D.T. in a towel for 5 to 10 minutes as a form of discipline. At the time, respondent thought that this discipline was "okay," but now realized that it was abuse. She also allowed Weisenritter to spank D.T.'s buttocks once.
Respondent testified that she and D.T. went to Weisenritter's apartment on Thursday, January 29, 1998. That evening, she left the apartment for food. D.T. asked to accompany her, but respondent told him to stay with Weisenritter because the neighborhood was unsafe. Later, respondent learned from D.T. that Weisenritter had threatened to hurt him that night. When she put D.T. to bed that evening, she noticed a red mark on his abdomen and D.T. told her that he fell off the couch. D.T. never told respondent that Weisenritter hurt him, and she did not remember seeing any bruises on D.T. Weisenritter kept her car keys while she was in the apartment, although he did not physically prevent her from leaving. Respondent repeatedly told Weisenritter that she wanted to take D.T. to the doctor, but he told her that was unnecessary. Although she left the apartment three times that weekend, respondent never sought help. When she returned to her apartment on Sunday evening, she noticed D.T.'s groin injury and bruises. She went to her friend's apartment to return money and then brought D.T. to Ravenswood Hospital. Respondent admitted that it was her responsibility to protect D.T. In a visit with D.T. in April 1998, D.T. told respondent that Weisenritter hit him and kicked him in the stomach and groin with his work boots. Respondent admitted that, at that time, she failed to protect D.T. from an injurious environment.
In rebuttal, the State presented the testimony of Ann Simonson, D.T.'s foster mother for 2 1/2 years at the time of the hearing. In January 1999, D.T. told her that when he was wrapped in the towel, he could not breathe and felt that he could not get away. D.T. also stated that he told respondent not to leave him alone with Weisenritter. At the conclusion of this hearing, the trial court found that the State had proved, by clear and convincing evidence, that respondent was unfit for failing to protect D.T. from an environment injurious to his welfare during the period from January 29 to February 1, 1998.
At the best interest hearing in May and June of 2001, the trial court took judicial notice of its previous finding of respondent's unfitness and the testimony from that hearing. Simonson testified that she had been D.T.'s foster mother since August 1998. D.T. called her "mom" and explained that respondent was the "mother who had me [and Simonson is] the mother who takes care of me." D.T. was very bright and in a gifted first-grade class, reading at a sixth-grade level. D.T. expressed to Simonson that he worried that respondent would not be able to take care of him if he went home with her. D.T. occasionally stated that he wanted to live with respondent, usually when he was angry with Simonson. D.T. initially had many "meltdowns" and tantrums, but these had greatly decreased in the previous year. D.T. also frequently discussed the incident when Weisenritter kicked him. During one visit between D.T. and respondent that Simonson supervised, D.T. asked respondent if she would get a job because he was very concerned about working and money. Simonson testified that she did not think D.T. would be at risk with respondent. She also stated that she wanted to adopt D.T.
John Arroyo testified that he had been D.T.'s therapist since September 2000. He stated that while D.T. was adapting well to his foster home, he had difficulty with peer relationships, got into fights and became frustrated at school. Arroyo stated that D.T. needed rules, boundaries and consequences and Simonson helped to set limits and boundaries. Emotionally, D.T. became upset easily because he did not understand what was happening in court. Arroyo believed that the length of the court proceedings was problematic for D.T. and that resolution of this case would help him. D.T. told Arroyo on different occasions that he wanted to live with respondent, Simonson, and respondent's mother. D.T. also stated that he wanted to live with respondent because ...