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25 August 2000

___________________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In October 1990, the trial court adjudicated R.E.(hereinafter R.E. I) and R.E. (hereinafter R.E. II) (twins bornin July 1986), the minor children of respondent, Candie Nihiser,neglected pursuant to section 2-3 of the Juvenile Court Act of1987 (Ill. Rev. Stat. 1989, ch. 37, par. 802-3 (now 705 ILCS405/2-3 (West 1998))), and placed them in the custody of theDepartment of Children and Family Services (DCFS).

In September 1998, the State filed a petition toterminate respondent's parental rights regarding R.E. I and R.E.II, alleging that respondent was an unfit parent because she (1)had an habitual addiction to drugs (750 ILCS 50/1(D)(k) (West1998)), (2) failed to make reasonable efforts to correct theconditions that were the basis for the removal of the children,and (3) failed to make reasonable progress toward their return toher within nine months of the adjudication of neglect (750 ILCS50/1(D)(m) (West 1998)). In September 1999, the State withdrewthe ground alleged in its first count and the trial court foundrespondent unfit on the second and third grounds alleged. InOctober 1999, the court held a hearing on the children's bestinterests, and in January 2000, the court entered an orderterminating respondent's parental rights as to R.E. I and R.E.II.

Respondent appeals, arguing that the trial court'sfindings regarding parental unfitness and the children's bestinterests were against the manifest weight of the evidence. Wereverse.

In its August 1990 petition for adjudication ofwardship, the State alleged that R.E. I and R.E. II wereneglected because respondent did not provide the care necessaryfor their well-being, including adequate shelter. At the August1990 shelter-care hearing, the trial court found probable causeto believe R.E. I and R.E. II were neglected and ordered thatthey be placed in a shelter-care facility. In October 1990, thetrial court entered a dispositional order, which adjudicated R.E.I and R.E. II (then each 4 1/2 years old) neglected, made themwards of the court, and appointed DCFS as their guardian with thepower to place them. DCFS then placed them in the first of thefoster homes they were to live in over the next 9 1/2 years.

In September 1998, the State filed the instant petitionto terminate respondent's parental rights. Another year passedbefore the State's petition came to a hearing. At the September1999 hearing on the State's petition, Carla Gray, a childprotective investigator with DCFS, testified to observations shemade while she was respondent's caseworker between February 1996and October 1997. Pam Cremeans, a child welfare specialist withDCFS, testified that she took over the case in December 1997 andworked with respondent and the twins until February 1999. NancyJorgesen, a child welfare specialist with the Baby Fold,testified about respondent's visits with R.E. I. James Leeds, acaseworker for Catholic Social Services, testified that he hadbeen R.E. II's caseworker since 1998 and described hisexperiences with R.E. II and respondent.

Respondent testified that during the early 1990s shedid not understand what DCFS was asking of her. The bulk of hertestimony related to her current understanding of the twins'medical, emotional, and behavioral problems, and her attendanceat visitations and counseling.

At the close of the hearing, the trial court found thatthe State had proved by clear and convincing evidence thatrespondent (1) failed to make reasonable efforts to correct theconditions that were the basis for the removal of the childrenand (2) failed to make reasonable progress toward the return ofthe children within nine months after the adjudication ofneglect. After a dispositional hearing in October 1999, thecourt found that it was in the children's best interests thatrespondent's parental rights be terminated. In January 2000,when the twins were 13 1/2 years old, the court entered an orderterminating respondent's parental rights as to them. This appealfollowed.

Section 1(D)(m) of the Adoption Act (Act) provides, inrelevant part, as follows:

"The grounds of unfitness are any *** of thefollowing:

(m) Failure by a parent to makereasonable efforts to correct the conditionsthat were the basis for the removal of thechild from the parent, or to make reasonableprogress toward the return of the child tothe parent within 9 months after anadjudication of neglected *** minor ***." 750 ILCS 50/1(D)(m) (West 1998).

In In re D.L., 191 Ill. 2d 1, 10, 727 N.E.2d 990, 994(2000), the Supreme Court of Illinois held that, pursuant tosection 1(D)(m) of the Act, the only matters that are relevant toa reasonable progress or reasonable efforts analysis are thosethat occurred within the applicable period, in this case ninemonths. In In re D.S., 313 Ill. App. 3d 1020, 1027-28, 730N.E.2d 637, 643 (2000), this court held that the relevant nine-month period commences with the trial court's filing of thedispositional order completing the adjudication of neglect.

The relevant nine-month period in this case began inOctober 1990. However, at the hearing on the State's petition toterminate respondent's parental rights, the State presentedvirtually no evidence related to events that occurred during thatnine-month period. Because (1) the trial court obviously basedits decision on evidence pertaining to matters outside therelevant time period, and (2) the record contains essentially noprobative evidence regarding the relevant time period, we reversein accordance with the supreme court's holding in D.L.

We have searched the record for a satisfactoryexplanation for the State's seven-year delay in seekingtermination of respondent's parental rights. We have found none. In searching through this record, however, we discovered that (1)R.E. I and R.E. II were removed from respondent's care when theywere four years old; (2) their emotional and behavioral problemswere immediately apparent to DCFS, and DCFS had difficultykeeping them in foster homes; (3) they were diagnosed with fetalalcohol syndrome and fetal alcohol effect in 1992; (4) one of theboys has also been diagnosed with attention deficit hyperactivitydisorder; (5) by the time of the hearing on the terminationpetition, the boys (a) were in their early teens, (b) exhibitedaggressive behavior, and (c) were described as agitated, active,and full of anxiety; and (6) DCFS had no adoptive prospects forthem. The record before us suggests that the State's failure toseek termination of respondent's parental rights while these boyswere young and desperately in need of permanent placement isbeyond comprehension. The delay in pursuing permanent homes forthese boys has greatly decreased the chance that either of themwill ever experience a meaningful and stable parental bond.

The special concurrence states that there is a lot wedo not know about this case. That is, of course, true as it isin all of the cases that come before us on appeal, consistingonly of the "cold record"--that is, transcripts of pertinenthearings and documents that comprise the common-law record. Atthe same time, there is a lot we do know about this case, as ourrecitation of the record shows. We acknowledge the possibilitythat, despite an absence from the record, circumstances couldexist that would mute some of the concerns we have expressed inthis opinion. Nonetheless, given the apparent circumstances ofthis case, we continue to believe that these concerns should beexpressed.

Regarding the twins' adoptability, they certainly areno more adoptable as teenagers than they were when they were fiveor six years old. Yet the State has decided to seek terminationof respondent's parental rights at this late date, despite theabsence of any prospective adoptive parents on the horizon. Ifthe absence of prospective adoptive parents were responsible forthe State's failure to timely seek to terminate respondent'sparental rights, then what has changed to explain the State'staking action now?

Every child deserves a stable, loving, secure, andpermanent home. When children in this state are abused orneglected, DCFS, the State's Attorneys, and the courts have theauthority--and the responsibility--to intervene to protect thosechildren. In this case, all of the players in the child welfaresystem, who are entrusted by the citizens of Illinois to protectour children, failed to protect these two children. On behalf ofthe State of Illinois, we apologize to them (knowing full wellthat our apology is small consolation indeed).

By referring to the State's failure to file a petitionto terminate respondent's parental rights in a timely manner, wedo not mean to imply that the State's Attorney bears moreresponsibility for this unconscionable result than DCFS or thetrial court. DCFS could have, and should have, demanded that theState's Attorney take action in this case as soon as it becameapparent that the twins were troubled young boys and respondentwas failing to comply with DCFS service plans.

Likewise, the trial court is not off the hook. See thespecial concurrence in In re A.T., 197 Ill. App. 3d 821, 835-36,555 N.E.2d 402, 412 (1990) (Steigmann, J., specially concurring):

"Trial courts must bear in mind that theformal order entered at the dispositionalhearing (when the court finds the bestinterest of an abused or neglected child sorequires) is to adjudicate the child a wardof the court. [Citation.] The statute doesnot say a 'ward of DCFS' or a 'ward of theState's Attorney.' Section 2-28 of the Act[citation] provides the mechanism forperiodic review by the court of the status ofits wards. Part of the court's review alwaysshould be an inquiry as to whether its wardshave permanent homes, and, if not, why not." (Emphasis in original.)

The trial court in this case failed to look after two of itswards. (We add that our reference to the "trial court" in thiscase is generic and not intended to reflect the particular judgewho happened to preside over the most recent hearings regardingthe twins.)

We acknowledge the legislature's recognition that it isin the best interests of children and the State to promote thereunification of parents and their children whenever possible. However, the legislature has also recognized the problems thatlingering foster care present, and in 1997 the legislatureattempted to address that concern by shortening the relevant timeperiod under section 1(D)(m) of the Act from 12 to 9 months. Pub. Act 90-28, art. 10,