People v. Brenda O. (In re J.O.)

2021 IL App (3d) 210248

195 N.E.3d 837

457 Ill.Dec. 701

IN RE J.O. and J.P., Minors

(The People of the State of Illinois, Petitioner-Appellee,

v.Brenda O., Respondent-Appellant).

Appeal Nos. 3-21-0248

3-21-0249

Appellate Court of Illinois, Third District.

Filed October 28, 2021

John L. Holmes, of Mason and Scott, P.C., of East Moline, for appellant.

Dora A. Villarreal, State's Attorney, of Rock Island (Patrick Delfino and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Karri A. Belvel, of Rock Island, guardian ad litem.

PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 Respondent, Brenda O., appeals following the termination of her parental rights by the Rock Island County circuit court. She argues that both the court's finding of unfitness and its subsequent finding that termination was in the best interests of the children were contrary to the manifest weight of the evidence. We reverse the order finding respondent unfit and vacate the subsequent order terminating respondent's parental rights.

¶ 2 I. BACKGROUND

¶ 3 On September 19, 2017, the State filed a petition for adjudication of wardship in case No. 17-JA-37, alleging that J.O. (born July 29, 2016) was a neglected minor. It filed a similar petition in case No. 17-JA-38, alleging that J.P. (born May 31, 2017) was also a neglected minor. Respondent is the mother of J.O. and J.P. The allegations in the petitions detailed two domestic violence incidents between respondent and their putative father, Joseph P.

¶ 4 The petitions alleged that Moline police responded to reports of domestic disputes on August 13 and September 28, 2017. Both children were in the family residence during each of the incidents. On the second occasion, police observed respondent to be intoxicated; a Breathalyzer test indicated that her blood alcohol level was 0.278. Joseph could not be located by the responding officer. Due to Joseph's absence, respondent's intoxication, and the absence of any family members in the area, the police contacted the Illinois Department of Children and Family Services (DCFS), which took protective custody of the children.

¶ 5 In addition to the petitions for adjudication of wardship, the State filed petitions for temporary custody with respect to both children. The court granted temporary custody to DCFS, and the children were placed in foster care. Bethany for Children & Families, a social services provider, filed a visitation plan for respondent on September 28, 2017. The plan indicated that supervised visits would be held for two hours on Tuesdays and Thursdays.

¶ 6 On February 22, 2018, based on respondent's and Joseph's admissions to the allegations in the petitions, the court found J.O. and J.P. to be neglected minors. Following a dispositional hearing held the same day, the court found it was in the children's best interests to be made wards of the court and continued their placement in foster care. The dispositional order required respondent to attend and complete parenting classes, obtain a substance abuse evaluation and submit to random drug testing, obtain a psychological evaluation and comply with all treatment recommendations, maintain appropriate housing and income, cooperate with counseling, and obtain a domestic violence assessment and comply with all treatment recommendations.

¶ 7 In permanency orders issued on August 23, 2018, and November 29, 2018, the court found that respondent had made neither reasonable efforts nor reasonable and substantial progress toward the children's return to home. On May 24, 2019, the court found that respondent had made "minimal efforts and progress." In permanency orders dated August 30, 2019, and January 31, 2020, the court found that respondent had made reasonable and substantial progress toward the children's return to home. Reports from that time period indicated, inter alia , that respondent was engaged in counseling and progressing. She was also taking parenting classes and successfully implementing at home the techniques learned in those classes.

¶ 8 The State filed petitions for termination of parental rights in both cases on November 18, 2020. The petitions alleged that respondent¹ was unfit in that she (1) failed to maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare; (2) failed to make reasonable efforts to correct the conditions that were the basis for the children's removal during the nine-month period from February 1, 2020, through November 1, 2020; and (3) failed to make reasonable progress toward the return of the children during the same nine-month time period. The petitions specifically alleged that respondent failed to engage in counseling, consistently participate in a parenting support coach program, maintain employment or appropriate housing, maintain sobriety and perform drug screenings, complete a new substance abuse evaluation, refrain from domestic violence incidents, attend the majority of visits with the children, and refrain from criminal activity. On the final point, the petitions alleged that respondent had been charged with residential burglary, criminal trespass, and burglary in two separate criminal cases. Respondent had been incarcerated since August 16, 2020.

¶ 9 A hearing on the State's petitions commenced on March 19, 2021. Kristy Hutchison testified that she became the caseworker in December 2019 and continued in that role throughout the nine-month period in question. The children had been in foster care for more than two years before Hutchison became involved in the case. Hutchison had reviewed the case file and spoken to the previous caseworker.

¶ 10 In questioning Hutchison, the State noted that "[t]he petition specifically *** refers to a specific period of time, February 1, 2020, through November 1, 2020, regarding the efforts and progress by the parents." The State continued: "I'm going to ask you basically to discuss how the parents were doing specifically during that period of time." Hutchison testified that when she took over the case, visits between respondent and the children were supervised. Hutchison observed that, "during that time period," respondent provided appropriate meals and activities for the children. Respondent struggled to manage two children at the same time. Hutchison noted that while respondent interacted with one child, "the other would go off and do things." When asked what the frequency of scheduled visits was during the nine-month period in question, Hutchison testified that visits were scheduled once a week for an hour.

¶ 11 In early March 2020, respondent was allowed to begin unsupervised visitation with the children. Two such visits were held on Monday and Wednesday in the first week of March, with a third scheduled for Friday. On the intervening Thursday, however, the police responded to a domestic violence report involving respondent. Respondent only visited once with the children after that point, in April 2020. Hutchison testified: "I do not know exactly why she stopped visiting, but it was after the domestic that first week in March that [respondent] disappeared completely ***. She came once in April, and then we didn't talk to her again for several months." Respondent "eventually" informed Hutchison that she had gone to live with family members elsewhere in the state. Respondent offered no explanation as to why she had not apprised Hutchison of that fact at the time. Hutchison confirmed that respondent had the ability to contact her. Hutchison did not learn about respondent's incarceration—which began on August 16, 2020—until October. Hutchison testified that no visits had occurred since respondent's incarceration due to COVID-19 restrictions at the jail.

¶ 12 Respondent completed a parenting class through the Family Advocacy Center, though Hutchison did not indicate when that class was completed. The class was followed by in-home coaching with the parents. Hutchison noted that the coaching "wasn't completed because of the fact that [respondent] wasn't participating in visits after March of 2020."

¶ 13 Respondent was not employed at any point since Hutchison became the caseworker. Respondent told Hutchison that she was not working so "she could stay at home and spend time with the children." Hutchison could not opine on what respondent meant by that, given that the children were in foster care at the time. Hutchison referred respondent to temp agencies and discussed potential positions based on respondent's job history, but respondent did not follow through with those recommendations. Hutchison reported that the family was struggling to make ends meet.

¶ 14 Hutchison "believe[d]" that respondent had completed an initial substance abuse screening prior to Hutchison's involvement in the case. She added that respondent "wasn't compliant with testing" after Hutchison became the caseworker. Hutchison requested testing "[a]t least once a month." The State asked if respondent had completed any drug tests after Hutchison took over the case. Hutchison responded: "Honestly, I can't recall if she did. I can't recall. I didn't review that. I'm sorry." When asked if she had "a concern with [respondent] missing at least a majority of requested screens," Hutchison responded affirmatively. She testified that those concerns related to March, April, and May 2020.

¶ 15 The police report from the March 2020 domestic incident indicated that respondent had been drinking alcohol. Hutchison requested a test immediately thereafter—even offering to drive respondent to the testing location herself—but respondent refused. A new substance abuse evaluation was also requested at that time. Respondent did not complete that evaluation. There was no opportunity to conduct substance testing once respondent became incarcerated.

¶ 16 Respondent completed a domestic violence class at some point prior to Hutchison's involvement in the case. A Freedom of...