Opinion
NO. 4-17-0272 NO. 4-17-0273 cons.
08-24-2017
In re: S.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Wesley L. Whitfield, Respondent-Appellant). In re: N.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Wesley L. Whitfield, 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 Circuit Court of Macon County
No. 14JA150
No. 14JA149
Honorable Thomas E. Little, Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court.
Justices Harris and Steigmann concurred in the judgment.
ORDER
¶ 1 Held: The trial court's findings that (1) respondent was an unfit person and (2) it would be in the children's best interest to terminate his parental rights are not against the manifest weight of the evidence.
¶ 2 In Macon County case No. 14-JA-149, respondent, Wesley L. Whitfield, appeals the termination of his parental rights to his son, N.W., born October 4, 2011. In Macon County case No. 14-JA-150, he appeals the termination of his parental rights to his daughter, S.W., born October 30, 2010. (The mother of the children is deceased.) We have consolidated the two appeals.
¶ 3 Respondent argues that by finding (1) he was an unfit person and (2) it would be in the children's best interest to terminate his parental rights, the trial court made findings that were against the manifest weight of the evidence. We disagree. The record contains evidence that reasonably supports those findings. Therefore, we affirm the trial court's judgments in Macon County case Nos. 14-JA-149 and 14-JA-150.
¶ 4 I. BACKGROUND
¶ 5 A. The Petitions for the Adjudication of Neglect and Abuse
¶ 6 On September 4, 2014, in each of the two cases, the State filed a petition for the adjudication of neglect and abuse. Count I of each petition alleged the child was neglected within the meaning of section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2014)), and counts II and III alleged the child was abused within the meaning of sections 2-3(2)(i) and (2)(ii) of the Act (705 ILCS 405/2-3(2)(i), (2)(ii) (West 2014)).
¶ 7 The factual allegations in all three counts were the same:
"[T]he two siblings, *** [two] and [three] years of age, were allowed to visit their maternal grandmother[,] who had come from Wisconsin[,] on September 3, 2014. During the course of the visit, the grandmother noted the children were nervous, startled easily, and not talkative. After some time, the children began talking about [N.W.'s] being whipped by [respondent]. The grandmother, and subsequently physicians at Decatur Memorial Hospital, as well as Decatur Police and the [child-protective services] officer, noted [N.W.] had severe loop-shaped welts and bruising on his left arm, lower back, upper buttocks, and both legs. Several had broken the skin and had scabbed over, and some ha[d] scarred over. The child [S.W.] had a small circular scab on her upper right forearm, as well as
another similar but healed scar just above her right elbow. The injuries resembled cigarette burn marks. [N.W.] indicated his injuries were inflicted by [respondent]: 'daddy did it.' [S.W.] indicated her most recent injury had been inflicted by [respondent]: 'daddy hit me with a cigarette.' The hospital physician stated the injuries were indicative of severe child abuse. [Respondent] has prior convictions for [d]omestic [b]attery and [d]riving [u]nder [t]he [i]nfluence, and was placed on 24 months['] [p]robation on June 30, 2014[,] for [d]omestic [b]attery [w]ith a [p]rior [d]omestic[-][b]attery [c]onviction (2014-CF-675)."
¶ 8 On November 17, 2014, in an evidentiary hearing, the trial court found all three counts of each petition to be proved. The court decided it would be in the best interest of the children to make them wards of the court and to give the Illinois Department of Children and Family Services (Department) guardianship over them, with the power to place them in foster care and to consent to their medical treatment.
¶ 9 B. Wards of the Court
¶ 10 On November 20, 2014, the trial court entered dispositional orders, in which the court adjudicated the minors to be neglected and abused and made them wards of the court, appointing the Department's guardianship administrator as their guardian. The court further ordered there was to be no visitation between respondent and the children "until further order of this Court or the felony court for [Macon County case No.] 14[-]CF[-]1090."
¶ 11 C. The Motions for the Termination of Parental Rights
¶ 12 On October 4, 2016, in both cases, the State filed a motion for the termination of respondent's parental rights. Both motions made four allegations of unfitness. First, respondent had failed to maintain a reasonable degree of interest, concern, or responsibility as to the minor's
welfare. See 750 ILCS 50/1(D)(b) (West 2016). Second, he was depraved in that, in People v. Whitfield, Macon County case No. 14-CF-1090, he had been convicted of aggravated battery of N.W., a child under the age of 13 years. See 750 ILCS 50/1(D)(i) (West 2016). Third, during any nine-month period following the adjudication of neglect and abuse, he had failed to make reasonable efforts to correct the conditions that had been the basis for removing the minor from his custody. See 750 ILCS 50/1(D)(m)(i) (West 2016). Fourth, during the following nine-month periods subsequent to the adjudication of neglect and abuse, he had failed to make reasonable progress toward the return of the minor: November 18, 2014, to August 18, 2015; August 18, 2015, to May 18, 2016; and January 5, 2016, to October 5, 2016. See 750 ILCS 50/1(D)(m)(ii) (West 2014).
¶ 13 D. The Fitness Hearing
¶ 14 The trial court held a fitness hearing on February 3, 2017.
¶ 15 Brittany Foster testified for the State, and respondent testified on his own behalf.
¶ 16 1. Brittany Foster's Testimony
¶ 17 Brittany Foster was a caseworker at the Center for Youth and Family Solutions. She had been assigned to the cases of S.W. and N.W. since April 2016, having taken over from the previous caseworker, Leanne Barber.
¶ 18 Foster testified that the first service plan for respondent went into effect on October 13, 2014, and it set down four tasks for him to perform during the six-month period of the service plan: (1) undergo a substance-abuse assessment, (2) undergo a mental-health assessment, (3) follow any recommendations arising from those assessments, and (4) complete a parenting course. Any task that was uncompleted during the six-month term was carried over into the subsequent service plan.
¶ 19 The Center for Youth and Family Solutions itself did not provide services (such as substance-abuse and mental-health assessments), but instead it made referrals to various third-party service providers. If the parent was incarcerated, such referrals were impossible, Foster explained, because the parent could not leave the jail or prison and go to the place of referral. So, if a parent was incarcerated, it was up to the parent to participate in whatever services were available in the jail or prison and to provide his or her caseworker documentary proof of such participation.
¶ 20 As far as Foster knew, the only task respondent completed during the period of October 2014 to October 2016 was a substance-abuse assessment. Sometime in August 2016, after his release from prison, he gave her documentary proof of his completion of that task.
¶ 21 Because so much time had passed during which respondent had completed only the substance-abuse assessment, the State was no longer willing to pay for services.
¶ 22 Even if Foster received documentation that respondent had completed the remaining tasks in his service plans, she still would consider him unfit to receive back the children, because in her conversations with him, he never admitted what had brought the children into care—he had never taken responsibility—and the first step to remedying a problem was to acknowledge the existence of the problem.
¶ 23 At the State's request, the trial court admitted a certified copy of a record from People v. Whitfield, Macon County case No. 14-JA-149, showing that respondent had been convicted of aggravated battery of a child under the age of 13, namely, N.W.
¶ 24 Foster testified that respondent was still on mandatory supervised release for that offense and that one of the conditions of his mandatory supervised release was to have no contact with the children.
¶ 25 2. Respondent's Testimony
¶ 26 Respondent testified he was 29 years old; he was employed at Caterpillar, Inc. (Caterpillar); and he had an apartment on West Macon Street in Decatur.
¶ 27 He began working for Caterpillar in September 2016, a couple of months after he was released from prison. He had been incarcerated from September 2014 to July 21, 2016, and he now was on mandatory supervised release. As a condition of his mandatory supervised release, and also as a condition of his employment at Caterpillar, he regularly underwent drug testing, all of which had been negative.
¶ 28 No services had been available in the Macon County jail or in the correctional center at Taylorville, Illinois. As soon as he was released from prison, however, he began services—at his own expense.
¶ 29 Respondent's exhibit No. 1 was a mental-health assessment, dated July 26, 2016, from Heritage Behavioral Health Center.
¶ 30 Respondent's exhibit No. 2 was a receipt showing he had paid for parenting classes, out of his own pocket, in August and September 2016.
¶ 31 Respondent's exhibit No. 3 was the lease for his apartment.
¶ 32 Respondent's exhibit No. 4 consisted of pay stubs from Caterpillar.
¶ 33 Respondent's exhibit No. 5 was documentary proof that in December 2016, he completed parenting classes at Webster-Cantrell Hall. The State objected to this exhibit on the ground that it postdated the petitions for the termination of parental rights. The trial court ruled it would consider the exhibit subject to the State's objection.
¶ 34 In addition to offering those exhibits, respondent's attorney requested the trial court to consider the contents of the court files. The court agreed to do so.
¶ 35 At the conclusion of the evidence and after hearing arguments, the trial court found the State had proved, by clear and convincing evidence, all four theories of unfitness in both cases.
¶ 36 E. The Best-Interest Hearing
¶ 37 The trial court held a best-interest hearing on March 17, 2017.
¶ 38 The State called no witnesses but merely offered a best-interest report as its evidence.
¶ 39 Foster and her supervisor, Martha Dufner, had signed the best-interest report on February 15, 2017. The report began by stating the "reason for involvement":
"[S.W.] (age 3) and [N.W.] (age 2) were seen at Decatur Memorial [Hospital's emergency room] on [September 4, 2014,] after [the] maternal grandmother noticed that [N.W.] had bruises on his left arm in various stages of healing. It was reported that [N.W.] had approximately [four] healing lacerations on his upper left arm and [four] on his lower left arm. The lacerations are a half[-]inch to an inch in length[,] and they are the size of about the line of a pen mark. [N.W.'s] various bruises on his upper and lower arm appeared to be finger marks[,] as if he [had been] grabbed. He also had [three] bruises that appeared to be fresh, dark in color on his buttocks. [N.W.] had [six to eight] lacerations that are scattered on his mid[-] and lower area of his back. [S.W.] stated that ['D]ad hits my brother every day[,'] and [S.W.] had a healing cigarette burn below the right elbow and also another one inside the right elbow. [S.W.] complained that the burn marks hurt and stated that ['D]addy burned me.' "
¶ 40 At the time of the best interest hearing, S.W. was now six, and N.W. was five. They are healthy and living with their maternal grandmother, Laura Cole, in a three-bedroom house in Decatur. S.W. and N.W. have separate bedrooms upstairs, and Cole has a bedroom downstairs. S.W. and N.W. attend Parsons Elementary School, where they are "doing well" and have friends. Cole has no medical conditions that would limit her ability to take care of the children. She has a "strong bond with the two children and offers stability." She also "is willing to provide permanency to the children."
¶ 41 The report contrasts their present contentment with their fear or animosity toward respondent:
"[S.W.] has reported to [the] worker that she 'hates her dad.' [S.W.] has also reported that she remembers that her dad was very mean to her and her brother. [S.W.] told [the] worker that she loves living with her grandmother and she loves her aunt Markeena. ***
* * *
[N.W.] does not discuss with [the] worker his feelings about the foster[-]care process due to his age[,] but he has reported his feelings about his father with [the] worker. [N.W.] has reported to [the] worker that he remembers his father hurting him and that he is scared of his father. [N.W.] has reported to [the] worker that he enjoys living with his grandmother and does not want to leave her home."
¶ 42 On the final page of the best-interest report, Foster writes:
"Due to [respondent's] not taking any responsibility for his children's injuries[,] it has raised concern for [the] worker and foster parents [sic] that if these children are returned home, their safety will not be ensured.
Foster care is not considered a permanent option for these children[,] and [the] worker feels that it is in the best interest of [S.W.] and [N.W.] if parental rights were terminated so that they may achieve permanence through adoption by their foster parent."
¶ 43 Respondent testified on his own behalf in the best-interest hearing. He stated he still lived in the apartment on West Macon Street. He reiterated that, upon being released from prison, he completed the services documented in respondent's exhibit Nos. 1 through 5. He saw Foster only once while he was in prison, and after he was released from prison, he saw her on only two further occasions, in court. She told him, over the telephone, that no services would be offered upon his release from prison.
¶ 44 After hearing this evidence and arguments by the attorneys, the trial court found it would be in the best interest of S.W. and N.W. to terminate respondent's parental rights. Accordingly, the court did so.
¶ 45 This appeal followed.
¶ 46 II. ANALYSIS
¶ 47 A. The Finding of Parental Unfitness
¶ 48 "To terminate parental rights, the trial court must make two separate and distinct findings: (1) the biological parents of the child have validly executed a voluntary surrender of their parental rights and a consent to adoption, or, alternatively, it has been proven, by clear and convincing evidence, that the parents are 'unfit persons' within the meaning of section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2014)); and (2) it has been proven, by a preponderance of the evidence, that it would be in the best interest of the child to terminate
parental rights and to appoint a guardian and authorize that guardian to consent to an adoption of the child." In re M.H., 2015 IL App (4th) 150397, ¶ 20.
¶ 49 Respondent had not executed a voluntary surrender of his parental rights and a consent to the adoption of S.W. and N.W. Therefore, the State was required to prove, by clear and convincing evidence, that he was an "unfit person" within the meaning of any of the statutory definitions the State had cited in its petitions (750 ILCS 50/1(D)(b), (D)(i), (D)(m)(i), (D)(m)(ii) (West 2014)), and then the State had to prove, by a preponderance of the evidence, that it would be in the children's best interest to terminate his parental rights. See id.
¶ 50 If the trial court finds the State has carried its burdens of proof as to parental fitness and the children's best interest, we do not reweigh the evidence, but instead, we decide whether those findings are against the manifest weight of the evidence. In re R.L., 352 Ill. App. 3d 985, 998, 1001 (2004). A finding of unfitness is against the manifest weight of the evidence only if it is "clearly apparent" that the State failed to prove, by clear and convincing evidence, that the respondent was an unfit person. In re Adoption of C.A.P., 373 Ill. App. 3d 423, 427 (2007). Likewise, a best-interest finding is against the manifest weight of the evidence only if it is "clearly apparent" that the State failed to prove, by a preponderance of the evidence, that terminating the respondent's parental rights would be in the child's best interest. In re H.S., 2016 IL App (1st) 161589, ¶ 34.
¶ 51 Keeping our deferential standard of review in mind (see In re Edward T., 343 Ill. App. 3d 778, 798 (2003)), we will begin with the finding of unfitness. Because conformance to only one of the statutory definitions in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2014)) makes a parent an "unfit person," we need not review all four of the grounds of unfitness that the State alleged in each of its motions. See H.S., 2016 IL App (1st) 161589, ¶ 31.
We choose to review the finding that respondent failed to make reasonable progress during the period of November 18, 2014, to August 18, 2015. See 750 ILCS 50/1(D)(m)(ii) (West 2014).
¶ 52 Under section 1(D)(m)(ii) of the Adoption Act (id.), "[t]he grounds of unfitness" include "[f]ailure by a parent *** to make reasonable progress toward the return of the child to the parent during any 9-month period following the adjudication of neglected or abused minor." On November 17, 2014, the trial court found S.W. and N.W. to be neglected and abused. The nine-month period of November 18, 2014, to August 18, 2015, follows that adjudication of neglect and abuse.
¶ 53 The supreme court has held: "[T]he benchmark for measuring a parent's progress toward the return of the child 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 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." (Internal quotation marks omitted.) In re C.N., 196 Ill. 2d 181, 216-17 (2001). In light of the conditions that gave rise to the removal of S.W. and N.W., i.e., their suffering repeated physical abuse at the hands of respondent, the tasks that the Center for Youth and Family Solutions prescribed for him, i.e., a substance-abuse assessment, a mental-health assessment, any recommendations resulting from those assessments, and a parenting course, were logical and relevant. During the period of November 18, 2014, to August 18, 2015, respondent completed none of those tasks and, for that matter, did not even begin any those tasks.
¶ 54 The reason was that he was confined in the Macon County jail and the Illinois Department of Corrections throughout that nine-month period, and neither place offered services. It does not matter. Because reasonable progress is an objective standard, which does not bend to
the parent's personal circumstances, the nine-month period for making reasonable progress keeps running during incarceration. See In re J.L., 236 Ill. 2d 329, 340 (2010) ("There is no exception for time spent in prison."); In re F.P., 2014 IL App (4th) 140360, ¶ 89.
¶ 55 No progress at all for nine months is not reasonable progress. Therefore, we are unconvinced that the trial court's finding of unfitness on the ground of failure to make reasonable progress from November 18, 2014, to August 18, 2015 (see 750 ILCS 50/1(D)(m)(ii) (West 2014)), is against the manifest weight of the evidence. See C.A.P., 373 Ill. App. 3d at 427. We uphold that finding.
¶ 56 B. The Finding That Terminating Respondent's Parental Rights
Would be in the Children's Best Interest
¶ 57 Section 1-3(4.05) of the Act provides:
"(4.05) Whenever a 'best[-]interest' determination is required, the following factors shall be considered in the context of the child's age and developmental needs:
(a) the physical safety and welfare of the child, including food, shelter, health, and clothing;
(b) the development of the child's identity;
(c) the child's background and ties, including familial, cultural, and religious;
(d) the child's sense of attachments, including:
(i) where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults believe the child should feel such love, attachment, and a sense of being valued);
(ii) the child's sense of security;
(iii) the child's sense of familiarity;
(iv) continuity of affection for the child;
(v) the least disruptive placement alternative for the child;
(e) the child's wishes and long-term goals;
(f) the child's community ties, including church, school, and friends;
(g) the child's need for permanence which includes the child's need for stability and continuity of relationships with parent figures and with siblings and other relatives;
(h) the uniqueness of every family and child;
(i) the risks attendant to entering and being in substitute care; and
(j) the preferences of the persons available to care for the child." 705 ILCS 405/1-3(4.05) (West 2014).
¶ 58 A reasonable trier of fact could find that several of the factors in that list weigh strongly in favor of terminating respondent's parental rights. The children's wishes were one factor. See 705 ILCS 405/1-3(4.05)(e) (West 2014). One child fears respondent, the other hates him, and they both want to continue living with Cole. Another factor is the children's sense of security. See 705 ILCS 405/1-3(4.05)(d)(ii) (West 2014). When the children visited Cole in September 2014, she found them to be "nervous, [easily] startled ***, and not talkative." Evidently, they felt insecure living with respondent. Arguably, the weightiest factors of all were "the physical safety and welfare of the child[ren]," "where the child[ren] actually [felt] love," and the "continuity of affection for the child[ren]." 705 ILCS 405/1-3(4.05)(a), (4.05)(d)(i), (4.05)(d)(iv) (West 2014).
¶ 59 How could one safely assume that respondent has changed and become nonviolent if, apparently, he has never acknowledged being violent? Although he had ample opportunity to do so, he never once, in the proceedings below, admitted wrongdoing toward these children, as far as we can see from the record. We see no indication that he ever expressed remorse or felt the slightest twinge of guilt for repeatedly inflicting lacerations, bruises, and burns on a two-year-old and a three-year-old. He has never written a word of apology to them. For that matter, he has never written to them at all during the pendency of these cases. On the record before us, it remains an enigma exactly what the nature of his problem was—or is. The physical safety of the children would be in serious doubt if they were returned to his custody, and the trial court justifiably found it would be in their best interest to terminate his parental rights.
¶ 60 III. CONCLUSION
¶ 61 For the foregoing reasons, we affirm the trial court's judgment.
¶ 62 Affirmed.