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                                   Appellate Court                             Date: 2018.03.15
                                                                               12:27:47 -05'00'




                          In re C.H., 2017 IL App (3d) 160729



Appellate Court       In re C.H., a Minor (The People of the State of Illinois,
Caption               Petitioner-Appellee, v. Ricky H., Respondent-Appellant).



District & No.        Third District
                      Docket No. 3-16-0729


Filed                 September 15, 2017
Modified upon
denial of rehearing   January 30, 2018



Decision Under        Appeal from the Circuit Court of Peoria County, No. 16-JA-104; the
Review                Hon. Kirk D. Schoenbein, Judge, presiding.



Judgment              Reversed and remanded.


Counsel on            Linda S. Groezinger, of Peoria, for appellant.
Appeal
                      Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence
                      M. Bauer, and Stephanie L. Raymond, of State’s Attorneys Appellate
                      Prosecutor’s Office, of counsel), for the People.



Panel                 JUSTICE O’BRIEN delivered the judgment of the court, with
                      opinion.
                      Justice Wright concurred in the judgment and opinion.
                      Justice Schmidt concurred in part and dissented in part, with 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
     (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 continued placement is not
     authorized because the trial court found him fit.
¶8       Our supreme court has made it abundantly clear that “section 2-27(1) of the [Juvenile
     Court Act of 1987 (705 ILCS 405/2-27(1) (West 2012))] does not authorize placing a ward of
     the court with a third party absent a finding of parental unfitness, inability, or unwillingness to
     care for the minor.” In re M.M., 2016 IL 119932, ¶ 31. We will reverse the trial court’s
     dispositional findings when they are against the manifest weight of the evidence or the trial



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       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 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 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
       (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 2016, 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        Despite 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 and not otherwise unable or unwilling to care for C.H. it was
       not authorized to place C.H. in the custody of DCFS. 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.

¶ 14       JUSTICE SCHMIDT, concurring in part and dissenting in part:
¶ 15       I agree that without specific findings that the respondent was either unfit, unable, or
       unwilling to care for C.H., the trial court erred in placing C.H. with a third party. In re M.M.,
       2016 IL 119932, ¶ 31. However, it also seems clear that, while the trial judge failed to make a
       specific finding that respondent was unable to care for C.H.’s medical needs, it had very
       specific concerns in that regard and spent much time discussing them.
¶ 16       The trial judge found C.H. to be medically neglected. He expressed concern over
       respondent’s “minimizing of the neglect that happened.” The trial judge noted, “I do find that
       placement is necessary because I’m concerned about his minimizing of the neglect that


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happened.” It is clear that C.H. suffers from some complex medical issues. When questioned
about C.H.’s medical appointments, respondent stated that he has to “consult with my mother”
and that “she lets me know when they are and I go with her if I’m available and can.” As in
M.M., I believe the better remedy here would be to reverse and remand to the trial court “ ‘so
that the trial court may enter explicit, specific findings consistent with the requirements of
section 2-27(1).’ ” Id. ¶ 11 (quoting In re M.M., 2015 IL App (3d) 130856, ¶ 16)); see also
In re Madison H., 215 Ill. 2d 364, 377 (2005).




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