Opinion
4-23-0077
06-21-2023
In re L.H., a Minor v. Tonya O., 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 Winnebago County No. 19JA191 Honorable Francis M. Martinez, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held: The appellate court affirmed, holding respondent did not receive ineffective assistance of counsel during the fitness portion of the hearing on the State's motion to terminate parental rights.
¶ 2 In October 2022, the State filed a petition to terminate the parental rights of respondent, Tonya O., as to her minor child, L.H. (born August 2012). In January 2022, the trial court granted the State's petition and terminated respondent's parental rights. (L.H.'s father's parental rights were also terminated. However, he is not a party to this appeal.) Respondent appeals, arguing she received ineffective assistance of counsel during the unfitness proceedings. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In May 2019, the State filed a petition seeking the adjudication of the minor as neglected under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(a) (West 2018)). In particular, the State alleged the minor was not receiving a proper education in that he was commonly absent from or tardy to school. After the adjudication of neglect, L.H. remained in respondent's care.
¶ 5 In May 2020, Children's Home and Aid Society filed a concern report. The report explained respondent was not cooperating with substance abuse services and had been unsuccessfully discharged from care at Remedies. Respondent had multiple positive drug tests for cannabis and a positive drug test for cocaine. A safety plan was put in place and a relative took temporary guardianship of L.H. The relative complained respondent visited the house under the influence multiple times attempting to see L.H. A caseworker reported L.H. said he did not want to return to respondent, he was afraid of respondent, and respondent used to choke him.
¶ 6 In July 2020, the State filed a motion to modify guardianship and custody based on the concern report. At the hearing on the motion, respondent initially was present. The trial court took a brief recess after confirming the identities of those present in the courtroom. When court resumed, respondent was absent, and respondent's counsel informed the court, "My client may have left." The court found respondent "unfit, unwilling, and unable" to care for the minor and placed custody and guardianship with the Illinois Department of Children and Family Services. The minor was kept in the relative placement.
¶ 7 In October 2022, the State filed a motion to terminate respondent's parental rights. The State alleged respondent was unfit pursuant to the Adoption Act (750 ILCS 50/1 et seq. (West 2022)). The motion alleged four counts of unfitness: (1) failure to protect the minor from conditions within the environment injurious to his welfare (id. § 1(D)(g)); (2) respondent had a habitual drug addiction for at least one year prior to unfitness proceedings (id. § 1(D)(k)); (3) respondent failed to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent during a nine-month period following the adjudication of neglect, namely August 27, 2020, to May 27, 2021, and February 15, 2021, to November 15, 2021 (the relevant time periods) (id. § 1(D)(m)(i)); and (4) respondent failed to make reasonable progress towards the return of the child to the parent during a nine-month period following the adjudication of neglect, namely the relevant time periods (id. § 1(D)(m)(ii)).
¶ 8 At the December 2022 hearing, the State requested the trial court take judicial notice of (1) the neglect petition filed May 9, 2019, (2) the adjudicatory order filed October 22, 2019, (3) the dispositional order filed December 3, 2019, (4) the motion to modify guardianship and custody filed July 22, 2020, (5) a dispositional order filed August 27, 2020, (6) a corrected dispositional order filed October 16, 2020, (7) a corrected dispositional order filed October 19, 2020, (8) a permanency review order filed January 13, 2021, (9) a permanency review order filed June 2, 2021, (10) a permanency review order filed November 15, 2021, (11) a permanency review order filed April 21, 2022, (12) a permanency review order filed September 8, 2022, (13) a drug test result for respondent filed July 1, 2022, and (14) a petition to vacate conditional discharge from Winnebago County case No. 21-CM-452 filed November 3, 2022. The court took judicial notice of the documents without objection.
¶ 9 The State also moved to admit into evidence (1) a certified copy of a criminal complaint against respondent in Winnebago County case No. 21-CM-452, (2) a certified copy of respondent's guilty plea in the same case, and (3) a certified copy of the coinciding conditional discharge order. With no objection, the trial court admitted the exhibits.
¶ 10 Venessa Stronczek testified she is a foster care case manager at Children's Home and Aid Society, and she had been the case manager in L.H.'s case since August or September 2021. Stronczek explained respondent was to complete substance abuse services, mental health services, parenting courses, individual therapy, and domestic violence services. She also needed to cooperate with the agency and participate in visitations. Respondent's ability to stay in contact with the agency varied. Stronczek explained, "So in periods of sobriety, I have noticed that contact is a lot more frequent. And then when [respondent] is either not attending the drug screens that she has been referred to or leaves, you know, inpatient or something like that, then it's a bit more difficult." Respondent completed a mental health assessment and engaged in mental health services "[s]poradically," but she never successfully completed any mental health services. Despite domestic violence concerns, respondent never completed domestic violence services. Stronczek further testified respondent had various positive drug tests for cannabis and cocaine. Respondent failed to appear for many drug screens. Respondent had also been in three inpatient drug programs during the life of the case. Stronczek testified respondent never successfully completed her substance abuse services. Respondent was required to maintain a period of sobriety before being referred to parenting classes, and therefore was not referred for those services.
¶ 11 On cross-examination, respondent's counsel referenced a report filed November 8, 2022, which stated, "[respondent] has been cooperative with this worker since the worker received the case on October 8th, 2020." Stronczek was given a copy of the report to refresh her memory, and she noted the statement was from a 2021 report filed before she became the caseworker. Stronczek acknowledged that respondent successfully completed inpatient substance abuse treatment at Gateway, and that Gateway required patients be sober to be discharged. Stronczek also acknowledged she was "[v]aguely" aware that respondent had been in a car accident which left her hospitalized in October 2020, but it happened before she took over the case.
¶ 12 Respondent did not testify, and her counsel did not present any evidence. The trial court took the matter under advisement.
¶ 13 In January 2023, the trial court found the State proved by clear and convincing evidence respondent was unfit as to all four counts. The court proceeded to the best interest hearing and, after finding it was in L.H.'s best interest, terminated respondent's parental rights.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, respondent argues she received ineffective assistance of counsel during the unfitness portion of termination proceedings. Specifically, respondent argues counsel was ineffective by (1) failing to object to "wholesale judicial notice" of documents in the record, (2) failing to object to the admission of documents related to a criminal case, and (3) inadequately investigating mitigating evidence.
¶ 17 The Juvenile Court Act sets forth a two-stage process for the involuntary termination of parental rights. 705 ILCS 405/1-1 et seq. (West 2022). Initially, the State must establish, by clear and convincing evidence, that the parent is unfit under any single ground set forth in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)). See 705 ILCS 405/2-29(2), (4) (West 2022); In re J.L., 236 Ill.2d 329, 337 (2010). If the trial court finds the parent unfit, the State must then show by a preponderance of the evidence that termination of parental rights is in the child's best interest. See 705 ILCS 405/2-29(2) (West 2022); In re D. T., 212 Ill.2d 347, 367 (2004). In this appeal, respondent's ineffective assistance claims only apply to the first stage-the finding of unfitness.
¶ 18 In a termination of parental rights proceeding, parents are entitled to effective assistance of counsel. In re R.G., 165 Ill.App.3d 112, 127 (1988). The standards for determining ineffective assistance of counsel are set forth in Stricklandv. Washington, 466 U.S. 668 (1984). A respondent must show her counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the result would have been different had there not been ineffective assistance of counsel. Id. at 687-95. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." In re A.R., 295 Ill.App.3d 527, 531 (1998).
¶ 19 We first note, as the State points out, respondent alternates between alleging the trial court took wholesale notice of the record and alleging the court took notice of "some 14 documents" from the record. While respondent is correct we have condemned "wholesale judicial notice of everything that took place prior to the unfitness hearing" (In re J.G., 298 Ill.App.3d 617, 629 (1998)), in this case the State did not ask the court to do so. See id. at 619-20 (where the State asked the trial court to take judicial notice "of the court file in the case"); In re A.L., 409 Ill.App.3d. 492, 504 (2011) (where the State asked the court to take judicial notice" 'of the Court file in [this case] in regard[ ] to the Court orders and permanency review reports, and client service plans that have previously been on file' "). This court has laid out the proper procedure for taking judicial notice in termination hearings:
"If the State wishes the trial court to take judicial notice of portions of the court file in a particular unfitness proceeding, the State can make a proffer to the court of the material requested to be noticed. Defense counsel should then be allowed an opportunity to object to the State's request. Such a procedure would serve to focus the trial court's attention on only those matters that are admissible under the rules of evidence, as well as make it easier for a reviewing court to
determine what the trial court actually relied on in making its decision of unfitness." J.G., 298 Ill.App.3d at 629.
This is the exact procedure the State followed in this case. The State offered a list of specific documents for the court to take notice of, providing a written list to all parties. Respondent's counsel had the opportunity to object to any of the documents offered. The judicial notice was not the wholesale consideration of the record this court has condemned.
¶ 20 Turning to respondent's ineffectiveness arguments, we find respondent cannot demonstrate prejudice as to any of her ineffectiveness claims. The State need only prove a single ground of unfitness, and even excluding the evidence respondent claims counsel should have objected to-the 14 documents the trial court took judicial notice of and the criminal documents-the State proved by clear and convincing evidence respondent failed to make reasonable progress toward the return of the child to the parent during a nine-month period following the adjudication of neglect. We focus on the period from February 15, 2021, to November 15, 2021.
¶ 21 Reasonable progress is measured by an objective assessment of a parent's progress in a given nine-month period toward reunification with the minor, which includes compliance with service plans and court directives. In re C.N., 196 Ill.2d 181, 216-17 (2001). A parent will be found to have made reasonable progress only if their actions during that period indicate the court will be able to return the minor to the parent's care in the near future. In re L.L.S., 218 Ill.App.3d 444, 461 (1991).
¶ 22 Here, Stronczek testified respondent had failed to complete her required services, including mental health services, substance abuse treatment, and parenting classes. Stronczek acknowledged respondent had completed inpatient treatment for substance abuse, but she relapsed once released and continued to test positive for cannabis and cocaine. Respondent missed drug screens, which are considered presumptively positive. Stronczek stated the agency still had concerns about respondent's ability to safely parent because "[respondent] has not been able to maintain a level of sobriety. She has sporadic communication with the agency making it difficult to assess mental health at times. [Respondent] has not completed mental health, substance abuse[,] or domestic violence services successfully." In other words, L.H. was not able to be returned to respondent's care in the near future.
¶ 23 Respondent also argued counsel was ineffective for failing to further investigate mitigating evidence. However, none of the mitigating evidence respondent mentions would have led to a different conclusion. Respondent maintains she could not complete parenting classes because she was required to be sober for 60 days before starting class. However, rather than mitigating, this explanation simply provides more proof of respondent's failure to make progress with her substance abuse treatment. Respondent also points out there was a waitlist for mental health services in December 2020. However, during the relevant period, months later, Stronczek described respondent's participation in mental health services as sporadic even after completing a mental health assessment. Finally, respondent references her car accident in October 2020, which limited her transportation. Transportation issues alone do not explain why, months later, respondent did not make objective progress in any of her services.
¶ 24 Because the State provided sufficient evidence respondent failed to make reasonable progress during the specified nine-month period, even accounting for respondent's claims of ineffective assistance, respondent cannot demonstrate a reasonable probability the result would have been different. See A.R., 295 Ill.App.3d at 531. As respondent was not prejudiced, her ineffective assistance of counsel claims fail.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court's judgment.
¶ 27 Affirmed.