People v. Yarbrough

NO. 4-06-0849 Filed 3/1/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: VERONICA J., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Logan County
v. ) No. 04JA4
JULIE YARBROUGH, )
Respondent-Appellant. ) Honorable
) Charles M. Feeney,
) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

In May 2006, the State filed a petition to terminate

the parental rights of respondent, Julie Yarbrough, as to her

daughter, Veronica J. (born May 26, 2003). Following an August

2006 hearing on the State's petition, the trial court found

respondent unfit. After a September 2006 best-interest hearing,

the court found it would be in Veronica's best interest to

terminate respondent's parental rights. (The court also termi-

nated the parental rights of Veronica's father, Chad J.; however,

he is not a party in this appeal.)

On appeal, respondent argues (1) the trial court's

findings of unfitness were against the manifest weight of the

evidence and (2) the court erred in terminating her parental

rights. We affirm.

I. BACKGROUND

On February 4, 2004, the State filed a petition for
adjudication of wardship, alleging Veronica was dependent because

she was without a parent, guardian, or legal custodian to care

for her. Respondent mother was then a juvenile herself and was

"in custody" in a separate case (Logan County case No. 02-J-11).

Paternity had not been established, although Chad was named as

Veronica's putative father. Chad's paternity was later estab-

lished. The trial court entered a shelter-care order, finding an

immediate and urgent need to remove the minor from respondent's

home (it is unclear from the record where respondent and Veronica

were living at the time).

On April 22, 2004, respondent, who was then 15 years

old, admitted that Veronica was a dependent minor and agreed to

continue the matter for one year under the supervision of the

trial court pursuant to section 2-20 of the Juvenile Court Act of

1987 (Juvenile Court Act) (705 ILCS 405/2-20 (West 2002)). The

court entered an order continuing the matter under supervision

for one year conditioned upon respondent's cooperation with the

Illinois Department of Children and Family Services (DCFS) in

this matter as well as in Logan County case No. 04-JA-2 (wherein

respondent was the dependent minor). The supervision was also

conditioned upon respondent attending school "each and every day,

each and every class for the full class period." She was to use

her best efforts to maintain passing grades in each and every

class and any absence, tardiness, or truancy, not caused by

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illness, would be deemed a violation of the court's order.

On May 20, 2004, the State filed a petition to revoke

the continuance, alleging that on April 30, 2004, respondent "ran

away from her foster home" and did not return until she was

detained by the police on May 1, 2004. The petition also alleged

respondent was "not using best efforts to maintain passing grades

in each and every class at school."

On September 2, 2004, respondent admitted the allega-

tions in the State's petition to revoke the continuance. On

November 4, 2004, the trial court entered an adjudicatory order

pursuant to section 2-4(1)(a) of the Juvenile Court Act, adjudi-

cating Veronica dependent because she was without a parent,

guardian, or legal custodian. The court based its finding on

respondent's "age, unwillingness to comply with authority, foster

placement, and prior detention." On the same day, the court

entered a dispositional order, finding it was in Veronica's best

interest that she be made a ward of the court and placed in the

custody and guardianship of DCFS.

On May 2, 2006, the State filed a petition to terminate

respondent's parental rights, alleging she was unfit because she

had failed to (1) make reasonable efforts to correct the condi-

tions that were the basis for the child's removal (750 ILCS

50/1(D)(m)(i) (West 2004)); (2) make reasonable progress toward

the return of the child within the initial nine months following

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adjudication (November 4, 2004 through August 4, 2005) (750 ILCS

50/1(D)(m)(ii) (West 2004)); and (3) protect the child from

conditions within her environment that were injurious to the

child's welfare (750 ILCS 50/1(D)(g) (West 2004)).

Testimony at the August 25, 2006, fitness hearing

revealed the following. Upon removal, Veronica was placed by

DCFS with her paternal grandmother, Rose Falcone. Chad and

Rose's brother, Oscar, lived in the same house as well. On

February 18, 2006, the Lincoln police department executed a drug-

search warrant on Falcone's residence, naming Oscar as the

primary target. When the police arrived at the residence, they

found Chad, respondent, and Veronica asleep in a garage that had

been converted into a bedroom. The police recovered approxi-

mately 14 pounds of marijuana, scales, smoking devices, and cash

from the residence. The police found open beer bottles (some

empty and some partially full) in the room where Chad, respon-

dent, and Veronica were found.

In her interview with the police, respondent said she

was residing at Falcone's house as well. (It is not clear from

the record if DCFS approved of this living arrangement.) She

knew Chad and Oscar sold drugs out of the house. She had seen

Chad sell drugs from the same room in which she slept. Veronica

was also present during those transactions.

Respondent testified that she turned 18 years old on

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August 14, 2006, the week before the hearing. At the time of the

hearing, she was living with her 19-year-old friend, Katy Day.

She had been living with her for "a couple of weeks." Prior to

living with Katy, respondent lived with another friend, Angie

Cronin, for one month and with respondent's grandmother (name

unknown) for "a few months" before that. She was working as a

certified nursing assistant (CNA) at Maple Ridge Care Center,

where she had been employed for one week. Prior to working at

Maple Ridge, she had worked as a CNA at Kraus Retirement home for

"a few days." She left Kraus in May 2006 to accept employment at

Maple Ridge, but she did not start at Maple Ridge until August

2006. Between May and August, respondent was unemployed. As of

the date of the hearing, she had not received a paycheck from

Maple Ridge. She had not paid Angie, Katy, or her grandmother

rent when she lived with each of them.

Respondent testified that she had been receiving $100

per month from DCFS but, because she had recently turned 18, she

would not be receiving that support any longer. Her only means

of support would come from employment. She had planned to obtain

her own residence at an apartment complex that was being remod-

eled. At Maple Ridge, she earned $6.50 per hour and worked 40

hours per week.

Respondent stated that she chose to leave her grand-

mother's residence and live someplace else. She did not have

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Veronica living with her at that time. If Veronica was with

respondent, she would move back to her grandmother's.

Kelly Brooks, a DCFS caseworker, testified that she had

been working with respondent in this case since 2004. In addi-

tion to Veronica's case, Brooks worked with respondent on her own

dependency case, which was closed when respondent turned 18.

Brooks also had an open case with respondent and Chad's four-

month-old daughter, Carmen J. (born April 2006), who had also

been adjudicated neglected and dependent.

The case plans in Veronica's case were dated March 21,

2005, August 22, 2005, February 6, 2006, and June 16, 2006.

Brooks personally delivered each of those plans to respondent.

One of respondent's tasks was to obtain suitable housing. Brooks

said she was unaware that Oscar lived at Rose Falcone's house,

and had she known, Veronica would not have been placed there.

After the February 18, 2006, drug search, Veronica was placed in

a traditional foster home, where she remained. Respondent had

not maintained any permanent residence.

After February 2006, DCFS added the requirement to

respondent's case plan that she remain drug- and alcohol-free,

and respondent was referred for a drug and alcohol assessment.

To date, respondent has not complied.

Brooks also testified that respondent had not main-

tained consistent employment since 2004. She was supposed to

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obtain her general equivalency diploma (GED), but she has failed

to do so. While she was pregnant (it is unknown to which preg-

nancy Brooks refers), DCFS placed her in the "homeward bound

program." Respondent was dropped from the program for failing to

comply.

Brooks further testified that respondent had been

court-ordered to comply with a psychological evaluation. DCFS

received approval for the evaluation in May 2006, but respondent

had failed to cooperate and obtain one. As of April 2006, DCFS

required that respondent attend a parenting course, but she had

failed to comply. Respondent was also required to demonstrate

responsible decision-making, which, according to Brooks, she had

failed to do. For example, while respondent was a ward of the

court, she failed to remain in her DCFS-assigned placement.

Brooks opined that respondent's failure to complete her education

and the drug and alcohol evaluation were also examples of respon-

dent's poor decision-making. In addition, respondent had not

followed through with visitation with Veronica. She had not

visited Veronica between May 2006 and August 2006. Between

February 2006 and April 2006, respondent frequently attended her

weekly visitation. Respondent's visitation was sporadic in April

and May and had been nonexistent since.

Brooks testified that she was the caseworker for

respondent's juvenile case. In 2002, when respondent was 14

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years old, DCFS filed a petition for adjudication of wardship

based upon respondent's truancy issues. Respondent was involved

in a relationship with Chad at the time. Pursuant to her case

plan, respondent was required to complete her education. At the

time, she had successfully completed eighth grade. Respondent

had been placed in six or seven different foster placements, and,

according to Brooks, respondent was lacking consistent support

from anyone.

Brooks testified that, in May 2005 and November 2005,

she considered respondent to have made reasonable efforts and

progress toward the return of Veronica. After the execution of

the search warrant in February 2006, DCFS added to respondent's

tasks that she obtain an alcohol and drug evaluation, which she

had not done. By the date of the hearing, respondent had suc-

cessfully completed only the Constitution portion of the GED

exam. Brooks said she did not find out until respondent's

testimony that respondent was residing with Katy Day and that she

had learned respondent previously resided with Angie Cronin by

her subsequent investigation. The last of respondent's resi-

dences of which Brooks was aware was in June 2006 when respondent

resided with her grandmother.

The trial court granted respondent's motion for di-

rected verdict with regard to the State's allegation that respon-

dent was unfit because she had failed to make reasonable progress

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toward the return of the child within the initial nine-month

period following adjudication (750 ILCS 50/1(D)(m)(ii) (West

2004)). Respondent presented no evidence.

After considering the evidence and arguments of coun-

sel, the trial court found the State had proved, by clear and

convincing evidence, that respondent had failed to make reason-

able efforts to correct the conditions that were the basis for

the child's removal (750 ILCS 50/1(D)(m)(i) (West 2004)) and had

failed to protect the child from conditions in the environment

injurious to her welfare (750 ILCS 50/1(D)(g) (West 2004)).

On September 14, 2006, the trial court conducted the

best-interests hearing. The State called Chad, who testified he

was still regularly consuming drugs and had not pursued treat-

ment. He also stated he had not been in a relationship with

respondent since July 2006.

Respondent testified that she last visited with Veron-

ica in May 2006. After the fitness hearing, respondent called

DCFS to schedule a visit with Veronica. The caseworker scheduled

the visit for 8 a.m., the morning of the best-interest hearing.

Respondent did not attend the visit because she was sleeping.

She testified that she had returned home from work at 7 a.m. and

gone to bed. She had planned to take the GED exam in a matter of

days. She had contacted Community Action for assistance in

obtaining housing. She stated that "in a couple of weeks" she

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would be able to care for Veronica.

Brooks testified that respondent had failed to appear

at scheduled visits with Veronica numerous times. Brooks also

testified that Veronica's foster mother was willing to adopt her.

(The State did not attempt to elicit this testimony from the

foster mother.)

Jennifer K., Veronica's foster mother, testified that

she had been Veronica's foster mother since February 2006. Also

residing in Jennifer's home was Veronica's younger sister,

Carmen, and Jennifer's adopted daughter, H.K. Jennifer had

Carmen since she was two days old (April 2006). Jennifer stated

that Veronica "was not at all potty trained" when she came into

Jennifer's home but was "fully potty trained" in three months.

Jennifer had to stop telling Veronica when visits with respondent

were scheduled because respondent repeatedly failed to attend,

which made Veronica very upset. After such events, Veronica

would wet the bed and throw temper tantrums. She reverted to

behavior that she had when she first came into placement.

Jennifer described a recent incident when a caseworker

came to retrieve Carmen for a visit with respondent. Veronica

said: "It doesn't matter. She won't show up anyways." Jennifer

responded to Veronica: "She [(respondent)] called and said she

would be there. And she's [(Carmen)] only going to be gone for

an hour and you'll be at the babysitter's when she comes back."

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According to Jennifer, Veronica replied, "She's not going to show

up." Respondent had called to confirm but, in fact, did not

appear.

At the close of the evidence, the trial court held that

"[t]he lack of visitation since May [was] startling." "Such a

simple little thing that could mean so much to a child." Now the

"child has these memories of irresponsible, unreliable parents."

The court indicated that it foresaw the benefit that the child

would experience upon a termination of respondent's parental

rights. According to the court, the case was "abundantly clear

that the best interest of this child favors termination of each

of these parent's [sic] rights." This appeal followed.

II. ANALYSIS

A. Unfitness

Respondent argues the trial court's findings of unfit-

ness were against the manifest weight of the evidence. We

disagree.

When proceeding on a petition to terminate parental

rights under the Juvenile Court Act, the State must first demon-

strate by clear and convincing evidence that the parent is

"unfit" under one or more of the grounds set forth in section

1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2004)). Here,

the trial court found respondent was unfit under the grounds set

forth in sections 1(D)(m)(i) and 1(D)(g). As a reviewing court,

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we accord great deference to the court's finding and will not

disturb the finding on appeal unless it is against the manifest

weight of the evidence. In re T.A., 359 Ill. App. 3d 953, 960,

835 N.E.2d 908, 913 (2005). Because each of the statutory

grounds of unfitness is independent, the court's finding may be

affirmed if the evidence supports the findings of unfitness on

any one of the alleged statutory grounds. In re H.D., 343 Ill.

App. 3d 483, 493, 797 N.E.2d 1112, 1120 (2003).

1. Reasonable Efforts

At the time the State filed its petition to terminate

respondent's parental rights (May 2006), section 1(D)(m)(i)

defined unfitness as the "[f]ailure by a parent (i) to make

reasonable efforts to correct the conditions that were the basis

for the removal of the child from the parent." 750 ILCS

50/1(D)(m)(i) (West 2004). For the purposes of determining a

parent's fitness under this particular statutory ground, the

trial court must focus on the parent's "reasonable efforts"

during the initial nine-month period following the adjudication

of neglect. In re D.F., 208 Ill. 2d 223, 239, 802 N.E.2d 800,

809 (2003). The "initial nine-month period" begins upon the

entry of the court's order of adjudication. D.F., 208 Ill. 2d at

241-42, 802 N.E.2d at 811.

Here, the only relevant evidence for purposes of the

unfitness finding under section 1(D)(m)(i) (750 ILCS

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50/1(D)(m)(i) (West 2004)) is evidence of respondent's conduct

during the period November 4, 2004, through August 4, 2005. The

only evidence presented to the trial court concerning this time

period was the following. Respondent was a dependent minor in

the custody of DCFS, placed in a traditional foster home.

Veronica resided with Rose Falcone, her paternal grandmother, and

her father Chad. Respondent often and regularly visited Veron-

ica. The original and primary issues with regard to Veronica's

adjudication were respondent's failure to remain in foster

placement and her failure to attend school.

The State failed to present any evidence regarding

respondent's conduct during the applicable nine-month period. On

the contrary, upon questioning by respondent's counsel, Brooks

testified that during the applicable time frame, respondent had

made reasonable efforts and reasonable progress. Throughout the

fitness hearing, the State's evidence focused primarily on

respondent's conduct since February 18, 2006, the date designated

by DCFS as the date "when things started to fall apart."

When announcing its ruling in open court, the trial

court set forth in detail the particular facts upon which it

relied. As to the "reasonable efforts" ground, the court stated

that it had relied on the facts that respondent had failed to

attend school, remain in placement, comply with the ordered

psychological evaluation, and maintain employment. Given the

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particular time frame at issue, we find the court's reliance on

certain facts misplaced. The State failed to present sufficient

evidence that respondent had failed to do any of those things

during the initial nine-month period. For example, the State did

not present any evidence as to when respondent was enrolled and

subsequently dropped from the "homeward bound" program. The only

evidence presented regarding respondent's education was that (1)

she had successfully completed eighth grade, (2) she was enrolled

in the "homeward bound" program, (3) she was dropped from the

"homeward bound" program, and (4) she had completed the Constitu-

tion examination. The record is silent as to when each of these

events occurred.

The same can be said for the timing and duration of

respondent's residential placements. The evidence indicated only

that respondent was placed in several foster homes, lived at

Falcone's house as of February 18, 2006, and, at some point,

resided with her grandmother. Beyond that, the evidence did not

support the court's finding that respondent failed to remain in

placement between November 4, 2004, and August 4, 2005.

Further, the evidence did not provide sufficient

details of respondent's employment history (as it pertained to

the nine-month time frame) to justify the finding that she had

failed to make reasonable efforts in resolving the dependency

issue due to her lack of employment stability. The only evidence

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relating to respondent's employment history concerned her CNA

positions beginning in May 2006.

Finally, Brooks testified that respondent was ordered

to submit to a psychological evaluation only "eight or nine

months" prior to the fitness hearing. For obvious reasons,

respondent's failure to comply with that evaluation had no

bearing on her reasonable efforts during the applicable nine-

month evaluation period. Without clear and convincing evidence

that respondent had failed to make reasonable efforts as evi-

denced by her conduct between November 4, 2004, through August 4,

2005, the trial court's finding of unfitness on that ground was

manifestly erroneous.

2. Injurious Environment

The trial court also found respondent was unfit pursu-

ant to section 1(D)(g) of the Adoption Act (750 ILCS 50/1(D)(g)

(West 2004)), which provides that a parent is unfit due to his or

her "[f]ailure to protect the child from conditions within his

environment injurious to the child's welfare." The court relied

on evidence "much broader" than that of the February 18, 2006,

raid at Falcone's residence. In particular, the court emphasized

the fact that respondent was aware drugs had been sold from the

residence at a time when she and Veronica were present. Respon-

dent had witnessed Chad engage in drug sales 10 times from the

same room in which she and Veronica were found sleeping. She had

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also witnessed Oscar sell drugs an additional 5 to 10 times from

the residence.

Although it minimized the significance of its finding,

the trial court also mentioned the fact that the police had found

open beer bottles in the room where Veronica had been sleeping.

The court placed great significance on the risk of harm associ-

ated with drug sales in the presence of a minor and noted the

inherent danger in conducting such activity, speculating as to

the possibility of an armed robbery or "any other kind of bad

activity that occurs when you're dealing drugs." Based upon the

evidence, the court found the State had proved by clear and

convincing evidence, that respondent was unfit for failing to

protect Veronica from dangerous environmental conditions.

As a matter of law, a parent may not be found unfit

under section 1(D)(g) during a time after the child was removed

from the parent's custody. See In re C.W., 199 Ill. 2d 198, 212,

766 N.E.2d 1105, 1114 (2002). However, this principle of law

presumes that, once the child has been removed from the parent,

he or she has been placed in foster care separate and apart from

the parent's environment. See C.W., 199 Ill. 2d at 212, 766

N.E.2d at 1114. "Logic dictates that once the child is removed

from the injurious environment, there can be no further failure

to protect." C.W., 199 Ill. 2d at 215, 766 N.E.2d at 1115.

In the case sub judice, the basis for the trial court's

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finding of unfitness under the failure-to-protect ground (the

February 18, 2006, raid and the realization that respondent knew

drugs were sold out of the residence) occurred after the child

had been removed from respondent's care. That fact makes this

case distinguishable from the traditional principle set forth

above. Although Veronica had been legally removed from respon-

dent's care, she was placed in relative placement--the same

physical residence in which respondent resided at the time.

Thus, respondent had the opportunity, yet failed to, protect

Veronica by allowing her to reside in a home where drug sales

often occurred.

There exists no requirement under section 1(D)(g)

that a respondent be permitted a period of time to correct or

improve an injurious environment before she may be found unfit on

this ground. In re B.R., 282 Ill. App. 3d 665, 670, 669 N.E.2d

347, 351 (1996). Thus, a parent's actions before the child was

removed may serve as a basis for terminating his or her parental

rights without forewarning. This makes respondent's case more

egregious. Veronica had already been removed from respondent's

custody, and respondent had already admitted Veronica was depend-

ent. Respondent was aware that she had certain tasks to perform

and that she had to abide by a certain standard of conduct in

order to regain the privilege of caring for her daughter. In

this vein, respondent ultimately failed. On the record evidence,

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we find the trial court's finding that respondent was unfit for

failing to protect Veronica from an environment injurious to her

welfare pursuant to section 1(D)(g) of the Adoption Act (750 ILCS

50/1(D)(g) (West 2004)) was not against the manifest weight of

the evidence.

B. Best Interest

Respondent argues the trial court's decision terminat-

ing her parental rights was against the manifest weight of the

evidence. We disagree.

Courts will not lightly terminate parental rights

because of the fundamental importance inherent in those rights.

In re M.H., 196 Ill. 2d 356, 362-63, 751 N.E.2d 1134, 1140

(2001). Once the trial court finds the parent unfit, the par-

ent's rights are no longer of concern. The parent's rights must

yield to the best interest of the child. In re Tashika F., 333

Ill. App. 3d 165, 170, 775 N.E.2d 304, 307 (2002). The court's

best-interest finding will not be reversed unless it is against

the manifest weight of the evidence. H.D., 343 Ill. App. 3d at

494, 797 N.E.2d at 1121.

The best-interest report indicated Veronica had been

placed in a traditional foster home as of February 2006. Her

younger sister, Carmen, was placed in the same home upon her

birth in April 2006. Since being in the home, Veronica had

become potty-trained, stopped cursing, and developed healthy

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eating habits. According to the report, when Veronica first

arrived in the home, she frequently used unacceptable language

and refused to eat anything but hotdogs and snack foods. The

report found Veronica was thriving in her new home, as she had a

very consistent schedule for bedtime, nap time, and meal times.

Her needs of emotional and physical stability were being met.

She seemed very attached to her foster mother and her foster

mother's adopted daughter and enjoyed placement with Carmen. The

report recommended respondent's parental rights be terminated.

The evidence presented at the best-interest hearing

indicated that Veronica's placement was an adoptive home. The

evidence further indicated that Veronica, who was three years old

at the time, emotionally suffered from respondent's failure to

appear at her scheduled visitation times. Respondent testified

that she had not visited with Veronica since May 2006. Prior to

that time, she regularly visited Veronica. After May, Veronica

would anticipate the visits only to be repeatedly disappointed

when her mother failed to attend. Jennifer K. testified that for

a day or two after the unsuccessful visit, Veronica would act in

an atypical manner, via temper tantrums or bed-wetting. Veronica

also made comments when Carmen was scheduled to visit respondent

regarding respondent's likelihood of failing to appear.

We find it is in Veronica's best interest to allow her

to obtain the permanency, stability, and support she deserves and

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requires. Based on the evidence presented, we find the trial

court's order terminating respondent's parental rights was not

against the manifest weight of the evidence.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's

judgment.

Affirmed.

COOK, J., concurs.

STEIGMANN, P.J., specially concurs.

PRESIDING JUSTICE STEIGMANN, specially concurring:

Although I agree with the result, I disagree with some

of the majority's analysis in reaching that result. Accordingly,

I specially concur.

The majority discusses at some length the sufficiency

of the State's evidence during a given nine-month period, as

required by section 1(D)(m)(i) of the Adoption Act. However,

respondent mother, in appealing the trial court's judgment

terminating her parental rights, has not raised any issue con-

cerning the sufficiency of the State's evidence during any nine-

month period.

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 Because the majority addresses this issue sua sponte,

we do not know what response, if any, the State might have

provided if respondent mother had raised the issue in her brief.

It is at least possible that the State's response might have

caused the majority to modify its discussion or, perhaps, to

eliminate it entirely.

Although this court is otherwise affirming, the major-

ity nonetheless deems the State's evidence insufficient (in part)

and declares that one aspect of the trial court's finding of

unfitness was "manifestly erroneously." I conclude it is neither

fair to either the State or the trial court nor appropriate for

the majority to reach these conclusions sua sponte. Indeed, the

first time that the State or the trial court will know that this

issue even exists is when they receive a copy of this opinion.

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