Opinion
No. 1-17-0506
08-21-2017
In re J.S., Minor (The People of the State of Illinois, Petitioner-Appellee, v. Marie H., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 13 JA 342 Honorable Kimberly D. Lewis, Judge Presiding. JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Ellis and Justice Burke concurred in the judgment.
ORDER
¶ 1 Held: The trial court's decision to appoint a private guardian for J.S. was not against the manifest weight of the evidence. ¶ 2 Respondent appeals the trial court's order placing minor J.S. under private guardianship until he turns 18, arguing that the trial court's decision was against the manifest weight of the evidence and against the best interest of the child. ¶ 3 J.S., born May 9, 2001, is the son of respondent Marie H. and father Alvin S. In July 2012, the State filed a petition for adjudication of wardship for J.S. and six of his siblings in Kane County. The petition alleged that J.S. was neglected because his environment was injurious to his welfare and he was without care necessary for his well-being, including adequate food, clothing, and shelter. Specifically, the petition stated that J.S. resided in a home without electricity, sufficient food, respondent's substance abuse issues and domestic violence in the home placed him at risk of harm. ¶ 4 In December 2012, the trial court in Kane County entered a dispositional order adjudicating J.S. neglected and made him a ward of the court. The order found that respondent was unfit and unable for reasons other than financial circumstances alone "due to history of domestic violence issues in the home, services just begun, more progress necessary. Mother has no adequate care plan for all children." The order also found the father unfit and unable to care for J.S. for the same reasons. The order further stated that reasonable efforts and appropriate services aimed at family reunification have been made to keep the minor in the home but they have not eliminated the necessity for removal of the minor from the home, noting that the "parents didn't cooperate with services in two prior failed intact cases." The permanency goal was set as return home in 12 months and supervised visitation was ordered. In April 2013, the case was transferred to Cook County because the parents had moved to Cook County. ¶ 5 In December 2013, the Cook County trial court conducted a permanency hearing. The assigned caseworker from One Hope United agency testified at the hearing that J.S. was placed in the non-relative foster home of Crystal B. with two of his brothers. The caseworker found the placement to be safe and appropriate. One sister was placed in a youth shelter after being moved from a foster family, and the three youngest children involved were placed together in a non- relative foster home. The caseworker stated that respondent was being provided several services from the Department of Children and Family Services (DCFS), including individual counseling, parenting classes, domestic violence services, and random drug drops when deemed necessary. The caseworker stated that no positive drops have occurred since the previous court date. The father had recently been arrested for domestic violence offense against respondent. The mother informed the caseworker that it was a continuance of a past warrant from Kane County, and was not a new charge. The assistant State's Attorney (ASA) clarified that there was a pending domestic battery charge in Cook County in addition to charges in Kane County. He was referred to services for domestic violence and individual counseling. The caseworker noted the parents had a baby that was just under a year old living in the home. The caseworker testified that J.S. and his brothers grades have gone up since being placed in the foster home and now they were getting A's and B's. The caseworker stated that respondent was being treated for drugs because she had a DUI in Kane County. The court entered a permanency goal of return home within 12 months. ¶ 6 In October 2014, the trial court conducted the next permanency hearing. The caseworker for all children, except the one sister, testified that J.S. and his two brothers continued to be placed in a safe and appropriate foster home for over a year. She stated that J.S. was doing "extremely well in school. He is almost on the National Junior Honor Society. He is like 5.0 points of the GPA." J.S. participated in individual therapy every other week. The caseworker stated that she recommended a permanency goal of guardianship for the three brothers with their current foster parent Crystal B. ¶ 7 The caseworker further testified that respondent was pregnant and due very soon. She was engaged in services, including domestic violence and individual therapy. Her therapy was being discharged, as respondent had made some progress, but the therapist cannot do anything else for her. She was also participating in marriage counseling and substance abuse. The caseworker was going to recommend parent coaching. The father was participating in domestic violence, individual counseling, and marriage counseling. ¶ 8 On cross-examination by the public guardian, the caseworker explained that the goal change to guardianship was because the case had been open for two years and services would continue and the boys have indicated that they do not want to return home. They have a lot of opportunities in their placement and want to go to college. Respondent had asked about family counseling, but the brothers stated they did not want to do family counseling because they do not feel that they are able to talk to respondent. They do not feel safe and comfortable to express how they feel to her. The caseworker stated that respondent has not been able to process the goal change. The caseworker also testified that during family visits, respondent was not able to manage all of the children at once and has used the older children to manage the younger children. ¶ 9 At the end of the hearing, the trial judge discussed that she had an opportunity to meet with J.S. and one of his brothers and spoke with each of them separately. Specifically, they came to talk with the judge about their desire not to return home to respondent's care. The judge stated that each of them "expressed a desire to see their mother and have a relationship with her. But, just question the fact that whether their basic needs could be met if they were to return home in terms of the trauma and experiences that they had suffered in the past." The judge described each of the boys as "an extraordinarily impressive young man." The judge entered a goal change to guardianship for J.S. and the two brothers as well as the one sister. The youngest three continued to have a goal of return home within 12 months. ¶ 10 In December 2014, respondent filed a motion for unsupervised day visitation. A hearing was conducted on respondent's motion in January 2015. The caseworker testified that the most recent visitation was with J.S. and his brothers with respondent and the two youngest children who are not court involved. The caseworker stated that the boys initially told her that they were ready to see their parents. During the visit, respondent and the boys were alone for at least 20 minutes in the kitchen. The caseworker testified that the agency's position was that unsupervised visits were not appropriate for J.S. and his brothers. She said that she did not think the children would be harmed or neglected during the visit. The caseworker stated that her concern was the "appropriateness of conversations." After the visit, J.S. disclosed in a counseling session that respondent had him write a letter to the judge stating that he wanted to return home. He felt that he needed to appease his mother, but he did not want to return home. ¶ 11 The caseworker further testified that the parents were continuing to participate in marriage counseling and parent coaching. All other services have been completed. On cross-examination by the public guardian, the caseworker stated that she had not discussed family therapy with J.S. and his brothers recently, but when she had discussed it with them in the past, they said they did not feel comfortable and did not want it do it. The trial judge continued the hearing so the older children and parents could be present in the courtroom. ¶ 12 At the February 2015 continued hearing, the trial court addressed the parents regarding J.S. being asked to write a note about wanting to return home. The court found it "particularly troubling and distressing" that the issue about J.S. and his brothers not wanting to return home continued to be discussed with the children. The judge praised the "great young men" as they told her in separate, private conversations why they did not want to return home. The judge also praised the parents as having "done some things right because they possess qualities and values that they didn't get since they've been in foster care. And, I fully understand that. And, I applaud you for it." The judge continued with an extensive admonishment to the parents to accept the different reality for the older children and how they are maturing and making their own decisions. The judge further observed that the children "love you to death." The judge advised the parents "to stop pressuring them and prodding them about returning home. The older children I do believe are taking a different path with my support and acquiescence. Doesn't mean they don't want to see you. They want to see you, and qualitatively seeing you should be a positive thing for everybody." ¶ 13 Following the statement, the judge noted that the sister had indicated that she wanted to try to return home. The judge denied respondent's motion, ruling that visitation with the older children would remain supervised. ¶ 14 A permanency hearing was conducted in September 2015. The caseworker testified that J.S. and his brothers have a proper and appropriate foster home placement. The worker noted that the youngest of the three brothers has indicated that he would like to return home, while J.S. and the other brother continue to want guardianship. J.S. continued to receive A's and B's. He also was very involved in basketball, including a traveling team. J.S. has declined visits with his parents because "of questions in regards to why they do not want to return home." The caseworker stated that J.S. told her it makes him "uncomfortable." ¶ 15 The parents continue to participate in marriage counseling. Respondent also participated in parenting coaching and individual therapy. The father was dismissed for failure to attend domestic violence counseling because he was unable to travel the distance. He was being referred to a provider closer to the family home, but the State lacked resources to pay for the services. All drug screenings were negative. The parents were having unsupervised visitation with the younger children. The agency had agreed to recommend for the younger children to be returned home within the next few weeks. ¶ 16 Following the hearing, the trial court approved unsupervised overnight visitation for the five children that want to return home, with unannounced visits by the caseworker. The goal of return home within five months. The court maintained the goal of guardianship for J.S. and his brother. ¶ 17 In March 2016, a permanency hearing for J.S. and his brother commenced before a new trial judge. The other five children had been successfully returned home. Both boys continued to be placed in the same foster home. The caseworker testified about an incident that occurred on Thanksgiving in 2015 during a visit with the boys. Respondent called Crystal B., the foster mother, and told Crystal that respondent's children were going to be returning home. Then the sister began texting J.S. and told him that he was "breaking his mom's heart for not wanting to come home." J.S. told her via text that they were not supposed to discuss this issue, and they engaged in a text argument. The foster mother brought the children to the home for Thanksgiving. J.S. and the sister engaged in an argument. The foster mother was called to pick up the brothers. ¶ 18 No visits have occurred since this incident because the brothers do not want to attend visits. A visit was scheduled for February, but respondent began to text J.S. and they changed their mind. They have told the caseworker that respondent "tends to always discuss the case and ask them why they are not returning home." They want to see their siblings, but are uncomfortable with visits in the home because of the conversations about the case. ¶ 19 On cross-examination by the public guardian, the caseworker testified that J.S. was enrolled in honors class and was a very good student. The caseworker stated that J.S. was "very focused on his education," and he wanted to go to college and to receive a scholarship. J.S. was playing junior varsity basketball and also playing on a traveling basketball team. Crystal B. was very supportive of his goals. The caseworker said that J.S. "has reported in numerous letters that he feels if he is returned home, he will end up being a second parent to his younger siblings." The guardian confirmed from the caseworker that there were four children under five years old and one was six years old. ¶ 20 After the caseworker testified, respondent addressed the court. She said she has nine children and she did not "think that it's right to separate the two, because it's hurting the whole home. My kids want their brothers home. We want our kids home." The trial judge responded to respondent, noting that "it's evident you love your children." The judge praised respondent for working and completing services to have her other children returned home. The judge then stated:
"The hard part of the conversation is that your other two children are getting to the age where they get to voice their opinions. And what I have to do is not only consider what you want, but I also have to consider what they want, and also what's in their best interests. The testimony I got was your two kids love you. They don't want their rights terminated; they want you to be their parents.
***
And, you know, there is one side of the coin where I can say they are kids, they don't know what they want. On the flip side of that same coin, however, they have gone through quite a bit of
experience for their young ages. And they've made a determination that they are settled, they are doing well, and they want to stay settled where they are. But that doesn't mean they don't want to visit. They want to have connections; they want to be a family but they don't want to live at home."¶ 21 The judge continued to discuss with the parents about the problem of talking about the case with J.S. and his brother. The court observed that the boys want to visit, but the court will not force visits if they discuss the case. The court ordered supervised visitation. The parents expressed frustration with the situation. The court clarified that if guardianship is granted, the boys continue to be their children. The court pointed out that guardianship is not a termination of parental rights. The public guardian then asked to share something J.S. said.
"Which is that, it would be really cool one day if he had a basketball game and he looked up and saw his parents in the stands, that they just showed up; something more where it's not about the case, not about we want you back in the house. It's like we came out to support you. Just kind of rebuilding that relationship where it's not about the case and about I want you back. It's just, we're your parents, we're here to support you."¶ 22 The court then asked if the parents had notice of the basketball games and asked to "make certain the parents have notice of the basketball games." The court entered an order with a goal of guardianship. ¶ 23 In January 2017, DCFS filed a petition to appoint a guardian for J.S. asking to appoint Crystal B. as his private guardian as well as a motion to vacate DCFS guardianship, terminate wardship, and close the case. A new trial judge conducted a hearing on the petition. ¶ 24 At the hearing, J.S. addressed the court.
"Well, I wanted to talk to you mainly because I - like, I have a feeling about it, like, that - understand, for some reason, I'm staying because I don't want to go home to my mom. And I feel like if I go home it's going to be, like, certain things that could still go on.¶ 25 When asked by the trial judge if he trusted respondent, J.S. said no. The hearing continued with the testimony from the caseworker. She stated that J.S. was 15 years old and had been in his foster home since March 2013 with Crystal B. and his brother. The caseworker testified that Crystal B. "has provided a nurturing and safe environment for [J.S.] and his brother." J.S. has told her he wants to remain in her care and he feels she is "very interested in his success." J.S. has a "good bonded relationship" with Crystal B. J.S. has signed a nomination of guardian, naming Crystal B. as his guardian. The caseworker noted that the last visit was Thanksgiving 2015. She also stated that there was an "incident" in January 2017, when respondent came to one of J.S.'s basketball games and "pretty much embarrassed him at the game." The caseworker testified that Crystal B. is willing and able to provide appropriate visitation if requested. The agency's recommendation was for J.S. to remain with Crystal B. and this is in his best interest. ¶ 26 On cross-examination by the public guardian, the caseworker stated that J.S. is on the honor roll and Crystal B. is supportive of his academic success. She also said that Crystal B. supports his interest in basketball and attends all of his games. Respondent's attorney asked if Crystal B. was supportive of communication with their mother, the caseworker answered that she was supportive. ¶ 27 The permanency worker from the agency testified that return home had been ruled out for J.S. because he did not want to return to respondent's care. She stated that adoption was also ruled out because it was not appropriate to terminate respondent's parental rights. On cross-examination by the public guardian, she stated that J.S. feels that his specific goals and needs cannot be met in respondent's home. ¶ 28 Crystal B. testified that she has been the foster parent for J.S. since March 2013. She stated that she desires and consents to her appointment as guardian for J.S. The only other person living at her home is J.S.'s brother. In regard to the Thanksgiving 2015 visit, she testified that she dropped the boys off and then received a call from J.S. approximately 15 to 20 minutes later. J.S. was "very upset" and asked her to come pick them up. When she drove back, she "found them walking down the street. *** They left their coats, their bags, and everything. And they were pretty much upset." ¶ 29 Crystal stated that she "welcome[d]" a relationship with his parents and that she thought it was "very important." She noted that J.S. and his brother have cell phones, but "it's no two-way communication, it's always the boys reaching out." She said the parents have J.S.'s schedules for basketball, for two teams. She noted that J.S. was also an active member at church and a "track star." Crystal understood that the parents remained entitled to visitation at least once a month. She also understood that she cannot change the conditions of custody once appointed and that she would be financially responsible for J.S. until he turned 18. ¶ 30 After Crystal's testimony, the court, noting there were no objections, granted the petition to appoint Crystal B. as J.S.'s guardian and closed his DCFS case. The court noted "it sounds like [J.S.] is thriving" in Crystal B.'s care. ¶ 31 This appeal followed. ¶ 32 On appeal, respondent argues that the trial court's decision to grant the petition and appoint Crystal B. as J.S.'s guardian was against the manifest weight of the evidence. Respondent asserts that "all had not been done to reunite the family," and suggests services for J.S. to address his anxiety about returning home and family counseling. At the outset, we are mindful of the emotional concerns at issue in this case, but the best interests of J.S. remain paramount. ¶ 33 Initially, the State asserts that respondent forfeited her argument on appeal by failing to raise any objection to the petition for private guardianship in the trial court. "It is well established that, to preserve an alleged error for appellate review, a party must, even in child custody cases, object at trial and file a written posttrial motion addressing it." In re William H., 407 Ill. App. 3d 858, 869-70 (2011). However, forfeiture is a limitation on the parties, not the court (In re J.B., 2014 IL App (1st) 140773, ¶ 40), and given the significance of the order granting private guardianship, we decline to find the issue forfeited and will consider the merits of the appeal. ¶ 34 The purpose of the Juvenile Court Act of 1987 (Act) is "to secure for each minor subject hereto such care and guidance *** as will serve the safety and moral, emotional, mental, and physical welfare of the minor and the best interests of the community." 705 ILCS 405/1-2(1) (West 2016). Under the Act, "[t]he parents' right to the custody of their child shall not prevail when the court determines that it is contrary to the health, safety, and best interests of the child." 705 ILCS 405/1-2(3)(c) (West 2016). "When child custody proceedings are brought under the Act, the juvenile court's primary concern is the best interests of the child, and, to that end, the court is vested with wide discretion." In re M.M., 337 Ill. App. 3d 764, 779 (2003). Ultimately, the trial court's final determination regarding a minor's permanency lies within its sound discretion and that decision will not be overturned unless it is against the manifest weight of the evidence." In re Tajannah O., 2014 IL App (1st) 133119, ¶ 20. A trial court's decision is against the manifest weight of the evidence only when an opposite conclusion is clearly apparent. Id. "In child-custody cases, there is a strong and compelling presumption in favor of the result reached by the trial court, because in determining the child's best interests the trial court is in a superior position to observe and evaluate the witnesses' demeanor." Connor v. Velinda C., 356 Ill. App. 3d 315, 323 (2005). ¶ 35 Citing section 2-28(4)(b) of Act (705 ILCS 405/2-28(4)(b) (West 2016)), the Public Guardian asserts in its brief on appeal that the Act "requires that before custody of a child who has been found abused or neglected can be restored to any parent, the court must find that a return home would be in the child's best interest, and that it would not endanger the child's health or safety." The guardian further argues that under section 2-28(4)(b), the trial court must hold a hearing and find the parent is fit to care for the child. We find little relevance to the instant appeal in the case relied on by the guardian, In re Desiree O., 381 Ill. App. 3d 854, 864-65 (2008). While the record does not disclose if respondent was deemed fit to care for her children, we note that five children were returned to her care. Rather, the focus here, as it was in the trial court, is on the best interest of J.S. ¶ 36 Section 1-3(4.05) of the Act provides:
And then, I'm very, very comfortable where I am. I've been there for maybe going on four years now.
And, you know, I'm almost 16, I'm going to be 16 this year. So in about two years I'll be moving out anyways.
So, I mean, it's something my mom has to deal with, either way it goes. You know, I feel comfortable.
And I feel like I'm not obligated to go home to her because she keeps telling me things, and it's not true. So anything could be going on.
And I might just walk into a trap or something, so..."
"Whenever a 'best interest' determination is required, the following factors shall be considered in the context of the child's age and developmental needs:
(a) the physical safety and welfare of the child, including food, shelter, health, and clothing;
(b) the development of the child's identity;
(c) the child's background and ties, including familial, cultural, and religious;
(d) the child's sense of attachments, including:
(i) where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults believe the child should feel such love, attachment, and a sense of being valued);
(ii) the child's sense of security;
(iii) the child's sense of familiarity;
(iv) continuity of affection for the child;
(v) the least disruptive placement alternative for the child;
¶ 37 The court may also consider the nature and length of the child's relationship with his present caretaker and the effect that a change in placement would have upon his emotional and psychological well-being. In re Tajannah O., 2014 IL App (1st) 133119, ¶ 19. The court's best interest determination need not contain an explicit reference to each of these factors, and a reviewing court need not rely on any basis used by the trial court below in affirming its decision. Id. ¶ 38 We find that these factors to determine the best interest of J.S. support the trial court's decision to grant the petition to appoint Crystal B. as his guardian. Here, J.S. was found neglected and respondent unfit by the trial court in Kane County in December 2012. J.S. was subsequently placed in the foster home of Crystal B. in March 2013. He has lived with Crystal consistently since that initial placement over four years ago. J.S. is now 16 years old. The permanency goal was changed to guardianship in October 2014, and has remained the goal since that date. The testimony at all hearings consistently stated that J.S. has done very well in his foster home. His grades have gone up and he is on the honor roll, including a desire to attend college and receive a scholarship. He is very focused on basketball, including junior varsity at school and a traveling team. Crystal B. is very supportive of J.S. in both his academic and athletic goals. J.S. has spoken with the trial judges privately as well as in open court at the hearing on his petition about his wish to remain in Crystal B.'s care and have her appointed his guardian. ¶ 39 The testimony also showed that respondent consistently questioned and pressured J.S. about his desire to remain in his foster home and not return to her care. Despite admonishments not to discuss the case with J.S. by the court, respondent continued to express her feelings on the subject to J.S. such that he did not want visitation with her. ¶ 40 Under the best interest factors, the evidence has shown that J.S. feels very attached to Crystal B. She has provided a loving home with security and a sense of being valued. J.S.'s wishes and long-term goals are to have Crystal as his guardian so he may continue to pursue his academic and basketball interests with a goal of attending college. J.S. stated in court that he does not trust respondent, noting that she does not tell him the truth, and he is worried that he would be "walking into a trap." He feels "very, very comfortable" in Crystal's care. Crystal testified that she wants to care for J.S. and recognized the responsibilities of guardianship. She also stated that she "welcomed" J.S. to communicate and have a relationship with his family, but said that the communication is one-sided where J.S. reaches out. She noted that in addition to basketball, J.S. participates in track and regularly attends church. ¶ 41 Additionally, we point out that given J.S.'s age, his need for permanence is important. The circumstances of this case are unique, as he is two years away from becoming a legal adult. At 16, his wishes should be considered as well as his best interest to settle his DCFS case after more than four years. We recognize respondent's wish to reunite her family. We understand that the circumstances of this case are very personal and involve important and very emotional interests. ¶ 42 Nevertheless, we are not persuaded by respondent's argument that DCFS did not exhaust all services to seek reunification. Respondent argues that J.S.'s "issues regarding his anxiety to return home to his biological mother were never addressed." However, the record belies this claim. The testimony throughout the case established that J.S. was engaged in individual therapy. Respondent also references a need for family therapy, which was addressed in the case. J.S. did not wish to participate in family therapy because of respondent's actions in questioning him about returning home and he did not feel comfortable to express his thoughts in front of respondent. We also point out that while initially the goal was to return home, the permanency goal for J.S. has been guardianship for nearly three years. At the hearing on the petition, the caseworker testified that shortly before the hearing respondent attended one of J.S.'s basketball games and "embarrassed" him. Respondent has failed to show that it is in J.S.'s best interest to deny the petition to appoint a guardian and that the trial court's decision was in error. ¶ 43 Given the record before us, we find that the trial court's decision to grant the petition to appoint Crystal B. as J.S.'s guardian was not against the manifest weight of the evidence. As the trial court observed, J.S. appears to be "thriving" in her care and he wants to remain there. It was in J.S.'s best interest to have a permanent home with Crystal B. with regular visitation with his family. ¶ 44 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County. ¶ 45 Affirmed.
(e) the child's wishes and long-term goals;
(f) the child's community ties, including church, school, and friends;
(g) the child's need for permanence which includes the child's need for stability and continuity of relationships with parent figures and with siblings and other relatives;
(h) the uniqueness of every family and child;
(i) the risks attendant to entering and being in substitute care; and
(j) the preferences of the persons available to care for the child." 705 ILCS 405/1-3(4.05) (West 2016).
Father Alvin S. is not a party to this appeal. --------