In re Ta.A.

No. 3--07--0513
(Consolidated with Nos. 3--07--0514 and 3--07--515)

_________________________________________________________________
Filed July 7, 2008
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

In re Ta.A., Te.A., and G.A., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Minors ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) Nos. 07--JA--02, 07--JA--03,
) and 07--JA--04
v. )
)
G.A., ) Honorable
) Albert L. Purham, Jr.,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________

PRESIDING JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________

The trial court adjudicated the minors, Ta.A. (Age 7), Te.A.

(Age 6), and G.A. (Age 3), neglected, pursuant to stipulations by

the parties. At the dispositional hearing, the trial court found

the respondent, G.A. (hereafter the respondent), fit but made the

minors wards of the court and named the Department of Children

and Family Services (DCFS) as guardian. The respondent appeals,

arguing that the trial court's placement of the children outside

his home was against the manifest weight of the evidence. We

vacate the trial court's order and remand the cause for further

proceedings consistent with this decision and the decision in In
re C.B., T.A., T.A., and G.A., No. 3--07--0496 (2008)

(unpublished order under Supreme Court Rule 23).

FACTS

On January 3, 2007, the State filed petitions, alleging that

the minors and their brother, Cameron (Age 9), who has a

different father, were neglected in that they lived in an

environment that was injurious to their welfare. The petitions

alleged that on December 22, 2006, Carlos I., Cameron's father,

stole $60 from the minors' mother, Robin B. Carlos left the

house but returned later. When Robin told him to leave, he

grabbed Robin and threw her into the front door, resulting in

cuts to her hand as it went through the door. Carlos then

threatened Cameron that he would hurt him if he told anyone about

the incident. The minors, Ta.A. and Te.A., were also in the

house at the time. Carlos returned to the house on December 24,

2006, and was arrested. He returned again on December 27, 2006.

The petitions further alleged that Robin knew that Carlos

had a substance abuse problem and a tendency to be violent but

allowed him to be around the minors. On December 29, 2006, Robin

refused to sign a DCFS safety plan to keep Carlos out of the

house. She also refused to obtain an order of protection against

Carlos. The petitions concluded with general allegations about

the criminal histories of Carlos, Robin, and the respondent. As

to the respondent, it alleged that he was convicted of armed

robbery and the manufacture and distribution of a controlled

substance in 1994.

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 On May 8, 2007, the trial court held an adjudication

hearing. It found that the minors were neglected in that they

were living in an environment injurious to their welfare because

the respondent and Robin stipulated that the State could prove

the allegations in the petitions. At the time of the

adjudication, Ta.A. and Te.A. lived in relative foster care

following the incidents of neglect. G.A., who was not present

when the incidents of neglect occurred, lived in Maine with her

maternal grandmother.

DCFS prepared a dispositional hearing report on May 25,

2007. The respondent and Robin had an intermittent relationship,

beginning in 1998. At the time, the respondent had four children

and Robin had three children. The relationship resulted in the

birth of two children, Ta.A. and Te.A., in 1999 and 2000. Six

months after Ta.A.'s birth, the respondent began to be actively

involved in her life. She stayed with the respondent about five

or six days a week, and the respondent paid for her day care and

bought her clothes. The respondent maintained an active

relationship with Ta.A. until Robin moved to Maine in 2002 when

Ta.A. was three years old. The respondent did not have much of a

relationship with Te.A. when Robin moved. The respondent's

relationship with Robin apparently ended when she moved with the

children to Maine. However, in 2002, the respondent visited

Robin in Maine, and she became pregnant with G.A., who was born

in 2003. The respondent did not have any contact with the

children while they were in Maine.

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 In June 2006, Robin moved back to Illinois with the

children. Robin allowed Ta.A. to live with the respondent on a

full-time basis for a couple of months. During this time,

Robin's sister took care of Te.A. In August 2006, the respondent

told Robin that he wanted guardianship of Ta.A., who wanted to

live with him. The respondent also made the same offer as to

Te.A., but Te.A. declined because he did not have a relationship

with the respondent. The report does not indicate whether Ta.A.

came to live with the respondent at this time, but it appears

that she did not. According to the respondent, he did not know

that the minors were at risk until Robin told him that the

children were taken into protective custody and he read the

State's petitions.

The report further indicated that the respondent was

convicted in 1994 for armed robbery and the manufacture and

distribution of a controlled substance. He served three years in

prison and was released in 1997. The respondent stated that he

never experimented with alcohol or any other substances. As a

condition of his parole, he submitted to over 80 drug screens,

all of which were negative. The respondent's assessment for

treatment and services concluded that he did not need drug and

alcohol treatment or any other services.

While in prison, the respondent passed the general

educational development test and earned his bachelor's degree in

food service in 1997. He is currently employed full-time at two

restaurants. He pays child support.

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 The respondent had three more children with two women

following his relationship with Robin. He currently resides with

one of the women, although they are not involved in a romantic

relationship, and their two children.

The respondent indicated that he wanted Ta.A., Te.A., and

G.A. to live with him. Ta.A. expressed a desire to live with the

respondent. Te.A. would like to visit with the respondent, as he

is not familiar with him.

On July 9, 2007, DCFS prepared an addendum to their initial

dispositional hearing report. The addendum indicated that the

respondent participated in weekly supervised visits with Ta.A.

and Te.A. The visits had been positive and beneficial for the

children. The addendum recommended that the respondent be

allowed unsupervised visitation at the discretion of DCFS.

On July 24, 2007, the trial court held a dispositional

hearing. Robin testified that between August 2006 and December

2006 she lived in various homes in Peoria. During this time, the

respondent visited the children about two times. In October

2006, Robin decided to not allow the respondent to visit with the

children because she believed that he favored Ta.A. and that he

was not interested in visiting with Te.A. Specifically, she

believed, although not confirmed by the caseworker, that the

respondent's former paramour and the woman he lived with did not

like Te.A. Also, Te.A. did not seem interested in visiting with

the respondent.

The respondent confirmed Robin's testimony about his

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visitation with the children between August 2006 and December

2006. However, he stated, and the caseworker confirmed, that his

supervised visits with the children had gone well since they have

been in foster care. He believed that his relationship with

Te.A. had improved, and Te.A. appeared to respond well to the

respondent's disciplinary measures. The respondent wanted Ta.A.

and Te.A. to live with him. He did not think that G.A. should

live with him as she lived in Maine, and he had not developed a

relationship with her. He would like to develop a relationship

with her.

The trial court found that the respondent was fit and that

Robin was unfit. The trial court made the minors wards of the

court and named DCFS as guardian with the right to place. The

trial court gave DCFS discretion to order unsupervised visits

between the respondent and the minors. The minors could not be

returned home without a court order.

The respondent appeals.

ANALYSIS

On appeal, the respondent argues that the trial court's

placement of the children outside his home was against the

manifest weight of the evidence.

Under section 2--27(1) of the Juvenile Court Act of 1987,

the trial court may commit a minor to DCFS wardship if the trial

court determines that the parents are "unfit or are unable, for

some reason other than financial circumstances alone, to care

for, protect, train or discipline the minor or are unwilling to

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do so, and that the health, safety, and best interest of the

minor will be jeopardized if the minor remains in the custody of

his or her parents[.]" 705 ILCS 405/2--27(1) (West 2006).

Generally, both parents must be adjudged unfit, unable, or

unwilling before placement with DCFS is authorized because

biological parents have a superior right to custody. In re Ryan

B., 367 Ill. App. 3d 517, 855 N.E.2d 272 (2006). On review, the

trial court's decision will be reversed if the findings of fact

are against the manifest weight of the evidence or the trial

court committed an abuse of discretion by selecting an

inappropriate dispositional order. In re April C., 326 Ill. App.

3d 245, 760 N.E.2d 101 (2001).

In this case, the trial court committed the minors to DCFS

wardship even though it did not find the respondent unfit,

unable, or unwilling to care for, protect, train, or discipline

the minors. In fact, the trial court found that he was fit, and

the evidence showed that he was willing to care for the minors,

particularly Ta.A. and Te.A.

The evidence showed that, prior to the neglect proceedings,

the respondent had little involvement in the minors' lives

because the minors lived in Maine for many years. He only really

had a relationship with Ta.A prior to their move to Maine.

However, after the respondent received notice of the neglect

proceedings, the respondent expressed a desire to have the minors

live with him. He pursued visitation with Ta.A. and Te.A., and

such visitation had been successful in fostering a relationship

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between the respondent and the minors. Ta.A. had expressed a

desire to live with the respondent. Te.A. had become more

comfortable with the respondent, and he responded well to the

respondent's disciplinary measures. Thus, we find that the trial

court properly found that the respondent was fit, but we question

the trial court's decision to grant DCFS the right to place the

minors in foster care. See Ryan B., 367 Ill. App. 3d 517, 855

N.E.2d 272 (finding that the trial court erred in finding that

the respondent father was unwilling where he expressed a desire

to have the child live with him even though he had established

little more than a biological relationship with the child prior

to the institution of wardship proceedings).

The trial court's decision to grant DCFS guardianship with

the right to place was an abuse of discretion. The trial court

did not articulate a reason as to why it granted DCFS

guardianship with the right to place, and we refuse to speculate.

As such, it was inappropriate for the trial court to place the

minors with a third party, considering the respondent's superior

right to custody. See In re M.K., 271 Ill. App. 3d 820, 649

N.E.2d 74 (1995) (stating that a child may not be placed with a

third party without good cause or reason to deny custody to a fit

parent); see also Ryan B., 367 Ill. App. 3d 517, 855 N.E.2d 272

(finding that the trial court erred in granting guardianship to

DCFS with the right to place where the respondent, a parent with

a superior right to custody of his own child, did not live in

mother's house--the injurious environment to the child--and he

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had a safe and nurturing house for the child).

The record shows that the trial court did not consider the

respondent's superior right to custody of his children. The

trial court properly found that the respondent was fit but

erroneously ordered DCFS guardianship with the right to place.

We vacate the trial court's dispositional order, granting

guardianship to DCFS with the right to place, and remand for

further proceedings. We note to the trial court that we reversed

the finding of unfitness against the minors' mother, Robin, in In

re C.B., T.A., T.A., and G.A., No. 3--07--0496 (2008)

(unpublished order under Supreme Court Rule 23). On remand, the

trial court should read this order in conjunction with the order

in that case when it conducts its further proceedings.

CONCLUSION

For the foregoing reasons, we vacate the dispositional order

of the trial court, granting guardianship to DCFS with the right

to place, and remand the cause for further proceedings consistent

with this decision and the decision in In re C.B., T.A., T.A.,

and G.A., No. 3--07--0496 (2008) (unpublished order under Supreme

Court Rule 23).

Order vacated; cause remanded.

WRIGHT and HOLDRIDGE, JJ., concur.

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