Opinion
Appeal No. 3-19-0307 Appeal No. 3-19-308
10-18-2019
In re J.P., n/k/a J.G., & J.P., Minors, (The People of the State of Illinois, Petitioner-Appellee, v. Jesse P., 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 the 12th Judicial Circuit, Will County, Illinois. Circuit Nos. 14-JA-186 & 14-JA-189 Honorable Paula A. Gomora, Judge, Presiding. JUSTICE LYTTON delivered the judgment of the court.
Presiding Justice Schmidt and Justice O'Brien concurred in the judgment.
ORDER
¶ 1 Held: (1) Trial court's failure to admonish father of his right to appeal the court's dispositional order was not reviewable under plain error, (2) trial court did not err in denying father's motion to continue the proceedings to await appellate review of his criminal conviction, (3) trial court's finding that father was unfit based on depravity was not against the manifest weight of the evidence, and (4) evidence was sufficient to support finding that it was in the children's best interests to terminate father's parental rights. ¶ 2 Respondent, Jesse P., appeals from the circuit court's order terminating his parental rights to his minor sons, J.P., n/k/a J.G. (J.G.), and J.P. On appeal, respondent argues that (1) the trial court's failure to admonish him of his right to appeal the dispositional order constituted plain error, (2) the trial court abused its discretion in denying his motion to continue or stay the proceedings pending his criminal appeal, (3) the trial court's findings of unfitness were against the manifest weight of the evidence, and (4) the finding that it was in the best interests of the children to terminate his parental rights was against the manifest weight of the evidence. We affirm.
¶ 3 FACTS
¶ 4 In December 2014, the State filed a juvenile petition alleging that J.G., born April 20, 2007, and J.P., born October 14, 2008, were neglected minors. At the first appearance, the children's mother, Judith G., who is not a party to this appeal, was appointed counsel, and named respondent as the boys' father. The State did not seek shelter care at that time. ¶ 5 On February 26, 2015, the court held an emergency shelter care hearing. Respondent did not appear. The court found that there was probable cause to believe that the minors were neglected in that there environment was injurious to their welfare and that there was an immediate and urgent necessity to place them in protective care. The basis for the court's finding was that J.P. was hospitalized, the mother was uncooperative with his medical care, the mother was uncooperative when J.G. was hospitalized, and the children were not attending school regularly. The court ordered the children to be placed in the temporary custody of DCFS and scheduled another shelter care hearing for a determination as to respondent. ¶ 6 On March 6, 2015, respondent appeared in court. He was appointed counsel and waived a rehearing. The trial court placed J.G. and J. P. in shelter care and reiterated the basis of its findings from the February hearing. ¶ 7 An adjudicatory hearing was held on May 18, 2015. Respondent was present and was represented by counsel. The parties stipulated that Aunt Martha's, a social services agency, had been involved with the family since June 2014 and that the mother was uncooperative with the agency's efforts to provide services. It was also stipulated that respondent was incarcerated and would be incarcerated for several years. When the court asked if that was the stipulation of the parties, respondent replied, "I don't know what is going on. Yes." The court then admonished the mother and respondent as to their rights to a hearing and asked if they were entering into the stipulation voluntarily. The respondent replied, "Yes." The trial court accepted the stipulation and found the children to be neglected in that their environment was injurious to their welfare. ¶ 8 Toward the close of the hearing, caseworker Mia Collins indicated that a service plan had been completed by Aunt Martha's and a portion of the integrated assessment had been completed for respondent, but she did not have copies of those documents with her. A status hearing was set for June 3 for the service plans to be presented to the court. The trial court then asked the parties if they understood that they must fully cooperate with terms of the service plan to correct the conditions that required the boys to be placed in care or they would risk termination of their parental rights. Both respondent and the mother replied, "Yes." ¶ 9 A dispositional report was filed on July 28, 2015. The report stated that respondent was incarcerated at Menard Correctional Center as a result of two convictions for predatory criminal sexual assault of the minors' six-year-old half-sister (Will County Case No. 08-CF-2446). Respondent was sentenced to consecutive sentences of 49 years and 38 years in prison, and his expected parole date was October 9, 2082. The report also indicated that respondent had not participated in any DCFS assessments and stated that it was unknown if he was participating in services at Menard. The report recommended that respondent be referred to services at Menard. A family service plan was also filed with the court, which indicated that respondent was required to comply with DCFS requests for assessments and evaluations and comply with assessments and evaluations at Menard. ¶ 10 Another dispositional hearing report was filed on August 24, 2015. That report did not include any additional recommendations for respondent. On September 11, 2015, the guardian ad litem (GAL) filed a report on behalf of the children. The report noted that respondent was incarcerated at Menard with a parole date of October 9, 2082. ¶ 11 The dispositional hearing was held on September 16, 2015. The trial court admitted the dispositional reports and the service plan without objection. The State argued that the minors should be made wards of the court and asked that respondent be found unable and unfit because he was incarcerated and would be incarcerated for the "foreseeable future." In response, counsel for respondent argued:
"Your Honor, as the Court indicated, [respondent], father of [J.G. and J.P], will be incarcerated for the foreseeable future. He is not in a position to be able to have custody of his minor children. He does not object to the minors being placed in the custody of the Department of Children and Family Services. We would be requesting that he be found unable."¶ 12 The trial court found it was in the best interests of the children and the public that J.G. and J.P. be made wards of the court. The court also found respondent unfit for reasons other than financial circumstances alone to care for, protect, train, or discipline the children on the basis that he was incarcerated due to a Class X felony with a discharge date of October 9, 2082. ¶ 13 At the conclusion of the hearing, the court asked respondent if he understood the need to continue to comply with the terms of the service plan to correct the conditions requiring the children to be in care or risk termination of parental rights. He replied, "Yes, ma'am." The court then entered a dispositional order making the children wards of the court and finding respondent unfit. ¶ 14 In the fall of 2018, the State filed petitions to terminate respondent's parental rights to J.G. (filed October 1, 2018) and J.P. (filed November 6, 2018). The petitions alleged that respondent was unfit because he (1) failed to maintain a reasonable degree of interest, concern or responsibility as to their welfare (750 ILCS 50/1(D)(b) (West 2018)); (2) failed to make reasonable progress toward the return of the children within 9 months after the adjudication of neglect (750 ILCS 50/1(D)(m)(ii) (West 2018)); and (3) was depraved (750 ILCS 50/1(D)(i) (West 2018)). ¶ 15 In March 2019, respondent filed a motion to continue the termination petition on the basis that he filed a notice of appeal from the denial of a successive postconviction petition in his criminal case (No. 08-CF-2448) on February 26, 2019. The motion alleged that it would be appropriate to continue the proceedings on the petition to terminate parental rights pending an appellate court decision. ¶ 16 At the hearing on the motion, respondent argued that because depravity was an allegation of the petition to terminate, the termination proceedings should be continued until the appellate court issued a decision in his criminal case. The State confirmed that the motion to terminate alleged depravity on the basis of the conviction for which he had been convicted in 2012, with a projected parole date of 2082. The trial court denied the motion to continue. ¶ 17 At the adjudicatory hearing, caseworker Lynn Eashmon testified that respondent was incarcerated in the Department of Corrections and that his parole date was in 2082. She testified that respondent was not provided an agency service plan because he was incarcerated. ¶ 18 Respondent testified that he was the father of J.G. and J.P. and that he had been incarcerated since 2008, following his arrest for predatory criminal sexual assault of a child. He maintained that he was innocent of the underlying criminal charges. He testified that he filed a petition for successive postconviction relief in December 2018, alleging actual innocence due to newly discovered DNA evidence. He stated that the circuit court denied the postconviction petition in February 2019 and that he filed a timely notice of appeal that was currently pending in the appellate court. The court then admitted several exhibits, including (1) a notice of appeal, file stamped February 26, 2019, (2) the petition for successive postconviction relief, with attachments that included a DNA report, and (3) a community college high school equivalency certificate (GED) dated February 2012. The DNA report, dated January 11, 2017, provided "[Respondent] cannot be excluded from having contributed to the male DNA profile identified in Exhibit H. Approximately 1 in 930 thousand White, 1 in 3.0 million Black or 1 in 4.2 million Southwest Hispanic unrelated individuals cannot be excluded as having contributed to this male DNA profile." At the end of respondent's testimony, counsel again asked the court to defer entering a fitness finding pending resolution of respondent's appeal of his postconviction matters. ¶ 19 After respondent testified and the parties gave closing arguments, the trial court found, by clear and convincing evidence, that respondent was unfit in that he failed to maintain a reasonable degree of interest, concern, or responsibility. The court also found, by clear and convincing evidence, that respondent was depraved within the meaning of the Adoption Act (750 ILCS 50/1(D)(i) (West 2018)) and that respondent did not rebut that presumption with clear and convincing evidence. ¶ 20 Before adjourning, the trial court revisited the motion to continue. The court noted that respondent's criminal conviction was upheld on direct appeal (People v. Perez, 2014 IL App (3d) 120837-U, petition for leave to appeal denied People v. Perez, 2015 IL 118887) and that the mandate issued on July 13, 2015. The court was aware that the circuit court's denial of DNA testing was reversed and remanded by the appellate court on September 16, 2016 (People v. Perez, 2016 IL App (3d) 130784), and that DNA testing was subsequently conducted on February 28, 2017. It stated that the test results showed respondent could not be excluded from contributing to the specimen of the victim. The court acknowledged that it had previously denied the request to continue and found that there was no basis to change its ruling after considering respondent's submissions. ¶ 21 At the best interests hearing, Eashmon stated that J.G. was 12 years old and had been placed in specialized foster care due to his "sexualized behavior" issues. Currently, he was living in the home of Dorothy G., and he had been living with her for more than a year. Dorothy took care of J.G.'s daily needs, set all his medical appointments, and ensured that he attended those appointments. J.G. was back in school, attending classes regularly and doing well. Dorothy was also able to meet all of J.G.'s emotional needs. The bond between Dorothy and J.G. was one of a mother and a child and was very nurturing. Dorothy wanted to adopt J.G. J.G. wanted to be adopted and wanted Dorothy to remain his guardian. Eashmon opined that it would be in J.G.'s best interests to have respondent's parental rights terminated so that J.G. could be adopted or guardianship could be placed with the foster mother. ¶ 22 J.P. had been placed in a specialized foster home. Eashmon testified that it was not a pre-adoptive home and that J.P. had been in the facility since April 1, 2019. Prior to the specialized home, J.P. resided in Allendale Residential Facility for three years due to his uncontrolled behavior. The current home was a "step-down" before moving to an adoptive home. J.P. was behind in his education, but the foster home was not reporting any behavioral issues. J.P. could not be placed on a statewide adoption registry until the goal was set for adoption. Eashmon testified that J.P was happy to be out of Allendale and that he did not care where he was placed as long as he was able to visit his brother. Eashmon stated that it would be in J.P.'s best interests to have respondent's parental rights terminated and to be made available for adoption. ¶ 23 On cross-examination, Eashmon testified that J.P. was 10 years old and that she had been involved with the children as their caseworker since October 2018. She had not attempted to place J.P. or J.G. with relatives of respondent. She denied that respondent attempted to talk to her about family placement. She further testified that J.G. had been in sexual abuse counseling and was successfully released on May 1, 2019. J.G. continued weekly individual therapy. He was on mediation for ADHD and bipolar disorder. J.P. was in special education and was under the care of a psychiatrist. He also received weekly therapy and counseling. Eashmon talked to J.G.'s foster mother about taking J.P. and she indicated that she would take J.P. because she wanted to keep the boys together, if possible. ¶ 24 The trial court noted that J.G. had been placed with a foster parent who loved him and wished to adopt him and that J.P. could not be placed on a statewide adoption registry until parental rights were terminated. The court also noted that the children had been in foster care since 2015, and respondent was not scheduled for release until 2082. The trial court found that it was in the best interests of J.G. and J.P. that the respondent's parental rights be terminated and the goal set for adoption.
Respondent's summary dismissal of his first postconviction petition was affirmed on appeal. People v. Perez, 2018 IL App (3d) 160114-U. --------
¶ 25 ANALYSIS
¶ 26 I. Failure to Admonish Respondent of His Right to Appeal the Dispositional Order
¶ 27 Respondent first argues that the trial court committed reversible error by failing to admonish him of his right to appeal the dispositional order following its entry on September 16, 2015. ¶ 28 A party must object at trial and file a posttrial motion to preserve an alleged error for review. In re William H., 407 Ill. App. 3d 858, 869-70 (2011). If a party fails to raise an issue in the trial court, it is forfeited and may not be raised for the first time on appeal. In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 20. The plain error doctrine allows this court to consider forfeited issues when a clear or obvious error occurred and (1) the evidence is so closely balanced or (2) the error affects substantial rights. People v. Herron, 215 Ill. 2d 167, 178-79 (2005); see also In re S.H., 2014 IL App (3d) 140500, ¶ 22. ¶ 29 Respondent did not object or file a posttrial motion on this issue. He acknowledges forfeiture but suggests that this court may consider the unpreserved error under the plain error rule. However, unfitness determination proceedings are civil in nature. 750 ILCS 50/20 (West 2018). The plain error doctrine may be applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself. Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 856 (2010); Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 8 (2007). The trial court's procedural error of failing to admonish respondent of his right to appeal following the entry of the dispositional order increased the risk of an erroneous deprivation of respondent's rights, which implicates the perceptions of judicial fairness and the integrity of the judicial proceedings. In re Z.M., 2019 IL App (3d) 180424, ¶ 51. However, "there would be little value in vacating the proceedings subsequent to the dispositional hearing as a substitute safeguard [where] there is no indication that respondent would have appealed from the dispositional order or that there was any issue of merit that could have been raised in such an appeal." See In re S.P., 2019 IL App (3d) 180476, ¶ 48. ¶ 30 As the State concedes, the trial court erred by failing to admonish respondent of his right to appeal following the entry of the dispositional order. See 705 ILCS 405/1-5(3) (West 2018) (at the dispositional hearing, "the court shall inform the parties of their right to appeal"). However, the error was not so egregious that it deprived respondent of his fundamental right to parent his children or impaired the integrity of the judicial process. At the adjudication hearing, respondent stipulated to allegations in the amended petition resulting in the trial court's finding that J.G. and J.P were neglected due to an injurious environment. At the dispositional hearing, the trial court found that respondent was unable to care for the children for the foreseeable future due to the significant length of his incarceration. Although respondent contends, for the first time on appeal, that he would have appealed the dispositional order had he been so advised, the record shows that respondent did not contest the adjudicatory order or the dispositional findings at the time the order was entered. Further, respondent has failed to demonstrate that the error deprived him of a fair proceeding. The record supports the trial court's dispositional finding of unfitness. And there is no indication that respondent could have raised a meritorious issue on appeal or that an appeal would have been successful;. Since respondent cannot show prejudice, his plain error argument fails.
¶ 31 II. Denial of Respondent's Motion to Continue
¶ 32 Respondent also challenges the trial court's denial of his motion to continue. He contends that his motion to continue the proceedings pending the appeal in the underlying criminal conviction was necessary to defend the allegations contained in the petition to terminate his parental rights and that the trial court's denial was an abuse of discretion. ¶ 33 A party does not have an absolute right to a continuance. In re D.P., 327 Ill. App. 3d 153, 158 (2001). A motion to continue may be granted "[o]n good cause shown, in the discretion of the trial court and on just terms." 735 ILCS 5/2-1007 (West 2018). Illinois recognizes that "serious delay in the adjudication of abuse, neglect, or dependency cases can cause grave harm to the minor." 705 ILCS 405/2-14 (West 2018). The government's interest in seeking to adjudicate parental rights weighs against continuances in termination cases because the delay "imposes a serious cost on the functions of government, as well as an intangible cost to the lives of the children involved." In re M.R., 316 Ill. App. 3d 399, 403 (2000). ¶ 34 With those interests in mind, our supreme court has rejected the argument that an unfitness determination should be postponed while the underlying criminal conduct is under appellate review. In re Donald A.G., 221 Ill. 2d 234, 254 (2006). In In re Donald A.G., the trial court found the respondent unfit based on depravity as the result of a conviction for predatory criminal sexual assault of a child. On review, the respondent asked the supreme court to remand the case to the trial court with instructions to reserve ruling on fitness until his appeal in the criminal case was resolved. The court declined, holding that "the Adoption Act does not call for courts to reserve ruling on findings of unfitness which are related to criminal matters until the appellate process in the underlying cause has been exhausted." Id.; see also In re Brandon K., 2017 IL App (2d) 170075, ¶ 30 (reviewing court rejected respondent's argument that presumption of depravity should not apply until all avenues of criminal appeal had been exhausted). ¶ 35 Here, we are aware that respondent has filed an appeal seeking to overturn the trial court's denial of a successive postconviction petition challenging his criminal conviction, which is currently pending (People v. Perez, No. 3-19-0101, docketing order entered August 6, 2019). However, waiting for the resolution of criminal appeals is not a basis for continuing proceedings for termination of parental rights. We therefore reject respondent's argument that the trial court abused its discretion in denying his motion to continue or defer its findings.
¶ 36 III. Finding of Unfitness
¶ 37 Respondent next argues that the trial court committed reversible error by finding him unfit. He argues that the trial court's findings that he failed to maintain a reasonable degree of interest, concern, and responsibility, and that he was depraved were against the manifest weight of the evidence. ¶ 38 A parent's rights may be terminated only upon proof, by clear and convincing evidence, that the parent is unfit. 705 ILCS 405/2-29(4) (West 2018); In re C.N., 196 Ill. 2d 181, 208 (2001). A fitness determination must be made prior to consideration of the child's best interest. In re E.C., 337 Ill. App. 3d 391, 401 (2003). A court's determination of unfitness will not be disturbed on review unless it is against the manifest weight of the evidence. In re C.N., 196 Ill. 2d at 208. A decision is against the manifest weight of the evidence where the opposite conclusion is clearly the proper result. Id. ¶ 39 A "finding of unfitness will stand if supported by any one of the statutory grounds set forth in section 1(D) of the Adoption Act." In re Konstantinos H., 387 Ill. App. 3d 192, 203-04 (2008). Those grounds include depravity. See 750 ILCS 5/1 (D)(i) (West 2018). Section (D)(i) provides that there is a rebuttable presumption that a parent is depraved if the parent has been convicted of "predatory criminal sexual assault of a child in violation of Section 11-1.40 or 12-14.1 of the Criminal Code of 1961 or the Criminal Code of 2012." 750 ILCS 50/1(D)(i) (West 2018). ¶ 40 Our supreme court has defined depravity as "an inherent deficiency of moral sense and rectitude." (Internal quotation marks omitted.) Stalder v. Stone, 412 Ill. 488, 498 (1952). Within the context of a petition to terminate parental rights, depravity must be shown to exist at the time of the petition, and "the 'acts constituting depravity * * * must be of sufficient duration and of sufficient repetition to establish a 'deficiency' in moral sense and either an inability or an unwillingness to conform to accepted morality.' " In re J.A., 316 Ill. App. 3d 553, 561 (2000) (quoting In re Adoption of Kleba, 37 Ill. App. 3d 163, 166 (1976)). ¶ 41 On appeal, respondent concedes that the State produced sufficient evidence to invoke the presumption of depravity, but he argues that he successfully rebutted that presumption based on his claims of innocence. Respondent refutes the facts of his conviction and alleges that he overcame the presumption through newly discovered DNA evidence. However, his claims of innocence have been rejected by this court on direct appeal (People v. Perez, 2014 Il App (3d) 120837-U) and in postconviction proceedings (People v. Perez, 2018 IL App (3d) 160114-U). Moreover, the DNA evidence report does not exonerate defendant. In fact, the report states that he "cannot be excluded" as a possible contributor to the DNA found on the victim's clothing. ¶ 42 We agree with respondent that a rebuttable presumption is one that he may overcome. A rebuttable presumption creates a prima facie case as to the issue of depravity, but a parent is still able to present evidence showing that, despite his convictions, he is not depraved. In re J.A., 316 Ill. App. 3d at 562-563. Although respondent presented the court with a GED certificate from 2012, obtaining a high school equivalency degree, without more, does not demonstrate that a parent is not depraved under the statutory standard of proof. See 750 ILCS 50/1(D)(i) (West 2018) (conviction of predatory criminal sexual assault of a child creates a presumption that a parent is depraved "which can be overcome only by clear and convincing evidence"). Respondent failed to provide any other evidence showing that he no longer had a "deficiency in moral sense and either an inability or an unwillingness to conform to accepted morality." In re J.A., 316 Ill. App. 3d at 561. At the fitness hearing, he continued to deny any wrongdoing in the underlying case and failed to present any record of services, counseling, or employment while incarcerated that would indicate a willingness to conform to accepted morality. In this case, the State's evidence was clear and convincing and respondent failed to overcome the presumption with sufficient evidence. The trial court's finding that respondent was unfit based on depravity was not against the manifest weight of the evidence.
¶ 43 IV. Termination of Parental Rights
¶ 44 Respondent also contends that the trial court's finding that it was in the best interests of the children to terminate respondent's parental rights was against the manifest weight of the evidence. ¶ 45 The best interest determination is made after the parent is found to be unfit. The State must show that the interests of the child are served by severing parental right and prove by a preponderance of the evidence that termination is in the child's best interests. In re D. T., 212 Ill. 2d 347, 366 (2004). Although parental rights and responsibilities are of deep human importance and will not be lightly terminated, the deference accorded to parental rights does not negate a court's responsibility to protect minors from neglect and abuse. In re E.M., 295 Ill. App. 3d 220, 227 (1998). Once parental unfitness has been found, all of the parent's rights must yield to the best interests of the child. In re D.T., 212 Ill. 2d at 364. In determining a child's best interests, the trial court must consider several statutory factors, including (1) the physical safety and welfare of the child; (2) the minor's sense of attachments; (3) the child's need for permanence, including stability and continuity of relationships with parental figures, siblings, and other relatives; and (5) the preferences of the persons available to care for the minor. 705 ILCS 405/1-3(4.05) (West 2018). A trial court's determination that it is in a child's best interests to terminate the rights of his or her parent will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. In re T.A, 359 Ill. App. 3d 953, 961 (2005). ¶ 46 Here, respondent is unable to point to any evidence that would justify a reversal of the trial court's decision. Caseworker Eashmon testified at the best interest hearing that respondent had not had any contact with J.G. or J.P. during his incarceration. The record indicates that respondent had been incarcerated since his arrest in 2008. At that time, J.G. was 1 ½ and J.P. was only days old. Following his conviction for predatory criminal sexual assault of a child, a Class X felony, respondent was sentenced to an aggregate term of 85 years in prison. With a parole date of October 9, 2082, respondent will be incarcerated for most of his natural life and J.G. and J.P. will be in their 70's when he is released. ¶ 47 While respondent has been incarcerated, J.G. has been thriving in his foster home placement and his foster mother has indicated that she is willing to adopt him. He has formed a loving relationship with Dorothy, and he wants her to be his guardian. Dorothy provides J.G. with a warm, caring, and stable home life. Likewise, J.P. is making progress toward living in an adoptive home. He attends weekly counseling and has not exhibited any disruptive behavior since he moved to his specialized foster home. He cannot be placed on an adoption registry until the goal is set for adoption. In addition, the boys have a strong attachment to each other and J.G.'s foster mother is interested in keeping them together. At a best-interest hearing, the parent's interest in maintaining the parent/child relationship must give way to the children's interest in a stable, loving, and supportive home life. See In re D.T., 212 Ill. 2d at 364. ¶ 48 In this case, the trial court considered the statutory factors in determining the best interests of J.G. and J. P. The evidence showed that respondent did not provide for children's safety or welfare during their lives because he was incarcerated and will be incarcerated for most of their adult lives. The children deserved the kind of permanence and stability that respondent failed to give them and that he could not provide until 2082. Under these circumstances, the trial court's finding that it was in the best interests of J.G. and J.P. to terminate respondent's parental rights was not against the manifest weight of the evidence.
¶ 49 CONCLUSION
¶ 50 The judgment of the circuit court of Will County is affirmed. ¶ 51 Affirmed.