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In re Jaron Z.

May 07, 2004


Appeal from the Circuit Court of Cook County. Nos. 96 JA 02400 & 96 JA 02401. The Honorable Stephen Y. Brodhay, Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith


Respondent Lynette H. F. (respondent) appeals from two companion orders finding her to be an unfit parent and terminating her parental rights to two of her minor children, Jaron Z. (Jaron) and Raven H. (Raven).*fn1 On appeal, respondent makes several contentions asserting error by the trial court. The State and the children's public guardian have filed appellees' briefs. For the following reasons, we affirm.


Jaron was born prematurely to respondent in August 1993, with several medical problems. At birth, Jaron required a tracheotomy tube and a breathing monitor. He was nonverbal until the age of four and has been diagnosed with mild cerebral palsy. He is currently labeled a "special needs child," has behavioral problems including attention deficit hyperactivity disorder (ADHD), and participates in several different therapy and special education programs. Raven was born to respondent drug-exposed in July 1995. Raven too has been labeled a "special needs child": she has severe cerebral palsy, is nonverbal, is not toilet-trained and requires occupational, physical, speech and developmental therapies.

Respondent's family was first brought to the attention of the Department of Children and Family Services (DCFS) when Raven was born. At that time, both Raven and respondent tested positive for a controlled substance. DCFS allowed Jaron and Raven to remain with respondent, but put a family service plan in place requiring that respondent participate in an inpatient drug treatment program. Respondent refused to comply and later overdosed on a controlled substance and was hospitalized. Jaron (then 3" years old) and Raven (then 10 months old) were placed in foster care. In May 1996, the State filed petitions for adjudication of wardship and motions for temporary custody, based on Jaron and Raven's injurious environment and risk for physical injury. The trial court entered a temporary custody hearing order, finding probable cause that Jaron and Raven were neglected as well as the "urgent and immediate" need to remove them from respondent's care. DCFS placed the children with relatives.

The trial court held a formal adjudicatory hearing on October 21, 1996, and entered an adjudication order with respect to both children. In that order, the court found that Raven had been born drug-exposed and that both children were neglected and living in an injurious environment while in respondent's custody. On January 6, 1997, the court entered a disposition order finding respondent unable to care for Jaron and Raven and her attempts at reunification to have been unsuccessful. The court declared the children wards of the court, terminated temporary custody and appointed DCFS as the children's guardian. Because Jaron and Raven's relatives could no longer care for them, the children were separated and moved into treatment foster homes to assist with their special needs.

In May 1997, respondent entered an 18-month intensive inpatient and outpatient drug treatment program, as originally recommended by DCFS. She was also entitled to weekly visits with Jaron and Raven, but did not attend these visits consistently for some time. In January 1998, the trial court entered a permanency order, with a goal of "return home" of the children to respondent within 12 months, as she had made "substantial progress" through treatment. In the following months, respondent obtained unsupervised and overnight visitation with the children; Raven was returned home in October 1999 and Jaron was returned home in December 1999, with the court finding respondent "fit, able, and willing to care" for them. However, the court instituted orders of protection with each return, requiring respondent to refrain from drug use, submit to random drug screens and attend counseling.

At this time, respondent's household was composed of three children (Jaron, Raven and her other minor daughter) and Byron Freeman (the father of the minor daughter). Respondent married Freeman in February 2000 and was the children's primary caretaker. In-home and out-of-home services were provided by several agencies to assist respondent. On March 15, 2000, respondent relapsed and violated the terms of Jaron and Raven's orders of protection by using cocaine.*fn2 Respondent admitted her relapse to DCFS during a subsequent interview. The trial court found that respondent had violated the orders of protection, but determined that because Freeman was in the home, the children were not in imminent danger and, thus, should not be immediately removed. A plan was implemented requiring respondent to again remain drug free, submit to drug screens, and attend weekly Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings, as well as counseling and therapy.

In the following weeks, respondent failed to attend two drug screens and tested positive for cocaine during a third. On May 31, 2000, the trial court ordered another drug screen for respondent, which also tested positive. On this date, the trial court vacated the previous orders of protection for Jaron and Raven because respondent had violated them, found probable cause that these children were neglected, and determined that there was an immediate urgency and need to remove them from her care. Jaron and Raven were again placed in their non-relative treatment foster homes, and eventually, on November 2, 2000, the court entered a modified disposition order finding respondent unable to care for them and her reunification attempts unsuccessful. The court terminated temporary custody and placed the children in DCFS guardianship. Respondent was ordered to participate in a psychological assessment, complete both intensive and multiweek inpatient and then outpatient drug treatment programs, attend NA/AA and therapy meetings, and submit to random drug screens.

Between June and October 2000, respondent split from her husband and became homeless. She did not have consistent contact with her caseworkers and did not participate in any of the ordered programs, except for the psychological assessment, which determined that she was in need of intensive inpatient drug treatment. In June 2000, she failed to attend two drug screens and tested positive for cocaine at a third. In July 2000, she again tested positive, and entered a three-day detoxification program. After completing that program, she did not participate in her aftercare regimen and tested positive a few days later. She missed another drug screen in August 2000, entered a second detoxification program (lasting two days) in mid-September 2000, and tested positive again after completing it. She failed to participate in the program's aftercare. In October 2000, she tested positive. She entered a third detoxification program, which was to last seven days. Respondent missed two days, did not complete her aftercare, and again tested positive after being discharged. She also declined an opening with a different treatment program and admitted to being an "active" drug abuser through October 2000.

In late October 2000, respondent left her neighborhood, obtained a seasonal job, and went to live at a women's shelter where she became a house manager. In January 2001, she enrolled in an intensive outpatient therapy program, which met five times a week. Respondent was scheduled to finish this program in March 2001. She failed to attend two days in January 2001, ten days in February 2001 and three of the first nine days in March 2001. Respondent was placed "on contract" (i.e., supervision) and was told she would be dropped from the program if her absenteeism continued. At this point, respondent began attending meetings and completed the program in April 2001. As part of her aftercare, respondent was ordered to attend 90 NA/AA meetings in 90 days. Respondent failed to do so.

In June 2001, respondent moved back in with her husband and their minor daughter. The trial court entered a permanency order, finding that respondent had not made substantial progress toward the return home of Jaron and Raven, and had only started "in earnest" to comply with previously ordered requirements in March 2001. In October 2001, the State sought appointment of guardianship with consent to adoption, asking the trial court to find respondent unfit and to terminate her parental rights. The State premised its allegations under sections 1(D)(b), (D)(k) and (D)(m) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(k), (D)(m) (West 2002)), asserting that respondent failed to maintain a reasonable degree of interest, concern or responsibility as to Jaron and Raven's welfare; failed to make reasonable efforts to correct the conditions that were the basis of their removal within nine months after the adjudicatory hearing or within any nine-month period thereafter; failed to make reasonable progress toward return of the children within nine months after the adjudicatory hearing or within any nine-month period thereafter; and had been addicted to drugs for at least one year immediately prior to commencement of these proceedings. Respondent filed a demand for particulars, asking that the State identify the "exact dates" for the alleged nine-month period in which she failed to make reasonable efforts to correct the conditions or reasonable progress toward return home of the children. The State moved to strike the demand and the trial court agreed.

The trial court held a fitness hearing in October 2002. Three witnesses testified for the State.*fn3 Meg O'Rourke testified that she was the social worker in charge of Jaron and Raven's case from June 1999 to June 2000, and then became the supervisor of the social worker assigned to the case from June 2000 to August 2001. She stated that after the children were first brought to the attention of social workers, respondent was ordered to participate in inpatient drug treatment but failed to do so for some 10 months, whereupon the children were removed from her care. The children were later returned, but after respondent admitted to relapsing through cocaine use, O'Rourke began conducting weekly home visits and ordered drug screens, two of which respondent failed to attend and a third at which she tested positive. Respondent was then ordered to attend intensive inpatient and then outpatient treatment and NA/AA meetings. O'Rourke testified that during this time, respondent did not stay in contact with her, did not complete the treatments and was not visiting Jaron or Raven "consistently." Respondent began some treatment in 1998, and the children were returned to her in late 1999 with social work services in place to help respondent with the children's special needs. O'Rourke stated that the children were then removed at the end of May 2000 because respondent admitted to cocaine use again and tested positive during a drug screen. Respondent was then ordered to participate in various treatment programs, including outpatient treatment; she did not complete this treatment at that time, telling O'Rourke that she felt she did not need it. While the service plan instituted by O'Rourke had a goal of "return home," respondent had an overall rating of "unsatisfactory" due to her failure to maintain contact with her social worker, attend drug screens and NA/AA meetings and refrain from substance abuse. O'Rourke further testified that respondent ultimately completed an outpatient program in April 2001, but has never completed an inpatient program. At the treatment program respondent did participate in, she was labeled "manipulative and not engaged." She only began consistent weekly visits with Jaron and Raven in February 2001.

Jennifer Bala, Jaron and Raven's social worker from June 2000 to October 2001, testified that respondent did not complete any of the required treatment programs outlined for her in the summer of 2000, after the children had been removed the second time. During that summer and fall, respondent either missed or tested positive at several drug screens, and her visits with the children were "pretty inconsistent," amounting to only four visits in three months. Bala testified that she supervised the visits respondent had with the children. Respondent brought food and gifts, and the children sometimes stated that they wanted to visit her and go home with her. Bala also stated, however, that during the visits Raven would "retreat" into a "baby-like state" and Jaron would be "very angry" and disobedient toward respondent. With respect to the outpatient program respondent completed during early 2001, Bala noted that respondent missed several meetings and never participated in inpatient treatment as ordered. Although respondent began visiting her children regularly and participated in aftercare treatment, she did not begin attending the ordered NA/AA meetings until March 2001.

Tina Dorow, Jaron's therapist since March 2000, testified that respondent has an attachment with the children, loves them, and has helped them through therapy at some points. Dorow further testified that she offered respondent therapy in June, September, and November 2000 and January 2001, but respondent refused each time, telling Dorow "she knew how to stay clean."

The parties stipulated that respondent has not tested positive for drugs since January 2001. After the State rested but before respondent presented her case in chief, respondent moved for a directed finding with respect to the allegations based on section 1(D)(k) (habitual drunkenness/drug addiction) and 1(D)(m) (failure to make reasonable efforts within a nine-month period). The court asked the State what nine month period it was examining when dealing with respondent's progress toward "reasonable efforts," whether this was the nine months after the 1996 adjudication of neglect, and what effect if any the return of the children to her in 1999 had on this statutory period. The State told the court:

"The nine month period is from March of 2000, until December of 2000. Treatment didn't start until January of 2001."

The court granted respondent's motion for directed finding with respect to section 1(D)(k), but denied it with respect to section 1(D)(m).

Respondent then began her case in chief, presenting five witnesses and testifying on her own behalf. Tenishia Williamson, a counselor at the outpatient program respondent completed in April 2001, testified that respondent missed several days during the program, including two days in January 2001, ten days in February 2001 and three days in March 2001 whereupon she was placed on supervision. Respondent should have completed the program in March 2001, but did not finish until April 2001. Williamson stated that respondent missed these days due to her duties at the shelter where she was "house manager."

Deidra Hearn, an employee of the shelter, testified that respondent was homeless when she arrived at the shelter and was eventually promoted to "house manager," a full-time position which entailed chores and the supervision of other residents. Hearn stated that respondent had been referred to counseling and other treatment in early 2001 and would have been excused from her chores to attend these programs by the shelter's supervisor if she had so requested. Gayle Campell, another employee of the shelter, testified that she has had contact with respondent since 1997 when she entered the 18-month drug program after the children were first removed from her home. Campell stated that respondent attended parenting classes, twice obtained seasonal employment at a department store, and acted appropriately with the children.

Freeman, respondent's husband, testified that he worked nights, leaving respondent to be the primary caretaker of Jaron, Raven and their other minor daughter. While the home was "[v]ery busy, very constant," Freeman stated that "it was manageable." He had not seen respondent use drugs in December 1999 when Jaron and Raven had been returned. However, respondent began using again in March 2000. He notified social workers, split from respondent and took custody of their minor daughter. He also testified that he was present for most of the visits respondent had with Jaron and Raven, and that respondent acted appropriately and bonded with them. She never attended a visit under the influence of drugs or alcohol. He further testified that while he never saw respondent actually take drugs, he assumed that this was so due to changes he observed in her behavior.

Tiffany Harrison, respondent's adult daughter, testified that respondent took care of Jaron after he was born and visited him everyday while he was in the hospital, and took Raven to therapy everyday. Harrison stated that while the children were living in the relative foster home after first being removed, respondent would visit and do "motherly things" such as change diapers and clean clothes. She denied ever seeing respondent "high" or leaving the children unattended. She further testified that she visits Jaron and Raven once a month and respondent accompanies her, and that the children "act like they were never separated from" respondent, who brings them toys, clothes and food. Harrison testified that Raven plays with no one but respondent and cries when the visits are over, and that Jaron asked her if he could "come home" to respondent.

Respondent testified that she was a "recovering drug addict," that she smoked crack cocaine regularly between July 2000 and October 2000, and that she last used cocaine in October 2000. She stated that Jaron and Raven were first removed to relative foster care in May 1996 when she was using cocaine, but that she saw them everyday. She did not begin receiving treatment until a year later, whereupon she participated in an 18-month inpatient program. Jaron and Raven were returned in late 1999. Respondent testified that she relapsed in March 2000 while the children were in her care, using cocaine "about three times" between March 2000 and May 31, 2000, when she tested positive and the children were removed again. She used cocaine because she felt "frustrated" and because the social work agencies had "set [her] up to fail." She was then homeless until September 2000, when she entered a shelter and eventually became house manager. Her psychological assessment recommended she attend an inpatient drug treatment program, but she entered multiple detoxification programs instead. Respondent admitted that she did not perform any ordered aftercare treatments from these programs. She then participated in another program in January 2001, but she was placed on supervision due to her absences, which respondent attributed to her duties as house manager at the shelter. Respondent was also ordered to attend 90 NA/AA meetings in 90 days, but did not do so.

Respondent stated that she visited Jaron and Raven once a month during October 2000 and June 2001, but also stated that she was entitled to weekly visits during that time and participated in every visit. She then admitted missing visits and declining to participate in therapy sessions offered to her by therapist Dorow. She testified that she helps the children during the visits, teaching Raven sign language. Respondent admitted to missing several drug screens and that at least two were positive, even after she had completed detoxification programs. She blamed the positive results on cocaine being left in her "system." She denied missing or testing positive for other drops, and denied that social workers ordered an inpatient program or aftercare following her outpatient treatment. She considered herself "cured" of her addiction as of March 2001.

Respondent rested her case. The court then continued the matter for argument, asking the State to address "what nine month period or periods" it was asking it to consider wherein respondent failed to make "reasonable efforts." When the State offered to make its argument at that time, the court declined and asked the parties to present it with any case law addressing whether a court could consider the time period when the children were home with respondent after their initial removal.

The court reconvened on January 28, 2003; none of the parties offered case law to the court with respect to whether it could consider the time between when the children were returned home in December 1999 and before respondent relapsed in March 2000 as part of the nine-month period, although the State argued that the court could consider it while respondent argued that it could not. The State told the court that a different nine-month period it could consider, without involving any consideration of the time during which the children lived with respondent, was between May 31, 2000 (when the children were removed for the second time), and February 2001.

With respect to the allegations under section 1(D)(m) of the Adoption Act, the court noted that the adjudication of neglect in this cause was rendered on October 21, 1996, and thus, it could look to the first nine months after this date or any other nine-month period thereafter. The court commented that it had not received any evidence concerning the first nine months, so it would not consider this time. The court then stated that the period of time it would look to was from March 15, 2000 (when respondent relapsed), to December 15, 2000, to determine if respondent made "reasonable progress" under section 1(D)(m). While the court concluded that respondent was somewhat cooperative, she did not begin participating in intensive treatment as ordered until January 2001, "well beyond the 9 month period." Moreover, the court noted that even though respondent had "formally" enrolled in a treatment program at that time, "she missed meetings [, s]he missed appointments[,] *** she was about to be discharged from the *** program as of March." Thus, the court stated that respondent did not "actually [make] the progress that was necessary" until March 2001, when she had been placed on supervision and finally began attending the program consistently. This was "well beyond the December 15th cut-off date *** [and] a whole year after she first started using in March of 2000." The court also held that if it could not consider the time during which the children were home with respondent as part of the nine-month period, then ...

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