In re J.C.

2021 IL App (2d) 210306-U

Opinion

2021 IL App (2d) 210306-U No. 2-21-0306 Order filed November 3, 2021

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 J.C., S.C. and G.C., Minors ) Appeal from the Circuit Court ) of Boone County. ) ) Nos. 18-JA-7 ) 18-JA-8 ) 18-JA-9 ) ) Honorable (The People of the State of Illinois, Petitioner- ) Janet R. Holmgren, Appellee v. Juan C., Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Justices McLaren and Schostok concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s finding of unfitness pursuant to section 1(D)(m)(ii) of the Adoption Act based on respondent’s conduct during the first nine-month period following the adjudication of neglect.

¶2 On October 11, 2018, the trial court adjudicated the children, J.C. (born in 2013), S.C.

(born in 2015), and G.C. (born in 2017), neglected. Respondent, Juan C., had been charged with

first-degree murder for the stabbing death of the children’s mother, K.A. At all times relevant,

respondent has been in jail pending an outcome in the criminal case. Nearly eight months

following the adjudication of neglect and, thus, eight months into the first nine-month period 2021 IL App (2d) 210306-U

following the adjudication of neglect, the trial court changed the goal from reunification to

substitute care pending determination of parental rights.

¶3 On May 13, 2021, after the completion of four nine-month periods and upon hearing the

State’s petition, the trial court terminated respondent’s parental rights. The court found respondent

to be unfit under section 1(D)(m)(ii) of the Adoption Act, determining that respondent failed to

make reasonable progress toward the return of the children during each of the nine-month periods

following the adjudication of neglect. 750 ILCS 50/1(D)(m)(ii) (West 2018). The court further

determined that it was in the children’s best interest to terminate respondent’s parental rights.

¶4 Respondent now appeals the finding of unfitness only, raising both a question of statutory

interpretation and a sufficiency claim. We reject respondent’s arguments. We focus on the first

nine-month period, as the failure to make reasonable progress during any one of the nine-month

periods is a sufficient basis upon which to terminate respondent’s parental rights. See id. We

determine that respondent can be found unfit under section 1(D)(m)(ii), which measures a parent’s

reasonable progress toward the return of the child, even though the trial court changed the goal

eight months into the first nine-month period from return home to substitute care. We also

determine that the trial court’s finding of unfitness was not against the manifest weight of the

evidence. Accordingly, we affirm.

¶5 I. BACKGROUND

¶6 A. Initial Proceedings

¶7 On July 13, 2018, respondent and K.A. engaged in a physical altercation resulting in K.A.’s

death by stabbing. Respondent also suffered stab wounds and was unconscious when police

arrived but was subsequently revived and sent to the hospital. Respondent’s wounds were thought

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to be self-inflicted. The three minors were found in a back bedroom. They were home when the

stabbing occurred. Respondent was ultimately arrested and charged with first-degree murder.

¶8 On July 17, 2018, the State filed neglect petitions on behalf of the three children, alleging

that their environment was injurious to their welfare. 705 ILCS 405/2-3(1)(b) (West 2018). The

trial court found probable cause of neglect. It entered a temporary custody order to the Department

of Children and Family Services (DCFS), authorized DCFS to place the minors in care, and

ordered that any visitation between respondent and the minors be supervised.

¶9 On August 2, 2018, the trial court held a status hearing. There, the court specified that

DCFS was authorized to place the minors in relative care or traditional foster care.

¶ 10 On August 8, 2018, DCFS, who had temporary custody of the children, determined that

visitation between respondent and the children was not appropriate. The agency noted that

respondent was in jail and was charged with first-degree murder for the death of the children’s

mother, the children were very young, and the children were traumatized. The issue of visitation

would be reassessed in the future. In the meantime, respondent would be permitted to write the

children letters and, if the content was appropriate, the agency would deliver them to the children.

¶ 11 B. Proceedings Occurring During the First Nine-Month Period: October 11, 2018, to July 11, 2019

¶ 12 1. Adjudicatory Hearing

¶ 13 On October 11, 2018, the trial court conducted the adjudicatory hearing. The State called

Sergeant Edward Kriegar of the Boone County Sheriff’s office to testify to the July 13, 2018, crime

scene. The court determined that Kriegar’s testimony established by a preponderance of the

evidence that a serious incident of domestic violence had occurred in the children’s home. The

court noted that there had been no sign of forced entry into the home and that the circumstance of

respondent being found unconscious on top of K.A. led to the reasonable conclusion that the

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altercation had been between respondent and K.A. only. The court further determined that the

children were present at the time of the incident, which placed them at risk of harm. The court

adjudicated the minors neglected.

¶ 14 2. Dispositional Hearing

¶ 15 On December 6, 2018, the trial court conducted the dispositional hearing. The State

stipulated to reports issued by the agencies with whom DCFS worked, the Children’s Home and

Aid Society and the court appointed special advocate (CASA). Those reports provided as follows.

In a September 3, 2018, report, respondent stated that he “did what he did” (i.e., kill K.A.) to

protect the children. K.A. appeared to be in an “altered” state at the time. Respondent himself

had been drinking and taking Tylenol on the day of the incident. Respondent entered into a

romantic relationship with K.A. while in a stepfather relationship to her. (Separately, respondent’s

older biological daughters, not at issue in this case, were currently accusing him of sexual abuse.)

Based on reports of drug use during the incident and early romantic interactions with K.A. that

were inappropriate, DCFS recommended that respondent complete a substance abuse evaluation

and a sex offender evaluation. Although respondent had been given permission to write the

children letters, “[n]o letter [has] been written by [respondent] to this day.” A September 24, 2018,

report showed that respondent completed the integrated assessment. The information given by

respondent during the assessment was “highly suspect.” For example, respondent reported that he

met K.A. on the street when she was 22 years old. However, other family members had confirmed

that respondent had been in a stepfather relationship with K.A. since she was one year old, and

they suspected that he groomed her for a romantic relationship. Caseworkers viewed pictures of

respondent standing beside K.A. at her high school graduation when she was 18 years old.

Respondent was reported to be very controlling, and K.A. sought an order of protection against

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respondent the day before her death. A November 28, 2018, report stated that DCFS continued to

recommend no visitation with the father. Finally, a December 6, 2018, report repeated much of

the same and again reported that respondent had not yet written letters to his children. Without

expressly referring to a permanency goal, the report provided that the prognosis toward

reunification was not good.

¶ 16 Respondent testified that he wished for certain members of his family to care for his

children, and he provided three names. The caseworker, Mercedes Sanchez, testified that one of

the individuals had been ruled out because she minimized the impact of the events on the children.

Sanchez did not have enough information to run a background check on a second individual, and

respondent had not before provided the name of the third individual. The court again adjudicated

the children neglected, finding respondent unfit, unwilling, or unable to care for them. It checked

a box that stated that the permanency goal, presumably reunification (with the prognosis being

poor), remained appropriate. It instructed that DCFS would have guardianship and custody, with

“discretion to place in foster care only.” We affirmed the dispositional order on appeal, rejecting

respondent’s argument that the court’s directive to place the children in foster care only was unduly

specific. In re J.C., 2019 IL App (2d) 190006-U, ¶ 26.

¶ 17 3. First Permanency Review Hearing

¶ 18 On May 30, 2019, the trial court conducted the first permanency review hearing. This

hearing occurred seven months and 19 days after the October 11, 2018, adjudication of neglect.

The parties stipulated to the agency reports. A May 16, 2019, DCFS permanency hearing report

rated respondent’s progress as unsatisfactory. Respondent was supposed to have completed a

mental health and substance abuse assessment. However, at a screening in January 2019, Sanchez

was uncertain of the validity of respondent’s answers. Sanchez wanted to check respondent’s

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answers against other documentation, such as medical records from the day of the altercation, but

respondent would not sign the consents necessary to release the records. Sanchez attempted to

visit respondent in jail each month. Beginning in January, respondent consistently refused to meet

with Sanchez, even though the goal set in the service plan required respondent to see or speak with

a caseworker “at least” monthly. Additionally, respondent had not engaged in parenting or

domestic violence classes. He was unable to secure an income or maintain stable housing.

However, he did begin sending letters to his children. In the report, DCFS recommended two,

inconsistent permanency goals. First, it recommended return home within 12 months. Later in the

report, it advised that the return home goal was not in the best interests of the children.

¶ 19 No additional evidence was submitted. The State rested on the reports. Respondent’s

counsel asked the court to find that respondent had made reasonable efforts and progress. He noted

that respondent had sent the children letters. He argued that, even if respondent were to complete

the various evaluations, he would have limited access to services while in jail. He further noted

that the medical records sought by the caseworker were likely available to the State in the criminal

proceedings: “I actually think there is a good possibility that those medical records and substance

abuse records that the agency is even looking for the State may already have those, so I’m—at

least in the criminal case, they are obtainable.”

¶ 20 The court determined that DCFS had made reasonable efforts. It determined that

respondent had not made reasonable efforts or reasonable progress, even accounting for

respondent’s status as an inmate in jail. It concluded: “I do not believe that the goal of return home

is appropriate under the circumstances. I would set a permanency goal at substitute care pending

the Court’s determination of parental rights.”

¶ 21 C. Proceedings Occurring During the Second, Third, and Fourth Nine-Month Periods: July 11, 2019, to October 11, 2021

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¶ 22 1. Second Permanency Review Hearing

¶ 23 On October 31, 2019, the trial court conducted a second permanency review hearing. The

court again found that respondent had not made reasonable efforts or reasonable progress. The

court explained: “I realize he is incarcerated and cannot undertake any services. It’s been

consistent until very recently that he blocked the caseworker from attempting to even engage in

treatment services and then tries to negotiate engagement.” The State asked the trial court if it

could delay filing a petition to terminate parental rights. It wanted to wait until a decision was

rendered in respondent’s criminal trial, which it believed would occur in Spring 2020. The trial

court agreed and, thus, the permanency goal remained substitute care pending determination of

parental rights.

¶ 24 2. Third Permanency Review Hearing

¶ 25 On June 4, 2020, the trial court conducted a third permanency review hearing. The court

determined that DCFS had made reasonable efforts. The court also determined that respondent

had not made reasonable efforts or reasonable progress, noting that he had not been cooperative or

engaged in any services. The parties reported that a decision had not yet been rendered in

respondent’s criminal case. The court expressed concern that the children remained in limbo but

continued the goal to be substitute care pending determination of parental rights.

¶ 26 3. Fourth Permanency Review Hearing

¶ 27 On November 5, 2020, the trial court conducted a fourth permanency review hearing. The

court again determined that DCFS had made reasonable efforts and that respondent had not made

reasonable efforts or progress. Respondent, for the first time, expressed a willingness to sign

various consents and releases that were necessary to initiate his participation in services. However,

he requested a protective order prohibiting any information that was subsequently obtained from

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being used in his criminal proceedings. The court agreed to enter a protective order. The court

again expressed concern that the children were in limbo as respondent’s criminal case remained

pending. It continued the goal to be substitute care pending determination of parental rights.

¶ 28 4. Fifth Permanency Review Hearing

¶ 29 On March 18, 2021, the trial court conducted a fifth permanency review hearing. The court

again determined that DCFS had made reasonable efforts and that respondent had not made

reasonable efforts or progress. The court acknowledged that respondent had “just finally” signed

the releases as requested by DCFS, but it explained that this alone did not provide a sufficient basis

to modify the goal of substitute care pending determination of parental rights.

¶ 30 D. Termination Proceedings

¶ 31 On January 7, 2021, the State moved to terminate parental rights. It alleged, inter alia, 1

that respondent was an unfit parent pursuant to section 1(D)(m)(ii) of the Adoption Act, in that he

failed to make reasonable progress toward the return of the children during any nine-month period

following the adjudication of neglect. 750 ILCS 50/1(D)(m)(ii) (West 2018). The nine-month

periods at issue were: (1) October 11, 2018, to July 11, 2019; (2) July 11, 2019, to April 11, 2020;

(3) April 11, 2020, to January 11, 2021; and (4) January 11, 2021, to October 11, 2021.

¶ 32 1. Unfitness

1 Initially, the State set forth a second ground of unfitness, depravity. 750 ILCS 50/1(D)(i)

(West 2018). However, the State dismissed that ground prior to the termination hearing,

presumably because it had not yet secured a conviction in the underlying criminal case. See, e.g.,

In re Brandon K., 2017 IL App (2d) 170075 (2017) (a conviction for first-degree murder creates a

rebuttable presumption that the parent is depraved).

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¶ 33 On May 13, 2021, the trial court conducted the termination hearing, beginning with the

unfitness portion. The State submitted the earlier agency reports. Sanchez was the only witness

to testify. She testified consistent with the information provided at the permanency review

hearings. In addition, she testified as follows.

¶ 34 As to the first nine-month period (and just prior thereto), Sanchez testified that, after DCFS

created the initial service plan, which was dated August 18, 2018, they brought it to respondent in

the jail. Sanchez read it page by page to respondent, and respondent was provided a Spanish-

speaking translator. Sanchez asked respondent to sign an acknowledgement that he had received

the service plan, and he refused. On January 8, 2019, DCFS generated a “graded report.” The

report graded respondent as unsatisfactory in many of his goals, such as cooperation, completion

of parenting classes, and assessments for substance abuse, domestic violence, and sex offender

status. Although respondent signed some consents necessary to initiate services, he did not date

them. He subsequently refused to sign the required consents such that his ability to be assessed

for services was stalled. Sanchez was not able to review the January 2019 graded report with

respondent because he refused to see her. Sanchez visited respondent monthly at the jail, and he

refused to see her from January 2019 to May 2019. On June 20, 2019, respondent agreed to see

Sanchez again. At that time, she was able to review the January 2019 graded report. However,

respondent refused to sign an acknowledgement that he had received the January 2019 report.

Sanchez then went over the new, May 2019 graded report. Respondent did not follow along, and

he refused to sign an acknowledgement that he had received that report. Respondent told Sanchez

that his criminal attorney told him not to sign anything. Sanchez informed respondent that these

forms were merely acknowledgements; she was not asking him to admit to any crime. Respondent

persisted in his refusal to sign the forms.

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¶ 35 As to both the second and third nine-month periods, respondent also refused to sign

consents necessary to be assessed for domestic violence services and medical releases necessary

to discuss the case with potential providers.

¶ 36 As to the third nine-month period, DCFS ceased in-person jail visits due to the COVID 19

pandemic. DCFS mailed the updated and graded reports to respondent and talked with respondent

over the phone. Respondent signed one consent. (Again, at the November 5, 2020, review hearing,

which occurred during the third nine-month period, respondent had indicated that he would do so.)

This consent enabled him to participate in an assessment with the Rosecrance substance abuse

treatment program.

¶ 37 As to both the third and fourth nine-month periods, respondent began treatment with

Rosecrance over the phone. Rosecrance then informed Sanchez that it was not able to provide

further services without records from respondent’s hospitalization, and respondent again refused

to sign the appropriate consents.

¶ 38 During cross-examination, Sanchez testified the jail did not provide substance abuse

services for respondent, but Rosecrance did. Other requirements of the service plan, such as

domestic violence services, and sex offender evaluations, were not provided by the jail. Similarly,

respondent would not be able to maintain housing, because he was in jail.

¶ 39 The trial court determined that respondent was unfit pursuant to section 1(D)(m)(ii). It

stated:

“Based upon the testimony of [Sanchez] regarding her interactions with

[respondent], as well as the documents, the service plans, *** and the other documents in

the pendency of this case, at the unfitness portion the [c]ourt finds that the evidence is

overwhelming that [respondent] has not made reasonable progress on any of his service

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plan goals, and I would agree with the State’s position that his refusal to execute consents

and cooperate with assisting the case workers in trying to link him with services was a

contributing factor to that lack of progress. So[,] by clear and convincing evidence, I do

find [respondent] unfit.” (Emphasis added.)

¶ 40 2. Best-Interests

¶ 41 The trial court continued to the best-interest hearing. There, the foster mother testified that

she is a homemaker and her husband is an auto-mechanic. The foster parents have two biological

children who are now adults living independently. They have cared for J.C., S.C., and G.C. in

their four-bedroom home since September 2018. There is one other foster child in the home, a

nine-year-old girl. All of the children play together and consider each other siblings. The foster

mother feels that she has provided all of the children with love, stability, trust, and fun. She and

her husband are willing to adopt the children and provide them with a permanent home. The trial

court found that the foster parents are “meeting and exceeding” the children’s needs. It determined

that it was in the best interest of the children to terminate respondent’s parental rights and allow

for adoption. This appeal followed.

¶ 42 II. ANALYSIS

¶ 43 On appeal, respondent challenges the trial court’s finding of unfitness under section

1(D)(m)(ii) of the Adoption Act. First, he argues that, as a matter of law, he cannot be found to

be unfit under section 1(D)(m)(ii), which measures a parent’s reasonable progress toward the

return of the child during a nine-month period following the adjudication of neglect, when the goal

set at the first permanency review hearing was something other than return home. Next, he argues

that the trial court’s finding of unfitness was against the manifest weight of the evidence. A failure

to make reasonable progress during any one of the nine-month periods following the adjudication

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of neglect is sufficient to sustain a finding of neglect on that ground (750 ILCS 50/1(D)(m)(ii)

(West 2018)) and we focus on the first nine-month period.

¶ 44 Parents have a fundamental liberty interest in the care, custody, and management of their

children. In re D.T., 212 Ill. 2d 347, 363 (2004). Nevertheless, the trial court has the authority to

terminate parental rights involuntarily; that authority is grounded in the Juvenile Court Act of 1987

(705 ILCS 405/1-1 et seq. (West 2018)) and the Adoption Act. In re J.L., 236 Ill. 2d 329, 337

(2010). The Adoption Act provides that it shall be construed in conjunction with the Juvenile

Court Act. 750 ILCS 50/2.1 (West 1998). The purpose of the Juvenile Court Act is to ensure that

the best interests of the minor, the minor’s family, and the community are served. In re C.N., 196

Ill. 2d 181, 209 (2001). It is in the interests of children to receive prompt, just, and final resolution

of their status rather than to remain in limbo. In re D.L., 191 Ill. 2d 1, 13 (2000).

¶ 45 The Juvenile Court Act provides a two-step process for the involuntary termination of

parental rights. 705 ILCS 405/2-29(2) (West 2018); J.L., 236 Ill. 2d at 337. At the first stage, the

court must find, by clear and convincing evidence, that the parent is unfit as defined by section

1(D) of the Adoption Act. J.L., 236 Ill. 2d at 337. Section 1(D) sets forth several discrete grounds

for finding a parent unfit. In re C.W., 199 Ill.2d 198, 217 (2002). Although the State may rely on

several grounds for unfitness in its petition to terminate parental rights, a finding adverse to the

parent on any one ground is sufficient to support a subsequent termination. Id. At the second

stage, the court must find that it is in the best interest of the child to terminate the parent’s rights.

Id. at 337-38. The standard of proof at the best interest stage is a preponderance of the evidence.

D.T., 212 Ill. 2d at 366.

¶ 46 In this case, respondent challenges the findings of unfitness pursuant to section 1(D)(m)(ii)

of the Adoption Act. That section provides:

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“(m) Failure by a parent *** (ii) 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 under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor

under Section 2-4 of that Act. If a service plan has been established as required under

Section 8.2 of the Abused and Neglected Child Reporting Act to correct the conditions that

were the basis for the removal of the child from the parent and if those services were

available, then, for purposes of this Act, ‘failure 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 and correct the conditions that brought the child into

care during any 9-month period following the adjudication under Section 2-3 or 2-4 of the

Juvenile Court Act of 1987. Notwithstanding any other provision, when a petition or

motion seeks to terminate parental rights on the basis of item (ii) of this subsection (m),

the petitioner shall file with the court and serve on the parties a pleading that specifies the

9-month period or periods relied on.” 750 ILCS 50/1(D)(m)(ii) (West 2018).

¶ 47 In C.N., the supreme court examined the reasonable progress provision at length. It began

by observing that “progress” is ordinarily defined as movement or advancement toward a goal.

C.N., 196 Ill. 2d at 211. It reasoned that the goal in section 1(D)(m) is “return of the child.” Id.;

see also 750 ILCS 50/1(D)(m)(ii) (West 2018) (reasonable progress toward the “return of the

child”). It then determined that the benchmark against which to measure a parent’s progress

toward the return of the child was as follows:

“[T]he benchmark for measuring a parent’s progress under section 1(D)(m) of the

Adoption Act must take into account the dynamics of the circumstances involved; the

reality that the condition resulting in removal of the child may not be the only, or the most

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severe, condition which must be addressed before custody of the child can be returned to

the parent; the appropriate role of service plans in addressing these conditions; and the

overriding concern that a parent’s rights to his or her child will not be terminated lightly.

Accordingly, we hold that the 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.

*** [C]ompliance with DCFS service plans is intimately tied to a parent’s progress toward

the return of the child, so much so, that where a service plan has been established to correct

the conditions that were the basis for the removal of the child from the parent, the failure

to make reasonable progress now includes the failure to ‘substantially’ fulfill the terms of

that service plan.” Id. at 216-217.

¶ 48 A service plan, in turn, “must reasonably relate to remedying the conditions that gave rise,

or that could give rise, to any finding of child abuse and neglect.” In re Neveah R., 2017 IL App

(2d) 170229, ¶ 23 (citing C.N., 196 Ill. 2d at 215). Additionally, mindful that a child is not to

remain in limbo forever, reasonable progress toward the return of the child means that a court will

be able to return the child to the parent’s custody in the near future. In re F.P., 2014 IL App (4th)

140360, ¶ 88. Reasonable progress is an objective standard. Id. It is not concerned with a parent’s

personal circumstances which may have impeded a parent’s ability to make reasonable progress.

Id. ¶ 89. As such, while incarceration alone is not evidence of failure to make reasonable progress,

incarceration can impede progress toward the goal of reunification. Nevaeh R., 2017 IL App (2d)

170229, ¶ 21.

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¶ 49 A. Statutory Interpretation

¶ 50 We now turn to the precise question of statutory interpretation posed by respondent: As a

matter of law, is the trial court precluded from finding respondent unfit under section 1(D)(m)(ii),

which measures a parent’s reasonable progress toward the return of the child, when the goal set at

the permanency review hearing is something other than return home? Looking at the first nine-

month period in particular, respondent argues that that his “progress or lack of progress [can] only

be measured during the first seven months [and 19 days] after adjudication because the goal which

began as return home at adjudication was changed to substitute care pending [determination] of

parental rights.” For the reasons that follow, we reject respondent’s argument.

¶ 51 When interpreting a statute, the primary objective is to ascertain and give effect to the intent

of the legislature. J.L., 236 Ill. 2d at 339. The best indicator of legislative intent is the language

of the statute. Id. The statute must be read as a whole, with each provision being construed in

connection with the other relevant provisions of the statute. Id.; In re A.P., 179 Ill. 2d 184, 197

(1997). When the statutory language is clear and unambiguous, the language will be given effect

as written, without resort to other principles of statutory interpretation. J.L., 236 Ill. 2d at 339.

We may not depart from the plain language of the statute “by reading into it exceptions, limitations,

or conditions the legislature did not express.” Id.

¶ 52 We also recognize that legislative intent may be ascertained by considering the reason and

necessity for the statute. A.P., 179 Ill. 2d at 195. Therefore, we should not interpret a statute so

as to defeat its purpose or yield an absurd or unjust result. Id. Statutory interpretation presents a

question of law, which we review de novo. J.L., 236 Ill. 2d at 340.

¶ 53 In support of his interpretation, respondent notes that the supreme court has defined

progress as “movement or advancement toward a goal” and has acknowledged that the goal

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identified by section 1(D)(m) is the return of the child. (Emphasis added.) C.N., 196 Ill. 2d at

211. Advancement toward that return is measured, in part, by a parent’s compliance with

appropriate service plans. Id. at 217. Respondent then points us to section 2-28(2) of the Juvenile

Court Act, which provides, in part, that “[w]here the court has selected a permanency goal other

than [reunification with the parents] the Department of Children and Family Services shall not

provide further reunification services *** but shall provide services consistent with the goal

selected.” (Emphasis added.) 705 ILCS 405/2-28(2) (West 2018). In respondent’s view, it would

be unfair to measure his progress toward reunification based on compliance with service plans

when the goal is no longer reunification.

¶ 54 Respondent’s argument is flawed, in that he reads a limitation into section 1(D)(m)(ii) of

the Adoption Act that does not exist. Additionally, respondent focuses on an isolated portion of

section 2-28(2) instead of reading the statute as a whole, and respondent’s interpretation runs

counter to the purpose of the Adoption Act.

¶ 55 Respondent reads a limitation into section 1(D)(m)(ii) of the Adoption Act that does not

exist. See J.L., 236 Ill. 2d at 339 (we may not depart from the plain language of the statute by

reading into it exceptions, limitations, or conditions that the legislature did not express). Section

1(D)(m)(ii) of the Adoption Act does not reference the permanency review hearing or the potential

goals that may be set at the permanency review hearing. If the legislature intended for section

1(D)(m)(ii) to apply only when the goal set at the permanency review hearing was return home, it

could have so stated. It did not. We will not read into section 1(D)(m)(ii) a limitation that does

not exist.

¶ 56 Moreover, section 2-28 does not support respondent’s interpretation when read as a whole.

The relevant provisions of section 2-28 provide:

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“(2) *** At the permanency hearing, the court shall determine the future status of

the child. The court shall set one of the following permanency goals:

(A) The minor will be returned home by a specific date within 5 months.

(B) The minor will be in short term care with a continued goal to return

home within a within a period not to exceed one year ***.

(B-1) The minor will be in short-term care with a continued goal to return

home pending a status hearing ***.

(C) The minor will be in substitute care pending court determination on

termination of parental rights.

(D) Adoption, provided that parental rights have been terminated.

(E) The guardianship of the minor will be transferred to an individual or

couple on a permanent basis ***.

(F) The minor over age 15 will be in substitute care pending independence

***.

(G) The minor will be in substitute care because he or she cannot be

provided for in a home environment due to developmental disabilities or mental

illness or because he or she is a danger to self or others ***.

In selecting any permanency goal, the court shall indicate in writing the reasons the

goal was selected and why the preceding goals were deemed inappropriate and not in the

child's best interest. Where the court has selected a permanency goal other than (A), (B),

or (B-1), the Department of Children and Family Services shall not provide further

reunification services, except as provided in paragraph (F) of this subsection (2), but shall

provide services consistent with the goal selected.

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***

If the permanency goal is to return home, the court shall make findings that identify

any problems that are causing continued placement of the children away from the home

and identify what outcomes would be considered a resolution to these problems. The court

shall explain to the parents that these findings are based on the information that the court

has at that time and may be revised, should additional evidence be presented to the court.

(4) *** When return home is not selected as a permanency goal:

(b) The State’s Attorney may file a motion to terminate parental rights of

any parent who has failed to make reasonable efforts to correct the conditions

which led to the removal of the child or reasonable progress toward the return of

the child, as defined in subdivision (D)(m) of Section 1 of the Adoption Act or for

whom any other unfitness ground for terminating parental rights as defined in

subdivision (D) of Section 1 of the Adoption Act exists.” (Emphases added.) 705

ILCS 405/2-28 (West 2018).

¶ 57 Section 2-28(2) makes clear that its focus is the placement of the child: “At the permanency

hearing, the court shall determine the future status of the child.” More importantly, section 2-

28(4)(b) expressly allows the trial court to do what the respondent says it cannot: find a parent

unfit under section 1(D)(m)(ii) of the Adoption Act for failure to make reasonable progress toward

the return of the child when return home has not been selected as the permanency goal. Respondent

does not address section 2-28(4)(b) in either his initial brief or his reply brief.

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¶ 58 In our view, section 2-28(4)(b) is dispositive. Further, we note that respondent’s

interpretation is inconsistent with the purpose of the Adoption Act. See A.P., 179 Ill. 2d at 195

(we should not interpret a statute so as to defeat its purpose). The purpose of the Adoption Act is

to ensure that the best interests of the minor, the minor’s family, and the community are served.

C.N., 196 Ill. 2d at 209. It is in the interests of the child to receive a prompt, just, and final

resolution of their status. D.L., 191 Ill. 2d at 13. This purpose would be thwarted were we to

release a parent from his obligation to make reasonable progress toward the return of his child, lest

he be found unfit, merely because the goal set at the permanency review hearing was no longer

return home. For example, there is no guarantee that the parent will be found unfit or that the goal

will not change at a subsequent permanency review hearing. Also, the State may choose to delay

the filing of the termination petition, as it did here. Again, section 2-28(4)(b) provides that when

the goal set at the permanency review hearing is something other than return home, the State may,

but is not required to, file a termination petition. 705 ILCS 405/2-28(4)(b) (West 2018). In any

of these scenarios, releasing the parent from an obligation to make reasonable progress at any time

prior to termination increases the risk that the child will be placed in continued limbo. We

conclude, as the State urges, that “the change in goal [at the permanency review hearing does] not

obviate respondent’s obligation to cooperate and meet the objective measurable progress toward

return requirement.”

¶ 59 Finally, we reject respondent’s argument that it is per se unfair to measure a respondent’s

progress toward reunification based on compliance with service plans when the goal is no longer

reunification. Compliance with service plans is a significant factor to consider, but it is not the

only factor. See, C.N., 196 Ill. 2d at 216-217 (failure to make reasonable progress includes the

failure to substantially fulfill the terms of the service plan). Rather, as noted, reasonable progress

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requires the court to “take into account the dynamics of the circumstances involved; the reality

that the condition resulting in removal of the child may not be the only, or the most severe,

condition which must be addressed before custody of the child can be returned to the parent; the

appropriate role of service plans in addressing these conditions; and the overriding concern that a

parent’s rights to his or her child will not be terminated lightly.” Id. at 216. The overarching

question is whether the court will be able to return the child to the parent’s custody in the near

future. F.P., 2014 IL App (4th) 140360, ¶ 88. This is an objective standard that is not concerned

with the personal circumstances of the parent. Id. ¶ 89.

¶ 60 The instant facts illustrate why it is not per se unfair to measure a respondent’s progress

toward reunification based on compliance with service plans when the goal is no longer

reunification. Here, it was respondent’s own failure to cooperate that prompted the goal change

at the first permanency review hearing. Respondent points us to nothing in his service plan that

changed as a result of the goal change. Sanchez continued to prompt respondent to sign consents

so that he could start services. While there may be a case in the future where it is unfair to measure

a parent’s progress toward reunification based on compliance with service plans when the goal is

no longer reunification, this is not that case.

¶ 61 B. Sufficiency of the Evidence as to the First Nine-Month Period

¶ 62 Finally, we address respondent’s sufficiency argument as to the first nine-month period,

October 11, 2018, to July 11, 2019. Respondent argues that the evidence does not support the

court’s finding that he failed to make reasonable progress toward the return of the children during

this period where his incarceration, pending criminal proceedings, and goal change at the first

permanency review hearing impaired his ability to cooperate and participate in services. Again,

while incarceration alone is not evidence of failure to make reasonable progress, incarceration can

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impede progress toward the goal of reunification. Nevaeh R., 2017 IL App (2d) 170229, ¶ 21. We

may reverse a trial court’s finding of unfitness pursuant to section 1(D)(m)(ii) if it is against the

manifest weight of the evidence. Id. ¶ 16. A finding is against the manifest weight of the evidence

if the opposite conclusion is clearly evident. Id.

¶ 63 Here, the trial court’s determination of unfitness pursuant to section 1(D)(m)(ii) is not

against the manifest weight of the evidence. To the contrary, the evidence supports the findings

that, during the first nine-month period, respondent did not provide truthful answers in response

to caseworkers’ questions, did not take advantage of opportunities offered, refused to sign several

acknowledgements and consents, and, most critically, refused to see his caseworker for five

months between January 2019 and May 2019. It was these shortcomings, rather than respondent’s

incarceration, underlying criminal case, or goal change that substantiated the trial court’s

determination that respondent had not made reasonable progress.

¶ 64 More specifically, when completing various assessments, Sanchez and other caseworkers

did not find respondent to be candid or truthful. For context, just prior to the adjudication of

neglect, respondent completed an integrated assessment. Respondent’s answers were deemed

“highly suspect,” as they blatantly contradicted facts known to be true by the service providers.

Respondent claimed to have met K.A. when she was 22 when, in fact, he had acted as her stepfather

since she was one year old. At a January 2019 screening, which occurred within the first nine-

month period, Sanchez again doubted the validity of respondent’s answers. Also, respondent did

not take advantage of basic opportunities; it was months before he wrote a letter to his children.

¶ 65 Respondent refused to sign several acknowledgments and consents. These consents were

necessary to begin services. For context, just prior to the start of the nine-month period, in August

2018, respondent refused to sign an acknowledgment that he had received his initial service plan,

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even though Sanchez visited him in jail and read it to him page by page. In May 2019, within the

first nine-month period, respondent again refused to sign an acknowledgement that he received

his graded report. Sanchez had also read this report aloud page by page. Additionally, respondent

refused to sign consents to release his medical records. These consents were necessary to begin

the substance abuse assessment and treatment.

¶ 66 Without citation to authority, respondent implies that signing the medical release could

have jeopardized his fifth amendment rights. While a respondent in a parental termination case

does have fifth amendment rights, these are not jeopardized when the service plan requires him to

participate in therapy that does not require him to confess to an underlying crime. In re A.W., 231

Ill. 2d 92, 107-08 (2008). The trial court reasonably determined that respondent’s refusal to sign

the release was due to a general unwillingness to cooperate rather than a desire to assert his fifth

amendment rights. Respondent’s counsel acknowledged at the first permanency review hearing

that the State in the criminal case likely already had access to the medical reports. Counsel did not

seek a protective order regarding other consents that respondent refused to sign until much later in

the proceedings. Moreover, respondent’s refusal to sign the medical release can be viewed in the

context of his August 2018 and May 2019 refusal to sign the acknowledgement of service plans,

which had no arguable bearing on his fifth amendment rights.

¶ 67 Most critically, respondent refused to see his caseworker for five months between January

2019 and May 2019. Respondent’s initial service plan required him to meet with, or at least speak

with, a caseworker once per month. Sanchez attempted to visit respondent in jail once per month,

but respondent refused her visits. This caused a significant delay in the progression of respondent’s

case. Sanchez could not review respondent’s January 2019 graded report with him until June 2019.

The trial court was informed of respondent’s lack of cooperation at the May 30, 2019, permanency

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review hearing. This, along with other information contained in the reports, was a factor in the

court’s decision to change the goal from return home to substitute care pending determination of

parental rights. It was respondent’s failure to cooperate and not the mere fact of his incarceration

that provided the basis for the trial court’s determination of no reasonable progress during the first

nine-month period. The trial court’s finding of no reasonable progress during the first nine-month

period was not against the manifest weight of the evidence.

¶ 68 III. CONCLUSION

¶ 69 For the aforementioned reasons, we affirm the termination of respondent’s parental rights.

¶ 70 Affirmed.

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