Opinion
4-22-0803
04-26-2023
In re L.H., a Minor v. Tara H., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Fulton County No. 19JA33 Honorable William A. Rasmussen, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
KNECHT JUSTICE
¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed, concluding no issue of arguable merit could be raised on appeal.
¶ 2 Respondent mother, Tara H., appeals from the trial court's judgment terminating her parental rights to her daughter, L.H. (born February 4, 2016). On appeal, respondent's appellate counsel moves to withdraw on the ground no issue of arguable merit can be raised. For the reasons that follow, we grant appellate counsel's motion and affirm.
¶ 3 I. BACKGROUND
¶ 4 Respondent and Jeremiah P. are the minor's biological parents. The parental rights of the minor's father were also terminated during the proceedings below. He is not, however, a party to this appeal.
¶ 5 A. Petition to Terminate Parental Rights
¶ 6 In December 2021, the State filed a petition to terminate respondent's parental rights. The State alleged respondent was an unfit parent in that she failed to (1) make reasonable efforts to correct the conditions that were the basis for the removal of the minor during a ninemonth period following the minor's September 26, 2019, adjudication of neglect (750 ILCS 50/1(D)(m)(i) (West 2020)) and (2) make reasonable progress toward the return of the minor to her care within a nine-month period following the minor's adjudication (id. § 1(D)(m)(ii)). The State identified the relevant nine-month period as January 1, 2021, to October 1, 2021. The State further alleged it was in the minor's best interest to terminate respondent's parental rights and appoint the Department of Children and Family Services as guardian with the power to consent to adoption.
¶ 7 B. Fitness Hearing
¶ 8 In May 2022, the trial court held a fitness hearing. At the commencement of the hearing, respondent's counsel informed the court that respondent was willing to stipulate to her unfitness.
¶ 9 The trial court inquired of respondent. Respondent indicated she was 39 years old, was able to read and write the English language, had reviewed the evidence in this case with her counsel, and had the opportunity to consult with her counsel about the fitness hearing. Respondent also indicated she had not been threatened or promised anything for her stipulation, was stipulating of her own free will, and had no questions for the court. Respondent agreed the State would be able to prove her unfitness by clear and convincing evidence.
¶ 10 The trial court requested a brief factual basis from the State. The State asserted, had the matter proceeded to an evidentiary hearing, it would present testimony showing a service plan was in effect from January 1, 2021, to October 1, 2021. Pursuant to that plan, respondent "was to participate in drug and alcohol counseling and successfully complete that[,] and that *** never took place." Also pursuant to that plan, respondent was to complete "drug and alcohol testing[,] and that [respondent] failed to cooperate with completing those on numerous occasions."
¶ 11 Based on the above, the trial court found respondent's stipulation was knowingly and voluntarily made and supported by a sufficient factual basis. The court entered a written order finding respondent unfit for the reasons alleged in the State's petition.
¶ 12 C. Best-Interest Hearing
¶ 13 In August 2022, the trial court held a best-interest hearing. The court received a best-interest report and heard testimony from respondent and a caseworker who had been assigned to the case since June 2021. The following is gleaned from the evidence presented.
¶ 14 The minor, who was six years old at the time of the best-interest hearing, had been placed with her foster parents, her maternal grandparents, since June 2019. The minor was bonded with her foster parents. The foster mother was nurturing, and the foster father was playful. The foster home included a separate bedroom and play area for the minor. The foster parents provided for the minor's needs. The minor was able to visit with extended family, including her cousins, with whom she was bonded. The minor attended school and participated in extracurricular activities. The foster parents ensured the minor attended medical appointments, including counseling. The minor attended counseling to address symptoms related to post-traumatic stress disorder. The minor had expressed a fear of being taken away from her foster parents. The minor often spoke positively to the caseworker about her foster parents. The foster parents expressed a willingness to provide the minor with permanency through adoption. They also expressed a desire to continue the relationship between respondent and the minor, believing it would be in the minor's best interest to do so.
¶ 15 The minor and respondent were bonded with each other, and respondent expressed a desire to be in the minor's life. When respondent attended visitations with the minor, the visits went well. However, respondent often arrived late to the visitations, causing the minor anxiety as to whether respondent would attend. Respondent had not completed recommended mental-health and substance-abuse services. According to the caseworker, respondent was discharged from counseling for lack of attendance, had not completed a recommended substance abuse assessment, and had completed only 1 of 72 random drug screens since the caseworker had been assigned to the case, that drug screen which was positive for "Amphetamines/ Methamphetamines." Respondent disagreed with the caseworker's assessment of her progress on the recommended services as well as the assertion that she had a positive drug screen. Respondent believed the foster parents, respondent's parents, had a biased opinion of her and did not communicate honestly with the caseworker. The caseworker believed the foster parents communicated honestly with her and indicated she had no basis to believe otherwise.
¶ 16 The caseworker believed it would be in the minor's best interest to terminate respondent's parental rights. Respondent disagreed with the caseworker's assessment.
¶ 17 After considering the evidence and arguments presented, as well as the statutory best-interest factors found in section 1-3(4.05) of the Juvenile Court Act of 1987 (705 ILCS 405/1-3(4.05) (West 2020)), the trial court found it would be in the minor's best interest to terminate respondent's parental rights.
¶ 18 On August 31, 2022, the trial court entered its written order terminating respondent's parental rights.
¶ 19 D. Notice of Appeal and Appointment of Appellate Counsel
¶ 20 In September 2022, respondent filed a timely notice of appeal, and the trial court appointed appellate counsel to represent respondent.
¶ 21 E. First Motion to Withdraw as Appellate Counsel
¶ 22 In October 2022, respondent's appellate counsel moved to withdraw on the ground no issue of arguable merit could be raised on appeal. Counsel's motion was accompanied by a brief. The brief identified a potential issue for review related only to the best-interest finding.
¶ 23 F. Denial of the Motion to Withdraw Without Prejudice
¶ 24 In December 2022, this court issued a summary order denying appellate counsel's motion to withdraw without prejudice. The denial was based upon appellate counsel's failure to identify any potential issue for review related to the unfitness finding. In re L.H., No. 4-22-0803 (2022) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 25 G. Second Motion to Withdraw as Appellate Counsel
¶ 26 In February 2023, respondent's appellate counsel moved again to withdraw on the ground no issue of arguable merit could be raised on appeal. Counsel later, at this court's direction, submitted a supplemental brief in support of her motion. The brief identified potential issues for review related to the fitness and best-interest findings.
¶ 27 Appellate counsel's second motion to withdraw is now before this court.
¶ 28 II. ANALYSIS
¶ 29 In the second motion to withdraw, appellate counsel claims no issue of arguable merit can be raised on appeal. We agree.
¶ 30 A. Timeliness of This Disposition
¶ 31 As an initial matter, we must address the timeliness of this disposition. This case has been designated as accelerated pursuant to Illinois Supreme Court Rule 311 (eff July 1, 2018). Rule 311(a)(5) states, in part, "[e]xcept for good cause shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal." Ill. S.Ct. R. 311(a)(5) (eff. July 1, 2018). In this case, the motion practice on appeal resulted in the matter not being submitted for disposition until after the 150-day deadline had passed. Under these circumstances, we find the existence of good cause for the late disposition.
¶ 32 B. Unfitness Finding
¶ 33 Appellate counsel asserts she considered contesting the trial court's unfitness finding but concluded any argument in support thereof would be entirely frivolous.
¶ 34 In a proceeding to terminate parental rights, a parent may stipulate, or admit, to his or her unfitness, so long as it is knowingly and voluntarily made and supported by a sufficient factual basis. In reM.H., 196 Ill.2d 356, 366, 751 N.E.2d 1134, 1142 (2001). Section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2020)) provides, in part, a parent will be considered an "unfit person" if he or she fails "to make reasonable progress toward the return of the child to the parent during any [nine]-month period following the adjudication of neglected." "Reasonable progress" has been defined as "demonstrable movement toward the goal of reunification." (Internal quotation marks omitted.) In re C.N., 196 Ill.2d 181, 211, 752 N.E.2d 1030, 1047 (2001). The benchmark for measuring a parent's progress toward reunification "encompasses the parent's compliance with the service plans and the court's directives, in light of the condition which gave rise to the removal of the child, and in light of other conditions which later become known and which would prevent the court from returning custody of the child to the parent." Id. at 216-17.
¶ 35 In this case, respondent expressed a willingness to stipulate to her unfitness, which was based, in part, on the allegation that she failed to make reasonable progress toward the return of the minor to her care within a nine-month period following the minor's adjudication of neglected, namely January 1, 2021, to October 1, 2021. The State provided a factual basis detailing respondent's failure to comply with the recommended substance-abuse services during the relevant period. The trial court conducted an inquiry of respondent to ensure her stipulation was being knowingly and voluntarily made. On this record, we find the court could reasonably accept the stipulation and enter a finding of unfitness. We agree any argument contesting the court's unfitness finding would be entirely frivolous.
¶ 36 C. Best-Interest Finding
¶ 37 Appellate counsel asserts she considered contesting the trial court's best-interest finding but concluded any argument in support thereof would be entirely frivolous.
¶ 38 In a proceeding to terminate parental rights, the State must prove termination is in the child's best interest by a preponderance of the evidence. In re D.T., 212 Ill.2d 347, 367, 818 N.E.2d 1214, 1228 (2004). When considering whether termination of parental rights would be in a child's best interest, the trial court must consider several statutory factors within the context of the child's age and developmental needs. See 705 ILCS 405/1-3(4.05) (West 2020). This court will not reverse a best-interest finding unless it is against the manifest weight of the evidence. In re Anaya J.G., 403 Ill.App.3d 875, 883, 932 N.E.2d 1192, 1199 (2010). A finding is against the manifest weight of the evidence only where the opposite conclusion is clearly apparent. Id.
¶ 39 In this case, the evidence showed the minor had resided with her foster parents, her maternal grandparents, for almost half of her life and her needs were being met by them. Conversely, respondent had not completed the recommended services and, therefore, could not safely care for the minor. On this record, we find the trial court could reasonably conclude it was in the minor's best interest to terminate respondent's parental rights. We agree any argument contesting the court's best-interest finding would be entirely frivolous.
¶ 40 III. CONCLUSION
¶ 41 Because the record reveals no issue of arguable merit can be raised on appeal, we grant appellate counsel's motion to withdraw and affirm.
¶ 42 Affirmed.