                                         2017 IL App (3d) 160729


                               Opinion filed September 15, 2017 

                       Modified upon denial of rehearing January 30, 2018 

     ____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2018

     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. 

            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


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     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] 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 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


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       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.



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¶ 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

       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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