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Filed:  January 16, 2002

JUSTICE KNECHT delivered the opinion of the court:

On April 27, 2000, the trial court found respondentmother, Jeri Ferrell, an unfit parent. 750 ILCS 50/1(D)(p) (West2000). On February 9, 2001, the trial court terminated herparental rights to T.R. (born May 13, 1992) and M.F. (born March28, 1998). Jeri appeals, arguing (1) the trial court erred infinding her to be an unfit parent; (2) the trial court erred inruling no party has the burden of proof in the best-intereststage of termination of parental rights proceedings; (3) thetrial court erred in finding it was in the best interest of theminors her parental rights be terminated; and (4) she receivedineffective assistance of counsel during the termination proceeding. We affirm in part, reverse in part, and remand with directions.

I. BACKGROUND

On January 2, 1999, Jeri, a diagnosed schizophrenic,attempted suicide by taking an overdose of medications. She wasadmitted to the hospital that day to be medically stabilized. She was transferred to the psychiatric unit and remained therefrom January 5 to January 11. The Department of Children andFamily Services (DCFS) received a report on January 9 that M.F.was at risk of harm due to his mother's actions. M.F., then ninemonths old, was staying with Jeri's parents, Jim and Sue Ferrell. Both Jeri and M.F. resided with Jim and Sue for a period afterM.F.'s birth while her medications became stabilized.

In July 1995, Jim had been indicated by DCFS for riskof sexual harm to a two-year-old girl being cared for by Sue andfor sexual molestation of his then three-year-old granddaughter,T.R. Jim denied the allegations and did not undergo counseling. A protective order prevented him from any contact with T.R. M.F.was taken into protective custody from Jim and Sue by DCFS onJanuary 11. T.R. was placed in foster care where he has residedthroughout the pendency of these proceedings.

On January 12, 1999, the State filed a petition foradjudication of wardship in No. 99-JA-5, alleging Jeri and M.F.'sfather, Ashley Evans, neglected M.F. by providing an environmentinjurious to M.F.'s welfare due to, among other things, Jeri'sattempted suicide and resulting hospitalization. At theadjudicatory hearing on February 18, Jeri admitted this allegation of neglect and the other allegations were dismissed.

At the conclusion of the dispositional hearing on April30, the trial court entered an order finding Jeri to be unfit andadjudicated M.F. a ward of the court, transferring guardianshipto DCFS.

On March 31, the State filed a petition for adjudication of wardship in No. 99-JA-44, alleging T.R. was a neglectedminor due to injurious environment while in the care of respondent as Jeri has mental health issues as admitted in No. 99-JA-5and to permit her to have unsupervised contact with T.R. wouldcreate a risk of harm for the minor. The petition was amended onJuly 7 alleging T.R. was neglected due to an injurious environment while in the care of respondent as Jeri had been found unfitin No. 99-JA-5. An adjudicatory hearing was held on July 26, andthe trial court found both allegations of neglect proved. OnJanuary 20, 2000, a dispositional order was entered adjudicatingT.R. a ward of the court. Guardianship was not transferred toDCFS but, rather, full legal and physical custody was granted toT.R.'s father, David R., with whom she has resided continuouslysince her parents' divorce in 1993.

Jeri has had visitation with T.R. since the divorce. Initially the visitation was unsupervised, but after the allegations of sexual abuse on the part of her father, Jim Ferrell, in1995, in 1996 the visits became supervised pursuant to courtorder and remained so to the present.

The State filed petitions to terminate Jeri's parentalrights as to both M.F. and T.R. on January 20, 2000. Bothpetitions alleged Jeri is an unfit person under section 1(D)(p)of the Adoption Act (750 ILCS 50/1(D)(p) (West 2000)) and herparental rights should be terminated. A consolidated hearing onboth petitions to terminate was conducted between April 2000 andFebruary 2001. The trial court terminated Jeri's parental rightsto both T.R. and M.F. This appeal followed.

II. ANALYSIS

A. Unfitness

Jeri first contends the trial court's order finding herto be an unfit parent was against the manifest weight of theevidence. Both petitions to terminate parental rights allegedseveral grounds for finding Jeri to be unfit but the trial courtultimately found her to be unfit in both cases on the followingbasis:

"She has an inability to discharge parentalresponsibilities supported by competent evidence from a psychiatrist, licensed clinicalsocial worker, or clinical psychologist ofmental impairment, mental illness or mentalretardation as defined in [s]ection 1-116 ofthe Mental Health and Developmental Disabilities Code, or developmental disability asdefined in [s]ection 1-106 of that code andthere is sufficient justification to believethat the inability to discharge her parentalresponsibilities shall extend beyond a reasonable time period."

Parental unfitness in the context of a petition toterminate parental rights must be proved by clear and convincingevidence. In re J.G., 298 Ill. App. 3d 617, 627, 699 N.E.2d 167,174 (1998). A finding of unfitness will not be set aside onappeal unless it is against the manifest weight of the evidence. In re A.P., 277 Ill. App. 3d 592, 598, 660 N.E.2d 1006, 1010(1996). A two-part analysis is necessary to determine whether aparent is unfit due to a form of mental disability. First,competent evidence from the designated category of experts mustshow the parent suffers from a mental disability which preventshim or her from discharging parental responsibilities. Second,sufficient justification must be established to believe theinability to discharge parental responsibilities will extendbeyond a reasonable time period. In re J.A.S., 255 Ill. App. 3d822, 824, 627 N.E.2d 770, 771-72 (1994).

Jeri admits Dr. Marty Traver, a licensed clinicalpsychologist, testified she has a diagnosis of schizo-affectivedisorder and paranoid schizophrenia, which constitute a mentalimpairment or mental illness within the definition of the MentalHealth and Developmental Disabilities Code (405 ILCS 5/1-100through 6-103 (West 2000)). Jeri argues the State failed toprove by clear and convincing evidence this condition wouldprevent her from discharging her parental responsibilities. Jericontends while the evidence indicated she was not a candidate forfull-time parenting of her children at the time of the hearing,it also indicated her mental condition has stabilized and sheinteracts appropriately with her children.

The expert testimony of Dr. Traver, who conducted apsychological evaluation of Jeri, as well as the notes of Dr.Bhaskar Damera, her treating psychiatrist, which were introducedinto evidence, indicate Jeri's condition is chronic, has existedfor over 10 years, and will continue indefinitely. Her historyincludes a suicide attempt, unusual behavior, unpredictable moodswings, delusions and hallucinations, and difficulties in communication. In the past, Jeri had not taken her medication asprescribed and argued with her doctors on the necessity ofcertain medications. She was aware of her diagnoses and was nowdoing better on new medication and admitted to her need to takeit for the rest of her life.

Jeri is not self-sufficient. Although she lives in herown apartment, she eats most her meals with her parents at theirhome. She has a protective payee for her Social Security disability checks, which are her sole means of support.

If Jeri were to have a psychotic episode, she wouldpose a risk to a child in her care. Further, her ability toprotect her children from harm is limited due to her failure orinability to acknowledge or identify potential harm. Both Dr.Traver and Dr. Damera indicated her prognosis for improvement ispoor.

At visits with M.F., testimony indicated Jeri wouldreveal her frustrations by relying on her mother's assistance,elevating her voice level, making joking threats, needing to takesmoking breaks, and at times failing to participate fully in thevisits. She successfully completed parenting classes but did notimplement her knowledge at the visits. Testing revealed limitedknowledge of parenting issues, but Jeri did show improvements inthe area of parenting skills and her knowledge of sexual offenders through the services offered her by DCFS.

At visits with M.F., Jeri could feed and diaper thechild but sometimes needed direction or prompting from thecaseworker or her mother, who was usually present. Jeri did notalways take kindly to the suggestions and indicated her displeasure by throwing a kitchen rag on the table. At times Jerineeded to smoke a cigarette to relieve her tensions and would gooutside to do so as she was instructed by DCFS not to smoke inM.F.'s presence.

The totality of the evidence indicated Jeri is notcapable of assuming a parenting role without supervision. Herschizophrenia makes her unable to fully recognize the needs of achild and respond appropriately, which could endanger a childplaced in her care.

Jeri argues no evidence showed she had ever put T.R. atrisk or that she could not carry out the responsibilities of anoncustodial parent. The fact Jeri had supervised visitationwith T.R. and was not asking for anything more does not prevent afinding of unfitness to parent T.R. but is a factor for consideration under the best-interests portion of the termination proceeding.

Clear and convincing evidence suggested Jeri was unfitdue to a mental disability which prevents her from parenting herchildren and this disability will continue into the indefinitefuture and beyond a reasonable period of time.

B. Best Interests of Minor Respondents

Once parental unfitness has been found in a proceedingto terminate parental rights, the parent's rights must yield tothe best interests of the child. A.P., 277 Ill. App. 3d at 598,660 N.E.2d at 1011. Although a parent may be unfit to havecustody of her children, it does not follow automatically theparent cannot remain the children's legal parent with the attendant rights and privileges. In re B.C., 247 Ill. App. 3d 803,806, 617 N.E.2d 1207, 1210 (1993). After a finding of unfitness,the trial court must still give full and serious consideration tothe child's best interests. A child's best interests may be bestserved by maintaining an already existing relationship with aparent. A trial court's finding termination is in the children'sbest interests will not be reversed unless it is contrary to themanifest weight of the evidence. In re S.H., 284 Ill. App. 3d392, 401, 672 N.E.2d 403, 409 (1996).

At the conclusion of the best-interests evidence inthis case, the trial court stated, "at this stage of the proceedings no one has the burden of proof." In our view, this is anincorrect statement of applicable law, and it has the potentialfor confusion.

In Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599,102 S. Ct. 1388 (1982), the United States Supreme Court stated"[b]efore a State may sever completely and irrevocably the rightsof parents in their natural child, due process requires that theState support its allegations by at least clear and convincingevidence." Santosky, 455 U.S. at 747-48, 71 L. Ed. 2d at 603,102 S. Ct. at 1391-92. Our supreme court adopted this analysisin In re Enis, 121 Ill. 2d 124, 133-34, 520 N.E.2d 362, 367(1988).

Although both Santosky and Enis were dealing with theapplicable standard of proof necessary in the context of anunfitness finding, the reasoning also applies to Jeri's argumentthe State must bear the burden of proof that termination is inthe best interests of T.R. and M.F. The State filed a petitionto terminate Jeri's parental rights and, as we have noted, thereare two parts to this determination. First, it must be shownJeri is an unfit person; and second, it must be shown to be inthe best interests of T.R. and M.F., before her rights be terminated. The State is the petitioner and the State is required toprove both requirements of its petition to terminate Jeri'sparental rights. Indeed, we have previously so stated in In reS.M., 314 Ill. App. 3d 682, 732 N.E.2d 140 (2000): "Terminationis only allowed after a separate best[-]interests hearing [citation], after which the trial court concludes the State has provedtermination of parental rights is, in fact, in the minor's bestinterests." S.M., 314 Ill. App. 3d at 685, 732 N.E.2d at 143.

1. As To M.F.

In this case, the trial court's termination of Jeri'sparental rights to M.F. was not against the manifest weight ofthe evidence. M.F. was only nine months old when he was takeninto protective custody and ultimately placed in foster care. The bond between Jeri and M.F. was not yet great. While M.F.'sfoster parents are not potential adoptive parents, informationregarding M.F. was placed in an adoption information center tofind prospective adoptive families once the permanency goal waschanged to termination. Ashley Evans' parental rights to M.F.were also terminated but he is not a party to this appeal. Thepool of potential adoptive families is six, including Jamie andDarryl Leftwhich, Jeri's sister and her husband. Thus, becausethe evidence indicates it is highly unlikely Jeri will ever beable to parent M.F. without a great deal of help and supervision,and adoptive placement is available to M.F., it is clearly in hisbest interests Jeri's parental rights be terminated.

2. As To T.R.

As for, T.R., however, we find the evidence does notshow a benefit to her in the termination of Jeri's parentalrights. Jeri has not had custody of T.R. since her divorce in1993. Instead, she has exercised visitation which, under thejudgment of dissolution, occurred every other weekend for fourhours on Saturday and four hours on Sunday. The visits occurredin Jeri's home. They were initially unsupervised but becamesupervised in 1996 after the indicated reports against Jeri'sfather, Jim Ferrell. Jeri and T.R. had an ongoing relationshipalready developed when this case began.

Nathan Bassett, a caseworker for DCFS, testified inJuly 2000 at the unfitness hearing it was the position of DCFS itwas in T.R.'s best interests to terminate Jeri's parental rightsbecause, if something would happen to David, T.R.'s father, andJeri's rights were not terminated, "it could possibly causeproblems." He stated T.R. had said she did not really likevisiting with Jeri. Bassett had only supervised one visit atthat point and noted Jeri and T.R. did not seem terribly close. However, visits had been reduced to once per month about sixmonths earlier when the permanency goal had changed to termination and had not actually occurred at all most months due tovarious difficulties in scheduling, none of which had been causedby Jeri.

When Bassett testified at the best-interests hearing inNovember 2000, he was called as a witness by David. He stated hehad monitored nine visits at that time (some of which were make-ups for those missed in the first part of 2000). At that time,T.R. stated she "kind of" liked the visits with Jeri. Bassetttestified to the mother and daughter playing games, visiting thepark, and talking about school. At times Jeri gave T.R. supperand at times T.R. had eaten prior to the visits. Bassett admitted he was predisposed to the termination of Jeri's parentalrights. He criticized Jeri for smoking 3 to 12 cigarettes pervisit, a visit where Jeri interrupted T.R.'s homework withquestions, and one visit where T.R. was ready to leave early whenDavid arrived early to pick her up. However, as was brought outin cross-examination, T.R. was used to the visits with her motheras they had been going on for several years before DCFS becameinvolved in this case. It was only natural she would be willingto leave her mother at the end of the visits without expressing regret because she knew she would see her again. This situationwas not like those where children were new to foster care andvisiting with parents and they were not sure when they would seethem again. Bassett also claimed T.R. was afraid Jeri might takeher and leave her someplace or she might take her to see hergrandfather, Jim Ferrell.

David and his mother testified they thought it would bebest to terminate Jeri's parental rights and stated T.R. statedshe did not really like visiting Jeri.

T.R. was interviewed by the trial court in camera. Attorneys for all parties were present. At that interview, T.R.stated she liked visiting with Jeri and did not want to see thevisits terminated.

The State characterized T.R. and Jeri's relationship aslacking depth. That is a problem which can occur with anychild's relationship with a noncustodial parent after a divorce. The evidence also indicated Jeri loved T.R. and had worked atfostering their relationship despite her mental disability andthrough persevering in her visitation despite the obvious animusagainst the visits expressed by her former husband, his mother,and the DCFS caseworker.

The evidence indicated T.R. and Jeri had an ongoingrelationship which existed from the time of the divorce in 1993. There was no showing of a benefit to T.R. by the termination ofJeri's parental rights. T.R. would not gain any more stabilityin her life because there was no prospect of adoption and shealready lived with David, who had full custody and guardianship. In fact, the evidence indicated David himself had added instability to T.R.'s life by living with four different women over theeight years since the divorce. One relationship resulted in achild born before David and her mother were married and laterdivorced.

Jeri's visits with T.R. were supervised and no one wassuggesting they be otherwise. Therefore, there was no risk ofharm to T.R. despite Jeri's lack of solo parenting skills. As no benefits were shown to be gained by termination, the only resultwas to deprive T.R. of an already established relationship withher mother. Visitation as it previously existed, four hours onalternate Saturdays and Sundays, benefitted T.R. in preserving arelationship with her mother, a noncustodial parent who loved herchild and was only prevented from a more hands-on relationship byher mental disability. The evidence did not establish that itwould be in T.R.'s best interests to terminate respondent'sparental rights.

C. Ineffective Assistance Claim

Jeri's final contention on appeal is she receivedineffective assistance of counsel. She bases her argument on thefact counsel presented no evidence at the conclusion of theState's evidence on fitness (other than a stipulation she did notstab her father with a knife) and presented no evidence on theissue of best interests of her children.

In a termination of parental rights proceeding, parentsare entitled to effective assistance of counsel. In re R.G., 165Ill. App. 3d 112, 127, 518 N.E.2d 691, 700 (1988). The standardsfor determining ineffective assistance of counsel were set forthin Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104S. Ct. 2052 (1984). A respondent must show her counsel's representation fell below an objective standard of reasonableness andthere is a reasonable probability the result would have beendifferent had there not been ineffective assistance of counsel. To demonstrate prejudice, respondent must show a reasonableprobability that, but for counsel's unprofessional error, theresult of the proceeding would have been different. Strickland,466 U.S. at 687-95, 80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-69. "A reasonable probability is a probability sufficient toundermine confidence in the outcome." In re A.R., 295 Ill. App.3d 527, 531, 693 N.E.2d 869, 873 (1998).

The fact counsel did not present any witnesses is notin itself indicative of ineffective assistance. The issue at thefitness portion of the hearing was very narrow--Jeri's mentalstate. She herself admitted the impairment and all medicalevidence supported it. Dr. Traver was subjected to rigorouscross-examination by Jeri's counsel as well as other counsel. Dr. Traver's testimony agreed with Jeri's own medical records,prepared by Dr. Damera. Both doctors agreed to Jeri's mentalcondition and that her prognosis for progress, let alone recovery, was poor. Their opinion was Jeri's inability to dischargeparental responsibility would extend beyond a reasonable periodof time. Such a prognosis need not be absolutely conclusive tosatisfy the requirement of the statute the impairment will extendbeyond a reasonable period of time. See J.A.S., 255 Ill. App. 3dat 824, 627 N.E.2d at 772.

Counsel's entry into the stipulation was actually aneffective move, as it prevented further testimony into an unfortunate incident where Jeri apparently attacked her father with aknife at a time when her medications were not correct. Moredetails of the incident could have hurt Jeri's cause. Counselalso presented lengthy closing argument.

As for the best-interests portion of the proceeding,counsel again engaged in cross-examination of all witnesses, madeobjections and presented closing argument. The lack of presentation of evidence can be attributed to trial strategy and anyerror in such strategy alone does not establish ineffectiverepresentation. R.G., 165 Ill. App. 3d at 128, 518 N.E.2d at701. No prejudice to Jeri can be shown by counsel's failure toproduce evidence.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court'sfinding of unfitness and its finding it was in M.F.'s bestinterests Jeri's parental rights be terminated. We reverse thetrial court's finding it was in T.R.'s best interests to terminate Jeri's parental rights and remand so that the visitationwhich previously existed prior to the filing of the petition toterminate may be reinstated and such visitation be resumed.

Affirmed in part and reversed in part; cause remandedwith directions.

COOK and TURNER, JJ., concur.