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In re Robert H.

November 4, 2004

IN RE ROBERT H., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ROBERT H., SR., AND ROXANNE H., RESPONDENTS-APPELLANTS).



Appeal from the Circuit Court of Du Page County. No. 99-JA-87. Honorable Thomas C. Dudgeon, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

PUBLISHED

Respondents, Robert H., Sr., and Roxanne H., the biological parents of Robert H., filed separate appeals from the trial court's order (1) finding that it was in Robert H.'s best interests to remain under the care of the subsidized guardians appointed in a separate probate proceeding; (2) discharging the Department of Children and Family Services (DCFS) as guardian of Robert H.; (3) terminating wardship of Robert H.; (4) discharging the public defender and guardian ad litem; and (5) closing the juvenile case. On appeal, respondents argue that the trial court's order improperly permits the subsidized guardianship to continue indefinitely and prevents them from making further efforts to accomplish reunification. We affirm.

On February 29, 2000, the trial court adjudicated three-year-old Robert H. a neglected minor and made him a ward of the court. The State's neglect petition, which respondents neither admitted nor denied, alleged that respondents failed to provide Robert H. with food, clothing, and shelter. Respondents also allegedly used drugs in Robert H.'s presence. The trial court appointed DCFS guardian of Robert H. and ordered DCFS to prepare a service plan consistent with the goal of family reunification. The trial court granted respondents supervised visitation.

The trial court conducted a permanency review hearing on August 29, 2000, and set a permanency goal of return home within 12 months. At this hearing, the trial court received evidence that respondents were not in full compliance with the tasks of the client service plan dated August 7, 2000. The trial court ordered respondents to comply with all tasks outlined in the service plan.

The State petitioned for termination of respondents' parental rights on April 16, 2001. The State alleged that respondents had failed to make reasonable efforts to correct the conditions that led to Robert H.'s removal.

On April 17, 2001, the trial court conducted a permanency review hearing. The trial court received a report from DCFS indicating that respondents had not made significant progress towards the goal of reunification. The report noted respondents' "continued lack of cooperation/progress in services." Specifically, respondents had failed to sufficiently address their substance abuse problems. Robert H., Sr., tested positive for cocaine use in December 2000 and in January 2001; Roxanne H. tested positive for cocaine use in January and March 2001. Respondents had failed to participate in weekly counseling after December 2000 and had not attended Alcoholics Anonymous and Narcotics Anonymous meetings since October 2000. At the close of the hearing, the trial court changed the permanency goal from return home to substitute care pending court determination on the termination of parental rights.

On December 7, 2001, following a hearing, the trial court denied the State's petition to terminate parental rights. The trial court determined that the State had failed to prove by clear and convincing evidence that respondents had failed to make reasonable efforts to correct the conditions that were the basis for Robert H.'s removal or to make reasonable progress towards Robert H.'s return within nine months after the adjudication of neglect and within the second nine-month period as defined in section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 2000)). The trial court noted that respondents had, during the relevant time period, made reasonable efforts to improve their living conditions and to achieve the goals of the service plan. Although the trial court noted that respondents had failed to sufficiently address their drug abuse, it nonetheless noted that respondents had satisfactorily completed other tasks, such as parenting classes. The trial court also noted that respondents had fully participated in visitation with Robert H. and that the visits were positive. The trial court thus concluded that the State had failed to prove respondents' unfitness by clear and convincing evidence.

The trial court conducted another permanency review hearing over several dates in April and May 2002. During this hearing, the trial court received a DCFS report indicating that respondents were not cooperating with all DCFS directives. On May 16, 2002, at the close of the hearing, the trial court selected a permanency goal of subsidized guardianship. The trial court's written order provided that reunification was no longer an achievable goal given respondents' inability to provide stable housing. The trial court explained that, despite prior rulings that respondents had made reasonable efforts to obtain stable housing, new evidence established that such efforts were "illusory." The trial court also found, however, that the State would be unable to prove that termination of respondents' parental rights was in Robert H.'s best interests. The trial court explained that respondents visited regularly with Robert H. and that he enjoyed these visits and looked forward to them. The trial court thus concluded that subsidized guardianship with Robert H.'s foster parents was the best permanency option.

DCFS subsequently submitted a case plan with a recommended goal of subsidized guardianship and submitted the matter for legal screening and approval of subsidies. On February 6, 2003, DCFS approved the subsidies. The trial court directed DCFS to file a petition for the appointment of a guardian in the probate court. On July 22, 2003, DCFS initiated a probate proceeding docketed as case number 03--P--715 and petitioned for the appointment of Robert H.'s foster parents as guardians.

After the probate court appointed Robert H.'s foster parents as guardians, DCFS moved the trial court to discharge its guardianship, terminate wardship, and close the juvenile case. Over respondents' objection, the trial court granted the motion on March 16, 2004. In its order, the trial court also discharged the public defender and the guardian ad litem. Respondents filed separate notices of appeal from this order, and we have consolidated the cases for decision. As noted by the parties, the trial court's March 16, 2004, order closing the juvenile case was a final order, and we have jurisdiction to hear the appeal under Supreme Court Rule 301 (155 Ill. 2d R. 301). See In re M.M., 337 Ill. App. 3d 764, 777 (2003).

Respondents' sole contention on appeal is that the trial court erred in closing the juvenile case. Respondents argue that the order improperly permits the subsidized guardianship to continue indefinitely and prevents them from making further efforts to accomplish reunification with Robert H. Respondents argue that the trial court's order, which requires DCFS to terminate all services and prevents them from seeking further redress from the trial court, is akin to an order terminating their parental rights. Respondents argue that such an order is inconsistent with the trial court's December 7, 2001, order denying the State's petition to terminate respondents' parental rights.

Respondents' contention is at odds with the provisions of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1--1 et seq. (West 2002)), which specifically authorize the permanent transfer of guardianship when other options are unavailable. Section 2--28(2) of the Act provides:

"At the permanency hearing, the court shall determine the future status of the child. The court shall set one of ...


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