23 order filed April 20, 2018
from the Circuit Court of Ogle County, No. 16-JA-33; the Hon.
John B. Roe IV, Judge, presiding.
L. Chudoba and Mindy R. Chudoba, of Faulkner Spears &
Chudoba, LLC, of Rockford, for appellant Cynthia S.
W. Cargerman, of Oregon, for appellant Edward S.
Morrow, State's Attorney, of Oregon (Patrick Delfino,
David J. Robinson, and Stephanie Hoit Lee, of State's
Attorneys Appellate Prosecutor's Office, of counsel), for
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justice Spence concurred in the judgment and
opinion. Presiding Justice Hudson specially concurred, with
1 On October 12, 2017, the circuit court of Ogle County
issued a dispositional order in this case that (1) made
K.E.S. a ward of the court; (2) found both her mother,
Cynthia S., and her father, Edward S., unfit; and (3) granted
guardianship and custody of K.E.S. to the Department of
Children and Family Services (DCFS). Both parents filed
separate appeals, which we ordered consolidated. We affirm
the trial court's finding of unfitness with respect to
Edward, reverse its finding that Cynthia was unfit, and
remand for further proceedings.
2 I. BACKGROUND
3 On December 29, 2006, K.E.S. was born to Cynthia and
Edward, who were married. In 2007, Edward was arrested for
domestic battery after Cynthia accused him of pushing her
while she was holding K.E.S. Edward denied the accusation and
was never convicted of that charge. In 2009, Edward
petitioned to dissolve his marriage to Cynthia. That same
year, based on further allegations by Cynthia that he abused
her, an order of protection was entered against him.
4 The marriage was dissolved in 2012, and in 2013 Cynthia was
granted custody of K.E.S. The custody order required Edward
to go through reunification counseling with a counselor at
the office of Dr. Marianne Geiger before he could have
contact with K.E.S. The custody order further modified the
order of protection (which was extended until 2017) to allow
Edward to participate in counseling sessions at which Cynthia
and K.E.S. were present. Although Edward made an initial
appointment to begin the counseling, he later cancelled it as
it was too expensive. As of early 2017, he had had no contact
with K.E.S. since she was two years old.
5 On November 16, 2016, Cynthia and K.E.S. were in a rollover
car accident, reportedly after Cynthia was driving
erratically at high speed. K.E.S. was not injured, but
Cynthia was hospitalized for three weeks for mental health
concerns. K.E.S. was initially released into the care of
Joseph Ganus. Ganus had been hired by DCFS in 2012 to assist
Cynthia, who had physical limitations. He eventually moved in
with Cynthia and K.E.S. as a roommate, providing
housecleaning services, driving, and some medical assistance.
However, after DCFS learned that Ganus did not have authority
to make medical decisions for K.E.S., that the home did not
have heat, and that K.E.S. was involved in truancy
proceedings for school absences, a neglect petition was
6 On December 22, 2016, DCFS was appointed temporary guardian
and K.E.S. was placed in a foster home. Cynthia was permitted
twice-weekly supervised visits with K.E.S. On February 20,
2017, the juvenile court denied Cynthia's request to
extend the order of protection and Edward was permitted to
begin a reunification process with K.E.S. That process began
with Edward having monthly telephone conversations with
K.E.S. during some of her individual therapy sessions with
Dr. David Klemm, a psychologist.
7 On May 18, 2017, the State filed its second amended neglect
petition, alleging that K.E.S. was neglected in that, at the
time of the initial December 2016 petition, (1) Cynthia had
mental health issues that prevented her from properly
parenting K.E.S. and placed K.E.S. at risk, (2) K.E.S. was
without proper care because Cynthia was hospitalized and
Edward was barred from contact with her, (3) Cynthia's
home had no heat or food, and (4) Cynthia's car accident
arising from her psychological condition had placed K.E.S. in
danger. At a court hearing on that same day, Cynthia
stipulated to the allegations for the purpose of
adjudication, and the trial court found that K.E.S. was a
dependent and neglected minor.
8 The dispositional hearing began on July 11, 2017, and
continued on July 31 and August 29. The evidence presented
included the following.
9 DCFS and Court Appointed Special Advocates (CASA) each
submitted reports dated May 31, 2017. In its report, DCFS
began by noting that, due to allegations of physical
aggression by Edward against Cynthia, an intact-family case
was opened in March 2008. The parties separated, with Cynthia
as the primary caregiver for K.E.S. In August 2008, Cynthia
attempted suicide. Edward cared for K.E.S. for a short time
until Cynthia could resume parenting duties. Cynthia
participated in mental health treatment and addressed
domestic violence issues with a different therapist at the
same clinic where Dr. Geiger worked. She also attended
Marriage First classes, including parenting classes, and she
displayed an understanding of the skills taught. She obtained
an order of protection against Edward. The case was
satisfactorily closed in March 2009.
10 Cynthia had chronic medical conditions, most involving her
gastrointestinal system, plus asthma, migraines, and
allergies. She had been prescribed several medications. Upon
her release from the hospital in December 2016, Cynthia was
prescribed several psychotropic medications to aid in her
stabilization. She did not fill these prescriptions, as her
medical card had expired. She also did not follow up on her
first referral for counseling, as Edward had been referred to
the same program and she did not feel comfortable or safe
attending the program.
11 In March, Cynthia began seeing Margaret Corcoran, a
therapist at a different center. At the first visit, Corcoran
suggested that Cynthia be hospitalized. Cynthia voluntarily
admitted herself to a hospital in Dixon, where she remained
for about a week and was able to obtain the medications she
had been prescribed earlier. The DCFS report stated that
Corcoran requested the admission because Cynthia was shaking
uncontrollably and possibly depressed. At the dispositional
hearing, however, Corcoran testified that she recommended
hospitalization because it was the most expedient way to have
Cynthia evaluated and her medication reviewed. Since then,
Cynthia had been seeing Corcoran every two weeks for about
three months and was compliant with all of her medications.
Cynthia was doing well, and Corcoran opined that, as long as
she continued to attend therapy and take her medication, she
was stable enough to resume parenting K.E.S.
12 As to the home, DCFS noted that, after the home that
Cynthia and Ganus had been renting went into foreclosure,
Ganus bought a two-bedroom mobile home for them to live in.
Ganus helped Cynthia keep track of her appointments and
transported her to them. Cynthia paid the lot rent each
month. The home was clean and well-stocked. Cynthia's
visits with K.E.S. took place in the home and were going
13 As for Edward, he was a truck driver and was often on the
road. When he was home, he lived with a woman named Sherrel
Isler and her three children. Edward and Isler also had a
five-month-old son. However, Edward stated that he and Isler
were not in a romantic relationship.
14 DCFS referred Edward to a counseling center. He arrived
for his first appointment with Isler and, when told that she
could not be present during his session, he refused to
proceed with the counseling. Although DCFS had suggested
other services, Edward declined to participate in them,
pointing out that there were no allegations of abuse or
neglect against him in the neglect petition. DCFS asked to
include Isler and her children in the assessment and to visit
their home to ensure that it was safe, but Edward and Isler
refused on the ground that they were not legally required to
submit to this.
15 Edward had begun having phone conversations with K.E.S.
that were monitored by her therapist, Dr. Klemm. As of the
end of May, he had had four such telephone
"visits." Edward also met with Dr. Klemm on two
occasions, at Dr. Klemm's request. Edward wanted K.E.S.
to live with him, Isler, and their children.
16 DCFS also spoke with K.E.S. She was doing well at her
foster home and in school. K.E.S. reported having a good
relationship with Cynthia and wanted to resume living with
her. K.E.S. was afraid of Edward, telling the DCFS worker
that he had hit her when she was a baby and had shown up in
her and her mother's "territory" even when the
order of protection was in place. K.E.S. did not want to live
with her father. She would prefer to live with her mother and
visit with her father on weekends. If she could not live with
her mother, she would rather stay with her foster mother.
17 In the report's conclusion, DCFS stated that the
"safety issues" that had brought K.E.S. into care
had diminished to the point that they were now "risk
concerns." DCFS acknowledged Cynthia's progress in
therapy and compliance with prescribed medications, albeit
noting that she still appeared to have limited insight into
the needs and well-being of K.E.S. and her own impact on
those. DCFS also expressed concern over Edward's refusal
to cooperate with the agency's suggestions, referrals,
and home safety concerns. DCFS recommended that K.E.S. remain
in foster care for the time being, with the goal of returning
18 The initial CASA report contained similar conclusions and
recommendations. CASA observed a visit between K.E.S. and
Cynthia, at which K.E.S. was animated and talkative. Her
foster mother reported that K.E.S. came home happy after
visits with her mother. CASA reported that, once the
telephone "visits" with her father started,
K.E.S.'s school called to report that she was not eating
her lunch. Further, on May 22, 2017, Edward told K.E.S. on
the phone that she would be coming to live with him after the
June 7, 2017, status hearing. After this, K.E.S. again
stopped eating and she hung strings across her bedroom door
so that no one could come in. CASA was concerned by all of
this and also by Edward's noncooperation with DCFS
recommendations and requests.
19 Prior to the first day of the dispositional hearing, DCFS
and CASA each submitted addenda to their reports, covering
events between May 31 and July 10. DCFS included more
information about K.E.S.'s individual therapy with Dr.
Klemm, which had begun in early February and was going well.
K.E.S. was reported to have made significant progress,
developing healthy coping strategies and being able to
express attachment to others. DCFS reported that, after
several weeks of telephone conversations between K.E.S. and
Edward during therapy, a face-to-face meeting occurred on
June 12. K.E.S. was introduced to her father but was very
frightened and would only say "hi" and
"bye." The visit was then cut short at K.E.S.'s
request. After the meeting, K.E.S. was quiet, had trouble
sleeping, and asked that any future visits be by telephone
only. DCFS nevertheless recommended further in-person
counselor-supervised visits so that K.E.S. could "reach
a place of comfort with her father."
20 DCFS had held an administrative case review on June 28.
Edward was rated unsatisfactory, as he had not signed
requested consents or obtained a mental health assessment and
individual therapy as requested by DCFS. Cynthia was rated as
satisfactory on all of the tasks in her service ...