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No. 2--04--0105

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Following an evidentiary hearing, the circuit court of Lake County found that respondents,Tonya L. and Clayton J., were unfit parents under section 1(D)(p) of the Adoption Act (Act) (750ILCS 50/1(D)(p) (West 2002)). The court subsequently terminated respondents' parental rights toCornica J. and Cortrell J. On appeal, respondents argue that the circuit court erred by finding themunfit and by terminating their parental rights. We reverse.

I. BACKGROUND

Cornica, born January 31, 1999, and Cortrell, born March 22, 2000, were adjudicatedneglected and made wards of the court on June 26, 2000. On September 19, 2002, the State fileda petition to terminate respondents' parental rights to both minors (and four children who are notsubjects of this appeal). The petition alleged that respondents were unable to discharge parentalresponsibilities, due to mental impairment, mental illness, mental retardation, or developmentaldisability, and that there was sufficient justification to believe that such inability would extend beyonda reasonable time period. 750 ILCS 50/1(D)(p) (West 2002).

At the fitness hearing, the State's only witness was Dr. Valerie Bouchard, who testified asfollows. Dr. Bouchard, a clinical psychologist licensed in Illinois in 1996, completed a "parentingcapacity assessment" for each respondent on January 7, 2002. The assessment is designed to provideinformation regarding the nature of the parent-child relationship. The parenting capacity assessmentconsisted of a one-hour parent-child observation session and an individual interview with each parent. Each interview included a mental status exam, a clinical interview, and the administration of twoparenting measures.

The parent-child observation session took place in a room at the Department of Children andFamily Services (DCFS) containing a small table, several chairs, and various play items. The sessionincluded both respondents, Cornica, Cortrell, and respondent mother's four older children. Dr.Bouchard remained in the room throughout the session, and respondents were informed that theywould be observed.

At the beginning of the session, Dr. Bouchard noticed that the children greeted, approached,and hugged respondent mother, but not respondent father. Respondents were sitting in chairs whenthe children arrived and waited for the children to initiate contact with them. Throughout this portionof the assessment, respondents were extremely passive, getting out of their chairs only once. For themost part, respondent mother watched the children play, getting up once to initiate contact with them. Respondent father was observed coloring in a book by himself and getting up once to retrieve a childfrom the bathroom. At one point, respondent father called Cornica and Cortrell over to him to hugthem, hold them, and kiss them.

According to Dr. Bouchard, respondents exhibited a high level of passivity and difficulty inmanaging the children. The children's level of activity was high and their behavior was "prettychaotic." At times, the children threw objects around the room, and there was no intervention untilsomeone got hit in the head. When that happened, respondent mother dealt with the situation byraising her voice and telling the child not to throw the object. This sequence occurred approximatelythree times. The children continued to throw objects without any intervention until respondentmother raised her voice higher, and then the behavior stopped. Respondent mother's oldest childprovided the most structure during the session by organizing some activities for the children. Respondent mother did join in those activities for a short time.

At the end of the session, Dr. Bouchard conducted a separate interview with each respondent.She administered a mental status exam to determine if respondents were oriented to reality, awareof what was going on, and capable of participating in the interview process. This was followed bya clinical interview to obtain information about their backgrounds, the reasons for DCFS involvement,and their general impressions of the situation. In addition, a Parent Awareness Skills Survey was usedto measure respondents' abilities to intervene in typical parent-child problems. Finally, the BricklinParenting Questionnaire provided information about respondents' knowledge of their children'sinterests, desires, concerns, and uniqueness.

In terms of the mental status examination, respondent father was fully oriented to reality andable to understand the procedures and participate in the interview process. He was able to identifytwo primary means of intervening with the children, time-outs and withholding privileges, asappropriate disciplinary measures. In the clinical interview, respondent father articulated a basicunderstanding of the reasons the children had been removed from their care. He expressed the beliefthat he was being treated unfairly and that each time he made a step toward meeting some of therequirements, another requirement would be added. In his view, this was a deliberate attempt on thepart of DCFS personnel to prevent reunification with his children.

Respondent father exhibited a weakness in his capacity to intervene in the emotional issuesof a child. He exhibited a lack of knowledge about average child development and the emotionalneeds of a child, such as how to intervene with a child who is excessively shy or needs specialeducation. In addition, the Bricklin Parenting Questionnaire revealed that respondent father lackedknowledge of the particular interests and concerns of each child. He did not know the children'sinterests or hobbies.

With respect to respondent mother, the mental status examination indicated that she wasoriented to reality, aware of the circumstances of the assessment, and capable of participating in theinterview process. She demonstrated familiarity with the techniques of time-outs and loss ofprivileges for misbehavior. However, respondent mother possessed very little awareness of a child'semotional needs or age-appropriate developmental needs. When a dangerous scenario was presentedto her, she did not understand that it was dangerous or could result in injury. Respondent mother alsoexhibited the potential to provide "questionable moral guidance" when confronted with certainbehavior, such as lying. Finally, the Bricklin Parenting Questionnaire indicated that respondentmother lacked knowledge of the interests, concerns, and issues of each child.

After completing the individual interviews with respondents, Dr. Bouchard observed the endof the visit. Neither the children nor their parents initiated saying "good-bye" until reminded to doso.

A few days later, Dr. Bouchard observed respondents in their home to determine if theenvironment was suitable for the children. Respondents live in a high-rise apartment with threebedrooms. The apartment was "essentially clean," with a working microwave and refrigerator,although there were no protective devices on the outlets or the cabinets. There was not enoughsleeping space for six children, and the apartment contained very little furniture and few toys.

Dr. Bouchard again evaluated respondents in September 2002. Respondent father arrived ontime for his appointment on September 27, 2002, and Dr. Bouchard administered a battery of tests. Overall, respondent father was "functioning below average." The Wechsler Adult Intelligence Scale(cognitive functioning) revealed an IQ score of 69, which falls in the extremely low range ofintellectual functioning. There was a significant discrepancy between his verbal score and his overallIQ score, indicative of emotional interference. The Wide Range Achievement Test (grade equivalentfunctioning) showed that his word pronunciation, word recognition, and spelling abilities were at athird-grade level, and his arithmetic ability was at a fifth-grade level. Due to his limited verbal skills,respondent father could not provide enough responses to validate the results on the Rorschach InkBlot Test. According to the Bender Visual-Motor Gestalt Test (neurological screening mechanism),respondent father had no neurological problems. Further, he satisfactorily completed the SymptomsChecklist, which is a list of immediate symptoms or problems a person may be experiencing, as wellas the Rotter Incomplete Sentences Test. Finally, respondent father scored 45 out of 100 on theglobal assessment of functioning scale, indicating an impairment in daily functioning that affectedinterpersonal relationships and the ability to maintain a job.

Dr. Bouchard evaluated the test results. She found strong evidence of poor impulse control,meaning that respondent father reacted very quickly without thinking through his responses. Inaddition, his emotions changed more rapidly than would be expected for the average person. Respondent father was very self-centered and exhibited difficulty understanding or responding toothers' needs. Further, he was emotionally inaccessible and compensated for inadequacies by beingaggressive. Respondent father had "a general personality immaturity" and a deep sense of personalinferiority. Dr. Bouchard diagnosed respondent father with dysthymic disorder, indicating that he hada history of chronic depression. There was also evidence of cannabis dependence. Respondent fatherdid not have the personality features significant enough to diagnose a personality disorder, althoughfeatures of paranoia and narcissism were present. Dr. Bouchard noted a number of stress factors thatcontributed to his level of functioning, such as involvement in the child welfare system, separationfrom his children, a volatile relationship with respondent mother, and problems with substance abuse. In Dr. Bouchard's opinion, the children should not be returned to respondent father's care. The bonding assessment revealed a lack of attachment to the children. It also revealed a lack ofinitiation of affection, attention, and focus on the children. Dr. Bouchard was concerned aboutrespondent father's capacity to provide safe and adequate discipline and about the children's exposureto drug use. She noted his history of cannabis dependence and his recent use of the drug. Further,she was concerned about respondent father's inability to understand the children's developmental andemotional needs. While respondent father had previously been involved in parenting classes, he didnot consistently attend sessions, and reports revealed a lack of progress. Dr. Bouchard opined thathis parenting skills would not improve in a reasonable period of time.

Dr. Bouchard administered the same tests to respondent mother on September 30, 2002. Themental status exam revealed that respondent mother was fully oriented to reality and that there wereno significant problems that would prevent participation in the assessment. In terms of cognitiveabilities, respondent mother's IQ score was 74, placing her in the borderline range of intellectualfunctioning. There was no significant difference between her verbal and her performance scaledscores, indicating that her skills were fairly evenly developed. However, she was unable to completethe Rotter Incomplete Sentences Test, the Rorschach Ink Blot Test, or the Symptoms Checklist. Onthe Wide Range Achievement Test, respondent mother scored below average. She obtained a readingscore of third-grade level, a spelling score of fifth-grade level, and an arithmetic score of fourth-gradelevel. Finally, her current global functioning score was 35 out of 100, indicating that she had someimpairment in her daily functioning.

In terms of personality functioning, the tests revealed a high degree of personality disturbance,extreme personality disorganization, and poor contact with reality. There were indications of poorimpulse control and inadequate social judgment. Respondent mother exhibited high impulsivenessand significant immaturity and was very reluctant to show her feelings or trust others. Her symptomsand problems were consistent with a diagnosis of chronic depression and intermittent explosivedisorder. In addition, she had trouble functioning independently and had dependent personalitydisorder. The stress factors relevant to her situation included the child welfare system, the separationfrom her children, and the recent separation from respondent father.

In Dr. Bouchard's opinion, respondent mother was unable to successfully and safely care forthe children. This opinion was based on respondent mother's personality disorganization, herpassivity in responding to the children, the children's lack of a bond with her, and her inability toprotect the children from danger. Although respondent mother could articulate appropriate childdiscipline techniques, she failed to apply them. Dr. Bouchard had concerns about respondentmother's cognitive limitations, which were further impaired by disorganized emotional functioning. In her opinion, respondent mother's parenting abilities would not improve to the level where shewould be able to successfully parent a child.

Dr. Bouchard indicated that no services or counseling would aid in remediating respondents'abilities to parent because neither respondent was able to take responsibility for why the children wereremoved from their care. When questioned about respondent mother's ability to care for herselfindependent of respondent father, Dr. Bouchard stated that respondent mother had been able tomaintain an apartment and periodically work.

On cross-examination, Dr. Bouchard admitted that, of all the tests administered, only threewere objective: the IQ test, the Symptoms Checklist, and the Wide Range Achievement Test. Moreover, the subjective tests are criticized for being "open to interpretation." Dr. Bouchard wasaware of respondents' frustration with the system and the caseworker, and she admitted thatrespondent father's problems with respect to the Rorschach Ink Blot Test could have resulted fromdefensiveness stemming from his frustration with the system. Dr. Bouchard also admitted thatrespondent mother's frustration with the caseworker and the overall situation could be factors inexplaining why she was reluctant to show her feelings and trust others.

With respect to her evaluation, Dr. Bouchard did not observe any interaction betweenrespondents and the children outside of the one-hour observation session. Moreover, during thesession, she observed respondent mother hold Cortrell on her lap for "quite some time" and feed him. She also observed respondent father encourage Cornica and Cortrell to hug and kiss him, and bothchildren "smiled and cuddled" with him for a short time. Last, Dr. Bouchard stated that respondentmother anticipated that DCFS would assist her in locating a more suitable apartment if the childrenwere returned to her.

The State then introduced into evidence an 85-page group exhibit taken from the court filesin the case.

Paternal grandmother Hattie Jackson testified on behalf of respondents. Jackson stated thatshe observed three visits between respondents and Cornica and Cortrell. At the visits, Cornica andCortrell greeted respondents by hugging or kissing them. Respondents got up to hug the children andgive them snacks. Cornica and Cortrell appeared to be happy during the visits. They sat onrespondents' laps, played games with them, and walked with them down the hall or outside. Cornicaand Cortrell referred to respondents as "[m]omma and daddy" and told them that they loved them. When it was time to leave, respondents walked the children to the car and kissed them goodbye.

Maternal grandmother Patricia Larry testified that she had been to more than 20 visits withrespondent mother and the children. The visits occurred once a month. At the DCFS office, thevisiting room was not very large and contained lots of toys. When the children entered the room,respondents always got up to hug and kiss them. Respondents brought food to the visits, playedgames with the children, and watched them sing and dance. Cornica and Cortrell referred torespondents as "mom and dad." In addition, respondent mother used appropriate disciplinetechniques, such as time-outs. When it was time to leave, the children hugged and kissed respondentsgoodbye. At the most recent visit, two weeks prior, respondents brought birthday cake and food forCornica's birthday.

Respondent father testified that he was the father of Cornica and Cortrell. He described hisrelationship with his primary caseworker, Marcia Staggs, as negative. Every time he would be on theverge of completing the tasks assigned, she would come up with another three or four tasks.Respondent father did not trust Staggs, because she indicated that he was "not getting his kids backanyway."

Respondent father visited the children for two hours once a month. When the children enteredthe room, he greeted them with hugs and kisses. Cornica referred to respondent father as "dad," andCortrell referred to him as "poppie." During the visits, respondents talked to the children, asked howthey were doing in school, and told them that they missed them and loved them. Cornica and Cortrellwould sit on respondents' laps and hug and kiss respondents. Respondent father would push themaround the room on little bicycles. Respondent father admitted that, at times, the visits got out ofcontrol, with six children in a small room. At the end of each visit, everyone hugged and kissed oneanother. Sometimes, Cornica would cry.

Respondent father did not trust Dr. Bouchard, because she was appointed by Staggs. Staggstold him that he needed to get an evaluation to determine whether he was capable of being with hischildren. Respondent father did not understand the purpose of the Rorschach Ink Blot Test or theRotter Incomplete Sentences Test and thought they were "stupid." Respondent father testified thathe and respondent mother had been attending parenting classes for the past two years. As a resultof the classes, he learned to be more in tune and open to his children's problems. Respondent fatherstated that he could rely on his mother to help with the children.

On cross-examination, respondent father stated that he had abused Cornica a long time ago,but that he had apologized to her for his behavior. Although he still "hurt" over what happened, hehad accepted what he had done and wanted to restore the bond between them. In the parentingclasses, he learned how to manage his anger rather than take it out on the children.

Respondent mother testified that the visits occurred monthly. When Dr. Bouchard observedone visit, she remained behind a two-way mirror. At the beginning of each visit, everyone huggedand kissed each other. According to respondent mother, Cornica and Cortrell often ran to respondentfather, sat on his lap, and cuddled with him. During the visits, the children would refer to them as"mom and dad" and hug and kiss them. Respondent mother used time-outs when the childrenmisbehaved.

Respondent mother testified that her relationship with the original caseworker was good. However, her relationship with the new caseworker, Staggs, was not. Staggs discouraged respondentmother by telling her one thing in private and saying something much different in court. For instance,Staggs informed her that her progress was satisfactory, but then told the court that she was notprogressing. In addition, respondent mother tried to complete the tests for Dr. Bouchard's parentingassessment, even though she was frustrated and tired. She did not understand the purpose behind theRorschach Ink Blot Test or the projective drawings test. Respondent mother denied that there wereholes in the walls and that she lacked furniture when Dr. Bouchard visited the home. Respondentmother had just bought new furniture for the living room and the bedroom, but had thrown awaysome old beds. Dr. Bouchard was correct that the door knob was damaged. Respondent motherstated that she had the mental ability to parent her children, nurture them, and provide appropriatediscipline. Prior to DCFS involvement, she worked, took the four oldest children to school, andfound a baby-sitter for Cornica and Cortrell.

The trial court determined that the State had proved by clear and convincing evidence thatrespondents were unfit as to all six children. Specifically, the court found that they were unable todischarge their parental responsibilities, due to mental impairment, mental illness, mental retardation,or developmental disability, and that there was sufficient justification to believe that such inabilitywould extend beyond a reasonable time. In the court's view, Dr. Bouchard offered competentevidence that respondent mother possessed a borderline IQ of 74 and suffered from chronicdepression, intermittent explosive disorder, and dependent personality disorder. Further, respondentfather suffered from low cognitive ability, substance abuse issues, and depression. Based on thisevidence, "coupled with the history of these minor children through the system," the court concludedthat respondents' inability to discharge their parental duties would continue beyond a reasonable time. After finding respondents unfit, the trial court found that it was in the best interests of Cornicaand Cortrell to terminate respondents' parental rights. Respondents filed a motion for a new trial,which the court denied. Respondents' timely notice of appeal followed.

II. ANALYSIS

In Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982), the SupremeCourt declared that parents' interests in the "care, custody, and management" of their children is afundamental liberty interest protected under the fourteenth amendment. Santosky, 455 U.S. at 753,71 L. Ed. 2d at 606, 102 S. Ct. at 1394-95. The termination of parental rights is an extraordinarymeasure, given the superior rights of parents, against the rights of others, to raise their children. Inre S.R., 326 Ill. App. 3d 356, 360 (2001). It constitutes a permanent and complete severance of theparent-child relationship. In re C.N., 196 Ill. 2d 181, 208 (2001). Accordingly, a higher evidentiarystandard must be applied to reduce the risk that parents' fundamental rights to their children willimproperly be terminated. Santosky, 455 U.S. at 769, 71 L. Ed. 2d at 616-17, 102 S. Ct. at 1403. Before a state may completely and irrevocably sever the rights of parents in their children, dueprocess requires that the state support its allegations by at least clear and convincing evidence. Santosky, 455 U.S. at 747-48, 71 L. Ed. 2d at 603, 102 S. Ct. at 1391-92.

Respondents argue on appeal that the trial court erred in finding them unfit. In order toreverse a trial court's finding that there was clear and convincing evidence of parental unfitness, wemust conclude that this finding was against the manifest weight of the evidence. In re M.M., 303 Ill.App. 3d 559, 565 (1999). A decision is against the manifest weight of the evidence only where theopposite result is clearly evident or where the determination is unreasonable, arbitrary, and not basedon the evidence presented. In re S.R., 326 Ill. App. 3d at 360-61. In determining whether the trialcourt's finding is against the manifest weight of the evidence, we are reminded that each caseconcerning parental unfitness is sui generis. In re S.R., 326 Ill. App. 3d at 361.

Respondents were found unfit under section 1(D)(p) of the Act, which defines unfitness asfollows:

"(p) [i]nability to discharge parental responsibilities supported by competent evidence from a psychiatrist, licensed clinical social worker, or clinical psychologist of mentalimpairment, mental illness or mental retardation *** and there is sufficient justification tobelieve that the inability to discharge parental responsibilities shall extend beyond a reasonabletime period." 750 ILCS 50/1(D)(p) (West 2002).

In order to prove a parent unfit under section 1(D)(p) of the Act, the State must (1) presentcompetent evidence that the parent suffers from a mental impairment, mental illness, or mentalretardation sufficient to prevent the discharge of normal parental responsibilities; and (2) present sufficient evidence to conclude that the inability will extend beyond a reasonable time period. In reM.M., 303 Ill. App. 3d at 566.

We conclude that the State failed to prove by clear and convincing evidence that respondentswere unfit under section 1(D)(p). Specifically, the State failed to establish that respondents had mental inabilities sufficient to prevent them from discharging normal parental duties. We note thatthe State's case rested almost entirely on the testimony of one expert, Dr. Bouchard. In Dr.Bouchard's opinion, respondents were unable to successfully and safely care for their children, andtheir parenting abilities would not improve over a reasonable amount of time. However, Dr.Bouchard's findings, which were based on only three interactions with respondents, did not constituteclear and convincing evidence of respondents' unfitness.

On January 7, 2002, Dr. Bouchard conducted a "parenting capacity assessment," whichconsisted of a one-hour parent-child observation session and an individual interview with each parent. At the beginning of the parent-child session, Dr. Bouchard observed the children greet, approach, andhug respondent mother, but not respondent father. In addition, she stated that respondents wereextremely passive throughout the session and got out of their chairs only once. However, Dr.Bouchard also observed respondent father encourage Cornica and Cortrell to hug and kiss him, andboth children "smiled and cuddled" with him for a short time. Further, Dr. Bouchard admitted that,during the session, respondent mother fed Cortrell and held him on her lap for "quite some time." Although Dr. Bouchard described the children's behavior as "pretty chaotic," the observation roomwas small given the size of respondents' family, it contained lots of toys, and the children saw eachother only once a month. Moreover, Dr. Bouchard never observed any interaction betweenrespondents and the children outside of the one-hour observation.

With respect to the clinical interviews, Dr. Bouchard found that respondents lacked awarenessof a child's emotional needs, knowledge of average child development, and knowledge of thechildren's interests and concerns. However, respondents were both oriented to reality, aware of thecircumstances of the assessment, and capable of participating in the interview process. In addition,they were able to identify appropriate disciplinary measures, such as time-outs and withholdingprivileges.

A few days later, Dr. Bouchard observed respondents in their three-bedroom apartment. Although she testified that it was not large enough to accommodate six children, she admitted thatrespondent mother anticipated that DCFS would assist her in locating a more suitable apartment ifthe children were returned to her. While the outlets were not covered, no children were living in theapartment at the time of the inspection. Moreover, Dr. Bouchard noted that the apartment was"essentially clean," with a working microwave and refrigerator.

Dr. Bouchard's final interaction with respondents occurred approximately nine months later,when she administered a battery of tests. Dr. Bouchard admitted that, of all the tests administered,only three were objective: the IQ test, the Symptoms Checklist, and the Wide Range AchievementTest. Further, the subjective tests are criticized for being "open to interpretation." Additionally, sheadmitted that respondents' frustration with the caseworker and the overall situation could have beena factor regarding their performances on the subjective tests.

Based on the tests, Dr. Bouchard determined that respondent father was functioning belowaverage, scoring in the extremely low range of intellectual functioning with an IQ score of 69. Dueto his limited verbal ability, he was unable to complete some of the tests. Dr. Bouchard furtherdetermined that respondent father had a history of chronic depression and problems with substanceabuse. In addition, she found evidence of poor impulse control, "general personality immaturity,"self-centeredness, and emotional inaccessibility. However, Dr. Bouchard noted that respondent fathersatisfactorily completed the Symptoms Checklist and the Rotter Incomplete Sentences Test. Moreover, he did not have personality features significant enough to diagnose a personality disorder. Respondent mother scored in the borderline range of intellectual functioning, with an IQ scoreof 74. Dr. Bouchard diagnosed respondent mother as suffering from chronic depression, intermittentexplosive disorder, and dependent personality disorder. However, when questioned about respondentmother's ability to care for herself independent of respondent father, Dr. Bouchard stated thatrespondent mother had been able to maintain an apartment and periodically work. According to Dr.Bouchard, the testing revealed extreme personality disorganization, high impulsiveness, significantimmaturity, and reluctance to trust others. However, there was no significant difference between herverbal and her performance scaled IQ scores, indicating that her skills were fairly evenly developed. Further, Dr. Bouchard admitted that respondent mother's frustration with the caseworker and theoverall situation could be a factor in explaining why she was reluctant to show her feelings or trustothers.

The only other evidence provided by the State at the fitness hearing was an 85-page exhibitof court documents relating primarily to the four minors who are not subjects of this appeal. Therecord reveals that both C.L., born December 25, 1990, and T.G., born November 26, 1991, wereadjudicated neglected and made wards of the court on March 31, 1993. In addition, C.G., bornAugust 15, 1993, was adjudicated neglected and made a ward of the court on June 8, 1998. Finally,K.B., born September 25, 1994, was adjudicated neglected and made a ward of the court on August24, 1999. While the trial court relied in part on these court documents in finding respondents unfitas to the six minors, we note that the exhibit does not pertain to Cortrell and contains only onereference to Cornica

In short, the evidence presented by the State is insufficient to satisfy the requirements ofsection 1(D)(p). Admittedly, Dr. Bouchard's findings revealed that respondents possess low IQs, andthis fact undoubtedly affects their parenting skills. However, a low IQ does not automaticallytranslate into an inability to discharge parental responsibilities. See In re A.J., 269 Ill. App. 3d 824,827-28 (1994) (section 1(D)(p) of the Act does not envision that all parents with a "designatedmental disability" will have their parental rights terminated; instead, the Act affects only those parentswho cannot discharge their parental responsibilities due to those disabilities and whose inability to doso will extend beyond a reasonable time). Moreover, based on the evidence before us, we are notconvinced that respondents' behavior during the observation session or their low test scoresnecessarily conveys an inability to parent. See Santosky, 455 U.S. at 753, 71 L. Ed.2d at 606, 102S. Ct. at 1394-95 (the "fundamental liberty interest of natural parents in the care, custody, andmanagement of their child does not evaporate simply because they have not been model parents orhave lost temporary custody of their child to the State").

Significantly, many of the cases concerning section 1(D)(p) involve parents with severepersonality disorders that are not present in this case. See In re M.F., 326 Ill. App. 3d 1110, 1114(2002) (mother was diagnosed as schizophrenic and attempted suicide); In re A.J., 269 Ill. App. 3dat 825-26 (mother hospitalized at various times for her psychiatric condition/mental illness); In reJ.A.S., 255 Ill. App. 3d 822, 824 (1994) (mother was diagnosed as chronic schizophrenic,disorganized type); In re K.S.T., 218 Ill. App. 3d 431, 432-33 (1991) (mother suffered from paranoidschizophrenia).

Conversely, in In re M.W., 199 Ill. App. 3d 1050 (1990), the parents had no medicallydiagnosed mental impairment but possessed IQ scores nearly identical to respondents'. Despite themother's IQ of 75 and the father's IQ of 68, as well as expert testimony that their low IQs and lackof parenting skills were so severe that they necessitated the termination of parental rights, the courtconcluded that the State failed to meet its burden of proving by clear and convincing evidence thatthe parents had mental inabilities sufficient to prevent them from discharging their normal parental responsibilities. In re M.W., 199 Ill. App. 3d at 1055-56. While we express no opinion as to thestandard of mental inability or mental condition that is required in order to be found unfit undersection 1(D)(p), we nevertheless determine that the facts in this case are insufficient.

Essentially, the State's case hinged on the opinion of one clinical psychologist. While weappreciate the inherent difficulty involved in cases involving the termination of parental rights, Dr.Bouchard's opinion was based on a total of three interactions with respondents. While Dr. Bouchardoffered several broad conclusions based on these three interactions, some of her findings werecontradicted by four witnesses. Specifically, paternal grandmother Jackson and maternalgrandmother Larry testified about respondents' level of interaction with the children at the monthlyvisits and indicated that a bond existed between respondents and Cornica and Cortrell. Further, Dr.Bouchard admitted that some of the tests relied upon were subjective, that respondents werefrustrated with the caseworker and the overall situation, and that her observation of respondents'interaction with the children lasted no more than one hour. Irrespective of Dr. Bouchard'squalifications or competency, which respondents do not contest, the field of psychology is uniquelysubject to interpretation. While relying exclusively on one expert may be appropriate in some cases,the State failed to meet its burden here. With the termination of parental rights hanging in thebalance, we cannot say that Dr. Bouchard's opinion constituted clear and convincing evidence thatrespondents had mental inabilities sufficient to prevent them from discharging their normal parentalresponsibilities. To be content with less than "clear and convincing evidence" would counteract thehigher evidentiary standard that ensures that parents' fundamental rights to their children will not beimproperly terminated. See Santosky, 455 U.S. at 769, 71 L. Ed. 2d at 616-17, 102 S. Ct. at 1403. As the trial court recognized, "[t]his is not an easy decision for the court. Both of these parentsclearly love their children."

As a final matter, we take this opportunity to address an issue regarding our standard ofreview. Case law is clear that, in order to reverse a trial court's finding that there was clear andconvincing evidence of unfitness, we must conclude that this finding was against the manifest weightof the evidence. In order to conclude that a decision is against the manifest weight of the evidence,the opposite result must be clearly evident or the decision must be unreasonable, arbitrary, and notbased on the evidence presented. In re S.R., 326 Ill. App. 3d at 360-61. However, in cases such asthis involving the termination of parental rights, we propose that our supreme court considerreplacing the "manifest weight" standard of review with the bifurcated system adopted in People v.Sorenson, 196 Ill. 2d 425 (2001), which concerned a motion to suppress. This standard of reviewbifurcates the issues, with factual findings reviewed for clear error, while reserving de novo reviewfor the ultimate legal ruling. Sorenson, 196 Ill. 2d at 431. Thus, rather than determining that theopposite result was clearly evident or that the decision was unreasonable, courts would review thetrial court's findings with great deference but review de novo the ultimate legal ruling of whether theState met its burden of presenting clear and convincing evidence of unfitness. Accordingly, while wehold that the trial court's finding of unfitness was against the manifest weight of the evidence underthe currently recognized standard of review, it is our position that the bifurcated system moreaccurately reflects the type of review appropriate for these cases.

For the above reasons, we reverse the judgment of the circuit court of Lake County finding respondents to be unfit and terminating respondents' parental rights to Cornica and Cortrell.

Reversed.

BYRNE, J., concurs.

JUSTICE KAPALA, dissenting:

I cannot agree that the trial court's judgment in this case was against the manifest weight ofthe evidence; therefore, I respectfully dissent.

Preliminarily, it is important to clarify respondents' appellate contentions. Respondents' firstappellate contention is that the trial court erred in finding respondents unfit. Respondents' secondappellate contention is that the trial court improperly terminated their parental rights. In regard totheir first appellate contention, respondents are not claiming that the ultimate opinion articulated byDr. Bouchard is inadequate to support the findings of unfitness. Respondents' focus is narrower. They argue that the trial court erred in receiving into evidence Dr. Bouchard's ultimate opinion as tofitness, because the facts adduced at the fitness hearing were insufficient to support that opinion. Inshort, respondents' first appellate contention attacks the basis for Dr. Bouchard's opinion, not itssufficiency if accepted. As such, I believe that the majority inappropriately raises an issue thatrespondents have waived under Supreme Court Rule 341(e)(7) (Official Reports Advance Sheet No.21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001 (points not argued on appeal are waived))and reverses the trial court by concluding that "Dr. Bouchard's findings *** did not constitute clearand convincing evidence of respondents' unfitness" (slip op. at 14). It is not the function of this courtto search the record for grounds upon which to base a reversal. Jacobs v. Mundelein College, Inc.,256 Ill. App. 3d 476, 480 (1993). I would proceed to consider the merit of the contentionsrespondents do raise on appeal.

Respondents' first appellate contention is that the trial court's finding that respondents areunfit persons was against the manifest weight of the evidence because Dr. Bouchard's opinion thatrespondents are unfit persons under section 1(D)(p) was based on inaccurate facts and questionabletests. Respondents support their first appellate contention with three arguments: (1) that Dr.Bouchard's testimony regarding her assessment of the parent-child observation session wascontradicted by four witnesses called by respondents at the fitness hearing; (2) that the Rorschach InkBlot Test and the Rotter Incomplete Sentences Test "are subjective, severely criticized and open toany interpretation by the interviewer"; and (3) that respondents' defensiveness, as a result of beingreferred to Dr. Bouchard by their caseworker, whom they neither trusted nor liked, had a "likelihood"of affecting Dr. Bouchard's findings. For the following reasons, I would reject these three arguments. With respect to fitness determinations, it is up to the trial court to make factual findings andto assess the credibility of witnesses; we will not reweigh the evidence on review. In re T.Y., 334 Ill. App. 3d 894, 908 (2002). We defer to the trial court's factual findings and credibilitydeterminations during a fitness hearing and will reverse them only if they are against the manifestweight of the evidence. In re Jamarqon C., 338 Ill. App. 3d 639, 649 (2003). "A finding is againstthe manifest weight of the evidence where the opposite conclusion is clearly evident." In re C.N., 196Ill. 2d 181, 208 (2001). At the fitness hearing, the trial court heard the testimony of respondents andtheir mothers, who all had interpretations of the events that occurred at the visits betweenrespondents and the children that differed from Dr. Bouchard's. The trial court was entitled to acceptDr. Bouchard's version and reject those of respondents and their mothers. It would certainly bereasonable to conclude that these four witnesses were biased in favor of respondents. The fact thatDr. Bouchard's testimony on this point was contradicted in this manner does not make it clearlyevident that her account of the parent-child observation session was inaccurate.

Dr. Bouchard admitted that the Rorschach Ink Blot Test and the Rotter Incomplete SentencesTest are criticized for being subjective. However, contrary to respondents' assertion, there is noindication in the record that these tests have been "severely criticized." Nevertheless, the trial courtwas aware of this criticism and I fail to see how it nullifies Dr. Bouchard's opinion. The trier of factis permitted to accept an expert's opinion despite efforts to impeach such testimony. See Jarke v.Jackson Products, Inc., 282 Ill. App. 3d 292, 298 (1996). Moreover, Dr. Bouchard's opinion thatrespondents suffer from mental impairments and mental illnesses preventing them from dischargingtheir normal parental responsibilities was based on more than these two tests. For example, inaddition to the clinical interviews and the parent-child observation session, Dr. Bouchard's opinionwas based on the results of three objective tests: the IQ test, the Symptoms Checklist, and the WideRange Achievement Test.

Dr. Bouchard also conceded that respondents had expressed frustration with the system andthe caseworker who referred respondents to her. Dr. Bouchard explained her views as to the effectof these circumstances on various test results. Contrary to respondents' assertion, however, Dr.Bouchard conceded only that respondents' defensiveness "could have" affected the test results, notthat it was likely. The trial court was thereby made aware of the potential problems with various testresults and nevertheless chose to accept Dr. Bouchard's opinion. The possibility that frustration withthe system affected the outcomes of certain tests given to respondents does not convince me that thetrial court should have rejected those test results or the opinion that was partially based thereon. SeeJarke, 282 Ill. App. 3d at 298. A finding that the test results were part of a valid basis upon whichto opine that respondents had mental impairments and mental illnesses making them unable todischarge their parental duties was not against the manifest weight of the evidence, because theopposite conclusion is not clearly evident.

Contrary to respondents' position and the majority's conclusion, in my judgment the facts ofthis case provided ample support for Dr. Bouchard's opinion. "It is well settled that, in order to finda parent unfit under section 1(D)(p) of the Act, the State must (1) present competent evidence thatthe parent suffers from a mental impairment, mental illness, or mental retardation sufficient to preventher from discharging a parent's normal responsibilities; and (2) there must be sufficient evidence toconclude that the inability will extend beyond a reasonable time period." In re M.M., 303 Ill. App.3d 559, 566 (1999). The trial court's finding of unfitness will not be set aside unless it is against themanifest weight of the evidence. M.M., 303 Ill. App. 3d at 565. A finding is against the manifestweight of the evidence when the opposite result is clearly evident from a review of the evidence. M.M., 303 Ill. App. 3d at 565.

Dr. Bouchard testified that respondent father had an IQ of 69 which, according to theWechsler Adult Intelligence Scale-III classification, is in the extremely low range of intellectualfunctioning. According to Dr. Bouchard, respondent father reads and spells at a third-grade level andperforms arithmetic at a fifth-grade level. Respondent father scored 45 of a possible 100 on theglobal functioning scale, indicating impairment in daily functioning. Dr. Bouchard also diagnosedrespondent father with dysthymic disorder, early onset, a mental disorder classified in the fourthedition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See AmericanPsychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition 345(1994). Dr. Bouchard explained that her diagnosis of respondent father as having dysthymic disordermeans that, in her expert opinion, he has a history of chronic depression. Dr. Bouchard opined that,within a reasonable degree of psychological or clinical psychological certainty, respondent father wasunable to parent due to his mental disorder and low level of intellectual functioning.

With respect to respondent mother, Dr. Bouchard testified that she has a full-scale IQ of 74,placing her in the borderline range of intellectual functioning. Respondent mother reads at a third-grade level, spells at a fifth-grade level, and performs arithmetic at a fourth-grade level. Her globalfunctioning score of 35 out of 100 indicated impairment in her daily functioning. Dr. Boucharddiagnosed respondent mother as having the mental disorders of chronic depression (AmericanPsychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition 345(1994)), intermittent explosive disorder (American Psychiatric Association, Diagnostic and StatisticalManual of Mental Disorders, Fourth Edition 609 (1994), and dependent personality disorder(American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, FourthEdition 665 (1994). Dr. Bouchard opined that, within a reasonable degree of psychological or clinicalpsychological certainty, respondent mother was unable to successfully and safely care for the childrenbecause of her borderline intellectual functioning and the very significant personality disorganizationnoted in the psychological testing. Dr. Bouchard also opined that neither respondent is capable oftaking care of one child, let alone six children. Dr. Bouchard opined further that there is no prospectof respondent mother's parenting abilities improving markedly in the near future.

The DSM-IV is based on clinical research and is nationally recognized as a text of mentaldisorders. In re Detention of Hughes, 346 Ill. App. 3d 637, 644 (2004). According to Dr. Bouchard,a licensed clinical psychologist, each respondent meets the criteria for dysthymic disorder under theDSM-IV. Respondent mother also meets the criteria for intermittent explosive disorder anddependant personality disorder under the DSM-IV. Under section 1--119 of the Mental Health andDevelopmental Disabilities Code (405 ILCS 5/1--119 (West 2002)), a person is mentally ill if theperson has an organic, mental, or emotional disorder that substantially impairs the person's thought,perception of reality, emotional process, judgment, behavior, or ability to cope with the ordinarydemands of life. People v. Lang, 113 Ill. 2d 407, 453 (1986). Dr. Bouchard also testified torespondents' low levels of intellectual functioning. Although the evidence of respondents' mentalfunctioning does not establish mental retardation, "[a] finding of unfitness can be based on arespondent's mental impairment sufficient to prevent her from discharging a parent's normalresponsibilities." (Emphasis omitted.) M.M., 303 Ill. App. 3d at 567.

While Dr. Bouchard's opinion was certainly subject to criticism on the ground that it wasbased on limited exposure to respondents and their children, I do not believe that the oppositeconclusion is clearly evident. Our supreme court has stated that "[t]he requirement that the evidenceof mental illness be 'competent' refers to the type of evidence, not the quantum." In re R.C., 195 Ill.2d 291, 302 (2001). The trial court was free to accept Dr. Bouchard's opinion, which wasuncontroverted by another expert, and the trial court's finding that respondents were unfit personsunder section 1(D)(p), based upon that opinion, was not against the manifest weight of the evidence.

For the foregoing reasons, I respectfully dissent from the judgment of the majority, and Iwould proceed to address respondents' second appellate contention, that is, whether the trial courtabused its discretion in determining that it was in the minors' best interest to terminate respondents'parental rights.