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In re April C.

January 20, 2004


Appeal from the Circuit Court of Cook County Nos. 97 JA 2301, 97 JA 2302 & 97 JA 2303. Honorable Stephen Y. Brodhay, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

On October 1, 1997, the juvenile court found that April C., Amy C., and Anna C. (collectively, the minors or the children) were physically abused, subjected to excessive corporal punishment, and at a substantial risk of physical injury while in the care of respondent, their natural mother, and Ernie C., their natural father. They were adjudged wards of the court on June 24, 1999. Respondent and Ernie C. separately appealed those findings. In In re April C., 326 Ill. App. 3d 225 (2001), we affirmed the juvenile court's findings with regard to respondent. We similarly affirmed the findings against Ernie C. in In re April C., 326 Ill. App. 3d 245 (2001). The State subsequently petitioned for termination of parental rights and authority to consent to adoption of the minors.

On June 11, 2002, the juvenile court found that respondent was unfit to be the children's parent because "she failed to make reasonable progress toward return home within 9 months after adjudication," and "[s]he failed to maintain a reasonable degree of concern or responsibility as to the child[ren]'s welfare." See 750 ILCS 50/1(D)(b), (m)(ii)(West 2000). The court subsequently determined that it was in the children's best interests to terminate respondent's parental rights. In simultaneous rulings, the court found that Ernie C. was unfit and terminated his parental rights. Respondent appeals claiming that the court erred in finding her unfit and in terminating her parental rights. Ernie C. has not appealed the findings against him.

Before considering the merits of respondent's claims on appeal, we address respondent's motion to strike portions of the State's brief. Without citing any authority in her motion, respondent urges us to strike those portions of the State's brief that refer to our opinion affirming the determinations of abuse and wardship in this case. Respondent claims that "there is no indication that the trial court based its decision in this termination case on anything contained in this Court's prior opinion." Respondent argues that it is prejudicial to allow the State to cite to our prior opinion and that the prior opinion is not relevant to the instant proceeding. She further contends that the records from the abuse and wardship proceedings were not part of the record on appeal and that if the State wanted us to consider the records from those proceedings, it should have filed a supplemental record.

The State urges us to deny respondent's motion because the motion lacks authority for the requested relief. Additionally, the State asserts that, contrary to respondent's argument, the juvenile court based its finding of unfitness, in part, on the prior determinations of abuse and wardship. The State maintains that the facts it cites from the opinion are relevant because they establish that the minors suffered abuse while in the care of respondent and because they provide information regarding the conditions from which respondent needed to make progress in order to regain custody of the children. The State also asserts that the opinion is a public record and establishes the law of this case.

The particular facts to which the State cites and respondent objects are a series of stipulations that were entered and agreed to by the parties at the adjudication hearing. The stipulations can be found in our previous opinion. In re April C., 326 Ill. App. 3d at 227-29. The majority of the stipulations dealt with Ernie C.'s abusive conduct. Significantly, the parties stipulated "to a finding that April, Amy, and Anna had been physically abused by Ernie C., had been subjected to excessive corporal punishment and were at a substantial risk of injury." In re April C., 326 Ill. App. 3d at 228.

In determining whether to grant respondent's motion, we initially note that our prior opinions in this case are part of the record on appeal and the juvenile court commented on the abuse finding several times during the proceedings at issue in this appeal. In one instance, it referred to the prior findings when it overruled an objection that evidence of physical abuse "assume[d] facts not in evidence." Thus, it appears that the juvenile court was aware of the findings and considered them in its decisions regarding parental fitness and the children's best interests. No party to this appeal claims that the juvenile court's consideration of the prior findings was error. Accordingly, we will not consider that issue. See 188 Ill 2d. R. 341(e)(7)("Points not argued are waived ***"). In any event, respondent offers no authority to support her motion and does not explain how our consideration of evidence to which she previously stipulated prejudices her. See People v. Gibson, 287 Ill. App. 3d 878, 880 (1997)(As a general rule, "a defendant is precluded from attacking or otherwise contradicting any facts to which he has previously stipulated"). Thus, respondent's motion is denied.

Having resolved that issue, we turn to the merits of respondent's appeal. First, we recognize that under the Juvenile Court Act o 1987 (705 ILCS 405/1-1 et seq. (West 2000)), two steps must be followed in the involuntary termination of parental rights. In re Jeffrey S., 329 Ill. App. 3d 1096, 1101 (2002). The first step entails a finding based upon clear and convincing evidence that the parent is unfit as defined in the Adoption Act (750 ILCS 50/1(D)(West 2000)). In re Jeffrey S., 329 Ill. App. 3d at 1101. The second step requires the court to consider whether it is in the child's best interest to terminate parental rights (705 ILCS 405/2-29 (West 2000)). In re Jeffrey S., 329 Ill. App. 3d at 1101. We consider each step separately. We note, however, that in summarizing the evidence with regard to each step, we discuss the evidence regarding Ernie C. only to the extent that it is necessary to fully evaluate respondent's claims on appeal.

At the fitness hearing, Julie Dvorsky, a supervisor at Hephzibah Children's Association (Hephzibah), testified that Lisa McDonald Seghetti of the Department of Children and Family Services (DCFS) referred this case to her for the purpose of providing "an assessment for DCFS regarding the parental capacity of [respondent] and [Ernie C.] to parent to the children Amy, April and Anna." Dvorsky explained that the case came to her as a consequence of "risk to Amy, April and Anna," specifically, excessive corporal punishment. She explained that she and another Hephzibah worker met with the parents, observed parent/child visits each week, consulted with other service providers, and reviewed all documentation submitted in relation to the family. Upon making her initial assessment, Dvorsky consulted with Seghetti and recommended that each member of the family receive a psychological evaluation; the evaluations were conducted in September 1997. Respondent's evaluation recommended that she receive individual psychotherapy. She was referred to Mary and Tom Leo and Associates for individual counseling.

During the nine months following the determination of abuse, Dvorsky supervised weekly visits between the parents and the children "to observe the interactions between the parents and the children, document those interactions, [and] see how the communication was between the parents and the children." Following the court hearing at which the determination of abuse was made, Dvorsky supervised a visit between the parents and the children at Hephzibah in Oak Park. She explained that when the parents arrived, "they were very upset and angry about the court date that had happened earlier that morning." Respondent was very angry and "had to be directed not to talk about the court date that happened that morning." During the nine months following that visit, Dvorsky was present for nearly 90% of the visits between the parents and children. She described respondent's behavior during the visits:

"She would *** come into the visits angry. She would be sarcastic with the children about what they were wearing, about what was going on in the foster home. She would also interrogate the children about the foster home and try to find out if there was any abuse going on in that home."

Dvorsky admitted that it was not unusual for a parent to express concern about how her children were being treated in foster care, but that respondent spoke in a harsh way that caused the children to "shut down and not respond." Dvorsky further explained: "[Respondent] often showed very little emotion during the visits. Her affect was often flat. And the way she interacted with the children was -- it seemed very forced and mechanical. And when she was relating things to the children, it seemed *** it wasn't coming naturally."

In November 1997, visitation was suspended after the police were called because of Ernie C.'s behavior during one of the visits. The purpose of suspending the visits was to allow the parents to undergo individual psychotherapy. The visits were reinstated after approximately one month. The December 22, 1997, visit, which was the first visit after reinstatement, "generally went okay." At the January 8, 1998, visit, however, Ernie C. took the children's school identification cards. Dvorsky had to meet the parents at a restaurant to retrieve the cards because the parents did not want her to come to the home where they lived together. The parents apologized for taking the cards.

On February 28, 1998, Dvorksy supervised a visit with the family. She had been encouraging the children to express themselves during the visits, i.e., to talk about school and their activities. But the parents "did not acknowledge what the kids were trying to tell them. They were focused on things that were happening in the case." Dvorsky admitted that it was not unusual for the parents to be concerned about the case, but she had talked with respondent and Ernie C. about the need to address those issues outside the family visits. Her instruction was generally disregarded.

During an April 9, 1998, visit, which Dvorsky supervised, April expressed to her parents that she wanted to attend an "away" track meet that was scheduled on one of their visitation days. "[T]he parents got immediately upset with April and told her that she was choosing the track meet over her family." Dvorsky offered to have visitation on a different day, but the parents "said they could not visit any other day and they blamed [April] for not wanting to be a part of the family." April shut down after the comments, tears were in her eyes, and she was visibly upset. On July 9, 1998, a visit was scheduled to celebrate Amy's birthday. The parents wanted to take a walk before celebrating the birthday. The walk concerned Dvorsky because "the father walked very fast ahead of [her] and the mom kind of stayed back." Most of that visit was spent outside and was not focused on Amy's birthday. When the family returned to the office, they had only about 15 minutes to celebrate Amy's birthday.

Anna's birthday celebration was held the same month, but at her party, respondent brought cake and sang "Happy Birthday." Dvorsky noticed that Amy was often neglected during the visits, with Ernie C. devoting most of his attention to April and respondent devoting her attention to Anna. Dvorsky encouraged the parents to give more attention to Amy, but she did "[n]ot necessarily" notice any change or improvement in their interactions with Amy after her discussion with them. Also in July 1998, Dvorsky suspended weekly phone calls between the parents and children because the children's therapist reported that the calls were disruptive for them, that negative behavior often occurred around the phone calls, and that the parents were encouraging the children to call 911 and claim that they were being abused in the foster home.

Dvorsky admitted that respondent completed the recommended psychological examination, finished two recommended parenting classes, appeared at scheduled family therapy sessions, participated in individual psychotherapy and marriage counseling, and attended scheduled visits with her children. She conceded that when visits occurred without Ernie C., they generally went better than they did when he was present because, at times, Dvorsky was better able to direct respondent when Ernie C. was not present.

Dvorsky recommended the second parenting class because she had not seen any "improvements in [the parents'] visitation with the children" after the first class. After the parents completed the second class, she still did not notice any improvement in their behaviors. She opined that although respondent participated in all the recommended services, her relationship with the children did not improve during the visits. Dvorksy admitted that "approximately a month or so into *** services with the family" she had reported that " '[f]or the most part the visits go well, but often the parents need to be directed in the context of what they are saying to the children or they often try to tell the children things without the worker hearing.' " In January 1999, "the parents' behavior was very difficult to redirect and manage," and it was necessary to have three workers present at each visit.

In October 1997, Dvorsky referred the family to family counseling with Joe Kurtasi at the Center for Contextual Change. However, the counseling was terminated after only four sessions because "the family was not ready for family therapy" and the parents needed to "focus on individual therapy." In June 1998, Dvorsky made a second referral for family counseling. This time the counseling was provided by the children's therapist, Annette Jordan. During June 1998, Dvorsky was called into a session at which the children and respondent were present. There had been some sort of disruption. Dvorsky and Jordan sat with respondent to "try to de-escalate her anger and anxiety" about what had happened inside the meeting. After the occurrence, the family sessions were terminated.

Dvorsky described that between October 1, 1997, and July 1998, she saw only very minimal progress in how the parents interacted with the children during visitation. She described that the minimal progress was that at some visits the parents were not angry when they came in and they tried to engage the children. Still, Dvorsky would not have granted the parents unsupervised visits in July 1998 because she was concerned about what she had observed during visitation. "[Ernie C. and respondent] many times attempted to whisper things to the children which later *** [the children] would become upset about. The parents' interactions with the children were often very concerning as far as how they didn't respond to them ***."

Dvorsky also stated that she would not recommend in July 1998 that the children be returned to their parents' care because

"[t]he parents had not made substantial or significant progress in their services or during their visitation with the children. *** Hephzibah workers *** still had to intervene during the visits and redirect the parents' behaviors because they were saying inappropriate things to the children."

The case was transferred back to DCFS in March 1999 because Dvorsky did not feel that "the parents had the capacity to parent [the] children." Dvorsky explained that she often referred to "the parents" rather than either parent individually because during the time that she was involved with the case "[Ernie C. and respondent] insisted on working together as a couple to regain custody of their children." Accordingly, she never addressed whether one parent would alone be capable of caring for the children.

Trayci Handelman was employed by DCFS as a follow-up placement worker from August 1993 until shortly before the hearing. She began working on this case in February 1999, when she received it from Lisa McDonald Seghetti. She reviewed the case file and discovered that at the time the case was assigned to her, the parents had not complied with all the services that had been requested. On cross-examination, Handelman explained that she had offered respondent additional marriage counseling, but she could not recall when she made the referral or to what provider it was made. She testified similarly with regard to a referral for individual counseling for respondent in 1999. Handelman believed that respondent had failed to comply with services that were recommended from her psychological evaluation and with joint counseling with her husband. Handelman could not specifically identify the alleged deficiencies. Handelman observed two or three visits between the parents and children. The visits were "very stressful for the children" at times. She explained: "The children before the visits, during and after, were extremely stressed out about having to spend time with their parents. They were worried. They were anxious and they were fearful of going to these visits."

During the time she was assigned to the case, Handelman would not have recommended that the parents have unsupervised visits with their children or that the children be returned to their parents' care "[b]ecause [the parents] had failed to comply with the recommendations [and] with the evaluations. They had failed to complete services, and there was no progress towards reunification ***."

Thomas Leo, a co-director at Mary and Tom Leo and Associates where the parents received some counseling services, testified as an expert in the area of family counseling and family assessments. The case was referred to him by DCFS. Counseling began in November 1997. Leo and Linda Burke provided joint counseling to the parents. The counselors developed goals for the couple to address together because the parents were "looking to obtain custody of their children together." Some of the goals included ascertaining the parents' ability to provide a safe and secure environment for their children, addressing the issues that brought the case to DCFS, getting supervised visitation reinstated, and improving relations with the children while the children were in foster care.

Through June or July 1998, the couple was regularly in attendance at the sessions. The couple was successful in having supervised visitation reinstated within a month or two of starting counseling. Leo explained, however, that there were some difficulties with the therapy:

"[O]ne of the difficulties was their approach to the whole system or the whole events of what had happened. They conditionally felt that they were being punished, singled out unjustly in being punished or persecuted. And one of the things that they would say is well there is [sic] other people that are drug abusers worse than us. They got [sic] their kids. ***

It did not seem *** that they were able to carry out some good judgment in relationship [sic] to their daughter[s]. For example[,] the visits were reinstated, but there were different reports all the time of them saying things to the girls that were disruptive to them[,] that were bothersome to them. They would also project the problems onto *** either [the] foster parent or more frequently the Hephzibah agency and even though we tried to explain to them that the foster parent *** didn't come and take their kids. This lady is just doing the job that she has been assigned to do.

Another difficulty we did eventually have a joint meeting with them and the foster parents that seemed to go fairly well at Hephzibah. But [in] a week or so they were making complaints again about small things regarding stuff in the foster home that really didn't have to do with them relating to their children." Additionally, respondent failed to take any responsibility for the children being in foster care:

"Respondent did not seem to be able to get into that at all ***. [S]he never seemed to be able to see that she had to do something more than ...

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