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In Re Rico L.,A Minor v. Bernadine L

July 27, 2012

IN RE RICO L.,A MINOR,
RESPONDENT-APPELLEE
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
BERNADINE L.,
RESPONDENT-APPELLANT



Appeal from the Circuit Court of Cook County. No. 10 JA 173 Honorable Bernard J. Sarley Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion.

Presiding Justice Gordon and Justice Palmer concurred in the judgment and opinion.

OPINION

¶ 1 Mother-respondent-appellant, Bernadine L., appeals the circuit court's ruling of September 27, 2011, vacating a protective supervision order that returned custody of her minor son, Rico, to the Guardianship Administrator of the Department of Children and Family Services (DCFS). On March 17, 2010, DCFS was awarded temporary custody of Rico when Bernadine refused to pick up Rico after he was medically cleared for discharge following his fourth hospitalization for psychiatric problems. At the adjudication hearing on October 19, 2010, the court found Rico to be a dependent minor under section 2-4 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-4 (West 2010)) in that he "is without proper medical or other remedial care recognized under State law or other care necessary for his *** well being through no fault, neglect, or lack of concern" of Bernadine. At the dispositional hearing on November 9, 2010, the court determined it was in Rico's best interests that he be adjudged a ward of the court. The court placed Rico under DCFS guardianship in accordance with section 2-27 of the Act (705 ILCS 405/2-27 (West 2010)), as Bernadine was unable "for some reason other than financial circumstances alone to care for, protect, train, or discipline the minor." Rico remained at the residential home where DCFS placed him following its receipt of temporary custody. On June 17, 2011, custody of Rico was returned to Bernadine under the protective supervision order entered pursuant to section 2-24 of the Act (705 ILCS 405/2-24 (West 2010)). On September 27, 2011, at the hearing scheduled for possible closure of the case, the court was informed that Rico was once again hospitalized for psychiatric problems. After hearing testimony from a DCFS caseworker and Bernadine and providing the parties the opportunity to present any additional evidence, the juvenile court vacated the section 2-24 protective supervision order, which returned guardianship of Rico to DCFS, and entered a modified disposition order pursuant to section 2-27 of the Act.

¶ 2 Bernadine initially challenges the juvenile court's orders of September 27, 2011, as procedurally improper. She contends the court erred in vacating the protective supervision order under which she regained custody of Rico, where no express finding was made that she violated any term of the order. Also, Bernadine complains that the court proceeding of September 27, 2011, failed to set out the statutorily mandated, written "factual basis" that she was unable to care for Rico "for some reason other than financial circumstances alone" as compelled by section 2-27 of the Act and that the assistance she received from her counsel was constitutionally ineffective. We find no merit to any of Bernadine's contentions and affirm.

¶ 3 BACKGROUND

¶ 4 Bernadine, at the age of 37, decided to become a foster parent following her divorce. She has a degree in business administration and has worked in the accounting department of a private corporation for 21 years. Bernadine resides in a four-bedroom, single family home in Chicago. She obtained her foster home license in 1999.

¶ 5 Born September 29, 1996, Rico was physically abused and abandoned by his biological parents. He was initially placed with Bernadine for six months beginning in September 2000. He was returned to her home in June 2001, where he remained. On September 29, 2003, the Social Security Administration determined Rico to be disabled, which made him eligible for services and financial support to assist with his care. On April 4, 2007, Rico received a DCFS adoption subsidy determination. The adoption subsidy entitled Rico to individual in-home counseling, medication monitoring, and educational support services.

¶ 6 On June 7, 2007, Bernadine adopted Rico and his younger brother, Rudolph. Beginning in 2008, the family received postadoption services, including individual and family counseling.

¶ 7 In June 2008, Bernadine had Rico psychiatrically hospitalized at Riveredge Hospital for one month after he allegedly hit Bernadine's 80-year-old mother with her cane. Rico was 11 years of age. Rico had reportedly been angry at his grandmother after she would not let him wash the dishes. Bernadine's neighbor and Chicago police officers that responded to the call for assistance were unable to de-escalate Rico, which led to his hospitalization.

¶ 8 In August or September 2009, Rico allegedly attempted to "set the house on fire" by putting paper in an electrical outlet. He was taken to Chicago Lakeshore Hospital for psychiatric hospitalization.

¶ 9 On December 5, 2009, Rico was psychiatrically hospitalized at Hartgrove Hospital after he threatened to blow up his home. He reportedly placed aluminum foil into the microwave oven with the intent of blowing up the oven because, as was reported, "his grandmother was getting on his nerves." He also expressed suicidal thoughts and allegedly made a statement that "everyone would be happier if he [were] gone." During Rico's hospitalization, a clinical psychologist administered a psychological evaluation, which found Rico's IQ to be 82, in the low range of average intellectual functioning. The psychologist recommended that Rico be evaluated for attention deficit hyperactivity disorder.

¶ 10 On January 28, 2010, Bernadine had Rico readmitted to Hartgrove Hospital. He presented at Hartgrove with "enuresis [bed wetting], impulsivity, distractibility and poor historical recall." According to Bernadine, Rico was "eating and chewing objects such as batteries, pencils, wire, light bulbs and pens." Rico also kicked holes in the walls of Bernadine's home and ate the pieces of drywall. Bernadine expressed concern over Rico's statement that "It'd be better *** if I were not around."

¶ 11 On February 15, 2010, an anonymous call was made to DCFS's Child Abuse and Neglect Hotline alleging that Bernadine had refused to pick up Rico, who was medically cleared for discharge from Hartgrove Hospital. Upon an inquiry by DCFS, Bernadine indicated that she was unable to handle Rico's behavior and could not maintain him in her home. DCFS held a post-adoption clinical staffing meeting on February 26, 2010, regarding Rico's status; DCFS recommended that Rico be placed in a group home or residential treatment facility.

¶ 12 On March 2, 2010, the State's Attorney's office filed a petition for adjudication of wardship and a motion for temporary custody regarding Rico. The petition alleged that Rico was dependent in that he was "without proper medical or other remedial care recognized under State law or other care necessary for his well-being through no fault, neglect or lack of concern by his parents, guardian or custodian." Specifically, the petition alleged:

"This minor has been diagnosed with Impulse Disorder, Attention Deficit Hyperactivity Disorder, Bipolar Disorder and Mood Disorder. Minor has a history of psychiatric hospitalizations. Minor has been physically aggressive with his mother and other family members. Minor threatened to kill his mother and other family members. Mother is unable to care for this minor. There are no other relatives able to care for this minor. This is a single parent adoption."

¶ 13 Attached to the motion for temporary custody, DCFS investigator Frances Thomas averred in his affidavit that Bernadine had locked Rico out of her home. According to Thomas' affidavit, Bernadine was "fearful for her safety and all other household members in her home." Bernadine requested that DCFS take custody of Rico because she was experiencing high blood pressure as a result of her inability to care for Rico.

¶ 14 On March 17, 2010, the circuit court held a temporary custody hearing and found probable cause to support the State's petition, as well as an urgent and immediate necessity to remove Rico from Bernadine's home. The court awarded temporary custody of Rico to the DCFS Guardianship Administrator. Bernadine was granted day visits, either supervised or unsupervised at the discretion of DCFS. The public guardian was appointed to represent Rico as both attorney and guardian ad litem (GAL). On March 31, 2010, the court appointed attorney Douglas Rathe to represent Bernadine. The parties waived the six-month period for an adjudicatory hearing.

¶ 15 On April 12, 2010, DCFS transferred Rico from Hartgrove Hospital to a residential placement at Lydia Home. On April 15, a DCFS social worker conducted an "Integrated Assessment Interview" with Bernadine. Bernadine wanted Rico to come home after his treatment. She discussed her efforts at disciplining Rico. She would withhold privileges, such as games and sweets, and also make him perform push-ups and jumping jacks "to tire him out." Bernadine told DCFS that discipline "did not work with Rico and that the only thing that worked was 'letting him do what he wanted.' " Bernadine expressed the desire to see her children " 'grow up, have an education, get a job and be successful and well.' " Regarding Rico's behavioral problems, Bernadine stated, "It's just day by day, minute by minute. I don't want to treat him different. I want him to be a part [of things] as opposed to being alone." Bernadine noted her surprise whenever Rico smiled or laughed. Bernadine admitted to being hurt initially by Rico's lack of affection, but she learned to accept this as the years passed. She told DCFS, "I know deep down he loves me."

¶ 16 DCFS assessed its impressions of Bernadine:

"[Bernadine] tried to create a stable and loving household for Rico to develop.

She engaged him in activities she felt would be empowering and yield positive results. However, it seemed that she had limited insight into Rico's maladaptive behavior. During the IA interview, [Bernadine] admitted that she had not wanted to adopt Rico. She also felt that she lacked concrete support from DCFS, which probably added to her stress level and frustration. [Bernadine] used good judgment when she used various supports and resources to find services for Rico. She used good judgment when she took him to the psychiatric hospital during the periods he was in crisis. [She] used questionable judgment when she gave up physical custody of Rico despite being told that she could maintain custody and receive the help she needed for Rico. *** [Bernadine] also seemed to use poor judgment in her choice of discipline with Rico."

The assessment concluded that Bernadine "currently lacks the emotional capacity to parent an adolescent with Rico's emotional and behavioral needs."

¶ 17 DCFS interviewed Rico the same day. Rico claimed that Bernadine hit him with a belt and with her fist in his chest when he was 11. At the time Rico was 13. Rico denied hitting his grandmother with a cane, and described her as the only person he trusted at home. He admitted to chewing on nonfood items, such as rubber, but denied swallowing them. Rico reported that Bernadine was affectionate and told him that she loves him, but he also stated he did not like the manner in which she treated him sometimes. He described Bernadine as "mean." When asked to explain, Rico said that he did not like all of the push-ups she made him perform as punishment. Rico complained Bernadine "told too many lies about him." He indicated he was frustrated and angry about the lies told about him. He began to cry, after which he became withdrawn and verbally unresponsive.

¶ 18 The DCFS assessment team concluded that Bernadine had a strained relationship with Rico, who was often physically and verbally aggressive toward her and other family members. According to DCFS, Bernadine "has been unable to control Rico's maladaptive behaviors over the last several years and does not want him to return home. Although she realized that Rico's placement into a residential treatment facility was in his best interests, she expressed guilt about contacting DCFS for assistance and losing physical custody of him." Bernadine was willing to engage in reunification services, such as family therapy and visitation with Rico. DCFS reported its prognosis for Rico returning to Bernadine's home as "guarded."

¶ 19 On October 19, 2010, an adjudication hearing was held on a stipulation of facts of the parties. The parties stipulated that as of March 2010, "the minor was in need of a structured setting more intensive than a home setting due to the fact that the minor was suicidal, physically aggressive, and eating nonnutritive objects." The stipulation provided that "[Bernadine] is unable to care for the minor in her home due to her concerns for the safety and well being of the minor as well as the other members of her home." Based on the stipulation, the circuit court found Rico to be a dependent minor pursuant to section 2-4 of the Act (705 ILCS 405/2-4 (West 2010)) in that he "is without proper medical or other remedial care recognized under State law or other care necessary for his *** well being through no fault, neglect, or lack of concern" of Bernadine. The court issued a finding of dependency based on "the minor's multiple mental health diagnoses and threatening behavior to family members and inability to de-escalate despite the adoptive mother's efforts to assist with the minor's diagnoses and behavior."

¶ 20 On November 9, 2010, the circuit court held a dispositional hearing, at which two caseworkers and Bernadine testified. Ronald Haynes, a caseworker at Lydia Home, testified that Rico was diagnosed with post-traumatic stress disorder, attention deficit disorder, depression, and enuresis. Rico received treatment for his diagnoses and was compliant with the medications he was prescribed. Rico received family therapy with his mother, known as "parent/child interaction therapy" (PCIT). According to Haynes, the therapy assisted Rico in making progress. Bernadine was also very compliant with all of Lydia Home's requests and those from the PCIT. Bernadine had unsupervised, off-site visits with Rico for eight hours at a time. No incidents were reported during the visits. Haynes stated that while the parties were making progress, Rico needed continued placement at Lydia Home. Haynes recommended that Rico be adjudged a ward of the court. He recommended a permanency goal of return home within 12 months as consistent with Rico's best interests.

¶ 21 Amelia Green testified that she was the DCFS caseworker assigned to Rico since the inception of his case. She stated that there were no signs of abuse or neglect of Rico at Lydia Home.

¶ 22 Bernadine testified that during the family therapy sessions, Rico told her about altercations or arguments he had with staff or roommates at Lydia Home. According to Bernadine, she did not observe any improvement in Rico's behavior from his stay at Lydia Home. Bernadine testified that she preferred Rico remain at Lydia Home until he completed the eighth grade in June 2011. She stated that she wanted Rico to come home when he was well enough.

¶ 23 Following the testimony, the circuit court determined it was in Rico's best interests that he be adjudged a ward of the court. The court found Bernadine was "unable for some reason other than financial circumstances alone to care for, protect, train or discipline" Rico. The court placed Rico under DCFS guardianship. The court informed Bernadine of her appeal rights. The court set Rico's permanency goal as return home within 12 months, based on Bernadine having "made substantial progress toward return home of this minor based on the evidence that I've heard." A permanency order was entered on November 9, 2010, consistent with the court's findings. Bernadine did not appeal.

¶ 24 On May 9, 2011, the circuit court entered a new permanency goal of return home within five months. The court's order stated that the parties "are in need of continued services geared toward re-unification." The court scheduled another permanency hearing for June 17, 2011.

¶ 25 On June 10, 2011, Bernadine filed a motion requesting that Rico be allowed to return home. The motion alleged that Lydia Home was scheduled to discharge Rico on June 17, 2011, a few days after his eighth-grade graduation. According to the motion, Lydia Home staff concluded that Rico's discharge was appropriate so long as outplacement services were in place. The motion also submitted that DCFS agreed in court on May 9, 2011, with the return home recommendation. The only question was the date for the transition of Rico from Lydia Home to Bernadine's home.

¶ 26 On the date of the scheduled permanency hearing of June 17, 2011, the circuit court heard Bernadine's motion for Rico's return home. Haynes testified that since Rico's April 2010 placement at Lydia Home, he had been participating in individual therapy, family therapy, and medication monitoring for aggressive behavior. According to Haynes, the medication helped stabilize Rico. Haynes stated he was not ready to recommend Rico return to Bernadine's home because psychiatry appointments had yet to be confirmed. Haynes did not feel comfortable recommending return home until after a scheduled June 20 assessment and the assignment of a psychiatrist. Haynes confirmed that Bernadine wanted Rico returned home. Bernadine requested that Rico be placed in a therapeutic high school, but Lydia Home did not agree. According to Haynes, the Chicago Board of Education did not deem Rico fit for a therapeutic school. Haynes reported that Rico's Lydia Home psychiatrist recommended Rico return home, conditioned upon arranging for continued psychiatric services. Lydia Home would provide Rico with a 30-day supply of his medications if he were returned home after the permanency hearing. Haynes stated Rico enjoyed his visits with Bernadine and that Rico wanted to return home as well. Haynes concluded that it was in Rico's best interests that custody be returned to Bernadine.

¶ 27 DCFS caseworker Green testified that Bernadine would not have to worry about paying for services because services were in place in the event of a "return home" finding. Green agreed with Haynes' recommendation of return home, but only if "the psychiatrist is in place first."

ΒΆ 28 Bernadine testified she believed Rico was ready to come home. She had diligently participated in all DCFS had asked of her and she had attended all court hearings. Bernadine contacted the agency where Rico received psychiatric counseling and medication monitoring before Rico came into the juvenile court system and she made an appointment to have Rico seen by a psychiatrist there. She stated that the agency accepted Rico's ...


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