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In re K.H.

February 20, 2004

[5] IN RE K.H., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE
v.
TABITHA H., RESPONDENT-APPELLANT).



[6] Appeal from the Circuit Court of Lake County. No. 02-JA-93 Honorable Valerie Boettle Ceckowski, Judge, Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'malley

[8]  Respondent, Tabitha H., appeals the orders of the circuit court of Lake County, finding her an unfit parent pursuant to sections 1(D)(g), 1(D)(m)(i), and 1(D)(m)(iii) of the Adoption Act (750 ILCS 50/1(D)(g), (D)(m)(i), (D)(m)(iii) (West 2002)), and terminating her parental rights with respect to her daughter, K.H. Respondent contends that the trial court's orders were against the manifest weight of the evidence. We affirm.

[9]  On April 2, 2002, the State filed a petition to terminate respondent's parental rights, alleging that she was unfit to parent her child. Specifically, the State alleged that respondent failed to protect K.H. from injurious conditions, failed to make reasonable efforts to correct the conditions that were the basis for the original removal of K.H., and failed to make reasonable progress toward the return of K.H., within both the initial nine-month period following the adjudication of neglect and any nine-month period thereafter. A bench trial ensued.

[10]   Department of Children and Family Services (DCFS) reports that were admitted into evidence at trial explained the history of K.H.'s case. K.H. was born on December 15, 1997. The first incident involving domestic violence occurred in January 1999 when respondent's paramour, Edward Golden, bit K.H. on the cheek, causing a bruise. Respondent was "indicated" as a result of this incident. On April 11, 1999, K.H. sustained a fractured leg, again at the hands of Golden. K.H. received no medical treatment for this injury until six days later when respondent finally took her to a hospital. At the hospital, respondent offered conflicting explanations for K.H.'s injury but finally admitted that it was inflicted by Golden. Respondent was asked to have Golden leave her home. Respondent refused and made a care plan for K.H. to reside with respondent's sister. Golden was arrested for domestic battery for a separate incident where respondent was the victim. On June 14, 1999, a court ordered that Golden have no contact with either respondent or K.H. Following Golden's incarceration, K.H. was returned to respondent. K.H. was adjudicated neglected on October 7, 1999. After his release from jail, Golden was found living with respondent and K.H. On December 10, 1999, the court granted the State's emergency motion to change placement. The court placed K.H. with her maternal grandparents. On October 19, 2000, respondent gave birth to a son, of whom Golden was the father.

[11]   Cynthia Peterson, a caseworker with Central Baptist Family Services, testified at trial. She stated that she became involved with respondent's case in July 2000. In July 2000, Peterson met with respondent to discuss the objectives and tasks of respondent's service plan. Respondent was given an overall satisfactory evaluation for each objective and most of her assigned tasks. On December 19, 2000, K.H. was returned to respondent.

[12]   Three weeks later, on January 9, 2001, when Peterson arrived at respondent's home to take K.H. to daycare, she observed a "very large hand print" on the child's face. Peterson described the mark as "a perfect hand print on her cheek." Peterson asked respondent what had happened. Respondent replied that she had returned home from work late the night before and had not noticed the mark on K.H.'s face until the next morning when she got up. Respondent stated that she asked Golden, with whom she was once again cohabitating, what had happened and he replied that he had been "slap boxing" with K.H. while respondent was at work. Peterson testified that respondent defended Golden and "tried to rationalize that they had been playing." Respondent and her children were placed in a shelter until Golden was arrested and incarcerated. After that, they were allowed to return home.

[13]   On February 2, 2001, respondent's progress on her service plan was again evaluated. The goal was for K.H. to remain at home with respondent. On respondent's objective of improving her parenting skills, she was given an overall evaluation of satisfactory. On respondent's objectives of addressing domestic violence, cooperating with services, and securing stable housing, she was given overall evaluations of unsatisfactory. Respondent had discontinued her domestic violence counseling, was unable to pay her rent and utilities, was not working, and had allowed unapproved persons to watch her children.

[14]   On July 5, 2001, respondent and her children were evicted from their home for failing to pay rent. Respondent arranged for K.H. to live with respondent's parents and for her son to live with Golden's parents. On August 15, 2001, Peterson again evaluated respondent, establishing a single objective for respondent of providing for the safety of her children via a number of assigned tasks. Peterson also evaluated respondent on the objectives of the earlier plan. Respondent was given an overall evaluation of unsatisfactory because she had been evicted from her apartment and did not have a place to live. Peterson also pointed out that the service plan for that period mandated that respondent continue to cooperate with the service plan that was created on December 14, 2000. One of respondent's tasks outlined in that service plan was to "actively participate" in domestic violence counseling. Peterson testified that respondent discontinued domestic violence counseling in January 2001 and had not resumed it by August 2001.

[15]   Peterson testified on cross-examination that respondent regularly visited K.H. while K.H. was living with her grandmother. Also, respondent maintained regular contact with Peterson while Peterson was assigned to respondent's case. Peterson testified that respondent had cooperated fully in the investigation and resolution of the January 8 domestic violence incident. Peterson testified that she was taken off respondent's case because her one-year assignment to the case had expired.

[16]   Marcia Staggs testified that, like Peterson, she was a caseworker for Central Baptist Family Services. On October 22, 2001, respondent's case was transferred to Staggs. Staggs' testimony, along with documentary evidence that was introduced at trial, described proceedings that took place on September 26, 2001, one month prior to Staggs' assignment to the case. Following a hearing conducted on September 26, 2001, the court removed K.H. from the custody of respondent and placed her with her maternal grandparents. Prior to that date, K.H. had resided with her maternal grandparents under a voluntary arrangement with respondent. A permanency order entered on the same date as the custody order provided that respondent was not allowed to remove K.H. from the custody of the grandparents. The same permanency order changed K.H.'s permanency goal from return home to private or subsidized guardianship. A transcript of the permanency hearing is not included in the record on appeal, but Staggs testified that her understanding of the reason for these changes was that Golden was about to be released from prison and respondent had made a statement that she intended to return to him.

[17]   Staggs also testified about respondent's progress in overcoming her problems with domestic violence. Staggs stated that, at the time that she took over the case on October 22, 2001, respondent had not participated in any domestic violence counseling since January 2001. Staggs prepared a new service plan and, in November, met with respondent. On December 10, 2001, Staggs evaluated respondent's performance. Respondent was given an unsatisfactory evaluation on each of the four objectives that she was assigned. Respondent was rated unsatisfactory on addressing domestic violence issues because, at the time of the evaluation, respondent still had not participated in any domestic violence counseling. Respondent also was rated unsatisfactory on parenting because she had not attended parenting classes as she had been directed. Further, respondent was rated unsatisfactory on the objective of attending mental health counseling because she had attended no mental health counseling. Respondent's progress also was rated unsatisfactory on the tasks of maintaining a job for at least six months, obtaining housing after paying a $3,000 debt, visiting K.H. weekly, developing a budget, and choosing her children over her paramours. Finally, respondent did not attend staff meetings, administrative case reviews, or court hearings. Staggs testified that, overall, respondent was very uninvolved with the case. As an example, Staggs cited the fact that respondent had called her only once during the 90-day review period, and that was to discuss her other child. Staggs also pointed out that no service plan tasks had been completed during the 90-day period.

[18]   For a period of approximately six weeks, from late December 2001 to early February 2002, respondent resided at A Safe Place, a domestic violence shelter. While respondent lived at the shelter, she received services related to various topics, including domestic violence, and she consistently visited K.H. The services that respondent received were mandatory if she was to reside at the shelter. Against Staggs' advice, respondent left the shelter three days before she was scheduled to be discharged, in order to move in with a 45-year-old paramour. Staggs recommended that respondent, instead, move in with a female friend, move to a halfway house, or find some other arrangement that did not involve a paramour. Staggs testified that she believed that the biggest issue in the case was respondent's tendency to gravitate toward abusive men and that this tendency prevented respondent from gaining independence and learning to take care of both herself and her children.

[19]   On March 7, 2002, another evaluation, covering the period since October 27, 2001, was conducted. Respondent received an unsatisfactory evaluation on three of the objectives--maintaining a domestic-violence-free lifestyle, demonstrating appropriate parenting skills, and addressing her mental health issues. Respondent received a satisfactory evaluation for her cooperation with services. Staggs was asked why respondent was rated unsatisfactory on complying with her domestic violence tasks when she had received services for six weeks while residing at A Safe Place. Staggs made clear that the reason for the unsatisfactory evaluation was that, although respondent was cooperative and received "some services" while at A Safe Place, she participated in no services for the remainder of the evaluation period.

[20]   During the period covered by the March 7, 2002, evaluation, K.H. was moved to a non-relative foster home from her maternal grandparent's house, because the grandmother was no longer able to care for K.H. On January 25, 2002, K.H. was placed in the foster home where she has resided since.

[21]   Respondent was evaluated again on September 4, 2002. (Respondent objected to this evidence and the trial court ruled that it would consider the evidence to the extent that it related to the time before the State filed its petition for termination of respondent's parental rights on April 2, 2002.) Once again, respondent received an unsatisfactory evaluation on all of her assigned objectives. Respondent had not regularly attended domestic violence counseling, parenting classes, or mental health counseling. During this period, respondent did have a good record of visiting with K.H., but, on one occasion, respondent brought a paramour with her and introduced him to K.H. as "her new daddy."

[22]   Respondent testified that she was 25 years of age and had resided in an apartment in Waukegan since February 2002. She had obtained a job as a care manager at Sunrise Assisted Living in Gurnee. Respondent testified that, at the time of the trial, she had been working at Sunrise Assisted Living for about three months and believed that it would be a long-term job because she enjoyed the work, was able to work a sufficient number of hours, and was comfortable there. While respondent held a number of jobs during the pendency of this case, most were for short periods of time. Her longest period of employment was from 1998 to January 2001 at a nursing home in Zion.

[23]   Respondent testified that K.H. lived with her for about 2½ to 3 years of the child's life and that the only times they have not resided together were when the trial court originally removed the minor and since July 2001, when K.H. was voluntarily placed with respondent's parents. Respondent testified that she and K.H. had developed a bond. When respondent visited K.H. during the period that K.H. was not living with respondent, they played together at the park, played games, colored, read stories, and engaged in other activities. Respondent explained that she missed visitation only when she had transportation difficulties or when she and her mother were having disagreements, so as to spare K.H. from observing those conflicts.

[24]   Respondent testified that she attended various domestic violence and parenting groups. She attended various programs at A Safe Place from December 1999 until February 2002. Respondent also testified that she had three caseworkers and always had regular and consistent contact with the first two, Wells and Peterson. Respondent initially thought that she needed to contact Staggs only every other week, but recently contacted Staggs every week.

[25]   Respondent also explained the January 8, 2001, incident where Golden slapped K.H. Respondent testified that she noticed a mark on K.H.'s face when she returned home from work that night and questioned Golden about it. Respondent also testified that, when Peterson arrived the next morning, she told Peterson about the incident and was very open. Respondent believed that she cooperated with Peterson. She also stated that she chose K.H. over Golden by going to a shelter. Respondent testified that she wanted K.H. returned to her. She stated that, because of her current job, she felt better able to support herself and K.H.

[26]   Respondent noted that she became delinquent on her rent and was evicted in July 2001. At that time, she voluntarily placed K.H. with K.H.'s maternal grandparents. Respondent had been working at the nursing home in Zion until January 2001 but took a leave of absence because she did not have a babysitter for her children. Until January 2001, respondent paid her rent on time. Respondent also testified that she has not allowed Golden to have any contact with K.H. since early 2001.

[27]   On cross-examination, respondent testified that K.H. was adjudicated neglected because Golden injured her in 1999. Respondent admitted that, when the injury occurred, she attempted to cover for Golden because she did not want to get him into trouble. Respondent acknowledged that, at the time of trial, she had not yet successfully completed domestic violence counseling or obtained a new psychological evaluation. She also admitted that she had stopped attending parenting groups. Respondent testified that she had not obtained an order of protection against Golden and had visited him in jail on more than one occasion.

[28]   Ann Wells, who was called by respondent, was respondent's caseworker prior to Peterson and Staggs. Wells testified that she was a child welfare specialist employed with DCFS. In 2000, she was assigned to respondent's case and prepared a service plan on which she evaluated respondent in May 2000. Wells assigned respondent six objectives, which were to maintain a suitable home, obtain a psychological evaluation, cooperate with DCFS, address her domestic violence issues, complete a parenting class, and maintain visitation with K.H. Wells evaluated respondent as satisfactory on all but the parenting class objective, as the class schedule conflicted with respondent's work schedule and she was unable to attend regularly. Wells testified that she believed that respondent did a good job of parenting K.H. and was absorbing and using the information she got from the parenting classes that she did attend.

[29]   On cross-examination, Wells testified about respondent's ongoing issues with domestic violence. She testified that, in March 2000, Golden struck respondent in the face, causing an injury to respondent's lip. To Wells' knowledge, respondent did not contact the police regarding this incident. Wells related that she had numerous conversations with respondent about domestic violence and believed that respondent did not contact the police out of fear and a desire to protect Golden. During the period that Wells was assigned to the case, she observed respondent become less consistent in obtaining domestic violence counseling.

[30]   Following argument, the trial court found that respondent was an unfit parent. The trial court specifically noted that respondent "cares about her child," "has a relationship with her child," and "loves her child." The court also noted that visitations went well and that K.H. loved to see respondent and enjoyed the visits. The court determined, however, that respondent had not adequately addressed the issue of domestic violence.

[31]   The court noted that, in 1999, K.H. had been adjudicated neglected because respondent had not taken her for medical treatment for her fractured leg for several days. The court observed that respondent repeatedly put the interests of her paramours before the interests of her daughter and exhibited "an overall lack of progress" and "an overall inability to care for the minor and ensure her safety." The court held that the State met its burden of proving by clear and convincing evidence that respondent was unable to protect K.H. from conditions in her environment that were injurious to her welfare, had not made reasonable efforts to correct the conditions that were the basis for the removal of the child, and had not made reasonable progress toward the return of the child in any nine-month period after the end of the initial nine-month period following the adjudication of neglect.

[32]   The case proceeded to the best interests hearing. Staggs was the only witness who testified at this stage of the proceedings.

[33]   Staggs testified that respondent had a dependent personality disorder and placed others first in her life, which put K.H. in jeopardy. Staggs observed that, at the last visitation between respondent and K.H. for which Staggs was present, respondent brought a paramour with her.

[34]   Staggs testified that, since January 25, 2002, when K.H. was placed in her current foster home, she has spoken increasingly less of her mother. K.H. refers to the foster home as her home and calls the foster parents "Mommy" and "Daddy." The foster parents are ready, willing, and able to adopt K.H. The foster parents speak positively about respondent, and have facilitated contact between K.H. and her biological relatives. K.H. has expressed a desire to stay with the foster parents and take their last name as her own. K.H. has told respondent how much the foster parents love her. The foster parents love K.H. unconditionally and are thrilled to have her in their home.

[35]   Staggs related an incident where, after completing a home visit at the foster home, she transported K.H. to day care. Staggs did not take the normal route that the foster parents took to the day care center, and K.H. became very upset and began to cry. Staggs explained that she realized that K.H. must have thought that she was being taken to a new placement and would not see her foster parents again. Only when Staggs drove into familiar surroundings was she able to reassure K.H. that she was being taken to day care.

[36]   Staggs testified that stability and permanency were the most important factors in K.H.'s life. If respondent's parental rights were not terminated, then K.H. would have no permanency, would remain insecure, and would experience other negative emotional and psychological effects. The court granted respondent's request to consider her testimony from the fitness hearing regarding her visitation and bonding with K.H.

[37]   The trial court ruled that it was in K.H.'s best interests to terminate respondent's parental rights. The court acknowledged that there was a bond between respondent and K.H., but observed that it would not be in K.H.'s best interests to keep K.H. in legal limbo while respondent continued to attempt to work toward K.H.'s return. The court also noted that, in her last visit with K.H., respondent had brought along "another paramour," and it commented on the inappropriateness of that action. The court concluded that this behavior did not show that respondent did not love her daughter, but it illustrated that respondent was unable to care for her at that time and at any time in the near future. The court noted that K.H. was flourishing in her current foster placement, which was very good for her, especially her emotional well-being. The court terminated respondent's parental rights and denied respondent's motion to reconsider. Respondent timely appeals. On appeal, respondent contends that both the trial court's unfitness finding and its determination of K.H.'s best interests were against the manifest weight of the evidence.

[38]   Respondent first argues that the trial court's unfitness finding was against the manifest weight of the evidence. Because termination of parental rights permanently and completely severs the parent-child relationship, a finding of parental unfitness must be based on clear and convincing evidence. In re C.N., 196 Ill. 2d 181, 208 (2001). That said, we will reverse the trial court's determination of unfitness only if it was against the manifest weight of the evidence. C.N., 196 Ill. 2d at 208. A finding is against the manifest weight of the evidence where the opposite conclusion is clearly evident. C.N., 196 Ill. 2d at 208.

[39]   One of the specific bases on which the trial court found respondent unfit was that she failed to make reasonable progress toward the goal of returning K.H. home in a nine-month period after the initial nine-month period that followed the adjudication of neglect (750 ILCS 50/1(D)(m)(iii) (West 2002)). Respondent argues that this holding is against the manifest weight of the evidence. Our supreme court has held that "the benchmark for measuring a parent's 'progress toward the return of the child' under section 1(D)(m) of the Adoption Act encompasses the parent's compliance with the service plans and the court's directives, in light of the condition which gave rise to the removal of the child, and in light of other conditions which later become known and which would prevent the court from returning custody of the child to the parent." C.N., 196 Ill. 2d at 216-17. Based on this rule, our view is that, in the instant case, the most relevant measure of respondent's progress toward the goal of returning K.H. to respondent is respondent's advancement on issues related to domestic violence, because K.H.'s exposure to domestic violence was the primary reason that she was adjudicated neglected and the primary concern of her caseworkers who testified at trial. We hold that the trial court's ruling was not against the manifest weight of the evidence. In particular, we find that there was sufficient basis in the record for the trial court to conclude that respondent failed to make reasonable progress in addressing her tendency to expose her daughter to domestic violence.

[40]   In attempting to show that she made reasonable progress, respondent points to the satisfactory evaluations of her progress made by her caseworkers between the adjudication of neglect on October 7, 1999, and February 2001. Respondent attributes the poor evaluations she received thereafter to the fact that Staggs, her new caseworker, decided that returning K.H. to respondent's custody was no longer an appropriate goal. Respondent also emphasizes that she continues to address her issues through counseling at A Safe Place and is working to get her daughter back. Respondent argues that she now has stable employment and is able to support herself and K.H.

[41]   It is true that respondent initially made some advances. In fact, based on this progress, K.H. was returned to respondent in December 2000. However, three weeks later a new incident of domestic violence occurred in which K.H. was slapped in the face , sustaining a handprint-shaped bruise. As the case progressed, respondent's progress slowed. Specifically, respondent failed to complete her ...


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