Brandon A. v. Timothy A.

916 N.E.2d 890, 395 Ill. App. 3d 224, 334 Ill. Dec. 250, 2009 Ill. App. LEXIS 990
CourtAppellate Court of Illinois
DecidedOctober 15, 2009
Docket5-08-0657
StatusPublished
Cited by15 cases

This text of 916 N.E.2d 890 (Brandon A. v. Timothy A.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brandon A. v. Timothy A., 916 N.E.2d 890, 395 Ill. App. 3d 224, 334 Ill. Dec. 250, 2009 Ill. App. LEXIS 990 (Ill. Ct. App. 2009).

Opinion

PRESIDING JUSTICE WEXSTTEN

delivered the opinion of the court:

Timothy A., the respondent, appeals from the circuit court’s order terminating his parental rights to his minor son, Brandon A., on its findings that the respondent’s repeated incarceration has prevented him from discharging his parental responsibilities (750 ILCS 50/l(D)(s) (West 2006)) and that the termination was in the minor’s best interests (705 ILCS 405/2 — 29(2) (West 2006)). The State cross-appeals from the court’s finding that the respondent is not depraved (750 ILCS 50/ 1(D)(i) (West 2006)). For the reasons that follow, we affirm.

BACKGROUND

Brandon was born in December 1998. In January 2005, his mother, Patsy, died of a drug overdose, and his father, the respondent, was arrested and incarcerated on drug charges. Brandon’s maternal grandmother, Shirley Rice, immediately assumed custody of him, and in November 2005, the State filed a petition for an adjudication of wardship on his behalf (705 ILCS 405/2 — 13 (West 2004)).

In December 2005, at the first hearing on the State’s petition for an adjudication of wardship, the trial court expressed concern that the respondent had not been served with a summons. In response, the State informed the court that it had learned where the respondent was being housed by the Illinois Department of Corrections (DOC) and would serve him prior to the next hearing. By the agreement of the parties present, the court placed Brandon in the temporary custody of the Department of Children and Family Services (DCFS). DCFS then deemed Shirley “a relative foster parent,” and Brandon was permitted to remain in her care. The respondent was later served with a copy of the petition for the adjudication of wardship, a notice of rights, and notices of hearings. The court subsequently entered additional temporary custody orders continuing temporary custody with DCFS.

In February 2006, the cause proceeded to an adjudicatory hearing. The court noted that the respondent had been served with a summons but was not present. Joe Frey of DCFS testified that, although Shirley had “quickly and appropriately” assumed custody of Brandon following Patsy’s death and the respondent’s incarceration, she “still did not have the legal authority to make decisions on his behalf.” Thereafter, the court adjudicated Brandon a dependent minor pursuant to section 2 — 4(1)(a) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2— 4(1)(a) (West 2004)) and set the cause for a dispositional hearing. The respondent subsequently retained counsel and filed a writ to be present at the dispositional hearing.

In June 2006, the cause proceeded to a dispositional hearing, where the respondent was present with counsel. Frey testified that DCFS had placed Brandon in Shirley’s care and that she had been cooperative with DCFS ever since. Frey stated that it would be in Brandon’s best interests to remain in foster care with Shirley. The respondent testified that, although he and Brandon had “always been close,” he was unable to take care of Brandon because he was incarcerated. The respondent referred to Shirley as a “wonderful grandmother” who loved Brandon, and he stated that under Shirley’s care is “where [Brandon] should be.” At the conclusion of the hearing, the court found that it was in Brandon’s best interests that he be made a ward of the court. The court granted custody and guardianship to DCFS and ordered DCFS to arrange visitation with the respondent.

In June 2007, the cause proceeded to a permanency hearing. Faith Johnson of Lutheran Social Services (LSS) testified that referrals with respect to many of the components of the respondent’s service plan could not be made because of his incarceration. She further testified that Brandon was doing very well under Shirley’s care and was well-behaved and well-adjusted. Johnson opined that given Brandon’s “desperate need for permanency,” the appropriate permanency goal “would be substitute care pending termination of parental rights.” The respondent testified that he expected to be released on parole from DOC in January 2008. He acknowledged that there were federal drug charges still pending against him, but he insisted that he was not guilty of those charges. He indicated that he sincerely loved Brandon, that he had improved himself while in prison, and that, once released, he was willing to do whatever was necessary to regain custody of his son. Noting that Brandon had already been in foster care for approximately 2V2 years, the trial court agreed with LSS’s recommendation and found that the appropriate permanency goal was substitute care pending a determination on the termination of parental rights. The court also ordered that visitation between the respondent and the minor be continued.

In November 2007, the State filed a motion for the termination of parental rights and for the appointment of a guardian with the power to consent to an adoption. In its motion, the State alleged that the respondent was unfit for the following reasons: (1) he had failed to maintain a reasonable degree of interest, concern, or responsibility for Brandon’s welfare (750 ILCS 50/1 (D)(b) (West 2006)), (2) he had failed to protect Brandon from environmental conditions that were injurious to Brandon’s welfare (750 ILCS 50/l(D)(g) (West 2006)), (3) he had failed to make reasonable efforts to correct the conditions that were the basis of Brandon’s removal (750 ILCS 50/l(D)(m)(i) (West 2006)), (4) he had failed to make reasonable progress toward Brandon’s return within nine months after Brandon had been adjudicated a dependent minor (750 ILCS 50/l(D)(m)(ii) (West 2006)), (5) he was depraved in that he had been criminally convicted of at least three felonies and at least one of his convictions had taken place within five years of the filing of the motion to terminate parental rights (750 ILCS 50/1 (D)(i) (West 2006)), and (6) he was incarcerated at the time of the filing of the motion to terminate parental rights, he has been repeatedly incarcerated as a result of criminal convictions, and his repeated incarceration has prevented him from discharging his parental responsibilities (750 ILCS 50/1 (D)(s) (West 2006)).

In April 2008, the respondent filed a motion to dismiss the State’s motion for the termination of parental rights. Citing section 2 — 13(4.5)(a) of the Act (705 ILCS 405/2 — 13(4.5)(a) (West 2006)), the respondent maintained that the State was not statutorily authorized to commence the termination action because Brandon was being cared for by a relative. Following a hearing on the matter, the trial court denied the respondent’s motion to dismiss.

In June 2008, the cause proceeded to a fitness hearing, at which the following evidence was adduced.

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Cite This Page — Counsel Stack

Bluebook (online)
916 N.E.2d 890, 395 Ill. App. 3d 224, 334 Ill. Dec. 250, 2009 Ill. App. LEXIS 990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandon-a-v-timothy-a-illappct-2009.