Opinion
No. 1-12-2601 No. 1-12-2639
06-06-2013
IN THE INTEREST OF ANGEL H., Minor-Respondent-Appellee. (THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DARRYL P. AND DELE H., Respondents-Appellants).
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 Cook County.
No. 09JA339
The Honorable Richard Stevens, Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court
Justices Fitzgerald Smith and Epstein concurred in the judgment
ORDER
¶ 1 Held: The natural father's procedural due process rights were not violated when the trial court denied a motion to continue the second half of the unfitness hearing due to the father's recent incarceration and inability to attend the hearing absent notice to his attorney or case worker; the natural mother forfeited her claim that section 1D(m)(ii) and (iii) of the Adoption Act (750 ILCS 50/1D(m)(ii), (iii) (West 2010)) violated her substantive right to due process and, contrary to the natural mother's claim, the termination of her parental rights based on the best interests of the minor was not against the manifest weight of the evidence. The judgment of the trial court was affirmed. ¶ 2 Following separate "unfitness" and "best interests" hearings, the trial court terminated the parental rights of respondents Darryl P. and Dele H. to their minor child, Angel H. Each parent filed an appeal, and those have been consolidated in this court (Nos. 1-12-2601 and 1-12-2639). Darryl contends the trial court violated his constitutional right to procedural due process by declining his counsel's request to continue the matter so Darryl could be writed out of jail to be present at the second half of the unfitness hearing. Dele, who was a minor herself when she gave birth to Angel, raises an as-applied challenge to the constitutionality of the unfitness statute (750 ILCS 50/1D(m)(ii), (iii) (West 2010)), contending it does not account for the minor status of the parent in the determination of unfitness. She also contends the trial court's determination that it was in the best interests of Angel that Dele's rights be terminated was against the manifest weight of the evidence. For the reasons set forth below, we affirm.
¶ 3 BACKGROUND
¶ 4 How the Case Entered the System
¶ 5 A ward of the court, herself, Dele was adopted at age three by her grandmother, Ethel. At age 15 she gave birth to Angel on February 25, 2008. When Angel was but six months old, she came to the attention of authorities. Ethel, then a 68-year-old wheel-chair-bound diabetic, reported that Dele had been leaving Angel in her care even though Ethel felt she was incapable of supervising the baby. Ethel also reported that she could no longer take care of 16-year-old Dele, who reportedly had been "in and out of trouble with the law." Ethel lodged a number of these complaints regarding an inadequate care plan for Angel, and the Department of Children and Family Services (DCFS) visited the home as a result. ¶ 6 After initially declining to file a petition for abuse or neglect, on April 20, 2009, the State filed a petition for adjudication alleging that Dele left the child with Angel's biological father Darryl, indicated for sexual abuse against a family member, or with anyone willing to watch the minor. Dele allegedly had two prior indicated reports for inadequate supervision. By then, Dele had moved with Angel to a youth group home. Because Dele had left Angel in the care of Darryl without an appropriate care plan and had refused other evaluative and psychological services, the State alleged Angel was abused and neglected. The State, as a result, moved to have Angel declared a ward of the court and also filed a motion for temporary custody. The same day, on April 20, 2009, the court ruled that although there was probable cause to establish abuse and neglect, the State had not established reason to remove Angel from the custody of her mother. Upon agreement of the parties, the court entered a dispositional order granting Dele custody of Angel under an order of protection, which listed a number of conditions while recommending services that Dele was required to meet in order to retain custody. The protective order also prohibited Darryl from unsupervised visits with Angel. ¶ 7 In October 2009, the State filed a "motion to violate and vacate [the] order of protection," alleging that Dele and two other cohorts broke into a DCFS staff member's office and vandalized it. While wielding a knife, one of the cohorts apparently threatened to rob the staff member. Thereafter, Dele allegedly picked up Angel from daycare, only to be detained on returning to the group home. DCFS took protective custody of Angel, and one month later, the trial court granted the State's motion to vacate the order of protection, and placed Angel in DCFS's physical custody under its guardianship. ¶ 8 On August 26, 2010, the court held an adjudicatory hearing, which resulted in a finding that Angel was a neglected minor based on an injurious environment (see 705 ILCS 405/2-3(1)(b) (West 2010)), citing Dele's failure to provide an appropriate care plan and her violation of the aforementioned protective order. Darryl's paternity was established the same day. Following a dispositional hearing, the court adjudicated Angel a ward of the court because both parents were unable for non-financial reasons to care for, protect, train, or discipline their child (see 705 ILCS 405/2-27 (West 2010)). The court gave DCFS guardianship of Angel with the right to place her. ¶ 9 In November 2011, the State filed a motion to terminate the parental rights of Dele and Darryl. The State alleged, in pertinent part, that both parents were unfit because they failed to make reasonable progress towards the child's return within nine months of the abuse or neglect adjudication or for any nine-month period thereafter (750 ILCS 50/1D(m)(ii), (iii) (West 2010)). The State added that Darryl was then incarcerated and had been repeatedly incarcerated, thus preventing him from appropriately discharging his parental responsibilities (see 750 ILCS 50/1D(s) and 705 ILCS 405/2-29 (West 2010)). On March 6, 2012, two months prior to the unfitness hearing, the State filed a motion specifying the nine-month periods that demonstrated the parents' lack of progress toward returning Angel to their care. Only the allegations regarding Dele are relevant here, and they included August 26, 2009 to May 26, 2010; May 27, 2010 to February 27, 2011; February 28, 2011 to November 28, 2011; and August 1, 2011 to May 1, 2012.
Under the Abused and Neglected Child Reporting Act, an "indicated report" is made if an investigation determines that credible evidence of the alleged abuse or neglect exists. 325 ILCS 5/3 (West 2010).
¶ 10 Unfitness Hearing
¶ 11 The unfitness hearing began on May 1, 2012, with Darryl, his counsel, and the guardian ad litem (GAL) all present. Dele did not appear, but was represented by counsel. The judge observed that at the last hearing in February, Darryl was still in prison at the Department of Corrections (DOC) and, as a result, had to be writed into court. The judge stated to Darryl, "[i]t's nice to see you're no longer incarcerated." Following introductions of counsel and the witnesses, Darryl requested a new attorney. Darryl stated that "since day one," his attorney had shown "little to no effort to fight for" him, but acknowledged he had not yet inquired about hiring a new one. The judge responded that while Darryl had the right to hire an attorney of his choice, he could not do so on the day of trial. The judge took judicial notice that Darryl's counsel, appointed in December 2009, had represented Darryl for some two and a half years and further noted counsel's petition for itemized fees, which reflected that he had spent significant time preparing for trial. The judge observed that counsel had appeared before him for more than 12 years and was "very diligent" in representing clients. The court denied Darryl's request for a continuance, citing its untimeliness; the inconvenience to the State's witnesses, who were all present; and the minor's need for permanency. The judge stated, however, that he would reconsider the request if at the close of the day's proceedings he observed ineffective assistance of counsel. The judge also denied Dele's motion for a continuance, stating she knew the date of the hearing. ¶ 12 The State then presented its case. Nancy Munez testified that she was assigned as Angel's supervising case manager at Omni Youth Services in February 2011 and previously had been the caseworker for Dele in 2010. She recommended that Dele participate in individual therapy for anger management, parenting services, psychiatric services, substance abuse treatment for marijuana use, and urine screening for drug use. Dele, however, did not complete the psychological evaluation. In November 2010, visitation between Dele and Angel was ordered to be supervised when it was observed that Angel experienced three allergy attacks while in Dele's care during or after unsupervised visits. Munez testified that she had a conversation with Dele after each incident and emphasized the severity of Angel's allergies. Angel's allergy to peanuts, she explained, could be deadly. She acknowledged the later service plans dated December 2010 and July 2011 revealed that Dele had satisfactorily participated in education relating to her child's allergies. Nonetheless, given the aforementioned allergy incidents and Dele's inability to meet identified service guidelines, Munez felt she could not recommend unsupervised visits with Dele. Munez testified that Dele received overall unsatisfactory ratings on several service plans (e.g. June 2, 2011, and January 2012) and did not consistently visit Angel. As of June 20, 2011, Dele had a positive urine screening and as of the date of the unfitness hearing, Dele had a criminal case pending based on an incident that occurred on March 20, 2012. From February 2011 to the unfitness hearing, Dele had not inquired about Angel's peanut allergy, educational development, hobbies and activities, religious upbringing, or clothing needs. ¶ 13 Joanna Zakhem testified next that she had been Angel's licensed clinical counselor since August 2011, when Angel was three and a half years old. The three-fold goal of therapy was to help Angel express herself and develop coping skills; promote bonding between Angel and Dele; and promote bonding between Angel and her foster parents. Therapy took place twice a month and, although invited, Dele did not attend any of the therapy sessions or otherwise inquire after Angel's progress in therapy, partly because when therapy commenced, Dele was incarcerated. Zakhem testified that Angel previously had engaged in therapy with Dele present. Zakhem explained that Angel expected her mother to be at the sessions, and when Dele did not appear, Angel exhibited a range of emotionally upset behavior. Angel also exhibited signs of physical anxiety that Zakhem felt were related to her mother. During play therapy, Angel would engage in mock telephone calls to Dele and express that she was angry by her mother's absence. As a result, in January 2012, Zakhem recommended that visits with Dele be suspended. She maintained that recommendation as of March 2012. ¶ 14 The State submitted exhibits from DCFS, caseworkers, and counselors that corroborated the trial testimony regarding Dele's unfitness. These exhibits revealed that Dele was noncompliant with individual and parent-child therapy. For example, throughout the fall of 2010 and into the summer of 2011, Dele repeatedly was late for parent-child therapy sessions or canceled just prior to them. She exhibited verbal aggression towards caseworkers and even threatened them. She also exhibited similar behavior toward the foster parents. She was not compliant with the visitation plan or coordinating drop-offs of Angel, which prompted a return to supervised visits. At a child and family team meeting held in September 2010, Dele refused to discuss Angel's emotional needs, stating her belief that the child didn't have any emotional needs, due to her age. During a later visit, Dele complimented Angel on her new hat, then requested that Angel give the hat to her because Dele didn't have one, prompting an argument of sorts. This apparently caused the child to throw up from anxiety after already having urinated on herself. As of June 2011, Dele admitted to having used illegal substances but did not participate in the substance abuse treatment; Dele also tested positive for marijuana. Although a service plan dated June 2011 showed Dele satisfactorily followed food allergy protocol during visits with Angel and education on the issue, Dele reportedly presented the child with an Easter basket containing foods "against the allergy protocol." Another service plan rated Dele satisfactory overall but revealed that she did not attend all of Angel's medical appointments, as requested. Dele was also discharged from the shelter where she was residing because she would not cooperate with its rules and was then living at a friend's house. ¶ 15 With regard to Darryl, Munez testified that he had been incarcerated from May 18, 2010, to April 27, 2012. Darryl was assessed for services in September 2010, and it was recommended that he participate in individual therapy, a substance abuse assessment, psychiatric services, and parenting services. While Darryl apparently participated in the substance abuse prison program in July 2011, there was no evidence that he completed it. On cross-examination, Munez acknowledged that the recommended psychological services essentially were not available in prison and also that Darryl had made repeated requests to visit with Angel and also sent her cards on a regular basis. She acknowledged that by June 2011, there was a family support specialist on staff but no attempt by the specialist to visit Darryl in prison. ¶ 16 Munez gave Darryl an overall unsatisfactory rating in the June 2, 2011, service plan because he was incarcerated and didn't have access to the recommended services. Munez testified that Darryl had one visit with Angel in December 2010 in the DOC, during which Angel had an allergy attack. The visits ceased because the child was unable to bring her doctor-recommended epi pen into the prison's visiting area. In a letter purportedly addressed to DCFS, dated January 22, 2012, and entered as an exhibit, Darryl called the caseworker and foster parents "bitches" and "illiterate motherfuckers," and vowed that they would not take his daughter from him. ¶ 17 The State introduced three certified convictions for Darryl, including a 2010 conviction for criminal trespass to a vehicle, a 2010 conviction for possession of a controlled substance, and a 2011 conviction for manufacturing/delivery of heroin. The State rested its case, joined by the GAL. The case was continued to May 14. Counsel for Darryl stated that he wanted the opportunity to speak with his client to determine whether Darryl would testify or hire another attorney. The judge emphasized he would not continue the unfitness hearing beyond May 14, but stated that should Darryl wish to testify, "I will be glad to hear from him at that time." ¶ 18 The unfitness hearing recommenced on May 14 with Dele and her counsel present, but Darryl failed to appear. His counsel first requested a continuance given Darryl's absence and then requested that the court pass the case so counsel could perform a custody check, which revealed that Darryl was incarcerated in the Cook County jail. Dele confirmed this fact. The judge stated he was not inclined to continue the case merely because Darryl was incarcerated because one of the grounds alleged for unfitness was repeated incarceration and "depravity." The court noted that Darryl was present for the May 1 unfitness hearing and was aware of the May 14 hearing. Counsel countered that Darryl was not voluntarily absenting himself from the proceedings because he did not have "the power" to get there and he had been there before. The Assistant State's Attorney noted that Darryl had been charged with possession of a controlled substance on May 4 with his next court date being May 23. Counsel for Darryl renewed his request for a continuance, emphasizing these were merely charges. Counsel further noted that Darryl's presence at the May 1 hearing demonstrated that so long as he had the ability to be in court, he would be there. The court observed that Darryl had not given anyone notice of his incarceration, meaning that there was no way for the State to timely writ him in. The judge stated while he appreciated Darryl's difficult position, he wasn't sure what testimony Darryl could offer to rebut the allegations. The court denied the request for a continuance, but suggested that counsel for Darryl make an offer of proof. Counsel declined. The GAL objected to moving forward with the hearing, stating a continuance until at least June 15 would be in the best interests of the child. The State joined in this request. The court reiterated it was Darryl's responsibility to follow the case and it was not in the minor's best interests to delay resolution further. The court stated that Darryl already was present for the State's witnesses and able to consult with counsel, so "he's already participating in the proceedings in that regard." ¶ 19 The case thus proceeded and Dele testified on her own behalf. She acknowledged she had not completed the prescribed services by DCFS, but asserted she did not need them. Dele testified that she understood how to address Angel's allergies and had brought her gifts - two raincoats, four pajamas, some underwear and socks - although these gifts never reached the child. Dele further testified that she was a "good mom," loved her daughter, felt her rights to Angel should not be terminated, and was fit to take care of her. Nonetheless, Angel acknowledged that she missed some visits because she was either incarcerated or without a bus pass. On cross-examination, Dele acknowledged that in January 2012, she was charged with assault and eventually convicted of the offense, for which she served 30 days' jail time. She also acknowledged that she was arrested in March 2012 for disorderly conduct with the charges still pending and a court date set for May 17. Dele further stated that she had attended three therapy visits for Angel and was not at the last hearing because she was hospitalized after being hit in the head with a bottle. ¶ 20 At the close of Dele's testimony, counsel for Darryl renewed his request for a continuance so that he could consult with his client regarding whether to "rebut or confirm" what Dele testified to. Counsel stated that he would call Darryl if the sheriff would bring him into court. The court stated it would not be possible to writ Darryl in that day, and his counsel again requested a continuance, stating that Darryl indicated he wanted to testify at the last court hearing. The court responded: "He could have. My notes indicate that the father indicated he may testify. He wasn't sure. And, we continued the case to give the mother another opportunity to come to court ***." For the reasons stated at the outset of the hearing, the court denied counsel's request for a continuance. ¶ 21 Following the State's closing argument, the court permitted the State to amend its petition as to the nine-month periods relating to Dele under section 1D(m) (750 ILCS 50/1D(m) (West 2010)) because the pleading listed dates prior to the adjudication of neglect. The State amended the pleading to reflect the dates of August 26, 2010 to May 26, 2011; May 27, 2011 to February 27, 2012; and August 1, 2011 to May 1, 2011. Dele's counsel objected to the amendment but did not specify why she was objecting. ¶ 22 Following evidence and argument, the court determined that Darryl was unable to discharge his parental responsibilities because of repeated incarceration, rendering him unfit under ground 1D(s) of the Adoption Act (see 750 ILCS 50/1D(s) (West 2010)). The court also determined that Darryl was unfit under ground 1D(m) for failure to make reasonable progress toward the return of his child within a nine-month period following adjudication of neglect "or within the subsequent nine month periods that have been pled." See 750 ILCS 50/1D(m)(ii), (iii) (West 2010). The court determined that Dele was unfit under ground 1D(m), as well, for failure to make reasonable progress towards the return of the child, within the 9-month time periods spanning from August 26, 2010, when the child was adjudicated a ward of the court, until the unfitness hearing. See 750 ILCS 50/1D(m)(ii), (iii) (West 2010). ¶ 23 Following the court's determination of unfitness, Darryl's counsel renewed his objection to proceeding absent the granting of a continuance. Without ruling again on this issue, the court scheduled the best interests hearing for June 15 and ordered the State to writ Darryl in for the proceeding.
¶ 24 Best Interests Hearing
¶ 25 The best interests hearing eventually took place on August 24, 2012, with Darryl present. Dele did not appear. The court noted that the case was continued from June 15 due to a death in the family of one of the attorneys. The court then took judicial notice of the evidence and testimony presented at the unfitness hearing. ¶ 26 Kerrie Roth, Angel's caseworker, first testified that Angel had been placed with her current foster parents since November 2009. Roth's monthly visits with the family had been safe and appropriate, with no signs of abuse or neglect and no unusual incidents. Roth observed a bond between Angel and her foster parents which had grown over her three years with them, as well as a sibling bond between Angel and her nearly three-year-old foster brother. Angel called her foster mother Shannon S., "Mama," and the other, "Laur Laur." Angel looked to Shannon for affirmation, hugs, and praises. The home was nicely kept, Angel had her own room, plenty of toys, appropriate clothing for the weather, and many neighborhood friends. Roth described the overall environment as "very positive." Roth noted that Angel suffered from a severe peanut allergy and was also allergic to milk, soy, and eggs, but her shots were up to date. Based on the foregoing, Roth testified Angel's foster parents could provide her with "a stable, nurturing environment," and that it therefore was in the best interests of Angel that Dele and Darryl have their parental rights to her terminated, and that DCFS be given the right to consent to adoption. She cited Dele's lack of involvement in services and Darryl's incarceration, stating that "he really doesn't have a relationship *** with the child." ¶ 27 On cross-examination, Roth stated that she was aware that Darryl had been released from custody and had spoken to him around July, when he asked to visit with the child. His request was not granted because it was deemed not to be in the child's best interests. Roth nonetheless acknowledged that Darryl was entitled to visit the child once a month even with the goal being termination of parental rights. ¶ 28 She also acknowledges that the February 2012 service plan indicated that Dele had successfully completed a training session regarding Angel's food allergies and that during one visitation, Dele did a "good job ensuring Angel's medical needs were met***." Roth also agreed that Dele had called her "a few times" and in at least one conversation inquired after the welfare of her child. Dele also asked whether they had changed their decision and would allow her to visit Angel. ¶ 29 Shannon, Angel's foster parent, testified that Angel had lived with her since November 2009, when Angel was 20 months old. Shannon and her partner had a civil union in December and were awaiting relicensing under DCFS rules. When Angel came under Shannon's care, Angel had a significant speech delay that was remedied with therapy. Angel called Shannon "mommy" or "mama" and her partner "Laur, Laur." Shannon testified that she was in the process of adopting Angel's foster brother who had been living with them nearly the same amount of time as Angel. She testified that Angel was active, outspoken, and that the four of them were a family. Angel had been happily incorporated into the foster families, while visiting her grandmother once a week and visiting her cousins regularly. The family traveled almost every weekend to their "lake home" in Michigan. Shannon testified that she loved Angel, was devoted to her, and wanted to adopt her. Shannon further testified she was willing to allow visits with Dele provided Angel's therapist approved. ¶ 30 Zakhem, Angel's therapist, testified that Angel had made great progress in learning to express herself and had a "secure attachment" to her foster parents. Zakhem had observed Shannon exhibit parenting skills towards Angel, and noted that her partner was also quite appropriate in her interactions with the child. Zakhem recommended that Angel be adopted by these foster parents because of the child's secure attachment with them. She described Angel as "happy and grounded," while testifying that Angel continued to express positive memories and interactions with her family and friends. ¶ 31 Following this testimony, the parties broke for lunch. Afterward, the court observed that Darryl had not yet returned, perhaps misunderstanding the return time. Darryl called one of the attorneys and stated that he was on his way, but testimony proceeded in his absence. ¶ 32 The State called Dele to testify. Dele acknowledged she had been convicted of felony possession of a stolen motor vehicle in November 2011 and apparently had violated probation in another case, requiring her return to court. After this testimony, the State rested. So did the GAL. ¶ 33 Dele called Kimberly Webb who testified that she was Dele's case manager at the youth service center. Webb testified that Dele needed anger management and GED classes, but there were on-site living skills and youth parenting classes that everyone participated in. Dele was enrolled the anger management and GED classes and was seeking employment. Webb testified that Dele had been compliant with the program and cooperative. Angel could live with Dele at the center and they would be provided with support services. ¶ 34 Clarise Jones testified that she was Dele's child caseworker at Jewish Child and Family Services from about 2009 to 2010, during the time Angel's case entered the system, but had maintained contact with Dele as a mentor since then. Jones testified that there was a mother-child and friendship bond between Dele and Angel. Dele provided appropriate care for her child. Jones testified that Angel entered the system because Dele had left her with "a responsible adult," her grandmother, and Jones saw nothing inappropriate in Dele doing so. Jones observed that Dele addressed Angel's allergies, sought to protect her daughter, did not place Angel in danger, and exhibited appropriate care and love. Jones testified that Dele relayed her desire to have her daughter back "all the time" and that Dele had made progress in her knowledge of parenting and ability to care for Angel while relying on outside resources. She felt Dele was dedicated to doing what was necessary to provide a safe environment for Angel. ¶ 35 On cross-examination, Jones stated she did not know why the order of protection from 2009 had been vacated and why Dele had lost custody of Angel. ¶ 36 Shortly after Jones began to testify, Darryl returned to court. ¶ 37 Candace Clark testified that she was a social worker who met Dele in 2011 at a shelter where Dele resided, but the relationship of mentor-mentee had since continued. Clark testified that Dele was cooperative with shelter services. Clark opined that Dele was slow to make progress toward reunification with Angel in part because staff would sometimes confiscate telephones. Without a telephone or money, it was hard to remain in contact with Angel's caseworker and obtain transportation. Dele's environment also was sometimes volatile. Clark testified that Dele had sought out anger management classes in her current program and that Clark would be a support system were they to allow Dele to reunite with her child. She felt Dele was a loving and committed parent. ¶ 38 On cross-examination, Clark admitted she had never seen Dele and Angel together. She did not know Angel had been removed from Dele's care and custody in November 2009. ¶ 39 Dele testified that since the fitness hearing, she had entered an independent living program where she was to begin anger management and GED classes. She testified that she was currently pregnant, but the father of the yet-to-be-born child had beaten her so she pressed charges. She testified she was no longer in a relationship with that man. Since the fitness hearing, Dele had tried unsuccessfully to visit Angel and inquired about her child. Dele testified she could safely parent Angel. When asked what she had learned from the proceedings, Dele responded, "not [to] leave my child unattended with other family members and -- that's it." Dele testified that she loved Angel and believed it was in Angel's best interests to be in her care. ¶ 40 Dele rested her case, and the court asked Darryl whether he wanted to testify. Darryl declined and promptly rested his case. Following a short recess, Darryl left the courtroom never to return. After closing argument, the court determined it was in the best interests of Angel that the parental rights of Dele and Darryl be terminated and that the guardian be granted the right to consent to adoption. Both natural parents timely filed appeals, which we will now consider.
¶ 41 ANALYSIS
¶ 42 The Juvenile Court Act of 1987 provides a two-stage process for involuntary termination parental rights. In re C.E., 406 Ill App. 3d 97, 107 (2010); 705 ILCS 405/2-29(2) (West 2010). First, there must be a showing, based on 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 2010)). In re C.E., 406 Ill App. 3d at 107. After finding a parent unfit, the trial court's task is to determine whether the termination of parental rights is in the best interests of the minor. Id. ¶ 43 We first address Darryl's contention that he was denied his federal constitutional right to procedural due process when the trial court denied counsel's motion to continue the May 14 fitness hearing based on Darryl's absence from court due to another incarceration. Darryl claims this was error warranting reversal. We disagree.
¶ 44 Darryl's Appeal
¶ 45 Stating the legally obvious, there is no doubt that a parent's interest in the care, custody, and control of his child is a fundamental liberty interest protected by the due process clause of the fourteenth amendment. Troxel v. Granville, 530 U.S. 57, 65-66 (2000); Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); In re M.H., 196 Ill. 2d 356, 361-63 (2001). To determine whether procedural due process was available in court during termination proceedings, our supreme court has adopted the test enunciated in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See In re D.T., 212 Ill. 2d 347, 362-63 (2004); In re Andrea F., 208 Ill. 2d 148, 165 (2003). Under Mathews, the dictates of due process require consideration of three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, while considering the probable value, if any, of additional safeguards; and, finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. In re D.T., 212 Ill. 2d at 362-63. ¶ 46 We thus proceed in our review noting that while a parent has a right to be present at an unfitness hearing (see 705 ILCS 405/1-5 (West 2010)), there is quite simply no requirement that he must be present. Further, it is regrettably true that lawful incarceration removes many of the rights and privileges of an ordinary citizen. In re C.J., 272 Ill. App. 3d 461, 464 (1995). Moreover, a trial court's decision to deny a motion for a continuance is a matter within its discretion and will not be grounds for reversal unless the complaining party has been demonstrably prejudiced. In re K.O., 336 Ill. App. 3d 98, 104 (2002); In re C.L.T., 302 Ill. App. 3d 770, 779 (1999); see also 735 ILCS 5/2-1007 (West 2010) (continuances). ¶ 47 Regarding the first Mathews factor, it is axiomatic that the liberty interest in parenting one's own child is of the utmost importance. See Santosky, 455 U.S. at 758-59 (noting the private interest affected in such a case, as well as the accuracy and justice of the decision, is "commanding"). Competing with the parent's liberty interest, however, is that of the minor in obtaining a normal family home. See D.T., 212 Ill. 2d at 363. At the unfitness stage, the interests of the parent and child coincide to the extent that they both share a vital interest in preventing erroneous termination of their natural relationship, which favors the use of error-reducing procedures in a more stringent way than the best interests hearing. Id. at 363-64. Given that the State's intent through termination of parental rights proceedings is to permanently end the parent's liberty interest in his child (M.H., 196 Ill. 2d at 363), the first Mathews factor militates in favor of Darryl. The same cannot be said regarding the other two factors. ¶ 48 The second Mathews factor requires us to consider the risk of erroneous deprivation of Darryl's liberty interest in parenting his child resulting from the procedures used in this case. As set forth, the unfitness hearing took place on May 1 and May 14. Darryl was present at the May 1 hearing, apparently having been released from the Illinois Department of Corrections. The court noted that Darryl previously had been writed into court at the February hearing. The cause then proceeded with the State presenting its case and testimony of its witnesses. Following that, the judge noted he would continue the unfitness hearing to May 14, but emphasized he would not continue it beyond that date. The judge stated that should Darryl wish to testify, "I will be glad to hear from him at that time." But, the May 14 hearing was met with Darryl's absence. Counsel stated he had learned that day that Darryl was incarcerated on a pending charge, and the State confirmed that Darryl had been charged with drug possession on May 4 with an upcoming court date of May 23. Given that Darryl was unable to attend court, his counsel requested a continuance, which the other parties agreed should extend to June 15. Counsel emphasized that Darryl had indicated a desire to testify at the May 1 hearing. The trial judge corroborated this by stating his notes from that proceeding indicated Darryl "may testify." Nonetheless, the court denied the continuance after noting that Darryl was aware of the hearing date, but had not contacted anyone to apprise them of his incarceration. Noting the obvious, the court emphasized that one of the grounds alleged for unfitness was the father's repeated incarceration, and that it was not in the child's best interests to delay the fitness hearing. ¶ 49 Considering these facts, we cannot say the procedures employed by the trial court risked an erroneous deprivation of Darryl's liberty interest in parenting Angel or his concomitant interest in testifying and participating in the case. The unfitness hearing was bifurcated, Darryl clearly had notice that the second half of the proceeding would take place on May 14, and he also had notice that he would have the opportunity to testify at that time. He was represented by an attorney at both hearings, but as the trial court correctly noted, Darryl did not contact his attorney or his caseworker to apprise them that he wanted to testify or needed to continue the case. Darryl had a duty to follow the progress of his case. See K.O., 336 Ill. App. 3d at 106. He had been writed into court once before and it is not unfair to presume he understood the need to be writed into court again. Thus, while Darryl might have been deprived of the opportunity to testify, it was through his own failures and not due to any error in court procedure. ¶ 50 Moreover, like the trial court, we question the probable value that the additional procedure of a continuance would have provided Darryl. See, e.g., In re A.M., 402 Ill. App. 3d 720, 725 (2010). After all, the principal ground for unfitness alleged was that of Darryl's repeated incarceration. Indeed, as of May 14, 2012, Darryl had been incarcerated for two of the four years of Angel's young life. He was incarcerated in IDOC at the inception of the State's termination petition. Repeated incarceration alone has been held sufficient to support a finding that the parent is unfit as a matter of law to support a summary judgment motion in favor of the State. See In re E.C., 337 Ill. App. 3d 391, 399-400 (2003). While there were additional allegations by the State against Darryl, any one properly proven ground is sufficient to enter a finding of unfitness. See In re C.E., 406 Ill. App. 3d at 107. Significantly, Darryl has not identified what testimony he would have offered to counter the State's allegations of unfitness; he did not file an offer of proof or a motion correcting any errors of fact with regard to the unfitness finding. See In re Jaron Z., 348 Ill. App. 3d 239, 258 (2004). Darryl, moreover, does not now challenge the underlying finding of unfitness. Nor does he contend that the child's interests would be better served were he to remain her father. We also find it curious that while Darryl was present for the best interests hearing, he did not return from the recess on time, so the testimony proceeded without him; he did not testify at the best interests hearing; and, he left the courtroom before the judge announced his final determination terminating Darryl's parental rights to his child. We would also add that the IDOC website, of which this court may take judicial notice (see People v. Henderson, 2011 IL App (1st) 090923, ¶ 8)), shows that Darryl currently is in IDOC again on a drug possession conviction and will not be released on parole until August of 2014. On this record, the value of additional procedure seems wanting. ¶ 51 Finally, regarding the third factor, the government's interest in seeking to adjudicate parental rights also weighs against additional delay in this case. Although Angel wasn't declared a ward of the court until August 2010, she was in DCFS custody as of November 2009, when she was less than two years old, and on DCFS's radar before then. Delay imposes a serious cost on the functions of government, as well as real if intangible cost to the well-being of the children involved. In re M.R., 316 Ill. App. 3d 399, 403 (2000). Here, the trial court rightly emphasized that in a juvenile proceeding, a court may continue the case only if it is consistent with the health, safety, and best interests in of the minor. See, e.g., K.O., 336 Ill. App. 3d at 104. While continuing the case for an additional 45 days would not have been a huge administrative burden, the fitness hearing had already been continued for 14 days. Moreover, on May 14, counsel for both parties were present, as were the State's witnesses, Dele, and Dele's witnesses, all of whom testified. Given our analysis under factor two, and the government's interest in finality on behalf of the child, we conclude that factor three militates against Darryl. The Mathews balancing factors, when weighed together, do not meaningfully support Darryl's claim of a violation of his due process rights. ¶ 52 In reaching this conclusion, we find In re C.J., 272 Ill. App. 3d 461 (1995), on which Darryl relies, to be factually distinguishable. There, the incarcerated mother filed a written letter and motion with the court stating she was not able to contact her case worker for nearly a year and wanted to be there at her child's termination hearing or to present some form of evidence so as to retain her parental rights. Analyzing the case under Mathews, the appellate court held the trial court's denial of respondent's motion to continue the case resulted in a violation of her due process rights. We note that following C.J., the legislature amended the Adoption Act to include the repeated incarceration provision. Pub. Act 90-28 (eff. January 1, 1998) (adding section 750 ILCS 50/1D(s)). Unlike in C.J., section 1D(s) was a specific ground for unfitness alleged in this case and, given the totality of the facts, Darryl did not evince a substantial desire to be there at the second half of his unfitness hearing or to present any evidence. Moreover, the unfitness and best interests hearings here, unlike in C.J., were held on separate dates, giving Darryl additional opportunity to respond. ¶ 53 As evident from this analysis, even if we were to conclude that the trial court erroneously deprived Darryl of his right to procedural due process by refusing to allow the continuance for Darryl's alleged testimony, we would ineluctably reach the same result, as any error would have been harmless. See In re Marriage of Bates, 212 Ill. 2d 489, 515, 518 (2004). We further note that to the extent Darryl argues the State and GAL have adopted positions on appeal contrary to their positions at trial regarding the continuance, we remain unpersuaded. While the State and GAL agreed with Darryl's counsel to continue the case, there was no discussion regarding whether the continuance violated Darryl's constitutional rights or prejudiced him, and the parties did not take one position or another on the issue. Based on the foregoing, Darryl's claim fails, and we proceed in our review of Dele's appeal.
¶ 54 Dele's Appeal
¶ 55 Dele first contends the unfitness statute (see 750 ILCS 50/1D(m)(ii), (iii) (West 2010)) does not account for the minor status of the parent in the determination of unfitness. She argues the statute, as applied in this case, violated her constitutional right to due process. She specifically complains the statute "allows for a finding of unfitness based on the mere passage of time" and precludes "recognizing the barriers teenage mothers who are wards of the court face when seeking to reunite with their child[ren]." Although Dele contends her substantive due process rights were violated under the state and federal constitutions, she offers no constitutional citations in support and does not advance any argument that our state's due process clause provides her greater protection than its federal counterpart. In such a case, we will presume her argument hangs on the federal due process clause. See In re Marriage of Miller, 227 Ill. 2d 185, 195-96 (2007) (treating the federal and state due process clauses coextensively, with guidance by federal precedent). That clause protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125 (1992); Miller, 227 Ill. 2d at 197. ¶ 56 The State responds that Dele forfeited her claim by failing to raise it in the trial court and that it is meritless. We agree. Merely because arguments raised for the first time on appeal address constitutional questions does not preclude the otherwise proper application of the forfeiture rule. Sherman v. Indian Trails Public Library District, 2012 IL App. (1st) 112771, ¶ 21. In civil cases, constitutional issues not presented to the trial court are deemed forfeited and may not be raised for the first time on appeal. Id.; c.f. Forest Preserve District v. First National Bank of Franklin Park, 2011 IL 110759, ¶ 27 (party's failure to challenge the constitutionality of a statute in the circuit court normally forfeits that challenge on appeal in a civil case). We find forfeiture particularly appropriate here, where Dele has raised an as-applied substantive due-process challenge. In such a case, how the statute was applied and the facts of the claimant's situation become particularly relevant. See Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). The record is insufficiently developed to overcome the presumption that the statute is constitutional and cannot sway us from our corresponding duty to uphold the constitutionality of the statute when reasonably possible. See Id. at 306-07. Dele has forfeited her constitutional claim. ¶ 57 Even were we to consider her claim, the language of ground 1D(m)(ii) and (iii), which defines a parent as unfit when she fails to make reasonable progress toward the return of the child within nine months of the adjudication or nine months thereafter, does not preclude consideration of the parent's youth or minor status. See In re C.N., 196 Ill. 2d 181, 216 (2001) ("[T]he benchmark for measuring a parent's progress under section 1(D)(m) of the Adoption Act must take into account the dynamics of the circumstances involved ***."). Dele also offers no case law or compelling legal argument to establish that the minor status and maturity level of the natural parent, as it relates to the parent's liberty interest in the child, should be granted greater precedence than the child's competing constitutional liberty interest in securing a stable home in an expedient manner when the natural parent has been found unfit. ¶ 58 Dele next challenges the trial court's best interests finding. As stated, following an unfitness finding, the trial court's task is to determine whether it's in the minor's best interests to terminate parental rights. Jaron Z., 348 Ill. App. 3d at 261. At this stage, the trial court focuses on the child's welfare and whether termination would improve the child's future financial, social, and emotional well-being. In re Daphnie E., 368 Ill. App. 3d 1052, 1071 (2006). In determining whether termination of a parent's rights is in the minor's best interests, the trial court must consider and balance a number of factors such as the minor's physical safety and welfare, including food, shelter, health, and clothing; her sense of attachments, security, and continuity of affection; and her need for permanence, as well as the preferences of individuals available to care for the minor. See 705 ILCS 405/1-3(4.05)(a) through (j) (West 2010). In addition, a court may consider the nature and length of the child's relationship with her present caretaker and the effect that a change in placement would have on her emotional and psychological well-being. Jaron Z., 348 Ill. App. 3d at 262. The State must prove by a preponderance of the evidence that termination is in the best interests of the minor, and the trial court's finding will not be overturned unless it is against the manifest weight of the evidence. Id. at 261-62; D. T., 212 Ill. 2d at 356-57; In re Tiffany M., 353 Ill. App. 3d 883, 891-92 (2004). ¶ 59 Dele contends the trial court's best interests finding was against the manifest weight of the evidence because of her strong mother-daughter bond with Angel and because she had been prohibited from visiting Angel. Dele also argues she has matured since the case entered the system and can provide Angel with the adequate support needed from a mother. ¶ 60 Here, in determining that Dele's parental rights to Angel should be terminated, the court noted that although Dele had progressed, she still had significant issues to overcome, preventing her reunification with Angel. The judge said he found all of the witnesses credible and emphasized he felt that visits with Dele could resume after adoption, provided Dele worked with a therapist. Balancing the factors, the court stated that Angel was then in a stable home where she could achieve permanency, that she had been integrated into the immediate and extended family of the foster parents, and that given the evidence, the State clearly had met its burden of proof. ¶ 61 On this record, we cannot help but agree with the trial court's sound and well-reasoned determination. The best interests stage is about the best interests of the child, not the parent, and all considerations yield to the child's interest in a stable, loving home. 705 ILCS 405/1-3(4.05) (West 2010); D.T., 212 Ill. 2d at 364. While Dele apparently had progressed significantly, she still had not achieved an independent living situation with employment, she had yet to engage in services long since recommended, and she continued to deal with the ramifications of her illegal activities. Although she contends she was prevented by DCFS and the foster mother from visiting with Angel, clearly it was her own inability to engage in the recommended counseling that precluded interaction. Given the evidence demonstrating Angel's bonded attachment to her foster family and her secure environment, we cannot say the opposite conclusion is in any way evident. See In re Tasha L.-I., 383 Ill. App. 3d 45, 52 (2008). ¶ 62 Lastly, we observe that Dele advances a new argument in her reply brief that the State failed to properly set forth, prior to the unfitness hearing, the nine-month periods needed for finding her unfit under ground 1D(m)(iii) of the Adoption Act. Section 1D(m)(iii) requires the State to file with the court and parties a separate pleading prior to discovery that identifies the nine-month periods used to establish the parent's lack of progress towards return of the child; the allegations in the pleading are then incorporated into the State's petition. 750 ILCS 50/1D(m)(iii) (West 2010). Here, the State filed the pleading, but Dele complains that the State should not have been allowed to amend it at the end of the unfitness hearing. ¶ 63 Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) provides that in the opening brief, "[p]oints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." Under that principle, Dele has forfeited her claim. Citing People v. Williams, 193 Ill. 2d 306 (2000), a criminal case addressing the plain error doctrine, Dele counters that errors affecting the substantial rights of the appellant such as the termination of her parental rights to her child may be raised for the first time in a reply brief. She further argues that under the recently decided In re S.L., 2012 IL App. (5th) 120271, ¶¶ 37, 42, appeal allowed, (No. 115424, Jan 22, 2013), where the State failed to file any pleading prior to the unfitness hearing, the State's pleading requirement cannot be waived. Given that Dele had substantial notice of the time periods alleged and that she forfeited her contention below and on appeal, we need not consider her contentions further. This case does not present anything analogous to plain error, and Dele has not set forth how the doctrine of plain error, distinct to criminal cases, can be applied in the civil context.
Although Dele cites only 1D(m)(iii), the trial court also found Dele unfit under 1D(m)(ii), as well (750 ILCS 50/1D(m)(ii), (iii) (West 2010)), in so far as Dele had not made reasonable progress toward the return of her child within nine months of the adjudication or any nine-month period thereafter. We consider the provisions together.
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¶ 64 CONCLUSION
¶ 65 Based on the foregoing, we affirm the decision of the circuit court of Cook County. ¶ 66 Affirmed.