Opinion
2-21-0705
03-31-2022
In re A.S., a Minor. v. Billy C. Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County. Nos. 19-JA-246, Honorable Mary Linn Green, Judge, Presiding.
HUTCHINSON JUSTICE delivered the judgment of the court. Justices Hudson and Brennan concurred in the judgment.
ORDER
HUTCHINSON JUSTICE.
¶ 1 Held: The trial court's findings that respondent father was unfit were not against the manifest weight of the evidence.
¶ 2 Respondent, Billy C, appeals from the trial court's judgment finding him unfit and further finding that it was in the best interests of the minor, A.S., to terminate his parental rights. On appeal, respondent challenges only the trial court's unfitness determination; he does not challenge the trial court's best-interests findings. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Respondent is the father of A.S., who was born in 2014. Respondent and A.S.'s mother, J.E. did not live together, and A.S. primarily resided with his mother and two half-siblings. This case concerns only respondent's rights as the father of A.S.; no other parent or child is at issue.
¶ 5 We note that in 2009, prior to the filing of this case, respondent was convicted of manufacture or delivery of less than 15 grams of cocaine (720 ILCS 570/401(c)(2)) and was sentenced to 48 months' imprisonment. Then, in 2017 respondent was again convicted of the same offense, and this time was sentenced to 54 months' imprisonment.
¶ 6 Meanwhile, in May 2019 the Illinois Department of Children and Family Services (DCFS) received a report that J.E. was harboring a fugitive, using and selling drugs, and engaged in prostitution while her children were in the home. The home was found to be dirty and unsafe, the children were often left unsupervised with little to eat, and J.E. used extreme physical violence to discipline the children. After an investigation, J.E. was arrested for child endangerment and DCFS took protective custody of the children.
¶ 7 The State filed a petition alleging that A.S. was a neglected minor. J.E. stipulated that DCFS should have temporary guardianship and custody of A.S. and the State indicated that it would serve respondent as A.S.'s father. The following week, respondent appeared on the petition and acknowledged A.S.'s paternity. The children were then placed with their maternal uncle, A.E., and his fiancée.
¶ 8 In September 2019 an adjudication hearing was held. In a report to the court, the children's caseworker noted that respondent had an incomplete integrated assessment in July 2019. Respondent was found to be inconsistent in keeping in contact with the caseworker and failed to submit to a drug and alcohol screening. In addition, respondent failed to provide information about his residence and who he was living with. Respondent had engaged in two visits with A.S. and had not attempted to schedule another one. A.S.'s uncle and foster father, A.E., expressed concern about respondent's behavior and "criminal history." A.E. and his fiancée supervised visits between respondent and A.S., but respondent was often late for visits, which interfered with A.S. 's bedtime routine. This led to arguments between respondent and A.S.'s foster parents; then, respondent's visitation through A.S.'s foster parents was suspended. At the time, DCFS did not recommend services for respondent, other than to continue with supervised visitation, and to provide complete, updated personal information to the caseworker.
¶ 9 Following a brief hearing, J.E. stipulated that A.S. was neglected, and thus A.S. was made a ward of the court. Then, in November 2019, respondent stipulated that he was dispositionally unfit or unable to parent A.S. Guardianship and custody of A.S. remained with DCFS.
¶ 10 In a report to the court, Christine Jahn, the caseworker from Children's Home and Aid Society of Illinois (CHASI), stated that respondent showed up unannounced at A.S.'s foster home on Christmas. A.S.'s foster parents permitted respondent to have a brief visit, but "only because [A.S.] saw his dad at the door." Jahn stated that respondent would be referred for a substance abuse assessment and a mental health assessment once he completed the requests for information (ROIs) that Jahn had given to respondent. Jahn further stated that she would try to schedule a Child and Family Team Meeting (CFTM) with respondent.
¶ 11 A permanency hearing was held in February 2020; however, respondent did not appear and his attorney could offer no explanation for his absence. The court found that respondent had not made reasonable efforts. He had only spoken to A.S.'s caseworker once since the dispositional hearing and had not visited A.S.
¶ 12 During this hearing, J.E. also informed the court that she was pregnant and was due in May. In addition, as everyone is likely aware, due to the COVID-19 pandemic, "lockdowns" began in March 2020. At that time, DCFS suspended in-person visitation and parent-child visits were held exclusively via videoconferencing.
¶ 13 Respondent failed to appear at the permanency hearing in August 2020. The children's caseworker stated that she had not heard from respondent since December 2019. The State recommended a permanency goal change. Respondent's counsel asked the court to defer any rulings, but counsel noted that he, too, had not had any contact from respondent since December 2019. The trial court found that it was in the best interests of A.S. (and all of J.E.'s other children) to change the permanency goal to substitute care pending the determination of parental rights.
¶ 14 Two days later, the State filed a petition to terminate respondent's parental rights. The petition alleged that respondent was unfit in that he: (1) failed to maintain a reasonable degree of interest, concern, or responsibility for A.S.'s welfare (750 ILCS 50/1 (D)(b) (West 2020)); (2) failed to make reasonable efforts to correct the conditions that caused A.S. to be removed within two specified nine-month periods after adjudication (id. § 1(D)(m)(i)); and (3) failed to make reasonable progress towards A.S.'s return within two specified nine-month periods after adjudication (id. § 1(D) (m) (ii)). The petition sought the appointment of a guardian with the power to consent to A.S.'s adoption.
¶ 15 In an October 2020 report to the court, Jahn note that respondent had asked about visting A.S. Jahn said she would supervise visits, but respondent "did not respond to [her] messages in regards to visits to schedule." Respondent did not appear at an October 2020 status hearing.
¶ 16 On November 12, 2020, trial was scheduled to begin on the State's unfitness petition. Prior to trial, J.E. entered a specific consent for A.S. to be adopted by his foster father.
¶ 17 The State asked the court to take judicial notice of the prior orders in the case and called Jahn to testify. Jahn testified that she was the caseworker for all four minors, including A.S. In regards to respondent, Jahn stated that she had recently received several text messages from respondent, but had not spoken to him since December 2019, when she first became the children's caseworker. Every six months throughout the case, Jahn performed what she called "a diligent search" in the Statewide Automated Child Welfare Information System (SACWIS) to obtain updated contact information for respondent; however, her search never returned any results.
¶ 18 On cross-examination, Jahn explained that when she last spoke to respondent in December 2019, it was to explain that respondent could not attend supervised visits between J.E. and all four of the children. Jahn asked respondent to contact her at a later date after the visit, so that they could set up an individual schedule for respondent. Respondent never contacted Jahn to do so.
¶ 19 When queried by counsel, Jahn stated that "it's not [her] job to chase [respondent]. If he wants visitation, he needs to contact [her]." Jahn further stated that it was not "difficult to get in touch with [her]." Her office phone was linked to her cellular phone, and so calls to her office were automatically forwarded to her cell.
¶ 20 Respondent testified that he was having weekly visitation "all as one" meaning that he would visit A.S. while J.E. was visiting with all four children. Respondent did not know why, but in December 2019, when Jahn became the caseworker, the "all as one" visits were canceled. According to respondent, he attempted to bring "a few items and clothes" for A.S., but Jahn told respondent that "that wasn't going to happen." Jahn told respondent he could drop the items off at CHASI's offices. Respondent stated, however, that Jahn never gave him her contact information.
¶ 21 Nevertheless, according to respondent he left "[a]t least four or five" voicemails for Jahn between December 2019 and March 2020. Respondent then spoke to J.E. about "doing Zoom visits." J.E. gave respondent "some numbers to contact" but he "never got an answer or anything." When later asked to clarify, respondent" [was] not sure" who J.E. told him to contact. Then, during the summer of 2020, respondent "couldn't get a reply" or "any proper answer" out of J.E., who apparently stopped taking his calls. Respondent testified that he came to court in either "August or September" of 2020, and texted Jahn "four or five times" asking about visitation, but nothing was ever scheduled.
¶ 22 On cross-examination, respondent testified that he did not recall stipulating that he was dispositionally unfit, unable, or unwilling to care for A.S. in November 2019. Respondent stated that he came to all of the court dates that he was aware of but missed the August 2020 permanency hearing (at which the goal was changed) because he "overslept." Respondent was unable to identify Jahn in court, but again reiterated that Jahn never gave him her contact information. After the parties rested and delivered closing arguments, the court took the matter under advisement.
¶ 23 In February 2021 respondent appeared before the court with new counsel. Respondent's attorney stated that she had only just met respondent and had not had any contact with him prior to that day. The court issued its findings that respondent was unfit on each of the counts in the State's petition. The court noted that respondent's last documented supervised visit with the minor was in October 2019. The court also noted that while respondent had recently begun to text Jahn, he had no further contact with Jahn or other caseworkers since December 2019.
¶ 24 Respondent's counsel asked for a continuance to give her time to file a motion to reconsider. The State also brought up that respondent "pick[ed] up" a "new criminal charge"- manufacture or distribution of less than 15 grams of cocaine-in case No. 21-CF-99. The court ultimately granted respondent's counsel's request for a continuance.
¶ 25 Respondent's counsel filed a motion to reconsider, which included screenshots of the text messages between respondent and Jahn. Over the next several months, the trial court received briefs and heard arguments over an alleged per se conflict of interest issue, which was not relevant to this appeal.
¶ 26 In June 2021, the trial court denied respondent's motion to reconsider. The court noted that respondent's text messages with Jahn would not have altered its findings on his unfitness. The court found that the text messages showed that he was "[o]bviously" able to contact Jahn about visitation but had, for whatever reason, chosen not to do so before October 2020, which was after the goal change.
¶ 27 The court proceeded to a best-interests hearing. Although respondent does not challenge the court's best-interests findings, we note that the State's evidence showed A.S. was in a loving foster home with his siblings in his uncle's care, and all of A.S.'s needs were being met. The court then found that it was in A.S.'s best interests to terminate respondent's parental rights. Respondent appeals.
¶ 28 II. ANALYSIS
¶ 29 On appeal, respondent first challenges the trial court's unfitness findings. He contends that each was contrary to the evidence or insufficiently proven. We disagree.
¶ 30 At any time after the entry of the dispositional order, the State may file a petition requesting termination of parental rights. 705 ILCS 405/2-13(4) (West 2012); In re Brandon A., 395 Ill.App.3d 224, 234, 334 (2009). Thereafter, the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2018)) provides for the termination of parental rights in a two-step process. "First, there must be a showing, based on clear and convincing evidence, that the parent is 'unfit,' as that term is defined in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 1998))." In re C. W., 199 Ill.2d 198, 210 (2002). After finding the parent unfit, the court next considers whether it is in the best interests of the child to terminate parental rights. Id. We will reverse an unfitness finding only if the trial court's determination was against the manifest weight of the evidence. In re Nevaeh R., 2017 IL App (2d) 170229, ¶ 17.
¶ 31 Here, as the State notes, although there were three counts, respondent was actually found unfit on five grounds as there were two overlapping time periods for each of the progress and efforts counts. As the State also notes, we may affirm a finding of unfitness based on any single count. In re J.L., 236 Ill.2d 329, 340 (2010); see also In re Donald A.G., 221 Ill.2d 234, 244 (2006); In re C. W., 199 Ill.2d 198, 210 (2002) (any one ground, properly proven, is sufficient to enter a finding of parental unfitness). Although respondent challenges all of the court's unfitness findings, we will focus on count I of the petition: that respondent failed to demonstrate a reasonable degree of interest, concern, or responsibility for A.S.'s welfare. See 750 ILCS 50/1 (D)(b).
¶ 32 Because the language used in this ground for unfitness is in the disjunctive, "any one of the three individual elements, i.e., interest or concern or responsibility, may be considered by itself as a basis for unfitness." In re B'Yata I, 2013 Ill.App.2d 130558, ¶ 31 (emphasis in original). When determining whether a parent has shown a reasonable degree of interest, concern, or responsibility for a minor's welfare, a court considers "the parent's efforts to visit and maintain contact with the child as well as other indicia, such as inquiries into the child's welfare. Id. Courts may also consider whether a parent completed necessary service plans in making such a determination. Id. The interest, concern, or responsibility "must be objectively reasonable," and courts must focus on the parent's efforts that show interest in the child's wellbeing, and not on his or her successes. Id.
¶ 33 Respondent points out that he was not ordered to obtain services pursuant to a traditional service plan, and that Jahn prevented him from visiting with A.S. or giving A.S. Christmas presents in 2019. He contends that he did all he could under the circumstances. We disagree.
¶ 34 As our supreme court has pointed out, subsection (b) "contains no state of mind requirement, nor does it carve out an exception for faultless failure." In re M.I., 2016 IL 120232, ¶ 26. Circumstances such as difficulty in obtaining transportation, poverty, actions and statements of others that hinder visitation, and the need to resolve other life issues are relevant. In re Adoption of Syck, 138 Ill.2d 255, 278-79 (1990). However, a parent is not fit merely because he or she has demonstrated some interest or affection toward the child. In re Jaron Z., 348 Ill.App.. 3d 239, 259 (2004). Rather, the degree of interest, concern, and responsibility must be objectively reasonable. Daphnie E., 368 Ill.App.3d at 1064.
¶ 35 As the trial court noted, respondent's initial visits with A.S. through his foster family were canceled due to respondent being late for visits. Accordingly, respondent's last recorded visit with A.S. was in October 2019. Jahn testified that it would be inappropriate for respondent to attend J.E.'s visits with all of her children and encouraged respondent to contact her about scheduling visitation. Jahn testified that respondent never followed up with her, and the trial court's ruling clearly indicates that it credited Jahn's testimony over respondent's.
¶ 36 We also reject respondent's reliance on the fact that his integrated assessment recommended no services. We have carefully examined the record and it is clear that no services were ordered because respondent's integrated assessment was incomplete. Respondent never signed the ROI paperwork to authorize DCFS to examine his personal information, and respondent never informed DCFS about his residence and who he was living with. We note, too, that based on his prior convictions, respondent was a felon and who was at least familiar with cocaine, yet never submitted to drug and alcohol testing in connection with this child-welfare case. Without that essential information about respondent's health, living situation, character, and other possible needs, it would have been irresponsible to grant respondent even supervised visits with A.S., let alone permit him to continue to attend J.E.'s visits with all of her children.
¶ 37 Furthermore," [i]f personal visits with the child are somehow impractical, letters, telephone calls, and gifts to the child or those caring for the child may demonstrate a reasonable degree of concern, interest and responsibility, depending upon the content, tone, and frequency of those contacts under the circumstances. [Citation.]" (Internal quotation marks omitted.) In re M.I., 2016 IL 120232, ¶ 26. Here, as the trial court noted, A.S. remained in the same foster home since his initial placement. Respondent was aware of the address; he visited with A.S. in that home. Nevertheless, there is no evidence respondent sent any letters or gifts, called to speak to A.S., or even inquired about A.S.'s welfare.
¶ 38 We agree with the trial court that respondent's degree of interest, concern, and responsibility for A.S.'s welfare was objectively unreasonable and insufficient. Thus, we affirm the court's finding of unfitness on count I. Although we need not discuss unfitness further (see In re C. W., 199 Ill.2d at 210), we note that the record amply supports the trial court's findings on both nine-month periods in each of counts II and III. In short, respondent's unfitness was proved through clear and convincing evidence.
¶ 39 Respondent's last contention is that his trial counsel was ineffective for failing to "impeach" Jahn with screenshots of respondent's text messages with her. Even though the right to counsel in abuse and neglect proceedings is derived from statutes, it has been repeatedly held that indigent parents are entitled to effective assistance. See In re Br.M., 2021 IL 125969, ¶ 41; In re Zy.D., 2021 IL App (2d) 200629, ¶ 11. Such claims require that respondent show deficient performance by counsel and resulting prejudice. In re Br.M., 2021 IL 125969, ¶ 43 (citing Strickland v. Washington, 466 U.S. 668 (1984)). To show deficient performance, respondent "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Strickland, 466 U.S. at 689.
¶ 40 We disagree with respondent that he is the victim of counsel's substandard performance. At the unfitness hearing, Jahn testified that respondent had only recently begun to text her, but had last spoken with her in December 2019. The text messages appended to respondent's motion to reconsider cover the period of time from September 2020 to February 2021, which again was after A.S.'s permanency goal was changed. Contrary to respondent's argument, the text messages did not "impeach" Jahn; they were cumulative of her testimony. Moreover, as the trial court pointed out, it would not necessarily have been in respondent's strategic interests for counsel to have the messages admitted. The messages themselves were a two-way street: they indicated that respondent could have contacted Jahn much earlier to attempt to schedule visitation, which belied the assertion that it was Jahn, and not respondent, who was responsible for the lack of visitation. The text messages, had they been admitted, would have bolstered the State's case and contradicted respondent's strategy at the unfitness hearing. We can find no fault in trial counsel's sound strategic choice not to seek their introduction.
¶ 41 III. CONCLUSION
¶ 42 The trial court's unfitness findings were amply supported by the evidence, and respondent was not denied effective assistance of counsel. Accordingly, we affirm the judgment of the circuit court of Winnebago County which found respondent unfit and terminated his parental rights.
¶ 43 Affirmed.