In re E.S. 

Case Date: 09/10/2001
Court: 4th District Appellate
Docket No: 4-01-0153 Rel

September 10, 2001

NO. 4-01-0153

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: E.S. and R.S., Minors,)Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS,)Circuit Court of
Petitioner-Appellee,)Champaign County
v.)No. 00JA75
TAMMY SHREVE,)
Respondent-Appellant.)Honorable
)Ann A. Einhorn,
)Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In February 2001, the trial court entered a disposi-tional order awarding custody of E.S. (born April 18, 1987) tohis father, Everett Shreve, and awarding custody of R.S. (bornDecember 15, 1996) to the Department of Children and FamilyServices (DCFS). Respondent mother, Tammy Shreve, appeals,arguing that (1) the trial court's finding that it was in thebest interests of E.S. to place him in the custody of his fatherwas against the manifest weight of the evidence, and (2) thetrial court lacked jurisdiction over R.S. We affirm.

I. BACKGROUND

In October 2000, the State filed a two-count petitionfor adjudication of wardship (petition) alleging, inter alia,that the minors were neglected pursuant to section 2-3(1)(b) ofthe Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS405/2-3(1)(b) (West 2000)) because they resided in an environmentinjurious to their welfare: specifically, when the minorsresided with their mother, they were exposed to the risk ofphysical harm and substance abuse. On October 2 and 3, 2000, thetrial court conducted a shelter-care hearing. The trial courtheard testimony that respondent was highly intoxicated in a hotelroom with the minor children. E.S. called the police becauserespondent was yelling at one of the children and E.S. wasscared. The police officers took E.S. and R.S. into protectivecustody because they felt that respondent lacked the ability tocare for the minors in her intoxicated condition. The trialcourt also heard testimony that respondent became pregnant withR.S. by artificial insemination. Rachel Braunigan, child welfarespecialist with DCFS, testified that she learned of two indicatedreports from Kentucky involving respondent--in the fall of 1998,emotional abuse to E.S., and in December 1997, physical abuse toA.S. (respondent's daughter who is not part of this case). Atthe close of evidence, the trial court found probable cause tobelieve that E.S. and R.S. were neglected. In addition, thetrial court found that it was a matter of immediate and urgentnecessity that a temporary custodian be appointed and awardedDCFS temporary custody of E.S. and R.S.

In November 2000, the trial court admonished Everett asto the allegations in the State's petition. Specifically, thetrial court admonished Everett that the State filed a petitionnaming him the father of E.S. and R.S. Everett informed thetrial court that he was the father of E.S. only. At that pointin the hearing, respondent's attorney stated: "We discussed thatat the last court hearing. [R.S.] was born by artificial insemination. There is no father." The State then moved to amend thepetition to list the father of R.S as unknown. The trial courtthen noted that Everett was the father of E.S. only, delayedamending the petition further until such time as the court hadmore information, and completed the admonitions.

On December 29, 2000, the trial court conducted anadjudicatory hearing. Respondent agreed to admit and stipulateto count II of the petition--that the minors are exposed to aninjurious environment when with respondent due to her substanceabuse. The State withdrew count I of its petition (neglected dueto risk of physical harm). The parties agreed to tender to thecourt the shelter-care report prepared in October 2000, as anadequate factual basis for the admission and stipulation. Everett waived his right to an adjudicatory hearing. The trialcourt accepted the admission and stipulation and found E.S. andR.S. neglected minors because when they resided with respondentthey were exposed to substance abuse. 705 ILCS 405/2-3(1)(b)(West 2000).

On January 8, 2001, the State filed an amended petitionlisting the father of R.S. as follows: "unknown; via anonymoussperm donor." On January 18, 2001, the trial court filed itswritten adjudicatory order. On January 29, 2001, the trial courtconducted the dispositional hearing. Everett testified that helives in Kittanning, Pennsylvania. He has been married for eightyears. He and his wife live in a three-bedroom home overlookingthe Allegheny River. Everett and his wife would like E.S. tocome live with them. E.S. would attend the middle school that is located less than one mile from the house, and E.S. couldparticipate in programs and activities in the neighborhood. Everett is employed as a quality engineer with Penn United andearns approximately $40,000 per year. He has health insuranceand has listed E.S. on his policy. Everett is aware that E.S.has been diagnosed with attention-deficit disorder and informedthe court that counseling would be available for E.S. in Pennsylvania.

Everett testified that he did not have contact withE.S. for a long period of time. When he was first divorced, hesent cards and letters to E.S.; but in 1991, the cards werereturned with no forwarding address. He inquired about respondent's whereabouts but in 1993 lost contact with them becausethey moved and left no forwarding address. He pays child supportthrough the circuit clerk's office in Terre Haute, Indiana, butthat office would not give him an address for respondent. Helearned of E.S.' whereabouts in early 2000 when he was informedthat a case had been filed against respondent involving theminors. He hired an attorney and was present for the hearing,but the case was dismissed because the charge was too broad. Itwas not until this case arose that Everett reestablished contactwith E.S. Since then, Everett has been visiting with E.S.approximately once a month. Everett would like to build arelationship with E.S., and E.S. expressed an interest in livingwith Everett.

Everett testified that he has no criminal convictionsor charges filed against him. He acknowledged that when he wasmarried to respondent, some domestic violence occurred for whichhe attended and completed counseling. No domestic violence hasoccurred in his current marriage. He testified that he did nothave an alcohol problem when he was married to respondent anddoes not presently have a problem. Everett and his wife livealone in their home. In the past, however, two of his wife'schildren resided with them--a daughter for six years, and a sonfor three years.

Everett's wife, Margaret, testified that she andEverett have the income, ability, and other basics necessary totake care of E.S. She does not have any problem with E.S.maintaining contact with R.S. and would probably encourage E.S.to do so. She does not have any criminal convictions and hasnever been found unfit to care for a child.

The trial court received the dispositional reportprepared by Jennifer Martin with DCFS. The report indicated thatrespondent was married and divorced twice. Respondent reportedthat her marriage with Everett involved domestic violence. Sheand Everett divorced in 1990, and the divorce decree allowedEverett no contact with the children due to past violence. Respondent reported, though, that Everett was not present at thedivorce hearing and presented no evidence on his behalf.

Respondent later married Michael Walker, who was unableto have any children. She was, therefore, artificially inseminated and gave birth to R.S. Respondent apparently provided somekind of documentation to DCFS that Michael went into court inArizona and claimed that he was not R.S.' biological father andthat he was not aware of the artificial insemination. In addition, respondent told DCFS the divorce order states that Michaelwas not legally responsible for R.S.

The report further indicates that respondent had priorinvolvement with social services in Kentucky where, in the fallof 1998, her children were removed from her care due to anallegation of neglect. In addition, in August 1999, in Indiana,there was a report that respondent could not control E.S. andthat E.S. continued to run away from home. Reports documentedthat respondent refused to pick up E.S. from the youth detentioncenter. Respondent told DCFS that E.S. was the cause of herproblems and that she blamed the removal of her children on him.

The report also indicated that Everett was honorablydischarged from the military, where he had enlisted into themilitary police. He earned a bachelor's degree in businessadministration. He was not involved in the neglect that precipitated the present case and wants to be a placement resource forE.S. Everett travels to Illinois at least once a month to visitwith E.S. Everett writes E.S. regularly and provides him withprepaid phone cards to enable E.S. to call him.

At the last review hearing, DCFS rated respondentunsuccessful at demonstrating her ability to provide a safeenvironment. DCFS encouraged respondent to seek employment tobecome financially independent. Respondent informed DCFS thatshe applied for disability based on her mental health issues. Respondent is receiving mental health counseling, but her therapist reported respondent is only making minimal progress. InDecember 2000, respondent exhibited threatening behavior towardher therapist. Specifically, she went "into a rage, pacing, andgetting into the therapist's face." Respondent indicated thatshe was not aware that her behavior was threatening in anymanner. This caused DCFS concern that respondent lacked insightinto her own aggressive behaviors.

E.S., who is 13 years old, has expressed a desire tolive with Everett. E.S. does not want to visit with respondentand told DCFS that "[h]is mother was playing a game." He believed that his mother would do whatever DCFS said until E.S. isreturned and then she would start the violence again.

After hearing the evidence and argument of counsel andconsidering the dispositional report, the trial court foundrespondent and Everett unfit and unable for reasons other thanfinancial circumstances alone, to care for, protect, train ordiscipline the minors. In its decision, the trial court foundthat "[respondent] *** severely and consistently abuses alcoholand her significant anger problems are exacerbated by alcoholconsumption. She lacks insight into her own actions and theirconsequences. Her life is chaotic; dysfunction appears to beingrained. [Respondent] is not addressing her serious mentalhealth issues." The court further found respondent unfit andunable to exercise either custody or guardianship of both minors. The court found Everett unable to exercise guardianship but foundhim fit, able, and willing to exercise custody of E.S. The courtfound that placing custody of E.S. with Everett would not endanger his health and safety and that it would be in E.S.' bestinterests to do so. The court ordered Everett and his currentwife to cooperate fully with the Pennsylvania equivalent of DCFS. The trial court placed custody and guardianship of R.S. with DCFSand placed only guardianship of E.S. with DCFS.

This appeal followed.

II. ANALYSIS

A. Award of Custody of E.S.

Respondent does not challenge the trial court's determination of neglect. Instead, she initially contends that thetrial court's finding that it was in the best interests of E.S.to place custody of him with his father, who lives in Pennsylvania, was against the manifest weight of the evidence in light ofthe trial court's finding that Everett was unfit to care for,protect, train, or discipline E.S. Specifically, respondent con-tends that only a fit parent can have custody of a child foundabused or neglected. We agree that only a parent found fit canhave custody, but we disagree that the trial court's placement ofcustody was against the manifest weight of the evidence.

In child custody proceedings under the Juvenile CourtAct (705 ILCS 405/1-1 et seq. (West 2000)), the best interests ofthe child are paramount, and the trial court is vested with widediscretion. In re W.B., 213 Ill. App. 3d 274, 282, 571 N.E.2d1120, 1126 (1991). The trial court has the best opportunity toobserve the demeanor and conduct of the parties and witnessesand, therefore, is in the best position to determine the credibility and weight of the witnesses' testimony. In re A.P., 179Ill. 2d 184, 204, 688 N.E.2d 642, 652 (1997). The trial court isalso in the best position to determine the best interests of aminor. In re B.D., 321 Ill. App. 3d 161, 164, 746 N.E.2d 822,825 (2001). The trial court is given broad discretion and greatdeference in matters involving minors. B.D., 321 Ill. App. 3d at164, 746 N.E.2d at 825. Therefore, the determination of thetrial court will not be disturbed unless it is against themanifest weight of the evidence. W.B., 213 Ill. App. 3d at 282,571 N.E.2d at 1126.

Under the Juvenile Court Act, the trial court in adispositional hearing determines whether it is in the minor'sbest interests to be made a ward of the court. 705 ILCS 405/2-27(1) (West 2000). The court also determines whether the minor'sparent is fit to care for him (705 ILCS 405/2-27(1) (West 2000))and whether custody of the abused or neglected minor should berestored to the parent (705 ILCS 405/2-23(1)(a) (West 2000)). Once a minor has been adjudicated a ward of the court based upona finding of abuse, neglect, or dependency, the court conducts adispositional hearing. After hearing evidence and argument bycounsel, the trial court is permitted to enter a dispositionalorder. Dispositional orders are authorized by section 2-23 ofthe Juvenile Court Act (705 ILCS 405/2-23 (West 2000)), whichstates in part:

"(1) The following kinds of orders ofdisposition may be made in respect of wardsof the court:

(a) A minor under 18 years of age foundto be neglected or abused under [s]ection 2-3*** may be (1) continued in the custody ofhis or her parents, guardian[,] or legalcustodian; (2) placed in accordance with[s]ection 2-27; *** or (4) ordered partiallyor completely emancipated ***."

Section 1-2 of the Juvenile Court Act (705 ILCS 405/1-2 (West2000)) declares the purpose and policy of the Juvenile Court Act,in relevant part, as follows:

"(1) The purpose of this [a]ct is tosecure for each minor subject hereto suchcare and guidance, preferably in his or herown home, as will serve the safety and moral,emotional, mental, and physical welfare ofthe minor and the best interests of the community; to preserve and strengthen the minor's family ties whenever possible, removinghim or her from the custody of his or herparents only when his or her safety or welfare or the protection of the public cannotbe adequately safeguarded without removal***."

After reviewing all of the evidence, the trial courtdetermined it would be in E.S.' best interests to place hiscustody with Everett, noting that the "extremely rocky situationin which [E.S.] has been [with respondent] *** is not a recentdevelopment, this apparently has been going on for some timebetween him and his mother." We acknowledge that the trialcourt's written order found Everett unfit and unable for reasonsother than financial circumstances alone, to care for, protect,train, or discipline E.S. The trial court, however, also foundEverett fit, able, and willing to exercise custody of E.S. andthat it was in E.S.' best interests to award custody to Everett. Although at first blush it may appear that the findings conflict,they do not. The trial court clearly found Everett a superiorplacement resource to the other alternatives, i.e., returncustody to respondent or award custody to someone other than anatural parent. The trial court's finding permits the trialcourt to retain jurisdiction and supervision over the case andpermits DCFS to remain involved to monitor to the case. This isespecially important, here, because Everett resides in Pennsylvania. The trial court's findings were not against the manifestweight of the evidence. Respondent and E.S. have a history ofturbulence. Respondent continues to lack insight into her ownactions and their consequences. Her life is chaotic. In contrast, the record demonstrates Everett's life is more stable, andhe could provide E.S. with a more secure environment. Everettwants custody of E.S., and E.S. wants to reside with his father. When rendering its decision, the trial court acknowledged thepast report of domestic violence against Everett but notedfurther the length of time that had passed since the allegationand that Everett's current marriage seems to be "as smooth as anymarital relationship." Based on the record, we conclude that thetrial court's finding that it was in E.S.' best interests toaward custody to Everett was not an abuse of discretion.

B. Trial Court's Jurisdiction Over R.S.

Respondent next argues that the trial court lackedjurisdiction over R.S. because his father never received noticeof the petition or any of the proceedings. Specifically, respondent contends that R.S. was born during respondent's marriage toMichael Walker. As such, respondent contends that Michael ispresumed to be the father of R.S. pursuant to section 5 of theIllinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/5(West 2000)). The State argues, though, that this presumptionmay be rebutted or, alternatively, respondent should be estoppedfrom raising the argument because it is wholly inconsistent withthe position she took in the trial court. We agree with theState.

In juvenile proceedings, due process requires adequatenotice of the proceedings to a minor and his parents. In reB.L., 315 Ill. App. 3d 602, 605, 734 N.E.2d 476, 478 (2000). Apleading in a juvenile proceeding that fails to name and notifythe necessary respondents fails to invoke the jurisdiction of thecourt and thereby renders its orders void. B.L., 315 Ill. App.3d at 605, 734 N.E.2d at 478. The matter is forfeited, however,and diligence on the part of the State may be assumed, unlesssome question is raised in the circuit court regarding thefailure to identify or locate a noncustodial parent whose identity or address is unknown to the State at the outset of theproceedings. B.L., 315 Ill. App. 3d at 605, 734 N.E.2d at 478.

Here, the State's petition listed respondent andEverett as the parents of both minors. The State amended thepetition by interlineation, to reflect that Everett was thefather of E.S. only. After respondent's attorney represented tothe court that R.S. was conceived by artificial insemination andhad no father, the State requested the petition be amended toshow R.S.' father to be unknown. In January 2000, the Statefiled an amended petition listing R.S.' father as "unknown."

Initially, we note that the record does not indicatethat the State published notice as to any unknown father. Whilethe statute requires publication of notice as to all to whom itmay concern (705 ILCS 405/2-16 (West 2000)), the statute does notaddress any notice requirement when an unknown, i.e., anonymous,sperm donor is involved. We conclude, however, that no notice isrequired to be given to an anonymous sperm donor. Our determination is supported by section 3 of the Parentage Act (750 ILCS40/3 (West 2000)). Specifically, section 3(b) of the ParentageAct provides:

"The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor'swife shall be treated in law as if he werenot the natural father of a child therebyconceived." (Emphasis added.) 750 ILCS40/3(b) (West 2000).

Section 2-13(2) of the Juvenile Court Act requires that a petition initiating a juvenile proceeding shall contain the "thenames and residences of [the minor's] parents[,] *** legalguardian or the person or persons having custody or control ofthe minor." 705 ILCS 405/2-13(2) (West 2000). R.S. was conceived by artificial insemination via an anonymous donor who,pursuant to the Parentage Act, shall not be treated as R.S.'natural father. As such, he has no rights to R.S.; therefore,the State was not required to publish notice to any unknownfather.

Throughout the proceedings in the trial court, respondent's position was that she conceived R.S. through artificialinsemination via an anonymous donor and R.S. had no father. Inaddition, the record contains information that respondent produced documentation to DCFS that Michael was not R.S.' father. Respondent told DCFS that Michael walked into court in Arizonaand told the judge that he was not R.S.' father and that he wasnot aware of the artificial insemination. In addition, respondent represented that her divorce decree from Michael stated thatMichael was not legally responsible for R.S.

The trial court and the parties clearly proceeded basedon those representations. In fact, at Everett's admonitionhearing, respondent's attorney specifically informed the trialcourt that "[R.S.] was born by artificial insemination. There isno father." Respondent should not be allowed to argue on appeala different posture of the case than she took in the trial court,namely moving from "there is no father" to Michael is "a presumptive father." In addition, a party cannot complain of error thatshe induced the court to make or to which she consented. McMathv. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1, 3 (2000). Aparty forfeits her right to complain of an error where to do sois inconsistent with the position taken by the party in anearlier court proceeding. McMath, 191 Ill. 2d at 255, 730 N.E.2dat 3. It is manifestly unfair to allow one party a second trialupon the basis of error that she injected into the proceedings. McMath, 191 Ill. 2d at 255, 730 N.E.2d at 3. We conclude,therefore, that we must affirm the judgment because respondent'sposition in the trial court, which was adopted by the trialcourt, is inconsistent with the one she now argues on appeal--namely, that Michael should have received notice because he isthe presumptive father of R.S.

As noted, both respondent and her attorney repeatedlyrepresented to the court that R.S. had no father because sheconceived R.S. through an anonymous sperm donor via artificialinsemination. When the trial court and the State proceeded basedupon those representations, respondent did not object or raisethe issue of notice to Michael in the trial court--even when theState filed its amended petition listing R.S.' father as unknown. Respondent forfeited her notice argument for purposes of appealbecause she failed to raise it in the trial court and raised itfor the first time on appeal. In addition, we conclude that sheis estopped from raising the notice argument on appeal because itis a position wholly inconsistent with the one she proffered inthe trial court.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.