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In the Interest of Julian K v. the People of the State of Illinois

March 9, 2012


Appeal from the Circuit Court of Cook County, Child Protection Division No. 07 JA 406 Honorable Bernard J. Sarley, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Palmer concurred in the judgment and opinion.


¶ 1 Respondent Jessica K. (respondent) appeals the termination of her parental rights. Termination of parental rights is a two-step process. In re J.L., 236 Ill. 2d 329, 337 (2010); In re C.W., 199 Ill. 2d 198, 210 (2002). First, a trial court must find that the parent is unfit; and second, it must find that termination is in the best interests of the child. In re J.L., 236 Ill. 2d at 337; In re C.W., 199 Ill. 2d at 210.

¶ 2 In the case at bar, the trial court held, first, that respondent was an unfit parent. Specifically, on August 29, 2011, the trial court found respondent unfit on three separate grounds: (1) that she failed to maintain a reasonable degree of responsibility to the welfare of her child; (2) that she failed to protect her child from conditions within his environment that were injurious to her child's welfare; and (3) that she failed to make reasonable progress toward the return of her child within nine months after an adjudication that the child was abused or neglected. 750 ILCS 50/1(D)(b), (g), (m) (West 2010). Any one of these three grounds was sufficient to support the trial court's finding. 750 ILCS 50/1(D) (West 2010) ("one or more" of the listed grounds will support a finding that a parent is unfit).

¶ 3 Second, on September 20, 2011, the trial court found that it was in the best interests of the child that respondent's parental rights should be terminated and that a guardian should be appointed with the right to consent to adoption. The child has been living with respondent's sister and her husband in San Diego, California since August 2009, and they want to adopt him. The respondent's sister has testified that she has no problem with respondent continuing to call or visit her child, so long as respondent is not drinking or taking drugs.

¶ 4 On September 27, 2011, respondent filed a notice of appeal, and this appeal followed. First, respondent claims that the trial court's unfitness finding was against the manifest weight of the evidence, because: (1) the Department of Children and Family Services (DCFS) allegedly failed to provide respondent with appropriate services to reunite her with her son; and (2) she had made substantial progress towards correcting the conditions which caused her son to be removed from her home. In her brief to this court, respondent acknowledges the services that DCFS offered, but claims that DCFS should have offered her "long term in-house treatment" to treat her bipolar disorder, drug addiction, and issues resulting from her own unstable childhood.

¶ 5 Second, respondent claims that the trial court's best-interests finding was also against the manifest weight of the evidence, because the child loves his mother and has not indicated a desire to be adopted.

¶ 6 For the following reasons, we affirm the decision of the trial court.


¶ 8 I. The Parties

¶ 9 Julian K., the child, was born on June 13, 2001, and he is now almost 11 years old. His mother is the respondent and appellant, who is approximately 35 years old. Respondent reported to a caseworker that she completed a year at the University of Chicago but then dropped out due to hospitalization for a mental disorder. Respondent has never been arrested or convicted of a crime.

¶ 10 II. Petition for Wardship: June 2007

¶ 11 The State filed a petition for adjudication of wardship on June 12, 2007, four days after the almost six-year old child was taken into custody. The petition alleges that there had been three prior reports of risk of harm, environmental neglect and inadequate supervision. The petition stated that DCFS had opened "an intact family case" in March 2007, and that respondent had not been compliant with the services that had been offered and recommended. The petition alleges that on May 27, 2007, and again on June 6, 2007, the five-year old child was observed wandering the streets, alone and unsupervised. The petition alleges that respondent, who has a history of substance abuse, has tested positive on June 8, 2007, for "illegal substances," without specifying the substance. The petition alleges that respondent has been diagnosed with both bipolar disorder and ADHD. The petition alleges that respondent admitted that she had "not been compliant with prescribed medication."

¶ 12 On June 12, 2007, the State filed a motion for temporary custody, which was supported by an affidavit by Elizabeth Thomas, a DCFS investigator.

Thomas stated, based on her own personal knowledge and information received from others, that the child "was reported several times to be in the neighborhood unsupervised," that the mother "was using drugs in the home," that the mother had been "diagnosed with bipolar and ADHD," that she had tested positive for cocaine; and that she was "not compliant with all of her medications."

¶ 13 On June 12, 2007, the trial court entered a "temporary custody hearing order" which granted custody to a DCFS guardian administrator with the right to place the minor. On June 13, 2007, the trial court ordered limited visitation, allowing respondent supervised day visits. Although the record does not contain an order which returned the child to respondent, the child again came to the attention of DCFS, as described below in a report, dated June 4, 2008.

¶ 14 III. DCFS Report: June 2008

¶ 15 The report, which was authored by case worker Edward Witherspoon, summarized as follows the problem that again brought the child to the attention of DCFS: "Hotline call alleging that Julian was cooking popcorn in the microwave and got burned. Julian stated that his mom was not home. He told investigator that his mom was in [the] living room. Mom is under care of psychiatrist for mental health issues and is being followed by Dr. Neil Selinger who recommends mom get a job and states that she is a good mom for Julian."

¶ 16 The report stated that, although respondent claimed she was now drug-free, she had tested positive for cocaine on two different dates, and had failed to participate consistently in urine testing as requested by Witherspoon, her case worker. Respondent failed to appear for testing on February 1, March 4 and March 7, 2008. While her tests on March 14 and 28 were negative, the tests on February 14, 2008, and April 11, 2008, were positive for cocaine.

¶ 17 In the report, which was filed with the trial court, DCFS submitted a "services plan" for the child with a "permanency goal" of "Return Home Within 12 Months." The "planned achievement date" was September 1, 2008. However, the report observed that "progress toward goal" had been "unsatisfactory." The report recommended that the child be placed with his aunt in California and that all visits with his mother be supervised. But the report also recommended that respondent "should be afforded an opportunity to complete reunification services."

¶ 18 The report indicated that the child was now living with his godfather Frank Puccinelli, and that a visitation plan had been established on August 29, 2007, for once-a-week visits, supervised by foster parent Puccinelli. The report stated that Puccinelli was a close family friend whom the child called "Uncle Frank." The report described respondent's interaction with the child and Puccinelli as follows: "Although NM [natural mother] consistently cancels visits, she does visit Julian at least weekly due to the foster parent ensuring that Julian sees her on a weekly basis by rearranging both his and Julian's schedules sometimes at the last minute." The child informed Witherspoon, the caseworker, that he wanted to keep living with Puccinelli. The caseworker concluded that the child had a "strong bond" with both respondent and the foster parent.

¶ 19 Respondent informed the caseworker that, when she was a child, her family moved frequently due to the fact that her mother used drugs and did not pay the rent. Respondent stated that she was hospitalized when she was 13 and diagnosed with bipolar disorder. Respondent reported that her mother presently lives in Poland and her sister in California. Respondent stated that her mother left the country when DCFS came to the house and removed respondent. Respondent was then sent to a group home and emancipated out of the system. The case worker found that respondent's home "needs a lot of cleaning."

¶ 20 IV. Adjudication Order: June 2008

¶ 21 On June 4, 2008, the trial court entered an "adjudication order" finding that the minor was abused or neglected due to the presence of an injurious environment and a substantial risk of physical injury. The order stated that the "natural mother [was] clearly using substances by her admission and by the positive drug test during the intact cases," and that "the condition of mother's home was inappropriate for minor." The "disposition order," also dated June 4, 2008, adjudged the child to be a ward of the court and placed him in the custody of a DCFS guardianship administrator with a right to place the minor. The disposition order also set a status hearing for November 20, 2008. A "permanency order," entered November 20, 2008, stated that the goal was "return home pending status hearing" on March 6, 2009.

¶ 22 V. Goal: Termination of Parental Rights: June 2009

¶ 23 On March 18, 2009, the trial court ordered respondent to submit to urine testing. Another DCFS report, dated December 2, 2009, stated that respondent did not comply with the March 18th order.

¶ 24 The December 2009 DCFS report, authored by case worker Jordonna McBee, stated that respondent also missed urine tests on November 25, 2008, December 9, 2008, February 23, 2009, and March 31, 2009. The report stated that: "On June 2, 2009, following a contested permanency hearing, the permanency goal was changed to substitute care pending court determination on termination of parental rights." There is no transcript or bystander's report for the June 2, 2009, hearing.

¶ 25 The permanency order, dated June 2, 2009, also set the matter for a status hearing on November 12, 2009. Also on June 2, the trial court issued another order for urine testing.

¶ 26 The December 2009 report stated that, in July 2009, the child went "for a Pre-Placement visit" with his maternal aunt and her husband in San Diego, where the child was enrolled in the third grade in September. His new foster parents are his aunt and uncle. His original foster parent, Frank Puccinelli, traveled with him to California to assist in the transition.

¶ 27 In the report, the caseworker stated that she had met with the child and that he had adjusted well to his placement in San Diego. Although he missed his prior foster parent, he now wishes to reside with his aunt and uncle, with whom he had a strong bond. The child reported that he talked to Puccinelli "all the time over the phone" and he would see him over the Christmas vacation.

¶ 28 The report stated that, in October 2009, respondent traveled to San Diego to visit her son for three days. The report stated that respondent attended only 13 out of 52 sessions of her substance abuse treatment program, and that she has not participated in urine testing since June 2009, when the permanency goal changed.

ΒΆ 29 In an agreed order, dated December 29, 2009, the parties agreed that respondent would have visitation with her son every other month; that respondent could have additional visitation, so long as she notified her sister a month in advance and the dates worked for ...

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