Opinion
No. 2-19-0824
02-11-2020
In re Z.J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Lisa A.J., 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.
No. 14-JA-361
Honorable Francis Martinez, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Birkett and Justice Burke concurred in the judgment.
ORDER
¶ 1 Held: (1) State laid a proper foundation for admission of service plans at hearing on termination of mother's parental rights; (2) State laid a proper foundation for testimony of caseworker; (3) section 2-18(4)(a) of the Juvenile Court Act of 1987 (705 ILCS 405/2-18(4)(a) (West 2018)) made hearsay nature of statements in service plans a matter of weight rather than admissibility; (4) trial court's determination that it was in the best interests of the minor to terminate mother's parental rights was not against the manifest weight of the evidence; (5) trial counsel's assistance was not ineffective; and (6) appellate court would not adopt per se rule requiring termination proceedings to be heard by a different judge than the one who presided over earlier proceedings.
¶ 2 I. INTRODUCTION
¶ 3 Respondent, Lisa A.J., appeals from an order of the circuit court of Winnebago County finding that she is an unfit parent and that it was in the best interest of her minor son, Z.J., that her
parental rights be terminated. On appeal, respondent raises four principal issues. First, she contends that the trial court's finding that she was unfit to parent the minor was against the manifest weight of the evidence because "virtually all of the evidence offered by the state consisted of multi-level hearsay" for which the State laid "no proper foundation." Second, she challenges the trial court's finding that it was in the minor's best interests to terminate her parental rights, arguing again that virtually all of the State's evidence consisted of multi-level hearsay and that the remaining, admissible evidence was insufficient to sustain the State's burden of proof. Third, respondent maintains that she was denied the effective assistance of counsel. Fourth, respondent argues that her due process rights were violated because the judge who presided over the proceedings leading to the petition to terminate her parental rights also presided over the unfitness and best-interests phases of the termination hearing. For the reasons set forth below, we affirm.
¶ 4 II. BACKGROUND
¶ 5 Respondent is the biological mother of Z.J., born on October 24, 2004. Z.J. has been diagnosed with autism spectrum disorder, disruptive mood dysregulation disorder, and attention deficit hyperactivity disorder (ADHD). Respondent identified Edward D. as the putative biological father, but Edward did not participate in the underlying proceeding and is not a party to this appeal. On October 21, 2014, the State filed a three-count petition alleging that Z.J. was a neglected and abused minor. The first two counts of the petition alleged that Z.J. was neglected based on an injurious environment, thereby placing him at risk of harm, in that respondent's paramour (1) struck Z.J. with an object (count I) and (2) grabbed Z.J. causing bruising (count II). 705 ILCS 405/2-3(1)(b) (West 2014). Count III of the petition alleged that Z.J. was an abused minor in that respondent's paramour created a substantial risk of physical injury to the minor, other than by accidental means, which would be likely to cause death, disfigurement, impairment of
emotional health, or loss or impairment of any bodily function, by grabbing the minor causing bruising. 705 ILCS 405/2-3(2)(ii) (West 2014).
¶ 6 A. Shelter Care and Neglect Adjudication
¶ 7 The matter proceeded to a shelter care hearing on October 21, 2014. Respondent attended the proceeding. The court appointed an assistant public defender to represent respondent and a guardian ad litem (GAL) to represent the interests of the minor. During the hearing, the State submitted a statement of facts to the court. The statement of facts provided in relevant part as follows. On October 17, 2014, the Illinois Child Abuse Hotline received a call that Z.J. was observed with "two blue bruises *** larger than a quarter" on the front of his chest. Z.J. told the caller that on October 15, 2014, his "stepfather," Daniel A., grabbed him "very hard in the chest" because he did not finish his homework. Z.J. further related that respondent was present when the incident occurred. The caller represented that Daniel is a registered sex offender. A child protection investigator subsequently met with Z.J., respondent, and Daniel. Z.J. told the investigator that the bruises developed when Daniel "grabbed his shirt and pulled it up so high that *** his belly was showing" after Z.J. refused to do his homework. Z.J. confirmed that respondent was present when Daniel grabbed him. Respondent denied that Daniel touched Z.J. and felt that the Illinois Department of Children and Family Services (DCFS) and others were harassing her. According to Daniel, when Z.J. refused to do his homework, he put the minor "in a corner." Daniel denied grabbing Z.J. by his shirt. Z.J. was taken into protective custody and placed in the home of a relative.
¶ 8 After providing respondent with several admonishments, the court recessed to allow the parties to discuss the matter. When the hearing resumed, the State announced that respondent had agreed to waive her right to a temporary custody hearing and had further agreed that: (1) there is
probable cause to believe that Z.J. was abused and neglected; (2) there is urgent and immediate necessity to remove the minor from his home; (3) DCFS used reasonable efforts in removing Z.J.; (4) temporary guardianship and custody would be placed with DCFS, which would have discretion to place Z.J. with a responsible relative or in traditional foster care; and (5) visitation between Z.J. and respondent would take place at the discretion of DCFS. The court accepted the parties' agreement and entered a temporary custody order, a protective order, and a supplemental protective order in accordance therewith. At a subsequent hearing, the trial court assigned a Court Appointed Special Advocate (CASA) to the case and scheduled an adjudicatory hearing. On January 14, 2015, respondent appeared before the court and factually stipulated to count II of the State's petition with the factual basis being the original statement of facts. The State dismissed counts I and III of the petition with the understanding that any services will be based on all counts.
¶ 9 On March 25, 2015, the parties appeared for a dispositional hearing. At the commencement of the hearing, the trial court noted that it had received two reports for the hearing, one from the caseworker assigned to the family and one from CASA. The court then recessed the proceeding to allow the parties to confer. Thereafter, the State announced that "the parents are going to be found unfit or—well, unable to care for the minor at this time." The parties further agreed that DCFS will retain guardianship and custody of the minor with discretion to place him with a responsible relative or in traditional foster care, visitation between respondent and the minor would be at the discretion of DCFS, and all prior orders would remain in place. The State explained that the factual basis for the agreement was "the court report that had been prepared for today." The court accepted the parties' agreement and entered an order in accordance therewith.
¶ 10 B. Permanency Review Hearings and Motion to Terminate Parental Rights
¶ 11 In the months and years that followed the dispositional hearing, the trial court held 10 permanency review hearings. During this time, Z.J. had various placements, including with relatives, in foster care, and at hospitals. Because of aggressive behavior, however, Z.J. was moved in March 2016 to the Cunningham Children's Home (Cunningham) in Urbana. The record indicates that while at Cunningham, Z.J. has been involved in many incidents of physical and verbal aggression, including biting himself and staff members, hitting and kicking staff members, and using racial slurs toward staff and other residents.
¶ 12 At each permanency review hearing, the court received a report from the caseworker then assigned to the family detailing the family's progress. In the reports, several tasks were identified for respondent in the family's service plan, including: (1) participation in parenting classes; (2) participation in individual counseling; (3) participation in couple's counseling; (4) participation in educational groups for children with autism or developmental disabilities; (5) compliance with agency recommendations; and (6) participation in family therapy. Respondent was also asked to draft a safety plan and maintain visitation with the minor.
¶ 13 The first permanency-review hearing was held on July 21, 2015. In her report to the court, Megan Grooms-Alberto, the caseworker at the time, noted that respondent had begun parenting classes, had been cooperative with the agency managing her case (Children's Home and Aid), and had expressed a willingness to participate in other tasks identified in the service plan, including individual counseling and educational groups for children with autism and developmental disabilities. Grooms-Alberto indicated that she would refer respondent (and Daniel) to couple's therapy once it was deemed clinically appropriate by the individual therapist. Although Grooms-Alberto opined that respondent had made reasonable efforts during the review period and recommended a permanency goal of return home within 12 months, she voiced concern that
respondent had not developed a safety plan for when the minor returns home. At the hearing, the parties and the GAL agreed to stand on the caseworker's report. The court agreed that respondent had made reasonable efforts and that a goal of return home within 12 months was appropriate.
¶ 14 Over the course of the next five permanency hearings, Grooms-Alberto was succeeded as the family's caseworker first by Ashley Trosper and then by Cammarie Mayzes. The reports prepared by the caseworkers during this time reflected that while respondent was generally cooperative with the agency and completed certain tasks identified in the service plans, she struggled with or did not participate in other tasks. For instance, while respondent completed parenting classes and an initial round of individual counseling, she failed to attend training for children with autism and struggled to develop a safety plan for the minor's return home. Respondent was found to have made reasonable efforts and/or reasonable progress during some of the review periods, but not all of them. The trial court maintained the permanency goal at return home throughout this period.
¶ 15 The seventh permanency review hearing was held on January 24, 2018. Two witnesses testified at the hearing, Mayzes and respondent. Mayzes testified that she had asked respondent to engage in autism-support services with Easter Seals and attend more visits with Z.J., but respondent refused both requests. Respondent told Mayzes that she was unable to engage in services with Easter Seals because of work obligations, but did not provide a reason for refusing to attend more frequent visits with Z.J. Mayzes also testified that there had been some complications related to the visits, culminating in a staffing with DCFS in July 2017. As a result of the staffing, DCFS recommended that Daniel not participate in the visits and that respondent not mention Daniel during her visits with the minor. Mayzes explained that the reason for this was that respondent "push[es] Daniel onto [Z.J.]," sometimes resulting in the minor's behaviors
becoming "escalated." Although this was explained to respondent, she continued to talk about Daniel during visits. Mayzes noted that because respondent is married to Daniel, a return home would require Z.J. to "get comfortable" with Daniel. Mayzes testified that the agency wanted respondent to complete counseling and a psychological assessment before determining that a goal of return home is not a viable option.
¶ 16 Respondent testified that she has attended services through Easter Seals but stopped going five or six months earlier because of work obligations. Respondent planned on reengaging in services when her work schedule allowed. Respondent attributed her failure to take advantage of additional visits with Z.J. to the cost of driving to Urbana, where Cunningham is located. She noted that while the agency provides her with "gas cards," they do not cover the entire cost of the trip. She testified that if she were to receive additional financial assistance, she would visit more frequently. Respondent acknowledged that if Z.J. were placed in her home, he would require constant supervision. She testified that she has a babysitter in place to watch Z.J. after school while she is at work. Respondent initially testified that the babysitter would be able to provide "one-on-one supervision" for the minor. However, she could not remember the babysitter's name and later acknowledged that the babysitter would be caring for up to 12 children at a time.
¶ 17 The trial court concluded that respondent had not made reasonable efforts or reasonable progress during the review period. In this regard, the court remarked that the needs of the minor are "great" and "extraordinary," but respondent did not seem to understand "exactly what we are dealing with here." The court elaborated:
"I mean the testimony is that the care plan is a baby-sitter whose name she doesn't know, who has got a license to take care of 12 kids. Well, it's obvious as the nose is on her face this child can't be in a facility where 1 person or 2 people are caring for 12 children, he
being 1. That's not going to happen. I don't believe that I have been shown that [respondent] has a grasp as long as this case has been going on with exactly how dire [Z.J.'s] circumstances are. Perhaps with more education we will figure that out, but [Z.J.], it would be easier to return an infant than [Z.J.], who presents greater challenges to the average family than an infant would *** present."
The court stated that it was not prepared to change the permanency goal prior to respondent undergoing a psychological assessment, but acknowledged that a goal of return home "is a very bleak prognosis." As a result, the court kept the permanency goal at return home within 12 months.
¶ 18 In February 2018, respondent underwent a psychological evaluation by Dr. Valerie Bouchard. Mayzes received the assessment in May 2018 and noted the following. Respondent presented with a WAIS-IV full scale IQ score of 76, representing intellectual functioning in the "borderline range." Respondent reported that she had not completed autism training with Easter Seals because "the program expected too much of parents who needed to work to support their families in order to have a home for a child to return." Respondent did not adequately understand autism and specifically the limitations of her son's functioning. Respondent did not have an adequate care plan for Z.J. if he were to be returned to her. Respondent minimized concerns that were present with regard to Daniel and interpersonal difficulties that had been reported between Z.J. and Daniel. Respondent's judgment and insight were poor. Respondent exhibited significant dependency. Respondent does not take personal responsibility for the circumstances that led to Z.J. coming into care, blaming others for the minor's removal. Dr. Bouchard diagnosed respondent with dependent personality disorder, adjustment disorder with depressed mood, and borderline intellectual functioning. Dr. Bouchard opined that respondent's prognosis for successful progress towards reunification was poor. Dr. Bouchard's recommendations for respondent included the
following: (1) completion of Easter Seals programs for training in autism; (2) a follow through with the visitation plan for Z.J., informing the minor that she is making the choice to be with him even when Daniel cannot attend; and (3) participation with Daniel in couple's therapy in an effort to work on understanding Z.J.'s issues due to his diagnosis of autism spectrum disorder.
¶ 19 The eighth permanency review hearing took place on June 25, 2018. In her report, Mayzes concluded that permanency could not be achieved because of the need to address respondent's mental health issues. Further, respondent and Daniel needed to complete individual counseling, couple's therapy, and a parenting class that focuses on parenting children with mental health and autism issues and engage in services offered by Easter Seals. Mayzes noted that respondent has failed to engage in needed services, she denied any physical abuse of Z.J. occurred, and she has not been consistent in visitation or phone contact with Z.J. Moreover, respondent continues her relationship with Daniel, who is in denial that he has done anything wrong and presents as though corporal punishment is appropriate for Z.J. Mayzes noted that respondent has made no progress toward the return home goal in over a year. As such, the caseworker recommended a goal of return home within 12 months pending a legal screen by DCFS.
¶ 20 At the hearing, the State stood on the caseworker's report. The State argued that respondent did not make reasonable efforts or reasonable progress. The State did not believe that a return home goal was in the minor's best interest or a viable option in the near future given the length of time the case has been open. As to the appropriate permanency goal, the State represented that this presented "a bit of a Catch 22." The State explained that Z.J. is placed at a residential facility and that it was "hesitant" to recommend termination of parental rights without Z.J. being in a foster home. However, to find Z.J. a foster home, the goal would need to be "at least substitute care or adoption." Accordingly, the State recommended a permanency goal of substitute care pending
court determination on termination of parental rights. The State indicated, however, that it did not intend to begin proceedings to terminate respondent's parental rights until it had "some idea of possibility of placements."
¶ 21 Respondent's counsel argued that because the psychological assessment was "so new" and respondent had been diagnosed with "significant mental health issues," additional time was appropriate for the agency to provide services to respondent. Respondent's counsel therefore asked the court to find that she had made reasonable efforts, defer a finding of reasonable progress, and keep the permanency goal at return home within 12 months.
¶ 22 The GAL also argued that respondent had not made reasonable efforts or reasonable progress during the review period. The GAL recommended the permanency goal be changed to substitute care pending determination on termination of parental rights. In support of this recommendation, the GAL noted that for the period from February 2018 until the date of the hearing, respondent had visited with the minor only twice, she had not completed training relative to coping with the behaviors of an autistic child, she continues to deny the reason the case came into care was because of physical abuse of Z.J. by Daniel, and she continues to be in a relationship with her husband, who has expressed that he sees nothing wrong with using corporal punishment for an autistic child.
¶ 23 The court concluded that respondent failed to make reasonable efforts or reasonable progress during the period of review and that it was appropriate to change the permanency goal to substitute care pending court determination of termination of parental rights. The court explained its decision in relevant part as follows:
"The case is *** three years old. *** And it appears to be the consensus except from the parents, of course, but—that the prognosis for reunification because of the
condition of the child and the ability of the parents, the prognosis is rather dim. It doesn't appear that—It doesn't appear that further services are going to be successful.
It's not—It's not fun to do this sort of thing. But I will—I will change the goal. I know there's not been a screening. [DCFS] has correctly said that the legal screening simply is the legal department's position or their own agency as to whether there is clear and convincing evidence of unfitness and best interests and a preponderance of the evidence. I think the court can also in a sense do that screening based on the history of the case. That's why the court has the ability to change the goal. And it does appear that that's the case.
Now whether we wish to proceed given the condition of the child, that's a different story.
***
I am not really basing my decision on the visitation issue. Visitation is certainly data. But—Well, I guess let me put it this way. The lack of visitation certainly is a negative. But visitation if it had been diligent is not necessarily curative of all of the other problems. It doesn't work both ways. Really I am really noting just the inability. . . I am not using the word failure but the inability to grasp the parenting skills that are necessary to reunify these parties."
¶ 24 The State filed a motion for termination of parental rights on December 7, 2018. The State alleged that respondent was an unfit parent in that she failed to: (1) maintain a reasonable degree of interest, concern, or responsibility as to the minor's welfare (750 ILCS 50/1(b) (West 2018)); (2) failed to make reasonable efforts to correct the conditions that caused the removal of the child during the periods from February 16, 2017, through November 16, 2017, and September 25, 2017,
through June 25, 2018 (750 ILCS 50/1(D)(m)(i) (West 2018)); and (3) failed to make reasonable progress toward the return of the child to her during the same two periods (750 ILCS 50/1(D)(m)(ii) (West 2018)).
¶ 25 Meanwhile, the ninth permanency review hearing was held on December 10, 2018. In her report, Mayzes noted that since the permanency goal was changed to substitute care pending court determination on termination of parental rights, neither respondent nor Daniel have been involved in any services, communicated with the agency, or attended agency meetings. Respondent did visit Z.J. for one hour each month during the review period, except for the month of November. Mayzes also noted that the agency made special arrangements so respondent could visit Z.J. on his birthday, but respondent arrived late and missed the minor's party. Mayzes opined that respondent's conduct demonstrated "the lack of investment in [Z.J.'s] life and putting his needs first." Mayzes reported that during phone conversations between Z.J. and respondent, the minor leads the conversation and respondent does not seem to be interested. Moreover, during the last visit supervised by Mayzes, respondent brought up Daniel, prompting Mayzes to redirect the conversation. Mayzes reported that since respondent has decreased her involvement with Z.J., he has been involved in fewer incidents at Cunningham. Mayzes recommended that the court proceed with terminating respondent's parental rights. At the hearing, the State informed the court that Z.J. was still residing at Cunningham and that it was "holding off" on moving forward with the termination as it "tr[ied] to figure out placement." Accordingly, the trial court stated that it would not move forward on the motion to terminate parental rights and kept the goal at substitute care pending court determination on termination of parental rights.
¶ 26 At a status hearing on February 19, 2019, Mayzes submitted a report on Z.J.'s placement. Mayzes noted that respondent's contact with the minor and the agency continued to be
inconsistent. Due to a lack of visits and irregular telephonic communication, Z.J.'s therapist recommended suspension of respondent's in-person visits because the inconsistency in visits has impacted the minor emotionally. In this regard, Mayzes noted that during the review period, Z.J.'s incidents of physically aggressive behavior had increased. Mayzes also indicated that a permanent home had not been found for Z.J. Mayzes contacted "fictive kin" in Colorado, but she did not return Mayzes's call. Mayzes was awaiting a response from a placement in Rockford. Z.J. had been placed on the Adoption Listing Service, but no matches had been found.
¶ 27 The tenth permanency review hearing was held on May 14, 2019. In her report to the court, Mayzes noted that during the review period, respondent and Daniel had not engaged in any services toward return home. Further, respondent had not returned Mayzes's calls, emails, or letters, she denied any physical abuse of Z.J. had occurred, she had been inconsistent in visiting and contacting Z.J. by phone, she ceased cooperating with the agency, and she continued her relationship with Daniel, who is in denial that he has done anything wrong and presents as though corporal punishment is appropriate for Z.J. Mayzes also expressed concern about respondent's ability to safely protect the minor. Mayzes recommended a permanency goal of substitute care pending court determination on termination of parental rights, noting that while Z.J. does not have any placement at this time, having a "concrete answer/goal of what is going to happen in his future ([respondent's] rights being terminated) could provide a form of closure." At the hearing, the trial court noted that it did not need to "grade" the parents as the permanency goal had previously been changed to substitute care pending court determination on termination of parental rights. The court scheduled the termination hearing for July 17, 2019.
¶ 28 C. Unfitness Hearing
¶ 29 The unfitness phase of the termination hearing was held on July 17, 2019. Although respondent did not attend the hearing, her attorney was present and participated in the proceeding. The sole witness called by the State was Mayzes. Mayzes testified that she was assigned as the family's caseworker in December 2016. Mayzes identified People's exhibits one through eight as copies of the service plans prepared for the family. Mayzes testified that the exhibits "fairly and accurately reflect the copies [of the service plans] maintained in the [agency] file," the service plans are created in the regular course of business, and she retains copies of the service plans in her file. The trial court admitted the service plans without objection.
¶ 30 Mayzes noted that Z.J. has been diagnosed with various disorders, including autism and ADHD. Mayzes explained that because of these diagnoses, Z.J. has "fixations" and can become physically and verbally aggressive. As a result, whoever cares for Z.J. must know how to "appropriately parent" him. Mayzes testified that various services were recommended for respondent, including parenting classes, individual counseling, couple's counseling, family therapy, and an educational group for children with autism. In addition, respondent was asked to cooperate with the agency, visit the minor, and obtain stable housing and income. Mayzes testified that prior to December 2016, respondent completed the parenting classes and individual counseling. Respondent and Daniel also underwent an assessment for couple's counseling. In April 2017, respondent, Z.J., and Daniel began family therapy focused around how to parent Z.J. Family therapy was discontinued, however, because progress was not being made when Daniel was present. The therapist told Mayzes that Daniel "wasn't fully engaged" and he would make inappropriate comments, such as "corporal punishment should be allowed."
¶ 31 In July 2017, a clinical staffing was held, following which several recommendations were made, including (1) the suspension of visitation between Z.J. and Daniel because Z.J.'s "behaviors
increased" following contact with Daniel; (2) participation by respondent and Daniel in couple's counseling with a focus on how to parent Z.J.; (3) a psychological evaluation of respondent; (4) participation by respondent in parenting education through Easter Seals focused on children with autism; and (5) the continuation of family therapy without Daniel. Mayzes testified that she also completed a referral for respondent to re-engage in individual counseling in January 2018 and respondent resumed individual counseling in March 2018. Respondent and Daniel began couple's counseling in March 2018, but after two or three sessions, the therapist recommended that respondent complete individual counseling prior to attending couple's counseling. Thereafter, respondent and Daniel never re-engaged in couple's counseling. Mayzes noted that although respondent completed the recommended psychological evaluation, she did not engage in parenting education for children with autism after the July 2017 staffing. Moreover, while family counseling did proceed with just respondent and Z.J., the therapist reported that respondent "just wasn't getting the concepts or getting exactly how to parent." As of April 2018, respondent had not completed individual therapy, parenting education for children with autism, or family therapy. After the goal changed from return home to substitute care pending court determination on termination of parental rights, respondent told Mayzes that she was not going to participate in any services.
¶ 32 On cross-examination by respondent's attorney, Mayzes acknowledged that respondent did not attend parenting classes for children with autism because the agency wanted her to complete individual counseling, couples counseling, family therapy, and the psychological evaluation as prerequisites to the parenting class. Mayzes further explained that although respondent finished one "phase" of individual counseling, a second "phase" was recommended because respondent was still experiencing "issues" with respect to herself, her relationship, and her parenting.
¶ 33 On cross-examination by the GAL, Mayzes testified that the case came into care because of physical abuse of Z.J. by Daniel. Respondent was present during the abuse. At the time, Daniel was respondent's boyfriend, but the couple married in February 2017. Mayzes noted that there were other concerns about Daniel being around Z.J. given his status as a registered sex offender. Respondent and Daniel told Mayzes that one reason they got married was so that Daniel could be around the minor unsupervised. Mayzes further testified that respondent and Daniel have been consistent in their belief that corporal punishment is not a problem, adding further that Daniel has repeatedly indicated to his therapist and the agency that corporal punishment "within limits" is fine. According to Mayzes, one of the reasons Daniel and respondent were repeatedly referred for similar services was their failure to accept and process that corporal punishment is not an appropriate form of discipline for a minor with Z.J.'s diagnoses. Mayzes testified that another reason Daniel and respondent were referred for similar services was that upon completing the first phase of individual counseling, they stated that they understood why Z.J. came into care. They later indicated that they did not understand why the minor came into care, insisting that the agency "was against them."
¶ 34 On redirect examination, Mayzes testified that with respect to the round of services recommended after the staffing, there was a progression of individual counseling, couple's counseling, family therapy, and parenting education. Although she wanted respondent to complete individual counseling, couple's counseling, and family therapy before attending the parenting class for children with autism, respondent was supposed to attend educational groups through Easter Seals throughout the course of the case. Mayzes testified that respondent did not consistently attend the second round of referrals, much less the educational groups through Easter Seals.
¶ 35 On re-cross examination, Mayzes acknowledged that, to the best of her knowledge, Daniel is fully compliant with the sex-offender registry. Mayzes testified that while she was not aware of respondent attending any educational groups at Easter Seals, respondent did have "contact" with a representative of Easter Seals. However, Mayzes was unaware of the capacity in which this contact occurred.
¶ 36 Following Mayzes's testimony, the State asked the court to take judicial notice of the neglect petition, the adjudication order, the dispositional order, and the orders following the permanency review hearings on January 24, 2018, and June 25, 2018. The court took judicial notice of this evidence without objection. The State then rested. Neither respondent's attorney nor the GAL called any witnesses or sought the admission of any evidence.
¶ 37 After arguments by the State, respondent's attorney, and the GAL, the trial court found that the State had met its burden of proving respondent unfit by clear and convincing evidence on all three counts of its motion. Initially, the court concluded that the State established by clear and convincing evidence that respondent failed to show a reasonable degree of responsibility as to the minor's welfare. In this regard, the court noted that when the case began, respondent was engaging in services. However, it became clear that Z.J.'s mental health condition required a higher level of understanding to create a safe environment for the minor. The court found that that is where respondent "fail[ed] miserably." The court determined that no reasonable person could find it appropriate to administer corporal punishment to a child with Z.J.'s diagnoses. Yet, the court noted, respondent consistently agreed with Daniel that corporal punishment would be perfectly acceptable. The court concluded that this demonstrated that respondent "did not assimilate *** any of the parenting skills necessary to take care of a child of this nature." Second, the court found that respondent was not prohibited from engaging in parenting classes for children with autism.
Rather, she failed to fulfill the prerequisites required to engage in such classes. As such, the court concluded that respondent "abandoned any desire to engage in and learn the skills of parenting a child with autism by not engaging in the round of services necessary." Third, while recognizing that a person has a fundamental right to marry, the court found it "curious" that the purpose of the marriage was to circumvent supervised visitation. The court also found the presence of Daniel problematic for two reasons. Initially, the court noted that Daniel is a registered sex offender. The court observed that while Daniel was compliant with his registration, it did not know whether he was compliant with any therapy or treatment that would permit the court to allow unsupervised visits with him. Additionally, the court noted that Daniel was the perpetrator of substantial physical abuse of Z.J.
¶ 38 The court also found that the State proved by clear and convincing evidence that respondent failed to make reasonable efforts or reasonable progress. In support, the court noted that respondent failed to engage in parenting education with Easter Seals. The court explained that while respondent may have had some "contact" with an Easter Seals representative, "contact isn't engagement." The court also noted that the reason it changed the permanency goal to substitute care pending court determination on termination of parental rights was because respondent "clearly was not meeting the goals that she needed to meet in order to go toward reunification." The court acknowledged that respondent did engage in the first round of services, but found that respondent failed to engage in the second round of services, which were intended to address the services necessary for a special-needs child such as Z.J.
¶ 39 D. Best Interest Hearing
¶ 40 The court held the best interest hearing on September 17, 2019. Again, respondent did not attend the hearing, but her attorney was present. The State's sole witness was Mayzes. Mayzes
reiterated that she has been the caseworker assigned to the family since December 2016. Mayzes testified that Z.J. is 14 years old and has mental health issues, including autism, "disruptive disorder," and ADHD. Mayzes testified since coming into care in 2014, Z.J. has been placed with "fictive kin," in traditional foster care, and at hospitals. However, due to his mental health and behavioral issues, he was eventually moved to Cunningham. Mayzes testified that Z.J.'s tentative discharge date from Cunningham is January 2020. Once discharged, Z.J. would reside with a traditional foster family located through the Adoption Listing Service.
¶ 41 Mayzes testified that the prospective foster mother has been fostering children for more than 25 years and has worked extensively with children that are on the autism spectrum. Mayzes testified that she has visited the prospective foster home and found it to be safe and appropriate. Mayzes further testified that a transition plan is in place pursuant to which Z.J. has contact with the prospective foster mother, including daily telephone calls and full-day in-person visits. Mayzes testified that the phone calls and in-person visits have gone "very well." Z.J. told Mayzes that he "loves" his foster mother and is excited to be placed with her. The foster mother indicated that she intends to integrate Z.J. into her family "right away." While not specifically using the word "adoption," Mayzes told Z.J. that the foster mother "can potentially be his forever home." Mayzes indicated that Z.J. expressed excitement about the possibility. Mayzes testified that she is in the process of getting Z.J. "linked" to service providers in the foster family's neighborhood. The foster mother indicated that she has identified activities through the park district that will help Z.J. with "the social aspect."
¶ 42 According to Mayzes, no one else has presented as willing and able to parent Z.J. once he is discharged from Cunningham. Mayzes noted that while Z.J. does have adult siblings, her attempts to contact them have been unsuccessful. Moreover, although Z.J. maintains contact with
respondent, the contact is supervised because respondent has been inappropriate over the phone. For instance, respondent blames the agencies for Z.J. being unable to return home and she has told Z.J. that she will never see or speak to him again. When asked how Z.J. feels about having contact with respondent, Mayzes responded, "He's okay, but it's one of those things that, if talking to [respondent] is not on his daily plan, he doesn't talk to her. So as far as [respondent], sometimes they can go maybe like a few weeks without talking." Mayzes opined that it is in the minor's best interests to terminate respondent's parental rights.
¶ 43 On cross-examination by respondent's attorney, Mayzes admitted that throughout the bulk of the case, respondent did attempt to visit the minor. She also acknowledged that she observed a bond between respondent and the minor during in-person visits. On cross-examination by the GAL, Mayzes testified that the last two in-person visits between respondent and Z.J. occurred in October 2018 and in May 2019. Mayzes testified that Z.J. does not talk about respondent unless he has a phone call with her on his schedule.
¶ 44 On redirect examination, Mayzes testified that respondent is in a relationship with Daniel. Mayzes testified that the reason Z.J. came into care is because Daniel "put two bruises about a quarter size on [Z.J.'s] chest because he refused to do his homework." Mayzes noted that Daniel has participated in some services. However, Z.J. does not feel safe around Daniel.
¶ 45 Following Mayzes's testimony, the State asked the court to take judicial notice of the evidence and testimony from the unfitness hearing as well as a best-interest report submitted to the court by Mayzes. The trial court took judicial notice without objection. The State then rested. Respondent's attorney presented no evidence. The GAL asked the court to take judicial notice of the CASA report filed that day.
¶ 46 Following argument by the parties, the court determined that the State established by a preponderance of the evidence that it is in Z.J.'s best interests that respondent's parental rights be terminated. In this regard, the court noted that Z.J. is quickly bonding to the prospective foster family and appears excited about his prospective adoptive home. The court further noted that Z.J. and the foster mother speak every day, which is "far more communication than goes on with [respondent] who continues to live and be married to [Daniel] who the minor does express fear [of]." On September 19, 2019, respondent filed a notice of appeal.
¶ 47 III. ANALYSIS
¶ 48 The Juvenile Court Act of 1987 (Act) sets forth a bifurcated procedure for the involuntary termination of parental rights. 705 ILCS 405/2-29(2) (West 2018). Under this procedure, the State must make a threshold showing of parental unfitness by clear and convincing evidence. 705 ILCS 405/2-29(2), (4) (West 2018); In re J.L., 236 Ill. 2d 329, 337 (2010); In re Adoption of Syck, 138 Ill. 2d 255, 277 (1990); In re Antwan L., 368 Ill. App. 3d 1119, 1123 (2006). If a court finds a parent unfit, the State must then show by a preponderance of the evidence that termination of parental rights would serve the minor's best interests. Syck, 138 Ill. 2d at 277; Antwan L., 368 Ill. App. 3d at 1123; In re Tiffany M., 353 Ill. App. 3d 883, 891 (2004). In this case, respondent argues that the trial court's finding that she was unfit to parent the minor was against the manifest weight of the evidence because "virtually all of the evidence offered by the state consisted of multi-level hearsay" for which the State laid "no proper foundation." Respondent further contends that the trial court erred in finding that it was in the minor's best interests that her parental rights be terminated, again citing the alleged multi-level hearsay, but also arguing that the remaining, admissible evidence was insufficient to sustain the State's burden of proof. Respondent also asserts that she was denied the effective assistance of counsel and that her due process rights were
violated because the trial judge who presided over the proceedings leading up to the petition for termination of parental rights also presided over the unfitness and best interest phases of the termination trial. We address each argument in turn.
¶ 49 A. UNFITNESS
¶ 50 First, respondent argues that the State did not meet its burden of proving her unfit on any count because "virtually all of the evidence offered by the state consisted of multi-level hearsay" for which the State laid "no proper foundation." Specifically, respondent asserts that the only evidence offered by the State on the issue of fitness consisted of multiple levels of hearsay present in the eight admitted DCFS service plans and the testimony of Mayzes. Respondent concedes that the service plans are admissible at fitness hearings as a type of business-records exception to the hearsay rule (see 705 ILCS 405/2-18(4)(a) (West 2018); In re Kenneth J., 352 Ill. App. 3d 967, 983 (2004)), but asserts that the State failed to establish a foundation for the exhibits and that Mayzes's testimony was based on a description of the contents of those reports. As such, respondent insists that the trial court's unfitness findings are against the manifest weight of the evidence and should be reversed.
¶ 51 We note first that the service plans were admitted without objection by respondent. Similarly, respondent did not object to any aspect of Mayzes's testimony at the unfitness phase of the termination proceeding. As such, we find that respondent has forfeited on appeal any argument regarding the admission of the service plans or Mayzes's testimony. See In re N.T., 2015 IL App (1st) 142391, ¶ 41 ("Generally, an issue that was not objected to during trial *** is forfeited on appeal."); In re Jaber W., 344 Ill. App. 3d 250, 256 (2003) (holding that the failure to object to the admissibility of evidence on hearsay grounds at trial results in waiver of argument on appeal); In re April C., 326 Ill. App. 3d 225, 242 (2001) (noting that where a party fails to make an appropriate
objection in the court below, he fails to preserve the issue for review). Respondent acknowledges that she did not object to the admission of the service plans or Mayzes's testimony, but requests that we consider this issue under the plain-error doctrine.
¶ 52 Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967), provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." The plain-error doctrine is a limited and narrow exception to the forfeiture rule. People v. Hillier, 237 Ill. 2d 539, 545 (2010). The doctrine allows a reviewing court to consider an unpreserved error where either a clear or obvious error occurs and the evidence is so closely balanced that such error threatens to tip the scales of justice against the accused regardless of the seriousness of the error, or a clear or obvious error occurs and the error is so serious that it affects the fairness of the trial and challenges the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill.2d 551, 565 (2007). Prior to determining whether plain error occurred, however, we must first determine whether any error occurred at all. People v. Sargent, 239 Ill. 2d 166, 189 (2010). This requires a substantive review of the issues raised on appeal. People v. Walker, 232 Ill. 2d 113, 125 (2009). If clear or obvious error did not occur, no plain-error analysis is necessary. People v. Wright, 2017 IL 119561, ¶ 87; Walker, 232 Ill. 2d at 124-25. In this case, we need not engage in a plain-error analysis as we find that no error occurred with respect to the admission of the service plans or Mayzes's testimony.
¶ 53 1. Foundation for Service Plans
¶ 54 Respondent initially contends that while service plans are generally admissible as business records pursuant to section 2-18(4)(a) of the Act (705 ILCS 405/2-18(4)(a) (West 2018)), the State failed to lay a proper foundation for the admission of the eight service plans at issue here.
¶ 55 Termination proceedings under the Act employ the general rules of civil practice and the provisions of the Code of Civil Procedure unless the Act specifically governs the procedure at issue. 705 ILCS 405/2-18(1) (West 2018); In re S.J., 407 Ill. App. 3d 63, 69 (2011) (finding it proper to apply rules of evidence under the Act to a hearing involving the termination of parental rights); In re A.B., 308 Ill. App. 3d 227, 234 (1999) (same). The Act specifically provides for the admission of business records into evidence if the statutory foundational requirements are satisfied. 705 ILCS 405/5-2-18(4)(a) (West 2018); A.B., 308 Ill. App. 3d at 234-35. Specifically, section 2-18(4)(a) of the Act provides:
"(4)(a) Any writing, record, photograph or x-ray of any hospital or public or private agency, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a minor in an abuse, neglect or dependency proceeding, shall be admissible in evidence as proof of that condition, act, transaction, occurrence or event, if the court finds that the document was made in the regular course of the business of the hospital or 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, or within a reasonable time thereafter. A certification by the head or responsible employee of the hospital or agency that the writing, record, photograph or x-ray is the full and complete record of the condition, act, transaction, occurrence or event and that it satisfies the condition of this paragraph shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employee. All other circumstances of the making of the memorandum, record, photograph or x-ray, including lack of personal
knowledge of the maker, may be proved to affect the weight to be accorded such evidence, but shall not affect its admissibility." 705 ILCS 405/2-18(4)(a) (West 2018).
"Business records are considered reliable, and thus admissible, because of the regular, prompt, and systematic manner in which they are kept and the fact that they are relied upon in the operation of the business." A.B., 308 Ill. App. 3d at 235.
¶ 56 Respondent argues that the eight service plans admitted in this case were not accompanied by a certification of either kind described in the statute. Our review of the record confirms this lack of certification and the State does not assert otherwise. Absent certification, the State could satisfy the statute's foundational requirements by establishing the writings were made (1) as a memorandum or record of the event, (2) in the regular course of business, and (3) at the time of the event or within a reasonable time thereafter. 705 ILCS 405/2-18(4)(a) (West 2018); In re J.Y., 2011 IL App (3d) 100727, ¶ 13; A.B., 308 Ill. App. 3d at 235. The author of the writing does not need to testify or be shown to be unavailable. J.Y., 2011 IL App (3d) 100727, ¶ 13; A.B., 308 Ill. App. 3d at 235. Instead, anyone familiar with the business and its procedures may testify about how the writing was prepared. J.C., 2012 IL App (4th) 110861, ¶ 26; J.Y., 2011 IL App (3d) 100727, ¶ 13; A.B., 308 Ill. App. 3d at 235. We review the admission of evidence pursuant to section 2-18(4)(a) for an abuse of discretion. See People v. Caffey, 205 Ill.2d 52, 89-90 (2001); J.Y., 2011 IL App (3d) 100727, ¶ 13; People v. Hall, 314 Ill. App. 3d 688, 697-99 (2000). An abuse of discretion occurs where the trial court's decision is arbitrary, fanciful, or unreasonable or where no reasonable person would agree with the position taken by the trial court. Control Solutions, LLC v. Elecsys, 2014 IL App (2d) 120251, ¶ 38.
¶ 57 Respondent does not dispute that the service plans constituted memoranda or records of the events described therein or that the State elicited testimony that the service plans were made
in the regular course of business of the agency that prepared them. According to respondent, however, the State did not ask, and Mayzes did not testify, whether the entries in the service plans were made "at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." See 705 ILCS 405/2-18(4)(a) (West 2018). Further, respondent insists that no dates are given from which it could be determined that the service plans were made at or within a reasonable time after each act or occurrence. Respondent contends that the State's omission did not constitute a minor defect given that each service plan covered a period of six months to one year and the eight service plans together covered a period of fifty-one months. Respondent argues that because the service plans do not meet the foundational requirements of section 2-18(4)(a) of the Act, they should not have been admitted at trial. We disagree.
¶ 58 As respondent notes, eight service plans were admitted into evidence. The service plans were dated March 12, 2015, October 1, 2015, April 6, 2016, April 1, 2017, September 29, 2017, March 23, 2018, October 10, 2018, and March 25, 2019. Thus, except for the service plan of April 1, 2017, a new service plan was prepared approximately every six months. Each service plan identified various tasks and task-related "action steps" for each participant to complete during the relevant evaluation period. Each plan also listed an establishment date and evaluation date for each task, a start date and evaluation date for each "action step," an evaluation narrative for each task and "action step," and a summary of the family's progress since the last review.
¶ 59 Thus, for instance, the first service plan identified the following five tasks for respondent: (1) comply with agency recommendations; (2) participate in couple's counseling; (3) participate in educational groups for children with autism or developmental delays; (4) participate in individual counseling; and (5) participate in parenting classes. The establishment date and evaluation date for the first task listed above (comply with agency recommendations) were,
respectively, October 17, 2014, and March 12, 2015. Similarly, each "action step" within the first task had a start date of October 17, 2014, and an evaluation date of March 12, 2015. The evaluation narrative for the first task provided that respondent "has been cooperative with the agency thus far" and "has expressed a willingness to engage in services." The evaluation narrative for the "action steps" within the first task noted that the agency had not had any reason to suspect substance abuse by respondent, respondent had been cooperative with signing all necessary releases of information, respondent had been cooperative with all home visits, respondent had been cooperative with all agency recommendations, respondent had maintained communication with the caseworker, and referrals for parenting classes and counseling had been completed.
¶ 60 The establishment date and evaluation date for the four remaining tasks in the first service plan were January 21, 2015, and March 12, 2015, respectively. Likewise, each "action step" within the four remaining tasks in the first service plan had a start date of January 21, 2015, and an evaluation date of March 12, 2015. The evaluation narrative for these tasks indicated that: (1) the caseworker would refer respondent for couple's therapy once deemed clinically appropriate by respondent's individual therapist; (2) respondent expressed a willingness to engage in educational classes for children with autism and developmental delays; (3) a referral for individual counseling was being completed and respondent expressed a willingness to engage in individual counseling; and (4) respondent had begun parenting classes and is participating appropriately. The summary of the family's progress expounded upon the details in the evaluation narrative, specifying for instance that respondent began parenting classes in February 2015 with an estimated completion date of April 2015. The service plan also detailed the visitations between respondent and the minor, the family's housing situation, and their financial situation.
¶ 61 The second service plan identified the same five tasks for respondent and added a sixth task, family counseling. The family counseling task had a proposed establishment date of October 16, 2015, and each "action step" related thereto had the same proposed start date. The establishment date of each of the five remaining tasks and the start date of each "action step" related to the remaining five tasks were the same as those in the first service plan. However, each task and associated "action step" had an evaluation date of October 1, 2015. The evaluation narratives for the various tasks noted that: (1) respondent had been cooperative with the agency during the review period; (2) respondent had completed parenting classes with no recommendations made; (3) respondent had begun individual counseling in June 2015, but reported only feelings of helplessness related to agency involvement; (4) respondent had not participated in any educational groups for children with autism and developmental delays; and (5) respondent began couple's counseling in September 2015, but the therapist recommended that she continue to work on individual counseling before continuing with couple's counseling. The summary of the family's progress since the last permanency review indicated that respondent completed parenting classes in April 2015 and began individual counseling in June 2015. The service plan also included an update on visitations, housing, and financial stability.
¶ 62 We need not document the details of the remaining six service plans. Suffice it to say, a review of each subsequent plan indicates that it evaluated respondent's progress (or lack thereof) on each identified task and task-related "action step" since the service plan preceding it. To be sure, the service plans do not document the exact date of every task or "action step" set out in the service plan. Nevertheless, each service plan clearly builds upon the previous plan by detailing the extent, if any, of respondent's participation and progress with the tasks and "action steps" identified therein over the approximate six-month period preceding the date of the plan. This
constitutes sufficient evidence from which it could be determined that the service plans were made at or within a reasonable time after each act or occurrence recorded in the service plans. See In re Nylani M., 2016 IL App (1st) 152262, ¶ 40 (finding that passage in letter specifying that the minor "has been showing a lot of aggressive behavior lately" (emphasis in original) suggests that the described events occurred within a recent time period); Kenneth J., 352 Ill. App. 3d 967, 983 (2004) (finding that the requirements for admission of "Parenting Assessment Report" under section 18(4)(a) of the Act were satisfied where evidence was presented at hearing that document was prepared in the regular course of the agency's business and the document "was clearly made contemporaneously with the events the Report recorded."); see also A.B., 308 Ill. App. 3d at 235-36 (holding that service plans were properly admitted under section 18(4)(a) of the Act where each witness testified that the plans were prepared in the regular course of business and were made contemporaneously with the events they purported to record). Thus, we reject respondent's claim that the State failed to lay a foundation for admission of the service plans at the termination hearing and hold that their admission did not constitute an abuse of discretion.
¶ 63 2. Foundation for Mayzes's Testimony
¶ 64 Respondent next contends that the State failed to lay a proper foundation for the testimony of caseworker Mayzes. In particular, respondent asserts that Mayzes testified primarily with respect to the services plans, including what services respondent did or did not complete, but "no foundation was laid for her having personal knowledge that occurred with respect to [respondent's] services." As such, respondent contends that Mayzes's testimony, with the exception of her own conversations with respondent, should have been excluded as hearsay. As noted above, we review the admission of evidence for an abuse of discretion. See Caffey, 205 Ill.2d at 89-90; Hall, 314 Ill. App. 3d at 697-99.
¶ 65 The only authority respondent cites in support of her position is A.B., 308 Ill. App. 3d 227. In that case, the court held that the lengthy testimony regarding the contents of service plans by the supervisor of the caseworker who prepared the documents constituted error because "[t]he witnesses [sic] had secondhand knowledge, at best, of the events that led to the conclusions contained in the service plans." A.B., 308 Ill. App. 3d at 237. In other words, the reviewing court determined that it was improper for the trial court to allow the supervisor's testimony about the service plans because she did not author the documents. A.B., 308 Ill. App. 3d at 237. That is not what happened in this case. Mayzes was assigned as the family's caseworker in December 2016 and prepared the last five service plans. It was upon Mayzes's direct knowledge that much of the information in those five service plans was based. As such, Mayzes could provide first-hand testimony of her interactions with respondent as well as respondent's progress or lack thereof with respect to the tasks she was assigned. Further, while the A.B. court held that it was error to allow the supervisor's testimony about the service plans, it determined that the error did not constitute reversible error because "client service plans alone, without the aid of the supporting testimony, are sufficient to establish at least one ground of parental unfitness by clear and convincing evidence." A.B., 308 Ill. App. 3d at 237. Therefore, even if the trial court erred in admitting portions of Mayzes's testimony because it was not based on her personal knowledge, the admission of this supporting testimony did not constitute error as it was "mere surplusage." See A.B., 308 Ill. App. 3d at 237. Considering the foregoing, we find the trial court did not abuse its discretion in allowing Mayzes to testify about the contents of the service plans.
¶ 66 3. Multi-level Hearsay
¶ 67 Next, respondent contends that the eight service plans submitted by the State contain "multi-level hearsay," i.e., hearsay within hearsay. As noted previously, respondent does not
dispute that the exhibits themselves are admissible pursuant to section 2-18(4)(a) of the Act (705 ILCS 405/2-18(4)(a) (West 2018)) if the statute's foundational requirements are satisfied. She contends, however, that "second, third, and fourth hand hearsay" is not transformed into admissible evidence merely because it appears in an otherwise admissible report. She argues that hearsay statements contained in the services plans require the application of another hearsay exception before they may be considered. To this end, respondent cites Illinois Rule of Evidence 805 (eff. Jan. 1, 2011), which provides that "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." She also directs us to People v. McCullough, 2015 IL App (2d) 121364, ¶ 113, asserting that the case stands for the proposition that "multilevel hearsay is not admissible unless each layer of hearsay is excused by its own exception." Respondent maintains that "section 405/2-18(4)(b) [sic], properly read, is consistent with this strong public policy in restricting the admission of hearsay" and requires the state "to show that each item of multilevel hearsay within an admitted report meets the same foundational requirements as a business record as the document itself." Respondent contends that the State failed to comply with this process and therefore any multilevel hearsay within the service plans was improperly admitted. We disagree.
¶ 68 As noted above, section 2-18(4)(a) of the Act provides in relevant part as follows:
"Any writing, record, photograph or x-ray of any hospital or public or private agency, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a minor in an abuse, neglect or dependency proceeding, shall be admissible in evidence as proof of that condition, act, transaction, occurrence or event, if the court finds that the document was made in the regular course of the business of the hospital or 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, or within a reasonable time thereafter. *** All other circumstances of the making of the memorandum, record, photograph or x-ray, including lack of personal knowledge of the maker, may be proved to affect the weight to be accorded such evidence, but shall not affect its admissibility." (Emphasis added.) 705 ILCS 405/2-18(4)(a) (West 2018).
In light of this statutory language, respondent's multi-level hearsay objection is not well founded. Quite simply, the lack of knowledge of the maker of the documents at issue is, in accordance with the statute, a matter of weight rather than admissibility. 705 ILCS 405/2-18(4)(a) (West 2018). Indeed, as noted above, the legislature deemed it proper to allow admission of DCFS records and the information contained therein, as long as the information was made of record in the regular course of the agency's business and at the time of the event or within a reasonable time thereafter. It is only logical that such records are admissible and able to be considered as a determination whether a parent has made reasonable progress or has maintained a reasonable degree of interests, concern, or responsibility as to the minor's welfare includes assessing his or her compliance with service plans. In re C.N., 196 Ill. 2d 181, 216-17 (2001) (reasonable progress); In re B'yata I., 2014 IL App (2d) 130558-B, ¶ 31 (reasonable degree of interest, concern, or responsibility). Thus, the trial court could properly consider the exhibits respondent here complains of and attribute to them whatever weight they were due, considering their hearsay nature.
¶ 69 Respondent insists that an opposite conclusion is dictated by two recent cases, In re Zariyah A., 2017 IL App (1st) 170971, and In re G.V., 2018 IL App (3d) 180272. In Zariyah, the respondent argued that the trial court erred "by admitting and relying on hearsay evidence concerning the results of her mental health *** assessments." The alleged hearsay consisted of testimony from the respondent's caseworker that the respondent suffered from bipolar disorder.
The GAL responded that the admission of the caseworker's testimony was, at most, harmless error because the respondent's mental-health status was mentioned in two reports prepared by the caseworker and the reports were properly admitted as business records under section 2-18(4)(a) of the Act. The reviewing court disagreed, stating, "even if we agree that the foundational requirements of *** section [2-18(4)(a)] were met, that argument could only address the first layer of hearsay—the document itself." In re Zariyah A., 2017 IL App (1st) 170971, ¶ 93. Respondent's reliance on Zariyah is misplaced, however, as that court did not reference, much less discuss, the language in section 2-18(4)(a) of the Act that the lack of knowledge of the maker is a matter of weight rather than admissibility. Respondent contends that the court in G.V. concluded that "double and triple hearsay in a DCFS report could not be deemed admissible simply by characterizing it as an indicated report." See G.V., 2018 IL App (3d) 180272, ¶ 32. Respondent's reliance on this authority is also misplaced because the G.V. court does not reference section 2-18(4)(a) of the Act at all.
¶ 70 Respondent also insists that the language in section 2-18(4)(a) regarding the weight to be accorded documentary evidence "does not mean that any manner of third and fourth level hearsay in the document should be considered as admissible once the document is determined to be a business record." Rather, he asserts, the language "simply means that the *** employee who observed the act, transaction, occurrence or event need not be the same as the employee who created the record." However, respondent does not cite any authority in support of this narrow interpretation of the statutory language. Indeed, respondent's interpretation of the statute ignores the plain language of the statute, which clearly specifies that once a foundation is properly laid, all other circumstances surrounding the making of the document affect the weight to be accorded the evidence, but do not affect its admissibility. See In re Jose A., 2018 IL App (2d) 180170, ¶ 18
(noting that the language of a statute should be given its plain and ordinary meaning). Thus, respondent's position is not well taken.
¶ 71 Respondent also suggests that because the section 2-18(4)(a) provides that "acts or occurrences appearing in the record 'shall be admissible in evidence as proof of that condition, act, transaction, occurrence or event' " (emphasis supplied by respondent), the state "has to show that each item of multilevel hearsay within an admitted report meets the same foundational requirements as a business record as the document itself." However, we find nothing in the passage cited by respondent that alters the language stating that the maker's lack of personal knowledge constitutes a matter of weight.
¶ 72 Respondent also cites caselaw reflecting that wholesale judicial notice of all documents or events that occurred prior to the unfitness hearing is "unnecessary and inappropriate." See In re J.G., 298 Ill. App. 3d 617, 629 (1998). However, the court here did not take judicial notice of the service plans. Rather, it admitted the reports into evidence without objection by respondent.
¶ 73 For the reasons set forth above, we reject respondent's argument that the multi-level hearsay within the eight service plans was inadmissible and hold that the trial court was entitled to consider the exhibits and attribute to them whatever weight they were due, taking into account their hearsay nature. Respondent does not challenge the unfitness findings other than on the grounds that virtually all of the State's evidence consisted of multi-level hearsay present in the service plans and Mayzes's testimony for which the State failed to lay a proper foundation. Having rejected the premises underlying respondent's argument, we cannot agree that the trial court's unfitness findings are against the manifest weight of the evidence. Hence, we affirm the trial court's findings that respondent was unfit to parent Z.J. on all three grounds alleged in the State's petition.
¶ 74 B. BEST INTERESTS
¶ 75 Next, respondent challenges the trial court's finding that it was in the best interests of Z.J. to terminate respondent's parental rights. As noted earlier, once the trial court finds a parent unfit, it must determine whether termination of parental rights is in the minor's best interests. In re B'yata I., 2014 IL App (2d) 130558-B, ¶ 41. As our supreme court has noted, at the best-interest phase, "the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." In re D.T., 212 Ill. 2d 347, 364 (2004). The State bears the burden of proving by a preponderance of the evidence that termination is in the best interest of a minor. D.T., 212 Ill. 2d 347, 366 (2004); In re Deandre D., 405 Ill. App. 3d 945, 953 (2010). Section 1-3(4.05) of the Act (705 ILCS 405/1-3(4.05) (West 2018)) sets forth various factors for the trial court to consider in assessing a minor's best interests. These considerations include: (1) the minor's physical safety and welfare; (2) the development of the minor's identity; (3) the minor's familial, cultural, and religious background; (4) the minor's sense of attachment, including love, security, familiarity, and continuity of relationships with parental figures; (5) the minor's wishes and goals; (6) community ties; (7) the minor's need for permanence; (8) the uniqueness of every family and every child; (9) the risks related to substitute care; and (10) preferences of the person available to care for the child. 705 ILCS 405/1-3(4.05) (West 2018). The trial court need not explicitly reference each best-interest factor in rendering its decision. In re Jaron Z., 348 Ill. App. 3d 239, 262-63 (2004). We review the trial court's best-interests finding under the manifest-weight-of-the-evidence standard. B'yata I., 2014 IL App (2d) 130558-B, ¶ 41.
¶ 76 Here, the record supports the trial court's finding that termination of respondent's parental rights was in Z.J.'s best interests. Z.J. is a 14-year-old minor with multiple mental-health issues. The record shows that Z.J. is bonding to the prospective foster mother. In this regard, the evidence
demonstrated that Z.J. is excited about his prospective adoptive home, speaks with the prospective foster mother on a daily basis, and has begun in-person visits with the prospective foster mother. Moreover, the prospective foster mother has been fostering children for more than 25 years, has worked extensively with children on the autism spectrum, intends to quickly integrate Z.J. into her family, and has identified activities for the minor. Mayzes testified that she has visited the prospective foster home and it offers a safe and appropriate living environment for Z.J. While there is undoubtedly a bond between respondent and the minor, the evidence presented at the best-interests hearing demonstrated that respondent does not maintain regular contact with Z.J. and that the contact she does maintain is supervised because respondent's conduct has been inappropriate. Moreover, Z.J. has expressed fear of Daniel, respondent's husband. Given this record, we cannot say that the trial court's finding that it was in the minor's best interests that respondent's parental rights be terminated was against the manifest weight of the evidence.
¶ 77 Respondent nevertheless complains of the hearsay nature of some of the evidence. Specifically, respondent contends that by taking judicial notice of the evidence presented at the unfitness phase of the hearing, the trial court relied on "the same inadmissible evidence offered on fitness." However, respondent has forfeited this argument by failing to object to this evidence at trial. See Jaber W., 344 Ill. App. 3d at 256; April C., 326 Ill. App. 3d at 242. Anticipating a finding of forfeiture, respondent requests that this issue be reviewed under the plain-error doctrine. However, we find no error, much less plain error. In this regard, we conclude that respondent's argument lacks merit for the reasons set forth in the preceding section. We also observe that the formal rules of evidence do not apply at the best-interests stage of proceedings to terminate parental rights. In re Jay H., 395 Ill. App. 3d 1063, 1070 (2009). Rather, at the best-interests stage, the trial court may rely on "all evidence helpful (in the trial court's judgment) in determining
the questions before the court" to the extent of its probative value. 705 ILCS 405/2-22(1) (West 2018); Jay H., 395 Ill. App. 3d at 1070. Hence, to the extent that the trial court considered the evidence and testimony presented at the unfitness hearing, it was proper to do so as such evidence was probative of the best-interests factors. Jay H., 395 Ill. App. 3d at 1070. We find no error.
¶ 78 C. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 79 Next, respondent argues that trial counsel was ineffective for failing to object to the admission of the eight service plans and the caseworker's testimony on the bases of lack of foundation and hearsay. Respondent also faults trial counsel for failing to object to "the trial court's basing its decision on fitness on the court's prior rulings at a permanency hearing regarding [respondent's] efforts and progress."
¶ 80 Although there is no constitutional right to counsel in proceedings pursuant to the Act, a parent has a statutory right to counsel in a proceeding to terminate his or her parental rights. 705 ILCS 405/1-5(1) (West 2018); In re Ca. B., 2019 IL App (1st) 181024, ¶ 41. To adjudicate a parent's claim that he or she received ineffective assistance of counsel in a proceeding to terminate his or her parental rights, we apply the dual-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Ca. B., 2019 IL App (1st) 181024, ¶ 42. Thus, to prevail on a claim of ineffective assistance of counsel, a parent must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for the error, the result of the proceeding would have been different. Ca. B., 2019 IL App (1st) 181024, ¶ 42 (citing Strickland, 466 U.S. at 687-88, 694). Strickland requires a showing of actual prejudice, not mere speculation as to prejudice. People v. Bew, 228 Ill. 2d 122, 135 (2008). Moreover, both prongs of the Strickland test must be satisfied. Ca. B., 2019 IL App (1st) 181024, ¶ 42. Hence, the failure to satisfy either one of the prongs precludes a finding of ineffective assistance of
counsel. Ca. B., 2019 IL App (1st) 181024, ¶ 42. We these principles in mind, we address respondent's claim.
¶ 81 We reject respondent's arguments concerning trial counsel's failure to object to the admission of the eight service plans and the caseworker's testimony on the bases of lack of foundation and hearsay. As previously discussed, although the failure to object did contribute to forfeiture of those arguments on appeal, the reports and testimony were either properly admitted under the Act or did not result in prejudice. Hence, the failure to object was not objectively unreasonable, as any objection would not have been successful. See People v. Wilson, 164 Ill. 2d 436, 454 (1994) (failing to interpose a futile objection is not ineffectiveness); People v. Holmes, 397 Ill. App. 3d 737, 745 (2010) (same).
¶ 82 Respondent also maintains that trial counsel was ineffective for failing to object to "the trial court's basing its decision on fitness on the court's prior rulings at a permanency hearing regarding [respondent's] efforts and progress." In finding respondent unfit to parent the minor, the court remarked in part as follows:
"And the—certainly the order of [the permanency review hearing on] December 11th of 2018 [sic], which I have taken judicial notice of, which found that mother had not made reasonable efforts or progress was a judicial finding to that effect. So she clearly was not meeting the goals that she needed to meet in order to go toward reunification. And that's why the Court changed the goal, because reunification appeared at that point to be a very slim possibility."
Respondent contends that a finding at a permanency review hearing is not relevant to a trial on unfitness because the state's burden of proof at such a hearing is clear and convincing evidence whereas there is no burden of proof at a permanency hearing. Thus, he suggests, trial counsel
should have objected to the court's ruling. Respondent, however, does not indicate when trial counsel could have raised an objection. For instance, respondent does not suggest that it would have been appropriate for trial counsel to interrupt the court mid-ruling to challenge the court's rationale. Indeed, it seems to us that it would have been more appropriate to challenge the trial court's rationale on direct appeal. In any event, we note that since the grounds for finding unfitness are independent, a reviewing court may affirm an assessment of parental unfitness if the evidence supports it on any one of the grounds alleged. B'yata I., 2014 IL App (2d) 130558-B, ¶ 30. Our reading of the record in this case indicates that the trial court's comments were made in reference to its findings that respondent failed to make reasonable efforts or reasonable progress, but not to the finding that respondent also failed to show a reasonable degree of responsibility as to the minor's welfare. Thus, even if trial counsel's failure to object to the trial court's remarks fell below an objective standard of reasonableness, respondent has failed to show a reasonable probability that the result of the proceeding would have been different. For all the foregoing reasons, we hold that respondent failed to establish trial counsel was ineffective.
¶ 83 D. JUDICIAL BIAS
¶ 84 Finally, respondent argues that she was denied due process because the judge who presided over the unfitness and best-interest phases of the termination hearing also presided over the proceedings leading up to the termination hearing. Respondent contends that by the time of the fitness hearing, the judge had presided over years of hearings and reviewed hundreds of pages of multi-level hearsay. Respondent suggests that judges often make rulings at permanency review hearings based entirely on inadmissible evidence. Respondent reasons that "[o]nce a judge has ordered a change from return home to termination of parental rights, it is difficult to see how that judge can then forget the often years of conferences and proceedings, and hundreds of pages of
reports, on which he [or she] based that goal change, despite his [or her] best attempts to do so." Respondent urges this court to adopt a rule that the judge presiding over termination proceedings, should not be the judge who has presided over the hearings leading up to the termination where that judge has ordered a change of the permanency goal to termination of parental rights.
¶ 85 Respondent's appellate counsel concedes that he has "found no case on point, the closest being" the concurrence of Justice Steigmann in In re A.T., 197 Ill. App. 3d 821 (1990). There, Justice Steigmann wrote:
"If neither DCFS nor the appropriate State's Attorney's office acts promptly to seek to terminate parental rights when action is called for, then, as a last resort, the trial court must alert these agencies to the need to do so. I seriously doubt that it would ever need to take the extraordinary (and probably unwise) step of directing the State's Attorney to file a petition to terminate parental rights, assuming that the court even had the authority to do so under section 2—13(1) of the *** Act *** (Ill. Rev. Stat. 1987, ch. 37, par. 802—13(1)). Of course, when a judge has indicated there is a need for a petition to terminate parental rights to be filed, that judge must thereafter recuse himself or herself from any proceedings on that petition once it is filed." (Emphasis in original.) A.T., 197 Ill. App. 3d at 835.
Respondent focuses on the last sentence, attempting to analogize it to a trial court changing the goal from return home to substitute care pending court determination on termination of parental rights. However, the situation referenced by Justice Steigmann in A.T. is not what happened here. Justice Steigmann was contemplating sua sponte action by a trial court. In this case, although a legal screen by DCFS had not been completed prior to the trial court's decision to change the permanency goal to substitute care pending court determination on termination of parental rights, the trial court did so in response to a request by the State (concurred to by the GAL) that it do so.
In the former circumstances, the trial judge is essentially acting as an advocate for the minor. In the latter, the judge retains his neutral role and passes upon a request by a party. As such, respondent's reliance on Justice Steigmann's special concurrence in A.T. is of limited relevance here.
¶ 86 Moreover, although our research has not identified any case directly on point, the authority that does exist does not favor respondent's position. For instance, a trial judge is presumed to consider only admissible evidence and disregard inadmissible evidence. People v. Naylor, 229 Ill. 2d 584, 603 (2008). This presumption is rebutted only "if it affirmatively appears from the record that improver evidence was considered by the court." People v. Dobbs, 353 Ill. App. 3d 817, 824 (2004). Further, Illinois Supreme Court Rule 903 (eff. March 8, 2016) provides that "[w]henever possible and appropriate, all child custody and allocation of parental responsibilities proceedings relating to an individual child shall be conducted by a single judge." Thus, our supreme court has expressed a preference for the same judge to hear all proceedings involving child custody and the division of parental responsibilities. Indeed, this is similar to the supreme court's proclamation in the criminal context that "the same judge who presided over the defendant's trial should hear his post-conviction petition, unless it is shown that the defendant would be substantially prejudiced." People v. Hall, 157 Ill. 2d 324, 331 (1993). The per se rule advocated by respondent would be contrary to the supreme court's admonition that "[t]o conclude that a judge is disqualified because of prejudice is not, of course, a judgment to be lightly made." People v. Vance, 76 Ill. 2d 171, 179 (1979). We decline to announce such a rule based only on a special concurrence that is only somewhat analogous.
¶ 87 IV. CONCLUSION
¶ 88 For the reasons set forth above, we affirm the judgment of the circuit court of Winnebago County finding that respondent is an unfit parent and that it was in the best interest of her minor son that her parental rights be terminated.
¶ 89 Affirmed.