In re M.G.

2023 IL App (4th) 230613-U

• Court: Appellate Court of Illinois
• Decided: October 27, 2023
• Docket: 4-23-0613
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 230613-U This Order was filed under FILED October 27, 2023 Supreme Court Rule 23 and is NO. 4-23-0613 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

In re M.G., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Winnebago County Petitioner-Appellee, ) No. 23JA18 v. ) Mark G., ) Honorable Respondent-Appellant). ) Francis M. Martinez, ) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Presiding Justice DeArmond and Justice Knecht concurred in the judgment.

ORDER

¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed, concluding no issue of arguable merit could be raised on appeal.

¶2 In February 2023, the State filed a petition, pursuant to the Juvenile Court Act of

1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2022)), alleging M.G., the child of respondent, Mark

G., and Melanie M., was a neglected minor. Melanie is not a party to this appeal, and we address

the facts relating to Melanie only to the extent they are relevant here. Following an adjudicatory

hearing, the trial court found the State proved its petition by a preponderance of the evidence. The

case proceeded immediately to a dispositional hearing, after which the court determined: (1) it was

in M.G.’s best interest to be made a ward of the court; (2) respondent and Melanie were unfit,

unwilling, or unable to care for M.G.; and (3) the Illinois Department of Children and Family

Services (DCFS) would be granted guardianship and custody of M.G. ¶3 Respondent timely appealed, and this court appointed counsel to represent him.

Counsel now moves to withdraw from his representation of respondent, pursuant to Anders v.

California, 386 U.S. 738 (1967), contending “he cannot in good faith make a non-frivolous

argument for reversal.” We agree, grant counsel’s motion to withdraw, and affirm the trial court’s

judgment.

¶4 I. BACKGROUND

¶5 On February 1, 2023, the State filed a petition alleging M.G. was a neglected minor

because her environment was injurious to her welfare. See 705 ILCS 405/2-3(1)(b) (West 2022).

At the shelter care hearing held the same day, both respondent and Melanie were present. See id.

§ 2-10 (defining the nature of a shelter care hearing). At the hearing, respondent expressed a desire

to proceed pro se. The trial court admonished respondent on the risks of proceeding pro se, and

after these admonishments, respondent persisted in his desire to represent himself. The court then

permitted respondent to represent himself in the proceedings. After hearing evidence and

argument, the court found “the existence of probable cause, urgent and immediate necessity to

remove the minor and reasonable efforts [to prevent the minor’s removal] could not have been

made given the circumstances.”

¶6 Two days later, the State filed an amended petition, alleging M.G.’s environment

was injurious to her welfare in the following ways: (1) Melanie’s substance abuse issues prevented

her from properly parenting; (2) M.G. lived in a home where methamphetamine was being

distributed; (3) methamphetamine was located inside the home, in an area accessible to M.G.;

(4) domestic violence was occurring in M.G.’s presence; and (5) respondent’s mental health issues

prevented him from properly parenting.

¶7 A. Adjudicatory Hearing

-2- ¶8 Before the adjudicatory hearing began, Melanie stipulated to count I of the petition

and waived her right to a hearing. At the outset, the following exhibits were admitted by the State,

without objection by respondent: (1) respondent’s medical records from Swedish American

Hospital; (2) certified copies of prior indicated reports; (3) certified copies of petitions for orders

of protection in Winnebago County case Nos. 20-OP-602 (respondent v. Melanie), 22-OP-2412

(Melanie v. respondent), 23-OP-468 (respondent v. Melanie), and 23-OP-469 (Melanie v.

respondent); (4) a certified copy of a petition for an order of protection in Winnebago County case

No. 21-OP-533, the petitioner being an individual named Fry, who was not a party to the

proceedings in the trial court, against respondent; (5) certificates of conviction for Melanie in

Winnebago County case Nos. 15-CF-367 and 10-CF-1632; and (6) criminal complaints against

respondent in Winnebago County case Nos. 22-CF-2575, 22-CM-1732, 22-CM-1733,

22-CM-1657, 22-CF-1240, and 22-CF-273. Additionally, over respondent’s objection, the State

admitted two additional exhibits: certified copies of petitions for orders of protection in Winnebago

County case Nos. 23-OP-787 (Sebright v. respondent) and 23-OP-788 (Sebright v. respondent).

(Sebright was not a party to the proceedings in the trial court.) Following the admission of this

evidence, the State presented testimony from two witnesses.

¶9 1. Inspector Adam Mears

¶ 10 Inspector Adam Mears, a police officer assigned to the Illinois State Police,

executed a search warrant on January 31, 2023, at the home Melanie resided in. Before obtaining

the warrant, Mears performed surveillance on the residence and a “trash recovery.” During the

trash recovery, he located “evidence of narcotics as well as evidence of possible identity theft,”

along with mail for Melanie and respondent. When the warrant was executed, the officers located

Melanie, M.G., and two other adults inside the residence. During the search, the officers located

-3- 13 grams of methamphetamine, along with a container which tested positive for methamphetamine

in the kitchen, near children’s toys.

¶ 11 On cross-examination, Mears acknowledged he never observed respondent at the

residence, either before or during the execution of the warrant. Additionally, Mears knew there

was a valid order of protection preventing respondent from being at the residence “at the time that

[he] conducted the search warrant.”

¶ 12 2. Amanda Moren

¶ 13 Amanda Moren, an investigator for DCFS, took protective custody of M.G.

following the execution of the warrant at M.G.’s residence. Moren spoke with M.G. on February

1, 2023, and during that conversation, M.G. told Moren domestic violence was occurring within

the home. M.G. stated Melanie and respondent fought in her presence and respondent “yells very

loud at her, makes her afraid, and hurts her ears when he hells [sic].” During her investigation,

Moren learned respondent had mental health issues after she located police reports “about him

wanting to kill himself and being brought to the hospital for evaluation.” According to Moren,

DCFS did not believe it was appropriate to place M.G. with respondent because (1) the search

warrant was executed on his residence, (2) he had a history of mental health issues, and (3) there

were reports of domestic violence between respondent and Melanie.

¶ 14 On cross-examination, Moren acknowledged there was an order of protection

preventing respondent from being at his residence “during the time period [in] which the raid

occurred.” However, M.G. told her respondent was at the residence on January 31 but left before

the police arrived. Moren could not recall whether anyone else was present during her interview

with M.G. but insisted she followed DCFS procedures when conducting the interview. According

to Moren, M.G.’s statements during the interview were credible.

-4- ¶ 15 3. The Parties’ Arguments

¶ 16 After Moren’s testimony, the State rested. No other party presented any evidence.

¶ 17 The State asked the trial court to find it met its burden on all counts. In support of

its position, the State highlighted the evidence regarding (1) Melanie’s drug usage, (2) drugs being

located in the home M.G. resided in, (3) respondent’s medical records, which demonstrated a

history of mental illness, (4) M.G.’s statements regarding domestic violence between Melanie and

respondent, and (5) the multiple petitions for orders of protection, which demonstrated a history

of domestic violence between the parties.

¶ 18 During his argument, respondent conceded the State met its burden on counts I

through IV, but he argued it failed to meet its burden on count V. Respondent asserted his medical

records, which documented a mental health episode, were from two years prior and thus were not

relevant to his current ability to parent.

¶ 19 The trial court took the matter under advisement and informed the parties it would

announce its decision at the next court date.

¶ 20 4. Trial Court’s Findings

¶ 21 The trial court began by stating, “[T]he State’s burden is to prove one count, at least

one count or only one count of the petition. They don’t have a legal obligation to prove all five

counts in order to succeed.” It then found the State proved counts I through IV of its petition by a

preponderance of the evidence. The court dismissed count V after finding the State failed to meet

its burden on that count.

¶ 22 B. Dispositional Hearing

¶ 23 The matter proceeded immediately to a dispositional hearing. At the outset, the trial

court noted a report was filed in preparation for the hearing and inquired whether respondent had

-5- an opportunity to review it. Respondent stated he had an opportunity to review the report prior to

the hearing. The court took judicial notice of the report, the testimony from the adjudicatory

hearing, and the integrated assessment. Melanie’s counsel then interjected to state Melanie wished

to waive her right to the hearing and stipulate that “guardianship and custody [of M.G.] should

remain with DCFS.”

¶ 24 The trial court then asked respondent for his “input.” Respondent argued the report

was inaccurate and misleading in the following ways: (1) the petitions for orders of protection only

included allegations and there was no evidence the information contained within the petitions was

true, (2) although respondent owned the residence where the search warrant was executed, he was

not living there due to an active order of protection, which prevented him from residing in his

home, (3) the report infers respondent has a substance abuse problem without any evidence

supporting that inference, and (4) the report claimed respondent is an alcoholic, even though his

medical records prove he is allergic to alcohol.

¶ 25 After respondent’s argument, the trial court found (1) it was in M.G.’s best interest

to be adjudicated a ward of the court and (2) both parents were unfit, unwilling, or unable to care

for M.G. With respect to respondent, the court took judicial notice of respondent’s incarceration

and stated, “[Respondent] is unable. I do believe that he could be subject to perhaps a mental health

assessment to see if he does have a diagnosis. It does appear that if he is released and taking his

prescribed medication that his mental health issues are managed well.” Based on its finding, the

court granted custody and guardianship of M.G. to DCFS and ordered the parties to comply with

any service plans created by DCFS.

¶ 26 Respondent timely filed a notice of appeal and this court appointed counsel to

represent him. Counsel filed a motion to withdraw from his representation of respondent and

-6- supported his motion with a memorandum of law providing a statement of facts, a list of potential

issues, and arguments why those issues lack arguable merit. Notice of counsel’s motion was sent

to respondent’s last known address and this court granted respondent the opportunity to file a

response. Respondent failed to respond.

¶ 27 II. ANALYSIS

¶ 28 Counsel seeks to withdraw from his representation of respondent, contending there

are no meritorious issues for review. In support of his motion, counsel filed a memorandum of

law, which states he has considered whether there are any meritorious arguments the trial court’s

findings at the adjudicatory and dispositional hearings were against the manifest weight of the

evidence. Counsel determined such arguments would be frivolous and without merit. After

examining the record, the motion to withdraw, and counsel’s memorandum of law, we agree

respondent’s appeal presents no potentially meritorious issues for review and, accordingly, we

grant appellate counsel’s motion to withdraw and affirm the court’s judgment.

¶ 29 A. Adjudication of Wardship Procedure

¶ 30 “A proceeding for adjudication of wardship ‘represents a significant intrusion into

the sanctity of the family which should not be undertaken lightly.’ ” In re Arthur H., 212 Ill. 2d

441, 463 (2004) (quoting In re Harpman, 134 Ill. App. 3d 393, 396-97 (1985)). The Act sets forth

the procedure the trial court must follow in determining “whether a minor should be removed from

his or her parents’ custody and made a ward of the court.” In re A.P., 2012 IL 113875, ¶ 18.

¶ 31 After the State files a petition for adjudication of wardship, the trial court must hold

an adjudicatory hearing, where the State presents evidence in support of its petition. In re Jay. H.,

395 Ill. App. 3d 1063, 1068 (2009). The burden is on the State to prove the allegations in its petition

by a preponderance of the evidence. In re S.R., 349 Ill. App. 3d 1017, 1020 (2004). Our supreme

-7- court has determined “ ‘[t]he only question to be resolved at an adjudicatory hearing is whether or

not a child is [abused or] neglected, and not whether every parent is [abusive or] neglectful.’ ”

(Emphasis added.) In re Z.L., 2021 IL 126931, ¶ 59 (quoting Arthur H., 212 Ill. 2d at 467). “Only

a single ground for [abuse or] neglect need be proven, and thus when the circuit court has found a

minor [abused or] neglected on several grounds, we may affirm if any of the circuit court’s bases

*** may be upheld.” In re Faith B., 216 Ill. 2d 1, 14 (2005).

¶ 32 If the trial court determines the State has proven by a preponderance of the evidence

the minor is abused or neglected, the case proceeds to a dispositional hearing. Jay. H., 395 Ill. App.

3d at 1068. At the dispositional hearing, the court must answer two questions. First, “whether it is

in the best interests of the minor and the public that the minor be made a ward of the court” 705

ILCS 405/2-22(1) (West 2022). Second, if the minor is made a ward of the court, what is the proper

disposition for the minor, considering “the health, safety and interests of the minor and the public.”

Id. When answering the second question, the court must determine whether “the parents are unfit

or unable *** ‘to care for, protect, train[,] or discipline the minor or are unwilling to do so, and

that the health, safety, and best interest of the minor will be jeopardized if the minor remains in

the custody of *** her parents.’ ” In re J.W., 386 Ill. App. 3d 847, 856 (2008) (quoting 705 ILCS

405/2-27(1) (West 2006)). If the court determines the parents are unfit, unwilling, or unable and

the best interest of the minor would be jeopardized if the minor remains in the parents’ custody, it

may grant custody and guardianship of the minor to DCFS. Id.

¶ 33 B. Trial Court’s Finding M.G. Was Neglected

¶ 34 “On review, a trial court’s finding of [abuse or] neglect will not be reversed unless

it is against the manifest weight of the evidence.” A.P., 2012 IL 113875, ¶ 17. “A finding is against

the manifest weight of the evidence only if the opposite conclusion is clearly evident.” Id.

-8- ¶ 35 The evidence in this case supported the trial court’s determinations. Here, the court

heard testimony from Inspector Mears regarding the search warrant executed on the residence

respondent owned and Melanie lived in. During the execution of the warrant, officers located

methamphetamine in a place where it was accessible to M.G. This testimony was sufficient to

prove the allegations in counts II and III of the State’s petition. Investigator Moren also testified

about statements from M.G. regarding domestic violence between respondent and Melanie. The

State admitted multiple petitions for orders of protection filed by either respondent or Melanie

against the other. These facts were sufficient to prove the allegations in count IV. Based on a

review of the record, there was sufficient evidence presented for the court to determine M.G. was

a neglected minor by a preponderance of the evidence.

¶ 36 Counsel notes in his memorandum of law the trial court erred in admitting certain

evidence at the adjudicatory hearing. This evidence includes petitions for orders of protection filed

by individuals other than Melanie and respondent, petitions for orders of protection filed more than

three years prior to the adjudication, testimony from Investigator Moren about M.G.’s

uncorroborated statements, and criminal complaints against respondent. Although counsel

mentions this error, he concludes it was harmless and did not affect the outcome of the proceedings.

We agree.

¶ 37 Assuming, arguendo, the trial court erred in admitting this evidence, this court has

long held “[e]rrors in the admission of evidence may be deemed harmless where ample evidence

supported the court’s neglect finding.” In re J.C., 2012 IL App (4th) 110861, ¶ 29. As outlined

above, there was ample evidence presented to support the court’s finding M.G. was neglected by

a preponderance of the evidence. Therefore, even if this court were to disregard the evidence

counsel claims was admitted in error, there would still be sufficient evidence for the court to find

-9- M.G. was neglected.

¶ 38 Based on the evidence presented, we agree with counsel any argument the trial

court’s finding M.G. was a neglected minor was against the manifest weight of the evidence would

be meritless. The court’s determination is supported by the record and is not against the manifest

weight of the evidence.

¶ 39 C. Trial Court’s Finding Respondent Was Unfit

¶ 40 A trial court’s decision at a dispositional hearing “will be reversed only if the

findings of fact are against the manifest weight of the evidence.” J.W., 386 Ill. App. 3d at 856. “In

contrast to the adjudicatory hearing, where the court determines only whether the child is abused

or neglected, the wardship determination at the dispositional hearing ‘is based on the best interest

to the child when considering the totality of the circumstances surrounding the child’s life.’ ”

(Emphasis omitted.) In re M.D., 2022 IL App (4th) 210288, ¶ 64 (quoting In re D.S., 2018 IL App

(3d) 170319, ¶ 15). Because of this, “[t]he court may consider evidence of parental deficiencies in

the child’s environment beyond those alleged in the petition.” Id. ¶ 65.

¶ 41 In this case, the trial court found respondent was unable to care for M.G. due to his

incarceration. We note the court informed respondent of this at the outset of the hearing, before it

asked respondent for his “input.” Even after the court’s statement about his incarceration,

respondent presented no evidence or argument regarding a potential release date or why his

incarceration should not be considered when determining whether he was able to care for M.G.

Because the court properly considered respondent’s incarceration when determining respondent’s

ability to care for M.G., its decision is not against the manifest weight of the evidence.

¶ 42 Consequently, we agree with counsel any argument the trial court’s finding

respondent was unable to care for M.G. due to his incarceration was against the manifest weight

- 10 - of the evidence would be meritless. The court’s determination is supported by the record and not

against the manifest weight of the evidence.

¶ 43 III. CONCLUSION

¶ 44 Because respondent’s appeal presents no potentially meritorious issues for review,

we grant appellate counsel’s motion to withdraw and affirm the trial court’s judgment.

¶ 45 Affirmed.

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