Dana Johnson was born Dec. 8, 1990, addicted in utero to cocaine. Her mother, Sharon Johnson, was a junkie who had given birth to three coke babies in four years. Her father, Tyler Smith, was a retired truck driver living on social security.
In January, Dana was sent straight from the hospital to a foster family. Her mother was unable to care for her and eventually surrendered her parental rights. But Smith, who had custody of a 2-year-old son he had fathered with another woman, said he wanted his daughter. The Department of Children and Family Services contracted with Catholic Social Services, which advised weekly visits as a step toward custody.
Every six months, Smith, who lived in Rockford, was presented with a service plan by CSS outlining specific tasks: Enroll in parenting classes, submit to a drug assessment, visit Dana regularly. He was told he could call CSS collect to arrange the visits and that Dana, who was living in Peoria, could be brought to him. He was also told that his parental rights diminished the more time he allowed to pass without showing any interest.
Between November, 1991 and November, 1992, there were five visits between father and daughter. They didn’t go well. Smith’s home was dirty and crawling with roaches. In his report, the case worker noted that Smith was “extremely unclean” and had “a foul odor.” On one occassion it was noted that his breath smelled of alcohol. Dana would run from him. Smith cut off one visit after five minutes because the child cried when he approached her. He called her “Diana.”
The case worker sent Smith a number of letters reminding him of his responsibilties. Finally, in a letter dated Oct. 29, 1992, he told him that because no bonding had taken place and because Dana had been living with her foster parents for nearly two years, it would be in her best interests to be adopted by her foster family. The letter asked Smith to respond. It took him more than a month to do so. He said he’d been sick.
Smith visited with Dana once in December 1992, once in May 1993, and once in October 1993. In all, he saw her less than a dozen times in her first three years. In March, 1994, after a review of the case initiated by CSS and the public guardian’s office, the state’s attorney’s office filed a petition alleging that Smith was an unfit parent who “failed to maintain a reasonable degree of interest, concern or responsiblity” as to Dana’s welfare.
Her fate was now in the hands of Juvenile Court. Her case would be one of the nearly 40,000 that it handles a year.
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The Juvenile Court Building, on the corner of Ogden Avenue and Roosevelt Road, opened in January, 1994. It’s low and white, with lots of windows. Its 14 courtrooms have anterooms with child-sized furniture, toys and books. The atmosphere is cheerful. The children’s stories are depressing. Dana’s case had been assigned to Courtroom K, where custody of two little boys was being decided. When they lived with their mother, they were repeatedly whipped, scratched and burned.
“It’s hard to believe the way people treat children,” said Cook County Circuit Court Judge Lee Preston. “The most frustrating part is when the parents don’t even know they’ve done anything wrong. They’re coming from a cycle of child abuse that may be generations old. They look like they’re thinking, `What’s the problem?’ “
Preston, 51, who has two grown children, was sworn in in December, 1994. He had been an Illinois state representative from the 17th District for 15 years. In Springfield, he was an advocate for children’s rights, and after he was elected to the bench he asked to be assigned to Juvenile Court.
“Almost everyone I talked to said I was crazy. They said, `You’ll have burnout. The longer you’re there, the greater the chance your name will be on the front page because some child has been abused or killed in a setting he was placed in by your order. And whether it’s your fault won’t make any difference to the reporter who’s covering the story.’ If something like that happens two weeks before a retention election, I’m a private citizen. But this is where my heart is and this is where I wanted to go. For a long time juvenile court was a dumping ground. I guess I volunteered for the dumping ground.”
Preston’s office is filled with toys and magic tricks. He bought them to make court seem less traumatic, but they don’t always work. “I’ve had kids in here, who, when you hand them a toy, they hand it back to you because they don’t know what it is to be given anything.”
On Feb. 8, Dana Johnson came to court with her foster family, and Judge Preston made a bouquet of flowers appear.
“How did you do that?” she asked.
“Magic,” he told the lively, well-dressed little girl. He gave her a stuffed bunny to take home. But on Feb. 9 and 10 when her future was being decided, she was not there. Among the dozen people in the courtroom were the judge, assistant state’s attorney Rickey Jones, assistant public guardian Laura Cheesbrough, and Charisse Miller-Hurst, an assistant public defender representing Tyler Smith. He was not present.
“That’s typical where fathers are concerned,” said Cheesbrough, who has been with the public guardian’s office for three years.
“He’s probably been beaten down by the system,” said Miller-Hurst. “He’s given up.”
The atmosphere in the courtroom is formal: “Good morning,” “Good afternoon.” Preston refers to everyone as Mr. or Ms., even though they see each other nearly every day. This is serious work. The children who come here have been abused, neglected or abandoned. This is termination court where parents can lose their children forever.
But before that happens, parents are given an opportunity to rehabilitate themselves. If they’re addicted, they’re offered counseling; if they’re abusive, there’s family therapy. The state, through DCFS, provides the services. “Hopefully the parents will take advantage of them,” Preston said. When they don’t and foster parents want to adopt the child, the case comes here. Many are uncontested. The parents are unknown or they can’t be found or they don’t show up.
“They don’t even care enough to come and fight,” said Preston.
But some do fight. Then, only if they’re found “unfit” through “clear and convincing evidence,” are their parental rights terminated.
” `Clear and convincing’ is a very high standard and it should be,” Preston said. “Taking away someone’s child, well, there’s very little that’s more serious.
“But, if the state has proved its case through `clear and convincing evidence,’ then I don’t lose sleep enforcing it. You’re dealing with children who have been in the system a long time–they’re wards of the court which I interpret to mean they’re my kids, my responsibility–and if they’re getting a chance at a better life, then by God, I smile and say, `Finally!’ “
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The state’s main witness against Tyler Smith was Tom Theleritis of Catholic Social Services. He was assigned to the case in October 1991. As a social worker, he says his “ultimate goal” is “to reunite natural parents with their children.”
Under questioning by assistant state’s attorney Jones, Theleritis testified that Smith received a string of unsatisfactory ratings on his service plans. He never signed up for parenting classes or drug assessment. He never sent gifts, food, cards or money or acknowledged Dana’s birthdays. He visited infrequently. When he did see her, he didn’t know how to act around her. When she cried, “he became frustrated.”
Public defender Miller-Hurst mounted an aggressive defense on behalf of her missing client. She was formerly an attorney with DCFS and switched because she found herself sympathizing with the parents. “I thought they were the underdogs in most situations,” she says. She points out that Smith never denied paternity, always wanted custody of his child, did, on one occassion, clean his house, has no history of drug or alcohol abuse and is satisfactorily raising his now-7-year-old son.
But the heart of her defense revolved around the issue of referrals. She asked Theleritis: “Did you personally make any referrals for the father either to get a drug assessment done or refer him for parenting classes?” The answer was no. Theleritis didn’t personally make any referrals, but in a letter, he referred Smith to Cornerstone, a social agency in Rockford, and provided him with a phone number, 815-555-1212.
In a style that would make O.J. Simpson defense attorney Barry Scheck proud, she asked: “Mr. Theleritis, would it surprise you to know that that is a directory assistance number?”
And then, “Mr. Theleritis would it also surprise you to know that Cornerstone is a church and that they do not offer parenting skills classes, nor do they offer drug assessment?”
These things did surprise the case worker. So did the fact that the number for another agency, Swedish-American Hospital, was also invalid. She got Theleritis to agree that Smith’s son “appeared healthy and well cared for” and that on one occasion, Smith himself appeared “somewhat cleaner.”
In redirect examination, Jones, who has spent his five years in the state’s attorney’s office in juvenile court, asked Theleritis, “Do you expect the parent to take some initiative in the planning for the return of their child?” “Yes,” Theleritis answered, “we do.”
In her redirect, Miller-Hurst asked, “Aren’t you as a social service professional expected to also put forth some initiative in referring these parents for required services?” “Yes,” said Theleritis.
This case was not about what was best for Dana. She was happy with her foster family, the only family she has ever known. Tearing her away would be heart-breaking.
But the best interests of the child are not the priority of the law. First must be decided whether the natural parents are fit. This is what has led the Illinois Surpeme Court to uphold the rights of Baby Richard’s natural father. Judge Preston had to decide if Tyler Smith was fit.
“There are a few issues I’d like to be educated on,” he told the attorneys. He asked for briefs on (1) the extent to which the failure of the state to make referrals for a parent impacts on a finding of parental unfitness and (2) the extent a parent is responsible for fulfilling his required tasks even if the state has not made sufficient referrals.
The brief offered by the state’s attorney stated the obligation of DCFS is “not to interfere with parents’ efforts to visit minors or regain custody” and that “the obligation of the parents is to make efforts to visit and regain custody.” The brief provided by the public guardian stated an unfitness finding is only impacted “when the agency has actually frustrated clear attempts by the parent to carry out his or her responsiblities toward reunification.”
The brief provided by the public defender argued that “DCFS be held accountable for offering and providing the family with any necessary services they place as requirements in a service plan. . . . At the very least, they are obligated by federal law to make the necessary referrals to the appropriate service agencies.”
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On April 18, Judge Preston issued his decision. He acknowledged that the referrals offered to Smith “may have been inadequate.” Nonetheless, Smith through “clear and convincing evidence” failed to demonstrate “a reasonable degree of interest, concern or responsibility” toward his child. He found him “unfit,” and Dana Johnson is one step closer to being adopted.
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Lee Preston’s father is also a Cook County judge. Judge Paul Preston sits in housing court. Before Lee Preston was sworn in, his father bought him a robe and gave him some advice: “He told me to realize that I’m here to make decisions, not to internalize the problems. That’s very difficult when you’re hearing evidence of a child that’s been abused. But my job is to listen, not fall apart.”
