Opinion
No. 2-18-0637
12-05-2018
In re AMBER F. and ATHENA F., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Elizabeta G., Respondent-Appellant).
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 Winnebago County. Nos. 13-JA-183 13-JA -184 Honorable Mary Linn Green, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: It was not against the manifest weight of the evidence for the trial court to conclude that respondent was unfit as to her daughters. Therefore, we affirmed. ¶ 2 Respondent, Elizabeta G., appeals from the trial court's rulings terminating her parental rights to her daughters, Amber F. and Athena F. Respondent argues that the trial court's findings, that she (1) failed to make reasonable progress toward the return of the children during certain nine-month periods after the adjudication of abuse, namely from December 30, 2015, to September 30, 2016, and from April 16, 2016, to January 16, 2017 (750 ILCS 50/1(D)(m)(ii) (West 2016)), and (2) failed to protect the minors from conditions within the environment injurious to their welfare (750 ILCS 50/1(D)(g) (West 2016)), were against the manifest weight of the evidence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Athena was born on November 20, 2007, and Amber was born on November 13, 2010. The State filed neglect petitions regarding the minors on April 30, 2013. The first count alleged that their environment was injurious to their welfare because Elizabeta had struck Athena, causing multiple bruises and placing the minors at a risk of harm. See 705 ILCS 405/2-3(1)(b) (West 2012). The second count alleged that Athena had multiple bruises on her body and that her parents could not provide an adequate explanation for the bruises, placing the minors at a risk of harm. See id. ¶ 5 Further on April 30, 2013, the trial court entered a temporary custody order stating that the parties had waived their right to a hearing. It found that there was probable cause to believe that the minors were neglected, and it granted DCFS the discretion to place the children in traditional foster care or with a responsible relative. ¶ 6 An adjudicatory hearing took place on October 9, 2013. The trial court accepted into evidence a DCFS "indicated packet," medical examination results of Athena, and a statement Elizabeta had made to the police about the incident. Aimee Jerding testified as follows. She was the DCFS investigator for this case. She spoke to Ken F., the minors' father, on April 26, 2013. He explained that the previous day, they were attempting to feed a worm to their pet frog. Athena dropped the worm into the enclosure, so Ken picked up the worm and fed it to the frog. Athena began a tantrum, but they could not feed the frog more because it would get too full. Ken needed to go to the bathroom and told Elizabeta to take care of Athena. He then left the house to go fishing, and when he came back, Athena was in bed. The next morning, he saw that Athena had handprints on her bottom, and he called the police. Jerding also talked to Elizabeta, who stated "she had held the child from tantruming" after the incident with the frog. She said that she had hit Athena on the bottom, not very hard, as a last resort because of the tantrum. During the conversation, Elizabeta was crying and very upset. Jerding additionally interviewed Athena. She was very active and had a hard time sitting still. When Jerding asked about the marks, Athena crawled under a bed and stayed there while relating what happened. She said that she had wanted to feed the frog and that Elizabeta had kept hitting her. Athena said that Ken had left to go fishing, and she told him about it the next morning. Athena told Jerding that Elizabeta had hit her "tons of times." Jerding identified photographs she had taken of Athena's bruises. ¶ 7 On cross-examination, Jerding agreed that Elizabeta had told her that Athena had been kicking and hitting her that day, and that she had to hold her arms to stop her. There was also a point where Athena was outside the house, and Elizabeta had to carry her back in. Elizabeta said that she may have also pushed Athena away, which may have resulted in bruising on the face. The parents had said that Athena had received counseling because of her long tantrums. A friend of Elizabeta's told Jerding that Athena had tantrums that lasted four or five hours, and that she had seen Athena kicking Elizabeta. ¶ 8 Lori Thompson was accepted as an expert in child abuse and provided the following testimony. She examined Athena on April 29, 2013. Athena said that Elizabeta had hit her very hard with her hand on her butt and both sides of her face, leaving marks. Athena said that in other instances, Elizabeta had used her hand or a belt. Athena further reported that Ken and her paternal grandfather had hit her, but that her father's hits did not leave marks. Thompson found marks on Athena that concerned her on her upper right and left arms and thighs, just above the buttocks, and just below the buttocks on the right side. Thompson explained that those areas were soft tissue areas where accidental injuries were not usually located. Marks that she found on Athena near the knees and shin areas did not concern her because those were "bony prominent areas" where the injuries were more likely accidental. She opined that that the marks of concern were consistent with physical abuse. Thompson acknowledged that it was possible to sustain bruises on soft tissue areas by accidental means. ¶ 9 A police officer testified that Ken told him that Amber was living with his parents at the time of the incident. ¶ 10 A counselor testified that Elizabeta had called her around March 2013 because Athena's behavior was getting worse, and that Elizabeta had wanted to restart sessions. ¶ 11 On October 22, 2013, the trial court found that the State had met its burden of proof on both counts as to both girls, and it adjudicated the children neglected. ¶ 12 The parties appeared for a dispositional hearing on November 18, 2013. The parties informed the trial court that the State had reached an agreement with Elizabeta that the dispositional order would find her unfit, unwilling, or unable at the time to properly parent the children; that guardianship and custody of the children would remain with DCFS, with the discretion to place the children; and that visitation would be at DCFS's discretion. The trial court entered the agreed order. ¶ 13 A permanency review hearing took place on February 18, 2014. Cathy Zeier, a manager at the Youth Service Bureau (YSB), testified Elizabeta had completed parenting classes, maintained clean and appropriate housing, was visiting on a consistent basis and doing "a nice job" during visits, had attended some therapy sessions, and was gainfully employed. YSB was recommending a psychological evaluation to assess the best type of treatment for her. The trial court found that Elizabeta had made reasonable efforts during the review period, and that it was in the minors' best interests that the goal remain at return home within 12 months. ¶ 14 The next permanency review hearing took place on August 18, 2014. Caseworker Cathy Costanza testified that Elizabeta had completed parenting classes and had been actively participating in therapy. She was having weekly, two-hour long visits with the girls. Costanza also testified that Athena was having severe tantrums and would get so upset that she would kick and hit her paternal grandmother, with whom she was currently living. Athena reported anxiety and concern about returning to live with Elizabeta, so DCFS wanted additional counseling for them. The trial court found that Elizabeta had made reasonable efforts and reasonable progress, and it kept the goal at return home within 12 months. ¶ 15 Costanza filed a report to the trial court on February 17, 2015. It stated that on July 25, 2014, she received information that Athena complained that Elizabeta did not have boundaries during the visits and forced her to do things like kiss her and sit on her lap. Costanza reviewed the case aide's visitation notes, which did not reveal that this was happening, and she talked to the case aide, who said that she never observed such behavior. The aide said that Athena instead competed with Amber for Elizabeta's attention. On November 9, 2014, DCFS received a hotline call that Athena said that Elizabeta strangled her while they were alone in the bathroom during a supervised visit on October 10, 2014. DCFS found the allegation to be "indicated," and Elizabeta had appealed the finding. ¶ 16 At a permanency review hearing on March 2, 2015, the trial court found that Elizabeta had made reasonable efforts but not reasonable progress. It stated that there was no evidence that the children were any closer to returning home. The trial court stated that it did not take the indicated report into consideration. It left the goal at return home within 12 months. ¶ 17 Costanza filed a report to the trial court on July 28, 2015. She stated that the indicated finding against Elizabeta was reversed on appeal. Elizabeta was attending weekly therapy, and her counselor reported that she was progressing in her therapy goals. Family counseling with Elizabeta and Athena began at the end of June 2015, and they had attended two sessions. Visitation was taking place weekly for three hours at Elizabeta's house. She was consistently visiting, provided dinner and activities, and was attentive, and the children appeared to enjoy their time with her. Athena still reported being uncomfortable with Elizabeta and did not trust her, but she was willing to give her a second chance. ¶ 18 At the permanency review hearing on July 28, 2015, the trial court found that Elizabeta had made reasonable efforts and reasonable progress. The goal remained return home within 12 months. ¶ 19 Costanza filed a report to the trial court on November 30, 2015. She stated that Elizabeta was making progress in individual and family therapy. She was having biweekly unsupervised visitation with the children. The visits went well, and the girls reported enjoying the visits. ¶ 20 The trial court also held a permanency review hearing on November 30, 2015. The trial court found that Elizabeta had made reasonable efforts and reasonable progress, and it changed the goal to return home within five months. It further gave DCFS the discretion to place the girls with Elizabeta. ¶ 21 Costanza filed a report to the trial court on May 16, 2016, stating as follows. On December 17, 2015, Elizabeta told Costanza that Ken had moved to Michigan. However, Costanza later learned from a police report that on December 14, 2015, Elizabeta drove a U-Haul to Michigan to help Ken move back to Rockford. On December 23, 2016, the girls reported that Ken was present at unsupervised visits and that Elizabeta swore at him during the visits and on the phone. Costanza confronted Elizabeta at a meeting on January 4, 2016, and Elizabeta denied being in Michigan until Costanza produced the police report. Elizabeta said that she was not in a romantic relationship with Ken but was helping him because she felt bad for him. Costanza and Elizabeta's therapist agreed that the occurrence was a very big setback in therapy regarding Elizabeta's unhealthy relationship with Ken. On January 18, 2016, Athena reported preferring supervised visits because Elizabeta was " 'lovey dovey and sweet' " in front of others but was mean during unsupervised visits and was on the phone all the time. She also told her and Amber to get food for themselves. The agency therefore resumed supervised visits. ¶ 22 An addendum to the report stated that Ken attempted suicide on May 8, 2016. Elizabeta said that Ken had walked over to her house that evening, when Elizabeta and her neighbor were in the garage. Ken said that he was going to kill himself and began apologizing for being a terrible father, son, and boyfriend. Elizabeta and the neighbor went inside for a moment, and when they came back out, Ken was attempting to hang himself from a bike rack hook. Elizabeta grabbed the first thing she saw to get him down, which was a chair with wheels. She then fell off the chair, hurting her ankle. The neighbor called an ambulance. ¶ 23 A DCFS service plan dated April 6, 2016, rated Elizabeta as satisfactory in the area of cooperating with the agency. She was rated as unsatisfactory in the area of therapy. The report stated that her therapist said that Elizabeta was struggling to process how "rescuing" Ken from his mistake in moving to Michigan was inappropriate and reflected a lack of ability to set boundaries. Her counsel reported on March 2, 2016, that she believed that Elizabeta and Ken were romantically involved. Elizabeta denied that he was present during unsupervised visits. Elizabeta said that she communicated with him to ensure that he was doing what he needed to for the girls, and because she did not know if the caseworker was communicating with him. Costanza and the case supervisor told Elizabeta that these were things that Ken was responsible for, and that it was unnecessary and inappropriate for her to concern herself with his services or visits. Elizabeth said that she would no longer communicate with him and would behave as if he did not exist. ¶ 24 Elizabeta was also rated unsatisfactory in the areas of therapy with Athena and visitation. She was participating in family therapy with the girls, but Athena reported feeling unsafe during unsupervised visits, that Elizabeta was angry when the girls asked for food, that Ken was present during some of the visits, that Elizabeta was constantly on the phone, and that Elizabeta was screaming and swearing at Ken on the phone during a visit. Elizabeta was further rated unsatisfactory in the area of obtaining necessary treatment if she was in a relationship with Ken. She had helped Ken move back from Michigan, reportedly allowed him to attend unsupervised visits, and was reportedly living with him, but she denied his presence during the visits or that they lived together, and she also denied being in a romantic relationship with him. ¶ 25 At the permanency review hearing on May 16, 2016, the guardian ad litem stated that Athena wanted to address the court in chambers. Athena stated the following. She was eight years old and she did not want to live with Elizabeta because in the past, Elizabeta had beaten her up and called her bad names. Athena had fun with Elizabeta during visitation, but if Athena went back to live with her, Elizabeta would beat her up again, and there would be no one to help her. Athena thought she would end up in the hospital "or in a coffin." Everyone thought that Elizabeta had changed, but she had not. Ken had called her grandmother, who had the phone on speaker, and called her "honey." Elizabeta started swearing and asking who he was talking to. It made Athena and her grandmother cry. Athena wanted to live with her grandparents or with Ken. ¶ 26 At the hearing, the State recommended findings of no reasonable efforts or reasonable progress. It stated that the children were no closer to returning home because Elizabeta was continuing to engage in a relationship with Ken and not being truthful about it. The guardian ad litem made the same recommendation. The trial court agreed with this finding and maintained the goal of return home within 12 months. It further stated that it found Athena to be articulate and credible. ¶ 27 Costanza filed a report to the trial court on September 6, 2016. She stated that Elizabeta continued to see her therapist weekly for individual counseling and family therapy. Costanza conducted an unannounced visit to Elizabeta's apartment in July 2016, but Elizabeta refused to let Costanza enter and acted nervous and angry. Costanza had received "collateral" information that Elizabeta and Ken were living together and in a relationship, which was concerning because of the volatile nature of the relationship, the fact that they maintained that they were not a couple, and their refusal to address their issues as a couple. Elizabeta's family counselor, Sue Bates, did not feel that it was a danger for them to be together. Bates recommended increasing the visits and making them unsupervised, but DCFS and Athena's individual counselor did not agree with that recommendation. Visits were currently once per week for three hours and were supervised. Elizabeta provided food and was attentive to the girls. ¶ 28 At the permanency hearing on September 6, 2016, the State recommended a finding of no reasonable efforts or reasonable progress by Elizabeta. It stated that she was not acknowledging the effects of the abuse on Athena, that visitation was still supervised, and that not allowing DCFS into her home to see if the home was appropriate was a violation of the order to cooperate with DCFS. The guardian ad litem made the same recommendation. The trial court found that Elizabeta had made reasonable efforts but not reasonable progress. It left the goal at return home within 12 months. ¶ 29 Costanza filed a report to the trial court on January 10, 2017, which we summarize. One of the concerns for the girls' safety was the nature of the relationship between their parents. Elizabeta reported in January 2014 that she was no longer in a relationship with Ken, but collateral reports and other evidence indicated otherwise. It was a concern because Ken had not completed any of his required services pertaining to mental health, substance abuse, or domestic violence. Elizabeta was also consistently dishonest about her contact with Ken. Costanza visited Elizabeta's apartment on September 28, 2016. One dresser and the closet in the dresser contained only Ken's clothes, and there appeared to be a basket of his dirty laundry. Elizabeta said that she was only storing clothes for him. Elizabeta's clothes were in the spare bedroom. On November 26, 2016, a case aide reported seeing Elizabeta drop off Ken for visitation on her way to work. Elizabeta was continuing to engage in individual counseling and family therapy. However, family therapy was discontinued at the end of November at the request of Athena's therapist. The family therapist stood on her previous recommendation of moving to unsupervised visitation. The visitation was once per week for three hours and was appropriate. Athena continued to report that she did not trust Elizabeta and was afraid of what might happen if she lived with her. ¶ 30 A DCFS service plan dated October 28, 2016, rated Elizabeta satisfactory in the area of visitation. It rated her unsatisfactory in the area of cooperating with the agency. It stated that the parents continued to deny that they were in a relationship, but the denial appeared untruthful due to Elizabeta's refusal to let the caseworker into her apartment during the first unannounced visit and the presence of Ken's clothing in the apartment during the second visit. She was also rated unsatisfactory in the area of individual and family therapy because she was not maintaining safe and appropriate boundaries with Ken, and they were involved in a domestic dispute when he attempted suicide, which Athena overheard on the phone. Athena continued to not trust Elizabeta and did not want to be alone with her. Elizabeta was rated unsatisfactory in the area of obtaining necessary treatment if she was in a relationship with Ken, because they denied that they were in a relationship despite overwhelming evidence to the contrary. ¶ 31 At the permanency review hearing on January 10, 2017, the State recommended a finding that Elizabeta had made reasonable efforts but not reasonable progress. It also recommended a goal change. The guardian ad litem recommend a finding of no reasonable efforts and no reasonable progress. She further recommended that the goal be changed to substitute care pending court determination of parental rights. The trial court found that Elizabeta had made reasonable efforts but not reasonable progress. It left the goal at return home within 12 months but set a closer permanency review date for possibly changing the goal. ¶ 32 A permanency hearing report was filed with the court on April 17, 2017, and stated as follows. Elizabeta's housing and income were stable. However, she and Ken apparently continued to have contact with each other. The history of violence in their relationship and their dishonesty made the relationship a safety concern. Elizabeta's individual and family counselor, Bates, reported that the sessions went well and that progress was being made. She recommended unsupervised visits. However, family counseling was discontinued in November 2016 because Athena's individual counselor found that Athena had symptoms of post-traumatic stress disorder, nightmares, and flashbacks. Family counseling resumed in March 2017. Visitation took place on weekends due to Elizabeta's work schedule, and there were no significant concerns about the visits, though Athena said that she did not like them. Elizabeta told the agency on April 3, 2017, that she was in a new relationship. ¶ 33 A DCFS service plan dated March 21, 2017, rated Elizabeta satisfactory in the areas of visitation and cooperating with the agency. It rated her unsatisfactory in the areas of individual and family therapy and obtaining counseling with Ken, for the reasons previously discussed. The plan also stated that a case aide observed Elizabeta driving Ken to visitation in November 2016. ¶ 34 At the April 17, 2017, permanency review hearing, the State and guardian ad litem recommended a finding that Elizabeta had made reasonable efforts but not reasonable progress. The guardian ad litem additionally recommended a goal change to substitute care pending court determination of parental rights. The trial court agreed with these recommendations and entered a corresponding order. ¶ 35 The State filed petitions to terminate Elizabeta's parental rights on May 18, 2017. The petitions alleged that Elizabeta was unfit in that she had: (1) failed to maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare (750 ILCS 50/1(D)(b) (West 2016)); (2) failed to make reasonable progress toward the return of the children during certain nine-month periods after the adjudication of abuse, namely from December 30, 2015, to September 30, 2016, and from April 16, 2016, to January 16, 2017 (750 ILCS 50/1(D)(m)(ii) (West 2016)); and (3) failed to protect the minors from conditions within the environment injurious to their welfare (750 ILCS 50/1(D)(g) (West 2016)). ¶ 36 A hearing on the petitions to terminate parental rights took place on October 4, 2017, and December 20, 2017. The trial court admitted into evidence the DCFS investigative report about the initial incident, the medical examination results of Athena, Elizabeta's statement to the police, and a DCFS investigative report from a 2011 incident. The trial court also took judicial notice of the petitions and orders in the case. ¶ 37 Costanza testified as follows. She had been the caseworker since February 24, 2014. She identified service plans dated April 6, 2016, October 28, 2016, and May 21, 2017, and the trial court admitted them into evidence. The service plans rated the prior six months. When Costanza began the case, the main services that Elizabeta was to complete were basic cooperation, parenting classes, and individual counseling. At the time, Elizabeta and Ken were not a couple. DCFS would have handled the case differently if they were a couple, because if only one parent was participating in services, it caused a safety issue for returning the children home. Elizabeta cooperated with services in 2014 and 2015. ¶ 38 In 2014, Elizabeta had supervised visitation once per week for two to three hours. In 2015, she progressed to unsupervised visits and overnight stays. There was an incident in December 2015 in which Elizabeta said that she had to miss a visit because she was ill. She instead drove to Ken's residence in Michigan. She called the police and asked for assistance in moving his things out of a woman's house where he had been living for two weeks. She helped him move back to Illinois. The police report referred to the couple as boyfriend-girlfriend. Costanza asked Elizabeta about the report, and she said that she was helping Ken because she felt bad for him. She said that she called the police for directions and did not know why they wrote a report. ¶ 39 No one other than Elizabeta was supposed to be present in the home with the children overnight. However, in January 2016, Costanza received information that Ken was present at visits, which the children confirmed. They also said that he kept clothing in Elizabeta's apartment. DCFS therefore changed the visitation to weekly supervised visitation at the agency for one to two hours. Elizabeta denied that Ken was living with her or was at the visits, and she said that they were not back together. Therefore, DCFS continued with her current services. ¶ 40 Costanza became more concerned about the parents' relationship in May 2016. She received information about an incident when Ken was at Elizabeta's house. He called his mother because it was Mother's Day, and his mother put the phone on speaker, as was her habit. Ken said, " 'Hi, honey,' " and Elizabeta was yelling " 'Who the F are you talking to?' " The parents continued to argue. At some point, Ken attempted suicide at the house. Elizabeta reported that Ken walked up to the house and was not living there. However, Ken was allegedly living in Wisconsin at the time and did not drive. Elizabeta said that she was in the garage and went into the house, and when she came back out, Ken was attempting to hang himself. She said that she grabbed a nearby chair with wheels, they both fell down, and she injured her leg. Ken reported that he was on prescription medication and had consumed alcohol, and that he did not remember anything. Ken's service plan required him to remain alcohol-free. ¶ 41 Elizabeta moved about one month later, in June 2016. Costanza made an unannounced visit to Elizabeta's new apartment. Elizabeta blocked the door and did not allow Costanza inside. Costanza returned for an announced visit in July or August 2016, and Elizabeta allowed her inside. The main bedroom contained men's clothing in the dresser drawers and closet, and there was what appeared to be dirty men's clothing. Elizabeta admitted that the clothing was Ken's but stated that she was just storing it for him and that none of it was dirty. Elizabeta's clothing was in a closet in another room. If the parents were honest, it would not matter whether they were in a relationship, but it would affect what services they needed to obtain. ¶ 42 Elizabeta completed parenting classes and consistently participated in counseling. However, she did not successfully complete counseling because her co-dependent relationship with Ken "kept coming up." Elizabeta was saying certain things in counseling but behaving differently outside of counseling. She never appealed the ratings in her service plan regarding her progress in counseling. ¶ 43 In January 2016, Athena showed Costanza a box of mutilated dolls and said that her mother had done that to them when Athena lived with her. In May 2016, she said that Elizabeta had been upset with her when she was two and slammed her down or dropped her, resulting in a broken leg. In May 2016, she told the trial court that she was scared to go back home because she felt that Elizabeta would beat her, and that she would wind up in a coffin. ¶ 44 Between December 30, 2015, and September 30, 2016, visitation changed from being unsupervised to becoming supervised. Between April 16, 2016, to January 16, 2017, visitation never increased or became unsupervised. During these periods, DCFS was not implementing a transition plan so that the kids could return home in the near future. DCFS was not able to take those steps because Elizabeta was not being honest about her relationship with Ken. Athena's statements were also a concern. ¶ 45 Elizabeta was participating in all other services satisfactorily. Her individual and family counselor had also stated that Elizabeta was making good progress, and in June 2016 she advocated for unsupervised visitation. However, the agency did not revert to unsupervised visits because of factors such as Ken trying to hang himself at Elizabeta's house. ¶ 46 Elizabeta provided the following testimony. The case began because she had spanked Athena when she was having a tantrum and left marks. Elizabeta had tried to do everything she could before spanking Athena, such as giving her a time out, holding her, and walking away. She hit her a total of three times and unintentionally hit her face while walking past her. Elizabeta had participated in the services required of the safety plan, which were parenting classes and individual counseling. She learned about taking responsibility for her actions, how to control her anger and emotions, separation issues, and learning boundaries to have a safe environment. ¶ 47 In October 2014, Athena accused Elizabeta of choking her during a supervised visit at a bowling alley. The allegation resulted in a delay of the beginning of family counseling. On appeal, the allegation was determined to be unfounded. ¶ 48 When the case began in 2013, she and Ken were in a relationship. When they were together, the police "came several times because [Ken] was drunk all the time," and Elizabeta wanted to protected herself and the children. Their relationship ended in October 2014 when Ken left the house, saying that he was getting married to another woman. Ken subsequently divorced that woman and began dating a different woman. Elizabeta remained friends with Ken because they had known each other for so long. They hung out with mutual friends so she saw him two or three times a month, but Elizabeta had no intention of becoming a couple again. ¶ 49 Individual and family counseling with Bates began in June 2015, and Elizabeta saw her until December 2016. During family counseling, they worked on expressing feelings and bonding. Elizabeta progressed in both individual and family counseling. ¶ 50 In September or October 2015, Elizabeta began unsupervised visits with the girls. In November or December 2015, they became weekly overnight visits. In November 2015, Ken moved to Michigan because of another girlfriend and a job. On the morning of December 14, 2015, Elizabeta was feeling sick. Her neighbor rang her doorbell and said that Ken was trying to get in touch with Elizabeta. Elizabeta called, and Ken said that he was told that if he did not return and do services, DCFS would terminate his parental rights. Ken said that he had lost his job and "things did not work out [in Michigan]," and he wanted to come back and dedicate himself to their children. He convinced Elizabeta to rent a U-Haul and help him move. When she got to Michigan, she got lost and had a panic attack. She called the police and asked if they could be present at the house because she did not know Ken's girlfriend or what would happen at her house. The police gave her directions and waited at the house. Elizabeta told the police Ken was the father of her children; she never called him her boyfriend. Elizabeta took Ken to stay with family members in Wisconsin. He left only a kayak at her house. During Christmastime, Elizabeta attended church with the girls, and Ken was at the church. Elizabeta did not think that she did anything wrong, but DCFS changed her visitation to supervised visitation for two to three hours at the agency. ¶ 51 In April 2016, DCFS entered a mediation agreement in which it agreed to return to unsupervised visitation if Bates recommended it, and DCFS further agreed to have monthly meetings with Elizabeta and Bates to stay focused on the goal of return home. However, those meetings never took place. ¶ 52 On Mother's Day of 2016, Elizabeta was very emotional because her mother had died the prior year. She was leaving to go to Wisconsin to put flowers on her mother's grave and be with her family. The garage door was open, and Elizabeta's neighbor came over. Ken then walked over. He had two beers hanging out of his pockets and appeared to be drunk. He started saying that he did not want to live anymore and wanted to kill himself. She and the neighbor tried to console and redirect him. Ken began talking to his mother on the phone; Elizabeta denied yelling at him. Elizabeta was in mourning about her mother and frightened by Ken's statements. She went into the kitchen and told her neighbor that she could not deal with the situation, and that they should call the police. When they returned to the garage, Ken had a rope around his neck and on a garage hook. Elizabeta stood on a chair and detached the rope, but then she fell. She dislocated her ankle and shattered her tibia. Ken ran away, and the neighbor called the police. At the time, Elizabeta was still friends with Ken and seeing him two or three times a month. ¶ 53 Elizabeta thereafter moved to a new apartment, and Costanza came by in June or July 2016. Elizabeta had lost her job and was very emotional, in pain, and "on Norco." Because of this, and because Costanza made her upset by saying that she never shut up, Elizabeta did not let her in the house. Elizabeta had some of Ken's stuff in the house because he helped her move. He had a girlfriend in Poplar Grove and said that he could not store everything there. Elizabeta also had some of his things from when they were still together, such as a television. Ken removed all of his things in October 2016. From June 2016 to October 2016, she took Ken to his weekly counseling sessions about half the time, because he did not drive and had asked her to. She helped him because he was the father of her kids, they had known each other a long time, they were friends, and she was a nice person. No one ever told her that she could not talk to Ken, and she would never had done so if she knew it would result in her kids being taken away. She was only told that she should report if they became a couple again, which they had not. ¶ 54 Elizabeta had participated in all of her counseling sessions and had missed only one visitation. She also paid monthly child support and bought the girls clothes and food. Elizabeta admitted that she had received all of the service plans and reviewed them. ¶ 55 Ken's father, Harold F., testified that when Ken moved back from Michigan, he asked Harold to help him unload the truck. They unloaded a workbench, a toolbox, a kayak, and duffel bags with clothes at Elizabeta's residence. Harold also helped them move from that residence to an apartment where Elizabeta was currently living. Everything that Ken owned was moved to that residence. ¶ 56 On November 16, 2017, Ken voluntarily relinquished his parental rights and signed consents for the children to be adopted by his parents. ¶ 57 On April 19, 2018, the trial court found that the State had proven counts 2 and 3 of the petition by clear and convincing evidence, but not count 1. Regarding count 2, the trial court stated as follows. Respondent was found not to have made reasonable progress in the permanency review orders of May 16, 2016, September 6, 2016, and January 10, 2017. It "believe[d] this amount[ed] to clear and convincing evidence and lack of reasonable progress in having the children returned home." During the relevant time periods, Elizabeta went from unsupervised visits back to supervised office visits based on her continuing involvement with Ken and not understanding how it affected the children. This included a trip of six hours each way to pick Ken up from Michigan and move him back to Illinois, supposedly with her. The grandfather testified that he helped with the move and that Ken moved back in with Elizabeta. There was evidence that Elizabeta and the children were in church during a visit, and Ken was with them. There was also evidence that Elizabeta drove him to counseling multiple times, and that he attempted to commit suicide in her garage. Thereafter Elizabeta refused to let the caseworker into her house, fearing that the caseworker would see that Ken was living there, and on another visit, the caseworker found his things in her residence. "All of this amount[ed] to the lack of reasonable progress." The children ultimately were no closer to returning home to Elizabeta than when the case started, and Amber had basically never lived with her to begin with. ¶ 58 The trial court stated the following with regards to count 3. The evidence showed that Elizabeta spanked Athena on April 24, 2013. There were multiple bruises on Athena's buttocks, legs, arms, and face, and the expert witness found that they were consistent with child abuse. Athena said that her mother hit her that day and had previously hit her with her hand, a belt, and slippers. Elizabeta admitted losing control on the date in question and hitting Athena. Elizabeta also admitted to the investigator that she and Ken had fights when Ken became intoxicated, and the children were present. Ken admitted physical altercations with Elizabeta. There was a prior indicated finding for risk of harm based on domestic violence while Elizabeta was holding a child, and there were prior reports of domestic disturbances in the home. The trial court found that there were issues with anger management that had not been resolved, putting the children in an injurious environment. Therefore, the trial court found Elizabeta to be unfit. ¶ 59 On July 11, 2018, after concluding a best interest hearing, the trial court found that it was in the children's best interests for Elizabeta's parental rights to be terminated. ¶ 60 Elizabeta filed a notice of appeal on August 9, 2018, and an amended notice of appeal on August 13, 2018.
¶ 61 II. ANALYSIS
¶ 62 A. Jurisdiction
¶ 63 We begin by addressing the State's argument that we lack jurisdiction over this appeal. The State points out that Elizabeta's August 9, 2018, notice of appeal listed the name "AMABER [sic] F." and case number 13-JA-184, which is actually Athena's case number. The notice of appeal did not list Amber's case number or Athena's name. It stated that Elizabeta was appealing the July 11, 2018, order terminating her parental rights. On August 13, 2018, without leave of court, Elizabeta filed an amended notice of appeal listing both Amber and Athena and the case numbers for both of their cases. ¶ 64 The State points out that Elizabeta was required to file her notice of appeal within 30 days of the entry of the July 11, 2018, orders terminating her parental rights, i.e., by August 10, 2018. See Ill. S. Ct. Rs. 301 (eff. Feb. 1, 1994), 303 (eff. July 1, 2017). A timely notice of appeal is necessary to vest the appellate court with jurisdiction. Lake County Grading Co. v. Forever Construction Co., 2017 IL App (2d) 160359, ¶ 34. The State points out that a notice of appeal can be amended without leave of the court only if the amended notice is within the original 30-day period. Ill. S. Ct. R. 303(b)(5) (eff. July 1, 2017). Otherwise, it may amended only upon motion in the reviewing court. Id.; Ill. S. Ct. R. 303(d) (eff. July 1, 2017). ¶ 65 The State argues that, therefore, the only timely notice of appeal was the one filed on August 9, 2018, which listed "Amaber" F. and the case number for Athena's case. The State recognizes that we liberally construe notices of appeal, especially when the opposing party has not been prejudiced. In re Estate of Stewart, 2016 IL App (2d) 151117, ¶ 128. However, it argues that even liberally construed, the August 9, 2018, notice of appeal should not be applied to both cases because it contains only a single case number. ¶ 66 We agree with the State that the amended notice of appeal was not properly filed, as it was not filed within the original 30-day window for filing an appeal, nor did Elizabeta seek leave to file the amended notice. However, we conclude that the original notice of appeal was sufficient to give us jurisdiction over both termination orders. A "notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal." Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433-34 (1979). Additionally, "[u]nless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only, and not of substance, the appellate court is not deprived of jurisdiction." Id. at 434. ¶ 67 These principles apply here. Although Amber's and Athena's cases had different trial court numbers, they were always adjudicated together in the trial court. In other words, they were essentially treated as one case. Given that the notice of appeal had Amber's name (albeit typed incorrectly), Athena's case number, and stated that it was an appeal from the July 11, 2018, "order" terminating Elizabeta's parental rights, it was sufficient to inform the State that Elizabeta was seeking a reversal in the termination of her parental rights regarding both of her daughters. Additionally, the State has suffered no prejudice from the technical defects. We therefore conclude that have jurisdiction over both juvenile cases. Cf. People v. Carr, 2013 IL App (3d) 110894, ¶ 22 n.1 (based on the principle that a notice of appeal must be liberally construed, the appellate court addressed the errors that the defendant raised regarding two convictions that occurred during the same trial, even though the defendant did not include the case number for one of the crimes in his notice of appeal). Still, we advise Elizabeta's counsel to exercise more care in drafting a notice of appeal and in following the proper procedures for filing an amended notice of appeal.
There were technically two orders, one for each child.
¶ 68 B. Termination of Parental Rights
¶ 69 We now turn to the merits of the appeal. Elizabeta argues that it was against the manifest weight of the evidence for the trial court to find that she was unfit on counts 2 and 3. ¶ 70 The termination of parental rights is a two-step process governed by the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2016)) and the Adoption Act (750 ILCS 50/1 et seq. (West 2016)). In re J.L., 236 Ill. 2d 329, 337 (2010). The State must first establish by clear and convincing evidence that the parent is unfit under one of the statutory grounds of parental unfitness listed in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2016)). In re M.I., 2016 IL 120232, ¶ 20. We will not reverse a trial court's finding of unfitness unless it is against the manifest weight of the evidence, because the trial court has a superior opportunity to view and evaluate the parties. Id. A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent. Id. ¶ 71 If the trial court determines that the parent is unfit, the trial court's focus shifts from the parent's fitness to the child's best interest in the second stage of the process, the best interest hearing. In re B.B., 386 Ill. App. 3d 686, 697-98 (2008). The best interest hearing is not at issue in this appeal. ¶ 72 We begin with the trial court's determination on count 2, that Elizabeta failed to make reasonable progress during the nine-month periods of December 30, 2015, to September 30, 2016, and from April 16, 2016, to January 16, 2017. One statutory ground of unfitness is a parent's failure to make reasonable progress towards the child's return during any nine-month period after the initial nine-month period following the adjudication of neglect. 750 ILCS 50/1(D)(m)(ii) (West 2016). Our supreme court has defined reasonable progress as " 'demonstrable movement toward the goal of reunification.' " In re C.N., 196 Ill. 2d 181, 211 (2001) (quoting In re J.A., 316 Ill. App. 3d 553, 565 (2000)). Progress towards the child's return is measured by the parent's compliance with the service plans and the court's directives, in light of both the conditions which caused the child's removal and conditions that became known later and which would prevent the court from returning custody of the child to the parent. Id. at 216-17. We review reasonable progress using an objective standard, and reasonable progress can be found if the trial court can conclude that it can return the child to the parent in the near future. In re A.S., 2014 IL App (3d) 140060, ¶ 17. In contrast, reasonable efforts are judged according to a subjective standard of the amount of effort reasonable for a particular person. In re Jacorey S., 2012 IL App (1st) 113427, ¶ 21. ¶ 73 Elizabeta argues that the trial court's rulings on count 2 were erroneous because, after referring to its prior findings of a lack of reasonable progress during permanency review hearings, the trial court stated that it "believe[d] this amount[ed] to clear and convincing evidence and lack of reasonable progress in having the children referred home." Elizabeta notes that permanency hearings do not deal with the issue of parental unfitness, do not have a burden or standard of proof, allow any probative evidence, and result in non-final orders. In re R.L., 352 Ill. App. 3d 985, 1000 (2004). On the other hand, fitness hearings apply civil rules of evidence (In re J.G., 298 Ill. App. 3d 617, 629 (1998)), apply clear and convincing standard of proof, and result in final orders (In re R.L., 352 Ill. App. 3d at 1000). Elizabeta cites In re J.G., 298 Ill. App. 3d at 629, where the appellate court acknowledged that a trial court needs to refer to the court file and prior proceedings at a termination hearing, but stated that "the trial court's decision as to whether a parent is unfit should be based only upon evidence properly admitted at the unfitness hearing." ¶ 74 Elizabeta additionally argues that the permanency orders, entered on May 16, 2016, September 6, 2016, and January 10, 2017, cover a continuous period of eight months. She cites In re D.C., 209 Ill. 2d 287, 301 (2004), where the reviewing court held that a trial court must find clear and convincing evidence of lack of reasonable progress during the alleged nine-month period with respect to each child. ¶ 75 It is true that the trial court referenced its findings from the permanency hearings when ruling on count 2. However, taken in context, it did so as part of the evidence in ruling on Elizabeta's fitness, as opposed to basing its ruling solely on those prior findings. Significantly, after making the disputed statement, the trial court went through a detailed recitation of Elizabeta's problematic relationship with Ken, concluding "All of this amount[ed] to the lack of reasonable progress." See supra ¶ 57. At trial, Costanza testified regarding Elizabeta's progress from February 2014 through January 2017, providing proof encompassing the entirety of both of the nine month periods alleged, and the trial court referenced many of these events in its ruling. Therefore, it is clear that the trial court did not rely on just the permanency hearing rulings in making its fitness determination, and that the evidence that it did rely on sufficiently covered the nine-month periods alleged. ¶ 76 Elizabeta further argues that the trial court found that she had made no reasonable progress based only on her ongoing relationship with Ken, which was also a focal point of the three permanency review hearings during the relevant time periods. Elizabeta points out that her counsel asked Costanza if Costanza would have found that Elizabeta was progressing in the service plans if she had been honest about her relationship with Ken, and Costanza answered in the affirmative. Elizabeta argues that a finding of no reasonable progress based solely on her interactions with Ken was erroneous because no service plans or court order prohibited her from contacting him. Elizabeta highlights that she completed parenting classes and consistently participated in individual and family therapy, and that one of her counselors, Bates, spoke highly of her progress and urged unsupervised visitation. ¶ 77 Elizabeta's argument, essentially that her relationship with Ken was irrelevant to the issue of progress towards reunification with her children, is without merit, as the issue was directly addressed in service plans. As stated, progress towards reunification is measured by the parent's compliance with the service plans and the court's orders, considering the conditions which caused the child's removal and conditions that arose later which would prevent the court from returning custody of the child to the parent. In re C.N., 196 Ill. 2d at 216-17. Elizabeta admitted to receiving and reviewing all of the service plans in this case. ¶ 78 The DCFS service plan dated April 6, 2016, which covered the prior six months, rated Elizabeta unsatisfactory in the areas of therapy, visitation, and obtaining necessary treatment if she was in a relationship with Ken precisely because of her troubling interactions with Ken. The report stated as follows. Elizabeta canceled visitation with the children on December 14, 2015, saying that she had the flu. However, that day she rented a U-Haul and drove to Michigan to help Ken move out of his girlfriend's home, asked for the police to be present there, and allegedly referred to Ken as her boyfriend to the police. The children reported that later, Elizabeta was screaming and swearing at Ken on the phone during a visit, and that Ken was present for other visits. Bates reported a "setback" in therapy because Elizabeta could not understand why it was wrong to "rescue" Ken from his mistake of moving to Michigan. Bates also thought that Elizabeta was romantically involved with Ken. DCFS believed that Ken was residing with Elizabeta. DCFS held a meeting with Elizabeta on January 4, 2016, at which Bates was present. The subject of her assistance with Ken's move and his alleged presence at visitation were discussed. DCFS told Elizabeta that she could be on good terms with Ken but it was inappropriate for her to concern herself with his services or visits. At this time, visitation changed from being unsupervised at Elizabeta's home to supervised visits at the agency. Elizabeta reported that she would no longer communicate with him and behave as though he did not exist. ¶ 79 Thus, while it is true that there was no service plan or court order prohibiting Elizabeta from contacting Ken, it is also true that DCFS clearly explained to Elizabeta at the beginning of January 2016 that her interactions with Ken were inappropriate and hindering her progress. That is, on a day that she allegedly had to cancel visitation due to the flu, she rented a U-Haul and drove to get Ken from a home in another state where she was scared enough to request the presence of the police. She was also reportedly letting Ken live with her and/or attend visitation with the children. This all occurred while she consistently denied being in a relationship with him. Elizabeta reportedly agreed at the meeting to no longer be in contact with Ken. ¶ 80 However, as outlined in the October 28, 2016, service plan and discussed at the fitness hearing, after both the January meeting and the filing of the April 6, 2016, service plan, Elizabeta did not change her behavior based on the plan's clear guidance that her relationship with Ken was causing her not to progress. To the contrary, on Mother's Day in 2016, Ken was at Elizabeta's house. Elizabeta claimed that he walked there, which did not make sense given that she claimed he was living in Wisconsin, and it is undisputed that he did not drive. Elizabeta was reportedly yelling and screaming at Ken because he called his mother "honey" on the phone; Athena overheard the call and was troubled by it. Thereafter, Ken tried to hang himself in Elizabeta's garage, and when she went to save him, she fell down and was injured. Thus, the destructive impact of the relationship that DCFS warned Elizabeta about clearly played out. ¶ 81 Elizabeta later moved, and Costanza conducted an unannounced visit to her apartment in July 2016. Elizabeta refused to let Costanza enter, and Costanza believed that it was because Ken was living there. Costanza visited again in September 2016, and Elizabeta admitted that Ken's clothing was in a dresser and in the closet. Costanza also viewed what appeared to be dirty men's clothing, but Elizabeta denied that it was dirty. Based on these factors, the October 28, 2016, service plan rated Elizabeta unsatisfactory in the areas of cooperating with the agency, individual and family therapy, and obtaining necessary treatment if she was in a relationship with Ken. For the same reasons, Elizabeta was again rated unsatisfactory in most of these categories in the March 21, 2017, service plan. The service plan also noted that a case aide saw Elizabeth driving Ken to visitation in November 2016, and Elizabeth testified at the fitness hearing that she drove Ken to his counseling sessions about half the time from June to October 2016. Costanza had told Elizabeta that if she admitted being in a relationship with Ken, the agency would assign appropriate services for them. Costanza testified that DCFS would have handled the case differently if they were a couple because there was a safety issue in returning the children home if only one parent participated in services. However, Elizabeta never admitted to such a relationship, despite all of the evidence to the contrary, which included Harold testifying that he moved Ken's possessions into Elizabeta's house and later into her apartment. ¶ 82 In sum, through the January 2016 meeting and the service plans mentioned, Elizabeta was clearly and repeatedly notified that her undisclosed relationship with Ken negatively affected her ability to progress towards reunification with the children. Indeed, incidents related to the relationship caused her to go from unsupervised overnight visitation with the children at the end of 2015 to supervised visitation at the agency at the beginning of 2016, and she thereafter never made enough gains to return to unsupervised visitation. Therefore, the trial court's ruling, that the State proved by clear and convincing evidence that Elizabeta failed to make reasonable progress towards the return of the children from December 30, 2015, to September 30, 2016, and from April 16, 2016, to January 16, 2017, was not against the manifest weight of the evidence. ¶ 83 A trial court's finding of unfitness can be sustained on a parent's failure to make reasonable progress in any single nine-month period, or on any single statutory ground. In re Phoenix, 2016 IL App (2d) 150431, ¶ 7. We have affirmed the trial court's finding as to two distinct nine-month periods, so we need not address its ruling that Elizabeta was also unfit under count 3, in that she failed to protect the minors from conditions within the environment injurious to their welfare. See In re H.S., 2016 IL App (1st) 161589, ¶ 31.
Even if, arguendo, the trial court improperly relied on such rulings, it would not automatically constitute reversible error, as we may affirm a trial court ruling on a parent's fitness on any basis established by the record. In re Brianna B., 334 Ill. App. 3d 651, 655 (2002); see also In re J.G., 298 Ill. App. 3d at 629 (trial court erred in taking judicial notice of the entire court file, but the respondent was not prejudiced by the error because there was sufficient evidence of her unfitness properly admitted at the hearing to meet the State's burden of clear and convincing evidence). --------
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the judgment of the Winnebago County circuit court finding Elizabeta to be unfit. ¶ 86 Affirmed.