2024 IL App (4th) 240750-U NOTICE This Order was filed under FILED Supreme Court Rule 23 and is September 10, 2024 NO. 4-24-0750 Carla Bender not precedent except in the th limited circumstances allowed 4 District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re L.J., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Winnebago County Petitioner-Appellee, ) No. 22JA453 v. ) Nicole B., ) Honorable Respondent-Appellant). ) Erin B. Buhl, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) the trial court’s finding of parental unfitness was not against the manifest weight of the evidence and (2) respondent’s claims of ineffective assistance of counsel were either not properly before the court for review or not proven.
¶2 Respondent mother, Nicole B., appeals from the trial court’s judgment terminating
her parental rights to her daughter, L.J. (born September 2022). On appeal, respondent argues
(1) the attorneys appointed to represent her during the neglect and termination proceedings
rendered ineffective assistance and (2) the court’s finding of parental unfitness during the
termination proceedings is against the manifest weight of the evidence. For the reasons that follow,
we affirm the court’s judgment.
¶3 I. BACKGROUND
¶4 A. Neglect Proceedings ¶5 One week after the minor’s birth, the State filed a petition for adjudication of
wardship, alleging the minor was neglected in that she was subject to an environment injurious to
her welfare because respondent’s “mental health issues *** prevent[ed] her from properly
parenting, thus placing the minor at risk of harm.” The trial court appointed respondent counsel
and entered an order granting temporary custody to the Illinois Department of Children and Family
Services (DCFS). The minor was then adjudicated neglected in January 2023 and made a ward of
the court in February 2023.
¶6 B. Motion to Terminate Parental Rights
¶7 In November 2023, the State filed a motion to terminate respondent’s parental
rights, which it later amended. In the amended motion, the State alleged respondent was an unfit
parent in that she failed to (1) maintain a reasonable degree of interest, concern, or responsibility
as to the minor’s welfare (750 ILCS 50/1(D)(b) (West 2022)); (2) make reasonable efforts to
correct the conditions that caused the minor to be removed from her care during a nine-month
period following the adjudication of neglected, namely, February 20, 2023, to November 20, 2023
(id. § 1(D)(m)(i)); and (3) make reasonable progress toward the return of the minor to her care
during a nine-month period following the adjudication of neglected, again namely, February 20,
2023, to November 20, 2023 (id. § 1(D)(m)(ii)). The State further alleged it was in the minor’s
best interest to terminate respondent’s parental rights and appoint DCFS as guardian, with the
power to consent to adoption.
¶8 C. Fitness Hearing
¶9 In February 2024, the trial court conducted a fitness hearing. The State moved for
the court to take judicial notice of the pleadings and orders in the court file, which was granted
over no objection. The State also moved for the court to admit an integrated assessment completed
-2- on November 1, 2022, three service plans dated November 2, 2022, February 15, 2023, and June
22, 2023, and certified hospital records, all of which were granted over no objection. And last, the
State presented testimony from the caseworker who had been assigned to the minor’s case since
April 2023. Respondent did not present any evidence. The following is gleaned from the evidence
presented.
¶ 10 Shortly after the minor’s birth, the minor was brought into DCFS’s care due to
concerns with respondent’s ability to safely care for the minor. The integrated assessment noted
the following: “It was reported that [respondent] has developmental delays and diagnosed mental
health concerns that inhibit her ability to safely parent and protect [the minor]. [Respondent] has
had random and unpredictable outbursts which have prevented her from providing proper care for
[the minor].” The caseworker, on cross-examination, explained the minor came into DCFS care
due to an instability in respondent’s mental health and an incident where she kicked a hospital
nurse. The integrated assessment noted during an interview, respondent reported she accidently
kicked the nurse. The integrated assessment also noted respondent reported having been previously
diagnosed with “bipolar disorder, PTSD, ADD/ADHD, and insomnia” and respondent “continued
to experience mood dysregulation, anxiety, and traumatic stress symptoms.”
¶ 11 Respondent regularly attended in-person supervised visits with the minor after the
minor was brought into DCFS’s care. The visits occurred twice a week, and respondent would
often bring toys and clothing for the minor. Between April 2023 and June 2023, respondent began
missing visits, leaving visits early, and having behavioral issues during visits. As for the latter, the
caseworker testified to incidents where respondent reported urinating and defecating on herself
and then becoming upset when the case aides asked if she needed help. The caseworker also
testified to an incident in July 2023 where respondent threw a wastebasket at a case aide.
-3- Respondent’s visitations were reduced from twice a week to once a week in July 2023.
¶ 12 Around August 2023, respondent moved to Florida. The caseworker testified
respondent later reported her paramour had done “something to her,” and her “therapist” told her
to leave town “if she want[ed] to live.” The caseworker offered respondent assistance with
domestic-violence services, which respondent declined out of reported fear. Respondent inquired
about virtual visitations with the minor while she was in Florida, which the caseworker scheduled
for once a week. The caseworker estimated respondent missed approximately 25% of the virtual
visits. Respondent did not provide the minor with toys or clothing after leaving Illinois. The last
in-person visit occurred in August 2023. The caseworker testified, immediately prior to the fitness
hearing, she learned respondent was residing in Alabama.
¶ 13 As for recommended services, the caseworker testified respondent was informed of
the importance of completing services upon the minor being brought into DCFS’s care. The
dispositional order directed respondent to cooperate with DCFS and its cooperating agencies and
all recommended services. The caseworker testified she met with respondent upon being assigned
to the minor’s case and then “tr[ied] to set up—talk to her about her services” during visitations.
¶ 14 It was recommended respondent complete a mental-health assessment and
individual therapy. The caseworker testified the previous caseworker referred respondent for a
mental-health assessment, and respondent reported having seen a therapist. The caseworker did
not, however, have documentation of respondent completing the assessment or seeing a therapist
because respondent had not executed a proper release of information. The caseworker explained
respondent initially refused to sign a release and then later, when court-ordered, signed a release
“through the body of the release,” as opposed to on the signature line, which the provider refused
to accept. As a result, the caseworker referred respondent for another mental-health assessment in
-4- July 2023, which respondent did not complete. The caseworker testified she was not “aware of”
respondent engaging in any mental-health treatment as of the date of the fitness hearing.
¶ 15 It was recommended respondent complete a psychological evaluation. The
caseworker testified respondent attended an appointment for a psychological evaluation around
July 2023 but reported her attorney told her not to talk to the psychologist. After respondent’s
attorney and the caseworker corrected respondent’s misunderstanding, respondent talked to the
psychologist about “planes in the sky” and then left the appointment without completing the
evaluation. Respondent had not completed the evaluation as of the date of the fitness hearing.
¶ 16 It was recommended respondent cooperate with the agency assigned to monitor the
welfare of the minor. The caseworker testified respondent communicated with her through text
messages. She explained respondent would state her phone did not work or she could not talk when
the caseworker called her. The caseworker testified respondent would often avoid contact during
visitations by leaving early or reporting her attorney told her not to talk to the caseworker. After
respondent moved to Florida, she continued to avoid contact during visitations by reporting her
video and/or audio were no longer working when the caseworker attempted to speak with her. The
caseworker had to rely upon text messages to make contact with respondent.
¶ 17 It was recommended respondent complete a parenting program. The caseworker
testified the prior caseworker referred respondent for a parenting assessment. Respondent attended
the assessment but had a “meltdown” and did not complete it. The provider indicated respondent
could not be seen again until she had undergone mental-health treatment. Respondent had not
completed a parenting program as of the date of the fitness hearing.
¶ 18 It was recommended respondent complete partner-abuse services. The integrated
assessment noted there were reports of respondent and her paramour arguing at the hospital
-5- following the minor’s birth and a report of respondent throwing a cup of water at her paramour.
The integrated assessment also noted respondent reported she had no concerns of power and
control or interpersonal violence in the relationship.
¶ 19 It was recommended respondent complete requested drug screenings. The service
plans noted respondent had stated “she can[ ]not pee due to her medications.” The service plans
also noted the agency had requested information from respondent’s doctor about the effects of her
medications.
¶ 20 The caseworker testified the concerns with respondent’s untreated mental health
and the possible resulting harm to the minor prevented respondent from receiving unsupervised
visitations with the minor.
¶ 21 After hearing recommendations and taking the matter under advisement, the trial
court issued an oral pronouncement of its decision. The court, after thoroughly reviewing the
evidence on the record, found respondent was an unfit parent for all the reasons alleged in the
State’s amended motion to terminate parental rights. The court noted, in part, the following:
“I am aware of [respondent’s] mental health struggles and
her disabilities; however, I find that it’s not an issue of the agency
failing to provide tailored or appropriate services for her based on
her mental health and her disabilities. I find that she has made a
conscious choice not to attend services, not to attend visitation[s],
and this has, quite frankly, thwarted the agency’s efforts.”
The court also noted, “It’s impossible for this Court to conclude, after reviewing all of the evidence
and testimony that was presented, that [the minor] can or will be returned home successfully to
[respondent] in the near future.”
-6- ¶ 22 D. Termination of Parental Rights
¶ 23 In April 2024, the trial court, after conducting a best-interest hearing and finding it
would be in the minor’s best interest to terminate respondent’s parental rights, entered a written
order terminating her parental rights. Thereafter, respondent filed a timely notice of appeal from
the court’s judgment terminating her parental rights.
¶ 24 This appeal followed.
¶ 25 II. ANALYSIS
¶ 26 On appeal, respondent argues (1) the attorneys appointed to represent her during
the neglect and termination proceedings rendered ineffective assistance and (2) the trial court’s
finding of parental unfitness during the termination proceedings is against the manifest weight of
the evidence. The State disagrees with respondent’s arguments.
¶ 27 A. Unfitness Finding
¶ 28 We begin with respondent’s challenge to the trial court’s unfitness finding.
Respondent argues the court’s finding is against the manifest weight of the evidence.
¶ 29 In a proceeding to terminate parental rights, the State must prove parental unfitness
by clear and convincing evidence. In re N.G., 2018 IL 121939, ¶ 28, 115 N.E.3d 102. A trial
court’s finding of parental unfitness will not be disturbed on appeal unless it is against the manifest
weight of the evidence. Id. ¶ 29. A finding is against the manifest weight of the evidence “only
where the opposite conclusion is clearly apparent.” Id.
¶ 30 The trial court found respondent was an unfit parent as defined in section
1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2022)). Section 1(D)(m)(ii)
states, in part, a parent will be considered an “unfit person” if he or she fails “to make reasonable
progress toward the return of the child to the parent during any [nine]-month period following the
-7- adjudication of neglected.” Id.
¶ 31 “Reasonable progress” has been defined as “demonstrable movement toward the
goal of reunification.” (Internal quotation marks omitted.) In re C.N., 196 Ill. 2d 181, 211, 752
N.E.2d 1030, 1047 (2001). This is an objective standard. In re D.D., 2022 IL App (4th) 220257,
¶ 38, 215 N.E.3d 302. The benchmark for measuring a parent’s progress toward reunification
“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.N., 196 Ill. 2d at 216-17.
This court has stated a parent has made reasonable progress when “the progress being made by a
parent to comply with directives given for the return of the child is sufficiently demonstrable and
of such a quality that the [trial] court, in the near future, will be able to order the child returned to
parental custody.” (Emphasis in original.) In re L.L.S., 218 Ill. App. 3d 444, 461, 577 N.E.2d 1375,
1387 (1991).
¶ 32 In determining a parent’s fitness based on reasonable progress, a trial court may
only consider evidence from the relevant time period. In re Reiny S., 374 Ill. App. 3d 1036, 1046,
871 N.E.2d 835, 844 (2007). Courts are limited to that period “because reliance upon evidence of
any subsequent time period could improperly allow a parent to circumvent her own unfitness
because of a bureaucratic delay in bringing her case to trial.” Id.
¶ 33 In this case, the relevant time period was February 20, 2023, to November 20, 2023.
During that period, the evidence showed an absence of progress with the recommended services.
In particular, the evidence showed, despite the fact the minor came into DCFS’s care because of
-8- concerns with respondent’s mental health, respondent was not engaging in the recommended
mental-health services. The absence of progress with the services ultimately prevented the trial
court from concluding it would be able to order the return of the minor to respondent’s custody in
the near future. We outright reject respondent’s suggestion on appeal that the recommended
services were superfluous and “not related to some parental short-coming.” Given the evidence
presented and the information gleaned therefrom, we find the court’s unfitness finding based upon
respondent’s failure to make reasonable progress is not against the manifest weight of the evidence.
¶ 34 As only one ground for a finding of unfitness is necessary to uphold the trial court’s
judgment, we need not review the other grounds for the court’s unfitness finding. In re Z.M., 2019
IL App (3d) 180424, ¶ 70, 131 N.E.3d 1122. We do, however, commend the court for its detailed
oral pronouncement of its decision, which we find demonstrates the careful consideration it gave
to the issue of fitness.
¶ 35 B. Claims of Ineffective Assistance of Counsel
¶ 36 We turn next to respondent’s challenge to the performance of counsel. Respondent
argues the attorneys appointed to represent her during the neglect and termination proceedings
rendered ineffective assistance.
¶ 37 In proceedings under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.
(West 2022)), a parent has a statutory right to counsel. In re Br. M., 2021 IL 125969, ¶ 41, 182
N.E.3d 693 (citing 705 ILCS 405/1-5(1) (West 2016)). Included within the statutory right to
counsel is, by implication, a right to effective assistance. Id. ¶ 42.
¶ 38 When evaluating a claim of ineffective assistance, we apply the rubric set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Br. M., 2021 IL 125969, ¶ 43; In re A.P.-
M., 2018 IL App (4th) 180208, ¶¶ 37-44, 110 N.E.3d 1126. Under the Strickland rubric, a parent,
-9- to establish a claim of ineffective assistance, must show (1) counsel’s performance fell below an
objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. In re M.F., 326 Ill.
App. 3d 1110, 1119, 762 N.E.2d 701, 709 (2002). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” In re A.R., 295 Ill. App. 3d 527, 531, 693
N.E.2d 869, 873 (1998). A parent’s failure to satisfy either prong of the Strickland rubric precludes
a finding of ineffective assistance of counsel. A.P.-M., 2018 IL App (4th) 180208, ¶ 41.
¶ 39 First, with respect to respondent’s claim concerning the performance of her counsel
during the neglect proceedings, we are without jurisdiction to entertain respondent’s claim, as she
did not file a timely notice of appeal from the judgment adjudicating the minor neglected and
making the minor a ward of the court. See In re Leona W., 228 Ill. 2d 439, 456-57, 888 N.E.2d 72,
81 (2008) (finding the appellate court lacked jurisdiction to consider alleged errors made during
the abuse proceedings in an appeal from a judgment terminating parental rights); In re Ja. P., 2021
IL App (2d) 210257, ¶ 24, 191 N.E.3d 771 (“Even where a respondent alleges that she received
ineffective assistance of counsel during the adjudicatory phase of the proceedings, we categorically
lack jurisdiction to entertain such an argument in an appeal from an order terminating parental
rights.”). Respondent, in an attempt to overcome the jurisdictional timeliness hurdle, suggests the
United States Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000), allows
us to consider whether her counsel rendered ineffective assistance by failing to appeal said
judgment. However, even if we accepted respondent’s suggestion, we would still be without
jurisdiction because respondent’s notice of appeal did not identify the dispositional order, and a
dispositional order is not within the procedural progression of orders terminating parental rights.
See Ill. S. Ct. R. 303(b)(2) (eff. July 1, 2017) (providing the notice of appeal “shall specify the
- 10 - judgment or part thereof or other orders appealed from and the relief sought from the reviewing
court”); Ja. P., 2021 IL App (2d) 210257, ¶ 27 (“[I]t is clear that adjudicatory and dispositional
orders are not within the procedural progression of orders terminating parental rights.”).
¶ 40 Second, with respect to respondent’s claim concerning the performance of her
counsel during the termination proceedings, respondent has not proven her claim. Respondent
asserts counsel rendered ineffective assistance by failing to object to and eliciting hearsay from
the caseworker. Specifically, respondent contends counsel erroneously allowed or introduced
hearsay testimony related to the reasons for the minor being taken into DCFS’s care and her
(1) being advised of the importance of completing recommended services early in the case,
(2) having behavioral issues during visitations and assessments, and (3) moving to Alabama.
While respondent contends the testimony was inadmissible, she fails to explain why there is a
reasonable probability that, but for counsel’s allegedly deficient performance, the result of the
proceeding would have been different. Excluding the complained-of testimony, the other evidence
showed, despite the fact the minor came into DCFS’s care because of concerns with respondent’s
mental health, respondent was not engaging in the recommended mental-health services. Given
this evidence, we are not convinced there is a reasonable probability the result of the hearing would
have been different had respondent’s counsel objected to and/or did not elicit the complained-of
testimony.
¶ 41 III. CONCLUSION
¶ 42 We affirm the trial court’s judgment.
¶ 43 Affirmed.
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