In re R.B.

No. 2--97--0813
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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re R.B., S.B., and M.B., ) Appeal from the Circuit Court
Minors ) of Kane County.
)
) No. 94--J--77
)
(The People of the State of )
Illinois, Petitioner-Appellee,) Honorable
v. Sandra B., Respondent- ) Thomas E. Mueller,
Appellant). ) Judge, Presiding.
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JUSTICE McLAREN delivered the opinion of the court:
Respondent, Sandra B. (Sandra), appeals from the trial court s
termination of her parental rights to her children, R.B., S.B., and
M.B. We reverse.
The State filed two petitions for adjudication regarding the
B. children in 1994, alleging that Sandra and her husband Ronald
neglected the children by (1) failing to provide necessary and
proper care and support for the children by failing to keep an
adequate supply of food in the house and failing to keep current on
two of the children s immunizations; and (2) creating an
environment injurious to the children s welfare, in that both
Sandra and Ronald were substance abusers. The children were taken
into custody by the Department of Children and Family Services
(DCFS) and placed into foster homes. The petitions were proved,
and the children were adjudicated neglected and made wards of the
court in August 1994. As a result, Sandra and Ronald were ordered
to (1) submit to a substance abuse evaluation and follow all
recommendations for treatment; (2) submit to psychological testing
as arranged by DCFS and follow all recommendations for counseling;
(3) submit to random urine drops as arranged by DCFS; and (4)
establish a stable source of income and assure that the children s
physical needs were adequately met.
On May 28, 1996, the State filed a petition to terminate
Sandra s and Ronald s parental rights. The petition alleged that
Sandra and Ronald were unfit to be parents because they (1) failed
to maintain a reasonable degree of interest as to the children s
welfare; (2) failed to make reasonable efforts to correct the
conditions that were the basis for the removal of the children or
to make reasonable progress toward the return of the children
within 12 months of the adjudication of neglect; and (3) evinced
the intent to forego their parental rights. A hearing was held
beginning on January 23, 1997. At the end of the State s case, the
State moved to withdraw its allegation that Sandra evinced an
intent to forego her parental rights and moved that a count be
added alleging that Sandra failed to protect her children from an
injurious environment. The court granted both motions but also
granted Sandra s motions for directed finding as to the newly added
count as well as to the count alleging that she had failed to
maintain a reasonable degree of interest in the children s welfare.
Sandra then presented her evidence.
On June 24, 1997, the court entered an order finding Ronald to
be unfit. The court reserved ruling on Sandra. However, on July
7, 1997, the court found Sandra unfit as to paragraph 7.B. of the
petition, which alleged that Sandra failed to make reasonable
efforts to correct the conditions that were the basis for the
removal of the children or to make reasonable progress toward the
return of the children within 12 months of the adjudication of
neglect. Approximately one month later, the court found that it
was in the best interests of the children to terminate the parental
rights of Sandra and Ronald. Sandra s appeal followed.
Sandra now contends that the court s finding that she was
unfit to be a parent was not supported by the evidence. The
parental rights of a nonconsenting parent may only be terminated
upon an adjudication of unfitness which must be supported by clear
and convincing evidence. In re S.G., 216 Ill. App. 3d 668, 669
(1991). A trial court s findings as to unfitness are to be given
great deference and will only be overturned on appeal if they are
against the manifest weight of the evidence. S.G., 216 Ill. App.
3d at 669. Our review of the evidence in this case leads us to
believe that the trial court s finding of unfitness is against the
manifest weight of the evidence.
The court found Sandra unfit based on the allegations that she
failed to make reasonable efforts to correct the conditions that
were the basis for the removal of the children or to make
reasonable progress toward the return of the children within 12
months of the adjudication of neglect. See 750 ILCS 50/1 (D)(m)
(West 1996). The court noted that Sandra had completed some, but
not all, of her client-service plan tasks and that she sometimes
did not demonstrate much interest when therapist Colleen Connelly
visited her at home. However, the court stated that it did not
have to base its decision on those grounds because of the opinion
in the case of In re K.S., 203 Ill. App. 3d 586 (1990). The court
found that, while Sandra no longer abused drugs, Ronald still had
a substance abuse problem. Therefore, the condition that led to
the removal of the children, i.e., substance abuser in the
children s home, had not been corrected and there has been no
progress made by Sandra to correct it. At the best interests
hearing, the court further clarified its basis for finding Sandra
unfit:
But the basis of the finding of unfitness was that Sandra
[B.] refused to make a choice for her children and against her
husband. She sat on the stand interestingly today once again
defending his absence at visitation because they were short at
work and he had to be at work and it just again is -- is yet
another illustration of this woman s commitment to her husband
at the expense of her children. So the -- the prospect of
them going home to this one bedroom home with a substance
abuser is not a very bright prospect.
The court s reliance on K.S. was misplaced, and its decision
based upon K.S. was against the manifest weight of the evidence.
In K.S., a three-count petition was filed alleging that Leslie
Smith neglected her three children. No allegations were made
against the father, Walter Smith, who was in the Department of
Corrections. Two counts of neglect, including the allegation that
Leslie created an environment injurious to the children s welfare,
were proved. At the disposition hearing, the court told the
Smiths:
[M]y concern here for Mr. and Mrs. Smith is that Mr. Smith
won t allow his own rather unrealistic view of his marriage
and Mrs. Smith s use and abuse of controlled substances, to
cost him his children. If things aren t corrected and
corrected very quickly, Mr. Smith s going to end up in my
judgment, without a wife and without his children. ***
I am *** absolutely convinced that Mrs. Smith has serious
on-going drug problems and drug dependency that is in serious
need of attention. *** And, the volume of evidence that I
heard at the adjudicatory hearing, all indicated someone who
is having a terrible struggle with drugs. *** The first ray of
hope I would see here would be a genuine admission by Mrs.
Smith she s got a drug problem. Without that step, I see no
hope for any progress from Mrs. Smith. And, I see no hope for
return of the custody of the children to her.
That, of course, gives Mrs. Smith a real tough decision
to make. It gives you a real tough decision to make, Mr.
Smith. And, unless and until Mrs. Smith acknowledges she s
got a drug problem, *** she s not even going to come close to
a return of the children to her custody. And, that leaves me
with the only alternative of your custody, at such time as
you re finally released from the work release program and in
a position to exercise custody.
Now, I am just warning you, you may be looking at the
very unpleasant and, frankly, horrible choice of living with
your children or living with your wife. But, right now,
you re not going to be able to do both. *** Unless Mrs. Smith
starts to address the problem, I m not sending those children
back to her. (Emphasis in original.) K.S., 203 Ill. App. 3d
at 591-92.
Eventually the parental rights of both Leslie and Walter were
terminated. The termination was upheld on appeal.
A critical difference between K.S. and the case before us is
the warning given to Walter Smith and the lack of warning given to
Sandra. Walter Smith was specifically admonished by the court that
he was going to have to choose between living with his children or
with his wife, but not both, if his wife did not overcome her drug
abuse. Here, Sandra was not told that she had to make a choice.
The trial court stated:
I was a little concerned that I had not made the direct
admonishments that Judge DeLaMar had made to the father in
that [S.K.] case -- the mother in this case -- that a choice
needed to be made, but I don t know that I was the judge at
the time of the dispositional hearing in the case. It s not
a prerequisite that the Court put that choice to the parents.
They are parents; they are adults. I guess they are presumed
to be able to figure that out themselves.
But the Court did hear testimony in this case from
Colleen Connelly that she discussed with the mother, at the
time she was providing treatment to the mother, that the
mother may have to make a choice of either getting her
children back or divorcing, leaving her substance-abusing
husband, Ronald [B].
So while it may not have been -- well, it wasn t the
Court that gave that choice to the mother. Another person in
this case did. And notwithstanding that fact, there was no
evidence introduced to the Court that there was even
consideration being given by Sandra [B] at this time to leave
her husband.
We disagree that Sandra is presumed to know, without being
explicitly told by the court, that she must leave her husband or
have her parental rights terminated. We also disagree with the
court in K.S. that a specific warning of such a choice was not
required for the resolution of the case. See K.S., 203 Ill. App.
3d at 599. Parental rights and responsibilities are of deep
human importance and will not be lightly terminated. In re Paul,
101 Ill. 2d 345, 351-52 (1984). We cannot condone the severance of
these rights and responsibilities based upon an unrecognized and
cavalierly made presumption. Here, Colleen Connelly, a therapist,
testified that she told Sandra that, if Ronald continued his
substance abuse, she could not predict a time at which DCFS is
likely to allow the children to live with them again. However,
Connelly never told Sandra that, unless she left Ronald, she would
not regain custody of her children and her parental rights would be
terminated. No other warning was given.
We conclude that Sandra should not have been found to be an
unfit parent based upon her failure to perform an act that she was
never told she was required to do. Otherwise, termination is based
upon a failure to foresee the needs that professionals are supposed
to know about and relate. Furthermore, the court should not allow
such an order to be given to a parent by one of a myriad of
therapists and social workers working with the parent. The
requirement of such a momentous decision should come from the
court, not a social worker.
Our review of the evidence in this case lends us to conclude
that no other allegations of the petition are supported by clear
and convincing evidence. Therefore, the termination of Sandra s
parental rights was against the manifest weight of the evidence.
For this reason, the judgment of the circuit court of Kane
County is reversed.
Reversed.
INGLIS and HUTCHINSON, JJ., concur.