Appeal from the Circuit Court of Winnebago County, No. 09-JA-124, Honorable Mary Linn Green and Patrick L. Heaslip, Judges, Presiding.
Justices Hutchinson and Schostok concurred in the judgment and opinion.
¶1 In May 2013, the circuit court of Winnebago County found respondent, Kenyatta B., to be an unfit parent with respect to her minor daughter, B'yata I., on three separate grounds. The court later concluded that the termination of respondent's parental rights was in B'yata's best interests. On appeal, respondent challenges the findings of the trial court with respect to both unfitness and best interests. For the reasons set forth below, we remand this cause for further proceedings.
¶2 I. BACKGROUND
¶3 B'yata was born to respondent on September 26, 2008. On March 27, 2009, the State filed a five-count petition alleging that B'yata was a neglected minor. 705 ILCS 405/2-3 (West 2008). The petition was amended on April 1, 2009. Both the original and amended petitions named Bernard I. as B'yata's father. Respondent is also the mother of two other minors, Amashaneek T. and Alishawan T., who were fathered by a different man, Jesse T. Respondent waived her right to a hearing on whether there was probable cause to believe that B'yata was a neglected minor, and the trial court, Judge Patrick L. Heaslip, granted temporary guardianship and custody of B'yata to the Illinois Department of Children and Family Services (DCFS). DCFS placed B'yata with relatives.
¶4 Following an adjudicatory hearing in September 2009, the trial court found B'yata neglected based on count III of the State's petition, which alleged that B'yata's environment was injurious to her welfare in that her parents engaged in domestic violence in her presence, thus placing her at risk of harm. 705 ILCS 405/2-3(1)(b) (West 2008). In a dispositional order entered in December 2009, the trial court found it in B'yata's best interests that she be made a ward of the court. The court placed custody and guardianship of B'yata with respondent. The court also placed custody and guardianship of Amashaneek and Alishawan with respondent. The dispositional order required respondent to, inter alia, remain drug and alcohol free. At that time, the trial court appointed Court Appointed Special Advocates (CASA) as guardian ad litem for all three minors.
¶5 At a review hearing in January 2010, Keith Tabor, the caseworker then assigned to respondent's case, noted that all three minors were residing with respondent, they were "[d]oing well, " and they were all developmentally on target. Tabor testified that a service plan had been established for the case. Among other things, the service plan required respondent to undergo random urine drops and domestic-violence counseling. Tabor stated that respondent had begun domestic-violence counseling and that she had completed a urine drop in January 2010, which was negative. The next review hearing was held on April 27, 2010. By that time, a different caseworker, Amelia Hernandez, was assigned to the case. Hernandez noted that B'yata and her half-siblings still resided with respondent and that the minors were "doing good" in respondent's care. Hernandez noted that respondent was participating in domestic-violence counseling, she was on a waiting list for "WAVE" counseling, and her drug screenings had been negative.
¶6 At a hearing on October 19, 2010, Hernandez reported that the minors were "doing great" in respondent's custody and that respondent had completed all required services. Hernandez stated that she had no concerns "whatsoever" about respondent's ability to protect the minors. Hernandez recommended that the case be closed. However, because of CASA's concerns regarding unsupervised contact between Bernard and the family, the court ordered that all previous orders would remain in effect. At a hearing on January 25, 2011, CASA recommended that the case be closed. The trial court, Judge Mary Linn Heaslip, discharged CASA and continued the matter for possible closure.
¶7 However, on May 20, 2011, the State filed a motion to modify guardianship and custody of the three minors. In the motion, the State alleged that respondent was arrested for domestic battery on May 18, 2011, with the victim being Amashaneek. The State further alleged that this incident occurred in the presence of the other minors and that respondent failed to remain free of alcohol as required by the dispositional order entered in December 2009. The State requested that guardianship and custody of all three minors be transferred to DCFS. The same day, the trial court reappointed CASA. The parties waived their rights to a temporary-shelter-care hearing. The trial court granted temporary guardianship and custody of Amashaneek and Alishawan to Jesse. The court granted temporary guardianship and custody of B'yata to DCFS, with discretion to place her with a responsible relative or in traditional foster care. In addition, respondent was ordered to remain free of all illegal drugs and alcohol and to submit to random urine drops upon 24 hours' notice.
¶8 On July 15, 2011, the trial court heard and granted the State's motion to modify guardianship and custody. On the same date, the court entered a dispositional order granting legal custody of B'yata to DCFS, with discretion to place her with a responsible relative, in traditional foster care, or with Jesse. The same order granted Jesse legal guardianship and custody of Amashaneek and Alishawan. In addition, the court again ordered respondent to remain drug and alcohol free and to submit to random urine drops upon less than 24 hours' notice. DCFS eventually placed B'yata with Jesse.
¶9 A permanency review hearing was scheduled for August 18, 2011, but was continued due to the illness of one of the attorneys. Meanwhile, on September 1, 2011, respondent pleaded guilty to aggravated battery of a child (720 ILCS 5/12-4.3 (West 2010)), based on the May 18, 2011, incident, and was sentenced to probation. On September 9, 2011, the court closed the case as to the two older children. At that time, Jesse was granted permanent legal custody and guardianship of Amashaneek and Alishawan. The court continued the matter as to B'yata for a permanency review hearing on March 6, 2012.
¶10 At the March 6, 2012, hearing, respondent was represented by an attorney, but she herself did not appear. At the hearing, caseworker Amber Rasmussen testified that she had been assigned to B'yata's case since July 2011. At that time, B'yata's goal was return home within 12 months. Rasmussen testified that B'yata had resided with Jesse and his wife, Aretha, since May 2011, and that all of B'yata's needs were being met. Rasmussen testified that respondent was entitled to supervised visitation and required to arrange visits through the agency. Rasmussen initially testified that respondent last visited B'yata on September 26, 2011. She later clarified that respondent "stopped by for Christmas, too." Rasmussen stated that respondent had not provided her with proof that she had completed a drug assessment and had not completed any of the requested drug screens as required by the service plans. Rasmussen acknowledged that respondent was not provided with a copy of the current service plan. She explained that she had intended to provide the service plan to respondent at a family-team meeting. Rasmussen scheduled two such meetings, one in December 2011 and one in January 2012, but respondent did not show up to either meeting. Rasmussen indicated, however, that she communicated to respondent by telephone that she needed to complete a drug assessment. During the hearing, the trial court noted that Rasmussen had submitted a report to the court. The court stated that it did not find the report "very thorough." The court pointed out that the report did not reference the dates that the agency tried to contact respondent or when she was asked to do the urine drops and that it did not include a copy of the service plan. Based on the foregoing, the court found that respondent failed to make reasonable efforts. The court also found that DCFS failed to make reasonable efforts. The court set the permanency goal at return home within 12 months. The case was continued to April 5, 2012, for a status report as to the efforts of DCFS. On that date, the court found that DCFS was making reasonable efforts.
¶11 In June 2012, respondent was sentenced to two years' incarceration for probation violations and a new felony charge of failure to register as a violent offender against youth (730 ILCS 154/30 (West 2012)). At the next permanency review hearing, which was held on September 4, 2012, the court was informed that respondent was absent due to her incarceration. Rasmussen testified that B'yata was doing well with the foster parents. She recommended changing the permanency goal to substitute care pending termination of parental rights. Rasmussen noted that she had not had any contact with respondent since her incarceration. The court found that respondent had not made reasonable efforts or reasonable progress ...