Opinion
Appeal No. 3-19-0176
08-08-2019
In re C.D., Minor (The People of the State of Illinois, Petitioner-Appellee, v. Jaymi J., 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 the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 18-JA-21 The Honorable Terence M. Patton, Judge, presiding. JUSTICE McDADE delivered the judgment of the court.
Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶ 1 Held: The trial court's finding of parental unfitness and subsequent decision to terminate parental rights was not against the manifest weight of the evidence. ¶ 2 The State filed a petition for adjudication of wardship and a petition for temporary custody against respondent Jaymi J. alleging that her son, C.D., was living in an environment injurious to his welfare because of multiple incidents involving alcohol consumption and domestic violence. The trial court granted both motions. At the dispositional hearing, the court ordered that C.D. be placed in substitute care pending termination of parental rights and granted DCFS guardianship with the right to place. Subsequently, the court found Jaymi to be an unfit parent on the grounds of failure to maintain a reasonable degree of interest, concern, or responsibility as to C.D.'s welfare and habitual drunkenness or addiction to drugs and, ultimately, determined it was in the best interest of C.D. to terminate Jaymi's parental rights. Jaymi appealed, challenging the trial court's unfitness and best interest findings. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On May 15, 2018, the State filed a petition for adjudication of wardship against respondent Jaymi J. In the petition, the State alleged that C.D., born July 29, 2017, was living in an environment injurious to his welfare because C.D.'s mother, Jaymi, tested positive for alcohol following visits with C.D. on November 8, 2017, December 15, 2017, and April 16, 2018; she tested positive for opiates following visits on November 8, 2017, and November 20, 2017; and she failed to appear for alcohol and/or drug testing on February 5, 2018, February 12, 2018, May 1, 2018, and May 8, 2018. The State also alleged that the Henry County Sheriff's Department responded to 26 incidents involving Jaymi and C.D.'s putative father, James D. between January 2017 and May 2018. Some of the incidents involved alcohol consumption by either or both Jaymi or James and some of the incidents involved allegations of domestic violence. Jaymi stated to the police and others that James was also her own biological father. The State also filed a motion for temporary custody, stating that C.D. was taken into protective custody on May 14, 2018, and that removal of C.D. from his home was necessary for his protection. ¶ 5 On the same day, a hearing on the motion for temporary custody was held. The trial court expressed concern about the petition because it had previously denied the State's May 9 petition for adjudication of wardship that contained similar factual allegations as those in the May 15 petition. The court allowed the State to present its evidence to sustain its claim that the petition contained new allegations. Before the State presented its case, it requested that Jaymi submit to a breath test because two probation employees had just spoken with her and smelled alcohol on her breath. The State also stated that the Department of Children and Family Services (DCFS) asked Jaymi to take a breath test on May 14 but she refused. The court ordered that Jaymi take a breath test, and the test resulted in a .068 blood alcohol concentration (BAC). After the court asked Jaymi several questions, it determined that she was not disoriented and that her test result was not so high as to cause concern about her participation in the hearing. After the hearing, the court granted the motion for temporary custody. Subsequently, James surrendered his parental rights. ¶ 6 In July 2018, the State filed an amended petition for adjudication of wardship. In October, a hearing on the amended petition was held. Jaymi was not present in court but was represented by an attorney. Before the parties presented evidence, Jaymi's attorney told the court that his assistant told him that Jaymi was not coming to court that day and that she wished to forego her parental rights. However, her attorney never spoke to her personally to verify the information. ¶ 7 The parties presented multiple witnesses. Robert VanSeveren testified that he was a child abuse investigator at DCFS. He became involved in this case because the state hotline received a report on May 11, 2018, that there were concerns regarding Jaymi's "ongoing alcohol abuse issues as well as some alleged domestic violence that was in the home." He elaborated that Jaymi posted a picture on Facebook depicting a broken crib and wrote a message, stating " 'This is James [ ] work or what he does, how he takes care of his child." During VanSeveren's investigation, he tried to locate Jaymi at her residence in Lynn Center, Illinois "a couple times" with no success. Although VanSeveren did not locate Jaymi, his coworkers had contact with Jaymi and James on May 13, assessed the residence, and believed "everything was OK that evening." The next day, VanSeveren received several reports from the sheriff's department about domestic disturbances involving Jaymi and James. The police had contact with Jaymi and James at least three times between May 11 and 13. Thereafter, VanSeveren took C.D. into temporary custody. Since May 13, VanSeveren received 14 police reports involving calls of domestic disturbances or request for emergency assistance and 7 of those 14 reports stated that Jaymi and James were intoxicated or highly intoxicated. VanSeveren also reviewed previous investigation reports involving Jaymi and found that Jaymi had 23 police contacts. In his file, VanSeveren had 36 different police reports involving Jaymi. He stated that the police contact began around the time Jaymi was pregnant with C.D. and that, on occasion, officers observed her intoxicated while pregnant. ¶ 8 On cross-examination, VanSeveren explained that when his coworkers had contacted Jaymi and James on May 13, they observed that neither parent appeared to be under the influence and determined that C.D. was safe. When he took custody of C.D., Jaymi did not appear to be under the influence but, based on the police contacts over the past weekend, his office directed him to take protective custody of C.D. Before Jaymi could visit C.D., she was required to take a breathalyzer. She tested positive for alcohol on November 13, 2017, December 19, 2017, and April 18, 2018. She tested positive for opiates on November 13, 2017, and November 20, 2017. DNA testing was conducted on Jaymi, James, and C.D. and the results determined that James was the biological father of both Jaymi and C.D. ¶ 9 Henry County Sheriff's Department Deputy Jon Hornback testified that he had responded to numerous incidents involving James and Jaymi. On May 12, 2018, Hornback was dispatched to the Lynn Center residence for a domestic incident. When he arrived, Jaymi and James appeared to be under the influence of alcohol and observed empty beer cans and a bottle of vodka inside and outside the residence. His most recent call to the residence occurred on August 4. During his visit, he believed James and Jaymi appeared "highly intoxicated." He never saw C.D. during his visits. ¶ 10 Geneseo Police Department Officer George Marquez testified that he responded to about four to seven domestic violence or alcohol-related incidents involving Jaymi and James. In particular, in May 2017, he responded to a domestic incident between Jaymi and James. When he arrived, Jaymi was six months pregnant and "on the floor with a bottle of vodka in her hand and a cigarette in her mouth, complaining about James." Jaymi had trouble getting up from the floor and continued to drink from the bottle of vodka while she talked to Marquez. ¶ 11 Henry County Sheriff's Department Officer Dave Davis testified that, in early July 2018, he had contact with Jaymi and James because Jaymi alleged that James raped her. When he arrived at the scene, Jaymi "seemed extremely intoxicated" and Davis could "smell alcoholic-type beverage on her breath from many feet away." He also observed Jaymi "staggering, slurring, [and] making incoherent statements." During his employment with the sheriff's department, Davis had visited the Lynn Center residence 7 to 10 times. ¶ 12 Henry County Sheriff's Department Deputy Joseph Tellier testified that he had contact with Jaymi and James "ten or more times throughout my career." These contacts involved alcohol and domestic incidents. In August, he arrested Jaymi for striking James with a beer mug. Henry County Sheriff's Department Deputy Brian Haars also testified that he had multiple contacts with Jaymi and James. His most recent visit to the Lynn Center residence involved an allegation of arson against Jaymi. Jaymi and James appeared to be intoxicated during the incident. ¶ 13 Brittany Bulman testified that she was employed by Bethany for Children and Families and had worked with Jaymi and James. Since July 2017, Jaymi's cooperation level was poor. Although Bulman tried to contact Jaymi numerous times, she had not communicated with Jaymi. Jaymi had not visited C.D. since June 11, 2018. ¶ 14 The court found that C.D. was in an injurious environment and adjudicated him neglected. On October 30, 2018, Bulman filed a dispositional hearing report. The report stated that the Bethany agency recommended that Jaymi attend visits with C.D., participate in individual counseling for sexual abuse and domestic violence, obtain a substance abuse evaluation and comply with random urine analysis, obtain and maintain a legal source of income, and obtain and maintain appropriate housing. The report further stated that Jaymi was unsatisfactory in completing the recommendations and requested that the permanency goal be that C.D. returns home within 12 months. The report also detailed Jaymi's substance use. It stated that Jaymi had continued "to drink alcohol in excess." Jaymi had a .148 BAC on May 12, 2018, and a .191 BAC on May 13, 2018. Jaymi admitted that she had drunk "4 shots of vodka per day" and had been a daily drinker because it was "something to do." A source stated that Jaymi's "drinking habit has increased and that she seems to drink vodka when sad or depressed." On November 14, 2018, a dispositional hearing was held. Jaymi was not present at the hearing. The court adopted the recommendations in the dispositional hearing report, ordered that C.D. be placed in substitute care pending termination of parental rights, and granted DCFS guardianship with the right to place. ¶ 15 On December 26, 2018, the State filed a supplemental motion to terminate parental rights, alleging that Jaymi was unfit for (1) failure to maintain a reasonable degree of interest, concern, or responsibility as to C.D.'s welfare under section 1D(b) of the Adoption Act (750 ILCS 50/1D(b) (West 2016)); (2) failure to protect C.D. from conditions within his environment injurious to his welfare under section 1D(g) of the Adoption Act (750 ILCS 50/1D(g) (West 2016)); open and notorious adultery or fornication under section 1D(j) of the Adoption Act (750 ILCS 50/1D(j) (West 2016)); and habitual drunkenness or addiction to drugs under section 1D(k) of the Adoption Act (750 ILCS 50/1D(k) (West 2016)). ¶ 16 On February 27, 2019, the unfitness hearing was held. Bulman testified that the Bethany agency executed a service plan for Jaymi after it received temporary custody of C.D. and that Jaymi's level of progress was unsatisfactory because she had had no contact with the agency since June 2018. It was recommended that Jaymi complete a mental health assessment and a substance abuse assessment but Bulman did not know if Jaymi completed them. Since the agency took temporary custody, Jaymi had not been visiting C.D. on a regular basis. She had missed all of her scheduled weekly visitation with C.D. since June 2018. Bulman attempted to communicate with Jaymi by calling her, texting her, and mailing her the DNA results but Jaymi never responded. Bulman believed the agency implemented the service plan between late June and early July of 2018. Jaymi's visitation was terminated in July 2018 because she failed to attend. Bulman is unaware about Jaymi's housing, employment, or income. The agency had the same contact information during the pendency of this case. ¶ 17 Jaymi testified that, since May 2018, she had attempted to call Bulman six times. She talked with Bulman by phone in June 2018 and she texted Bulman in July 2018 about C.D.'s birthday. She sent Bulman between 20 to 30 text messages from May 2018 to December 2018 requesting visitation and asking "how my son was doing" but Bulman never replied. Jaymi also called Bethany but the secretary informed her that Bulman was out of the office. At some point, Bulman's number changed and "[a]s soon as she changed her number, I changed it in my phone." ¶ 18 The court questioned Bulman and she stated that she received a new phone from the agency between June and July 2018. She sent about three text messages to Jaymi from the new phone but Jaymi never responded. Bulman stated that Jaymi would have been aware of her assessment requirements because she would have mailed the service plan to her. She never personally talked to Jaymi about the plan although she made text and mail attempts to do so. Jaymi's unsatisfactory completion of her service recommendations continued after the dispositional hearing on November 14, 2018, to December 11, 2018. ¶ 19 The court ruled that Jaymi was an unfit parent, finding that she failed to maintain a reasonable degree of interest, concern, or responsibility for C.D.'s welfare because she had not visited C.D. since June 2018, had not been to court since July 2018, and had not completed any services recommended by DCFS. The court noted that Jaymi's attorney had received a message that Jaymi wished to surrender her parental rights. The court also determined that there was evidence of habitual drunkenness or addiction to drugs because "[t]he evidence on that is lengthy, including as I said before, the first time she showed up in court here, she had a BAC that was just barely under .08, the legal limit for driving. The court held that the State did not prove by clear and convincing evidence that Jaymi participated in open and notorious adultery and fornication and found that she failed to protect C.D. from the conditions within his environment injurious to his welfare. ¶ 20 On March 27, 2019, the best interest hearing was held. Rachel McCoy testified that she was C.D.'s foster mother. She was married and worked for Moline Public Schools. She had been C.D.'s caretaker since he was eight days old. At the time of the hearing, C.D. was one and a half years old. She had two other children, an eight-year-old and a nine-year-old, both of whom got along "very well" with C.D. At their home, C.D. had his own room. She takes C.D. to the doctor and dentist and meets all his needs. She stated that she loved C.D. and he seemed to love her. She planned to adopt C.D. ¶ 21 On direct examination, Jaymi testified that she was living at the Lynn Center residence but was willing to move to another residence in Rock Island, Illinois. She had a room and toddler bed for C.D. at the Rock Island residence and she was willing to take care of him. Jaymi stated that "[t]here is nothing I wouldn't do for my child. *** He is mine. He is my baby, and I will do anything and everything I can to take care of him, and that's what I've done before." On cross-examination, Jaymi stated that she was cleaning houses about 20 hours a week and made $18 an hour. Contradicting her prior statement, Jaymi stated that she was living at the Rock Island residence. The court inquired about Jaymi's slurred speech and asked her if she had been drinking or taking medication. Jaymi responded that she had not been drinking but she had taken a prescribed Vicodin pill for her injured leg two hours earlier. The trial court found that it was in C.D.'s best interest to terminate Jaymi's parental rights. Jaymi appealed.
¶ 22 II. ANALYSIS
¶ 23 A. Parental Fitness
¶ 24 Jaymi first argues that the trial court's finding of unfitness was against the manifest weight of the evidence. Specifically, Jaymi alleges that the State failed to show habitual drunkenness or addiction to drugs because the only evidence presented at the hearing was Jaymi's BAC results from her first court appearance, which is not enough to prove habitual drunkenness. Jaymi also claims that the State failed to prove that she failed to maintain a reasonable degree of interest, concern, or responsibility for C.D.'s welfare because there is no evidence about when Jaymi was ordered to comply with her service plan; Jaymi testified that she attempted to call Bulman numerous times; and the trial court improperly relied on Jaymi's attorney-client privilege statement and Jaymi's missed court dates in its determination. ¶ 25 The State concedes that it did prove by clear and convincing evidence its allegations concerning Jaymi's habitual drunkenness or addition to drugs. However, the State contends that it did prove by clear and convincing evidence that Jaymi failed to maintain a reasonable degree of interest, concern or responsibility for C.D.'s welfare because the evidence shows that Jaymi failed to have any contact with Bulman or C.D. for seven months and Jaymi did not comply with her service plan. ¶ 26 As to the State's first allegation, section 1D(k) states that a parent may be found unfit if there is evidence of "habitual drunkenness or addiction to drugs, other than those prescribed by a physician, for at least one year immediately prior to the commencement of the unfitness proceeding." 750 ILCS 50/1D(k) (West 2014). Habitual drunkenness is proven when the evidence shows that the individual (1) had a fixed habit of drinking to excess, and (2) used alcohol so frequently that the individual could not control the need or craving for it. In re Precious W., 333 Ill. App. 3d 893, 899 (2002). "Evidence of indulgence without intermission is not necessary to prove an addiction." Id. "It is sufficient to show that a person has demonstrated an inability to control his or her habitual craving." Id. ¶ 27 Both parties concede that the State failed to prove habitual drunkenness or addition to drugs because the State did not present any evidence at the unfitness hearing regarding Jaymi's habitual drinking or drug use. However, we can affirm if the evidence in the record supported the judgment, regardless of the allegations or the reasons given by the trial court for its decision (In Interest of Grotti, 86 Ill. App. 3d 522, 531 (1980)), and the record reveals that Jaymi had a lengthy history of alcohol and drug abuse. Jaymi's contact with police began when she was pregnant with C.D. In May 2017, Marquez observed Jaymi intoxicated while she was six months pregnant. Since then, Bulman noted that Jaymi had continued "to drink alcohol in excess" and multiple officers stated that Jaymi had appeared to be intoxicated during their visits. At the adjudication hearing, two probation employees smelled an odor of alcohol of Jaymi's breath and requested that she take a breathalyzer test, which confirmed a .068 BAC. The dispositional report stated that, two days before C.D. was taken into temporary custody, Jaymi had had a .148 BAC on May 12, 2018, and a .191 BAC on May 13, 2018. Jaymi tested positive for alcohol before her visitation with C.D. on November 13, 2017, December 19, 2017, and April 18, 2018, and tested positive for opiates on November 13, 2017, and November 20, 2017. Jaymi admitted that she had "4 shots of vodka per day" and that she had been a daily drinker. A source reported that Jaymi's "drinking habit has increased and that she seems to drink vodka when sad or depressed." There is no evidence that Jaymi sought treatment for her alcohol and opiate use. Therefore, we find that the State proved habitual drunkenness and addiction to drugs under section 1D(k). ¶ 28 As to the second allegation, section 1(D)(b) states that a parent's failure to maintain a reasonable degree of interest, concern, or responsibility as to the child's welfare is a ground for finding the parent unfit. 750 ILCS 50/1(D)(b) (West 2016). Since the language is in the disjunctive, any of these three elements may be considered on its own as a basis for unfitness: the failure to maintain a reasonable degree of interest or concern or responsibility as to the child's welfare. In re Jaron Z., 348 Ill. App. 3d 239, 259 (2004). "A trial court must focus on a parent's reasonable efforts and not her success and must consider any circumstances that may have made it difficult for her to visit, communicate with or otherwise show interest in the child." Id. If personal visits with the child are somehow impractical, other methods of communication, such as letters, telephone calls, and gifts can demonstrate a reasonable degree of interest, concern, or responsibility depending on the content, tone, and frequency of those contacts under the circumstances. In re B'Yata I., 2013 IL App (2d) 130558, ¶ 35. A parent is not fit merely because she has demonstrated some interest or affection toward her child; rather, her interest, concern, and responsibility must be reasonable. Jason Z., 348 Ill. App. 3d at 259. We will not reverse a trial court's finding of unfitness unless it is contrary to the manifest weight of the evidence. In re T.A., 359 Ill. App. 3d 953, 960 (2005). A determination is against the manifest weight of the evidence when the opposite conclusion is clearly evident. Id. at 960. ¶ 29 Here, the record does not provide any evidence showing when Jaymi was ordered to comply with her service plan. In fact, the only mention of a service plan listing the Bethany agency's recommendations for Jaymi is in the dispositional hearing report. Bulman testified that she had not communicated with Jaymi since June 2018 and assumed that she had given Jaymi the service plan. Therefore, we cannot say that any alleged failure to comply with the recommendations relates to Jaymi's interest, concern, or responsibility. However, there is evidence that Jaymi failed to maintain a reasonable degree of interest or concern. Jaymi was aware of her visitation with C.D. because she attended visitation on June 11, 2018. Thereafter, Jaymi missed four consecutive visitations and Bulman terminated her visits in July 2018 because she was not attending. Furthermore, although Jaymi testified that, during the seven month period, she tried without success to call Bulman seven times and text Bulman between 20 and 30 times, we do not find these attempts to evidence reasonable interest, concern, or responsibility given Jaymi's opportunity to communicate with Bulman or the Bethany agency through other means of communication. For instance, Jaymi testified that she called the Bethany agency and received a response from the secretary who informed her that Bulman was not in the office that day. If Jaymi could not contact Bulman on her cell phone, she certainly had an opportunity to communicate with her at the agency. But Jaymi's testimony indicates that, during the seven months, she only called the agency once. Moreover, we do not find any discrepancy between Jaymi and Bulman's account of what happened when Bulman's cell phone number changed. Jaymi testified that she was aware of the change and updated Bulman's contact information in her phone. ¶ 30 We also believe the State proved that Jaymi failed to maintain a reasonable degree of responsibility. The evidence shows that Jaymi had been excessively drinking since she was pregnant with C.D. After C.D. was born, she continued to have issues with alcohol abuse and had multiple contacts with the police as a result of her intoxication. She also remained in an incestuous relationship with James in which she was the victim and the perpetrator of domestic violence. Without any other evidence showing Jaymi demonstrated concern, interest, or responsibility in C.D., or documenting any circumstances that would have made it difficult for her to show interest, we find that the State proved by clear and convincing evidence that Jaymi failed to maintain a reasonable degree of interest, concern, or responsibility as to C.D.'s welfare. ¶ 31 Both parties agree that the trial court improperly relied on Jaymi's statement to her attorney that she was surrendering her parental rights and her missed court dates in its unfitness determination. Even if the trial court's findings on these issues were unsupported, we can affirm its decision on any basis established in the record (In re Brianna B., 334 Ill. App. 3d 651, 655 (2002)) and, without considering Jaymi's statement or her missed court dates, we find ample evidence of her lack of interest, concern, and responsibility in the record and we, therefore, affirm the trial court's ruling of unfitness.
¶ 32 B. Best Interest
¶ 33 Next, Jaymi argues that the trial court's finding to terminate her parental rights was against the manifest weight of the evidence. Jaymi claims that the evidence showed that she is C.D.'s biological mother, she loves C.D., and is capable of providing a stable and loving environment for C.D. at her new residence in Rock Island, Illinois. Jaymi also alleges that she was not given an opportunity to show she could provide, love, and care for C.D. ¶ 34 The State contends that the trial court's ruling was not against the manifest weight of the evidence because the evidence showed that the foster family and C.D. had a loving and supportive relationship and Bulman believed it was in the best interest for C.D. to remain in his current foster home. The State claims that, although Jaymi testified that she loved C.D. and could provide him with a loving and stable home, there was no evidence to show that it would be in C.D.'s best interest to be returned to her custody and care. ¶ 35 After a finding of unfitness, the State must prove by a preponderance of the evidence that it is in the child's best interests to terminate the parental rights. In re S.D., 2011 IL App (3d) 110184, ¶ 33. During the best interest hearing, the parent's interest in maintaining the parent-child relationship must yield to the child's interest to live in a stable, permanent, loving home. Id. ¶ 34. When determining the best interests of a child for purposes of a termination petition, the court is required to consider a number of statutory factors " 'in the context of the child's age and developmental needs.' " Id. (quoting 705 ILCS 405/1-3(4.05) (West 2016)). These statutory factors include: (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; (ii) the child's sense of security; (iii) the child's sense of familiarity; (iv) continuity of affection for the child; and (v) the lease disruptive placement alternative for the child; (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). A trial court's termination ruling will not be reversed unless it is against the manifest weight of the evidence. In re S.D., 2011 IL App (3d) 110184, ¶ 33.
The evidence shows that, except for a few days, C.D. has been with his foster parents since he was eight days old. His foster parents provide for C.D.'s safety and welfare. He gets along well with his foster siblings and seems to love his foster mother. The foster mother loves C.D. and wishes to adopt him. Although Jaymi testified that she loved C.D. and could provide for him, we believe the evidence shows that, at this time, Jaymi cannot provide a stable and permanent home for C.D. The dispositional hearing report states and the totality of the record in this case establishes that Jaymi was sexually and psychologically abused by her parents and that C.D. is the child of an incestuous relationship between Jaymi and her father. She continues to battle the effects of this abuse as demonstrated by her criminal history, the domestic abuse allegations against her, her multiple failed marriages, and her persistent and extensive alcohol abuse. She also has a history of mental health concerns such as schizophrenia, borderline personality disorder, and posttraumatic stress disorder. There is no evidence that Jaymi has consistently sought treatment and counseling for her issues or that she has developed tools for recognizing or acting in either her own best interest or that of C.D. For these reasons, we determine that the trial court did not err in finding that it was in the best interest of C.D. to terminate Jaymi's parental rights.
¶ 36 III. CONCLUSION
¶ 37 The judgment of the circuit court of Henry County is affirmed. ¶ 38 Affirmed.