Appeal from the Circuit Court of Cook County, Illinois, Juvenile Justice and Child Protection Department, Child Protection Division. No. 11-2280 Honorable Bernard Sarley, Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concurred in the judgment and opinion.
¶ 1 This cause arises from the State's petitions to terminate the parental rights of respondent, Keisha H. (hereinafter Keisha) as to her two daughters, Shauntae P. (hereinafter Shauntae) and Kyla P. (hereinafter Kyla). Following a hearing on the State's petitions, the circuit court found Keisha unfit to be a mother pursuant to section 1(D) of the Illinois Adoption Act (Adoption Act) (750 ILCS 50/1 et seq. (West 2008)). The circuit court found that respondent was unfit because:
(1) she had failed to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare; (2) she had failed to make reasonable efforts to correct the conditions that were the basis for the removal of the children; and (3) she was depraved based on her prior criminal convictions. See 750 ILCS 50/1(D)(b), (i), (m) (West 2008)). The circuit court further found that it would be in the minors' best interests to terminate Keisha's parental rights. Keisha now appeals the termination of her rights. For the reasons that follow, we affirm.
¶ 3 The record below reveals the following relevant facts and procedural history. Shauntae was born on November 10, 2004, and Kyla was born on February 1, 2006. The biological parents are respondent, Keisha, and Lonnie Lee P. (hereinafter Lonnie).*fn1 The record reveals that the case came to the Department of Children and Family Services' (hereinafter DCFS) attention in 2007 when two hotline reports were made to DCFS alleging, inter alia: (1) that Keisha and Lonnie were residing in a "crack house" with drug paraphernalia within reach of the children; (2) that Lonnie engaged in domestic violence against Keisha so that she obtained an order of protection against him; (3) that Keisha took the children to her mother, Debra H. (hereinafter Debra); and (4) that Debra obtained an order of protection against Keisha based on her drug involvement and alleged threats to harm herself and the children. That year, Keisha was indicated twice*fn2 by the DCFS for environmental neglect and for placing the children in an environment that posed a substantial risk of physical injury to them.
¶ 4 Keisha was arrested in May 2007 on an unrelated matter, and the minors remained in the care of their maternal grandmother, Debra,*fn3 who actively participated in the services offered to her by DCFS. After an extended period of time, Debra began experiencing health problems and financial difficulties impacting her ability to take care of the children. At that time, Keisha was residing in the Fox Valley Adult Transitional Center (a work-release program) in Aurora, and the minors' father, Lonnie, had made no contact with the children and was living in Peoria.
¶ 5 As a result, on July 29, 2008, the State filed petitions for the adjudication of wardship of both minors,*fn4 as well as petitions seeking temporary custody of the minors and their placement in a shelter care facility pending adjudicatory hearings in their cause. The petitions alleged that Shauntae and Kyla were dependent minors pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2008)) because: (1) their mother was incarcerated; (2) their father was prohibited by an order of protection from having contact with them; and (3) their legal guardian and maternal grandmother, Debra, was unable to care for them. The petitions further alleged that the minors were neglected based upon an environment injurious to their welfare pursuant to section 2-4(1)(d) of the Juvenile Court Act (705 ILCS 405/2-4(1)(d) (West 2008)) because "there have been instances of domestic violence between the *** parents during which the minor[s] *** [have] been present."
¶ 6 On July 30, 2008, the circuit court granted the State's petitions
for temporary custody and placed Shauntae and Kyla in the care of
DCFS. On October 28, 2008, the circuit court held an adjudicatory and
dispositional hearing to determine the status of both minors. Keisha
present, but was represented by counsel.*fn5
After a hearing, the circuit court entered written
adjudicatory and dispositional orders, adjudging the minors dependent
and neglected due to exposure to an injurious environment (i.e.,
domestic violence between the parents). The court found both parents
unable and unfit to care for the girls, and Debra unable to care for
them. The court made the children wards of the State and placed them
in DCFS custody.*fn6
¶ 7 The circuit court also entered a permanency goal of returning the minors home within 12 months, and in order to achieve this goal ordered Keisha to comply with the terms of her DCFS service plan, including undergoing a substance abuse evaluation. The court also ordered both parents to cooperate with DCFS and correct the conditions that required the minors to be placed in the care of DCFS or risk termination of their parental rights.
¶ 8 The record reveals that DCFS initially placed Kyla and Shauntae into foster care with their maternal aunt, Frances H., an Evanston police officer, with whom they resided for almost a year. However, after Frances gave DCFS a 14-day notice indicating that she could not take care of the children because of her work schedule, on July 1, 2009, DCFS placed Shauntae and Kyla in a traditional non-relative preadoptive foster home with Kyle and Karen H. (hereinafter Kyle and Karen).
¶ 9 On July 23, 2009, the juvenile court of Cook County held a permanency hearing to determine the biological parents' progress in regaining custody of the two minors. Two witnesses testified before the court, Wilfred Mateo, the DCFS social worker responsible for the minors' welfare, and Kathy Berry, the DCFS social worker responsible for the reunification of the family. At that hearing, Mateo testified that Kyla and Shauntae were doing well in their new foster home, which appeared to be a safe and appropriate environment for them. He stated that they continued to participate in individual as well as play therapy in order to cope with separation from their mother.
¶ 10 Berry testified that although Keisha was paroled from prison on January 2009, she had not heard from her until June 2009. According to Berry, Keisha had not completed any of the substance abuse or mental health services that were recommended by DCFS and she had been inconsistent with her visitation of the minors. Keisha told Berry that she wanted her mother, Debra, who now resided in Arizona, to regain legal guardianship of the minors, and stated that she too intended to move there. Berry testified, however, that Keisha's plan to move to Arizona with the children may not have been feasible because of Keisha's parole obligations in Illinois.*fn7
¶ 11 After hearing the testimony of the two witnesses, the circuit court entered a permanency order finding that the parents had not made significant progress, despite reasonable efforts by DCFS in providing services to facilitate achievement of the permanency goal. The court, therefore, recommended a goal of "return home pending status."
¶ 12 On December 1, 2009, the court held a second permanency hearing, at which it again heard the testimony of Mateo and Berry. Mateo testified that although Keisha has been allotted weekly supervised visits with the children, she continues to be inconsistent and generally meets her daughters once a month. Mateo acknowledged, however, that Keisha lives in Aurora and that the visits are at a McDonald's in Chicago, so that it might be difficult for Keisha to keep all the appointments.
¶ 13 Mateo admitted that Keisha's visits with the children generally "go well" with no "unusual incidents," but reported that on one occasion Keisha inappropriately made promises to her daughters about reunification, telling them that "soon she would find a job, get a home, and a car, and they would all live together again." The foster parents reported that after this visit the children were upset and would not comply with their requests. Mateo also testified that a couple of months ago, Keisha brought a male friend to her visit with the children. According to Mateo, even though after this incident she was told that "unapproved visitors" (i.e., anyone but her and her sister, Frances) were not allowed at the meetings, Keisha continued to come to the visits with other individuals.
¶ 14 Mateo also testified that the foster parents have reported to him that Shauntae has exhibited sexualized behavior and that they have asked Shauntae's therapist to recommend a psychosexual evaluation assessment.
¶ 15 Berry next testified regarding Keisha's participation in the DCFS-recommended substance abuse and mental health services. Berry testified that after she was paroled in March 2009, Keisha told her that "she was receiving services from parole." However, Berry explained that "parole did not give [Keisha] any referral for services because [Keisha had told them that] she was working through DCFS to get services *** [and] they were just kind of waiting to hear from other providers that they thought were referring her to." According to Berry, when it came to light that Keisha was not receiving any services through parole, she referred Keisha for a substance abuse evaluation and individual counseling. Keisha consistently attended her weekly therapy sessions, but was not successful with her substance abuse problem. After her initial substance abuse evaluation in July 2009, Keisha was recommended for level 1 outpatient treatment, which required her to do urine testing every two weeks. Keisha was inconsistent with her treatment and missed several urine tests. According to Berry, on November 5, 2009, Keisha tested positive for cocaine and marijuana and was therefore sent to intensive outpatient treatment on November 23, 2009.*fn8
¶ 16 After hearing the testimony of the two witnesses, and considering DCFS's integrated assessment report*fn9 , which was introduced as an exhibit, the circuit court entered a permanency goal of "substitute care pending court determination on termination of parental rights." In doing so, the court found that Keisha had not made substantial progress in services geared toward reunification, despite reasonable efforts by DCFS in providing services to facilitate achievement of the permanency goal.
¶ 17 On April 27, 2010, the State filed supplemental petitions seeking findings of parental unfitness, involuntary termination of parental rights, and the appointment of a guardian with the right to consent to adoption (hereinafter termination petitions). In relevant part, the termination petitions alleged that Keisha was unfit in that she had failed to maintain a reasonable degree of interest, concern or responsibility as to her children's welfare (750 ILCS 50/1(D)(b) (West 2008); 705 ILCS 405/2-29 (West 2008)), and that she had failed to make reasonable efforts to correct the conditions that were the basis for the children's removal, or to make reasonable progress toward the children's return within the first nine months after the adjudication of neglect (October 31, 2008) or within any nine-month period thereafter (750 ILCS 50/1(D)(m) (West 2008); 705 ILCS 405/2-29 (West 2008)). The State also alleged that Keisha was unfit because she was addicted to drugs for at least one year immediately prior to the commencement of the unfitness proceeding (750 ILCS 50/1 (D)(k) (West 2008); 705 ILCS 405/2-29 (West 2008)).*fn10
¶ 18 In addition to alleging that the parents were unfit, the termination petitions alleged that Kyla and Shauntae have been residing with their foster parents since July 1, 2009, that the foster parents desired to adopt them, and that adoption by the foster parents would be in the children's best interests.
¶ 19 On May 20, 2010, the minors' maternal grandmother, Debra, filed a motion to intervene, seeking legal guardianship of the two minors. Debra's petition alleged that Keisha was out of state,*fn11 but that she had asked Debra to intervene and request that Kyla and Shauntae be placed with Debra. In the petition, Debra also requested visitations with the children and a clinical staffing.
¶ 20 On June 11, 2010, the circuit court held a third permanency hearing. At that hearing the court maintained the goal of "substitute care pending a court determination on termination of parental rights," noting that the termination petitions had already been filed and were pending, and that the foster home was safe, appropriate and preadoptive. The circuit court denied Debra's motion to intervene, but ordered DCFS caseworker Mateo to ensure that a clinical staffing took place. The court also ordered a mediation between all the interested parties, including the foster parents. Mediation was held on July 27, 2010, but no agreement was reached.
¶ 21 On September 22, 2010, Keisha filed her answer to the termination petitions, denying the allegations therein, and raising what she titled two "affirmative defenses." Specifically, Keisha alleged that DCFS had failed to make reasonable efforts to assist her by failing to assign her a caseworker or to provide her any services between July 2008 and March 2009. Keisha also alleged that DCFS failed to give her credit for services she had completed, including a certificate for a 12-week advanced parenting course completed on or about April 23, 2008, at the Decatur Correctional Center, and certificates for completed courses in anger management and drug treatment.
¶ 22 On January 11, 2011, the State amended the termination petitions to add an allegation that Keisha was unfit based on depravity, because she had been convicted of at least three felonies, and at least one of these convictions occurred within five years of the filing of the termination petitions. See 750 ILCS 50/1 (D)(i) (West 2008); 705 ILCS 405/2-29 (West 2008). Keisha filed her answer to the supplemental termination petitions on March 9, 2011, stating "[a]ll previous answers to the State's petition stand as previously pled." In this pleading, she made no mention of "affirmative defenses."
¶ 23 After a fourth permanency hearing on January 22, 2011, the circuit court again entered an order maintaining a goal for Shauntae and Kyla as "substitute care pending court determination on termination of parental rights." *fn12
¶ 24 On April 11, 2011, the circuit court commenced its hearing on the State's termination petitions. Prior to any testimony, Keisha informed the court that she was willing to sign specific consent forms to the adoption of her daughters by their maternal grandmother, Debra. This motion was denied by the circuit court because Debra was not the minors' foster parent and did not have custody of the children in the past six months.
¶ 25 The court then proceeded with the fitness portion of the hearing. The State began its case by introducing documentary evidence into the record, including: (1) certified copies of the original adjudication and dispositional orders for the minors entered on October 31, 2008; and (2) certified copies of Keisha's convictions, including six forgery convictions. Five of these convictions were from Peoria County and one was from Kane County. Three of these convictions were entered in August 2001, and the remaining three were from October 2001, December 2007, and December 2010.
¶ 26 The State next proceeded by calling three witnesses: Robyn Chamblin, Kathy Berry, and Wilfred Mateo. Robyn Chamblin, a DCFS child welfare worker from Peoria County, first testified that she was assigned to Kyla and Shauntae's case in August 2008, when the case was transferred from Fulton to Cook County because the minors were placed with their aunt, Frances.
¶ 27 Chamblin testified that when she first visited the minors, she realized that she had a conflict of interest, as she was personally acquainted with Frances, and needed to remove herself from the case. As a result, in November 2008, the case was transferred to Cook County DCFS worker Mateo. Chamblin, however, remained on the case as the worker responsible for providing services to the parents between August 2008 to March 2009.
¶ 28 Chamblin testified that in August 2008, when she was initially assigned to the case, Keisha was in a state correctional work-release program in Aurora. Chamblin visited Keisha at the work-release facility between August and November 2008. During the visits, Chamblin and Keisha discussed the services DCFS had recommended for Keisha, including: a psychological evaluation, substance abuse services, counseling, services to address her criminal history and domestic violence, and parenting classes. Chamblin gave her contact information to Keisha but could not remember whether she asked Keisha to contact her when she was released so that they could meet and Chamblin could provide Keisha with referrals for all of the necessary services.
Chamblin and Keisha also discussed what services Keisha might be able to obtain while in the work-release program, and Keisha signed consent forms for the release of information between DCFS and the Department of Corrections (DOC). The documents received by DCFS from the DOC revealed that while in the work-release program Keisha completed several urine tests and a parenting class. Chamblin explained, however, that DCFS considered these two services insufficient under the service plan.
¶ 29 According to Chamblin, in November 2008, Keisha was returned to the Dwight Correctional Center because she violated work-release rules. Chamblin could not visit Keisha at Dwight, because "Keisha was in reception and could not receive visits." Chamblin testified that she learned that Keisha was paroled in January 2009. Soon thereafter, in March 2009, Chamblin was removed from the case. Chamblin reiterated that up to that point, Keisha had not completed any of the services recommended to her under the DCFS service plan.
¶ 30 Kane County DCFS supervisor Berry next testified that she took over the case from Chamblin and served as the DCFS family caseworker from March 2009 to March 2010. Berry's primary responsibility was to work with the parents toward reunification.
¶ 31 Berry testified that her first contact with Keisha was on March 31, 2009, at the DCFS office. Keisha told Berry that she had been paroled in January 2009 and that this was her second time being on parole for the same offense. Berry recommended that Keisha participate in a substance abuse evaluation, a psychological evaluation, individual counseling to address mental health issues, domestic violence counseling, parenting and satisfaction of any parole requirements. Keisha told Berry that her parole officer would refer her for services. Keisha gave Berry the parole officer's contact information and again signed consents for release of information between the parole office and DCFS. Berry provided Keisha with her contact information and asked her to stay in regular contact with her.
¶ 32 In the following months, Berry attempted to stay in touch with Keisha and to verify that Keisha had completed the required services through her parole officer, but was unable to do so. Berry completely lost contact with Keisha until June 15, 2009, when Keisha telephoned her stating that she was not in services and that she needed referrals. Berry referred Keisha for a substance abuse evaluation at Breaking Free, in Aurora,*fn13 and later that month, referred her for individual counseling at Family Counseling Services.
¶ 33 Berry said that she next met with Keisha in November 2009, and that as of that date, Keisha had not completed either the outpatient drug treatment or the individual counseling that she had recommended for her. Berry explained that, as a result, she was unable to refer Keisha for a psychological assessment or parenting classes. It was DCFS's policy that prior to engaging in any such services, Keisha had to show that she was refraining from substance abuse.
¶ 34 Berry further testified that in November 2009 she and Keisha attended a child and family team meeting at the DCFS office in Aurora. At this meeting, Keisha was told that she needed to attend her substance abuse treatment consistently and to prove that she was not taking drugs by submitting to urine analysis and testing negative for substances. Keisha signed a contract to this effect.
¶ 35 Berry testified that she next had a telephone conversation with Keisha in December 2009 to address the results of Keisha's recent random urine analysis, and that during this conversation, Keisha admitted to her that she had used cocaine. In accordance with Breaking Free's recommendation, Berry advised Keisha to partake in an inpatient substance abuse treatment and referred her to Stepping Stones in Joliet. Keisha agreed to attend the evaluation and receive the treatment. Keisha told Berry that she needed a ride to Stepping Stones, and Berry made a referral to a transportation service. According to Berry, the appointment was set for December 21, 2009, but before the transportation arrived to pick Keisha up, she called to cancel her evaluation.*fn14 The evaluation was ...