Opinion
4-24-0458 4-24-0459 4-24-0460
07-30-2024
In re M.A., W.A., and A.A., Minors v. Caitlyn R., Respondent-Appellant) (The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County Nos. 22JA411, 22JA412, 22JA538 Honorable Francis M. Martinez, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Lannerd and Vancil concurred in the judgment.
ORDER
STEIGMANN, JUSTICE.
¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed the trial court's judgment terminating respondent's parental rights because no meritorious argument could be raised on appeal.
¶ 2 Respondent, Caitlyn R., is the mother of M.A. (born January 2018), W.A. (born October 2012), and A.A. (born November 2022). In February 2024, the trial court found respondent was an unfit parent under the Adoption Act (see 750 ILCS 50/1 (West 2022)) and that termination of respondent's parental rights was in the minors' best interest.
¶ 3 Respondent timely appealed, and her appointed appellate counsel has now moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). See In re S.M., 314 Ill.App.3d 682, 685-86 (2000) (holding Anders applies to termination of parental rights cases and outlining the procedure that appellate counsel should follow when seeking to withdraw). In his brief, appellate counsel contends this case presents no potentially meritorious issues for review. We agree, grant appellate counsel's motion to withdraw, and affirm the trial court's judgment.
¶ 4 I. BACKGROUND
¶ 5 A. Neglect Proceedings
¶ 6 1. M.A. and W.A.
¶ 7 In August 2022, the State filed petitions for adjudication of wardship, alleging M.A. and W.A. were neglected minors as defined by the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2022)) in that their environment was injurious to their welfare due to respondent's substance abuse. (We note the petitions also contained allegations pertaining to the minors' father, Adrian A. He is not party to this appeal.) The same day the petitions were filed, the trial court conducted a shelter care hearing. Respondent was appointed counsel, waived her right to the shelter care hearing, and agreed the State could meet its burden as to placement. Temporary custody and guardianship was awarded to the Illinois Department of Children and Family Services (DCFS) after a shelter care hearing was conducted for the minors' father.
¶ 8 The trial court conducted an adjudicatory hearing in December 2022. Respondent stipulated to the allegation in the neglect petitions, and an adjudicatory order was entered finding the minors neglected.
¶ 9 In January 2023, the trial court conducted a dispositional hearing. Respondent was not present. The court found respondent was unfit, unwilling, or unable to care for the minors. Guardianship and custody was placed with DCFS.
¶ 10 2. A.A.
¶ 11 In November 2022, A.A. was born. In December 2022, the State filed a petition for adjudication of wardship. The petition alleged A.A. was a neglected minor as defined by the Act in that (1) her environment was injurious to her welfare due to (a) respondent's substance abuse issues and (b) respondent's failure to cure the conditions that required A.A.'s siblings to be in care (id.) and (2) A.A. was born with fentanyl or a metabolite in her urine, blood, or meconium (id. § 2-3(1)(c)). Following a shelter care hearing, temporary custody was awarded to DCFS.
¶ 12 In February 2023, the trial court conducted an adjudicatory hearing. Respondent did not appear. The court adjudicated A.A. neglected. The court continued to the dispositional hearing and found respondent unfit, unwilling, or unable to care for A.A. Guardianship and custody was placed with DCFS.
¶ 13 B. Termination Proceedings
¶ 14 In February 2024, the State filed motions for the termination of respondent's parental rights as to all three minor children. (In December 2023, a fourth minor, J.A., had his goal changed to independence. No appeal was filed in J.A.'s case.)
¶ 15 In the petitions as to M.A. and W.A., the State alleged respondent was an unfit parent as defined in the Adoption Act for (1) failure to make reasonable efforts to correct the conditions that were the basis for the removal of the children during a nine-month period after the adjudication of neglect (750 ILCS 50/1(D)(m)(i) (West 2022)), (2) failure to make reasonable progress towards the return of the children to her care during a nine-month period after the adjudication of neglect (id. § 1(D)(m)(ii)), and (3) failure to maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare (id. § 1(D)(b)). The State alleged nine-month periods of December 15, 2022, to September 15, 2023, and March 22, 2023, to December 22, 2023.
¶ 16 In the petition as to A.A., the State made the same allegations as to respondent's unfitness, but the State only alleged a nine-month period of March 22, 2023, to December 22, 2023.
¶ 17 1. Unfitness
¶ 18 The unfitness hearing commenced on February 29, 2024. Respondent was not present. Respondent's counsel confirmed he had sent her e-mails, but he had not been able to speak with her. The trial court took judicial notice of the neglect petitions for all three minors, the emergency temporary custody order and temporary custody orders, the adjudicatory and dispositional orders, and three permanency review orders, without objection.
¶ 19 Sophia Fiorenza testified she had been the minors' caseworker since November 2022. Fiorenza explained the integrated assessment and service plans, which were admitted into evidence without objection. Under the service plan, respondent was to cooperate with the caseworker, attend visitation, and complete substance abuse services, drug drops, and mental health services, including individual counseling.
¶ 20 Since Fiorenza became the caseworker, respondent only responded to attempted communication "once out of every *** 15 tries." Fiorenza was only able to make contact with respondent if she showed up unannounced to her parent-child visits, which she tried to do every three months, but respondent would refuse to speak with Fiorenza.
¶ 21 Fiorenza had no evidence respondent ever participated in mental health services. Respondent did not complete a mental health evaluation. She reported she was receiving mental health treatment through her family doctor, but she was not willing to sign consent forms for Fiorenza to confirm her participation. Respondent was also never referred for individual counseling because the service required 30 days' sobriety.
¶ 22 Fiorenza stated substance abuse was a concern for respondent, as the minors came into care after multiple positive drug screens. Respondent was required to complete random drug drops at least twice per month. Respondent had not appeared for a drug drop since Fiorenza began managing the case. Fiorenza believed the drug drops prior to the minors coming into care were positive for tetrahydrocannabinol (THC) and cocaine. Respondent was referred to substance abuse services in November 2022. Fiorenza testified she and her supervisor arranged a detox and scheduled a substance abuse assessment with Rosecrance, but respondent did not follow through. Fiorenza referred respondent to Rosecrance and Remedies every time she was able to make contact with her, and respondent could have received services as a walk-in client at any time. During questions from the guardian ad litem, Fiorenza stated A.A. was born exposed to fentanyl and respondent admitted to using fentanyl. Respondent also admitted to being addicted to cocaine at one point.
¶ 23 Visitation was limited to one hour per week. Respondent was consistent with her weekly visits, only missing visits occasionally due to illness. Fiorenza never received a report that respondent appeared under the influence at visits. However, respondent never progressed to unsupervised visits because of the ongoing unaddressed substance abuse concerns.
¶ 24 Fiorenza stated the agency still had concerns about respondent's ability to parent because she had not "fully corrected any of the conditions that led to DCFS becoming involved." ¶ 25 Respondent's attorney did not present any evidence.
¶ 26 The trial court found the State had proved all of the counts in each of the petitions. The court noted the overriding concern of the case "from Day One, was substance abuse" and respondent did not "complete[ ] or even [make] a reasonable attempt at rehabilitation and treatment." The court further noted respondent did not complete "any service[s]" and the "prognosis for reunification" was "poor." As a result, the court found respondent unfit.
¶ 27 2. Best Interest
¶ 28 The trial court proceeded directly to the best interest hearing. The court took judicial notice of the unfitness hearing over no objection.
¶ 29 Fiorenza testified M.A. and A.A. were together in their foster home, and W.A. was in a foster home with his older sibling. The minors' physical needs were met in the foster homes, and the minors were attached to their foster parents. Fiorenza had spoken with M.A. and W.A. about their wishes, and both wished to stay with their respective foster parents. A.A. was too young to communicate her wishes, but she was bonded to her foster parent and looked to her for support. Fiorenza believed the least disruptive placement for the minors would be to remain with their foster parents, and all of the foster parents had expressed a wish to adopt the minors in their home. Fiorenza expressed there was a lot of love and affection in each of the foster homes. On cross-examination, Fiorenza stated the children seemed happy to spend time with respondent at visits and understood she was their mother, but they did not seem overly attached to her.
¶ 30 Respondent's counsel presented no evidence.
¶ 31 The trial court found it was in the best interest of the minors to terminate respondent's parental rights. The court stated, "Clearly, they are bonded into their respective foster placements. They are very well taken care of. They are not only physically but emotionally supported and emotionally stable. They are comfortable." The court terminated the parental rights of respondent to each minor and changed the goal to adoption.
¶ 32 C. Respondent's Appeal
¶ 33 On March 13, 2024, respondent filed notices of appeal in all three cases, and the trial court appointed counsel to represent her on appeal. This court consolidated the appeals for review on appellate counsel's motion. On May 20, 2024, appellate counsel filed a motion to withdraw, asserting that any argument respondent could make on appeal would be without merit. Respondent had until June 10, 2024, to file a response. She has not done so.
¶ 34 II. ANALYSIS
¶ 35 In S.M., 314 Ill.App.3d at 685-86, this court held that counsel seeking to withdraw from representation of a respondent appealing the termination of his or her parental rights must follow the procedure set out in Anders. Under S.M. and Anders, counsel's request to withdraw must" 'be accompanied by a brief referring to anything in the record that might arguably support the appeal.' "Id. at 685 (quoting Anders, 386 U.S. at 744). Counsel must (1) briefly set out the arguments supporting any issues that he could conceivably raise on appeal, (2) explain why he concludes that those arguments are frivolous, and (3) conclude the case presents no viable grounds for appeal. Id. Counsel should review both the unfitness finding and the best interest determination and indicate in the brief that he has done so. Id. at 685-86.
¶ 36 Appellate counsel avers he has reviewed the record on appeal and concluded an appeal in this case would be without arguable merit. Counsel submits it would be frivolous to argue (1) the trial court erred in finding respondent unfit, (2) the court erred in finding it was in the children's best interest to terminate respondent's parental rights, and (3) respondent's counsel provided ineffective assistance. For the reasons that follow, we agree this appeal presents no issues of arguable merit, grant counsel's motion to withdraw, and affirm the court's judgment.
¶ 37 A. The Bifurcated Termination Standard
¶ 38 Under section 2-29(2) of the Juvenile Court Act (705 ILCS 405/2-29(2) (West 2022)), the involuntary termination of parental rights is a two-step process. First, the State must prove by clear and convincing evidence the parent is "unfit," as defined in the Adoption Act. In re DonaldA.G., 221 Ill.2d 234, 244 (2006). If the State proves unfitness, it then must prove by a preponderance of the evidence that termination of parental rights is in the best interest of the children. In re D.T., 212 Ill.2d 347, 363-66 (2004).
¶ 39 B. The Trial Court's Fitness Determination
¶ 40 The State must prove unfitness as defined in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)) by clear and convincing evidence. In re N.G., 2018 IL 121939, ¶ 28. "A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence." In re Gwynne P., 215 Ill.2d 340, 349 (2005). Section 1(D)(m)(ii) of the Adoption Act defines an unfit person as a parent who fails to make "reasonable progress toward the return of the child" during any nine-month period following an adjudication of neglect or abuse. 750 ILCS 50/1(D)(m)(ii) (West 2022). Reasonable progress is an objective review of the steps the parent has taken toward the goal of reunification and examines the demonstrability and quality of those steps. In re Ta. T., 2021 IL App (4th) 200658, ¶ 51. Reasonable progress exists when the trial court can conclude that, in the near future, it will be able to order the children returned to parental custody. Id.
¶ 41 A trial court's finding of parental unfitness will not be reversed unless it is against the manifest weight of the evidence. N.G., 2018 IL 121939, ¶ 29. A decision is against the manifest weight of the evidence when the opposite conclusion is clearly apparent. Id.
¶ 42 In this case, the trial court found respondent unfit for failing to make reasonable progress for all three children for the period of March 22, 2023, to December 22, 2023. The record in this case amply supports the court's finding. Fiorenza testified respondent did not participate in any services beyond attending her visits. The minors came into care because of respondent's positive drug screens, and respondent admitted to using fentanyl and cocaine. Respondent did not participate in any substance abuse services and did not complete any drug drops while Fiorenza managed the case. Although respondent self-reported receiving mental health services through her family doctor, she refused to sign consent forms for Fiorenza to verify such services.
¶ 43 In short, abundant evidence existed that between March 2022 and December 2023, respondent had not made measurable progress such that the children could be returned home in the near future. As such, respondent did not "substantially fulfill her *** obligations under the service plan" and therefore did not make reasonable progress toward the return of the children to her care. 750 ILCS 50/1(D)(m)(ii) (West 2022). Accordingly, we agree counsel would be unable to present a meritorious argument the trial court's finding was against the manifest weight of the evidence.
¶ 44 Because only a single ground is required to support a finding of unfitness (see Gwynne P., 215 Ill.2d at 349), we also agree counsel would be unable to present a meritorious argument on any other ground that the trial court's fitness determination was against the manifest weight of the evidence, and we need not review those grounds.
¶ 45 C. The Trial Court's Best Interest Determination
¶ 46 Once a parent has been found unfit under one or more grounds in the Adoption Act, the State must establish by a preponderance of the evidence it is in the minor's best interest to terminate parental rights. 705 ILCS 405/2-29(2) (West 2022); In re Tyianna J., 2017 IL App (1st) 162306, ¶ 97." 'Proof by a preponderance of the evidence means that the fact at issue *** is rendered more likely than not.'" In re D.D., 2022 IL App (4th) 220257, ¶ 50 (quoting People v. Houar, 365 Ill.App.3d 682, 686 (2006)). Once a parent is found unfit, the focus shifts to the child, and the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life. D.T., 212 Ill.2d at 364.
¶ 47 The Act lists several factors the trial court should consider when making a best interest determination. Those factors, considered in the context of the child's age and developmental needs, include the following:
"(1) the child's physical safety and welfare; (2) the development of the child's identity; (3) the child's background and ties, including familial, cultural, and religious; (4) the child's sense of attachments, including love, security, familiarity, and continuity of affection, and the least-disruptive placement alternative; (5) the child's wishes; (6) the child's community ties; (7) the child's need for permanence, including the need for stability and continuity of relationships with parental figures and siblings; (8) the uniqueness of every family and child; (9) the risks related to substitute care; and (10) the preferences of the persons available to care for the child." In re Jay. H., 395 Ill.App.3d 1063, 1071 (2009) (citing 705 ILCS 405/1-3(4.05) (West 2008)).
This court will not reverse a trial court's finding it was in a minor's best interest to terminate parental rights unless it is against the manifest weight of the evidence. In re Anaya J.G., 403 Ill.App.3d 875, 883 (2010).
¶ 48 Here, after considering the statutory best interest factors and the evidence presented, the trial court concluded that termination of respondent's parental rights was in the best interest of the children. The court noted the "prognosis for [respondent] is [q]uite bleak for any reunification." The children seemed happy to have visits with respondent but did not appear overly bonded to her. Meanwhile, the children were well bonded in their respective foster homes, and both their physical and emotional needs were provided for. M.A. and W.A., who were old enough to express some opinion on where they stayed, wished to remain with their foster families. A.A. was bonded with her foster mother and looked to her for support. The foster parents had all expressed a willingness to adopt the children. Under these circumstances, the facts do not clearly demonstrate the court should have reached the opposite result in making its best interest determination. Accordingly, we agree with counsel that it would be frivolous to argue the court's best interest determination was against the manifest weight of the evidence.
¶ 49 D. Ineffective Assistance of Counsel
¶ 50 Finally, appellate counsel submits it would be frivolous to argue respondent received ineffective assistance of counsel at either the fitness or best interest proceedings when counsel did not present any evidence on her behalf.
¶ 51 A parent has the statutory right to the effective assistance of counsel in termination proceedings. In re Br. M., 2021 IL 125969, ¶ 42. Claims of ineffective assistance of counsel are evaluated under the familiar two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Br. M., 2021 IL 125969, ¶ 43. Under that standard, a parent must show that (1) counsel's performance failed to meet an objective standard of competence and (2) counsel's deficient performance resulted in prejudice to the parent. In re Ch. W., 408 Ill.App.3d 541, 546 (2011). To satisfy the prejudice prong, the parent must prove a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 547.
¶ 52 A reviewing court "may dispose of an ineffective assistance of counsel claim by proceeding directly to the prejudice prong without addressing counsel's performance." People v. Hale, 2013 IL 113140, ¶ 17.
¶ 53 Here, respondent would be unable to demonstrate she was prejudiced by counsel's decisions. The evidence at the unfitness hearing was overwhelming. Respondent did not participate in any services beyond visitation, refused to communicate with her caseworker even when confronted at visitations, and never took any steps to resolve the substance abuse issues which originally brought the minors into care. Respondent was out of contact with counsel and did not appear at the hearing to provide her counsel with any defense to the allegations of unfitness.
¶ 54 The evidence was similarly overwhelming at the best interest hearing. The minors were well bonded with their foster families, well cared for, and well loved. Those old enough to express a preference wished to stay with their foster families. Respondent was not present at the best interest hearing to provide her counsel with evidence of her bond with the minors.
¶ 55 As respondent would not be able to demonstrate she was prejudiced by the lack of a defense presented by counsel, she would not be able to demonstrate counsel was ineffective. See id. Accordingly, we agree with counsel that it would be frivolous to argue trial counsel's ineffectiveness on appeal.
¶ 56 III. CONCLUSION
¶ 57 For the reasons stated, we grant appellate counsel's motion to withdraw and affirm the trial court's judgment.
¶ 58 Affirmed.