                                Illinois Official Reports

                                       Appellate Court



                               In re S.R., 2014 IL App (3d) 140565



Appellate Court           In re S.R., a Minor (The People of the State of Illinois,
Caption                   Petitioner-Appellee, v. Tarah R., Respondent-Appellant).



District & No.            Third District
                          Docket No. 3-14-0565



Rule 23 Order filed       October 31, 2014
Motion to publish
allowed                   December 11, 2014
Opinion filed             December 11, 2014


Held                       The trial court’s decision to terminate respondent’s parental rights was
(Note: This syllabus affirmed, since the record showed that respondent’s son had resided in
constitutes no part of the the same foster home since he was born, his foster parents provided for
opinion of the court but his safety and welfare, and they indicated that they wanted to adopt the
has been prepared by the child and provide permanency in his life, while respondent is unable,
Reporter of Decisions currently and likely ever, to provide any permanency; furthermore,
for the convenience of nearly all of the statutory factors weighed in favor of termination.
the reader.)



Decision Under            Appeal from the Circuit Court of Peoria County, No. 12-JA-62; the
Review                    Hon. Kirk D. Schoenbein, Judge, presiding.



Judgment                  Affirmed.



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     Counsel on                Louis P. Milot, of Peoria, for appellant.
     Appeal
                               Jerry Brady, State’s Attorney, of Peoria (Laura E. DeMichael, of
                               State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                               People.



     Panel                     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

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       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.”
¶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
       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

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       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
       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.
¶ 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.




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¶ 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 [(Ill. Rev. Stat. 1989, ch. 40,
               ¶ 1501(1)(D)(p))], the State must produce competent evidence showing the parent has
               a mental inability sufficient to preclude her from discharging normal parental
               responsibilities. Second, the 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.
¶ 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

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       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
       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).
¶ 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;

           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.
           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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                   (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).
¶ 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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