Opinion
No. 1-10-0411
July 9, 2010.
Appeal from the Circuit Court of Cook County, 05 JA 710, Helaine L. Berger, Judge, presiding.
ORDER
Respondent, Mario C., is the natural father of Mariah C., born June 18, 1999. In October 2009, the trial court entered an unfitness finding against respondent. Following a January 2010 hearing, the trial court found that it was in Mariah's best interest to terminate respondent's parental rights and to appoint a guardian with the right to consent to adoption.
Mariah is referred to as both "Esmariah" and "Mariah" in the record. In this order, she will be referred to as Mariah.
Respondent appeals, arguing that the finding of unfitness and the termination of his parental rights violated his due process rights and were tainted because (a) the court's previous no-contact order was used against respondent in determining fitness, (b) the trial court should have considered private guardianship, and (c) respondent was unfairly charged with depravity in the termination proceedings before a conviction in the criminal court.
In July 2005, the Department of Children and Family Services (DCFS) took protective custody of Mariah after respondent was arrested for aggravated criminal sexual assault. Her natural mother is deceased. On July 6, 2005, the State filed a Petition for Adjudication of Wardship for Mariah, alleging that due to respondent's incarceration, there were no relatives able to take care of Mariah. A temporary custody order was entered in July and the trial court entered an order denying visitation between respondent and Mariah.
At the December 2005 adjudication hearing, the trial court found Mariah was dependent. Following a January 2006 dispositional hearing, the trial court adjudged Mariah a ward of the court, as her mother was deceased and respondent was "unable for some reason other than financial circumstances alone to care for, protect, train, or discipline" Mariah.
In March 2006, the trial court conducted a permanency hearing for Mariah and entered a permanency goal of return home pending a status hearing. At the next permanency hearing in November 2006, the permanency goal was changed to substitute care pending court determination on termination of parental rights. The trial court's order stated that respondent has "not made reasonable progress." The order also indicated that respondent had been incarcerated for 18 months while awaiting trial for "sexual abuse to a minor." Subsequent permanency hearings were held in June 2007, March 2008, September 2008 and March 2009, with the same permanency goal of substitute care pending court determination on termination of parental rights.
In January 2008, the State filed a supplemental petition to terminate respondent's parental rights as to Mariah. The petition alleged that respondent was unfit under three grounds: (1) respondent failed to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare, in violation of section 1(D)(b) of the Adoption Act ( 750 ILCS 50/1(D)(b) (West 2006)); (2) respondent had behaved in a depraved manner, in violation of section 1(D)(i) ( 750 ILCS 50/1(D)(i) (West 2006)); and (3) respondent failed to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, and/or to make reasonable progress toward the return of the child to the parent within 9 months after the dependency adjudication, and/or within any 9 month period after said finding, in violation of section l(D)(m) ( 750 ILCS 50/1(D)(m) (West 2006)).
In September 2009, the trial court conducted the fitness hearing portion of the termination proceedings. The court noted that respondent had indicated that he did not wish to be present for the termination proceedings, but was represented by the public defender. The court took judicial notice of several documents in the case, including the adjudication order, the dispositional order, the finding of paternity, the death certificate for the natural mother, and the supplemental petition for termination of parental rights. The State presented three certified copies of respondent's criminal convictions: a 1993 robbery conviction for which he received four years' probation, a 2006 conviction for unlawful possession of a weapon by a felon with a sentence of three years' imprisonment, and a 2008 conviction for predatory criminal sexual assault with a sentence often years' imprisonment. The 2008 conviction included counts of aggravated criminal sexual assault, criminal sexual assault with force and aggravated criminal sexual abuse of a victim under the age of 13.
The State presented the testimony of one witness, Stephanie Gurewitz, Mariah's caseworker. Gurewitz testified that she was assigned as Mariah's caseworker in September 2007 through Casa Central. As Mariah's caseworker, Gurewitz would help evaluate and prepare service plans. The service plans were reevaluated and completed every six months. She stated that as part of the service plans, respondent needed to complete a substance abuse assessment, domestic violence evaluation, and parenting classes. These services would be assessed upon respondent's release from prison because they were not available to respondent while in prison. She said that she received a certificate of completion of a ministry course by respondent, but she was unable to verify it. Because respondent was unable to complete the necessary services, he received an unsatisfactory rating on each of the service plans.
Gurewitz also testified that respondent has not had any visits with Mariah because of the court's no-contact order. She stated that respondent sent letters to her for Mariah every other week and occasional gifts. She said she did not give the letters or gifts to Mariah because of the no-contact order. Respondent did not contact Gurewitz about Mariah's case beyond sending the letters for Mariah. On cross-examination, Gurewitz testified that when respondent found out that Mariah was not receiving his letters because of the no-contact order, he stopped sending things. She also stated that the services respondent completed in prison were not part of the service plan.
The fitness hearing was continued to October 2009. The trial court found that the State failed to prove by clear and convincing evidence that respondent failed to demonstrate interest, concern or responsibility for Mariah under section 1(D)(b). The court specifically noted respondent's "constant letter writing and gift giving," and the fact that Mariah did not receive them does not show a lack of interest by respondent.
As to the other grounds for unfitness, the trial court found that the State had proven by clear and convincing evidence that respondent was unfit pursuant to section l(D)(m)(iii) in that he failed to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of dependent minor. In making this ruling, the court stressed the need for permanency in Mariah's placement and that respondent's own actions are what placed him in prison.
The court also found that the State had proven depravity under section 1(D)(i)(5), by showing that respondent was convicted of predatory criminal sexual assault of a child in violation of section 12-14.1 of the Criminal Code of 1961 ( 720 ILCS 5/12-14.1 (West 2004)). The court held that respondent's evidence, his ministry certificate and the letters and gifts he sent his daughter, failed to rebut the presumption of depravity. The State did not seek a finding of depravity based on respondent's three criminal convictions and as such the court did not address that portion.
On October 26, 2009, the trial court began the best interest portion of the termination proceedings. Again, respondent requested to be excused from the hearing.
Gurewitz testified again for the State. She stated that she was discharged as Mariah's caseworker in September 2009 because the Casa Central agency closed its foster program.
She testified that Mariah is placed in a pre-adoptive home. Mariah has been living with her foster mother and father Maria and Raul C. Raul is Mariah's maternal great uncle. Mariah has lived with them most of the time she has been a ward of the court. Mariah lived with a maternal cousin for one year because Maria was helping to care for two of her grandchildren who have autism. Maria and Raul maintained contact with Mariah over that year. Mariah moved back in with them in August 2008.
Maria is referred to as both "Maria" and "Virgie" in the record. In this order, she will be referred to as Maria.
Gurewitz stated that Mariah understands that respondent "would no longer have rights to her, and somebody else would be caring for her in that place and that would be her foster parents." She said the foster home is clean, adequately furnished, safe and appropriate. Mariah has her own bedroom. Mariah has bonded with the family members. There are no signs of abuse, neglect or corporal punishment in the foster home.
Gurewitz testified that Maria is 60 years old and is Mariah's main caregiver. Maria "is the single most important person in [Mariah's] life and the only person who's been there in [Mariah's] life for such a consistent amount of time." She noted that Mariah calls Maria "mom." Maria has some health issues; specifically, diabetes, asthma and arthritis, but she sees a doctor regularly and is able to provide for Mariah.
Raul is also around 60 years old. He works as an auto mechanic in his own shop. He is home in the morning when Mariah gets ready for school and on weekends. Mariah has also bonded with Raul and she refers to him as her dad. Mariah is not as close with Raul as she is with Maria, but she does love him and there is a close bond.
Gurewitz stated that Mariah does not have any special needs. She testified that it is in Mariah's best interest to have respondent's parental rights terminated.
On cross-examination, Gurewitz testified that Mariah does not have contact with paternal relatives because some family members do not believe respondent has committed the crimes he is imprisoned for and many have criminal records. They "have not in the past looked out for the best interest of [Mariah.]" Gurewitz further stated that Mariah lived with her paternal grandmother, but she would hit and was verbally abusive to Mariah. Additionally, the paternal grandmother's boyfriend assaulted another little girl living in their home.
Gurewitz discussed her efforts to help establish a relationship with a paternal relative, but the visitation ended after the relative took Mariah to see other relatives where visitation was not permitted.
The best interest hearing was continued following Gurewitz's testimony and resumed on January 8, 2010.
Dr. Martha Angel testified that she is Mariah's therapist. She began seeing Mariah in May 2009 for weekly visits, and in October, she began seeing Mariah every two weeks. She stated that the sessions became less frequent because Mariah had made good progress. When Mariah began seeing Dr. Angel, she was lying, not following the rules at home and having difficulties with other children at home. She also wrote on furniture and clothing. Dr. Angel testified that Mariah made "amazing progress" and that her "misbehaviors," like writing on clothing and furniture were "extinct." Mariah's lying has also stopped. They are currently working on Mariah's hygiene.
Dr. Angel stated that Mariah understands what adoption means and wants to be adopted by Maria and Raul. Dr. Angel testified that Mariah has said that "she wants to be with them forever because she loves them very much, and she just is writing verbally and is constantly saying how much she wants to be their daughter." Dr. Angel has had sessions with Maria and has observed them together. She observed a "very strong emotional attachment" between them. Dr. Angel feels that adoption is in Mariah's best interest and has no concerns as to whether her foster parents can meet Mariah's needs.
On cross-examination, Dr. Angel stated that Mariah said she is "disappointed" in her father and that he "has not been there for [her]." Mariah told Dr. Angel that she knew respondent was writing her letters and her caseworker was keeping them until she was older.
Dr. Angel stated that over the summer when Mariah was staying with her paternal aunt, some girls from the paternal side of the family took Mariah in a room and told her that her mother did not die of an illness. They told her that her mother killed herself by putting a rope around her neck and stepping off a chair. Dr. Angel testified that Mariah brought it up in therapy and was in shock. After discussing it in a few sessions, Dr. Angel said that Mariah concluded that her mother did not kill herself because her mother must have loved her. Dr. Angel stated "that's a typical conclusion of a ten year old." Dr. Angel concluded that she did not think it was therapeutically appropriate for Mariah to see the letters from her father. Dr. Angel testified that Mariah will need therapy as she matures to deal with these issues. Though, she stated that she does not believe Mariah will be upset at her caregivers for not telling her that her father was involved in gangs, abusive to her mother, and "raped a child, and is in prison for it."
Maria C. testified that she is Mariah's foster mother. She stated that Mariah lives with her, her husband Raul, and their son, Raul Jr. She said Mariah does not see Raul Jr. much because of his work schedule. Maria testified that she has had a role in Mariah's life since she was an infant. She often watched Mariah when her parents went out partying. She wanted Mariah to be left with them as often as possible because of her father's gang involvement. She worried about Mariah's well-being and that Mariah was exposed to things she should not have been. Mariah would spend weekends with them.
Maria described Mariah as "very loving, caring." She helps around the house and is very mature for her age. Maria said that Mariah is doing "really good" in school. She admitted that Mariah is not involved in afterschool activities because of transportation concerns, as she is unable to pick Mariah up and worries about her walking home from the bus in an area without other children. Maria stated that she requested a mentor for Mariah, who meets with Mariah twice a month.
Maria testified that she has a knee replacement surgery scheduled for when Mariah is out of school. Her daughter Gloria will provide backup care. She identified Gloria as her permanent backup care provider.
Maria stated that she considers her relationship with Mariah to be like a daughter. Mariah asked Maria if she could call Maria mom, and Maria said she could if she wanted to. Maria said she can meet all of Mariah's needs, as she has been doing so all this time. She knows to find a solution if something arises. She recognized that Mariah should continue with therapy and noted that Mariah's behavior has changed "tremendously." Mariah is "more sure of herself' and therapy helped her at school and at home. She testified that she wants to adopt Mariah because Mariah is "like a daughter to [her]." She wants the best for Mariah and she believes that the best thing for Mariah is for them to adopt her and be her parents legally.
During cross-examination by the assistant public guardian, Maria testified that Mariah lived with a cousin for nine months because Maria thought that was in Mariah's best interest. On cross-examination by respondent's attorney, Maria stated that public guardianship had been explained to her, but she wants to adopt Mariah. She said she will fight to adopt Mariah.
Raul C. also testified for the State. He is Mariah's foster father and maternal great uncle. He has known Mariah since she was born. He stated that they have a "very loving relationship" and he "look[s] at her as another daughter." He said he wants to adopt her because he and his wife "love her, and she has no one else in her life but us." During questioning from the court, Raul testified that he works afternoons, Monday through Friday. With his schedule, he is able to drive Mariah to school, but is unable to pick her up because he is working.
The State rested after Raul's testimony, as did the Guardian.
Respondent called one witness. Nicole Griffin testified that she is Mariah's current caseworker, assigned in October 2009. She stated that she reviewed the file. She identified respondent's certificate from bible study and received documentation. She said she never met respondent. She stated that she sent respondent a letter informing him of the best interest hearing and provided her contact information. Respondent did not contact her. On cross-examination, Griffin stated that the agency still recommended that respondent undergo a sex offender evaluation, a domestic violence evaluation, a parenting class, a substance abuse assessment, and any follow up services.
Following arguments, the trial court held that the State had shown by clear and convincing evidence that it was in Mariah's best interest that respondent's parental rights be terminated. The court also found that the best interest of Mariah required the appointment of a guardian, D. Jean Ortega Piron, with the right to consent to adoption. In its ruling, the court noted that respondent never made a motion to vacate the no-contact order and that Mariah's case had been in the system for almost five years.
On appeal, respondent argues that the trial court's finding of unfitness and the termination of his parental rights violated his due process rights and were tainted because (a) the court's previous no-contact order was used against respondent in determining unfitness, (b) the trial court should have considered private guardianship, and (c) respondent was unfairly charged with depravity in the termination proceedings before a conviction in the criminal court.
"The involuntary termination of parental rights upon the petition of the State is governed by the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 1998)), and the Adoption Act ( 750 ILCS 50/1 et seq. (West 1998))." In re D.F., 201 Ill. 2d 476, 494 (2002). This is a two-step process. "First, the State must show, by clear and convincing evidence, that the parent is `unfit,' as that term is defined in section 1(D) of the Adoption Act ( 750 ILCS 50/1(D) (West 1998))." D.F., 201 Ill. 2d at 294-95. Any one of the enumerated grounds of section 1(D), if properly proven, is a sufficient basis for a finding of unfitness. See 750 ILCS 50/1(D) (West 2006). "A court may not terminate a parent's rights on grounds not charged in the petition. At the same time, however, the State is not required to prove every ground it has alleged for finding a parent unfit. A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence." In re Gwynne P., 215 Ill. 2d 340, 349 (2005).
"A trial court's determination that a parent's unfitness has been established by clear and convincing evidence will not be disturbed on review unless it is contrary to the manifest weight of the evidence. A court's decision regarding a parent's fitness is against the manifest weight of the evidence only where the opposite conclusion is clearly apparent." Gwynne P., 215 Ill. 2d at 354. However, we are to determine each case of parental unfitness on its own facts and circumstances. Gwynne P., 215 Ill. 2d at 354.
If the court concludes that the State has proven that the parent is unfit, it will then consider whether it is in the child's best interest for the parental rights to be terminated. D.F., 201 Ill. 2d at 495; see also 705 ILCS 405/2-29(2) (West 2006). In the unfitness proceedings, the trial court considers the parent's conduct whereas in the best interest portion, the court considers the child's interests. In re M.R., 393 Ill. App. 3d 609, 615 (2009). At this stage, the State must establish by a preponderance of the evidence that it is in the child's best interest to have the parent's rights terminated. In re D.T., 212 Ill. 2d 347, 366 (2004).
Here, respondent contends that he was denied due process during the termination proceedings because the no-contact order entered in July 2005 was used against him to determine his unfitness.
"In determining whether the procedures followed in a parental rights termination proceeding satisfied the constitutional requirements of due process, this court must balance three factors." In re M.R., 316 Ill. App. 3d 399, 402 (2000), citing Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). As prescribed byMathews, those three factors are: "(1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."M.R., 316 Ill. App. 3d at 402, citing Mathews, 424 U.S. at 334-35, 47 L. Ed. 2d at 33, 96 S. Ct. at 902-03.
Respondent asserts that "[b]y refusing to provide any services and by blocking [respondent's] efforts to reach out to his daughter, all threeMathews prongs were impacted." He contends that the State "sabotag[ed]" his efforts and he was "deprived of his right to parent through tainted procedures." Respondent fails to balance the Mathews factors to show how he was denied due process, but instead argues that the fact that he was barred from visiting or contacting Mariah was used as probative evidence against him. However, the record fails to support respondent's claims.
Respondent complains that the no-contact order "blocked" his access to Mariah and was then used as evidence to show the lack of a bond between him and his daughter. However, as the trial court pointed out in its ruling terminating respondent's parental rights, respondent never requested a review of the no-contact order. The trial court stated:
"As we sit here today and [respondent] has been to court, I've had no motion before me. And I am not aware of any motion that could have been before my predecessor judges. But I've been sitting in this courtroom since May of 2008, the last year and a half. And I have had no motion to vacate that no contact order and have contact with his daughter. So I never had an opportunity to determine if at some point it would be clinically appropriate and in her best interest. There's been no motion that [respondent] has seen fit to expound asking to have contact with his daughter and vacating a prior court ordered five years. [sic.]"
The no-contact order was issued in July 2005, but respondent never appealed that order nor asked for reconsideration during the entire time Mariah was a ward of the court. The basis for that order was that respondent was charged with the predatory criminal sexual assault of a minor under the age of 13, for which respondent was later convicted.
Further, the trial court did not rely on respondent's lack of contact with Mariah as a basis for finding respondent unfit. Significantly, the court discussed the letters and gifts sent by respondent as evidence that the State failed to meet its burden that respondent did not maintain a reasonable degree of interest, concern or responsibility for Mariah. Contrary to respondent's argument, the court did not rely on the lack of contact with Mariah as a basis for finding respondent unfit.
Nevertheless, the Mathews factors support a finding that respondent's due process rights were not violated. The first factor at issue is respondent's interest in the control, custody, and care of his daughter. "It is well established that this interest is fundamental and will not be terminated lightly." In re M.H., 196 Ill. 2d 356, 365 (2001). It is equally important to consider Mariah's interest in a safe and stable home environment and maintaining a loving relationship with her foster parents. See In re Travarius O., 343 Ill. App. 3d 844, 851 (2003). Considering respondent's incarceration for the entire period, his conviction for predatory criminal sexual assault and his failure to seek any changes or review of the no-contact order, this factor weighs against respondent. For the second factor, we consider the risk of an erroneous deprivation through the procedures used. Though respondent has asserted that the State's procedures "sabotage[ed]" and "blocked" him, he fails to support these assertions with citations to the record. As previously discussed, the trial court did not rely on the no-contact order as evidence against respondent. There is no evidence that the procedures used erroneously deprived respondent of his interest in his daughter. Finally, the government has a strong interest in resolving Mariah's case, as she has been in the system for five years. "The State's interest in parental rights termination proceedings is twofold: a parens patriae interest in preserving and promoting the child's welfare and a fiscal and administrative interest in reducing the cost and burden of such proceedings." M.H., 196 Ill. 2d at 367, citing Santosky v. Kramer, 455 U.S. 745, 766, 71 L. Ed. 2d 599, 615, 102 S. Ct. 1388, 1401 (1982). Given the length of time Mariah's case has been pending, the State's interest in permanency for Mariah promotes both her welfare in stable environment and fiscal interest over the cost of this case continuing in the system. This factor also weighs against respondent. Accordingly, each of the Mathews factors weighs against respondent and his due process rights were not violated.
Next, we consider respondent's contention that the trial court erred in not considering private guardianship as an alternative to the termination of parental rights. The State responds that the Juvenile Court Act indicates that adoption is preferred over private guardianship.
Our review of this issue involves an interpretation of the Juvenile Court Act. "The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature." In re Donald A.G., 221 Ill. 2d 234, 246 (2006). "The best evidence of legislative intent is the language of the statute, and when possible, the court should interpret the language of a statute according to its plain and ordinary meaning." In re Donald A.G., 221 Ill. 2d at 246.
Section 2-28 of the Juvenile Court Act outlines the procedures for permanency hearings and lists the permanency goals the trial court may set. The list includes adoption ( 705 ILCS 405/2-28(2)(D) (West 2006)) and private guardianship on a permanent basis "provided that goals (A) through (D) have been ruled out" ( 705 ILCS 405/2-28(2)(E) (West 2006)). In drafting section 2-28, the legislature indicated that adoption was a preferred permanency goal over private guardianship.
Respondent fails to acknowledge this language in section 2-28, and instead focuses on the factors the trial court should consider in setting a permanency goal. Respondent asserts that "the pendulum" swings in favor of private guardianship. However, respondent's argument misses the point and is counter to the statutory language. Respondent fails to cite any authority to support his argument that private guardianship should be considered as a less restrictive permanency goal than adoption. Supreme Court Rule 341(h)(7) requires an appellant to include in its brief an "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." 210 Ill. 2d R. 341(h)(7). Moreover, it is well-settled that a contention that is supported by some argument but does not cite any authority does not satisfy the requirements of Supreme Court Rule 341(h)(7), and bare contentions that fail to cite any authority do not merit consideration on appeal. Wasleff v. Dever, 194 Ill. App. 3d 147, 155-56 (1990).
Under section 2-28, the trial court should not consider private guardianship unless adoption has been ruled out. Here, adoption was not ruled out. The court conducted six permanency hearings before the termination of parental rights. The permanency goal of substitute care pending court determination on termination of parental rights was set in November 2006 and remained for all subsequent permanency hearings. Mariah was placed in a pre-adoptive home and Maria and Raul want to adopt Mariah. The evidence presented at the best interest hearing supported adoption as being in Mariah's best interest. The State presented the testimony of Mariah's former caseworker, her therapist and both of her foster parents. All of the witnesses stated that Mariah wished to be adopted, she loved her foster parents and was in a safe, stable and loving environment. Her foster parents testified that they consider Mariah to be their daughter and love her. The only evidence presented by respondent was Mariah's new caseworker identifying documentation that respondent completed bible study classes. Respondent declined to attend the hearing. The court concluded that it was in Mariah's best interest for respondent's parental rights to be terminated and a guardian appointed to consent to adoption. This finding was not against the manifest weight of the evidence.
Finally, respondent argues that his due process rights were violated when he was charged with depravity in the termination petition prior to his conviction for predatory criminal sexual assault of a child. He contends that he was charged under section 50(D)(i) before he could have violated the statute as the conviction was a necessary element of proving this ground of unfitness. The State filed the supplemental termination petition in January 2008, which alleged as one of the grounds of unfitness, that respondent was depraved under section 50(D)(i), but he was not convicted of predatory criminal sexual assault of a child until June 2008. The fitness hearing was conducted in October 2009. Respondent never objected to the petition or raised this issue during the fitness hearing.
However, we need not reach the merits of respondent's due process argument. The Illinois Supreme Court has dictated that cases should be decided on nonconstitutional grounds whenever possible, and constitutional issues should be decided only as a last resort. In re E.H., 224 Ill. 2d 172, 178 (2006). Here, the trial court based its unfitness finding on two different grounds: depravity pursuant to section 50(D)(i) ( 750 ILCS 50/1(D)(i) (West 2006)) and the failure to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of dependent minor pursuant to section 50(D)(m)(iii) ( 750 ILCS 50/1(D)(m)(iii) (West 2006)). As previously stated, an unfitness finding can be based on any one of the enumerated grounds for unfitness. "A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence." In re Gwynne P., 215 Ill. 2d 340, 349 (2005). Respondent is not challenging the unfitness finding under section 1(D)(m)(iii), which by itself is a sufficient basis for the trial court's finding. The trial court concluded that respondent failed to make reasonable progress toward the return of Mariah. We note that the supreme court recently held that this ground for unfitness applies while a parent is incarcerated.
"We conclude the language of section 1(D)(m)(iii) is clear and unambiguous with regard to the question at issue. There is no exception for time spent in prison. Indeed, no mention is made of incarceration. The statute simply provides that a ground for a finding of unfitness is the `[f]ailure by a parent *** to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of neglected or abused minor *** or dependent minor.' 750 ILCS 50/1(D)(m)(iii) (West 2008). Where the language is clear and unambiguous, courts may not read into it exceptions that the legislature did not express." In re J.L., 236 Ill. 2d 329, 340 (2010).
Since the trial court concluded that respondent was unfit for failing to make reasonable progress in any 9-month period toward the return of the child and respondent is not challenging that finding on appeal, we need not consider respondent's constitutional challenge on the depravity ground. The trial court concluded that respondent was unfit based on section 1(D)(m)(iii), and since the supreme court has held that incarceration does not toll that section of the statute, we affirm the trial court's finding of unfitness and the termination of respondent's parental rights.
Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County.
Affirmed.
McBRIDE, J., with CAHILL, P.J., and J. GORDON, J., concurring.