Opinion
NO. 5-12-0367
01-15-2013
In re E.M.N., J.E.N., and G.A.N., Minors The People of the State of Illinois, Petitioner-Appellee, v. TYLER L.N., Respondent-Appellant.
NOTICE
Decision filed 01/15/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
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
Bond County.
No. 11-JA-11
Honorable
John Knight,
Judge, presiding.
PRESIDING JUSTICE SPOMER delivered the judgment of the court.
Justices Chapman and Wexstten concurred in the judgment.
ORDER
¶ 1 Held: Termination of parental rights affirmed where evidence is sufficient to support the circuit court's finding of unfitness. ¶ 2 The respondent, Tyler L.N., appeals the July 31, 2012, order of the circuit court of Bond County that found her unfit as a parent and resulted in an order terminating her parental rights on August 9, 2012. For the following reasons, we affirm.
¶ 3 FACTS
¶ 4 On June 24, 2011, the State filed a two-count petition for an adjudication of wardship of the respondent's three children. Count I alleged that the children were neglected, pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2010)), by being in an environment injurious to their welfare. Count II alleged that the children were abused, pursuant to section 2-3(2)(ii) of the Act (705 ILCS 405/2-3(2)(ii) (West 2010)), in that their parents created a substantial risk of physical injury to them and they were at risk of sexual abuse based on the actions of both parents. A first-amended petition for adjudication of wardship was later filed to reflect a change of assistant State's Attorney. The circuit court entered an order on June 27, 2011, placing the children in protective custody. ¶ 5 Orders of adjudication were entered on August 3, 2011, and August 11, 2011, finding that the children were abused and neglected, pursuant to sections 2-3(1)(b) and 2-3(2)(ii) of the Act (705 ILCS 405/2-3(1)(b), (2)(ii) (West 2010)). An order of disposition was entered August 31, 2011, that, inter alia, made the minors wards of the court. On July 3, 2012, the State filed a motion for a termination of parental rights and for the appointment of a guardian with the power to consent to adoption. A fitness hearing was conducted on July 27, 2012. The circuit court entered an order three days later, finding the respondent unfit by clear and convincing evidence on the following grounds, pursuant to section 1(D) of the Adoption Act: (1) failure to maintain a reasonable degree of interest, concern, or responsibility regarding the welfare of the children (750 ILCS 50/1(D)(b) (West 2010)); (2) failure to make reasonable efforts to correct the conditions that were the basis of the removal of the children (750 ILCS 50/1(D)(m)(i) (West 2010)); (3) failure to make reasonable progress toward the return of the children within nine months of adjudication of neglect and abuse (750 ILCS 50/1(D)(m)(ii) (West 2010)); (4) failure to protect the children from conditions within their environment that were injurious to their welfare (750 ILCS 50/1(D)(g) (West 2010)); (5) inability of the respondent to discharge her parental responsibilities due to current and future incarceration (750 ILCS 50/1(D)(s) (West 2010)); and (6) depravity (750 ILCS 50/1(D)(i) (West 2010)). After a hearing and determining it in the best interest of the children to do so, the circuit court entered an order on August 21, 2012, terminating the parental rights of the respondent. The respondent filed a timely notice of appeal. Additional facts will be provided as necessary in our analysis of the issue on appeal.
¶ 6 ANALYSIS
¶ 7 The respondent's sole issue on appeal is whether the circuit court erred in finding her unfit on the basis of her failure to make reasonable efforts to correct the conditions that were the basis of the removal of the children (750 ILCS 50/1(D)(m)(i) (West 2010)) and her failure to make reasonable progress toward the return of the children within nine months of the adjudication of neglect and abuse (750 ILCS 50/1(D)(m)(ii) (West 2010)). Although the circuit court found the respondent unfit on six grounds, she does not challenge the remaining four, nor does she challenge the circuit court's finding that it is in the best interests of the children to terminate her parental rights. Accordingly, those issues are waived on appeal. See In re Estate of Nicholson, 268 Ill. App. 3d 689, 694 (1994) (citing 134 Ill. 2d R. 341(e)(7) (issues not raised in appellate brief are waived)). ¶ 8 Because the respondent waived the four remaining grounds of unfitness, we could choose to affirm the circuit court's finding of unfitness on any of those grounds. However, we may also choose to address a waived issue if the error affects substantial rights. In re Christopher J., 338 Ill. App. 3d 1057, 1058 (2003). Because parental rights are considered substantial (see id.), we will look at the issue of the parental fitness of the respondent. In doing so, we are mindful that we may affirm the decision of the circuit court on any basis found in the record. See In re Marriage of T.H., 255 Ill. App. 3d 247, 259 (1993). We review the circuit court's finding of unfitness under the manifest weight of the evidence standard. See In re Gwynne P., 215 Ill. 2d 340, 354 (2005). ¶ 9 "A parent's rights may be terminated if a single alleged ground for unfitness is supported by clear and convincing evidence." In re D.C., 209 Ill. 2d 287, 296 (2004). For purposes of our analysis, we will review section 1(D)(s) of the Adoption Act, which provides that a parent may be found unfit if she is incarcerated at the time of the filing of the petition for a termination of parental rights, she has been repeatedly incarcerated because of criminal convictions, and her repeated incarceration results in her being unable to discharge her parental responsibilities. 750 ILCS 50/1(D)(s) (West 2010). ¶ 10 In the case at bar, the respondent was incarcerated when the motion to terminate her parental rights (the motion) was filed on July 3, 2012. See 750 ILCS 50/1(D)(s) (West 2010). Chiquita Adams, an employee of the Illinois Department of Children and Family Services (the Department), testified that she began supervising the respondent's case on June 23, 2011, when the respondent was arrested. Adams averred that the respondent was in continuous custody while the Department was involved in the case. ¶ 11 In addition to the respondent being incarcerated at the time of the filing of the motion, the record supports the requirements of repeated incarceration which resulted in the respondent being incapable of discharging her parental responsibilities. See 750 ILCS 50/1(D)(s) (West 2010). "Only one incarceration will support a finding of unfitness if the incarceration prevented the discharge of parental duties, including providing the child with a stable home and the necessary physical, emotional, and financial support." In re Gwynne P., 346 Ill. App. 3d 584, 598 (2004). In this case, Julia Baltz, a caseworker for the Department, testified that she worked with the respondent from August 30, 2011, until January 19, 2012. Baltz corroborated Adams's testimony that the respondent was continuously incarcerated while the Department was involved with the case, which prevented her from discharging her parental responsibilities. Baltz specified that because the respondent was incarcerated, she was unable to provide a home for the children, nor could she provide emotional support, serve as a role model, or interact with them daily as parents normally do. The same was attested to by caseworker Rebekah Woolever. ¶ 12 Because the respondent was incarcerated at the time of the filing of the petition to terminate her parental rights and because her continuous incarceration interfered with her ability to discharge her parental duties (see 750 ILCS 50/1(D)(s) (West 2010)), it was not against the manifest weight of the evidence for the circuit court to find the respondent unfit on that ground. Because only one statutory ground of unfitness is required to proceed in a termination of parental rights (see In re D.C., 209 Ill. 2d at 296), we need not discuss any additional grounds.
¶ 13 CONCLUSION
¶ 14 For the foregoing reasons, we affirm the July 31, 2012, order of the circuit court of Bond County that found the respondent unfit as a parent and resulted in the termination of her parental rights on August 9, 2012. ¶ 15 Affirmed.