People v. Tabitha H.

JUSTICE GILLERAN JOHNSON,

dissenting:

I respectfully dissent. I believe that this case exemplifies what is wrong with our juvenile court system. I believe that this case reflects a disturbing trend that the State is rushing too quickly to terminate the parental rights of marginally fit and unfit parents and that our juvenile court system is all too willing to acquiesce in this impetuousness. I believe that this system is fostering judges who are not holding the State to its great burden of proof in terminating a person’s parental rights. I believe that this system is flawed due to its failure to provide sufficient resources or time to guardians ad litem and defense counsel, who, hence, are greatly limited in providing adequate representation for children or their parents in termination proceedings. I also believe that our juvenile court system is plagued because of its reliance at termination hearings on the testimony of some caseworkers who have lost objectivity and are all too willing to close the door on one child’s relationship with her parents and to move on to the next case. In essence, I believe that this case demonstrates that many in our juvenile court system have lost sight of the fact that a parent’s right to the care, custody, and control of her child is a fundamental right which should not be easily interfered with (Wickham v. Byrne, 199 Ill. 2d 309, 317 (2002)), let alone easily terminated (In re M.H., 196 Ill. 2d 356, 362-63 (2001)).

The record in this case reveals that the State chose to initiate termination proceedings in the most rapid of fashions for the most minimal of reasons.3 On October 7, 1999, the respondent’s daughter, K.H., was adjudicated neglected after it was determined that she had been physically abused by the respondent’s boyfriend, Eddie Golden.4 K.H. was removed from the respondent’s custody and a service plan was developed for the respondent. The service plan required the respondent to take parenting classes, have a psychological examination, maintain contact with DCFS, participate in domestic violence counseling, and maintain stable housing for herself and her daughter. However, the respondent’s caseworkers explained that the respondent’s case was essentially just a domestic violence case. Indeed, the respondent’s first caseworker, Anna Wells, testified that a psychological examination was made part of the respondent’s objectives even though DCFS did not really believe that such an examination was necessary.

The record reveals that the respondent sufficiently complied with her service plan, such that K.H. was returned to her on December 19, 2000. Caseworker Peterson testified that the respondent visited regularly with K.H. and K.H. enjoyed these visits. The respondent also received satisfactory marks for attending 90% of her parenting classes, having a psychological examination in July 2000, continuing with domestic violence counseling, and maintaining stable housing.

The record further reveals that, on January 8, 2001, Eddie Golden unfortunately injured K.H. again while the respondent was working the 2 p.m. to 10 p.m. shift at a nursing home. The respondent met with her caseworker the following day and informed her of this abuse. The respondent subsequently moved out of her residence until Golden was arrested. DCFS did not find that K.H. was in any further danger as it allowed her to remain in the respondent’s custody. Caseworker Peterson explained that, because Golden was “out of the home[,] the risk of [K.H.] being harmed again was gone.”

K.H. continued to live with the respondent until July 5, 2001, when the respondent was evicted from her apartment because she had become delinquent in her rent payments. The respondent explained that she had become delinquent in her rent when she had to take a leave of absence from her work to care for her children. The respondent then sent K.H. to live with KH.’s grandmother, of whom DCFS approved.

On October 22, 2001, Marcia Staggs became the respondent’s caseworker. She was apparently unimpressed with the amount of the respondent’s progress and was highly critical of her. In her first case review of the respondent, Staggs rated the respondent unsatisfactorily for, among other things, choosing violent “paramours” over her children. However, Staggs later acknowledged that she “did not reside with [the respondent], so [she did not] know exactly who her paramours were and exactly *** whether they were abusive or not.” She also acknowledged that she had not done a background check to determine if the respondent’s new boyfriend had any issues of abuse in the past.

Staggs also rated the respondent unsatisfactory for not completing a domestic violence program between October 2001 and March 2002. Staggs acknowledged, however, that between December 26, 2001, and February 8, 2002, the respondent participated in intensive domestic violence counseling at A Safe Place, a crisis center in Waukegan that primarily provides domestic violence counseling. Staggs explained that the respondent was cooperative during the 42 days she physically resided at A Safe Place. The respondent attended the mandatory meetings that were necessary for her continued participation in the program and participated in “all the services that A Safe Place offered.” Staggs further acknowledged that this was the respondent’s most successful period of cooperating with her service plan recommendations while she was the respondent’s caseworker. Nonetheless, Staggs gave the respondent a negative review during this time frame because, considering the whole six-month period, she did not believe that the respondent had sufficiently participated in domestic violence counseling.

On April 2, 2002, less than two months after the respondent had participated in an intensive domestic violence program, less than four months after K.H. had been removed from the custody of the respondent’s family, and only nine months after K.H. had stopped residing with the respondent, the State filed its petition to terminate the respondent’s parental rights. Based on the facts of this case, I find it disturbing that the State filed its petition to terminate so quickly. My inability to understand this urgency is further heightened due to the minimal evidence that the State ultimately presented at the termination hearing to support its petition. The State’s petition alleged that the respondent was unfit because she (1) failed to protect her daughter from conditions injurious to the child’s welfare; (2) failed to make reasonable efforts to correct the conditions which were the basis of removal; and (3) failed to make reasonable progress toward the return of the child. See 750 ILCS 50/l(D)(g), (D)(m)(i), (D)(m)(iii) (West 2002).

The basis for the State’s petition was essentially Staggs’ determination that the respondent was not complying with her service plans. The last evaluation Staggs completed of the respondent before the State filed its termination petition indicated that the respondent was failing to comply with four areas of her service plan: (1) maintaining a lifestyle free of domestic violence and successfully completing a domestic violence program; (2) demonstrating appropriate parenting and successfully attending a parenting program; (3) demonstrating improved mental health and successfully attending mental health counseling; and (4) maintaining the same job, obtaining housing, and paying off $3,000 in debts. I believe that the State failed to prove by clear and convincing evidence that any of these alleged deficiencies of the respondent were grounds to find that the respondent was an unfit parent. Because the State failed to present clear and convincing evidence that the respondent was unfit, the trial court’s ultimate finding that she was unfit was against the manifest weight of the evidence. See In re F.S., 322 Ill. App. 3d 486, 493 (2001) (determining that because State failed to prove by clear and convincing evidence that mother failed to make reasonable efforts and reasonable progress towards correction of conditions that led to removal of child within nine months of the neglect adjudication, trial court’s finding of unfitness was against the manifest weight of the evidence); In re C.M., 305 Ill. App. 3d 154, 166 (1999) (same).

First, I believe that the State failed to establish that the respondent was not living a lifestyle free of domestic violence. Staggs rated the respondent unsatisfactorily in this regard even though the respondent had recently participated for 42 days in an intensive domestic violence program. Staggs also complained that the respondent did not participate in domestic violence counseling as much as she could have. Staggs also rated the respondent unsatisfactorily because she “chose her paramours over her children.” However, in explaining that the victim was not living a lifestyle free of domestic violence, Staggs acknowledged that, during the time frame at issue, she was unaware of any incidents of the respondent being the victim of domestic violence. Staggs further acknowledged that, although she believed that the respondent’s greatest issue in the case was “hooking up with paramours that were abusive,” she was not aware if the respondent’s current “paramour” had been abusive to her.5 She also acknowledged that the respondent had not resumed her relationship with Eddie Golden after he had been released from prison.

Such testimony is insufficient to suggest that the respondent was living a lifestyle as the victim of domestic violence or that she was unable to protect her child from such violence. In finding that the respondent was unfit, the trial court placed great weight on Staggs’ conclusion that the respondent was choosing her “paramours” over her children as the trial court repeated this idea in its oral findings. However, the evidence that was presented at the hearing does not support this finding. The record reveals that the respondent was involved in only one abusive relationship since DCFS became involved with the case, that being with Eddie Golden. After the incident of abuse on January 8, 2001, the respondent told her caseworker about the incident the next day when questioned about K.H.’s injury. The respondent then moved out of her residence until Golden was arrested. Although the respondent maintained minimal verbal communication with Golden and visited him at jail, she never allowed Golden to see K.H. again. She also did not resume a relationship or cohabitate with Golden after he was released from prison. The respondent explained that she ended her relationship with Golden because she was choosing K.H. over Golden. The record supports this testimony. The record is also devoid of any evidence that the respondent was involved in any other abusive relationships after she ended her relationship with Golden. Staggs’ opinion therefore that the respondent chose abusive “paramours” over her children was not based on any evidence, and the trial court’s reliance on such testimony was improper.

Moreover, in reviewing the record, as a whole, I do not believe that it supports the majority’s conclusion that the respondent was failing to make reasonable progress in addressing issues of domestic violence. The majority emphasizes that the respondent did not participate in any domestic violence counseling for 11 months in 2001. The respondent explained, however, that she had stopped going to counseling because her counselor had told her that she could stop when she wanted to. The respondent testified consistently to this fact under cross-examination, and the State did not call any witnesses to rebut her testimony. Moreover, the trial court made no findings at the close of the hearing that indicated that it did not find the respondent’s testimony credible on this issue.6

More importantly, the record does reveal that the respondent participated for 42 straight days in an intensive 45-day domestic violence program from December 2001 to February 2002. The respondent participated for these 42 days shortly after K.H. was removed from the respondent’s mother’s custody and shortly before the State filed its termination petition. The respondent’s completion of 93% of a 45-day domestic violence program demonstrates that the respondent was making great attempts to comply with her service plan recommendations.

I also find that the State failed to establish by clear and convincing evidence that the respondent was unfit because she failed to take additional parenting classes and to submit to mental health evaluations and counseling. Failure to comply with service plans may be grounds to find that a parent is unfit for not making reasonable progress towards correcting the conditions that were the basis of the removal of the child. See In re R.E., 317 Ill. App. 3d 227, 232 (2000). However, the focus of a parent’s progress goals and service plans should remain upon his or her abilities relative to the child’s needs. In re D.D., 309 Ill. App. 3d 581, 589 (2000). An agency should not require superfluous services that shift the parent’s concentration from remedying deficiencies to jumping through administrative hoops. D.D., 309 Ill. App. 3d at 587-88. Failure to comply with such superfluous services that are not reasonably related to some parental shortcoming is not grounds to find that a parent is unfit. See D.D., 309 Ill. App. 3d at 588.

Here, as noted above, the respondent’s caseworkers stated that the respondent’s case was essentially a domestic violence case. Their only concern with her parenting was regarding domestic violence. Caseworker Wells testified that when the respondent’s original service plan was created, certain requirements were added, such as getting a psychological exam, even though DCFS did not believe that such an exam was necessary. Caseworker Peterson explained that new objectives were added for the respondent after K.H. was returned home because that was “just part of [her agency’s] program.” Staggs explained that because K.H. was returned to foster care, additional parenting classes were added to the respondent’s service plan, even though she had successfully completed a parenting program in the past.

The record reveals that many of the goals that were created for the respondent, and that she failed to complete, were superfluous. Although all of her caseworkers identified domestic violence concerns as the greatest issue facing the respondent, additional objectives were added just because that was part of DCFS’s program. None of the caseworkers identified any significant problems with the respondent’s parenting skills other than the incidents involving Eddie Golden. Although I do not question that it would have been preferable for the respondent to take more parenting classes, based on these circumstances, the fact that she did not was not grounds to find that she was unfit.

As to the respondent’s alleged mental health problems, the State presented little evidence. Although a psychological examination had been performed on the respondent in July 2000, the State never sought to admit into evidence the results of this examination. The State elicited from Peterson that after the respondent completed the psychological exam, she complied with the accompanying recommendations to have therapy for self-esteem and domestic violence issues. However, Peterson did not testify as to the severity of the respondent’s condition or as to the overall content of the psychological report. Staggs, without being asked about the psychological report, volunteered that the “psychological addressed the dependent personality.” Staggs was also never asked to elaborate on her comments or to explain the seriousness of the respondent’s dependent personality condition. Based on the State’s minimal evidence in this regard, the State failed to establish that the respondent’s requirement to participate in additional mental health counseling was reasonably related to any parental shortcoming. See D.D., 309 Ill. App. 3d at 588. Although I do not question that it would have been desirable for the respondent to obtain additional mental health counseling, the State failed to demonstrate how K.H. would be harmed if the respondent failed to do so.

Furthermore, I note that Staggs rated the respondent unsatisfactorily for not being able to maintain steady employment and stable housing. It is obvious from the record that the respondent had problems in these areas because she is poor and not well-educated. Based on the circumstances of this case, the respondent’s poverty was not a proper basis to find her unfit. See In re Nesbitt, 147 N.C. App. 349, 359, 555 S.E.2d 659, 665-66 (2001) (parent’s poverty is not a legitimate basis on which to terminate his parental rights).

Accordingly, I believe that the State failed to present clear and convincing evidence that the respondent was an unfit parent, especially in light of the evidence which indicated that the respondent was a fit parent. The record reveals that respondent visited K.H. regularly and that they had a good relationship. The respondent completed a parenting class and six intensive weeks of domestic violence counseling. The respondent had found a full-time job and was in a better position to support her child. The record also demonstrates that the respondent had a strong bond with her daughter and that she was working to regain custody of her child. As such, for all these reasons, I believe that the record clearly demonstrates that the trial court’s finding that the respondent was unfit was against the manifest weight of the evidence. See F.S., 322 Ill. App. 3d at 493; C.M., 305 Ill. App. 3d at 166.

I note that the majority dismisses many of my concerns about this case based on its determination that I have not employed the proper standard of review. I acknowledge that based on my astonishment at the minimal evidence presented by the State, especially as to some of its witnesses’ testimony, I have commented on some of the witnesses’ testimony to a greater extent than general principles of review dictate. However, as is evident from even a cursory review of this dissent, my review of the judgment in this case has been guided by the fundamental principle that a reviewing court cannot determine whether a trial court’s decision is against the manifest weight of the evidence without considering whether the prosecuting party carried its burden of proof. See In re D.T., 338 Ill. App. 3d 133, 154-55 (2003) (determining that because State failed to carry its burden of proof that termination of the respondent’s parental rights was in the child’s best interests, the trial court’s decision terminating the respondent’s rights was against the manifest weight of the evidence). Accordingly, if the State’s evidence was not clear and convincing, it cannot withstand review on appeal. See D.T., 338 Ill. App. 3d at 155. Furthermore, it is fundamental that a reviewing court must consider all the evidence presented to the trial court to determine if its decision was against the manifest weight of the evidence. General Food Corp. v. Hall, 39 Ill. App. 3d 147, 153 (1976). If the record clearly demonstrates that the trial court should have reached the opposite conclusion, the trial court’s order must be reversed. See D.T, 338 Ill. App. 3d at 154. Based solely upon the application of these fundamental principles of appellate review to the case before us, and considering the great deference to which the trial court’s decision is entitled (see In re Brown, 86 Ill. 2d 147, 152 (1981)), I conclude, for the reasons explained above, that the State failed to establish by clear and convincing evidence that the respondent was unfit. As such, the record clearly demonstrates that the trial court’s determination that the respondent was unfit is against the manifest weight of the evidence. See D.T., 338 Ill. App. 3d at 155.

The State’s paucity of evidence in this case corresponds with my initial observations that the State rushed too quickly to terminate the respondent’s parental rights. In doing so, the State’s presentation of evidence was careless as it left many questions about the respondent’s parental abilities unanswered. For example, as noted above, there were some references in the caseworkers’ testimony to concerns about the respondent’s mental health based on her psychological exam. However, the State never sought to admit into evidence this psychological report. The State never sought to subpoena the doctor who conducted the examination. Rather, the State relied on the hearsay testimony of two of the respondent’s caseworkers as to the respondent’s psychological condition. These caseworkers provided only some vague testimony that the respondent had self-esteem issues and a dependent personality. However, the State never had these caseworkers testify as to the severity of the respondent’s condition. The caseworkers did not testify as to whether the respondent’s condition could be addressed in a few counseling sessions or whether the respondent’s condition would require her to participate in lifelong therapy. The State did not even have the caseworkers testify as to how the respondent’s psychological condition differed from that of anyone else in the general population of this country.

In response to this shortcoming in the State’s case, I note that neither the respondent’s attorney nor the guardian ad litem objected to this improper hearsay testimony. Based on the magnitude of the issues involved in a termination of parental rights case, I believe that it is incumbent that attorneys representing a natural parent and the child in such a proceeding demand that all procedural safeguards be adhered to. See Lassiter v. Department of Social Services, 452 U.S. 18, 27, 68 L. Ed. 2d 640, 650, 101 S. Ct. 2153, 2160 (1981) (determining that a parent is entitled to effective representation of counsel in a termination proceeding because “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is *** a commanding one”). It is unacceptable for attorneys representing a child and a natural parent to acquiesce to the State’s careless and improper presentation of evidence that calls into question both the accuracy and justice of terminating one’s parental rights. See Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 650, 101 S. Ct. at 2160.

In response to this minimal evidence that the State presented at the fitness hearing as to the respondent’s psychological condition, the majority nonetheless concludes that the respondent suffered from overwhelming psychological problems that impeded her ability to protect her child. The majority then reasons that the respondent had to do more than just end her relationship with Golden to address her domestic violence concerns; she had to address her psychological problems.

In reality, the respondent’s first two caseworkers viewed the respondent’s need for domestic violence counseling as based on her relationship with Golden more than anything else. Caseworker Wells testified about the respondent’s domestic violence issues always in the context of her relationship with Golden. It is apparent that Wells believed that domestic violence concerns were a “continuing ongoing issue” for the respondent, because during the time that Wells was her caseworker, the respondent was maintaining her relationship with Golden. Wells never testified that the respondent was suffering from any psychological problems that prevented her from adequately parenting or protecting her child.

Caseworker Peterson testified similarly to Wells. Peterson explained that Golden was the primary concern because he was the one who had injured K.H. in the past. Peterson also testified that none of the incidents at issue ever involved the respondent striking K.H. She additionally testified that the respondent had completed a psychological examination and had complied with the accompanying recommendations to have therapy for self-esteem and domestic violence issues. She did not testify further as to the content of the recommendations of the psychological examination. She never testified to what degree, if any, the respondent’s supposed psychological problems were a hindrance to her parenting K.H.

As the majority emphasizes, Staggs testified that the respondent’s psychological report addressed her dependent personality. However, Staggs’ testimony is less than helpful in providing insight into the extent of the respondent’s supposed psychological problems. Staggs made her comment at issue in explaining why she disapproved of the respondent moving in with a new boyfriend after the respondent’s participation in an intensive domestic violence program. Staggs stated:

“It appeared to be the biggest issue in this case, hooking up with paramours that were abusive. So the concern was for her to become independent. The psychological addressed also the dependent personality. Learning how to become independent and take care of herself and take care of her children.”

First, looking at this statement in its immediate context, its significance is questionable because Staggs refers to the respondent’s psychological report immediately after describing the respondent’s biggest issue in the case as “hooking up with paramours that were abusive.” However, as discussed above, when given the opportunity to substantiate this serious accusation, Staggs failed to do so. Instead, she acknowledged that she did not know who the respondent’s “paramours” were and whether they were abusive or not.

Second, Staggs was never asked to elaborate as to the extent of the respondent’s dependent personality condition. She did not explain the seriousness of this condition, such as whether it could be addressed in a few counseling sessions or whether it would require the respondent to participate in lifelong therapy. Such questions could have perhaps been resolved had the State introduced this psychological report into evidence. These questions could also have been resolved had the State actually questioned Staggs about the respondent’s psychological condition. As noted above, however, the State did neither.

Furthermore, Staggs’ limited testimony on this point suggests that the respondent’s dependent personality condition was not that severe. Staggs indicated that the respondent’s condition affected her ability to become independent and take care of herself. However, the record reveals that by the time of the termination proceedings, the respondent had demonstrated an ability to take care of herself, as evidenced by her ability to find steady employment.

In light of the dearth of evidence that the State presented as to the respondent’s psychological condition, the majority’s conclusion that the respondent had to extricate herself from a lifestyle of domestic violence by “successfully address[ing] her issues, psychological or otherwise, that led her to repeatedly allow her daughter to become a victim of domestic violence” (346 Ill. App. 3d at 458) is flawed. As noted above, none of the caseworkers’ testimony nor any other evidence submitted by the State at the fitness hearing suggested that the respondent’s psychological condition was why her child was removed or why her parental rights should be terminated. Instead, the record reveals that, for the majority of the case, the respondent’s caseworkers were primarily concerned about the respondent exposing K.H. to abuse by Golden. Thus, after the respondent ended her relationship with Golden, she demonstrated great progress in addressing this concern.

In response to these concerns about the State’s minimal evidence as to the respondent’s alleged psychological problems, the majority advances two incoherent, illogical, and contradictory positions. First, the majority falsely claims that I do “not consider Staggs’ and Peterson’s testimony regarding respondent’s psychological condition because it is hearsay.” 346 Ill. App. 3d at 459. The majority then criticizes my supposed refusal to consider this evidence because “ ‘[i]t is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its and natural probative effect.’ ” 346 Ill. App. 3d at 459-60, quoting Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 508 (1985). However, as is evident from even a cursory review of my above comments, I considered Staggs’ and Peterson’s hearsay testimony and found it to be insufficient to support the majority’s conclusion that the respondent was suffering from great psychological problems. I also stressed that the respondent’s attorney, or at least the guardian ad litem, should have objected to the improper hearsay testimony for exactly the reasons set forward in Jackson.

Furthermore, while claiming that I did not consider the caseworkers’ hearsay testimony, the majority then simultaneously claims that I did consider that evidence and that I determined that the respondent’s “caseworkers lied about the psychological report.” 346 Ill. App. 3d at 460. Again, as is evident from my above comments, I made no finding as to the caseworkers’ credibility in testifying to the respondent’s alleged psychological problems. The majority’s insistence to the contrary is nothing more than a futile attempt to divert attention from the great weight it places on the respondent’s alleged psychological problems, a determination that is not supported by the record.

I also find flawed the majority’s insistence that it would have been “pointless” for any of the attorneys to object to the caseworkers’ testimony as to the respondent’s alleged psychological problems as hearsay or as lacking a sufficient foundation. Such an objection would not have been pointless as it would have required the State to either admit the respondent’s psychological report or call the administering doctor to testify, thereby demonstrating the severity, or lack thereof, of her psychological problems. The majority concludes to the contrary, however, speculating that “[t]he most obvious reason for respondent’s failure to object to the caseworkers’ testimony is that their testimony was consistent with the psychological report.” 346 Ill. App. 3d at 459. The majority’s conclusion may have been proper had the respondent’s psychological report been included as part of the record on appeal, allowing this court to review exactly what the psychological report entailed. However, because the report is not part of the record, this court cannot fairly say whether an objection to this testimony would have been “pointless.” The majority’s conclusion to the contrary, therefore, is based on nothing more than conjecture and is clearly wrong.

The majority further disparages my concerns about the attorneys’ failure to object to this improper evidence by going so far as to make the grandiose claim that I am creating a “new rule that appellate courts must, without so much as a request by a party, reverse a trial court’s decision because of a lawyer’s failure to make a hearsay objection would truly revolutionize appellate standards of review.” 346 Ill. App. 3d at 460. Notwithstanding this melodramatic language, the majority’s claim is nothing more than vacuous rhetoric to conceal a glaring shortcoming in its analysis.

In reality, I am not advocating a new rule for attorneys. Rather, I am imploring all attorneys in termination proceedings, particularly those representing a natural parent or child, to provide the zealous representation that they are obligated to render. Such an admonition is not a novel concept but rather correlates to the well-settled law that an attorney is expected to provide effective representation to a party in a termination case. See Lassiter, 452 U.S. at 27, 68 L. Ed. 2d at 650, 101 S. Ct. at 2160; see also In re R.G., 165 Ill. App. 3d 112, 127 (1988) (explaining that counsel for indigent parents in termination proceedings are expected to perform effectively). Furthermore, although I would hope that attorneys would be zealous in representing all of their clients, I believe that such representation is especially required in cases such as these, which so drastically impact a mother’s right to raise her child. See In re F.S., 322 Ill. App. 3d 486, 489 (2001) (explaining that termination of parental rights is a drastic action which deprives a parent of rights that are fundamental and as ancient as mankind).

I further note that the majority’s accusation that I am advocating that the trial court’s order be reversed “without so much as a request by a party *** because of a lawyer’s failure to make a hearsay objection” (346 Ill. App. 3d at 460) is both factually inaccurate and legally unsound. First, I am not advocating that the trial court’s order be reversed on this basis. Rather, I believe that the trial court’s order should be reversed because it was against the manifest weight of the evidence. Moreover, in deriding an argument that I do not even put forward, the majority’s criticism is legally flawed. The majority conveniently overlooks that the respondent’s attorney on appeal was also her attorney at the termination hearing. As such, the respondent’s attorney could not be expected to argue his own ineffectiveness. See People v. Gustafson, 75 Ill. App. 3d 497, 502 (1979) (noting that an appointed trial attorney cannot be expected to argue his own ineffectiveness at a postconviction proceeding). Rather, in such a situation, it is within this court’s power to raise sua sponte an issue that appears in the record, including possible instances of ineffective assistance of trial counsel, to ensure that justice is done. See Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967) (explaining that reviewing court properly decided case on a ground not raised by the parties in order to ensure a just result and to maintain a sound and uniform body of precedent). The majority’s implicit contention to the contrary therefore is wrong.

Furthermore, to the extent that the majority’s speculation is accurate that the respondent’s psychological report contained negative information about the respondent, I agree that such a fact could excuse the respondent’s attorney’s failure to object to the hearsay testimony on a basis of trial strategy. See People v. Richardson, 189 Ill. 2d 401, 411 (2000). However, such a fact scenario would not excuse the guardian ad litem’s failure to object to this testimony, another fact that the majority conveniently ignores. The guardian ad litem was charged with looking out for the best interests of K.H. See In re Marriage of Klebs, 196 Ill. App. 3d 472, 483 (1990) (role of guardian ad litem is to safeguard and protect the interests of the child). If the respondent’s psychological report demonstrated that she had psychological problems that hindered her ability to parent K.H., the guardian ad litem should have moved to introduce the report or insisted that the report be admitted into evidence as demonstrating the respondent’s parental unfitness. Alternatively, if the psychological report revealed that the respondent had no severe psychological problems, the guardian ad litem should have demanded that the psychological report be admitted into evidence as a demonstration of the respondent’s parental fitness. See In re Dominique F., 204 Ill. App. 3d 271, 275-76 (1990) (attorney appointed to represent interests of minor stands in the same position as any other attorney before court and enjoys no special status but rather is obligated to pursue all avenues which serve or protect best interests of his client). In neither scenario can the guardian ad litem’s failure to object to testimony based on the nonadmitted psychological report be deemed as “pointless” or anything but improper.

Beyond my concern about the majority’s reliance on the nonexistent evidence of the respondent’s overwhelming psychological problems, I also find troubling that the majority seeks to bolster its affirmation of the trial court’s decision by relying on “evidence” that the respondent was abused by multiple “paramours.” Such evidence, by implication, would demonstrate that the respondent was less likely to be able to protect herself and K.H. from physical abuse. However, the State never introduced any such evidence. The majority attempts to overcome this fact by pointing to the respondent’s testimony in which she acknowledged that she had been involved in violent relationships in the past. From this testimony, the majority extrapolates that because the respondent had acknowledged “that she had been involved in ‘violent relationships,’ ” “at the very least, there was evidence that respondent *** had been abused by multiple paramours.” 346 Ill. App. 3d at 461. The majority’s conclusion is necessarily speculative. Being involved in a violent relationship cannot be equated with being involved with a violent paramour. This is because a “relationship” has a much broader connotation than referring to just “paramours.” One could be involved in a violent relationship without being involved with a paramour. For example, the respondent could have had a violent relationship with one of her parents or siblings during her childhood. She may have had a violent relationship with an employer or a coworker. She may have had a violent relationship with one of the residents at the nursing home where she was working. I note that the respondent was never asked to clarify what she meant by her remark. As such, in relying on this conjecture to support its decision, the majority contradicts its self-pronounced declaration that it is limiting its analysis to “decid[ing] this case based on the record.” 346 Ill. App. 3d at 455.

The majority’s analysis also strays from relying solely on the record when it places great weight on a “custody hearing and two permanency hearings that are *** not part of the record on appeal.” 346 Ill. App. 3d at 456. The majority explains that these missing records of proceedings entitle the trial court’s decision to greater deference because it was able to consider the records of additional proceedings that this court is not. To utilize such a concept in this case, however, essentially undermines the principle of appellate review. Such an approach requires this court to assume that there is evidence outside the record supporting the trial court’s decision. I note that generally if the record is incomplete, its incompleteness will be construed against the appellant, which in this case is the respondent. See Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). However, the application of that rule is improper in this case because the missing part of the record does not deprive the court of the ability to decide the issues raised by the respondent. Based on the sufficiency of the record that has been preserved for appeal, it is inappropriate to speculate as to what transpired at those hearings which are not part of the record on appeal.

I note that there is a possibility that all of the majority’s speculation is correct. It is possible that the respondent has serious psychological problems that greatly impede her ability to care for and to protect her daughter. It is also possible that the respondent associates with multiple abusive paramours who directly threaten K.H.’s safety. However, because the State did not produce any such evidence at the fitness hearing, or any other clear and convincing evidence that demonstrated that the respondent was an unfit parent, it is inappropriate to affirm the trial court’s order. Rather, this court should reverse the trial court’s decision. At that point, the State could file another petition to terminate the respondent’s parental rights. See In re A.H., 207 Ill. 2d 590, 594 (2003) (determining that Juvenile Court Act contemplates filing more than one petition to terminate parental rights). At a hearing on that petition, the State could then present additional evidence that was not presented in the instant case. Another possible remedy is for this court to remand the case with directions that the trial court reopen the proofs. The parties would then have the opportunity to present additional evidence, such as regarding the respondent’s psychological condition and her history of, or lack thereof, associating with abusive boyfriends. Either one of these remedies is more just and appropriate than the majority’s resolution of this case, which permanently severs the bond between a mother and child based on less than clear and convincing evidence.

Turning next to whether the trial court erred in finding that it was in the child’s best interests that the respondent’s parental rights be terminated, I first note that the majority elects to employ a manifest weight of the evidence standard in reviewing the trial court’s decision. See 346 Ill. App. 3d at 463. As the majority alludes, the proper standard of review to be used for this stage of a termination hearing is not well settled. See In re D.M., 336 Ill. App. 3d 766, 772 (2002) (determining that trial court’s finding that termination of a parent’s rights is in the child’s best interests will not be reversed unless it is against the manifest weight of the evidence); In re M.F., 326 Ill. App. 3d 1110, 1115-16 (2002) (same); In re M.S., 302 Ill. App. 3d 998, 1003 (1999) (using abuse of discretion standard for this stage of the proceedings); In re G.L., 329 Ill. App. 3d 18, 25 (2002) (determining that trial court’s decision at this stage of the proceedings will not be disturbed unless it was contrary to the manifest weight of the evidence or the trial court otherwise abused its discretion). Our supreme court has held that manifest weight of the evidence and abuse of discretion are different and distinct standards of review. See People v. Andrews, 146 Ill. 2d 413, 428 (1992). Our supreme court has also recognized that the abuse of discretion standard is “ ‘the most deferential standard of review available with the exception of no review at all.’ ” People v. Coleman, 183 Ill. 2d 366, 387 (1998), quoting M. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 469, 480 (1988). As such, manifest weight review is less deferential than abuse of discretion review. Clay v. County of Cook, 325 Ill. App. 3d 893, 901 (2001). Based on the fundamental right that a parent has to the care, custody, and control of her child (see Wickham v. Byrne, 199 Ill. 2d 309, 317 (2002)), I believe that the trial court’s ruling terminating a parent’s right to that child should be able to withstand greater scrutiny than an abuse of discretion standard. I therefore will also review the trial court’s decision under the manifest weight of the evidence standard to determine if it was in K.H.’s best interests that the respondent’s rights be terminated. See D.T., 338 Ill. App. 3d at 155.

Because I believe that the trial court’s determination that the respondent was unfit was against the manifest weight of the evidence, I also believe that its decision on K.H.’s best interests was against the manifest weight of the evidence. See Wickham, 199 Ill. 2d at 318-20 (presumption that parents who are fit act in the best interests of their children). Furthermore, I believe that the trial court’s finding in this regard was also improper because the State’s evidence on KH.’s best interests was not sufficient. The only witness to testify at the hearing was Staggs.7 She testified that K.H. was living with foster parents who loved her and provided her a stable home. She acknowledged that there was a strong bond between the respondent and K.H., but suggested that the respondent’s parental rights nonetheless should be terminated because the respondent put others first, which placed K.H. in jeopardy. The trial court agreed, finding that, although the respondent loved K.H., the respondent had kept K.H. living in limbo by exposing her to abusive “paramours.” The trial court also found that the respondent’s association with other “paramours” demonstrated that she could not care for K.H.

Again, as explained above, I believe that the record is devoid of evidence that K.H. was abused by multiple “paramours” of the respondent. The record reveals that the only boyfriend of the respondent’s who abused K.H. or the respondent was Eddie Golden, a person with whom neither the respondent nor K.H. still had a relationship. The record also does not show that the respondent’s association with any other boyfriends threatened K.H.’s safety or demonstrated that the respondent was unable to care for K.H. Accordingly, I believe that the trial court’s rationale for terminating the respondent’s parental rights was not supported by the record. Hence, its decision was against the manifest weight of the evidence.8

In sum, I find that this is a tragic case. I find that this case is particularly tragic because the trial court’s decision, and the majority’s affirmation of that decision, has essentially made the respondent, a victim of domestic violence, the victim again. The respondent has become a victim of a court system willing to terminate her parental rights on speculation rather than clear and convincing evidence. I believe that this was a case of neglect and was properly adjudicated as such. It was not a case that warranted the termination of the respondent’s parental rights. The respondent was a poor mother doing what she was supposed to be doing, as evidenced by the fact that her child had been returned to her custody. The respondent made significant efforts in complying with her service plan recommendations, such as completing a parenting class, participating in intensive domestic violence counseling, obtaining steady employment, ending her relationship with an abusive boyfriend, and maintaining frequent visitation with her child. Nonetheless, the State filed a termination petition in the most rapid of fashions, less than 2 months after the respondent had participated in an intensive 42-day domestic violence program. Although the State’s evidence was minimal, the trial court terminated the respondent’s parental rights anyway. I believe that this is all manifestly unjust. I believe that parents like the respondent, who are poor, have limited education, and are the victims of domestic violence, deserve more respect from the social services agencies and our court system and should not have their parental rights terminated so quickly on such little evidence.

The majority characterizes this statement as indicating that I believe that the repeated physical abuse of K.H. constituted “the most minimal of reasons” for the State to file its termination petition. See 346 Ill. App. 3d at 457. In other terms, the majority insinuates that I am either indifferent to or minimizing acts of child abuse. Such an insinuation is inaccurate. The majority’s insinuation is also based on a false premise, that the State filed its termination petition because of the acts of violence against K.H. If this were the basis for the State’s petition, it would not have waited 13 months since the last incident of abuse to file its petition. Rather, it is apparent that the State filed its termination petition based on the respondent’s alleged failure to sufficiently comply with her service plans that addressed the prior incidents of abuse. As I will discuss, because the record reveals that the respondent was making reasonable progress with many of her service plans, I believe that the State’s decision to proceed on this basis was for the “most minimal of reasons.”

throughout the proceedings, the respondent’s caseworkers, and even the trial court, refer to Eddie Golden and the respondent’s other boyfriend(s) as her “paramours.” The majority also adopts the use of this term in its opinion. I believe that the use of this term unnecessarily portrays the respondent in a negative light. I believe that the use of this term also demonstrates that some of the respondent’s caseworkers were biased against her. The term “paramour” suggests that the respondent was engaged in an unlawful or illicit activity. Specifically, the term refers to an illicit lover, especially of a married person, as a man’s mistress. See Webster’s Encyclopedic Unabridged Dictionary 1047 (1989). There is no indication in the record, however, that the respondent was involved in any sexual relationships with any married men or that she was involved in any other illicit activities. Absent any reason in the record to label the respondent as associating with “paramours,” I will refer to her boyfriends as such, unless for sake of clarity of the record, it is necessary to refer to them as “paramours.”

As the majority states, there is a reference in the record to Staggs observing bruises on one of the respondent’s arms. In a report dated September 4, 2002, Staggs wrote that she had “observed braises on [the respondent’s] arm and heard reports that her paramour is abusive.” However, nowhere in Staggs’ report does she indicate that the respondent’s “paramour” had actually inflicted bruises upon the respondent. She merely stated that she observed bruises on the respondent’s arm. Nowhere in the record does it indicate that Staggs even asked the respondent where she got the bruises. Moreover, although Staggs stated that she had “heard” that the respondent’s paramour was abusive, she did not explain from whom she heard this information. Staggs never testified at trial as to what she meant by this comment. Because of the uncertain and ambiguous nature of this statement, it cannot support an inference that the respondent was associating with an abusive boyfriend or that she was the victim of ongoing domestic violence.

The majority rejects the credibility of the respondent’s testimony as to this issue, explaining that her testimony is “self-serving.” 346 Ill. App. 3d at 456. However, as noted above, the record reveals that the trial court never found the respondent’s testimony not credible on this issue. As such, it is improper for the majority to engage in credibility determinations that the trial court itself did not make. See In re Brown, 86 Ill. 2d 147, 152 (1981).

Much of Staggs’ testimony at the best interests hearing was based on hearsay or speculation. However, neither the respondent’s attorney nor the guardian ad litem objected to such improper testimony. As explained above, I believe that children, natural parents, and this court “demand a substantially higher level of competency” from attorneys in termination proceedings such as these. See In re Tekela, 202 Ill. 2d 282, 295 (2002).

The majority acknowledges that the trial court stated that K.H. had been abused by multiple paramours. However, in quoting from that part of the record where the trial court made its statement, the majority concludes that the context of the trial court’s statement demonstrates that it did not misunderstand the evidence as to whether K.H. had been abused by multiple “paramours” of the respondent’s. The majority’s explanation is unconvincing. Considering the same language that the majority quotes in its opinion (see 346 Ill. App. 3d at 461), it is readily apparent that the trial court was considering that K.H. had been abused by multiple paramours when it determined that the respondent’s parental rights should he terminated. Because this determination is not based on the record, the trial court’s consideration of this purported fact in terminating the respondent’s parental rights is erroneous and grossly unfair to the respondent.