In re Parentage of K.E.B.

2014 IL App (2d) 131332

• Court: Appellate Court of Illinois
• Decided: July 24, 2014
• Docket: 2-13-1332
• Status: Unpublished

Opinion

2014 IL App (2d) 131332 No. 2-13-1332 Opinion filed July 24, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re PARENTAGE OF K.E.B., a Minor ) Appeal from the Circuit Court ) of Kane County. ) ) No. 11-F-429 ) ) Honorable (Thomas E.B., Petitioner-Appellee, v. ) Robert J. Morrow, Christine C., Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Respondent, Christine C., challenges the trial court’s visitation order providing for

supervised visitation between Christine and her son, K.E.B., only if she and petitioner, Thomas

E.B., agreed on the time and place of the visitation. Christine argues that the court’s order

effectively granted her no visitation. We reverse and remand.

¶2 I. BACKGROUND

¶3 A. Earlier Proceedings

¶4 Christine and Thomas met in April 2009, and K.E.B., their son, was born on May 7,

2010. Thomas petitioned to establish parentage, custody, and child support under the Illinois

Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2010)). In a subsequent

amended petition, he sought sole custody of K.E.B., alleging that Christine’s parenting ability 2014 IL App (2d) 131332

was severely compromised by her chronic alcoholism and erratic behavior. The trial court

appointed Susan Lonergan as the guardian ad litem (GAL).

¶5 At trial, Christine testified that, in 2007, she was arrested and charged with driving under

the influence (DUI), and her driver’s license was revoked for three years. After counseling and

community service, she regained her license on December 8, 2011. Christine stated that she was

in a relationship with Thomas from 2009 to 2011 and that they had been engaged to be married.

Addressing her use of alcohol, Christine testified that she drank to excess in May 2011. Further,

a June 2011 incident resulted in an indicated finding against her by the Department of Children

and Family Services. She underwent alcohol and substance abuse counseling. A safety plan

required that neither Christine nor Thomas have unsupervised contact with K.E.B. Christine

moved out of Thomas’s home in July 2011. A May 2012 urine test of Christine was positive for

alcohol and a subsequent hair follicle test was positive for cocaine.

¶6 Thomas testified that, in August 2011, he was declared K.E.B.’s father and a child

support obligation was imposed. He had never observed anything in his son’s behavior that

reflected that Christine was not a good mother to K.E.B., and he stipulated that, when she was

sober, Christine was a competent parent. However, Thomas related several incidents during

which Christine appeared intoxicated. He also addressed his own substance abuse issues. In

2007, Thomas had a problem with cocaine and checked himself into a rehabilitation program.

He testified that he had not taken cocaine since that time. He also related that he was charged

with DUI that year, but had not been charged since that time.

¶7 The GAL initially recommended that Christine be K.E.B.’s primary residential parent,

with very liberal visitation granted to Thomas. She recommended that Christine submit to

random alcohol and drug testing for 12 months. The GAL also noted that Christine had been

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K.E.B.’s primary caretaker. However, the GAL changed her recommendation after an October

2012 incident where Christine was videotaped at a bar and later arrested for DUI. Although the

tape did not depict a glass of alcohol in front of Christine and she did not sound intoxicated, the

arresting officer had testified that Christine failed three field sobriety tests administered after she

had left the bar. The GAL testified that she changed her recommendation because she had

“questions regarding Christine’s decision making with respect to her consumption of alcohol.”

¶8 On January 24, 2013, the trial court awarded the parties joint custody, with Thomas

receiving residential custody. It found that Christine had been K.E.B.’s primary caregiver since

the couple separated. Both parties, according to the court, were active in their son’s life and had

shared parenting time. The court also found that both parties had a history of substance abuse,

“which the father had done a better job of addressing and moving on from at this point.” It noted

that Christine had DUI cases in 2006 and 2007 and the pending DUI case from October 2012.

The court also found that the GAL’s most recent recommendation was “based upon the mother’s

poor judgment on her use of alcohol.” It ordered Christine to refrain from using illegal drugs or

alcohol and set forth visitation guidelines for Christine• generally, every other weekend, without

overnights, and two weekday evenings, but also overnight visitation up to three times per year, if

a maternal grandparent was present and seen by Thomas when he dropped off K.E.B. The court

also ordered that Thomas or a member of his family pick up and drop off K.E.B. at Christine’s

residence for visitation. It also directed Christine to secure, at her own expense, an alcohol

evaluation report from an approved agency and to enroll in any recommended alcohol treatment

program.

¶9 Christine appealed, and this court affirmed the trial court’s custody award but reversed

and remanded on the visitation findings. In re Parentage of K.E.B., 2013 IL App (2d) 130427-U,

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¶ 169. We concluded that the trial court applied the best-interests standard when it should have

applied the serious-endangerment standard and that it “failed to specifically find that Christine’s

condition and behavior posed a danger to K.E.B.” Id. Specifically, the trial court had not made

the requisite findings that restricted visitation (i.e., no overnight visitation as a general rule and,

when allowed, only with supervision) was necessary to prevent seriously endangering K.E.B.’s

physical, mental, moral, or emotional health. Id. We remanded for the court to apply the proper

standard in determining Christine’s visitation rights. Id.

¶ 10 B. Current Appeal

¶ 11 On October 30, 2013, Thomas filed a petition for a rule to show cause, alleging that

Christine appeared to be intoxicated when he arrived to pick up K.E.B. on August 13, 2013.

Christine and her boyfriend had an altercation and she had broken a glass picture frame. Thomas

called the police, who determined that Christine was intoxicated. He further alleged that, six

months earlier, he had smelled the odor of alcohol on Christine’s breath when he picked up

K.E.B., and the child’s diaper had not been changed during the visitation.

¶ 12 On November 15, 2013, the remanded case came before the trial court for a pretrial

conference. The court directed Thomas’s counsel to prepare proposed findings and to submit

them to Christine’s counsel, who was to respond by November 22, 2013, the same day set for a

hearing on Thomas’s petition. However, Christine’s counsel moved to withdraw.

¶ 13 On November 22, 2013, Thomas’s counsel presented proposed findings and the hearing

commenced, along with a parentage case involving Dennis Schultz, with whom Christine had

two children.

¶ 14 A bystander’s report reflects that Officer Green of the Elgin police department testified

on Schultz’s behalf that, on August 13, 2013, Green responded to a call from Christine’s

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residence. When he arrived, he observed Christine and her boyfriend, Josh Rydin. They both

appeared agitated and “to have been drinking.” (A supplemental bystander’s report by Thomas’s

counsel states that Green testified that Christine was highly intoxicated and that the couple had a

verbal altercation that day. 1) Christine showed Green text messages from Rydin in which he

stated that he was going to kill himself. Green took Rydin to the hospital for evaluation. Green

stated that there were no children present during this incident and that he did not charge Christine

with any offense.

¶ 15 Officer Schuttrow of the Elgin police department testified that, on August 31, 2013, he

responded to a call from Rydin at Christine’s residence, alleging domestic battery. When he

arrived, he observed Rydin and Christine arguing outside the residence. Schuttrow separated

them. Rydin, whose shirt was torn, told Schuttrow that he and Christine had been out to dinner

and had consumed a few drinks. When they returned to the house, Christine attacked him. He

did not explain to Schuttrow why they argued. Christine told Schuttrow that, while she was

trying to call her parents, Rydin grabbed her phone and pushed her to the floor when she tried to

retrieve it. She had various cuts, scratches, bruises, and abrasions on her forearm, bicep, knees,

shoulder blade, and neck. She also had a bruise and swelling above her right eye. Schuttrow

further testified that Christine related that she was defending herself against Rydin, whereas

Rydin stated that he did not know how Christine sustained her injuries. Both Christine and

Rydin had been drinking and were agitated. (In the supplemental bystander’s report, Thomas’s

counsel states that Schuttrow testified that Christine was highly intoxicated and that she told him

1 Both Christine and Thomas stipulated to the inclusion in the appellate record of both the

initial and supplemental bystander’s reports.

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that she had set up the evening of drinks with Rydin.) No children were present, and Schuttrow

did not charge Christine with any offense.

¶ 16 Elgin police officer Cox testified that he was called to Christine’s residence on August

31, 2013, by Rydin, who asserted that Christine had slashed his tires. Christine denied this, but

stated that vandalism had occurred in the neighborhood. Cox observed no children at the

residence, and he did not charge either Christine or Rydin with any offense. The case was

closed.

¶ 17 Thomas testified that he smelled the odor of alcohol on Christine about 25 to 30 times

when he picked up K.E.B. from her home. However, he did not report this to the police or to the

GAL (though he also testified that he had called the police “several times” when he believed that

Christine was drinking). (The supplemental bystander’s report reflects that Thomas testified to a

specific incident in which Christine was intoxicated when he picked up K.E.B. following a four-

hour visit and the child was wearing the same diaper that he had been when Thomas dropped

him off; the diaper was full of urine and feces.)

¶ 18 Christine called no witnesses. The bystander’s report reflects that, at the end of the

testimony, the trial court stated that it was terminating Christine’s visitation and thereafter

Christine “ran out of the courtroom and collapsed.” Christine’s counsel ran after her and took

her to the hospital; counsel did not review the court’s order before it was entered that day. (The

supplemental bystander’s report reflects that the trial court told Christine that she had to choose

between alcohol and the children and that she had to initiate alcohol treatment at the Ecker

Center.) An affidavit filed with the bystander’s report, signed by Saundra C. (Christine’s

mother), states that she was present at the hearing and that, after the court reporter exited the

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courtroom, the trial court stated to Christine: “Ms. [C.] this is all on you. If you take another

drink I will terminate your parental rights.”

¶ 19 Also on the date of the hearing, the trial court issued its written findings. It determined

that Christine’s use of alcohol placed K.E.B. in danger. The court suspended Christine’s

unsupervised visitation with K.E.B., but allowed daytime visitation one day per week with

advance notice to Thomas and Christine’s parents’ presence at all times. The court forbade

Christine from driving without a fully operational breath alcohol ignition interlock (BAIID)

device in her vehicle. The court also found that Christine had violated its January 24, 2013,

order forbidding her from consuming alcohol. (The supplemental bystander’s report reflects that

the court specifically stated that this violation warranted the suspension of unsupervised

visitation.) It reserved ruling on a finding of contempt. The court ordered Christine to present

on the next court date a new alcohol evaluation and treatment plan and evidence that she had a

functioning BAIID device in her car. The court also ordered Christine to present written

evidence that the BAIID device fees had been paid and that the device had been recalibrated

every month. The case was set for status on January 17, 2014.

¶ 20 The trial court also entered Thomas’s proposed findings (750 ILCS 5/607 (West 2012)).

Therein, the court found that Christine was intoxicated on August 13, and 31, 2013, and at other

times “when she was under the court’s January 24, 2013[,] order not to consume alcohol.” The

court also found that those incidents showed that Christine did not handle stress well, turned to

alcohol in stressful situations, and could not control her consumption of alcohol. Thus, K.E.B.’s

physical, mental, and moral health was endangered and the visitation restrictions were necessary

to mitigate the danger.

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¶ 21 At the January 17, 2014, status hearing, Christine’s counsel informed the court that a

BAIID device had been installed on Christine’s car on January 14, 2014. Also, on November 27,

2013, Christine had entered “detox” at Central DuPage Hospital. Counsel also informed the

court that in December Christine had voluntarily checked herself into the “SHARE” residential

treatment program for 30 days and that she was continuing treatment with an intensive outpatient

program with SHARE. She was also attending the Ecker Center for psychiatric counseling.

¶ 22 Christine testified that she had been using alcohol as a means of stress management

during a very stressful year and that she did not wish to live her life that way anymore. She

described the SHARE inpatient program, where she recognized that she was an alcoholic. She

participated in every activity offered, from 6:45 a.m. to 6:30 p.m., and learned coping and stress

management mechanisms. Christine stated that she had completed the program and was

receiving intensive outpatient treatment three evenings per week, as well as attending Alcoholics

Anonymous meetings two evenings per week (which would increase to four or five times per

week after she completed the six-week outpatient program). Christine further testified that she

had been sober for 48 days, was submitting to random drug and alcohol testing, was taking

prescription medication for stress, anxiety, and depression, and was seeing a psychiatrist at the

Ecker Center, who monitored her medications. When she completes her outpatient program, she

will start seeing a therapist. Christine also stated that she was working as a waitress (in a

restaurant that does not serve alcohol) 27 hours per week, and she submitted documentation

concerning the BAIID device in her car and her participation in the SHARE program.

¶ 23 While she was in inpatient treatment, Christine saw K.E.B. only one time, at Christmas.

Although the inpatient program provided for the participants to have regular visits with their

children, Thomas had initially refused her request for a Christmas visit. Christine’s father then

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contacted Thomas’s father, and the visit took place. Christine also testified that she saw K.E.B.

twice before the status hearing. She stated that her parents live in North Carolina and that her

father works full time as an assistant district attorney. She is no longer seeing Rydin. Christine

further testified that, on November 22, 2013, she had consumed alcohol the prior evening. She

has abused illegal drugs in the past.

¶ 24 At the conclusion of Christine’s testimony, her counsel requested that the court restore

the previous visitation schedule (i.e., two evenings per week and every other weekend, without

overnights). Counsel also reminded the court that she did not have the opportunity to review the

November 22, 2013, order before it was entered, because she was attending to Christine’s

medical needs after she had collapsed. Counsel argued that the requirement that both of

Christine’s parents be present effectively meant that she could never have visitation. The court

encouraged the parties’ attorneys to discuss visitation details, but provided little specific

guidance.

¶ 25 After a recess, the attorneys notified the court that they had agreed that visitation could be

supervised by Patty Bowker (Thomas’s mother), Denise Thulin (relationship unspecified), or

Saundra C.

¶ 26 The trial court then granted Christine visitation with K.E.B. “a minimum of 2

nonconsecutive Saturdays per month at a time and place agreed by the parties” (emphasis

added) and supervised by Patty Bowker, Saundra C., or Denise Thulin. The court ordered

Christine to complete the therapy and treatment she had offered in her testimony. It also ordered

that visitation was contingent on successful drug and alcohol testing as part of aftercare with the

SHARE program. It ordered Christine to submit to the GAL the printout from her BAIID device

within 24 hours of the results becoming available and that the GAL report to counsel and the

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court any positive alcohol tests. (It reserved the drug testing issue.) Finally, Christine’s counsel

was granted leave to withdraw and Christine was granted 21 days to obtain new counsel.

Christine appeals.

¶ 27 II. ANALYSIS

¶ 28 Initially, we note that Thomas has not filed an appellee’s brief. However, because the

record is simple and the issues can be decided without an appellee’s brief, we will decide the

merits of this case. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d

128, 133 (1976).

¶ 29 Turning to the merits, Christine argues that the trial court abused its discretion in granting

her supervised visitation only if she and Thomas agreed on the time and place of the visitation.

She contends that, by giving Thomas ultimate control over all of her visitation, the court

effectively gave her no visitation at all. For the following reasons, we agree.

¶ 30 This action was initiated under the Parentage Act. Pursuant to section 14 of that statute,

visitation issues are resolved in accordance with factors set forth in the Illinois Marriage and

Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2012)). 750 ILCS

45/14(a)(1) (West 2012).

¶ 31 “Sound public policy encourages the maintenance of the parent-child relationship, and

only in extreme circumstances may courts deprive a parent of visitation.” In re Marriage of

Campbell, 261 Ill. App. 3d 483, 492 (1993). “A parent is entitled to reasonable visitation rights

unless the custodial parent proves, by a preponderance of the evidence, that without a restriction

of visitation, the child’s physical, mental, moral[,] or emotional health will be seriously

endangered.” Id.; see 750 ILCS 5/607(a) (West 2012) (“[a] parent not granted custody of the

child is entitled to reasonable visitation rights unless the court finds, after a hearing, that

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visitation would endanger seriously the child’s physical, mental, moral[,] or emotional health.”).

“Visitation orders will not be disturbed on appeal absent an abuse of discretion.” In re Marriage

of Ross, 355 Ill. App. 3d 1162, 1167 (2005). An abuse of discretion occurs where no reasonable

person would take the view adopted by the trial court. In re Marriage of Nelson, 297 Ill. App. 3d

651, 658 (1998).

¶ 32 Section 607(c) of the Marriage Act provides:

“The court may modify an order granting or denying visitation rights of a parent

whenever modification would serve the best interests of the child; but the court shall not

restrict a parent’s visitation rights unless it finds that the visitation would endanger

seriously the child’s physical, mental, moral[,] or emotional health.” 750 ILCS 5/607(c)

(West 2012).

¶ 33 A visitation restriction, thus, must meet the serious-endangerment standard, which is

more onerous than the best-interests standard (which governs the modification of visitation (In re

Marriage of Anderson, 130 Ill. App. 3d 684, 687 (1985))). Examples of restrictions include a

termination of visitation, a prohibition on overnight visitation, or a requirement of supervised

visitation. In re Marriage of Ross, 355 Ill. App. 3d 1162, 1167 (2005). “[I]t is not the result—

the actual change in visitation—that distinguishes a restriction from a modification; it is the

purpose for the change.” In re Marriage of Chehaiber, 394 Ill. App. 3d 690, 697 (2009).

¶ 34 Christine contends that, although alcohol abuse is a legitimate basis for restricting a

noncustodial parent’s visitation by requiring the presence of a supervisor, her use of alcohol was

never argued to warrant the complete suspension of visitation. She notes that the November 22,

2013, order allowed her supervised visitation if both her parents were present. Further, at the

January 17, 2014, hearing, her counsel did not object to supervised visitation, but the order gave

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Thomas sole control over her visitation. Thus, even if a supervisor were present, Thomas could

prevent visitation simply by not agreeing to the time or place. Christine contends that the order

placed no limits on Thomas’s control (although he had initially denied her Christmas visitation)

and therefore was an abuse of discretion, especially in light of the fact that she had done

everything the court had required of her since the November 22, 2013, hearing.

¶ 35 Christine also notes that the trial court misspoke when it noted that she had been in the

SHARE program on prior occasions. She asserts that, before this case, she had never been in the

program. She further notes that the BAIID device ensures that she will not drive while

intoxicated and that having supervised but no overnight visitation will protect K.E.B. from any

harm by ensuring that others are present to monitor her behavior. A regular daytime visitation

schedule, Christine urges, even with a supervisor, will protect the mother-child relationship,

which is a valuable goal of the State.

¶ 36 We conclude that the trial court abused its discretion in requiring that the parties agree to

the time and place of visitation, and we reverse that portion of the court’s order. In In re

Marriage of LaTour, 241 Ill. App. 3d 500, 503-05 (1993), the reviewing court held that a

visitation order requiring that summer visitation and regular weekend visitation occur at a time

agreed to by the parties constituted a restriction and was erroneous where the trial court failed to

make a serious-endangerment finding. As relevant here, the court determined that the

requirement that the parties agree to the timing of visitation “operate[d] to grant the ultimate

determination of whether [the father] may exercise his visitation rights to [the mother].” Id. at

504. Based upon the parties’ history of discord and inability to agree, the court concluded that

the trial court erred in denying the father’s request for a structured visitation schedule. Id. at 505.

“[T]here must be a scheduled visitation which will occur when [the parties] fail to agree.” Id.

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The court reversed the aspect of the trial court’s order denying the father’s request for a

structured visitation schedule and remanded the cause for a determination of such, unless the

parties agreed otherwise. Id.

¶ 37 Likewise, the evidence here reflects that Christine and Thomas have a tumultuous history

and further shows that, as illustrated by the Christmas visitation incident, there is little likelihood

of any agreement on the time and place of visitation. Furthermore, the parties agreed below that

Christine be granted supervised visitation. Requiring the parties to agree to time and place

effectively eliminated the provision of supervised visitation, by giving Thomas control of

Christine’s access to K.E.B. We acknowledge that the order specifies that Christine receive a

minimum of two nonconsecutive Saturday visits per month at a time and place agreed upon by

the parties. However, given the parties’ tumultuous history, the order is not sufficient to ensure

that Christine will receive visitation when she and Thomas fail to agree on the time and place.

Id. Therefore, the portion of the order requiring that Christine’s visitation be “at a time and place

agreed by the parties” is reversed and the cause is remanded for the trial court to set a specific

schedule, unless the parties agree otherwise.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, the judgment of the circuit court of Kane County is reversed and

the cause is remanded for further proceedings consistent with this opinion.

¶ 40 Reversed and remanded with directions.

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