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In re L.W.

June 26, 2008

IN RE L.W., MINOR, RESPONDENT
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
OSCAR H., RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 96 JA 5810 Honorable Sybil Thomas, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Neville

Published opinion

The People of the State of Illinois (State) commenced this case by filing a petition for adjudication of wardship against Sandra W., the mother of L.W., the minor who is the subject of these proceedings. Subsequently, the complaint was amended naming Oscar H., L.W.'s father, as a respondent. The trial court entered an order terminating Sandra W.'s and Oscar H.'s parental rights to L.W. In this appeal, Oscar H. appeals from the order terminating his parental rights, pursuant to section 1(D)(m) of the Adoption Act, and the Public Guardian files a cross-appeal from the trial court's finding that the State failed to prove that Oscar H. and Sandra W.*fn1 violated section 1(D)(b) of the Adoption Act. 750 ILCS 50/1(D)(b) (West 1996).

On December 23, 2005, we entered an order reversing and remanding with directions the trial court's order terminating Oscar H.'s parental rights. On March 29, 2006, the Illinois Supreme Court entered a supervisory order in which we were ordered to vacate our judgment in In re Oscar H. (same as In re L.W., 218 Ill. 2d 540 (2006)) and reconsider this case in light of In re Arthur H., 212 Ill. 2d 441 (2004). In re L.W., 218 Ill. 2d 540 (2006).

On September 21, 2006, after vacating our judgment and reconsidering this case in light of In re Arthur H., we reversed the trial court's order and remanded the case with directions. In re L.W., 367 Ill. App. 3d 844 (2006). On April 3, 2008, the supreme court reversed and remanded the case with directions that we consider the merits of Oscar H.'s challenge to the termination of his parental rights. In re Leona W., 228 Ill. 2d 439 (2008). For the reasons that follow, we affirm.

STATEMENT OF FACTS

L.W. was born October 21, 1996, and Sandra W. is L.W.'s biological mother. Immediately after her birth, L.W. tested positive for cocaine and a sexually transmitted disease. In addition, L.W. has a seizure disorder and asthma and is "mentally retarded." On November 6, 1996, while in the custody of her mother, L.W. was taken into custody by the Department of Children and Family Services (DCFS).

On November 8, 1996, the State filed a petition for adjudication of wardship against Sandra W. The original petition for adjudication of wardship listed L.W.'s father as "unknown." A temporary custody hearing was held and the trial court found probable cause that L.W. was abused or neglected and that it was a matter of immediate and urgent necessity to remove her from Sandra W.'s care pending an adjudicatory hearing. The court entered a temporary custody order that granted temporary custody of L.W. to the guardianship administrator of DCFS.

On January 7, 1997, Oscar H. appeared in court and the trial court entered an order finding that Oscar H. had admitted in open court that he was L.W.'s biological father. All the parties stipulated that Oscar H., a 67-year-old man, was a non-custodial parent at the time of L.W.'s birth. The trial court appointed the Public Defender of Cook County (Public Defender) to represent Oscar H. On February 25, 1997, the petition for adjudication of wardship was amended to name Oscar H. as L.W.'s father.

On February 25, 1997, at an adjudicatory hearing, Sandra W. and Oscar H. stipulated to the following facts: (1) that on October 21, 1996, L.W. was born at 34 weeks gestation; (2) that Sandra W. told Judith Kilpatrick, a social worker with the Cook County Hospital, that she had used cocaine three weeks prior to L.W.'s birth and that she wished to give up custody of L.W.; (3) that at the time of L.W.'s birth, Sandra W.'s eight other children were in DCFS custody and she had not completed any drug treatment services; and (4) that Oscar H. was a non-custodial parent at the time of L.W.'s birth. Following the adjudicatory hearing, the trial court entered an adjudication order finding that L.W. was abused in violation of section 2-3(2)(ii) (substantial risk/physical injury) of the Juvenile Court Act of 1987 (Act)(705 ILCS 405/2-3(2)(ii) (West 1996)).

On April 29, 1997, following a dispositional hearing, the trial court entered a disposition order that found Oscar H. and Sandra W. were "unable for some reason other than financial circumstances alone to care for, protect, train or discipline" L.W. L.W. was placed in the custody of the guardianship administrator of DCFS. The trial court also entered an order of protection allowing Oscar H. unsupervised day visits with L.W., but the order did not permit unsupervised contact between L.W. and Sandra W.

On May 13, 1997, Oscar H. filed an emergency motion that asked the court to vacate the previously entered placement orders and requested that L.W. be placed in his custody. Oscar H. argued that he was fit, willing, and able to care for L.W., and that it was in the best interest of L.W. to be returned to her father. On June 9, 1997, a hearing was held on Oscar H.'s emergency motion, and Oscar H. appeared at the hearing, but Sandra W. was not present. The court entered an agreed permanency order establishing a goal of returning L.W. home to Oscar H. within 12 months. The order stated that Oscar H.'s unsupervised visits were going well, that he had been steadily employed for 22 years, and that he was cooperating.

The record establishes that from 1998 to 2001, four permanency hearings were held. At each permanency hearing, the trial court entered a permanency order maintaining the goal of returning L.W. home to Oscar H. The record also contains DCFS service plans for L.W. that contain information about her siblings. The DCFS client service plans in the record that provide the names and some case numbers for L.W.'s siblings are as follows: (1) the November 27, 2000, service plan for L.W. (96JA5810) and S.H. (98JA346); (2) the May 18, 2001, service plan for L.W.; (3) the November 19, 2001, service plan for L.W.; (4) the May 14, 2002, service plan for L.W.; and (5) the November 26, 2002, service plan for L.W. The aforementioned service plans also provide the birth dates and medical backgrounds for L.W. and her siblings: (1) that O.W. was born on July 24, 1993; J.W. was born March 12, 1995; L.W. was born on October 21, 1996; T.H. was born on January 22, 1998; and S.H. was born on May 20, 1999; (2) that O.W. and J.W. both tested positive for syphilis at birth, like L.W., and were placed in temporary custody; (3) that T.H. was born premature and exposed to cocaine, like L.W., and was placed in temporary custody; and (4) that S.H. was born drug exposed and placed in temporary custody. The May 1, 2000, Catholic Charities reunification services progress report provides the dates that Oscar H. was given custody of L.W.'s siblings by the juvenile court: (1) Oscar H. obtained custody of O.W. and J.H. on August 7, 1998; and (2) Oscar H. obtained custody of T.H. on February 25, 2000. Finally, a May 18, 2001, service plan indicates that Oscar H. obtained custody of S.H. on April 23, 2001.

On February 19, 2002, following a permanency hearing, the hearing officer recommended a goal of substitute care pending court determination on the State's petition to terminate parental rights. On March 15, 2002, Oscar H. filed an objection to the hearing officer's February 19, 2002, permanency recommendation goal of terminating his parental rights. Oscar H. argued that the goal should be to return L.W. home within five months because her siblings resided with him; he had proven his ability to care for L.W. and her siblings; and it would be in L.W.'s best interest to be returned to her father.

On April 19, 2002, the court entered a proposed permanency order establishing a goal of private guardianship. The court provided the following reasons for selecting the goal of private guardianship and for rejecting the goal of returning L.W. home: (1) that L.W. had been in foster care for five years; (2) that Sandra W. was not working toward reunification; (3) that Oscar H. had not made reasonable progress toward reunification; and (4) that the foster parent would like to become L.W.'s private guardian and would allow continued contact with L.W.'s biological family. The court entered an order with a goal of private guardianship.

On June 3, 2002, the Public Guardian filed a motion to approve L.W.'s out-of-state placement in Kansas with her foster parent. On July 10, 2002, the trial court granted the motion and entered an order allowing L.W.'s foster parent to move her out of state to Kansas.

On December 6, 2002, following a permanency hearing, at which both parents were present, the trial court entered a "proposed" permanency order which established a goal of substitute care pending court determination of the State's petition for termination of parental rights. The order stated that Oscar H. and Sandra W. had not made substantial reunification with L.W. and that her foster parent would like to be her private guardian. The order stated that L.W.'s foster parent would allow continued contact with her biological family. In conjunction with the hearing, the Public Guardian filed a staffing summary from Melissa Frank, a clinical placement reviewer in DCFS's HELP unit. Frank stated in her summary that private guardianship was not an appropriate goal for L.W. because she would not be eligible for a subsidy through DCFS to address her medical need, therefore, it was in L.W.'s best interest to be adopted by her foster parent.

On March 3, 2003, the State filed a supplemental petition for appointment of a guardian with the right to consent to adoption (supplemental adoption petition). The supplemental adoption petition alleged that Sandra W. and Oscar H. were unfit parents and that Sandra W. and Oscar H. violated two of the same sections of the Act and that Sandra W. also violated two additional sections of the Act.*fn2 Specifically, the petition alleged that Oscar H.: (1)"failed to maintain a reasonable degree of interest, concern, or responsibility as to the child's (L.W.'s) welfare, in violation of 750 ILCS 50/1(D)(b) and 705 ILCS 405/2-29"; and (2) failed to "make reasonable efforts to correct the conditions which were the basis for the removal of the child from them and/or have failed to make reasonable progress toward the return home of the child to them within nine months after the adjudication of neglect or abuse *** or after an adjudication of dependency *** and/or within any 9 month period after said finding *** in violation of 750 ILCS 50/1(D)(m) and 705 ILCS 405/2-29."

On August 15, 2003, a termination of parental rights hearing was held. Prior to the commencement of the hearing, the Public Guardian made an oral motion in limine to exclude evidence concerning the "dispositions" entered at the conclusion of Oscar H.'s parental fitness hearing for L.W.'s siblings. The Public Guardian cited In re M.C., 201 Ill. App. 3d 792 (1990), as authority for his position. Oscar H. objected arguing that the court should hear evidence concerning his care of L.W.'s siblings because it was relevant to show his fitness as a parent. During the hearing, the State withdrew the counts in its supplemental petition based on sections 1(D)(g) ("[f]ailure to protect the child from conditions within his environment injurious to the child's welfare") and 1(D)(k) ("[h]abitual drunkenness or addiction to drugs, other than those prescribed by a physician, for at least one year immediately prior to the commencement of the unfitness proceeding") of the Adoption Act, and proceeded on the counts based on sections 1(D)(b) and 1(D)(m) of the Adoption Act. 750 ILCS 50/ 1(D)(b), (D)(g), (D)(k), (D)(m) (West 1996). Finally, the trial court continued the hearing until August 19, 2003, for a ruling on the Public Guardian's oral motion in limine.

On August 19, 2003, at the continuation of the termination of parental rights hearing, Oscar H. argued that the facts in In re M.C. were distinguishable and its holding inapplicable because in L.W.'s case, he had already successfully demonstrated his fitness as a parent for her siblings. Oscar H. also argued that if "bad evidence" regarding other children was admissible at a termination of parental ...


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