In re K.C.

2020 IL App (4th) 190885-U

Opinion

NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 190885-U May 7, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-19-0885 4th District Appellate the limited circumstances allowed under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re K.C., a Minor ) Appeal from ) Circuit Court of (The People of the State of Illinois, ) Logan County Petitioner-Appellee, ) No. 18JA38 v. ) Amy C., ) Honorable Respondent-Appellant). ) William G. Workman, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Presiding Justice Steigmann and Justice Cavanagh concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the trial court’s fitness and best-interest findings were not against the manifest weight of the evidence and respondent’s due process rights were not violated.

¶2 In September 2019, the State filed a petition to terminate the parental rights of

respondent mother, Amy C., as to K.C. (born August 30, 2018). Respondent father filed a

separate appeal. In December 2019, the trial court found the State proved by clear and

convincing evidence respondent mother demonstrated an inability to discharge her parental

responsibilities. The same month, the court found it in K.C.’s best interest to terminate

respondent mother’s parental rights.

¶3 Respondent mother appeals, asserting (1) the trial court’s fitness and best-interest

findings were against the manifest weight of the evidence and (2) the proceedings violated her

right to due process. For the following reasons, we affirm. ¶4 I. BACKGROUND

¶5 A. Initial Proceedings

¶6 In September 2018, the State filed a petition for adjudication of neglect, alleging

K.C. was neglected in that his environment was injurious to his welfare as evidenced by his

sibling being adjudicated neglected and respondents’ parental rights were terminated and

respondents demonstrated an inability to discharge their parental responsibilities (705 ILCS

405/2-3(1)(b) (West 2018)). In March 2019, the trial court entered an adjudicatory order finding

K.C. abused or neglected pursuant to the Juvenile Court Act of 1987 (Juvenile Court Act) (id.).

In April 2019, the court entered a dispositional order making K.C. a ward of the court and

granting custody and guardianship to the Department of Children and Family Services (DCFS).

¶7 B. Fitness Proceedings

¶8 In September 2019, the State filed a petition to terminate respondent mother’s

parental rights, alleging respondent mother demonstrated an inability to discharge parental

responsibilities as supported by competent evidence and her inability to discharge parental

responsibilities would extend beyond a reasonable time period (750 ILCS 50/1(D)(p) (West

2018)). In December 2019, the trial court held a fitness hearing. Prior to hearing testimony, the

court admitted into evidence People’s exhibit Nos. 1 and 2. People’s exhibit No. 1 was an order

in Logan County case No. 15-JA-27 finding respondent mother unfit by clear and convincing

evidence for the same reason as the petition in this case. People’s exhibit No. 2 was a court

record indicating respondent father’s parental rights had previously been terminated.

¶9 1. Lori McKenzie

¶ 10 Lori McKenzie, a clinical psychologist, testified she received a referral from

DCFS to evaluate respondents. McKenzie administered the Stanford-Binet Intelligence Scale, an

-2- adult basic education survey, and a scales of independent behavior revised short form. The

Stanford-Binet Intelligence Scale provided a nonverbal, verbal, and full-scale intelligence

quotient (IQ). Respondent mother scored “in the 60s for nonverbal IQ, verbal IQ, and full[-]

scale IQ.” According to McKenzie, a score within the range of 55 to 70 indicated a mild

intellectual disability. McKenzie administered the adult basic education test, which included the

following subtests: reading, math computation, applied mathematics, language, and spelling.

When McKenzie administered the adult basic education test for DCFS evaluations, she only did

the reading and the two mathematics tests because those were the necessary skills to function.

According to McKenzie, respondent mother scored in the fourth-grade level for reading and in

the second- to third-grade level for math.

¶ 11 Finally, McKenzie administered a scales of independent behavior test. Under

Illinois guidelines, a person functioning above the age equivalent of 10 years, 8 months, is

considered above the level of intellectual disability. Respondent mother’s age equivalent on the

scales of independent behavior test was 10 years, 9 months. After administering the three tests,

McKenzie diagnosed respondent mother with borderline intellectual functioning rather than mild

intellectual disability. McKenzie made this diagnosis in accordance with Illinois guidelines that

a practitioner take the higher score from an IQ test and an adaptive functioning test to determine

an individual’s functioning level. Because respondent mother’s adaptive skills were just above a

mild intellectual disability, McKenzie diagnosed respondent mother with borderline intellectual

functioning. McKenzie testified she recently reviewed new guidelines from the Department of

Human Services. McKenzie stated,

“And I’m actually needing some clarification because now the way

I read the most recent information, it almost looks like she might

-3- actually qualify for those services now which would be a good

thing because that could provide her with residential and

vocational services. But at the time I was doing my report, to the

best of my knowledge, I didn’t have that information so I

diagnosed her with *** borderline intellectual functioning.”

¶ 12 McKenzie opined respondent mother lacked adequate insight and judgment into

her role and responsibility as a parent. For example, respondent mother stated she was trying to

get a driver’s license and her plan to ensure the baby’s safety was to “put a ‘baby on board’ sign

in the car because that would ensure that she would not get into a car accident.” According to

McKenzie, respondent mother “just dated a lot of men to try to find somebody who would be a

good father for her baby,” after having left the man who impregnated her because he was a

pedophile. When one of the men she was dating discovered she was looking for a good father

for her baby, he gave her phone number to respondent father. Respondent father sent respondent

mother a bus ticket and she “moved to Illinois to be with him to have this baby without knowing

him.”

¶ 13 According to McKenzie, when respondent mother had her first baby, she was

unable to learn how to diaper or bathe the baby. McKenzie testified respondent mother “thought

that when she went to the bathroom and the baby was crying that she could just tell the baby, [‘]I

have to go to the bathroom; I’ll be back,[’] and the baby should stop crying because he should

understand that she had to go to the bathroom.” McKenzie testified she felt respondent mother’s

functioning had not improved since she had her first child and there was no indication she was

able to parent K.C.

-4- ¶ 14 McKenzie testified respondent mother’s academic skills would make parenting

difficult. Respondent mother could not reliably read and understand written medical instructions

and she lacked the ability to budget or pay bills. Based on respondent mother’s evaluation,

McKenzie testified respondent mother was unable to independently parent K.C. McKenzie

opined respondent mother’s ability to parent K.C. would not change even after an extended

period of time. McKenzie acknowledged respondent mother could probably improve her

independent living skills. When counsel for respondent mother asked if McKenzie thought she

could improve her parenting skills, McKenzie responded, “Improve or be able to parent

independently, which are you asking?” Counsel said, “I’m saying improve.” McKenzie agreed

respondent mother could probably improve her parenting skills. However, McKenzie was asked

if respondent mother could parent K.C. if she had the assistance of someone cognitively capable

of helping her parent a child. McKenzie testified, “That she would be with that person 100

percent of the time and not left alone with the child, yes, that would be fine as long as she was

with somebody. That other person being responsible for the child, yes.”

¶ 15 McKenzie testified she administered the same tests to respondent father.

Respondent father scored in the 50s on the Stanford-Binet Intelligence Scale test. Respondent

father scored in the range of having a mild intellectual disability on the verbal score. On both the

nonverbal and full-scale IQ scores, respondent father scored in the range of having a moderate

intellectual disability. A moderate intellectual disability indicated respondent father was lower

functioning. Respondent father was unable to complete any of the adult basic education tests

because he was illiterate. Based on the scales of independent behavior test, McKenzie diagnosed

respondent father with borderline intellectual functioning. McKenzie acknowledged a change in

state regulations might qualify respondents for enhanced services.

-5- ¶ 16 McKenzie testified respondent father was unable to demonstrate insight into what

was required to be a parent. According to McKenzie, respondent father’s illiteracy made it

impossible for him to take care of his own activities of daily living, let alone those of another

person. Based on the evaluations, McKenzie opined respondent father was unable to

independently care for K.C. In McKenzie’s professional opinion, both respondents had a mental

impairment or intellectual disability that resulted in them being unable to discharge parental

responsibilities. McKenzie further testified sufficient justification existed to believe

respondents’ inability to discharge parental responsibilities would extend beyond a reasonable

time period.

¶ 17 2. Tiffany Sisk

¶ 18 Tiffany Sisk, a DCFS caseworker, testified that in December 2018, she became

the caseworker in this case. According to Sisk, respondents had not visited with K.C. since June

2019 and she had not spoken with respondents since October 2019. Sisk testified that services

for respondents included a psychological assessment, maintaining housing and hygiene, and

parent coaching. During home visits, Sisk observed soda cups everywhere and dog feces, trash,

and dirt on the floor. Sisk made an unannounced visit to respondents’ home in August 2019 and

discovered they had been evicted. In September 2019, respondents reported a new address, but

Sisk was unable to find them at the new address. Respondents then informed Sisk they were

living with friends but never provided an address. Respondents were not supposed to live

together due to an April 2019 no-contact order against respondent mother.

¶ 19 According to Sisk, respondents failed to make progress in their personal hygiene.

Respondents were unkempt, unbathed, had “extreme body odor,” and smelled of cigarette

-6- smoke. At the time, respondents lived with respondent father’s mother, who paid all the bills

and ensured the apartment had running water.

¶ 20 During visits, the parent coach would tell respondent father K.C. appeared to want

to play on the floor and respondent father should provide K.C. with a small selection of toys so

K.C. was not overstimulated. Respondent father would follow the parent coach’s directions, but

he required the same coaching during the next visit. Respondent mother got upset with the

parent coach and would talk back. Respondent mother once went to the bathroom to get away

from the parent coaching.

¶ 21 Respondents failed to identify K.C.’s needs and stuck to a set routine during

visits. Sisk explained,

“So at 11 o’clock was feeding time regardless if [K.C.] was hungry

or not. At 11:30 he needed to have the bottle. And this is when he

just started baby food. So it didn’t matter if he was showing signs

of being hungry or if they were trying to food feed him and he was

refusing the food, that’s what they had to do because that’s what

time it was. But then they would need prompts for, [‘]His diaper is

dirty; you need to change his diaper,[’] or stuff like that.”

According to Sisk, respondents were aware of the goals set for them regarding housing, hygiene,

visitation, and parent coaching. Sisk testified respondents failed to make any progress.

¶ 22 3. Trial Court’s Findings

¶ 23 The trial court based its ruling on the testimony, reports, and the previous findings

of unfitness, but it emphasized McKenzie’s testimony regarding respondents’ mental

impairment. The court noted McKenzie’s unequivocal testimony that respondents were unable

-7- to parent K.C. The court concluded the State met its burden of proving respondents unfit by

clear and convincing evidence.

¶ 24 C. Best-Interest Proceedings

¶ 25 Later in December 2019, the trial court held a best-interest hearing.

¶ 26 1. Tiffany Sisk

¶ 27 Sisk testified K.C. turned one year old in August 2019. According to the

developmental evaluation, K.C. was 22% delayed in adaptive development. K.C. had speech

therapy because he was unable to make the verbal sounds most infants his age made. K.C. also

had developmental therapy and was going to be reevaluated for occupational therapy. Although

K.C. was crawling, he was just beginning to take steps on his own at the time of the hearing.

According to Sisk, K.C. began receiving services early and had the potential for growth if he had

access to the services, consistency, and support from the family.

¶ 28 K.C. was with the same foster family from the time he left the hospital at

approximately nine days old. At the beginning of the case, respondents had visitation with K.C.

together once a week for two hours. However, following the no-contact order against respondent

mother in April 2019, hourly visits with respondents were done separately. Once the visits were

separated, respondents’ attendance became more sporadic. Respondent father began missing

visits and shortly thereafter respondent mother began missing visits. From June 2019 through

August 2019, respondents were offered weekly visits, but they failed to attend.

¶ 29 According to Sisk, K.C. lives with his foster parents, their adoptive son, and

another infant foster child. Sisk testified K.C. was very bonded to his foster parents and siblings.

During a recent visit, Sisk observed K.C. following his foster parents and seeking their attention

and affection. The foster parents were engaged and willing to provide further services to help

-8- with K.C.’s developmental issues. The foster parents indicated they would like to adopt K.C.

Sisk opined it was in K.C.’s best interest to terminate respondents’ parental rights and to allow

K.C. to be adopted.

¶ 30 Sisk acknowledged the basic policy of DCFS was that a child should remain with

their birth parents when it was safe. DCFS assisted parents by offering parenting classes

covering diaper changing and feeding, but Sisk testified respondents’ intellectual disabilities

prevented them from retaining that information. Sisk testified respondents were offered parent

coaching during visits with K.C., but she acknowledged Illinois does not provide services for the

sort of constant supervision respondents needed to ensure K.C.’s safety.

¶ 31 2. Lucas Mendenhall

¶ 32 Lucas Mendenhall testified he became K.C.’s foster father when K.C. left the

hospital at seven or eight days old. Mendenhall testified K.C. had a daily routine that included

daycare, dinner, bath, and bedtime. K.C. had his own room at his foster home. K.C. enjoyed

playing with the family’s pets. Mendenhall played with K.C. and they were currently “working

on putting blocks in holes.” According to Mendenhall, he also worked on teaching K.C. to dress

himself and brush his teeth.

¶ 33 According to Mendenhall, K.C. was part of his family and was bonded to his

eight-year-old son and nine-week-old foster daughter. K.C.’s developmental issues required

weekly visits from therapists at his daycare. Mendenhall testified he and his wife were

supportive of the treatment and were committed to continuing K.C.’s therapies. Mendenhall

testified he and his wife loved K.C. and would “absolutely” adopt him and consider him to be

their own son. According to Mendenhall, he and his wife were committed to being fully

-9- responsible for K.C. Mendenhall acknowledged that K.C.’s delays might never be entirely

corrected, but he was willing to make a life-long commitment to K.C.

¶ 34 3. Respondent Father

¶ 35 Respondent father testified he attended visits with K.C. by getting a ride from a

friend. Respondent father wanted to parent K.C. If the State were to provide in-home help with

raising K.C., respondent father was willing to accept that assistance.

¶ 36 4. Trial Court’s Findings

¶ 37 The trial court considered the statutory best-interest factors. The court noted the

foster family provided for K.C.’s physical safety and welfare and K.C. had developed his identity

in the foster placement. The court concluded K.C.’s sense of love and attachment weighed in

favor of terminating respondents’ parental rights. After considering the statutory factors, the

court noted respondents initially attended visits and took advantage of the services offered during

those visits. However, once the visits were separated, neither respondent continued to be

involved or seek other services offered by DCFS. The court found the State met its burden in

proving termination of respondents’ parental rights was in K.C.’s best interest. Accordingly, the

court entered an order terminating respondents’ parental rights.

¶ 38 This appeal followed.

¶ 39 II. ANALYSIS

¶ 40 On appeal, respondent asserts (1) the trial court’s fitness and best-interest findings

were against the manifest weight of the evidence and (2) the proceedings violated her right to

due process. We turn first to the fitness finding.

¶ 41 A. Fitness Finding

- 10 - ¶ 42 In a proceeding to terminate parental rights, 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). In making such a determination, the court considers whether

the parent’s conduct falls within one or more of the unfitness grounds described in section 1(D)

of the Adoption Act (750 ILCS 50/1(D) (West 2018)). Evidence of unfitness based on any

ground enumerated in section 1(D) of the Adoption Act (id.) is enough to support a finding of

unfitness, even where the evidence may not be sufficient to support another ground. In re C.W.,

199 Ill. 2d 198, 210, 766 N.E.2d 1105, 1112-13 (2002). A reviewing court will not overturn the

trial court’s finding of unfitness unless it is against the manifest weight of the evidence. Jordan

V., 347 Ill. App. 3d at 1067. The trial court’s decision is given great deference due to “its

superior opportunity to observe the witnesses and evaluate their credibility.” Id.

¶ 43 The trial court found respondent mother unfit based upon her demonstrated

inability to discharge parental responsibilities as supported by competent evidence and her

inability to discharge parental responsibilities would extend beyond a reasonable time period

(750 ILCS 50/1(D)(p) (West 2018)). On appeal, respondent mother contends DCFS failed to

offer her sufficient services to make progress toward the return of K.C.

¶ 44 We first note the trial court did not find respondent mother unfit for failing to

make reasonable progress toward the return of the minor. Instead, the State alleged respondent

mother was unfit due to her demonstrated inability to discharge her parental responsibilities and

that inability would extend beyond a reasonable time. The trial court’s finding of unfitness on

this basis was not against the manifest weight of the evidence. McKenzie, a clinical

psychologist, testified respondent mother was unable to parent K.C. independently due to her

intellectual disability. According to McKenzie, respondent mother’s academic skills would

- 11 - make parenting difficult because she could not reliably read and understand written medical

instructions and she lacked the ability to budget or pay bills. McKenzie further opined

respondent mother’s ability to parent K.C. would not change even after an extended period of

time. This opinion was based partly on respondent mother’s inability to understand parental

responsibilities in a prior case and, as McKenzie testified, nothing indicated respondent mother

now had the ability to discharge parental responsibilities. This testimony was sufficient to

support a finding of unfitness due to respondent mother’s demonstrated inability to discharge her

parental responsibilities. In re Daphnie E., 386 Ill. App. 3d 1052, 1069, 859 N.E.2d 123, 139

(2006).

¶ 45 Respondent mother argues “the psychologist testified that it would be possible for

[respondent mother] to make progress on learning how to parent if she was provided the right

services.” This argument mischaracterizes McKenzie’s testimony. Although McKenzie

acknowledged respondent mother could probably improve her parenting skills, she explicitly

distinguished between respondent mother’s ability to improve her parenting skills and her ability

to parent independently. McKenzie testified respondent mother would only be able to parent if

she had assistance “100 percent of the time” and if the person providing the assistance was solely

responsible for K.C. Moreover, as discussed above, respondent mother’s argument that

additional services would have allowed her to make progress on her service plan ignores that

basis for a finding of unfitness. The question before the trial court was whether the State proved

by clear and convincing evidence that respondent mother demonstrated an inability to discharge

her parental responsibilities and that inability would extend beyond a reasonable time period.

The trial court was not evaluating whether respondent mother made progress on her service plan.

We conclude the trial court’s finding of unfitness was supported by sufficient evidence of

- 12 - respondent mother’s inability to discharge her parental responsibilities and that inability would

extend beyond a reasonable time period.

¶ 46 B. Best-Interest Finding

¶ 47 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 trial court’s finding will

not be overturned unless it is against the manifest weight of the evidence. Id. at 261-62.

¶ 48 The focus of the best-interest hearing is to determine the best interest of the child,

not the parent. 705 ILCS 405/1-3(4.05) (West 2018). 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;

- 13 - (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 person available to care for the

child.” Id.

¶ 49 The trial court in considering the relevant best interest factors concluded that the

evidence showed it was in K.C.’s best interest to terminate respondent mother’s parental rights.

The court noted the foster family provided for K.C.’s physical safety and welfare and K.C. had

developed his identity in the foster placement. The court concluded K.C.’s sense of love and

attachment weighed in favor of terminating respondents’ parental rights. These conclusions

were not against the manifest weight of the evidence. Sisk testified K.C. was clearly bonded to

his foster family and was receiving the necessary services. The foster father testified that K.C.

was a part of the family and he and his wife were prepared for a life-long commitment to K.C. if

his delays failed to improve. According to the foster father, K.C. was happy, well cared for, and

loved.

¶ 50 After considering the statutory factors, the trial court noted respondents initially

attended visits and took advantage of the services offered during those visits. However, once the

visits were separated, respondent mother eventually stopped attending visits and failed to engage

in other services offered by DCFS. At the time of the best-interest hearing, respondent mother

had not seen K.C. in approximately six months.

- 14 - ¶ 51 Given the extent to which K.C. was thriving in his foster placement and the

possibility of permanence and stability in the near future through adoption, we conclude the trial

court’s finding it was in K.C.’s best interest to terminate respondent mother’s parental rights was

not against the manifest weight of the evidence.

¶ 52 C. Due Process

¶ 53 Finally, respondent mother contends she was denied her right to due process.

Respondent mother asserts, “The arguments establishing that [respondent mother] was denied

due process in this case are identical to the arguments that the court’s decision to find her unfit

and terminate her parental rights were against the manifest weight of the evidence. [Respondent

mother] simply was not provided sufficient services to accommodate her disability.”

¶ 54 As discussed above, the trial court’s finding that the State proved respondent

mother unfit by clear and convincing evidence was not against the manifest weight of the

evidence. Accordingly, the finding did not violate due process. In re S.A., 296 Ill. App. 3d

1029, 1031, 696 N.E.2d 368, 370 (1998) (holding that due process requires parental unfitness be

established by clear and convincing evidence). The court further determined the State

established by a preponderance of the evidence that it was in K.C.’s best interest to terminate

respondent mother’s parental rights. As discussed above, that finding was not against the

manifest weight of the evidence and did not violate due process. See In re D.T., 212 Ill. 2d 347,

366, 818 N.E.2d 1214, 1228 (2004) (applying the preponderance of the evidence standard at the

best-interest hearing satisfied due process). Accordingly, we affirm the judgment of the trial

court.

¶ 55 III. CONCLUSION

¶ 56 For the foregoing reasons, we affirm the trial court’s judgment.

- 15 - ¶ 57 Affirmed.

- 16 -