Opinion
No. 2-18-0070
05-02-2018
In re JEREMIAH H. and JAYLEN H., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Lawrence H., 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. 14-JA-58 14-JA 59
Honorable Francis M. Martinez, Judge, Presiding.
JUSTICE SPENCE delivered the judgment of the court.
Justices McLaren and Hutchinson concurred in the judgment.
ORDER
¶ 1 Held: We granted appellate counsel's motion to withdraw and affirmed the trial court's judgment, as there were no issues of arguable merit regarding the trial court's determination that respondent was unfit and that it was in the children's best interests to terminate his parental rights. There was also no arguable merit in arguing that trial counsel was ineffective.
¶ 2 Respondent, Lawrence H., is the father of Jeremiah H., born on June 5, 2010, and Jaylen H., born on April 11, 2013. The trial court found that respondent was unfit and that it was in the children's best interests to terminate respondent's parental rights.
¶ 3 Respondent appealed, and the trial court appointed counsel to represent him on appeal. Pursuant to the procedure set forth in Anders v. California, 386 U.S. 738 (1967), and In re Keller, 138 Ill. App. 3d 746 (1985), appellate counsel has sought leave to withdraw, arguing that no meritorious issue exists. Appellate counsel has filed a memorandum of law in support of his motion and represents that he has mailed respondent a copy of the motion to withdraw and memorandum. The clerk of this court has also notified respondent of the motion and informed him that he would have 30 days to respond. More than 30 days have passed, and respondent has not submitted a reply to the motion.
¶ 4 Appellate counsel avers that he has thoroughly reviewed the record and is familiar with the case. The potential issues that appellate counsel has raised are: (1) whether the trial court's findings of unfitness were against the manifest weight of the evidence; (2) whether the trial court's best interest findings were against the manifest weight of the evidence; and (3) whether respondent was denied the effective assistance of counsel where counsel failed to make various objections or offer additional evidence. For the reasons that follow, we grant appellate counsel's motion to withdraw and affirm.
¶ 5 I. BACKGROUND
¶ 6 The State initially filed neglect petitions on February 6, 2014, regarding the minors and two of their siblings who have different fathers and are not at issue in this appeal. Count 1 alleged that the children were neglected because their environment was injurious to their welfare, in that respondent and the children's mother, Tamika B., engaged in domestic violence in front of them. See 705 ILCS 4-5/2-3(1)(b) (West 2012). Count 2 alleged that the children were neglected because they were not receiving adequate food. See 705 ILCS 405/2-3(1)(a) (West 2012). At the time the neglect petitions were filed, respondent was incarcerated.
¶ 7 A Department of Children and Family Service (DCFS) statement of facts filed on February 6, 2014, stated that two days prior, the minors' 10-year-old sibling called the police stating that respondent was hitting Tamika. Both parents had scratches and swelling on their heads. It was reported to DCFS that Tamika was standing in the road holding Jaylen, who was wearing only a t-shirt and very soiled diaper even though it was very cold outside. Three other children were inside, and there was no food in the house other than dry oatmeal. When Tamika was asked her name, she talked about demons and heaven.
¶ 8 Respondent stipulated at the initial shelter care hearing that there was probable cause of neglect, and that guardianship and temporary custody of the children should be awarded to DCFS.
¶ 9 At a hearing on August 27, 2014, the trial court adjudicated the children neglected pursuant to the parents' stipulation to count 1 and a determination that the count was proven by a preponderance of the evidence. It specifically found that respondent had engaged in domestic violence against Tamika in the children's presence. The State dismissed count 2 by agreement.
¶ 10 At a dispositional hearing on November 20, 2014, respondent agreed to a "standard disposition." The trial court found that respondent was unfit or unable to parent the children, and that it was in their best interests to be made wards of the court. The trial court noted for the record that respondent "has just been released from incarceration and by his own admission has to reestablish a relationship."
¶ 11 About two years later, on November 9, 2016, the State filed a petition to terminate respondent's parental rights. It alleged that respondent was unfit in that he 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 protect the minors from conditions within the
environment injurious to their welfare (750 ILCS 50/1(D)(g) (West 2016)); (3) failed to make reasonable efforts to correct the conditions that were the basis for the children's removal during a nine-month period after the adjudication of abuse or neglect, namely from June 11, 2015, to March 11, 2016, and from February 1, 2016, to November 1, 2016 (750 ILCS 50/1(D)(m)(i) (West 2016)); and (4) failed to make reasonable progress toward the return of the children during the same nine-month periods (750 ILCS 50/1(D)(m)(ii) (West 2016)).
¶ 12 A hearing on the petition to terminate parental rights took place on October 18, 2017. Respondent's counsel stated that respondent "called courthouse administration and ha[d] indicated that [he was] unable to be present." The trial court denied counsel's request for a continuance. Caseworker Angela Jones then testified as follows. She had been a caseworker for Jeremiah, who was seven, and Jaylen, who was four, since September 2014. Respondent participated in an integrated assessment when he was released from jail in October 2014. DCFS recommended that he engage in domestic violence services, substance abuse services, and parenting services, and that he cooperate with DCFS. He never directly engaged in any recommended services. Jones admitted that respondent provided documentation of programs that he participated in while incarcerated in 2014. However, she testified that DCFS wanted him to engage in more extensive services once he was released because some of the programs that respondent had intended were not as intensive as DCFS required, and because respondent had reoccurrences of substance abuse and domestic violence after he was released from prison.
¶ 13 Respondent stayed in contact with DCFS from October 2014 until January 2015, when he was incarcerated again. He was released from prison in October 2015 and came to court. DCFS had no contact with him again until November 2016, when he called and appeared in court. After November 2016, he was incarcerated in Winnebago County, and DCFS had contact with
him until he was released in February 2017. There was again a period of no contact until June 2017, when respondent spoke with Jones by phone. Jones had mailed letters and service plans to respondent throughout the proceedings.
¶ 14 Respondent had visited the minors on occasion but had not done so since January 2015. He wrote a letter in 2017 requesting visitation. Visitation did not resume because the children's therapist determined that it would not be in their best interests, given the gap in visitation and because the boys were "processing a lot of loss, grief and trauma." DCFS encouraged respondent to engage in services and write letters to the children to reconnect. Respondent wrote Jones a letter, but he did not write any letters to the children.
¶ 15 Respondent and Tamika had a history of domestic violence going back to 2012, and they had not successfully completed services to remedy that issue. Tamika had obtained an order of protection against respondent in 2015, but continued to have a relationship and had another child together in May 2016. Respondent was arrested in November 2016 for violating the order of protection.
¶ 16 At respondent's counsel's request, and over objection, the trial court admitted certificates that respondent had previously provided documenting the services he had engaged in while incarcerated at the beginning of the case.
¶ 17 On November 6, 2017, the trial court found that the State had proven counts 1, 3, and 4. It stated that respondent had not visited the children for a considerable period of time and had not completed any services, and that there was no progress towards placing the minors with respondent.
¶ 18 The best interest hearing took place on January 3, 2018. Respondent appeared telephonically. Jones provided the following testimony. Jeremiah and Jaylen had been in their
current foster home placement since November 7, 2015, after three prior placements where the caregivers had asked for them to be removed. Their half-sister also lived in their current home. The boys had a close relationship and strong bond with the foster parents, whom they looked to for support and care. They further had a good relationship with the foster parents' extended family, some of whom lived in the home. The boys participated in activities like the YMCA and summer camp. Jeremiah had a history of defiant behaviors, and his overall behavior had improved while living with his current foster parents. The foster parents were willing to adopt the children.
¶ 19 Jeremiah knew that he had a biological father, though he could not identify him by name. When asked if he wanted to see respondent, Jeremiah's response was " 'I don't know.' " The boys had not seen respondent since January 2015, and Jaylen was only 10 months' old when he came into care. Visits were not reinstituted because respondent was not engaged in services, and because the boys' therapist had recommended against it at the time.
¶ 20 Respondent provided the following testimony. Before the children were placed into care, he had a very close relationship with them. He would take them to the park and play with them. Respondent had seen the children two or three times since they were removed. Respondent asked for the children to be brought to see him while he was incarcerated, but DCFS never did so. Respondent had a job and an apartment, so he could take care of the children. He had obtained two certificates for domestic violence and one for anger management. Respondent denied ever engaging in domestic violence in front of the children. However, he agreed that he pled guilty to aggravated battery to Tamika in 2013, and that the arrest stemmed from one of Tamika's children calling 911.
¶ 21 The trial court stated that the children had been in care for a significant period of time. They were thriving in with their current foster parents. The foster parents took care of them and had a strong bond with them, and the children looked to the foster parents as their family. The children did not have a relationship with respondent, and the trial court did not believe that respondent had made much effort to have a relationship. The trial court found that it was in the children's best interests to terminate respondent's parental rights.
¶ 22 II. ANALYSIS
¶ 23 Appellate counsel argues that there is no arguable merit in challenging the trial court's ruling that respondent was unfit under counts 1, 3, and 4 of the State's petition. We agree. A court may find a parent unfit as long as one of the statutory grounds of unfitness is proven by clear and convincing evidence. In re P.M.C., 387 Ill. App. 3d 1145, 1149 (2009). 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. In re M.I., 2016 IL 120232, ¶ 20.
¶ 24 In this case, based on Jones's testimony and the service plans admitted into evidence, it was clear that respondent did not visit the children at all during the nine-month periods alleged by the State, which were from June 11, 2015, to March 11, 2016, and from February 1, 2016, to November 1, 2016. In fact, respondent had not visited the children since January 2015. It is true that he was incarcerated from January 2015 to October 2015, and again around November 2016, but he did not participate in visitation even during the almost year-long period that he was out of prison. Additionally, respondent never wrote any letters to the children, even though DCFS encouraged him to do so. He further remained in scant contact with DCFS during the alleged time periods and never engaged in any required services during these times. In sum, based on
respondent's lack of visitation with the children, lack of contact with DCFS, and lack of participation in services during the relevant nine-month periods, there would be no arguable merit in contesting the trial court's ruling of unfitness.
¶ 25 Appellate counsel also argues that there is no arguable merit in challenging the trial court's ruling that it was in the children's best interests to terminate respondent's parental rights. A trial court's ruling that a parent is unfit does not automatically mean that it is in the child's best interest to terminate parental rights. In re K.I., 2016 IL App (3d) 160010, ¶ 65. Still, during the best interest hearing, "the parent's interest in maintaining the parent-child relationship must yield to the child's interest to live in a stable, permanent, loving home." In re S.D., 2011 IL App (3d) 110184, ¶ 34. The State must show by a preponderance of the evidence that termination of parental rights is in the child's best interest. Id. ¶ 17. We will not disturb a trial court's determination that it is in the child's best interest to terminate parental rights unless the ruling is against the manifest weight of the evidence. Id.
¶ 26 Here, the evidence at the best interest hearing showed that the children had been in a stable placement for over two years and were bonded to their foster parents, whereas respondent had only seen the children two or three times since they were removed. At the time of the removal, Jaylen was still an infant. Jeremiah was older and knew that he had a biological father. Still, he did not know respondent's name and did not express an interest in seeing respondent. Accordingly, there would be no arguable merit in arguing that the trial court's best interests ruling was against the manifest weight of the evidence.
¶ 27 Last, appellate counsel asserts that there is no legitimate basis for claiming ineffective assistance of counsel. In assessing a parent's claim that counsel was ineffective in a proceeding to terminate parental rights, we apply the criteria in Strickland v. Washington, 466 U.S. 668
(1984). In re I.W., 2018 IL App (4th) 170656, ¶ 46. A party must show that (1) counsel's representation was deficient in that it fell below an objective standard of reasonableness, and (2) there is a reasonable probability that the proceeding would have resulted differently absent the deficient representation. Id.
¶ 28 Appellate counsel argues that trial counsel arguably erred in failing to object to extensive hearsay evidence, including Jones's testimony about domestic abuse and multi-level hearsay in the DCFS service plans. However, he maintains that not objecting did not fall below an objective standard of reasonableness, because the State offered admissible evidence within those plans, which could be entered into evidence as business records (see 705 ILCS 405/2-18(4)(a), (b) (West 2016); In re A.B., 308 Ill. App. 3d 227, 235-37 (1999)), and because the most significant evidence was within Jones's personal knowledge. Appellate counsel argues that for this same reason, respondent would not be able to show prejudice. Appellate counsel maintains that it also may have been error for trial counsel to elicit testimony that respondent had visited the children only two or three times during the pendency of the case, but that there was no resulting prejudice because the testimony was cumulative of the State's unrebutted evidence regarding lack of contact with DCFS and the children. We agree with appellate counsel that there is no arguable merit in asserting a claim of ineffective assistance of counsel, because it does not appear that such a claim could satisfy the Strickland test.
¶ 29 III. CONCLUSION
¶ 30 After carefully examining the record, the motion to withdraw, the accompanying memorandum of law, and relevant authority, we agree with appellate counsel that no meritorious issue exists that would warrant relief in this court. Accordingly, we grant appellate counsel's motion to withdraw, and we affirm the judgment of the Winnebago County circuit court.
¶ 31 Affirmed.