2018 IL App (1st) 180577
No. 1-18-0577
Opinion filed November 21, 2018
Third Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re C.L., a Minor, ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County.
)
Petitioner-Appellee, ) No. 13 JA 638
v. )
) Honorable
Makiah L., ) John L. Huff,
) Judge, presiding.
Respondent-Appellee (C.L., Minor-Appellant)). )
______________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion.
Justices Howse and Ellis concurred in the judgment and opinion.
OPINION
¶1 Minor-respondent-appellant C.L., through the Office of the Cook County Public
Guardian (Public Guardian), petitioned to appeal the trial court’s March 8, 2018, permanency
order setting the goal of return home to mother, Makiah L., within 12 months. We granted
leave to appeal under Illinois Supreme Court Rule 306(a)(5) (eff. Nov. 1, 2017). C.L.
contends that the court erred in setting the permanency goal of return home because the
manifest weight of the evidence showed the goal of private guardianship was in C.L.’s best
interest. Further, C.L. argues that the court incorrectly interpreted section 2-27 of the
Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-27 (West 2016)), when it stated that
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ordering private guardianship would require an additional finding that Makiah was unable to
care for C.L. For the reasons that follow, we reverse and remand.
¶2 I. BACKGROUND
¶3 C.L. was born on March 2, 2013, to Makiah and Rodney T. 1 Prior to C.L.’s birth, the
Department of Children and Family Services (DCFS) had opened cases against Makiah in
regards to her six other children. 2 Upon learning of C.L.’s birth, DCFS attempted to contact
Makiah and assess C.L.’s condition. When these efforts failed, the State filed a petition for
adjudication of wardship alleging C.L. was neglected and abused due to the existence of an
injurious environment and a substantial risk of injury. See 705 ILCS 405/2-3(1)(b), (2)(ii)
(West 2016). The State moved for temporary custody in conjunction with filing the petition,
and a hearing was conducted on July 12, 2013. The court found probable cause that C.L. was
neglected, there was an immediate and urgent necessity to remove C.L. from the home, and
reasonable efforts had been made but had not eliminated the need for removal. The court
issued a child protection warrant, and C.L. was taken into DCFS custody and assigned a
caseworker from Children’s Home and Aid (agency) the following week. C.L. was placed in
a foster home with Shawna and Kevin Koonce and has resided there throughout the pendency
of this case.
¶4 In August 2013, Makiah was granted supervised visits with C.L. and ordered to attend
mediation in the following months to discuss placement, visitation, and services. Over the
next year, the case was repeatedly continued pending status on service against Rodney until
he was defaulted against in June 2014. On October 30, 2014, the court heard arguments on
1
Rodney has never filed an appearance in this case and is not involved with this appeal.
2
Five of Makiah’s sons were adjudicated to be neglected in 2004. Makiah’s sixth son was taken
into DCFS custody shortly after birth as a substance exposed infant in 2009. At the time of this order,
Makiah’s sons are between the ages of 8 and 22 and her parental rights were terminated as to the four
younger brothers.
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the allegations of abuse and neglect and took the case under advisement. An adjudication
order was issued on December 10, 2014, finding that C.L. was neglected under the theory of
anticipatory neglect. 3 The court rejected the abuse allegations and explained that neglect was
found only because “[Makiah] hadn’t advanced to unsupervised overnight visits and never
corrected issues from other involved children or completed recommended services.” These
facts were sufficient to prove by a preponderance of the evidence that C.L. was neglected.
The parties waived the requirement for a dispositional hearing within 30 days of adjudication
and set the next hearing for March 6, 2015.
¶5 The dispositional hearing was held over three court dates between March and June 2015.
On June 2, 2015, the court entered an order finding that Makiah was unable to care for,
protect, train, or discipline C.L. The court also entered the first permanency order setting the
goal of return home in twelve months and reserving the issue of mother’s progress toward the
goal. At the next two permanency hearings, the court noted that Makiah had made “some,”
but not substantial, progress toward the goal. The court maintained the goal of return home
within twelve months, despite the agency’s recommendation for substitute care pending
termination of parental rights.
¶6 The Public Guardian and state’s attorney agreed, at the hearing on December 2, 2015,
that it was too early to seek termination of parental rights because more services could be
offered before ruling out return home. However, at the hearing on June 22, 2016, both the
Public Guardian and state’s attorney noted for the record that they agreed with the agency’s
3
“Under the anticipatory neglect theory, the State seeks to protect not only children who are the
direct victims of neglect or abuse, but also those who have a probability to be subject to neglect or
abuse because they reside, or in the future may reside, with an individual who has been found to have
neglected or abused another child.” In re Arthur H., 212 Ill. 2d 441, 468 (2004). “The doctrine of
anticipatory neglect recognizes that a parent’s treatment of one child is probative of how that parent
may treat his or her other children.” In re Zion M., 2015 IL App (1st) 151119, ¶ 30.
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recommendation for substitute care pending termination of parental rights. The court
explained that it found return home was not possible at the time, because mother had not
been in or had not been consistent with services aimed toward reunification, but that a goal of
return home should not be ruled out. During this time period, Makiah was granted supervised
community visits in addition to supervised visitation at the agency.
¶7 In the fourth permanency order entered on January 12, 2017, the court found that Makiah
had made substantial progress despite recognizing that mother had unsatisfactory drug testing
results and was still in need of child-parent psychotherapy (CPP) and individual counseling.
The court further remarked that Makiah had been consistent in attending visitation with C.L.
and acknowledged that C.L. exhibited aggressive behavior during these visits. The court
maintained the goal of return home within twelve months, yet again against the
recommendation of the agency and over the objection of the Public Guardian.
¶8 After this order was entered, Makiah sought the right to have unsupervised visits with
C.L. Conversely, the Public Guardian sought to suspend visitation or limit visitation to
therapeutically supervised visits citing concerns that visits increased C.L.’s behavioral issues.
On March 16, 2017, the court denied the Public Guardian’s motion to suspend visitation and
granted Makiah unsupervised weekend visits in addition to the regular supervised weekday
visits. The Public Guardian later filed an emergency motion to suspend visitation following a
report that Makiah had hit C.L. in the face during an unsupervised visit on April 29, 2017.
The court denied the motion to suspend visitation as well as the Public Guardian’s
subsequent motion to reopen proofs and reconsider the motion. Over the objections of the
Public Guardian and state’s attorney, the court entered an order on June 19, 2017, continuing
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unsupervised Saturday visits and allowing for unsupervised overnight visits to occur at the
discretion of DCFS.
¶9 The next permanency hearing, which is at issue in this appeal, spanned five hearings
beginning in August 15, 2017, and ending with the court’s ruling on March 8, 2018. The
court took judicial notice of the previous hearings in the case and the court’s notes, in
addition to the termination of Makiah’s parental rights as to four of her six other children.
The following testimony was given on February 23, 2018, in addition to the 21 exhibits
entered into evidence during the hearings.
¶ 10 Jane Wright, Makiah’s neighbor, testified that she had lived in the apartment across the
hall for the past year. Wright has a five-year-old grandson who would play with C.L. on
Saturdays during Makiah’s unsupervised visits. The play dates had occurred regularly for
five or six months. Wright would drop off her grandson and spend around 20 minutes with
the boys and Makiah before leaving them to play. During these times she noted that C.L.’s
behavior was “out of control.” In the last two months, she saw C.L. become violent with
Makiah, kicking and biting his mother while she tried to “hold him down” until he calmed
down. Wright never saw Makiah hit C.L. She testified that she heard C.L. say things like his
“other mommy” told him to act out and to say he did not like Makiah.
¶ 11 C.L.’s foster mother, Shawna, denied saying anything disparaging about Makiah to C.L.
or instructing him to act out. She did not believe it would be beneficial for C.L. if his
relationship with Makiah was damaged. In her oral report on C.L.’s status, she noted some
improvement in his behavior at school and ability to express himself in therapy. However,
C.L. would verbally express a dislike for the visits with Makiah and often cry or have
tantrums when he left for visits. Shawna stated he would “destroy his room” and she would
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try to calm him down by reminding him that she was there for him and would be there when
he returned from the visits.
¶ 12 Shawna was pressed on cross-examination as to whether she ever said positive things
about Makiah to C.L. Shawna testified that she would tell C.L. to be good for his mom, that
Makiah was a good person who loved him, so he should be nice to her and go to the visits.
Shawna acknowledged that she and Makiah only had an “okay” relationship and they needed
to work on it in the future, which she was willing to do. She also testified to her prior
experience in maintaining familial bonds between her adopted daughter and her daughter’s
biological family. Shawna expressed that her daughter was an example that she meant what
she said and she understood the importance of maintaining Makiah’s relationship with C.L.
as well as C.L.’s relationship with his other siblings.
¶ 13 Makiah testified that during visits C.L. would call her “stupid” and say it was because his
foster parents thought Makiah was stupid. Further, C.L. would relate that his foster parents
did not like her and would tell C.L. he does not have to listen to her. Makiah claimed that
C.L. admitted he was lying to Makiah and was instructed to say mean things during their
most recent CPP session on February 20, 2018. Makiah further testified that the CPP
therapist, Shakira Harris, intervened and explained to C.L. that it was not okay to tell lies and
it was not nice for C.L. or C.L.’s foster parents to tell him to do that to Makiah.
¶ 14 Harris was not present at the hearing but was called as a rebuttal witness and testified
telephonically. She stated that during the last therapy session, C.L. did not tell her that his
foster mother told him to fight and hit Makiah. Further, C.L. did not bring up his foster
mother at all. He did, however, accuse Makiah of hitting him on the bus while travelling to
the session. When pressed for clarification on the alleged hit, C.L. stated he was just kidding
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and he was trying to “get rid of the visit.” C.L. explained that he liked to see Makiah and the
visits at her apartment, but he was tired of coming to the agency.
¶ 15 Harris submitted a report detailing Makiah and C.L.’s progress in CPP from October
2017 through January 2018. During this time period, Makiah attended nine sessions, two
sessions were cancelled by Harris, and two sessions were cancelled by Makiah because she
was late. Harris reported that Makiah and C.L. were both making progress in regulating their
emotions and interacting with each other in a safe manner. Additionally, C.L. had become
more expressive in therapy. However, he would ignore expressions of affection by Makiah
and expressed anger and frustration over the compulsory visits. Further services were
recommended for Makiah to establish herself as a “protective, benevolent, legitimate
authority figure” in C.L.’s life and to improve the emotional bond between the two.
¶ 16 Anne Gamache, the therapist who provided individual play therapy for C.L., also testified
and submitted reports regarding C.L.’s progress. She had worked with C.L. since he was
referred to her services in January 2017. Her quarterly report for October 12, 2017 through
January 11, 2018, recommended that visitation with Makiah be discontinued. She detailed
that C.L. sought out his foster mother Shawna as a secure base and source of nurturing and
emotional security. In contrast, when asked about Makiah, C.L. consistently avoided
discussing her and his visits with her. He would instead ask to just play or ignore Gamache’s
questions. During his play therapy, C.L. exhibited symptoms of post-traumatic stress
disorder. Further, although his dissociation and aggression had decreased during the
reporting period, his anxiety had increased. C.L. had learned coping skills to regulate his
emotions and can when his emotions are moderate, but he would leave the therapy space and
seek out Shawna for physical nurturing whenever he was overwhelmed.
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¶ 17 In an addendum submitted on February 19, 2018, Gamache reported that C.L. was having
nightmares where he could not come home. He also acted out scenarios during play therapy
where a stuffed animal attacked Gamache in an effort to steal a baby doll that C.L. had
entrusted to Gamache’s care. C.L. also expressed a fear that Makiah, whom he referred to as
“the evil mom,” would come to his foster home and break all the windows. Lastly, C.L.
reported on February 13, 2018, that he had been hit, scratched, and spanked on a visit.
However, C.L.’s report was unclear as he referenced both the visit earlier in the day prior to
the session and another visit “a long time ago.”
¶ 18 Gamache testified during the hearing that, in the latest session, after she had submitted
her addendum, C.L. again reported being hit by Makiah. C.L. stated Makiah had hit him in
the face during the visit that day. Gamache reported this incident to the DCFS hotline and
testified that she had not done so after the last session because she observed no marks on
C.L. and he had not provided a concrete timeframe for the allegation. Gamache also testified
about her recommendation that visitation be discontinued. She expressed concerns that C.L.
had expressed an unwillingness to attend visits and during one observed visitation sought
comfort from Gamache rather than Makiah. Further, despite fairly consistent visits for the
past year, C.L.’s negative behaviors had not decreased nor did he show the development of a
positive relationship with Makiah.
¶ 19 Amanda Moore, the agency’s caseworker, testified that she had been assigned to the case
in November 2017. Her most recent visit to C.L.’s foster home was February 16, 2018. A
few days after that visit, an investigation was opened following the hotline call by Gamache.
Makiah’s unsupervised visitation schedule was suspended pending the results of the
investigation. The agency was attempting to find staffing solutions to implement the same
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visitation schedule with agency supervision at the previously unsupervised visits. Moore
testified that she observed a strong emotional bond between C.L. and Shawna. She was
concerned that a majority of the time Makiah’s efforts to soothe C.L. were unsuccessful and
a substantial amount of time would be required before Makiah was ready to care for C.L. on
her own.
¶ 20 Moore testified that, during the most recent staffing meeting, she met with her supervisor,
a clinical supervisor, and C.L.’s CPP therapist Harris and they determined that private
guardianship would be best for C.L. in order to introduce more stability into his life. Due to
the hearing being continued across several months, the agency had prepared four separate
permanency planning reports for the court to review. The report prepared in February 2018,
after the staff meeting about which Moore testified, was the first time the agency had
changed their recommendation to private guardianship.
¶ 21 The August 2017 report stated that the agency would not be able to recommend a
permanency goal until the latest parenting capacity assessment conducted by Jo Anne Smith
was completed for Makiah. After Smith’s assessment had been filed, the agency
recommended substitute care pending termination of parental rights in September 2017. The
agency then reversed their position and recommended return home within twelve months in
the report from December 2017. The agency recommended that Makiah and Shawna attend
mediation and wrote, “even though [C.L.]’s therapist and Ms. Smith are requesting that the
Court move away from a reunification goal, the agency believes that the ‘system’ has an
obligatyion[sic] to make further attempts to bring the two most important people in [C.L.]’s
life together before any change in goal be entertained.”
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¶ 22 Consistently across the four reports, the agency noted that Makiah’s compliance with
random drug screening was unsatisfactory and remained a serious concern preventing
reunification. Between June 2017 and February 2018, Makiah missed 12 requests for drug
drops. Of the four she completed during this period, three were positive for the presence of
drugs. Her only clean drop was on September 6, 2017. The reports acknowledged Makiah
was making some progress in her parenting skills but also noted her tendency to shut down or
cancel visits and therapy sessions when C.L. misbehaved. C.L.’s disruptive behaviors at
school had not subsided, and he frequently exhibited a reluctance to attend visits and would
verbally and physically resist the case aide’s attempt to transport him to visits.
¶ 23 Further, although not discussed at the hearing, the August report noted that unsupervised
visits at Makiah’s home were suspended when her third eldest son, who was still under
DCFS care, moved home in an unauthorized self-placement. The agency found that Makiah’s
older son posed a risk to C.L.’s safety. The older son was not compliant with his medication
or mental health services and reported to be affiliated with a gang in addition to being
allegedly pursued after selling illegal substances. He later moved out as reflected in the
February report and visitation in the home was allowed to resume.
¶ 24 The parenting capacity assessment report relied upon by the agency was completed by Jo
Anne Smith on September 5, 2017. Smith drew her observations from her interviews with
Makiah and Shawna; her observations of C.L. alone and C.L. with Makiah; her review of all
relevant documents, including Makiah’s previous psychiatric evaluations and mental health
assessments; and discussions with or reports from other parties involved with the case. In a
thorough report, Smith noted concerns that Makiah saw herself as a victim and relied on
placing blame on external factors as a coping mechanism. Makiah seemed to lack insight into
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the consequences of her actions and her lengthy involvement with DCFS. Despite her
continued desire to parent and her consistency in showing up, Makiah had failed to integrate
what she had learned into her interactions with C.L. She exhibited some understanding of
C.L.’s emotional and developmental struggles but could not consistently address C.L.’s
issues in an age-appropriate and constructive manner. Makiah continued to have serious risk
factors preventing return home including placing her own needs above C.L.’s as exhibited by
her continued reliance on drugs to self-medicate.
¶ 25 In regards to C.L.’s emotional and mental state, Smith noted that C.L. struggled with trust
issues and appeared consistently anxious about the roles of the adults in his life. Smith
posited that C.L. had picked up on the feelings of conflict between Shawna and Makiah and
felt disrupted due to the constant shuffling he experienced while in the system. Smith was
concerned that Makiah’s tendency to give up when things got tough would be an issue if C.L.
returned home and she became responsible for him full-time. Smith then outlined all the
necessary recommendations if the court chose to move forward with either return home or
permanency in the foster placement. In an addendum to her report, Smith clarified that in her
professional opinion, “the risk factors outweigh the strengths of [Makiah] at this time”. She
felt that “time has appeared to run out” and that return home should no longer be considered
as C.L.’s behaviors were continuing to escalate. Smith wrote that minor’s return home to a
mother who did not have the skills to soothe him may result in C.L.’s behavior escalating to
the point that he would have to be hospitalized. She recommended that C.L. be placed with
“safe, tolerant, consistent, and predictable parental figures who will help him work through
his emotional and developmental issues.”
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¶ 26 At the close of testimony on February 23, 2018, the court continued the hearing noting
that it wished to speak with C.L. and hear C.L.’s feelings before ruling on the permanency
goal. The court discussed its concerns that the finding of neglect at adjudication had been a
“very close” decision and mused over whether it “made a mistake” that resulted in the system
causing C.L.’s misbehaviors and anxiety. On March 6, the court reversed its decision to
speak with C.L. per the therapist recommendation that such a discussion would place undue
stress on C.L. However, prior to hearing arguments on March 8, the court noted for the
record that it had come across the opportunity to speak to C.L. in an informal ex parte
meeting after the last hearing. The substance of the conversation between the court and C.L.
were not entered on the record.
¶ 27 Despite the arguments of the Public Guardian and the state’s attorney, the court entered
an order setting the permanency goal of return home within 12 months. The court also found
that Makiah had made substantial progress toward the permanency goal and reserved the
issues of whether the agency had made reasonable efforts and if C.L.’s placement is
necessary and appropriate. This appeal followed.
¶ 28 II. ANALYSIS
¶ 29 C.L. raises two challenges to the court’s March 8, 2018, permanency order. First, he
contends that the trial court ignored the manifest weight of the evidence, which demonstrated
that it was in his best interest to change the permanency goal to private guardianship rather
than return home. Secondly, he argues that the court’s justification for denying the State’s
request for private guardianship was based on a flawed interpretation of the Act. C.L.
requests this court reverse the permanency goal of return home within 12 months and remand
the case with instructions to set a permanency goal of private guardianship.
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¶ 30 The state’s attorney agrees that the trial court failed to consider the C.L.’s best interest in
setting the permanency goal of return home within 12 months. However, the state’s attorney
does not adopt C.L.’s arguments and instead requests remand of the case with instructions for
the trial court to fully consider C.L.’s best interest at a new permanency hearing. Makiah
responds that the trial court’s interpretation of the statute was correct and that the manifest
weight of the evidence supported a permanency goal of return home, and thus, this appeal
should be denied.
¶ 31 A. The Juvenile Court Act
¶ 32 Before ruling on the appropriate permanency goal, the trial court asked counsel multiple
times why it should set private guardianship as the goal if they did not present evidence that
Makiah was unable to care for C.L. The trial court stated that looking at section 2-27(1) of
the Act, “I’m required to find that the parent is unable to care for the child before I can close
this case to private guardianship.” Although a motion to close the case to private
guardianship was not before the trial court, the court asked, “why should I set the goal at
private guardianship if that’s a finding that I’d have to make?” Counsel argued that section 2
27(1)’s directive to make a finding of fitness and ability was applicable at the dispositional
hearing but is not a determination made during the permanency hearing. However, the court
responded, “My reading of the Juvenile Court Act is that Sections 2-22 and 2-23 govern the
dispositional hearing.” Thus, the court continued to apply section 2-27(1) to the permanency
hearing and rejected arguments that fitness, ability, and willingness were not under review in
a change to private guardianship.
¶ 33 C.L. asserts that the plain language of the statute indicates that the trial court makes an
initial finding regarding fitness, ability, or willingness during the dispositional hearing and
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this finding is sufficient to grant the trial court authority to order placement in private
guardianship “at any later point” during the case, provided that it is in the minor’s best
interest. Further, section 2-28 directs the trial court to “determine the future status of the
child” and set a permanency goal which aligns with the child’s best interest. 705 ILCS 405/2
28 (West 2016). C.L. highlights that this section does not instruct the trial court to make an
additional finding of a parent’s fitness, ability, or willingness to care for their child. Thus,
C.L. contends that the trial court’s reading of the statute is incorrect because it renders the
phrase “at any later point” in section 2-27 superfluous. 4
¶ 34 The construction of a statute is a question of law and our review is de novo. In re M.M.,
2016 IL 119932, ¶ 15. The primary rule of statutory construction is to ascertain and give
effect to the intent of the legislature. Id. The most reliable indicator of legislative intent is the
language of the statute, which should be given its plain and ordinary meaning. Bayer v.
Panduit Corp., 2016 IL 119553, ¶ 18; People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279
(2003). Furthermore, a statute is viewed as a whole, and we construe its words and phrases in
light of other relevant statutory provisions to give each word, clause, and sentence a
reasonable meaning, if possible, to avoid rendering any part superfluous. See In re M.M.,
2016 IL 119932, ¶ 16.
¶ 35 In order to address C.L.’s argument, we must look at all the relevant sections of the Act
beginning with the dispositional hearing. Under the Act, the trial court is directed to hold a
dispositional hearing within 30 days after the court determines that a minor is abused or
neglected. 705 ILCS 405/2-21(2) (West 2016). A dispositional hearing is used to “determine
whether it is in the best interest of the minor and public that the minor be made a ward of the
4
We address the minor’s second argument first because the court’s interpretation of the Act
affects how it weighed the evidence, which we will discuss later.
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court.” 705 ILCS 405/2-22(1) (West 2016). If the minor is made a ward of the court,
guardianship of the child is awarded to DCFS. 705 ILCS 405/2-22(6) (West 2016). Then, the
court must determine what further action should be taken in regards to the minor and may
enter four types of orders: (1) continued care by the minor’s parent, guardian, or legal
custodian; (2) restoration of custody to the minor’s parent, guardian, or legal custodian;
(3) the minor’s partial or complete emancipation; or (4) placement in accordance with section
2-27 of the Act. 705 ILCS 405/2-23(1) (West 2016); In re M.M., 2016 IL 119932, ¶ 17.
¶ 36 Section 2-27 provides for the court, “at this hearing and at any later point,” to place the
minor in the custody of a suitable relative or other person, place the minor under the
guardianship of a probation officer or subsidized guardianship, or commit the minor to an
agency or DCFS, “[i]f the court determines and puts in writing the factual basis supporting
the determination of whether the parents, guardians, or legal custodian of a minor adjudged a
ward of the court 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 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, guardian or custodian.” 705 ILCS 405/2-27 (West 2016).
¶ 37 Here, the trial court was correct in stating that sections 2-22 and 2-23 govern the
procedure of a dispositional hearing. However, section 2-23 also plainly references and
directs the court to enter placement orders, if applicable, in accordance with section 2-27.
Thus, the Public Guardian and State were correct in arguing that a finding of fitness, ability,
and willingness under section 2-27 is determined during the dispositional hearing. Notably,
the disposition form order used by Cook County courts and entered by the court in this case
is explicitly captioned “Disposition Order (Placement) 705 ILCS 405/2-27.”
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¶ 38 Turning to the phrase “at any later point” in section 2-27, we agree with the Public
Guardian that, under the plain language of the statute, a court may rely on its initial
determination during the dispositional hearing to later modify placement of the minor
without once again finding the parent, guardian, or custodian unfit or unable to care for the
minor. In re Terrell L., 368 Ill. App. 3d 1041, 1050 (2006) (stating that “[w]e cannot
conclude, based on the language of the statute, that the legislature did not intend the words
‘at any later point’ to actually mean ‘at any later point’ ”). Under section 2-27, a minor may
be placed with a relative or nonrelative as a legal custodian or guardian, with a probation
officer or other agency, or with a private guardian. 705 ILCS 405/2-27(1) (West 2016). The
phrase “at any later point” recognizes that a minor’s best interest may change during the
pendency of the case and authorizes the court to modify the minor’s placement without
additional findings as to a parent’s fitness, ability, and willingness.
¶ 39 Next, section 2-28 outlines the court’s duty to periodically review the case and order
changes to the service plan and the minor’s placement as needed to resolve the case and
achieve permanency for the minor. The court must set a permanency goal for the parties,
which in general may be return home, adoption, or private guardianship. 5 705 ILCS 405/2
28(2) (West 2016). Custody of the minor may be returned to the parent, guardian, or legal
custodian only if the “minor can be cared for at home without endangering the minor’s health
and safety and it is in the best interest of the minor.” 705 ILCS 405/2-28(1) (West 2016).
When return home is not immediately possible, time is allotted for the parties to complete
services to prepare for reunification. Although, the Act directs the court to preserve family
ties whenever possible, the Act also emphasizes the need to establish permanency “at the
5
There are three other permanency goals provided for the Act, but are not relevant to this case
because minor is not over the age of 15, nor does he have any developmental disabilities or mental
illness, and the requirements for continuing foster care as a permanency goal have not been met.
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earliest opportunity.” 705 ILCS 405/1-2(1) (West 2016). Our supreme court has recognized
that a minor’s best interest is not served if they “remain in limbo for an extended period of
time.” In re D.L. 191 Ill. 2d 1, 13 (2000).
¶ 40 Thus, when return home has not been achieved and will likely not be achieved in a
reasonable amount of time the Act provides for changing the permanency goal to either
adoption or private guardianship. The court’s only consideration in setting the permanency
goal is the minor’s best interest and further proceedings are initiated to finalize permanency
and meet the goal. A proceeding to change a minor’s placement to private guardianship is
different from a proceeding seeking the termination of parental rights. See In re April C., 326
Ill. App. 225, 237 (2001). Adoption requires either consent by the parents or the court’s
termination of the parental rights. 705 ILCS 405/2-28(2)(D) (West 2016). Private
guardianship, on the other hand, requires DCFS approval, court approval, and that return
home and adoption have been ruled out. 705 ILCS 405/2-27(1)(a-5), 2-28(2)(E), 2-28(4)(a)
(West 2016).
¶ 41 Termination of parental rights is governed by section 2-29 of the Act, and a trial court
must find by clear and convincing evidence that the parent is unfit to care for the minor in
order to terminate parental rights. 705 ILCS 405/2-29 (West 2016). This is a re-examination
under a higher standard than the initial finding made during the dispositional hearing and is
required when the permanency goal is set to adoption, over the parent’s objection. 705 ILCS
405/2-28(2)(D), 2-29 (West 2016). However, in the case of private guardianship, the current
foster parent or relative caregiver simply files a motion for appointment by the court as the
private guardian. 705 ILCS 405/2-28(4)(a) (West 2016). There is no petition to terminate
parental rights, and therefore there is no statutory requirement to make new findings
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regarding a parent’s fitness. DCFS sets the requirements of eligibility for private
guardianship and gives consideration to the child’s best interest and the emotional bond and
commitment displayed between the minor and proposed guardian. 89 Ill. Adm. Code 302.405
(2008). The court’s role is to determine under the standards set forth in section 2-28, whether
the goals of return home and adoption should be ruled out, and if they are, then the court only
has to approve the motion for appointment.
¶ 42 Here, the trial court focused on section 2-27(1) and whether counsel could prove anew
that Makiah was unable to care for C.L. The trial court erroneously focused on parental
fitness in relation to changing the permanency goal or closing the case to private
guardianship. As neither action would require a separate finding that Makiah was unable to
care for C.L. under the Act, we agree that the court misapplied the statute and turn next to the
manifest weight of the evidence.
¶ 43 B. Manifest Weight of the Evidence
¶ 44 C.L. argues that the goal of return home should have been ruled out because it does not
serve C.L.’s best interest. C.L. contends that (1) the lengthy pendency of this case, (2) C.L.’s
age and emotional and developmental needs, and (3) the improbability of Makiah making the
progress necessary for reunification in the near future are factors clearly weighing against a
continued goal of return home. C.L. further argues that the trial court erred because it failed
to focus on C.L.’s best interest and instead indicated a focus on Makiah’s rights as a parent.
¶ 45 Makiah responds that private guardianship was not an appropriate permanency goal
because return home could not be ruled out as she was very close to being found fit, willing,
and able to care for C.L. Furthermore, the record suggests that private guardianship would
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not be a proper goal because it was not in C.L.’s best interest due to the tension between
Makiah and C.L.’s foster mother and her allegations of parental alienation.
¶ 46 Section 2-28 of the Juvenile Court Act “requires the trial court to establish a permanency
goal that is in the best interest of the child.” In re E.I., 309 Ill. App. 3d 392, 397 (1999); 705
ILCS 405/2-28 (West 2016). “When reviewing the trial court’s best-interest determination,
the reviewing court will not overturn the court’s determination unless it is against the
manifest weight of the evidence.” In re S.J., 364 Ill. App. 3d 432, 441 (2006). Thus, even if
the court’s reasoning in setting a permanency goal was flawed, it would not be overturned if
it was supported by the evidence. Under section 2-28, the factors that should be considered in
determining the minor’s best interest include the minor’s emotional, physical, and mental
status or condition as well as age; the status of any of the minor’s siblings; the minor’s
current placement and the family’s intent regarding adoption; the history of services offered
and availability of services still needed; and the options available for permanence. 705 ILCS
405/2-28 (West 2016).
¶ 47 As previously discussed, the court was incorrect in focusing on whether or not the State
could meet the burden of proving Makiah was unfit or unable to care for child in order for it
to set a permanency goal of private guardianship. In setting the permanency goal at this
hearing, the Act instructs a reviewing court to consider the minor’s best interest. It appears
from the court’s comments that it failed to give full consideration to the best interest factors
outlined in section 2-28. After listening to counsel’s arguments, the court issued its ruling
and commented that it would not hesitate to set the goal of return home within five months
had Makiah requested it. Further, the court stated that
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“I don’t think I need to remind everyone that there are functioning alcoholics that take
care of their children in an appropriate way throughout Chicago; and marijuana is, in my
opinion, a subset of alcohol abuse; and, presumably, there are functioning users of
marijuana that properly care for their children through the Chicago area.”
The court made no findings on the record of C.L.’s emotional and mental state, the status of
the therapy services being offered to Makiah, C.L., and Makiah and C.L. jointly, nor did the
court reflect upon C.L.’s current placement and the foster family’s intentions.
¶ 48 In our examination of the record, there were multiple references to C.L.’s emotional and
mental state being stressed due to the continued uncertainty of his permanent placement and
family. C.L. has been in the system for over five years and has lived with his foster family
since he was four months old. He attends visitation with his mother four times a week in
addition to individual and child-parent therapy. However, C.L. has frequently expressed an
unwillingness to attend, or more specifically, a frustration with being forced to attend the
visits and therapy sessions. C.L. continues to act out both verbally and physically and the
testimony and report show that Makiah is unable to soothe or calm C.L. a majority of the
time. As noted by Smith, C.L. will likely reach a breaking point in the near future as his
irregular behaviors have continued to escalate despite continued services. Additionally, the
court offered nothing on the record regarding the impact of continuing the goal of return
home on C.L.’s emotional and mental state despite the serious warning in Smith’s addendum
and the agency’s recommendation that return home was not in C.L.’s best interest.
¶ 49 In addition to the lack of progress made from the services offered to C.L., the services
offered to Makiah have failed to make a substantial impact. As noted in the prepared reports,
Makiah has gained some skills and knowledge from her participation in services. However,
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she continues to lack the ability to implement what she has learned in practice with C.L. We
are not unmindful of the efforts that Makiah has made and recognize that she continues to
engage in services and pursue an active role in C.L.’s life. Nevertheless, her slow progress
toward reunification over the last five years, in addition to her failure to achieve return home
with any of her other sons, raises serious concerns about her ability to be a full-time, single
parent to C.L.
¶ 50 Furthermore, Makiah has consistently failed to complete random drug screenings even
after warnings from the court regarding the importance of clean screenings on the outcome of
her case. Although she has not had significant trouble engaging in therapy, attending
visitation, or participating in substance abuse or psychiatric evaluations, among other
assessments, she has only completed four drops in the last reporting period, three of which
were positive for drugs.
¶ 51 Considering C.L.’s age, his current mental and emotional state, the drawn out time frame
of this case, which continues to adversely affect C.L., in combination with the relatively
stunted progress in services, we find that further attempts at achieving return home are not in
C.L.’s best interest. However, neither would adoption and the related termination of
Makiah’s parental rights be appropriate in this case where Makiah and C.L. continue to have
a relationship with one another that is a work in progress. Given the fact that C.L.’s foster
parents are open to private guardianship and are willing to encourage and foster a
relationship between their family and Makiah, we find that setting the case on the path
towards guardianship is ideal.
¶ 52 Moreover, we find Makiah’s argument that private guardianship should be ruled out as a
permanency goal due to tensions between herself and foster mother unpersuasive. There is no
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requirement that a private guardian get along well with the minor’s biological parent. A
guardian is required to ensure that parents have the opportunity to visit the minor (89 Ill.
Adm. Code 302.405(f)(1) (2008)), which would be best facilitated by a good relationship.
Shawna’s testimony that she was willing to work on and facilitate a relationship between
Makiah and C.L. is sufficient to defeat an argument disfavoring guardianship. The DCFS
criteria for ordering private guardianship focus on the minor’s emotional attachment to the
relative or foster home caregiver; that caregiver’s willingness to accept legal responsibility
for the minor and commitment to providing a permanent relationship; and the length of time
in, and likeliness that the minor will remain in, custody of the State (one year or more). 89 Ill.
Adm. Code 302.405(c)(1) (2018). Additionally, DCFS considers the wishes of the child’s
prospective subsidized guardian; the wishes of the child under the age of 14 or the consent of
the child, if over age 14; the interaction and interrelationship of the child with the prospective
subsidized guardian; the child’s adjustment to the present home, school, and community; the
child’s need for stability and continuity or relationship with the prospective subsidized
guardian; and the mental and physical health of all individuals involved. 89 Ill. Adm. Code
302.405(d)(1) (2018). There is no indication here that the Koonces and C.L. would be unable
to satisfy DCFS’s requirements. Thus, private guardianship is an appropriate permanency
goal and would serve C.L.’s best interest.
¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, we reverse the trial court’s order setting the permanency goal of
return home within 12 months and instruct the court to enter a goal of private guardianship
with the Koonces.
¶ 55 Reversed and remanded with directions.
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