Opinion
No. 2-17-0349
09-11-2017
In re J.C., a Minor. (The People of the State of Illinois, Petitioner-Appellee, v., Kyante J.-W., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Winnebago County. No. 2014-JA-185 Honorable Francis Martinez, Judge, Presiding. JUSTICE BIRKETT delivered the judgment of the court.
Justices Burke and Spence concurred in the judgment.
ORDER
¶ 1 Held: The trial court's order finding respondent to be an unfit parent for failing to make reasonable progress was against the manifest weight of the evidence when it based that decision on the mere fact that respondent was incarcerated. The court also erred in finding that respondent failed to make reasonable progress when he did not take parenting classes when parenting classes were not available at the prison where respondent was located. Finally, the record reflected that respondent substantially complied with the requirements in his service plan. Therefore, we reversed the decision of the trial court finding respondent to be an unfit parent. ¶ 2 Respondent-father Kyante J.-W., appeals the trial court's orders finding him to be an unfit parent and subsequently terminating his parental rights. For the following reasons, we reverse the trial court's finding of unfitness.
¶ 3 I. BACKGROUND
¶ 4 The record reflects that on May 15, 2014, the State filed a two count neglect petition alleging that J.C., a four-month-old male child, was neglected because his environment was injurious to his welfare in that his mother: (1) engaged in domestic violence in J.C.'s presence; and (2) dropped J.C. while she was engaged in domestic violence, in violation of section 2-3(1)(b) of the Juvenile Court Act of 1987. 705 ILCS 405/2-3(1)(b) (West 2014). A temporary shelter care hearing was held two days later. At that hearing, Katie C., J.C.'s mother, testified that respondent was the minor's father, that she was not married to respondent when J.C. was born, and he did not sign the birth certificate. Katie also said that respondent was currently incarcerated. After hearing testimony from an investigator from the Department of Children and Family Services (DCFS), the trial court found probable cause of neglect and entered a temporary custody order appointing DCFS' guardianship administrator as temporary guardian with discretion to place J.C. ¶ 5 On July 8, 2014, the Children's Home & Aid Society filed a report with the court. A pre-trial hearing was held the next day. At the hearing, a DCFS caseworker told the trial court that she had received the paternity tests and that there was a 99.98 percent change that respondent was J.C.'s father. The trial court ordered that respondent be brought into court for the adjudicatory hearing on September 4, 2014. ¶ 6 At the adjudicatory hearing, respondent indicated that he was willing to accept the results of the paternity test and he was adjudicated J.C.'s father. Respondent and Katie stipulated to the facts in count I of the neglect petition and count II of the petition was dismissed. A Children's Home & Aid Society report written by caseworker Holly Babcock was filed the same day. With regard to respondent, the report contained the following entry:
"[Respondent] is currently incarcerated at Vandalia Correctional Center in Vandalia, IL. It has been confirmed via paternity testing that [respondent] is the biological father of J.C. This worker received a letter from [respondent] informing this worker he is awaiting to be enrolled in a GED program at Vandalia, however, will not be eligible to enroll in any programs until 4 months prior to parole, which is projected for November of 2016. Due to [respondent's] incarceration he was not available to participate in the initial integrated assessment. [Respondent] has been mailed the integrated assessment questionnaire packet to be filled out. [Respondent] has been regularly contacting this worker via letters addressing any questions or concerns. [Respondent] regularly expresses interest in J.C.'s well-being."¶ 7 A dispositional hearing was set for October 23, 2014. The hearing was continued to November 20, but respondent waived his right to a dispositional hearing and his presence at the next court date was excused. A report from Babcock filed on October 23, 2014, indicated that respondent had filled out the integrated assessment to the best of his ability and returned it to Babcock. Babcock was currently creating respondent's service plan. Her recommendations included having respondent comply with all Department of Corrections (DOC) policies, procedures and regulations, maintain monthly contact with the agency via mail, ask about J.C.'s well-being, enroll in and complete all therapeutic, academic and vocational services offered by the DOC, and participate in individual counseling once released from the DOC. Babcock reported that respondent had been regularly contacting her via letters addressing any questions or concerns that he had, and that he had also been expressing an interest in J.C.'s well-being. ¶ 8 On November 20, 2014, a dispositional order was entered. Babcock also filed another report. With regard to respondent, the wording of that report was identical to the wording in the October 23, 2014, report. ¶ 9 On January 29, 2015, the trial court held a consolidated hearing on this case and a new case involving J.C.'s mother and her new baby, M.A. The cases were continued to April 2, 2015, for a pre-trial conference in M.A.'s case and a permanency review hearing in the instant case. Babcock filed another report that day as well. Her report indicated that she had created a service plan, but that service participation was minimal due to respondent's incarceration. She gave respondent satisfactory grades in all areas of his service plan except the requirement that respondent enroll in and complete all therapeutic, academic, and vocational services offered by the DOC. Babcock noted that respondent had asked about taking parenting classes, but she said that the prison where respondent was located did not offer parenting classes. Finally, Babcock noted that respondent had been regularly contacting her through letters asking questions, and that he expressed an interest in J.C.'s well being. ¶ 10 At the permanency hearing on April 2, 2015, the State indicated that it would be standing on Babcock's report and asked for a finding that DCFS and its contracting agencies had made reasonable efforts in this case and that J.C.'s placement was necessary and appropriate. The assistant state's attorney then said:
"As far as [respondent], we would, consistent with the report, be asking for a finding that he has made reasonable efforts. He remains in DOC custody. He has done what he can while incarcerated, including completing his portion of the integrated assessment, maintaining contact with the agency, and inquiring as to what services his facility offers. I understand that there will be further follow-up with him. He appears willing to engage. The efforts determination is more of a subjective standard, whereas
progress is more of an objective standard. And under the circumstances, I think it's clear that [respondent] has made what efforts he can.¶ 11 The trial court found that respondent had made reasonable efforts and that it was not currently making a reasonable progress finding. Another permanency review hearing was set for September 15, 2015. ¶ 12 Children's Home & Aid Society filed another report on May 21, 2015. In it, Babcock wrote that respondent maintained communication with her via letters and asked about J.C.'s well-being often. Respondent also asked for pictures, and Babcock sent pictures of J.C. to him. Finally, Babcock recommended that respondent participate in any services available to him at the DOC, and she noted that she had mailed him a list of programs that were available. Another report was filed on September 15, 2015. In that report, Babcock noted that respondent had enrolled in GED courses through the DOC and provided a program/assignment history to Babcock. Again, Babcock noted that respondent had been in contact with her via letters, and he continued to express an interest in J.C.'s well-being often. ¶ 13 At the permanency hearing on September 15, 2015, the trial court made a finding that respondent had made reasonable efforts and it again deferred a finding of progress. Respondent's case was continued until February 10, 2016. ¶ 14 At a hearing on February 10, 2016, caseworker Babcock testified that respondent was enrolled in every service that was available to him at the DOC. The State recommended that the trial court find that respondent had made reasonable efforts, but not reasonable progress because he was incarcerated and J.C. could not be returned to him. Respondent's counsel asked that the court find that respondent had made reasonable efforts as well as reasonable progress, or in the alternative to defer a finding on reasonable progress again because respondent had complied with every service that he possibly could in the DOC. Counsel also noted that respondent had asked him to ask the court if the court could help him get transferred to a DOC prison that provided parenting classes. ¶ 15 In making its ruling, the trial court first found that respondent had made reasonable efforts. With regard to transferring respondent to a DOC that provided parenting classes, it said that it did not have the power to tell the DOC to transfer respondent to another facility, but that perhaps respondent could make an internal request for a transfer. It then said that it had to find that respondent had not made reasonable progress. It told respondent that it had nothing to do with everything the respondent had done, but that progress meant progress toward placement, and respondent was incarcerated. The court then set another permanency review for August 8, 2016. ¶ 16 On August 8, 2016, DCFS filed a family service plan that summarized respondent's progress since the last review. In the report, DCFS noted that respondent provided proof that there were no parenting classes available in the DOC where he presently resided. Respondent reported that he was enrolled in GED classes; however, he would not get the opportunity to participate in those classes prior to being discharged on parole. ¶ 17 At the permanency hearing on that date the State recommended that respondent be found to have made reasonable efforts, but not reasonable progress, and that the goal be set to return home within 12 months. Respondent's counsel agreed with the State that respondent had made reasonable efforts, and it asked that a finding on reasonable progress be deferred because he was incarcerated so it would be very difficult for him to make progress. The trial court again found that respondent had made reasonable efforts but not reasonable progress because he was incarcerated. The goal remained return home within 12 months, and another permanency hearing was set for January 26, 2017. ¶ 18 On January 26, 2016, Babcock filed a report and indicated that the most recent service plan was graded as of November 2016. In that plan, respondent was given a satisfactory grade in maintaining contact with the agency, but he was given an unsatisfactory grade for his requirement to "enroll in and complete all therapeutic, academic and vocational services offered by the DOC." However, Babcock did note that respondent had limited opportunities to fulfill this requirement in the DOC. ¶ 19 A permanency hearing was held on February 10, 2016. At the hearing, Babcock testified that in her report she recommended that respondent take parenting classes. However, she acknowledged that parenting classes were not offered at respondent's current facility. She also said that respondent was recommended to involve himself in whatever he could at his current facility, and she knew respondent was currently enrolled in a GED class. According to Babcock, it was fair to say that respondent was enrolled in everything that was available to him. ¶ 20 The State then recommended that the trial court again find that respondent had made reasonable efforts but not reasonable progress. The State said that as Babcock testified, respondent was currently incarcerated but he was engaged in the services that were being offered as much as he could, and he had been staying in regular contact with Babcock through letters. As to the goal, the State recommended that it remain at return home within 12 months. ¶ 21 Respondent's counsel then elaborated on his recommendation that respondent be found to have made reasonable efforts, or, in the alternative, find that respondent had made reasonable efforts but defer a finding on reasonable progress. The trial court ultimately found that respondent had made reasonable efforts, but not reasonable progress. It said to respondent, "[a]nd is has nothing to do with your efforts, because you've done everything. But you're in custody. Progress means progress toward placement." ¶ 22 The next permanency hearing took place on August 8, 2016. Babcock filed another family service plan that date as well. The trial court again found that respondent had made reasonable efforts but that he could not make reasonable progress because he was incarcerated. The next permanency hearing was set for January 26, 2017. ¶ 23 At that hearing, the State indicated that it was prepared to stand on the report from Children's Home and Aid Society and make a recommendation. The GAL and respondent's counsel agreed with the State. The State then recommended that respondent had made reasonable efforts but not reasonable progress, and it asked that the goal remain set at return home within 12 months. The court asked the parties if they were in agreement with the goal of return home within 12 months. Respondent's counsel agreed, but the GAL disagreed. ¶ 24 Respondent's counsel reminded the court that for most of the life of this case respondent was in the DOC, and he had only been paroled two months before. Respondent was trying to work with the caseworker and with the parole department to discuss what services were going to be recommended by both agencies and try not to double up on their efforts; however, counsel said that they did not have that information yet. Counsel said that now that respondent was on parole, he had the opportunity to avail himself of services that were not available to him in the DOC. The GAL responded and said that this case was over two years old and that they were no closer to a reunification than they were in the beginning. After discussing how poorly J.C.'s mother had been doing, the trial court said,
As far as the goal, at this time we would be asking that the goal remain return home within 12 months and that the court set whatever appropriate permanency your Honor decides."
"[n]either father, I don't believe, also, has made reasonable efforts or progress in this matter.A written order changing the goal to substitute care pending court determination of termination of parental rights was filed that day. ¶ 25 The State subsequently filed a motion for termination of parental rights. In that motion the State alleged that respondent was unfit for failing to make reasonable progress toward the return of J.C. during the nine month period following adjudication, from January 31, 2016, to October 31, 2016. 750 ILCS 50/1(D)(m)(ii) (West 2016). ¶ 26 An unfitness hearing on the State's motion to terminate respondent's parental rights was held on April 18, 2017. At the hearing, Babcock testified that she was J.C.'s foster care case worker for Children's Home and Aid Society. Babcock said that respondent had originally been recommended for individual therapy if it was available to him at the DOC, and if not, he was recommended to complete such therapy once he was released on parole. It was also recommended that respondent take parenting classes at the DOC if they were available and any other classes or trainings available, for example, a GED class or vocational trainings. Babcock said that respondent did not complete individual therapy or parenting classes. She also said that respondent did not provide to her any documentation that he had enrolled in or completed a GED course or vocational training. ¶ 27 On cross-examination, Babcock said that respondent had told her that there was a therapist on site, but that the prisoners did not see the therapist continually and it was "kind of a one-time thing." Also, respondent did provide documentation from the warden at his prison indicating that parenting classes were not available. Babcock said that respondent maintained contact with her by sending monthly letters. He also sent birthday cards to J.C., and in his letters to Babcock respondent would often say, "[t]ell [J.C.] hi for me. Tell him I love him." ¶ 28 The following exchange then occurred between the GAL and Babcock:
And I am going to change the goal over counsels' objections because these children have had enough. I have deferred findings. I have given chances. It's a difficult decision. These are the decisions that I have to make that are difficult. I don't take them—perhaps this decision should have been made 9, 10, 11, 12 months ago, but—I think we have afforded every opportunity, but I'm sorry. The train has left the station.
I am gonna find that the proper goal at this point for the benefit of these children is substitute care pending termination of parental rights. And what that means is reunification is no longer a goal. Reunification services are no longer provided by law. The goal is changing pending a hearing on a [sic] termination. Whatever evidence that the parents have will be presented at a termination of parental rights [sic]."
"Q. And you said that [respondent] was released on parole in late 2016?
A. Yes.
Q. Was he required to cooperate with parole and engage in any services you're aware of?
Yes. He had mentioned—and I actually never—
MR. PALMER [respondent's attorney]: I'm sorry, your honor. I'm going to object. The sole count in the petition alleged a period from January 31, 2016, to October 31, 2016. Anything beyond that I don't believe would be relevant to the allegation.¶ 29 No other testimony was taken. The assistant state's attorney then asked the trial court to take judicial notice of the neglect petition, the temporary custody order, the adjudication order, the order of disposition, and the orders following all the permanency review hearings. Respondent's counsel did not object, and the trial court took judicial notice of the court file. ¶ 30 In finding respondent unfit, the trial court said:
THE COURT: I'll overrule it.
MR. RARIDON [the GAL]: The point is well-taken, judge. I'll withdraw the question."
"Well, having heard the evidence and taken judicial notice of the documents requested by the State, the sole count for [respondent] in the petition that's amended filed 2/23/17 is simply that he failed to make reasonable progress during the return—toward the return of the child during the relevant screening period of 1/31/16 to 10/31/16.
The court does recognize its burden—or the burden of the State, actually, to present evidence that shows by clear and convincing evidence—excuse me—that [respondent] is unfit under the definition—statutory definition. I do find that he is unfit and the State has met their burden during the relevant period of time.
First, he remained incarcerated during the entire period, so there could be no reasonable progress toward placement during that period because of that situation. In addition to during that and as a result of incarceration, he did not complete the services that were necessary for reunification. So on both those counts it's clear by clear and
convincing evidence the State has met their burden, and I will enter an order of unfitness."¶ 31 The court then held a hearing on J.C.'s best interests, and terminated respondent's parental rights on the ground that it was in J.C.'s best interest to do so. Although the trial court granted the State's motion to terminate respondent's parental rights on April 18, 2017, the record reflects that the order was not entered until June 23, 2017. This court granted respondent's motion for leave to file the trial court's order terminating his parental rights nunc pro tunc to April 18, 2017, and that order was supplemented in the record.
The trial court was referring to respondent and the biological father of J.C.'s half-sibling, M.A.
However, in Babcock's September 15, 2015 report, she noted that respondent had enrolled in GED courses through the DOC and provided her with a program/assignment history. --------
¶ 32 II. ANALYSIS
¶ 33 On appeal, respondent argues: (1) the trial court's determination that he was an unfit parent pursuant to section 50/1(D)(m)(ii) of the Adoption Act (Act) (750 ILCS 50/1(D)(m)(ii) ((West 2016)) is against the manifest weight of the evidence; and (2) the trial court's ruling that it was in J.C.'s best interests to terminate his parental rights is against the preponderance of the evidence. We will first address respondent's allegations of error at the unfitness hearing.
¶ 34 A. Unfitness
¶ 35 Respondent argues that the trial court erred when it found that he failed to make reasonable progress based upon the sole fact that he was incarcerated. That finding, he contends, would mean that it is impossible for a parent to make reasonable progress toward reunification during the period in which he or she was incarcerated. That belief, he contends, contradicts this court's recent holding in In re Keyon R., 2017 IL App (2d) 160657. ¶ 36 In Illinois, the involuntary termination of parental rights is a two-step process. In re C.W., 199 Ill. 2d 198, 210 (2002); 705 ILCS 405.2-29(2) (West 2017). The court must first find that a parent is unfit as defined in section 1(D) of the Act. 750 ILCS 50/1(D) (West 2016). Section 1(D) lists several grounds upon which a finding of unfitness can be made. 750 ILCS 50/1(D) (West 2016). Under section 1(D)(m)(ii) of the Act a parent may be found unfit if he or she fails to make reasonable progress toward the return of the child within any nine-month period after an adjudication of neglect. 750 ILCS 50/1(D)(m)(ii) (West 2016). The statute also provides:
"[i]f a service plan has been established as required under Section 8.2 of the Abused and Neglected Child Reporting Act to correct the conditions that were the basis for the removal of the child from the parent and if those services were available, then, for purposes of this Act, 'failure to make reasonable progress toward the return of the child to the parent' includes the parent's failure to substantially fulfill his or her obligations under the service plan and correct the conditions that brought the child into care during any 9-month period following the adjudication under Section 2-3 or 2-4 of the Juvenile Court Act of 1987." (Emphasis added.) 750 ILCS 50/1(D)(m)(ii) (West 2016).¶ 37 Reasonable progress exists when the trial court can conclude that a parent's progress in complying with directives given to him or her for the return of the child is sufficiently demonstrable and of such a quality that the trial court will be able to order the minor returned to that parent's custody in the near future. In re J.H., 2014 IL App (3d) 140185, ¶ 22. Failure to make reasonable progress toward the return of the child includes the parent's failure to substantially fulfill his or her obligations under the service plan and correct the conditions that brought the child into care. 750 ILCS 50/1(D)(m) (West 2016). The standard regarding whether a parent has made reasonable progress toward unification is an objective one, and at a minimum a finding that a parent has made reasonable progress requires that there was some movement toward the goal of reunification with the child. In re B.W., 309 Ill. App. 3d 493, 499 (1999). ¶ 38 The trial court is to consider evidence occurring only during the relevant nine-month period mandated in section 1(D)(m) in determining whether a parent has made reasonable progress toward the return of the minor. In re J.L., 236 Ill. 2d at 341. The State must prove parental unfitness by clear and convincing evidence before the trial court may terminate parental rights. 705 ILCS405/2-29(4) (West 2016); 750 ILCS 50/1(D). A trial court's finding of parental unfitness will not be reversed on appeal unless it is against the manifest weight of the evidence. In re C.N., 196 Ill. 2d 181, 209 (2001). Only if it is clearly apparent from the record that the trial court should have reached the opposite conclusion will the trial court's decision be against the manifest weight of the evidence. Id. ¶ 39 In In re Keyon R., DCFS was granted custody and guardianship of Keyon, and the court ordered the father, who was incarcerated, to cooperate with the services that DCFS implemented on the father's behalf. However, DCFS and its contracting agency, Lutheran Social Services, never assessed the father for services or provided him a service plan, believing that the father's conviction of a sexual offense involving bodily harm would prevent him from ever having Keyon returned to him. In re Keyon R., 2017 IL App (2d) 160657, ¶ 3. Ultimately, the trial court found the father unfit on two grounds: (1) failure to make reasonable progress (750 ILCS 50/1(D)(m)(ii) (West 2014)); and (2) depravity (750 ILCS 50/1(D)(i) (West 2014)). On appeal, this court first found that the State failed to prove that the father was unfit on depravity grounds. Id. ¶ 26. With regard to the issue of reasonable progress, we noted that our supreme court had interpreted the provisions in section 50/1(D)(m)(ii) in In re C.N., 196 Ill. 2d 181 (2001), and held that section 1(D)(m)(ii) "requires that a parent make demonstrable movement toward the goal of reunification". In re Keyon R., 2017 IL App (2d) 160675, ¶ 29 (citing In re C.N., 196 Ill. 2d at 211)). We also noted that service plans were an integral part of the statutory scheme, and compliance with the service plans was intimately tied to a parent's progress to the return of the child. Id. (citing In re C.N., 196 Ill. 2d at 216-17). Finally, we said, "[i]ndeed, the failure to make reasonable progress includes the failure to substantially fulfill the terms of the service plans." (Emphasis added.) Id. (citing In re C.N., 196 Ill. 2d at 217). In holding that the trial court erred in finding that the father had not made reasonable progress when he was never assessed for services and was never given a service plan, we said, "[t]o use respondent's lack of compliance with nonexistent services—services that were consciously and intentionally withheld—to terminate his parental rights is paradoxical." In re Keyon R., 2017 IL App (2d) 160675, ¶ 30. ¶ 40 We agree with respondent that the trial court's factual findings here support the flawed theory that it is impossible for any parent to make reasonable progress toward reunification during the period in which the parent was incarcerated. In finding that respondent made no reasonable progress from January 31, 2016 through October 31, 2016, the trial court specifically said that respondent "remained incarcerated during the entire period, so there could be no reasonable progress toward placement during that time because of that situation." Clearly this holding is inapposite to our recent holding in In re Keyon R., 2017 IL App (2d) 160675. In addition, it has long been held that the mere fact of incarceration is not evidence of the failure to make reasonable progress. In re J.R.Y., 157 Ill. App. 3d 396, 403 (1987). For these reasons, we find that the trial court erred when it found that respondent had not made reasonable progress based upon his incarceration status alone. ¶ 41 In his brief respondent requests that the finding of unfitness be reversed on this ground alone. However, our analysis cannot stop at this point. We now turn to the issue of whether the trial court erred in finding that respondent was unfit for his failure to make reasonable progress when he did not complete the services that were necessary for reunification. ¶ 42 At the dispositional hearing on October 23, 2014, Babcock testified that the recommendations in respondent's service plan were for him to: (1) comply with all DOC policies, procedures and regulations; (2) maintain monthly contact with the Children's Home and Aid Society via mail; (3) ask about J.C.'s well-being; (4) enroll in and complete all therapeutic, academic and vocational services offered by the DOC; and (5) participate in individual counseling once released from the DOC. Babcock reported that respondent had been regularly contacting her via letters addressing any questions that he had and that he had also been expressing an interest in J.C.'s well-being. At a permanency review hearing on January 29, 2015, Babcock's report indicated that respondent received a satisfactory grade in all areas of his service plan except for the requirement that he enroll in and complete all therapeutic, academic and vocational services offered by the DOC. With regard to that requirement, Babcock said that respondent had inquired about taking parenting classes, but she admitted that such classes were not available at the prison where respondent was housed. Again, Babcock said that respondent had been regularly contacting her through letters asking questions about J.C., and he expressed an interest in the child. ¶ 43 At the permanency hearing on April 2, 2015, Babcock's report was again entered into evidence. Again, respondent received satisfactory grades in all areas except enrolling in services offered by the DOC. Babcock again noted that respondent had asked about taking parenting classes but that the prison where he was located did not provide that service. Finally, Babcock said that respondent had been regularly contacting her via letters and continued to express an interest as to J.C.'s well-being. ¶ 44 Babcock filed another report on May 21, 2015. In that report Babcock again noted that respondent maintained communication with her via letters. Respondent asked for pictures of J.C. and Babcock sent him pictures. For the first time, Babcock mentioned that she had mailed respondent a list of programs that were available at the prison where he was located. ¶ 45 In a report dated September 15, 2015, Babcock informed the court that respondent had enrolled in GED courses through the DOC and he had provided a program/assignment history to her. Respondent continued to be in contact with Babcock and express an interest in J.C.'s well-being. At a hearing on February 10, 2016, Babcock testified that it was fair to say that respondent was enrolled in everything that was available to him in prison. Even more, his counsel informed the court that respondent had asked counsel to ask if the trial court could help him get transferred to a prison that provided parenting classes. ¶ 46 At the final permanency hearing on January 26, 2017, Babcock's report was again admitted into evidence. With regard to the time frame alleged in the State's petition for termination of parental rights, Babcock found that respondent satisfactorily completed all of his goals except for enrolling in and completing all therapeutic, academic and vocational services offered by the DOC. Nevertheless, the trial court found that respondent had not made reasonable efforts as well as reasonable progress, and changed the goal, even over the State's recommendation, from return home to substitute care pending determination of termination parental rights. ¶ 47 A plain reading of section 1(D)(m)(ii) of the Act specifically requires two things to occur before determining whether a parent has failed to make reasonable progress: (1) a service plan must be established; and (2) the services required of the parent must be made available to him or her. 750 ILCS 50/1(D)(m)(ii) (West 2016). Here, it is abundantly clear that no matter how much DCFS and the Children's Aid & Society wanted respondent to take parenting classes, those classes were not available at the prison where respondent was located. Respondent provided documentation to that effect, and even had his counsel request the court's help in transferring him to a facility that had parenting classes. Since the classes were not available, as a matter of law, respondent could not have failed to make reasonable progress for his failure to take those classes. Like in Kenyon R.,, to use respondent's lack of compliance with nonexistent services to terminate his parental rights is paradoxical. In re Keyon R., 2017 IL App (2d) 160675, ¶ 30. ¶ 48 The State argues that the record is clear that respondent did not complete the services that were required of him. Specifically, it contends that as a result of the integrated assessment, it was recommended that respondent needed to complete "individual therapy and parenting classes while incarcerated if they [were] available or upon his release and engage in any other available services, such as GED training or vocational training while incarcerated." The State claims that Babcock testified that respondent never completed parenting classes or individual counseling, and did not provide Babcock with documentation that he engaged in GED or vocational training. ¶ 49 As we have held, since parenting classes were not available to respondent in prison he could not have failed to make reasonable progress on that ground. With regard to the other requirements, Babcock testified that respondent told her that individual counseling was not available at the prison, and that it was a "one time thing" when he arrived there. Also, Babcock indicated in her reports that respondent had signed up for GED classes and that he had provided a program/assignment history to Babcock. In fact, Babcock testified in February 2016 that it was fair to say that respondent was enrolled in everything that was available to him in prison. Finally, the issue of whether respondent completed parenting classes or individual therapy after he was released on parole on November 3, 2016, is irrelevant to our analysis here because the State only petitioned to find respondent unfit for failing to make reasonable progress from January 31, 2016, to October 31, 2016. ¶ 50 We are not unmindful here of the affect this decision will have on J.C. However, we must remember that the desire for J.C. to gain permanency in his life must be weighed against the fact that termination of parental rights is a "'permanent and complete severance of the parent-child relationship' that requires clear and convincing proof." Keyon R., 2017 IL App (2d) 160657, ¶ 33 (quoting In re C.N., 196 Ill. 2d at 208). Based upon all the evidence presented to the trial court it is clear that respondent made substantial progress on all the goals that were properly put in his service plans. Accordingly, the State did not prove that respondent failed to make reasonable progress by clear and convincing evidence and the trial court's finding of unfitness on this ground was therefore against the manifest weight of the evidence. For these reasons, we reverse the trial court's finding of unfitness. ¶ 51 Since we have reversed the finding of unfitness we need not address respondent's argument that that the trial court erred in finding that it was in J.C.'s best interest for his parental rights to be terminated.
¶ 52 III. CONCLUSION
¶ 53 In sum, the trial court erred when it found that respondent was unfit for failing to make reasonable progress based on the sole fact that he was incarcerated. It also erred in finding that respondent failed to make reasonable progress when he did not complete services that were not made available to him. Instead, the record reflects that respondent substantially complied with the remaining requirements in his service plans. ¶ 54 Accordingly, the judgment of the circuit court of Winnebago County is reversed. 20 ¶ 55 Reversed.