A.W.

2022 IL App (2d) 210219-U

• Court: Appellate Court of Illinois
• Decided: January 10, 2022
• Docket: 2-21-0219
• Status: Unpublished

Opinion

2022 IL App (2d) 210219-U No. 2-21-0219 Order filed January 10, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re A.W., a Minor, ) Appeal from the Circuit Court of ) Winnebago County. ) ) No. 19-JA-471 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Darnell W., ) Francis M. Martinez, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Presiding Justice Bridges and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: The trial court’s finding that respondent father was unfit was not against the manifest weight of the evidence. Affirmed.

¶2 Respondent, Darnell W., appeals from the trial court’s order finding that he was an unfit

parent and that it was in the best interests of his minor child, A.W., that respondent’s parental

rights be terminated. Initially, appointed appellate counsel filed a motion to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967), and In re Alexa J., 345 Ill. App. 3d 985 (2003), stating

that she reviewed the record, determined that there were no meritorious issues that could be raised

on appeal, and served respondent with a copy of the motion. The notice of appeal was filed on

April 23, 2021, and counsel filed the motion to withdraw on June 18, 2021. We denied the motion 2022 IL App (2d) 210219-U

without prejudice on September 15, 2021, and counsel subsequently submitted a brief raising three

claims of error on October 8, 2021. Accordingly, there is good cause for issuing our decision

beyond 150 days after the notice of appeal was filed. See Ill. S. Ct. R 311(a)(5) (eff. July 1, 2018).

For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Respondent’s daughter, A.W., was born in October 2019. The State filed a neglect petition

on October 30, 2019, alleging that A.W. was born with cocaine, or a metabolite of cocaine, in her

blood, urine, or meconium. Respondent and A.W.’s mother appeared in the trial court on October

31, 2019, and waived their rights to a shelter care hearing. 1 The trial court adjudicated A.W. to be

a neglected child, placed her in the temporary custody of the Department of Children and Family

Services (DCFS), and ordered the parents to complete various services per a stipulated agreement.

¶5 Respondent and A.W.’s mother had two other children together. Respondent’s parental

rights with respect to those children had previously been terminated, and the children had been

placed with a foster parent, who subsequently adopted them. A.W. was also placed with the same

foster parent. Respondent was on probation at the time the petition was filed. He had been

diagnosed with schizophrenia and was receiving treatment.

¶6 In January 2020, the trial court held its first permanency-review hearing. Respondent and

A.W.’s mother stipulated that they were either unfit, unable for reasons other than financial, or

unwilling to care for A.W. and agreed to DCFS guardianship of A.W. The court placed A.W. in

short-term care with a goal to return home. See 705 ILCS 405/2-28(2)(B) (West 2020).

1 The parental rights of A.W.’s biological mother were also terminated but are not at issue

in this appeal.

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¶7 At a July 9, 2020, permanency-review hearing, the trial court determined that respondent

had made reasonable efforts during the review period. The next permanency-review hearing was

scheduled for December 8, 2020, but was continued until January 4, 2021. Following the hearing,

the court concluded that it was appropriate to change the goal to substitute care pending

termination of parental rights. See id. § 2-28(2)(C).

¶8 On February 9, 2021, the State filed a petition to terminate respondent’s parental rights.

The petition alleged that respondent had (1) “failed to maintain a reasonable degree of interest,

concern or responsibility as to [A.W.’s] welfare” (750 ILCS 50/l(D)(b) (West 2020)) (count I);

(2) “failed to protect [A.W.] from conditions within the environment injurious to [her] welfare”

(id. § l(D)(g)) (count II); (3) “failed to make reasonable efforts to correct the conditions that caused

[A.W.] to be removed during” the period of April 5, 2020, to January 4, 2021 (count III) (id.

§ 1(D)(m)(i)); and (4) “failed to make reasonable progress toward the return of [A.W.] to him

during” either (a) the period of January 10, 2020, to October 10, 2020, or (b) the period of April

5, 2020, to January 4, 2021 (id. § l(D)(m)(ii)) (count IV).

¶9 On March 8, 2021, the trial court conducted a termination of parental rights fitness hearing.

Two witnesses testified: Krista Vaccarello and respondent.

¶ 10 Vacarello had been A.W.’s DCFS caseworker since June 2020. She testified that, after

A.W. was removed from her parents’ care, DCFS conducted an integrated assessment and

generated a service plan, which was periodically reviewed. The State introduced into evidence the

integrated assessment report as well as service plans dated December 2019, February 2020, and

August 2020.

¶ 11 As part of the service plan, respondent was required to complete the partner abuse

intervention program (PAIP), engage in mental health services, undergo a substance abuse

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assessment and engage in substance abuse services, and demonstrate satisfactory cooperation and

parenting. Although respondent had enrolled in PAIP twice, he had not completed it and provided

no explanation. Respondent had been diagnosed with schizophrenia and was fully compliant with

his mental health services and his medication schedule.

¶ 12 It was recommended that respondent attend alcoholics anonymous (A.A.) and narcotics

anonymous (N.A.). Although respondent had told her he had attended meetings, he provided no

proof of attendance and Vaccarello had not received any supporting documentation. She was

concerned about respondent’s ability to remain sober. Respondent had continued to live with

A.W.’s mother during the service plan period even though she was still actively using drugs.

Respondent missed drug screenings in September and October 2020. On cross-examination,

Vaccarello explained that respondent was drug-tested at least monthly and agreed that, although

he missed some drops, most of his drops were negative. Moreover, Vaccarello had previously

reported to the court that respondent’s probation officer told her that defendant tested positive for

alcohol in September and October 2020.

¶ 13 Vaccarello was aware of an incident in which police were called to respondent’s home.

She believed police had been told that respondent threatened to kill A.W.’s mother.

¶ 14 Respondent was consistent in his visits with A.W., missing only when A.W. was sick.

However, Vaccarello denied that respondent had “provided any form of support or clothing or

food” or “inquired about the safety or health or welfare” of A.W. She had concerns about

respondent’s mental health, the possibility of his continued drug use, and his ability to safely

parent.

¶ 15 Respondent testified that he was enrolled in domestic violence classes in January 2021. He

attended one session but was discharged. He thought someone would notify him of the next

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scheduled session but was never contacted. Respondent did not know that “they don’t contact

people.” Respondent further testified that, during his visits with A.W., respondent attempted to

bring clothes and other items but DCFS did not let him.

¶ 16 From April 2020 until the date of his testimony, respondent attended A.A. and N.A.

meetings “every day” except Fridays, missing only a few meetings due to, for example, doctor’s

appointments. He did not have a sponsor. He never documented his attendance, although he

verbally told his caseworker he had been attending. He completed his steps and had been

“upgrade[d]” to another part of the substance abuse counseling program. When asked why he had

not told his caseworker about his A.A. and N.A. attendance, respondent stated, “I’ve been getting

different case managers, stuff like that, and lost numbers, different phone stuff, you know. Just

wasn’t going right. So I couldn’t report at that time.” When asked if he had any evidence of his

attendance, respondent replied “I left them at home.” He also described the format of meetings and

explained that A.A. participants recite a “serenity prayer” after every meeting, but he did not know

the prayer.

¶ 17 Respondent testified that he had not used marijuana since 2016. He stated, “I don’t do

drugs, but I was playing around with some fentanyl” and admitted to snorting fentanyl in “2019 or

2018.”

¶ 18 In December 2020, respondent moved out of the residence he shared with A.W.’s mother

and into his sister’s house. Regarding the incident involving police, respondent denied that he

threatened A.W.’s mother and explained that police found ammunition that belonged to his

stepbrother.

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¶ 19 On April 19, 2021, the trial court found respondent unfit (under counts I, III, and IV) by

clear and convincing evidence and that termination of respondent’s parental rights would be in

A.W.’s best interest. Regarding the unfitness finding, the trial court noted the following:

“Father’s services were as follows: Mental health services, substance abuse

assessment and treatment, parenting, domestic violence services, and parent coaching I

believe was the final service. He did not engage in PAIP, according to testimony, attempted

but missed dates.

Per the Family Service Plan, State’s Exhibit No. 4, he did not complete the DV

services because he did not complete substance abuse and did not demonstrate sobriety.

The delay in substance abuse treatment caused a delay in parenting. The cumulative

effect of these delays or incomplete services resulted in a failure to make efforts or

progress.

Therefore, the State has proven 1, 3 and 4, Counts 1, 3 and 4, by clear and

convincing evidence.”

Respondent timely appealed.

¶ 20 II. ANALYSIS

¶ 21 Respondent argues that the trial court erred in finding him unfit on each of its three

grounds—that he failed to maintain a reasonable degree of interest, concern or responsibility for

A.W.’s welfare; to make reasonable efforts to correct the conditions that led to A.W.’s removal;

and to make reasonable progress toward A.W.’s return.

¶ 22 Every case involving a finding that a parent is unfit is sui generis. In re Adoption of Syck,

138 Ill. 2d 255, 278 (1990). A parent may be found unfit on the ground that he or she has “fail[ed]

to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.”

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750 ILCS 50/1(D)(b) (West 2020). If a child has been adjudicated a neglected minor, a parent may

be found unfit if, during any nine-month period following such adjudication, he or she failed “to

make reasonable efforts to correct the conditions that were the basis for the removal of the child

from the parent” or “to make reasonable progress toward the return of the child to the parent.” Id.

§ 1(D)(m)(i), (ii) (West 2020). Whether a parent has made “reasonable efforts” is judged

subjectively; whether a parent has made “reasonable progress” is judged objectively and requires

“measurable or demonstrable movement toward the goal of reunification.” In re Jacorey, 2012 IL

App (1st) 113427, ¶ 21. The “benchmark” for determining whether a parent has made reasonable

progress toward the return of the child “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 “other conditions which later become known and which would prevent the court from

returning custody of the child to the parent.” In re C.N., 196 Ill. 2d at 216–17; see also 750 ILCS

50/1(D)(m) (West 2020) (“ ‘[F]ailure to make reasonable progress toward the return of the child

to the parent’ includes the parent’s failure to substantially fulfill his or her obligations under the

service plan[.]”). A finding that any of the three above grounds is satisfied can support a finding

of unfitness. See 750 ILCS 50/1(D) (West 2020) (“The grounds of unfitness are any one or more

of the following***.”). We choose to focus on the third ground relied on by the trial court—

whether respondent demonstrated reasonable progress—although we would reach the same result

under all three grounds.

¶ 23 A trial court’s finding of unfitness will be reversed only if it is against the manifest weight

of the evidence. In re Adoption of L.T.M., 214 Ill. 2d 60, 68 (2005). We defer to the findings of the

trial court because it is in the best position to observe and assess the credibility of witnesses. In re

D.F., 201 Ill. 2d 476, 498-99 (2002). A finding is against the manifest weight of the evidence if is

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unreasonable, arbitrary, or not based on the evidence presented. Id. at 498.

¶ 24 The trial court found that there was a delay in respondent’s substance abuse treatment,

which caused a delay in parenting. According to the court, “The cumulative effect of these delays

or incomplete services resulted in a failure to make efforts or progress.” Thus, the court found

defendant unfit, and this finding is not against the manifest weight of the evidence.

¶ 25 Respondent challenges the unfitness finding on grounds that: (1) he maintained regular

visits with A.W., (2) he consistently engaged in mental health treatment and complied with his

medication regimen, (3) he consistently attended A.A. and N.A. meetings, (4) most of his drug

tests were negative, (5) he completed a PAIP assessment and was ready to begin domestic violence

counseling, and (6) as of December 2020 he was no longer living with A.W.’s mother. However,

several facts adduced at the fitness hearing weighed in favor of a finding that respondent failed to

make reasonable progress: (1) respondent submitted no documentation of his A.A. or N.A. meeting

attendance; (2) he was unable to recite the A.A. serenity prayer despite testifying that he attended

meetings regularly; (3) he missed several drug screenings and, according to his probation officer,

tested positive twice for alcohol; (4) he had not meaningfully engaged in domestic violence

services during the year prior to the hearing; and (5) he continued to live with A.W.’s mother until

December 2020 despite her continued drug use. Respondent’s conduct during the period of

substitute care, and his failure to fulfill conditions of his service plan, bear directly on the

reasonableness of his efforts and progress toward A.W.’s return and on the extent of respondent’s

interest, concern, or responsibility for A.W.’s welfare. Under these circumstances, based on the

evidence presented, the finding of respondent’s unfitness was not against the manifest weight of

the evidence.

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¶ 26 Respondent also argues that the trial court’s finding that he failed to make reasonable

efforts to cure the conditions that caused A.W. to be removed was not based on the evidence. The

court found at a July 9, 2020, permanency review hearing that defendant had, at that time,

demonstrated reasonable efforts. Respondent contends that the court was thus required to find that

the State failed to satisfy its burden for count III, but provides no authority for this contention. This

argument has no merit. The time period specified by the State for count III included the six months

following the July 9, 2020, hearing. Even if defendant’s efforts were satisfactory before that date,

the trial court was not prohibited from making a contrary finding after considering additional

evidence. Regardless, we reiterate that any of the three findings of unfitness was sufficient and we

would reach the same outcome considering any ground.

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 29 Affirmed.

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