NOTICE 2020 IL App (5th) 190436-U NOTICE Decision filed 02/25/20. The This order was filed under text of this decision may be NO. 5-19-0436 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
In re G.W.W., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Bond County. ) Petitioner-Appellee, ) ) v. ) No. 18-JA-3 ) J.W., ) Honorable ) Ronald R. Slemer, Respondent-Appellant). ) Judge, presiding. ________________________________________________________________________
JUSTICE CATES delivered the judgment of the court. Presiding Justice Welch and Justice Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s determinations that Father was unfit and that termination of his parental rights was in the minor’s best interests were not contrary to the manifest weight of the evidence.
¶2 Respondent, J.W. (Father), appeals the judgment of the circuit court of Bond
County terminating his parental rights to his minor child, G.W.W. For the following
reasons, we affirm.
¶3 G.W.W. was born on September 20, 2011, and is the biological child of Father and
A.W. (Mother). Mother’s parental rights were terminated on September 4, 2019, but she
1 is not a party to this appeal. Father is not the biological father of Mother’s other child,
G.B., who was born on July 21, 2010, and has been living with his maternal grandparents
(Grandparents) since September 2017.
¶4 On March 8, 2018, Father failed to send G.W.W. to school. On March 9, 2018,
G.W.W. came to school wearing dirty clothing, smelling strongly of cat urine, and
wearing shoes twice his size. On March 11, 2018, the Illinois Department of Children and
Family Services (DCFS) received a hotline call reporting the March 9, 2018, incident.
DCFS launched an investigation.
¶5 During its investigation, DCFS learned that Father had not sent G.W.W. to school
on March 12, 2018, because G.W.W. did not have any clean clothes and they were living
in a hotel. DCFS learned from Mother that Mother suffered an overdose on March 9,
2018, on pills given to her by Father. Mother reported to DCFS that illegal drugs were
kept in the hotel room and that Mother did not think G.W.W. was safe with Father
because Father hallucinates when he uses methamphetamine. Father told the investigator
that he and Mother went on a “partying frenzy” when they received their tax return.
When the investigator asked Father about G.W.W.’s whereabouts the preceding week,
Father indicated he was unable to remember details of the last several days. The DCFS
investigator reported that G.W.W. indicated that he goes with Father to get Father’s
“medicine.” G.W.W. stated his Father pulls up to a stop sign or a fire hydrant in either
Granite City or St. Louis, where Father hands men money and the men give Father pills.
G.W.W. reported that Father falls asleep after taking his “medicine,” and that G.W.W. is
2 unable to wake Father. G.W.W. stated he makes his own meals and watches television
while Father sleeps.
¶6 The State filed a petition for adjudication of wardship of G.W.W. and G.B. on
March 13, 2018, which was subsequently amended. The amended petition alleged
G.W.W. was neglected (1) pursuant to section 2-3(1)(b) of the Juvenile Court Act of
1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2018)) because his environment was injurious
to his welfare due to ongoing concerns regarding Mother and Father’s substance abuse
and ability to care for him; and (2) pursuant to section 2-3(1)(a) of the Act because Father
did not provide G.W.W. with the necessary care, including adequate food, clothing, and
shelter.
¶7 On March 13, 2018, the State filed a motion for temporary custody alleging that it
was a matter of immediate and urgent necessity for the protection of the minors that the
minors be placed in shelter care. On March 14, 2018, following a hearing, the trial court
found there was probable cause to believe the minors were neglected and entered an order
giving temporary custody of the minors to DCFS. The minors were placed in foster care
with Grandparents.
¶8 On April 13, 2018, the court conducted an adjudication hearing. The trial court
adjudicated G.W.W. neglected, finding the State proved by clear and convincing
evidence that G.W.W. suffered from a lack of support, education, and remedial care, as
defined by 705 ILCS 405/2-1(1)(a); and was in an environment that was injurious to his
welfare, as defined by 705 ILCS 405/2-3(1)(b). In a docket entry, the court noted that
Father was 28 minutes late to the hearing, arriving as the proceeding was finishing. The 3 court characterized Father’s behavior at the hearing as “erratic and odd” and ordered
Father to submit to a drug test. The results of Father’s urinalysis were positive for THC,
morphine, and fentanyl.
¶9 On April 21, 2018, Father was arrested and charged with drug-induced homicide,
a Class X felony. 720 ILCS 5/9-3.3 (West 2018). DCFS conducted an integrated
assessment of Father and, on May 24, 2018, instituted Father’s first service plan. Father’s
service plan required him to perform the following tasks: (1) complete a substance abuse
assessment and follow all recommendations in the assessment, (2) attend parenting
classes, and (3) complete a mental health assessment and follow all recommendations in
the assessment. On June 13, 2018, the court entered an order of disposition finding
G.W.W. was neglected and made him a ward of the court.
¶ 10 On June 26, 2019, the State filed a petition to terminate Father’s parental rights to
G.W.W. The State alleged Father was an unfit person, in that he had (1) failed to
maintain a reasonable degree of interest, concern, or responsibility as to the minor’s
welfare, (2) failed to make reasonable efforts toward the return of the minor to Father
within nine months after the adjudication of neglect, and (3) failed to make reasonable
progress toward the return of the minor to Father within nine months after the
adjudication of neglect.
¶ 11 On September 20, 2019, the court held a fitness hearing. During the hearing, the
State dismissed the first allegation of unfitness against Father. Following the presentation
of evidence, the court found by clear and convincing evidence that Father was an unfit
person for failing to make reasonable efforts to correct the conditions that were the basis 4 for removal of the minor during the nine-month period following the adjudication of
neglect (750 ILCS 50/1(D)(m)(i) (West 2018)), and for failing to make reasonable
progress toward the return of the minor in the nine-month period following the
adjudication of neglect (750 ILCS 50/1(D)(m)(ii) (West 2018)). The court then proceeded
to the best-interest hearing, after which the court took the matter under advisement. On
September 27, 2019, the court entered an order finding it was in G.W.W.’s best interests
that Father’s parental rights be terminated.
¶ 12 On appeal, Father argues that the trial court’s determinations that he was unfit and
that the termination of his parental rights was in the best interests of the child were
against the manifest weight of the evidence. We disagree.
¶ 13 Section 2-29 of the Act sets forth a two-step process for the involuntary
termination of parental rights. 705 ILCS 405/2-29(2) (West 2018). First, the State must
prove by clear and convincing evidence that the parent is an unfit person as defined by
the Adoption Act (750 ILCS 50/1(D) (West 2018)). In re J.L., 236 Ill. 2d 329, 337
(2010). If the trial court finds the parent to be unfit, the court must then determine
whether the State has proven, by a preponderance of the evidence, that it is in the child’s
best interest that parental rights be terminated. 705 ILCS 405/2-29(2) (West 2018); In re
D.T., 212 Ill. 2d 347, 367 (2004). During the second stage of the proceedings, the focus
of the court’s scrutiny shifts from the rights of the parents to the best interests of the
child. In re B.B., 386 Ill. App. 3d 686, 697 (2008).
¶ 14 The trial court’s decision to terminate parental rights involves factual findings and
credibility assessments which, on review, are accorded great deference. In re M.J., 314 5 Ill. App. 3d 649, 655 (2000). On appeal, the trial court’s findings of parental unfitness
and that termination of parental rights was in the child’s best interests will not be
disturbed unless they are contrary to the manifest weight of the evidence. In re R.L., 352
Ill. App. 3d 985, 998, 1001 (2004).
¶ 15 Determination of Unfitness
¶ 16 Here, the trial court concluded that the State had successfully proven two grounds
of unfitness against Father. The court found that Father failed to make reasonable efforts
to correct the conditions that were the basis for removal of the minor during the nine-
month period following the adjudication of neglect (750 ILCS 50/1(D)(m)(i) (West
2018)), and that he failed to make reasonable progress toward the return of the minor in
the nine-month period following the adjudication of neglect (750 ILCS 50/1(D)(m)(ii)
(West 2018)). The trial court’s finding of unfitness will stand if it is supported by any one
of the grounds set forth in section 1(D) of the Adoption Act. 750 ILCS 50/1(D) (West
2018); In re Gwynne P., 346 Ill. App. 3d 584, 590 (2004), aff’d, 215 Ill. 2d 340 (2005).
¶ 17 In this case, we begin our analysis by examining the trial court’s finding that
Father was unfit for failing to make reasonable progress toward the return of the minor in
the nine-month period following the adjudication of neglect (750 ILCS 50/1(D)(m)(ii)
(West 2018)). “Reasonable progress” is an objective standard, based upon the amount of
progress as measured from the conditions existing at the time of removal. In re Jacorey
S., 2012 IL App (1st) 113427, ¶ 21. “Reasonable progress” requires a measurable or
demonstrable movement toward the goal of reunification. In re Jacorey S., 2012 IL App
(1st) 113427, ¶ 21. A parent has made “reasonable progress” when the trial court can 6 conclude that it will be able to return the child to parental custody in the near future. In re
Jacorey S., 2012 IL App (1st) 113427, ¶ 21. If a service plan has been established to
correct the conditions that were the basis for the removal of the child from the parent, a
“failure to make reasonable progress” includes a parent’s failure to substantially fulfill his
obligations under the service plan. 750 ILCS 50/1(D)(m) (West 2018). The trial court
should only consider evidence occurring during the relevant nine-month period mandated
in section 1(D)(m) in determining whether a parent has made reasonable progress toward
the return of the child. In re D.T., 2017 IL App (3d) 170120, ¶ 18.
¶ 18 We hold the trial court did not err in finding that Father was unfit under section
1(D)(m)(ii) of the Adoption Act for failing to make reasonable progress toward the return
of G.W.W. during the nine-month period following the adjudication of neglect between
April 13, 2018, and January 13, 2019. The evidence indicates that G.W.W. was brought
into care on March 14, 2018, due to unsanitary living conditions and the exposure to both
Mother and Father’s substance abuse. The caseworker, Beverly Case (Case), reported
G.W.W. did not have adequate clothing, slept on the floor, and was receiving inadequate
supervision.
¶ 19 Father’s first service plan was created on May 24, 2018, at which time Father was
incarcerated in the Bond County jail. Case testified at the unfitness hearing that Father
was incarcerated in the Bond County jail from April 21, 2018, to November 28, 2018. No
services were offered at the Bond County jail. Therefore, Father made no progress on his
service plan during this period of incarceration. After Father pled guilty to a reduced
charge, Father was transferred to the Illinois Department of Corrections (DOC), the 7 Graham Correctional Center. On December 2, 2018, Father was then transferred to the
Jacksonville Correctional Center.
¶ 20 The evidence indicates that Father began a substance abuse treatment program
while he was incarcerated at the Graham Correctional Center, which was during the
relevant nine-month period following the adjudication of neglect. DOC reported,
however, that Father did not complete Phase I of a substance abuse treatment program,
which is a 90-day orientation phase, at the Jacksonville Correctional Center until January
28, 2019. DOC reported that, as of July 17, 2019, Father was enrolled in Phase II of the
substance abuse treatment program, which focused on core skills and principles of
recovery, and enrolled in mandatory adult basic education classes. Father was scheduled
to complete Phase II on September 10, 2019, at which point he would have moved on to
Phase III, which focused on parenting. DOC reported that Father had not received a
mental health evaluation because the evaluation was “re-done once released anyway [so]
they focus their caseload on offenders that need immediate and current care and
services.”
¶ 21 Father testified at the unfitness hearing that he was currently in the adult basic
education program and in Phase III of the substance abuse treatment program. Father
stated his current projected outdate was December 17, 2019, but that his scheduled
release date would be November 10, 2019, once he completed the adult education
program.
¶ 22 Case testified that Father was currently working all of the services available to
him. The undisputed evidence, however, was that from April 13, 2018, to January 13, 8 2019, the nine-month period following the adjudication of neglect, Father had completed
no services and was rated unsatisfactory on each of the tasks in his service plan.
¶ 23 On appeal, Father argues the trial court erred in finding he failed to make
reasonable progress toward the return of the minor because no services were available to
Father while he was in the Bond County Jail and Father enrolled in services as soon as
they became available to him. The time a parent spends incarcerated is included in the
nine-month period during which reasonable progress must be made. In re Nevaeh R.,
2017 IL App (2d) 170229, ¶ 21. While incarceration itself is not evidence of a failure to
make reasonable progress, a parent’s incarceration may impede his or her progress
toward the goal of reunification. In re Nevaeh R., 2017 IL App (2d) 170229, ¶ 21. But, as
already noted, “reasonable progress” is an objective standard, unconcerned with a
parent’s individual efforts and abilities. In re Nevaeh R., 2017 IL App (2d) 170229, ¶ 21.
As such, even if Father’s incarceration impeded his progress toward reunification,
“reasonable progress” requires an objective analysis of whether Father made a
measurable or demonstrable movement toward reunification by correcting the conditions
that were the basis for removal.
¶ 24 In this case, it is undisputed that Father failed to make any measurable movement
toward reunification during the nine-month period following the adjudication of neglect.
The fact that Father was incarcerated during this period does not exempt him from the
statutory requirements. Based upon the evidence presented, the trial court’s finding that
Father was unfit for failing to make reasonable progress toward the return of G.W.W.
was not against the manifest weight of the evidence. Because a finding of unfitness will 9 stand if supported by any one of the grounds set forth in section 1(D) of the Adoption
Act, we need not address the trial court’s finding that Father was also unfit for failing to
make reasonable efforts to correct the conditions that were the basis for removal.
¶ 25 Determination of the Minor’s Best Interests
¶ 26 Once a parent has been found to be unfit, the parent’s rights yield to the child’s
best interests. In re Tashika F., 333 Ill. App. 3d 165, 170 (2002). Again, this court will
not reverse the trial court’s determination as to the child’s best interests unless it is
contrary to the manifest weight of the evidence. In re R.L., 352 Ill. App. 3d at 1001.
¶ 27 In determining the best interest of the child, the statute requires the court to
consider certain enumerated factors in the context of the child’s age and developmental
needs. 705 ILCS 405/1-3(4.05) (West 2018). These factors include (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 the
familial, cultural, and religious ties; (d) the child’s sense of attachments, which includes
where the child actually feels love, attachment, and a sense of being valued, the child’s
sense of security and familiarity, the continuity of affection for the child, and 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 10 405/1-3(4.05) (West 2018). The trial court’s best-interests determination does not need to
contain an explicit reference to each of these factors. In re Tajannah O., 2014 IL App
(1st) 133119, ¶ 19.
¶ 28 On appeal, Father argues the trial court erred in finding that it was in G.W.W.’s
best interests that Father’s parental rights be terminated because he and G.W.W. are
bonded, Father has accepted his addiction issues, and he continued to work all services
available to him while incarcerated. Father contends his testimony at the hearing wherein
he recognized that G.W.W. needs to continue his relationship with Grandparents and his
sibling G.B. demonstrated that Father will place G.W.W.’s needs before his own.
¶ 29 Although Father began working services once they became available to him, it is
undisputed that he had not completed all of the required services at the time of the
hearing. Also, while Father acknowledged his addiction at the hearing, Father minimized
his level of addiction and the effects his addiction had on G.W.W. Specifically, Father
denied that G.W.W. was living in substandard conditions when he was taken into
protective custody, asserting that G.W.W. was “fine” and had adequate clothing and
food. Father asserted he had been a “functioning” drug addict, who had continued to
work and remained capable of caring for G.W.W. while Father was using. At the hearing,
Father denied they were living in the hotel when G.W.W. was taken into protective
custody, asserting they had been there only two days and had gone swimming while at
the hotel. Father denied G.W.W.’s detailed reports to DFCS that when Father went to buy
drugs, he had taken G.W.W. along. Father asserted that G.W.W. ate “normally,” in
contradiction to G.W.W.’s reports that he ate from a can and frequently had to feed 11 himself while Father was in an unrousable stupor after taking “his medicine.” This
testimony by Father suggests that he does not appreciate G.W.W.’s basic needs, and it
does not bode well for Father’s willingness or ability to provide for G.W.W.’s needs in
the future.
¶ 30 The State presented evidence at the best-interest hearing indicating that G.W.W.
was being fostered by Grandparents, and had resided with them since March 2018,
immediately following his removal from Father’s custody. Grandparents have been
continuously caring for G.B., the minor’s half-brother, since September 2017.
¶ 31 Grandmother testified she had been concerned about the welfare of G.W.W. and
G.B. before they came into her care because the children were not properly dressed or
fed, and it did not appear that Mother and Father were caring for the children.
Grandmother testified she was able to obtain custody of G.B. in September 2017, but
despite her calls to DFCS, she was not able to obtain custody of G.W.W. until March
2018. Grandmother testified when she went to the hotel to pick up G.W.W. in March
2018, G.W.W. told Grandmother that Father had gone to the city to “get medicine.”
G.W.W. had been left in the care of three individuals Grandmother believed to be drug
addicts. G.W.W. was wearing only a Halloween costume and did not have any
underwear, socks, or shoes. Grandmother testified that when G.W.W. initially came to
live with Grandmother, G.W.W. would not eat normal food and insisted on eating food
directly from a can.
¶ 32 When he entered foster care, G.W.W. was behind in school and had to repeat
kindergarten. Grandmother testified G.W.W. was now doing well in school, was 12 interacting well with his peers, and had friends. Grandmother testified that she and
Grandfather have been foster parents in the past and they have three other adopted
children at home. Grandmother testified that G.W.W. and G.B. are very close, and that
G.W.W. has been integrated into the family. G.W.W. reported wanting to stay in
Grandparents’ home with G.B. Grandmother testified that she and Grandfather love
G.W.W. and G.B., and they want to adopt both children.
¶ 33 Again, it is undisputed that Father failed to make the necessary progress to
complete the objectives of his service plan. Perhaps more importantly, the record reveals
that Father does not recognize the harm he inflicted upon his child. At the hearing, Father
repeatedly refused to take responsibility for his actions, going so far as to deny that
G.W.W. was living in substandard conditions when he was removed from Father’s care.
¶ 34 By contrast, G.W.W.’s needs were being met in his foster home, a family
placement he has been in since March 2018. G.W.W. is bonded to his foster family,
especially his half-brother, and his foster parents wish to adopt both children. Based on
the circumstances presented, the trial court’s determination that termination of Father’s
parental rights was in the best interests of G.W.W. is not contrary to the manifest weight
of the evidence.
¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court of Bond
County.
¶ 37 Affirmed. 13