                                          2014 IL App (3d) 140565

                              Opinion filed December 11, 2014
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2014

     In re S.R., a Minor                    )     Appeal from the Circuit Court
                                            )     of the 10th Judicial Circuit,
     (The People of the State of Illinois,  )     Peoria County, Illinois,
                                            )
            Petitioner-Appellee,            )     Appeal No. 3-14-0565
                                            )     Circuit No. 12-JA-62
            v.                              )
                                            )     The Honorable
     Tarah H.,                              )     Kirk D. Schoenbein,
                                            )     Judge, Presiding.
            Respondent-Appellant).          )
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Presiding Justice Lytton and Justice Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          The circuit court of Peoria County found respondent, Tarah R., unfit to parent her child

     S.R. The court also found it was in S.R's best interest to terminate respondent's parental rights.

     Respondent appeals, arguing the court's findings were against the manifest weight of the

     evidence. We affirm.

¶2                                                 FACTS

¶3          On November 5, 2012, S.R. was adjudicated neglected on the basis that respondent

     suffered from schizophrenia and was currently in a nursing home. On June 28, 2014, the State
     filed a petition for termination of parental rights. The petition alleged respondent was unable to

     discharge her parental responsibilities and there was sufficient justification to believe that such

     inability to discharge parental responsibilities would extend beyond a reasonable time.

¶4          At the hearing on the State's petition, the State moved to admit the medical report of Dr.

     Terry Killian. Respondent's objection was sustained and the State continued the hearing to

     secure the in-person testimony of Killian. Ultimately, the hearing commenced on May 28, 2014.

¶5          The parties stipulated that Killian was an expert in the field of forensic psychiatry.

     Killian testified he interviewed respondent on June 26, 2012, at the Sharon Woods Health Care

     Center (the Health Center). At the time of the interview, respondent was residing at the Health

     Center. Killian testified that he was appointed to conduct a forensic psychiatric evaluation of

     respondent, which focused on four questions: (1) was respondent fit to stand trial in her pending

     criminal case, (2) were the previous mental diagnoses that respondent received correct, (3) was

     respondent fit to care for S.R., and (4) whether treatment could help respondent improve to the

     point where she could develop minimum parenting capabilities.

¶6          Killian testified that he reviewed the documents sent by respondent's attorney and

     respondent's medical history and had noted that respondent had previously been diagnosed with

     schizophrenia or schizoaffective disorder. He explained that schizophrenia is a biologically

     based severe and chronic mental illness, lasting "for a very, very long time, probably

     permanently." It involves deterioration in function, including becoming more withdrawn and

     social interactions becoming more autistic, and experiencing hallucinations and delusions.

     Schizoaffective disorder is "essentially schizophrenia with some significant mood symptoms

     added, especially manic symptoms."




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¶7            Killian testified that he interviewed respondent for about an hour and a half. Respondent

       was not very interested in the exam and repeatedly wished to stop it. Respondent stated her date

       of birth that was different from the one in her medical records. She did not know why the

       Department of Children and Family Services (DCFS) took S.R. away but believed that to regain

       custody, she only had to tell the judge that she was ready. She adamantly insisted that she did

       not have a mental illness and that she had never been diagnosed with one. Killian opined that if

       a person suffering from schizophrenia does not acknowledge the mental illness, he or she is

       unlikely to stick with treatment.

¶8            Respondent was unable to do abstract thinking or to name any recent presidents or states

       that share a border with Illinois. Killian believed respondent's IQ was near the normal range, but

       her performance was impaired by her psychiatric illness. Respondent had very flat emotional

       responses, which are associated with schizophrenia.

¶9            Respondent did not respond appropriately when informed that it was unlikely she would

       get her child back, merely saying "okay" in an unemotional tone. She left the interview twice to

       smoke and did not return until located by staff, appearing to be much more interested in smoking

       than in discussing how to get S.R. back.

¶ 10          Respondent's thought process was very disjointed, and she had a loosening of

       associations, "meaning that she would say one thing and then immediately make a comment that

       didn't seem to have any relationship to what we had been talking about, and bounce back and

       forth." She also made delusional comments, telling Killian that she had custody of her children

       and that they were all at home with a babysitter.

¶ 11          Killian confirmed the diagnosis of schizoaffective disorder. He based his opinion on the

       fact that respondent "has a long history of having schizophrenic-like symptoms with the



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       delusions, hallucinations, poor functioning, and poor insight, had been hospitalized multiple

       times, [and] been found unfit to stand trial on the basis of her illness on three separate occasions,

       in 2002, 2006, and 2011."

¶ 12          Killian could not evaluate whether respondent had a personality disorder because she was

       far too ill for him to develop a sense of her underlying personality. Records showed that she had

       not been psychiatrically well enough in the last 10 to 12 years for anyone to really be able to

       assess her underlying personality. She had been found unfit to stand trial 10 years earlier, when

       she was in her late teens. Killian opined that it was very unlikely that she would regain fitness in

       the foreseeable future, if ever. He explained that a diagnosis of schizoaffective disorder does not

       automatically mean an individual would be unable to care for his or her children but, rather

       would depend on the severity of the illness.

¶ 13          Respondent, in Killian's opinion, was "very, very much unable" to parent a child.

       Although such a conclusion is very unusual, Killian explained that respondent had a very

       prominent schizophrenic component to her illness, with some history of manic symptoms.

       Consequently, respondent was unable to perform most parental responsibilities. Killian could

       not imagine how respondent could be responsive to a child's needs given her total inability to

       connect with others. Additionally, to parent a child, respondent would have to live on her own

       somewhere other than a facility like the Health Center. Killian explained this was unlikely since

       respondent never stayed with treatment unless she was in a facility where she was given her

       medications every day. Killian also did not believe that there was any treatment that could ever

       get respondent to the point where she could parent a child.

¶ 14          He acknowledged he had not had any contact with respondent since his interview with

       her almost two years earlier. At the time of the interview, respondent was taking prescription



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       Zyprexa at a dose of 30 milligrams per day, and no new treatment had come out since the

       interview that would get respondent to the point where she could reasonably care for a child.

       Killian reiterated that he could not "imagine that at any point in her life she would improve

       unless some new miraculous medication came along." He kept abreast of treatments in

       development, and no such miracle drug was in the pipeline. Nothing anywhere in the

       foreseeable future could improve respondent to the point of her being able to parent a child.

¶ 15          Killian testified that the passage of two years without interaction with respondent had not

       changed his opinion. It was very atypical for him to say that someone would never be able to

       improve, but he gave that rare opinion in this case because it was so clear to him based on the

       severity of respondent's illness. Even if she was consistent with taking her medication, the high

       dose of one of the most effective antipsychotic drugs would still leave her unable to parent.

¶ 16          Upon the conclusion of Killian's testimony, respondent moved for a directed verdict,

       asserting that the State failed to present any evidence of her current medical condition. The

       circuit court denied her motion, finding that she had failed to present any evidence and had

       prevented the admission of updated medical records. Ultimately, the circuit court found

       respondent unfit.

¶ 17          The matter proceeded to a best interest hearing. The best interest report described S.R.'s

       foster placement. S.R. was two years old and had been in the same foster home since being

       released from the hospital following his birth on March 28, 2012. S.R. had never lived with

       respondent and had not visited with her since October 2012. The lack of visitation was "due to

       respondent's mental health issues and inability to perform basic parenting skills without

       significant prompting." S.R. had no bond or attachment with respondent. S.R.'s father was

       unknown.



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¶ 18            According to the report, S.R. had bonded with the foster family. S.R.'s biological sister

       lived in the same home and had already been adopted by the foster parents. The foster parents

       loved S.R. and wished to provide permanency through adoption. The foster sisters and S.R.'s

       biological sister also wanted S.R. to become a permanent part of the family. S.R. loved the

       foster family and referred to them as his family. The foster parents had provided for all S.R.'s

       needs.

¶ 19            The circuit court found it was in S.R.'s best interest to terminate respondent's parental

       rights. In doing so, the court rejected respondent's guardianship request. The court held that

       S.R.'s attachments were with the foster family and that S.R.'s safety and welfare favored

       termination. These interests overruled any "wait and see" approach associated with an award of

       guardianship.

¶ 20                                                ANALYSIS

¶ 21            Respondent appeals the circuit court's order terminating her parental rights. Specifically,

       she contends the court's order finding her unfit due to her inability to discharge parental

       responsibilities was against the manifest weight of the evidence. She further contends that the

       court's order finding it was in S.R's best interest to terminate her parental rights was against the

       manifest weight of the evidence. We reject both of respondent's claims.

¶ 22                                             Unfitness Finding

¶ 23            In reviewing a finding of unfitness, we consider the following:

                               "Under section 1(D)(p) of the [Adoption] Act [(750 ILCS

                       50/1(D)(p) (West 1990))], the State must produce competent

                       evidence showing the parent has a mental inability sufficient to

                       preclude her from discharging normal responsibilities. Second, the



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                         State must show there is sufficient justification to find the inability

                         will extend beyond a reasonable time period. [Citation.] The

                         standard of proof in a fitness case is clear and convincing evidence.

                         [Citation.] The circuit court's finding of unfitness will not be set

                         aside on review unless contrary to the manifest weight of the

                         evidence. [Citation.] 'The rationale underlying this standard is

                         that the trial court's opportunity to view and evaluate the parties

                         and their testimony is superior to that of a reviewing court.

                         Accordingly, the trial court's findings should be given great

                         deference.' [Citations.] A parent can be unfit without fault, as '[a]

                         child is no less exposed to danger *** because his parent is unable

                         rather than unwilling to give him care.' [Citation.]" In re K.S.T.,

                         218 Ill. App. 3d 431, 435 (1991) (quoting In re Brown, 86 Ill. 2d

                         147, 152 (1981)).

¶ 24          The record establishes the respondent has a mental inability sufficient to preclude her

       from discharging normal responsibilities. Killian diagnosed respondent with schizoaffective

       disorder and noted that she has been found unfit to stand trial on three separate occasions in

       2002, 2006 and 2011–a period of 10 years. Respondent's insight, logic and judgment were poor.

       She did not understand why DCFS believed she was unfit to parent. Her emotional response was

       very flat. She denied having a mental illness. She suffered from delusions and was residing at

       the Health Center. She did not take her medication when she was outside and on her own. All

       these facts support Killian's expert opinion that respondent was "very, very much unable" to

       parent a child.



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¶ 25             The record also establishes that respondent's inability will extend beyond a reasonable

       time period. Killian testified that "it was very unlikely [respondent] would ever improve to

       where she would be to a point where she would be able to parent." The facts discussed above

       also support this conclusion. Moreover, Killian specifically explained that the only way

       respondent would be able to conceivably parent a child would be if "some new miraculous

       medication came along"; however, no such medication was in the pipeline.

¶ 26             Respondent argues the above evidence was insufficient to establish unfitness because

       Killian's interview was only approximately an hour and a half in length and took place two years

       prior to the fitness hearing. We disagree. Killian acknowledged this time span and the length of

       the interview, however, these facts did not change his opinion in light of the fact that

       respondent's schizoaffective disorder was severe in both duration and its impact on her daily life.

       Killian reiterated he could not imagine respondent caring for a child "at any point in her life."

       Lastly, we find it significant that respondent objected to the admission of updated mental health

       records. 1 Under the doctrine of invited error, a defendant may not request to proceed in one

       manner and later contend on appeal that the course of action was in error. People v. Villarreal,

       198 Ill. 2d 209, 227 (2001).

¶ 27                                            Best Interest Finding

¶ 28             Respondent next contends that the Americans with Disabilities Act (the ADA) (42 U.S.C.

       § 12132 (2006)) "applies in this matter and that a guardianship goal would be a reasonable




       1
           The parties do not discuss the outcome of respondent's objection; however, it appears that the

       State ultimately withdrew its motion to admit after the circuit court announced it was likely

       going to sustain respondent's objection.


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       accommodation while not penalizing respondent for having the illness she has." 2 At the outset,

       we note that the two cases cited by respondent (In re Adoption of Gregory, 747 N.E.2d 120

       (Mass. 2001); In re B.S., 693 A.2d 716 (Vt. 1997)) do not actually support her argument. Both

       cases expressly hold that the ADA does not apply to proceedings to terminate parental rights.

       Gregory, 747 N.E.2d at 125; B.S., 693 A.2d at 720. We agree with the reasoning expressed by

       the court in B.S.:

                         "[Termination] proceedings are not 'services, programs or

                        activities' within the meaning of Title II of the ADA [citation].

                        [Citations.] Thus, the anti-discrimination requirement does not

                        directly apply to termination proceedings.

                                Even if the ADA applied to [termination] proceedings,

                        there is no specific discrimination against disabled persons in the

                        [termination] process. Mental retardation is not, by itself, a ground

                        for terminating parental rights." B.S., 693 A.2d at 720.

¶ 29             We now turn to the substantive question of termination of respondent's parental rights.

       The State must prove by a preponderance of the evidence that termination is in the best interest

       of the minor. In re D.T., 212 Ill. 2d 347, 366 (2004). The circuit court's best interest finding will

       not be disturbed unless it is against the manifest weight of the evidence. In re T.A., 359 Ill. App.

       3d 953, 961 (2005).


       2
           The portion of the ADA invoked by respondent provides that "no qualified individual with a

       disability shall, by reason of such disability, be excluded from participation in or denied the

       benefits of the services, programs, or activities of a public entity, or be subjected to

       discrimination by any such entity." 42 U.S.C. § 12132 (2006).


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¶ 30           In this termination phase, all considerations of the parent yield to the best interest of the

       child. In re Tashika F., 333 Ill. App. 3d 165, 170 (2002). While we have great sympathy for a

       mother losing her child in circumstances which she bears no blame, the child, too, is without

       fault and is entitled to the protection afforded by the statute.

¶ 31           Whenever a "best interest" determination is required, the following factors shall be

       considered:

                               "(a) the physical safety and welfare of the child, including

                       food, shelter, health, and clothing;

                               (b) the development of the child's identity;

                               (c) the child's background and ties, including familial,

                       cultural, and religious;

                               (d) the child's sense of attachments ***;

                               (e) the child's wishes and long-term goals;

                               (f) the child's community ties, including church, school,

                       and friends;

                               (g) the child's need for permanence which includes the

                       child's need for stability and continuity of relationships with parent

                       figures and with siblings and other relatives;

                               (h) the uniqueness of every family and child;

                               (i) the risks attendant to entering and being in substitute

                       care; and

                               (j) the preferences of the persons available to care for the

                       child." 705 ILCS 405/1-3(4.05) (West 2012).



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¶ 32          Here, S.R. has been in the same foster home since birth. According to the best interest

       report, S.R. has clearly bonded with the entire foster family. Further, the foster parents are able

       to effectively provide for S.R.'s safety and welfare. Significantly, the foster parents wish to

       provide S.R. permanency through adoption. Conversely, the record demonstrates that

       respondent is unable, at this time and likely ever, to provide S.R. with permanency. Virtually all

       relevant statutory factors weigh in favor of termination. Thus, we conclude the circuit court's

       decision to terminate respondent's parental rights was not against the manifest weight of the

       evidence.

¶ 33          For the reasons stated, we affirm the circuit court's judgment.

¶ 34          Affirmed.




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