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In re M.S.

Court of Appeals of Illinois, First District, Second Division

May 1, 2018

In re M.S., a Minor
Marie H., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of Cook County. No. 13 JA 344 The Honorable Kimberly D. Lewis, Judge, presiding.

          JUSTICE HYMAN delivered the judgment of the court, with opinion Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.


          HYMAN, JUSTICE.

         ¶ 1 M.S. and his older brother, J.S., were made wards of the court and have lived with foster parent Crystal B. since 2013. Caseworkers found that both boys were thriving, that Crystal's home was a safe and appropriate placement for them, and that it would be in the children's best interests to appoint Crystal as their guardian. The boys wanted to continue living with Crystal and did not want to return to their mother's home. After the trial court appointed Crystal as J.S.'s guardian (In re J.S., 2017 IL App (1st) 170506-U), the court granted the State's petition for the appointment of Crystal as M.S.'s guardian. M.S.'s mother, Marie H., argues the trial court violated the Juvenile Court Act and her due process rights by having an off-the-record, ex parte conversation with M.S. before the guardianship hearing and relying on that conversation, in part, in deciding to appoint Crystal as guardian. Marie asks that we remand for a new guardianship hearing before a different judge.

         ¶ 2 The facts and law before us justify the trial court's order appointing Crystal the guardian of M.S. so we affirm. Marie's attorney did not object during the hearing when the trial judge said she had a conversation with M.S. If Marie had raised an issue about the conversation, the trial court could have addressed it. Thus, Marie forfeited the issue. And Marie has not shown she was prejudiced by the conversation as multiple witnesses testified that M.S. said he wanted to continue living with Crystal.

         ¶ 3 Background

         ¶ 4 M.S., now age 13, is the son of Marie H. and A.S. (A.S. is not party to this appeal). In July 2012, the State filed a petition in Kane County for adjudication of wardship for M.S., as well as his older brother, J.S., and his seven other siblings. The petition alleged neglect of M.S. due to an environment injurious to his welfare and that he was without care necessary for his well-being, including adequate food, clothing, and shelter. Specifically, the petition stated that M.S. resided in a home without electricity or sufficient food and that his mother's substance abuse issues and domestic violence in the home placed him at risk of harm.

         ¶ 5 In December 2012, the Kane County circuit court entered a dispositional order adjudicating M.S. neglected. He was made a ward of the court and placed in the guardianship of the Department of Children and Family Services (DCFS). The court found both parents unfit and unable to care for, protect, train, educate, or discipline M.S. for reasons other than financial circumstances alone. The court cited a history of domestic violence in the home and noted that services had begun but the parents needed to make more progress and establish an adequate care plan. The order stated that while reasonable efforts and appropriate services aimed at family reunification had been made to keep M.S. in the home, these actions have not eliminated the necessity for his removal, as the parents failed to cooperate with services in two previous intact cases. The permanency goal was set as return home in 12 months and supervised visitation was ordered.

         ¶ 6 When M.S.'s parents moved, the case was transferred to Cook County. In 2013, M.S. and his brother, J.S., were placed in the home of foster parent, Crystal B. In December 2013, after a permanency hearing, the trial court determined that M.S. was doing well in his foster home. M.S.'s parents were compliant with services but needed to make more progress. M.S.'s permanency goal was to return home within 12 months.

         ¶ 7 Ten months later, after a permanency hearing at which both parents were present, the permanency goal was changed to private guardianship, which remained the goal for the remainder of the case.

         ¶ 8 In 2016, a new trial judge held a permanency hearing for M.S. and J.S. By that time, Marie's other children had been successfully returned home, and M.S. and J.S. continued to live with Crystal. The caseworker testified that the boys had a planned visit home on Thanksgiving 2015. Before the visit, Marie called Crystal and told her M.S. and J.S. would be returning home and that she intended to sue DCFS. Then, J.S. received a text from his sister saying he was "breaking his mom's heart for not wanting to come home." J.S. responded by text that he and his brother were not supposed to discuss the case. Crystal brought the boys to Marie's home, but shortly after their arrival, J.S. and his sister got into an argument, and J.S. called Crystal and asked her to pick them up.

         ¶ 9 The caseworker testified that after Thanksgiving the brothers did not want further visitations. A visit was scheduled for February 2016, but Marie texted J.S., and the boys changed their minds. They told the caseworker that Marie always wants to "discuss the case and ask them why they are not returning home." Although they desired to see their siblings, the brothers considered the visits to their mother's home to be uncomfortable because of the conversations about the case.

         ¶ 10 According to the caseworker, M.S. did well in school and had an individualized education program (IEP), with Crystal monitoring his homework and M.S. receiving tutoring services. He participated in extracurricular activities and played on two basketball teams. M.S. told the caseworker he wanted to remain with his brother with guardianship as the goal; he does not wish to return to his parents due to the history in the home.

         ¶ 11 M.S.'s mother, Marie, told the trial court that she has nine children and she does not "think that it's right to separate the two, because it's hurting the whole home. My kids want their brothers home. We want our kids home." The trial judge told Marie, "it's evident you love your children, " and praised Marie for ...

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