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People v. Justin M. (In re A.M.)

Illinois Appellate Court, Fourth District
Oct 25, 2023
2023 Ill. App. 4th 230543 (Ill. App. Ct. 2023)

Opinion

4-23-0543 4-23-0544

10-25-2023

In re A.M. and H.M., Minors v. Justin M., Respondent-Appellant) (The People of the State of Illinois, Petitioner-Appellee,


This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Knox County Nos. 20JA58 20JA59 Honorable Curtis S. Lane, Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Presiding Justice DeArmond and Justice Lannerd concurred in the judgment.

ORDER

DOHERTY JUSTICE.

¶ 1 Held: Pursuant to Anders v. California, 386 U.S. 738 (1967), the appellate court granted counsel's motion to withdraw because no meritorious issues could be raised on appeal.

¶ 2 Respondent Justin M. is the father of A.M. (born 2017) and H.M. (born 2010). In November 2022, the trial court found respondent was an unfit parent under the Adoption Act (750 ILCS 50/1 (West 2022)). In December 2022, the court found termination of respondent's parental rights was in the children's best interest. It denied respondent's motion to reconsider in May 2023.

¶ 3 Respondent appealed the trial court's judgment terminating his parental rights, and respondent's counsel on appeal has now moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). See In re S.M., 314 Ill.App.3d 682, 685-86 (2000) (holding Anders applies to termination of parental rights cases and providing the proper procedure to be followed by appellate counsel). In his brief, appellate counsel contends that the appeal of this case presents no potentially meritorious issues for review. We agree, and we therefore grant appellate counsel's motion to withdraw and affirm the court's judgment.

¶ 4 I. BACKGROUND

¶ 5 We note Jessica E., the mother of A.M. and H.M., was a respondent in the trial court cases but is not a party to this appeal. We address the facts relating to Jessica only to the extent they are relevant here.

¶ 6 A. Procedural History

¶ 7 In November 2020, the State filed a petition for adjudication of wardship, alleging A.M. was neglected because she lived in an environment injurious to her welfare where: (1) Jessica had threatened to kill herself and the children, (2) Jessica and respondent had a history of domestic violence against one another, and (3) both Jessica and respondent had exposed the children to methamphetamine use. The State filed a similar petition regarding H.M. The trial court advised respondent of his rights and the nature of the allegations when he appeared at the November 24, 2020, shelter care hearing. Jessica had not been served with the petitions and was not present. The court placed temporary guardianship and custody of A.M. and H.M. with the guardianship administrator of the Illinois Department of Children and Family Services (DCFS). On December 1, 2020, the court extended DCFS's temporary custody and appointed counsel for both parents.

¶ 8 In March 2021, the trial court adjudicated A.M. and H.M. neglected minors. Jessica and respondent were both present. Both stipulated to the sole count in each petition. The State presented the following factual basis for the stipulations. On November 19, 2020, Jessica texted a threat to kill herself and the two children to her mother, Virginia E. Respondent and Jessica "h[ad] a history of domestic issues dating back at least as far as March 7th of 2020, including at least two instances of domestic battery, one of which occurred in May of 2020 and the other in October of 2020." There were ongoing investigations into a "domestic violence incident" between the parents. H.M. had witnessed his parents physically fighting. H.M. had "found meth in his mom's purse on the floor" and had "found needles in the home." A.M., then three years old, "picked up meth ***, and [H.M.] took it from her."

¶ 9 Following an April 2021 dispositional hearing, the trial court entered an order finding respondent unfit for reasons other than financial circumstances alone to care for, protect, train, educate, supervise, or discipline A.M. and H.M. The court also made the children wards of the court and placed custody and guardianship of them with the guardianship administrator of DCFS. The court admonished respondent that he needed to cooperate with DCFS and complete services or risk termination of his parental rights.

¶ 10 B. The Petition for Termination of Parental Rights

¶ 11 In February 2022, the State filed two petitions seeking respectively to terminate respondent's parental rights as to A.M. and H.M. In both petitions, the State alleged respondent was an unfit parent within the meaning of the Adoption Act for failing to (1) make reasonable efforts to correct the conditions which were the basis for the removal of the children from parental custody during the nine-month period from May 15, 2021 to February 15, 2022, which followed the adjudication of neglect; (2) make reasonable progress toward the return of the children during the same nine-month period; (3) maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare; and (4) protect the children from conditions within their environment injurious to their welfare. See 750 ILCS 50/1(D)(m)(i), (ii), (D)(b), (D)(g) (West 2022).

¶ 12 1. The Fitness Portion of the Termination Proceedings

¶ 13 In November 2022, the trial court conducted a hearing on the parental fitness portion of the termination proceedings. Although respondent had been present on the first date for which the court had set the hearing, he was not present when the hearing took place.

¶ 14 a. The State's Evidence: The Testimony of Kimberly Davis

¶ 15 Kimberly Davis testified that she had formerly been employed by the Center for Youth and Family Solutions (CYFS or the agency) in Galesburg, Illinois, and had been a caseworker for the cases of A.M. and H.M. She agreed she "had them on [her] caseload" from May 2021 through February 2022. She testified that, due to the issues which led to the neglect findings, respondent was required to engage in services under the service plan. She believed he had participated in the integrated assessment. According to Davis, the plan dated November 11, 2021, gave respondent supervised visitation with his children and required him to "do drug screens," take parenting and domestic violence classes, complete substance abuse and mental health assessments, notify the agency of any changes to his address, phone number, or employment, and give the agency 24 hours of notice when he was going to miss a visitation.

¶ 16 Davis testified that respondent started the process for getting a substance abuse evaluation; however, he never completed the process and ultimately did not receive the evaluation. Respondent also failed to get a mental health evaluation or participate in either domestic violence or parenting classes. Moreover, he was generally uncooperative with Davis.

¶ 17 Davis testified that respondent's compliance with the drug testing requirement was unsatisfactory. Davis explained that respondent "was working and he could not make it to do his drug screens," although he had appeared for one scheduled test. Because he missed the scheduled screening tests, "he did oral tox screens in the office when he visited." All the oral screens had inconclusive results. Davis began to testify about the conclusions she drew from those results, but respondent's counsel objected, and the trial court sustained the objection. However, she later testified inconclusive results were not "normal" and respondent's apparent reluctance to submit to the tests made her suspect he had manipulated the test results.

¶ 18 Further, Davis was concerned by respondent's behavior during visits with his children. Although he often brought toys and food, respondent would sit by himself and either sleep or look at his phone. Respondent missed about half of his scheduled visits.

¶ 19 Respondent presented no evidence.

¶ 20 b. The Trial Court's Decision

¶ 21 The trial court stated it would discount certain evidence. Specifically, the court noted it would not accept Davis's speculative testimony the inconclusive oral swab tests were the result of manipulation by respondent or her implication he was intoxicated during his visits; it also would not consider Davis's vague assertion respondent was uncooperative. On the other hand, it was "unrebutted that [respondent] failed to appear on all of [the scheduled tests]. So those are all positive in this Court." Further, respondent missing half his visits and his inattentive behavior when he did attend was "concerning." It was unrebutted that he had not completed any of the recommended classes and assessments. The court therefore concluded the State had proved three of its allegations by clear and convincing evidence. However, the State had not proved respondent failed to protect the children from conditions within their environment injurious to their welfare. The court entered a default judgment against Jessica.

¶ 22 2. The Best Interest Portion of the Termination Proceedings

¶ 23 The trial court conducted the best interest hearing in December 2022. Respondent had received notice but was not present. On the State's motion, and without objection from any party, the court admitted the November 30, 2022, best interest reports from CYFS and the November 30, 2022, family service plans.

¶ 24 a. The Best Interest Reports

¶ 25 The best interest report for A.M. stated she had been placed with Virginia E. since the start of the case. Virginia wanted to adopt A.M. The report described A.M. as happy and well cared for in Virginia's home. She was progressing well academically. She called Virginia "mom" and did not talk about Jessica.

¶ 26 The report for H.M. stated he had been placed with Virginia for most of the case, but he had been placed with his maternal great-aunt, Retha B., due to an "incident" which raised concerns about A.M.'s safety. He was happy and well cared for in Retha's home. Retha and Virginia, sisters who lived a block apart, worked together to ensure his needs were met. Retha hoped H.M. could live with Virginia and A.M. and was thus hesitant to provide permanency for H.M. The agency was assessing whether a return to living with Virginia, and thus A.M., was appropriate for H.M.

¶ 27 H.M. and respondent spoke by phone regularly outside the formal visits. He hoped respondent would continue to visit him after formal visitation ended. He had little contact with Jessica and did not mention her.

¶ 28 The report concluded that, despite the uncertainty about permanency, termination of respondent's and Jessica's parental rights was in A.M.'s and H.M.'s best interest.

¶ 29 b. The November 30, 2022, Plans

¶ 30 The November 30, 2022, plans explained why H.M. had been placed with Retha. H.M., who shared a bedroom with A.M., had "stuck his finger in [A.M.'s] butt." He initially denied doing this but then admitted he had. H.M. did not know why he had done it, said he wanted to kill himself, and then ran from the house. Because one condition for H.M.'s return was a separate bedroom for H.M., Virginia was adding a bedroom to her house. However, H.M.'s return would depend, among other things, on a clinical evaluation of A.M. Unlike the report, the plan said Retha was willing to provide permanency to H.M.

¶ 31 c. The Trial Court's Ruling

¶ 32 The trial court found termination of the parents' rights was in the best interest of both children. It characterized the change in H.M.'s placement as a "hiccup" but stated, because the case was two years old, no reason existed to delay the decision. The court then addressed the statutory best interest factors pursuant to the Juvenile Court Act of 1987 (Juvenile Court Act) (see 705 ILCS 405/1-3(4.05) (West 2022)) and concluded they weighed in favor of concluding termination of parental rights was in the best interest of both A.M. and H.M.

¶ 33 3. Respondent 's Motion to Reconsider

¶ 34 Respondent filed a timely motion to reconsider both the unfitness and best interest findings in each case. He asserted none of the findings were consistent with the relevant statutory requirements. The trial court heard the motion on May 16, 2023. Respondent was again not present, as he was in "an inpatient program." However, counsel for respondent stated he had spoken to respondent, who advised he wanted to tell the court about his relationship with his children and demonstrate his willingness to become a fit parent. The State argued evidence that respondent had failed to present was not relevant to whether the court had made the correct decisions after the unfitness and best interest hearings. The court agreed and denied the motion.

¶ 35 4. Respondent 's Appeal and the Motion to Withdraw

¶ 36 In June 2023, respondent filed notices of appeal, and the trial court appointed counsel to represent him in those appeals. The cases were consolidated for appeal. In August 2023, appellate counsel filed a motion to withdraw and served a copy on respondent. This court notified respondent he had until September 8, 2023, to file a response to the motion. The specified date has passed, and respondent has not filed a response.

¶ 37 II. ANALYSIS

¶ 38 Appellate counsel argues these appeals present no potentially meritorious issues for review. He addresses three potential issues and concludes any argument based on them would be frivolous. Those issues are whether the trial court erred in finding (1) respondent failed to make reasonable progress toward the return of the children, (2) respondent failed to make reasonable efforts to correct the conditions which brought the children into care during the relevant ninemonth period, and (3) termination of respondent's parental rights was in the best interest of the children. Appellate counsel has explained in detail in his motion why each of these issues lacks merit. Specifically, he contends, as to the two unfitness findings he addresses, respondent's failure to complete all services would make any argument the court erred frivolous. As to the best interest findings, the overwhelming evidence favored concluding termination was in the best interest of the children, making any argument to the contrary frivolous.

¶ 39 Because we agree these appeals present no potentially meritorious issue for review, we grant appellate counsel's motion to withdraw and affirm the trial court's judgment.

¶ 40 A. The Trial Court's Fitness Finding

¶ 41 A reviewing court should affirm a trial court's finding of unfitness if any ground on which the court found the respondent unfit is sustainable. See, e.g., In re Ta. T., 2021 IL App (4th) 200658, ¶ 46 (noting it is well established that because each of the statutory grounds of unfitness is independent and that a finding that any one allegation has been proven by clear and convincing evidence is sufficient to affirm a parental unfitness finding on review). Accordingly, arguing the court erred in finding a respondent unfit is nonfrivolous only if a respondent can make a nonfrivolous argument as to every ground on which the court found unfitness. Thus, if appellate counsel is correct he cannot make a nonfrivolous argument as to any one basis on which the court found respondent unfit, it would be frivolous for him to argue at all the court erred in finding respondent unfit. We agree with appellate counsel it would be frivolous to argue respondent made reasonable progress toward the return of the children. We thus need not address whether it would be frivolous to argue respondent made reasonable efforts to correct the conditions leading to DCFS's taking the children into care.

¶ 42 1. The Standard of Review and the Applicable Law

¶ 43 a. The Standard of Review

¶ 44 A determination of parental unfitness involves factual findings and credibility determinations that the trial court is in the best position to make because "the trial court's opportunity to view and evaluate the parties *** is superior." (Internal quotation marks omitted.) In re M.I., 2016 IL 120232, ¶ 21. "A trial court's finding of parental unfitness will not be reversed unless it is against the manifest weight of the evidence." In re Ta. T., 2021 IL App (4th) 200658, ¶ 48. "A trial court's 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." (Internal quotation marks omitted.) In re N.B., 2019 IL App (2d) 180797, ¶ 30.

¶ 45 b. The Law Relating to Failure to Make Reasonable Progress

¶ 46 A trial court may find a parent unfit under section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2022)) if adequate evidence exists to show the parent failed to make "reasonable progress toward the return of the child" during any nine-month period following an adjudication of neglect or abuse. The Illinois Supreme Court has held,

"The benchmark for measuring a parent's reasonable progress under section 1(D)(m) of the Adoption Act encompasses compliance with the service plans and
[the] court's directives in light of the condition that gave rise to the removal of the child and other conditions which later become known that would prevent the court from returning custody of the child to the parent." In re K.P., 2020 IL App (3d) 190709, ¶ 36 (citing In re C.N., 196 Ill.2d 181, 216-17 (2001)).

¶ 47 Likewise, this court has defined "reasonable progress" as follows:

" 'Reasonable progress' is an objective standard which exists when the court, based on the evidence before it, can conclude that the progress being made by a parent to comply with directives given for the return of the child is sufficiently demonstrable and of such a quality that the court, in the near future, will be able to order the child returned to parental custody. The court will be able to order the child returned to parental custody in the near future because, at that point, the parent will have fully complied with the directives previously given to the parent in order to regain custody of the child." (Emphases in original.) In re L.L.S., 218 Ill.App.3d 444, 461 (1991).

See also K.P., 2020 IL App (3d) 190709, ¶ 36.

¶ 48 2. This Case

¶ 49 Here, the trial court found respondent unfit on three grounds, including his failure to make reasonable progress toward the children's return. It noted respondent barely visited A.M. Counsel argues, inter alia, respondent's admitted failure to visit A.M. after the initial stages of the case and his lack of any excuse for the failure preclude any nonfrivolous argument the court erred in finding respondent unfit on this basis. We agree.

¶ 50 Davis testified respondent failed to complete any services. Given the weight reviewing courts place on compliance with the service plans, failure to complete any required services is not consistent with reasonable progress.

¶ 51 We note that the State's evidence of respondent's failure to complete any services may have been based in some part on hearsay. Davis's testimony of respondent's lack of participation is not likely something Davis could have observed directly, although she might have learned of it through respondent's admissions. See Ill. R. Evid. 801(c) (eff. Oct 15, 2015) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); Ill. R. Evid. 801(d)(2)(A) (eff. Oct 15, 2015) (noting a statement is not hearsay if it "is offered against a party" and is "the party's own statement, in either an individual or a representative capacity"). But neither counsel nor any other party objected to Davis's testimony. When there is no objection to a witness's hearsay testimony, courts may give such testimony its "natural probative weight." In re M.D., 2022 IL App (4th) 210288, ¶ 102. Davis was the caseworker for the case involving respondent and thus had every reason to be aware of the parents' progress toward completing their services. Moreover, respondent's history of service participation was not complicated and he never got further than receiving a referral for a mental health evaluation. Thus, Davis's testimony concerning respondent's plan participation was of similar reliability to Davis's other testimony.

¶ 52 The failure of respondent's counsel to obj ect to Davis's possible hearsay testimony is also not the basis for a meritorious argument. To succeed on an ineffective assistance claim, a party must show both "(1) the attorney's performance fell below an objective standard of reasonableness (deficient performance prong); and (2) there is a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different (prejudice prong)." People v. Watson, 2012 IL App (2d) 091328, ¶ 23 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Here, appellate counsel would not be able to satisfy the prejudice prong. Had respondent's counsel challenged Davis's testimony about his failure to participate in services, the State would most likely have been able to show respondent's nonparticipation by introducing the service plans, with Davis's testimony providing a foundation for their introduction. Thus, no nonfrivolous argument can be made to show respondent suffered prejudice from trial counsel's failure to challenge the hearsay portions of Davis's testimony.

¶ 53 The service plans dated November 11, 2021, and April 25, 2022, are sufficient to show respondent could have, at best, participated in services only briefly. The family service plan dated November 11, 2021, which describes Davis as the "worker," lists the services required of respondent and states he had not engaged in any of them. The next plan, dated April 25, 2022, on which a different agency employee was listed as the "worker," stated respondent had not engaged in services "for months." Thus, although the plans are arguably consistent with respondent having engaged in services at most in very late 2021 and very early 2022, such a level of engagement is not consistent with respondent making progress toward obtaining custody of the children.

¶ 54 Further, while there was no objection to the introduction of the service plans, the State almost certainly could have laid a foundation for the plans' introduction through Davis's testimony even if challenged. Service plans and DCFS investigative records are admissible under section 2-18(4)(a) of the Juvenile Court Act (705 ILCS 405/2-18(4)(a) (West 2022) if the trial court:

"finds that the [plan or record] was made in the regular course of the business of the *** [relevant] agency and that it was in the regular course of such business to make it, at the time of the act, transaction, occurrence or event [recorded therein], or within a reasonable time thereafter."

See also In re Aniylah B., 2016 IL App (1st) 153662, ¶ 30. The author of the document at issue does not need to testify, as" 'anyone familiar with the business and its procedures may testify about how the writing was prepared.'" In re M.H., 2020 IL App (3d) 190731, ¶ 17 (quoting In re A.B., 308 Ill.App.3d 227, 235 (1999)). The November 11, 2021, plan has regular notations stating Davis conducted evaluations of the affected parties. This strongly suggests Davis would be able to establish a sufficient business records foundation for admission of the service plans even if they had been challenged.

¶ 55 B. The Trial Court's Best Interest Finding

¶ 56 1. The Applicable Law and the Standard of Review

¶ 57 At the best interest portion of termination proceedings, the State bears the burden of proving by a preponderance of the evidence termination of parental rights is in the child's best interest. In re C.P., 2019 IL App (4th) 190420, ¶ 71." 'Proof by a preponderance of the evidence means that the fact at issue *** is rendered more likely than not.'" In re D.D., 2022 IL App (4th) 220257, ¶ 50 (quoting People v. Houar, 365 Ill.App.3d 682, 686 (2006)). In reaching a best interest determination, the trial court must consider, within the context of the child's age and developmental needs, the following factors:

"(1) the child's physical safety and welfare; (2) the development of the child's identity; (3) the child's familial, cultural[,] and religious background and ties; (4) the child's sense of attachments, including love, security, familiarity, continuity of affection, and the least disruptive placement alternative; (5) the child's wishes and long-term goals; (6) the child's community ties; (7) the child's need for permanence, including the need for stability and continuity of relationships with parent figures and siblings; (8) the uniqueness of every family and child; (9) the risks related to substitute care; and (10) the preferences of the person available to
care for the child." (Internal quotation marks omitted.) In re J.B., 2019 IL App (4th) 190537, ¶ 32 (citing 705 ILCS 405/1-3(4.05) (West 2018)).

However, the "trial court's best-interest determinations 'need not contain an explicit reference to each of [the statutory] factors, and we need not rely on any basis used by the trial court in affirming its decision.'" (Emphasis added.) In re Tr. A., 2020 IL App (2d) 200225, ¶ 58 (quoting In re Davon H., 2015 IL App (1st) 150926, ¶ 78). Further, "[t]he court may also consider the nature and length of the child's relationship with [his or] her present caretaker and the effect that a change in placement would have upon his or her emotional and psychological well-being." Davon H., 2015 IL App (1st) 150926, ¶ 78.

¶ 58 At the best interest hearing, although parents retain an "interest in maintaining the parent-child relationship, the force of that interest is lessened by the trial court's finding that the parent is unfit to raise his or her child." In re D.T., 212 Ill.2d 347, 364 (2004). Once the State has met its burden of showing unfitness, "the child's interest in a loving, stable and safe home environment" diverges from the interest he or she shares with the parent in avoiding an improper termination of the parent-child relationship and "become[s] more aligned with the State's interest in terminating parental rights and freeing the child for adoption." Id. at 363-64.

¶ 59 A reviewing court affords great deference to a trial court's best interest finding because the trial court is in a superior position to view the witnesses and judge their credibility. C.P., 2019 IL App (4th) 190420, ¶ 71. An appellate court "will not disturb the trial court's decision regarding a child's best interests *** unless it is against the manifest weight of the evidence." Id. ¶ 68. A best interest determination is against the manifest weight of the evidence only when the opposite conclusion is clearly the proper result. Id.

¶ 60 2. This Case

¶ 61 Counsel argues that, because the record is devoid of any evidence tending to show continuation of respondent's parental rights would be in either child's best interest, there can be no arguable merit to any claim the trial court erred in finding termination of the parents' rights was in the children's best interest. We agree counsel could not make a meritorious argument. However, an explanation of why no argument could be meritorious must address the strength of the evidence favoring the State, not just the lack of evidence favoring respondent.

¶ 62 The evidence here showed A.M. had been successfully placed with her maternal grandmother, with whom she had lived since the start of the case. H.M.'s placement had become unsettled because of concerns over his behavior with A.M. However, his new placement with his maternal great-aunt appeared successful and the relationship between the two caregivers allowed them to cooperate. The trial court stated the change in H.M.'s placement was a "hiccup," but that this issue did not override the need for finality in a case that had lasted two years.

¶ 63 On these facts, it would be frivolous for counsel to argue the trial court erred in finding it to be more likely than not termination was in the best interest of the children. Respondent had a history of domestic violence he had not addressed, had never been a primary caregiver for either child, and had an unimpressive record of visitation with both children. The evidence in the record most favorable to him was reports of his regular telephone conversations with H.M. outside of agency visitation. This showed respondent's ongoing relationship with H.M. However, the evidence did not suggest termination of respondent's parental rights would end this relationship. On the side favoring the State, the children's maternal grandmother and great-aunt were working together to provide stability for the children despite the safety concerns created by H.M.'s actions with A.M. Both placements appeared to provide stability for the children and meet all their needs. We thus agree that it would be frivolous to argue the decision to terminate respondent's parental rights was contrary to the manifest weight of the evidence.

¶ 64 III. CONCLUSION

¶ 65 For the reasons stated, we agree with appellate counsel that no meritorious issues can be raised on appeal. We therefore grant counsel's motion to withdraw and affirm the trial court's judgment.

¶ 66 Affirmed.


Summaries of

People v. Justin M. (In re A.M.)

Illinois Appellate Court, Fourth District
Oct 25, 2023
2023 Ill. App. 4th 230543 (Ill. App. Ct. 2023)
Case details for

People v. Justin M. (In re A.M.)

Case Details

Full title:In re A.M. and H.M., Minors v. Justin M., Respondent-Appellant) (The…

Court:Illinois Appellate Court, Fourth District

Date published: Oct 25, 2023

Citations

2023 Ill. App. 4th 230543 (Ill. App. Ct. 2023)