Opinion
3-13-0512
11-27-2013
In re A.B., a Minor, (The People of the State of Illinois Petitioner-Appellee, v. Matthew P., Respondent -Appellant.)
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
for the 14th Judicial Circuit,
Rock Island County, Illinois,
Circuit No. 11-JA-113
Appeal No. 3-13-0512
The Honorable Raymond J. Conklin,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Wright and Justice Carter concurred in the judgment.
ORDER
¶ 1 Held: The trial court's finding that father was unfit was not against the manifest weight of the evidence. The Adoption Act's definition of an unfit parent did not violate father's equal protection rights. The trial court's finding that it was in the child's best interest to terminate father's parental rights was not against the manifest weight of the evidence. ¶ 2 After law enforcement discovered child pornography in the possession of respondent Matthew P., the State filed a neglect petition regarding his son, A.B. The trial court ordered respondent to comply with services while he was in custody pending federal criminal proceedings. He did not perform the ordered services, was found to be an unfit parent, and his parental rights right were subsequently terminated. We affirm.
¶ 3 FACTS
¶ 4 Respondent Matthew P. is the biological father of the minor, A.B., who was born on April 3, 2006. A.B. and respondent resided with respondent's mother in Silvis, Illinois. On October 12, 2011, the State filed a petition alleging that A.B. was neglected due to an injurious environment (705 ILCS 405/2-3 (West 2010)). The petition alleged:
"[T]hat the said minor is under 18 years of age whose environment is injurious to the minor's welfare in that on or about October 7, 2011 a search warrant was executed on the minor's home. Officers recovered the father's computer which contained a number of child pornography images. That said minor's mother allegedly resides in the State of Georgia and is unavailable to care for the minor."Following an evidentiary hearing, the Illinois Department of Child and Family Services was appointed as the guardian of A.B., and A.B. was placed in foster care. On October 25, 2011, respondent stipulated to the allegation in the neglect petition. ¶ 5 Respondent was arrested on December 1, 2011. On December 21, 2011, a federal grand jury returned an indictment against respondent, charging him with the crimes of one count of possession of child pornography and one count of receipt of child pornography. After he was indicted, respondent remained in federal custody and was detained in the Henry County jail. ¶ 6 On December 30, 2011, the trial court in the wardship proceeding ruled that A.B. was neglected. It set the permanency goal as return home. The court further ordered that respondent comply with a client service plan prepared by DCFS. The court's supplemental order reflects that respondent was ordered to (1) attend and successfully complete parenting classes, (2) obtain a psychological assessment and follow all recommendations for treatment, and (3) obtain a sexual offender assessment and follow all recommendations for treatment. ¶ 7 On August 21, 2012, respondent pled guilty to both criminal counts in the child pornography proceeding in federal court. ¶ 8 At a permanency review hearing in the state wardship proceeding on December 11, 2012, the trial court changed the permanency goal from return home to substitute care pending a determination on terminating respondent's parental rights. The reason substitute care was selected as the goal was that "[f]ather is awaiting sentencing in federal court and is facing a lengthy sentence. Mother is in Georgia and has not seen the minor since Aug[ust] 2011." ¶ 9 On January 30, 2013, the State filed a supplemental petition to terminate respondent's parental rights. It alleged that respondent was unfit for failing to make reasonable efforts to correct the conditions that were the basis for the removal of the child, and that respondent failed to make reasonable progress toward the return of the child in the nine month period following A.B. being adjudicated neglected on December 30, 2011. The factual basis for unfitness alleged by the petition was that respondent: (1) was incarcerated and awaiting sentencing on the child pornography charges in federal court; (2) had no contact with A.B. since his arrest; (3) failed to sign the appropriate releases for DCFS to obtain the results of respondent's psychological evaluation; (4) failed to complete parenting classes; and (5) failed to obtain a sexual offender assessment. The State further alleged that it was in the best interest of A.B. to terminate respondent's parental rights. ¶ 10 The court held a parental fitness hearing on May 7, 2013. The State called Sherry Koerperich, a child welfare specialist with DCFS, to testify. Koerperich testified that respondent had been incarcerated since December 1, 2011, and had not had contact with A.B. since prior to that date. On cross-examination, she stated that DCFS and A.B.'s therapist had decided that it was not in A.B.'s best interest to have contact with respondent. Regarding respondent's compliance with the service plan, Koerperich testified that respondent had not completed parenting classes or completed a sex offender assessment. She also stated that respondent had completed a psychiatric evaluation, but would not sign a release to allow DCFS access to the evaluation. On cross-examination, she admitted that parenting classes were not available to respondent when he was in county jail. The State also admitted permanency review orders from June 19, 2012, and December 11, 2012. Both orders found that respondent had not made reasonable efforts or reasonable progress since A.B. was adjudicated neglected. ¶ 11 After the State rested, respondent testified by telephone from a federal penitentiary in Kentucky; he had been sentenced to 115 months in federal prison and had a projected release date of 2020. Respondent testified that after he was arrested on December 1, 2011, he was in custody at both the Mercer County jail and the Henry County jail until he was sentenced in March 2013. At these jails, parenting classes and sex offender evaluations were not available to him. Those services were now available to him in the federal prison, however. On cross-examination, respondent testified that he did not release his psychiatric assessment to DCFS because it contained information pertaining to his federal criminal case which was confidential. He also stated that he did not want to be found unfit, and that he wanted to remain part of A.B.'s life, although he admitted he could not really parent while he was incarcerated. ¶ 12 The trial judge ruled that the State had proven respondent was unfit by clear and convincing evidence for failing to make reasonable progress toward the return of the child in the nine month period following the adjudication of neglect. The court rejected respondent's contention that the lack of his access to services while in county jail was an excuse, stating:
"First, the one thing he could do—sign a release [for the psychiatric evaluation]—he chose not to do. His proffered reason doesn't hold water. In the federal case a fitness evaluation was ordered. The report was filed in that Court, copies to all parties. At this point, giving a copy to DCFS is really of little consequence. Secondly, in so far as his inability to complete the other tasks, his conduct in possessing child pornography is why he resides where he does and why he can't complete the services."The matter was then set over for a best interest hearing on June 21, 2013. ¶ 13 A.B. had been living with his foster parents, Roger and Tami Viernow, since October of 2011, and they were willing to adopt A.B. A.B.'s mother had previously signed an irrevocable consent to adoption authorizing the Viernows to adopt A.B. At the outset of the best interest hearing, respondent stated that he did not object to the Viernows adopting A.B. because he was not in a position to care for him. However, he did object to the termination of his parental rights. Respondent discussed his attachment to A.B.. He said that he wanted to remain in contact with A.B. after A.B. was adopted, and he did not want him to grow up without a father. The court notified respondent that the adoption could not proceed without the termination of his parental rights, and the matter proceeded to an evidentiary hearing. ¶ 14 Sherry Koerperich testified that A.B. was doing well in his placement with the Viernow's family, which included three children, and that A.B. had been accepted into the family. She opined that it was in A.B.'s best interest to terminate respondent's parental rights and for the placement goal to be changed to adoption with the Viernows as the adoptive parents. Koerperich also stated that A.B. knew his father was in prison for breaking the rules, but he had not told his therapist that he missed his father. Mrs. Viernow also testified. She stated that her family viewed A.B. as a permanent member of the family and that they wanted to adopt him. A.B. had been accepted by both immediate and extended family. The Viernows had previously adopted another foster child, and that previous experience would help them incorporate A.B. into their family. Mrs. Viernow further testified that that A.B. was very stable and understood where he was living, although he might not quite understand the impact of permanent placement because he was only seven. No further evidence was presented. ¶ 15 The court found it was in the best interest of A.B. to terminate respondent's parental rights, finding that because respondent would be imprisoned until 2020 and therefore unable to care for A.B., its conclusion was "inescapable." The court stated that although respondent expressed interest in remaining in contact with A.B. after A.B. was adopted, that was beyond the scope of the best interest hearing. Accordingly, the court ordered respondent's parental rights terminated and changed A.B.'s placement goal to adoption. ¶ 16 On July 12, 2013, respondent filed a timely notice of appeal.
¶ 17 ANALYSIS
¶ 18 Under the Juvenile Court Act of 1987, the State may terminate a parent's rights to his or her children if: (1) the trial court finds, by clear and convincing evidence, that a parent is unfit based the grounds set out in the Adoption Act (750 ILCS 50/1(D) (West 2010)); and (2) the trial court finds, by a preponderance of the evidence, that terminating the parent's rights is in the child's best interest. In re Donald A.G., 221 Ill. 2d 234, 244 (2006). On appeal, respondent challenges both the trial court's fitness determination and its best interest determination. We will address each in turn. ¶ 19 I. Parental Fitness ¶ 20 In this case, the trial court determined that respondent was unfit because he failed to make reasonable progress towards the return of A.B. in the nine months following the date of A.B. being adjudicated neglected on December 30, 2011. Respondent argues that this decision was against the manifest weight of the evidence. We disagree. ¶ 21 Section 50/1(D)(m)(ii) of the Adoption Act defines an unfit parent as a parent who fails "to make reasonable progress toward the return of the child to the parent within 9 months after an adjudication of neglected or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under Section 2-4 of that Act." 750 ILCS 50/1(D)(m)(ii) (West 2010). Whether a parent has made reasonable progress toward the return of the child is measured objectively in light of all relevant circumstances which would prevent a court from returning custody of the child to the parent. In re C.N., 196 Ill. 2d 181, 217 (2001). Reasonable progress requires demonstrable movement towards reunification, and reasonable progress exists when the court can conclude that it will be able to order the child returned to parental custody in the near future. In re Daphnie E., 368 Ill. App. 3d 1052, 1067 (2006). "The benchmark for measuring a parent's progress under section 1(D)(m) of the Adoption Act encompasses the parent's compliance with the service plans and the court's directives in light of the condition that gave rise to the removal of the child and other conditions which later become known and would prevent the court from returning custody of the child to the parent." Daphnie E., 368 Ill. App. 3d at 1067. ¶ 22 A trial court's determination of parental fitness will not be disturbed on appeal unless it is against the manifest weight of the evidence. In re J.Y., 2011 IL App (3d) 100727,¶ 21. A finding is against the manifest weight of the evidence only where the opposite conclusion is clearly evident or the determination is unreasonable, arbitrary or not based on evidence presented. J.Y., 2011 IL App (3d) 100727,¶ 21. ¶ 23 We conclude that the trial court's ruling that respondent failed to make reasonable progress towards the return of A.B. is not against the manifest weight of the evidence. Pursuant to the service plan established by DCFS, the court ordered respondent to complete parenting classes, complete a psychological assessment, and complete a sexual offender assessment. The testimony at the fitness hearing demonstrated that respondent failed to comply with these tasks in the nine month period from December 30, 2011, to September 30, 2012. Respondent points out that for the majority of that period, he was in county jail awaiting trial on federal criminal charges and had no access to parenting classes or sex offender assessments. But as our supreme court has ruled, time spent incarcerated is included in the nine-month period during which reasonable progress must be made. In re J.L., 236 Ill. 2d 329, 343 (2010). Therefore, his failure to make reasonable progress during his incarceration was properly considered by the trial court. While it is clear that some services were not available to respondent during the nine month period, we are reluctant to let respondent's criminal conduct and the resulting incarceration serve as an excuse for his failure to make reasonable progress. See In re K.S., 203 Ill. App. 3d 586, 604 (1990). We also note that while respondent complied with the service plan's directive that he undergo a psychological assessment, he refused to turn over the results of his psychiatric examination to DCFS. Although respondent argues that he did not release the results because he feared it would negatively impact his criminal case, it appears that the federal court already had access to the psychiatric evaluation. Also, after he pled guilty to the child pornography charges on August 21, 2012, respondent took no action to provide DCFS with the results. Accordingly, respondent's failure to perform his court-ordered services supports the finding that he failed to make reasonable progress. ¶ 24 As an additional note, respondent's noncompliance with his service plan was not the only factor the trial court could consider in making its determination of unfitness. Whether a parent has made reasonable progress is not solely determined by compliance with the service plan, and the court may consider other relevant circumstances which would prevent a return of custody to the parent. C.N., 196 Ill. 2d at 214-17. Here, respondent's incarceration in federal prison until 2020 is a relevant factor which would effectively prevent the court from returning custody of A.B. to respondent. Therefore, his incarceration also supports the court's finding of a failure to make reasonable progress. ¶ 25 We reject respondent's related argument that section 50/1(D)(m) of the Adoption Act is unconstitutional as applied based on equal protection. Respondent argues that the statute requires him, as an incarcerated parent, to make reasonable progress in the same manner as a non-incarcerated parent, but an incarcerated parent will have more difficulty complying with DCFS service plans and thus is more likely to fail to make reasonable progress. According to respondent, the statute should contain an exception for parents in prison, and by "failing to make this critical distinction among incarcerated and non-incarcerated parents," the statute violates equal protection. We do not agree, as respondent's equal protection rights are not implicated by the statute. "Equal protection guarantees that similarly situated individuals will be treated in a similar fashion, unless the government can demonstrate an appropriate reason to treat them differently." People v. Whitfield, 228 Ill. 2d 502, 512 (2007). Where the challenging party is not similarly situated to the group he compares himself to, however, he does not state an equal protection claim. Whitfield, 228 Ill. 2d at 512. Here, respondent, an incarcerated parent, is not similarly situated to a non-incarcerated parent, and therefore he has failed to meet the threshold requirement for an equal protection claim. ¶ 26 II. Best Interest ¶ 27 Respondent also challenge's the court's finding that it was in the best interest of A.B. to terminate respondent's parental rights. When reviewing the trial court's determination that it is in the best interest of the child to terminate parental rights, we will not overturn the trial court's determination unless it is against the manifest weight of the evidence. In re B.B., 386 Ill. App. 3d 686, 697 (2008). ¶ 28 Once a court has found that a parent is unfit, it may terminate the parent's parental rights if it concludes doing so is in the child's best interest. The parent still has an interest in this stage of the proceeding, but the court's focus is on the child, and if the interests of parent and child diverge, the parent's interest must yield to the child's best interest. In re Julian K., 2012 IL App (1st) 112841, ¶ 80. In making a best interest determination, a court should consider the factors listed in the Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2010)), although the trial court is not required to explicitly mention, word-for-word, the statutory factors. In re Janira T., 368 Ill. App. 3d 883, 894 (2006). ¶ 29 Respondent claims that the trial court's decision was against the manifest weight of the evidence because respondent had a strong attachment to A.B. and it would be contrary to A.B.'s best interest to sever this attachment. Although respondent's attachment to his child is one factor the court may consider, other factors demonstrated that it was in A.B.'s best interest that respondent's parental rights be terminated. By respondent's own admission, he was not in a position to care for or support A.B., and by virtue of his incarceration, he would not be able to care for A.B. until his release in or around the year 2020. Both the DCFS caseworker and the foster parent testified that A.B. was doing well in his foster placement and that he was accepted by the foster family. The foster parents were willing to adopt A.B. and give him permanency, attachment, and care for his basic needs. Given these facts, the court's decision regarding A.B.'s best interest was not against the manifest weight of the evidence.
¶ 30 CONCLUSION
¶ 31 For the reasons stated, we affirm the order of the circuit court of Rock Island county. ¶ 32 Affirmed.