J.M., In re

• Decision Date: 20 May 1993
• Docket Number: No. 2-92-0737,2-92-0737
• Parties: , 184 Ill.Dec. 754 In re J.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.M. et al., Respondents-Appellants).
• Court: United States Appellate Court of Illinois

Page 1346

613 N.E.2d 1346

245 Ill.App.3d 909, 184 Ill.Dec. 754

In re J.M., a Minor (The People of the State of Illinois Petitioner-Appellee, v. M.M. et al Respondents-Appellants).

No. 2-92-0737.

Appellate Court of Illinois,

Second District.

May 20, 1993.

Jose M. Diokno, P.C., Jose Miguel Diokno, argued, Glen Ellyn, for Michael Moliere.

James E. Ryan, Du Page County State's Atty., Wheaton, William L. Browers, Deputy Director, Lawrence M. Bauer, argued, State's Attorneys Appellate Prosecutor, Elgin, for People.

Fawell & Fawell, Jeffrey B. Fawell, argued, Wheaton, Guardian Ad Litem, for J.M., a minor.

Justice BOWMAN delivered the opinion of the court:

Respondent parents, M.M. (adoptive father), and F.M. (adoptive mother), appeal from orders of the circuit court of Du Page County (1) finding their adoptive child, respondent minor, J.M., neglected under the Juvenile Court Act of 1987 (Ill.Rev.Stat.1991, ch. 37, par. 802-3), (2) appointing a guardian without the power to consent to adoption, and (3) requiring respondent parents to cooperate with any counselling program defined by J.M.'s caretaker including at least bimonthly visitation. The respondent parents assert on appeal that the trial court erred in (1) not entering an order requiring the State to prosecute a supplemental petition alleging J.M. dependent, (2) denying the respondent parents' section 2-619 (Ill.Rev.Stat.1991, ch. 110, par. 2-619) motion to dismiss the State's petition alleging neglect, (3) finding J.M. a neglected child, (4) finding J.M. was not a dependent child, (5) appointing for J.M. a guardian without the power to consent to adoption, and (6) entering an order requiring the respondent parents to cooperate in a counselling program including bimonthly visitation at the institution where J.M. resides. We affirm.

On September 12, 1991, the State's Attorney for Du Page County filed a petition for adjudication of wardship on behalf of J.M., alleging that J.M. was a neglected minor in that his parents did not provide the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor's well-being, or other care necessary for his well-being, including adequate food, clothing and shelter in violation of section 2-3(1) of the Juvenile Court Act of 1987 (the Act) (Ill.Rev.Stat.1991, ch. 37, par. 802-3(1)). J.M.'s adoptive parents were named as respondents on the petition. Department of Children and Family Services (DCFS) was authorized to find suitable placement for J.M. Ultimately, J.M. was placed at a children's hospital in Urbana. The trial court appointed a guardian ad litem to represent the minor. On October 2, 1991, respondent parents moved for leave to file a supplemental petition alleging that J.M. was a dependent minor as defined by section 2-4(1)(d) of the Act. This petition alleged that the respondent parents wished to be relieved of all residual parental rights and responsibilities, guardianship and custody over the minor, and had "good cause" for their wish to be so relieved. Ill.Rev.Stat.1991, ch. 37, par. 802-4(1)(d).

Hearings on those two petitions were held. Respondent parents filed a motion to dismiss the neglect petition on the basis that the claim asserted against the parents was barred by affirmative matter as set forth in affidavits pursuant to section 2-619(a)(9) of the Civil Practice Law. (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a)(9).) That motion was denied. In addressing the merits of the petitions, the trial court decided first to hear testimony on the neglect petition, and then to hear testimony on the dependency petition, although the court acknowledged that some of the evidence that would be presented would apply to both petitions. Regarding the neglect petition, the State called the father as a witness, while respondent parents introduced the testimony of a child psychiatrist and two principals of the schools that J.M. attended while living with respondent parents. As regards the dependency petition, the State put on a caseworker from Catholic Charities, while respondent parents called a caseworker from DCFS, and then both parents testified themselves. The testimony revealed the following facts.

Respondent parents were residents of Wheaton and had one natural son of their own, G.M., who was 11 years old at the time of the hearing. In 1989 they discussed adopting another child. Respondent parents were in contact with Catholic Charities about adopting a child close in age to G.M. Since they were interested in a child older than four years old, it would be termed a special-needs adoption. Through their Catholic Charities contact, they became aware that J.M. was nine years old, a candidate for adoption and was located in a foster home in Decatur. DCFS provided a history of J.M.'s family so that the respondent parents could become familiar with the case. Respondent parents were made aware that J.M.'s biological mother neglected him, his mother's paramours abused him, and he had been in several foster homes. J.M. had a history of not sustaining good relationships with women and with children his age and seemed only to bond well with adult males. Respondent parents indicated that they would like to meet J.M., and so a meeting was set up at the DCFS office in Decatur in October 1989. The interaction between J.M. and the M. family was positive, so the visits continued. While respondent parents felt that there were some minor problems in J.M.'s behavior and habits, they felt that with time he could adapt to their family. Eventually, J.M. moved into the respondent parents' home early in November 1989. No adoption had been finalized because an adoption may be finalized only after a six-month period of having the child in the home.

Prior to J.M.'s moving in with them, respondent parents participated in a full-day seminar on adopting special-needs children. J.M. had been previously diagnosed as having attention-deficit disorder and was taking Ritalin when he moved into respondent parents' home. Without consulting a physician, although at the suggestion of a social worker, respondent parents took him off the medication. J.M. had been getting counselling prior to moving in with them, but on the recommendation of a social worker at the Decatur Mental Health Hospital, respondent parents decided not to send him to a counselor since he would have so many new things to adjust to in his move to Wheaton. Prior to his moving in with them, the adoptive mother contacted the principal of the school J.M. would attend and arranged for J.M. to get special education at the school. She made sure he had an individual education program (IEP) which would permit him to be taken into the special education program at the school. The respondent parents were interested in how J.M. did at the school and were cooperative with the school. In March 1990, the school psychologist did an evaluation of J.M. which was later used for an annual review done by a committee at the school. The respondent parents were made aware of the results of the evaluation. The evaluation revealed perceptual disability, confusion, and impulsivity. Furthermore , J.M. had achievement scores far below his age-appropriate level of functioning. The evaluation also revealed that J.M. had an attention-deficit disorder and social behavioral difficulties. The school suggested that J.M. should see a neurologist. Although they could not contact a neurologist who participated with the Department of Public Aid (DPA) in the Wheaton area, the respondent parents did take J.M. to a neurologist at their own expense and complied with her recommendations. It was decided at the annual review that J.M. should be transferred to a school which had a more appropriate special education program for him.

Respondent parents had been spending a substantial amount of time with J.M. He had to be taught how to bathe himself and how to groom himself. Respondent parents also taught him how to tell time, how to tie his shoes, and how to ride a bicycle. His adoptive mother spent at least a couple of hours each day helping him with homework, math, or reading. There were times J.M. and G.M. got along and played as brothers for hours, and other times that they did not get along. J.M. had problems getting along with his peers; he would try to hold hands with his peers or hug them, as he sought approval, and this alienated other children. At times, he was very withdrawn and would stay in his room. At this time, he seemed to respond to both parents. Respondent parents seemed to think any problems he was having were "adjustment" problems due to all the recent changes in his life.

Respondent parents secured a judgment of adoption of J.M. on May 4, 1990, in Cook County. Respondent parents had an agreement with the State that services for J.M. would be available through DPA. During the summer of 1990, J.M. attended a special education summer program for half-day sessions during one month of the summer. The remainder of the summer, he participated in another academic program which consisted of one-hour sessions, five days a week. He was showing progress in his reading level and math acumen from the time when he first moved in with the M. family. His adoptive father indicated that he thought that J.M. was adjusting to life with his new family.

The family took vacations together. For Christmas 1989, all four of the M.'s went for two weeks to New Orleans to visit family, an annual trip made by the M. family. J.M. was welcomed by his extended family, got plenty of gifts, and seemed to enjoy meeting everyone. In the summer of 1990, the family flew to Florida and went to Disney World for a week. There, J.M. presented some minor disciplinary problems. Around that time, it was becoming evident that J.M. was more interested in talking to his adoptive father than to his adoptive brother or adoptive mother.

For the school year 1990...