In re Y.B.

No. 3--96--0418
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1996

IN RE Y.B., T.M., J.M., S.P. )
and C.B., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Peoria County, Illinois
)
(THE PEOPLE OF THE STATE )
OF ILLINOIS, )
)
Petitioner-Appellee, ) No. 92--J--22
)
v. )
)
DEBBIE C., ) Honorable
) Stuart P. Borden
Respondent-Appellant). ) Judge, Presiding

________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the Court:
________________________________________________________________

The respondent, Debbie C., appeals from orders finding her
an unfit parent and terminating her parental rights. She argues
that (1) parental rights to C.B. could not be terminated based on
an adjudication under the "no fault" dependency provision of the
Juvenile Court Act of 1987; (2) unfitness was not proved by clear
and convincing evidence; and (3) the evidence failed to prove
that it was in the best interests of the children to terminate
her parental rights. For reasons that follow, we reverse and
remand with respect to C.B. and affirm in all other respects.
FACTS
On January 22, 1992, the State filed a petition for
adjudication of wardship in two counts, alleging that the minors,
Y.B., T.M., J.M. and S.P., were neglected and dependent (705 ILCS
405/2--3, 4(1)(a) (West 1992)). Debbie admitted that they were
dependent as alleged in count II. Accordingly, the court entered
adjudicatory and dispositional orders and directed Debbie to
obtain independent housing, attend parenting classes and submit
to psychological testing and counseling. The four children were
made wards of the court, and guardianship was awarded to the
Department of Children and Family Services (DCFS). During the
next several months, Debbie obtained a psychological evaluation,
completed parenting classes and obtained a four-bedroom
apartment. She also gave birth to C.B. DCFS returned the other
children to her care on November 2, 1992.
On April 22, 1993, DCFS received a report indicating a risk
of physical harm to Y.B. and T.M. On June 11, 1993, Debbie
entered a residential treatment program for chemical dependency.
She relinquished all of the children to DCFS. Four days later,
the State filed a second juvenile petition alleging that C.B. was
dependent pursuant to section 2--4(1)(c) of the Juvenile Court
Act of 1987 (Juvenile Court Act) (705 ILCS 405/2--4(1)(c) (West
1992)). Debbie denied the petition and moved for return of all
five children to her custody. Following a hearing on September
2, 1993, the court adjudicated C.B. dependent. Subsequently, on
September 16, the court entered a dispositional order awarding
guardianship to DCFS. The court denied Debbie's request for the
return of the children, and she was directed to complete a
residential substance abuse program and obtain a psychological
evaluation.
In its ensuing periodic reviews, DCFS rated Debbie's
progress toward the goal of reunification as unsatisfactory for
failure to complete chemical dependency treatment. On June 16,
1994, the court ordered Debbie to complete all phases of chemical
dependency treatment and to cooperate with DCFS and its
designees. The agency's subsequent six-month reports to the
court repeated allegations that Debbie had not completed chemical
dependency treatment or established a stable home environment. A
permanency review order was entered on October 12, 1995, in which
the court found that Debbie had not made reasonable efforts to
achieve the DCFS service plan and permanency goals. The court
reiterated its order that Debbie complete chemical dependency
treatment and cooperate with DCFS and its designees.
On October 27, 1995, the State filed a supplemental petition
for termination of parental rights. In counts I and II, the
State alleged that Debbie was unfit because she failed to make
(1) reasonable efforts to correct the conditions which were the
basis for the removal of the minors, and (2) reasonable progress
toward their return within 12 months of adjudication. 750 ILCS
50/1(D)(m) (West 1994).
A hearing on the State's supplemental petition was held on
January 31, February 7, and March 5, 1996. For the State, Paul
Keenan, a direct service supervisor for Catholic Social Services
(CSS) testified that he had been involved with the case since
September of 1993. Keenan said that Debbie's service plan goals
over the years included obtaining appropriate housing, counseling
for anger control, chemical dependency treatment and visitation
with the children. With few exceptions, Debbie's visitations
were successful. Debbie lived in numerous locations throughout
the period, returning often to her mother's home. After the
children were returned to foster care in June of 1993, she never
maintained independent housing for a period longer than six
months. At the time of the hearing, Debbie had still not
completed any treatment program for chemical dependency. Keenan
said that Debbie had completed an intensive counseling program
for managing her anger in December of 1995 and was in continuing
care at the time of his testimony.
When the hearing resumed on February 7, Patricia Kennedy,
Debbie's counseling therapist, testified that she had seen
improvement in Debbie's anger control since October of 1995 and
estimated that Debbie would need at least three more months to
complete the counseling program. Kennedy acknowledged that
alcohol dependency remained an unresolved problem for Debbie.
Debbie testified on her own behalf. She said that she knew
she had a problem with alcohol since age 13. Although she
admitted having used other drugs, including cocaine, she did not
believe she had a drug problem. She stated that she drank more
after the children were removed from her care. The last time she
drank was around Christmas of 1995, when she had a 40-ounce
bottle of beer. She reported this relapse to Patricia Kennedy.
At the time of the hearing, Debbie was living at the YWCA.
At the close of all testimony, the court found that both
counts of the State's supplemental petition were proved by clear
and convincing evidence and entered a finding of unfitness.
On April 3, 1996, the matter proceeded to a best interests
hearing. Reports of CSS and Children's Home caseworkers were
received into evidence. The reports established that all five of
the children suffer from serious emotional problems. At the time
of the hearing, Y.B. resided in a therapeutic foster home and
suffered from post-traumatic stress disorder. T.M. lived in a
specialized foster home and attended school for severely
emotionally disturbed children. J.M. was placed in the
residential unit of Children's Home. His behavior improved since
October of 1995, but he still had episodes of violence. S.P. and
C.B. remained together in a specialized foster home. Although
the three oldest children, Y.B., T.M. and J.M., remained bonded
to Debbie, the children's behavior and Debbie's reactions to them
during visitations had continued to deteriorate up to the time of
the hearing. Considering all of the unresolved problems that the
family had, the caseworkers recommended that it was in the best
interests of all of the children to terminate Debbie's parental
rights. The State also presented evidence that Debbie had
reported another alcohol relapse on the weekend of February 10,
1996.
In her defense, Debbie presented her mother, her CSS
caseworker and the fathers of two of the children, all of whom
testified that Debbie related well to the children and that there
was mutual affection between the children and their mother.
Other witnesses included Debbie's parenting class instructor, who
testified that Debbie had participated in all but one session;
T.M.'s foster mother, who said that T.M. expressed her desire to
return home to her mother; and a friend, who said that Debbie
speaks fondly of and longs to be reunited with her children. In
addition, Y.B., T.M. and J.M. each told the judge in chambers
that they wanted to live with their mother. Finally, Debbie
testified that she was determined to complete the chemical
dependency treatment program, whether the State's petition was
granted or not.
At the close of testimony and arguments of counsel, the
court found that it was in the best interests of the children
that Debbie's parental rights be terminated. Accordingly, the
court granted the State's petition.
DISCUSSION AND ANALYSIS
1. Termination Proceedings Concerning C.B.
Debbie first argues that the trial court lacked authority to
terminate her parental rights to C.B., because he was adjudicated
dependent under the "no fault" provision of the Juvenile Court
Act prior to September 10, 1993. The State and guardian ad litem
(State) respond that Debbie waived her argument, or that the
dependency determination is irrelevant because termination
proceedings were proper with respect to the other children. See
In re Henry, 175 Ill. App. 3d 778, 530 N.E.2d 571 (1988). The
State's position fails to persuade.
The termination of parental rights is an extraordinary
measure that warrants stretching our resources without resort to
doctrines of judicial convenience, such as waiver, which would
avoid consideration of the parties' arguments. See In re
Petition of Kirschner, 164 Ill. 2d 468, 649 N.E.2d 324 (1995); In
re A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480 (1991). Further,
the Adoption Act and the Juvenile Court Act contain strict
procedural requirements which embody this State's policy favoring
the superior right of parents to the custody of their own
children. In re Custody of Menconi, 117 Ill. App. 3d 394, 453 N.E.2d 835 (1983).
In interpreting the statutes, it is legislative intent, not
simple logic, that controls. In re Jankowski, 38 Ill. App. 3d
95, 347 N.E.2d 474 (1976). Thus, where the language of a statute
applicable to a particular stage of juvenile or adoption
proceedings is clear and unambiguous, it is the duty of the court
to apply it literally. Jankowski, 38 Ill. App. 3d 95, 347 N.E.2d 474. Subsequent amendments to the statutes may not be borrowed
on review to "save" a trial court's order, even if the record
would indicate that such action might better serve the child's
interests. See In re J.P.S., 198 Ill. App. 3d 633, 556 N.E.2d 268 (1990); In re Gibson, 24 Ill. App. 3d 981, 322 N.E.2d 223
(1975).
In this case, the statute in effect on September 2, 1993,
the date C.B. was adjudicated dependent, provided as follows:
"(1) Those who are dependent include any
minor under 18 years of age:
* * *
(c) who is without proper medical or other
remedial care recognized under State law or
other care necessary for his *** well being
through no fault, neglect or lack of concern
by his parents, ***, provided that no order
may be made terminating parental rights, nor
may a minor be removed from the custody of
his *** parents for longer than 6 months,
pursuant to an adjudication as a dependent
minor under this subsection (c)." (Emphasis
added.) Ill. Rev. Stat. 1991, ch. 37, par.
802--4(1)(c).
Effective September 10, 1993, the subsection was amended by
adding the following relevant language:
"unless it is found to be in his *** best
interest by the court." 705 ILCS 405/2--
4(1)(c) (West Supp. 1993).
We do not find that Debbie waived her argument that the no
fault dependency determination entered in this case precluded the
termination of her rights to C.B. It is true that C.B. remained
in foster care for more than two years after he was adjudicated
dependent under subsection 2--4(1)(c); that no extension of the
six-month removal period was requested; and that the State never
pursued another petition for adjudication of dependency or
neglect. However, once the petition to terminate parental rights
was filed, counsel for Debbie specifically argued that the no-
fault dependency adjudication for C.B. could not be the basis for
a termination of parental rights. Therefore, the argument is not
waived. Nor do we find that the argument is irrelevant. When
the State elects to initiate dependency proceedings with respect
to a child, fairness requires that the State comply with the
terms of the statute applicable to that child and not rely on
alternative provisions applicable to the child's siblings.
On the merits, we find that the statute in effect on the
date of adjudication -- in this case, September 2, 1993 --
controls. Although the amended version arguably would have
permitted termination proceedings to go forward upon a finding
that such was in the best interest of the child, the statute that
was in effect contained no such provision. It unequivocally
prohibited a termination of parental rights based on a finding of
dependency under subsection 4(1)(c). A.F., 234 Ill. App. 3d
1010, 602 N.E.2d 480. The fact that the State could have filed
and proved up another petition for wardship is not relevant. The
State did not do so. See J.P.S., 198 Ill. App. 3d 633, 556 N.E.2d 268. Accordingly, we agree that the court lacked
authority to terminate Debbie's parental rights with respect to
C.B., and this cause must be remanded for further proceedings.
See A.F., 234 Ill. App. 3d 1010, 602 N.E.2d 480; J.P.S., 198 Ill.
App. 3d 633, 556 N.E.2d 268.
2. Sufficiency of Evidence of Unfitness
Debbie next contends that the State's evidence of unfitness
was not clear and convincing. We do not agree.
A trial court's finding of parental unfitness is entitled to
great deference since the court has the opportunity to view and
evaluate the testimony of the witnesses. In re Henry, 175 Ill.
App. 3d 778, 530 N.E.2d 571 (1988). On review, the court's
decision may not be disturbed unless it is contrary to the
manifest weight of the evidence. In re Allen, 172 Ill. App. 3d
950, 527 N.E.2d 647 (1988).
A parent may be found unfit pursuant to section 1(D)(m) for
failure "to make reasonable efforts to correct the conditions
which were the basis for removal of the child from [the] parent,
or to make reasonable progress toward the return of the child
within 12 months after an adjudication of neglected minor, abused
minor or dependent minor." 750 ILCS 50/1(D)(m) (West 1994). The
finding of unfitness may be sustained on the basis of either
failed efforts or failed progress, even if the evidence is
insufficient to support the State's other allegations. In re
J.A.S., 255 Ill. App. 3d 822, 627 N.E.2d 770 (1994). Whether a
parent's progress is reasonable involves an objective judgment
based on progress measured from conditions existing at the time
custody was taken from the parent. Allen, 172 Ill. App. 3d 950,
527 N.E.2d 647. The entire period of the court's wardship should
be considered in measuring the parent's progress. In re R.S.,
174 Ill. App. 3d 132, 528 N.E.2d 25 (1988). At a minimum,
reasonable progress requires some measurable or demonstrable
movement toward the goal of reunification. Allen, 172 Ill. App.
3d 950, 527 N.E.2d 647.
In this case, the court found Debbie unfit under both parts
of subsection 1(D)(m). The record amply supports the court's
finding that Debbie made no measurable progress toward the return
of her children during the 2«-year period that they were in
continuous foster care prior to the unfitness hearing.
Y.B., T.M., J.M. and S.P. were adjudicated dependent in 1992
because Debbie was unable to care for them. 705 ILCS 405/2--
4(1)(a) (West 1994). Although inadequate housing was an
immediate concern, Debbie's chemical dependency was recognized as
an underlying problem as early as April of 1993, when DCFS first
recommended a substance abuse evaluation. Debbie was aware of
her alcohol addiction and the fact that her failure to complete
treatment precluded her from regaining custody of her children.
Nonetheless, she never maintained sobriety sufficient to complete
a treatment program. Nor did she obtain stable housing
appropriate for the children.
During the time her children remained in foster care, Debbie
occasionally submitted to chemical dependency treatment and
sometimes found appropriate housing. However, she demonstrated
absolutely no commitment to either task. At the start of the
unfitness hearing, Debbie had been sober for only one month and
had no permanent address. We note that she relapsed before the
hearing was completed. Thus, while she may be commended for
honesty in reporting drinking relapses right up to the best
interest hearing, the evidence overwhelmingly established that
Debbie has made no measurable progress toward the goal of
reunification with her children. Accordingly, we affirm the
trial court's finding of unfitness on this ground without
addressing the State's alternate ground of failure to make
reasonable efforts. See In re D.L.W., 226 Ill. App. 3d 805, 589 N.E.2d 970 (1992).
3. Sufficiency of Evidence of Children's Best Interests
Debbie also contends that the State did not prove by clear
and convincing evidence that it was in the children's best
interests to terminate her parental rights. Again, we disagree.
Initially, this court has recently determined that the State
is not required to prove its case by clear and convincing
evidence at the best interest stage. See In re V.O., No. 3--96--
0117 (Ill. App. ___ , 1996). Instead, once a parent has been
found unfit by clear and convincing evidence, the decision to
terminate parental rights rests within the sound discretion of
the trial judge. V.O., No. 3--96--0117 (Ill. App. ___, 1996).
On review, we will not overturn that decision unless it is
against the manifest weight of the evidence. In re S.O., 272
Ill. App. 3d 144, 649 N.E.2d 997 (1995).
The record establishes that all of Debbie's children have
serious emotional and behavioral problems. They require
specialized care far beyond Debbie's foreseeable ability to
provide for them. The trial court was well aware that the three
older children harbor sincere affection for their mother, but
found that any possibility of their reuniting with her was
unrealistic. The record supports the court's conclusion that it
was in the children's best interests to sever their relationship
with Debbie and allow them to move on with their lives without
further false hopes. Accordingly, we affirm the trial court's
decision to terminate Debbie's parental rights with respect to
Y.B., T.M., J.M. and S.P.
CONCLUSION
The judgment of the circuit court of Peoria County
terminating Debbie's parental rights is reversed with respect to
C.B. and affirmed in all other respects.
Affirmed in part; reversed in part and remanded.
MICHELA and McCUSKEY, JJ., concurred.