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FOURTH DIVISION
DECEMBER 26, 2002

1-01-4020

JUSTICE HARTMAN delivered the opinion of the court:

Following a hearing, the circuit court found respondent, EricaM., to be an unfit parent and terminated the parental rights to herchildren, Deshante M. (born December 23, 1992) and Dreonte M. (bornJune 20, 1996).⁽¹⁾ The court also held that it would be in thechildren's best interest that a guardian with the right to consentto their adoption be appointed. Respondent appeals, contendingthat termination of her parental rights was not in the children'sbest interest in light of the related foster mother's unwillingnessto adopt the children.

The issue presented for review is whether the circuit court'stermination of respondent's parental rights was against themanifest weight of the evidence.

On October 29, 1998, the State filed petitions foradjudication of wardship for both children and moved to place themin the temporary custody of a Department of Children and FamilyServices (DCFS) guardianship administrator. Following a hearing,the circuit court found probable cause to believe the children wereabused or neglected and that it was a matter of immediate andurgent necessity that the children be placed temporarily in thecustody of a DCFS guardianship administrator.

After an adjudicatory hearing on June 22, 1999, the circuitcourt adjudicated both children abused and neglected. Deshante wasborn drug exposed in violation of section 2-3(1)(c) (705 ILCS405/2-3(1)(c) (West 2000)) of the Juvenile Court Act of 1987 (705ILCS 405/1-1 et seq. (West 2000) (Juvenile Court Act)) and Dreontewas subjected to an injurious environment and a substantial risk ofphysical injury in contravention of sections 2-3(1)(b) and 2-3(2)(ii) (705 ILCS 405/2-3(1)(b), (2)(ii) (West 2000)) of theJuvenile Court Act.

On September 10, 1999, the circuit court adjudicated thechildren wards of the court and ruled that respondent was unable,unwilling and unfit to care for, protect, train and disciplineDeshante and Dreonte. The DCFS guardianship administrator then wasappointed with the right to place the children.

On January 16, 2001, the State filed supplemental petitions toterminate respondent's parental rights and moved to appoint aguardian with the right to consent to the children's adoptions. The petitions alleged that respondent was an unfit parent becauseshe: (1) abandoned the children; (2) failed to maintain areasonable degree of interest, concern or responsibility for thechildren's welfare; (3) deserted the children for more than threemonths next preceding the commencement of the terminationproceedings; (4) was an habitual drunkard and/or addicted to drugsother than those prescribed by a physician for at least one yearimmediately prior to the commencement of the unfitness proceeding;and (5) failed to make reasonable efforts to correct the conditionswhich were the basis for the removal of the children and/or to makereasonable progress toward the return of the children within ninemonths after the adjudication of abuse or neglect and/or within anynine month period after said finding.

During the unfitness portion of the termination proceedings,the State and Public Guardian published several DCFS service plansthat had been admitted into evidence. An April 13, 1999 serviceplan stated that respondent made unsatisfactory progress toward thereturn of her children and documented that she neither sought tocomplete services, nor visited the children more than once in theprevious three months. The October 13, 1999 service plan ratedrespondent's progress toward the goal of returning her childrenhome as unsatisfactory and noted that no services were put in placedue to her lack of interest in complying with the social servicesagency. This plan also stated that respondent was expected tocomplete a drug treatment program at the Cook County Jail. AnApril 13, 2000 service plan stated that respondent did not makeherself available for services and documented that she wasincarcerated due to her August 2000 arrest for possession of acontrolled substance. During her incarceration, respondent did notsend cards, gifts or money to her children.

Follow-up reports stated that respondent had completed herdrug treatment program in March 2001. Since that time, respondenthas visited the children at least once a week.

The circuit court found respondent unfit, noting that shefailed to maintain a reasonable degree of interest, concern andresponsibility for the welfare of her children and to makereasonable efforts to correct the conditions which were the basesof the children's removal from custody within nine months of theadjudication date. According to the court, respondent neithercompleted any services, nor visited the children on a regularbasis.

A best interest hearing followed, wherein Valencia Phillips,a case manager for Central Baptist Family Services, testified ondirect examination that the children were placed with DanielleBarnes, respondent's niece. Phillips described the home as safeand appropriate. She stated that the children are bonded closelywith their foster mother. Barnes' three biological children alsohave bonded well with Deshante and Dreonte. Phillips did notobserve signs of abuse or neglect in the foster home. According toPhillips, the foster placement was stable since February 2001.

Phillips also stated she did not discuss adoption with thechildren due to their young ages. Barnes refused to adopt Deshanteand Dreonte because she did not want to interfere with therelationship between respondent and her children. Phillipsdiscovered that Barnes did not want to adopt the childrenimmediately prior to the parental rights termination hearing.

On cross-examination, Phillips testified that the childrenwished to remain with Barnes. Phillips recommended that subsidizedguardianship would be in the children's best interests. She statedthat moving from Barnes' home would be traumatic for the childrenbecause of their close-knit bond with Barnes. Although thechildren could be removed from Barnes' home if respondent'sparental rights were terminated, Phillips testified that it was inthe best interests of the children to terminate respondent'sparental rights.

Barnes testified that she has a good relationship withDeshante and Dreonte. According to Barnes, the children always arehappy to see respondent when she visits them.

Following closing argument, the circuit court found thattermination of respondent's parental rights was in the bestinterest of the children. The court stated that Barnes' refusal toadopt should not outweigh the children's need for a long-term,stable relationship and noted that this case has been "in thesystem" for three years, "an enormous amount of time [forrespondent] to get [her] act together."

The circuit court also expressed hope that Barnes wouldreconsider her decision not to adopt the children, but stated "[i]fshe is not willing to make that commitment, the agency has to takethat into consideration about what plans are made for permanencyfor these children based on my findings that it is in the bestinterest of both of the minors" that respondent's parental rightsbe terminated. The court then appointed a DCFS guardian with theright to consent to adoption.

Respondent appeals the circuit court's decision to terminateher parental rights, but not the finding that she was unfit. Sheasserts that termination of her parental rights was not in the bestinterest of the children when considering Barnes' refusal to adoptthe children. Respondent notes that the children were thriving intheir current placement and the possibility of the children'sremoval from Barnes' custody following the termination ofrespondent's parental rights would be traumatic and fracture theultimate goal of stability.

The State and Public Guardian respond that the absence of anadoptive home is not a bar to termination of parental rights.

Although Illinois courts review parental fitness andtermination findings separately, the standard of review for theseissues often is not differentiated and instead is conglomerated. See In re M.P., 324 Ill. App. 3d 686, 692 755 N.E.2d 1063 (2001);In re M.J., 314 Ill. App. 3d 649, 655, 732 N.E.2d 790 (2000). Also, there has been disagreement among the divisions of the FirstDistrict and other appellate districts as to whether an abuse ofdiscretion standard⁽²⁾ or manifest weight standard⁽³⁾ should be appliedin parental rights termination cases. In addition, some reviewingcourts have combined the abuse of discretion and manifest weightstandards of review when considering termination findings. See Inre G.L., 329 Ill. App. 3d 18, 25, 768 N.E.2d 367 (1st Dist., 1stDiv. 2002); In re C.M., 319 Ill. App. 3d 344, 360, 744 N.E.2d 916(1st Dist., 4th Div. 2001); In re Sheltanya S., 309 Ill. App. 3d941, 955, 723 N.E.2d 744 (1st Dist., 5th Div. 1999); In re A.A.,324 Ill. App. 3d 227, 234, 754 N.E.2d 826 (5th Dist. 2001). As aresult, the standard of review to be applied in cases solelyquestioning the termination of parental rights remains unclear.

Normally, a circuit court's findings of fact are reviewedunder the manifest weight of the evidence standard. Kel-KeefEnterprises, Inc. v. Quality Components Corp., 316 Ill. App. 3d998, 1012, 738 N.E.2d 524 (2000). Because sufficient facts must bepresented to and found by the court in determining abuse, neglector dependence, a factual-basis presentation also is required for afinding of unfitness. In re M.H., 196 Ill. 2d 356, 366, 751 N.E.2d1134 (2001). The supreme court definitively has held that achallenge to the sufficiency of evidence in a fitness findingresulting in the termination of parental rights is subject to themanifest weight standard of review. In re D.F., 201 Ill. 2d 476,495, 777 N.E.2d 930 (2002); In re D.D., 196 Ill. 2d 405, 417, 752N.E.2d 1112 (2001); In re A.B., 308 Ill. App. 3d 227, 240, 719N.E.2d 348 (1999).

Once the circuit court has found by clear and convincingevidence that a parent is unfit as defined in section 1(D) (750ILCS 50/1(D) (West 2000)) of the Adoption Act, the State's interestin protecting the child sufficiently is compelling to allow ahearing to determine whether the termination of parental rights isin the best interests of the child. See 705 ILCS 405/2-29(2) (West2000); In re R.C., 195 Ill. 2d 291, 308, 745 N.E.2d 1233 (2001). The appellate court in In re D.R., 307 Ill. App. 3d 478, 484, 718N.E.2d 664 (1999) (D.R.) noted the importance of separate hearingsto determine parental fitness and the best interests of the child,stating, "a single hearing consolidating the issues of unfitnessand best interest carries a risk of prejudice." See also In reAdoption of Syck, 138 Ill. 2d 255, 275-76, 562 N.E.2d 174 (1990)(Syck). During a parental fitness hearing, the parent's pastconduct is under scrutiny. Syck, 138 Ill. 2d at 276. In contrast,during a parental rights termination hearing, the court focusesupon the child's welfare and whether termination would improve thechild's future financial, social and emotional atmosphere. Syck,138 Ill. 2d at 276; In re J.T.C., 273 Ill. App. 3d 193, 200, 652N.E.2d 421 (1995). "'A separate hearing and determination of thechild's best interests is mandatory in order to ensure the properfocus on those interests.'" D.R., 307 Ill. App. 3d at 484, quotingIn re A.P., 277 Ill. App. 3d 593, 600, 660 N.E.2d 1006 (1996)(A.P.).

Although proof by clear and convincing evidence of onestatutory factor of unfitness is sufficient to warrant a parentalrights termination hearing (M.S., 302 Ill. App. 3d at 1002), thecircuit court cannot rely solely on fitness findings to terminateparental rights (In re B.C., 247 Ill. App. 3d 803, 617 N.E.2d 1207(1993) (B.C.)). The court is required to consider factually-basedstatutory factors, separate from those considered during parentalfitness hearings, which focus upon "the child's age anddevelopmental needs," including, inter alia, (1) the child'sphysical safety and welfare (food, shelter, health and clothing);(2) a sense of attachment, including where the child actually feelsloved, valued and secure, and considering the least disruptiveplacement alternative for the child; (3) the child's wishes andlong-term goals; (4) the child's need for permanence, whichincludes the need for stability and continuity of relationshipswith parental figures, siblings and other relatives; (5) the risksattendant to entering and being in substitute care; and (6) thepreferences of the persons available to care for the child. 705ILCS 405/1-3(4.05) (West 2000). Because the court must considerthese factual bases, which are separate and unrelated to parentalfitness statutory factors that already have been proven by clearand convincing evidence, an appeal involving parental rightstermination findings requires its own manifest weight standard ofreview.

Nevertheless, reviewing courts have applied the abuse ofdiscretion standard in parental rights termination cases althoughthe circuit courts' findings were factually-based. See In reJeffrey S., 329 Ill. App. 3d 1096, 1101, 769 N.E.2d 1114 (2002);M.S., 302 Ill. App. 3d at 1003; In re V.O., 284 Ill. App. 3d 686,691, 673 N.E.2d 439 (1996). Under the abuse of discretionstandard, the reviewing court must determine whether the circuitcourt "'acted arbitrarily without the employment of conscientiousjudgment or, in view of all the circumstances, exceeded the boundsof reason and ignored recognized principles of law so thatsubstantial prejudice resulted.'" Kaden v. Pucinski, 263 Ill. App.3d 611, 615, 635 N.E.2d 468 (1994), quoting Zurich Insurance Co. v.Raymark Industries, Inc., 213 Ill. App. 3d 591, 594-95, 572 N.E.2d1119 (1991). Accordingly, if the admission or denial of evidenceduring the parental rights termination hearing is at issue onappeal, rather than the sufficiency of evidence, the abuse ofdiscretion standard of review is appropriate. See In re M.B.C.,125 Ill. App. 3d 512, 514, 466 N.E.2d 273 (1984) (holding thecircuit court did not abuse its discretion by allowing evidence ofthe biological father's criminal convictions for purposes ofshowing depravity that statutorily warranted termination ofparental rights). If, however, the sufficiency of evidencepresented at the parental rights termination hearing is challengedon appeal, the appropriate method of review is the manifest weightstandard.

In the instant case, review of the circuit court's factualfindings warranting the termination of respondent's parental rightsare subject to the manifest weight standard of review. A decisionis against the manifest weight of the evidence and subject toreversal on appeal if the facts clearly demonstrate that the courtshould have reached the opposite result. In re N.B., 191 Ill. 2d338, 346, 730 N.E.2d 1086 (2000). The reviewing court does notreweigh the evidence or reassess the credibility of the witnesses. In re K.B., 314 Ill. App. 3d 739, 748, 732 N.E.2d 1198 (2000). Thequestion of what is in the best interests of the child should notbe treated lightly. A.P., 277 Ill. App. 3d at 599.

In support of her argument that the circuit court's decisionwas against the manifest weight of the evidence, respondent citesB.C., which held that the mother's parental rights were terminatedimproperly although she was found to be a depraved person and anunfit parent due to her criminal background, which included theattempted transmission of HIV and drug use. 247 Ill. App. 3d at807. The evidence demonstrated that the mother had participated invarious programs for drug rehabilitation since being incarcerated. She also completed other programs aimed at helping her reestablishherself in society. Further, a DCFS caseworker testified that itwas not in the minor's best interest to be adopted; that the minorloved his mother and had a strong desire to be with her; and thatthe minor would suffer emotional trauma if the mother's parentalrights were terminated.

The B.C. court found that the State failed to prove by clearand convincing evidence that it was in the children's best interestto sever the mother's parental rights. The court stated that "whenthe State relies solely upon a finding of depravity to support thetermination of parental rights, it must establish some connectionbetween the depraved conduct and the alleged need to terminateparental rights." B.C., 247 Ill. App. 3d at 807.

In the case sub judice, the State presented evidence beyondthe unfitness findings that are distinguishable factually from B.C. The State connected the findings of unfitness to evidencewarranting the termination of respondent's parental rights byestablishing that respondent failed to complete any servicestowards reunification, exposed the children to a drug environmentby using controlled substances while caring for them, failed tomaintain regular contact with the children and visited them onlysporadically. The record shows the children were in a safe andappropriate foster placement, with no signs of abuse or neglect. They bonded well to their foster parent and the other children inthe home. Although there was testimony that the children wouldfind the discussion of adoption confusing and traumatic, Phillipsnevertheless supported Barnes' desire for subsidized guardianshipand recommended that it was in the children's best interest toterminate respondent's parental rights. Unlike B.C., there was noevidence indicating that the children would suffer emotional traumashould termination or adoption occur.

Respondent also relies upon a California Court of Appealdecision, In re Jayson T., 97 Cal. App. 4th 75, 118 Cal Rptr. 228(2002) (Jayson T.), to argue that the effect of the circuit court'sorder was to render Deshante and Dreonte legal orphans with nocountervailing evidence that they were adoptable. In Jayson T.,the court reversed the judgment terminating parental rights andremanded the cause for an "updated review hearing" pursuant tosection 366.26 (Cal. Welf. & Inst. Code