In re Marriage of Stopher

Case Date: 04/10/2002
Court: 4th District Appellate
Docket No: 4-01-0804 Rel

NO. 4-01-0804

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


In re: the Marriage of
DARRIN LANE STOPHER,
                       Petitioner-Appellant,
                       and
STACY STOPHER, n/k/a Stacy Hardwick,
                       Respondent-Appellee.
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Appeal from
Circuit Court of
Champaign County
No. 99D518

Honorable
Harry E. Clem,
Judge Presiding.


JUSTICE MYERSCOUGH delivered the opinion of the court:

Petitioner, Darrin Lane Stopher, and respondent, StacyStopher, now known as Stacy Hardwick, were married in 1998. Stacy is developmentally disabled and functions at the level ofan eight-year-old child. The parties have one minor child,Bradley. The Champaign County circuit court dissolved theparties' marriage in May 2000, granted temporary custody of thechild to Stacy, and reserved the other issues, including permanent custody. In August 2001, the trial court granted permanentcustody to Stacy. Darrin appeals, arguing the trial court'sdecision to grant permanent custody of the child to Stacy was anabuse of discretion. We affirm.

I. BACKGROUND

The parties met in February 1997 and began dating. Stacy Hardwick was then 20 years old. Her intelligence quotient(I.Q.) is 67, which places her in the tenth percentile in termsof overall cognitive and intellectual functioning. She reads ata second-grade level and is able to do arithmetic at a fourth-grade level. Perceptual skills are her strongest area of intellectual skill. Despite her limitations, Stacy is able to drive acar and hold a janitorial job. Darrin Stopher is nine yearsStacy's senior and of above-average intelligence.

Stacy gave birth to a son, Bradley Clark Stopher, onFebruary 17, 1998. The parties were married on June 1, 1998. After Bradley's birth and prior to the parties' marriage, theparties lived apart from each other. Stacy and Bradley livedwith Stacy's mother, Nadine Hardwick, who helped Stacy care forthe baby. After the parties married, Darrin moved in with Stacy,Bradley, and Nadine.

During the parties' marriage, Stacy was the primarycaregiver for Bradley. Although both Stacy and Darrin workedoutside the home, Darrin worked long hours and unpredictableshifts as a security guard.

Due to Stacy's disability, she cared for her son withintervention from several public agencies. In view of concernover her cognitive limitations, hospital personnel notified theIllinois Department of Children and Family Services (DCFS) whenBradley was born. Richard Schmidt, the child-welfare specialistat DCFS who oversaw Stacy's case, referred her to the Children'sFoundation, which provided Stacy with a home interventionist toteach her parenting skills and to act as an "advocate" for Stacy,driving her to medical appointments and making sure she hadeverything she needed for herself and the baby. In addition, dueto her low income, Stacy qualified for the Women, Infants, andChildren nutrition program (WIC). Services provided to herthrough the WIC program included nutritional counseling, familycase management, food vouchers, and immunizations for Bradley. The family case-management component consisted of education inparenting skills. Significantly, Jami Schenkel and Tami Leigh,who provided parenting education to Stacy through WIC and theChildren's Foundation, respectively, each testified that Stacywas able to learn and retain all the parenting skills they taughther.

Stacy has had substantial support in caring for her sonfrom her mother and three older sisters. When Bradley was born,her mother, at the request of DCFS, moved into the trailer Stacyhad lived in alone prior to that time. (Although she moved outof the trailer in May 2000, she continued to see Bradley andStacy on a daily basis and has since moved back in with Stacy andBradley.)

The parties separated in June 1999. Bradley continuedto live with Stacy, who cared for him with assistance from hermother, sisters, and caseworkers. Darrin filed a petition fordissolution in August 1999, which the trial court granted at aMay 2, 2000, hearing. On August 4, 2000, the trial court entereda written dissolution judgment. The trial court granted temporary custody of Bradley to Stacy and reserved issues of permanentcustody, child support, and property division.

In December 2000, the trial court granted Darrin'smotion for a custody evaluation pursuant to section 604.5(a) ofthe Illinois Marriage and Dissolution of Marriage Act (750 ILCS5/604.5(a) (West 2000)). Dr. Elizabeth Scott, a marriage andfamily therapist appointed by the court, interviewed both partiesand observed their interactions with Bradley in their respectivehomes. She also referred the parties to a clinical psychologistfor psychological testing. On the basis of these tests andobservations, Dr. Scott concluded that Stacy has no emotionalproblems. Darrin, on the other hand, has perfectionist compulsive tendencies and has deep feelings of resentment due toabandonment by both his biological and adoptive fathers when hewas a child. Dr. Scott noted that both parties share a closebond with Bradley and that both spend a lot of time interactingwith him. She described Stacy as "a warm, loving[,] and attentive parent to Bradley with the capacity to respond to his needsin a relaxed, easygoing manner." She noted that while Darrin isaware of Bradley's likes and dislikes and devotes a great deal oftime to one-on-one interaction with the child, he has a tendencyto project his own personality onto Bradley. Further, he has atendency to overstimulate Bradley. For example, he placed enoughsnacks on Bradley's play table to feed 20 children.

In her report, Dr. Scott addressed Stacy's ability toadequately care for Bradley, including her ability to keep himsafe from harm, her ability to see that he is well-nourished, andher ability to help him in his intellectual development as hegrows. Dr. Scott stated that Stacy is keenly aware of potentialdangers to a small child and acts appropriately to protectBradley from any such dangers even though she does not alwaysunderstand why something is dangerous to him. She expressed someconcern, however, about Stacy's ability to protect Bradley fromharm if confronted with an unfamiliar situation. Dr. Scott notedthat Darrin and his family had expressed concern over Bradley'snutrition due to the fact that both his height and weight fellbelow the fifth percentile for his age, but she stated that hispediatrician and nurse-caseworker from WIC both attributed thisto genetics rather than malnutrition. She predicted that, due toStacy's cognitive limitations, she would be unable to meetBradley's developmental needs as he grew older. Emphasizing thislast factor, she recommended that Darrin be given full legalcustody of Bradley.

On June 14, 2001, and July 10, 2001, the trial courtheard extensive testimony regarding permanent custody and theother reserved issues. Much of the testimony centered on Stacy'sability to adequately care for Bradley. On August 23, 2001, thetrial court entered its final order. After considering allrelevant statutory factors (see 750 ILCS 5/602 (West 2000)), thetrial court found that it was in Bradley's best interests toremain in the custody of his mother, Stacy Hardwick. The orderdid not contain specific findings as to the impact of Stacy'sdisability on her ability to care for the child. This appealfollowed.

II. ANALYSIS

Darrin contends the trial court's finding that theaward of custody to Stacy was against the manifest weight of theevidence because (1) the finding contravenes the recommendationof the custody evaluator, and (2) Stacy's developmental disability renders her incapable of providing a safe environment forBradley. We disagree.

The trial court must determine custody according to thebest interest of the child. 750 ILCS 5/602(a) (West 2000). Thetrial court's findings as to the child's best interest areentitled to great deference because the trial judge is in abetter position than are we to observe the temperaments andpersonalities of the parties and assess the credibility ofwitnesses. In re Marriage of Felson, 171 Ill. App. 3d 923, 926,525 N.E.2d 1103, 1105 (1988). A reviewing court will not overturn a trial court's custody determination unless it is againstthe manifest weight of the evidence, is manifestly unjust, orresults from a clear abuse of discretion. Stockton v. Oldenburg,305 Ill. App. 3d 897, 906, 713 N.E.2d 259, 266 (1999); Felson,171 Ill. App. 3d at 926-27, 525 N.E.2d at 1105.

Darrin argues that the trial court's determination thatawarding primary custody to Stacy was in Bradley's best interestwas against the manifest weight of the evidence because thecustody evaluator recommended that he be given custody of thechild. However, the trial court, not the custody evaluator,determines the child's best interest. The court need not acceptthe recommendation of an expert. Stockton, 305 Ill. App. 3d at906, 713 N.E.2d at 266; see also Felson, 171 Ill. App. 3d at 928,525 N.E.2d at 1106 ("[a] recommendation concerning the custody ofa child is only that, a recommendation"); 750 ILCS 5/605(c) (West2000) ("[t]he court may examine and consider the investigator'sreport in determining custody" (emphasis added)).

In Felson, 171 Ill. App. 3d at 926, 525 N.E.2d at 1105,the trial court found it would be in the child's best interest toaward custody to the mother. Among the evidence the trial courthad before it in making this determination was a custody evaluation report. That report recommended the parents share custodyof the child. Felson, 171 Ill. App. 3d at 927, 525 N.E.2d at1105. In affirming the trial court's decision not to follow theevaluators' recommendation, the First District Appellate Courtstated, "a trial court is free to evaluate the evidence presentedand accept or reject it in whole or in part." Felson, 171 Ill.App. 3d at 928, 525 N.E.2d at 1106. The trial court in that casehad before it not only the conclusions of the custody evaluators,but also their entire report as well as other evidence. Thereport indicated that both parents were competent to care fortheir child but that the father had more help from his extendedfamily than the mother. Felson, 171 Ill. App. 3d at 928, 525N.E.2d at 1106. Other evidence indicated that part of thefather's motive in seeking custody was his desire to please hisextended family. Felson, 171 Ill. App. 3d at 926, 525 N.E.2d at1105. Viewing the record as a whole, the First District concluded that the evidence supported the trial court's finding. Felson, 171 Ill. App. 3d at 928, 525 N.E.2d at 1106.

Similarly, in the case at bar, the record containsextensive evidence, including observations in the custody evaluator's report, to support the trial court's conclusion, eventhough its conclusion was not the same as that reached by thecustody evaluator. Dr. Scott raised two main concerns in herreport: Stacy's ability to respond to an emergency situation andher ability to assist Bradley in his intellectual development ashe grows older. A reading of the entire record supports theconclusion that Stacy can adequately protect her child from harmand, with the support she has from her family, can help him todevelop intellectually.

Dr. Scott stated in her report that both Darrin andStacy read to Bradley every day when he is in their care. However, because Stacy reads at a second-grade level and performsother cognitive functions at only a slightly higher level,Bradley will surpass her skill level at a fairly young age. However, Stacy's mother and sisters, who do not suffer fromdevelopmental delays, are also deeply involved in his life andwill be available to help him in his cognitive development.

Further, the record contains evidence from which thetrial court could conclude that Darrin might be less able thanStacy to meet his son's developmental needs due to his compulsiveness and impatience. Dr. Scott stated in her report thatDarrin "is a highly intelligent man who has many intellectualinterests to share with his son as he matures[;] however, he hassome personality characteristics which can either spark Bradley'sinterests and curiosities[] or can shut Bradley down due tooverstimulation." For example, Darrin demonstrated his impatience in a letter he wrote to Stacy October 1999, regarding adispute over a credit card bill he received because Stacy had notgiven the credit card company a change of address. He wrote,"[y]ou've bumbled around and screwed up my life for the lasttime," and threatened to take all her household possessions andsend them to his family in Missouri.

Dr. Scott and Darrin both described Stacy as protectiveof Bradley. However, Dr. Scott expressed concern in her reportwith Stacy's ability to protect Bradley from harm in unfamiliarcircumstances. The record, nonetheless, supports the trialcourt's apparent conclusion that Stacy is able to protect herchild and respond to emergencies as they arise. At the hearing,Stacy testified as follows:

"Q. What would you do if Bradley wouldfall off a swing set and break his arm?

A. I would go see what's wrong with himreal quick, call paramedics ***.

Q. Okay. What would you do if hetouched a hot pan and got burned?

A. Get cold, get some--put some ice ina bag and put a towel around it, and put iton his arm or wherever it's burned, and callthe paramedics.

Q. What would you do if he stoppedbreathing?

A. Call the paramedics.

Q. Okay. What would you do if he tooksome poison?

A. You read the bottle and see what todo.

* * *

Q. And do you have something to givehim in your house in case he swallows poison?

A. Yes, I do."

Although she could not pronounce the name of ipecac syrup, sheknew she had it in her medicine cabinet in a safety kit.

Although Stacy knew to call 9-1-1 for the paramedics inany emergency she could not handle on her own, she was unable toconnect to an operator when she attempted to do so when Bradleystopped breathing. Instead, she called her mother, who helpedher to get Bradley the emergency care he needed.

Additionally, a DCFS risk-assessment report datedFebruary 9, 1999, indicated that the child-welfare specialist whoworked with Stacy found no risk to Bradley's safety while in hercare. The form specifically included a question which directlyasked whether the caregiver's developmental disability impairedher ability to supervise and care for the child. The specialistresponded, "no." We find the evidence supports the trial court'sapparent conclusion that Bradley is safe in Stacy's care.

Darrin next contends that Stacy's disability rendersher incapable of providing adequate care to Bradley, and, therefore, the finding that awarding Stacy custody is in Bradley'sbest interest is against the manifest weight of the evidence. Hecites Corcoran v. Corcoran, 79 Ill. App. 2d 328, 224 N.E.2d 611(1967), in support of his position that a parent's mental disability justifies a trial court's award of custody to the otherparent. We do not read Corcoran to require trial courts to awardcustody to the other parent in all cases where a parent suffersfrom a developmental disability.

In Corcoran, the First District Appellate Court affirmed a trial court's decision to grant custody of the couple'sfour teenaged children to the father. That decision was basedprimarily on the mother's mental illness. Corcoran, 79 Ill. App.2d at 333, 224 N.E.2d at 613. Darrin contends the only majordifference between this case and Corcoran is that "the Corcorantrial court made a correct initial ruling." We disagree. InCorcoran, the mother suffered from a mental illness for which shewas hospitalized on and off from 1958 until 1962. After herrelease from a psychiatric hospital in July 1962, she lived withher mother until May 1963, after which time she lived in anursing home. Corcoran, 79 Ill. App. 2d at 330, 224 N.E.2d at612. She did not return to the marital home to live with herchildren until the middle of 1965, after she had filed fordissolution. Corcoran, 79 Ill. App. 2d at 330, 224 N.E.2d at612. During this seven-year period, the children remained intheir father's care. Corcoran, 79 Ill. App. 2d at 334, 224N.E.2d at 614. Under these circumstances, the First Districtfound the trial court had acted within its discretion in awardingcustody to the father "about whom there was no question ofability to provide and care for the children." Corcoran, 79 Ill.App. 2d at 333, 224 N.E.2d at 613.

The instant case is distinguishable. First, althoughthe Corcoran court did not specify what mental illness afflictedthe mother, the illness apparently rendered her enough of adanger to herself or others that she had to be committed topsychiatric hospitals for significant periods of time. At somepoint, she had been the subject of civil commitment proceedings. Corcoran, 79 Ill. App. 2d at 331, 224 N.E.2d at 612 (noting Mrs.Corcoran's civil rights were restored to her in January 1964). In stark contrast, Stacy's developmental disability has neverrendered her a danger to herself or others or required institutional care. Further, the father in Corcoran had been hischildren's primary caregiver and de facto custodial parent forseven years prior to the couple's dissolution. In the instantcase, Stacy, not Darrin, has been Bradley's primary caregiver hisentire life, and she has been his custodial parent since thecouple separated in June 1999, two years before the court enteredthe order granting her permanent custody. Moreover, while therewas no question of the father's ability to parent his children inCorcoran, here, the custody evaluator, Dr. Scott, raised significant concerns about Darrin's parenting ability.

We are aware of no Illinois cases that directly addressthe precise issue before us, the impact of a parent's developmental disability on a custody determination. However, the SupremeCourt of North Dakota recently addressed an analogous situationin Holtz v. Holtz, 595 N.W.2d 1 (N.D. 1999). In Holtz, the trialcourt that entered the order dissolving the parties' marriageawarded sole custody of their four-year-old daughter to herdevelopmentally disabled mother. Three years later, the fatherpetitioned for a change in custody. Holtz, 595 N.W.2d at 3. Thetrial court granted the change in custody and the mother appealed. (We note that North Dakota law, like Illinois law,requires a showing of changed circumstances that justify thechange in custody as well as a showing that the change is in thechild's best interest. Holtz, 595 N.W.2d at 6. This issue isnot present in the instant case. However, we find the Holtzcourt's discussion of the child's best interest relevant.)

In affirming the trial court's ruling, the supremecourt did not state that a developmentally disabled parent isinherently unable to care for her child. Rather, the court foundthat the specific facts in the record before it supported thetrial court's ruling. Specifically, the court noted that themother was unable to discipline her child properly. The localsocial services department received complaints of child neglectfrom people who had witnessed the mother failing to adequatelysupervise the child, yelling at her, and using "rather harshdiscipline techniques." Holtz, 595 N.W.2d at 7. Under her care,the child was less mature than other children her age. Holtz,595 N.W.2d at 5. Although a parent aide was provided to help themother maintain her household, the assistance was going to beterminated because "at some point the child would start to takecare of the mother." Holtz, 595 N.W.2d at 5. The parent aidetried to teach the mother better parenting skills, but she didnot retain any of the skills the aide taught her and, instead,went back to using "her less effective methods of discipline." Holtz, 595 N.W.2d at 5. Further, the mother was unable to helpthe child with her homework. Holtz, 595 N.W.2d at 5.

To the contrary, Stacy is a patient and nurturingmother who is willing and able to take full advantage of thesupport services available to her. Her caseworkers describe heras cooperative and eager to learn better parenting skills andstate that she retains the parenting skills they teach her. Inaddition, Stacy states that she learns how to do things for herchild from reading magazines and watching what other parents do. Bradley, unlike the child in Holtz, is developing at a levelcommensurate with his age. Although Stacy, like the mother inHoltz, will become unable to help Bradley with his school homework in the future, this one fact is not dispositive. Unlike themother in Holtz, Stacy is willing to rely on the support providedto her by social service agencies and her family to help her meether growing child's cognitive needs. The other factors thatjustified the change of custody in Holtz are not at issue in thecase at bar.

In addition to the concerns raised by Dr. Scott'sevaluation, Darrin questions Stacy's ability to understandBradley's nutritional needs. The parties presented conflictingevidence as to the cause of Bradley's small stature and lowweight. Darrin submitted the evidence deposition of Dr. G. KrisBysani, a pediatrician and professor of pediatrics, who concludedBradley suffered from failure-to-thrive syndrome due to undernourishment. Stacy, however, submitted the evidence depositionof Bradley's treating pediatrician, Dr. Marcia Hauter, whoreached the opposite conclusion. Further, Carol Boucher,Bradley's nurse-caseworker from WIC, testified that the ratio ofa child's height to his weight is more important as an indicatorof malnutrition than the height and weight themselves and thatBradley's height-to-weight ratio was consistently within therange WIC considered to be adequate. She further testified thattests of his hemoglobin always showed he was not anemic and thatgenetics are a major factor in determining a child's stature. Darrin is 5 feet 6 1/2 inches tall; the record does not indicateStacy's height.

As further evidence of Stacy's alleged failure toprovide Bradley with adequate nutrition, Darrin points to anincident in which Tami Leigh, the home interventionist from theChildren's Foundation, saw Stacy put only a tablespoon of foodinto a large bowl to prepare to feed Bradley. The incidentoccurred when Bradley was four months old and just beginning toeat baby food. Leigh testified that she explained to Stacy howmuch food a baby needs to eat and that, from then on, Stacyalways fed him an appropriate amount of food. We find the recordsupports the conclusions that Bradley does not suffer fromfailure-to-thrive syndrome due to malnourishment and that Stacyunderstands how to provide him with adequate nutrition.

Moreover, Stacy's developmental disability is not theonly factor to be considered. In determining the child's bestinterest, trial courts are to consider the following factors:

"(1) the wishes of the child's parent orparents as to his custody;

(2) the wishes of the child as to hiscustodian;

(3) the interaction and interrelationship of the child with his parent or parents,his siblings and any other person who maysignificantly affect the child's best interest;

(4) the child's adjustment to his home,school and community;

(5) the mental and physical health ofall individuals involved;

(6) the physical violence or threat ofphysical violence by the child's potentialcustodian ***;

(7) the occurrence of ongoing abuse asdefined in *** the Illinois Domestic ViolenceAct of 1986 ***; and

(8) the willingness and ability of eachparent to facilitate and encourage a closeand continuing relationship between the otherparent and the child." 750 ILCS 5/602(a)(1)through (a)(8) (West 2000).

Many of these additional factors favor an award of custody toStacy. Currently, Bradley has close bonds with Stacy's motherand sisters. He spends time with Stacy's sister, Linda, severaltimes each week. Although he also enjoys relationships withDarrin's family, they reside in Missouri and have not played soprominent a role in his life as have Stacy's mother and sisters. Further, the record shows that Bradley is happy and well-adjustedin the home he now shares with Stacy and Nadine. Since thehearing, he has begun preschool. Granting custody to Darrinwould diminish Bradley's ties to Stacy's family and require himto adjust to a new home, school, and community. We, therefore,conclude the record as a whole supports the trial court's determination.

III. CONCLUSION

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

Affirmed.

KNECHT and TURNER, JJ., concur.