Opinion
4-23-1532
05-13-2024
In re L.E., a Minor v. Noah E., 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 Tazewell County No. 21JA58 Honorable David A. Brown, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Turner and Vancil concurred in the judgment.
ORDER
STEIGMANN JUSTICE
¶ 1 Held: The appellate court affirmed the trial court's judgment terminating respondent's parental rights, holding the court's finding of unfitness was not against the manifest weight of the evidence.
¶ 2 In February 2023, the State filed a petition seeking to terminate the parental rights of respondent, Noah E., to his minor child, L.E. (born in April 2017). Following a fitness hearing, the trial court found respondent was an unfit parent, and the court subsequently determined it was in the minor's best interest to terminate respondent's parental rights. Respondent appeals, contending the court's fitness determination was against the manifest weight of the evidence. For the reasons that follow, we disagree and affirm.
¶ 3 I. BACKGROUND
¶ 4 In this case, respondent only challenges the trial court's findings following his fitness hearing. He does not raise any issue regarding the best interest portion of the proceeding. Accordingly, we provide a basic background, but focus our recitation of the facts on the fitness hearing. The parental rights of the minor's mother are not at issue in this appeal.
¶ 5 A. Procedural History
¶ 6 In March 2021, the State filed a shelter care petition, alleging the minor was neglected in that her environment was injurious to her welfare under the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b) (West 2020)). Specifically, the State alleged (1) the minor's mother had been charged with unlawful possession of a controlled substance after being stopped and arrested with the minor present in the back seat of her vehicle and (2) respondent had an extensive criminal history and a history of drug abuse. That same day, the trial court conducted a shelter care hearing and awarded temporary custody of the minor to the guardianship administrator of the Illinois Department of Children and Family Services (DCFS).
¶ 7 In August 2021, the trial court conducted an adjudicatory hearing and found the minor neglected. The matter proceeded immediately to a dispositional hearing. Following the hearing, the court entered a written dispositional order adjudicating the minor a ward of the court and finding respondent unfit for reasons other than financial circumstances alone to care for, protect, or discipline the minor. The court placed custody and guardianship of the minor with the guardianship administrator of DCFS.
¶ 8 B. Termination of Parental Rights
¶ 9 In February 2023, the State filed a petition for termination of respondent's parental rights. The State alleged respondent was an unfit parent because he was incarcerated at the time the petition was filed, he had been repeatedly incarcerated as a result of criminal convictions, and his repeated incarceration had prevented him from discharging his parental responsibilities with respect to the minor. See 750 ILCS 50/1(D)(s) (West 2022).
¶ 10 1. Fitness Hearing
¶ 11 The trial court conducted the fitness portion of the termination proceedings in November 2023.
¶ 12 a. The State's Evidence
¶ 13 i. Kayla Hanten
¶ 14 Kayla Hanten testified she was employed by Lutheran Social Services and was the caseworker for the minor from April 25, 2022, until mid-November 2022. During that time period, she sent two letters to respondent but did not receive a reply. The second letter was sent to the Tazewell County jail, and she received it back marked "return to sender." Hanten testified she did not receive a phone call, e-mail, or visit from respondent during the relevant time period.
¶ 15 ii. Jessica Vandereide
¶ 16 Jessica Vandereide testified she was employed as a caseworker by Lutheran Social Services and was assigned to the minor's case from November 2022 until June 2023. She testified she tried to make contact with the social worker at the jail where respondent was in custody, but she did not contact respondent personally.
¶ 17 iii. Certified Copies of Convictions
¶ 18 The State offered into evidence People's exhibits A through F, which it described as certified copies of respondent's criminal convictions. The State did not further describe the criminal convictions when offering the certified copies into evidence, other than to note the circuit court file numbers. The trial court admitted the exhibits into evidence without objection by respondent. We note that the exhibits are not included in the record filed on appeal.
¶ 19 b. Respondent's Evidence
¶ 20 i. Hannah Snook
¶ 21 Hannah Snook testified she was employed by Lutheran Social Services and had been the caseworker assigned to this case since July 31, 2023. Respondent was incarcerated when she was first assigned to the case, but he was released on August 17, 2023. Respondent contacted Snook on August 24, 2023, to "get his services started." Snook testified respondent was ordered to complete domestic violence services, a mental health assessment, a substance abuse assessment, a parenting class, and drug screens. She testified respondent subsequently completed a parenting class, he was on schedule to complete substance abuse services by December and domestic violence services by March, his mental health assessment did not recommend further treatment, and he had completed his drug screens, with negative results for all substances. To her knowledge, respondent had not missed any of his classes or his monthly visits with L.E. since contacting her after his release from custody. Snook further testified the domestic violence counselor informed her that respondent was appropriate and respectful in group classes. Respondent also submitted three paycheck stubs showing he was working fulltime at Erickson Steel Company. Snook testified respondent's monthly visits with the minor had gone well and they were "forming a bond." She did not have any present concerns about respondent's ability to discharge his parental duties.
¶ 22 On cross-examination, Snook testified that she did not know when respondent last saw L.E. prior to being released from custody on August 17, 2023. Additionally, she did not ask respondent to complete an integrated assessment, did not review prior reports filed with the trial court, and only reviewed one of the orders issued by the court prior to her assignment to the case.
¶ 23 ii. Rachael Knowles
¶ 24 Rachael Knowles, respondent's sister, testified she has eight children and she would offer respondent any assistance he needed in raising L.E. Knowles testified she would call DCFS if she had any concerns about respondent's ability to discharge his parental duties. She asserted that respondent had changed since being released from custody the last time, including in his attitude and work ethic. On cross-examination, Knowles acknowledged she had not observed respondent's visitation with L.E. since his release from custody.
¶ 25 iii. Respondent
¶ 26 Respondent testified he was incarcerated in the Illinois Department of Corrections (DOC) due to his convictions for attempting to deliver methamphetamine and retail theft when the State filed its petition to terminate his parental rights to L.E. He acknowledged that he has a "history of drug use," but he stated he has remained sober since January 8, 2022. He contacted L.E.'s caseworker immediately after he was released from custody in August 2023. While incarcerated, respondent successfully completed college courses and earned certificates in welding. Respondent welds and performs maintenance at his current job. He attends substance abuse classes three days a week after work. He testified that he missed one domestic violence class and two substance abuse classes. Respondent testified he did not have contact with L.E. while he was incarcerated, but he explained it was difficult to maintain contact because L.E.'s mother changed her phone number frequently and they "don't speak." In January 2023, the caseworker told him DCFS would bring L.E. in for visits with him but that never occurred.
¶ 27 On cross-examination, respondent testified L.E. was born on April 12, 2017. He "had involvement" with L.E. for the first three years of her life, and L.E. and her mother lived with him during part of that time. After the shelter care petition was filed on March 1, 2021, he did not see L.E. regularly, but he did not think it could affect his parental rights to her. He knew where L.E. was living, and he was comfortable with her caregivers. Respondent testified he did not try to get custody of L.E. because he did not think he had a choice in the matter. After being released from custody in August 2023, his first visit with L.E. was on September 11, 2023. Prior to that visit, he had not had contact with L.E. since April 2020. He did not attempt to have contact with L.E. during that time period because he was "feuding" with L.E.'s mother and she would try to use L.E. to manipulate him. Respondent summarized that he had contact with L.E. "[u]p to 3-and-a-half and then I seen her a couple times after that."
¶ 28 Respondent then testified that he was convicted of offenses in 2016 and placed on probation, but he was incarcerated for those offenses from 2017 until February 2019 after violating his probation. When he was released in February 2019, he had visitation with L.E. every weekend. At some point, L.E. and L.E.'s mother moved into his residence. They lived with him until respondent and L.E.'s mother broke up in 2020. After that point, respondent saw L.E. "very sporadically." Respondent testified that he was sober from the time of his release from prison in February 2019 until approximately the middle to the end of 2020.
¶ 29 On redirect examination, respondent testified he would complete any further services that were required. When asked whether he believed he currently had the ability to discharge his parental duties, respondent stated, "I think I will. *** I got to finish the classes and everything first."
¶ 30 c. Trial Court's Ruling
¶ 31 After hearing the parties' arguments and taking the matter under advisement, the trial court noted the dispute in this case centered on whether respondent's repeated incarceration had prevented him from discharging his parental responsibilities for the minor. The other requirements for the repeated incarceration ground of unfitness had been established and were not disputed by respondent.
¶ 32 The trial court recited the relevant evidence, stating that before L.E.'s birth and beginning in 2006, respondent had been convicted of offenses in three separate cases and sentenced to a total of approximately six and a half years in DOC. When L.E. was born in April 2017, respondent was on probation for two additional felony offenses, unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver. When L.E. was four months old, respondent violated his probation and was sentenced to a combined four years in prison for the two offenses. Respondent was released from prison in February 2019, and he subsequently left L.E. and her mother in October 2020. L.E. was placed in shelter care five months later, in March 2021, when she was just under four years old.
¶ 33 The trial court noted that respondent testified he knew L.E. was placed in foster care, but he did not think he needed to do anything and was comfortable with the people who were raising L.E. On July 10, 2021, respondent committed two more felony offenses, retail theft and unlawful possession of methamphetamine. The affidavit of probable cause included with the certified record of conviction indicated respondent was homeless at the time. He was subsequently sentenced to eight years in DOC for those offenses and, according to respondent's testimony, he was released on August 17, 2023.
¶ 34 The trial court summarized as follows:
"According to my calculations using those figures, [respondent has] been in custody a total of approximately 52 of [L.E.'s] 80 months of her life which would amount to about 65 percent of her time he has been in custody whether it's [DOC] or the county jail.
The-and it would appear that only in the last three or four months since he's been released has he been a law abiding citizen, and that would amount to 4 out of her 80 months out of her life which would be roughly 5 percent of her life."
¶ 35 In determining whether respondent's history of incarceration prevented him from discharging his parental responsibilities, the trial court acknowledged that respondent had engaged in some vocational training during his incarceration, was currently employed, and was currently engaged in services. However, he did not develop parenting skills, earn income to support L.E., or build a career during the substantial amount of time he had been incarcerated. The court further reasoned as follows:
"Since his release from [DOC], he's had three visits with the child, and before that, his last contact with the child was some time according to his testimony in April of 2019 or 2020. The Court would find that it's generally hard to form a strong parent/child bond under those circumstances.
The child's growing and developing and forming a personality, and an absent parent simply doesn't have the ability to have much impact or involvement in that.
Likewise, his absence has robbed him of the ability to acquire skills and knowledge about [L.E.'s] development, her emotional needs, temperament, personality, and the like.
Since his release, he has demonstrated some ability and efforts to rehabilitate his life. I would commend him for that and would encourage him to continue on that path, but I would say it's been proven clear and convincingly to
the Court that his ability to parent [L.E.] has been severely impacted by his life of crime and repeated incarcerations.
I think the sheer numbers of months that he's not been involved in her life, the percentage of time that he's been away, and engaged in criminal activity has demonstrated that clearly.
By [respondent's] own words, he's not yet able to parent the child. He said he thinks he'll be able to once he's completed his classes."
¶ 36 Based on the evidence, the trial court concluded respondent was unfit due to his repeated incarceration as alleged in the petition to terminate his parental rights.
¶ 37 2. Best Interest Hearing
¶ 38 At the best interest hearing on December 6, 2023, the parties presented witness testimony, exhibits, and arguments. Following the hearing, the trial court found it was in L.E.'s best interest to terminate respondent's parental rights and entered an order to that effect.
¶ 39 This appeal followed.
¶ 40 II. ANALYSIS
¶ 41 Respondent contends the trial court's fitness determination was against the manifest weight of the evidence because the State failed to prove his repeated incarceration prevented him from discharging his parental responsibilities to L.E. Respondent maintains he acquired additional skills while incarcerated enabling him to be employed as a welder immediately upon his release. According to respondent, the evidence also showed that he participated in parenting L.E. until April 2020, and the current caseworker testified she did not have any present concerns about his parenting ability. Further, respondent asserts he has strong support from his family, including his sister who is willing to help him raise L.E. Therefore, respondent argues, the evidence establishes that his incarceration did not affect his ability to provide the necessary financial, physical, and emotional support for L.E. and the trial court's finding that his incarceration prevented him from discharging his parental responsibilities was against the manifest weight of the evidence.
¶ 42 The State counters that the evidence shows respondent has been incarcerated for most of L.E.'s life and that he was homeless prior to his most recent incarceration. By his own admission, respondent did not have contact with L.E. for a large portion of her life, including from April 2020 until his release from prison in August 2023. Respondent also admitted in his testimony that he would not be ready to discharge his parental responsibilities until after completing his services. The State concludes that the evidence shows respondent's ability to provide for L.E. has clearly been diminished by his repeated incarcerations and the trial court's findings were not against the manifest weight of the evidence.
¶ 43 A. The Applicable Law and Standard of Review
¶ 44 Parental rights may not be terminated without the parent's consent unless the trial court determines, by clear and convincing evidence, that the parent is unfit as defined by section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)). In re N.G., 2018 IL 121939, ¶ 28, 115 N.E.3d 102. Section 1(D)(s) of the Adoption Act provides as a ground of parental unfitness as follows:
"The child is in the temporary custody or guardianship of [DCFS], the parent is incarcerated at the time the petition or motion for termination of parental rights is filed, the parent has been repeatedly incarcerated as a result of criminal convictions, and the parent's repeated incarceration has prevented the parent from
discharging his or her parental responsibilities for the child." 750 ILCS 50/1(D)(s) (West 2022).
¶ 45 In reviewing a claim of parental unfitness based on repeated incarceration, a court must" 'consider the overall impact that repeated incarceration may have on the parent's ability to discharge his or her parental responsibilities ***, such as the diminished capacity to provide financial, physical, and emotional support for the child.'" In re Gwynne P, 215 Ill.2d 340, 356, 830 N.E.2d 508, 517 (2005) (quoting In re D.D., 196 Ill.2d 405, 421, 752 N.E.2d 1112, 1121 (2001)). Courts may consider incarceration predating the child's birth under section 1(D)(s) if it has impeded the parent's ability to obtain appropriate life skills or to provide physical, mental, moral, material, and emotional support. Id. "[T]he overall impact of repeated incarceration is the touchstone of section 1(D)(s)." Id. at 358.
¶ 46 A trial court's finding that a parent is unfit will not be reversed on appeal 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 only when the opposite conclusion is clearly apparent. Id.
¶ 47 B. This Case
¶ 48 In the trial court, respondent conceded the State had established that (1) the minor was in the temporary custody or guardianship of DCFS, (2) respondent was incarcerated when the petition for termination of parental rights was filed, and (3) respondent had been repeatedly incarcerated as a result of his criminal convictions. Respondent's argument is limited to the fourth element of the repeated incarceration ground of unfitness, i.e., that the State failed to prove his repeated incarceration prevented him from discharging his parental responsibilities with respect to L.E.
¶ 49 Initially, we note that respondent has failed to include with the record on appeal the certified copies of his convictions admitted into evidence as People's exhibits A through F. As the appellant, respondent bears the burden of providing a sufficient record, and any deficiency in the record will be resolved against him. Webster v Hartman, 309 Ill.App.3d 459, 460, 722 N.E.2d 266, 268 (1999). Absent a sufficient record, this court will presume that the trial court's order was in conformity with the law and supported by a sufficient factual basis. Id. Although the exhibits would have aided our review of this case, we find the record is sufficient to permit review. However, any ambiguity caused by the absence of the certified copies of respondent's convictions will be resolved against him.
¶ 50 Here, the trial court summarized respondent's extensive criminal history beginning in 2006 and calculated that he had been in custody approximately 65% of L.E.'s life. Although respondent gained some vocational training while he was incarcerated, the court found he did not develop parenting skills, earn income to support L.E., or build a career during that extensive period of time. Respondent was released from his most recent incarceration in August 2023. During the three months following his release, respondent had three visits with L.E. but, prior to that, his last contact with L.E. was in April 2020. The court found respondent's absence and lack of contact with L.E. had prevented him from forming a bond with her and from acquiring skills and knowledge to help raise her. The court concluded the State had proven by clear and convincing evidence that respondent's ability to parent L.E. had been severely diminished by his repeated incarceration.
¶ 51 The trial court's findings are largely supported by respondent's own testimony. Respondent acknowledged that he was incarcerated for much of L.E.'s life and, even when he was not incarcerated, respondent did not have consistent contact with L.E. By his own admission, respondent did not have contact with L.E. from April 2020, when L.E. was three years old, until his first visit with her in September 2023, after he was released from prison. Respondent did not provide the needed physical, mental, moral, material, and emotional support for L.E. during that time.
¶ 52 Respondent argues that he participated in parenting L.E. until April 2020, but his claim is undermined by his own testimony at the fitness hearing that he was incarcerated from 2017 until February 2019, after violating his probation. Respondent also claims his financial capacity to support L.E. has not been diminished by his incarceration because he gained skills while in prison and he was employed full-time immediately upon his release. However, the trial court correctly observed that respondent did not develop parenting skills, earn income, build a career, or form a bond with L.E. during his extensive periods of incarceration. Likewise, he did not acquire those parenting skills or abilities during the time when he managed to stay out of prison but had no contact with L.E.
¶ 53 We recognize that respondent has attempted to provide for L.E. and to correct his deficiencies during the three months between his release from prison in August 2023 and the fitness hearing in November 2023. Nonetheless, respondent admitted during his testimony at the fitness hearing that he was not currently able provide for L.E.'s needs, stating he thought he would be able to do so after completing his services. Additionally, respondent's extensive criminal history over a significant period of time raises the inference that he "will continue to be unavailable and inadequate as a parent." In re M.M.J., 313 Ill.App.3d 352, 355, 728 N.E.2d 1237, 1240 (2000).
¶ 54 As the State argues, trial judges must base their decisions in these cases on the evidence presented, not on hope for the future. See Gwynne P, 215 Ill.2d at 362 ("[Judges] cannot enter orders determining the course of a young child's life based on hope for the parent's future. They must make their decisions based on the facts before them."). In this case, the evidence clearly supports the trial court's determination that respondent's repeated incarceration has prevented him from discharging his parental responsibilities with respect to L.E. Accordingly, we conclude that the court's finding of unfitness based on repeated incarceration was not against the manifest weight of the evidence.
¶ 55 III. CONCLUSION
¶ 56 For the reasons stated, we affirm the trial court's judgment.
¶ 57 Affirmed.