Opinion
4-22-0611 4-22-0613
12-08-2022
In re A.S., a Minor v. Thomas S., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee, In re LS., a Minor The People of the State of Illinois, Petitioner-Appellee, v. Thomas S., Respondent-Appellant.
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 Henry County Nos. 19JA14, 19JA15 Honorable Terence M. Patton, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
TURNER JUSTICE
¶ 1 Held: This court lacks jurisdiction over the adjudicatory and dispositional hearings, the circuit court's finding respondent was unfit under section 1(D)(m)(ii) of the Adoption Act was not against the manifest weight of the evidence, respondent is collaterally estopped from raising his constitutional argument, and respondent was not denied effective assistance of counsel.
¶ 2 In March 2021, the State filed motions for the termination of the parental rights of respondent, Thomas S., as to his minor children A.S. (born in August 2013) and L.S. (born in July 2017). The Henry County circuit court held the fitness hearing and found respondent unfit in April 2022. After the June 2022 best-interests hearing, the court found it was in the minor children's best interests to terminate respondent's parental rights.
¶ 3 Respondent appeals, asserting (1) the circuit court's finding at the adjudicatory and dispositional hearings regarding the minor children's residence was erroneous, (2) the court erred by finding him unfit, (3) the termination of respondent's parental rights was unconstitutional, and (4) respondent was denied effective assistance of counsel. We affirm.
¶ 4 I. BACKGROUND
¶ 5 The minor children's mother is Katelyn M., who is not a party to this appeal. Katelyn filed separate appeals in Fourth District case Nos. 4-22-0610 and 4-22-0612.
¶ 6 In February 2019, the State filed petitions for the adjudication of wardship of A.S. and L.S. The petitions alleged the minor children were neglected pursuant to section 2-3(1) (b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1) (b) (West 2018)) because their environment was injurious to their welfare in that respondent and Katelyn had ongoing substance-abuse issues. After a May 2019 adjudicatory hearing, the circuit court found the minor children neglected. On July 10, 2019, the court held the dispositional hearing. At the conclusion of the hearing, the court made the minor children wards of the court, found both respondent and Katelyn unfit, and placed custody and guardianship of the minor children with the Department of Children and Family Services (DCFS).
¶ 7 On March 8, 2021, the State filed motions to terminate respondent's and Katelyn's parental rights to the minor children. As to respondent, the motions asserted respondent failed to make (1) reasonable efforts to correct the conditions that were the basis for the minor children's removal from him during any nine-month period after the neglect adjudication (750 ILCS 50/1(D) (m) (i) (West 2020)) and (2) reasonable progress toward the minor children's return during any nine-month period after the neglect adjudication (750 ILCS 50/1(D) (m) (ii) (West 2020)). The motions alleged the following two nine-month periods for both allegations: (1) July 11, 2019, to April 11, 2020, and (2) April 12, 2020, to January 12, 2021.
¶ 8 On April 23, 2022, respondent executed a final and irrevocable surrender of his parental rights, allowing the minor children to be adopted by Peggy Young. Katelyn also signed a surrender. DCFS found Young was not an appropriate caregiver, and the circuit court vacated the surrenders.
¶ 9 On April 29, 2022, the circuit court commenced the fitness hearing. The State presented the testimony of Tracey White, a caseworker in this case and an employee of the Center for Youth and Family Services (CYFS). Katelyn testified on her own behalf. Respondent did not testify but did ask the court to take judicial notice of the service plans filed on August 22, 2019, and February 28, 2020.
¶ 10 White testified the service plans were created from the integrated assessment. Respondent attended team meetings, at which the service plan's goals, progress, and barriers were discussed. White testified respondent was made aware of the service plan's contents. She admitted respondent "agrees" language is standard language and does not necessarily mean respondent agreed to something before the service plan was drafted. White did not recall if respondent signed the service plans.
¶ 11 Under the service plans during the two relevant nine-month periods, respondent was required to complete a substance-abuse evaluation and recommended treatment, complete a mental-health evaluation and treatment, obtain suitable housing, and complete parenting classes. As to substance-abuse treatment, White testified respondent completed the assessment and treatment was recommended. Respondent failed to appear for treatment and was discharged from services. Respondent did not successfully complete substance-abuse treatment during the relevant nine-month periods.
¶ 12 White further testified that, in addressing substance abuse, respondent was also required to submit random urine drops about twice a month. During the two relevant nine-month periods, respondent submitted urine drops less than five times. The drops he did submit were positive for methamphetamine. White testified respondent mentioned transportation issues in getting to the urine drops. White noted that, during team meetings, Katelyn's mother and grandmother offered to assist respondent with transportation.
¶ 13 As to mental-health services, White testified respondent did complete an assessment but failed to appear at counseling sessions. Respondent again completed a mental-health assessment and again failed to receive the recommended treatment. Respondent never regularly engaged in mental-health treatment during the relevant nine-month periods.
¶ 14 As to suitable housing, White testified respondent never obtained it during the relevant nine-month periods. White explained respondent resided with Katelyn for a majority of the relevant nine-month periods and thus the same concerns about Katelyn's housing applied to respondent's housing. White explained she had done several safety checks on respondent's various residences and none of them passed. With the first home, it appeared somebody else may have been living in the home because another room was set up in the basement, and a pill was found in the bedroom reported to be L.S.'s room. The second home's roof was leaking, there were chemicals within reach, and electrical outlets were not covered.
¶ 15 As to parenting classes, White testified respondent attended 10 of 29 parenting classes. He never reengaged in parenting classes. Respondent had cited work for the reason he did not complete parenting classes.
¶ 16 Additionally, as to respondent, White testified he was in jail for a month during the two relevant nine-month periods. Further, respondent had his supervised visitation reduced from three times a week to once a week in July or August 2020 due to respondent's lack of progress in services. Respondent never received unsupervised visits with the minor children. White further testified it was not possible to return the minor children to respondent during the relevant nine-month periods because respondent did not complete substance-abuse treatment, tested positive for methamphetamines the few times he submitted urine drops, and did not complete mental-health services. White testified respondent was no closer to the minor children's return in January 2021 than he was in July 2019.
¶ 17 During her testimony, Katelyn admitted her visitation was reduced after she and respondent got into an argument in front of the minor children.
¶ 18 At the conclusion of the hearing, the circuit court found respondent unfit on all bases alleged in the petition. The court also found Katelyn unfit.
¶ 19 On June 29, 2022, the circuit court held the best-interests hearing. The State presented the best-interests report. Respondent stipulated to the report's content, which found termination of respondent's parental rights was in the minor children's best interests. After finding respondent's stipulation was done knowingly and voluntarily, the circuit court found it was in the minor children's best interests to terminate respondent's parental rights. The court also terminated Katelyn's parental rights to the minor children. On July 5, 2022, the court entered the written termination order.
¶ 20 On July 18, 2022, respondent filed a timely notice of appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017). See Ill. S.Ct. R. 660(b) (eff. Oct. 1, 2001) (providing the rules governing civil cases also govern appeals from final judgments in all proceedings under the Juvenile Court Act, except for delinquency cases). Thus, this court has jurisdiction of the appeal pursuant to Illinois Supreme Court Rule 307(a)(6) (eff. Nov. 1, 2017).
¶ 21 II. ANALYSIS
¶ 22 Under section 2-29(2) of the Juvenile Court Act (705 ILCS 405/2-29(2) (West 2020)), the involuntary termination of parental rights involves a two-step process. First, the State must prove by clear and convincing evidence the parent is "unfit," as that term is defined in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2020)). In re Donald A.G., 221 Ill.2d 234, 244, 850 N.E.2d 172, 177 (2006). If the circuit court makes a finding of unfitness, then the State must prove by a preponderance of the evidence it is in the minor children's best interests that parental rights be terminated. In re D.T., 212 Ill.2d 347, 366, 818 N.E.2d 1214, 1228 (2004).
¶ 23 A. Dispositional Order
¶ 24 Respondent asserts the circuit court erred during the adjudicatory and dispositional stages by considering improper evidence regarding the minor children's residence.
¶ 25 Dispositional orders in neglect and abuse cases are regarded as final and appealable as of right. In re Leona W., 228 Ill.2d 439, 456, 888 N.E.2d 72, 81 (2008). Appeals from final judgments entered in neglect and abuse proceedings under the Juvenile Court Act are governed by the rules applicable to civil cases. Leona W., 228 Ill.2d at 456, 888 N.E.2d at 81. The applicable rule is Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994). For an appeal under Rule 301, the notice of appeal must be filed within 30 days after entry of the final judgment from which the appeal is being taken or 30 days after entry of the order disposing of any posttrial motions which may have been filed. Leona W., 228 Ill.2d at 456-57, 888 N.E.2d at 81 (citing Illinois Supreme Court Rule 303(a) (1) (eff. May 1, 2007)). When such a notice of appeal has not been filed, any error pertaining to the dispositional and adjudicatory orders has been forfeited, and the appellate court has no jurisdiction to go back and reconsider the dispositional order. Leona W., 228 Ill.2d at 457, 888 N.E.2d at 81-82.
¶ 26 By failing to timely appeal the dispositional order, respondent forfeited his opportunity to challenge the circuit court's consideration of the improper evidence at the adjudicatory and dispositional hearings. See Leona W., 228 Ill.2d at 456-57, 888 N.E.2d at 81-82 (finding the respondent forfeited any errors in the proceedings pertaining to the dispositional and adjudicatory orders by failing to file a timely notice of appeal therefrom). Given we lack jurisdiction over the dispositional order, we cannot grant respondent any relief and will not address respondent's plain error and ineffective assistance of counsel arguments related to errors at the adjudicatory and dispositional hearings.
¶ 27 B. Unfitness
¶ 28 Next, respondent asserts the circuit court erred by finding him unfit. As part of this issue, respondent also asserts the court erred by finding DCFS and CYFS provided appropriate services to assist respondent.
¶ 29 Since the circuit court has the best opportunity to observe the demeanor and conduct of the parties and witnesses, it is in the best position to determine the credibility and weight of the witnesses' testimony. In re E.S., 324 Ill.App.3d 661, 667, 756 N.E.2d 422, 427 (2001). Further, in matters involving minors, the circuit court receives broad discretion and great deference. E.S., 324 Ill.App.3d at 667, 756 N.E.2d at 427. Thus, a reviewing court will not disturb a circuit court's unfitness finding unless it is contrary to the manifest weight of the evidence. See In re Gwynne P., 215 Ill.2d 340, 354, 830 N.E.2d 508, 516-17 (2005). A circuit court's decision is against the manifest weight of the evidence only where the opposite conclusion is clearly apparent. Gwynne P., 215 Ill.2d at 354, 830 N.E.2d at 517.
¶ 30 In this case, the circuit court found respondent unfit on multiple bases, including under section 1(D) (m) (ii) of the Adoption Act (750 ILCS 50/1(D) (m) (ii) (West 2020)), which provides a parent may be declared unfit if he or she fails "to make reasonable progress toward the return of the child[ren] to the parent during any 9-month period following the adjudication of neglected or abused minor under Section 2-3 of the Juvenile Court Act." Illinois courts have defined "reasonable progress" as "demonstrable movement toward the goal of reunification." (Internal quotation marks omitted.) In re Reiny S., 374 Ill.App.3d 1036, 1046, 871 N.E.2d 835, 844 (2007). Moreover, they have explained reasonable progress as follows:
' [T]he benchmark for measuring a parent's "progress toward the return of the child[ren]" under section 1 (D) (m) of the Adoption Act encompasses the parent's compliance with the service plans and the court's directives, in light of the condition which gave rise to the removal of the child[ren], and in light of other conditions which later became known and which would prevent the court from returning custody of the child[ren] to the parent.'" Reiny S., 374 Ill.App.3d at 1046, 871 N.E.2d at 844 (quoting In re C.N., 196 Ill.2d 181, 216-17, 752 N.E.2d 1030, 1050 (2001)).
Additionally, this court has explained reasonable progress exists when a circuit court "can conclude that *** the court, in the near future, will be able to order the child[ren] returned to parental custody. The court will be able to order the child[ren] returned to parental custody in the near future because, at that point, the parent will have fully complied' with the directives previously given to the parent in order to regain custody of the child[ren]." (Emphases in original.) In re L.L.S., 218 Ill.App.3d 444, 461, 577 N.E.2d 1375, 1387 (1991). We have also emphasized" 'reasonable progress' is an 'objective standard.'" In re F.P., 2014 IL App (4th) 140360, ¶ 88, 19 N.E.3d 227 (quoting L.L.S., 218 Ill.App.3d at 461, 577 N.E.2d at 1387).
¶ 31 In determining a parent's fitness based on reasonable progress, a court may only consider evidence from the relevant time period. Reiny S., 374 Ill.App.3d at 1046, 871 N.E.2d at 844 (citing In re D.F., 208 Ill.2d 223, 237-38, 802 N.E.2d 800, 809 (2003)). Courts are limited to that period "because reliance upon evidence of any subsequent time period could improperly allow a parent to circumvent her own unfitness because of a bureaucratic delay in bringing her case to trial." Reiny S., 374 Ill.App.3d at 1046, 871 N.E.2d at 844. In this case, one of the nine-month periods alleged in the petition was July 11, 2019, to April 11, 2020.
¶ 32 We first address whether the circuit court's finding DFCS and CYFS provided respondent with appropriate services was against the manifest weight of the evidence. The Juvenile Court Act does not provide statutory guidelines to determine whether a respondent received appropriate services. In re Lewis, 144 Ill.App.3d 55, 60, 494 N.E.2d 261, 264 (1986). The lack of statutory guidelines reflects the general principle each case of termination of parental rights must be decided sui generis. Lewis, 144 Ill.App.3d at 60, 494 N.E.2d at 264.
¶ 33 Respondent does not take issue with the required services but rather with the location of the services and his lack of transportation. However, at the unfitness hearing, White testified Katelyn's mother and grandmother offered to help Katelyn and respondent with transportation to services with either rides or allowing them to borrow a vehicle. Thus, transportation was not an actual issue for respondent. Regarding the missed urine drops, respondent does not cite to the record in support of his contention he expressed concern his urine drops were during his work hours. As to respondent's knowledge of the service plan, White testified respondent was present at team meetings where the service plans were discussed. Accordingly, we find the circuit court did not err by finding the services provided to respondent were appropriate.
¶ 34 The relevant service plans required respondent to obtain a substance-abuse assessment and follow all recommended treatment, submit to urine drops around twice a month, obtain a mental-health assessment and follow all recommended treatment, complete parenting classes, and obtain suitable housing for the minor children. Respondent did not successfully complete any of the services. Respondent attended only a few urine drops, and those drops were positive for methamphetamine. While respondent cited a lack of transportation for his failure to do the urine drops, White testified Katelyn's mother and grandmother offered respondent help with transportation during team meetings. During the relevant nine-month period, respondent did complete the substance-abuse assessment and was recommended for treatment. However, he was discharged for missing appointments. Respondent never completed substance-abuse treatment during the relevant nine-month period. He also did not complete recommended mental-health treatment and parenting classes. Respondent further failed to obtain suitable housing during the relevant nine-month period. Additionally, White testified respondent never received unsupervised visitation and respondent was not closer to the return of the minor children to him at the end of the period than he was at the beginning of it. Accordingly, the State provided sufficient evidence for the circuit court to find by clear and convincing evidence respondent was unfit for failing to make reasonable progress towards the minor children's return during the nine-month period of July 11, 2019, to April 11, 2020.
¶ 35 Given the above evidence, the circuit court's finding respondent failed to make reasonable progress during the nine-month period of July 11, 2019, to April 11, 2020, was not against the manifest weight of the evidence. Since we have upheld the circuit court's determination respondent met the statutory definition of an "unfit person" on the basis of respondent's failure to make reasonable progress (750 ILCS 50/1(D) (m) (ii) (West 2020)) during the nine-month period of July 11, 2019, to April 11, 2020, we do not address the other bases for the circuit court's unfitness finding. See In re Tiffany M., 353 Ill.App.3d 883, 891, 819 N.E.2d 813, 820 (2004).
¶ 36 C. Termination of Parental Rights
¶ 37 Respondent appears to raise an as-applied challenge to the circuit court's decision to terminate his parental rights, contending a less-restrictive alternative was available.
¶ 38 However, respondent stipulated to the contents of the best-interests report in this case, which recommended the termination of his parental rights." [A] party is estopped from taking a position on appeal that is inconsistent with a position the party took in the trial court." (Internal quotation marks omitted.) In re William H., 407 Ill.App.3d 858, 870, 945 N.E.2d 81, 91 (2011). Moreover, "a party cannot complain of error that she induced the court to make or to which she consented." E.S., 324 Ill.App.3d at 670, 756 N.E.2d at 430. "The principles of forfeiture apply to proceedings conducted pursuant to the Juvenile Court Act." In re H.D., 343 Ill.App.3d 483, 489, 797 N.E.2d 1112, 1118 (2003).
¶ 39 Accordingly, respondent is collaterally estopped from challenging the circuit court's determination the termination of respondent's parental rights was in the minor children's best interests.
¶ 40 D. Effective Assistance of Counsel
¶ 41 Last, respondent contends he was denied effective assistance of counsel.
¶ 42 This court analyzes ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). In re C.C., 368 Ill.App.3d 744, 748, 859 N.E.2d 170, 173 (2006). To obtain reversal under Strickland, a defendant must prove (1) his or her counsel's performance failed to meet an objective standard of competence and (2) counsel's deficient performance resulted in prejudice to the defendant. People v. Evans, 186 Ill.2d 83, 93, 708 N.E.2d 1158, 1163 (1999). With the deficiency prong, the defendant must overcome the strong presumption the challenged action or inaction could have been the product of sound trial strategy. Evans, 186 Ill.2d at 93, 708 N.E.2d at 1163; C.C., 368 Ill.App.3d at 747-48, 859 N.E.2d at 172. To satisfy the prejudice prong, the defendant must prove a reasonable probability exists that, but for counsel's unprofessional errors, the proceeding's result would have been different. Evans, 186 Ill.2d at 93, 708 N.E.2d at 1163-64. The Strickland Court noted a case should be decided on the ground of lack of sufficient prejudice rather than counsel's constitutionally deficient representation if it is easier to do so. Strickland, 466 U.S. at 697.
¶ 43 As to prejudice, respondent's arguments are conclusory. Moreover, the issues of unfitness and best interests were not close where respondent did not successfully complete any services, tested positive for methamphetamine, and never obtained suitable housing for the minor children. The minor children had been in care for three years and were in a foster home that sought to provide them permanency. This is not a case were an alternative to termination of parental rights would be in the minor children's best interests. As such, we find respondent has failed to establish he was denied effective assistance of counsel.
¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we affirm the Henry County circuit court's judgment.
¶ 46 Affirmed.