In re M. H.
Case Date: 04/25/2000
Court: 2nd District Appellate
Docket No: 2-99-0864
In re M.H., No. 2-99-08642nd District, 25 April 2000
PRESIDING JUSTICE BOWMAN delivered the opinion of the court: Respondent, V.D. (respondent), appeals from the trial court's termination of her parental rights with respect to her twodaughters, M.H. and T.H. Respondent argues that (1) the State failed to prove she was unfit by clear and convincingevidence and (2) her admission of unfitness was involuntary and contrary to public policy. We reverse the trial court'sjudgment and remand for further proceedings. Respondent has six children. This appeal involves respondent's rights only with respect to T.H. and M.H. On May 1, 1995,the State filed petitions alleging that T.H. and M.H. were neglected minors because one of their brothers occasionally setthings on fire, thus placing T.H. and M.H. at risk of harm. Respondent admitted the petitions and, on August 1, 1995, thetrial court declared T.H. and M.H. to be neglected minors and wards of the court. In its order of disposition, the trial courtappointed DCFS as the girls' guardian and custodian and allowed them to be released to respondent. The court furtherordered that (1) no other persons could live in respondent's home without prior approval from the Department of Childrenand Family Services (DCFS); (2) respondent's son, J.H., must receive counseling; (3) respondent must attend parentingclass and counseling; (4) respondent must maintain a safe and clean home; (5) no alcohol could be consumed around thechildren; and (6) no one who was intoxicated was allowed in the home. On or around February 13, 1996, respondent's children were removed from her custody because of poor conditions in theirhome. T.H., M.H., and their brother, J.H., were placed with their aunt. Later, M.H. and T.H. were placed with differentfoster parents. Eventually it came to light that T.H. had been sexually abused by her brother, S.H., and M.H. had beensexually abused by her brother, J.H. The record is silent as to when the abuse occurred and when respondent and DCFSlearned of the abuse. During the pendency of this matter, the court entered the following orders: the minors' parents and relatives were not todiscuss child abuse and neglect issues with the minors; respondent's son, S.H., could have no unsupervised contact withhis siblings or with respondent; respondent must cooperate in a psychological evaluation; and no one was to threaten orharass the caseworkers. The court entered this last order in response to reports that members of respondent's family hadbeen harassing caseworkers. Prior to the termination of respondent's parental rights as to T.H. and M.H., respondent was before the court numeroustimes for proceedings related to her children. On February 25, 1998, the trial court conducted an adjudicatory hearing onthe State's petition to have respondent's youngest son declared an abused minor. During the hearing, respondent's counselstipulated that M.H. and T.H. had been sexually abused by their brothers and respondent had not been able to protect them.The State introduced evidence that respondent recently had become romantically involved with B.D., who had beenconvicted of the aggravated sexual assault of a 13-year-old girl. The State also introduced evidence that respondent allowed her brother to use cocaine in her home. There was conflictingevidence regarding whether respondent's youngest son was present while her brother was using cocaine. There was furtherevidence that on several occasions respondent's son, S.H., had run away from his foster placement to respondent's homeand respondent had not informed DCFS of S.H.'s presence in her home. A family caseworker from Catholic Charitiestestified that respondent's protective skills were poor and she did not exercise good judgment concerning whom sheallowed around her children. On July 9, 1998, the State filed a "Supplemental Petition for Termination of Parental Rights and Power to Consent toAdoption" (supplemental petition) with respect to both T.H. and M.H. The supplemental petitions appear to be forms withblanks for dates and the parties' names. The supplemental petitions alleged that respondent was unfit to have a childbecause: "COUNT I: She has failed to maintain a reasonable degree of interest, concern, or responsibility as to the said minor's welfare. COUNT II She has failed to protect the said minor from conditions within Minor's environment which are injurious to thechild's welfare. COUNT III She failed to make reasonable efforts to correct the conditions which were the basis of the removal of the said minorfrom her, or to make reasonable progress toward the return of the minor to her within 12 months after anadjudication of a neglected Minor und [sic] under Illinois Revised Statutes , ILCS705 [sic], Section 405/2--3." The supplemental petitions also sought to terminate the rights of T.H.'s father and M.H.'s father. The trial on the termination of respondent's parental rights was scheduled for January 20, 1999. On that date, the Stateindicated it would dismiss the petition to terminate respondent's parental rights as to her son, J.H., because J.H. did notwant to be adopted. The State also informed the court that it would not seek to terminate respondent's parental rights withrespect to her youngest son. The State went on to advise the court that respondent agreed to admit to the allegations incount III of the supplemental petitions that she was unfit for failing to make reasonable progress toward the return of M.H.and T.H. The State further advised that it would try to work out an open adoption for T.H. and M.H. that would allowrespondent to remain in contact with her daughters. Respondent's attorney represented that he had thoroughly discussedthe matter with respondent. The court then questioned respondent on whether she understood her right to require the Stateto prove her unfit: "THE COURT: Okay. I want to be clear on the record, [V.D.], that you have a right of requiring the State prove theallegations, including the allegations that you failed to make reasonable progress on your service plan, that the Statehas a very high burden of proof, they can demonstrate by clear and convincing evidence that you failed to followthrough or failed to progress, basically, in terms of meeting your service plan goals, finishing whatever classes orcounseling that was required in order that [M.H.] and [T.H.] can be returned to you. Do you understand that youhave the right to require that the State present a trial, and if you agree to this you are giving up your right to that? [RESPONDENT'S ATTORNEY]: [V.D.]? THE COURT: Did you want to take a moment to talk to your attorney more? You are hesitating, so I don't want tobe--This is a big step and I want you to be comfortable with it, and I want your [sic] to understand what's being said.What I understand is if you admit to this then the question becomes, at the point in time we set the second portion ofit. It's a two-part consideration, first the unfitness issue and then what's in the best interests, and before anythingwould be done affecting your parental rights findings would have to be made. It would have to be found it would notbe in the children's best interests to go home with you, or whatever, but the first part is--what we are talking abouttoday--and you do have the right to require the State to prove that you are unfit, so if you give up that right I justwant that to be made with your understanding and your agreement. Do you understand that? THE MOTHER: Yeah. THE COURT: Are you agreeable to that? THE MOTHER: Yeah." The court then accepted respondent's admissions on count III of the supplemental petitions. The parties conducted a prove-up on the issue of whether T.H.'s father and M.H.'s father were unfit. The trial court declared both fathers unfit. In April and June 1999 the trial court conducted hearings to determine the best interests of T.H. and M.H. Ann Gerber, afamily caseworker, testified that T.H. went back and forth between wanting to be adopted by her foster family and wantingto return to her mother. According to Gerber, M.H. wanted to stay with her foster family permanently. Gerber did not want to work toward returning T.H. and M.H. to respondent because she felt respondent had made minimalprogress toward improving her parenting skills. According to Gerber, most of respondent's counselors felt that she waseither unable or unwilling to discuss the sexual abuse that happened to T.H. and M.H. Gerber said, "She discusses [thesexual abuse issues] now, but she still has a hard time understanding how this has affected her children and how she wouldhave to protect them in the future from it occurring again." In Gerber's opinion, it was in the children's best interests to freethem for adoption. Gerber testified further that, when she observed family visits, respondent had a hard time interacting with T.H. and M.H.Although respondent was happy to see the children and sometimes gave them a hug, there was little other interactionbetween them. Gerber indicated that respondent had completed Catholic Charities' parenting class twice. However, Gerber and theparenting class coordinator did not see much improvement in respondent's parenting skills. Gerber was also aware thatrespondent was attending counseling both individually and with her husband, B.D. Respondent testified that, in the past four years, things had gone "not so good." She felt she had made "a little bit" ofprogress. When asked what progress she had made, respondent replied, "[p]arenting classes but not good enough I guess,counseling." Respondent felt that her house was appropriate for the children. Regarding her visits with the children,respondent testified she did not like people watching her every move. She said that a long time ago a caseworker had toldher not to hug the children during visits. She preferred visiting her children in her house as opposed to at CatholicCharities. She explained that she did not want to do too much in the way of interacting with her children because shewould probably get in trouble for it. Respondent testified that her counseling sessions were going "fine." She had addressed the sexual abuse issues with hercounselor "a little bit but not much." She testified that she felt remorse for what happened to T.H. and M.H. She furthertestified that she understood the seriousness of what happened and felt like she could adequately protect T.H. and M.H.from further abuse. Respondent stated that she wanted her children to come home because she loved them and wantedthem back. She said she felt competent to take care of them. On cross-examination, respondent was asked what skills she acquired through her parenting classes and counseling thatwould help her protect her children. Her answer was not responsive to the question and when asked again, she gave noresponse. The next witness was Kathy Olson, the services director of Regional Access and Mobilization Project (RAMP). Olsonbecame involved with respondent pursuant to a request from Catholic Charities to work with respondent on herindependent living skills. Olson had visited respondent's home every two weeks since November 1998. She stated thatrespondent's home was always clean and in good order. Respondent's youngest child, C.D., who lived with respondent andher husband, was always clean and healthy and appeared happy. Olson worked with respondent on interacting more withC.D. Olson testified that respondent's mothering skills with respect to C.D. had increased during the previous six months.Olson did not feel qualified to give an opinion as to whether respondent and her husband could provide a stable home forrespondent's other children, although Olson thought they were financially able to do so; their house was clean and they hadadequate food. Olson was present for four of respondent's visits with T.H. and M.H. She thought the visits went well,although she told respondent that she wished she would interact more with the children. Olson felt respondent then mademore of an effort to interact. On cross-examination, Olson testified that she was not a child-care professional. She explained that RAMP employeeshave training in advocacy and providing independent living skills to people with disabilities. She had been working withrespondent primarily on verbalizing her concerns and feelings with respect to getting her children back. Olson stated thatrespondent did not feel like she had been able to say what she wanted to say in the court proceedings. Respondent felt shehad been getting lost in the shuffle of different attorneys and different guardians assigned to the case. Ann Gerber, a foster care case manager with Catholic Charities, testified that she had been working with respondent'sfamily since October 1998. Gerber testified that, during a visit that took place on May 18, 1999, the interaction she sawbetween respondent and the children was appropriate. She did not notice a major improvement in respondent's interactionwith the children during the time she worked on the case, but she saw a little more interaction during some visits. B.D., respondent's husband and the father of respondent's youngest child, testified that he has been in counseling for thepast 23 months related to his criminal sexual assault conviction. He was required to go to counseling as a condition of hisparole, but he planned to continue counseling after his parole expired because he found it helpful. As a result of hiscounseling, he learned not to put himself in situations where he would be in danger of committing another offense. He didnot think there was a risk of him committing another offense. He testified that he stopped using drugs and drinks alcoholonly on holidays but does not get drunk. He has had a steady job for 1 |
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