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In re K.E.S.

Court of Appeals of Illinois, Second District

May 9, 2018

In re K.E.S., a Minor
Cynthia S. and Edward S., Respondents-Appellants. The People of the State of Illinois, Petitioner-Appellee,

          Rule 23 order filed April 20, 2018

          Appeal from the Circuit Court of Ogle County, No. 16-JA-33; the Hon. John B. Roe IV, Judge, presiding.

          Brandi L. Chudoba and Mindy R. Chudoba, of Faulkner Spears & Chudoba, LLC, of Rockford, for appellant Cynthia S.

          Alan W. Cargerman, of Oregon, for appellant Edward S.

          Eric 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 the People.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Spence concurred in the judgment and opinion. Presiding Justice Hudson specially concurred, with opinion.



         ¶ 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 filed.

         ¶ 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 well.

         ¶ 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 home.

         ¶ 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 ...

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