In re: S.J., a Minor

NOS. 4-06-0562, 4-06-0596 Filed: 11/30/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: S.J., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Champaign County
v. (No. 4-06-0562) ) No. 03JA11
MARK ROEMER, )
Respondent-Appellant. )
________________________________________)
In re: S.J., a Minor, )
THE PEOPLE OF THE STATE OF ILLINOIS, )
Petitioner-Appellee, )
v. (No. 4-06-0596) ) Honorable
KIM SLATER, ) Holly F. Clemons,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

On August 30, 2005, the Champaign County trial court

entered an order placing custody and guardianship of S.J. (born

January 30, 2003) with his foster mother, Debra Faulkner.

Respondents, Kim Slater, formerly known as Kim Johnson-Slater,

and Mark Roemer, are S.J.'s biological parents, and each appealed

the trial court's order. On appeal, we reversed and remanded,

ordering that the trial court comply with section 2-28 of the

Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-

28 (West 2004)). Upon remand, the trial court entered a revised

order again placing permanent custody and guardianship of S.J.

with Faulkner. Kim and Roemer appeal. We reverse and remand

with directions.

I. BACKGROUND
 The facts and procedural history of this case are fully

set forth in our previous opinion (In re S.J., 364 Ill. App. 3d

432, 846 N.E.2d 633 (2006)) and will only be repeated as needed

to resolve the issues presented in this appeal.

At the time of the trial court's August 30, 2005,

order, S.J., who was then 2 1/2 years old, was living with his

foster mother, Faulkner, whom he had been living with since he

was 6 days old. S.J. had been removed from his biological

mother, Kim, because he was neglected in that Kim continued to

reside with her third husband, who had sexually molested Kim's

daughters. Roemer, S.J.'s biological father and Kim's first

husband, had been indicated for sexually molesting his

stepdaughter and daughters. On January 11, 2005, the trial court

set a permanency goal of returning S.J. home to Kim within five

months as she had made reasonable efforts and progress. A month

later, Faulkner filed a motion to intervene, which was granted.

The court also granted Faulkner's motion for a bonding

assessment.

Dr. Judy Osgood completed a bonding assessment and

concluded that S.J. had a strong bond with Faulkner and a lesser

bond with Kim. Dr. Osgood concluded that S.J. should remain with

Faulkner as removing him could cause him to develop reactive-

attachment disorder and posttraumatic stress disorder. Dr.

Osgood recommended, though, that S.J. continue to have visits

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with his biological family. The trial court held a permanency

hearing in which it heard a great deal of testimony and evidence.

On August 30, 2005, the court concluded that it was in S.J.'s

best interest that his custody and guardianship be permanently

transferred to Faulkner with continued visitation with his

biological family as recommended by Dr. Osgood. Kim and Roemer

appealed this decision.

Pending the outcome of this court's decision, the trial

court held a hearing on November 7, 2005, regarding the

guardianship of three of S.J.'s halfsiblings. The attorney for

the half siblings requested that guardianship be returned to the

Department of Children and Family Services (DCFS), as issues

needed to be addressed that had arisen upon the children's return

home and because the children needed to have their own individual

counselor, not the same one Kim had. None of the parties

objected to the request, as a change in guardianship allowed DCFS

to provide and pay for necessary services. Guardianship was

eventually switched to Kim.

At a hearing on January 23, 2006, Dr. Osgood, the

author of the bonding assessment, submitted a letter to the trial

court along with the foster-parent report. The letter suggested

that visitation between Kim and S.J. be more limited and

supervised. S.J.'s attorney requested that the court order a

third party to attend certain interactions between S.J. and all

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parties. None of the parties objected to this suggestion.

On February 9, 2006, the trial court held a review

hearing. At the hearing, Roemer testified that Faulkner refused

him a regularly scheduled visit with S.J. because Roemer had

attended S.J.'s birthday party during Kim's court-ordered

visitation. Dr. Osgood testified about her recommendation that

S.J.'s visits with his biological parents be reduced and

supervised. Dr. Osgood reported that since Osgood last

testified, Faulkner had called her and come into her office on

various occasions with concerns about S.J.'s behavior after the

visits with his biological parents. Aside from Faulkner's visits

to her office, Dr. Osgood also went to Faulkner's home once to

observe Faulkner and S.J. Dr. Osgood opined that the

difficulties Faulkner reported S.J. having were consistent with

the concerns expressed in her previous testimony. While Faulkner

was the primary source of information concerning S.J.'s problems,

Dr. Osgood also spoke with Dashon Jones, S.J.'s day-care worker,

who also reported S.J. having problems after visits with his

biological parents. Dr. Osgood admitted that other things such

as changes in S.J.'s routine could also be the cause of S.J.'s

apparent stress. Dr. Osgood also discussed the possibility of an

independent third party observing S.J. and all of the parties.

On February 14, 2006, the trial court resumed the

review hearing. Kim's attorney submitted stipulated evidence

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that a birthday party for S.J. had gone well. In arguments to

the court, Faulkner's attorney argued that as Faulkner was the

custodian and guardian, she should be the one determining the

time and length of the visits between S.J. and anyone else. The

other parties argued that visits should not be reduced and an

independent person should observe S.J.'s interactions with the

parties. The court continued S.J.'s case to a status hearing.

At the status hearing, the trial court indicated that a

University of Illinois student observer had been located to

observe S.J. and the parties. Arrangements for the observations

were discussed.

This court's opinion in the first appeal was issued in

March 2006 with our mandate scheduled to issue on April 25, 2006.

In our opinion, we found that the trial court failed to set a

permanency goal and failed to comply with the requirements of

section 2-28 of the Juvenile Court Act. S.J., 364 Ill. App. 3d

432, 846 N.E.2d 633.

On March 7, 2006, the trial court held a brief hearing

concerning the logistics for the independent observer and the

parties' concerns. On May 15, 2006, the trial court held a

hearing wherein the parties reported that the observer had

prepared a report but not all of the parties had the opportunity

to fully review it.

On May 22, 2006, the trial court held a permanency

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review hearing. Some off-the-record discussions were had

apparently concerning this court's mandate. On the record,

Roemer's attorney objected to the court considering previously

adduced evidence. The court and S.J.'s attorney stated that

based on our mandate, the court need only prepare a new order

that satisfied section 2-28 of the Juvenile Court Act (705 ILCS

405/2-28 (West 2004)). The court did, though, set a hearing for

July 6, 2006, in the event that any of the parties wished to

present additional evidence.

The trial court entered a written formal order on June

8, 2006. In the written order, the court found that reasonable

efforts had been made by DCFS to achieve the permanency goal and

reasonable efforts and progress had been made by Kim and Roemer.

Despite the reasonable efforts and progress, the court found Kim

and Roemer unable, for reasons other than financial circumstances

alone, to care for, protect, train, and discipline S.J. and

placing S.J. with either of them would jeopardize his health,

safety, and best interests. The court held that S.J. must remain

in DCFS care because Kim and Roemer must complete counseling and

continue to maintain stable lifestyles. As to Roemer, the court

found he had health issues that had not been resolved and caused

him significant pain. S.J.'s current placement with Faulkner was

deemed necessary and appropriate to the current service goal and

plan. Stating that it considered the factors specified in

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section 2-28(2), the court found that the permanency goal that is

in S.J.'s best interest is transfer of guardianship to Faulkner

on a permanent basis (705 ILCS 405/2-28(2) (West 2004)). The

court explained its reasons for this permanency goal as follows:

"the respondent minor has been in the care of

Ms. Faulkner continuously since the beginning

of February 2003, when he was a few days old.

Due to the extensive period of time that he

has spent in Ms. Faulkner's loving care, and

the stability he has received there, [S.J.]

has developed a very strong bond with Ms.

Faulkner and her children. *** The court

has numerous concerns with both biological

parents that must be addressed. First, [Kim's]

relationship with [Roemer] remains problematic

and antagonistic. They continue to argue

regularly. Second, the court has concerns with

respect to [Kim's] credibility. In particular,

the court has misgivings about [Kim's] ability

to self-report incidents that would reflect

adversely on her parenting skills. This,

coupled with [S.J.'s] young age, two years old,

make him especially vulnerable, because he has

limited verbal skills, and his ability to

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verbalize his concerns to another adult who

could act on his behalf is questionable.

Third, [Kim] lacks empathy, which is parti-

cularly essential in caring for a young child.

Fourth, both respondent parents have violated

court orders in the past. [Roemer] violated

the De Witt County court's visitation order,

and despite [Kim's] protestations, the court

believes that this was done with her tacit

approval. Fifth, although [Roemer] is engaged

in individual counseling, and he is making

progress, he ha[s] not fully addressed his

issues. Sixth, he was indicated by DCFS

for sexual abuse of S.J.'s siblings *** and

[Kim] has stated that [S.J.] was conceived as

a result of [Roemer] raping her. Dr. Osgood

has opined that [S.J.] is at great risk of

developing reactive[-]attachment disorder and

post[]traumatic stress disorder if he is

removed from [Faulkner's] care and from the

family he had bonded with for years. He has

demonstrated symptoms consistent with Dr.

Osgood's diagnoses following visits with [Kim

and Roemer]. For the foregoing reasons, the

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 court has eliminated the 'return home' goals.

[705 ILCS 405/2-28(2)(A), (2)(B) (West 2004)].

While the court recognizes that respondent

parent's [sic] parental rights remain intact,

a return home would be psychologically devas-

tating to the minor, and not in his best

interest."

The court concluded that the goals of "short-term care with a

continued goal to return home pending a status hearing" (705 ILCS

405/2-28(2)(B-1) (West 2004)) and "substitute care pending court

determination on termination of parental rights" (705 ILCS 405/2-

28(2)(C) (West 2004)) are inappropriate as Kim and Roemer have

made reasonable efforts and progress. Further, the court stated

the goal of "[a]doption" (705 ILCS 405/2-28(2)(D) (West 2004)) is

not appropriate because parental rights remain intact. The court

found no just reason to delay enforcement or appeal. Kim and

Roemer both appealed.

II. ANALYSIS

Kim and Roemer both argue on appeal that the trial

court abused its discretion when it ruled out return home to Kim.

Kim and Roemer allege that the court's finding that it was in

S.J.'s best interest to transfer custody and guardianship of S.J.

to Faulkner was against the manifest weight of the evidence.

Parental rights may be terminated only upon a finding

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of unfitness, and such finding must be supported by clear and

convincing evidence. In re D.T., 212 Ill. 2d 347, 352-53, 818

N.E.2d 1214, 1220 (2004). Under certain circumstances it is not

necessary that the natural parent be found unfit if it is in the

best interest of the child that he be placed in the custody of

someone other than the parent. In re Austin W., 214 Ill. 2d 31,

51, 823 N.E.2d 572, 584 (2005). That is the case under section

2-28(2)(E) of the Juvenile Court Act (705 ILCS 405/2-28(2)(E)

(West 2004)), but the court must follow other procedural

requirements of the Act, first ruling out any return home

possibilities. In re Custody of T.W., 365 Ill. App. 3d 1075,

1083-84, 851 N.E.2d 881, 889 (2006).

As we stated in the first appeal, we review the trial

court's best-interest determination under the manifest-weight-of-

the-evidence standard. S.J., 364 Ill. App. 3d at 441, 846 N.E.2d

at 641, citing Austin W., 214 Ill. 2d at 51-52, 823 N.E.2d at

585. We further noted in the previous appeal, that "[i]t is well

settled that a parent has superior rights to the care and custody

of a child, unless the child is placed elsewhere due to an

adjudicated finding that the parent abused or neglected the

child." S.J., 364 Ill. App. 3d at 442, 846 N.E.2d at 641, citing

In re J.J., 327 Ill. App. 3d 70, 77, 761 N.E.2d 1249, 1255

(2001); In re S.S., 313 Ill. App. 3d 121, 132, 728 N.E.2d 1165,

1174 (2000). We recognize a biological parent's superior right

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to the custody of her child but acknowledge that in a custody

case the natural parent's right must "yield to the best interests

of the child." S.J., 364 Ill. App. 3d at 442, 846 N.E.2d at 641,

citing In re J.K.F., 174 Ill. App. 3d 732, 733, 529 N.E.2d 92, 93

(1988).

In S.J., we acknowledged that a trial court may

determine that it is in a minor's best interest to place custody

of that minor with someone other than a "fit" biological parent,

but that court must comply with section 2-28 of the Juvenile

Court Act (705 ILCS 405/2-28(1) (West 2004)). S.J., 364 Ill.

App. 3d at 442, 846 N.E.2d at 641. To comply with section 2-28,

the court must determine, at a permanency hearing, the future

status of the child and select one of the eight enumerated

permanency goals. 705 ILCS 405/2-28(2) (West 2004). Upon

selecting a goal, the court must enter a written order setting

forth that goal. 705 ILCS 405/2-28(3) (West 2004).

In this case, the trial court originally did not select

any of the eight enumerated permanency goals. The first six of

the eight goals are as follows:

"(A) The minor will be returned home

by a specific date within 5 months.

(B) The minor will be in short-term care

with a continued goal to return home within

a period not to exceed one year, where the

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 progress of the parent or parents is sub-

stantial giving particular consideration to

the age and individual needs of the minor.

(B-1) The minor will be in short-term

care with a continued goal to return home

pending a status hearing ***.

(C) The minor will be in substitute care

pending court determination on termination of

parental rights.

(D) Adoption, provided that parental

rights have been terminated or relinquished.

(E) The guardianship of the minor will

be transferred to an individual or couple

on a permanent basis provided that goals (A)

through (D) have been ruled out." 705 ILCS

405/2-28(2)(A) through (2)(E) (West 2004).

In the current order, the court clearly selected the sixth goal

of private guardianship under section 2-28(2)(E) (705 ILCS 405/2-

28(2)(E) (West 2004)). After selecting a goal, section 2-28(2)

provides that the court must also indicate in writing the reasons

the goal was selected and why the preceding goals were ruled out.

705 ILCS 405/2-28(2) (West 2004). If the court selects private

guardianship as a goal, the court must rule out the preceding

five permanency goals (return home within five months, return

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home within one year, return home pending a status hearing,

substitute care pending termination of parental rights, and

adoption) and indicate its reasons for ruling out those five

goals. 705 ILCS 405/2-28(2)(E) (West 2004). While the court did

not originally follow this procedure, the new order does indicate

in writing the reasons the court selected private guardianship

and discusses the reasons why it ruled out the preceding goals.

As the trial court has now complied with section 2-28

of the Juvenile Court Act, the issue becomes whether the court's

decision regarding the goals it rejected and the goal it selected

was against the manifest weight of the evidence. In setting a

permanency goal that is in the best interest of the child, the

court must consider the following factors:

"(1) Age of the child.

(2) Options available for permanence.

(3) Current placement of the child and

the intent of the family regarding adoption.

(4) Emotional, physical, and mental

status or condition of the child.

(5) Types of services previously offered

and whether or not the services were success-

ful and, if not successful, the reasons the

services failed.

(6) Availability of services currently

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 needed and whether the services exist.

(7) Status of siblings of the minor."

705 ILCS 405/2-28(2)(1) through (2)(7) (West

2004).

The court must also consider the permanency goal recommended by

DCFS, the appropriateness of the services provided, the parties'

efforts to achieve the goal, and the extent to which the goal has

been achieved. 705 ILCS 405/2-28(2) (West 2004).

In S.J. we noted that the trial court originally seemed

to rely heavily on only one factor, the child's emotional status.

S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643. In the new

order, the court reiterates S.J.'s emotional status as a reason

for selecting the goal by stating that S.J. "has been in the care

of Ms. Faulkner continuously since the beginning of February

2003, when he was a few days old. Due to the extensive period of

time that he has spent in Ms. Faulkner's loving care, and the

stability he has received there, [S.J.] has developed a very

strong bond with Ms. Faulkner and her children." While this

statement arguably also shows the court considered S.J.'s age and

his bond with his foster siblings, the court did not specifically

discuss any of the other factors. We look, therefore, to whether

the evidence in the record supports the court's determination.

We agree that the evidence supports ruling out the goal

of return home to Roemer. The court found Roemer unable to care

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for, protect, train, and discipline his children. The court

specifically found that (1) Roemer's relationship with Kim

remained antagonistic; (2) Roemer admittedly and knowingly

violated a court visitation order restricting visitation with his

three oldest children; (3) Roemer was indicated by DCFS for

sexual abuse of his two daughters and stepdaughter; (4) Kim

alleged S.J. was conceived when Roemer raped her; and (5) Roemer

has continued to refuse to address some of his issues in

counseling sessions. The court further noted that Roemer

admitted that he had a medical condition that prevented him from

caring for his children for more than short periods of time. The

court's decision to rule out the goal of return home to Roemer

was not against the manifest weight of the evidence.

The real issue is whether the trial court's

determination that return home to Kim was not feasible is against

the manifest weight of the evidence. As we stated in S.J., the

court determined Kim was fit and able to care for three of her

five children. S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at 643.

Kim's irreparably fractured relationship with her oldest daughter

made her unable to care for her oldest child. As for Kim's

inability to care for S.J., the court indicated that the primary

reason Kim was deemed unable to care for him was that S.J. had

lived continuously with Faulkner and recognized Faulkner as his

primary caretaker. Upon remand, the court advanced further

reservations about Kim, including her antagonistic relationship

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with Roemer, credibility issues, her lack of empathy, and her

violation of previous court orders. These reservations, though,

existed at the time of the first appeal and were apparently not

troubling enough to keep three of Kim's children from her.

In S.J., we advanced our reservations about the trial

court's decision to rule out return home to Kim based solely on

S.J.'s bond with Faulkner. S.J., 364 Ill. App. 3d at 444, 846

N.E.2d at 643. We determined as follows:

"Such reasoning runs counter to the Juvenile

Act and to the concept that parents have

superior rights to the care and custody of

their children. The fact that a child has

developed a relationship with his custodian

is irrelevant once the goal of return home

has been achieved. Even if parental rights

have been terminated, the relationship with

the custodian must yield to the rights of

an adoptive parent, if one can be found.

It is desirable that the child have some per-

manency in his life, regardless of his

relationship with his custodian. For that

reason, the goal of transfer of guardianship

on a permanent basis is available only 'pro-

vided that goals (A) through (D) [variations

on return home or adoption] have been ruled

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 out.' 705 ILCS 405/2-28(2)(E) (West 2004)."

S.J., 364 Ill. App. 3d at 444, 846 N.E.2d at

643.

We remanded, though, to allow the court to state any other

reasons S.J. should not be returned home to Kim. As the new

reasons advanced by the trial court did not prevent return home

of Kim's three middle children, we fail to see how they can

prevent return home of S.J. Further, these reasons existed

before the bonding assessment when the court was going to return

S.J. home to Kim. Only after Dr. Osgood's conclusion that S.J.

had developed a bond with Faulkner, did the court conclude return

home was no longer a viable option. Again, it looks as if the

sole reason the court determined S.J. should not be returned home

is because of his bond with Faulkner.

The "purpose and policy" section of the Juvenile Court

Act states that a goal of the Act is to achieve permanency at the

"earliest opportunity" for the subject children. 705 ILCS 405/1-

2 (West 2004). Placing S.J. with Kim would achieve permanency as

S.J. would be back with his biological family and the court would

no longer need to supervise. Placing S.J. with Faulkner is

inconsistent with this goal as the record clearly shows that the

court continues to be involved as a referee in the tug-of-war

between Faulkner and Kim concerning visitation with S.J. We do

not see how the trial court could rule out a permanent placement

with a fit biological parent who is able to parent some of her

children in favor of a placement, which will require constant

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court supervision, with a foster parent who is not obligated to

keep S.J.

It is unfortunate that the delay in this case has

resulted in a child being with a foster parent for so many years.

When an infant is placed with a foster parent, quick resolution

is especially important to prevent situations like these. When a

natural parent of a removed infant does not quickly make

reasonable efforts and progress, waiting for that parent to turn

things around will only create a more difficult situation,

especially if that parent eventually achieves fitness. No good

resolution is possible when delay in the system results in an

infant spending the first several years of his life with a foster

parent while the natural parent is given time to improve. It is

understandable that, after a period of years, a bonding within a

foster family would occur that would make separation difficult,

but the goal of the Juvenile Court Act is still to reunify the

original family. The Juvenile Court Act attempts to avoid long-

term foster placements with the heart-wrenching separations

created by return or adoption elsewhere. Johnson v. Burnett, 182

Ill. App. 3d 574, 582, 538 N.E.2d 892, 897-98 (1989).

For the foregoing reasons we find that the trial

court's placement of S.J. with Faulkner is against the manifest

weight of the evidence as the evidence does not support ruling

out the goal of short-term care with a continued goal of return

home to Kim within a period not to exceed one year. 705 ILCS

405/2-28(2)(B) (West 2004).

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 III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment and remand with directions that the court institute the

goal of short-term care with a continued goal of return home to

Kim within a period not to exceed one year in compliance with

section 2-28(2)(B) of the Juvenile Court Act.

Reversed and remanded with directions.

TURNER, P.J., and McCULLOUGH, J., concur.

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