                              No. 3--05--0582
_________________________________________________________________
filed September 14, 2006.
                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT

                              A.D., 2006

In re RYAN B.,                  ) Appeal from the Circuit Court
                                ) of the 10th Judicial Circuit,
     a Minor                    ) Peoria County, Illinois,
                                )
(The People of the State        )
of Illinois,                    )
                                )
     Petitioner-Appellee,       ) No. 05--JA--22
                                )
     v.                         )
                                )
Dennis E. D.,                   ) Honorable
                                ) David J. Dubicki,
     Respondent-Appellant).     ) Judge, Presiding.
________________________________________________________________

     JUSTICE SLATER delivered the opinion of the court:
________________________________________________________________

     Respondent Dennis E. D. is the father of the minor, Ryan B.

Ryan was found to be neglected by reason of an injurious

environment while living with his mother.   Following a

dispositional hearing, the court found respondent unwilling to

care for the minor and awarded guardianship to the Department of

Children and Family Services (DCFS) with the right to place.

Respondent appeals, arguing that the trial court erred in finding

that he was unwilling to care for the minor and in granting DCFS

the right to place the minor in foster care.   We reverse and

remand.

                           BACKGROUND

     On February 4, 2005, the State filed a petition for wardship
based on several allegations indicating that Ryan's mother, Tina

B., failed to provide a safe and nurturing environment for her

four children.   The State's petition sought an order of

protection requiring Tina to use only DCFS approved caretakers,

to submit to random urine drops or breathalyzer tests, and to

keep unrelated males out of her home.    Although the petition

alleged that the children were unclean and lacked supervision,

they were not removed from Tina's care.    At arraignment

proceedings on February 9, the court entered an order of

protection as requested by the State.    Tina informed the court

that respondent was Ryan's father, and respondent was personally

served with summons on February 18, 2005.

     At the adjudicatory hearing, both Tina and respondent

stipulated that the State could prove its allegations of neglect,

none of which pertained to respondent.    Based on the

stipulations, the court entered an order on June 14, 2005,

adjudicating the minors neglected.

     On July 26, 2005, the cause proceeded to a dispositional
hearing.   DCFS child welfare specialist Mary French testified

that she had taken over the case at the end of May 2005.    A prior

caseworker told her that the fathers of Tina's children were

interested in placement.   However, due to scheduling problems,

French was not able to interview respondent until mid-July.      She

said no scheduled visits had been set up for respondent, but he

was free to visit Ryan by making arrangements with Tina whenever

he could "connect."   French said she thought respondent picked


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Ryan up at Tina's house and took him "places," but she did not

know where.   She said respondent was employed overseas between

January and April 2004.   Respondent told French he had not

visited Ryan after he returned to the United States because he

did not know Tina's whereabouts.       French said Tina told her that

she had lived at her current residence for a year.

     Testifying on his own behalf, respondent said he first

learned of Tina's address when he was served with summons.      He

said he wanted to see Ryan and offered to assume custody of him,

but Tina did not agree to give him up pending resolution of the

neglect proceedings.   Respondent said he had had only one visit

with Ryan since February 2005.    He said he was working the 11

p.m. to 11 a.m. shift at Archer-Daniels-Midland (ADM), where he

had been employed since April 2005.      Prior to that, he had worked

for a short time at an automobile dealership.      He said he rotated

shifts weekly at ADM according to a fixed yearly schedule.      He

was willing and able to arrange either to have visitation with

Ryan or take custody of him if Tina lost custody.      Respondent
acknowledged that he really did not know Ryan, but he loved him

and very much wished to get to know and bond with him.      Tina

testified that she receives child support from respondent through

his employment.

     In addition to the testimony, the court considered a social

history report filed by French.    This report showed that

respondent lived in a two-story, six-bedroom home with his

mother, his sister, and his three older sons from two prior


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marriages.    French noted that respondent's home was located in

reasonable proximity of schools, hospitals and social service

agencies, and that it met basic health and safety standards.

Respondent told French that he had had a brief intimate

relationship with Tina after his second divorce.    Although they

had an agreement not to have children, she became pregnant with

Ryan.   Respondent described himself as a "wonderful father, but a

lousy husband."

     French reported that respondent's three older sons treated

Ryan like their baby brother and wanted to know when Ryan was

coming to live with them.    Respondent told French that Tina had

offered to let him have Ryan for one weekend, but he was working

that weekend and did not return her call.    Respondent believed

that Tina had substance abuse problems.   Respondent told French

that he loved Ryan; he wanted to give Ryan a home and give Tina

visitation.

     At the close of the hearing, the assistant State's Attorney

argued that, even though placement with respondent was "probably
appropriate" for Ryan, the court should find that respondent was

"unwilling" to care for him because respondent had not taken

sufficient steps to build a relationship with Ryan.    She stated,

"I'm sure that he is willing as a parent, but as it stands right

now, that willingness has failed to show itself, not to suggest

that it will not."

     The court, in ruling that respondent was "unwilling" and

that guardianship of Ryan should be awarded to DCFS, noted only


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that respondent "has not exercised relationship &/or regular

visits with minor although no impediments to doing so."     With

regard to placement, the court found that the circumstances

supporting its finding of Tina's unfitness to care for her

children warranted removing Ryan from Tina and granting DCFS the

right to place him.   The court made no finding that placement

with respondent would jeopardize Ryan's health, safety and best

interest.

                         ISSUES AND ANALYSIS

              1.   Unwillingness to Care for the Minor

     On appeal, respondent initially argues that the court's

finding of his "unwillingness" to care for Ryan is contrary to

the manifest weight of the evidence.

     Wardship proceedings touch upon fundamental rights, and the

natural ties between parents and their children may be neither

severed nor frayed on the basis of mere speculation.     In re

Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734 (2004).   Because

biological parents have a superior right of custody to their

children, both parents must be adjudged unfit, unable or

unwilling to care for the minor before placement with DCFS is

authorized.   In re Edward T., 343 Ill. App. 3d 778, 799 N.E.2d
304 (2003).

     The Juvenile Court Act of 1987 (Act) was enacted to secure

care and guidance for minors, and to preserve and strengthen the

minor's family ties whenever possible, removing him from the

custody of his parents only when his safety or welfare, or the


                                  5
protection of the public cannot be adequately safeguarded without

removal.    705 ILCS 405/1--2 (West 2004).   Pursuant to the Act,

the court may commit the minor to DCFS for care and services if a

parent is unwilling to care for, protect, train or discipline the

minor and the court finds "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(1) (West 2004).    The standard of proof for a

circuit court's dispositional findings is a preponderance of the

evidence.    In re April C., 326 Ill. App. 3d 245, 760 N.E.2d 101

(2001).    On review, we must determine whether the trial court's

decision is contrary to the manifest weight of the evidence.

April C., 326 Ill. App. 3d 245, 760 N.E.2d 101.

     In this case, the evidence established that respondent had

not established more than a biological relationship with Ryan

prior to the institution of wardship proceedings.     However, this

fact, standing alone, did not prove that he was unwilling to

provide parental care and guidance for his son.     To the contrary,

the evidence demonstrated that respondent stood ready, willing

and able to care for his son and to provide parental guidance to

him if Tina was found unfit to do so.

     The evidence showed that respondent never lived with Tina

after Ryan was born.    There was no indication that he even was

aware of Ryan's environment prior to the adjudication hearing in

June 2005, when Tina stipulated that the State could prove the

allegations in its petition.    Once he received notice of the


                                  6
proceedings, respondent offered to assume custody of his son to

shield him from the disruption in his life that would ensue if he

were removed from Tina's custody.      Tina declined respondent's

offer.   The evidence also showed that respondent had recently

changed jobs, and he had some difficulty coordinating

arrangements with Tina in order to exercise visitation with Ryan

pending the wardship proceedings.      Nevertheless, respondent

testified that he had a fixed work schedule for the year that

allowed him to spend time with Ryan if regular visits were

scheduled.   Respondent testified that he loved Ryan, and he

wished to take custody of him.

     Under the circumstances, we cannot accept the trial court's

conclusion that respondent's failure to interfere with Tina's

rights as the custodial parent (see Arthur H., 212 Ill. 2d at

473, 819 N.E.2d at 752 (a custodial parent has a right to say

"no" to a non-custodial parent who wishes to remove his child

from her care)) or to exercise unscheduled visitation pending the

wardship proceedings was sufficient proof of his unwillingness to

care for Ryan.   The court's finding was contrary to the manifest

weight of the evidence; accordingly, we reverse the finding of

unwillingness.

                           2.    Placement
     Respondent also contends that the trial court's decision

granting DCFS the right to place Ryan in foster care was contrary

to the manifest weight of the evidence.      Generally, this court

will not reverse a trial court's dispositional determination


                                   7
unless we find that the court abused its discretion by selecting

an inappropriate dispositional order.    In re Taylor B., 359 Ill.

App. 3d 647, 834 N.E.2d 605 (2005).

     Here, the court's dispositional order granted DCFS

guardianship with the right to place the minor based solely on

the court's finding that Tina's home was an injurious environment

for a child.   This finding did not warrant granting DCFS the

right to place Ryan with a third party.    See In re M.K., 271 Ill.

App. 3d 820, 649 N.E.2d 74 (1995) (holding that a child may not

be placed in custody of a third party without good cause or

reason to deny custody to a fit parent).   The evidence before the

court demonstrated that respondent did not live in Tina's home,

and there was no evidence to indicate that respondent's home was

not a safe and nurturing environment for Ryan.   See In re S.S.,
313 Ill. App. 3d 121, 728 N.E.2d 1165 (2000) (an important factor

in wardship decision is whether both parents lived in the home

where the minor was neglected).   Under the circumstances, we hold

that the court's order granting DCFS guardianship with the right

to place was an abuse of discretion.

     In sum, the record establishes that the court did not give

consideration to respondent's superior right to custody of his

own child.   Having found that the court's determination that

respondent was unwilling to provide care and guidance was

erroneous, we reverse as well the wardship order granting DCFS

guardianship with the right to place.

                            CONCLUSION


                                  8
     For the reasons stated, the dispositional order finding

respondent unwilling to care for the minor and granting

guardianship to DCFS with the right to place is vacated, and the

cause is remanded for further dispositional proceedings

consistent with the views expressed herein.

     Order vacated; cause remanded.

     O'BRIEN and LYTTON, J.J., concur.




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