Opinion
4-23-0639
11-22-2023
In re D.M., a Minor v. Leah 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 Livingston County No. 21JA40 Honorable Robert M. Travers, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
TURNER JUSTICE
¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed the trial court's judgment where no meritorious issues could be raised on appeal. The court's adjudication of neglect and its fitness and best interest findings were not against the manifest weight of the evidence.
¶ 2 In October 2022, the State filed a motion to terminate the parental rights of respondent, Leah M., to her minor child, D.M. (born in 2016). The child's father, Jesse C., is not a party to this appeal. In June 2023, the trial court granted the State's petition and terminated respondent's parental rights.
¶ 3 Respondent appealed. This court appointed counsel to represent respondent. Thereafter, counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), arguing respondent's appeal presents no potentially meritorious issues for review. We grant the motion and affirm the trial court's judgment.
¶ 4 I. BACKGROUND
¶ 5 On July 28, 2021, Lyndie Champion, a child protection specialist with the Illinois Department of Children and Family Services (DCFS), went to a medical center in Pontiac, Illinois, in response to a call that a sex offender, David, had access to D.M. At that time, respondent had a new baby, J.M., who was D.M.'s half-sibling. Staff at the medical center reported respondent made statements about the baby naming herself, including a middle name, based on a demon. Respondent told Champion she was diagnosed with attention-deficit disorder, bipolar disorder, depression, and impulse control disorder. Respondent stated she took Amitriptyline for severe migraines but did not like to take medications and could handle her "demons" on her own. Respondent had been living with D.M. at David's home, and David would not let DCFS employees inside. Respondent likened the home to a "hoarder's situation," stating there was trash and food everywhere because David did not like to clean. Respondent told Champion, because DCFS became involved, David did not want respondent at his home and she had nowhere to go and would be homeless. Respondent also reported when D.M. went to a father figure's home, he returned with bed bug bites on his legs and back. J.M. and D.M. were taken into protective custody. In June 2022, respondent surrendered her parental rights to J.M.
¶ 6 On July 29, 2021, the State filed a petition for adjudication of wardship, alleging D.M. was neglected under section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2020)), in that D.M.'s environment was injurious to his welfare. The State alleged respondent had mental-health issues preventing her from properly parenting, her housing lacked stability, and she allowed a subject with a history of sex offenses unsupervised access to D.M. The State further alleged D.M.'s living conditions were unsanitary, with a likelihood of harm to his health, physical well-being, or welfare.
¶ 7 On July 30, 2021, the trial court conducted a temporary custody hearing. Respondent did not appear. After hearing evidence, the court determined probable cause existed to believe D.M. was neglected and further found there was an immediate and urgent necessity for the safety and protection of D.M. The court also found it was in the best interest of D.M. to be in protective custody. The court entered a written temporary custody order placing guardianship with DCFS.
¶ 8 On January 4, 2022, the trial court held a dispositional hearing. Respondent admitted D.M. was neglected under two counts of the petition for adjudication of wardship. The court found respondent unfit because she had mental-health issues and lacked stable housing, preventing her from properly parenting. D.M. was made a ward of the court, with both guardianship and custody awarded to DCFS.
¶ 9 On October 26, 2022, the State filed a petition for termination of parental rights, alleging respondent was unfit (1) under section 1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2022)) because she failed to maintain a reasonable degree of interest, concern, or responsibility for D.M's welfare, (2) under sections 1(D)(m)(i) and (ii) of the Adoption Act (750 ILCS 50/1(D)(m)(i)-(ii) (West 2022)) for (a) failure to make reasonable efforts to correct the conditions that were the basis for the removal of D.M. during a nine-month period after the adjudication of neglect and (b) failure to make reasonable progress toward the return of D.M. to her care during a nine-month period after the adjudication of neglect, and (3) under section 1(D)(p) of the Adoption Act because she was unable to discharge parental responsibilities due to mental illness (750 ILCS 50/1(D)(p) (West 2022)). The State alleged a nine-month period of January 4, 2022, to October 4, 2022.
¶ 10 On May 19, 2023, the trial court held a hearing on the petition. Pepper Falatko, a foster care placement worker for DCFS, testified she had been D.M.'s caseworker since the case was opened. Under an integrative assessment and service plan, respondent was to complete mental-health services and a parenting class, maintain stable housing, cooperate with DCFS, and engage in visitation.
¶ 11 Falatko testified respondent never regularly engaged in services. Respondent saw her physician but refused to engage in mental-health counseling. Respondent was taking Amitriptyline but refused to take any other prescribed medications. Falatko also observed respondent engage in several outbursts, yell during meetings, and refuse to cooperate. During a mental-health evaluation, respondent made threats to blow up the building.
¶ 12 Falatko testified respondent did not attend parenting classes and told Falatko she did not need a parenting class because she had movies and games. Respondent also told Falatko she did not believe D.M. should be in school. Respondent brought unhealthy food for D.M. to visits and sometimes did not engage with D.M.
¶ 13 Respondent had canceled roughly 50% of her visits and had not visited D.M. since October 5, 2022. After an incident where respondent yelled at Falatko and a supervisor, respondent was asked to take medication for 30 days and then resume visitation. However, respondent was uncooperative, and she had not met with Falatko since November 4, 2022, or returned her phone calls. Before that time, respondent also would not allow Falatko to see the inside of her apartment. Respondent did nothing throughout the case to provide for D.M.'s basic needs.
¶ 14 Falatko opined respondent did not show any reasonable level of parenting ability or any ability to act appropriately within society. Respondent did not show a normal level of interest in D.M. or in his needs and wants.
¶ 15 Respondent testified she never received a call about the parenting class. She said she did not own a vehicle, so if a parenting class was outside of her town, she could not get there, and DCFS never offered her a ride to the class. Respondent testified she would have completed the parenting class if arrangements had been made. She also testified she was currently prescribed Amitriptyline and another type of medicine that she could not recall, which she had been taking for approximately six months. She believed the medications helped her with her relationships with other people and she had not had any outbursts while taking the medications.
¶ 16 Respondent testified she participated in counseling for about a month and the counselor suggested respondent's adoptive mother, who lived in Florida, be included in the counseling. Since respondent's adoptive mother could not be involved, respondent refused to participate further.
¶ 17 Respondent said she refused to communicate with DCFS because her counselor told her to avoid her triggers and DCFS was a trigger. She testified she was willing to complete everything that DCFS wanted her to do as long as she did not get triggered. Respondent admitted she got a new phone number in December 2022 but did not reach out to DCFS to give them the new number. She also continued to receive the service plans and letters from DCFS, but she did not reach out to them.
¶ 18 Respondent admitted her last visit with D.M. was on October 5, 2022. Respondent testified she played games with D.M. and read to him. She purchased D.M. a pair of sandals, and they normally went to restaurants, where she paid for his food.
¶ 19 The trial court found respondent failed to show a reasonable degree of interest, concern, or responsibility as to D.M.'s welfare and failed to make reasonable efforts and reasonable progress toward the return of D.M. within nine months. As a result, the court found her unfit.
¶ 20 On June 23, 2023, the trial court held the best interest portion of the hearing. Respondent reported she had car trouble and was not present. Falatko submitted a report specially addressing the statutory factors applicable to the best interest determination and recommending termination of respondent's parental rights. Falatko testified D.M. was placed in foster care with J.M. and DCFS wanted to keep the children together. The best interest report showed D.M. had resided with his foster family for almost two years. He was bonded to his foster family and felt comfortable and safe there. The foster parents provided for D.M.'s medical, educational, and emotional needs. D.M. had stated he wanted to be adopted by his foster parents, who were willing to provide permanency for both D.M. and J.M. Meanwhile, respondent had not seen D.M. in almost nine months and demonstrated no ability to provide permanency.
¶ 21 The trial court found it was in the best interest of D.M. to terminate parental rights. Accordingly, the court entered an order terminating parental rights and changing the permanency goal to adoption. Respondent appealed, and this court appointed counsel to represent respondent.
¶ 22 II. ANALYSIS
¶ 23 Appellate counsel moves to withdraw. In his motion, counsel states he read the record and found no issues of arguable merit. Counsel further states he advised respondent of his opinion and that she would have an opportunity to respond. Counsel supports his motion with a memorandum of law providing a statement of facts, a discussion of potential issues, and arguments why those issues lack arguable merit. This court advised respondent she had until October 10, 2023, to respond to the motion, and respondent did not do so.
¶ 24 Counsel submits it would be frivolous to argue the trial court erred in (1) taking D.M. into protective custody and adjudicating him neglected, (2) finding respondent unfit, and (3) finding it in D.M.'s best interest to terminate respondent's parental rights.
¶ 25 A. Neglect and Protective Custody Finding
¶ 26 Counsel first submits it would be frivolous to argue the trial court erred in finding D.M. neglected either at the temporary custody hearing or the adjudicatory hearing.
¶ 27 The Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2022)) sets forth a step-by-step process for deciding whether a child should be removed from his parents and made a ward of the court. In re Arthur H., 212 Ill.2d 441, 462, 819 N.E.2d 734, 746 (2004). After a petition for adjudication is filed, the trial court will hold a temporary custody hearing to determine whether there is probable cause to believe the minor has been abused or neglected and, if necessary, will assign temporary custody to someone other than the parents or current guardian. 705 ILCS 405/2-10(2) (West 2022). The court may award custody to DCFS at this time. 705 ILCS 405/2-10(2) (West 2022). The court must also find there is an "immediate and urgent necessity for the safety and protection of the minor" and that reasonable efforts have been made or that no efforts reasonably can be made to prevent or eliminate the necessity for removal of the minor from the home. 705 ILCS 405/2-10(2) (West 2022).
¶ 28 "When making its determination regarding neglect, the trial court has wide discretion." In re Ashley F., 265 Ill.App.3d 419, 425, 638 N.E.2d 368, 372 (1994). "The court's findings, which are based on its opportunity to observe the demeanor and conduct of the parties and witnesses, must be given great weight." Ashley F., 265 Ill.App.3d at 425, 638 N.E.2d at 372. "Furthermore, its determination will not be disturbed unless it is against the manifest weight of the evidence." Ashley F., 265 Ill.App.3d at 425, 638 N.E.2d at 372.
¶ 29 After a petition for wardship has been filed and the minor has been placed in temporary custody, the proceeding moves to the adjudicatory stage. In re A.P., 2012 IL 113875, ¶ 18, 981 N.E.2d 336. At the adjudicatory hearing, the trial court shall focus solely on the question of whether the minor is abused, neglected, or dependent. A.P., 2012 IL 113875, ¶ 19; 705 ILCS 405/2-18(1) (West 2022). As with proceedings at the temporary custody hearing, a trial court's finding of neglect will not be disturbed unless it is contrary to the manifest weight of the evidence. In re A. W., 231 Ill.2d 241, 254, 897 N.E.2d 733, 740 (2008).
¶ 30 First, we question whether we have jurisdiction to hear issues concerning the temporary custody and adjudicatory hearings when respondent did not file a timely appeal from the January 4, 2022, dispositional order. See 705 ILCS 405/1-5(3) (West 2022)); In re M.M., 2022 IL App (1st) 211505, ¶ 4, 208 N.E.3d 1118. In any event, as counsel notes, the trial court properly held a temporary custody hearing. Respondent was not present and did not object to the finding of neglect at that hearing. Further, the record easily shows probable cause for the court to believe D.M. had been abused or neglected. As to the adjudication of neglect, the court again held a hearing where respondent admitted to well-supported allegations of neglect. Accordingly, it would be frivolous for counsel to argue the court erred in finding D.M. neglected at either the temporary custody hearing or the adjudicatory hearing.
¶ 31 B. Unfitness
¶ 32 Counsel next submits no meritorious argument can be made the trial court erred in finding respondent unfit.
¶ 33 Under section 2-29(2) of the Juvenile Court Act (705 ILCS 405/2-29(2) (West 2022)), the involuntary termination of parental rights is a two-step process. First, the State must prove by clear and convincing evidence the parent is "unfit," as defined in the Adoption Act. In re Donald A.G., 221 Ill.2d 234, 244, 850 N.E.2d 172, 177 (2006). If the State proves unfitness, it then must prove by a preponderance of the evidence that termination of parental rights is in the best interest of the child. In re D.T., 212 Ill.2d 347, 363-66, 818 N.E.2d 1214, 1226-28 (2004).
¶ 34 Parental rights may not be terminated without the parent's consent unless the trial court first determines, by clear and convincing evidence, the parent is unfit as defined in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)). In re Gwynne P., 215 Ill.2d 340, 354, 830 N.E.2d 508, 516 (2005). "A parent's rights may be terminated if even a single alleged ground for unfitness is supported by clear and convincing evidence." Gwynne P., 215 Ill.2d at 349, 830 N.E.2d at 514.
¶ 35 Under section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2022)), a parent may be found unfit if he or she fails to "make reasonable progress toward the return of the child to the parent during any 9-month period following the adjudication of neglected *** minor." A "parent's failure to substantially fulfill his or her obligations under the service plan and correct the conditions that brought the child into care during any 9-month period following the adjudication" constitutes a failure to make reasonable progress for purposes of section 1(D)(m)(ii). 750 ILCS 50/1(D)(m)(ii) (West 2022).
¶ 36 Illinois courts have defined "reasonable progress" as "demonstrable movement toward the goal of reunification." (Internal quotation marks omitted.) In re Reiny S., 374 Ill.App.3d 1036, 1046, 871 N.E.2d 835, 844 (2007). This court has explained reasonable progress exists when a trial court "can conclude that *** the court, in the near future, will be able to order the child returned to parental custody." (Emphasis in original.) In re L.L.S., 218 Ill.App.3d 444, 461, 577 N.E.2d 1375, 1387 (1991). A trial court's finding of parental unfitness will not be reversed unless it is against the manifest weight of the evidence. In re N.G., 2018 IL 121939, ¶ 29, 115 N.E.3d 102.
¶ 37 Here, the State proved by clear and convincing evidence respondent failed to make reasonable progress toward the return of D.M. The record is clear respondent failed to engage in tasks assigned under the integrated assessment. Respondent had previously canceled 50% of her visitation sessions. At the time of the fitness hearing, she had not visited D.M. for seven months. Respondent failed to engage in mental-health services, did not complete a parenting class, refused to cooperate with DCFS, did not allow DCFS to inspect her housing, and generally did not appropriately interact with DCFS or D.M. While respondent provided excuses for some of her failures to complete services, she also admitted to many of her failures.
¶ 38 Based on this evidence, respondent did not "substantially fulfill *** her obligations under the service plan," and therefore, did not make reasonable progress toward the return of D.M. to her care. 750 ILCS 50/1(D)(m)(ii) (West 2022). Accordingly, we agree counsel would be unable to present a meritorious argument that the trial court's finding was against the manifest weight of the evidence. Thus, the court's determination of unfitness on that basis was not against the manifest weight of the evidence, and we need not discuss the alternate findings of unfitness. Gwynne P., 215 Ill.2d at 349, 830 N.E.2d at 514.
¶ 39 C. Best Interest Determination
¶ 40 Counsel next submits the trial court did not err in finding it was in D.M.'s best interest to terminate respondent's parental rights.
¶ 41 Once a parent has been found unfit under one or more grounds in the Adoption Act, the State must establish by a preponderance of the evidence it is in the minor's best interest to terminate parental rights. 705 ILCS 405/2-29(2) (West 2022); In re Tyianna J., 2017 IL App (1st) 162306, ¶ 97, 70 N.E.3d 282." '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, 215 N.E.3d 302 (quoting People v. Houar, 365 Ill.App.3d 682, 686, 850 N.E.2d 327, 331 (2006)). Once a parent is found unfit, the focus shifts to the child, and the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life. D.T., 212 Ill.2d at 364, 818 N.E.2d at 1227. Thus, following an unfitness finding, the trial court focuses on the needs of the child in determining whether parental rights should be terminated. In re J.V., 2018 IL App (1st) 171766, ¶ 249, 115 N.E.3d 1099." 'A child's best interest is superior to all other factors, including the interests of the biological parents.'" J.V., 2018 IL App (1st) 171766, ¶ 249 (quoting In re Curtis W., 2015 IL App (1st) 143860, ¶ 52, 34 N.E.3d 1185).
¶ 42 The Juvenile Court Act lists several factors the trial court should consider when making a best interest determination. Those factors, considered in the context of the child's age and developmental needs, include the following:
"(1) the child's physical safety and welfare; (2) the development of the child's identity; (3) the child's background and ties, including familial, cultural, and religious; (4) the child's sense of attachments, including love, security, familiarity, and continuity of affection, and the least-disruptive placement alternative; (5) the child's wishes; (6) the child's community ties; (7) the child's need for permanence, including the need for stability and continuity of
relationships with parental figures and siblings; (8) the uniqueness of every family and child; (9) the risks related to substitute care; and (10) the preferences of the persons available to care for the child." In re Jay. H., 395 Ill.App.3d 1063, 1071, 918 N.E.2d 284, 291 (2009) (citing 705 ILCS 405/1-3(4.05) (West 2008)).
Also relevant in a best interest determination is the nature and length of the minor's relationship with his or her present caretaker and the effect that a change in placement would have on the child's emotional and psychological well-being. In re William H., 407 Ill.App.3d 858, 871, 945 N.E.2d 81, 92 (2011). This court will not reverse a trial court's finding it was in a minor's best interest to terminate his or her parental rights unless it is against the manifest weight of the evidence. In re Anaya J.G., 403 Ill.App.3d 875, 883, 932 N.E.2d 1192, 1199 (2010).
¶ 43 Here, the record shows the trial court's determination was not against the manifest weight of the evidence. The court noted the requirements of the Juvenile Court Act, and its findings were supported by the evidence. In particular, Falatko submitted a report specially addressing the statutory factors. The uncontroverted evidence showed D.M.'s foster parents met his physical, mental health, medical, and educational needs. D.M. was able to be placed with J.M. and expressed a desire to be adopted. Meanwhile, respondent did not show an ability to provide a permanent and stable home in the near future. Under these circumstances, where the children are well cared for in their placement and respondent's inability to provide permanency in the foreseeable future was well established, the facts do not clearly demonstrate the court should have reached the opposite result in making its best interest determination. Accordingly, we agree with counsel it would be frivolous to argue the court's best interest determination was against the manifest weight of the evidence.
¶ 44 III. CONCLUSION
¶ 45 After examining the record, the motion to withdraw, and the memorandum of law, we agree with counsel this appeal presents no issue of arguable merit. Accordingly, for the reasons stated, we grant the motion to withdraw as appellate counsel and affirm the trial court's judgment.
¶ 46 Affirmed.