2025 IL App (2d) 250001-U No. 2-25-0001 Order filed June 25, 2025
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)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re B.M., M.M., Z.M., and A.M., Minors ) Appeal from the Circuit Court ) of McHenry County. ) ) Nos. 22-JA-78 ) 22-JA-79 ) 22-JA-80 ) 22-JA-81 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Kyle M., ) Mary H. Nader, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE KENNEDY delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in finding respondent to be an unfit person due to a failure to maintain a reasonable degree of interest, concern, or responsibility as to the minor children’s welfare. Further, it did not err in denying respondent’s motion to dismiss the State’s petition to terminate his parental rights. We affirm.
¶2 Respondent Kyle M. appeals from the trial court’s finding that he is an unfit person under
section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)) and its denial of his motion to
dismiss the State’s petition to terminate his parental rights. Respondent is the biological father of 2025 IL App (2d) 250001-U
the four minors in this litigation: B.M., M.M., Z.M., and A.M. (collectively, the minor children).
For the reasons herein, we affirm.
¶3 I. BACKGROUND
¶4 On August 28, 2022, the Department of Children and Family Services (DCFS) took the
minor children into protective custody after their mother, Brittany H., left them alone for 20-30
minutes in a locked, running car without air conditioning while she visited Betsy’s Slots, a
gambling establishment. The minor children were between one and five years old. At the time,
respondent was incarcerated on felony theft charges with a projected release date in 2027. 1
¶5 The State filed a petition for adjudication of wardship on August 31, 2022. The petition
alleged that, when officers arrived at the scene, Brittany was inside the gambling establishment
and B.M. was “crying profusely” when officers entered the vehicle. Brittany reported that “she
needed to take a break,” and the petition alleged she had a history of leaving them unsupervised.
Brittany had previously been indicated for cuts, bruises, welts, and abrasions (September 2019);
medical neglect (September 2019); inadequate supervision (May 2021); and burns by neglect (June
2022).
¶6 Regarding respondent, the petition alleged that he had a history of using cocaine in the
home around the minor children and had committed acts of domestic violence against Brittany in
front of the minor children. 2 Both he and Brittany had been indicated for substantial risk of
1 According to status hearing reports, respondent was sentenced on April 12, 2022, to serve 9.5
years for his felony conviction of theft of property between $10,000 and $100,000 committed in a school
or place or worship or of governmental property. 2 In an integrated assessment, respondent reported a history of substance abuse and that his drugs of
choice were marijuana and prescription pills.
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physical injury and an environment injurious to health and welfare by “Neglect and Tying/Close
Confinement” (June 2019). The petition alleged that the minor children were neglected due to an
environment injurious to their welfare (705 ILCS 405/2-3(1)(b) (West 2022)) and for being under
the age of 14 without supervision for an unreasonable period of time (id.§ 2-3(1)(d)), and that they
were abused due to a substantial risk of physical injury other than by accidental means (id. § 2-
3(2)(ii)).
¶7 On November 17, 2022, the minor children were adjudicated neglected based on an
environment injurious to their welfare and being unsupervised for an unreasonable period of time
while under 14 years of age. The findings were based on stipulations by both respondent and
Brittany to allegations in the State’s petition, including respondent’s stipulation to a history of
using cocaine in the home around the minor children. The trial court further found that it was
contrary to the health, welfare, and safety of the minor children to remain in the home due to
respondent being incarcerated and Brittany needing services.
¶8 The December 13, 2022, family service plan provided that respondent needed to cooperate
with DCFS and any court order to successfully complete services, to keep all appointments with
the caseworker, and to complete a substance abuse assessment and follow the resulting
recommendations. Respondent was currently incarcerated at Danville Correctional Center and had
four convictions of assault and one conviction of dangerous drugs.
¶9 The trial court entered the dispositional order on January 9, 2023. Therein, the trial court
made the minor children wards of the court and set a goal of return home within 12 months. The
order stated that respondent needed to comply with the service plan, including substance abuse
treatment and necessary family services.
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¶ 10 The June 2, 2023, permanency order provided that the goal remained return home within
12 months. It found that both Brittany and respondent had not made reasonable progress nor efforts
toward the minor children’s return home.
¶ 11 Per the status hearing court report by the Allendale Foster Care Program filed September
18, 2023, respondent had not begun services to complete a substance abuse assessment, with
Danville Correctional Center reporting that he would not be able to begin services until closer to
his release date. Respondent reported that he would see if he could enroll in services sooner or
transfer to another prison. He had participated in some video visitation with the minor children.
Another status report filed November 27, 2023, provided the same and stated that respondent had
made unsatisfactory progress and efforts.
¶ 12 In the September 5, 2023, family service plan, respondent’s goal remained cooperation
with agency and court orders to complete services, including a substance abuse assessment. He
was making unsatisfactory progress because he was unable to complete services until he was either
released from prison or moved to another prison.
¶ 13 In the December 1, 2023, permanency order, the trial court again found respondent had
made neither reasonable progress nor efforts toward the return home of the minor children. The
permanency goal was changed to guardianship.
¶ 14 By the filing of the March 4, 2024, status hearing court report, respondent had moved from
Danville Correctional Center to Southwestern Illinois Correctional Center. He reported that he was
enrolled in substance abuse services at his new facility, which provided more opportunities for
services. The agency had not yet been able to confirm services. The prison was six hours from the
location of the children, and visitation was set for every six months. The agency was
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recommending that the court move forward with termination of parental rights with a goal change
to adoption.
¶ 15 The permanency hearing court report from Allendale filed May 10, 2024, stated that the
permanency goal was no longer reunification, so the agency was no longer monitoring
respondent’s participation in services. Another permanency hearing report filed July 3, 2024,
provided the same.
¶ 16 The July 19, 2024, permanency order found that both Brittany and respondent had not made
reasonable efforts nor progress toward the minor children’s return home. Brittany was not
participating in services, and respondent was incarcerated with outstanding services. The goal was
changed to substitute care pending a determination of parental rights.
¶ 17 A. Petition to Terminate Parental Rights
¶ 18 On July 23, 2024, the State petitioned to terminate respondent’s parental rights. It alleged
that respondent had failed to maintain a reasonable degree of interest, concern, or responsibility as
to the welfare of the minor children (750 ILCS 50/1(D)(b) (West 2022)); failed to make reasonable
efforts to correct the conditions that were the basis for the minor children’s removal during any
nine-month period following the adjudication of neglect (id. § 1(D)(m)(i)); and failed to make
reasonable progress toward the return home of the minor children during any nine-month period
following the adjudication of neglect (id. § 1(D)(m)(ii)). The petition listed the relevant time period
for both reasonable efforts and progress as November 17, 2022, to July 19, 2024.
¶ 19 Following the petition, the October 30, 2024, permanency hearing court report provided
that respondent’s scheduled release date was January 16, 2026. He was in a drug rehabilitation
program with daily group meetings and was required to attend AA and NA meetings. Successful
completion of services could reduce his prison sentence. Respondent had not contacted the agency
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regarding visitation nor the well-being of the minor children. The permanency report filed
November 15, 2024, found that respondent was still in need of services and had not made
reasonable efforts or progress.
¶ 20 B. Respondent’s Motion to Dismiss
¶ 21 On September 5, 2024, respondent filed a section 2-619 motion (735 ILCS 5/-619 (West
2022)) to dismiss the State’s petition for termination of parental rights. Therein, he argued that the
Adoption Act allowed for a finding of unfitness based on a parent’s incarceration (750 ILCS
50/1(D)(r), (s) (West 2022)), and “the legislature would not have created two sections to determine
unfitness if others could be used when a parent is incarcerated,” indicating that these were the only
grounds available to find a parent unfit when incarcerated. Respondent concluded that the State’s
alleged grounds of unfitness (id. §§ 1(D)(b), (m)(i), (m)(ii)) were therefore inappropriate.
¶ 22 On October 10, 2024, following a hearing, the trial court denied respondent’s motion to
dismiss.
¶ 23 C. Hearing and Fitness Finding
¶ 24 The trial court heard the petition to terminate parental rights over the course of three days:
December 2, 9, and 10, 2024. Following the December 2, 2024, hearing, the trial court entered an
order finding both Brittany and respondent unfit persons, and it continued the hearing for the best
interests findings. As this appeal involves only the finding of unfitness, we summarize only the
December 2 hearing.
¶ 25 The State called Erin Berry, who testified as follows. She was a foster care manager at
Allendale, which was a private social service agency contracted by DCFS to provide foster care
services. Before becoming the foster care manager, she was a case manager, where she was one of
the workers assigned to the minor children’s case, managing it from August 2022 to November
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2022 and again from April 2024 to October 2024. Berry identified several State exhibits, including
integrated assessments, family service plans, and court reports, which were admitted into evidence.
¶ 26 Regarding respondent’s services, he was asked to complete a substance abuse service, and
the agency reserved the right to add services upon his release from prison. As of the hearing, he
had not completed substance abuse treatment. While Berry was the caseworker, respondent had
never contacted the agency regarding the minor children or visitation.
¶ 27 Respondent called Shakyria Bailey, who testified that she was currently employed at A
Safe Place but had previously worked at Allendale as a foster care case manager. She was involved
with the minor children’s case, beginning her involvement around November 2022. When she took
over the case, respondent had not begun any recommended services. When she contacted the
prison, she was told that services were not offered to respondent, and respondent told her that other
prisons might offer services. She typically spoke with respondent once a month. She testified that
he showed interest in seeing the minor children and participated in their visits.
¶ 28 Bailey continued that, while at Danville, respondent had in-person visitation every three
months, and she explained to him that his move to Southwestern would decrease visitation to every
six months. In her view, he was involved with the children and his services as much as he could in
his capacity: he was “the most involved parent I had, even due to his limitations.” Respondent’s
move to Southwestern was an attempt to complete services, although it also meant less visitation
with the minor children.
¶ 29 On cross-examination, Bailey confirmed that respondent had not to her knowledge
completed parenting, mental health, or substance abuse services.
¶ 30 Respondent testified that he requested the move from Danville to Southwestern “for good
time and for substance abuse, and they offered more programs than Danville did.” He was aware
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that the transfer would make visitation with the minor children less frequent, but he “felt like I
would be able to get home faster.” He was currently in a behavior modification program that
included a program for drugs and substance abuse. That program, which he described as group
counseling—“how to think different ways, you know, and don’t go with your first initial reaction
but go with, like, the second one”—helped him get out of prison sooner. 3 The substance abuse
treatment aspect was “just like a group, everybody talking amongst each other sharing stories.”
¶ 31 Respondent also testified that he had completed programs called InsideOut Dads and Inner
Circle, and he was participating in AA and NA groups. InsideOut Dads was a 12-week program
where inmates with kids met weekly to talk, moderated by a counselor, and Inner Circle was a
program that met five times and went through different scenarios like applying for a job. He
enrolled in AA and NA because he had had a drug problem. It was difficult for respondent to get
a hold of DCFS from prison.
¶ 32 During closing argument, the guardian ad litem stated that she understood respondent’s
argument that he had made all efforts he could given his situation, and she was discouraged that
the agencies could not do more to facilitate visitation or provide telehealth for him. Although she
commended respondent for everything he was doing, “the progress has just not been there,” and
she did not believe it was in the minor children’s best interests to wait another two years for his
release. Respondent’s counsel objected that this was not the best interest portion of the hearing
and that the minor children’s best interests should not be considered, and the court noted the
objection.
3 He explained that 90 days involved in the program reduced his sentence by approximately 60 days.
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¶ 33 The trial court found respondent an unfit person on all three alleged grounds, explaining as
follows. At the outset, it commented that guardianship had been awarded to DCFS in November
2022, and “here we are, two years later, and what has changed?” Regarding respondent’s degree
of interest, concern, and responsibility for the minor children, the court noted that his prison facility
transfer would, “for all intents and purposes, terminate his visitation or his parenting time with his
kids,” and his first response for why he did the transfer was “for good time.” The court
characterized his decision to transfer facilities as “he basically gave up two years of visiting his
kids so he’d get out of prison early.” The court continued that respondent wanted it to think that
he wanted to get out of prison early to be a better dad, but most people want to get out of prison if
they can, and respondent had never initiated contact with DCFS to check on the minor children.
The court found this showed a lack of interest in seeing the minor children. The court also noted
that respondent never sent the minor children pictures or birthday cards, which were things he
could have done from prison.
¶ 34 The trial court also found it was respondent’s fault that he was in prison, which it found
similar to a parent who says they cannot be in services due to a drug problem. It found Bailey’s
testimony incredible based on her saying that respondent was more involved than most parents
who are not in prison, despite her typically having contact with him only once a month. As to
respondent’s services, he had not begun them until the minor children were already in care for a
year and a half. His services were classes where inmates talked and shared stories.
¶ 35 The trial court continued that respondent had incurred verbal reprimands and disciplinary
restrictions while incarcerated. Further, respondent’s counsel had stated that respondent was not
in a place where he could have his children home, and the court agreed that he could not for
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apparently at least another two years. The court commented that respondent had “hurdles that can’t
be completed. They can’t be completed because of his actions.”
¶ 36 Turning to reasonable efforts and progress, it further stated that the courses respondent was
taking “are not really courses at all.” Having found respondent unfit on all three grounds, the court
continued the hearing for the best interest portion. Following the continued hearing, the trial court
found that termination of parental rights was in the minor children’s best interests, and it terminated
respondent’s parental rights on December 10, 2024.
¶ 37 This timely appeal followed.
¶ 38 II. ANALYSIS
¶ 39 Respondent contends that the trial court erred in finding him an unfit person under section
1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)). In addition, respondent argues that the
trial court improperly denied his motion to dismiss the State’s petition to terminate parental rights.
¶ 40 The Juvenile Court Act of 1987 provides a two-stage process for the involuntary
termination of parental rights. 705 ILCS 405/2-29(2) (West 2020); In re Tiffany M., 353 Ill. App.
3d 883, 889 (2004). The first stage requires that the State prove by clear and convincing evidence
that the parent is an “unfit person” under section 1(D) of the Adoption Act (750 ILCS 50/1(D)
(West 2020)). In re Gwynne P., 215 Ill. 2d 340, 354 (2005). If the court finds the parent unfit, the
court considers whether it is in the best interests of the child to terminate parental rights. In re
C.W., 199 Ill. 2d 198, 210 (2002). Only the first stage, unfitness, is at issue on this appeal.
¶ 41 Section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2020)) lists various grounds
to find a parent unfit, any of which alone will support a finding of unfitness. In re Tiffany M., 353
Ill. App. 3d at 889. Therefore, we may affirm the trial court’s finding where the evidence supports
any one of the alleged grounds of unfitness. See In re Nevaeh R., 2017 IL App (2d) 170229, ¶ 20
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(“The court need find a parent unfit under only one of the grounds” in section 1(D) of the Adoption
Act to proceed to a best-interest hearing).
¶ 42 Relevant here are sections 1(D)(b) (failure to maintain a reasonable degree of interest,
concern or responsibility as to the child’s welfare), 1(D)(m)(i) (failure to make reasonable efforts
to correct the conditions that were the basis for the removal of the child during any nine-month
period following the adjudication of neglect or abuse), and 1(D)(m)(ii) (failure to make reasonable
progress toward the return of the child during any nine-month period following the adjudication
of neglect or abuse).
¶ 43 To reverse a trial court’s finding that there was clear and convincing evidence of parental
unfitness, a reviewing court must determine that the trial court’s finding was against the manifest
weight of the evidence. In re C.N., 196 Ill. 2d 181, 208 (2001). A finding is against the manifest
weight of the evidence where the opposite conclusion is clearly evident or the decision is
unreasonable, arbitrary, or not based on the evidence. In re N.B., 2019 IL App (2d) 180797, ¶ 30.
In reviewing a finding of unfitness, this court does not reweigh the evidence or reassess the
credibility of witnesses. In re Adoption of P.J.H., 2019 IL App (5th) 190089, ¶ 11.
¶ 44 A. Fitness Finding
¶ 45 Respondent first argues that the trial court erred by inappropriately considering the minor
children’s best interests in making its unfitness finding. The State responds that respondent failed
to preserve this argument by failing to file a post-trial motion and that, regardless, the argument
fails on the merits.
¶ 46 Regardless of any forfeiture, this argument clearly fails on its merits because it was the
guardian ad litem, not the trial court, who broached the children’s best interests at the fitness
hearing. Respondent’s counsel objected to the guardian’s argument, and the trial court noted the
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objection. In reaching its fitness decision, the trial court did not discuss the minor children’s best
interests: The most the trial court said was that respondent was not in a place to have the children
home for another two years, but it said this in the context of respondent’s incarceration impeding
him from doing what he needed to do to be ready for their return home. To wit, “he has hurdles
that can’t be completed,” and they “can’t be completed because of his actions.”
¶ 47 Next, respondent argues that the trial court’s finding that he failed to maintain a reasonable
degree of interest, concern, or responsibility as to the minor children’s welfare was against the
manifest weight of the evidence. He argues that he reached out to his mother for updates on the
children, participated in visitation, and was described by his caseworker as being as involved as
he could be. He testified that he wanted to be a better father and that his prison transfer would help
him to get out of prison sooner so that he could return to being a father.
¶ 48 Under section 1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2022)), a parent
may be found unfit for failure to maintain a reasonable degree of interest, concern, or responsibility
as to the child’s welfare. In assessing this ground of unfitness, a court considers the parent’s efforts
to visit and maintain contact with the child, among other things such as inquiries into the child’s
welfare. In re B’yata I., 2014 IL App (2d) 130558-B, ¶ 31. The court focuses on the reasonableness
of the parent’s efforts, not their success. In re M.J., 314 Ill. App. 3d 649, 656 (2000). The parent’s
circumstances are relevant to the court’s analysis. In re M.I. V. J.B., 2016 IL 120232, ¶ 27; In re
B’yata I., 2014 IL App (2d) 130558-B, ¶ 31 (identifying relevant circumstances including
difficulty obtaining transportation and poverty). If personal visits with the child are impractical,
other methods of communication, such as letters, telephone calls, and gifts, may demonstrate
interest, concern, or responsibility. In re B’yata I., 2014 IL App (2d) 130558-B, ¶ 31. “Even
extreme circumstances that impede the parent’s ability to develop a relationship with the child do
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not excuse a complete lack of communication or interest in the child.” In re A.S.B., 293 Ill. App.
3d 836, 843-44 (1997).
¶ 49 We are mindful that a parent is not fit merely because they have demonstrated some interest
or affection toward the child; the interest, concern, or responsibility must be reasonable. In re
B’yata I., 2014 IL App (2d) 130558-B, ¶ 31. Completion of service plans may be evidence of a
parent’s interest, concern, or responsibility. Id. Further, as the plain language of the statute is
disjunctive—interest, concern, or responsibility—any of the three listed elements may be
considered individually as a basis for unfitness. Id.
¶ 50 The trial court’s finding on maintaining a reasonable degree of interest, concern, or
responsibility was not against the manifest weight of the evidence. It is undisputed that
respondent’s transfer to the Southwestern prison facility reduced his visitation with the minor
children from every three months to every six months. Respondent was aware that the transfer
would reduce visitation: Bailey testified that she explained the change in visitation to him.
Although respondent testified that he transferred because he wanted to get out of prison to be a
better father, the trial court did not credit that statement. Instead, it noted that “people want to get
out of prison,” and respondent’s first answer to why he requested the transfer was “for good time.”
The court also did not credit Bailey’s testimony regarding respondent’s extraordinary involvement
with the minor children, commenting that Bailey talked to respondent on average only once per
month and that “her bias *** was very, very clear.” We defer to the trial court’s credibility
determinations, and here, the determinations were reasonable.
¶ 51 In addition, although respondent asked his mother about the minor children, Berry testified
that he never contacted DCFS about them, whether about their welfare or about visitation. The
record does not show that he ever sent the minor children pictures or birthday cards, which would
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have demonstrated his interest or concern for them. Finally, despite respondent’s professed desire
to get out of prison soon to be a better dad, he received verbal reprimands and disciplinary
restrictions while in prison, demonstrating a lack of reasonable responsibility.
¶ 52 We appreciate that respondent’s incarceration limited his ability to demonstrate interest,
concern, or responsibility for the children. Nevertheless, his interest, concern, or responsibility had
to be reasonable under his circumstances. Here, respondent chose to forgo more frequent visitation
with the minor children for what the trial court believed to be his own benefit, he never inquired
about the minor children to DCFS, and there was no evidence that he communicated with the minor
children outside of scheduled visitation. Under these facts, the trial court’s finding of unfitness
was reasonable.
¶ 53 As any one ground of unfitness is sufficient to affirm the finding (In re Nevaeh R., 2017 IL
App (2d) 170229, ¶ 20), we affirm the finding of unfitness based on respondent’s failure to
maintain a reasonable degree of interest, concern, or responsibility as to the minor children’s
welfare.
¶ 54 B. Motion to Dismiss
¶ 55 Respondent additionally argues that the trial court erred in denying his section 2-619
motion to dismiss the State’s petition to terminate parental rights. He contends that subsections
1(D)(r) and 1(D)(s) of the Adoption Act (750 ILCS 50/1(D)(r), (s) (West 2022)) specifically deal
with the fitness of a parent when the parent is incarcerated, 4 and, because the State’s main
4 In pertinent part, section 1(D)(r) provides that a parent is an unfit person when the parent is
incarcerated at the time of the petition to terminate parental rights and, prior to the petition, had little or no
contact with the child or provided little or no support to the child, and the parent’s incarceration will prevent
the discharge of their parental responsibilities for more than two years after the filing of the petition; and
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argument for terminating his parental rights was his incarceration, the State was required to have
alleged only those grounds. He concludes that the State’s failure to do so warranted dismissal of
the petition.
¶ 56 The State responds that we should affirm the denial of respondent’s motion to dismiss
because respondent failed to provide a record of the hearing on the motion. The State continues
that, regardless of the lack of a proper record, the motion was properly denied because the State
was not required to seek an unfitness finding solely under sections 1(D)(r) and (s). Rather, it argues
that it had discretion on which grounds of unfitness to allege, and any one or more of the
enumerated grounds in section 1(D) are sufficient to support a finding of unfitness.
¶ 57 Respondent’s argument lacks merit, regardless of what was heard at the hearing on the
motion to dismiss, because the State was not required to proceed under any particular ground of
unfitness. See 750 ILCS 50/1(D) (West 2022) (“The grounds of unfitness are any one or more of
the following ***.”). An incarcerated parent may be found unfit on grounds other than sections
1(D)(r) and (s). See, e.g., In re Je. A., 2019 IL App (1st) 190467, ¶ 73 (explaining that incarceration
impeded the respondent’s progress toward reunification); In re Gwynne P., 346 Ill. App. 3d at 597
(affirming the trial court’s finding that the incarcerated respondent failed to make reasonable
efforts where the respondent did not attempt to participate in services available while incarcerated);
In re Interest of K.H., 2024 IL App (1st) 240569-U, ¶¶ 52-54 (finding that the respondent’s
incarceration did not preclude a finding that he failed to maintain a reasonable degree of interest,
concern, or responsibility, and the trial court’s finding was not against the manifest weight of the
section 1(D)(s) provides that the parent is incarcerated at the time of the petition, the parent has been
repeatedly incarcerated as a result of criminal convictions, and the parent’s repeated incarceration has
prevented the discharge of their parental responsibilities for the child.
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evidence). Thus, the State was not required to allege unfitness under sections 1(D)(r) or 1(D)(s),
let alone only those grounds, and the trial court did not err in denying respondent’s motion to
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.
This disposition was filed after the 150-day deadline (Ill. S. Ct. R. 311(a)(5) (eff. July 1, 2018))
for good cause in reaching consensus on the resolution of the appeal.
¶ 60 Affirmed.
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