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In re Gwynne P.

February 24, 2004

[5] IN RE GWYNNE P., A MINOR,
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
DETRA W. AND EDWARD D., RESPONDENTS-APPELLANTS).



[6] Appeal from the Circuit Court of Cook County. Honorable Gregory M. O'Brien, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice Wolfson

[8]  Sometimes there is just too much history. Detra W. made substantial progress toward correcting her life as she sought to regain custody of her child, Gwynne P., but she could not overcome the prison terms that prevented her from discharging her parental responsibilities.

[9]  Following a hearing, the circuit court found respondents Edward D. and Detra W. were unfit parents to their daughter Gwynne P. At a subsequent hearing, the court determined it was in the best interests of the child to terminate respondents' parental rights and to appoint a guardian with the right to consent to adoption.

[10]   Respondents contend the trial court's findings regarding unfitness and the child's best interests were against the manifest weight of the evidence and that the court erred when it prematurely changed the permanency goal to termination of parental rights five months after the adjudication of neglect. Edward D. also contends the trial court erred in admitting opinion testimony during the best interests portion of the hearing. We affirm.

[11]   FACTS

[12]   Gwynne P. was born on June 18, 1999, and tested positive for exposure to cocaine and heroin.

[13]   Detra W. and Edward D. are Gwynne P.'s biological parents. In March 1998, Detra W. escaped from custody by breaking her electronic monitoring device. On June 15, 1999, she was arrested for possession of a controlled substance three days before Gwynne P. was born. On August 11, 1999, Detra W. returned to prison and was placed in disciplinary segregation for one year. She was released from prison in March 2002.

[14]   Edward D. was incarcerated on September 3, 1999, and was released in December 2002.

[15]   On December 7, 1999, Gwynne P. was adjudicated a ward of the court and placed under the guardianship of the Department of Children and Family Services (DCFS) based on findings of abuse, neglect, and dependency. Five months later, the court changed the permanency goal to "substitute care pending court determination on termination of parental rights."

[16]   On January 30, 2001, the State petitioned for termination of parental rights and appointment of a guardian with the right to consent to adoption. The State later amended its petition to include additional grounds for termination of parental rights. As grounds for termination, the State alleged respondents were unfit parents because they failed to maintain a reasonable degree of concern, interest, or responsibility as to the child's welfare; they behaved in a depraved manner; they failed to make reasonable efforts to correct the conditions which were the basis for the removal of the child from them; they failed to make reasonable progress toward the return of the child within nine months after the adjudication of neglect; and they were repeatedly incarcerated as a result of criminal convictions, preventing them from discharging their parental responsibilities in violation of subsections 50/1(D)(b),(i),(m), and (s) of the Adoption Act (Act) and section 2-29 of the Juvenile Court Act. 750 ILCS 50/1(D)(b),(i),(m),(s) (West 2000); 705 ILCS 405/2-29 (West 2000).

[17]   In March 2003, after conducting a fitness hearing the previous December, the trial court found both respondents unfit on four statutory grounds: failure to maintain a reasonable degree of interest, failure to make reasonable efforts or reasonable progress, repeated incarceration, and depravity. See (750 ILCS 50/1(D)(b),(m),(s), (i) (West 2002).

[18]   After conducting a separate hearing, the court found it was in Gwynne P.'s best interests to terminate respondents' parental rights and appointed the DCFS guardianship administrator with the right to consent to adoption.

[19]   DECISION

[20]   I. Standard of Review

[21]   The State must prove by clear and convincing evidence respondents are unfit parents. In re D.F., 201 Ill. 2d 476, 494-95, 777 N.E.2d 930 (2002). A trial court's finding of unfitness is afforded great deference because it has the best opportunity to view and evaluate the parties and their testimony; the trial court's finding will not be disturbed on appeal unless it is against the manifest weight of the evidence. In re D.F., 201 Ill. 2d at 498-99. A decision is against the manifest weight of the evidence where the opposite result is clearly evident from the record. In re D.F., 201 Ill 2d. at 498.

[22]   II. Statutory grounds for unfitness

[23]   Respondents contend the trial court's findings of unfitness based on the four statutory grounds were against the manifest weight of the evidence. A finding of unfitness will stand if supported by any one of the statutory grounds set forth in section 1(D) of the Act. In re D.D., 196 Ill. 2d 405, 422, 752 N.E.2d 1112 (2001); 750 ILCS 50/1(D) (West 2002). We examine each statutory ground as it applies to each respondent.

[24]  
A. Failure to maintain a reasonable degree of concern, interest, or responsibility.

[25]   The Adoption Act provides that a court may find a parent unfit if the parent fails to maintain reasonable concern, interest, or responsibility for the welfare of a child. 750 ILCS 50/1(D)(b) (West 2002).

[26]  
"[I]n determining whether a parent showed reasonable concern, interest or responsibility as to a child's welfare, we have to examine the parent's conduct concerning the child in the context of the circumstances in which that conduct occurred. Circumstances that warrant consideration when deciding whether a parent's failure to personally visit his or her child establishes a lack of reasonable interest, concern or responsibility as to the child's welfare include the parent's difficulty in obtaining transportation to the child's residence, the parent's poverty, the actions and statements of others that hinder or discourage visitation, and whether the parent's failure to visit the child was motivated by a need to cope with other aspects of his or her life or by true indifference to, and lack of concern for, the child." [Citations omitted.] In re Adoption of Syck, 138 Ill. 2d 255, 278-79, 562 N.E.2d 174 (1990).

[27]   If visitation is impractical, the parent can show reasonable concern, interest, and responsibility in a child through letters, telephone calls, and gifts, depending on the frequency and tone of those communications. In re Adoption of Syck, 138 Ill. 2d at 279. Completion of service plan objectives also can be considered evidence of a parent's concern, interest, and responsibility. See In re T.Y. & T.Y., 334 Ill. App. 3d 894, 906, 778 N.E.2d 1212 (2002) (court considered parent's failure to complete services when finding him unfit under section 1(D)(b)). Courts will consider the parent's efforts which show interest in the child's well-being, regardless of whether those efforts were successful. In re Adoption of Syck, 138 Ill. 2d at 279.

[28]   1. Detra W.

[29]   Jamie Steczo, a social worker from Lutheran Social Services (the agency), testified she was assigned to Gwynne P.'s case from July 1999 until June 1, 2000. During that time, Detra W. was being held in segregation at Dwight Correctional Center because she had broken her electronic monitoring device.

[30]   From December 7, 1999 to June 1, 2000, Detra W.'s service plan required the following services: parenting classes, substance abuse assessment and treatment, psychological evaluation, and counseling. Some of the services were not available to Detra W. while she was in segregation. According to Steczo, Detra W. placed her name on the waiting list for those services, but she did not complete any services before June 1, 2000.

[31]   Detra W. was required by the service plan to request visits with Gwynne P. by telephone or mail. The agency planned to schedule quarterly one-hour visits with Gwynne P. At the hearing, Steczo identified letters from Detra W. requesting visits with Gwynne P. Steczo scheduled a visit in November 1999 and another in March 2000.

[32]   Molly Ashbaugh was assigned Gwynne P.'s case beginning September 1, 2000, until March 2002. During that time, Detra W. had three visits with Gwynne P. Ashbaugh testified two visits were not scheduled because Detra W. did not request them. Detra W. completed a series of parenting classes on September 14, 2000, after she was released from segregation. Detra W. began substance abuse classes in March 2001, and finished the program in September 2001. Detra W. was referred for a psychological evaluation while in segregation, and Detra W. told Ashbaugh she had completed the evaluation; however, Detra's case manager at the prison had no record of the evaluation.

[33]   On cross-examination, Ashbaugh testified she could not explain why Detra W. was allowed only two visits with her child despite Detra's several requests for Ashbaugh to schedule visits. Ashbaugh said Detra W. acted appropriately with Gwynne P. during her visits, tried to engage her, and acted affectionately. Detra W. frequently asked for pictures of Gwynne P. and was interested in the quality of care Gwynne P. was receiving. After Detra W. was released from prison in March 2002, she visited with Gwynne P. on a monthly basis.

[34]   At the hearing, Detra W. introduced evidence of 10 letters and 3 telephone calls requesting visits with Gwynne P. during Detra's incarceration. In total, Detra W. was entitled to 11 visits with Gwynne P. during that time. Leslie Berg, a supervisor at the agency, was unable to explain why Detra W. received only five visits with Gwynne P. despite her requests.

[35]   Detra W. also introduced several cards and letters she sent to Gwynne P. expressing her love and desire to see her. Detra W. also sent Gwynne P. a book and a tape of Detra reading the book. After Detra W.'s release from prison, she gave Gwynne P. a series of small gifts.

[36]   Detra W. also voluntarily completed a drug treatment program at Haymarket after her release from prison. Detra W. testified she did miss some of the sessions because she was visiting Gwynne P. or interviewing for jobs. Detra W. later completed the missed sessions and graduated from the program. She was subsequently hired by Haymarket as a "detox specialist."

[37]   The State and public guardian contend Detra W. failed to maintain reasonable concern, interest, and responsibility for Gwynne P. because "she escaped from prison while pregnant with Gwynne, used drugs, got arrested again, and was returned to prison and held in segregation." They also contend Detra W. did not show interest in Gwynne P. because of the sporadic visitation during her incarceration, although they acknowledge the evidence suggested some of the missed visits were due to the agency's failures. The State also contends Detra W.'s cards and letters were insufficient.

[38]   First, although the State and public guardian repeatedly contend otherwise, the record shows Detra W. escaped from electronic detention in March 1998, 18 months before Gwynne P.'s birth -- she was not pregnant at the time of her escape. Second, we are not convinced any of these facts establish clear and convincing evidence Detra W. failed to show reasonable concern, interest, or responsibility toward Gwynne P. before termination of her parental rights.

[39]   While we agree Detra W.'s incarceration did not absolve her of the duty to show reasonable concern, interest, or responsibility (see In re Sheltanya S., 309 Ill. App. 3d 941, 954, 723 N.E.2d 744 (1999)), we must consider her circumstances when measuring the reasonableness of her efforts. We look at her efforts to schedule visits, not the number of scheduled visits. We must also consider the limitations of Detra W.'s incarceration when considering whether her efforts with Gwynne P. showed reasonable interest or concern.

[40]   In In re F.S., 322 Ill. App. 3d 486, 493-98, 749 N.E.2d 1033 (2001), the trial court terminated the respondent's parental rights for failure to maintain reasonable concern, interest, and responsibility for her child's welfare. The trial court found the respondent missed several scheduled visits with her child and failed to directly comply with objectives in her service plan by using programs other than those DCFS recommended. On appeal, this court reversed the trial court's finding of unfitness. The court said the missed visits were not clear and convincing evidence of a lack of concern for the child under the circumstances. In re F.S., 322 Ill. App. 3d at 497. At the time of the missed visits, the respondent was participating in a restrictive drug treatment program which helped her overcome her addiction -- the reason the child was removed from her custody. The respondent also completed parenting skills classes and was drug-free within six months of the adjudication of neglect. The court found the respondent substantially fulfilled her obligations under the service plan, and the trial court's finding was against the manifest weight of the evidence. In re F.S., 322 Ill. App. 3d at 498.

[41]   In this case, Detra W. remained drug-free in the nine months between her release from prison and the unfitness hearing. Detra W. voluntarily enrolled in substance abuse treatment at Haymarket in addition to the classes she completed while incarcerated and regularly requested visits with Gwynne P. She also met the goals and objectives listed in her service plans. Based on the record, we find no clear and convincing evidence that Detra W. failed to show reasonable concern, interest, or responsibility toward ...


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