Opinion
No. 2-16-1058
05-03-2017
In re Z.W.L., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Victoria W., 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 Winnebago County.
No. 16-JA-257
Honorable Mary Linn Green, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court.
Justices Zenoff and Schostok concurred in the judgment.
ORDER
¶ 1 Held: The trial court's judgment that the minor was neglected was not against the manifest weight of the evidence; the trial court's judgment awarding custody and guardianship to the Department of Children and Family Services was not against the manifest weight of the evidence.
¶ 2 Respondent, Victoria W., appeals the adjudication of neglect and the dispositional order of the circuit court of Winnebago County determining that her infant child, Z.W.L., was neglected and awarding custody and guardianship to the Department of Children and Family Services (Department). Respondent argues that the trial court's judgments, pursuant to the State's legal theory of anticipatory neglect, were against the manifest weight of the evidence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 We begin by summarizing the pertinent facts appearing in the record. In July 2008, respondent was incarcerated when she gave birth to her first child, D.D. Respondent was observed engaging in inappropriate interactions with D.D., at which time the matter was referred to the Department. At that time, respondent reported to the Department that she had been diagnosed with bipolar disorder and schizophrenia. D.D. was taken into protective custody, the Department was granted temporary custody and guardianship, and respondent was placed on a service plan.
¶ 5 Respondent was unable to successfully complete her service plan. Specifically, respondent received an unsatisfactory rating in completing recommended anger management counseling. Respondent did not comply with a substance abuse assessment or with random urine testing. Respondent did not follow the recommendations resulting from a psychological assessment. Respondent was rated as unsatisfactory in the recommendation that she refrain from criminal activity stemming from a subsequent arrest and conviction involving heroin. As a result, D.D. has never been returned to respondent's care.
¶ 6 On July 11, 2016, Z.W.L. was born. The next day, the Department intervened and investigated respondent based on the earlier case involving D.D. The Department learned that, according to respondent's prenatal records, she had been diagnosed with schizoaffective disorder and was receiving mental health services through the Rosecrance Ware Center. When respondent discovered that she was pregnant, she stopped taking her medication for her mental illness. When she was in the hospital to deliver the minor, she was questioned by the staff regarding her previous involvement with the Department, her mental health status, and D.D. Respondent declined to answer the staff's inquiries by saying that the requested information was
"confidential."
¶ 7 On July 13, 2016, an investigator from the Department met respondent at the hospital. When the investigator arrived, respondent was reluctant to share any information. Once respondent's mother arrived, however, respondent became more cooperative. Respondent informed the investigator that the child's father was Jermaine L. Respondent related that she and Jermaine L. were currently in a relationship, but they did not live together. According to respondent, she had been dating Jermaine L. for about two years. Respondent denied that there was any domestic violence in the relationship; however, respondent admitted that she did contact police to remove Jermaine L. from her home when they were involved in a verbal argument.
¶ 8 Respondent related that she had been diagnosed with schizoaffective disorder and anxiety disorder, and she received mental health services through the Rosecrance Ware Center. Respondent stated that she experienced auditory hallucinations. Respondent also believed that she was "psychic," relating that she had a premonition that a family member would die, and shortly after her premonition, the family member did indeed die.
¶ 9 The Department's investigator interviewed Brittany Fry from the Rosecrance Ware Center. Fry was one of three caseworkers who worked with respondent through the Community Support Team. Fry confirmed respondent's mental health diagnoses. Fry reported that respondent's symptoms included mood swings, difficulty regulating her emotions, paranoia, and auditory hallucinations. According to Fry, respondent described her auditory hallucinations as "chatter" that made it difficult for respondent to concentrate, but noted that respondent had not reported that she had experienced any "command hallucinations" ordering respondent to harm herself or others.
¶ 10 Fry described the community support team program as very intensive, requiring the
participants to meet with their team members at least once each week. Fry related that she had been meeting with respondent more than once a week because of respondent's pregnancy and assisting respondent to get to her various appointments. Fry stated that, since August 2013, respondent had been involved with the community support team program. Fry noted that, once respondent learned that she was pregnant, she ceased taking her psychotropic medications; however, respondent was scheduled to eventually meet with the psychiatrist at Rosecrance Ware to retool her medication regimen following the birth of the child.
¶ 11 Fry related that respondent had been compliant with the services offered and prescribed by Rosecrance Ware. In her assessment, respondent had made "a lot of positive progress" since she began the program. Fry also noted that respondent utilized assisted housing services through Rosecrance Ware, in which Rosecrance Ware assisted in paying for respondent's housing and utility bills.
¶ 12 On July 18, 2016, the State filed a petition alleging that the minor was neglected. In count 1, the State alleged neglect due to the removal of the minor's sibling (D.D.), and respondent had not cured the conditions that caused the removal. Count 2 alleged neglect due to respondent's mental health issues that prevented respondent from properly parenting the minor. A third count alleged neglect due to the father's issues with substance abuse. Count 3 of the neglect petition is not at issue in this appeal.
¶ 13 On October 19, 2016, the trial court held an adjudication hearing. Respondent did not testify. In fact, respondent did not appear for the hearing. The State submitted and the trial court admitted into evidence certified copies of the neglect petition involving D.D., the dispositional order regarding D.D., the permanency regarding D.D., and the discharge order for the case involving D.D. The State also presented the Department's "indicated packet" regarding the
investigation conducted into the circumstances and birth of the minor, and this was admitted into evidence without objection. No other evidence was presented, and the parties argued based on the State's evidentiary submissions.
¶ 14 On November 8, 2016, the trial court rendered its judgment on the adjudication:
"All right. We are here today for the Court's decision on the adjudication hearing.
The Court has considered the evidence as presented and has gone through the Indicated Packet; in particular, the other evidence that was presented, arguments of counsel and makes the following findings: That the State has met its burden and proven, at least by their standard burden, Count 1, Count 2 and Count 3 of the Neglect Petition.
Therefore, the Court adjudicates the minor neglected pursuant to the State's proofs.
As to Count 1, environmental injurious, the older child, uh, sibling, the conditions for that child were not cured. [Respondent] was found to be unsatisfactory with services in that case, whereas the father had made reasonable efforts and reasonable progress and ultimately attained guardianship and custody of the minor.
As to Count 2 and [respondent's] mental health issues; when she was pregnant for this minor, [respondent] had quit all psychiatric medications. She is diagnosed with schizoaffective disorder, anxiety, paranoia, auditory hallucinations and difficulty regulating emotions.
She has been off all psych meds which she had been on previously to treat her mental health issues during her pregnancy. And the Indicated Packet indicated that she is nursing and had indicated [her] intent to stay off the medications to be able to nurse for
two more years.
And I believe that that more than adequately gives a basis for Count 2.
Count 3 goes to Father's substance abuse problems. I know there was a lot of argument about when, you know, when was he using. According to the Indicated Packet, there was a note on July 13 of this year from Probation that the father continues positive drug screens for marijuana.
On [July 13, 2016,] the father had reported daily use of marijuana to Probation. So I do not believe that he has completed substance abuse, even at this point in time, successfully.
So for those reasons, the Court finds that the minor is neglected pursuant to those proofs."
¶ 15 The Department prepared three reports regarding respondent and the father during the period in between the adjudication and dispositional hearings. The three reports were submitted at the November 30, 2016, dispositional hearing, and the State asked the trial court to take judicial notice of the reports dated October 19, 2016, November 8, 2016, and November 30, 2016, and the court did so. The October 19 report noted that respondent had met with a psychiatrist and expressed concern that medications would cause her to be unable to nurse. Respondent informed the Department's investigator that she did not want to take medications while she nursed the minor, which she planned to do for two years. Respondent also had a successful, negative, urine test. The November 8 report stated that respondent had not yet received or resumed psychiatric treatment. Respondent was also continuing to nurse the minor and had begun attending parenting classes. The November 30 report indicated that, on November 6, 2016, respondent had resumed taking her psychiatric medications and expressed
confusion about the proceedings, including why the minor had been taken from her custody and why the trial court had noted in its order that respondent was planning to continue to nurse the minor. The report noted that, as of November 15, 2016, respondent's psychiatric diagnoses continued in place, and her symptoms included hallucinations, paranoia, racing thoughts, insomnia, mood swings, and anxiety. The report noted that respondent was continuing with her parenting classes, but had not yet begun individual and domestic violence counseling. Finally, respondent was continuing her daily visits with the minor.
¶ 16 Respondent requested the trial court to take notice of the statement of facts submitted at the beginning of the case. The court did so. No further evidence was presented, and the parties argued their positions.
¶ 17 On December 2, 2016, the trial court rendered its judgment regarding the minor's disposition:
"We are here for decision on the disposition hearing that we had the other day. The court finds at this time that the mother is willing at this time but not fit or able until she has had more services. The mother has had a history of mental health issues and only, conveniently, went back on her psychiatric meds. She needs more time for these to be fully effective as well as with some parenting classes. So for that reason the court finds that the mother is willing but unfit or unable at this point in time."
¶ 18 Also on December 2, 2016, the trial court entered a written order transferring guardianship and custody of the minor to the Department. Respondent timely appeals.
¶ 19 II. ANALYSIS
¶ 20 On appeal, respondent argues that the trial court's judgment that the minor was neglected was against the manifest weight of the evidence. Respondent also argues that the trial court's
judgment regarding the disposition of the minor was against the manifest weight of the evidence. After briefly outlining the relevant process, we consider each contention in turn.
¶ 21 A. Proceedings under the Juvenile Court Act of 1987 Generally
¶ 22 The Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2014)) prescribes the process by which a court will decide whether a child should be removed from his or her parents and made a ward of the court. In re Arthur H., 212 Ill. 2d 441, 462 (2004). Under the Act, the paramount consideration is the child's best interest. Id. at 464. Initially, the State files a petition for wardship after which the trial court holds a temporary custody hearing in which it determines whether there is probable cause to believe that the child is neglected, whether it is necessary to remove the child from the home, and whether reasonable efforts have been made to prevent removal or that no efforts reasonably can be made to prevent the necessity of removing the child. Id.; 705 ILCS 405/2-10 (West 2014). If the child is placed into temporary custody, the trial court must make a finding of abuse, neglect, or dependence before it conducts an adjudication of wardship. Arthur H., 212 Ill. 2d at 462; 705 ILCS 405/2-21 (West 2014).
¶ 23 In this case, the State alleged that the minor was neglected because her environment was injurious to her welfare. 705 ILCS 405/2-3(1)(b) (West 2014). Generally, neglect is the failure to exercise the care demanded by the circumstances. In re N.B., 191 Ill. 2d 338, 346 (2000). However, neglect is necessarily a fluid concept, the meaning of which is derived from the surrounding circumstances. Id. At root, the concept of neglect includes both willful and unintentional disregard of duty. Id.
¶ 24 Similarly, an injurious environment is an amorphous concept also dependent on the surrounding circumstances. Id. Generally, however, an injurious environment includes the breach of the parent's duty to ensure a safe and nurturing shelter for his or her child. Id.
¶ 25 The implication for the courts from these amorphous and fact-specific concepts is that cases involving allegations of neglect and adjudication of wardship are sui generis, and they must be decided on the basis of their unique facts. Arthur H., 212 Ill. 2d at 463. Because of the intrusion into parental rights caused by a petition for adjudication of wardship, the State is required to prove the allegations of neglect by a preponderance of evidence. Id. at 463-64. On review, the trial court's determination of neglect will not be disturbed unless it is against the manifest weight of the evidence, meaning that the opposite conclusion is clearly evident. Id. at 464.
¶ 26 B. Adjudication of Neglect
¶ 27 Respondent first argues that the trial court's determination that the minor was neglected was against the manifest weight of the evidence. Respondent argues that the State alleged anticipatory neglect based on the fact that the minor's sibling, D.D. had, during the period from 2008 to 2010, been adjudicated neglected and removed from her custody. Respondent argues that the earlier neglect determination was properly admissible as evidence, but it did not constitute prima facie evidence of neglect, and, standing alone, it was insufficient to support the trial court's neglect determination.
¶ 28 We note that count 2 of the petition alleged anticipatory neglect based on respondent's mental health issues that prevented her from properly parenting the minor. While respondent suggests that many psychotropic medications are contraindicated in pregnancy providing her with a potentially valid reason to stop taking the medications when she learned she was pregnant, she fails to address in any meaningful detail her lengthy history of mental illness and the accompanying symptoms of auditory hallucinations and paranoia, upon which the trial court relied.
¶ 29 The evidence in the record showed that, in 2008, the minor's sibling was adjudicated neglected and made a ward of the court. During the next two years, the sibling's case had been closed with a determination that respondent had failed to make reasonable progress to cure the conditions that led to the removal of the sibling. During that time, respondent was rated "unsatisfactory" in regard to many of the recommendations of her service plan. Thus, the uncontradicted evidence in the record showed that, as of the minor's birth, respondent had never adequately addressed the conditions that led to the sibling's removal. The trial court, therefore, could reasonably conclude, considering the circumstances, that respondent's prior involvement with the Department had failed to sufficiently ameliorate the conditions of neglect for the minor's sibling and that, in light of the failure to do so, the minor, too, would become neglected. We cannot say, based on these facts, that the trial court's conclusion of neglect based on the earlier finding of neglect of the minor's sibling was against the manifest weight of the evidence.
¶ 30 In addition, we also note that the record supports the trial court's determination that respondent's mental health issues prevented her from safely parenting. The record shows that, even before the birth of the minor's sibling, respondent had experienced mental health issues. Specifically, as a teenager, respondent struggled with mental health issues and had several psychiatric hospitalizations. At the time of the minor's birth, respondent had a firm diagnosis of schizoaffective disorder and anxiety disorder. Prior to her pregnancy with the minor, respondent had been taking medications and, apparently, doing well on them. When respondent learned that she was pregnant with the minor, she discontinued taking her psychotropic medications. After the birth, respondent did not immediately resume her psychiatric treatment. Although it is admirable that respondent was concerned about taking medications while nursing, this did not aid in treating her mental health issues. It was not until November that respondent resumed
taking her medications. While off her psychiatric medications during her pregnancy and after the minor's birth, respondent was observed to experience mood swings, difficulty in regulating her emotions, paranoia, and auditory hallucinations; nevertheless, she continued to meet regularly with the Roscecrance Community Support Team. From this, the trial court concluded that respondent's mental health issues subjected the minor to an injurious environment. We cannot say that the trial court's determination regarding count 2 was against the manifest weight of the evidence.
¶ 31 As noted above, respondent primarily argues that the fact that the minor's sibling was removed from respondent's custody was insufficient, standing alone, to support the trial court's determination of neglect. Specifically, respondent contends, correctly, that there is no per se rule that the neglect of a sibling establishes that another child in the same household is neglected. In re S.R., 349 Ill. App. 3d 1017, 1021 (2004). However, in light of the mental health evidence, plus the uncontradicted evidence that respondent had not sufficiently ameliorated the conditions that led to the removal of the minor's sibling, the trial court did not solely rely on the previous determination of neglect to conclude that, in this case, the minor was also neglected. Accordingly, S.R. is distinguishable, and, under these circumstances, we cannot say that the trial court's determination was against the manifest weight of the evidence.
¶ 32 Respondent notes that the evidence in the record shows that she was making progress. She had an appointment with a psychiatrist at Rosecrance Ware, regarding the resumption of her regimen of psychotropic medication. She was also compliant with the Department's instructions and was undertaking parenting classes along with any recommended counseling and services. We agree with this view of the record. However, the record also reveals that, from July until November, respondent did not resume taking psychotropic medication and had even announced
that she did not wish to resume that treatment for at least two years, while she continued to nurse the minor. However, finally, respondent did resume a medication regimen, but this resumption occurred after the adjudicatory hearing had occurred. Based on this record, then, we cannot say that the trial court's determination of neglect was against the manifest weight of the evidence. Accordingly, we affirm the trial court's judgment with regard to its adjudication of neglect.
¶ 33 C. Dispositional Determination
¶ 34 Respondent contends that the result of the dispositional hearing, namely, the trial court's judgment to transfer to the Department the guardianship and custody of the minor, was against the manifest weight of the evidence. After a trial court has adjudicated a child a ward of the court, it must then determine the disposition best serving the child's interests. 705 ILCS 405/2-22(1) (West 2014); In re Al. S. & An. S., 2017 IL App (4th) 160737, ¶ 40. At the dispositional hearing, the State must prove the parent's unfitness, inability, or unwillingness by a preponderance of the evidence. In re K.B., 2012 IL App (3d) 110655, ¶ 22. The reviewing court will disturb the trial court's judgment on a dispositional order if the findings of fact are against the manifest weight of the evidence or if the trial court abused its discretion by selecting an inappropriate dispositional order. Id. ¶ 23.
¶ 35 Respondent argues that the trial court's ruling was against the manifest weight of the evidence because there was no evidence presented at the dispositional hearing bearing on her unfitness, unwillingness, or inability to care for the minor. Respondent argues that, as a result, the State failed to carry its burden of proof. We disagree.
¶ 36 At the dispositional hearing, the trial court took notice of the reports submitted describing respondent's actions and circumstances following the adjudication hearing. The reports demonstrated that respondent had just resumed her psychiatric treatment two days before the
dispositional hearing. Further, respondent continued to experience symptoms of paranoia, hallucinations, racing thoughts, mood swings, insomnia, and anxiety. In addition, and respondent concedes this, while respondent had begun the services the Department recommended, she had not yet completed them. Thus, at the time of the hearing, respondent's mental health issues remained a significant concern and she had not completed the parenting classes and other services the Department recommended. In addition, the minor was only a few months old, and would have been at risk in the care of respondent, at least until respondent was able to address the issues leading to the finding of unfitness and inability to parent. Accordingly, we cannot say that the trial court's determination that respondent was unfit and unable to parent the minor was against the manifest weight of the evidence.
¶ 37 Respondent argues that she had been making progress. Respondent notes that she had, in fact, resumed taking medications for her mental illness as of the dispositional hearing, and she had been compliant with the Department's recommended services and classes. While true, this does not change the fact that, at the time of the dispositional hearing, respondent appeared confused about the proceedings and appeared to contradict positions she had earlier taken, such as her intention to refuse medication for two years while she nursed the minor. The minor's tender age and respondent's lack of understanding over why the minor had been removed from her care, plus her only very recent resumption of a medication regimen all support the trial court's determination. Thus, while we agree that the record shows progress, we cannot say that the trial court's implicit conclusion that the progress still was not enough to warrant a different disposition was against the manifest weight of the evidence.
¶ 38 III. CONCLUSION
¶ 39 For the foregoing reasons, the judgment of the circuit court of Winnebago County is affirmed.
¶ 40 Affirmed.