Opinion
2-21-0649
03-31-2022
In re A.C., a Minor v. D.H., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County No. 19-JA-554 Honorable Francis Martinez, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court. Justices McLaren and Brennan concurred in the judgment.
ORDER
HUDSON, JUSTICE
¶ 1 Held: The respondent's attorney granted leave to withdraw where counsel demonstrated that there was no nonfrivolous issue to raise on appeal.
¶ 2 Respondent, D.H., is the biological grandfather and adopted father of A.C., who was born on May 13, 2016. Respondent appeals the trial court's rulings that he was an unfit person under section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2020)) and that the termination of his parental rights was in A.C.'s best interest. Respondent's appointed appellate counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and In re Zy.D., 2021 IL App (2d) 200629, which asserts that there are no issues of arguable merit to be raised on respondent's behalf. For the reasons set forth below, we grant appellate counsel's motion and affirm.
¶ 3 I. BACKGROUND
¶ 4 A. Neglect Petition and Shelter Care Proceedings
¶ 5 On December 26, 2019, the State filed a one-count neglect petition on behalf of three-year-old A.C., alleging that she was a neglected minor and her environment was injurious to her welfare because respondent's wife, De.H., had a substance abuse problem which prevents them from properly parenting A.C., thereby placing A.C. at risk of harm. 705 ILCS 405/2-3(1)(b) (West 2018). A shelter care hearing was held the same day.
De.H.'s parental rights were also terminated in this case, and she filed a separate appeal.
¶ 6 The shelter care report, also filed on December 26, 2019, by the Department of Children and Family Services (DCFS) set forth the basis for the petition. The report indicated A.C.'s biological mother is respondent's stepdaughter (and De.H.'s daughter). Respondent and De.H. were granted custody of A.C. on April 25, 2017, due to A.C.'s biological mother's drug abuse. Respondent and De.H. (collectively referred to as the parents) adopted A.C. on June 18, 2019. The report stated that DCFS involvement in this case commenced in December 2019 when De.H. tested positive for both cocaine and benzodiazepines while in the hospital being treated for injuries suffered after she fell in the shower. The report indicated that there was "an ongoing history of drug use and domestic violence," including three DCFS investigations of the parents' home in the past year and several police visits to the home. A.C. was placed with her maternal aunt and her paramour.
For clarification, A.C.'s aunt, C.C. and E.O., her paramour at that time, are the foster parents. C.C. is De.H.'s biological daughter and respondent's stepdaughter. C.C. and E.O. married during the pendency of this case and will be referred to as foster mother, foster father, or foster parents.
¶ 7 The parents waived their right to a shelter care hearing and agreed that there was probable cause of neglect, that there was an urgent and immediate necessity to remove the minor, and that reasonable efforts had been made by DCFS. They agreed that DCFS would be granted temporary guardianship and custody of A.C. and visitation would be supervised and at the discretion of DCFS. The parents were ordered to cooperate with DCFS, to remain drug free, and to submit to random drug tests with less than 24-hours' notice. They were admonished that missed drug tests would be deemed positive. Both parents were appointed counsel, and Mary Cacciapaglia was appointed guardian ad litem (GAL).
¶ 8 An integrated assessment report was filed on March 9, 2020. The report revealed that the parents were married in 2014. They had been A.C.'s primary caregivers for most of her life and adopted her in June 2019. The report noted a history of domestic disturbances in the parents' home, including numerous calls to the police regarding domestic violence and drugs during the prior year. De.H. was arrested for domestic battery against respondent in August 2019, but respondent reported that it was a misunderstanding and there is typically no physical aggression in their relationship. Respondent has a "history of relationship behavioral problems." He was convicted of aggravated battery against a previous paramour in 2011, though respondent stated that he was "framed." Due to a violation of probation, he was sentenced and served three-and-one-half years in prison. Because of that conviction, he completed a "Partner Abuse Intervention Program." Respondent has worked as a plasterer for most of his life. He was unemployed for a while prior to beginning work in January 2020. He and De.H. have lived in their current residence since January 2020. Prior to that, they did not have a stable residence and lived apart for a period of time. Respondent's criminal history from 1986 to 2011 includes seven convictions for assault, two convictions for criminal damage to property, one conviction for larceny, and numerous other charges and convictions. His most recent was the aforementioned conviction for aggravated battery. Respondent acknowledged a "history of problematic alcohol use" in the past, but he denied current use of alcohol or drugs. However, the report noted that he "may have more recent problems with alcohol use as there is evidence of emotional and behavioral instability and interpersonal behavioral problems that may have been perpetuated by substance use" because several of the recent police contacts described respondent as intoxicated. Respondent has a history of mental health issues including depression. Most notably, he was psychiatrically hospitalized in 2019 for making suicidal statements following an argument with De.H. The report revealed the parents were living separately when the case began, but the concerns regarding them both have been documented for several years with an escalation in instability over the six months prior to A.C.'s removal. Further, A.C.'s biological sister, now seven months old, was placed with the parents after her birth, but removed in August 2019 due to safety concerns.
¶ 9 Recommended services included a substance abuse assessment, random drug screening, individual therapy, and other services deemed necessary. Domestic violence services were not required at the time. The prognosis for reunification was "guarded-poor" because of respondent's substance use, mental health, problematic relationship behavior, and other personal challenges. There were concerns regarding his willingness to comply with services essential for reunification. He expressed interest in reunification with both De.H. and A.C., but there is concern with their ability to maintain a stable and safe home. His commitment to reunification as a sole primary parent was unclear.
¶ 10 B. Adjudication and Disposition
¶ 11 The matter proceeded to an adjudicatory hearing on June 2, 2020. After conferring with counsel, the parents stipulated to the neglect petition. A.C. was adjudicated neglected, and the court admonished the parents to cooperate and make reasonable efforts and reasonable progress to cure the conditions that lead to A.C.'s removal.
¶ 12 At the dispositional hearing on July 15, 2020, the parties agreed to entry of a "standard dispositional order" which found the parents unfit, unwilling, or unable to properly protect, train or discipline A.C. It was noted that A.C. was doing well in her current placement and she would remain there. The goal set was for return to home. The parents were admonished of their right to appeal as well as their obligations to cooperate and engage in any services deemed necessary by DCFS to meet the goal of reunification.
¶ 13 At the status of services hearing on September 29, 2020, the court noted respondent remained on a waiting list for services due to delays associated with the Covid-19 pandemic. The Youth Service Bureau (YSB) report filed on September 24, 2020, indicated that respondent was still waiting to be assigned a counselor and to obtain a domestic violence assessment. Respondent completed a substance-abuse assessment at Rosecrance and was found to not be in need of services at that time. He passed two drug tests since the last court day of July 15, 2020, but one was taken two days later than ordered. He missed a test on July 24, 2020. He was told he must complete another substance-abuse assessment due to the missed test. The parents missed numerous scheduled visits with A.C. between July and September 2020, including two due to Covid-19 restrictions, four cancelled by the parents, one cancelled because the parents failed to confirm, and two cancelled due to quarantine requirements resulting from the parents traveling out of state to a Covid-19 hotspot.
¶ 14 C. Permanency Reviews
¶ 15 The first permanency-review hearing was held via Zoom on December 22, 2020. The permanency review report filed with the court the day before showed that respondent had missed one drug test since the last court hearing and tested positive for methadone on one occasion. YSB had been unable to meet with respondent to complete a new referral for another substance-abuse assessment. The December 2020 service plan required respondent to complete a domestic-violence assessment, but he failed to do so. Respondent was instructed on how to connect via Zoom, but he did not call in for the appointment and did not reschedule. YSB had been unable to reach respondent to set up his mental-health assessment. He was reportedly unemployed and was behind on rent on the home he shared with De.H. Regarding visitation, the report noted that the parents have two hours of supervised visitation with A.C. each week. Since the last court hearing, seven visits had been scheduled. The parents attended two of these visits but ended them both early. The missed visits were reportedly due to illness, car trouble, and being out of town. During the visits, respondent spent most of the time on his phone.
¶ 16 The State and GAL rested on the permanency review report which recommended a finding that no efforts or progress toward reunification had been made, that A.C. remain in the custody of DCFS, and that the goal be return to home in 12 months. The court adopted the recommendations in the report.
¶ 17 The second permanency-review hearing was held on March 16, 2021. The only evidence presented was a YSB status report which was filed on March 11, 2021. The report revealed that respondent failed to engage in counseling services at YSB. YSB reached out to him, but he never returned any calls. Respondent was also dropped from domestic-violence services for failing to follow through. A new referral was made for both services, and he was placed on a waiting list. Respondent reported that he was working, but YSB was unable to verify it. Regarding his drug tests, respondent tested negative on all tests he had taken since the last court date; however, he missed three tests and took one more than 24 hours after the scheduled time. Respondent attended one of the ten supervised visits with A.C. since the last court hearing and left this visit early. The reported noted that the lack of visits made it difficult to assess respondent's ability to parent. The report recommended findings that respondent made no efforts or progress, that A.C. remain in custody and guardianship of DCFS, and the goal remain return to home in 12 months.
¶ 18 The State recommended that, based upon respondent's lack of efforts and progress, the permanency goal be changed to substitute care pending termination of parental rights. The GAL agreed with the State's recommendations, noting the numerous missed drug tests, respondent's failure to actively engage in any services and lack of cooperation with DCFS, and respondent's minimal visitation with A.C. The GAL noted that both parents had been dropped from the domestic-violence program and counseling since the last review period. Respondent's counsel requested that the goal remain return home within 12 months and asked for a short return date, explaining that respondent and De.H. were "looking to get a divorce and we're hoping that once there's a clean break, the services will be easier to engage in." Respondent's counsel noted that all drug tests he had taken in this review period were negative, though he acknowledged that there were several missed tests which are considered positive.
¶ 19 After reviewing the report and determining that DCFS had made reasonable efforts at offering services and making those services available to the parents, the court ruled that respondent had not made reasonable efforts or reasonable progress towards reunification. Finding the prognosis for reunification poor, the trial court changed the goal to substitute care pending termination of parental rights.
¶ 20 D. Termination Proceedings
¶ 21 On April 22, 2021, the State filed a three-count motion for termination of parental rights and power to consent to adoption alleging that respondent was unfit because he: (1) failed to maintain a reasonable degree of interest, concern, or responsibility as to A.C.'s welfare (750 ILCS 50/1(D) (b) (West 2020)); (2) failed to make reasonable efforts to correct the conditions that caused A.C. to be removed during a nine-month period after she was adjudicated a neglected or abused minor under section 2-3 of the Juvenile Court Act of 1987 (Juvenile Court Act) or dependent minor under section 2-4 of the Juvenile Court Act (750 ILCS 50/1(D) (m) (i) (West 2020)); and (3) failed to make reasonable progress toward the return of A.C. during a nine-month period after she was adjudicated a neglected or abused minor under section 2-4 of the Juvenile Court Act (750 ILCS 50/1 (D)(m)(ii) (West 2020)). The referenced time periods were June 17, 2020, to March 16, 2021, (count 2) and June 2, 2020, to March 1, 2021, (count 3). On May 3, 2021, respondent was arraigned, and the matter was continued.
¶ 22 1. Unfitness Hearing
¶ 23 The unfitness phase of the proceedings to terminate respondent's parental rights commenced on June 4, 2021.
¶ 24 The State's only witness was Lacey Wacker-Gray, the foster-care caseworker from YSB assigned to A.C, now five years old. Wacker-Gray testified that she is responsible for ensuring a minor's safety while in placement as well as working with parents on services toward reunification. She confirmed that she assisted in completing the integrated assessment in this case, including interviewing the parties and making recommendations for services for the parents. The integrated assessment and three service plans (plans from January, June, and December 2020) were admitted into evidence. Wacker-Gray testified that YSB had difficulty contacting the parents during the course of this case. Because YSB was initially given only one phone number for the parents, she often relied on De.H. to relay messages to respondent. Respondent never indicated that he did not receive any messages from De.H. Respondent often did not show up for scheduled meetings, would not return phone calls, and did not confirm visits in a timely manner. Wacker-Gray testified that she and respondent's counselor made multiple attempts to contact respondent to get him to attend family-team meetings, but they were never able to speak to him. She estimated that the parents missed "over half of the appointments that were scheduled" with YSB.
¶ 25 Regarding visitation, Wacker-Gray stated that the parents often missed visits without giving notice, and when they did attend a visit, they would end the visits early. Wacker-Gray estimated that the parents had missed over half of the visits since the case was initiated. The missed visits were disruptive to A.C.'s schedule, causing A.C. frustration and some behavioral issues. Wacker-Gray testified that when she explained this to respondent, he did not have any response. At one point, the foster parents requested to stop being responsible for supervising visitation because it was causing problems in their home. The parents would schedule visits and then not show up, or they would call "randomly and ask to come over when [the foster mother] was working or late at night." Thereafter, Wacker-Gray supervised some of the visits. She stated De.H. would make efforts to engage with A.C., but there was very little engagement between respondent and A.C. and he "just kind of sat on his phone all the time." Wacker-Gray attempted to discuss this with respondent, but he was uncooperative and would not talk to her about it. They did bring food for A.C., and once brought some age-appropriate clothes and toys. Wacker-Gray stated that respondent never progressed to unsupervised visits because he did not satisfactorily complete any required services.
¶ 26 Wacker-Gray testified that respondent was referred for domestic-violence services and, due to Covid-19, he was placed on a waiting list. Once respondent was able to schedule an assessment, Wacker-Gray explained that "according to Emily [from Children's Home and Aid], she walked him through how to complete the connection with Zoom to do the assessment, and he didn't show up to the assessment; and when he called back to schedule the appointment, he refused to schedule it because he didn't want to wait until the next available assessment." Respondent's counsel objected to this testimony as hearsay. The court overruled because "It's part of her monitoring the case." Wacker-Gray confirmed that respondent never completed an assessment.
¶ 27 Wacker-Gray expressed concerns about respondent's history of alcohol abuse. However, she acknowledged that the drug tests he had taken had all been negative except for one that was positive for methadone. Respondent was not in a methadone treatment program, and he indicated that he did not know why he would have tested positive for methadone.
¶ 28 Wacker-Gray expressed further concerns regarding respondent's mental health. Respondent reported that at times he is "extremely depressed." He began counseling in October 2020, but was discharged as "unsuccessful" on December 20, 2020, because he missed too many appointments. Wacker-Gray was unable to talk to respondent about his discharge from counseling because he never returned her calls. Wacker-Gray stated she was aware that respondent and De.H. had discussed divorce.
¶ 29 On cross-examination, Wacker-Gray acknowledged that respondent participated in counseling for approximately two months before being discharged as unsuccessful. She also acknowledged that the integrated assessment did not require domestic-violence services at that time. However, she explained that, after that assessment, the supervisor read the case history and recommended that domestic-violence services be included in the service plan because of the history of domestic calls to the police and information provided by the investigator. She confirmed that the parents never attended any of A.C.'s doctor appointments nor did they contact the GAL independently about A.C.'s welfare.
¶ 30 The State asked the court to take judicial notice of the temporary custody order dated December 26, 2019; the order of adjudication entered June 2, 2020; the order of disposition entered July 15, 2020; and the permanency review orders entered on December 20, 2020, and March 16, 2021. The State also admitted certified copies of respondent's convictions for domestic battery and aggravated battery. The court found this evidence relevant as to the recommendation for domestic-violence services, and noted it was "a matter of weight, not admissibility, for those matters." The court denied admission of respondent's conviction for driving with a suspended license. The State sought admission of the indicated packet from A.C.'s biological mother's neglect case which led to the parents adopting A.C. Respondent's attorney objected to the relevance, arguing that it was more "irrelevant than probative." The court took the objection under advisement.
¶ 31 De.H. was called to testify on her own behalf. Respondent did not testify.
¶ 32 On July 14, 2021, the trial court issued its decision, finding that the State met its burden of proof on all three counts of the motion for termination of parental rights. The court enumerated the recommended services in the March 2020 integrated assessment and found that respondent did not successfully complete or make progress in any service that was recommended. The court noted that respondent was difficult to communicate with throughout the case and family-team meetings were scheduled and missed on at least three occasions. The court concluded that all three counts were proven by clear and convincing evidence. Regarding the exhibits, the court confirmed that respondent's conviction for driving with a suspended license and the indicated packet from the biological mother's neglect case were not "relevant to the decision and not considered by the court."
¶ 33 2. Best Interest Hearing
¶ 34 The best interest hearing was held on October 6, 2021. The following witnesses testified at the hearing: Wacker-Gray, respondent, and the foster mother.
¶ 35 Wacker-Gray testified that A.C. had been in the care of her foster parents for approximately two years. Wacker-Gray visited A.C. in her foster home twice each month since the beginning of this case. She has observed that they have a typical parent-child relationship. A.C.'s foster parents attend to all of her needs including her daily physical and emotional needs, taking her to school, and scheduling her medical appointments. A.C. shows affection to her foster parents, they play games, and they have gone on vacations. A.C. refers to her foster parents as "Auntie [C.]" and "Uncle [E.]." The foster mother's father lives with them and has a "very close relationship" with A.C. Wacker-Gray testified that he "spoils her rotten like a typical grandparent would do." Wacker-Gray has observed A.C. with her extended family, including her foster father's parents and his siblings and they all have close relationships as well. A.C. has two younger biological siblings and several foster siblings. A.C.'s foster parents facilitate a relationship between A.C. and her biological sisters, including monthly visits.
¶ 36 A.C. attends kindergarten and does not have any special needs. A.C. has been in trouble in school a "couple of times just for not following directions and spitting on someone." Wacker-Gray testified that A.C. has been referred to counseling. She explained the counseling is to "go over the process of what's happening. She doesn't quite understand. And it's also to help her work through some of the issues she has as far as her behaviors."
¶ 37 Before Covid-19 restrictions, A.C. participated in gymnastics, and she will be starting again soon. A.C. goes bowling with her foster father. A.C. participates in holidays and vacations with her foster family, and they recently had a party for her birthday.
¶ 38 A.C. does not currently have a relationship with respondent and De.H. Wacker-Gray explained that after the goal was changed to substitute care pending adoption, one visit was allowed before visitation was discontinued with the parents. The parents were aware of this decision. This decision was made due to their overall lack of effort regarding visitation. The parents have not since inquired about A.C.'s welfare. A.C. refers to respondent and De.H. as her grandparents. When A.C. is asked about her relationship with them, Wacker-Gray testified, "The only things that she has told me is that she was upset they didn't come to her birthday party and they didn't call her on her birthday. And she often tells me that she wants to stay with Auntie [C]."
¶ 39 Wacker-Gray confirmed that she has no concerns over A.C.'s safety in her foster home. The foster parents provide a loving environment for A.C. and are willing to adopt her. Wacker-Gray testified that she believes it is in A.C.'s best interest that respondent's rights be terminated because they were found unfit, they were unwilling to cooperate in services, and a child should not have to "wait around for someone to finish their services if they're not putting effort into those services." Wacker-Gray stated that continued substitute care raises concerns that A.C. will have confusion as she gets older and not know where she belongs.
¶ 40 On cross-examination, Wacker-Gray agreed that it would be traumatic for a child to have two different sets of parents have their rights terminated. When questioned by the GAL, she agreed that it is stressful for a A.C. to have been in DCFS care for the majority of her life.
¶ 41 The court took judicial notice of the evidence and testimony presented at the unfitness hearing and the best-interest-hearing report on August 11, 2021. The State rested.
¶ 42 Respondent was called to testify. He testified that he adopted A.C. when she was three years old. Regarding visitation, he testified they had "good visits" and that he would bring her gifts, such as a drum set for Christmas and a filled basket at Easter. He testified that he was not invited to A.C.'s birthday party. He said he had a gift for her and texted her foster mother to ask about visiting with A.C. but did not receive a response. Respondent testified that when he calls or texts A.C.'s foster parents they do not answer, and if they do answer, they say they are busy and cannot talk. Respondent testified that De.H. has been sober for "going on five months." He said there had been no domestic violence in his home during the pendency of this case.
¶ 43 When asked if there was anything else he wished to say, he returned to the topic of visitation. He stated that visits occurred after school, and he would bring her "snacks and stuff." He said "We always had good visits." He acknowledged that there were "a few times" that he could not attend because of car issues or because he had to work late. He acknowledged ending visits early, but said it was because A.C. was tired. When asked whether he thought he would be able to have visitation with A.C. in the future, he said "I don't know. It's highly doubtful," because of the lack of communication with A.C.'s foster parents. When asked about his interaction with A.C. during visitation, he said she is very happy to see him and "I'm her papa, and she's, you know, that's, that's what she knows of me." He said he believes she misses him and De.H.
¶ 44 The GAL called A.C.'s foster mother to testify. She did not invite the parents to A.C.'s birthday party. She did receive a text from De.H. asking her to wish A.C. happy birthday, and she did so. She did not receive any messages from respondent about A.C.'s birthday until a couple weeks later. Respondent texted that she had given him the "cold shoulder" about seeing A.C. on her birthday, so they arranged for him to see A.C. the next day. However, respondent did not come and did not call or text to say he was not coming.
¶ 45 On cross-examination, the foster mother stated that it is clear that A.C. loves her grandparents and that she would be willing to allow visitation in the future. She said they are "more than welcome to come over to have visits, and we can work, work our way to overnight or come to grandma and grandpa's or whatever. I am open to anything. As long as they're willing to work with me." When asked what she meant by that, the foster mother stated, as long as they "do what they're supposed to be doing" and have a home and stability. She explained that she had not seen De.H.'s home in over three years and she does not know their work schedules. The foster mother stated, "I never would talk bad of my mom [De.H.] or [respondent] to [A.C] ever. So to her, she does miss them. She loves them. She doesn't think any different of them." The last time she heard from respondent was in July when he sent her a long message. She has not made further attempts to reach out to respondent since then.
¶ 46 The court asked the foster mother if she was present for the proceedings when respondent and De.H. adopted A.C. She said she was, and she completely supported the decision to allow them to adopt A.C. at the time. She explained that she was not aware of De.H.'s drug use at that time. When she learned of De.H. 's drug use, she became very concerned for A.C. Further, she said that she and De.H. no longer have a relationship because of De.H.'s drug use. When De.H. was clean and sober, the foster mother said they had a good relationship.
¶ 47 The best-interest-hearing report filed by Wacker-Gray stated that A.C. was doing well in her placement and was looking forward to school. She was current on her medical exams and immunizations. She vacationed with her foster family in Arizona over the summer and had been having visits with one biological sister, who is also in foster care. A.C. is described as a "sassy and smart girl." She enjoys playing with her kitten and Barbies. She had a birthday party during the summer that included family and friends, however, respondent and De.H. were not present and did not call her until several days later. A.C. has been referred for counseling to help her process the changes happening in her life and address permanency. Counseling is intended to help A.C. understand what has happened and why her siblings are in different homes.
¶ 48 At the close of proofs and after hearing argument of counsel, the court found that the State had proven by a preponderance of the evidence that it was in A.C.'s best interest to terminate respondent's parental rights. The court found that the foster parents have provided a safe and secure environment, that A.C. is bonded with the foster parents and is fully integrated into their family. The foster parents meet A.C.'s every physical and emotional need. The court found that a denial of the petition would extend the child's road to permanency, which is not in the child's best interests when her foster family is ready, willing, and able to provide permanency. The goal was changed to adoption. The court admonished respondent and De.H. of their rights to appeal. A written order reflecting this decision was entered on October 20, 2021, and this appeal followed.
¶ 49 E. Anders Motion
¶ 50 The trial court appointed counsel to represent respondent on appeal. Appellate counsel filed a motion to withdraw pursuant to Anders, 386 U.S. 738 and In re Zy. D., 2021 IL App (2d) 200629 (clarifying the standard for determining whether to accept an Anders motion in an abuse and neglect case). Appellate counsel supported his motion with a memorandum of law providing a statement of facts, potential issues, and an argument as to why the potential issues lack arguable merit. Appellate counsel avers that he served respondent with a copy of the motion and memorandum. The clerk of this court also issued an order, notifying respondent of the motion and allowing him 30 days to respond. The 30-day period has passed, and respondent has not filed a response.
¶ 51 II. ANALYSIS
¶ 52 Appellate counsel identifies four potential issues in his motion to withdraw-an evidentiary challenge to the admission of certain testimony at the unfitness hearing, a challenge to the trial court's consideration of an indicated packet at the unfitness hearing, a challenge to the unfitness finding, and a challenge to the best-interests finding. We will address each in turn.
¶ 53 The Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2020)) sets forth a two-stage process for the involuntary termination of parental rights. In re Keyon R., 2017 IL App (2d) 160657, ¶ 16. Initially, the State has the burden of proving by clear and convincing evidence that the parent is unfit under any single ground set forth in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2020)). See 705 ILCS 405/2-29(2), (4) (West 2020); In re J.L., 236 Ill.2d 329, 337 (2010). If the trial court finds the parent unfit, the State must then show by a preponderance of the evidence that termination of parental rights is in the child's best interest. See 705 ILCS 405/2-29(2) (West 2020); In re D.T., 212 Ill.2d 347, 367 (2004). On appeal, this court will not disturb a trial court's finding as to parental unfitness or a child's best interests unless it is against the manifest weight of the evidence. In re N.B., 2019 IL App (2d) 180797, ¶¶ 30, 43. A decision is against the manifest weight of the evidence "only if the opposite conclusion is clearly apparent or the decision is unreasonable, arbitrary, or not based on the evidence." Keyon R., 2017 IL App (2d) 160657, ¶ 16. Furthermore, a trial court's decision to admit or deny evidence during a parental-rights termination hearing is reviewed under an abuse-of-discretion standard. In re Nylani M., 2016 IL App (1st) 152262, ¶ 34. A trial court abuses its discretion when its ruling is fanciful, unreasonable, or when no reasonable person would adopt the view of the trial court. In re Aniylah B., 2016 IL App (1st) 153662, ¶ 22.
¶ 54 A. Hearsay
¶ 55 We first address appellate counsel's suggestion that the trial court may have improperly admitted hearsay testimony at the unfitness hearing. Wacker-Gray testified that respondent was placed on a waiting list for domestic-violence services. Once respondent was able to schedule an assessment, Wacker-Gray explained that "according to Emily [from Children's Home and Aid], she walked him through how to complete the connection with Zoom to do the assessment, and he didn't show up to the assessment; and when he called back to schedule the appointment, he refused to schedule it because he didn't want to wait until the next available assessment." Respondent's counsel objected to this as hearsay, and the court overruled, explaining "It's part of her monitoring the case."
A review of the record reveals that Wacker-Gray was referring to Emily Salomon, a therapist with Children's Home and Aid who was working with respondent.
¶ 56 A further review of the record reveals that the incident about which Wacker-Gray testified was described in the December 2020 service plan which had already been admitted into evidence without objection under the business-records provision of the Juvenile Court Act (705 ILCS 405/2-18(4) (a) (West 2020)). Specifically, the summary-of-progress section of the service plan provided that "[Respondent] failed to complete his domestic violence assessment at Children's Home and Aide. He was walked through how to connect through Zoom but failed to attend his appointment. He has not called to reschedule at this time."
¶ 57 Termination proceedings under the Juvenile Court Act employ the general rules of civil practice and provisions of the Code of Civil Procedure (735 ILCS 405/1-1 et seq. (West 2020)) unless the Juvenile Court Act specifically governs the procedure at issue. See 705 ILCS 405/2-18(1) (West 2020); In re Z.J., 2020 IL App (2d) 190824, ¶ 54. To that end, the Act provides that business records, including "[a]ny writing, record, photograph, or x-ray of any hospital or public or private agency, whether in the form of an entry in a book or otherwise, made as a memorandum of record of any condition, act, transaction, occurrence or event relating to a minor in an abuse, neglect or dependency proceeding shall be admissible" into evidence if the statutory foundational requirements are satisfied. 705 ILCS 405/2-18(4)(a) (West 2020). Under the business record exception, a witness is not permitted to testify as to the contents of a document or to present a summary of the contents because the document" 'speaks for itself.'" In re A.B., 308 Ill.App.3d 227, 236 (1999) (quoting M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 803.10, at 825 (7th ed. 1999)).
¶ 58 Wacker-Gray served as the caseworker for A.C. since this case was opened in December 2019. She testified that she assisted in completing the integrated assessment as well as all of the service plans in this case. Her direct knowledge of the investigation, reporting, and progress of this case is well established in the record. However, as proffered, her testimony describing Emily's interaction with respondent was second-hand knowledge of the incident. Still, the admission of this testimony did not constitute reversible error because the incident was documented in the service plan which had already been admitted into evidence. Thus, Wacker-Gray's testimony in this regard was" 'mere surplusage.'" In re Z.J, 2020 IL App (2d) 190824, ¶ 64 (quoting In re A.B., 308 Ill.App.3d 227, 237 (1999)). Therefore, we agree with appellate counsel that the issue regarding the admission of Wacker-Gray's testimony is unmeritorious.
¶ 59 B. Consideration of the Indicated Report
¶ 60 The next potential claim of error raised by appellate counsel involved the trial court's consideration of the indicated report from the original neglect case involving A.C.'s biological mother which resulted in the parents adopting A.C. Respondent objected to the State's motion to admit this report, arguing it was irrelevant. De.H.'s counsel joined the objection. This occurred at the close of proofs in the unfitness hearing, and the judge stated: "Okay. What I'll do is take that objection under advisement because I'll have to go through the indicated packet myself. So I wrote a note that in giving my eventual decision, I will rule on its admissibility and whether the Court relied on it or not." Thereafter on July 14, 2021, the trial court issued its unfitness decision in open court and the following colloquy took place between De.H's attorney and the court:
"Mr. PALMER: Just reviewing my notes from the unfitness portion, there was a question in regard to People's Exhibit 5. That was an indicated packet [from the prior neglect case involving A.C.'s biological mother]. I believe I had made an objection and your Honor was going to review that and decide on admissibility."
THE COURT: You know, I did not use People's 5. I don't think I cited that. I did not use People's 5 in my decision, so . . .
Mr. PALMER: That answers the question then. Thank you."
Further, a written order was entered on June 4, 2021, confirming that People's Exhibit 5 was not "relevant to the decision and not considered by the court." Consequently, there is no merit to the claim that the trial court abused its discretion in considering this evidence because the court, in fact, did not consider this evidence.
¶ 61 C. Unfitness
¶ 62 Next, appellate counsel points to potential issues regarding the trial court's findings of unfitness on all three grounds alleged in the motion for termination of parental rights, including failure to maintain a reasonable degree of interest, concern, or responsibility as to A.C.'s welfare; failure to make reasonable efforts to correct the condition that caused A.C.'s removal during the nine-month period of June 17, 2020, to March 16, 2021; and failure to make reasonable progress toward the return of A.C. during the nine-month period of June 2, 2020, to March 1, 2021. 750 ILCS 50/1 (D)(b), (m)(i), (m)(ii) (West 2020).
¶ 63 To examine whether there exists any arguable merit to claims that respondent could raise on appeal regarding his fitness, we must bear in mind that any one ground, properly proved, is sufficient to affirm. In re Janine M.A., 342 Ill.App.3d 1041, 1049 (2003). As previously stated, a trial court's unfitness finding will not be disturbed on review unless it is contrary to the manifest weight of the evidence, meaning that the opposite conclusion is clearly evident or the finding is not based on the evidence. See In re Gwynne P., 215 Ill.2d 340, 354 (2005). After careful review, we agree that there would be no arguable merit to a challenge to the court's finding of unfitness because, at a minimum, the court's finding that respondent failed to make reasonable progress toward reunification during the designated nine-month period is not contrary to the manifest weight of the evidence.
¶ 64 The question of reasonable progress is an objective one, which requires the trial court to consider whether a parent's actions during a given nine-month period would support the court's decision to return the child home in the near future. In re Phoenix F., 2016 IL App (2d) 150431, ¶ 7. The court will consider the parent's compliance with the service plans and the court's directives. In re C.N., 196 Ill.2d 181, 216-17 (2001). For there to be reasonable progress, there must be, at a minimum, some measurable or demonstrable movement toward the goal of reunification. In re J.O., 2021 IL App (3d) 210248, ¶57.
¶ 65 The record shows that respondent made no measurable movement toward the goal of reunification between June 2, 2020, and March 1, 2021, due to his own persistent lack of cooperation and follow-up with YSB. Respondent was ordered to complete a domestic-violence assessment, but failed to call in for the appointment. According to the March 2021 permanency review report, he was dropped from that program for failing to follow through. Respondent began counseling in October 2020, but was discharged as "unsuccessful" on December 20, 2020, because he missed too many appointments. Both Wacker-Gray and his counselor attempted to contact him about his discharge from counseling as well as multiple missed family-team meetings, but he never returned their calls. Although respondent did complete a substance-abuse assessment and it was determined that no services were needed at the time, he subsequently missed a number of random drug tests, tested positive for methadone once, and completed tests outside of the required 24-hour-time period. Because missed tests were deemed positive, he was informed that he was required to complete another substance-abuse assessment, but he never followed through with that obligation.
¶ 66 Respondent's efforts regarding visitation further demonstrate no measurable movement toward the goal of reunification. Most notably, respondent missed over half of the scheduled visits with A.C. When he did attend visits, he reportedly spent most of the time on his phone and ended the visits early. Also, due to his failure to engage in the required services, respondent never progressed beyond the weekly two-hour supervised visits with A.C.
¶ 67 The record reveals that respondent had numerous opportunities to engage in services to make progress towards reunification and to demonstrate a desire to reunite with A.C. through consistent visitation and cooperation with YSB. He failed to do so at every turn. Therefore, we conclude that the trial court's finding of unfitness due to respondent's failure to make reasonable progress towards the goal of reunification was not contrary to the manifest weight of the evidence; as such, there is no arguable merit to a challenge to this finding.
¶ 68 D. Best Interests
¶ 69 The last potential issue raised by appellate counsel is that the trial court erred in finding that it was in A.C.'s best interests to terminate respondent's parental rights.
¶ 70 During the best-interests phase of parental-rights termination proceedings, "the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." In re D.T, 212 Ill.2d 347, 364 (2004). The State bears the burden of proving by a preponderance of the evidence that termination of the parent's rights is in the minor's best interests. In re Z.J., 2020 Il App (2d) 190824, ¶ 74. In making this determination, the trial court must consider the factors set forth in section 1-3(4.05) of the Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2020)), including the minor's physical safety and welfare; development of the minor's identity; the minor's familial, cultural, and religious background; the minor's sense of attachment, including love, security, familiarity, and continuity of relationships with parental figures; the minor's wishes and goals; community ties; the minor's need for permanence; the uniqueness of every family and every child; the risks related to substitute care; and the preferences of the person available to care for the minor. We review the trial court's best interests finding under the manifest-weight-of-the-evidence standard. In re Z.J., 2020 Il App (2d) 190824, ¶ 74.
¶ 71 To put this case in context, we note that A.C. has been in DCFS care for most of her life. Before A.C. turned one-year-old, she was removed from her biological mother's custody due to her mother's drug use. She was then placed in the care of respondent and De.H., her maternal grandmother and step-grandfather, who adopted her when she was three years old. Six months after the adoption, A.C. was removed from their care due to De.H.'s drug use. A.C. has been living with her foster parents, who are A.C.'s aunt and uncle (the foster mother is De.H.'s daughter) for the past two years during the pendency of this case. The record shows that A.C. is now settling into a stable life and is thriving in her foster home.
¶ 72 A.C. has a typical parent-child relationship with her foster parents whom she affectionally refers to as "Auntie [C]" and "Uncle [E.]." Her foster parents take care of her every need and have ensured that A.C. is fully integrated into the family. Her foster mother's father lives in the home and reportedly dotes on A.C. as a typical grandparent. A.C. has a loving and close relationship with other members of her foster parent's extended family. They celebrated A.C.'s birthday during the summer with a party, and she went on vacation to Arizona with her foster family. A.C. attends kindergarten, participates in gymnastics, and enjoys playing with her kitten and Barbies. She has reportedly had some behavioral issues at school which the foster parents have addressed with the school. A.C. was recently referred for counseling to help her understand the changes that have taken place in her life and to work though her behavioral issues. She has been, and will continue, having visits with her biological siblings who are also in foster care.
¶ 73 A.C. refers to respondent and De.H. as her grandparents. A.C.'s foster mother explained that she does not currently have a relationship with respondent and De.H., but she knows that A.C. loves them. She expressed willingness to allow visitation in the future if they "do what they're supposed to be doing," meaning they are clean and sober and have stability in their lives.
¶ 74 A.C. has developed a strong bond with her foster parents in their home and with their extended family. Her foster parents have expressed a desire to adopt A.C. and give her the stability and permanency she requires and deserves. We, therefore, conclude that there is no arguable merit to a claim it was against the manifest weight of the evidence for the trial court to conclude that the termination of respondent's parental rights was in A.C.'s best interest.
¶ 75 III. CONCLUSION
¶ 76 After examining the record, the motion to withdraw, and the supporting memorandum of law, we agree with appellate counsel that respondent's appeal presents no issues of arguable merit. Thus, we grant the motion to withdraw and affirm the judgment of the circuit court of Winnebago County.
¶ 77 Affirmed.