C.H. v. Ricky H.

2017 IL App (3d) 160729

Opinion filed September 15, 2017
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

In re C.H., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
a Minor, ) Peoria County, Illinois.
)
(The People of the State )
of Illinois, )
) Appeal No. 3-16-0729
Petitioner-Appellee, ) Circuit No. 16-JA-104
)
v. )
)
Ricky H., ) Honorable
) Kirk D. Schoenbein
Respondent-Appellant). ) Judge, Presiding
_____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices Schmidt and Wright concurred in the judgment and opinion.
_____________________________________________________________________________

OPINION

¶1 Petitioner the State of Illinois filed a neglect petition alleging that the minor, C.H. was

neglected as to medical care and in an injurious environment. The petition named Ricky H. as

C.H.’s father. At a dispositional hearing, the trial court found Ricky H. to be a fit parent but

ordered that C.H. not be returned home. Ricky appealed. We reverse and remand.

¶2 FACTS
¶3 The State filed a two-count neglect petition against C.H.’s mother and her father,

respondent Ricky H. The amended petition alleged that C.H. was medically neglected due to her

parents’ failure to provide sufficient medical care and treatment for C.H.’s multiple medical

issues. The second count alleged that C.H. was in an injurious environment due to her mother

having opiates in her system when she gave birth to C.H.’s sibling in February 2016, the

mother’s drug use while pregnant with C.H.’s sibling, and C.H.’s untreated medical issues. C.H.

was taken into shelter care and placed with Ricky’s parents.

¶4 In March 2016, Ricky signed a voluntary acknowledgement of paternity. He submitted a

mixed answer to the petition in September 2016, stating in part that he lacked legal authority to

obtain or schedule medical care for C.H. until March 2016, when he was named C.H.'s legal

father. Following a hearing on the petition, the trial court found C.H. neglected but that Ricky

did not contribute to the injurious environment.

¶5 In October 2016, a dispositional hearing took place. A dispositional court report,

integrated assessments, and addendums were submitted. The State presented a proffer regarding

C.H.’s lack of medical treatment. The caseworker, C.H.’s mother, and Ricky testified. Evidence

presented established that Ricky complied with his service plan tasks, including attending

visitation. He voluntarily participated in counseling and a parenting class. He performed drug

drops, although he was not ordered to do so, and the results indicated he was not using drugs.

Ricky had a driver’s license and a part-time job. The trial court found Ricky was fit but that

placement was necessary due to the court’s concerns that Ricky minimalized C.H.’s medical

issues. The court wanted a period of time when C.H. was safe and Ricky could have more

visitation with her. The trial court granted the Department of Children and Family Services

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 (DCFS) the right to allow overnight visitation at its discretion and anticipated the case would

close at the next hearing. Ricky appealed.

¶6 ANALYSIS

¶7 The issue on appeal is whether the trial court abused its discretion when it found Ricky a

fit parent but ordered continued placement of C.H. in foster care. Ricky argues that he did not

contribute to the injurious environment or medical neglect and placement is not necessary

because the trial court found him fit.

¶8 For the trial court to make a child a ward of the court, it must find the parent is

dispositionally unfit to care for the child. 705 ILCS 405/2-27(1) (West 2016); In re April C., 326

Ill. App. 3d 225, 237 (2001). When a court determines that a parent has neglected his child, it

may not return custody to the parent until the court finds the parent fit. 705 ILCS 405/2-23(1)(a)

(West 2016); In re Lakita B., 297 Ill. App. 3d 985, 993 (1998). We will reverse the trial court’s

dispositional findings when they are against the manifest weight of the evidence or the trial court

abused its discretion in fashioning an improper dispositional order. In re M.M., 2015 IL App (3d)

130856, ¶11.

¶9 We addressed this issue in In re K.L.S-P., 383 Ill. App. 3d 287 (2008). In that case, the

trial court found the child neglected and the mother “ ‘fit but reserved.’ ” Id. at 291. Like here,

the trial court made the child a ward of the court and granted custody and guardianship to the

DCFS. Id. Unlike the instant case, the State in K.L.S-P. did not allege, and the court did not find,

that the parent was not unable or unwilling to care for the child. Id. at 295. Here, the trial court

expressed concern with Ricky’s ability to sufficiently tend to C.H.’s medical needs.

Nevertheless, as we determined in K.L.S-P., “a finding of fitness is, necessarily, a finding of

‘fitness *** to care for the minor without endangering the minor’s health or safety.’ ” Id. at 296

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 (quoting 705 ILCS 405/2-23(1)(a) (West 2006)). There is no statutory requirement that the trial

court make separate findings of fitness and ability to care for the child. Id.

¶ 10 The trial court found Ricky to be a fit parent. The trial court determined Ricky had not

contributed to the injurious environment. He was compliant with all service tasks and had

performed other tasks, such as drug tests and parenting class, without being ordered to do so. He

was welcomed to move into his parents’ home, where C.H. was currently placed, once he

received custody of her. The home was appropriate. Ricky’s other daughter was transitioning to

his care and the sisters were forming a bond. He was employed. He and C.H.’s mother were not

living together and were no longer in a romantic relationship. Ricky was not legally determined

to be C.H.’s father until March 2017, limiting his ability to be involved in her medical care after

she was in foster care. He would accompany his mother to C.H.’s appointments when he could

but was again limited by placement restrictions. We acknowledge the trial court’s concerns over

Ricky’s ability to address C.H.’s medical needs but find no evidence that Ricky was unable or

unwilling to accept those responsibilities.

¶ 11 Contrary to the trial court’s concerns, it still determined Ricky to be a fit parent. A parent

is either fit or unfit. In re R.W., 371 Ill. App. 3d 1171, 1174 (2007). Once the trial court made a

finding that Ricky was a fit parent, it was not authorized to make C.H. a ward of the court and

place custody with DCFS. In re K.L.S-P., 383 Ill. App. 3d at 295. We find the trial court abused

its discretion when it did not return C.H. to Ricky’s custody after finding him fit.

¶ 12 For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed

and the cause is remanded.

¶ 13 Reversed and remanded.

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