|
(Cite
as: 196 Ill.2d 181, 752 N.E.2d 1030, 256 Ill.Dec. 788)
Supreme
Court of Illinois.
In
re C.N., A Minor (The People of the State of
Illinois, Appellant,
v.
Diane N. et al., Appellees).
No.
87519.
May
24, 2001.
Father's
unsubstantiated statements concerning his alleged Indian heritage were insufficient to
implicate the provisions of the Indian Child Welfare Act (ICWA)
in proceeding to terminate father's parental rights; father never asserted
the applicability of the ICWA before the circuit court, and
on appeal, cited only two brief references in the record
touching on the subject of his alleged Indian heritage. Indian
Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Whether
the circuit court was required, under the facts and circumstances
of a case, to make a determination as to the
applicability of the Indian Child Welfare Act (ICWA) is a
legal issue which the Supreme Court reviews de novo. Indian
Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
The
termination of parental rights constitutes a permanent and complete severance
of the parent-child relationship; accordingly, proof of parental unfitness must
be clear and convincing. S.H.A. 705 ILCS 405/2-29(2); 750 ILCS
50/8(a)(1), 17.
To
reverse a trial court's finding that there was clear and
convincing evidence of parental unfitness, in a proceeding to terminate
parental rights, the reviewing court must conclude that the trial
court's finding was against the manifest weight of the evidence.
A
finding is against the manifest weight of the evidence where
the opposite conclusion is clearly evident.
Supreme
Court's determination of the appropriate standard for measuring progress under
the Adoption Act, for purposes of terminating parental rights for
failing to make reasonable progress toward child's return within 12
months of the adjudication of neglect, necessarily involves statutory interpretation,
a question of law; review of this issue, therefore, proceeds
de novo. S.H.A. 750 ILCS 50/1, subd. D(m).
The
overriding purpose of the Juvenile Court Act is to ensure
that the best interests of the minor, the minor's family,
and the community are served. S.H.A. 705 ILCS 405/1-2.
Proper
measure of reasonableness of parents' progress toward goal of returning
child within 12 months after her adjudication as a neglected
minor was based on parents' compliance with service plans and
court's directives, in light of condition which gave rise to
removal of child, and in light of other conditions which
later became known and which would have prevented the court
from returning custody of child to parents, rather than measuring
progress from situation that gave rise to child's removal, without
regard to whether parents met goals outlined by Department of
Children and Family Services (DCFS).
S.H.A.
705 ILCS 405/1-2; 750 ILCS 50/1, subd. D(m).
Absent
a statutory definition indicating a different legislative intent, the court
ascribes to a word its ordinary and popularly understood meaning.
In
light of the deep human importance of parental rights and
responsibilities and the fundamental liberty interest at stake, courts must
take care to ensure that the statutory requirements for service
plans are met in every case, and that the overall
focus in evaluating a parent's progress toward the return of
the child remains, at all times, on the fitness of
the parent in relation to the needs of the child.
S.H.A. 750 ILCS 50/1, subd. D(m).
The
benchmark for measuring a parent's "progress toward the return of
the child," under provision of the Adoption Act defining a
parent as unfit due to failure to make reasonable progress
toward the return of the child, encompasses the parent's compliance
with the service plans and the court's directives, in light
of the condition which gave rise to the removal of
the child, and in light of other conditions which later
become known and which would prevent the court from returning
custody of the child to the parent. S.H.A. 705 ILCS
405/1-2; 750 ILCS 50/1, subd. D(m).
Only
evidence of father's conduct during the 12 month period following
the second neglect adjudication was relevant to determining whether he
was an unfit parent for failure to make reasonable progress
toward child's return, where child was previously adjudicated neglected and
abused by mother and father's brother. S.H.A. 750 ILCS 50/1,
subd. D(m).
Action.
Court-ordered
service plans, which required mother and father to participate in
sexual abuse counseling, exhibit appropriate parenting skills, obtain alcohol and
substance abuse evaluations, and maintain an appropriate residence were reasonably
related to remedying conditions which led to child's removal, such
that removal of mother's reported husband from family residence was
insufficient to resolve conditions that triggered child's removal. S.H.A. 750
ILCS 50/1, subd. D(m).
Whether
based on conduct during 12-month period following child's first or
second adjudication as a neglected child, determination that mother was
unfit for failure to make reasonable progress toward child's return
was not against manifest weight of the evidence; after first
adjudication, mother failed to comply with terms of court-ordered service
plan and focused upon her anger and hostility toward Department
of Children and Family Services (DCFS), disclaiming any responsibility for
child's abuse, and, even after second adjudication, mother continued to
oppose DCFS intervention and failed to follow through on sexual
abuse counseling. S.H.A. 750 ILCS 50/1, subd. D(m).
Testimony
of psychologist who conducted a bonding assessment of mother and
child was relevant to the issue of mother's ability to
parent child and provide a safe environment, in proceeding to
terminate mother's parental rights, for failure to make reasonable progress
toward the return of child within 12 months of neglect
adjudication. S.H.A. 750 ILCS 50/1, subd. D(m).
Determination
that father was an unfit parent for failing to make
reasonable progress toward return of minor child, independent of mother's
conduct, was not against manifest weight of the evidence; caseworker
testified as to her concerns about father's ability to parent
child, who was developmentally delayed due to a prior lack
of stimulation and nurturing, father minimized impact of abuse on
child and took a simplistic view of her needs, and
failed to cooperate with Department of Children and Family Services
(DCFS), at times becoming
verbally abusive to caseworkers, foster parents, and other service
providers.
S.H.A. 750 ILCS 50/1, subd. D(m).
**1032
***790
*183
James E. Ryan, Attorney General, Springfield, and David R. Akemann,
State's Attorney, St. Charles (William L. Browers and Mary Beth
Burns, Assistant Attorneys General, Chicago, Norbert J. Goetten, Martin P.
Moltz and David A. Bernhard, Office of the State's Attorneys
Appellate Prosecutor, Elgin, of counsel), for the People.
Josette Skelnik, Elgin, for appellee Mark N.
Justice FITZGERALD delivered the opinion of the court:
Following an evidentiary hearing in the circuit court of Kane
County, the circuit court found that respondents, Diane N. and
Mark N., were unfit parents under section 1(D)(m) of the
Adoption Act (750 ILCS 50/1(D)(m) (West 1996)), because they failed
to make "reasonable progress" toward the return of their daughter,
C.N., within 12 months of her adjudication as a neglected
minor. The circuit court subsequently terminated respondents' parental rights to
C.N., and respondents appealed. The appellate court reversed, holding that
the circuit court's finding of unfitness was against the manifest
weight of the evidence. Nos. 2-98-0565, 2-98-0674 cons., 303 Ill.App.3d
1105, 254 Ill.Dec. 697, 747 N.E.2d 1109 (unpublished order under
Supreme
Court Rule 23). We reverse the judgment of the appellate
court, and affirm the judgment of the circuit court terminating
respondents' parental rights to C.N.
**1033
***791
BACKGROUND
On October 17, 1994, the Department of Children *184
and Family Services (DCFS) took protective custody of S.S. (born
August 2, 1990) and her half-sister, C.N. (born May 15,
1994).
[FN1] Two days later, the State filed a petition for
adjudication of wardship as to both minors, naming Diane N.
as the minors' mother, and Diane's reported husband, Marin N.,
as C.N.'s father. The State alleged that Diane and Marin
physically abused S.S., or allowed such abuse to occur, and
that C.N. was at risk. According to the State's petition,
S.S. was hospitalized with two skull fractures, a laceration to
the forehead, and bruises to the head, chest, and buttocks.
The State further alleged that C.N. and S.S. were neglected
in that their environment was injurious to their welfare.
FN1.
This appeal concerns the termination of parental rights only as
to C.N.
On January 3, 1995, Diane admitted that the minors' environment
was injurious to their welfare. As to Diane only, the
court adjudged S.S. and C.N. neglected.
The court found that it was in the minors' best
interests that they be made wards of the court, and
appointed DCFS guardian. S.S. and C.N. were placed in foster
care, but S.S. was later placed in a residential treatment
center. The court ordered Diane to cooperate with DCFS and
its contracting agencies; comply with all aspects of the client
service plan; submit to a substance abuse evaluation and follow
all recommendations; undergo a psychological evaluation and follow all treatment
recommendations; and complete parenting classes.
On January 31, 1995, the State filed a "petition II"
for adjudication. The State alleged that Marin committed aggravated criminal
sexual assault against S.S.; that C.N. showed signs of sexual
abuse; and that Diane failed to protect S.S. and C.N.
from sexual abuse.
During the course of the circuit court proceedings, the parties
learned that Diane was not divorced from her first husband
at the time she married Marin. Accordingly, *185
Diane's first husband, whom she married in 1990, would have
been the presumptive father of C.N. Amid claims by respondents,
however, that Mark, Marin's brother, is C.N.'s father, on August
8, 1995, the circuit court ordered paternity testing. The November
1995 test results confirmed that Mark is C.N.'s father. On
May 6, 1996, the State filed an amended petition for
adjudication, and an amended petition II for adjudication, naming Marin
as C.N.'s uncle and Mark as C.N.'s father. Shortly thereafter,
Mark filed
a petition seeking a determination of paternity as to C.N.
The court ruled on that petition on May 21, 1996,
finding Mark to be C.N.'s father.
On June 5, 1996, Diane and Mark stipulated that S.S.
and C.N. were sexually abused by Marin, that S.S. was
physically abused by Marin, and that Diane caused or allowed
such physical abuse. Accordingly, the circuit court adjudged C.N. a
neglected and abused minor as to both respondents. For a
second time, the circuit court found that it was in
the best interest of the minors that they be made
wards of the court, and again placed guardianship in DCFS.
The circuit court ordered Diane to cooperate with DCFS, its
agents, and the client service plan; begin counseling at Sinnissippi
Centers and follow all treatment recommendations; continue to participate in
in-home parent education classes until she consistently exhibited appropriate parenting
and nurturing behavior; and cooperate with the psychological evaluation and
sexual **1034
***792
offenders assessment. The circuit court ordered Mark to continue participating
in in-home parenting classes until he consistently exhibited appropriate parenting
and nurturing behavior; participate in a psychological evaluation; participate in
a drug and alcohol assessment; participate in a comprehensive social
assessment; and cooperate with DCFS, its agents, and *186
the client service plan. Although the circuit court also ordered
Mark to participate in counseling for sexual offenders, that portion
of the
order was stricken and Mark was, instead, ordered to participate
in counseling for the family of sexual offenders.
Sixteen months later, on October 7, 1997, the State filed
a petition to terminate respondents' parental rights to C.N. The
State alleged, in relevant part, that respondents were unfit under
section 1(D)(m) of the Adoption Act because they failed "to
make reasonable progress towards the return of the child within
12 months after an adjudication of neglected minor, abused minor
or dependent minor." An evidentiary hearing on the State's petition
commenced on February 3, 1998. The State called several witnesses.
Peggy
Everling
DCFS investigator Peggy Everling testified that she responded to a
hot line call on July 11, 1994, informing her that
S.S. and C.N. were at risk, and that S.S. had
been injured by Marin, the putative father. At the time
of the hot line call, Diane, Marin, and the two
minors were living together at the Maple Park Motel. S.S.
told Everling that she had been lying in bed with
Marin, became sick, and vomited in the bed. Marin became
upset and "whacked" her on the head. When Diane returned
home, S.S. told her what had happened, and Diane confronted
Marin. Marin grabbed a steel pipe and, in the course
of trying to hit Diane, hit S.S. in the mouth,
chipping her tooth. Diane disputed S.S.'s account of how the
injuries occurred, but told Everling that she was aware that
Marin had a temper and that he had previously hit
S.S.
Mark told Everling that he, too, had seen Marin hit
S.S. on prior occasions. Mark also witnessed the July 1994
incident, and in response had called the police. Mark signed
the complaint against Marin in connection with that incident because
Diane refused to do so. Although *187
Mark appeared concerned about the children and was cooperative, Everling
was concerned that Mark had failed to intervene when Marin
became abusive. Diane was minimally cooperative and appeared more concerned
about Marin than the children. Diane did not want to
keep Marin away from S.S. and C.N. during the DCFS
investigation, and posted Marin's bail following his arrest.
Lynn
Appelt
DCFS investigator Lynn Appelt responded to another hot line call
in October 1994, informing DCFS of certain injuries to S.S.
Appelt testified that in a telephone conversation on October 17,
1994, Diane advised Appelt that Marin was no longer living
with her, that Marin was staying with a friend whose
name and address she could not remember, and that she
wanted nothing to do with him. Diane told Appelt that
C.N. was with a baby-sitter, and that she wanted to
give guardianship of C.N. to her brother.
Investigation by DCFS revealed that C.N. was with Marin at
the baby-sitter's home. Appelt determined that the baby-sitter was not
an appropriate caregiver in light of the baby-sitter's prior contact
with DCFS due to an injurious home environment. Appelt eventually
located Diane, Marin, and C.N. at the Oregon, Illinois,
home of Diane's father, where Appelt took C.N. into protective
custody. Appelt later **1035
***793
learned that the brother with whom Diane wished to place
C.N. had sexually abused Diane, making placement with him inappropriate.
Appelt also testified that she spoke to S.S. at her
foster home in early November 1994, and observed an injury
to the child's forehead, with 20 to 25 stitches. S.S.
told Appelt that she had been hit on her feet
with a stick, that she had been hit with a
"Mr. Big Stick," and that her mother had slapped her
in the face. S.S. also stated that Marin would leave
her and C.N. at home alone, and *188
that she had told her mother this was happening. Diane
denied slapping S.S., and told Appelt that Marin did not
abuse S.S. Diane admitted that S.S. had been hit and
sexually abused, but implicated a former husband and other men
with whom Diane had been involved.
Appelt testified that she took C.N. into protective custody because
of the current injuries to S.S., the past history of
abuse, Diane's lack of cooperation with DCFS, Diane's lack of
judgment in suggesting placement for the minors with her brother,
Diane's inability to protect her children, and Diane's inability to
appreciate the dangerous situations in which she placed her children.
Mark had not been implicated in the abuse and was
not a subject of Appelt's investigation at that time.
Rich
Maier
Rich Maier, a DCFS child welfare specialist, testified that DCFS
received another hot line call during November 1994, indicating that
S.S. and C.N. had been sexually abused.
Maier drafted the initial client service plan that month, which
was directed to Diane and Marin. Under the plan, Diane
was to obtain a substance abuse evaluation and a psychological
evaluation, participate in counseling and parenting classes, and obtain and
maintain appropriate housing. The permanency goal of the initial service
plan was "return home." In early February 1995, Maier rated
Diane's progress toward this goal satisfactory. Maier testified that Diane
had started counseling with Amy Unterborn at St. Charles Family
Center; she had obtained a substance abuse evaluation; and she
was either attending or about to begin parenting classes at
the Four C's (Community Coordinated Child Care). Although the substance
abuse evaluation revealed no alcohol or substance abuse by Diane,
based on Diane's family history and Diane's own drinking pattern,
the evaluator recommended alcohol education.
*189
Maier also drafted the February 1995 service plan. By this
time, Mark and Diane had advised Maier that Mark may
be C.N.'s father. The February 1995 service plan, however, was
directed only to Diane and Marin because Mark's paternity was
not yet established. Under the plan, Diane was required to
participate in counseling to examine her role in the removal
of her children
and to receive the recommended alcohol education. She was also
required to participate in parenting classes and set up a
stable housing situation. On his own accord, Mark accompanied Diane
to all six parenting classes at the Four C's, successfully
completing the program.
Tim
Rezash
Tim Rezash, an intern at the Ben Gordon Community Mental
Health Center, completed a psychological assessment of Diane in early
1995. Rezash testified that, normally, parents in Diane's situation blame
themselves for the abuse of their children and ask themselves
what they could have done differently. Diane did not exhibit
this behavior. She did not feel responsible in any way
for the abuse of her daughters and did not empathize
with them. Rezash did not consider Diane a good candidate
for insight-oriented therapy**1036
***794
and, instead, recommended behavior and cognitive therapies. His prognosis for
success was poor to guarded.
Amelia
Apperson
Amelia Apperson, a DCFS child welfare specialist, was the primary
case worker between March 1995 and September 1996. At the
time she assumed responsibility for the case, Mark and Diane
resided together.
In August 1995, Apperson evaluated Diane's progress with respect to
the February 1995 service plan goal of "return home." Apperson
rated Diane's progress unsatisfactory. Apperson testified that Diane was uncooperative
and failed
to complete tasks and objectives set forth *190
in the client service plan. Diane failed to attend counseling
on a regular basis, continued to deny any responsibility for
the abuse of her children, and, notwithstanding her completion of
a parenting class, failed to exhibit appropriate parenting skills during
visits with C.N. Based on Apperson's own observations, and a
recommendation from Amy Unterborn, Diane's counselor, Apperson suggested in-home parenting
classes involving both Diane and Mark. Apperson explained to them
the specific behaviors with which she was concerned. Although at
this point paternity testing had not yet been completed, Mark
told Apperson that he knew he was C.N.'s father. The
August 1995 service plan was therefore directed to Diane, Marin,
and Mark. In drafting the August 1995 service plan, Apperson
took into account an assessment of C.N. which indicated that
she was developmentally delayed by six months due to a
prior lack of stimulation and nurturing. The plan specified that,
during supervised visits, Diane spend more time interacting with C.N.,
rather than with the visit supervisor.
Apperson further testified regarding a September 8, 1995, visit by
respondents with C.N. at the DCFS office. Apperson's supervisor terminated
the visit after respondents became visibly angry in response to
a parenting suggestion made by the visit supervisor. Diane raised
her voice and hit a wall outside the visiting room.
Mark commented that it was "bullshit" and a "Gestapo regime."
Apperson testified that this visit was the first in a
long line of visits
which appeared to cause C.N. great stress. C.N. would cry,
bite herself, pull her hair out, and bang her head.
During the period November 1995 to January 1996, Apperson felt
that respondents had failed to make progress toward the goal
of "return home." Although Diane consistently attended counseling sessions, the
couple's progress in the in-home parenting classes was inconsistent. In
addition, visits with C.N. were still going poorly.
*191
In late February 1996, Apperson rated respondents' progress unsatisfactory. Apperson
cited Diane's lack of cooperation with DCFS service providers, her
failure to be present for all in-home appointments, her inconsistent
attendance at counseling, her failure to address the past abuse,
her failure to keep rent and utilities current, and her
poor judgment in allowing various individuals to live with her
and Mark. Apperson's written evaluation reflected many of the same
concerns about Mark. Apperson also testified that respondents failed to
complete in-home parenting classes. In the February 1996 service plan,
Apperson changed the permanency goal from " return home" to
"foster parent placement," but testified that the goal could be
changed at any time, based on the cooperation and progress
of the parents.
In March 1996, Apperson had discussions with Mark concerning his
plan to obtain custody of C.N. Apperson was concerned about
Mark's understanding of **1037
***795
C.N.'s emotional health. Other than regaining custody, Mark had
no plan to deal with C.N.'s emotional needs.
Apperson further testified that sometime during the period of March
1996 through May 1996, Amy Unterborn discharged Diane from counseling.
Diane's attendance was poor and her efforts in therapy were
sporadic. Believing that the commute to Unterborn's office may have
been a problem for Diane, Apperson referred Diane to the
Sinnissippi Centers, an agency closer to Diane's home. Diane did
not complete the initial assessment at Sinnissippi, explaining to Apperson
that she would not discuss her personal life with a
counselor.
Apperson was also concerned about the stability in respondents' present
home because they continued to allow other persons to live
with them. Diane reported that one of the women who
lived with them had stolen from her, and that a
cousin had taken one of respondents' vehicles to Arkansas without
their permission. Mark also *192
reported an incident in which he discovered one of the
persons who was living with them going through their belongings.
Following the circuit court's determination that Mark is C.N.'s father,
Apperson did not explore the possibility of returning C.N. to
Mark because he continued to live with Diane. Apperson was
also concerned about Mark's judgment and ability to care for
C.N. Mark admitted that he had been involved in C.N.'s
life before she had been placed in foster care. C.N.,
however, was developmentally delayed due to a lack of stimulation
and nurturing. In addition, Mark continued to minimize the impact
of the abuse on C.N. Mark felt
that if he simply brought C.N. home and loved her,
she would get better. Apperson explained that C.N. had special
needs, requiring "serious therapy, serious structure, serious care."
In August 1996, Apperson evaluated respondents' progress under the February
1996 service plan. Apperson rated Diane's cooperation and completion of
tasks unsatisfactory, citing Diane's unsuccessful discharge from counseling with Amy
Unterborn, her failure to complete the assessment at Sinnissippi Centers,
and her failure to advise Apperson at one point that
she was homeless. Apperson rated Mark's cooperation unsatisfactory, noting the
adversarial role he took with her and his failure to
sign certain releases, thus preventing referrals for counseling. Apperson also
rated respondents' progress in demonstrating adequate parenting skills unsatisfactory. Apperson
relied on her own observations, as well as reports from
the visit supervisor and the in-home educator. Apperson testified that
during the August 1996 administrative case review, as she discussed
the reduced visitation schedule with respondents, they became belligerent and
the reviewer asked them to leave.
Amy
Unterborn
Amy Unterborn, a licensed social worker at Therapeutic *193
Solutions, Inc., an affiliate of St. Charles Family Center, began
counseling Diane individually in November 1994. Unterborn testified that the
focus of the counseling was on parenting skills relative to
establishing a safe environment, anger
management, problem solving, and appropriate child development expectations.
From November 1994 to June 1995, Diane missed two appointments.
During this time, Diane had difficulty processing issues involving the
creation of a safe environment in the home and how
her actions might impact safety and stability in the home.
Diane also did not recognize that her children would suffer
long-term consequences due to the abuse.
**1038
***796
From June 1995 through July 1995, Diane missed one appointment.
During this period, therapy continued to focus on the establishment
of a safe environment for Diane's children, problem-solving skills, and
appropriate child development expectations.
From July 1995 through October 1995, Unterborn had sessions with
Diane and C.N. Unterborn testified that Diane expected C.N. to
use logic and reason that a child of C.N.'s age
would not possess. Diane expressed her lack of understanding of
C.N.'s special needs, and admitted that she had exposed S.S.
and C.N. to an inadequate environment. According to Unterborn, this
understanding is the first step in taking responsibility and establishing
new behaviors. During this period, Diane had difficulty expressing anger
in appropriate ways, she did not internalize the concepts that
were worked on in therapy, and she did not demonstrate
the skills necessary for a safe environment. Unterborn was also
concerned about the miscommunication Diane created,
which frustrated the efforts of professionals to coordinate care for
Diane and her children. Unterborn testified that Diane's prognosis was
guarded.
From October 1995 through January 1996, Diane *194
missed four appointments, one of which was an excused absence.
During this period, Diane's life was chaotic with respect to
employment and housing, and she made no progress toward stability.
She was not responding constructively to daily stressors. Diane also
made little progress in her ability to empathize with C.N.
in that she failed to recognize the impact of the
emotional distress stemming from the abuse. Diane did not demonstrate
a mature relationship with Mark focused on child rearing. Diane
disclosed that she had frequent transient house guests with whom
she had verbal and physical altercations. In therapy, Diane focused
on her anger at DCFS, rather than focusing on the
skills she needed to develop. Diane's progress was minimal and
the prognosis was guarded.
Between January 1996 and April 1996, Diane had one unexcused
absence and three excused absences. Diane told Unterborn that she
was confident that once her children were returned to her
that they would then be able to get the care
they needed. Unterborn testified, however, that Diane's home was not
stable enough to handle the emotional disturbances that C.N. was
exhibiting. Diane was not able, in therapy, to articulate possible
ways of dealing with C.N.'s self-mutilating
behavior or instances where C.N. acted out sexually. Diane did
not indicate that she could set limits for C.N. or
handle a crisis. Diane also continued to have relationships with
individuals who were adversarial and often unstable.
In May 1996, Unterborn discharged Diane from therapy because of
her failure to keep the attendance contract. Unterborn did not
feel that Diane was making a reasonable effort to get
to counseling. Unterborn testified that Diane had not made reasonable
progress, given the length of therapy, and, at discharge, Diane's
prognosis remained guarded. According to Unterborn, Diane could have made
more progress had she spent more time focusing *195
on counseling rather than how to manipulate the system.
Patty
Klapperich
Patty Klapperich, a homemaker for DCFS, supervised visits between respondents
and C.N. during the latter part of 1995. Klapperich testified
that Mark generally engaged in the child care to a
greater degree than Diane, who would tell Mark what to
do.
During a visit on September 8, 1995, Klapperich, who was
instructed to do parent **1039
***797
education during the visits, made several parenting suggestions regarding the
feeding of C.N. Klapperich testified that Mark became increasingly aggravated
and furious. Both Mark and Diane were yelling. A supervisor
terminated the visit. According to Klapperich, C.N. had
a difficult time with subsequent visits, most of which ended
early because Diane did not have the endurance to work
with C.N.
Andy
Thompson
Andy Thompson, a child care advocate at Sinnissippi Centers in
Rochelle, Illinois, testified that DCFS referred respondents for participation in
the parenting program. Beginning in late August 1995, and continuing
for a period of about nine months, Thompson worked with
respondents once or twice a week in their home. Thompson
first spoke to respondents by telephone on August 30, 1995.
When Thompson identified herself, Mark became angry and told Thompson
that DCFS was harassing him. Respondents' dissatisfaction with DCFS came
up at almost every session.
Thompson testified that, overall, respondents were not cooperative and their
attendance at the parenting sessions was sporadic. On five or
six occasions, respondents were not home. On approximately four occasions,
respondents were home, but said they had forgotten about the
session. On other occasions, Diane did not arrive *196
home until after the session had already started. On yet
another occasion, Diane said her time was limited because she
had an appointment elsewhere. Finally, on one occasion Diane did
not participate because she was asleep on the couch and
Mark's efforts to wake her were unsuccessful. Thompson also testified
that one session was delayed by 20 minutes while respondents
searched for jewelry supposedly stolen by a house guest.
According to Thompson, respondents made little progress in the parenting
classes. Although respondents scored high on a pretest and understood
the book material, they did not put into practice the
concepts they learned. Respondents continued to display negative behaviors discussed
in prior sessions. Sinnissippi terminated services when respondents moved out
of the area.
James
Jorgenson
James Jorgenson, owner of Taking Control, a psychological counseling facility,
testified that in 1995 DCFS referred Diane to him to
evaluate the degree of bonding between her and C.N. During
the assessment, Jorgenson observed very little interaction between Diane and
C.N. Diane tried to coax a positive reaction from C.N.,
but C.N. became increasingly upset. Jorgenson decided to terminate C.N.'s
involvement and continued the assessment with Diane alone; Diane appeared
relieved.
Jorgenson testified that Diane displayed little emotion in regard to
her children; she focused on what had been done to
her, rather than what had been done to them. Diane
expressed only a perfunctory concern for the safety of her
children and spoke about them as possessions. Jorgenson believed that
unresolved issues from Diane's past, including her own abandonment and
abuse as a child, and her combative way of dealing
with the world, reduced her effectiveness
as a parent. He testified that Diane is unable to
set limits and boundaries for her children, which impacts her
ability to protect them. Jorgenson *197
concluded that Diane was not able to deal with C.N.'s
needs at that time, and would not be able to
do so in the near future. Jorgenson recommended that C.N.
not be returned to Diane until further rehabilitative measures were
taken, but that if Diane was not cooperative, DCFS should
consider pursuing the termination of Diane's parental rights. According to
**1040
***798
Jorgenson, Diane displayed combativeness and vindictiveness toward DCFS.
Patricia
Kozlowski
Patricia Kozlowski, a homemaker with Colton Health Care, worked with
respondents from November 1995 to May 1997. As a homemaker
she supervised weekly visits with C.N. and transported C.N. to
visits. Typically, visits took place at a Target store or
at the park. Although Kozlowski was not to give parenting
instructions, she was required to stop anything that was inappropriate.
Kozlowski testified regarding several visits in which respondents engaged, or
attempted to engage, in conduct she considered inappropriate. Such conduct
by Diane included giving C.N. a plastic serrated knife to
play with, instead of a plastic spoon, and failing to
wash her hands after changing C.N.'s diaper. Conduct by Mark
that Kozlowski considered inappropriate included offering C.N. a dirty pacifier
and discussing a horror movie
in graphic detail in front of C.N., who was two
years old at the time. Kozlowski also testified that both
respondents repeatedly smoked while holding C.N.; placed food directly on
the table or highchair, instead of using a plate; gave
C.N. too much food at one time, in pieces that
were too large; and failed to check C.N. for other
marks after noticing red dots on her neck. Kozlowski also
testified that Diane had ended a visit early because C.N.
was "boring" in that she was withdrawn and would not
walk or talk.
Jennifer
Saleuckyj
DCFS caseworker Jennifer Saleuckyj testified that, in *198
February 1997, she evaluated the August 1996 client service plan
that Amy Apperson drafted. Saleuckyj rated the progress of respondents
unsatisfactory. Respondents did not feel they should have been "indicated"
[FN2]
and did not see the need for services. Respondents did
not participate in any parenting classes from August 1996 to
the time of Saleuckyj's evaluation. Although Diane completed a psychological
evaluation, it took her five months to do so. Mark
was not participating in any counseling, with the exception of
an "on-call" service of which DCFS had no information, and
did not complete alcohol and psychological assessments until the latter
part of January 1997.
FN2.
Under the Abused and Neglected Child Reporting Act, if an
investigation determines that credible evidence of the alleged abuse or
neglect
exists, an "indicated report" is made. 325 ILCS 5/3 (West
1998).
Notwithstanding the unsatisfactory rating in February 1997, Saleuckyj felt that
respondents could still work toward regaining custody of C.N. Saleuckyj
created a new service plan with the same tasks as
the August 1996 plan. Based on the issues that brought
the family to the attention of DCFS, the main component
of the service plan was counseling. Respondents agreed to follow
through on a referral to Family Advocate to address issues
of child protection and how to care for children who
have been sexually abused. Respondents also agreed to participate in
in-home parenting services.
John
Larson
DCFS caseworker John Larson was assigned the case in March
1997. In August 1997, he evaluated the service plan of
February 1997. One objective under the plan was that Diane
participate in a counseling assessment at Family Advocate. Larson rated
Diane unsatisfactory on this objective, and other objectives regarding counseling,
because Diane had made no attempt to attend the counseling
services. Similarly, Larson rated Mark unsatisfactory *199
on the objectives of the service plan dealing with counseling.
The only counseling **1041
***799
in which Mark was involved was a telephone counseling service.
Under the service plan, Mark was also required to have
adequate housing for all family members. Larson rated Mark unsatisfactory
on this objective because respondents' residence had been found unfit
for habitation by the City of Rockford. Larson testified, however,
that Mark subsequently obtained acceptable housing with the help of
DCFS. Larson also testified that Mark successfully completed a psychological
assessment and a drug and alcohol assessment, and that further
services in this area were not indicated.
Larson rated respondents unsatisfactory with respect to parent training, in
that they failed to follow through on Larson's referral to
Catholic Charities. Larson was not aware that respondents had completed
an academic parenting class. Larson also testified that respondents later
attended parenting classes at a different service provider, but that
the classes were not comparable in depth or length to
the classes at Catholic Charities.
Amy
Butt
Amy Butt, an employee of Family Advocate, testified that her
agency specializes in the treatment of sexual abuse and offers
counseling to address issues relating to the parenting of a
child who was abused. Through DCFS, respondents were referred to
Family Advocate for an assessment, which requires five sessions. Respondents
did not attend any of the five initial sessions scheduled
for them in March and April 1997. Another appointment was
scheduled in May 1997. Ultimately, the agency closed the file
without services being provided
to respondents.
Elaine
Gaither
Elaine Gaither, the parenting coordinator at Catholic Charities of Rockford,
testified that she received a referral *200
from DCFS to involve respondents in parenting classes. Respondents attended
an orientation class in July 1997, but failed to attend
their first scheduled class in early August, apparently due to
transportation and child care problems. Gaither tried to work with
respondents on child care issues, and tried to accommodate their
schedules, switching their class time. She also gave Diane referrals
to alternate parenting programs in the community. During one telephone
call in which Diane indicated that she had failed to
follow up on Gaither's recommendation for child care, Diane became
angry and argumentative. Ultimately, respondents were discharged from the program
for lack of attendance.
The State rested. Respondents each moved for a "directed finding,"
which the trial court denied. Respondents did not testify. They,
however, called three witnesses.
Elaine
Goodwin
Elaine Goodwin, a parent educator at the Four C's, testified
that, beginning on January 17, 1995, respondents attended a group
of six parenting classes. The key topics included child development,
parent-child communication, parent and
child self-esteem, stress management, child guidance, behavior management, and appropriate
disciplinary techniques. Respondents satisfactorily completed homework assignments and participated in
class discussions. Mark scored 83% on a pretest and 89%
on a post-test. Diane scored 87% on a pretest and
91% on a post-test. Goodwin did not observe respondents with
their children.
Julie
Thompson
Julie Thompson, a licensed clinical social worker with Family Consultation
Services, testified that she met respondents in September 1997, in
conjunction with their attendance at a small group parenting class
that she *201
taught. The focus of the class, **1042
***800
which consisted of three sessions, was behavior management. Although respondents
expressed their anger at the system, their attitude toward the
class was positive. Thompson testified that respondents' participation in class
discussion indicated a knowledge of child development and parenting skills
greater than the average participant, which suggested that they had
attended parenting classes prior to her class. Although Thompson never
observed respondents with their children, based on their class participation,
it appeared to her that respondents were applying their knowledge
of parenting skills. Thompson testified that a child who has
special needs requires "more intense parenting," and that a parent
may have trouble parenting a child with special needs, but
no trouble parenting a child without special needs.
Marcia
Shaw
Marcia Shaw, a licensed clinical social worker with Family Consultation
Service, testified that she met respondents in November 1997. Diane
attended 14 or 15 counseling sessions with Shaw; Mark attended
an unspecified number of sessions. According to Shaw, Diane has
"book knowledge" of parenting, but does not apply it. Mark,
however, applied the parenting skills he learned, and due to
Diane's job, did the bulk of the parenting.
Shaw testified that, in terms of dealing with the sexual
abuse of S.S. and C.N., Diane made progress in that
she verbalized her responsibility for the abuse, acknowledging that she
failed to protect her child. Mark also made progress in
that his initial anger over the removal of C.N. was
replaced with sadness and compassion, which Shaw believed was "more
real." The counseling sessions did not address how to parent
a child who was a victim of sexual or physical
abuse.
Shaw testified that, as a result of the removal of
S.S. and C.N., Diane was depressed, and that such depression
*202
interfered with Diane's ability to be responsible. According to Shaw,
Diane is less depressed with medication and more able to
accept responsibility. Diane is working less hours and is able
to be at home more of the time. Mark, who
is a cook by profession, has assumed the role of
a "house husband." Respondents' anger with DCFS has lessened.
Respondents rested.
Following argument, on April 28, 1998, the circuit court ruled
that the State had proved, by clear and convincing evidence,
that respondents were unfit in that they failed to make
reasonable progress toward the return of C.N. within 12 months
of the neglect adjudication. As set forth in its written
order, the circuit court found, inter
alia,
that respondents failed to accept responsibility for the abuse sustained
by C.N. and her sibling; respondents focused energy on hostility
toward DCFS and its agents and not on attaining reunification
with C.N.; respondents repeatedly failed to comply with the court's
directives regarding services which needed to be completed in order
to accomplish reunification; and respondents repeatedly refused to attend services,
or attended sporadically, resulting in termination of the services. The
court also found that evidence of respondents' ability to parent
two later-born children was irrelevant.
[FN3]
FN3.
During the course of the circuit court proceedings, Diane and
Mark became parents of two more daughters, M.N. and L.N.
Any issues involving M.N. and L.N. are not before this
court.
The matter was continued for a hearing to determine whether
termination of respondents' parental rights was in the best interests
of C.N. Following that hearing,
**1043
***801
on May 8, 1998, the court entered an order terminating
respondents' parental rights to C.N. Respondents appealed, and the appellate
court reversed. Nos. 2-98-0565, 2-98-0674 cons., 303 Ill.App.3d 1105, 254
Ill.Dec. 697, 747 N.E.2d 1109 (unpublished order under *203
Supreme Court Rule 23). We granted the State's petition for
leave to appeal. See 177 Ill. 2d R. 315.
ANALYSIS
I.
Indian Child Welfare Act
We
consider first the argument of respondent-father, Mark, that the appellate
court erred by failing to remand this cause to the circuit court for a
determination on the record as to the applicability of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et
seq. (1994)). Whether
the circuit court was required, under the facts and circumstances of this
case, to make such a determination is a legal issue which we review de
novo. See
Woods v. Cole,
181 Ill.2d 512, 516, 230 Ill.Dec. 204, 693 N.E.2d 333 (1998) (where appeal
presents issue of law review is de
novo).
The ICWA was enacted by Congress in 1978 in response
to the growing concern over the consequences to Indian children,
families and tribes of abusive welfare practices which separated large
numbers of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes. Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S.
30, 32, 109 S.Ct. 1597, 1599-1600, 104 L.Ed.2d 29, 36
(1989). The ICWA sets forth minimum federal standards for the
removal of an Indian child from his or her family.
25 U.S.C. § 1902
(1994). At the heart of the ICWA are its provisions
relating to jurisdiction over Indian child custody proceedings. Holyfield,
490 U.S. at 36, 109 S.Ct. at 1601, 104 L.Ed.2d
at 38. Under section 1911(a) of the ICWA, the tribal
courts have exclusive jurisdiction over any child custody proceeding involving
an Indian child who resides or is domiciled within the
tribe's reservation or who is a ward of a tribal
court. 25 U.S.C. § 1911(a)
(1994). Under section 1911(b), the state courts and the tribal
courts enjoy concurrent jurisdiction over proceedings for the foster care
placement of, or termination of *204
parental rights to, an Indian child not domiciled or residing
within the reservation of the Indian child's tribe. 25 U.S.C.
§ 1911(b)
(1994); Holyfield,
490 U.S. at 36, 109 S.Ct. at 1601-02, 104 L.Ed.2d
at 38-39. In such cases, however, the state court must
transfer the proceeding to the tribal court upon the petition
of the tribe or a parent, absent "good cause," objection
by either parent, or declination of jurisdiction by the tribal
court. 25 U.S.C. § 1911(b)
(1994); Holyfield,
490 U.S. at 36, 109 S.Ct. at 1601-02, 104 L.Ed.2d
at 38-39.
The ICWA further provides that "[i]n any involuntary proceeding in
a State court, where the court knows or has reason
to know that an Indian child is involved,
the party seeking the foster care placement of, or termination
of parental rights to, an Indian child shall notify the
parent or Indian custodian and the Indian child's tribe *
* * of the pending proceedings and of their right
of intervention." 25 U.S.C. § 1912(a)
(1994). For purposes of the ICWA, "Indian child" means "any
unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe." 25
U.S.C. § 1903(4)
(1994). A violation of sections 1911 or 1912 of the
ICWA may be cause to invalidate the child custody proceeding.
See 25 U.S.C. § 1914
(1994). The Bureau of Indian Affairs has promulgated nonbinding guidelines
to aid state courts in the appropriate application of the
**1044
***802
ICWA. Guidelines
for State Courts: Indian Child Custody Proceedings,
44 Fed.Reg. 67,584 (1979) (hereafter Guidelines);
Holyfield,
490 U.S. at 51 n. 26, 109 S.Ct. at 1609
n. 26, 104 L.Ed.2d at 48 n. 26.
Mark contends that, despite evidence that C.N. may be an
"Indian child," the circuit court failed to make a determination
as to the applicability of the ICWA. Mark argues that
the absence of such a determination can create *205
jurisdictional issues, rendering the termination proceeding and any subsequent adoption
proceeding void. The appellate court rejected this argument. The appellate
court held that Mark, as the party asserting the applicability
of the ICWA, had the burden to produce the necessary
evidence for the circuit court to determine if C.N. is
an "Indian child," that Mark failed to satisfy this burden,
and that the circuit court did not err by failing
to apply the act. See In
re A.G.-G.,
899 P.2d 319, 322 (Colo.App.1995). We agree that the circuit
court did not err.
Mark never asserted the applicability of the ICWA before the
circuit court, and on appeal, cites only two brief references
in the record touching on the subject of his alleged
Indian heritage. The first reference is found in the testimony
of DCFS caseworker Amelia Apperson. During the termination hearing, the
State asked Apperson on direct examination to describe Mark's "focus"
during discussions with him. Apperson testified that, at one point,
Mark was concerned because, according to him, he was part
of a Native American tribe. Mark asked Apperson to pursue
the matter of whether his family was registered with the
tribe. Apperson testified that she "had to pursue" the matter,
which she did. Mark did not testify at the termination
hearing, and no other witness testified on this subject.
The second reference in the record cited by Mark is
found in a 14-page psychological assessment prepared by consulting psychologist
Donald R. Pearson. Pearson's assessment is part of a 125-page
report DCFS filed with the circuit court 10 months prior
to the termination hearing. Pearson states that Mark identified himself
as the son of a "full-blooded Blackfoot Indian." Although
not cited by Mark, Pearson later states in his assessment
that Mark "claimed to be an American Indian (although the
collateral information provided by the caseworker indicated this was not
the case)."
*206
We conclude that the brief references in the record to
Mark's unsubstantiated statements concerning his alleged Indian heritage were simply
insufficient to implicate the provisions of the ICWA. The circuit
court had no reason to believe that C.N. may be
an Indian child and no reason to raise the issue.
Accordingly, the circuit court did not err in failing to
make a determination on the record as to the applicability
of the act and properly exercised jurisdiction over this matter.
See In
re M.S.,
302 Ill.App.3d 998, 1001-02, 235 Ill.Dec. 969, 706 N.E.2d 524
(1999) (holding that circuit court properly exercised jurisdiction over a
proceeding to terminate parental rights where the court was presented,
in an eleventh-hour motion, with only the unsubstantiated assertion by
respondent-mother that children were of Native American heritage); In
re M.N.W.,
577 N.W.2d 874, 876-77 (Iowa App.1998) (holding that, in view
of the scant evidence of the father's Native American heritage,
trial court did not err in failing to determine at
the outset of the proceedings whether the ICWA applied); In
re Appeal in Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 532 n. 3, 667 P.2d 228, 232
n. 3 (1983) (noting that the court is not required
to make a finding regarding the status of the child
as Indian or non-Indian **1045
***803
in every
child custody proceeding, but only where the court has reason
to believe that an Indian child may be involved); Guidelines,
44 Fed.Reg. at 67,586, par. B.1(c) (setting forth circumstances under
which a state court has reason to believe a child
involved in a custody proceeding is an Indian child).
Mark's reliance on In
re C.H.,
510 N.W.2d 119 (S.D.1993), and In
re J.W.,
498 N.W.2d 417 (Iowa App.1993), is misplaced. In C.H.,
the South Dakota Department of Social Services admitted, in its
original neglect petition, that the ICWA may be applicable because
respondent-mother "is believed to be one-half Choctaw," a tribe federally
recognized in Mississippi, and that her and her *207
children, therefore, may be eligible for membership in the tribe.
C.H.,
510 N.W.2d at 123. In the instant case, there is
no similar admission as to the applicability of the ICWA,
no admission as to C.N.'s eligibility for membership in a
recognized tribe, and no asserted belief in Mark's alleged Indian
heritage.
In J.W.,
there was undisputed evidence that the children were "Indian children"
under the ICWA, and the trial court ruled that the
act applied to the proceedings. In the State's subsequent petition
for termination of parental rights, the State alleged that the
children were Indian children within the meaning of the act.
The only issue decided on appeal was whether the State
complied with the notice provisions of the ICWA. The Iowa
court of appeals held that the State had not complied,
and remanded the matter for further proceedings.
J.W.,
498 N.W.2d at 421-22. Here, there is no such undisputed
evidence that C.N. is an "Indian child," and no allegation
by the State, or any other party to the circuit
court proceedings, that the ICWA applies. Further, Mark does not
argue on appeal that, under the facts and circumstances of
this case, the State ran afoul of the notice provisions
of the ICWA. See 25 U.S.C. § 1912(a)
(1994).
For the foregoing reasons, we reject Mark's argument that a
remand to the circuit court is necessary to consider the
applicability of the ICWA, and agree with the appellate court's
decision on this issue.
II.
Parental Unfitness
We next consider the State's contention that the appellate court
erred in reversing the judgment of the circuit court terminating
respondents' parental rights to C.N. The circuit court found that
respondents were unfit under section 1(D)(m) of the Adoption Act
(750 ILCS 50/1(D)(m) (West 1996)), in that they failed to
make reasonable progress toward the return of C.N. within 12
months of the adjudication of neglect, and that it is
in C.N.'s best interests that respondents' parental rights be terminated.
*208
The termination of parental rights constitutes a permanent and complete
severance of the parent-child relationship. See Santosky
v. Kramer, 455 U.S.
745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599, 610 (1982); In
re Adoption of Syck,
138 Ill.2d 255, 274, 149 Ill.Dec. 710,
562 N.E.2d 174 (1990); 750 ILCS 50/17 (West 1998). Accordingly,
proof of parental unfitness must be clear and convincing. Syck,
138 Ill.2d at 275, 149 Ill.Dec. 710, 562 N.E.2d 174; In
re Enis, 121 Ill.2d
124, 129- 31, 117 Ill.Dec. 201, 520 N.E.2d 362 (1988); 705 ILCS
405/2-29(2) (West 1998); 750 ILCS 50/8(a)(1) (West 1998).
In order to reverse a trial court's finding that there was
clear and convincing evidence of parental unfitness, the reviewing court
must conclude that the trial court's finding was against the manifest
weight of the evidence. Syck,
138 Ill.2d at 274, 149 Ill.Dec. 710, 562 N.E.2d 174. A finding
is against the manifest weight of the evidence where the opposite conclusion
is clearly evident. Ceres
Illinois, Inc. v. Illinois Scrap Processing,, **1046
***804
Inc., 114 Ill.2d 133,
141- 42, 102 Ill.Dec. 379, 500 N.E.2d 1 (1986).
The appellate court in the instant
case held that it was clearly evident that respondents made reasonable
progress toward the return of C.N. and, therefore, the circuit court's
finding of unfitness under section 1(D)(m) of the Adoption Act was contrary
to the manifest weight of the evidence. The State maintains
that the appellate court applied the wrong standard in measuring respondents'
progress, and that under the appropriate standard, the State presented
clear and convincing evidence of respondents' unfitness. Our
determination of the appropriate standard for measuring progress under
section 1(D)(m) of the Adoption Act necessarily involves statutory interpretation,
a question
of law. Review of this issue, therefore, proceeds de
novo. See
Michigan Avenue National
Bank v. County of Cook,
191 Ill.2d 493, 503, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000).
The Adoption Act expressly provides
that it "shall be construed in concert with the Juvenile Court Act
of 1987*209
[705 ILCS 405/1-1 et
seq. (West 1998) ]."
750 ILCS 50/2.1 (West 1998). The Juvenile Court Act
sets forth, among other things, the procedures to be followed in cases,
such as the present one, involving abused, neglected or dependent minors.
705 ILCS 405/2-1 through 2-33 (West 1998). The
overriding purpose of the Juvenile Court Act is to ensure that the best
interests of the minor, the minor's family, and the community are served.
In re W.C.,
167 Ill.2d 307, 320, 212 Ill.Dec. 563, 657 N.E.2d 908 (1995); 705
ILCS 405/1-2 (West 1998).
Under section 2-29 of the Juvenile Court Act, where a
court finds that it is in the minor's best interest
to do so, a court may terminate parental rights "after
finding, based upon clear and convincing evidence, that a parent
is an unfit person as defined in Section 1 of
the Adoption Act." 705 ILCS 405/2- 29(2) (West 1998). At
the time of the circuit court proceedings in this case,
section 1 of the Adoption Act provided in relevant part:
"D.
'Unfit person' means any person whom the court shall find
to be unfit to have a child, without regard to
the likelihood that the child will be placed for
adoption. The grounds of unfitness are any one or more
of the following:
* * *
(m)
Failure by a parent to make reasonable efforts to correct
the conditions that were the basis for the removal of
the child from the parent, or to make reasonable
progress toward the return of the child
to the parent within 12 months after an adjudication of
neglected minor, abused minor or dependent minor under Juvenile Court
Act or the Juvenile Court Act of 1987." (Emphasis added.)
750 ILCS 50/1(D)(m) (West 1996).
[FN4]
FN4.
Although the legislature has amended section 1(D)(m) multiple times, the
statute retains the "reasonable progress" language. See 750 ILCS 50/1(D)(m)
(West Supp.1999).
In
the present case, a panel of the Second District of the appellate court
held that a parent's progress toward the return of the child is measured
from the situation that gave rise to the child's removal, and not whether
*210
the parent meets goals outlined by DCFS. The court explained
that placing undue emphasis on compliance with DCFS service plans would
unfairly elevate administrative means over statutory ends, and could result
in the termination of parental rights based only on the parent's failure
to complete tasks in the DCFS service plan that were not necessarily related
to the previously
established **1047
***805
parental shortcoming. The appellate court further held that,
in light of the conditions which existed when C.N. was removed, rather
than the recommendations made by DCFS, it is clearly evident that respondents
made reasonable progress toward C.N.'s return. The appellate
court reversed the trial court's order terminating respondents' parental
rights.
The State maintains that the Second District appellate court construed
section 1(D)(m) too narrowly, by focusing solely on the conditions
that gave rise to the removal of C.N. and ignoring
other parental deficiencies, as addressed in the DCFS service plans
and the circuit court's directives. The State argues that the
correct standard by which to measure a parent's progress is
the standard adopted by another district of the appellate court.
That court has held that the measure of reasonable progress
encompasses those conditions which could
give rise
to a finding of abuse or neglect, not merely those
conditions which led to the initial removal of the minor,
and that the standard by which progress should be measured
is parental compliance with the court's directives, the DCFS service
plan, or both. In
re C.S.,
294 Ill.App.3d 780, 792, 229 Ill.Dec. 225, 691 N.E.2d 161
(1998).
Our analysis begins, as it must, with the language of
the statute. See In
re D.L.,
191 Ill.2d 1, 9, 245 Ill.Dec. 256, 727 N.E.2d 990
(2000). The grounds for unfitness set forth in section 1(D)(m)
of the Adoption Act are phrased
in the disjunctive. Thus, section 1(D)(m) provides two independent bases
for a finding of unfitness: (1) the failure by a
parent to make reasonable *211
efforts to correct the conditions that were the basis for
the removal of the child, or
(2) the failure to make reasonable progress toward the return
of the child. See People
v. Frieberg,
147 Ill.2d 326, 349, 168 Ill.Dec. 108, 589 N.E.2d 508
(1992) (ordinary disjunctive use of "or" indicates a choice between
alternatives); In
re S.G.,
216 Ill.App.3d 668, 670, 159 Ill.Dec. 125, 575 N.E.2d 932
(1991) ("as the language of subsection 1D(m) is in the
disjunctive, either a failure to make reasonable efforts or
reasonable progress can be grounds for an adjudication of unfitness"
(emphasis in original)); accord In
re Drescher,
91 Ill.App.3d 658, 666, 47 Ill.Dec. 631, 415 N.E.2d 636
(1980). We examine the "reasonable progress" provision in this case.
The
Adoption Act does not define "progress." In the
absence of a statutory definition indicating a different legislative intent,
we ascribe to a word its ordinary and popularly understood meaning. Gem
Electronics of Monmouth, Inc. v. Department of Revenue,
183 Ill.2d 470, 477-78, 234 Ill.Dec. 189, 702 N.E.2d 529 (1998); People
ex rel. Daley v. Datacom Systems Corp.,
146 Ill.2d 1, 15, 165 Ill.Dec. 655, 585 N.E.2d 51 (1991). "Progress"
ordinarily denotes movement or advancement toward a goal. Webster's
Third New International Dictionary 1813 (1993). The goal set
forth in the statute is "the
return of the child." Consistent with the statutory language,
our appellate court has repeatedly read this provision of section 1(D)(m)
to require "demonstrable movement toward the goal of reunification."
See, e.g.,
In re J.A., 316 Ill.App.3d
553, 565, 249 Ill.Dec. 484, 736 N.E.2d 678 (2000); In
re K.P., 305 Ill.App.3d
175, 180, 238 Ill.Dec. 375, 711 N.E.2d 478 (1999); In
re L.N., 278 Ill.App.3d
46, 50, 214 Ill.Dec. 798, 662 N.E.2d 152 (1996); In
re M.C., 201 Ill.App.3d
792, 798, 147 Ill.Dec. 236, 559 N.E.2d 236 (1990); In
re Allen, 172 Ill.App.3d
950, 956, 123 Ill.Dec. 184, 527 N.E.2d 647 (1988). Under the
statute's express language, a parent's progress toward this goal is judged
under the familiar "reasonableness" standard.
**1048
***806
The statute, however, does not expressly set forth how progress
is actually made or measured. That is, the statute does
not explain what steps are necessary to reach the goal
of "the return of the child." There must *212
be a yardstick or, as some courts have called it,
a " benchmark," against which to measure a parent's progress.
See, e.g.,
L.N.,
278 Ill.App.3d at 50-51, 214 Ill.Dec. 798, 662 N.E.2d 152;
In
re A.P.,
277 Ill.App.3d 593, 598, 214 Ill.Dec. 299, 660 N.E.2d 1006
(1996); In
re S.J.,
233 Ill.App.3d 88, 119, 174 Ill.Dec. 259, 598 N.E.2d 456
(1992). Without such a benchmark, it is impossible to determine
whether any progress--reasonable or otherwise--has been made.
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