In re N.K.-W.

2023 IL App (4th) 230590-U

• Court: Appellate Court of Illinois
• Decided: November 14, 2023
• Docket: 4-23-0590
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 230590-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0590 November 14, 2023 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 N.K.-W., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Tazewell County Petitioner-Appellee, ) No. 21JA288 v. ) Sharome K., ) Honorable Respondent-Appellant). ) David A. Brown, ) 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 the trial court did not violate respondent’s due-process rights because the court did not erroneously shift the State’s burden of proof to respondent during the best interest hearing.

¶2 In January 2023, the State filed a motion to terminate the parental rights of

respondent, Sharome K., as to his minor child, N.K.-W. In June 2023, the trial court granted the

State’s petition and terminated respondent’s parental rights. The court also terminated the

parental rights of N.K.-W.’s mother, Barbara A., who is not a party to this appeal. On appeal,

respondent argues the court erroneously shifted the burden of proof to him. Respondent asks this

court to reverse and remand for a new best interest hearing. He does not otherwise challenge the

court’s fitness or best-interest determinations. We affirm.

¶3 I. BACKGROUND ¶4 N.K.-W. was born on October 21, 2021. Five days later, the State filed a

shelter-care petition alleging N.K.-W. was neglected pursuant to section 2-3(1)(b) of the Juvenile

Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2020)) due to being in an

environment injurious to her welfare. Specifically, the State alleged respondent and Barbara were

found unfit and had not completed services that would restore them to fitness in another pending

juvenile neglect case.

¶5 In an October 2021 temporary custody order, the trial court found there was

probable cause to believe N.K.-W. had been neglected and placed her in the temporary custody

of the guardian administrator of the Illinois Department of Children and Family Services

(DCFS). In March 2022, the court entered an adjudicatory order, finding N.K.-W. was neglected.

The court also entered a dispositional order, which found respondent and Barbara unfit, made

N.K.-W. a ward of the court, and placed guardianship with DCFS.

¶6 In January 2023, the State filed a petition seeking termination of respondent’s

parental rights. The State alleged respondent was (1) unfit for failing to make reasonable

progress toward the return of N.K.-W. during the nine-month period from March 2, 2022,

through December 2, 2022 (750 ILCS 50/1(D)(m)(ii) (West 2022)) (count II); (2) depraved

based on three prior felony convictions (id. § 1(i)) (count III); and (3) unfit due to respondent’s

ongoing incarceration at the time the petition was filed and repeated past incarcerations (id.

§ 1(D)(s)) (count IV). (Count I alleged the unfitness of Barbara only.)

¶7 In May 2023, the trial court conducted a fitness hearing. Respondent was present

and in the custody of the Illinois Department of Corrections (DOC). Respondent denied the

State’s allegations against him. Following witness testimony and argument, the court found the

State proved respondent unfit by clear and convincing evidence as to counts II and III but failed

-2- to prove unfitness as to count IV. The State filed a motion to reconsider the court’s finding as to

count IV.

¶8 In June 2023, the matter proceeded to a best interest hearing. Respondent was

once again present and in the custody of DOC. The trial court first granted the State’s motion to

reconsider, finding the State proved respondent unfit as to count IV by clear and convincing

evidence.

¶9 Next, the trial court stated it had received and reviewed the best interest report

from the agency. The report indicated respondent failed to complete a drug and alcohol

assessment, consistently complete drug drops, complete a parenting course and a domestic

violence course, engage in individual counseling, regularly visit with N.K.-W., or obtain stable

employment. The last visit respondent had with N.K.-W. was on February 14, 2022. Respondent

was additionally untruthful about his continuing relationship with Barbara and repeatedly

contacted her by phone while he was incarcerated. The report concluded termination of parental

rights was in the best interest of N.K.-W. and recommended the permanency goal be changed to

adoption.

¶ 10 LaDonna Boken-Buckley, a FamilyCore caseworker, testified she had been

assigned to this case since N.K.-W.’s birth. Boken-Buckley confirmed respondent had not

regularly attended his visits with N.K.-W. She was also unsure of whether respondent and

N.K.-W. had formed a bond due to the length of time since their last visit. Respondent had not

requested visits or sent any gifts to N.K.-W. while he was in prison.

¶ 11 Tiffany R. testified she had been N.K.-W.’s foster mother since April 2022.

Tiffany confirmed she was currently in the process of adopting N.K.-W.’s sibling and expressed

her wish to also adopt N.K.-W. Tiffany described N.K.-W.’s home and social life, noting N.K.-

-3- W. regularly attends daycare, church, and family events. She stated N.K.-W. has friends at

daycare and in the neighborhood, and N.K.-W. has bonded with Tiffany’s husband and her

extended family members. N.K.-W. has her own bedroom in the foster home and enjoys playing

with toy dolls and strollers.

¶ 12 Respondent did not present evidence.

¶ 13 In its closing argument, the State argued all the relevant best interest factors

favored termination of parental rights. The guardian ad litem (GAL) asked the trial court to find

the State had met its burden. The GAL also asked the court to “find pretty much all of the factors

weigh heavily in favor of termination with the exception of the child’s wishes which would be

neutral given the child’s age.” Respondent’s counsel requested the court find the State had not

met its burden and to deny the State’s termination petition.

¶ 14 At the conclusion of closing arguments, the trial court made the following

findings:

“The Court has considered the evidence that was presented here today. I’ve

reviewed and considered the Best Interest Hearing Report. I’m familiar with the

record that was established during the trial portion of the fitness trial. I’m also

familiar with the general progress of the case having presided over it for the last

year and a half.

Taking all of that into consideration as well as evaluating the statutory best

interest factors, the Court would find as follows: I do find that at this point in time

with [respondent]’s incarceration and mom’s general lack of engagement in the

case that neither parent is likely to be able to provide any sense of permanency or

stability for [N.K.-W.] at any time in the near future. The child is coming up on

-4- two years of age and has spent the majority of her, the vast majority of her life in

substitute care including 14 or more months now I guess, 14 months basically

with the foster parents in the placement with her sibling.

The child’s physical safety and welfare, sense of attachment, security and

familiarity, continuity of affection, least disruptive placement, community ties

including daycare, friends and church, and need for permanence all weigh in favor

of terminating the parental rights of mom and [respondent]. I agree with the

GAL’s assessment that [N.K.-W.]’s wishes are a neutral factor because of her age,

but, really, none of the statutory factors weigh against termination at this point in

time.

And so the Court will find that the State has proven by a preponderance of

the evidence that it is, that the best interests of [N.K.-W.] would be served by the

termination of the parental rights of Barbara [A.] and [respondent].”

No objections were made by respondent’s counsel. The court retained wardship over N.K.-W.,

named DCFS as her guardian with the right to consent to adoption, and changed the permanency

goal to adoption.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 The only issue respondent raises on appeal is whether the trial court violated his

due-process rights by improperly shifting the burden of proof to him during the best interest

hearing. Specifically, he challenges the court’s statement that “none of the statutory factors

weigh against termination at this point in time.” According to respondent, this statement alone

shows the court erroneously believed the burden of proof rested with respondent.

-5- ¶ 18 In his reply brief, respondent acknowledges trial counsel likely failed to preserve

his argument by not objecting in the trial court but asks this court to review for plain error. See

In re M.W., 232 Ill. 2d 408, 430-31 (2009) (failing to object at trial forfeits consideration of the

claimed error on appeal unless the respondent can prove plain error). The State made no

argument based on forfeiture, and a reviewing court may consider a respondent’s plain-error

argument raised for the first time in a reply brief. See, e.g., People v. Williams, 193 Ill. 2d 306,

348 (2000); People v. Thomas, 178 Ill. 2d 215, 235 (1997). As such, we find it appropriate to

address respondent’s plain-error argument.

¶ 19 The plain-error doctrine has been applied in juvenile abuse and neglect cases and

is a narrow and limited exception to the forfeiture rule. People v. Hillier, 237 Ill. 2d 539, 545

(2010); In re Andrea D., 342 Ill. App. 3d 233, 242 (2003). Illinois Supreme Court Rule 615(a)

(eff. Jan. 1, 1967) provides: “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the trial court.” The reviewing court will

consider unpreserved error where the evidence is closely balanced or the error affected

substantial rights. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 20 The first step of plain-error analysis is to determine whether any error occurred at

all. People v. Sargent, 239 Ill. 2d 166, 189 (2010). “This requires a substantive review of the

issues raised on appeal.” In re Z.J., 2020 IL App (2d) 190824, ¶ 51. “If clear or obvious error did

not occur, no plain error analysis is necessary.” Id.

¶ 21 Here, we find no error occurred with respect to the allocation of the burden of

proof. “ ‘The [trial] court is presumed to know the law and to apply it properly, absent an

affirmative showing to the contrary in the record.’ ” Vance v. Joyner, 2019 IL App (4th) 190136,

¶ 91 (quoting Cavitt v. Repel, 2015 IL App (1st) 133382, ¶ 64). This presumption extends to

-6- correctly allocating the burden of proof. See People v. Howery, 178 Ill. 2d 1, 32-33 (1997). At a

best interest hearing, the State must demonstrate, by a preponderance of the evidence,

termination of parental rights is in the minor’s best interest. In re D.T., 212 Ill. 2d 347, 366-67

(2004).

¶ 22 Nothing in the trial court’s statement indicates the court believed respondent

carried the burden of proof. The court must consider the statutory factors listed under the

Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2022)), either for or against parental

termination, at the best interest hearing. In reaching its decision, the court articulated its analysis

on the record regarding how it weighed the statutory factors in respondent’s case. The court

provided its findings only after reviewing the best interest report, listening to testimony from the

caseworker and the foster mother, and hearing arguments from the State and the GAL. The court

never suggested respondent needed to prove the best interest factors weighed against parental

termination to prevail at the hearing.

¶ 23 Moreover, we find any perceived ambiguity in the above statement is attributable

to respondent taking the trial court’s remarks out of context. Immediately following the

statement challenged by respondent, the court stated: “And so the court will find that the State

has proven by a preponderance of the evidence that it is, that the best interest of [N.K.-W.]

would be served by termination of the parental rights of Barbara [A.] and [respondent].”

(Emphasis added.) The court clearly and obviously allocated the burden of proof to the State.

Notably, respondent makes no attempt to address this statement in either his initial or reply brief.

¶ 24 Accordingly, respondent failed to prove clear error as the trial court did not

erroneously shift the burden of proof to him during the best interest hearing.

¶ 25 III. CONCLUSION

-7- ¶ 26 For the reasons stated, we affirm the trial court’s judgment.

¶ 27 Affirmed.

-8-