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In re Tyianna J.

Court of Appeals of Illinois, First District, First Division

January 30, 2017

In re TYIANNA J., DAVID L., DANIEL N., and DAVION N., Minors
v.
Traci F., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County Nos. 12 JA 662 12JA 663, 13JA 876, and 15 JA 412 Honorable Devlin Schoop, Judge Presiding.

          MIKVA JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Harris concurred in the judgment and opinion.

          OPINION

          MIKVA JUSTICE

         ¶ 1 This is an appeal from the circuit court's orders adjudicating the minor Davion N. a ward of the court and terminating the parental rights of Davion's natural mother, respondent Traci F. In this case the juvenile court took the somewhat unusual step of terminating Traci's parental rights as to Davion at the dispositional hearing. On appeal, Traci makes the following arguments in favor of reversal: (1) the circuit court's finding that Davion was abused and neglected was against the manifest weight of the evidence; (2) the court abused its discretion by permitting expedited termination at the dispositional hearing; (3) Traci's procedural due process rights were violated because no hearing was held to determine if the statutory criteria for expedited termination proceedings were met; (4) Traci's procedural due process rights were violated because the court terminated her parental rights prior to conducting an adjudicatory hearing to determine if Davion was abused or neglected; (5) the court's finding that Traci was unfit was against the manifest weight of the evidence; and (6) the court's finding that termination of Traci's parental rights and the appointment of a guardian with the ability to consent to adoption was in Davion's best interest was against the manifest weight of the evidence. For the reasons that follow, we affirm the judgment of the circuit court.

         ¶ 2 BACKGROUND

         ¶ 3 These consolidated cases involve the five minor children of respondent Traci F., who range in age from one to eight years old: Tyianna J., born February 1, 2008; David L. (David Jr.), born May 12, 2010; Hayden F., born August 17, 2012; Daniel N., born August 31, 2013; and Davion N., born April 16, 2015. Although Traci only appeals from the circuit court's orders as they apply to Davion, her history with Tyianna, David Jr., and Daniel is relevant and intertwined with Davion's case. Proceedings relating to Hayden-who was born with serious medical conditions and was ultimately adopted with Traci's consent-have little bearing on the issues raised on appeal and are not discussed in this opinion. Also omitted are discussions of the evidence relating solely to Michael J., Tyianna's father, and David L. (David Sr.), who is the father of David Jr., Daniel, and Davion, as neither father is a party to this appeal.

         ¶ 4 A. The Family's History of DCFS and Court Involvement

         ¶ 5 The Illinois Department of Children and Family Services (DCFS) first became involved with Traci and her children on October 6, 2011, when a security guard alerted Chicago police officers that two small children were seen going in and out of an apartment unit unsupervised. Officers entered the apartment to find three-year-old Tyianna and one-year-old David alone. According to DCFS service plan narratives, "the home was filthy with a limited supply of food, and the children appeared hungry." Traci returned twenty minutes later and claimed that she had gone to get diapers and had left the children with a babysitter. Traci was arrested and charged with two counts of neglect.

         ¶ 6 An intact family services case file was opened on November 1, 2011, to provide intervention services. However, on June 19, 2012, the children were taken into protective custody following two incidents that led DCFS to conclude that Traci "continued to make no changes to be sure her children were adequately supervised, or with appropriate caregivers if she w[as] not at home."

         ¶ 7 An adjudicatory hearing for Tyianna and David Jr. was held on April 16, 2013, at which the parties stipulated to the following facts: Traci had "previously been diagnosed with depressive disorder, postpartum depression and adjustment disorder"; had a "history of non-compliance with psychotropic medication"; had "three prior reports for inadequate supervision and environmental neglect"; and was non-compliant with intact family services offered since November 2011. Pursuant to section 2-3 of the Juvenile Court Act of 1987 (Juvenile Court Act or Act), the circuit court found that Tyianna and David were neglected minors based on a lack of care (705 ILCS 405/2-3(1)(a) (West 2012)) and an injurious environment (705 ILCS 405/2-3(1)(b) (West 2012)), and were abused minors based on a substantial risk of physical injury (705 ILCS 405/2-3(2)(ii) (West 2012)). The circuit court entered dispositional orders placing Tyianna and David Jr. under DCFS guardianship and permanency orders indicating that the goal was for them to return home within 12 months. The court noted that, although Traci had not made substantial progress towards achieving this goal, she had made "some progress." The court admonished Traci that she needed to engage in visitation and services consistently.

         ¶ 8 Traci gave birth to Daniel on August 31, 2013, and he was taken into custody less than three weeks later. On September 17, 2013, the State filed a petition for adjudication of wardship and a motion for the appointment of a temporary custodian for Daniel, asserting that he too was a neglected and abused minor as defined by section 2-3 of the Juvenile Court Act (705 IlCS 405/2-3 (West 2012)). In support of its petition, the State cited Traci's past diagnosis of depression and noncompliance with medication, the fact that she had three other minors (Tyianna, David Jr., and Hayden) in DCFS custody on findings of abuse and neglect, and her noncompliance with services. The circuit court took temporary custody of Daniel and he was placed in foster care with Tyianna and David Jr.

         ¶ 9 Following an adjudicatory hearing held on May 16, 2014, the circuit court entered an order finding that Daniel was a neglected minor based on an injurious environment (705 ILCS 405/2-3(1)(b) (West 2012)) and an abused minor based on a substantial risk of physical injury (705 ILCS 405/2-3(2)(ii) (West 2012)). The court based its ruling on the parties' stipulations of fact, including the prior findings relating to Tyianna and David Jr. and evidence relating to Traci's lack of participation in the services that were recommended to correct the circumstances leading to their removal from Traci's care.

         ¶ 10 That same day, the circuit court held a dispositional hearing for Daniel and a permanency hearing for Tyianna and David Jr. The goal set for Daniel and maintained for Tyianna and David Jr. was to return home within 12 months. The circuit court again concluded that there had been "some progress" but not substantial progress and warned Traci that she was "fast approaching *** the point where [the court would] have to change the goal."

         ¶ 11 After failing to attend several previous appointments, Traci completed a psychiatric evaluation in June 2014. The psychiatrist who evaluated her did not diagnose her as depressed but stated that she needed to attend counseling to work on her issues. Traci had previously been discharged from therapy for a lack of attendance but in July 2014 she was again referred for individual therapy. According to DCFS service plans, her therapist reported that she would often cancel due to sickness, "falling into the same pattern that led her to the initial discharge." Between July and the end of September 2014, the therapist reported seeing Traci only twice.

         ¶ 12 On September 12, 2014, at a combined permanency hearing for Tyianna and David Jr. and dispositional hearing for Daniel, the circuit court changed the goal for Tyianna and David Jr. to substitute care pending termination of parental rights, resulting in Traci's entitlement to visits with them decreasing from once per week to once per month. The goal for Daniel remained to return home within 12 months and Traci continued to be allowed to visit Daniel once per week.

         ¶ 13 B. Davion's History of DCFS and Court Involvement

         ¶ 14 Davion, Traci's youngest child and the one who is the subject of this appeal, was born on April 16, 2015, and taken into custody from the hospital within a matter of days. On April 24, 2015, the State filed a petition for adjudication of wardship and a motion for the appointment of a temporary custodian, asserting that Davion was a neglected and abused minor as defined by section 2-3 of the Act (705 ILCS 405/2-3 (West 2014)). The State noted that Traci had four other children in DCFS custody with findings of abuse and neglect, was permitted only supervised visits with these children, and was "inconsistent with reunification services." In support of its petition, the State attached the affidavit of a DCFS investigator who noted that Traci attended only two of ten prenatal visits during her pregnancy with Davion, Traci's other children were in DCFS custody, and Traci had an "unsatisfactory service plan[ ]." The investigator concluded that Traci was "a substantial risk to [Davion]." The circuit court took temporary custody of Davion and he was placed in foster care with his siblings.

         ¶ 15 The first permanency hearing for Tyianna, David Jr., and Daniel after Davion was born was held on June 16, 2015. Citing Traci's lack of progress, the circuit court determined that the permanency goal for Tyianna and David Jr. would remain substitute care pending termination of parental rights. Recognizing that "there seem[ed] to be on the part of [Traci] some more heightened effort, " however, the court declined to make any finding as to whether Traci had made progress with respect to Daniel and continued his permanency hearing to give Traci "a bit more time to show completely heightened effort."

         ¶ 16 Although Davion was scheduled to visit with Traci and David Sr. together two times per week and with David Sr. alone one additional time per week, DCFS reported at the June 2015 hearing that both parents were inconsistent with their visits. David Sr.'s visits ended when he was arrested on May 30, 2015, and incarcerated in Indiana for a parole violation, with his release set for July 2016, and DCFS reported that Traci missed or canceled approximately one visit per week. Although visitation reports indicate that Traci occasionally held, fed, and changed both Daniel and Davion as infants, they also indicate that she had significantly more trouble with her children as they grew older. DCFS workers noted that Traci became easily frustrated and "d[id] not like to get up and move around during her visits, " causing the workers to doubt her ability "to care for children who are mobile and get into things." Although she "d[id] well with minors who [we]re not yet walking, " they observed that "once they [we]re mobile she [wa]s very resistant to get up to walk around with them" and "need[ed] a significant amount of agency support during her visits."

         ¶ 17 It was also made clear at the June 16, 2015, hearing that Traci's participation in services remained sporadic. Traci began domestic violence services again in November 2014, but it took her approximately six months to complete seven sessions, which she was supposed to attend weekly. Although Traci was described as a "good participant" when she attended the classes, the provider reported to DCFS that Traci's "attendance was poor, and she would often cancel due to headaches, oversleeping and having other business to attend to." Although Traci eventually completed a life skills class in August 2014 and parenting classes, she was unsuccessfully discharged from parent coaching due to a lack of progress. Caseworker Amanda Jolly testified at the June 16, 2015, hearing that, following David Sr.'s incarceration, Traci's visits with the children were "very unstructured" and "chaotic" and "the stress level of everybody in the room was pretty high." When asked to characterize Traci's progress toward reunification with Tyianna, David Jr., Daniel, and Davion, Ms. Jolly stated:

"A. It would I'd say alternate between poor and extremely slow. There's always been patterns of attendance issues with all of her services creating an extended period of time which she ends up needing to engage into these services and then that, of course, slows down the progress within itself because you can't make progress if you don't attend. But then specifically with therapy, there's a lot of concerns that the therapist has stated she's continuing to address that have been outstanding since 2012 when the case opened."

         Summarizing a conversation she had with Traci's therapist, Ms. Jolly noted that Traci's attendance had been better since Davion was born but that the therapist observed that she went "through periods and patterns of not really attending therapy and then attendance [would] get[ ] better and then she [fell] back into the pattern of not attending."

         ¶ 18 At the June 2015 hearing, the State also sought leave to file a motion to terminate parental rights in connection with Davion at his dispositional hearing. The State explained that it was merely asking for the right to file the petition in this manner and that doing so would have no effect on the reunification services offered to Traci. According to the State, a termination hearing would likely not take place for another six months, giving Traci "a chance to put up or shut up, to show that she c[ould] do the services." The State indicated that it would "wait on [Traci's] compliance with services to make a decision whether [to] go forward as to Davion." Traci's attorney made no argument specifically addressing the motion, instead arguing that the permanency goal for Daniel should not be changed. The court granted the State's motion to file a petition for termination at disposition with respect to Davion.

         ¶ 19 On August 10, 2015, the State filed petitions to terminate the parental rights of Traci and the children's respective fathers and to appoint a guardian with the right to consent to the adoption of Tyianna, David Jr., and Daniel. That same day, the State filed its motion to terminate parental rights and appoint a guardian with the right to consent to Davion's adoption at his dispositional hearing. The motion was later amended on June 8, 2016, "to add 705 ILCS 405/2-21(5) termination at dispositional hearing to conform with title of [the] motion." The sole basis for the termination of Traci's rights that the State pursued as to Davion was that Traci "fail[ed] to maintain a reasonable degree of interest, concern or responsibility as to [Davion]'s welfare" (see 750 ILCS 50/1(D)(b) (West 2014)).

         ¶ 20 At a status hearing held on September 28, 2015, Ms. Jolly testified that reunification services continued to be offered to Traci for Daniel and Davion. According to Ms. Jolly, Traci previously completed domestic violence and life skills classes, a parenting capacity evaluation, and a psychiatric evaluation. She was currently in individual therapy but her attendance was "poor." For the past two weeks she had been in Missouri, stating that she had family there and was looking for employment. Traci had been re-referred for parent coaching but those sessions had not yet begun. No medication was prescribed as a result of Traci's psychiatric examination, but her therapist was working with her to address her "constant cancellations for sickness, migraine reports, and just overall lethargic attitude." Ms. Jolly reported that, according to visitation reports, from the beginning of July 2015 through the end of September 2015, Traci attended only 9 visits with her children and cancelled or did not made it to 15 visits. At the conclusion of the September 28, 2015, hearing the circuit court entered an order changing the permanency goal for Daniel to substitute care pending termination of parental rights.

         ¶ 21 When asked specifically about Davion at the September 28, 2015, hearing, Ms. Jolly acknowledged that he recognized Traci during visits and that she had always been a presence in his life. Ms. Jolly also agreed that the parenting capacity evaluation previously undertaken assessed Traci's ability to parent all four children, not just Daniel and Davion. She also acknowledged that the prior parent coaching was terminated before Davion was born.

         ¶ 22 The issue of expedited termination for Davion was again raised at the September 28, 2015, hearing. Traci's counsel, stating that she had just been made aware of the State's motion, asked for an opportunity to object in writing and the parties briefed the issue.

         ¶ 23 A hearing was held on November 30, 2015, regarding Traci's objections to the motion to terminate her parental rights as to Davion at the dispositional hearing. The circuit court concluded the hearing as follows:

"All right. I have obviously read the papers. I am certainly knowledgeable about the status. I am inclined to agree with the State. Mother is left to considerable proofs at the point of disposition. So I am going to allow the People to proceed. And certainly [Traci] through her counsel can put forth all of the evidence that would mitigate against termination and dispo at that time."

         ¶ 24 Following this determination, Ms. Jolly provided the court with another status report. Ms. Jolly testified that Traci had been discharged from individual therapy for noncompliance, which was at that time the only ongoing service in which she was engaged; had not visited her children at all in the past two months; and had had no contact with Ms. Jolly outside of court. According to Ms. Jolly, Traci indicated that she had some medical issues to take care of relating to a heart murmur and would be having surgery some time during the next month. Traci's therapist had "expressed ongoing concerns about possible depression, " despite the fact that depression had been ruled out in a previous psychiatric evaluation, and had advised Traci to engage in individual therapy consistently, which she was not doing currently.

         ¶ 25 C. Adjudicatory, Dispositional, and Termination Hearing

         ¶ 26 A two-day evidentiary hearing began on March 23, 2016, and continued on June 7, 2016. The stated purpose of that hearing was for the court to hear overlapping evidence regarding whether Davion was abused or neglected (i.e., an adjudicatory hearing) and concerning Traci's fitness as to Tyianna, David, Jr., and Daniel, which would also apply to Davion if he was later adjudged a ward of the court.

         ¶ 27 The circuit court first took judicial notice of the adjudication and disposition orders for Tyianna, David, and Daniel and admitted a number of exhibits into evidence, including DCFS family service plans and visitation reports, certificates of completion, and evaluations from various service providers. The court then heard testimony from caseworker Amanda Jolly and Dr. Anne Devaud, the clinical psychologist referred to assess Traci's parenting capacity.

         ¶ 28 Ms. Jolly testified that she was assigned to Traci and her family in June 2013 but was familiar with the case from its inception because she had acted as a supervisor for the prior caseworkers. Ms. Jolly acknowledged that Traci had made some progress. When she was engaged with parent coaching she had made some improvement, her children always seemed comfortable and happy to see her, and she had improved in her ability to praise them and interact with them. Although Traci always indicated that she wanted her children returned to her and expressed a willingness to engage in services, Ms. Jolly testified that Traci had been unsuccessfully discharged from parent coaching once and from individual therapy twice for poor attendance. Ms. Jolly reported that Traci was recently referred for a third time to individual therapy but failed to appear at two separate intake appointments. Ms. Jolly described Traci's visits with the children as "erratic" and observed that she had difficulty controlling the children during visits. In Ms. Jolly's opinion, Traci's poor attendance had "impeded her ability to really work on issues regarding her own stability, her own mental health, and how that relates to her parenting." Ms. Jolly believed that Traci was consequently no closer to having her children returned to her than she had been when Ms. Jolly was assigned to the case in 2013.

         ¶ 29 Dr. Devaud testified that, in May 2013, her clinic was asked to prepare a parenting capacity assessment addressing whether Traci was ready to have unsupervised visits. After reviewing Traci's file, interviewing her for a total of three hours, and observing her with the children, Dr. Devaud concluded that Traci suffered from "depression coupled with lethargy and irritability" and failed to show warmth to the children. She further concluded that there was a poor likelihood that Traci would be able to parent the children on her own. At that time, Dr. Devaud had recommended therapy and parent coaching, services that had already been unsuccessfully offered. She noted that Traci "did appear to have a pattern of poor follow-through."

         ¶ 30 Following this testimony, the court continued the case until June 30, 2016, for its rulings on fitness and a possible termination and best interest hearing. On June 30, 3016, the court found Traci unfit as to Tyianna, David Jr., and Daniel, pursuant to subsection (m) of section 1(D) of the Adoption Act (750 ILCS 50/1(D)(m) (West 2014)). The court made the following findings with respect to these three minors:

"The testimony is very clear, and the evidence is very clear to this Court that over the course of nearly four years, mom was discharged on three separate occasions without successfully completing her individual therapy, was discharged for lack of participation in parent coaching, and was essentially in denial about the need to meaningfully participate in domestic violence counseling because she was in denial about dad's [David Sr.'s] controlling behavior.
** *
And when mom did have visits with her children, she essentially was overwhelmed. The testimony is clear that there are times when mom just couldn't deal with the kids in a nurturing manner. ***
** *
And I want to bend over backwards to give anybody a shot at trying to keep their kids. But there comes a point, and I really honestly had to say objectively that four years is that point, that it's got to just stop."

         ¶ 31 The court additionally found that-with respect to Tyianna, David Jr., and Daniel-Traci was unfit pursuant to subsection (b) of that same section (750 ILCS 50/1(D)(b) (West 2014)):

"I do believe that [Traci] did have interest in her children. I do think she was concerned. This is not a case where she just blew it off and didn't ...

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