                                           2018 IL App (1st) 180577

                                                 No. 1-18-0577

                                        Opinion filed November 21, 2018 

                                                                        Third Division
     ______________________________________________________________________________

                                                    IN THE

                                      APPELLATE COURT OF ILLINOIS

                                               FIRST DISTRICT

     ______________________________________________________________________________

     In re C.L., a Minor,                                 )     Appeal from the
                                                          )     Circuit Court of
     (The People of the State of Illinois,                )     Cook County.
                                                          )
            Petitioner-Appellee,                          )     No. 13 JA 638
      v. 	                                                )
                                                          )     Honorable
     Makiah L.,                                           )     John L. Huff,
                                                          )     Judge, presiding.
            Respondent-Appellee (C.L., Minor-Appellant)). )
     ______________________________________________________________________________

                    JUSTICE COBBS delivered the judgment of the court, with opinion.
                    Justices Howse and Ellis concurred in the judgment and opinion.

                                              OPINION

¶1          Minor-respondent-appellant C.L., through the Office of the Cook County Public

        Guardian (Public Guardian), petitioned to appeal the trial court’s March 8, 2018, permanency

        order setting the goal of return home to mother, Makiah L., within 12 months. We granted

        leave to appeal under Illinois Supreme Court Rule 306(a)(5) (eff. Nov. 1, 2017). C.L.

        contends that the court erred in setting the permanency goal of return home because the

        manifest weight of the evidence showed the goal of private guardianship was in C.L.’s best

        interest. Further, C.L. argues that the court incorrectly interpreted section 2-27 of the

        Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-27 (West 2016)), when it stated that
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        ordering private guardianship would require an additional finding that Makiah was unable to

        care for C.L. For the reasons that follow, we reverse and remand.

¶2                                            I. BACKGROUND

¶3          C.L. was born on March 2, 2013, to Makiah and Rodney T. 1 Prior to C.L.’s birth, the

        Department of Children and Family Services (DCFS) had opened cases against Makiah in

        regards to her six other children. 2 Upon learning of C.L.’s birth, DCFS attempted to contact

        Makiah and assess C.L.’s condition. When these efforts failed, the State filed a petition for

        adjudication of wardship alleging C.L. was neglected and abused due to the existence of an

        injurious environment and a substantial risk of injury. See 705 ILCS 405/2-3(1)(b), (2)(ii)

        (West 2016). The State moved for temporary custody in conjunction with filing the petition,

        and a hearing was conducted on July 12, 2013. The court found probable cause that C.L. was

        neglected, there was an immediate and urgent necessity to remove C.L. from the home, and

        reasonable efforts had been made but had not eliminated the need for removal. The court

        issued a child protection warrant, and C.L. was taken into DCFS custody and assigned a

        caseworker from Children’s Home and Aid (agency) the following week. C.L. was placed in

        a foster home with Shawna and Kevin Koonce and has resided there throughout the pendency

        of this case.

¶4          In August 2013, Makiah was granted supervised visits with C.L. and ordered to attend

        mediation in the following months to discuss placement, visitation, and services. Over the

        next year, the case was repeatedly continued pending status on service against Rodney until

        he was defaulted against in June 2014. On October 30, 2014, the court heard arguments on
            1
              Rodney has never filed an appearance in this case and is not involved with this appeal.
            2
              Five of Makiah’s sons were adjudicated to be neglected in 2004. Makiah’s sixth son was taken
        into DCFS custody shortly after birth as a substance exposed infant in 2009. At the time of this order,
        Makiah’s sons are between the ages of 8 and 22 and her parental rights were terminated as to the four
        younger brothers.
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        the allegations of abuse and neglect and took the case under advisement. An adjudication

        order was issued on December 10, 2014, finding that C.L. was neglected under the theory of

        anticipatory neglect. 3 The court rejected the abuse allegations and explained that neglect was

        found only because “[Makiah] hadn’t advanced to unsupervised overnight visits and never

        corrected issues from other involved children or completed recommended services.” These

        facts were sufficient to prove by a preponderance of the evidence that C.L. was neglected.

        The parties waived the requirement for a dispositional hearing within 30 days of adjudication

        and set the next hearing for March 6, 2015.

¶5          The dispositional hearing was held over three court dates between March and June 2015.

        On June 2, 2015, the court entered an order finding that Makiah was unable to care for,

        protect, train, or discipline C.L. The court also entered the first permanency order setting the

        goal of return home in twelve months and reserving the issue of mother’s progress toward the

        goal. At the next two permanency hearings, the court noted that Makiah had made “some,”

        but not substantial, progress toward the goal. The court maintained the goal of return home

        within twelve months, despite the agency’s recommendation for substitute care pending

        termination of parental rights.

¶6          The Public Guardian and state’s attorney agreed, at the hearing on December 2, 2015,

        that it was too early to seek termination of parental rights because more services could be

        offered before ruling out return home. However, at the hearing on June 22, 2016, both the

        Public Guardian and state’s attorney noted for the record that they agreed with the agency’s


            3
              “Under the anticipatory neglect theory, the State seeks to protect not only children who are the
        direct victims of neglect or abuse, but also those who have a probability to be subject to neglect or
        abuse because they reside, or in the future may reside, with an individual who has been found to have
        neglected or abused another child.” In re Arthur H., 212 Ill. 2d 441, 468 (2004). “The doctrine of
        anticipatory neglect recognizes that a parent’s treatment of one child is probative of how that parent
        may treat his or her other children.” In re Zion M., 2015 IL App (1st) 151119, ¶ 30.
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        recommendation for substitute care pending termination of parental rights. The court

        explained that it found return home was not possible at the time, because mother had not

        been in or had not been consistent with services aimed toward reunification, but that a goal of

        return home should not be ruled out. During this time period, Makiah was granted supervised

        community visits in addition to supervised visitation at the agency.

¶7         In the fourth permanency order entered on January 12, 2017, the court found that Makiah

        had made substantial progress despite recognizing that mother had unsatisfactory drug testing

        results and was still in need of child-parent psychotherapy (CPP) and individual counseling.

        The court further remarked that Makiah had been consistent in attending visitation with C.L.

        and acknowledged that C.L. exhibited aggressive behavior during these visits. The court

        maintained the goal of return home within twelve months, yet again against the

        recommendation of the agency and over the objection of the Public Guardian.

¶8         After this order was entered, Makiah sought the right to have unsupervised visits with

        C.L. Conversely, the Public Guardian sought to suspend visitation or limit visitation to

        therapeutically supervised visits citing concerns that visits increased C.L.’s behavioral issues.

        On March 16, 2017, the court denied the Public Guardian’s motion to suspend visitation and

        granted Makiah unsupervised weekend visits in addition to the regular supervised weekday

        visits. The Public Guardian later filed an emergency motion to suspend visitation following a

        report that Makiah had hit C.L. in the face during an unsupervised visit on April 29, 2017.

        The court denied the motion to suspend visitation as well as the Public Guardian’s

        subsequent motion to reopen proofs and reconsider the motion. Over the objections of the

        Public Guardian and state’s attorney, the court entered an order on June 19, 2017, continuing




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          unsupervised Saturday visits and allowing for unsupervised overnight visits to occur at the

          discretion of DCFS.

¶9           The next permanency hearing, which is at issue in this appeal, spanned five hearings

          beginning in August 15, 2017, and ending with the court’s ruling on March 8, 2018. The

          court took judicial notice of the previous hearings in the case and the court’s notes, in

          addition to the termination of Makiah’s parental rights as to four of her six other children.

          The following testimony was given on February 23, 2018, in addition to the 21 exhibits

          entered into evidence during the hearings.

¶ 10         Jane Wright, Makiah’s neighbor, testified that she had lived in the apartment across the

          hall for the past year. Wright has a five-year-old grandson who would play with C.L. on

          Saturdays during Makiah’s unsupervised visits. The play dates had occurred regularly for

          five or six months. Wright would drop off her grandson and spend around 20 minutes with

          the boys and Makiah before leaving them to play. During these times she noted that C.L.’s

          behavior was “out of control.” In the last two months, she saw C.L. become violent with

          Makiah, kicking and biting his mother while she tried to “hold him down” until he calmed

          down. Wright never saw Makiah hit C.L. She testified that she heard C.L. say things like his

          “other mommy” told him to act out and to say he did not like Makiah.

¶ 11         C.L.’s foster mother, Shawna, denied saying anything disparaging about Makiah to C.L.

          or instructing him to act out. She did not believe it would be beneficial for C.L. if his

          relationship with Makiah was damaged. In her oral report on C.L.’s status, she noted some

          improvement in his behavior at school and ability to express himself in therapy. However,

          C.L. would verbally express a dislike for the visits with Makiah and often cry or have

          tantrums when he left for visits. Shawna stated he would “destroy his room” and she would


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           try to calm him down by reminding him that she was there for him and would be there when

           he returned from the visits.

¶ 12          Shawna was pressed on cross-examination as to whether she ever said positive things

           about Makiah to C.L. Shawna testified that she would tell C.L. to be good for his mom, that

           Makiah was a good person who loved him, so he should be nice to her and go to the visits.

           Shawna acknowledged that she and Makiah only had an “okay” relationship and they needed

           to work on it in the future, which she was willing to do. She also testified to her prior

           experience in maintaining familial bonds between her adopted daughter and her daughter’s

           biological family. Shawna expressed that her daughter was an example that she meant what

           she said and she understood the importance of maintaining Makiah’s relationship with C.L.

           as well as C.L.’s relationship with his other siblings.

¶ 13          Makiah testified that during visits C.L. would call her “stupid” and say it was because his

           foster parents thought Makiah was stupid. Further, C.L. would relate that his foster parents

           did not like her and would tell C.L. he does not have to listen to her. Makiah claimed that

           C.L. admitted he was lying to Makiah and was instructed to say mean things during their

           most recent CPP session on February 20, 2018. Makiah further testified that the CPP

           therapist, Shakira Harris, intervened and explained to C.L. that it was not okay to tell lies and

           it was not nice for C.L. or C.L.’s foster parents to tell him to do that to Makiah.

¶ 14	         Harris was not present at the hearing but was called as a rebuttal witness and testified

           telephonically. She stated that during the last therapy session, C.L. did not tell her that his

           foster mother told him to fight and hit Makiah. Further, C.L. did not bring up his foster

           mother at all. He did, however, accuse Makiah of hitting him on the bus while travelling to

           the session. When pressed for clarification on the alleged hit, C.L. stated he was just kidding


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          and he was trying to “get rid of the visit.” C.L. explained that he liked to see Makiah and the

          visits at her apartment, but he was tired of coming to the agency.

¶ 15         Harris submitted a report detailing Makiah and C.L.’s progress in CPP from October

          2017 through January 2018. During this time period, Makiah attended nine sessions, two

          sessions were cancelled by Harris, and two sessions were cancelled by Makiah because she

          was late. Harris reported that Makiah and C.L. were both making progress in regulating their

          emotions and interacting with each other in a safe manner. Additionally, C.L. had become

          more expressive in therapy. However, he would ignore expressions of affection by Makiah

          and expressed anger and frustration over the compulsory visits. Further services were

          recommended for Makiah to establish herself as a “protective, benevolent, legitimate

          authority figure” in C.L.’s life and to improve the emotional bond between the two.

¶ 16         Anne Gamache, the therapist who provided individual play therapy for C.L., also testified

          and submitted reports regarding C.L.’s progress. She had worked with C.L. since he was

          referred to her services in January 2017. Her quarterly report for October 12, 2017 through

          January 11, 2018, recommended that visitation with Makiah be discontinued. She detailed

          that C.L. sought out his foster mother Shawna as a secure base and source of nurturing and

          emotional security. In contrast, when asked about Makiah, C.L. consistently avoided

          discussing her and his visits with her. He would instead ask to just play or ignore Gamache’s

          questions. During his play therapy, C.L. exhibited symptoms of post-traumatic stress

          disorder. Further, although his dissociation and aggression had decreased during the

          reporting period, his anxiety had increased. C.L. had learned coping skills to regulate his

          emotions and can when his emotions are moderate, but he would leave the therapy space and

          seek out Shawna for physical nurturing whenever he was overwhelmed.


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¶ 17          In an addendum submitted on February 19, 2018, Gamache reported that C.L. was having

           nightmares where he could not come home. He also acted out scenarios during play therapy

           where a stuffed animal attacked Gamache in an effort to steal a baby doll that C.L. had

           entrusted to Gamache’s care. C.L. also expressed a fear that Makiah, whom he referred to as

           “the evil mom,” would come to his foster home and break all the windows. Lastly, C.L.

           reported on February 13, 2018, that he had been hit, scratched, and spanked on a visit.

           However, C.L.’s report was unclear as he referenced both the visit earlier in the day prior to

           the session and another visit “a long time ago.”

¶ 18          Gamache testified during the hearing that, in the latest session, after she had submitted

           her addendum, C.L. again reported being hit by Makiah. C.L. stated Makiah had hit him in

           the face during the visit that day. Gamache reported this incident to the DCFS hotline and

           testified that she had not done so after the last session because she observed no marks on

           C.L. and he had not provided a concrete timeframe for the allegation. Gamache also testified

           about her recommendation that visitation be discontinued. She expressed concerns that C.L.

           had expressed an unwillingness to attend visits and during one observed visitation sought

           comfort from Gamache rather than Makiah. Further, despite fairly consistent visits for the

           past year, C.L.’s negative behaviors had not decreased nor did he show the development of a

           positive relationship with Makiah.

¶ 19	         Amanda Moore, the agency’s caseworker, testified that she had been assigned to the case

           in November 2017. Her most recent visit to C.L.’s foster home was February 16, 2018. A

           few days after that visit, an investigation was opened following the hotline call by Gamache.

           Makiah’s unsupervised visitation schedule was suspended pending the results of the

           investigation. The agency was attempting to find staffing solutions to implement the same


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          visitation schedule with agency supervision at the previously unsupervised visits. Moore

          testified that she observed a strong emotional bond between C.L. and Shawna. She was

          concerned that a majority of the time Makiah’s efforts to soothe C.L. were unsuccessful and

          a substantial amount of time would be required before Makiah was ready to care for C.L. on

          her own.

¶ 20         Moore testified that, during the most recent staffing meeting, she met with her supervisor,

          a clinical supervisor, and C.L.’s CPP therapist Harris and they determined that private

          guardianship would be best for C.L. in order to introduce more stability into his life. Due to

          the hearing being continued across several months, the agency had prepared four separate

          permanency planning reports for the court to review. The report prepared in February 2018,

          after the staff meeting about which Moore testified, was the first time the agency had

          changed their recommendation to private guardianship.

¶ 21         The August 2017 report stated that the agency would not be able to recommend a

          permanency goal until the latest parenting capacity assessment conducted by Jo Anne Smith

          was completed for Makiah. After Smith’s assessment had been filed, the agency

          recommended substitute care pending termination of parental rights in September 2017. The

          agency then reversed their position and recommended return home within twelve months in

          the report from December 2017. The agency recommended that Makiah and Shawna attend

          mediation and wrote, “even though [C.L.]’s therapist and Ms. Smith are requesting that the

          Court move away from a reunification goal, the agency believes that the ‘system’ has an

          obligatyion[sic] to make further attempts to bring the two most important people in [C.L.]’s

          life together before any change in goal be entertained.”




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¶ 22         Consistently across the four reports, the agency noted that Makiah’s compliance with

          random drug screening was unsatisfactory and remained a serious concern preventing

          reunification. Between June 2017 and February 2018, Makiah missed 12 requests for drug

          drops. Of the four she completed during this period, three were positive for the presence of

          drugs. Her only clean drop was on September 6, 2017. The reports acknowledged Makiah

          was making some progress in her parenting skills but also noted her tendency to shut down or

          cancel visits and therapy sessions when C.L. misbehaved. C.L.’s disruptive behaviors at

          school had not subsided, and he frequently exhibited a reluctance to attend visits and would

          verbally and physically resist the case aide’s attempt to transport him to visits.

¶ 23         Further, although not discussed at the hearing, the August report noted that unsupervised

          visits at Makiah’s home were suspended when her third eldest son, who was still under

          DCFS care, moved home in an unauthorized self-placement. The agency found that Makiah’s

          older son posed a risk to C.L.’s safety. The older son was not compliant with his medication

          or mental health services and reported to be affiliated with a gang in addition to being

          allegedly pursued after selling illegal substances. He later moved out as reflected in the

          February report and visitation in the home was allowed to resume.

¶ 24         The parenting capacity assessment report relied upon by the agency was completed by Jo

          Anne Smith on September 5, 2017. Smith drew her observations from her interviews with

          Makiah and Shawna; her observations of C.L. alone and C.L. with Makiah; her review of all

          relevant documents, including Makiah’s previous psychiatric evaluations and mental health

          assessments; and discussions with or reports from other parties involved with the case. In a

          thorough report, Smith noted concerns that Makiah saw herself as a victim and relied on

          placing blame on external factors as a coping mechanism. Makiah seemed to lack insight into


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          the consequences of her actions and her lengthy involvement with DCFS. Despite her

          continued desire to parent and her consistency in showing up, Makiah had failed to integrate

          what she had learned into her interactions with C.L. She exhibited some understanding of

          C.L.’s emotional and developmental struggles but could not consistently address C.L.’s

          issues in an age-appropriate and constructive manner. Makiah continued to have serious risk

          factors preventing return home including placing her own needs above C.L.’s as exhibited by

          her continued reliance on drugs to self-medicate.

¶ 25         In regards to C.L.’s emotional and mental state, Smith noted that C.L. struggled with trust

          issues and appeared consistently anxious about the roles of the adults in his life. Smith

          posited that C.L. had picked up on the feelings of conflict between Shawna and Makiah and

          felt disrupted due to the constant shuffling he experienced while in the system. Smith was

          concerned that Makiah’s tendency to give up when things got tough would be an issue if C.L.

          returned home and she became responsible for him full-time. Smith then outlined all the

          necessary recommendations if the court chose to move forward with either return home or

          permanency in the foster placement. In an addendum to her report, Smith clarified that in her

          professional opinion, “the risk factors outweigh the strengths of [Makiah] at this time”. She

          felt that “time has appeared to run out” and that return home should no longer be considered

          as C.L.’s behaviors were continuing to escalate. Smith wrote that minor’s return home to a

          mother who did not have the skills to soothe him may result in C.L.’s behavior escalating to

          the point that he would have to be hospitalized. She recommended that C.L. be placed with

          “safe, tolerant, consistent, and predictable parental figures who will help him work through

          his emotional and developmental issues.”




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¶ 26         At the close of testimony on February 23, 2018, the court continued the hearing noting

          that it wished to speak with C.L. and hear C.L.’s feelings before ruling on the permanency

          goal. The court discussed its concerns that the finding of neglect at adjudication had been a

          “very close” decision and mused over whether it “made a mistake” that resulted in the system

          causing C.L.’s misbehaviors and anxiety. On March 6, the court reversed its decision to

          speak with C.L. per the therapist recommendation that such a discussion would place undue

          stress on C.L. However, prior to hearing arguments on March 8, the court noted for the

          record that it had come across the opportunity to speak to C.L. in an informal ex parte

          meeting after the last hearing. The substance of the conversation between the court and C.L.

          were not entered on the record.

¶ 27         Despite the arguments of the Public Guardian and the state’s attorney, the court entered

          an order setting the permanency goal of return home within 12 months. The court also found

          that Makiah had made substantial progress toward the permanency goal and reserved the

          issues of whether the agency had made reasonable efforts and if C.L.’s placement is

          necessary and appropriate. This appeal followed.

¶ 28                                           II. ANALYSIS

¶ 29         C.L. raises two challenges to the court’s March 8, 2018, permanency order. First, he

          contends that the trial court ignored the manifest weight of the evidence, which demonstrated

          that it was in his best interest to change the permanency goal to private guardianship rather

          than return home. Secondly, he argues that the court’s justification for denying the State’s

          request for private guardianship was based on a flawed interpretation of the Act. C.L.

          requests this court reverse the permanency goal of return home within 12 months and remand

          the case with instructions to set a permanency goal of private guardianship.


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¶ 30         The state’s attorney agrees that the trial court failed to consider the C.L.’s best interest in

          setting the permanency goal of return home within 12 months. However, the state’s attorney

          does not adopt C.L.’s arguments and instead requests remand of the case with instructions for

          the trial court to fully consider C.L.’s best interest at a new permanency hearing. Makiah

          responds that the trial court’s interpretation of the statute was correct and that the manifest

          weight of the evidence supported a permanency goal of return home, and thus, this appeal

          should be denied.

¶ 31                                      A. The Juvenile Court Act

¶ 32         Before ruling on the appropriate permanency goal, the trial court asked counsel multiple

          times why it should set private guardianship as the goal if they did not present evidence that

          Makiah was unable to care for C.L. The trial court stated that looking at section 2-27(1) of

          the Act, “I’m required to find that the parent is unable to care for the child before I can close

          this case to private guardianship.” Although a motion to close the case to private

          guardianship was not before the trial court, the court asked, “why should I set the goal at

          private guardianship if that’s a finding that I’d have to make?” Counsel argued that section 2­

          27(1)’s directive to make a finding of fitness and ability was applicable at the dispositional

          hearing but is not a determination made during the permanency hearing. However, the court

          responded, “My reading of the Juvenile Court Act is that Sections 2-22 and 2-23 govern the

          dispositional hearing.” Thus, the court continued to apply section 2-27(1) to the permanency

          hearing and rejected arguments that fitness, ability, and willingness were not under review in

          a change to private guardianship.

¶ 33         C.L. asserts that the plain language of the statute indicates that the trial court makes an

          initial finding regarding fitness, ability, or willingness during the dispositional hearing and


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           this finding is sufficient to grant the trial court authority to order placement in private

           guardianship “at any later point” during the case, provided that it is in the minor’s best

           interest. Further, section 2-28 directs the trial court to “determine the future status of the

           child” and set a permanency goal which aligns with the child’s best interest. 705 ILCS 405/2­

           28 (West 2016). C.L. highlights that this section does not instruct the trial court to make an

           additional finding of a parent’s fitness, ability, or willingness to care for their child. Thus,

           C.L. contends that the trial court’s reading of the statute is incorrect because it renders the

           phrase “at any later point” in section 2-27 superfluous. 4

¶ 34           The construction of a statute is a question of law and our review is de novo. In re M.M.,

           2016 IL 119932, ¶ 15. The primary rule of statutory construction is to ascertain and give

           effect to the intent of the legislature. Id. The most reliable indicator of legislative intent is the

           language of the statute, which should be given its plain and ordinary meaning. Bayer v.

           Panduit Corp., 2016 IL 119553, ¶ 18; People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279

           (2003). Furthermore, a statute is viewed as a whole, and we construe its words and phrases in

           light of other relevant statutory provisions to give each word, clause, and sentence a

           reasonable meaning, if possible, to avoid rendering any part superfluous. See In re M.M.,

           2016 IL 119932, ¶ 16.

¶ 35	          In order to address C.L.’s argument, we must look at all the relevant sections of the Act

           beginning with the dispositional hearing. Under the Act, the trial court is directed to hold a

           dispositional hearing within 30 days after the court determines that a minor is abused or

           neglected. 705 ILCS 405/2-21(2) (West 2016). A dispositional hearing is used to “determine

           whether it is in the best interest of the minor and public that the minor be made a ward of the

               4
                 We address the minor’s second argument first because the court’s interpretation of the Act
           affects how it weighed the evidence, which we will discuss later.
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           court.” 705 ILCS 405/2-22(1) (West 2016). If the minor is made a ward of the court,

           guardianship of the child is awarded to DCFS. 705 ILCS 405/2-22(6) (West 2016). Then, the

           court must determine what further action should be taken in regards to the minor and may

           enter four types of orders: (1) continued care by the minor’s parent, guardian, or legal

           custodian; (2) restoration of custody to the minor’s parent, guardian, or legal custodian;

           (3) the minor’s partial or complete emancipation; or (4) placement in accordance with section

           2-27 of the Act. 705 ILCS 405/2-23(1) (West 2016); In re M.M., 2016 IL 119932, ¶ 17.

¶ 36          Section 2-27 provides for the court, “at this hearing and at any later point,” to place the

           minor in the custody of a suitable relative or other person, place the minor under the

           guardianship of a probation officer or subsidized guardianship, or commit the minor to an

           agency or DCFS, “[i]f the court determines and puts in writing the factual basis supporting

           the determination of whether the parents, guardians, or legal custodian of a minor adjudged a

           ward of the court are unfit or are unable, for some reason other than financial circumstances

           alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that the

           health, safety, and best interest of the minor will be jeopardized if the minor remains in the

           custody of his or her parents, guardian or custodian.” 705 ILCS 405/2-27 (West 2016).

¶ 37	         Here, the trial court was correct in stating that sections 2-22 and 2-23 govern the

           procedure of a dispositional hearing. However, section 2-23 also plainly references and

           directs the court to enter placement orders, if applicable, in accordance with section 2-27.

           Thus, the Public Guardian and State were correct in arguing that a finding of fitness, ability,

           and willingness under section 2-27 is determined during the dispositional hearing. Notably,

           the disposition form order used by Cook County courts and entered by the court in this case

           is explicitly captioned “Disposition Order (Placement) 705 ILCS 405/2-27.”


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¶ 38         Turning to the phrase “at any later point” in section 2-27, we agree with the Public

          Guardian that, under the plain language of the statute, a court may rely on its initial

          determination during the dispositional hearing to later modify placement of the minor

          without once again finding the parent, guardian, or custodian unfit or unable to care for the

          minor. In re Terrell L., 368 Ill. App. 3d 1041, 1050 (2006) (stating that “[w]e cannot

          conclude, based on the language of the statute, that the legislature did not intend the words

          ‘at any later point’ to actually mean ‘at any later point’ ”). Under section 2-27, a minor may

          be placed with a relative or nonrelative as a legal custodian or guardian, with a probation

          officer or other agency, or with a private guardian. 705 ILCS 405/2-27(1) (West 2016). The

          phrase “at any later point” recognizes that a minor’s best interest may change during the

          pendency of the case and authorizes the court to modify the minor’s placement without

          additional findings as to a parent’s fitness, ability, and willingness.

¶ 39         Next, section 2-28 outlines the court’s duty to periodically review the case and order

          changes to the service plan and the minor’s placement as needed to resolve the case and

          achieve permanency for the minor. The court must set a permanency goal for the parties,

          which in general may be return home, adoption, or private guardianship. 5 705 ILCS 405/2­

          28(2) (West 2016). Custody of the minor may be returned to the parent, guardian, or legal

          custodian only if the “minor can be cared for at home without endangering the minor’s health

          and safety and it is in the best interest of the minor.” 705 ILCS 405/2-28(1) (West 2016).

          When return home is not immediately possible, time is allotted for the parties to complete

          services to prepare for reunification. Although, the Act directs the court to preserve family

          ties whenever possible, the Act also emphasizes the need to establish permanency “at the
             5
                There are three other permanency goals provided for the Act, but are not relevant to this case
          because minor is not over the age of 15, nor does he have any developmental disabilities or mental
          illness, and the requirements for continuing foster care as a permanency goal have not been met.
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          earliest opportunity.” 705 ILCS 405/1-2(1) (West 2016). Our supreme court has recognized

          that a minor’s best interest is not served if they “remain in limbo for an extended period of

          time.” In re D.L. 191 Ill. 2d 1, 13 (2000).

¶ 40         Thus, when return home has not been achieved and will likely not be achieved in a

          reasonable amount of time the Act provides for changing the permanency goal to either

          adoption or private guardianship. The court’s only consideration in setting the permanency

          goal is the minor’s best interest and further proceedings are initiated to finalize permanency

          and meet the goal. A proceeding to change a minor’s placement to private guardianship is

          different from a proceeding seeking the termination of parental rights. See In re April C., 326

          Ill. App. 225, 237 (2001). Adoption requires either consent by the parents or the court’s

          termination of the parental rights. 705 ILCS 405/2-28(2)(D) (West 2016). Private

          guardianship, on the other hand, requires DCFS approval, court approval, and that return

          home and adoption have been ruled out. 705 ILCS 405/2-27(1)(a-5), 2-28(2)(E), 2-28(4)(a)

          (West 2016).

¶ 41         Termination of parental rights is governed by section 2-29 of the Act, and a trial court

          must find by clear and convincing evidence that the parent is unfit to care for the minor in

          order to terminate parental rights. 705 ILCS 405/2-29 (West 2016). This is a re-examination

          under a higher standard than the initial finding made during the dispositional hearing and is

          required when the permanency goal is set to adoption, over the parent’s objection. 705 ILCS

          405/2-28(2)(D), 2-29 (West 2016). However, in the case of private guardianship, the current

          foster parent or relative caregiver simply files a motion for appointment by the court as the

          private guardian. 705 ILCS 405/2-28(4)(a) (West 2016). There is no petition to terminate

          parental rights, and therefore there is no statutory requirement to make new findings


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          regarding a parent’s fitness. DCFS sets the requirements of eligibility for private

          guardianship and gives consideration to the child’s best interest and the emotional bond and

          commitment displayed between the minor and proposed guardian. 89 Ill. Adm. Code 302.405

          (2008). The court’s role is to determine under the standards set forth in section 2-28, whether

          the goals of return home and adoption should be ruled out, and if they are, then the court only

          has to approve the motion for appointment.

¶ 42         Here, the trial court focused on section 2-27(1) and whether counsel could prove anew

          that Makiah was unable to care for C.L. The trial court erroneously focused on parental

          fitness in relation to changing the permanency goal or closing the case to private

          guardianship. As neither action would require a separate finding that Makiah was unable to

          care for C.L. under the Act, we agree that the court misapplied the statute and turn next to the

          manifest weight of the evidence.

¶ 43                                 B. Manifest Weight of the Evidence

¶ 44         C.L. argues that the goal of return home should have been ruled out because it does not

          serve C.L.’s best interest. C.L. contends that (1) the lengthy pendency of this case, (2) C.L.’s

          age and emotional and developmental needs, and (3) the improbability of Makiah making the

          progress necessary for reunification in the near future are factors clearly weighing against a

          continued goal of return home. C.L. further argues that the trial court erred because it failed

          to focus on C.L.’s best interest and instead indicated a focus on Makiah’s rights as a parent.

¶ 45         Makiah responds that private guardianship was not an appropriate permanency goal

          because return home could not be ruled out as she was very close to being found fit, willing,

          and able to care for C.L. Furthermore, the record suggests that private guardianship would




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          not be a proper goal because it was not in C.L.’s best interest due to the tension between

          Makiah and C.L.’s foster mother and her allegations of parental alienation.

¶ 46         Section 2-28 of the Juvenile Court Act “requires the trial court to establish a permanency

          goal that is in the best interest of the child.” In re E.I., 309 Ill. App. 3d 392, 397 (1999); 705

          ILCS 405/2-28 (West 2016). “When reviewing the trial court’s best-interest determination,

          the reviewing court will not overturn the court’s determination unless it is against the

          manifest weight of the evidence.” In re S.J., 364 Ill. App. 3d 432, 441 (2006). Thus, even if

          the court’s reasoning in setting a permanency goal was flawed, it would not be overturned if

          it was supported by the evidence. Under section 2-28, the factors that should be considered in

          determining the minor’s best interest include the minor’s emotional, physical, and mental

          status or condition as well as age; the status of any of the minor’s siblings; the minor’s

          current placement and the family’s intent regarding adoption; the history of services offered

          and availability of services still needed; and the options available for permanence. 705 ILCS

          405/2-28 (West 2016).

¶ 47         As previously discussed, the court was incorrect in focusing on whether or not the State

          could meet the burden of proving Makiah was unfit or unable to care for child in order for it

          to set a permanency goal of private guardianship. In setting the permanency goal at this

          hearing, the Act instructs a reviewing court to consider the minor’s best interest. It appears

          from the court’s comments that it failed to give full consideration to the best interest factors

          outlined in section 2-28. After listening to counsel’s arguments, the court issued its ruling

          and commented that it would not hesitate to set the goal of return home within five months

          had Makiah requested it. Further, the court stated that




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                 “I don’t think I need to remind everyone that there are functioning alcoholics that take

             care of their children in an appropriate way throughout Chicago; and marijuana is, in my

             opinion, a subset of alcohol abuse; and, presumably, there are functioning users of

             marijuana that properly care for their children through the Chicago area.”

          The court made no findings on the record of C.L.’s emotional and mental state, the status of

          the therapy services being offered to Makiah, C.L., and Makiah and C.L. jointly, nor did the

          court reflect upon C.L.’s current placement and the foster family’s intentions.

¶ 48         In our examination of the record, there were multiple references to C.L.’s emotional and

          mental state being stressed due to the continued uncertainty of his permanent placement and

          family. C.L. has been in the system for over five years and has lived with his foster family

          since he was four months old. He attends visitation with his mother four times a week in

          addition to individual and child-parent therapy. However, C.L. has frequently expressed an

          unwillingness to attend, or more specifically, a frustration with being forced to attend the

          visits and therapy sessions. C.L. continues to act out both verbally and physically and the

          testimony and report show that Makiah is unable to soothe or calm C.L. a majority of the

          time. As noted by Smith, C.L. will likely reach a breaking point in the near future as his

          irregular behaviors have continued to escalate despite continued services. Additionally, the

          court offered nothing on the record regarding the impact of continuing the goal of return

          home on C.L.’s emotional and mental state despite the serious warning in Smith’s addendum

          and the agency’s recommendation that return home was not in C.L.’s best interest.

¶ 49         In addition to the lack of progress made from the services offered to C.L., the services

          offered to Makiah have failed to make a substantial impact. As noted in the prepared reports,

          Makiah has gained some skills and knowledge from her participation in services. However,


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          she continues to lack the ability to implement what she has learned in practice with C.L. We

          are not unmindful of the efforts that Makiah has made and recognize that she continues to

          engage in services and pursue an active role in C.L.’s life. Nevertheless, her slow progress

          toward reunification over the last five years, in addition to her failure to achieve return home

          with any of her other sons, raises serious concerns about her ability to be a full-time, single

          parent to C.L.

¶ 50         Furthermore, Makiah has consistently failed to complete random drug screenings even

          after warnings from the court regarding the importance of clean screenings on the outcome of

          her case. Although she has not had significant trouble engaging in therapy, attending

          visitation, or participating in substance abuse or psychiatric evaluations, among other

          assessments, she has only completed four drops in the last reporting period, three of which

          were positive for drugs.

¶ 51         Considering C.L.’s age, his current mental and emotional state, the drawn out time frame

          of this case, which continues to adversely affect C.L., in combination with the relatively

          stunted progress in services, we find that further attempts at achieving return home are not in

          C.L.’s best interest. However, neither would adoption and the related termination of

          Makiah’s parental rights be appropriate in this case where Makiah and C.L. continue to have

          a relationship with one another that is a work in progress. Given the fact that C.L.’s foster

          parents are open to private guardianship and are willing to encourage and foster a

          relationship between their family and Makiah, we find that setting the case on the path

          towards guardianship is ideal.

¶ 52         Moreover, we find Makiah’s argument that private guardianship should be ruled out as a

          permanency goal due to tensions between herself and foster mother unpersuasive. There is no


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          requirement that a private guardian get along well with the minor’s biological parent. A

          guardian is required to ensure that parents have the opportunity to visit the minor (89 Ill.

          Adm. Code 302.405(f)(1) (2008)), which would be best facilitated by a good relationship.

          Shawna’s testimony that she was willing to work on and facilitate a relationship between

          Makiah and C.L. is sufficient to defeat an argument disfavoring guardianship. The DCFS

          criteria for ordering private guardianship focus on the minor’s emotional attachment to the

          relative or foster home caregiver; that caregiver’s willingness to accept legal responsibility

          for the minor and commitment to providing a permanent relationship; and the length of time

          in, and likeliness that the minor will remain in, custody of the State (one year or more). 89 Ill.

          Adm. Code 302.405(c)(1) (2018). Additionally, DCFS considers the wishes of the child’s

          prospective subsidized guardian; the wishes of the child under the age of 14 or the consent of

          the child, if over age 14; the interaction and interrelationship of the child with the prospective

          subsidized guardian; the child’s adjustment to the present home, school, and community; the

          child’s need for stability and continuity or relationship with the prospective subsidized

          guardian; and the mental and physical health of all individuals involved. 89 Ill. Adm. Code

          302.405(d)(1) (2018). There is no indication here that the Koonces and C.L. would be unable

          to satisfy DCFS’s requirements. Thus, private guardianship is an appropriate permanency

          goal and would serve C.L.’s best interest.

¶ 53                                          III. CONCLUSION

¶ 54         For the reasons stated, we reverse the trial court’s order setting the permanency goal of

          return home within 12 months and instruct the court to enter a goal of private guardianship

          with the Koonces.

¶ 55         Reversed and remanded with directions.


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