People v. Perseta B.

JUSTICE GROMETER

delivered the opinion of the court:

Respondent, Perseta B., appeals a series of orders of the circuit court of Kane County that resulted in placing her two minor children, Stephen B. and Faith B., in guardianships with two maternal aunts. Respondent alleges error in (1) the circuit court’s decision to adjudicate the minors abused and neglected and (2) the circuit court’s determination that private guardianship is an appropriate permanency goal. For the reasons that follow, we affirm. The parties are aware of the facts and the findings of the trial court, and we will discuss them only as they pertain to the issues presented.

I. THE ADJUDICATORY HEARING

Respondent first contests the trial court’s determination that the minors were abused and neglected. We will not disturb such a determination unless it is contrary to the manifest weight of the evidence. In re K.S., 343 Ill. App. 3d 177, 184 (2003). In its petition for adjudication, the State set forth three bases upon which it asserted that the minors were abused or neglected. First, it alleged that the minors were neglected because of the injurious environment created by respondent’s mental health issues. 705 ILCS 405/2 — 3(1)(b) (West 2002). Second, it alleged that they were neglected because domestic violence issues placed them at risk of harm, creating an injurious environment. 705 ILCS 405/2 — 3(1)(b) (West 2002). Third, it alleged that the minors were abused because respondent struck Faith in the face and Stephen in the stomach. 705 ILCS 405/2 — 3(2)(i) (West 2002). These findings are contrary to the manifest weight of the evidence only if an opposite conclusion is clearly apparent. In re M.M., 337 Ill. App. 3d 764, 779 (2003). Because an opposite conclusion is not, we affirm the trial court on these points.

In addressing the first allegation, the trial court initially noted the incident in which respondent struck Faith in the face and Stephen in the stomach. The court later found respondent’s testimony regarding this incident lacking in credibility. It also observed that respondent was first hospitalized in December 2002, when medical records showed a diagnosis of “delusional disorder paranoid type” and stated that bipolar disorder should be ruled out. Respondent was given Risperdal, an antipsychotic medication. A second hospitalization the following May revealed similar issues. Respondent was given Haldol and other drugs. The court then noted that, during her testimony, respondent “still presents with the same facts that she had stated to people at the hospital.” The court also observed that the minors were concerned for and fearful of their mother. Accordingly, the court concluded that the State had demonstrated that respondent’s mental health issues placed the minors at risk of harm. Therefore, they were neglected.

The concept of neglect based on an injurious environment is somewhat amorphous, as it must be, for each case is sui generis. In re K.G., 288 Ill. App. 3d 728, 735 (1997). Each case is unique and must be judged on its own specific facts. In re Ashley F., 265 Ill. App. 3d 419, 424 (1994). In a general sense, “neglect” can be defined as “the failure to exercise the care that circumstances justly demand and encompasses both wilful and unintentional disregard of parental duty.” In re M.K., 271 Ill. App. 3d 820, 826 (1995).

The mere fact that a parent has a mental illness does not lead inevitably to the conclusion that children in his or her care are neglected or that their environment is injurious. In order for a parent’s mental iUness to form the basis of a finding of an injurious environment, there must be a nexus between the illness and a risk of harm to the children. Although the following cases do not address the precise issue here, as they involved terminations of parental rights, we find them instructive on these points.

Considering whether the rights of a parent were properly terminated due to the parent’s mental illness, the First District observed, “The unfitness of a mentally ill parent is grounded on the parent’s inability to discharge parental responsibilities, not the parent’s inability to control her conduct.” In re A.J., 269 Ill. App. 3d 824, 828-29 (1994). In In re T.J., 319 Ill. App. 3d 661, 670 (2001), the court stated, “Moreover, the Adoption Act required the State not only to prove that Ms. Cooper was suffering from a mental illness or impairment, but also that this mental condition rendered her unable to discharge her parental responsibilities.” Similarly, it has been held that “[n]ot every parent with a psychiatric illness or condition is per se unfit to be a parent and to maintain custody of her children,” for the Adoption Act (750 ILCS 50/1 et seq. (2002)) “affects only those parents ‘who cannot discharge their parental responsibilities due to these disabilities and whose inability to do so will extend beyond a reasonable period of time.’ (Emphasis omitted.)” In re B.S., 317 Ill. App. 3d 650, 664 (2000), quoting In re I.D., 205 Ill. App. 3d 543, 549 (1990); see also In re M.F., 326 Ill. App. 3d 1110, 1113-15 (2002).

While the above-cited cases concern the termination of parental rights, the principle they stand for is applicable here. It is not enough for the State to show that respondent suffers from a mental illness; it must show that respondent’s mental illness places the children in an injurious environment. Our review of the record indicates that the State met this burden. Most significantly, one violent episode occurred where respondent struck Faith in the face and Stephen in the stomach. Respondent told a caseworker from the Department of Children and Family Services (DCFS) that she was disciplining Faith because Faith was “mouthing off.” On appeal, she attempts to characterize her actions as appropriate corporal punishment. However, the trial court specifically found respondent’s account not credible, noting that her explanation of this incident had changed and that, at trial, respondent testified that she accidentally struck Faith. Credibility assessments lie within the province of the trial court. In re D.L., 326 Ill. App. 3d 262, 269 (2001).

Respondent also attempts to characterize this incident as isolated. Relying on In re N.B., 191 Ill. 2d 338 (2000), respondent contends that “one isolated outburst of anger is not neglect.” However, In re N.B. is distinguishable. In that case, there was no evidence that the children were exposed to any form of violence. See In re N.B., 191 Ill. 2d at 347-49. The sole incident in which the respondent’s conduct posed a risk of physical harm to her children involved her swinging her baby carrier as she turned, which caused the carrier to strike a wall. In fact, in that case, the supreme court specifically distinguished In re M.K., 271 Ill. App. 3d 820 (1995), on this ground, stating that “there is no proof in this case that [the] respondent ever exposed her children to any source of physical abuse.” In re N.B., 191 Ill. 2d at 352-53. Similarly, the instant case is distinguishable from In re N.B. because, here, a violent episode occurred where respondent intentionally struck both of her children. Moreover, and perhaps more importantly, the incident may not be as significant in itself as it is probative of the potentially violent nature of respondent’s mental illness.

Additional evidence supports the trial court’s determination. Respondent has been hospitalized and prescribed various psychoactive medications. Respondent acknowledged that she no longer takes them and stated that she does need help. She refused to sign a safety plan crafted by DCFS. During a status hearing, she stated, “I am refusing to go to Provena. *** If that means that I lose my kids, well, then, we can do that today, because I will never go back there ever again.” DCFS employees reported aggressive and belligerent conduct on respondent’s part. On the witness stand, she made a number of delusional statements. The minors stated that they feel safer residing with their aunts.

In sum, ample evidence exists regarding respondent’s mental illness. Furthermore, the record shows a nexus between the illness and a risk of harm in the minor’s environment, in light of respondent’s act of violence and the minors’ own testimony regarding their feeling of safety. Given this evidence, we cannot say that a conclusion opposite to that drawn by the trial court was clearly apparent; therefore, we cannot say that the trial court’s decision was contrary to the manifest weight of the evidence. In re April C., 345 Ill. App. 3d 872, 889 (2004).

The same evidence supports the trial court’s determination regarding the second and third allegations made by the State. We simply cannot say that it is clearly apparent that domestic abuse issues do not exist where respondent has demonstrated a potential for violence toward her children and is not addressing the cause of that violence. Nor can we say that the finding that the children were abused is against the manifest weight of the evidence where they were subjected to a violent attack. Therefore, we affirm the order of the trial court.

II. THE DISPOSITIONAL HEARING

During the dispositional hearing, the trial court set the minors’ permanency goal as “private guardianship.” 705 ILCS 405/2 — 28(2)(E) (West 2002). Respondent contends that this was error and that the permanency goal should have involved returning the minors to respondent. As a preliminary matter, the State argues that we lack jurisdiction over this portion of the appeal. Respondent asserts Supreme Court Rule 303(a) (155 Ill. 2d R. 303(a)), which pertains to final judgments, as the basis for appellate jurisdiction rather than seeking leave to file an interlocutory appeal under Rule 306(a)(5) (166 Ill. 2d R. 306(a)(5)).

It is true that the setting of a permanency goal is not a final order. See In re A.H., 207 Ill. 2d 590, 594 (2003). However, a dispositional order generally is appealable. See In re Brandon S., 331 Ill. App. 3d 757, 760 (2002) (“A disposition order from the juvenile court is generally considered final and appealable. [Citation.] A disposition order concerning a ward of the court may, among other options, order that the child remain with his parents, place the child with a relative or other legal guardian, commit the child to the DCFS for care and service, restore the child to his parents, or order that the child be partially or completely emancipated”). Although the decision respondent attacks was rendered as part of the dispositional hearing, it is clear to us that respondent’s attack is actually upon the permanency goal itself.

It is, of course, the nature of the order rather than the nature of the héaring that is relevant in determining whether appellate jurisdiction exists. In re J.N., 91 Ill. 2d 122, 128 (1982) (“In determining whether a judgment is final, one should look to its substance rather than to form”). A dispositional order is final because it may change the status or rights of the parties; for example, it might alter custody or guardianship. See 705 ILCS 405/2 — 23 (West 2002). A permanency order, on the other hand, does not. In re D.S., 198 Ill. 2d 309, 329 (2001), quoting In re K.H., 313 Ill. App. 3d 675, 682 (2000) (holding that “[t]he selection of a permanency goal is not a final determination on the merits with regard to termination of parental rights but, rather, an intermediate procedural step taken for the protection of and best interests of the child”).

A recent line of cases holds that appellate courts do not have jurisdiction over permanency orders. In In re D.D.H., 319 Ill. App. 3d 989, 991 (2001), the Fifth District observed, “The jurisdictional problem is that a permanency goal does not finally determine a right or status of a party but instead looks at the anticipated future status of the child.” (Emphasis in original.) After concluding that section 2 — 28(3) of the Juvenile Court Act of 1987 (705 ILCS 405/2 — 28(3) (West 2002)), which attempted to make orders setting permanency goals appealable, was unconstitutional, the court went on, “As the result of striking this statutory provision, we have an attempt to appeal a nonfinal order that is not authorized by the supreme court.” In re D.D.H., 319 Ill. App. 3d at 992. Thus, the Fifth District concluded that orders setting permanency goals are not appealable because they are not final orders. In re D.D.H., 319 Ill. App. 3d at 992. The Fourth District, in In re C.B., 322 Ill. App. 3d 1011, 1013 (2001), came to an identical conclusion: “Also as in D.D.H., the invalidation of the appeal-ability provision in section 2 — 28(3) renders this an unauthorized appeal from a nonfinal order, and we dismiss the appeal for lack of jurisdiction.”

This court followed the two above-cited cases in In re A.M., 324 Ill. App. 3d 144, 145-46 (2001). We held, “Based on the decisions in C.B. and D.D.H., we conclude that the order changing the permanency goal in the instant case constitutes a nonfinal order for which the supreme court has provided no rule for an appeal to this court and, therefore, we lack jurisdiction to consider the appeal.” (Emphasis added.) In re A.M., 324 Ill. App. 3d at 145-46. We recognize that one statement in In re AM. can be read as stating that it is the nature of the hearing, rather than the order, that is relevant. In re A.M., 324 Ill. App. 3d at 144-45 (“In its motion the State argues that this court lacks the jurisdiction to consider the appeal because the statutory provision purporting to make any order entered in a permanency hearing immediately appealable is unconstitutional. We agree”). However, reading the case as a whole, particularly in light of its reliance on C.B. and D.D.H., it is apparent to us that the In re AM. court was concerned about the nature of the order rather than the type of hearing in which the order is entered. Accordingly, we conclude that we lack jurisdiction over this part of the appeal and are compelled to dismiss it. See also In re A.Z., 325 Ill. App. 3d 722, 723-24 (2001).

The appropriate manner to invoke the jurisdiction of this court regarding an order that sets a permanency goal is to file a petition under Supreme Court Rule 306(a)(5) (166 Ill. 2d R. 306(a)(5)). Rule 306(a)(5) allows the permissive appeal of an order affecting the care and custody of a minor where appeal is not specifically provided for elsewhere. 166 Ill. 2d R. 306(a)(5). Because an order setting a permanency goal is not appealable like a dispositional order, appeal is not provided for elsewhere in the rules; therefore, such an appeal falls within the plain language of Rule 306(a)(5). The supreme court made this explicit in In re Curtis B., 203 Ill. 2d 53 (2002). It is noteworthy that its holding was not limited to orders entered during the course of permanency hearings; rather, it applies to orders setting permanency goals generally. See In re Curtis B., 203 Ill. 2d at 63 (“Under Rule 306(a)(5), a party who wishes to petition the appellate court for leave to appeal a permanency order may do so” (emphasis added)). That the order in the instant case was entered in the course of the dispositional hearing does not mean that Rule 306(a)(5) does not apply, any more than it means that the order setting the permanency goal is appeal-able in the same manner as a dispositional order.

The dissent complains that we have created some sort of new hybrid order that is partly appealable as of right and partly appealable only with leave of the court. We have not. All that we have done is treat the order setting the permanency goal like any other order setting a permanency goal and the dispositional order like any other dispositional order. We see no relevance to the fact that they were entered on the same piece of paper. In re A Minor, 127 Ill. 2d 247, 260 (1989) (“An apple calling itself an orange remains an apple. Actions of the circuit court having the force and effect of injunctions are still appealable even if called something else”); In re Petition to Incorporate the Village of Greenwood, 275 Ill. App. 3d 465, 475 (1995) (“Whether an order is final for purposes of appellate court jurisdiction is determined by the substance, as opposed to the form, of the order”). Suppose instead that a contempt order that imposed no sanctions, and thus was not appealable (see Vowell v. Pedersen, 315 Ill. App. 3d 665, 666 (2000)), was entered at the same time as the dispositional order. Would it somehow become appealable simply because it was entered along with the dispositional order? Additionally, In re F.S., 347 Ill. App. 3d 55 (2004), has no bearing on this case. Undoubtedly, the failure to mention an order in a notice of appeal is not fatal in all cases; however, this principle does not make appealable an otherwise nonappealable order.

Additionally, we note that in her conclusion, respondent requests that we reverse the trial court’s order estabhshing the private guardianships. Respondent’s argument concerning the dispositional hearing addresses only the setting of the permanency goal. Points not argued are waived. People v. Godinez, 91 Ill. 2d 47, 57 (1982). However, were we to address this issue, the evidence discussed in the first section of this opinion provides sufficient support for the trial court’s decision to establish the guardianships.

III. CONCLUSION

For the foregoing reasons, the order of the circuit court of Kane County finding the minors abused and neglected is affirmed. The portion of the appeal attacking the setting of the permanency goal is dismissed.

Appeal dismissed in part; judgment affirmed in part.

CALLUM, J., concurs.