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No. 3--01--0924

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

BACKGROUND

The State filed a juvenile petition on December 15, 1999,alleging that Precious was neglected because her environment wasinjurious to her welfare. The petition contended that therespondent was abusing drugs and alcohol during the pregnancy andafter Precious' birth. At a shelter care hearing that same day,the court placed Precious in the temporary custody of theDepartment of Children and Family Services (DCFS).

The court found Precious to be neglected on January 11,2000. The court's February 22, 2000, dispositional order statedthat the respondent was unfit.

On December 5, 2000, the State petitioned to terminate therespondent's parental rights. In this petition, the Statealleged that she was unfit because she had failed to makereasonable progress. The State filed a supplemental petition onMarch 19, 2001, contending that the respondent was also unfitbecause of her habitual drunkenness and addiction to drugs for atleast one year immediately prior to the supplemental petition. In an order issued the same day, the court found that "the oneyear period commences with today's filing and does not relateback to [the] filing of [the] original [petition for terminationof parental rights]."

At the fitness hearing, the parties disagreed concerning thetime period for the habitual drunkenness and drug addictioncount. The respondent argued that the evidence should be limitedto the one-year period from March 19, 2000, to March 19, 2001. The State contended that the time period included, but was notlimited to, that one-year period. The court agreed with theState.

Later during the unfitness hearing, the respondent objectedto the admission of various health care records of the respondentand an older child of hers. The respondent argued that therecords were not admissible under the hearsay exception insection 2--18(4)(a) of the Juvenile Court Act of 1987 (705 ILCS405/2--18(4)(a) (West 2000)). The court overruled therespondent's objections and admitted the records. These recordsshow that the respondent was admitted to the hospital smellingheavily of alcohol four days before giving birth to one ofPrecious' siblings in 1994. At the time of that child's birth,the respondent was described as a severe alcoholic with aconsistent history of drug abuse. That baby was born exposed tococaine, marijuana, and alcohol.

On September 20, 1999, while pregnant with Precious, therespondent's urine specimen tested positive for cocaine. OnNovember 11, 1999, she reported that she drank alcohol daily,ingested cocaine nightly, and smoked marijuana once every two tothree months. On November 19, 1999, the respondent had a blood-alcohol level of .075. She was diagnosed as alcohol dependentand abusing cocaine and marijuana. Precious was born onDecember 10, 1999.

During the fitness hearing, Pamela Coats testified that shewas the DCFS caseworker when Precious was born. Coats referredthe respondent to a drug and alcohol treatment program and aparenting program on March 6 or 7, 2000. The record shows thatthe respondent committed the offense of possession of cocaine onMarch 9, 2000.

The DCFS case was transferred to Dana Coventry, who urgedthe respondent to begin her drug and alcohol treatment programseveral times between April 6, 2000, and June 7, 2000. Duringone of her visits, Coventry asked the respondent to complete aurine specimen drop, but the respondent refused, complaining thatshe was ill. Coventry testified that, other than this one time,she did not schedule the urine specimen drops with therespondent. The drops were to be scheduled by the drug andalcohol treatment program, which the respondent was not attendingat that time.

The respondent went for a drug and alcohol assessment onJune 14, 2000. At this assessment, the respondent admitted thatshe had drunk 6 to 12 beers daily since she was 13 years old. She said that she last drank alcohol on May 25, 2000.

The drug and alcohol treatment staff attempted to contactthe respondent several times during the remainder of the summerof 2000. The respondent first attended treatment onSeptember 18, 2000, but her attendance was sporadic thereafter. Her urine specimens tested positive for cocaine on September 25,2000, and October 25, 2000. On November 14, 2000, the respondentbegan serving a two-year prison sentence for the above-mentionedcocaine possession conviction. The judge in this case ruled thatthe respondent was unfit both because she failed to makereasonable progress and because of her habitual drunkenness anddrug addiction.

At the best interest hearing on October 10, 2001, the courtconsidered the best interest report prepared by DCFS. The reportstates that Precious was doing well and appeared to be happy inher foster home. She had bonded with her foster parents andtheir children. The foster parents were willing to adoptPrecious. She was attending preschool, which she seemed toenjoy. DCFS recommended that the respondent's parental rights beterminated so that Precious could be adopted by her fosterparents.

The parties stipulated that the respondent's release datefrom prison would be December 21, 2001. While in prison, she hadcompleted eight months of voluntary substance abuse treatment. The respondent's attorney urged the court to consider therespondent's rehabilitative potential.

The court ruled that it was in Precious' best interest toterminate the respondent's parental rights. The respondentappealed.

ANALYSIS

I. FITNESS

A. Habitual Drunkenness and Drug Addiction

The respondent argues that the court erred in finding herunfit because of her habitual drunkenness and drug addiction. She contends that the court should not have considered evidencebeyond one year prior to the State filing its supplementalpetition to terminate her parental rights. She also submits thatthe State failed to prove this count of unfitness by clear andconvincing evidence.

A parent is unfit if the parent exhibits habitualdrunkenness or addiction to drugs for at least one yearimmediately prior to the commencement of the unfitnessproceeding. 750 ILCS 50/1(D)(k) (West 2000). At the trialcourt, the State must prove parental unfitness by clear andconvincing evidence. A finding of unfitness will not be reversedon appeal unless it is against the manifest weight of theevidence. In re J.J., 316 Ill. App. 3d 817, 737 N.E.2d 1080(2000). Even if the State alleged more than one count ofunfitness, only one count need be proved to find a parent unfit. In re J.A., 316 Ill. App. 3d 553, 736 N.E.2d 678 (2000).

1. One-year Period

Recently, the Illinois Supreme Court considered the sametime period question that is at issue in this case. In re J.J.,No. 90539 (June 20, 2002). The court ruled that the State mustprove that the respondent was habitually drunk or addicted todrugs during the one year immediately prior to filing thepetition. If that burden is met, the State also may submitevidence of habitual drunkenness or drug addiction prior to thatyear.

With exceptions not applicable here, an appellate courtreviews a trial court's evidentiary rulings for an abuse ofdiscretion. Jackson v. Graham, 323 Ill. App. 3d 766, 753 N.E.2d525 (2001).

In the present case, the State submitted evidence of therespondent's habitual drunkenness and drug addiction for therelevant one-year period. The State also provided evidence frombefore that period. Under J.J., the trial court did not abuseits discretion by admitting evidence from before the one-yearperiod.

The respondent also argues that the trial judge's March 19,2001, ruling limited the scope of the evidence to one year. Therecord does not support the respondent's argument. The judge'sruling merely clarified that the one-year period was to becalculated from March 19, 2001, rather than from December 5,2000.

2. Clear and Convincing Evidence

The respondent contends that the only evidence of herhabitual drunkenness and drug addiction during the one-yearperiod was (1) drinking 6 to 12 beers on May 25, 2000, and (2)urine specimens indicating cocaine use on September 25, 2000, andOctober 25, 2000. She submits that such evidence does notclearly and convincingly show habitual drunkenness and drugaddiction during that year. She also argues that because theState's supplemental petition alleged drunkenness "and" drugaddiction, rather than the statute's language of drunkenness "or"drug addiction, the State initially was required to prove bothdrunkenness for the year and drug addiction for the year.

A finding of habitual drunkenness depends on proof that theindividual (1) had a fixed habit of drinking to excess, and (2)used alcohol so frequently that the individual could not controlthe need or craving for it. J.J., 316 Ill. App. 3d 817, 737N.E.2d 1080. "Addiction to drugs" under section 1(D)(k) meansthe inability or unwillingness to refrain from the use of drugswhere frequent indulgence has caused an habitual craving,manifested by an ongoing pattern of drug use. As with habitualdrunkenness, evidence of indulgence without intermission is notnecessary to prove drug addiction. It is sufficient to show thata person has demonstrated an inability to control his or herhabitual craving. In re D.M., 298 Ill. App. 3d 574, 699 N.E.2d212 (1998).

In this case, the one-year period was from March 19, 2000,to March 19, 2001. The State's evidence showed that therespondent admitted drinking 6 to 12 beers daily from the age of13 through May 25, 2000. This evidence, therefore, covered aperiod from March 19, 2000, through May 25, 2000. It was notnecessary for the State to show that she was continuously abusingalcohol during the entire year in question. This evidenceclearly and convincingly showed that the respondent drankexcessively on a daily basis and could not control her cravingand need for alcohol.

The respondent's urine tested positive for cocaine on twooccasions during the one-year period after she entered thetreatment program, knowing that the program scheduled randomurine specimens. This evidence clearly and convincingly showedthat the respondent could not control her habitual craving forthe drug. Therefore, the State proved both that the respondentwas habitually drunk and that she was addicted to drugs duringthe one-year period.

Having met its initial burden, the State's evidence of therespondent's drug and alcohol abuse before the one-year periodshowed the habitual nature of her drunkenness and drug addictioneven more clearly and convincingly. We rule that it was notagainst the manifest weight of the evidence for the court to havefound the respondent unfit on this basis. Having held that therespondent was unfit on this count, we need not address whetherthe respondent was unfit because of her lack of reasonableprogress. See J.A., 316 Ill. App. 3d 553, 736 N.E.2d 678.

B. Health Care Records
and the Hearsay Exception

The respondent submits that the court erred by admittinghealth care records of the respondent and another of therespondent's children under section 2--18(4)(a) of the JuvenileCourt Act of 1987 (705 ILCS 405/2--18(4)(a) (West 2000)). Therespondent argues that (1) the health care records of therespondent and the respondent's older child were not "recordsrelating to" Precious; (2) the records admitted at the fitnesshearing were not part of "an abuse, neglect, or dependencyproceeding"; and (3) because termination petitions are filedunder the Adoption Act (750 ILCS 50/0.01 et seq. (West 2000))rather than the Juvenile Court Act (705 ILCS 405/1--1 et seq.(West 2000)), the hearsay exception in section 2--18(4)(a) of theJuvenile Court Act is inapplicable to termination proceedingsunder the Adoption Act. Section 2--18(4)(a) states:

"Any writing, record, photograph or x-ray of anyhospital or public or private agency *** made as amemorandum or record of any condition, act,transaction, occurrence or event relating to a minor inan abuse, neglect or dependency proceeding, shall beadmissible in evidence as proof of that condition, act,transaction, occurrence or event ***." 705 ILCS 405/2--18(4)(a) (West 2000).

1. Health Care Records of the Respondent
and Precious' Older Sibling

A trial court may admit the health care records of therespondent of a termination petition under section 2--18(4)(a) ata fitness hearing. In re M.S., 210 Ill. App. 3d 1085, 569 N.E.2d1282 (1991).

Where the intent of a statute can be determined from itsplain language, that intent must prevail. Unless otherwisedefined in the statute, terms are to be ascribed their ordinaryand popularly understood meanings. Lukwinski v. Stone ContainerCorp., 312 Ill. App. 3d 385, 726 N.E.2d 665 (2000).

The State relies upon D.M., 298 Ill. App. 3d 574, 699 N.E.2d212, for the proposition that the health care records of arespondent's child, other than a child who is the subject of thetermination petition, are admissible under section 2--18(4)(a) ata fitness hearing. D.M. does not so hold. The facts of D.M.state that the health care records of one of the respondent'sother children were admitted in evidence. However, therespondent in D.M. did not contest the admissibility of theserecords. Therefore, we find D.M. to be inapposite to the presentcase. Nonetheless, we find that under the plain language ofsection 2--18(4)(a), the health care records of one of Precious'older siblings concerning the condition that brought aboutPrecious' removal from the respondent (habitual drunkenness anddrug addiction) related to Precious.

2. Whether a Fitness Hearing is
an Abuse, Neglect, or Dependency Proceeding

As we recently noted in In re Yasmine P., 328 Ill. App. 3d1005, 767 N.E.2d 867 (2002), section 2.1 of the Adoption Actspecifically provides that the Adoption Act "shall be construedin concert with the Juvenile Court Act of 1987." 750 ILCS 50/2.1(West 2000).

In this case, we hold that when the two acts are construedtogether, a fitness hearing under the Adoption Act is acontinuation of the abuse, neglect, or dependency proceedings ofthe Juvenile Court Act.

3. Whether Section 2--18(4)(a) of the Juvenile Court Act
is Applicable in a Proceeding under the Adoption Act

In Yasmine P., 328 Ill. App. 3d 1005, 767 N.E.2d 867 (2002),we held that the hearsay exception in section 2--18(4)(a) of theJuvenile Court Act is applicable in a fitness hearing broughtunder the Adoption Act. Therefore, we reject the respondent'sargument that section 2--18(4)(a) was inapplicable in this case.

The health care records of the respondent and Precious'older sibling were admissible under section 2--18(4)(a). Thetrial court did not abuse its discretion by admitting theserecords in evidence.

II. Best Interest

The respondent contends that it was not in Precious' bestinterest to terminate respondent's parental rights.

First, the respondent relies upon this court's ruling in Inre B.C., 247 Ill. App. 3d 803, 617 N.E.2d 1207 (1993), for theproposition that at the trial court, the State must prove byclear and convincing evidence that it is in the best interest ofthe child to terminate the parent's rights. She acknowledgesthat more recently, this court ruled in In re V.O., 284 Ill. App.3d 686, 673 N.E.2d 439 (1996), that consideration of a child'sbest interest does not require clear and convincing evidence fromthe State but, rather, is within the sound discretion of thetrial judge. In V.O., we specifically set aside our previousholding concerning the burden of proof in B.C. We see no reasonto disturb V.O. Thus, we reject the respondent's assertion thatthe State must prove that termination is in the child's bestinterest by clear and convincing evidence.

Next, the respondent submits that the trial court'stermination of a parent's rights will not be reversed unless itis against the manifest weight of the evidence. She relies uponthe recent ruling in In re M.F., 326 Ill. App. 3d 1110, 762N.E.2d 701 (2002), by the Illinois Appellate Court, FourthDistrict, for this standard of review. We respectfully disagreewith the Fourth District's holding in M.F. Again, we see noreason to disturb V.O., in which we ruled that the termination ofa parent's rights based on a child's best interest will not bereversed absent an abuse of the trial court's discretion. V.O.,284 Ill. App. 3d 686, 673 N.E.2d 439.

In determining a child's best interest, the trial courtshall consider (1) the physical safety and welfare of the child;(2) the child's sense of attachment; and (3) the child's need forpermanence, including stability and continuity of relationshipswith parent figures. 705 ILCS 405/1--3(4.05)(a), (d), (g) (West2000).

Applying the standards of proof and review articulated inV.O. to this case, we hold that the trial court did not abuse itsdiscretion. The record showed that the respondent had notdemonstrated that she could control her habitual drunkenness anddrug addiction outside the structured environment of prison,which directly affected Precious' physical safety and welfare. The best interest report noted that Precious had developedattachments to her foster parents, their children, and to herpreschool. The record indicated that Precious' need forpermanence weighed against waiting to see if the respondent couldcontrol her substance abuse problems once released from prison. Therefore, the trial court did not err by finding it in Precious'best interest to terminate the respondent's parental rights.

CONCLUSION

For the foregoing reasons, we affirm the judgment of thePeoria County circuit court.

Affirmed.

HOMER and HOLDRIDGE, JJ., concur.