2020 IL App (4th) 190602-U
Ill. App. Ct.2020Background
- Justin W. (respondent) is the biological father of K.W., born March 20, 2013; K.W. was taken into DCFS custody five days after birth and placed with Melissa and Jeremy H. (long‑term foster parents/intervenors).
- Prior to K.W.’s birth, respondent and K.W.’s mother had parental rights to other children terminated; K.W. was adjudicated neglected/abused and placed in DCFS custody.
- The trial court originally terminated respondent’s parental rights in 2015, but this court reversed that termination in 2016; respondent thereafter completed services and visitation increased, including extended overnight visits.
- By 2019 K.W. (about 6½) had lived with the foster family since infancy, was bonded to them and his foster siblings, and also had a developing bond with respondent.
- A three‑day hearing was held on respondent’s 2018 motion to restore custody; the court found respondent ‘‘not unfit’’ (i.e., effectively fit) but denied the restoration motion on best‑interest grounds, adopting expert Dr. Patel’s opinion that removing K.W. from the only family he had known would cause significant, possibly irreparable trauma; the court set private guardianship as the permanency goal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 2‑28 allows continuation of third‑party custody when a parent is fit | Justin: a fit parent’s right to custody cannot be overridden by a best‑interest test on a restore‑custody motion | State/Intervenors: section 2‑28 requires both a finding of parental fitness and that restoration be in the child’s best interest | Court: apply §2‑28(4) as written — restoration requires a finding of fitness and that restoration is in the minor’s best interest; respondent’s constitutional repugnance argument rejected |
| Whether the denial of restoration was against the manifest weight of the evidence | Justin: trial court erred — relied improperly on foster bond (citing S.J.) and evidence did not support denying restoration | State/Intervenors: best‑interest finding supported by duration of placement, sibling ties, expert testimony re: trauma, and overall facts | Court: affirmed — best‑interest finding not against manifest weight given long placement since infancy, bonding with siblings/foster parents, and expert opinion about substantial trauma from removal |
Key Cases Cited
- In re M.M., 72 N.E.3d 260 (Ill. 2016) (Illinois Supreme Court: parental fitness must be found before placing a child with a third party; best‑interest standard cannot alone displace fit parent's custodial right)
- In re S.J., 859 N.E.2d 281 (Ill. App. Ct. 2006) (appellate court criticized denying return solely based on child’s bond with foster parent)
- In re C.H., 97 N.E.3d 540 (Ill. App. Ct. 2017) (discussion that a parent is either fit or unfit; cited for characterization of fitness findings)
- In re Parentage of J.W., 990 N.E.2d 698 (Ill. 2013) (standard for reviewing whether a trial court’s factual finding is against the manifest weight of the evidence)