Opinion
NO. 4-14-0863 NO. 4-14-0864 NO. 4-14-0865 NO. 4-14-0866 cons.
02-13-2015
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 Circuit Court of Vermilion County
No. 10JA122
No. 10JA123
No. 10JA124
Honorable Claudia S. Anderson, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Presiding Justice Pope and Justice Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, concluding the trial court's unfitness and best-interest findings were not against the manifest weight of the evidence.
¶ 2 In January 2014, the State filed a petition to terminate the parental rights of respondent father, Robert Marrow, as to his child, N.M. (born January 29, 2010), and respondent mother, Billie Jo Zettler, as to her children, N.M., J.A. (born November 22, 2000), and B.M. (born January 24, 2008). Following a July 2014 hearing, the trial court found Zettler unfit. In September 2014, the court found Marrow unfit and determined it was in the best interest of the children to terminate respondents' parental rights.
¶ 3 Respondents appeal, asserting the trial court erred in finding them unfit and determining it was in the children's best interest to terminate their parental rights. For the following reasons, we affirm.
¶ 4 I. BACKGROUND
¶ 5 A. Initial Proceedings
¶ 6 In September 2010, the State took protective custody of N.M., J.A., and B.M. following two instances in which Zettler failed to supervise the children. During the first incident, B.M., two years old at the time, was found wandering around the trailer park where his mother lived unsupervised and wearing only a diaper. He was found at approximately 9:30 p.m., after he was nearly struck by a car. In the second incident, N.M., eight months old at the time, had nearly drowned after being left unsupervised in the bathtub.
¶ 7 Due to these two incidents, in September 2010, the State filed a petition for adjudication of wardship, alleging the children were neglected in that their environment was injurious to their welfare pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Act) (705 ILCS 405/2-3(1)(b) (West 2008)) due to inadequate supervision. Following a January 2011 hearing, the court (1) found the children were neglected; (2) determined respondents were unfit, unable, and unwilling to care for the children; (3) made the children
wards of the court; and (4) placed guardianship of the children with the Department of Children and Family Services (DCFS).
¶ 8 B. Client-Service Plans
¶ 9 Throughout the case, DCFS filed numerous client-service plans with the trial court. The plans provided the following information about respondents' progress and the children's placements. In December 2010, DCFS placed B.M. and J.A. with their maternal grandmother, while N.M. lived with her maternal great-grandmother, Mary Brown. DCFS recommended respondents (1) participate in individual counseling, (2) attend parenting classes, (3) obtain a psychological evaluation, and (4) find appropriate housing. Additionally, Marrow was to comply with the conditions of his parole, while Zettler was to attend her medical appointments. By May 2011, respondents had taken but failed their respective parenting classes. Zettler was engaged in individual counseling, but Marrow was not. Respondents regularly attended supervised visitation but provided no structure and failed to discipline the children when necessary.
¶ 10 By October 2011, respondents had obtained the recommended psychological evaluations. Marrow was cooperating with the recommendations set forth in his psychological evaluation, demonstrating minimal progress. Zettler, however, refused to engage in services other than parenting classes, thus demonstrating a lack of progress. In April 2012, respondents had taken their second parenting classes; Zettler passed, but Marrow failed. Zettler had been attending her medical appointments but had not yet engaged in services recommended following a mental-health assessment. Marrow continued following the recommendations set forth in his psychological evaluation. Also, during this time, B.M. and J.A. were relocated to Brown's home and were adjusting well. However, in August 2012, J.A. was removed to another home after he
allegedly attempted to sexually abuse B.M. He was placed with his maternal great aunt and cousin, where he stayed throughout the remainder of the case.
¶ 11 In January 2013, Marrow was arrested and incarcerated in the county jail. By October 2013, though Zettler had completed her parenting classes, her caseworker observed she failed to implement the parenting skills she learned from her classes. She also refused to engage in mental-health services.
¶ 12 The February 2014 client-service plan stated Zettler wanted her children returned but failed to understand how her mental impairment placed the children at risk. She continued to refuse mental-health treatment, though she agreed to attend one-on-one parenting classes. Marrow had been out of touch with his caseworker since November 2013, and the caseworker subsequently learned Marrow was incarcerated in the Macon County jail. In late February 2014, the caseworker relocated B.M. and N.M. from Brown's home, citing concerns with Brown's health, to a pre-adoptive home.
¶ 13 C. Termination Proceedings
¶ 14 In January 2014, the State filed a petition to terminate respondents' parental rights. The petition alleged, among other things, Zettler:
"demonstrated an inability to discharge [her] parental responsibilities as supported by competent evidence from a psychiatrist, licensed clinical social worker, or clinical psychologist of a mental impairment, mental illness, or mental retardation, or developmental disability, and there exists sufficient justification to believe that the inability to discharge [her] parental
responsibilities shall exceed beyond a reasonable period of time." See 750 ILCS 50/1(D)(p) (West 2012).
As to Marrow, the petition alleged, in part, he was depraved (750 ILCS 50/1(D)(i) (West 2012)).
¶ 15 1. Fitness Hearing as to Zettler
¶ 16 In July 2014, the fitness hearing commenced as to Zettler. During the course of the proceedings, the trial court took judicial notice of the client-service plans without objection from the parties. Michael Tolles, a foster-care worker for the Center for Youth and Family Solutions, testified he was the caseworker for the minor children, and he had been their caseworker for approximately two years. In November 2012, when Tolles became the caseworker, Zettler was not engaged in any services. Prior to that time, she had successfully completed parenting classes and had attended five substance-abuse counseling sessions at Crosspoint Human Services (Crosspoint). Zettler had not followed up on the other DCFS recommendations, such as attending medical appointments and taking prescribed medications, obtaining and maintaining appropriate housing, and maintaining a legal form of financial support.
¶ 17 Tolles testified he referred Zettler back to Crosspoint for mental-health counseling, but she refused to attend, despite Tolles' concerns that she needed counseling for depression and to gauge her ability to function in the community and as a parent. Tolles attempted to refer her to Crosspoint on two or three occasions, but Zettler continued her refusal. In April 2014, Zettler finally entered into an adult class at Crosspoint to address her ability to function within the community after being ordered to do so in a new pending case.
¶ 18 Additionally, since Tolles became the caseworker, Zettler had obtained and maintained stable housing, though Tolles had not been inside to determine whether it was
appropriate for children. She was also receiving social security benefits stemming from the disability resulting from childhood brain cancer. With respect to the recommendation that she attend medical appointments and take prescribed medications, Tolles admitted he had not attempted to have Zettler sign any medical releases when she told him she was seeing a doctor. However, Zettler told him she was not taking her prescribed thyroid medication, which was particularly necessary because her bout with cancer affected her thyroid's function.
¶ 19 In accordance with the recommendations set forth in a psychological assessment, Zettler received supervised visitation with her children. She attended visitation regularly but the visits never progressed beyond supervised visitation because she had not adequately implemented the training she learned at her parenting classes. For example, Tolles explained, during the recent two-hour monthly visits at a local McDonald's restaurant, Zettler spent the majority of her time with the newborn child while the children played at the McDonald's playground. He said Zettler's interaction with the older children was minimal, as she "pretty much just watched them play." She did not supervise the children, ensure they were playing safely, or discipline inappropriate behavior. However, on cross-examination, Tolles admitted he did not remember any occasions in which the children needed any discipline or particular supervision. On a few occasions, J.A. would bring Zettler a puzzle, but she never attempted to work the puzzles with J.A. Other than buying the children's meals from McDonald's, she did not provide them with any gifts. Tolles did not believe he could safely return the children to Zettler because she could not implement the training from parenting classes and was limited by her mental disabilities. In doing so, he took into consideration the incidents that brought the children into custody in which Zettler failed to provide adequate supervision.
¶ 20 Tolles explained, in March 2013, respondents signed guardianship documents, agreeing the children would be placed with a guardian rather than Zettler. Though that was the goal at the time, DCFS changed its recommendation from guardianship to substitute care pending the termination of parental rights. The goal changed when DCFS removed N.M. and B.M. from their placement with Brown due to concerns over her physical health. While the children resided with Brown, Zettler had two one-hour visits per week, which were only supervised by DCFS caseworkers for approximately 15 minutes. For the remainder of the time, Brown supervised the visits.
¶ 21 Dr. Judy Osgood, a licensed clinical psychologist, testified, in July 2011, she performed a psychological evaluation on Zettler. She then updated her assessment in June 2014, after Zettler's newborn was taken into protective custody. During the 2011 assessment, Dr. Osgood determined Zettler "did not really understand her limitation cognitively, developmentally" or the extent to which "she had limitations in parenting her children." The doctor had the impression "that she did not really understand the risk she presented to her children in regard to her choices in partners, in regards to their criminal background and history, [and] how that presented a risk" to her children. Intelligence-quotient (IQ) testing on the Wechsler intelligence scale revealed Zettler had an IQ of 65, a level of mild cognitive disability, which reflects significantly low verbal comprehension, perceptual reasoning, processing speed, and working memory. The doctor noted Zettler's significantly low working-memory score demonstrated she "would have a lot of trouble just really paying and maintaining *** attention, being able to gain from that information." Zettler's diminished working memory would also affect her ability to parent because she would be slow to take in and process information, such as how to care for and supervise children. For example, the doctor explained, a parent with a low
working-memory score could place a small child in the bathtub and forget about the child, thus demonstrating an inability to supervise. Dr. Osgood testified her interview and testing revealed similar attributes in Zettler. Also, during Dr. Osgood's examination, Zettler described subjective symptoms of depression—sadness, crying spells, difficulty concentrating and making decisions, and anxiety.
¶ 22 Based on the tests and interview, Dr. Osgood diagnosed Zettler with depressive disorder, parent/child-relational problem, partner-relational problem, and mild mental retardation. Because Zettler had developed this mild cognitive disability following surgery for brain cancer at age nine, Dr. Osgood did not believe Zettler had the mental ability to overcome the parent/child-relational problem or any of the other diagnoses. The doctor opined, within a reasonable degree of psychological certainty, Zettler suffered from a mental disability, and that her deficits prevented her from discharging her parental responsibilities. When the doctor reexamined Zettler in June 2014, she found no substantial change in Zettler's cognitive abilities. However, in 2014, Zettler was no longer exhibiting symptoms of depressive disorder, leading the doctor to exclude that diagnosis.
¶ 23 Brown testified B.M. and N.M. resided with her "until a few months ago." N.M. lived with her for four years, while B.M. lived with her for two years. During that period of time, Zettler frequently visited the children at Brown's home. Zettler gave the children baths, cooked for them, baked desserts, and paid attention to them.
¶ 24 Brown further testified Zettler had obtained housing approximately three blocks from Brown's home. She described the home as "really nice" and well-maintained. If the trial court returned the children to Zettler, Brown said she would assist Zettler with parenting.
¶ 25 Zettler verified she had obtained and maintained a home approximately three blocks from Brown's home. Her social security income was sufficient to pay for her rent and bills. During her visits with the children at McDonald's, Zettler denied neglecting her supervision of the children; rather, she allowed the children to play without her interference because that was what they wanted to do.
¶ 26 Following the presentation of evidence, the trial court found the State proved Zettler lacked the ability to discharge her parental responsibilities due to her cognitive disability. According to the court, the doctor's opinion "takes away an option that *** [Zettler's] grandmother could come down and assist and help." The court then stated, "but the problem is that children do things very quickly." The court noticed Zettler's testimony was often non-responsive to the question presented, further demonstrating her cognitive deficits.
¶ 27 2. Fitness Hearing as to Marrow
¶ 28 In September 2014, the fitness hearing commenced as to Marrow. At the time of the hearing, Marrow was incarcerated in the Macon County jail for a pending felony retail-theft case (Macon County case No. 13-CF-1443). The State elected to proceed only on the ground of depravity to demonstrate Marrow's unfitness. In support, the State tendered certified copies of Marrow's convictions in Vermilion County for (1) two 2007 burglaries (case Nos. 07-CF-411, 412), (2) a 2002 burglary (case No. 02-CF-38), and (3) a 2013 felony retail theft (case No. 13-CF-26). Marrow offered no evidence in rebuttal. Upon that evidence, the trial court found Marrow unfit by reason of depravity.
¶ 29 3. Best-Interest Hearing
¶ 30 Immediately following the trial court's finding of unfitness as to Marrow, the court proceeded to the best-interest stage of the termination proceedings.
¶ 31 Tolles first testified regarding the current placement of the children. J.A. had been in a relative foster home since January 2013, and the foster parents expressed an interest in adopting him. According to Tolles, J.A. was thriving in his current placement and had bonded with his foster parents. J.A.'s last visit with Zettler was in August 2014.
¶ 32 B.M. and N.M. were in relative foster care in Paris, Illinois. Though that family initially expressed interest in adopting the children, they had subsequently changed their minds. The family changed their mind when, after two months, B.M. began throwing temper tantrums. N.M. followed suit. Though B.M. and N.M. were supposed to receive counseling and play therapy to address these tantrums, their present foster parents did not follow through with the service provider. Tolles found a prospective foster family, with whom he hoped to place the children later that day, though he admitted he had not inspected their home or met personally with the family. He also acknowledged the transfer would remove the children from their present schools and treatment providers. B.M. and N.M. last visited with Zettler in August 2014 and N.M. last visited with Marrow in November 2013. While incarcerated, Marrow sent Tolles letters inquiring about N.M.'s health and well-being. He did not send gifts or messages for N.M.
¶ 33 As to respondents, Tolles testified Zettler was in no position to care for the children due to her mental impairment, nor could he foresee her being in such a position in the near future.
¶ 34 Zettler attempted to present evidence regarding guardianship as a preferable alternative to termination; however, the trial court sustained the State's objection. Zettler submitted an offer of proof that Zettler and Marrow had both signed documents authorizing guardianship for their respective children, and she asserted that would be a better alternative than terminating their parental rights. When respondents executed the guardianship paperwork, all
children were in relative placement. Until February 2014, B.M. and N.M. remained with Brown, at which time DCFS' concerns about Brown's health led the caseworker to find a more "appropriate" placement. Zettler's attorney further submitted Brown, who was 69 years old, would testify she had seen her doctor and was in sufficiently good health to provide permanency for B.M. and N.M.
¶ 35 Marrow testified he wanted to be reunited with N.M. He said he was taking classes and complying with DCFS' recommendations. He estimated he would be released from prison in May 2015, at which time he wanted N.M. to live with him. Zettler did not testify.
¶ 36 Following the presentation of evidence, the trial court terminated the parental rights of respondents. In doing so, the court noted, "neither of these people are [sic] in a position to take these children today. They can't safely parent them." The court further explained the children required permanency and "need the parental situation where they have someone who can clearly get them to medical appointments, get them to mental-health appointments, get them to counseling, do what needs to be done to make them healthy and productive members of society."
¶ 37 Both parties filed timely notices of appeal. We have consolidated respondents' cases for review.
¶ 38 II. ANALYSIS
¶ 39 On appeal, respondents argue the trial court erred in finding them unfit and determining it was in the children's best interest to terminate their parental rights. We address these arguments in turn.
¶ 40 A. Fitness Finding
¶ 41 The State has the burden of proving parental unfitness by clear and convincing evidence. In re Jordan V., 347 Ill. App. 3d 1057, 1067, 808 N.E.2d 596, 604 (2004). A reviewing court will not overturn the trial court's finding of unfitness unless it is against the manifest weight of the evidence. Id. The court's decision is given great deference due to "its superior opportunity to observe the witnesses and evaluate their credibility." Id. We now turn to the finding of unfitness as to each parent.
¶ 42 1. Zettler
¶ 43 Zettler asserts the trial court erred in finding her unfit. The court found Zettler unfit under section 1(D)(p) of the Juvenile Act (750 ILCS 50/1(D)(p) (West 2012)), which sets forth the following grounds for a finding of unfitness:
"Inability to discharge parental responsibilities supported by competent evidence from a psychiatrist, licensed clinical social worker, or clinical psychologist of mental impairment, mental illness or an intellectual disability as defined in Section 1-116 of the Mental Health and Developmental Disabilities Code, or developmental disability as defined in Section 1-106 of that Code, and there is sufficient justification to believe that the inability to discharge parental responsibilities shall extend beyond a reasonable time period."
¶ 44 In other words, for the trial court to find a parent unfit under subsection (D)(p), the State must prove (1) "the parent suffers from a mental impairment, mental illness, mental retardation, or developmental disability sufficient to prevent the discharge of normal parental
responsibilities"; and (2) "the inability will extend beyond a reasonable period of time." In re Michael M., 364 Ill. App. 3d 598, 608, 847 N.E.2d 911, 920 (2006).
¶ 45 Here, Dr. Osgood, a licensed clinical psychologist, testified Zettler had experienced cognitive dysfunction following surgery for brain cancer at age nine. Due to her failure to provide adequate supervision, as evidenced by N.M.'s near-drowning and B.M wandering around at night unsupervised, DCFS took the children into protective custody in 2010. Dr. Osgood first examined Zettler in 2011, a process which included an interview, administering numerous tests, and reviewing Zettler's medical history. The doctor determined Zettler's IQ was 65. Though a low IQ does not automatically translate into an inability to discharge her parental responsibilities (id. at 610, 847 N.E.2d at 922), the doctor elaborated on the effects Zettler's low IQ had on her parenting ability. Due to her low level of cognitive functioning, Zettler would have difficulty with her working memory; for example, her ability to remember she had placed a small child in the bathtub.
¶ 46 Zettler asserts the doctor provided no specific examples of how her impairment affected her ability to effectively parent her children. We disagree. Dr. Osgood's findings were consistent with Zettler's failure to provide adequate supervision, which resulted in the children being removed from the home. Moreover, Dr. Osgood explained Zettler's low level of cognitive functioning made her a slow learner and rendered her unable to properly implement the lessons and skills from her parenting class, which was consistent with Tolles' observation that Zettler failed to implement any of the skills she learned in parenting classes during visits.
¶ 47 Dr. Osgood further opined within a reasonable degree of psychological certainty that Zettler's cognitive dysfunction would render her unable to discharge her parental responsibilities within a reasonable time. Nothing in the record contradicts her expert opinion.
¶ 48 Not only did Dr. Osgood evaluate Zettler in 2011, but her follow-up assessment in 2014 reflected the same findings. Zettler's cognitive dysfunction remained substantially unchanged, which continued to affect her ability to discharge her parental duties and adequately supervise her children.
¶ 49 Given Dr. Osgood's evaluation, which diagnosed Zettler's mental impairment and opined she would be unable to discharge her parental responsibilities within a reasonable period of time, coupled with Tolles' observation that Zettler continued to be unable to implement the training she learned from parenting classes, the trial court's finding of unfitness was not against the manifest weight of the evidence.
¶ 50 2. Marrow
¶ 51 Marrow's brief does not appear to contest the trial court's finding of unfitness. Regardless, the evidence supports the court's finding.
¶ 52 When the State alleges depravity as grounds for terminating parental rights, it is incumbent upon the trier of fact to closely scrutinize the parent's character and credibility. In re J'America B., 346 Ill. App. 3d 1034, 1046, 806 N.E.2d 292, 303-04 (2004). "Depravity of a parent may be shown by a course of conduct that indicates a moral deficiency and an inability to conform to accepted moral standards." Id. at 1047, 806 N.E.2d at 304. With regard to depravity, section 1(D)(i) of the Adoption Act provides:
"There is a rebuttable presumption that a parent is depraved if the parent has been criminally convicted of at least 3 felonies under the laws of this State or any other state, or under federal law, or the criminal laws of any United States territory; and at least one of these convictions took place within 5 years of the filing of the
petition or motion seeking termination of parental rights." 750 ILCS 50/1(D)(i) (West 2012).
A parent may overcome the rebuttable presumption of depravity by presenting evidence that, despite his criminal convictions, he is not depraved. In re Shanna W., 343 Ill. App. 3d 1155, 1166, 799 N.E.2d 843, 851 (2003).
¶ 53 Here, the State presented evidence Marrow accrued four felony convictions: (1) two 2007 burglaries, (2) a 2002 burglary, and (3) a 2013 felony retail theft. The felony retail-theft conviction occurred within five years of the State filing its petition to terminate Marrow's parental rights. Additionally, Marrow was also incarcerated at the time of the fitness hearing, with a prospective release date in May 2015. Thus, the State met the statutory requirements to establish a rebuttable presumption of depravity.
¶ 54 It was then incumbent upon Marrow to rebut the presumption of depravity. See id. Due to his incarceration, Marrow offered no testimony in rebuttal. Therefore, we conclude the trial court's finding of unfitness due to Marrow's depravity was not against the manifest weight of the evidence.
¶ 55 B. Best-Interest Finding
¶ 56 Respondents next assert the trial court erred in terminating their parental rights. We disagree.
¶ 57 Once the trial court determines a parent to be unfit, the next stage is to determine whether it is in the best interest of the minor to terminate parental rights. In re Jaron Z., 348 Ill. App. 3d 239, 261, 810 N.E.2d 108, 126 (2004). The State must prove by a preponderance of the evidence that termination is in the best interest of the minor. Id. The court's finding will not be
overturned unless it is against the manifest weight of the evidence. Id. at 261-62, 810 N.E.2d at 126-27.
¶ 58 The focus of the best-interest hearing is determining the best interest of the child, not the parent. 705 ILCS 405/1-3(4.05) (West 2012). The trial court must consider the following factors, in the context of the child's age and developmental needs, in determining whether to terminate parental rights:
"(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 ***[;]
* * *
(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 2012).
¶ 59 Here, the record demonstrates the children had been in foster care since 2010. J.A. had remained in the same placement for two years and the family expressed interest in adopting him. J.A. had bonded with the family and was thriving in his current placement. Unfortunately, B.M. and N.M. had yet to find that same permanency, as the relative caregivers recently rescinded their intention of adopting the children. However, Tolles was taking steps to find alternative placement for the children in an attempt to provide permanency.
¶ 60 Conversely, Marrow and Zettler were in no position to provide permanency to the children in the near future. Marrow had multiple criminal convictions and was serving a prison sentence as of the best-interest hearing. He was not scheduled for release until May 2015, and even then, it would take several months of services and visitation before he could provide permanency for N.M. Additionally, Marrow's criminal history suggests a likelihood of future criminal activity, which would be detrimental to N.M. and her need for permanency. Despite Marrow's love for N.M., he chose to commit a criminal act during the pendency of this case, which further demonstrates his inability to refrain from criminal activity and provide stability for her. Accordingly, the trial court's finding that it was in N.M.'s best interest to terminate Marrow's parental rights was not against the manifest weight of the evidence.
¶ 61 Zettler provides us with a much more unfortunate case. We are sympathetic to her bout with childhood cancer, which has resulted in her loss of cognitive function. However, Zettler would likely never be able to provide stability and appropriate care for her children. The case began when B.M. was found wandering alone outside and N.M. nearly drowned after being left alone in a bathtub. Four years later, despite attending parenting classes, Zettler was no closer
to being able to properly supervise her children due to her mental impairment. Part of that reason was due to her refusal to participate in mental-health counseling throughout the majority of the case, where she could have learned how to function in the community and as a parent. Due to her mental impairment and unwillingness to cooperate with mental-health treatment designed to help her function despite the impairment, she was in no position to provide the children with permanency at the time or in the foreseeable future. Accordingly, we conclude the trial court's finding that it was in the children's best interest to terminate Zettler's parental rights was not against the manifest weight of the evidence.
¶ 62 III. CONCLUSION
¶ 63 For the foregoing reasons, we affirm the trial court's judgment.
¶ 64 Affirmed.