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In re B'yata I.

Court of Appeals of Illinois, Second District

November 20, 2013

In re B'YATA I., a Minor
v.
Kenyatta B., Respondent-Appellant). (The People of the State of Illinois, Petitioner-Appellee,

Held [*]

Where the evidence that respondent’s parental unfitness was not “overwhelming and undisputed, ” and the trial court did not set forth a factual basis for its determination that respondent was unfit for failing to maintain a reasonable degree of interest, concern, or responsibility as to her child’s welfare, the appellate court retained jurisdiction and entered a limited remand strictly for the entry of an express factual basis supporting the trial court’s finding of unfitness and transmission of that factual basis to the appellate court within 28 days of the appellate court’s decision.

Appeal from the Circuit Court of Winnebago County, No. 09-JA-124; the Hon. Mary Linn Green and the Hon. Patrick L. Heaslip, Judges, presiding.

Nicholas O. Meyer, of Meyer & Horning, P.C., of Rockford, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Jay Paul Hoffmann, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Panel JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.

OPINION

HUDSON, JUSTICE.

¶ 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.[1] Respondent is also the mother of two other minors, Amashaneek T. and Alishawan T., who were fathered by a different man, Jesse T.[2]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.

ΒΆ 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 ...


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