In re M.B.

Case Date: 07/17/2002
Court: 1st District Appellate
Docket No: 1-01-1289 Rel

THIRD DIVISION

JULY 17, 2002






No. 1-01-1289

 

IN RE INTEREST OF M.B., ) Appeal from the
       ) Circuit Court of
      Minor/Respondent/Appellee ) Cook County.
)
The People of the State of Illinois )
)
      Petitioner/Appellee, )
)
                      v. )
)
YVETTE NEAL, ) Honorable
) Noreen Daly,
      Respondent/Appellant. ) Judge Presiding.

 

JUSTICE CERDA delivered the opinion of the court:

Following an adjudicatory hearing upon the petition ofpetitioner, the People of the State of Illinois (State), thecircuit court found respondent M.B., the minor daughter ofrespondent, Yvette Neal, and Mark B., who is not party to thisappeal, neglected and abused pursuant to section 2-3 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3 (West 2000)). At a subsequent dispositional hearing, the court adjudicated M.B.a ward of the court, found respondent unfit and unable as aparent, and directed M.B. placed with the Department of Child andFamily Services (DCFS). Respondent now appeals, challenging thecircuit court's finding of unfitness. For the following reasons,we affirm.

BACKGROUND

State's Petition

On May 16, 2000, the State filed a petition seeking an orderadjudicating M.B. a ward of the court on the grounds she had beenneglected, abused and was dependent pursuant to sections 2-3 and2-4 of the Act, respectively. The State's petition specificallyasserted M.B. had been physically abused by her natural fatherMark B. on or about May 12, 2000, when Mark B. repeatedly struckM.B. with a belt, causing significant bruising over a majority ofM.B.'s body. The petition further alleged: M.B. was neglected asher living environment "was injurious to her welfare" in that shehad been in prior DCFS custody following a finding of abuse orneglect against respondent; that Mark B. was no longer willing tocare for his child; and that the whereabouts of respondent wereunknown.

Following a temporary custody hearing, the circuit courtfound probable cause to conclude that M.B. was abused, neglectedand dependent as alleged in the State's petition. M.B. wasordered removed from the custody of her father and placed in thetemporary custody of DCFS, which was directed to prepare a caseplan regarding M.B.'s situation.

Respondent's whereabouts were eventually ascertained, andfollowing the appointment of counsel, respondent's appearance inthe matter was filed on May 24, 2000.

DCFS' Initial Service Plan
and Family Case Conference

Caseworker Melba Mars issued the initial service plan onJuly 17, 2000. The plan recited the underlying allegations ofthe State's petition and disclosed that Mark B., as well as hisparamour, had pleaded guilty to criminal charges in connectionwith the incident.

Mars' report additionally noted the past incident of abuseupon M.B. by respondent in late 1995. In this regard, the reportstated respondent had been alleged, along with her then-boyfriendand now husband Lamone Neal, of physically abusing M.B. bydragging M.B. on a carpet and striking the child with a brush andbelt. Respondent was further alleged to have exposed M.B. to arisk of harm in connection with allegations that Mr. Neal hadsexually abused M.B.

The record establishes that an adjudicated finding ofneglect and physical abuse was entered against respondent inMarch 1996. The case was ultimately closed on June 26, 1997,when M.B. was placed in the custody of her father. DCFS'investigation did not disclose whether any adjudicated findingsof sexual abuse were made against Mr. Neal.

Mars' report recommended the family undergo services toprovide M.B. with a safe and stable living environment and stateda goal of returning M.B. to respondent's custody by the end ofJuly 2001. The report opined M.B., who is in the present custodyof a maternal aunt and receiving weekly counseling, needscontinued individual counseling to address separation and loss,physical and sexual abuse issues, and defiant behavior. M.B.additionally requires psychological evaluation and familytherapy.

Respondent, according to the report, was involved incounseling and requires continued individual counseling, familycounseling, and parenting classes. The plan reported respondenthas been very involved with her daughter's therapy and hasexpressed a desire for reunification.

With respect to Mr. Neal, the report suggested apsychological evaluation, individual and family counseling, asubstance abuse evaluation, and parenting classes. While Mr.Neal initially declined to participate in the recommendedservices, he later informed caseworkers he was engaged inindividual counseling.

DCFS' Supplemental Report

In a follow-up report prepared on November 1, 2000, Marsindicated the recommended services for the parties had notsignificantly changed from those listed in the initial serviceplan. M.B., respondent and Mr. Neal were each stated to be inneed of continued individual counseling, and family counselingand parenting classes were specifically recommended forrespondent and Mr. Neal. Mars noted respondent continues to bevery involved with M.B.'s therapy and has reaffirmed her desireto have M.B. returned to her custody.

In light of the need for ongoing counseling for respondent,as well as Mark B.'s desire to surrender his parental rights,Mars concluded there had been unsatisfactory progress toward theservice plan's goal of reunification. Mars specifically notedthat while respondent had been cooperative and that her visitswith M.B. were satisfactory, she had been unable to engage in therequired services due to a complicated pregnancy and recent birthof a child. Consequently, respondent's progress in herindividual, parenting and family counseling was reported to beunsatisfactory. Mr. Neal's progress in the foregoing areas ofcounseling was likewise deemed unsatisfactory.

While the plan's goal remained reunification, the time forachievement of that goal was delayed until November 30, 2001. According to Mars, M.B.'s reunification was dependent uponrespondent and Mr. Neal engaging in further individual, parentingand family counseling sessions to specifically address thoseissues that led to M.B. being removed from respondent's home backin 1996.

Adjudicatory Hearing

The adjudicatory hearing was conducted on December 6, 2000. At the hearing, respondent, through counsel, stipulated, inrelevant part, that: M.B. had been in the primary custody of herfather since June 1997; on May 12, 2000, M.B. reported toinvestigative authorities that she had been beaten by her fatherand stepmother after "she got smart with her grandmother;" on theabove date, M.B. arrived at the University of Chicago Hospitalwith a primary diagnosis of physical abuse; hospital personnelreported that M.B. suffered from significant bruising that wasconsistent with being repeatedly struck with a belt; and Mark B.acknowledged he had beaten M.B. and had pled guilty to one countof misdemeanor domestic battery for which he received one yearconditional discharge. The parties further stipulated that M.B.,if called to testify, would detail the nature of her father'sattack.

With respect to respondent's 1995 incident of abuse andneglect upon M.B., it was stipulated that: in early 1996,respondent was alleged to have struck M.B. with a brush anddragged her across a carpeted floor, causing M.B. various cuts,welts and bruises; the case was closed in mid-1997, when M.B.'scustody was transferred from respondent to Mark B.; and aroundthe foregoing time period, respondent was further cited for riskof harm in light of charges of sexual abuse filed against herhusband Mr. Neal. A certified copy of the March 1996adjudication of neglect and abuse against respondent was acceptedinto evidence by the circuit court.

At the close of the evidence, M.B. was found to be bothabused and neglected by her father within the meaning of section2-3 of the Act. Respondent was not found to have shared anyresponsibility for M.B.'s mistreatment.

Dispositional Hearing

The matter proceeded for disposition in March 2001. Respondent was present with counsel, as was Mr. Neal, whoidentified himself to the court as respondent's husband.

At the hearing, Mars testified to the indications ofphysical and sexual abuse respectively made against respondentand Mr. Neal in early 1996, and additionally discussed herefforts to offer respondent and Mr. Neal reunification services. With respect to the latter matter, Mars indicated respondent hascooperated with her agency regarding all requests for services;has attended all required counseling sessions; and attendssupervised visits with M.B. once a week, which M.B. enjoys andduring which no unusual incidents have been reported.

Mars stated that while respondent is involved in parentingclasses and also receiving individual counseling, those sessionshad been suspended due to an unspecified illness withrespondent's counselor. Mars further explained family counselingis necessary for respondent, but that respondent would not beable to participate in such counseling until she had successfullycompleted the parenting classes. In addition, according to Mars,discussions with M.B.'s therapists suggest respondent needs toundergo a parenting assessment, which would commence only aftercompletion of the parenting classes.

Mars specifically discussed M.B.'s present needs andplacement with her maternal aunt. According to Mars, M.B.'splacement is both safe and appropriate. M.B. is currentlyreceiving individual counseling to address issues of separation,loss, and past incidents of physical and sexual abuse. Marsindicated that while M.B. is making "some" progress with therapy,that progress has been "very, very slow." "Because right now[M.B.] is in a stable home and *** is unable to go back with hermom or dad at this time," Mars opined it would be in M.B.'s bestinterests to be adjudged a ward of the court

With respect to M.B.'s father, Mars stated Mark B. hasrefused all requests to participate in reunification services andhas expressed a desire to have his parental rights terminated.

At the close of Mars' testimony, the Public Guardian,representing the interests of M.B., requested the court to takejudicial notice of the March 1996 adjudication of neglect andabuse against respondent, as reflected by the certified copy ofadjudication presented at the adjudicatory hearing. Counsel forrespondent questioned the relevance of the prior adjudication,arguing that those findings were simply not probative of anyissue before the court and, alternatively, irrelevant on groundsof remoteness. Noting the prior adjudication involved the sameparties, and specifically stating the prior adjudicatory findingswere not unreasonably remote, the circuit court rejectedcounsel's challenge and noticed the March 1996 adjudicatoryorder.

In closing, the People requested the court to adjudge M.B. award and further urged the court to find respondent unable andunfit based on respondent's prior neglect and physical abuse ofher daughter. The Public Guardian concurred in the State'sproposed findings and likewise asked the court to declarerespondent unfit, unable and unwilling not only in light ofrespondent's previous adjudicated findings, but also in light ofthe fact that respondent continues to be married to a man who hadallegations of sexual abuse made against him.

Counsel for respondent followed by requesting a finding ofinability only. According to counsel, the court had no basis tofind respondent unfit "based on what happened in a case that wasopened five years ago." Counsel also noted that while respondentand Mr. Neal remained married, they were separated and living atdifferent addresses. Counsel stressed respondent has fullycooperated with the supervising agency, has participated in allrecommended services and counseling, and has enjoyed visitationwith her daughter.

Upon reviewing the evidence, and after a brief discussionwith the parties regarding whether respondent and Mr. Neal weretruly separated, the court found M.B.'s interests would best beserved by adjudicating her a ward of the court. The courtadditionally found respondent unfit and unable to have custody ofM.B.(1) In finding respondent unfit and unable, the court, both atthe December 6 hearing and in the formal dispositional order,noted that reasonable efforts aimed at reunification betweenrespondent and her daughter had not been satisfied. The court,however, made it a point to stress reunification efforts werepresently ongoing as to respondent. The court terminated itsprior temporary custody order and directed M.B. to be placedunder DCFS guardianship.

Respondent's timely appeal followed.

ANALYSIS

Pursuant to section 2-13 of the Act, the State may file apetition on behalf of any minor child who is alleged to beneglected, abused or dependent. 705 ILCS 405/2-13 (West 2000). The petition must allege, with sufficient factual detail, theabuse, neglect and/or dependency of the minor and, in cases wherethe State seeks an adjudication of wardship, as the State did inthis case, the petition shall assert that the interests of theminor and public would best be served by having the minoradjudged a ward of the court. 705 ILCS 405/2-13(2); 2-13(3)(West 2000). The petition, notably, need not specify anyproposed disposition of the matter upon an adjudication ofwardship. 705 ILCS 405/2-13(3) (West 2000).

Following the filing of such a petition, the circuit courtmust hold an adjudicatory hearing solely to determine whether theState's allegations of neglect, abuse and/or dependency aresupported by relevant evidence. 705 ILCS 405/2-21(1) (West2000); 705 ILCS 405/2-18 (West 2000). If, after consideration ofthe evidence the court finds the minor abused, neglected and/ordependent (705 ILCS 405/2-21(1) (West 2000), the court mustschedule a dispositional hearing to be conducted in accordancewith section 2-22 of the Act to determine whether a declarationof wardship is appropriate. 705 ILCS 405/2-21(2) (West 2000). "At the dispositional hearing, the court shall determine whetherit is in the best interests of the minor and the public" that theminor be made a ward of the court. 705 ILCS 405/2-22(1) (West2000). If such a determination is made, the court must thendetermine the proper disposition of the matter in light of thehealth, safety and best interests of the minor and the community. 705 ILCS 405/2-22(1) (West 2000).

Section 2-23 of the Act authorizes the circuit court toenter dispositional orders for the custody or placement of abusedand neglected minors. 705 ILCS 405/2-23 (West 2000). Of theparticular kinds of dispositional orders authorized, a minorfound abused, neglected or dependent may be kept in the custodyof her parents. 705 ILCS 405/2-23(1)(a) (West 2000). However,"custody of the minor shall not be restored to any parent ***whose acts or omissions or both have been identified, pursuant tosubsection (1) of Section 2-21, as forming the basis for thecourt's finding of abuse or neglect, until such time as a hearingis held on the issue of the best interests of the minor and thefitness of such parent *** to care for the minor withoutendangering the minor's health or safety, and the court enters anorder that such parent *** is fit to care for the minor." 705ILCS 405/2-23(a)(1) (West 2000).

As an alternative to ordering the minor kept in parentalcustody, the court may place the minor in accordance with section2-27 of the Act. Section 2-27 provides in relevant part:

"If the court determines and puts inwriting the factual basis supporting thedetermination of whether the parents *** of aminor adjudged to be a ward of the court areunfit or are unable, for some reason otherthan financial circumstances alone, to carefor, protect, train or discipline the minoror are unwilling to do so, and that thehealth, safety, and best interest of theminor will be jeopardized if the minorremains in the custody of his or her parents*** the court may at this hearing and at anylater point:

***

commit the minor to the Department ofChildren and Family Services for care andservice[.]" 705 ILCS 405/2-27(1)(d) (West2000).

Respondent's primary contention on appeal is that thecircuit court erred in finding her unfit under section 2-27 ofthe Act. Significantly, respondent does not challenge thecircuit court's determination that she was also unable to carefor M.B. Indeed, respondent acknowledged at the dispositionalhearing her inability to effectively care for her daughter.

As the State notes, respondent's concession of being unableto care for M.B. and her failure to challenge the circuit court'sdetermination in that respect renders the issue of whether thecourt properly found her unfit moot. As explained by this courtin In re Lakita B., 297 Ill. App. 3d 985, 992, 697 N.E.2d 830,835 (1998), the plain language of section 2-27 provides that aminor can be taken away from a natural parent "if that parent isadjudged to be either unfit or unable or unwilling." (emphasisin original.) In that case, the natural mother of a minoradjudged a ward of the court challenged the circuit court'sfinding of unfitness but did not attack the court's additionaldetermination that she was unable to care for her minor children. In light of the mother's position on appeal, this court held"[b]ecause respondent *** concedes that the trial court properlyfound her unable pursuant to section 2-27, this factor alone as abasis for the trial court's judgment is sufficient to support thetrial court's judgment and, therefore, the issue of the trialcourt's additional finding that respondent was unfit, is moot." Lakita B., 297 Ill. App. 3d 992-93, 697 N.E.2d at 835.

Similarly, here, respondent challenges the circuit court'sfinding of unfitness only and does not assert error in thecourt's determination that she was unable. Because the court'sfinding of inability, alone, is sufficient to support the court'sjudgment, the issue of whether the court's finding of unfitnesswas proper is mooted.

Assuming arguendo the issue of respondent's fitness is notmoot, the evidence was nonetheless sufficient to support thecircuit court's determination. In gauging one's fitness to actas a parent, the child's best interest are not to be considered. Rather, the focus must be on the parent in question. See In reLatifah P., 315 Ill. App. 3d 1122, 1128, 735 N.E.2d 1004 (2000). Because a determination of unfitness pursuant to section 2-27does not result in a termination of parental rights, the standardof proof is the less rigorous preponderance of the evidence andthe court's determination of unfitness under that section will bedisturbed on review only when found to be against the manifestweight of the evidence. Lakita B., 297 Ill. App. 3d at 994, 697N.E.2d at 836. A decision is against the manifest weight of theevidence only where a review of the record clearly demonstratesthat the opposite conclusion is proper. Lakita B., 297 Ill. App.3d at 994, 697 N.E.2d at 836.

Respondent argues the circuit court's determination ofunfitness is not supported by a preponderance of the evidencewhere the record establishes she has been compliant with allagency requests and, further, has been greatly involved in herdaughter's life and treatment. Indeed, the evidence presented atthe dispositional hearing establishes respondent's regularparticipation in all reunification services as well as hergenuine concern for M.B.'s well-being. Notwithstanding, theevidence also establishes that the services deemed necessary forachieving reunification have not been successfully fulfilled byrespondent. According to the plan devised by DCFS, the statedgoal of reunification is dependent upon respondent, as well asher husband Mr. Neal and her daughter, making sufficient progressin designated therapy and counseling sessions that arespecifically aimed at rectifying those issues that promptedM.B.'s initial removal from respondent's custody in 1996. As ofthe date of the dispositional hearing, respondent had yet tocomplete those sessions. Moreover, the parenting assessmentdeemed necessary by caseworker Mars has not been conducted.

Respondent claims the circuit court improperly gave weightto the prior adjudicated findings of abuse and neglect issuedagainst her in March 1996. While the court judicially noticedthe adjudicated findings, the record indicates the court reliedsolely on respondent's unsatisfactory progress to buttress itsfindings. Both at the dispositional hearing and in its formaldispositional order, the court stressed that services aimed atfamily preservation and reunification have been unsuccessful. Hence, the basis of the court's findings of unfitness andinability were predicated upon respondent's failure tosuccessfully complete the recommended services and not, asrespondent asserts, upon her prior adjudicated findings.(2)

Significantly, the record indicates that the prior caseabuse and neglect against respondent was not closed as a resultof respondent completing services considered imperative toaddress and rectify the reasons for her prior mistreatment ofM.B. Rather, the case was closed when custody of M.B. wastransferred from respondent to the child's natural father. Inlight of the disposition of the foregoing matter, and uponassessment of the situation, caseworker Mars concluded thatcustody of M.B. should be reestablished with respondent only uponrespondent undergoing and successfully completing certainrecommended services geared specifically at addressingrespondent's past mistreatment of her child. While respondenthas participated in such counseling, for which respondent shouldbe commended, respondent's involvement has not progressed to thatlevel deemed necessary for reunification. The fact a parentexhibits compliance with recommended services and a willingnessto be a good parent is not dispositive and has been held not towarrant reversal of a unfitness or inability finding where therecord contains evidence otherwise supporting the circuit court'sdetermination. See In re April C., 326 Ill. App. 3d 245, 259-60,760 N.E.2d 101, 113 (2001) ("[t]he fact respondent participatedin various recommended services does not persuade us that thetrial court's decision [that respondent was unable, unwilling andunfit] was against the manifest weight of the evidence wherethere was ample evidence that respondent continues to be a threatto the children's safety and has not made sufficient progress ina number of areas"); Lakita B., 297 Ill. App. 3d at 998, 697N.E.2d at 839 (upholding circuit court's finding of inability andunfitness, despite evidence that the parent had been voluntarilyattending therapy sessions and had displayed both a willingnessto improve parenting and a desire of reunification, where theparent continued to deny the seriousness of her acts or omissionstoward her children and where testimony from DCFS professionalsdemonstrated that the parent had serious and significant issuesto be resolved).(3)

Respondent claims reversal is warranted for the failure ofthe State's petition to allege her unfitness or to seek anunfitness determination. However, as noted, the Act does notrequire a petition seeking an adjudication of wardship to specifythe proposed disposition of the matter. 705 ILCS 405/2-13(3)(West 2000). Moreover, a parent's fitness may be placed in issuea number of ways under the Act. Lakita B., 297 Ill. App. 3d at993, 697 N.E.2d at 836 (1998); In re P.F., 265 Ill. App. 3d 1092,1100, 638 N.E.2d 716, 722 (1994). As explained, custody of achild found to be abused or neglected may not be restored to theparent whose acts form the basis of the court's abuse or neglectdetermination "until such time as a hearing is held on the issueof the best interest of the minor and the fitness of such parent*** to care for the minor[.]" 704 ILCS 405/2-23(a)(1) (West2000). By virtue of section 2-23, a parent found to have abusedor neglected her child, and who seeks to maintain or, as here,reestablish custody, is placed on notice that her parentalfitness will be at issue during the circuit court's dispositionalhearing. Thus, the parent seeking custody is constructivelyapprised that her fitness to care for her child will have to bedetermined.

Given the manner in which the prior case of abuse andneglect was resolved, and in light of her desire to have M.B.returned to her custody, respondent should have been aware thather fitness would be at issue at the March 2001 dispositionalhearing. Respondent, notably, makes no claim that she sufferedany prejudice by the State's failure to allege her unfit. Inthis regard, it must be noted that the State and Public Guardianplainly asked for a finding of unfitness and inability. Inresponse, respondent never expressed any surprise at therequested findings but, instead, urged for a finding of inabilityonly. See In re T.B., 215 Ill. App. 3d 1059, 1062, 574 N.E.2d893, 896 (1991) (rejecting parent's challenge to the court'sdispositional order in light of State's failure to allegeunfitness where, inter alia, she failed to demonstrate how shewas prejudiced thereby).

Lastly, we note that a petition, like the one filed by theState in the present matter, need not contain specificallegations of parental unfitness. Petitions seeking anadjudication of wardship upon allegations of abuse and neglectdiffer from petitions seeking a termination of parental rights onsuch grounds. While procedural due process requires notice ofalleged unfitness in termination proceedings, such notice is notmandated in dispositional cases. P.F., 265 Ill. App. 3d 1092,1101, 638 N.E.2d 716, 723 (1994); T.B., 215 Ill. App. 3d 1059,1061, 574 N.E.2d 893, 895 (1991).

We are cognizant of In re B.K., 121 Ill. App. 3d 662, 664,460 N.E.2d 43, 45 (1984), where the appellate court reversed adispositional order finding a parent unfit for neglecting herchildren where the State's petition failed to allege the parent'sunfitness. Citing the case of In re Westland, 48 Ill. App. 3d172, 362 N.E.2d 1153 (1978), the court explained that in aproceeding to declare a parent unfit, "due process requires thatthe petition allege that the parent is unfit and set forth withparticularity the specific grounds that serve as the basis forsuch assertion." B.K., 121 Ill. App. 3d at 663, 460 N.E.2d at45. The court accordingly held that "an assertion of parentalunfitness and supporting allegations of the grounds of suchunfitness are material and are essential elements of a petitionto have parents declared unfit." B.K., 121 Ill. App. 3d at 664,460 N.E.2d at 45.

We do not share the position expressed in B.K.. The B.K.court never recognized that a State's petition brought under theAct is not required to request a particular disposition. Ill.Rev. Stat. 1981, ch. 37, par. 704-1(3). The court similarlyfailed to note the provision of the Act that effectively placesan abusive or neglectful parent on notice that her fitness wouldbe at issue at the dispositional hearing in the event the parentseeks custody. Ill. Rev. Stat. 1981, ch. 37, par. 705-2(c). Just as noteworthy is that the decision relied upon by the courtin requiring specific notice of unfitness, Westland, involved atermination, not dispositional, proceeding, in which, as noted,parents are afforded greater notice rights.

While respondent does not challenge M.B.'s placement underDCFS guardianship, the record supports the court's dispositionalorder and, accordingly, we find no abuse of discretion. SeeLakita B., 297 Ill. App. 3d at 994, 697 N.E.2d at 836 (noting thecircuit court's selection of a particular disposition is reviewedfor an abuse of discretion). Based on the foregoing, we find noerror in the court's determination of unfitness and the judgmentof the court is hereby affirmed.

Affirmed.

HALL, P.J., and SOUTH, J., concur.

1. Mark B. was similarly determined to be unfit, unableand unwilling.

2. Respondent claims reversal is required because thecircuit court did not disclose the factual basis of its findingsas required by section 2-27 of the Act. As indicated, thecircuit court adequately revealed the basis for its ruling byciting respondent's failure to successfully finish the requiredservices. In any event, not only has respondent waived herchallenge by not objecting to the circuit court's allegedoversight, section 2-27 does not mandate the court to state thebasis of its determination. In re R.M., 283 Ill. App. 3d 469,472, 670 N.E.2d 827, 829 (1996).

3. Because respondent's failure to successfully completethe recommended services, alone, sufficiently supports thecircuit court's finding of unfitness, it matters not whether thecourt additionally relied on either the prior adjudicatedfindings of abuse and neglect or respondent's continued marriageto Mr. Neal.