Opinion
4-23-0631 4-23-0633 cons.
11-22-2023
In re J.O. and J.P., Minors v. Brenda O., 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 Rock Island County Nos. 17JA37, 17JA38 Honorable Theodore G. Kutsunis, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices Cavanagh and Lannerd concurred in the judgment.
ORDER
HARRIS JUSTICE
¶ 1 Held: The trial court's fitness and best-interest determinations were not against the manifest weight of the evidence.
¶ 2 Respondent, Brenda O., appeals the trial court's judgment finding her to be an unfit parent and terminating her parental rights to her minor children, J.O. (born in July 2016) and J.P. (born in May 2017). On appeal, respondent challenges both the court's fitness and best-interest determinations. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On September 19, 2017, the State filed petitions for adjudication of wardship with respect to J.O. and J.P. in Rock Island County case Nos. 17-JA-37 and 17-JA-38, respectively. In each of the petitions, the State alleged the minors 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 2016)) because their environment was injurious to their welfare "due to risk of harm and inadequate supervision." Specifically, the State alleged the minors were present during two domestic violence incidents involving respondent and the minors' father, Joseph P., who is not a party to the instant appeal.
¶ 5 Respondent stipulated to the allegations in the petitions, and on February 22, 2018, the trial court entered an adjudicatory order finding the minors were neglected. That same day, the court entered a dispositional order finding respondent unfit to care for the minors and making them wards of the court. The court also set forth several directives in the dispositional order that required respondent to: (1) complete parenting classes, (2) obtain a substance abuse evaluation and submit to random drug testing, (3) obtain a psychological evaluation and comply with all treatment recommendations, (4) attend counseling, (5) maintain appropriate housing and income, and (6) obtain a domestic violence assessment and comply with all treatment recommendations.
¶ 6 On November 18, 2020, the State filed petitions seeking to terminate respondent's parental rights to J.O. and J.P. The State alleged respondent was an unfit parent within the meaning of section 1(D)(b), (m)(i)-(ii) of the Adoption Act (750 ILCS 50/1(D)(b), (m)(i)-(ii) (West 2020)) because she failed to (1) maintain a reasonable degree of interest, concern, or responsibility as to the minors' welfare, (2) make reasonable efforts to correct the conditions that led to the minors' removal during any nine-month period following the adjudication of neglect, and (3) make reasonable progress toward the minors' return during any nine-month period following the adjudication of neglect. Following the fitness and best-interest hearings, the trial court entered orders finding respondent unfit and terminating her parental rights to the minors.
¶ 7 Respondent appealed the trial court's judgment, arguing on appeal that the State failed to prove any of the allegations in its termination petitions by clear and convincing evidence. In re J.O., 2021 IL App (3d) 210248, ¶ 31. The Third District agreed with respondent and reversed the trial court's judgment. Id. ¶ 67. The Third District's opinion was filed on October 28, 2021, and the mandate was issued on February 8, 2022.
¶ 8 On December 12, 2022, the State filed second supplemental petitions seeking to terminate respondent's parental rights to the minors. The State again alleged that respondent was an unfit parent because she failed to (1) maintain a reasonable degree of interest, concern, or responsibility as to the minors' welfare, (2) make reasonable efforts to correct the conditions that led to the minors' removal during any nine-month period following the adjudication of neglect, and (3) make reasonable progress toward the minors' return during any nine-month period following the adjudication of neglect. See 750 ILCS 50/1(D)(b), (m)(i)-(ii) (West 2022). The State provided notice that the relevant nine-month period was from February 1, 2022, to November 1, 2022.
¶ 9 The trial court conducted a consolidated fitness hearing on April 13, 2023. The State called Kristy Hutchison as its only witness, and respondent testified on her own behalf.
¶ 10 Hutchison had been the minors' caseworker since November 2019. She testified the minors initially came into care due to "domestic violence and substance abuse issues." In March 2022, Hutchison spoke with respondent for the first time following the reversal of the trial court's initial termination order. During their conversation, Hutchison informed respondent that "she needed to set up a child and family team meeting" so they could discuss visitation and review her service plan to determine whether additional referrals for services were necessary. Hutchison testified that respondent refused to give the agency her contact information at the time of their conversation, "but she did arrange to call us back for a child and family team meeting within two days." However, respondent failed to call Hutchison within two days, and they did not have a meeting as a result. In April 2022, after a month of no contact with respondent, Hutchison conducted a "diligent search." Hutchison discovered respondent had been arrested in Iowa in January 2022, charged with "theft, burglary, and possession of meth," and was in custody in a county jail in Iowa. Respondent appeared in custody at a permanency review hearing in May 2022. This was the first time Hutchison had heard from respondent since their phone call in March. Hutchison conducted another diligent search in September 2022, after having no contact with respondent since the May hearing, and discovered she had been transferred to a women's prison in Iowa in August 2022. Hutchison testified that she sent a letter to respondent while she was in the county jail, subsequently left two voicemails with respondent's assigned social worker at the prison, and mailed respondent a copy of her service plan. Hutchison never received a response from respondent or respondent's social worker.
¶ 11 According to Hutchison, after the case returned to the trial court following the appellate court's reversal, the agency "reinstated the original goals [in respondent's service plan], as they had not been completed at the time of the original termination." Hutchison stated that the original goals in respondent's service plan required her to (1) obtain a psychological evaluation, (2) attend individual counseling sessions, (3) obtain a substance abuse evaluation, (4) maintain adequate housing and income, (5) obtain a domestic violence evaluation, and (6) maintain contact with the agency. Hutchison testified that respondent did not complete any substance abuse services during the relevant nine-month period. Although respondent did participate in a treatment program while in custody in Iowa, she was unsuccessfully discharged from the program in June 2022. Hutchison further testified that respondent did not engage in mental health services, domestic violence services, or individual counseling, nor did she maintain adequate housing or income at any point during the relevant period. Hutchison further stated that respondent never "provided us with any information regarding her placement since she's been incarcerated." When asked whether she believed respondent had made reasonable progress towards reunification during the relevant nine-month period, Hutchison answered, "No." She provided the following reasoning: "Primarily because she's not maintained contact with us to be able to verify whether or not she has had any services while incarcerated, and also the fact that she is incarcerated and our current information says that she will be incarcerated at least until 2024."
¶ 12 Respondent testified that after her attorney informed her of the successful appeal, she contacted Hutchison in March 2022 to ask if she would be able to schedule visits with her children. Respondent stated she was not in custody at that time. According to respondent, Hutchison informed her that" 'there's no way you're going to see your kids,'" and" 'I will not start services.'" Respondent acknowledged that Hutchison asked her to schedule a child and family team meeting, but she failed to do so. Respondent testified that she pleaded guilty to the three charged offenses in Iowa. As part of her plea agreement, she was given the opportunity to complete a 21-day, inpatient substance abuse program to avoid a sentence of imprisonment. However, she was unsuccessfully discharged from the program in May 2022.
¶ 13 Following her discharge from the program, respondent returned to Illinois and lived in various homeless shelters until she was arrested in June 2022 on the Iowa charges and remanded to the county jail. Respondent remained in custody at the county jail until she was sentenced to five years' imprisonment in August 2022 and transferred to a women's prison in Iowa. She testified that she did not receive any correspondence from the agency while in custody at the county jail. When asked if she received a copy of her service plan while incarcerated, she answered, "I didn't receive-oh, I received-but it didn't have [Hutchison's] information on it that I seen [sic]. I still have that in my room. I received a Zoom and then a brief summary on- on my kids." Respondent testified that while she was incarcerated, she enrolled in a course called "Active" in November 2022 and completed it in April 2023. She stated that the course focused on issues concerning domestic violence and substance abuse. Respondent testified she had also been attending monthly counseling sessions "for mental health services" while in prison. She further testified that she never knew what services were required of her during the nine-month period identified in the State's termination petitions. Respondent stated that she had difficulty making phone calls while in prison due to a lack of money, but she also acknowledged that despite having no difficulty sending letters, she never attempted to contact Hutchison by mail. Respondent testified she would be eligible to apply for placement in a work-release program in a few months and the program would last six months.
¶ 14 The State called Hutchison as a rebuttal witness. When asked about the agency's efforts to communicate with respondent during the relevant nine-month period, Hutchison testified that she had sent a letter to respondent at the county jail in April 2022. She also sent a letter to the prison in September 2022. Respondent did not reply to either letter. Hutchison further testified that she called the prison in September 2022 and "was given a phone number directed to a social worker phone number." Hutchison left the social worker a voicemail but did not receive a return phone call. She tried to contact the social worker again the following month but did not receive a response. Hutchison testified that the letters she had sent to respondent contained her and the agency's contact information. Hutchison stated respondent never informed her of her enrollment in the "Active" program. Hutchison denied telling respondent in March 2022 that she would not be permitted to see her children or engage in services under any circumstances. According to Hutchison, she instead told respondent that they would have to schedule a child and family team meeting to discuss visitation and the possibility of additional service referrals.
¶ 15 After hearing the arguments of the parties, the trial court found the State had proven respondent unfit by clear and convincing evidence as alleged in each count of the termination petitions. With respect to the credibility of the witnesses, the court stated:
"This Court, after hearing the testimony of Kristy Hutchison and [respondent] and watching the demeanor of both, finds that Hutchison was the much more believable [witness] in her recitation of the facts. This Court believes that Hutchison made many attempts to contact [respondent] to by again [sic] trying to establish a plan for reunification. [Respondent], in her testimony, was unfocused, irrational at times, and argumentative. Some, if not most of her testimony was difficult to discern and somewhat unbelievable."
In finding respondent failed to make reasonable progress towards reunification with the minors, the court noted "she made no progress to having her children returned to her. She's either in the same or worse place today than she was before the children were taken."
¶ 16 The trial court conducted a consolidated best-interest hearing on June 23, 2023. The court admitted into evidence without objection a best-interest report prepared for the hearing. The State did not present any additional evidence.
¶ 17 According to the best-interest report, both minors were six years old at the time of the hearing. Respondent had not seen the minors in person since March 2020. Neither minor had demonstrated any sort of bond with respondent; they never talked about her or asked about her. Both minors had been living in the same traditional foster home since the case was opened in September 2017. They were "very bonded" to their foster parents and considered the foster parents' home "[their] home." The minors referred to the foster parents as "Mom" and "Dad," and they referred to the foster parents' extended family as their "Cousins," "Aunts," and "Uncles." The foster parents were "very dedicated" to the minors and actively worked to meet their "physical, educational, emotional, and mental health needs." The foster parents were both employed, financially stable, and they owned a "very neat and organized" home suitable for the children. They also had a "large support system" that included "both of their families and their friends." According to the report, it was in the minors' best interest to terminate respondent's parental rights.
¶ 18 Respondent testified that she was still incarcerated in Iowa at the time of the hearing and expected to be released in May 2024. She was denied placement in the work-release program offered by the prison, and she intended to reapply in October 2023. Respondent testified she completed the "Active" course in January 2023 and was working approximately 30 hours per week in a warehouse. She stated that she had "found God" in prison, and her newfound faith "has helped me a whole lot." Respondent acknowledged that she had "been wrong a lot" in the past, but she wanted to work "to get to know my kids" in the future. Respondent testified that she wanted to maintain a relationship with her children even if her parental rights were to be terminated.
¶ 19 The trial court found the State had proven termination of respondent's parental rights was in the minors' best interest by a preponderance of the evidence and entered a written order indicating the same.
¶ 20 Respondent appealed the trial court's judgment, and this court granted her motion to consolidate the appeals in Rock Island County case Nos. 17-JA-37 and 17-JA-38.
¶ 21 This consolidated appeal followed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, respondent argues the trial court erred in finding her unfit and that it was in the minors' best interest to terminate her parental rights.
¶ 24 A. The Unfitness Finding
¶ 25 Respondent argues, in part, the trial court erred in finding she failed to make reasonable progress towards the minors' return during the nine-month period from February 1, 2022, to November 1, 2022. Specifically, she contends that "[w]ithout establishing a baseline for [which services were] available to [her while incarcerated] between August and November of 2022, the trial court effectively required [her] to complete services that she may not have had access to." Respondent cites to In re Keyon R., 2017 IL App (2d) 160657, in support of her contention.
¶ 26 "A reviewing court will not reverse a trial court's fitness finding unless it was contrary to the manifest weight of the evidence, meaning that the opposite conclusion is clearly evident from a review of the record." In re A.L., 409 Ill.App.3d 492, 500 (2011).
¶ 27 In a proceeding to terminate parental rights, the State must first prove by clear and convincing evidence that the parent is unfit. In re Donald A.G., 221 Ill.2d 234, 244 (2006). In making such a determination, the trial court considers whether the parent's conduct falls within one or more of the unfitness grounds described in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)). In re D.D., 196 Ill.2d 405, 417 (2001). Under the Adoption Act, an unfit parent includes, in relevant part, any parent who fails to make reasonable progress toward his or her child's return during any nine-month period following the neglect adjudication. 750 ILCS 50/1(D)(m)(ii) (West 2022). In addressing section 1(D)(m)(ii) of the Adoption Act, our supreme court has stated the following:
"[T]he benchmark for measuring a parent's 'progress toward the return of the child' 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, and in light of other conditions which later become known and which would prevent the court from returning custody of the child to the parent." In re C.N., 196 Ill.2d 181, 216-17 (2001).
This court has described reasonable progress as "an 'objective standard,'" which exists "when 'the progress being made by a parent to comply with directives given for the return of the child is sufficiently demonstrable and of such a quality that the court, in the near future, will be able to order the child returned to parental custody.'" (Emphasis in original.) In re F.P., 2014 IL App (4th) 140360, ¶ 88 (quoting In re L.L.S., 218 Ill.App.3d 444, 461 (1991)).
¶ 28 In Keyon R., the trial court entered a dispositional order making the minor a ward of the court and ordering the respondent father, who was incarcerated throughout the proceedings, to cooperate with the services implemented by the Illinois Department of Children and Family Services (DCFS). Keyon R., 2017 IL App (2d) 160657, ¶ 3. "However, DCFS, through its contracting agency Lutheran Social Services of Illinois (LSSI), never assessed [the] respondent for services or provided him with a service plan." Id. The agency did not believe returning the minor to the respondent's care was a viable option due to his "convictions of a sexual offense involving bodily harm." Id. The agency also refused to offer the respondent any visitation with the minor and denied him the opportunity to participate in child and family team meetings. Id. ¶¶ 3, 32. The trial court entered an order finding the respondent unfit for, in relevant part, failing to make reasonable progress towards the minor's return during a specific nine-month period. Id. ¶ 12. The court also entered an order terminating his parental rights to the minor, and the respondent appealed. Id. ¶¶ 12-13. On appeal, the respondent argued the trial court's "reasonable progress" finding was against the manifest weight of the evidence because "DCFS never recommended any services for him to complete upon which his progress could be measured." Id. ¶ 27. The Second District agreed and reversed the trial court's judgment. Id. ¶ 37. It stated that the trial court, in making its unfitness finding, had erroneously failed to consider that the respondent "was never assessed for services and was never given a service plan." (Emphases in original.) Id. ¶ 30. In other words, the Second District concluded that the "agency predetermined that [the] respondent was unfit." Id. ¶ 32. "To use [the] respondent's lack of compliance with nonexistent services-services that were consciously and intentionally withheld-to terminate his parental rights is paradoxical." Id. ¶ 30.
¶ 29 Respondent's reliance on Keyon R. is unpersuasive, as the facts in that case are readily distinguishable from those now before us. The respondent in Keyon R. never received a service plan, and the agency withheld it from him "consciously and intentionally." Id. Here, on the other hand, respondent received a service plan prior to her initial appeal, and Hutchison testified that it remained in effect when the case returned to the trial court. Further, unlike in Keyon R., the agency in the instant case did not "consciously and intentionally" withhold service referrals from respondent. Id. Instead, Hutchison testified that respondent was required to schedule a child and family team meeting-an opportunity never afforded to the respondent in Keyon R.-to formulate a plan concerning future visitation and services, but respondent never did so. Id. ¶ 32. Hutchison also testified that she mailed the service plan to respondent and attempted to contact her both at the county jail and the prison. Although respondent testified that Hutchison told her that the agency would not allow her to engage in services under any circumstances, the trial court was able to observe respondent's behavior and demeanor at the fitness hearing and found that her testimony was "unfocused, irrational at times," "argumentative," "difficult to discern[,] and somewhat unbelievable." Respondent points to nothing in the record suggesting the court's credibility determination was unreasonable, and we therefore reject her contention that the agency somehow refused to identify services for her to complete upon which her progress could have been measured.
¶ 30 Our review of the record shows the trial court's finding that respondent failed to make reasonable progress towards reunification with the minors during the relevant nine-month period was not against the manifest weight of the evidence.
¶ 31 Hutchison testified that when the case returned to the trial court following the appellate court's reversal, the agency "reinstated the original goals [in respondent's service plan], as they had not been completed at the time of the original termination." The goals in respondent's service plan required her to (1) obtain a psychological evaluation, (2) attend individual counseling sessions, (3) obtain a substance abuse evaluation, (4) maintain adequate housing and income, (5) obtain a domestic violence evaluation, and (6) maintain contact with the agency. Respondent clearly failed to maintain contact with the agency. Despite being informed in March 2022 that she needed to schedule a child and family team meeting to discuss her service plan and visitation with the minors, respondent failed to schedule the meeting. She also refused to provide Hutchison with her contact information. Hutchison conducted multiple "diligent" searches and discovered respondent had been arrested in Iowa and charged with numerous offenses. Hutchison sent respondent a copy of her service plan and attempted to contact her numerous times but never received a response. Respondent was given the opportunity to complete an inpatient substance abuse program as part of her plea agreement in Iowa but was unsuccessfully discharged from the program. Following her unsuccessful discharge from the program, respondent lived in various homeless shelters, which was not appropriate housing under the service plan. Respondent was then arrested in June 2022 and remained in custody for the remainder of the nine-month period. See In re J.L., 236 Ill.2d 329, 340-43 (2010) (holding that "time spent in prison does not toll the nine-month period").
¶ 32 Based on the evidence recited above, the trial court was correct in its assessment that "[respondent] made no progress to having her children returned to her. She's either in the same or worse place today than she was before the children were taken." Accordingly, we find the court's unfitness finding based on respondent's failure to make reasonable progress was not against the manifest weight of the evidence. See, e.g., In re Gwynne P., 215 Ill.2d 340, 349 (2005) ("A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence.").
¶ 33 B. The Best-Interest Determination
¶ 34 Respondent also argues the trial court erred in finding termination of her parental rights was in the minors' best interest. She points to her completion of the "Active" program while incarcerated and the fact that "she had entered a church group *** while incarcerated." ¶ 35 We will not reverse a best-interest determination absent a finding it was against the manifest weight of the evidence, which occurs "only if the facts clearly demonstrate that the court should have reached the opposite result." In re Jay. H., 395 Ill.App.3d 1063, 1071 (2009).
¶ 36 Section 2-29 of the Juvenile Court Act (705 ILCS 405/2-29 (West 2022)) "delineates a two-step process in seeking termination of parental rights involuntarily." J.L., 236 Ill.2d at 337. Relevant to the instant issue is the second step-i.e., the best-interest stage-at which the trial court must determine whether the State has proven by a preponderance of the evidence that termination of the respondent's parental rights is in the minor's best interest. 705 ILCS 405/2-29(2) (West 2022). At the best-interest stage, the focus shifts from the parent to the child, and the issue is "whether, in light of the child's needs, parental rights should be terminated." (Emphasis omitted.) In re D.T., 212 Ill.2d 347, 364 (2004). Thus, "the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." Id. Section 1-3(4.05) of the Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2022)) lists the best-interest factors for the court to consider, in the context of the minor's age and developmental needs, when making its best-interest determination: (1) the child's physical safety and welfare; (2) the development of the child's identity; (3) the child's background and ties; (4) the child's sense of attachments; (5) the child's wishes and long-term goals; (6) the child's community ties; (7) the child's need for permanence; (8) the uniqueness of every family and child; (9) the risks associated with substitute care; and (10) the preferences of the persons available to care for the child.
¶ 37 Here, the trial court's best-interest determination was not against the manifest weight of the evidence. According to the best-interest report, which was admitted into evidence at the best-interest hearing without objection, both minors had been placed in the same foster home since the case was opened in September 2017. The minors were "very bonded" to their foster parents, and the foster parents were "very dedicated" to the minors. J.O. and J.P. had strong relationships with the foster parents' extended families, and those families provided an added support system for the minors. The foster parents met the minors' "physical, educational, emotional, and mental health needs." On the other hand, the minors had no relationship or bond with respondent; they did not talk about her or ask about her. Respondent even testified at the best-interest hearing that she wanted "to get to know" her children, thereby casting doubt on the existence of a parent/child relationship between her and the minors. Importantly, the minors had been in care for nearly six years at the time of the best-interest hearing. Given their need to finally have permanence in their lives, coupled with their apparent connection with their foster family, we cannot say the trial court erred in finding termination of respondent's parental rights was in the minors' best interest.
¶ 38 In closing, we note that respondent's best-interest argument focuses solely on the alleged progress she has made in prison to improve herself. However, as noted above, at the best-interest stage of termination proceedings, the focus shifts from the parent to the child, meaning "the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." D.T., 212 Ill.2d at 364. Accordingly, we reject her argument and, for the reasons discussed above, find the trial court's best-interest determination was not against the manifest weight of the evidence.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, we affirm the trial court's judgment.
¶ 41 Affirmed.