In re S.B.

2020 IL App (2d) 190773-U

• Court: Appellate Court of Illinois
• Decided: February 3, 2020
• Docket: 2-19-0773
• Status: Unpublished

Opinion

2020 IL App (2d) 190773-U No. 2-19-0773 Order filed February 3, 2020

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). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re S.B. & K.B., Minors, ) Appeal from the Circuit Court ) of Winnebago County. ) ) Nos. 15-JA-68 ) 16-JA-305 ) (The People of the State of Illinois, Petitioner- ) Honorable Appellee, v. Dinesha S., Respondent- ) Francis M. Martinez, Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hudson and Bridges concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in finding the respondent unfit or terminating her parental rights to her minor children.

¶2 The respondent, Dinesha S., appeals from the judgment of the circuit court of Winnebago

County finding her to be an unfit parent to her sons K.B. and S.B. and terminating her parental

rights. On appeal, the respondent argues that the trial court’s determination was against the

manifest weight of the evidence. We affirm.

¶3 I. BACKGROUND 2020 IL App (2d) 190773-U

¶4 K.B. was born on December 8, 2014. On December 22, 2014, at 4 a.m., the respondent

went to the emergency room with two-week-old K.B., “screaming” that she needed morphine for

restless leg syndrome pain. The respondent was given Dilaudid. She did not feed or change K.B.

during the hospital visit.

¶5 On December 24, 2014, the respondent returned to the emergency room and demanded

Dilaudid, which the doctor declined to prescribe for her. She was slurring her words and was

staggering and unsteady. She declined to care or feed K.B. while she was at the emergency room.

She stated that she wanted nothing to do with K.B., and she demanded the emergency room staff

care for him instead. She had not brought food, clothing or diapers with her. The respondent was

given a Norco pill and Xanax. The Department of Children and Family Services (DCFS) was

contacted due to the respondent’s alleged inadequate supervision of K.B. DCFS implemented a

safety plan for K.B. wherein K.B.’s father (T.B.) or K.B.’s grandmother would supervise all

contact between K.B. and the respondent.

¶6 On December 29, 2014, the respondent tested positive for cocaine.

¶7 On February 9, 2015, a new DCFS caseworker was assigned to K.B.’s case. She was

unable to contact the respondent, T.B., or K.B.’s grandmother until February 20. On that day, the

caseworker went to the respondent’s new home where she lived with T.B. The respondent

explained that she had moved into her new one-bedroom apartment on February 17 because her

previous apartment was too expensive. Her brother’s girlfriend and three kids were staying with

them because her brother had gone to jail for beating his girlfriend up. The respondent

acknowledged that she had recently used marijuana. The caseworker believed that the respondent

did not appear bonded to K.B. The caseworker therefore decided to take K.B. into protective care.

The respondent was very cooperative and immediately handed K.B. over to the caseworker. At

-2- 2020 IL App (2d) 190773-U

this time, T.B. woke up and became very agitated and took K.B. back from the caseworker. The

police were then called. T.B was then arrested for physically interfering with DCFS and police

attempts to take protective custody of K.B.

¶8 Following the arrest of T.B., the police advised the respondent not to bond him out of jail

due to her comments that she would be unsafe when he was released. Nonetheless, the respondent

bonded him out because, she explained, the situation would be worse if she did not bond him out.

After T.B. was released, the caseworker asked the respondent if he had hurt her. The respondent

asked: “what do you think?”

¶9 On February 24, 2015, the State filed a two-count petition alleging that K.B. was a

neglected minor. Count I alleged that K.B. was neglected because his environment was injurious

to his welfare in that the respondent had a substance abuse problem that prevented her from

properly parenting him. Count II alleged that K.B.’s environment was also injurious to his welfare

because his father angered easily and caused his mother to fear for her physical safety, thereby

placing K.B. at risk of harm.

¶ 10 On May 13, 2015, the trial court adjudicated K.B. neglected. On June 29, 2015, K.B. was

made a ward of the court and DCFS was named as his guardian and custodian. Service plans were

created for the respondent that required her to engage in substance abuse treatment, have individual

psychotherapy, and take domestic violence classes and parenting classes.

¶ 11 On December 17, 2015, at a permanency hearing, the trial court found that the respondent

was making reasonable efforts and reasonable progress towards the goal of having K.B. return

home to live with her.

¶ 12 On March 17, 2016, the respondent gave birth to S.B. In early August 2016, a caseworker

observed the respondent to have slow movements and slurred and unintelligible speech. On

-3- 2020 IL App (2d) 190773-U

August 16, 2016, the respondent and T.B. failed to answer repeated knocking and phone calls

when K.B. was brought to the residence for a scheduled visitation, while S.B. was still in the home.

The caseworkers were also concerned that the respondent continued to allow T.B. to be around

S.B., despite his ongoing misuse of alcohol and cocaine and his domestic violence towards her.

On August 26, 2016, S.B. was removed from the respondent’s care and custody because the

respondent’s medications led her to be unable to care for him, and she failed to seek medical

assistance until after he was removed from her care.

¶ 13 On August 29, 2016, the State filed a six-count petition alleging that S.B. was neglected

due to his parents’ substance abuse problems, the history of domestic violence in the home, and

because his parents had failed to cure the conditions that had resulted in his older brother being

removed from the home.

¶ 14 On November 7, 2016, the trial court found that S.B. was neglected. On December 7, 2016,

S.B. was made a ward of the court and DCFS was named as his guardian and custodian. The

service plans for the respondent recommended that she participate in domestic violence services,

parenting education classes, substance abuse assessment, individual/couples therapy, and a

psychological evaluation. On May 25, 2017, the trial court found that the respondent had made

reasonable efforts but deferred a finding as to progress toward the return home goal.

¶ 15 On July 23, 2017, the respondent gave birth to L.B. Except for a brief period of time, L.B.

was in the respondent’s care from the time he was born.

¶ 16 On November 29, 2017 and May 3, 2018, the trial court conducted permanency hearings.

On both occasions, the trial court found that the respondent was making reasonable efforts but not

reasonable progress towards the goal of returning home K.B. and S.B.

-4- 2020 IL App (2d) 190773-U

¶ 17 On November 2, 2018, the trial court again found that the respondent was making

reasonable efforts but not reasonable progress towards the return home goal. The trial court

therefore changed the goal to substitute care pending court determination of termination of parental

rights.

¶ 18 On November 14, 2018, the State filed motions to terminate the respondent’s parental

rights to both K.B. and S.B. The State’s two-count motions alleged that (1) the minors had been

in foster care for 15 months out of any 22 month period (see 750 ILCS 50/1(m-1) (West 2018))

and (2) the respondent had failed to protect the children from conditions within their environment

injurious to their welfare (see 750 ILCS 50/1(g) (West 2018)).

¶ 19 Between March 8, 2019, and April 26, 2019, the trial court conducted a hearing on the

State’s motions. The State informed the trial court that it was withdrawing the count alleging that

the minors had been in foster care for 15 months out of any 22-month period. The trial court

granted the State’s request that it take judicial notice of the neglect petitions, orders of adjudication,

orders of dispositions, and all orders following permanency reviews.

¶ 20 On May 9, 2019, the trial court conducted a dispositional hearing as to L.B. On May 29,

2019, the trial court determined that the respondent should retain guardianship and custody of L.B.

while she continued to engage in services.

¶ 21 On May 30, 2019, the trial court found that the respondent was unfit as to K.B. and S.B.

for purposes of the State’s motion to terminate parental rights. In so ruling, the trial court

acknowledged that it had just found the respondent fit as to the third sibling, L.B., on the previous

day. However, the trial court explained that was based on the evidence that was relevant to that

case.

-5- 2020 IL App (2d) 190773-U

¶ 22 On July 30, 2019, the trial court conducted the best interest portion of the hearing. A

caseworker testified that K.B. and S.B. had only been in one foster home and that the home was

safe and appropriate. She further testified that the boys were well cared for. She testified that the

children did not generally ask or inquire about the respondent outside of visitation. The respondent

testified as to her bond with the boys and about her visitation. The respondent also acknowledged

that, at the time of the hearing, there were criminal charges pending against her for endangering

the life of L.B. due to her driving under the influence.

¶ 23 On September 5, 2019, the trial court terminated the respondent’s parental rights to K.B.

and S.B. after finding that it was in their best interests. 1 The respondent thereafter filed a timely

notice of appeal.

¶ 24 II. ANALYSIS

¶ 25 The respondent contends that the trial court erred in finding that she was unfit to parent her

children and that it was in their best interest that her parental rights be terminated. The respondent

insists that she had made real progress in correcting the conditions that brought her children into

DCFS custody. She argues that it would be absurd to find her unfit based on the reasons for the

initial removal because it would render meaningless all the progress she made in her services and

sobriety.

¶ 26 Before addressing the respondent’s argument, we review the principles applicable to

termination proceedings. The Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West

2018)) provides a two-step process for the involuntary termination of parental rights. In re

1 T.B.’s parental rights to K.B. and S.B. were terminated during the same proceedings. His

parental rights are not at issue in this appeal.

-6- 2020 IL App (2d) 190773-U

Deandre D., 405 Ill. App. 3d 945, 952 (2010). First, the State must prove that the parent is unfit

by clear and convincing evidence. Id. Section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West

2018)) lists the grounds under which a parent may be found unfit. In re Tiffany M., 353 Ill. App.

3d 883, 889 (2004). Second, if the court makes a finding of unfitness, the court then considers

whether it is in the best interest of the minor to terminate parental rights. Deandre D., 405 Ill.

App. 3d at 953. The State has the burden of proving by a preponderance of the evidence that

termination is in the minor’s best interest. Id. A trial court’s determination of unfitness will not

be overturned unless the finding was against the manifest weight of the evidence. In re Michael

M., 364 Ill. App. 3d 598, 606 (2006). Further, this court will reverse a best-interest finding only

where it is against the manifest weight of the evidence or where the trial court abused its discretion.

Deandre D., 405 Ill. App. 3d at 953.

¶ 27 Our supreme court considered the identical argument the respondent raises herein in In re

C.W., 199 Ill. 2d 198 (2002). There, the parent was found unfit under section 1(D)(g) based on

her conduct before the children were removed, where the environment included abusive

relationships with the children’s fathers and the children had bruises at the time of removal. C.W.,

199 Ill. 2d at 201-04, 215. The respondent argued that was an improper basis to find her unfit

because it rendered meaningless the services that she had received and her successful completion

of those services. Id. at 216. Our supreme court held that it was irrelevant for purposes of section

1(D)(g) whether the parent failed to correct or improve the injurious conditions after removal of

the child (although this would be relevant to an unfitness finding under other sections, such as

section 1(D)(m)). Id. at 212-13, 218. Under section 1(D)(g), the parent’s conduct before removal

was “precisely the kind of evidence a court must consider in making a determination under” this

section. Id. at 215. As the supreme court explained, evidence of a parent’s completion of DCFS

-7- 2020 IL App (2d) 190773-U

services or refrainment from objectionable conduct after the child has been removed “does not

somehow absolve or erase” the initial conduct which led to removal of the child. Id. at 217.

¶ 28 Here, the record supports the trial court’s finding that the respondent was unfit at the time

K.B. and S.B. were removed from her home due to her substance abuse problems and the history

of domestic violence in her home. The fact that the respondent attempted to correct or improve

the injurious conditions after the children’s removal is simply not relevant to the issue of whether

the children’s environment was injurious when they were removed. See id. at 212-13, 218.

¶ 29 In so ruling, we reject the respondent’s argument that C.W. is distinguishable because that

case did not involve a younger sibling whom the trial court found could be parented by his mother.

The respondent’s argument is simply an alternate way of asking us to consider evidence about the

improved conditions in her home after K.B. and S.B.’s removal—evidence that the supreme court

has said is not relevant as to the issue of whether the minors’ environment was injurious to their

welfare at the time they were removed. See id.

¶ 30 We next turn to the trial court’s ruling on the best interest phase of the proceedings. The

Juvenile Court Act sets forth the relevant factors that a trial court is to consider in determining

what is in a child’s “best interest.” 705 ILCS 405/1-3(4.05) (West 2018)). The factors that the

trial court is to consider in the context of the child’s age and developmental needs are: (1) the

child’s physical safety and welfare; (2) the development of the child’s identity; (3) the child’s

familial, cultural and religious background and ties; (4) the child’s sense of attachments, including

love, security, familiarity, continuity of affection, and the least disruptive placement alternative;

(5) the child’s wishes and long-term goals; (6) the child’s community ties; (7) the child’s need for

permanence, including the need for stability and continuity of relationships with parent figures and

-8- 2020 IL App (2d) 190773-U

siblings; (8) the uniqueness of every family and child; (9) the risks related to substitute care; and

(10) the preferences of the person available to care for the child. Id.

¶ 31 As noted earlier, the State must prove by a preponderance of the evidence that termination

is in the child’s best interests. In re D.T., 212 Ill. 2d 347, 366 (2004). We will not disturb the trial

court’s decision unless that decision is against the manifest weight of the evidence. In re D.M.,

336 Ill. App. 3d 766, 773 (2002). The trial court’s decision is not against the manifest weight of

the evidence, unless the record clearly demonstrates that the opposite result is the correct one. Id.

Further, in reviewing the trial court’s decision, it is not this court’s role to re-weigh the evidence

or reassess the credibility of the witnesses. Id.

¶ 32 Based on our review of the record, there is nothing to indicate that the trial court erred in

determining that it was in K.B.’s and S.B.’s best interest that the respondent’s parental rights be

terminated. In considering K.B.’s and S.B.’s best interest, the trial court found that they had been

in the care of foster parents for most of their lives, except for briefs periods of unsupervised

visitation, and that they were closely bonded to their foster parents. The trial court further found

that the foster parents had demonstrated the ability to meet the challenges of the children and that

they were also willing to foster a relationship with the biological parents. The trial court noted that,

according to the caseworker, the children did not generally ask or inquire about the respondent

outside of visitation. The trial court concluded that, as the overriding purpose of the proceeding

was to provide permanency, it was in the best interests of the children to terminate the respondent’s

parental rights so as to provide them permanency. As the record supports the trial court’s findings,

we cannot say that the trial court’s decision was against the manifest weight of the evidence. See

id.

-9- 2020 IL App (2d) 190773-U

¶ 33 The respondent insists that every statutory factor weighed in favor of not terminating her

parental rights because she was the only one who could provide an environment where all three

siblings could live together. We find the respondent’s argument unpersuasive for three reasons.

First, the respondent is essentially asking us to reweigh the evidence—something that we may not

do. See id. Second, the respondent minimizes the amount of time that K.B. has been with his

foster family (since February 2015) and how long S.B. has been with that same family (since

August 2016). As the trial court noted, the children should have permanency in their lives,

something they have never enjoyed with the respondent. Third, the respondent’s argument

minimizes her April 2019 arrest for driving under the influence while L.B. was her passenger. Her

arrest calls into question whether she will be able to maintain custody of L.B. and therefore

undermines her argument that she could provide a home where all three boys could live together.

Further, her DUI arrest indicates that she has still not overcome one of the reasons why K.B. and

S.B. were removed from her in the first place—her substance abuse problems. Accordingly, the

fact that she maintains custody of L.B. is not enough to say that the trial court’s determination to

terminate her parental rights as to K.B. and S.B. was against the manifest weight of the evidence.

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, the judgment of the circuit court of Winnebago County is affirmed.

¶ 36 Affirmed.

- 10 -