Opinion
No. 2-13-0016
05-01-2013
In re RAMONE B., JR., A Minor (The People of the State of Illinois, Petitioner-Appellee v. Delilah T., Respondent, and Ramone B., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of
Winnebago County.
No. 12-JA-54
Honorable
Mary Linn Green,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices McLaren and Schostok concurred in the judgment.
ORDER
¶ 1 Held:The trial court's orders—adjudicating the minor neglected and making him a ward of the court—were affirmed where they were not against the manifest weight of the evidence. ¶ 2 Respondent-father, Ramone B., appeals from orders of the trial court adjudicating his son, Ramone B., Jr. (Ramone), a neglected minor and making him a ward of the court under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2010)). For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 On February 16, 2012, the State filed a two-count petition against respondent-parents alleging that Ramone (born February 13, 2012) was a neglected minor based on an environment injurious to his welfare pursuant to section 2-3(1)(b) of the Act (705 ILCS 405/2-3(1)(b) (West 2010)). Count I alleged that respondent-parents engaged in domestic violence, thereby placing Ramone at risk of harm. Count II alleged that Ramone's siblings had been removed from respondent-mother's care and that she failed to cure the conditions which caused their removal, thereby placing Ramone at risk of harm. Respondent-parents waived their right to a shelter care hearing. The trial court accepted the State's tender of the original statement of facts prepared by the Department of Children and Family Services (DCFS). The court entered an order finding probable cause to believe that Ramone was neglected and transferring temporary custody and guardianship to DCFS, with discretion to place with a responsible relative or in traditional foster care. ¶ 5 The trial court conducted an adjudicatory hearing on September 19 and October 4, 2012. The court admitted the State's exhibit 1—a packet of DCFS records including reports of indicated findings against respondent-mother regarding Ramone's five older siblings. The State presented the testimony of Alyshia Kinas, the DCFS investigator who took protective custody of Ramone the day after his birth; Officer Benjamin Johnson, of the Rockford police department, who responded to a domestic violence call from respondent-mother on March 28, 2012; Robert Atchison, a supervisor at Children's Home and Aid (CHASI) (the child welfare agency working with DCFS); and Lorinda Batchelor (nka Lorinda Green), the CHASI caseworker for both Ramone and respondent-mother's second-youngest child, born in 2011. ¶ 6 The State's evidence at the adjudicatory hearing established the following. Respondent-mother was developmentally delayed. Prior to Ramone's birth, respondent-mother had five children, born in 2001, 2002, 2005, 2006, and 2011. On February 14, 2012, the day after Ramone was born, DCFS took protective custody of him based on respondent-mother's history with her five other children. ¶ 7 In 2003, respondent-mother was indicated by DCFS for medical neglect for failure to obtain medical care when her oldest child suffered facial burns while in a family friend's care. In 2006, respondent-mother was indicated by DCFS for an injurious environment based on engaging in domestic violence and sexual acts in front of her four children at the time, and for inadequately supervising them. The domestic violence (including hitting, hair-pulling, and choking) and sexual acts occurred regularly between respondent-mother and her paramour in the children's presence. Regarding inadequate supervision, both respondent-mother and her paramour told DCFS that they had left the children alone on numerous occasions, leaving her four-year-old and five-year-old to supervise her one-year-old and her infant, while they went shopping for 45 minutes at a time. In December 2006, respondent-mother left her one-year-old outside in the snow with only her four-year-old and five-year-old, for an undetermined amount of time, and the one-year-old "fell asleep." The unresponsive child was hospitalized with a core temperature of 90 degrees and diagnosed with hypothermia. The attending physician estimated that the child had been left outside for one to two hours. DCFS took protective custody of all four children. In January 2011, DCFS took protective custody of respondent-mother's newborn fifth child, based on the previous neglect of the other children. None of Ramone's five siblings were returned to respondent-mother. Guardianship was finalized for three of the four older children in May 2011. Respondent-mother's second-youngest child was still under DCFS guardianship with a permanency goal of substitute care pending termination of parental rights. ¶ 8 The State's evidence also showed that, on February 13, 2012, respondent-mother told a nurse that respondent had pulled a knife on her just before she went to the hospital to give birth to Ramone. On March 28, 2012, a Rockford police officer responded to a domestic incident when respondent-mother reported that respondent had tried to push her out of a moving vehicle and then punched her in the face multiple times. In April or May 2012, respondent-mother told her CHASI caseworker that respondent had hit her when she got out of the shower that morning or the day before. ¶ 9 The CHASI caseworker testified for the State that respondent-mother's service plan included parenting classes, services through the area pregnancy center, a substance abuse assessment, drug drops, domestic violence counseling, and individual counseling. Respondent-mother complied with only the drug drops, which were all negative, and some classes through the pregnancy center, which were not sufficient to fulfill the separate parenting class requirement. The caseworker expressed her opinion that, if returned to respondent-mother, Ramone would be at a "very high" risk of neglect based on respondent-mother's previous involvement with DCFS and her inability to care for herself and a child, especially given her continued involvement in a violent relationship. ¶ 10 On October 5, 2012, the court found that the State had proved both counts of the petition. The court entered an order adjudicating Ramone a neglected minor and continuing its prior orders pending a dispositional hearing. ¶ 11 The court held the dispositional hearing on December 12, 2012. The CHASI caseworker testified that, in mid-November, Ramone had been placed with a paternal aunt in Iowa. Respondent-mother had made little progress on her service plan and had few visits with Ramone. ¶ 12 Regarding respondent, the caseworker testified that his service plan included random drug drops, substance abuse treatment, a psychological evaluation, individual counseling, and domestic violence counseling. Of the approximately four drug drops requested of him, respondent provided only one, in the summer of 2012, which was positive for marijuana. Respondent had not completed a substance abuse assessment, without which CHASI would not refer him for the remaining required services. With respect to respondent's visitation with Ramone, the caseworker testified that, after visiting Ramone with respondent-mother several times after his birth through March 2012, respondent did not see Ramone for over six months. Respondent's visitation had to be supervised by CHASI, which gave permission for respondent to visit with Ramone for Thanksgiving at the foster parent's home. The caseworker testified that respondent had an unsupervised visit with Ramone at the foster parent's home in October. Respondent had not been in contact with the caseworker for a few months and refused her phone calls. ¶ 13 The caseworker testified that she would not recommend placing Ramone with respondent because of safety concerns due to his marijuana use and history of domestic violence with respondent-mother. She explained that, although both respondent-mother and respondent denied being in a relationship together, credible family members had informed her that they were still together and planned on getting married. ¶ 14 Respondent testified in his own behalf. He explained that he thought he was a good parent because he helped his grandmother raise foster children. He felt he could steer Ramone in the right direction. Respondent testified that the CHASI caseworker disrespected him by telling him he was crazy and talking to him like a child. Respondent explained that he did not think he had to complete services since he was not the cause of Ramone's removal but now understood that he had to comply with the service plan. When asked if he planned to do so, respondent answered, "If I could. And I work from 6 a.m. to 6 p.m." When asked if he was still planning to engage in the services anyway, respondent replied, "Yes. If we could make it—if we could make it a point in time, yes, I would. Yes, I would do that." ¶ 15 On cross-examination, respondent agreed that he had gone over six months without visiting Ramone and that he had not completed any of his service plan requirements (except for one positive drug drop and one just before coming to court that day, the results of which were not yet available). Respondent explained that, in addition to being disrespected by the caseworker, he had watched respondent-mother try unsuccessfully to get her children back for years, so he "figured what's the point?" Respondent acknowledged his unauthorized visit in October but said that he was not told until Thanksgiving that his visits had to be supervised by the agency. Respondent said he refused to attend agency-supervised visits, elaborating, "I just don't feel like I'm a dog. I feel like I'm a human being. And I don't feel like anybody should *** not do anything wrong to have their first son born [sic] and have to sit in a room with a bunch of strangers." ¶ 16 The trial court found that respondent and respondent-mother were unfit and unable (though not unwilling) to care appropriately for Ramone based on "where the parents [we]re in services and the status of visitation to th[at] point." The court entered an order making Ramone a ward of the court and granting guardianship to DCFS, with discretion to place with a responsible relative or in traditional foster care. Respondent timely appeals.
Respondent-mother, Delilah T., is not a party to this appeal. Respondent-father was listed as the putative father on the neglect petition. Following paternity testing, the trial court adjudicated him Ramone's father. We will refer to him as respondent.
Respondent is not the father of any of these children.
Section 3 of the Abused and Neglected Child Reporting Act defines an "indicated report" as a report made if an investigation determines that credible evidence of the alleged abuse or neglect exists. 325 ILCS 5/3 (West 2010); In re R.S., 382 Ill. App. 3d 453, 455, n.1 (2008).
The December 12, 2012, CHASI report, of which the trial court took judicial notice at the dispositional hearing on that date, indicated that Ramone's other older sibling was living with his biological father.
Respondent was not arrested for this incident. Respondent-mother filed a verified emergency petition for order of protection the same day, which the court granted. On April 11, 2012, the court granted respondent-mother's motion to withdraw the petition.
Respondent-mother's involvement there terminated in March 2012, shortly after Ramone's birth.
¶ 17 ANALYSIS
¶ 18 The Act governs the process of deciding whether a minor should be removed from his or her parents and made a ward of the court. In re Arthur H., 212 Ill. 2d 441, 462 (2004). After a minor has been placed in temporary custody (see 705 ILCS 405/2-10 (West 2010)), the court must conduct an adjudicatory hearing to determine if the minor is abused, neglected, or dependent. In re A.P., 2012 IL 113875, ¶ 19 (citing 705 ILCS 405/2-18(1) (West 2010)); Arthur H., 212 Ill. 2d at 462 (citing 705 ILCS 405/2-21 (West 2000)). If the court finds that the minor is abused, neglected, or dependent, it must then conduct a dispositional hearing to determine whether it is consistent with the minor's health, safety, and best interests, and the best interests of the public, to make the minor a ward of the court. A.P., 2012 IL 113875, ¶ 21 (citing 705 ILCS 405/2-21(2) (West 2010)). ¶ 19 Respondent argues that the trial court's finding of neglect was against the manifest weight of the evidence. Neglect is generally defined as the "failure to exercise the care that circumstances 8 justly demand." (Internal quotation marks omitted.) Arthur H., 212 Ill. 2d at 463. Neglect is not limited to a narrow definition but has a fluid meaning, encompassing "wilful as well as unintentional disregard of duty." (Internal quotation marks omitted.) Arthur H., 212 Ill. 2d at 463. Section 2-3(1)(b) of the Act defines a neglected minor to include a minor "whose environment is injurious to his or her welfare." 705 ILCS 405/2-3(1)(b) (West 2010). The term "injurious environment" is an "amorphous concept" that "include[s] the breach of a parent's duty to ensure a safe and nurturing shelter for his or her children." (Internal quotation marks omitted.) Arthur H., 212 Ill. 2d at 463. Child neglect cases are sui generis and must be decided on their unique facts. A.P., 2012 IL 113875, ¶ 17. The State bears the burden of proving neglect by a preponderance of the evidence—meaning that the allegations are more probably true than not. Arthur H., 212 Ill. 2d at 463-64. We will not reverse a trial court's finding of neglect unless it is against the manifest weight of the evidence. Arthur H., 212 Ill. 2d at 464. A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Arthur H., 212 Ill. 2d at 464. ¶ 20 We begin with count II of the petition, which alleged that respondent-mother failed to cure the conditions that caused the removal of her five other children. Count II is based on the theory of anticipatory neglect, which is premised on the concept of an injurious environment (In re T.S-P., 362 Ill. App. 3d 243, 248 (2005)). This theory is used to protect not only children who have been direct victims of neglect or abuse, but also those who have a probability of being neglected or abused because they live with, or may in the future live with, a person found to have neglected or abused another child. Arthur H., 212 Ill. 2d at 468. Section 2-18(3) of the Act provides that "proof of the abuse, neglect or dependency of one minor shall be admissible evidence on the issue of the abuse, neglect or dependency of any other minor for whom the respondent is responsible." 705 ILCS 405/2- 9 18(3) (West 2010); Arthur H., 212 Ill. 2d at 468. Such evidence is not conclusive proof; rather, anticipatory neglect "should be measured not only by the circumstances surrounding the sibling, but also by the care and condition of the child in question." (Internal quotation marks omitted.) Arthur H., 212 Ill. 2d at 468. However, the court "should not be forced to refrain from acting until another child is injured." T.S-P., 362 Ill. App. 3d at 249. ¶ 21 Here, the record contains DCFS reports regarding respondent-mother's neglect of Ramone's siblings. DCFS entered indicated findings of neglect against respondent-mother for her four oldest children, beginning in 2003. The DCFS reports established that in 2006 respondent-mother regularly left her four- and five-year-old children to supervise her toddler and infant while she went shopping or to the liquor store. In December 2006, respondent-mother allowed the two older children to supervise the one-year-old toddler outside in the snow for one to two hours, during which time the toddler lost consciousness and was hospitalized for several days with hypothermia. The reports also demonstrate that the relationship between respondent-mother and her live-in paramour was marked by domestic violence and sexual conduct in the children's presence. Respondent-mother's four oldest children were placed in DCFS custody. Based on this history, DCFS took protective custody of respondent-mother's fifth child at birth in January 2011. All of this evidence established respondent-mother's neglect of Ramone's siblings. ¶ 22 Furthermore, the record contains evidence regarding Ramone. DCFS took protective custody of Ramone the day after his birth in February 2012, based on respondent-mother's history of child neglect and the fact that she had failed to correct the conditions leading to their removal. By the time of Ramone's adjudicatory hearing in September and October 2012, respondent-mother had had several months to begin complying with her service plan to cure the conditions leading to Ramone's 10 removal. Respondent, too, had the same amount of time to demonstrate his willingness and ability to comply with his service plan. Regarding respondent-mother, other than successfully completing drug drops when requested and availing herself of some services offered by the area pregnancy center, respondent-mother had not even begun to comply with the requirements of her service plan. Respondent's efforts were even more dismal, as all he did was one drug drop (which was positive for marijuana), and he had not even visited Ramone since shortly after his birth. Neither parent had been able to progress past supervised visitation. The caseworker testified that Ramone would be at a "very high" risk of neglect if returned to respondent-mother. On this record, the conclusion that Ramone was likely to be subjected to neglect based on an injurious environment was not against the manifest weight of the evidence. Accordingly, the trial court properly adjudicated Ramone a neglected minor. See R.S., 382 Ill. App. 3d at 462 (affirming the trial court's finding of neglect where the respondent had neglected several other children and the injurious environment was ongoing due to the respondent's longstanding mental health issues). ¶ 23 Respondent argues that respondent-mother's "failure to correct conditions relating to her other children does not prove a substantial risk of harm" to Ramone. Respondent asserts that a failure to correct is not itself evidence of neglect or the type of neglect, nor does it show how respondent-mother may have "alleviated some of the conditions which co[u]ld be pertinent to" Ramone. Respondent's argument simply ignores the record. As discussed above, the DCFS reports in evidence contained detailed descriptions of the neglect of Ramone's siblings. The evidence also showed that any efforts that respondent-mother may have made toward complying with the service plans for Ramone's siblings were not sufficient to warrant the return of her children, including the second-youngest child, born just 13 months before Ramone. Moreover, respondent-mother's lack 11 of compliance with the service plan entered in Ramone's case was undisputed. ¶ 24 Given our holding that the trial court's finding of neglect under count II was not against the manifest weight of the evidence, we need not address respondent's arguments regarding count I of the petition. See In re Faith B., 216 Ill. 2d 1, 14 (2005) ("Only a single ground for neglect need be proven, and thus when the circuit court has found a minor neglected on several grounds, we may affirm if any of the circuit court's bases of neglect may be upheld."). ¶ 25 Respondent next argues that the trial court erred in entering the dispositional order making Ramone a ward of the court. "At the dispositional hearing, the court shall determine whether it is in the best interests of the minor and the public that he be made a ward of the court." 705 ILCS 405/2-22(1) (West 2010); In re J.C., 396 Ill. App. 3d 1050, 1059 (2009). If the court determines that the minor should be made a ward of the court, the court then must decide the "proper disposition best serving the health, safety and interests of the minor and the public." 705 ILCS 405/2-22(1) (West 2010); J.C., 396 Ill. App. 3d at 1059. Section 2-23 of the Act provides for various kinds of dispositional orders, including inter alia, placement with a parent (if that parent's acts or omissions were not the basis of the neglect finding), or with DCFS for care and service. 705 ILCS 405/2-23, 2-27 (West 2010). The court may commit a minor to DCFS for care and services if the court determines that the parents "are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor *** and that the health, safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his or her parents." 705 ILCS 405/2-27(1) (West 2010); In re Kamesha J., 364 Ill. App. 3d 785, 795 (2006). "The standard of proof in a trial court's section 2-27 finding of unfitness that does not result in a complete termination of all parental rights is a preponderance of the evidence." In re April C., 326 12 Ill. App. 3d 245, 257 (2001). We will reverse the trial court's determination only if its factual findings are against the manifest weight of the evidence or if the court abused its discretion by selecting an inappropriate dispositional order. Kamesha J., 364 Ill. App. 3d at 795. ¶ 26 In the present case, the trial court found that respondent was unfit and unable to care appropriately for Ramone in light of respondent's lack of progress toward compliance with his service plan and his minimal visitation with Ramone. Respondent admitted that he had not complied with the service plan and that he refused to attend agency-supervised visitation. Respondent chose to wait over six months—until the agency approved a foster-parent-supervised holiday visit—to see his son. Notwithstanding respondent's purported reasons for his actions, or inactions, the evidence of respondent's noncompliance was undisputed. Accordingly, the court's finding that respondent was unfit and unable to care for Ramone was not against the manifest weight of the evidence. ¶ 27 Respondent contends that he was fit and able to care for Ramone and asserts that he had no opportunity "to embrace his fatherhood and care for his child." Respondent essentially disagrees with the law. As discussed above, respondent waived his right to a shelter care hearing, and Ramone was subsequently, and properly, adjudicated a neglected minor. Ramone's status resulted in his being placed with DCFS and a service plan being implemented. See 705 ILCS 405/2-10.1 (West 2010) ("Whenever a minor is placed in shelter care with the Department ****, the Department *** shall prepare and file with the court *** a case plan ***."). At that point, the way for respondent to embrace his fatherhood was by complying with his service plan requirements and attending visits with his child. See 705 ILCS 405/2-21(1) (West 2010) (directing that, if the court finds that a minor 13 has been abused, neglected, or dependent, it "shall admonish the parents that they must cooperate with [DCFS], comply with the terms of the service plan, and correct the conditions that require the child to be in care, or risk termination of parental rights"). Thus, under the Act, respondent's undisputed failure to comply with his service plan was evidence of his unfitness and inability to care for Ramone. See Kamesha J., 364 Ill. App. 3d at 795-96 (affirming the trial court's dispositional order finding the respondent unable to care for her children where the respondent was developmentally delayed, had not progressed to unsupervised visitation, and had completed some, but not all, of her service plan requirements). Notwithstanding respondent's argument to the contrary, requiring him to comply with his service plan did not "impermissibly shift[] the burden of proof" to respondent. ¶ 28 To the extent that respondent argues that the trial court abused its discretion in placing Ramone with DCFS instead of with respondent, we disagree. The trial court's finding that respondent was unfit and unable to care for Ramone was not against the manifest weight of the evidence. Moreover, the evidence also showed that the CHASI caseworker had safety concerns about Ramone being placed with respondent (due to respondent's use of marijuana and his history of domestic violence), and respondent never even progressed to unsupervised visitation. Accordingly, the court did not abuse its discretion by entering the dispositional order placing Ramone with DCFS instead of with respondent. ¶ 29 Based on the foregoing, we affirm the judgment of the circuit court of Winnebago County. ¶ 30 Affirmed.