Opinion
4-22-1077
05-11-2023
In re A.P., a Minor v. Haley P., 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 Adams County No. 22JA20 Honorable John C. Wooleyhan, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Presiding Justice DeArmond and Justice Cavanagh concurred in the judgment.
ORDER
TURNER, JUSTICE
¶ 1 Held: The appellate court affirmed, concluding (1) the circuit court's finding it was in A.P.'s best interests to be adjudicated a ward of the court was not against the manifest weight of the evidence and (2) respondent's counsel was not ineffective for failing to call or cross-examine witnesses at the dispositional hearing.
¶ 2 The State filed a petition alleging A.P., the minor child of respondent, Haley P., was neglected. Pursuant to respondent's admission the allegations in the petition were true, the circuit court adjudicated A.P. neglected. At the dispositional hearing, the court found respondent unfit to care for A.P., found it in A.P.'s best interests to be made a ward of the court, and granted guardianship and custody of A.P. to the Department of Children and Family Services (DCFS). Respondent appeals, arguing (1) the court's finding it was in A.P.'s best interests to be adjudicated a ward of the court is against the manifest weight of the evidence and (2) her trial counsel provided ineffective assistance at the dispositional hearing. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On March 31, 2022, the State filed a petition for adjudication of wardship, alleging A.P. (born in September 2013) was a "neglected and/or abused minor" as defined in the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2020)).
¶ 5 During an October 3, 2022, adjudicatory hearing, respondent "admitted" the allegations in the State's petition. In its order, the circuit court adjudicated A.P. neglected as he was in an environment injurious to his welfare (705 ILCS 405/2-3(1)(b) (West 2020)) due to inadequate supervision. The State provided the following factual basis:
"DCFS investigators would testify that on December 9th of 2021, there was a call for service that a female later identified as Faith Neal had overdosed. There was a minor in her case [ sic ] at this time. This minor was [A.P.]. The mother was-attempts were made to locate the mother. Did not return immediately. Was later determined that mother had left the minor in the care of Faith Neal. Did not know anything about Ms. Neal's background. An indicated report was generated by [DCFS]. Based on this event, mother agreed to begin an intact family case. During that intact case, the minor was not attending school regularly and mother was ultimately not cooperative with services and declined further intact services."
¶ 6 During the December 1, 2022, dispositional hearing, the State called Dakota Doran. Doran testified she had been respondent's probation officer since February 2022 and, since that time, respondent's contact with her had been "[o]ff and on." Doran testified to two periods of approximately one month each during which respondent did not maintain any contact with her at all. Doran also testified respondent admitted relapsing on methamphetamine and missed "a couple" of drug tests. Doran testified she went to respondent's home for a scheduled home visit in October 2022 but respondent was not there. Doran also testified respondent was unsuccessfully discharged from her substance abuse treatment program. Respondent's counsel did not cross-examine Doran.
¶ 7 The State argued respondent was "continuing to use substances" and was "not complying with counseling services" or "committed to engaging in" parenting classes. According to the State, respondent showed "no improvement" or "meaningful progress" in the underlying intact family case. The State disagreed with the caseworker's recommendation for the intact family case to continue, urging the circuit court to instead remove A.P. from the home as a "matter of immediate and urgent necessity," make him a ward of the court, grant guardianship and custody to DCFS, and set a goal of "return home within twelve months." ¶ 8 The guardian ad litem agreed with the State's recommendations, opining respondent was "sadly not correcting the conditions that brought us to the Court's attention," the intact family case was "simply not working for [respondent]," and "[c]onditions [have] apparently deteriorated" since the October 2022 adjudicatory hearing.
¶ 9 Respondent's counsel argued respondent was on a waiting list for inpatient treatment and respondent had just verified her continued placement on said list "two days ago." According to counsel, respondent was at least "engaging" in the recommended parenting classes. Counsel urged the circuit court to adopt the caseworker's recommendation.
¶ 10 The circuit court had available for its consideration the November 22, 2022, Catholic Charities report as well as a June 3, 2022, DCFS service plan (which was filed with the court on August 4, 2022, and again on November 28, 2022). At the conclusion of the hearing, the court made A.P. a ward of the court and placed his custody and guardianship with DCFS. Specifically, the court found, "The report that had been furnished for today's [hearing] show[s] that what has been happening since that date of October 3rd there would be more than enough information in the report today and the evidence being presented today to make a finding today that it would be in the best interest[s] of the minor today to be adjudicated as a neglected ward of the court."
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 A. Dispositional Order
¶ 14 On appeal, respondent first argues the circuit court lacked a sufficient evidentiary basis at the dispositional hearing to find respondent unfit and adjudicate A.P. a ward of the court. We disagree.
¶ 15 "The Act sets forth the procedures that must be followed in determining whether a minor should be removed from his or her parents' custody and be made a ward of the court." In re M.M., 2016 IL 119932, ¶ 17, 72 N.E.3d 260. A circuit court must employ a two-step process to decide whether a minor should become a ward of the court. In re A.P., 2012 IL 113875, ¶ 18, 981 N.E.2d 336.
¶ 16 Step one is the adjudicatory hearing, which determines whether the minor is abused or neglected because adverse conditions exist. 705 ILCS 405/2-21 (West 2020). Step one is not at issue here, as respondent admitted the allegations in the State's neglect petition at the October 2022 adjudicatory hearing and no appeal is taken from that ruling.
¶ 17 Step two requires the circuit court to hold a dispositional hearing, in which the court must first determine "whether it is consistent with the health, safety and best interests of the minor and the public that he be made a ward of the court." 705 ILCS 405/2-21(2), 2-22(1) (West 2020); M.M., 2016 IL 119932, ¶ 17.
¶ 18 Section 2-22(1) of the Act provides as follows:
"At the dispositional hearing, the court shall determine whether it is in the best interests of the minor and the public that he be made a ward of the court, and, if he is to be made a ward of the court, the court shall determine the proper disposition best serving the health, safety and interests of the minor and the public. The court also shall consider the permanency goal set for the minor, the nature of the service plan for the minor and the services delivered and to be delivered under the plan. All evidence helpful in determining these questions, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing." 705 ILCS 405/2-22(1) (West 2020).
The "paramount consideration" at a dispositional hearing is the best interests of the child. In re N.B., 191 Ill.2d 338, 343, 730 N.E.2d 1086, 1089 (2000).
¶ 19 If a minor is made a ward of the court, "the court shall determine the proper disposition best serving the health, safety and interests of the minor and the public." 705 ILCS 405/2-22(1) (West 2020); M.M., 2016 IL 119932, ¶ 18. The Act provides the following four basic types of dispositional orders with respect to a ward of the court. "The minor may be (1) continued in the care of the minor's parent, guardian, or legal custodian; (2) restored to the custody of the minor's parent, guardian, or legal custodian; (3) ordered partially or completely emancipated; or (4) 'placed in accordance' with section 2-27 of the Act." M.M., 2016 IL 119932, ¶ 18.
¶ 20 Under section 2-27 of the Act, the circuit court may appoint DCFS as guardian of the minor if it determines the parents are unfit or unable, for reasons other than financial circumstances alone, "to care for, protect, train[,] or discipline the minor or are unwilling to do so, and that the health, safety, and best interest[s] of the minor will be jeopardized if the minor remains in the custody of *** her parents." 705 ILCS 405/2-27(1) (West 2020). The State must prove by a preponderance of the evidence adjudication of wardship is in the best interests of the minor. N.B., 191 Ill.2d at 343, 730 N.E.2d at 1089.
¶ 21 The choice of dispositional order rests within the circuit court's sound discretion (In re J.S., 151 Ill.App.3d 884, 887, 504 N.E.2d 513, 515 (1987)) and "will be reversed only if the findings of fact are against the manifest weight of the evidence or the court committed an abuse of discretion by selecting an inappropriate dispositional order." In re J.W., 386 Ill.App.3d 847, 856, 898 N.E.2d 803, 811 (2008). "A court's factual finding is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where its finding is unreasonable, arbitrary, or not based on the evidence presented." In re Al. S., 2017 IL App (4th) 160737, ¶ 41, 73 N.E.3d 1178.
¶ 22 Here, respondent argues the circuit court erred in failing to outline any specific fitness-related conduct during its oral ruling at the dispositional hearing. Respondent contends, while the court's written ruling mentions drug use, the evidence shows just one relapse and no suspicion of drug use by the probation officer. In support of her argument, respondent cites section 2-27 of the Act (705 ILCS 405/2-27 (West 2020)), which provides "that the circuit court may place a child outside the parental home '[i]f the court determines and puts in writing the factual basis supporting the determination of whether the parents *** of a minor adjudged a ward of the court are unfit.'" (Emphasis in original). In re S.H., 2018 IL App (3d) 170357, ¶ 17, 98 N.E.3d 639.
¶ 23 While the circuit court did not make a specific oral finding regarding unfitness, its written dispositional order provides, "[t]he mother is for reasons other than financial circumstances alone, unfit to care for, protect, train, educate, supervise or discipline the minor and placement with her is contrary to the health, safety and best interests of the minor because [of 'drug use [and] lack of improvement in intact services.'" Thus, the court's order satisfies the statutory requirement for a written specification of a factual basis for the unfitness determination. The court's written order also stated, "It is consistent with the health, welfare and safety of the minor and in the best interest[s] of the minor to make the minor a ward of the Court." Respondent contends the court's findings were against the manifest weight of the evidence. We disagree.
¶ 24 The record in this case shows the circuit court's determination at the dispositional hearing adjudicating A.P. a ward of the court and appointing DCFS as A.P.'s guardian was not against the manifest weight of the evidence. An intact family case was initiated for respondent on February 10, 2022. The State filed its neglect petition on March 31, 2022, after respondent declined further services on March 4, 2022. The Catholic Charities caseworker's report reflected respondent tested negative in multiple drug screens and the probation officer did not suspect ongoing drug use. It also reflected the probation officer's belief respondent was honest and communicative. However, the probation officer testified respondent missed drug tests. The State points out such missed tests are treated as presumptively positive. Additionally, the report stated respondent missed three substance abuse treatment appointments in June 2022, missed an appointment in October 2022, and was unsuccessfully discharged from this treatment program in November 2022. According to the caseworker, respondent reported this program was not helping her and she had only participated in it "because it looked good." As reflected in the report, respondent missed an appointment with her probation officer before the unsuccessful discharge from substance abuse treatment, did not respond to three contacts from the probation officer after missing the appointment, and missed a rescheduled appointment, prompting the probation officer to file a violation. Moreover, respondent had not successfully engaged in her parenting program.
¶ 25 Respondent's lack of involvement in services calls into question her ability to successfully parent A.P. or to provide for his welfare at the time of the dispositional hearing. Given the testimonial and documentary evidence before the circuit court of respondent's lack of involvement in her necessary services, especially those pertaining to substance abuse, we conclude the factual findings underlying the circuit court's dispositional findings are not against the manifest weight of the evidence and the court did not abuse its discretion by adjudicating A.P a ward of the court.
¶ 26 B. Ineffective Assistance of Counsel
¶ 27 Respondent also argues she was provided ineffective assistance of counsel at the dispositional hearing. We disagree.
¶ 28 "While the right to counsel in juvenile proceedings is statutory and not constitutional, Illinois courts apply the standard utilized in criminal cases to gauge the effectiveness of counsel in juvenile proceedings." (Internal quotation marks omitted.) In re Ch. W., 399 Ill.App.3d 825, 828, 927 N.E.2d 872, 875 (2010). Thus, courts review ineffective assistance of counsel claims in juvenile proceedings under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). "Under this test, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. "A defendant's failure to establish either prong of the Strickland test precludes a finding of ineffective assistance of counsel." Henderson, 2013 IL 114040, ¶ 11. Further, "[a] court need not determine whether counsel's performance was deficient before examining the prejudice suffered if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice." People v. Smith, 176 Ill.2d 217, 231, 680 N.E.2d 291, 300 (1997); see also People v. Hale, 2013 IL 113140, ¶ 17, 996 N.E.2d 607 (noting a court "may dispose of an ineffective assistance of counsel claim by proceeding directly to the prejudice prong without addressing counsel's performance").
¶ 29 Respondent contends her counsel provided ineffective assistance at the dispositional hearing by failing to cross-examine the probation officer, call respondent's caseworker, or call "the Bella Ease [parenting class] teacher, or someone from the in-patient drug treatment facility." According to respondent, "[b]ut for trial counsel's failure to meet an objective standard of competence, the Court would not have found [she] was unfit," and "[w]ithout an impression of continued drug use and complete non-contact over the entire period with her probation officer and all services, it is likely that the caseworker's recommendation that this family remain intact would have been followed." We disagree.
¶ 30 Respondent cannot establish prejudice from her counsel's decisions to not cross-examine the probation officer or call any of respondent's suggested witnesses. If counsel had cross-examined Doran and elicited testimony from her regarding respondent's honesty and communicativeness, the State on redirect examination could have had the probation officer reiterate respondent missed drug tests and was unsuccessfully discharged from her substance abuse treatment program. If counsel had called respondent's caseworker and elicited testimony regarding respondent's clean drug tests, the State could have cross-examined the caseworker regarding respondent's missed substance abuse treatment appointments, unsuccessful discharge, and statements she did not find the program helpful and was only participating in it because it "looked good" to do so. If counsel called the parent educator from Bella Ease to testify respondent attended an initial appointment, the State could have elicited testimony about her nonparticipation in subsequent appointments and the witness's opinion respondent was not committed to engaging in the service. Finally, even if counsel called a representative from the inpatient drug treatment facility for which respondent was reportedly on a waiting list at the time of the dispositional hearing, the individual would have testified, at most, respondent was indeed on the waiting list. Such testimony would serve to highlight respondent had not yet started the service and further show there was no reengagement in substance abuse treatment.
¶ 31 In sum, no testimony counsel could have elicited from respondent's suggested witnesses would have created a reasonable probability the outcome of the dispositional hearing would have been different. Because respondent "cannot show [s]he was prejudiced by [her] defense counsel's actions, we do not need to consider whether those actions or inactions constituted deficient performance." People v. Wasmund, 2022 IL App (5th) 190525, ¶ 110. Accordingly, respondent's ineffective assistance of counsel claim fails.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the circuit court's judgment.
¶ 34 Affirmed.