In re Davonte L.

SIXTH DIVISION
August 7, 1998

No. 1-97-2432 and 1-97-3323 (consolidated)

In re DAVONTE L., a Minor )
) Appeal from the
Respondent-Appellant, ) Circuit Court of
) Cook County,
(The People of the State of Illinois, ) Child Protection
) Division
Petitioner-Appellant, )
) No. 92 J 17110
v. )
) Honorable
Tawanda R., ) Marsha D. Hayes,
) Judge Presiding.
Respondent-Appellee). )

JUSTICE QUINN delivered the opinion of the court:
The minor respondent-appellant, Davonte L. (Davonte),
through the office of the public guardian, appeals from a circuit
court order dismissing the State's petition for the appointment
of a guardian with the right to consent to Davonte's adoption.
For the following reasons, we find that the decision of the trial
court was against the manifest weight of the evidence, and we
reverse.
On September 15, 1992, the Department of Children and Family
Services (DCFS) filed a petition for adjudication of wardship on
behalf of Davonte, alleging that he was neglected because he had
been exposed to an injurious environment and was born testing
positive for cocaine.
On February 9, 1993, the juvenile court found that Davonte
was neglected due to exposure to an injurious environment. On
March 23, 1993, Davonte was adjudicated a ward of the court, and
DCFS was appointed as Davonte's guardian and Davonte was placed
in foster care.
On March 16, 1995, the State filed a supplemental petition
for appointment of a guardian with the right to consent to
Davonte's adoption. The supplemental petition to terminate
parental rights alleged the following grounds of parental
unfitness: (1) failure to maintain a reasonable degree of
interest, concern, or responsibility as to Davonte's welfare (750
ILCS 50/1(D)(b) (West 1994)); (2) desertion of Davonte for more
than three months before the commencement of proceedings for the
termination of parental rights (750 ILCS 50/1(D)(c) (West 1994));
(3) that the parents were habitual drunkards or addicted to drugs
for at least one year immediately prior to the commencement of
the unfitness proceeding (750 ILCS 50/1(D)(k) (West 1994)); (4)
that the parents failed to make reasonable efforts to correct the
conditions that were the basis of Davonte's removal from their
custody within 12 months after the adjudication of neglect and/or
failed to make reasonable progress toward the return of the child
within 12 months after the adjudication of neglect (750 ILCS
50/1(D)(m) (West 1994)); and (5) that the parents evidenced
intent to forego parental rights by their failure to visit
Davonte or communicate with him or DCFS for a 12-month period
(750 ILCS 50/1(D)(n) (West 1994)).
Davonte's father, Kermit L., was defaulted in the case on
April 17, 1995.
The hearing on the petition for appointment of a guardian
with the right to consent to Davonte's adoption took place from
January 2, 1997 to June 10, 1997. At the hearing on the
petition, testimony and evidence were presented from various
caseworkers from DCFS, child specialists, workers in other
private service organizations that were involved with Davonte's
case over the past six years, and respondent-appellee, Tawanda R.
The following facts were adduced at the hearing.
On October 25, 1990, Tawanda gave birth to her first child,
Hakeem. Hakeem tested positive for cocaine. On October 26,
1990, a social worker at the University of Illinois at Chicago
(UIC) Hospital where Tawanda gave birth advised Tawanda that
DCFS had been notified of Hakeem's prenatal drug exposure.
Tawanda admitted that she needed drug treatment. Tawanda was
allowed to take Hakeem home upon being discharged from the
hospital after Tawanda's mother agreed to provide close
supervision and cooperate with the DCFS investigation.
According to a November 21, 1990, DCFS report prepared by
William Blackmon, Tawanda admitted using drugs regularly before
her pregnancy, but only periodically after she discovered she was
pregnant. Tawanda denied that her drug use was a problem.
Tawanda's family, however, stated that her drug use was a problem
and that Tawanda had spent all of her money on drugs, had lost
most of her clothing, and did not care about anyone. Later,
Blackmon was also assigned to Davonte's case. Before Davonte was
born, Blackmon referred Tawanda to a drug treatment program, but
Tawanda did not enroll in one.
Tawanda did not bring Hakeem to scheduled appointments at
the UIC Pediatric Clinic on January 9, 1991, January 16, 1991, or
February 10, 1991. On February 26, 1991, Tawanda brought Hakeem
to the hospital because he had been vomiting. Hakeem was
diagnosed with an acute viral syndrome. The emergency room staff
advised Tawanda to return to the pediatric clinic in two to three
days, but Tawanda again missed scheduled appointments on March 1,
1991, and March 20, 1991. On May 13, 1991, a UIC social worker
called the DCFS hotline because Tawanda missed Hakeem's sixth
consecutive scheduled appointment. At that time, Hakeem was five
months old but had not had any immunizations. On May 30, 1991, a
DCFS investigator called the UIC clinic to notify it that
Hakeem's grandmother had made a report to the DCFS hotline that
Hakeem was not being supervised. The investigator said that
Tawanda was "sarcastic and uncooperative with the investigation."
On June 4, 1991, the UIC Pediatric Clinic sent Tawanda a letter,
asking her to call as soon as possible because Hakeem needed
treatment for anemia. After sending two more letters and
rescheduling three missed appointments, the clinic threatened to
report Tawanda to DCFS for medically neglecting Hakeem. Tawanda
came to the clinic on June 28, 1991.
Tawanda then later violated a protective order by neglecting
Hakeem and failing to provide him with adequate supervision. On
December 7, 1992, Hakeem was placed in foster care.
Tawanda gave birth to Davonte on July 8, 1992, at Mount
Sinai Hospital Medical Center. Toxicology reports showed that
Davonte, like Hakeem, tested positive for cocaine. Davonte also
tested positive for opiates. Tawanda admitted to the attending
physician that she used cocaine during her pregnancy and said
that she last used cocaine three weeks before Davonte was born.
Tawanda told a hospital social worker that she was reported to
DCFS after Hakeem was born and that she attended an outpatient
drug rehabilitation program. The social worker explained the
DCFS investigative procedure to Tawanda and encouraged her to
cooperate.
On September 15, 1992, DCFS filed a petition for
adjudication of wardship on behalf of Davonte, alleging that he
was neglected because he had been exposed to an injurious
environment and was born testing positive for a controlled
substance. That same day, DCFS was appointed as temporary
custodian of Davonte. DCFS initially placed Davonte with his
maternal grandmother. Tawanda had asked that her mother take
care of Hakeem. However, DCFS removed Davonte from his
grandmother's home due to additional medical neglect. Davonte
was placed in a DCFS shelter and then placed in the foster home
of Ida Palmer.
On December 16, 1992, Palmer brought Davonte to La Rabida
Children's Hospital because he had been suffering from diarrhea,
vomiting and dehydration during the six weeks he had been in her
care. During that time, Palmer had taken Davonte to a
pediatrician several times, but his condition persisted. A
Family Care Services case report dated December 18, 1992, noted
that Davonte had symptoms of withdrawal and tremors.
From July 1992 to July 1993, Tawanda did not participate in
any drug treatment program, nor did she maintain contact with
Blackmon. Blackmon tried to contact Tawanda at least once a
month, visiting her house, leaving messages under her door, and
talking to her mother. He also had several discussions with
Tawanda about her drug problem, and she agreed to seek treatment
on several occasions but failed to follow through.
The next time Blackmon saw Tawanda was at Haymarket House in
November 1995, where he gave a speech to the women in treatment
about DCFS. Blackmon recognized Tawanda in the audience.
During December 1992, Tawanda was not regularly visiting
Hakeem or Davonte. Tawanda also was not providing money and food
for Hakeem from her public aid check, as she had promised her
mother she would do. Tawanda did not return Blackmon's messages,
and her whereabouts were unknown.
On February 9, 1993, the juvenile court found that Davonte
was neglected due to lack of care, exposure to an injurious
environment, and due to the fact that he was born exposed to
drugs. At a dispositional hearing held on March 23, 1993,
Davonte was adjudicated a ward of the juvenile court, and DCFS
was appointed as Davonte's guardian. The court found that
Tawanda was unwilling or unable to care for Davonte.
Tawanda did not attend the May 1993 administrative case
review. Her progress from December 1992 to May 1993 was rated
unsatisfactory.
Teresa Craufel, a social worker from Family Care Services, a
foster care agency with which DCFS contracted to provide care for
Davonte and Tawanda, was assigned to Davonte's case from December
1992 to December 1993. Tawanda did not contact Craufel from
January to October 1993. Craufel did not know where Tawanda was
living, so she attempted to contact her through her grandmother,
Eva Sturdivant, in September 1993, when she gave her a card and
phone number to give to Tawanda.
In mid-November 1993, Tawanda called Craufel and asked if
she could visit Davonte before entering a drug rehabilitation
program. Craufel testified that Tawanda seemed "cohesive and put
together" and that she did not think Tawanda was on drugs or
alcohol. Craufel told Tawanda how Davonte was doing and
explained the process for obtaining visitation and regaining
custody. Tawanda asked repeatedly to see Davonte that day or the
following day. Craufel told Tawanda that she would call her at
her mother's house as soon as she scheduled a visit. Ten days
later, Craufel called Tawanda's mother and told her Tawanda had
scheduled a visit with Davonte. However, Tawanda's mother told
Craufel that she had not seen Tawanda in a week. Tawanda did not
go to the scheduled visit, and she did not contact Craufel again.
On November 18, 1993, Tawanda called Vanessa Muse, her DCFS
caseworker at that time, and asked about Davonte. Tawanda told
Muse that she talked frequently with Hakeem. Muse made an
appointment for Tawanda to come to the office so she could enroll
her in a drug treatment program. However, Tawanda did not go to
this scheduled appointment and made no further contact with Muse.
On March 8, 1994, Muse reported to the court that she had not
seen Tawanda or Kermit, Davonte's father, for the past three
months and did not know where they were living.
On March 9, 1994, the juvenile court heard a progress
report. Bridget Joyce, a Family Care Services worker who was
assigned to the case on February 9, 1994, reported to the court
that Tawanda had made no effort to contact Family Care and her
progress in regaining custody of Davonte was unsatisfactory. The
court scheduled Davonte's case for permanency planning review on
March 9, 1995, but the review was rescheduled to June 19, 1995.
On March 25, 1994, Muse spoke with Tawanda at Haymarket
House, where Tawanda had enrolled in a drug treatment program and
was undergoing a five-day in-take assessment. During her initial
assessment on March 28, 1994, Tawanda reported that she had been
incarcerated for six days for child neglect. Tawanda stated that
she used no more than $50 worth of crack cocaine daily. Tawanda
stated the last time she used drugs was March 18, 1994. She
stated that the longest time she was able to stay sober was two
months, around August 1991. Tawanda was diagnosed as suffering
from cocaine and alcohol dependence, and cocaine, alcohol, and
mixed drug abuse. Haymarket House also took a substance use
history and psychosocial assessment of Tawanda on March 30, 1994.
Tawanda reported that she smoked $100 worth of rock (crack)
cocaine daily. Haymarket House records also indicate that
Tawanda stated she had stolen, engaged in prostitution, lied, and
manipulated to support her drug habit. The same day, Tawanda was
sent for a physical examination, but she broke Haymarket House's
rules when she left the program with some other patients to go
buy food at a store. According to Haymarket House rules,
patients could only leave when supervised by staff members.
Tawanda was discharged and given phone numbers to other treatment
facilities. Tawanda had completed only three weeks of the
program.
While Tawanda was enrolled in the program, she did not
request any visits with her children. After her discharge,
Tawanda relapsed to using drugs.
On April 25, 1994, Muse prepared a social investigation
report after interviewing Tawanda. Tawanda had revealed that her
stepfather had molested her for about a year and that her mother
knew of the abuse but did nothing about it. Tawanda's uncles
tried to force her stepfather to leave. Then, Tawanda's
stepfather was found stabbed in the hallway of the building they
lived in. Tawanda met Kermit on the streets in 1988, and they
lived together for six months until Kermit was arrested. Tawanda
was six months pregnant with Hakeem at the time. Kermit was
released from prison a year and a half later, and they resumed
their relationship. Two years later, Tawanda became pregnant
with Davonte. Kermit's arrest history dated back to 1976 and
included a conviction for manslaughter, for which he served three
years, and a conviction for assault, for which he served eight
months. Kermit also had convictions for selling controlled
substances and stealing property.
In a DCFS report dated May 5, 1994, Tawanda's progress was
rated as unsatisfactory because she had not cooperated with DCFS,
she had enrolled in but did not complete a drug treatment
program, and she had not visited Davonte in the previous year.
However, Tawanda had visited Hakeem.
Tawanda visited with Davonte on May 18, 1994. Muse took
Davonte and Hakeem to visit Tawanda in a room Tawanda was renting
from a friend. Tawanda had not seen Davonte since he was a few
months old. Tawanda then moved from this address without
informing Muse of her whereabouts. Davonte's case at DCFS was
transferred from Vanessa Muse to Kristin Boelcke.
From May to November 1994, Tawanda's progress was rated
unsatisfactory by DCFS because she had not been willing to
participate in a treatment program for her drug abuse. During
this time period, Tawanda visited Davonte twice. Boelcke noted
in a May 3, 1994, report that "[v]isits were sporadic -- mother
was often not home when workers brought the children" to her
apartment for visits.
In November 1994, Boelcke took Davonte's case to the
adoption screening committee, so that an assistant State's
Attorney could determine whether to file a petition to terminate
parental rights. Boelcke had searched for both Tawanda and
Kermit to no avail. She sent two letters to Tawanda's last known
address, but both letters were returned. Boelcke spoke with
Tawanda's maternal grandmother, who had custody of Hakeem, Eva
Sturdivant, but Sturdivant did not know Tawanda's whereabouts.
Boelcke obtained an address from Tawanda's cousin, Sharon, and
sent a letter, but Tawanda did not respond. Boelcke checked with
the Illinois Department of Corrections, Cook County jail, the
Chicago Post Office, the agency providing foster care to Hakeem,
and the public aid roles for Tawanda's address. Boelcke
testified that she did not attempt to contact Haymarket House or
other treatment centers, because Tawanda had previously refused
to enter any treatment programs.
On March 16, 1995, the State filed a supplemental petition
for the appointment of a guardian with authority to consent to
Davonte's adoption.
On June 6, 1995, Boelcke, Davonte's DCFS caseworker,
appeared in court for permanency planning review, but Tawanda
failed to appear. Tawanda was found in default, based upon
service by publication, and Davonte's case was scheduled for a
hearing on the petition to terminate parental rights.
The hearing was later continued for status to September 27,
1995. On that date, Tawanda appeared in court on the petition,
and the court vacated the default order that had been entered
against her. The case was continued for a status report. That
same day, Tawanda called Family Care Services to say that she was
interested in regaining custody of Davonte. She stated that she
was appealing the court's decision and was assigned a public
defender. She stated that she was attending an out-patient
treatment clinic and had been clean for 18 days. She also stated
that she believed that she had no chance to get Hakeem and
Davonte back and that was why she "let her problem get so out of
hand." She further stated that she had not seen Davonte in over
a year and that she was very anxious to see him. She said that
if she could not get Davonte back, she wanted her sister,
Patricia R., to adopt him. Tawanda said that she was staying
with her grandmother and left the address but not the telephone
number. She said she would keep in touch with Family Care
Services and said she would do anything asked of her to get her
children back. The social worker at Family Care Services
returned Tawanda's call on October 2, 1995, in order to set up a
visit, and left her a message because she was not home.
On November 20, 1995, Tawanda began drug treatment at
Haymarket House. She informed the staff that she had used
cocaine for 7 years and alcohol for 10 years. Tawanda
immediately developed a pattern of being late to treatment due to
oversleeping and also having unexcused absences. Also, on
December 29, 1995, and on January 4, 1996, Tawanda disrupted her
group meetings.
Karen Agranoff, a foster care worker from Family Care
Services who was assigned to Davonte's case from November 1995 to
May 1996, testified that she first had contact with Tawanda on
November 21, 1995. Tawanda called Agranoff and stated that she
was working to get her life back together and that she was
employed and wanted to regain custody of her children. Agranoff
first met Tawanda in person in early December 1995 at the Family
Care offices. Tawanda did not appear to be using drugs.
On December 20, 1995, Tawanda visited with Davonte, and
Agranoff observed the visit. Tawanda brought Davonte several
Christmas gifts. Davonte commented that he wanted to give
several of the gifts to his mother, referring to his foster
mother, Ida Palmer.
In January 1996, Tawanda's counselor at Haymarket House
noted some progress, when Tawanda reported that she had "deep
struggles" about using drugs and that she was worried about a
pregnancy test. Also, Tawanda spoke of the sexual abuse she
suffered in early childhood. By the end of January 1996, her
counselor was considering referring Tawanda to outside counseling
to deal with these physical and sexual abuse issues. Tawanda was
becoming somewhat more engaged in treatment and her level of
denial was decreasing.
On February 6, 1996, Agranoff met with Tawanda and her
therapist, Diane Flynn, at Haymarket House. Agranoff explained
that a termination petition had been filed. Tawanda told
Agranoff that she wanted to get her children back. Agranoff and
Flynn explained that this would be a very long process, possibly
several years. Tawanda said she understood and wanted to
cooperate.
However, Tawanda had an altercation with a female staff
member at Haymarket House on February 20, 1996, during which she
made threats. Tawanda had been dating the staff member's ex-
boyfriend, Craig, whom she later married. The Haymarket
supervisory staff met on February 22, 1996, to discuss the
incident and decided to discharge Tawanda for outpatient
treatment and following up with DCFS on obtaining additional
outside counseling for Tawanda regarding her past sexual and
physical abuse and for parenting skills. On February 23, 1996,
Tawanda was discharged from Haymarket House to another outpatient
treatment center on the west side of Chicago. Haymarket House
records indicated that Tawanda had a "psychiatric/emotional/
behavioral condition" that was "interfering with addiction
treatment and needs treatment in another setting." At the time
of her discharge, Tawanda had recently begun working, and all of
her drug screening tests were negative.
During this time, Tawanda visited Davonte. Agranoff,
Davonte's foster care worker from Family Care Services, had
scheduled monthly visits for Tawanda with Davonte and Hakeem from
December 1995 to April 1996. Agranoff supervised all but two of
the visits. During the six months Agranoff was on the case,
Tawanda was cooperative. However, Agranoff testified that as of
the last date she was on the case, May 19, 1996, she did not
believe Davonte was ready to return home, because Tawanda's
progress was not sufficient to regain custody.
Tawanda was consistent with visitation until April 1996.
After that date, she did not visit Davonte.
On August 25, 1996, Larry M. Small, Psy.D., a clinical
psychologist who specializes in forensics and child custody,
conducted a bonding and attachment assessment between Tawanda and
Davonte. Dr. Small noted in his report that Tawanda arrived late
for the appointment and brought a snack for herself, but not
Davonte. Davonte at first did not recognize Tawanda. When asked
who she was, Davonte replied, "Nobody." Tawanda showed little
regard for Davonte's emotional state and the fact that Davonte
might be confused or upset by being told that she was his
"mommy." Davonte was happy and affectionate, although he
appeared thin and fragile. When Dr. Small asked Tawanda about
her visitation schedule with Davonte, Tawanda said that she had
been seeing both Hakeem and Davonte at her grandmother's home,
but had last seen them two months before the assessment. Dr.
Small did not recommend that Tawanda have unsupervised visitation
with Davonte until she maintained regular visitation with him.
The next date Tawanda visited Davonte was on October 21,
1996. Pamela Dahlman, Davonte's caseworker at Family Care since
September 1996, noted that Tawanda had called in early September
1996, saying that she wanted her children back and would do
whatever was necessary and that she hadn't been visiting for a
few months because she did not know whom to contact. On November
4, 1996, Dahlman advised Tawanda's attorney that she was
recommending unsupervised visitation between Tawanda and Davonte
because she had received documentation from Haymarket House that
Tawanda had a sponsor, attended Narcotics Anonymous group
meetings weekly, as well as a support group, and that she did
community work.
However, on November 13, 1996, Dahlman also informed
Tawanda's attorney that she wanted to take the motion for
unsupervised visitation very slowly, due to Dr. Small's
evaluations, as well as her own, of Tawanda and her boyfriend,
Craig. Craig was the leader of a support group, and he and
Tawanda spoke with their sponsors every day and saw them three
times a week at meetings. Craig admitted that he had engaged in
domestic violence in the past with his ex-wife. However, he
blamed his addiction to drugs for this domestic abuse and stated
that it has not been a problem in his marriage to Tawanda.
In November or December 1996, Craig and Tawanda visited
Davonte. Dahlman supervised this visitation. Dahlman also
observed two visits between Davonte and Tawanda at Family Care
during 1996. During those visits, Tawanda did not say anything
inappropriate to Davonte, nor did she correct him when he called
his foster mother "Mommy." Tawanda visited Hakeem once or twice
in December 1996 and twice in January 1997.
On December 5, 1996, Tawanda's motion for unsupervised
visitation was denied, and the trial on the petition to terminate
her parental rights and appoint a guardian with authority to
consent to Davonte's adoption was set for January 21, 1997.
Prior to the hearing on the petition to terminate parental
rights, Dr. Small conducted psychological evaluations of both
Tawanda and Craig. Dr. Small conducted a psychological
evaluation of Tawanda in late December 1996. He found that
Tawanda was not suffering from any psychiatric illnesses and that
her substance abuse and depression were in remission, as she had
not used drugs for at least six months.
Tawanda's personal history revealed that Tawanda was raised
primarily by her grandmother, because her mother was a drug
addict and used cocaine, PCP and alcohol. Tawanda's mother was
13 when Tawanda was born. Her father was found shot in the head
in an abandoned building when she was eight years old. Her
stepfather sexually abused her from the ages of 10 to 14, but her
mother did nothing about the abuse. Her stepfather was later
found dead, stabbed 22 times. Tawanda graduated from high school
at the age of 16 and received a scholarship to Northern Illinois
University. However, she left the university in her second year
due to financial difficulties. Tawanda's aunt introduced her to
cocaine when she was 20 years old. Tawanda described her
relationship with Kermit to Dr. Small as "all drugs. Nothing
serious; nothing I want to talk about." Tawanda stated that
Kermit, and the other men she dated before Craig, all used drugs
and physically abused her.
Tawanda told Dr. Small that she used cocaine when she was
pregnant with Davonte, but not with Hakeem. She blamed her
mother, rather than herself, for the loss of her children. She
stated that her mother had a drug problem. Tawanda insisted that
she had taken care of her children by paying her mother to make
sure they had milk, diapers and clothes.
When asked how her children came to be placed in foster
care, Tawanda claimed that one day she had a toothache and took
two 800-milligram capsules of Ibuprofen. Hakeem woke up before
she did and began pounding on the window. People on the street
called the fire department, and the authorities came and took
custody of Hakeem and Davonte.
Tawanda said she visited Davonte consistently until April
1996, when she started working full-time and began to see Davonte
only once a month. During her visits with Davonte, Davonte
called Ida Palmer his mother and called Tawanda "mama Tawanda."
Tawanda did not attempt to make Davonte call her his mother. Dr.
Small believed Tawanda was capable of raising her children and
did not recommend that her parental rights be terminated,
although her test results reflected a need for counseling or
psychotherapy. Dr. Small recommended that Tawanda participate in
weekly individual psychotherapy to address her new sobriety and
her chaotic family background.
Dr. Small did not find that emotional distress was impacting
Tawanda's parenting skills, but he was concerned that Tawanda
never really talked about the sex abuse and that it "took her a
while to hit bottom with her substance abuse." In addition, he
was concerned that Tawanda had not been in contact with her
caseworker. Dr. Small's opinion about Tawanda's ability to
parent was based in part on the bonding and attachment assessment
he had conducted between Tawanda and Davonte on August 25, 1996.
Dr. Small recommended that Tawanda and Craig receive marital
counseling and that Tawanda receive individual therapy.
On January 7, 1997, Dahlman conducted an assessment to
determine whether the home of Tawanda and her boyfriend Craig
would be an appropriate environment for Davonte. Dahlman
described the apartment as clean, with plenty of food, and that
Craig and Tawanda appeared to have a stable home and a good way
of dealing with their problems. Tawanda had told Dahlman that
she and Craig deal with their differences by yelling, discussing,
or arguing.
The hearing on the petition was set for January 21, 1997,
but was continued to February 28, 1997, when it was commenced and
continued various times until completion on June 10, 1997.
At the hearing, Dahlman testified that she had not seen any
lapses in Tawanda's progress since September 1996. However, on
cross-examination by the State, Dahlman admitted that as of
January 1997, Tawanda had not entered counseling to address the
sexual and physical abuse she suffered as a child. Dahlman could
not recall whether Tawanda began counseling eight days before the
trial started, but he admitted she could have called the
assistant State's Attorney on January 13, 1997, and advised her
that Tawanda had started counseling the night before. Also,
Craig and Tawanda did not follow through on Dahlman's and Dr.
Small's recommendation that they attend marriage counseling.
At the hearing, Tawanda testified that she continued to use
cocaine when she was pregnant with Davonte, even after she knew
she was pregnant. Tawanda claimed that she made unsuccessful
efforts to find out where the children were living after her
children were removed from her mother's custody. Tawanda
testified that she tried to contact the DCFS caseworker,
Blackmon, many times but she could not remember the specific
dates she did so. Tawanda claimed that she had tried enrolling
in the drug treatment program at Haymarket House at that time,
but that she could not get in because there was a waiting list.
Tawanda further testified that after her discharge from Haymarket
House in 1994, she called the St. Martin de Porres drug treatment
program (St. Martin de Porres) and enrolled there. However, she
left after two months because she felt the program was too
strict.
Tawanda testified that she stopped using drugs in September
1995. She enrolled at St. Martin de Porres and began attending
Narcotics Anonymous (NA) meetings three times a week. Tawanda
testified that she has been going to the meetings consistently
for two years and will not stop attending the meetings. She also
stated that her husband, Craig, was also a member of NA. Tawanda
felt she had progressed tremendously. At the time of the
hearing, she had an apartment, a husband, and a job. Tawanda
testified that her most important emotional need was to be with
Davonte. She stated that she completed one parenting class at
Haymarket House and was willing to attend additional parenting
skills classes to regain custody of her children. Tawanda
admitted that she had received many letters from various
caseworkers, but denied receiving a letter notifying her that
Davonte's case was proceeding to a termination hearing. She
claimed that she did not learn of the termination proceeding
until she came to court.
On June 11, 1997, the trial court found that Davonte's
mother, Tawanda, was not unfit and dismissed the State's petition
for appointment of a guardian with the right to consent to
Davonte's adoption. The court based its finding on the fact that
Tawanda had been sober for almost two years prior to the hearing.
The court stated the following in making its ruling:
"Both the State -- well, the State, the Public
Defender and the GAL all had some very good points.
The sad fact for the State's case and the good fact for
the mother's case is this is a bureaucracy, and we have
had too many years of paperwork.
But I can say that almost two years of being clean
wasn't an 11th hour flurry of activity. Two years
isn't an 11th hour flurry of activity, but we have to
remember these are people and not just paperwork or not
just winning a case.
The point is the evidence is not clear and
convincing that the mother now is unfit, nor I don't
believe she's been unfit since at least September of
1995.
And the fact that it's taken this long to come to
court is maybe unfortunate, but it worked for you
because you did what you were supposed to. Not saying
you did everything because I'm convinced you absolutely
need that marriage counseling and your husband needs
some domestic violence counseling, but on the whole, it
takes a lot to break free from drugs. And I know that
the drugs were stopping you from doing a lot of things
that you should have been doing, but you have done a
great job so far and you need to continue.
So I'm not finding the mother unfit."
The court then continued the matter for a permanency
planning hearing for Tawanda,and a best interest hearing in
regard to the father, Kermit.
On June 30, 1997, the office of the public guardian filed a
notice of appeal on behalf of Davonte. On July 2, 1997, the
State also filed a notice of appeal.
On appeal, the office of the public guardian, on behalf of
Davonte, and the State argue that the juvenile court's finding
that Tawanda was a fit parent and maintained a reasonable degree
of interest and responsibility for Davonte, that she did not
desert him, and that she did not evidence her intent to forego
parental rights was against the manifest weight of the evidence.
They argue that Tawanda's recent sobriety does not justify a
finding of fitness where she had neglected Davonte for several
years. We agree and reverse the trial court's ruling.
The supplemental petition to terminate parental rights and
appoint a guardian with authority to consent to Davonte's
adoption alleged that Davonte's parents were unfit based on the
following grounds: (1) failure to maintain a reasonable degree
of interest, concern, or responsibility as to the child's
welfare, in violation of section 1(D)(b) of the Adoption Act (the
Act) and section 2-29 of the Juvenile Court Act of 1987; (2)
deserting Davonte for more than three months next preceding the
commencement of these proceedings for termination of parental
rights, in violation of section 1(D)(c) of the Act and section 2-
29 of the Juvenile Court Act; (3) having been habitual drunkards
or addicted to drugs for at least one year immediately prior to
the commencement of the unfitness proceeding in violation of
section 1(D)(k) of Act and section 2-29 of the Juvenile Court
Act; (4) having failed to make reasonable efforts to correct the
conditions that were the basis for the removal of Davonte within
12 months after the adjudication of neglect, in violation of
section 1(D)(m) of the Act and section 2-29 of the Juvenile Court
Act; and/or having failed to make reasonable progress toward the
return of Davonte within 12 months after the adjudication of
neglect, in violation of 750 ILCS 50/1(D)(m) (West 1992) and 705
ILCS 405/2-29 (West 1992); and (5) having evidenced the intent to
forego parental rights as manifested by failure for a period of
12 months to (i) visit Davonte, (ii) communicate with Davonte or
the agency, and/or (iii) maintain contact with or plan for the
future of Davonte, although physically able to do so, in
violation of 750 ILCS 50/1(D)(n) and 705 ILCS 405/2-29 (West
1992).
Contrary to the trial court's determination, the record
establishes that Tawanda was an unfit parent where she failed to
maintain a reasonable degree of interest, concern, or
responsibility as to Davonte's welfare, failed to make reasonable
progress toward the return of Davonte within 12 months after the
adjudication of neglect and was addicted to drugs for at least
one year preceding the commencement of the unfitness proceeding.
750 ILCS 50/1(D)(b)(D)(m)(D)(k) (West 1994). Given our
resolution of the issues on appeal, we need not consider other
possible grounds of unfitness.
A finding of parental unfitness must be supported by clear
and convincing evidence. In re A.J., 269 Ill. App. 3d 824, 828,
646 N.E.2d 1239 (1994). A reviewing court will not reverse the
trial court's finding of parental unfitness unless it is against
the manifest weight of the evidence, meaning that the opposite
result must be clearly evident from a review of the record.
A.J., 269 Ill. App. 3d at 828.
Our supreme court has held that, in cases such as the
present one, under the Illinois Adoption Act (Act) trial courts
must undertake a two-step process in ruling on adoption
petitions. In re Adoption of Syck, 138 Ill. 2d 255, 276, 562 N.E.2d 174 (1990). In a bifurcated trial, the court must first
rule on whether the parent is fit. Syck, 138 Ill. 2d at 276. A
parent's fitness is determined based upon his or her actions
within the first 12 months after an adjudication of neglect. 750
ILCS 50/1D(m) (West 1994).
If the petitioner proves that one or more of the grounds for
unfitness under the Act exist by clear and convincing evidence,
the court then conducts the second phase of the bifurcated
proceeding, in which it must determine whether termination of
parental rights and allowance of an adoption petition would be in
the child's "best interests." Syck, 138 Ill. 2d at 277. Once a
parent has been found unfit by clear and convincing evidence, the
decision to terminate an individual's parental rights rests
within the sound discretion of the trial judge. In re V.O., 284
Ill. App. 3d 686, 691, 673 N.E.2d 439 (1996).
Here, the court held only a fitness hearing and did not
proceed to the second phase, as the trial court did not find
Tawanda unfit.
Section 1D(m) of the Act provides that a parent may be found
unfit for failure "to make reasonable progress toward the return
of the child to the parent within 12 months after an adjudication
of neglected minor." 750 ILCS 50/1D(m) (West 1994). Following
the removal of a child from the home, the parents must make
reasonable efforts to correct the conditions that caused the
child to be removed from the home. In re A.P., 277 Ill. App. 3d
592, 598 (1996). At a minimum, parents must make "reasonable
progress" toward the return of the child within 12 months after
an adjudication of neglect. A.P., 277 Ill. App. 3d at 598; In re
M.C., 201 Ill. App. 3d 792, 798, 559 N.E.2d 236 (1990). The
question of what is "reasonable progress" is an objective one.
A.P., 277 Ill. App. 3d at 598; M.C., 201 Ill. App. 3d at 798.
The law does not afford a parent an unlimited period of time to
make reasonable progress toward regaining custody of the
children. In re D.J., 262 Ill. App. 3d 584, 591 (1994).
The trial court below based its finding that Tawanda was not
unfit on the fact that she had remained sober for the two years
preceding the hearing. However, this time frame is irrelevant in
determining a parent's fitness. A parent's fitness is determined
based upon his or her actions in the first 12 months after the
adjudication of neglect; here, that was about four months after
the child's birth. Davonte was adjudicated neglected on February
9, 1993. Thus, the relevant time period which the court should
have considered in making its determination was the 12-month
period commencing on February 9, 1993, through February of 1994.
During this time, the mother clearly was an addict and
showed almost no interest in Davonte. Tawanda dropped out of
drug treatment twice, in December 1992 and March 1994. Both
times, she relapsed to drug use. Tawanda spent $100 per day on
drugs, lost most of her clothes, and relocated several times.
While Tawanda stopped using drugs in September 1995, this was
more than 2 1/2 years after the adjudication of neglect.
She enrolled at Haymarket House again in November 20, 1995,
but was discharged from the program in February 1996 due to an
altercation with a staff member. She was transferred to another
outpatient center. After that, Tawanda slowly progressed. She
enrolled at St. Martin de Porres and began attending Narcotics
Anonymous meetings three times a week. By November 1996, Tawanda
had a sponsor, attended Narcotics Anonymous group meetings
weekly, as well as a support group, and did community work. This
was four years after Davonte was placed in foster care.
Tawanda first showed interest in regaining custody of
Davonte in September 1995, when she placed a call to Family Care
Services and appeared in court for the first time. This was 3
years after Davonte was placed in foster care, 2 1/2 years after
he was adjudicated neglected, and 6 months after the petition to
terminate her parental rights was filed. Tawanda claimed that
she did not make any earlier efforts to regain custody because
she thought there was no way she could regain custody. Tawanda
said she made a few calls to inquire about Davonte but then
relocated several times without telling anyone her whereabouts
and did not follow through on visitation. While Davonte was in
foster care for the first six months, Tawanda visited him only
once. She visited Davonte twice between May and September of
1994, but the other times Davonte was brought over for
visitation, Tawanda was not home. From September 1994 to
September 1995, Tawanda did not visit Davonte at all and made no
contact with DCFS or Family Care Services. The termination
petition was filed in March 1995, but Tawanda still failed to
visit Davonte. Davonte's caseworker at Family Care Services
scheduled monthly visits between Tawanda and Davonte from
December 1995 to April 1996. This was the only time period
Tawanda consistently visited Davonte. By December 20, 1995,
Tawanda had visited Davonte only four times since he was placed
in foster care. Davonte was 3 1/2 years old at that point.
After April 1996, Tawanda again stopped visiting Davonte. The
next time Tawanda visited Davonte was in October 1996. After
this, both Tawanda and her boyfriend, Craig, visited Davonte once
and submitted to psychological evaluations in Tawanda's effort to
regain custody.
The trial court found that Tawanda's progress was not "an
11th hour flurry of activity" and lauded her for overcoming her
drug addiction in finding that she was fit. The trial court
noted that it was fortunate for Tawanda that the case took years
to be heard because this allowed her time to make progress. In
its ruling, the trial court implied that Tawanda at one time was
unfit but, at the time of the hearing, was not then unfit.
However, the trial court erred in focusing on Tawanda's recent
improvement, rather than the time period set out by the Illinois
Adoption Act. Allowing a parent to circumvent his or her own
unfitness because of a bureaucratic backlog and delay in bringing
the case to trial should not be countenanced. As this court
stated in In re Adoption of D.A., 222 Ill. App. 3d 73, 583 N.E.2d 612 (1991):
"In issuing his ruling, the trial judge stated
that grounds for unfitness probably existed at one
point but the situation had changed because of [the
father's] recent attempts to enforce his visitation
rights. In our view, this logic is unsound and could
lead to undesirable consequences. The trial court's
approach could permit parents who have been severely
abusing or neglecting their children for lengthy
periods of time to avoid a finding of unfitness by
claiming the long-term pattern of abuse or neglect had
recently ceased." D.A., 222 Ill. App. 3d at 79.
This court thus held that, in cases involving lengthy
periods of objectionable conduct by a natural parent, a recent
departure from that conduct does not eliminate the existence of
grounds for a determination that the parent is unfit. D.A., 222
Ill. App. 3d at 79-80. Rather, it is merely a factor to be
considered during the second phase of the bifurcated trial in
determining whether terminating the parent's rights would be in
the best interests of the child. D.A., 222 Ill. App. 3d at 80.
At this "best interest" hearing, the trial court may consider all
of the prior actions of the unfit parent. It is here that the
trial court may focus on what the unfit parent has done recently
to prove their parental rights should not be terminated.
However, we note that other districts have held that a
parent's fitness may be determined based on the entire period
after the adjudication and before the filing of a petition to
terminate parental rights, beyond the 12-month period prescribed
by the Act.
The Third District Appellate Court in In re R.S., 174 Ill.
App. 3d 132, 528 N.E.2d 25 (1988), held that courts may look to
the entire post-adjudication of neglect period, and not merely a
12-month period, in determining parental fitness. The court in
R.S. stated that the statutory language of the Act was capable of
two interpretations: (1) that a court's determination of
unfitness must be based on parenting efforts or progress during
the period beginning with the adjudication and ending 12 months
thereafter; or (2) that a court may determine unfitness based on
a parent's efforts or progress during the entire period between
the adjudication and the filing of the petition to terminate
parental rights. R.S., 174 Ill. App. 3d at 133. The Third
District Appellate Court adopted the latter interpretation,
stating that subsection (m) "evidences both the legislature's
recognition of the problem of children removed from their parents
but ineligible for adoption and the legislature's intent to
better protect the interest of such children." R.S., 174 Ill.
App. 3d at 133. The court held that "it is clearly in the best
interest of the child to consider the parent's conduct during the
entire post-adjudication period." R.S., 174 Ill. App. 3d at 133-
34. Part of the court's rationale in reaching its holding was
the legislative history in the 1977 amendment to the Act, which
shortened subsection (m)'s period from 24 months to 12 months
(Pub. Act 80-558, eff. October 1, 1977). R.S., 174 Ill. App. 3d
at 134. The court stated that "the legislature must have
intended to shorten the removed child's period of uncertainty by
lessening the time which must pass following the child's removal,
before his parent could be found unfit." R.S., 174 Ill. App. 3d
at 134. The court, however, reasoned that the shortened time
period merely reflects the "rehabilitation period" of a parent
during which time unfitness may not be found, and "does not
terminate the period from which evidence may be considered."
R.S., 174 Ill. App. 3d at 134.
Courts in other districts then followed the holding in R.S.
See, e.g., In re C.R., 221 Ill. App. 3d 373, 381, 581 N.E.2d 1202
(4th Dist. 1991) (the time frame in which a parent must make
reasonable progress is not limited to 12 months after
adjudication of neglect; rather, a court may consider the
parent's conduct during the entire post-adjudication period); In
re A.T., 197 Ill. App. 3d 821, 832, 555 N.E.2d 402 (4th Dist.
1990) (the 12-month period is a "limiting provision," which
guarantees alleged unfit parents a minimum of 12 months to make
reasonable progress between adjudication and a hearing on
termination of parental rights); In re J.P., 261 Ill. App. 3d
165, 175, 633 N.E.2d 27 (4th Dist. 1994) ("the court should
consider progress made during the entire post-adjudication period
and not simply during the 12 months immediately following the
adjudication"); In re E.S., 246 Ill. App. 3d 330, 338, 615 N.E.2d 1346 (4th Dist. 1993) (the time frame in which a parent has to
make reasonable progress toward a reunification plan is not
limited to 12 months; rather, the court may consider the parent's
conduct during the entire post-adjudication period); In re S.J.,
233 Ill. App. 3d 88, 118, 598 N.E.2d 456 (2nd Dist. 1992)
("[a]lthough the statute could be interpreted to give a parent
only 12 months in which to make 'reasonable progress,' the weight
of recent authority is that 12 months is the minimum period in
which a parent has to make reasonable progress; therefore, in
evaluating whether a parent has made reasonable progress, the
trial court should consider the parent's conduct during the
entire period after the neglect adjudication").
However, it is error for circuit courts to consider a
parent's efforts to make reasonable progress toward the return of
their children outside of the 12-month period prescribed by the
Act. The legislative history of the Act evidences an intent to
shorten the period of time from which evidence regarding a
parent's progress may be considered, not to lengthen it. Any
uncertainty as to the time limitations under the Act has been
addressed by the Illinois legislature. The Act itself provides
that "[t]he best interests and welfare of the person to be
adopted shall be of paramount consideration in the construction
and interpretation of this Act." 750 ILCS 50/20a (West 1992).
Section 20a of the Act was amended in 1994 to further provide the
following:
"It is in the best interests of persons to be
adopted that this Act be construed and interpreted so
as not to result in extending time limits beyond those
set forth herein." 750 ILCS 50/20a (West 1994)(amended
by Pub. Act 88-550, 975, eff. July 3, 1994).
Thus, courts are restricted to allowing evidence only from
the 12-month period following an adjudication of neglect in
determining parental fitness. Thereafter, in the second stage of
the bifurcated proceeding, where the court rules on whether to
terminate parental rights, courts may then look to the parent's
conduct during the entire period between the adjudication of
neglect and ruling on a petition to terminate parental rights.
See Syck, 138 Ill. 2d at 277.
Here, Tawanda's recent sobriety and improvement in her
personal life would be relevant during the second phase in
determining whether terminating her parental rights and
appointing a guardian with authority to consent to adoption would
be in the best interests of Davonte. The trial court should not
have relied on evidence of her most recent departure from the
conditions that caused her to be unfit during the relevant
statutory time period. The time limitations in the statutes are
not suggestions. Courts are not free to disregard them when they
are determining a parent's fitness. The court should have looked
at the 12-month period beginning immediately after the
adjudication of neglect. Here, during that time the mother was
clearly an addict and showed almost no interest in Davonte's care
or welfare.
While we recognize that Tawanda has made progress in her
life, this does not render her a fit parent. Rather, her conduct
during the relevant statutory period was woefully inadequate.
Under the facts of the instant case, we hold that the trial
court's finding of fitness was against the manifest weight of the
evidence, and we reverse the trial court's order.
Pursuant to our holding, the second phase of the bifurcated
hearing must be held to determine whether termination of
Tawanda's parental rights and appointment of a guardian with
authority to consent to Davonte's adoption would be in Davonte's
best interests. "A separate hearing and determination of the
child's best interests is mandatory in order to ensure the proper
focus on those interests." A.P., 277 Ill. App. 3d at 600.
Accordingly, we reverse the juvenile court's order finding
Tawanda not to be unfit and remand for a hearing to determine
whether the termination of Tawanda's parental rights and
appointment of a guardian with authority to consent to adoption
would be in the best interests of Davonte.
Reversed and remanded.
CAMPBELL, P.J, and GREIMAN, J., concur.