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In re M.M.

Supreme Court of Illinois

December 1, 2016

In re M.M. and J.M., Minors The People of the State of Illinois, Appellant,
Heather M., Appellee.

          JUSTICE FREEMAN delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.



         ¶ 1 At the close of a dispositional hearing on a juvenile petition based on neglect, the circuit court of Peoria County found that respondent, Heather M., was a fit parent to her children, J.M. and M.M. However, the court awarded temporary custody and guardianship to the Department of Children and Family Services (DCFS). The appellate court (2015 IL App (3d) 130856) reversed the judgment of the trial court and remanded to allow that court to enter specific findings consistent with section 2-27(1) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-27(1) (West 2012)). This court allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Jan. 1, 2015). For the following reasons, we now affirm the judgment of the appellate court and remand the cause to the trial court for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 On July 31, 2013, DCFS filed separate juvenile petitions seeking wardship of 9-year-old J.M. and 10-year-old M.M. The petitions claimed that the minors were neglected because their environment was injurious to their welfare. See 705 ILCS 405/2-3(1)(b) (West 2012). At that time, the minors lived with their father, Larry. Each petition alleged as follows. Between July 1 and July 3, 2013, Larry was taking care of the children of his girlfriend, who was not respondent. One of those children, who was six years old, had a bedwetting accident. Larry "struck [the child] on the buttocks and slapped his face leaving multiple bruises on [the child's] buttocks and face." Also, Larry had a criminal history that consisted of a charge of battery in 2003 and charges of driving under the influence in 2003 and 2008. Each petition asserted that respondent's whereabouts were unknown.

         ¶ 4 Larry entered into an agreed order of protection with DCFS, which provided, inter alia, that the minors would reside with their paternal grandparents, Larry's visits with the children would be supervised, and Larry could not live with the minors or stay with them overnight. Respondent was not a signatory to the order of protection. Larry subsequently disclosed respondent's name. The trial court appointed legal counsel for respondent, and she filed an answer to the juvenile petition. The court also appointed a guardian ad litem for the minors.

         ¶ 5 The trial court held an adjudicatory hearing in which the parties stipulated to the petition's allegations. The hearing consisted essentially of the State's proffer as to what evidence would have been introduced had there been no stipulations. There was no evidence or other information presented concerning respondent. At the close of the adjudicatory hearing, the court found that the minors were neglected due to an injurious environment not involving physical abuse. The court specifically found that respondent did not contribute to this injurious environment.

         ¶ 6 Lutheran Social Services of Illinois (LSSI) filed with the court a dispositional hearing report on respondent dated October 7, 2003. The report included the following information. Prior to her relationship with Larry, respondent was married and divorced. Two daughters were born in the marriage, one of whom lived with respondent's ex-husband. Respondent remarried. According to respondent, her husband "gave her an ultimatum that it was him or the kids and she left him in 2001." The marriage ended with his death from natural causes. Respondent then had a relationship with Larry from 2002 to 2008, into which J.M. and M.M. were born. During their relationship, Larry had problems with alcohol, drugs, and domestic violence, but there was never police involvement with respect to any incidents between them. Respondent told the caseworker that Larry "brought another woman into the home and told [respondent] to get out." According to Larry's LSSI dispositional hearing report, Larry "stated that he lost interest in [respondent]." After her relationship with Larry ended, respondent was in a relationship in which a daughter was born. The daughter resides with respondent.

         ¶ 7 Respondent's LSSI dispositional hearing report also stated that she had stable housing in Peoria and had obtained a certified nursing assistant certificate and training in phlebotomy. Respondent was not addicted to alcohol or illegal substances, had passed a random drug screening, and had never been arrested. Respondent takes prescription medication for bipolar disorder, anxiety disorder, and depression. In 2011 and 2012, respondent completed a parenting class and a domestic violence class as part of an intact family service program and had recently engaged in an intact family program through LSSI and indicated a willingness to participate in services. Further, respondent was cooperating with the LSSI caseworker. The report opined: "Both of the minors are completely aware of why their family is involved with LSSI/DCFS. This worker feels that the children would benefit from counseling services. This worker feels that the children are safe in their paternal grandparents' home and care at this time." The report concluded that respondent would be able to provide a safe, loving, and nurturing environment in which to raise her children if she continued to cooperate and participate in services as requested. The report recommended that respondent continue to be found fit. The report made no guardianship or placement recommendation regarding the minors.

         ¶ 8 At the dispositional hearing, the LSSI caseworker took no position as to who should be appointed guardian for J.M. and M.M. Both the State and the guardian ad litem agreed that respondent was a fit parent. However, both the State and the guardian ad litem argued that the minors should be made wards of the court and DCFS should be appointed guardian. The State provided no basis for this assertion. The guardian ad litem stated: "She [respondent] has some mental health issues; I hope those can be addressed."

         ¶ 9 Respondent agreed that she was a fit parent and that the minors should be made wards of the court. She also agreed with the LSSI assessment and recommendations. However, she contended that placement with DCFS was not necessary and asked that the court grant her custody and guardianship of her children.

         ¶ 10 At the close of the dispositional hearing, the trial court found Larry unfit as a parent. The court further found: "DCFS is appointed guardian of these children, although I do find the mother, [respondent], to be fit. I also find that placement is necessary, based on all that was presented in the materials for my review for this disposition and upon considering argument." The court's written dispositional order reflected the court's oral findings and also required respondent to perform various tasks "to correct the conditions that led to the adjudication and/or removal of the children." In addition to generally cooperating with DCFS or its designee, these tasks included taking a mental health assessment to determine if counseling was needed. If so, then respondent was ordered to undergo counseling. The form order indicated that respondent was fit and did not indicate that she was unable or unwilling to care for her children, and the order lacked any written basis to support a finding of inability or unwillingness.

         ¶ 11 Respondent appealed to the appellate court. 2015 IL App (3d) 130856. The State conceded that the trial court "did not articulate specific reasons for its decision and did not state that the respondent was unable or unwilling to care for the children." Id. ¶ 13. The appellate court concluded that the trial court thereby violated section 2-27(1) of the Act (705 ILCS 405/2-27(1) (West 2012)). 2015 IL App (3d) 130856, ¶ 14. The appellate court explained that the trial court was not authorized to grant custody of the minors to DCFS without a finding of unfitness or a properly supported finding that respondent was unable or unwilling to care for the minors. Accordingly, the appellate court held that the trial court committed reversible error in awarding custody of the minors to DCFS. Id. ¶ 15. The appellate court remanded the case "so that the trial court may enter explicit, specific findings consistent with the requirements of section 2-27(1)." Id. ¶ 16.

         ¶ 12 Upon denial of the State's petition for rehearing, the appellate court repeated that, pursuant to section 2-27(1) of the Act, a court "may award custody to DCFS only after it has first determined that the natural parents are unfit, unwilling, or unable to care for the child." Id. ΒΆ 18. Accordingly, a mere showing that a child's placement with a third party might be in the child's best interest is insufficient to supersede a fit parent's superior right to custody. Rather, a court must find that the fit parent is ...

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