In re A.J.

May 27, 1998

No. 2--97--1038
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

________________________________________________________________

In re A.J., a Minor ) Appeal from the Circuit Court
) of Lake County.
)
) No. 97--JA--55
)
(The People of the State of )
Illinois, Petitioner-Appellee, ) Honorable
v. R.V., Respondent- ) David M. Hall,
Appellant). ) Judge, Presiding.
_________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:
Respondent, R.V., appeals the judgment of the circuit court of
Lake County finding him an unfit parent and terminating his
parental rights to his minor daughter, A.J. Respondent contends
that (1) the court s finding that respondent failed to maintain a
reasonable degree of interest, concern, or responsibility for the
minor s welfare was against the manifest weight of the evidence;
(2) the trial court s finding that respondent failed to make
reasonable progress toward the return of the minor was against the
manifest weight of the evidence; (3) the court erred in admitting
and considering hearsay; and (4) the court erred in finding that it
was in the minor s best interest that respondent s parental rights
be terminated.
A.J. was born on February 29, 1992, with cocaine in her
system. The court adjudicated the minor neglected on May 7, 1992.
Respondent acknowledged paternity of A.J. on December 10, 1992.
On February 20, 1997, the State filed a petition to terminate
respondent s parental rights, alleging that respondent was an unfit
parent. During a two-day bench trial, the State s only witness was
Terri Cummings, a caseworker from Central Baptist Family Services
(CBFS), who testified regarding the various client service plans
developed for respondent.
Cummings testified that, because respondent had not
acknowledged paternity, the first case plan involved only the
minor s mother, T.J., who is not a party to this appeal. The first
case plan specifically involving respondent was prepared in January
1993. It called for respondent to obtain adequate housing, obtain
a mental health assessment, obtain a drug and alcohol evaluation
and follow its recommendations, submit to random urine tests,
complete parenting classes, provide proof of income sufficient to
support himself and the minor, and cooperate with caseworkers from
CBFS and the Department of Children and Family Services (DCFS).
When that plan was evaluated in July 1993, respondent received
an overall unsatisfactory rating. However, he received satisfact-
ory ratings with regard to five of the seven specific tasks
outlined in the plan, including obtaining a drug and alcohol
assessment and following the recommendations, completing parenting
classes, and showing proof of income. However, respondent had not
completed a home study to determine whether his housing situation
was adequate and had not received a mental health assessment.
Respondent s visitations were rated satisfactory. The report
appears to contain a satisfactory rating for submitting to random
urine screens. However, the remarks at the bottom of the page
state that drug screening was canceled because respondent was
unavailable.
The minor s mother received a satisfactory rating, although
she had not been heard from since June 25, 1993, and had not
returned to drug treatment. Cummings testified that she was not
the caseworker assigned to the case at that time.
Cummings testified that she prepared a court report in October
1993. At that time, respondent was not working on the assigned
tasks and had not provided a drug test. Respondent told Cummings
that he did not return from work until 5 p.m., at which time the
agency that was to perform the tests was closed. Cummings said
that there were not a lot of other options for drug testing at
that time. Cummings characterized respondent as uncooperative in
providing urine screens between 1992 and mid-1996.
In another court report dated December 1993, Cummings stated
that respondent had not been able to accomplish any of the assigned
tasks. However, in the evaluation of the case plan on January 21,
1994, respondent s overall progress was rated satisfactory.
Respondent was rated unsatisfactory for failing to submit to random
urine screens, show proof of income, and obtain a psychological
evaluation.
Respondent reported that he did not have an ongoing
relationship with the minor s mother. At that time, T.J. had not
been in contact with the caseworkers for more than a year. The
goal of the service plan was the return of the child to respondent.
Despite his denials, respondent was referred to Al-Anon based
on the belief that he had an ongoing relationship with T.J.
According to Cummings, it was important for respondent to address
issues surrounding being in a relationship with a substance
abuser.
Cummings prepared another court report on April 4, 1994. At
that time, respondent had not been maintaining consistent contact
with her. He had not obtained a psychological evaluation or been
given a drug test. Cummings had asked respondent to call her on a
day he was not working to see if a screen could be arranged for
that day. Respondent did not call. Respondent did not provide
proof of income or verify his attendance at Al-Anon meetings.
The minor was then living with a foster family. Respondent
told Cummings that he saw A.J. every day, but the foster mother
said this was not true. Respondent said that things between him
and T.J. were so so, but said that, if the child were returned to
him, he would terminate his relationship with T.J.
On June 2, 1994, Cummings prepared another court report. By
then, respondent had completed a parenting class but was not
complying with random drug testing.
Cummings testified that respondent did have a drug screen on
April 17, 1994, and that he tested positive for cocaine.
Respondent objected on the basis of hearsay. The trial court
stated that the evidence was inadmissible to prove the allegation
in the State s petition that respondent was unfit by virtue of
being a habitual drug user. The court further stated:
The Court can weigh that evidence. It would not be
treated as evidence that the drug screen was actually proven
to be a positive drug screen or that it positively showed the
presence of cannabis or cocaine. But to the extent that the
workers testify as to the ACRs, the goals, and the work
towards return home of the child, they may testify as to the
information that they received and their conclusions from
that.
Over objection, Cummings testified that respondent had another
positive drug test on May 9 and canceled another on May 18. At
that time, the recommended permanency goal was to return the child
to respondent. At a court hearing on June 9, 1994, the court found
that the plan and goal had not been achieved and that DCFS had
abused its discretion in setting the goal of returning the minor to
her parents. The court further found that to return home was not
in the minor s best interests and ordered DCFS to reconsider its
permanency goal.
Cummings and DCFS caseworker Ann Wells conducted a case review
on July 25, 1994. At that time, the goal was still to return the
child home. Respondent s overall progress was rated satisfactory
although he had failed to submit to random urine screens or attend
Al-Anon meetings. The handwritten comments show that respondent
obtained a psychological evaluation and provided CBFS with the
report. He submitted to two drug screens while reporting that his
work schedule hindered his ability to submit to more tests.
Respondent completed a parenting class and attended one Al-Anon
meeting, although the plan called for weekly attendance. The
report concludes, [Respondent] has been cooperative on most
recommendations with the exception of urine screens and Al-Anon.
Respondent was given numerous tasks to perform for the ensuing
six-month period, including continuing to submit to random urine
drops and attend Al-Anon meetings. Apparently T.J. had resurfaced
and respondent and T.J. were directed to assess their
relationship; if they decide to remain a couple[,] they will become
involved in couples counseling.
During August 1994, respondent missed approximately three drug
tests. Apparently, at a September 1994 court hearing, the judge
again requested that DCFS consider abating its plan to have the
minor returned home and ordered the agency to seek preadoptive
placement of the minor.
Another court hearing was set for November 10, 1994. Since
the previous hearing, respondent had completed three drug screens.
Over objection, Cummings stated that two came back negative and one
was positive. Respondent missed another scheduled test on October
31. He later stated that he had gone home and gone right to sleep.
During this time, respondent maintained that he was not
involved in a relationship with T.J. Over respondent s hearsay
objection, Cummings was permitted to testify that respondent s
mother had said that they were seeing each other and talking on
the phone.
When a case review was conducted on December 16, 1994, the
goal had been changed to long-term foster care. The report states
that at the September 15 hearing, the Judge stated she didn t feel
it was feasable [sic] to have a return home goal. The Department
would like to continue working with [respondent] as a return home
option but realizes he has his issues to work on.
Respondent was rated unsatisfactory on the tasks of assessing
his relationship with the minor s mother and attending couples
counseling. Typewritten remarks state that respondent denied hav-
ing a relationship with T.J. and felt that Al-Anon and relationship
counseling were unnecessary. However, there have been conflicting
reports from respondent s mother that at times she has seen
[T.J.] with respondent.
Respondent was also rated unsatisfactory for being available
for random drug tests and attending Al-Anon meetings. The
typewritten remarks at the bottom of this page state, [Respondent]
has made himself available for random urine screens. Not all of
[respondent s] urine screens have been negative and thus [A.J.] was
unable to be returned to his custody.
Respondent was rated satisfactory on all other tasks. The
report notes that he had been maintaining contact with the CBFS
worker, had attended all meetings and court dates, and had been
working full time at Motorola.
In a progress report prepared near the end of 1994, Cummings
stated that respondent was complying with most tasks except for
drug screening and Al-Anon meetings. The agency was still pursuing
a goal of returning the minor to his care.
Cummings testified regarding respondent s failure to obtain
drug tests during March and April 1995. At that time, she felt he
was not cooperating with the service plans and that visitations
were not consistent. At a hearing on April 13, the court found
it was in the minor s best interest that the permanency goal remain
long-term foster care.
Respondent appeared at that hearing with cuts on his face.
Cummings testified, over objection, that she had heard that T.J.
had cut respondent during a fight and was then in the county jail
as a result of that incident. A court report dated July 6, 1995,
stated that respondent had had some negative urine screens.
The July 1995 case review rated respondent unsatisfactory for
all tasks except attending meetings and court hearings related to
his daughter and providing proof of income. The comments note that
he had submitted to some drug screens but at other times was
unavailable. Respondent s visitations were rated satisfactory.
In the case review of January 22, 1996, the goal had been
changed back to returning the minor to respondent. Respondent was
being allowed unsupervised visits with A.J. In this review, the
tasks of respondent s assessing his relationship with T.J. and
attending couples counseling were discontinued. The comments
state, [Respondent] and [T.J.] have not been involved as a
couple. Respondent is rated satisfactory in all other areas. The
report states:
[Respondent] has been available for random urine screens
as requested. [Respondent] has supplied verification of
attendence [sic] at [Narcotics Anonymous] meetings.
[Respondent] has not tested positive for any substances.
* * *
[Respondent] has been maintaining contact with CBFS
worker. [Respondent] has attended all meetings regarding
[A.J.] [Respondent] has attended all court hearings and is
cooperating with court orders. [Respondent] has not reported
any status changes.
The report further states that respondent had been attending
weekly, unsupervised visitations with A.J. Visitations lasted five
hours except Christmas Eve, which was eight hours.
Cummings prepared a report for an April 30, 1996, court
hearing. She stated that respondent failed to provide a urine drop
on April 8. Respondent told her that he missed the appointment
because he had to work late. However, he later stated that he had
gone to a domestic violence class that night. According to
Cummings, respondent missed another drug test on May 13.
At the State s request, the court took judicial notice that on
June 13, 1996, the court ordered respondent s visitation with the
minor suspended until he participated in an outpatient treatment
program and remanded him to the Lake County jail for 28 days.
A July 9, 1996, case review rated respondent s progress
unsatisfactory. The report states:
[Respondent] continues to state that he is not involved
in a relationship with [T.J.] and thus does not need to be
involved in couples counseling, however, there have been
allegations made that the two continue to see each [sic] (i.e.
[A.J.] stating that [respondent] took her to see her mother,).
* * *
[Respondent] failed to submit to a random urine screen on
4/8/96, [respondent] did submit to other urine screens.
[Respondent] again tested positive and thus was court ordered
to become involved in out patient substance abuse treatment.
[Respondent] has not provided verification as to his receiving
substance abuse treatment.
* * *
[Respondent] has been maintaining contact with CBFS
worker. [Respondent] has not been maintaining contact with
foster parents and thus is not fully aware of [A.J. s]
behaviors and feelings regarding the increased visitation.
[Respondent] has been attending meetings regarding [A.J.].
[Respondent] has been attending court hearings, however, has
not been complying with all court orders. [Respondent] has not
notified CBFS of any changes in his status. [Respondent] has
not provided recent income verification. [Respondent] is
living with his parents and it is unknown if [A.J.] would be
allowed to live there as well.
Cummings testified that in July 1996 the goal was changed back
to long-term foster care. She stated that she ceased being the
caseworker on the case after the July case review. On February 20,
1997, the State filed its petition to terminate respondent s
parental rights.
At the close of the State s case, the trial court granted
respondent s motion for a directed finding on several counts of the
petition, including those alleging that respondent was habitually
addicted to drugs and that he failed, for a period of 12 months, to
communicate with the child or with the agency.
Respondent testified that he learned the child was his shortly
after her birth. He initially denied that the child was his but
later accepted his responsibility. He testified that he had not
used illegal drugs for more than seven years. He specifically
denied ingesting any cocaine from the time the case started to the
time of trial. When asked why he failed to submit to random drug
tests, he answered:
Most of it was working late. Other times, missed the
messages, stubborness also. I was thinking that why do I have to
go through this. Most of the time I was just pigheaded; just
didn t want to go through it.
Respondent denied that he had a physical or dating
relationship with the child s mother. He testified that they
sometimes met or called for a brief moment.
The incident that resulted in T.J. being charged with
aggravated battery started as a random visit to T.J. s sister s
house. It began as a friendly conversation and ended with
respondent being cut with a razor blade. Although he did not feel
it was necessary, respondent attended domestic violence counseling.
Respondent had attended Narcotics Anonymous or Alcoholics
Anonymous meetings from 1995 until the time of trial. Since July
1996, he had been going two to three times per week.
Respondent worked at Motorola from 1991 until he was laid off
in 1995. He later worked for a temporary employment agency. He
often worked 10 hours per day Monday through Friday, and six hours
per day on Saturday and Sunday.
The trial court found that respondent failed to maintain a
reasonable degree of interest, concern, or responsibility for the
minor s welfare and failed to make reasonable progress toward the
goal of the return of the minor. After a separate hearing, the
court determined that the minor s best interests would be served by
terminating respondent s parental rights. The court denied
respondent s posttrial motions and this timely appeal followed.
Respondent first contends that the court s finding that he
failed to maintain a reasonable degree of interest, concern, or
responsibility for the minor s welfare is against the manifest
weight of the evidence. Because the termination of parental rights
is an extraordinarily serious matter, the State must prove
unfitness by clear and convincing evidence. In re S.J., 233 Ill.
App. 3d 88, 113 (1992). A trial court s finding of unfitness will
not be reversed on appeal unless it is against the manifest weight
of the evidence. In re V.O., 284 Ill. App. 3d 686, 690 (1996).
The trial court did not explain its finding that respondent
failed to maintain a reasonable degree of interest, concern, and
responsibility for the minor s welfare except to state that
respondent had demonstrated some interest, varying degrees at
varying times, some concern, relatively little responsibility
towards the minor, some visitation, following some of the orders,
not others.
These findings are, quite simply, not supported by the record.
Except for one case review, occurring near the middle of the case,
respondent always received satisfactory ratings for visitation. In
1996, he was having weekly, five-hour, unsupervised visitations
with the minor until the trial court suspended visitation.
Cummings testified that the visits had been going well before they
were suspended. We cannot agree that this record can be dismissed
as engaging in some visitation and that it fails to demonstrate
a reasonable degree of interest in the minor s welfare.
Respondent generally received satisfactory ratings in the
other areas that could be considered as most directly reflecting
his interest, concern, and responsibility for the minor. He
completed a parenting class. Except for one or two hearings prior
to acknowledging paternity, respondent attended all court
proceedings and administrative meetings relating to his daughter.
Prior to the July 1996 case review, respondent had been
consistently providing income verification and had received
satisfactory ratings for obtaining housing.
The July 1996 case review rated respondent unsatisfactory for
these tasks, noting that he had not provided a recent income
verification. However, there is no evidence of a substantive
change in his circumstances during this time. The only comment
relative to his housing situation is that it was unclear whether
A.J. would be allowed to live at his parents house. However,
there is no indication that she would not be able to, and because
the State bears the burden of proving respondent an unfit parent,
we cannot find that these isolated observations support the trial
court s finding.
Moreover, we cannot accept the court s apparent rationale that
any failure to comply with court orders or agency directives
necessarily demonstrates a lack of interest or concern for the
minor. We disapproved of this type of bootstrapping in In re
S.J., 233 Ill. App. at 120. As discussed more fully below,
compliance with agency service plans is intended to be a means to
an end, not an end in itself. S.J., 233 Ill. App. 3d at 120. The
statute includes a number of specific acts or conditions that may
form the basis of a finding of parental unfitness. The State must
prove conduct or conditions falling within one of these statutorily
defined areas. To hold that the failure to comply with any agency
directive constitutes evidence of a lack of interest or concern,
and thus unfitness, would give the agency virtually unlimited
discretion to terminate a party s parental rights for reasons
unrelated to his or her fitness as a parent. The State failed to
prove by clear and convincing evidence that respondent failed to
maintain a reasonable degree of interest, concern, or
responsibility for the minor s welfare.
This does not end our inquiry, however. The court also found
respondent unfit on a second basis, failing to make reasonable
progress toward the return of the minor. Respondent contests this
finding as well. Because each statutory basis is an independent
ground for a finding of unfitness, we must consider whether the
evidence supports a finding of unfitness on this ground.
Respondent also objects to the use of hearsay in support of
the allegations of the petition. Because these latter two issues
are inherently interrelated, we consider them together.
Reasonable progress involves an objective judgment based
upon progress measured from the conditions in existence when the
minor was removed from the parents custody and requires
demonstrable movement toward the goal of reunification. In re
L.N., 278 Ill. App. 3d 46, 50 (1996); In re S.G., 216 Ill. App. 3d
668, 669-70 (1991). Thus, evidence of the precise conditions at
the time of the neglect adjudication is not essential to the
determination of whether a parent has made reasonable progress.
S.J., 233 Ill. App. 3d at 119, citing In re L.L.S., 218 Ill. App.
3d 444, 463-64 (1991). The crucial consideration is the actual
progress made. Nevertheless, even in this context, DCFS service
plans ought to be directed to the parental deficiencies that led to
the removal of the child. S.J., 233 Ill. App. 3d at 120.
By definition, progress requires movement from some point to
some other point. In other words, there must be a yardstick by
which progress can be measured. While the yardstick need not
necessarily be the condition which caused the child s removal in
the first place, it must, as we held in S.J., bear some
relationship to a parental shortcoming that would inhibit the
return of the child to the parent. S.J., 233 Ill. App. 3d at 120.
The overarching difficulty with this case is that there has been no
clear indication of what that parental shortcoming was or is.
The basis for the neglect proceeding was that the child was
born with cocaine in her system. This clearly reflects drug usage
by the mother, but not necessarily by the father. In finding
respondent unfit, the trial court referred to his failure to
cooperate in drug testing and attending Al Anon meetings and
couples counseling. The State repeatedly emphasizes these facts in
its brief. The missing ingredient is competent evidence that these
tasks were necessary to facilitate respondent s ability to be a
parent to his daughter.
As the State appears to concede, the caseworkers apparently
assumed that because the child s mother was a drug user respondent
was too. Certainly, the goal of providing a drug-free environment
for the minor is laudable. Furthermore, such assumptions may be
acceptable, and even necessary, in developing a service plan.
However, they cannot substitute for admissible evidence at a trial
on the issue of parental fitness.
The only competent evidence in the record relating to
respondent s drug usage was his own testimony that he had not used
cocaine or marijuana for more than seven years, a time well before
the minor s birth. Obviously, such testimony is self-serving and
could properly be viewed with skepticism if there were any viable
alternative. However, none of the properly admitted evidence
establishes that respondent had a drug problem that would endanger
the minor s welfare.
Early on in the case, respondent was directed to have a drug
and alcohol evaluation and follow its recommendations. He was
given a satisfactory rating for having done so. The results of the
evaluation are not in the record. However, it is interesting to
note that he was not referred for inpatient or outpatient drug
treatment at that time. At some point while the case was open,
respondent was directed to attend Narcotics Anonymous meetings and
he did so with some regularity. This is not necessarily
inconsistent with his testimony (by negative implication) that he
had used drugs some years before. It was not until July 1996, four
years after the case was opened, that respondent was ordered to
undergo outpatient drug treatment. It is also noteworthy that the
trial court entered a directed finding for respondent on the
allegation that he was a habitual drug user. Respondent testified
that he was stubborn about undergoing drug testing because he did
not feel it was necessary.
Cummings did testify that approximately three of respondent s
drug tests came back positive. However, respondent objected to
this evidence on hearsay grounds. The trial court understood the
hearsay problem and stated that it would not consider that evidence
for the truth of the matter asserted. Thus, there was no evidence
the trial court could properly consider that respondent had a
problem with using illegal drugs while this case was open.
A similar situation obtains with regard to the requirements
that respondent attend Al-Anon and couples counseling. (While it
is not identified in the record, we take judicial notice that Al-
Anon is a support group for spouses, families, and friends of
alcohol and drug abusers.) Cummings testified that these programs
were necessary if respondent were having a relationship with T.J.,
an admitted drug abuser. However, with one arguable exception,
respondent denied at all times that he was having such a
relationship, and no competent evidence in the record contradicts
this assertion.
Cummings based her conclusion that respondent was having a
relationship with T.J. on various reports she received from third
parties, including statements from respondent s mother that she had
seen them together and talking on the phone, statements from the
minor that respondent had taken her to see her mother, and
statements from T.J. herself that she had battered respondent on
one occasion.
We note that, even if true, these statements would not
necessarily establish an ongoing relationship. They are entirely
consistent with respondent s testimony that he had occasional
social contact with T.J. but that they were not dating. More
importantly, however, these statements were hearsay. The trial
court recognized this and stated that it would not consider them
for the truth of the matter asserted.
We are left, then, with an order terminating respondent s
parental rights to his daughter because he failed to follow agency
recommendations which were not proved to be related to any parental
shortcoming of respondent. This court extensively discussed the
relationship between service plan tasks and defective parenting
skills in In re S.J. Because that discussion is equally relevant
to this case, we quote it at some length. We said:
[C]ompliance with DCFS service plans is a means to a
desired end, not the end in itself; thus, although we have
held that the conditions imposed upon a parent whose child has
been adjudicated neglected need not relate to the specific
facts that led to the neglect adjudication [citation], even
L.L.S. states that DCFS service plans ought to be directed,
primarily at least, at the parental deficiencies that led to
the initial removal of the child. L.L.S., 218 Ill. App. 3d at
465-66. A parent might succeed at reaching a goal envisioned
by DCFS without following DCFS specific directives. In this
case, for instance, the weight of the evidence at the hearing
was that [respondent mother] early succeeded in ceasing her
use of cocaine even though she was discharged from her initial
therapy, did not obtain inpatient treatment as recommended,
and enrolled in a program not recommended by her original
counselor. To hold that her failure to comply with the
specifics of the service plans in this regard is probative of
her lack of reasonable progress would unfairly and
irrationally elevate administrative means over statutory ends.
Second, to place undue emphasis on compliance with
service plans would raise the danger of a form of
'bootstrapping' under which a parent could lose her rights to
her children because she failed to do things that were not
necessarily related to her previously established shortcomings
as a parent. S.J., 233 Ill. App. 3d at 120.
This case presents the type of bootstrapping of which S.J.
disapproved. The State utterly failed to establish--at least by
competent evidence--that respondent had a drug problem that
hindered his ability to raise his child or that he was having a
destructive relationship with the child s mother that required him
to undergo counseling. The only reason for terminating
respondent s parental rights was his failure to comply with
administrative directives that had nothing to do with his ability
as a parent.
The State does not, and cannot, argue that merely undergoing
drug testing necessarily makes one a better parent. The statute
imposes no such requirement. Similarly, requiring a bachelor who
is not involved in an ongoing relationship to undergo counseling
designed for couples with substance abuse problems is absurd.
The only basis for requiring respondent to complete these
tasks was hearsay information that respondent had had positive drug
tests and was maintaining a relationship with T.J. Hearsay is an
out-of-court statement offered to prove the truth of the matter
asserted. People v. Levario, No. 2--96--0911, slip op. at 2 (2d
Dist. March 19, 1998). Unless hearsay falls within a recognized
exception, it is inadmissible. Levario, slip op. at 2.
The trial court stated that it was not considering the hearsay
for the truth of the matter asserted but would permit the
caseworkers to testify as to the information that they received
and their conclusions from that. As detailed above, however,
without accepting the hearsay for the truth of the matter asserted,
there is absolutely no basis for concluding that the tasks required
in the service plans were necessary or appropriate. Respondent may
not be found unfit merely because he failed to follow the specific
directives of a service plan unless the State can establish that
those directives relate to some perceived shortcoming. Here, the
State made the requisite showing, if at all, through inadmissible
hearsay.
This case demonstrates clearly why hearsay is inadmissible.
The source of the information regarding respondent s drug tests is
unknown. We do not know whether Cummings received reports directly
from the laboratory conducting the tests or merely heard from
someone else--perhaps someone with a motive to lie--that respondent
had failed a drug test. No information is available about the
procedures used in testing, the substances involved, or the amounts
in question. Respondent was unable to cross-examine witnesses
about the testing procedures.
Similarly, Cummings required respondent to undergo
relationship counseling on the basis of hearsay statements that he
was dating the child s mother. As noted, all the statements cited
by Cummings are inherently ambiguous, subject to more than one
interpretation. In no way could respondent cross-examine the
sources of these statements to determine precisely what they saw
and whether they accurately reported it.
The State does not respond directly to respondent s argument
that the court relied on improper hearsay. The State instead
suggests, under the guise of responding to the hearsay argument,
that respondent has failed to raise even a scintilla of evidence
as to why he is a fit person to be a parent. Of course, the State
has the burden to prove that respondent is an unfit parent. S.J.,
233 Ill. App. 3d at 113. The State may not excuse its failure to
present admissible evidence by shifting the blame to respondent.
The State also suggests that any error was harmless,
contending that the properly admitted evidence established
respondent s unfitness. However, in recounting the proper
evidence, the State repeatedly refers to the fact that respondent
failed drug tests--precisely the evidence to which respondent
objects. It is disingenuous at best to argue that the error in
admitting evidence is harmless because the erroneously admitted
evidence proves the proposition for which it was introduced.
Parenthetically, we note that, even if the evidence of
positive drug tests is taken at face value, this would not
necessarily establish respondent s unfitness. In S.J., we rejected
the notion that evidence of sporadic drug use conclusively rendered
a parent unfit, stating:
To uphold the trial court s finding of no 'reasonable
efforts would effectively allow the court to terminate [the
mother s] parental rights because she had smoked marijuana
after the birth of her child. We recognize that marijuana is
a controlled substance and do not intend to condone its
possession or use. However, we do not believe that [the
mother s] conduct relating to the use or possession of
marijuana in the case before us should suffice as a basis for
judicial action as sweeping and devastating as the termination
of a parent s rights in her child. In any event, the statute
cannot fairly be read to allow such a result, at least under
the facts of this case. S.J., 233 Ill. App. 3d at 118.
In S.J., as in this case, the minor was born with cocaine in
her system. Unlike in this case, the respondent was the mother, an
admitted drug user. Nevertheless, isolated incidents of drug use
(proved by competent--or at least unobjected to--evidence) were an
insufficient basis, without more, to terminate respondent s
parental rights.
We emphasize that cocaine and marijuana are illegal drugs.
Criminal statutes provide penalties for their use, but these do not
include the loss of one s child. In this case, the trial court
rejected the State s allegation that respondent was a habitual drug
user. In light of the circumstances of A.J. s birth, we do not
denigrate the importance of the goal of providing a relatively
drug-free environment for her. We hold only that the State failed
to prove that respondent was failing to do this.
The cases the State cites in support of its contention that
the evidence was sufficient are readily distinguishable. All
involve conduct far more egregious than that established here.
Because of our resolution of this case, it is unnecessary to
consider respondent s final contention.
The judgment of the circuit court of Lake County is reversed.
Reversed.
RATHJE and HUTCHINSON, JJ., concur.