Violetta B., In re

• Court: Appellate Court of Illinois
• Writing for the Court: JIGANTI
• Citation: Violetta B., In re, 568 N.E.2d 1345, 210 Ill.App.3d 521, 154 Ill.Dec. 896 (Ill. App. 1991)
• Decision Date: 07 March 1991
• Docket Number: No. 1-90-2270,1-90-2270
• Parties: , 154 Ill.Dec. 896 In re VIOLETTA B., a minor (Violetta B., a minor, Respondent-Appellant, v. Joe Ann Stanciel, Petitioner-Appellee).

Page 1345

568 N.E.2d 1345

210 Ill.App.3d 521, 154 Ill.Dec. 896

In re VIOLETTA B., a minor (Violetta B., a minor Respondent-Appellant, v. Joe Ann Stanciel Petitioner-Appellee).

No. 1-90-2270.

Appellate Court of Illinois First District, Fourth Division.

March 7, 1991.

Patrick T. Murphy, Michael G. Dsida, Office of the Cook County Public Guardian, Chicago, for respondent-appellant.

Public Defender of Cook County, Chicago (John T. Kennedy, Asst. Public Defender, of counsel), for petitioner-appellee Violetta Burgos, mother of Violetta B.

Beermann, Swerdlove, Woloshin & Barezky, Chicago (Howard A. London, of counsel), for petitioner-appellee.

Presiding Justice JIGANTI delivered the opinion of the court:

This appeal concerns the guardianship and custody of the four-year-old respondent, Violetta B., who was placed in a foster home at the age of four months. Following a finding that the child's natural parents were unable to care for her, Gary T. Morgan, the guardianship administrator of the Illinois Department of Children and Family Services (DCFS), was appointed guardian of the child, and she was placed in the foster care of Betty Rodriguez. The respondent's paternal grandmother, Joe Ann Stanciel, filed a petition seeking custody of the respondent when the respondent was two years old. After a dispositional hearing, the trial court vacated the guardianship of the DCFS and appointed Joe Ann Stanciel as the private guardian and custodian of the respondent. The respondent appeals by her attorney and guardian ad litem Patrick T. Murphy on the grounds that the trial court's order was against the manifest weight of the evidence.

Before relating the facts of this cause, it is helpful to set forth the statutory provision which governed the course of the proceedings below. Section 7(b) of the Children and Family Services Act provides as follows:

"In placing a child under this Act, a close relative who comes forward or can be identified and who goes through an immediate preliminary approval by the Department shall be selected as the preferred care provider. The close relative must then agree to and subsequently participate in and be qualified in a complete review by the Department. For the purpose of this subsection, 'close relative' shall include a parent, grandparent, uncle, aunt, adult brother and adult sister. It shall be the burden of the Department to justify the child's placement elsewhere." Ill.Rev.Stat.1989, ch. 23, par. 5007(b). ¹

Violetta B., commonly known as Minnie, was born on December 4, 1986. At that time, both of her parents were awaiting trial on charges that they had murdered Minnie's four-year-old sister. They were subsequently convicted of murder and are currently serving 60-year prison terms. In January of 1987, the DCFS was given temporary custody of Minnie and she was placed with a friend of the natural mother. This placement proved unsuccessful, and at the age of four months Minnie was placed in the foster home of Betty Rodriguez, where she currently resides.

On January 19, 1989, the court entered a finding that Minnie's natural parents were unfit and appointed Gary T. Morgan, the DCFS guardianship administrator, as Minnie's guardian with the right to place her. On February 28, 1989, when Minnie was two years old, the paternal grandmother Joe Ann Stanciel filed a petition seeking permanent custody of Minnie. Instead of conducting an immediate hearing on the petition, the trial court ordered the DCFS to begin exploring the possibility of placing Minnie with Stanciel. Several status hearings were conducted over the course of the following 15 months.

Supervised visits between Minnie and Stanciel began in May of 1989, when Minnie was approximately two and a half years old. To assist in their efforts to develop a permanent plan for Minnie, the DCFS contracted with Thomas Leo, a family therapist. Leo had several meetings with Minnie, Rodriguez, Stanciel and the man who lived with Stanciel, Purcell Rogers. Minnie's visits with Stanciel eventually became unsupervised and gradually increased in length. At a September 25, 1989, court date, the DCFS indicated to the court that its goal was to place Minnie with Stanciel.

Thomas Leo testified at a status hearing on March 9, 1990, regarding the efforts to place Minnie with Stanciel. Leo stated he believed Stanciel would be an appropriate care giver for Minnie and that the unsupervised visits had been increased to three days in length. The visits went basically well, but there were problems with Minnie missing her foster mother, Betty Rodriguez. Leo recommended that guardianship remain with the DCFS and that visits be gradually increased with a target date of May 1990 for placement with Stanciel. On cross-examination by Stanciel's attorney, Leo was asked for the first time whether he believed that it would be in Minnie's best interest to be removed from the home of her foster mother and placed with Stanciel. The following exchange occurred:

"[Counsel:] Q Do you believe that it is in the best interest of the child that Ms. Stanciel would be given custody of her?

[Leo:] A No, I don't.

[Counsel:] Q What do you believe would be in the interest of the child?

[Leo:] A I believe the best interest of the child is for [sic ] what I am able to see to this point would be to remain with the foster mother?

[Counsel:] Q Do you believe well--

THE COURT: That is not the goal. That is the law. So, I don't think we need to go into that any further. Relative placement is a priority. And that is what we are working for, * * * relative placement."

Counsel for the foster mother then sought to question Leo about his opinion as to Minnie's best interest as follows:

"[Counsel:] Q Mr. Leo, do you believe that relative placement is the greater weight and the best interest of the child?

THE COURT: [Counsel], that is not the issue here.

[Counsel:] I am trying to find--

THE COURT: What he believes makes not [sic ] difference. Let me tell you why. Relative placement is preferred when the child is not with the parents. And that is what is considered the best interest. Placement with the family--"

Leo was asked no further questions at that time concerning his opinion as to what was in the best interest of Minnie. He testified that Minnie seemed to enjoy the visits with Stanciel, but was very happy and anxious to return to Rodriguez and was uncommunicative regarding the next visit. Leo stated that he was directing all of his efforts toward placing Minnie with Stanciel.

Another status hearing was held on May 17, 1990, at which the guardian ad litem for Minnie requested the court to order a bonding assessment. The court granted the request, and Thomas Leo was then asked to testify concerning the status of visitation between Minnie and Stanciel. Leo stated that he made seven reports concerning Minnie's placement, beginning in August of 1989. His observations were that the visits with Stanciel had gone well, that Minnie seemed comfortable and that there were no problems with her eating or sleeping. However, separation from the foster mother had been very difficult. Minnie on occasion hid under her blanket and did not want to visit with Stanciel. Leo stated that Minnie was very strongly attached to Rodriguez and felt that her security was jeopardized by the visits. Leo also stated that he was in favor of a bonding assessment. He recommended an immediate transfer of custody to Stanciel, stating that "if the child is going to the grandmother's home, I believe she is about as prepared as she can be. This continually going back and forth is causing more trauma." Leo was asked on cross-examination whether he believed that it was in Minnie's best interest to be removed from Rodriguez' home and placed with Stanciel. He answered as follows:

"I'll answer this one last time; maybe I can try to put it a little better. Now in an ideal world I believe it would be better for the child to remain where she is, have liberal contacts, etc. with the grandmother, however, this is not an ideal world.

I believe that the plan of D.C.F.S. and the goal and mission is to return the child to the family, and I have been asked to assess the grandmother and find out whether she's a fit and proper parent that the child is able to attach with her to follow under her guidance and direction."

Leo stated that he did not believe that Minnie would be neglected or injured by Stanciel and that she was undergoing the kind of separation trauma often seen in foster children. On cross-examination, the guardian ad litem asked Leo whether he was aware that although placement with a relative is preferred, the DCFS could place the child elsewhere if it is in the child's best interest. The court sustained an objection to the question, stating, "That's not the law."

The hearing on Stanciel's petition for custody began on June 19, 1990. Minnie was three and a half years old at that time. Joe Ann Stanciel was the first witness. She testified that she first learned she was Minnie's grandmother in September or October of 1987. During the following year, she called the DCFS at least once each month to request visits with Minnie, but no one ever returned her calls. Stanciel was 45 years old and has lived in Chicago with Purcell Rogers for the past 17 years. She believed that it was in Minnie's best interest to be placed with her because she could do a good job raising the child. In Stanciel's opinion, Rodriguez is nice, but cannot control Minnie and lets her do what she wants to do. Minnie always cried at the beginning of visits, but would be fine after she calmed down. However, Minnie was "always talking about home." If given custody, Stanciel would allow Minnie to have regular visits with Rodriguez.

Stanciel testified that her visits with Minnie went well until, at Thomas Leo's suggestion, she told the child that she wanted to have her stay for a long, long time. Since then Minnie has refused to go to...