In re S.J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Mark Roemer, Respondent-Appellant). — In re S.J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kim Slater, Respondent-Appellant).
Nos. 4-06-0562, 4-06-0596 cons.
Fourth District
November 30, 2006
December 28, 2006
368 Ill. App. 3d 749
III. CONCLUSION
For the aforementioned reasons, Cundiff‘s ineffective-assistance claim fails. We affirm the trial court‘s judgment.
Affirmed.
TURNER, P.J., and APPLETON, J., concur.
Sherman J. Brown, of Sherman J. Brown Law Offices, P.C., of Champaign, for appellant Kim Slater.
Julia Rietz, State‘s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE COOK delivered the opinion of the court:
On August 30, 2005, the Champaign County trial court entered an order placing сustody and guardianship of S.J. (born January 30, 2003) with his foster mother, Debra Faulkner. Respondents, Kim Slater, formerly known as Kim Johnson-Slater, and Mark Roemer, are S.J.‘s biological parents, and each appealed the trial court‘s order. On appeal, we reversed and remanded, ordering that the trial court comply with
The facts and procedural history of this case are fully set forth in our previous opinion (In re S.J., 364 Ill. App. 3d 432, 846 N.E.2d 633 (2006)) and will only be repeated as needed to resolve the issues presented in this appeal.
At the time of the trial court‘s August 30, 2005, order, S.J., who was then 2 1/2 years old, was living with his foster mother, Faulkner, whom he had been living with since he was 6 days old. S.J. had been removed from his biological mother, Kim, because he was neglected in that Kim continued to reside with her third husband, who had sexually molested Kim‘s daughters. Roemer, S.J.‘s biological father and Kim‘s first husband, had been indicated for sexually molesting his stepdaughter and daughters. On January 11, 2005, the trial court set a permanency goal of returning S.J. home to Kim within five months as she had made reasonable efforts and progress. A month later, Faulkner filed a motion to intervene, which was granted. The court also granted Faulkner‘s motion for a bonding assessment.
Dr. Judy Osgood completed a bonding assessment and concluded that S.J. had a strong bond with Faulkner and a lesser bond with Kim. Dr. Osgood concluded that S.J. should remain with Faulkner as removing him could cause him to develop reactive-attachment disorder and posttraumatic stress disorder. Dr. Osgood recommended, though, that S.J. continue to have visits with his biological family. The trial court held a permanency hearing in which it heard a great deal of testimony and evidence. On August 30, 2005, the court concluded that it was in S.J.‘s best interest that his custody and guardianship be permanently transferred to Faulkner with continued visitation with his biological family as recommended by Dr. Osgood. Kim and Roemer appealed this decision.
Pending the outcome of this court‘s decision, the trial court held a hearing on November 7, 2005, regarding the guardianship of three of S.J.‘s half siblings. The attorney for the half siblings requested that guardianship be returned to the Department of Children and Family Services (DCFS), as issues needed to be addressed that had arisen upon the children‘s return home and because the children needed to have their own individual counselor, not the same one Kim had. None of the parties objected to the request, as a change in guardianship allowed DCFS to provide and pay for necessary services. Guardianship was eventually switched to Kim.
At a hearing on January 23, 2006, Dr. Osgood, the author of the bonding assеssment, submitted a letter to the trial court along with the foster-parent report. The letter suggested that visitation between Kim and S.J. be more limited and supervised. S.J.‘s attorney requested
On February 9, 2006, the trial court held a review hearing. At the hearing, Roemer testified that Faulkner refused him a regularly scheduled visit with S.J. because Rоemer had attended S.J.‘s birthday party during Kim‘s court-ordered visitation. Dr. Osgood testified about her recommendation that S.J.‘s visits with his biological parents be reduced and supervised. Dr. Osgood reported that since Osgood last testified, Faulkner had called her and come into her office on various occasions with concerns about S.J.‘s behavior after the visits with his biological parents. Aside from Faulkner‘s visits to her office, Dr. Osgood also went to Faulkner‘s home once to observe Faulkner and S.J. Dr. Osgood opined that the difficulties Faulkner reported S.J. having were consistent with the concerns expressed in her previous testimony. While Faulkner was the primary source of information concerning S.J.‘s problems, Dr. Osgood also spoke with Dashon Jones, S.J.‘s daycare worker, who also reported S.J. having problems after visits with his biological parents. Dr. Osgood admitted that other things such as changes in S.J.‘s routine could also be the cause of S.J.‘s apparent stress. Dr. Osgood also discussed the possibility of an independent third party observing S.J. and all of the parties.
On February 14, 2006, the trial court resumed the review hearing. Kim‘s attorney submitted stipulated evidence that a birthday party for S.J. had gone well. In arguments to the court, Faulkner‘s attorney argued that as Faulkner was the custodian and guardian, she should be the one determining the time and length of the visits between S.J. and anyone else. The other parties argued thаt visits should not be reduced and an independent person should observe S.J.‘s interactions with the parties. The court continued S.J.‘s case to a status hearing.
At the status hearing, the trial court indicated that a University of Illinois student observer had been located to observe S.J. and the parties. Arrangements for the observations were discussed.
This court‘s opinion in the first appeal was issued in March 2006 with our mandate scheduled to issue on April 25, 2006. In our opinion, we found that the trial court failed to set a permanency goal and failed to comply with the requirements of
On March 7, 2006, the trial court held a brief hearing concerning the logistics for the independent observer and the parties’ concerns. On May 15, 2006, the trial court held a hearing wherein the parties reported that the observer had prepared a report but not all of the parties had the opportunity to fully review it.
The trial court entered a written formal order on June 8, 2006. In the written order, the court found that reasonable efforts had been made by DCFS to achieve the permanency goal and reasonable efforts and progress had been made by Kim and Roemer. Despite the reasonable efforts and progress, the court found Kim and Roemer unable, for reasons other than financial circumstancеs alone, to care for, protect, train, and discipline S.J. and placing S.J. with either of them would jeopardize his health, safety, and best interests. The court held that S.J. must remain in DCFS care because Kim and Roemer must complete counseling and continue to maintain stable lifestyles. As to Roemer, the court found he had health issues that had not been resolved and caused him significant pain. S.J.‘s current placement with Faulkner was deemed necessary and аppropriate to the current service goal and plan. Stating that it considered the factors specified in
“[T]he respondent minor has been in the care of Ms. Faulkner continuously since the beginning of February 2003, when he was a few days old. Due to the extensive period of time that he has spent in Ms. Faulkner‘s loving care, and the stability he has received there, [S.J.] has developed a very strong bond with Ms. Faulkner and her children. *** The court has numerous concerns with both biological parents that must be addressed. First, [Kim‘s] relationship with [Roemer] remains problematic and antagonistic. They continue to argue regularly. Second, the court has concerns with respect to [Kim‘s] credibility. In particular, the court has misgivings about [Kim‘s] аbility to self-report incidents that would reflect adversely on her parenting skills. This, coupled with [S.J.‘s] young age, two years old, make him especially vulnerable, because he has limited verbal skills, and his ability to verbalize his concerns to another adult who could act on his behalf is questionable. Third, [Kim] lacks empathy, which is particularly essential in caring for a young child. Fourth, both respondent parents have violated court
orders in the past. [Roemer] violated thе De Witt County court‘s visitation order, and despite [Kim‘s] protestations, the court believes that this was done with her tacit approval. Fifth, although [Roemer] is engaged in individual counseling, and he is making progress, he ha[s] not fully addressed his issues. Sixth, he was indicated by DCFS for sexual abuse of S.J.‘s siblings *** and [Kim] has stated that [S.J.] was conceived as a result of [Roemer] raping her. Dr. Osgood has opined that [S.J.] is at great risk of developing reactive[-]attachment disorder and post[]traumatic stress disorder if he is removed from [Faulkner‘s] care and from the family he had bonded with for years. He has demonstrated symptoms consistent with Dr. Osgood‘s diagnoses following visits with [Kim and Roemer]. For the foregoing reasons, the court has eliminated the ‘return home’ goals. [ 705 ILCS 405/2—28(2)(A) ,(2)(B) (West 2004)]. While the court recognizes that respondent parent‘s [sic] parental rights remain intact, a return home would be psychologically devastating to the minor, and not in his best interest.”
The court concluded that the goals of “short-term care with a continued goal to return home pending a status hearing” (
II. ANALYSIS
Kim and Roemer both argue on appeal that the trial court abused its discretion when it ruled out return home to Kim. Kim and Roemer allege that the court‘s finding that it was in S.J.‘s best interest to transfer custody and guardianship of S.J. to Faulkner was against the manifest weight of the evidence.
Parental rights may be terminated only upon a finding of unfitness, and such finding must be supported by clear and convincing evidence. In re D.T., 212 Ill. 2d 347, 352-53, 818 N.E.2d 1214, 1220 (2004). Under certain circumstances it is not necessary that the natural parent be found unfit if it is in the best interest of the child that he be placed in the custody of someone other than the parent. In re Austin W., 214 Ill. 2d 31, 51, 823 N.E.2d 572, 584 (2005). That is the case under
As we stated in the first appeal, we review the trial court‘s best-interest determination under the manifest-weight-of-the-evidence standard. S.J., 364 Ill. App. 3d at 441, 846 N.E.2d at 641, citing Austin W., 214 Ill. 2d at 51-52, 823 N.E.2d at 585. We further nоted in the previous appeal that “ ‘[i]t is well settled that a parent has superior rights to the care and custody of a child, unless the child is placed elsewhere due to an adjudicated finding that the parent abused or neglected the child.’ ” S.J., 364 Ill. App. 3d at 442, 846 N.E.2d at 641, quoting In re Alicia Z., 336 Ill. App. 3d 476, 498 (2002), citing In re J.J., 327 Ill. App. 3d 70, 77, 761 N.E.2d 1249, 1255 (2001); In re S.S., 313 Ill. App. 3d 121, 132, 728 N.E.2d 1165, 1174 (2000). We recognize a biological parent‘s superior right to the custody of her child but acknowledge that in a custody case the natural parent‘s right must “ ‘yield to the best interests of the child.’ ” S.J., 364 Ill. App. 3d at 442, 846 N.E.2d at 641, quoting In re J.K.F., 174 Ill. App. 3d 732, 733, 529 N.E.2d 92, 93 (1988).
In S.J., we acknowledged that a trial court may determine that it is in a minor‘s best interest to place custody of that minor with someone other than a “fit” biological parent, but that court must comply with
In this case, the trial cоurt originally did not select any of the eight enumerated permanency goals. The first six of the eight goals are as follows:
- The minor will be returned home by a specific date within 5 months.
- The minor will be in short-term care with a continued goal to return home within a period not to exceed one year, where the progress of the parent or parents is substantial giving particular consideration to the age and individual needs of the minor.
- The minor will be in short-term carе with a continued goal to return home pending a status hearing ***.
- The minor will be in substitute care pending court determination on termination of parental rights.
- Adoption, provided that parental rights have been terminated or relinquished.
The guardianship of the minor will be transferred to an individual or couple on a permanent basis provided that goals (A) through (D) have been ruled out.” 705 ILCS 405/2-28(2)(A) through(2)(E) (West 2004).
In the current order, the court clearly selected the sixth goal of private guardiаnship under
As the trial court has now complied with
- Age of the child.
- Options available for permanence.
- Current placement of the child and the intent of the family regarding adoption.
- Emotional, physical, and mental status or condition of the child.
- Types of services previously offered and whether or not the services were successful and, if not successful, the reasons the services failed.
- Availability of services currently needed and whether the services exist.
- Status of siblings of the minor.”
705 ILCS 405/2-28(2)(1) through(2)(7) (West 2004).
The court must also consider the permanency goal recommended by DCFS, the appropriateness of the services provided, the parties’ efforts to achieve the goal, and the extent to which the goal has been achieved.
In S.J. we noted that the trial court originally seemed to rely heavily on only one factor, the child‘s emotional status. S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643. In the new order, the court reiter
We аgree that the evidence supports ruling out the goal of return home to Roemer. The court found Roemer unable to care for, protect, train, and discipline his children. The court specifically found that (1) Roemer‘s relationship with Kim remained antagonistic; (2) Roemer admittedly and knowingly violated a court visitation order restricting visitation with his three oldest children; (3) Roemer was indicated by DCFS for sexual abuse of his two daughters and stepdaughter; (4) Kim alleged S.J. wаs conceived when Roemer raped her; and (5) Roemer has continued to refuse to address some of his issues in counseling sessions. The court further noted that Roemer admitted that he had a medical condition that prevented him from caring for his children for more than short periods of time. The court‘s decision to rule out the goal of return home to Roemer was not against the manifest weight of the evidence.
The real issue is whether the trial court‘s dеtermination that return home to Kim was not feasible is against the manifest weight of the evidence. As we stated in S.J., the court determined Kim was fit and able to care for three of her five children. S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643. Kim‘s irreparably fractured relationship with her oldest daughter made her unable to care for her oldest child. As for Kim‘s inability to care for S.J., the court indicated that the primary reason Kim was deemed unable to care for him was that S.J. had lived continuously with Faulkner and recоgnized Faulkner as his primary caretaker. Upon remand, the court advanced further reservations about Kim, including her antagonistic relationship with Roemer, credibility issues, her lack of empathy, and her violation of previous court orders. These reservations, though, existed at the time of the first appeal and were apparently not troubling enough to keep three of Kim‘s children from her.
In S.J., we advanced our reservations about the trial court‘s decision to rule out return home to Kim based solely on S.J.‘s bond with Faulkner. S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643. We determined as follows:
“Such reasoning runs counter to the Juvenile Act and to the concept that parents have superior rights to the care and custody of their children. The fact that a child has developed a relationship with his custodian is irrelevant once the goal of return home has been achieved. Even if parental rights have been terminated, the relationship with the custodian must yield to the rights of an adoptive parent, if one can be found. It is desirable that the child have some permanency in his life, regardless of his relationship with his custodian. For that reason, the goal of transfer of guardianship on a permanent basis is available only ‘provided that goals (A) through (D) [variations on return home or adoption] have been ruled out.’
705 ILCS 405/2-28(2)(E) (West 2004) .” S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643.
We remanded, though, to allow the court to state any other reasons S.J. should not be returned home to Kim. As the new reаsons advanced by the trial court did not prevent return home of Kim‘s three middle children, we fail to see how they can prevent return home of S.J. Further, these reasons existed before the bonding assessment when the court was going to return S.J. home to Kim. Only after Dr. Osgood‘s conclusion that S.J. had developed a bond with Faulkner did the court conclude return home was no longer a viable option. Again, it looks as if the sole reason the court determined S.J. should not be rеturned home is because of his bond with Faulkner.
The “purpose and policy” section of the Juvenile Court Act states that a goal of the Act is to achieve permanency at the “earliest opportunity” for the subject children.
It is unfortunate that the delay in this case has resulted in a child being with a fostеr parent for so many years. When an infant is placed with a foster parent, quick resolution is especially important to prevent situations like these. When a natural parent of a removed infant does not quickly make reasonable efforts and progress, waiting for that parent to turn things around will only create a more difficult situation, especially if that parent eventually achieves fitness. No good
For the foregoing reasons we find that the trial court‘s placement of S.J. with Faulkner is against the manifest weight of the evidence as the evidence does not support ruling out the goal of short-term care with a continued goal of return home to Kim within a period not to exceed one year.
III. CONCLUSION
For the reasons stated, we reverse the trial court‘s judgment and remand with directions that the court institute the goal of short-term care with a continued goal of return home to Kim within a period not to exceed one year in compliance with
Reversed and remanded with directions.
TURNER, P.J., and McCULLOUGH, J., concur.