In re Vanessa M.

2023 IL App (5th) 230046-U

• Court: Appellate Court of Illinois
• Decided: May 23, 2023
• Docket: 5-23-0046
• Status: Unpublished

Opinion

2023 IL App (5th) 230046-U NOTICE NOTICE Decision filed 05/23/23. The This order was filed under text of this decision may be NO. 5-23-0046 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re VANESSA M., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Madison County. ) Petitioner-Appellee, ) ) v. ) No. 19-JA-61 ) Shawn S. and Matthew S., ) ) Respondents ) Honorable ) Amy Maher, (Shawn S., Respondent-Appellant)). ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Moore and McHaney concurred in the judgment.

ORDER

¶1 Held: Where evidence amply supported the circuit court’s conclusions that respondent was an unfit parent and that the child’s best interests required terminating his parental rights, and any argument to the contrary would lack merit, we grant respondent’s appointed appellate counsel leave to withdraw and affirm the circuit court’s judgment.

¶2 After the circuit court terminated the parental rights of respondent, Shawn S., to his

daughter, Vanessa M., he appealed. The court appointed counsel to represent him on appeal.

¶3 Appointed counsel has concluded, however, that she can make no reasonably meritorious

argument that reversible error occurred. Thus, she has filed a motion to withdraw as counsel on

appeal, together with a supporting memorandum. See Anders v. California, 386 U.S. 738

1 (1967). Counsel has notified respondent of this motion, and this court has provided him with

ample opportunity to respond. However, he has not done so. After considering the record on

appeal, counsel’s memorandum, and her supporting brief, we agree that this appeal presents no

reasonably meritorious issues. Thus, we grant counsel leave to withdraw and affirm the circuit

court’s judgment.

¶4 BACKGROUND

¶5 The minor was placed in foster care immediately upon her release from the hospital

following her birth. The State filed a neglect petition against respondent and the minor’s mother,

Angela M. Briefly summarized, the petition alleged that respondent and Angela M. were being

investigated in Illinois for sexual abuse committed against Vanessa M.’s sister, Lisa M. Moreover,

respondent was “[i]ndicated by Missouri Child Services for an allegation which includes Fondling,

Touching, Sodomy, Oral Sex, and Intercourse, 2015 and 2016.” Further, respondent failed to

provide any care or support for the minor.

¶6 The circuit court found that the minor was abused and neglected and made her a ward of

the court. Following several interim orders, on August 6, 2020, the goal was changed from “return

home” to “substitute care pending termination of parental rights.” Angela M. passed away on

December 14, 2021.

¶7 Consistent with the new goal, the State filed a petition to terminate respondent’s parental

rights, alleging that he (1) failed to make reasonable efforts to correct the conditions that were the

basis for the removal of the child during any nine-month period after October 1, 2019; (2) failed

to make reasonable progress toward the return of the child during the same period; (3) failed to

maintain a reasonable degree of interest, concern, or responsibility for the minor’s welfare; and

2 (4) was incarcerated as a result of a criminal conviction, which would prevent him from

discharging his parental responsibilities for more than two years.

¶8 At the termination hearing, Julie McKay testified that she was one of the caseworkers and

had reviewed the entire file. Respondent had an open case with Vanessa M.’s sibling as well as a

previous case with the Missouri Department of Children and Family Services. Respondent had

recently been convicted of sexual assault and sexual abuse and had been sentenced to 29 years in

the Department of Corrections.

¶9 The first service plan required respondent to complete a domestic violence assessment and

follow all recommendations; complete a psychosexual evaluation and follow all recommendations;

complete a general mental health assessment and follow all recommendations; and complete a

parenting class. Respondent had completed the parenting class. He had completed the domestic

violence assessment but did not follow up on the recommendation that he participate in 26 classes.

He had completed the psychosexual evaluation but did not follow up on recommended treatment.

He had completed the mental health evaluation and participated in some counseling but made little

progress.

¶ 10 Respondent was allowed weekly video visitation which he had exercised regularly until his

incarceration. According to McKay, respondent did not want to visit with the minor while in

prison. McKay opined that respondent had not made reasonable progress toward correcting the

conditions that brought Vanessa M. into care and that his rights should be terminated.

¶ 11 On cross-examination, McKay testified that she visited respondent at the Shawnee

Correctional Center. Respondent was provided with a written copy of each service plan, including

the results of the assessments and recommendations for future treatment. He had also been present

on multiple calls where his services were discussed.

3 ¶ 12 McKay said that the services necessary for respondent to complete his service plan were

available to him while in prison. She acknowledged, however, that they were not available in the

county jail where respondent was held for more than a year.

¶ 13 Respondent testified that, after completing the domestic violence assessment, he was never

told that he needed to take 26 classes. Rather, the instructor told him that the agency would contact

him directly if he needed to do anything further. The agency did call him once, but never called

back to set up the sessions. Similarly, he completed the psychosexual assessment. The evaluator

said that she would call if anything further were required, but no one from the agency ever called.

He explained that he wanted to visit with his daughter while in prison. However, each video

session cost $10 and he could not afford it.

¶ 14 Respondent said that he was appealing his conviction. He believed that it would be

overturned and thus he would not have to serve the entire 29-year sentence. On cross-examination,

respondent acknowledged that he did not then have a job or place to live but would after his

conviction was reversed. He admitted that Vanessa M. had been in care for three years and he was

still not in position to provide for or take custody of her.

¶ 15 The prosecutor argued that a certified copy of respondent’s conviction showed that it

followed a guilty plea. Thus, it was unlikely that an appeal would result in an outright reversal of

his conviction. Respondent insisted, however, that the conviction followed a trial.

¶ 16 The court found that respondent had made neither reasonable efforts nor reasonable

progress. The court clarified that it was considering only the period prior to respondent’s

incarceration and would not consider his progress or lack thereof while incarcerated. The court

noted that, although respondent had completed some tasks, he had not addressed the primary

underlying issue of “psychosexual violence,” which brought the case to the court’s attention in the

4 first place. The court further found that it was likely that respondent would continue to be

incarcerated for more than two additional years.

¶ 17 The court proceeded immediately to a best-interests hearing. McKay testified that Vanessa

M. has been in the same foster home since she was discharged from the hospital in March 2019.

The household includes four other adoptive children, one of whom is Vanessa M.’s half-sister.

Vanessa M.’s foster mother is a teacher who is able to support her.

¶ 18 McKay observed Vanessa M. in the home and believed that she is bonded to the foster

parent, as well as the other adults and children in the home. The home meets DCFS requirements

and is a licensed foster home. Vanessa M. has a significant bond with her half-sister and gets

along with the other foster siblings in the home. The foster mother meets all of Vanessa M.’s

medical, dental, and emotional needs and is able to support her financially and emotionally. She

has signed a permanency commitment.

¶ 19 Respondent testified that he loved his daughter and wanted to be a part of her life. The

guardian ad litem recommended that rights be terminated. She noted that the minor required

permanency, but the case had been pending for more than three years and respondent would likely

continue to be incarcerated, whether for “25 years or a few years if the appeal was successful.”

The court agreed, finding that Vanessa M.’s best interests required a stable home, which

respondent was not able to provide.

¶ 20 Respondent moved to reconsider on the basis of newly discovered evidence. At a hearing,

he described the evidence as a recording of a phone message that Lisa M. allegedly left for an

uncle about what the uncle was doing to her. Respondent believed that this would prove his

innocence. On cross-examination, he acknowledged that the evidence was available to him prior

5 to the termination hearing. He provided the message to his attorneys, but it was not presented

either in the criminal proceeding or in the termination proceeding.

¶ 21 The court denied the motion to reconsider, finding that the message was not newly

discovered evidence because respondent knew about it before the termination hearing. Respondent

timely appeals.

¶ 22 ANALYSIS

¶ 23 Appellate counsel concludes that there is no reasonably meritorious argument that the court

erred in finding respondent an unfit parent and terminating his parental rights to Vanessa M.

Counsel further concludes that there is no arguable merit to a contention that respondent’s counsel

was ineffective. We agree.

¶ 24 To terminate a party’s parental rights, a circuit court must make two separate and distinct

findings: that the State has proven (1) that the parents are “unfit persons” within the meaning of

section 1(D) of the Adoption Act (Act) (750 ILCS 50/1(D) (West 2020)) and (2) that it is in the

children’s best interests to terminate that party’s parental rights, to appoint a guardian, and to

authorize that guardian to consent to the children’s adoption. In re M.H., 2015 IL App (4th)

150397, ¶ 20 (citing 705 ILCS 405/2-29(2) (West 2014)).

¶ 25 The court found that respondent failed to make reasonable progress toward the minor’s

return. The benchmark for measuring a parent’s “progress toward the return of the child” under

section 1(D)(m) of the Act (750 ILCS 50/1(D)(m) (West 2020)) measures the parent’s compliance

with the service plans and the court’s directives in light of the conditions that gave rise to the

child’s removal and other conditions subsequently discovered that would prevent the court from

returning the child to the parent. In re C.N., 196 Ill. 2d 181, 216-17 (2001).

6 ¶ 26 Here, McKay testified that respondent failed to follow the service plan for more than nine

months prior to being incarcerated. Although respondent completed a parenting class and obtained

several evaluations, he failed to follow up on any of the recommended treatment. McKay stated

that respondent was sent copies of the service plan, which included the treatment

recommendations, and participated in meetings at which the plans were discussed. Respondent

conceded that he attended at least one court hearing at which his lack of progress was discussed.

In light of this testimony, the court could reasonably reject respondent’s testimony that each of the

evaluators he spoke to told him that he did not need to do anything further unless someone

contacted him and that, except for one preliminary phone call, no one ever did.

¶ 27 As the State proved that respondent was unfit for failing to make reasonable progress

toward the child’s return, we need not consider any other basis of unfitness. See In re M.J., 314

Ill. App. 3d 649, 655 (2000) (on review, if there is sufficient evidence to satisfy any one statutory

ground, we need not consider other findings of parental unfitness). We can affirm the circuit

court’s order solely on this basis.

¶ 28 Counsel further suggests that there is no reasonably meritorious argument that the circuit

court erred in finding that the minor’s best interests required terminating respondent’s parental

rights. Even if a parent has been found unfit to have custody of a child, it does not necessarily

follow that the parent cannot remain the child’s legal parent with attendant rights and privileges.

In re B.C., 247 Ill. App. 3d 803, 806 (1993). However, once the court has found a parent unfit, all

other considerations must yield to the child’s best interests. In re D.M., 298 Ill. App. 3d 574, 581

(1998).

¶ 29 Here, McKay testified that Vanessa M. had resided solely with her foster parent since her

release from the hospital at birth, that her half-sister also resided in the home, and that her foster

7 mother had provided for her needs throughout her life. She was bonded with her foster mother,

caregivers, and foster siblings. Respondent acknowledged that he had no contact with his daughter

since being incarcerated. During the fitness hearing, he conceded that he was not then capable of

providing for Vanessa M. and had no idea when he would be able to do so. Thus, the court’s

finding that Vanessa M.’s best interests required terminating respondent’s parental rights was not

manifestly erroneous.

¶ 30 Counsel finally suggests that there is no meritorious contention that respondent received

the ineffective assistance of counsel. In deciding whether a parent received ineffective assistance

in a proceeding to terminate his or her parental rights, we apply the criteria found in Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984). In re Ca. B., 2019 IL App (1st) 181024, ¶ 42.

Under Strickland, a parent must show (1) that counsel’s performance fell below an objective

standard of reasonableness and (2) that, but for counsel’s errors, the result of the proceedings

would likely have been different. Further, a respondent must overcome the strong presumption

that, under the circumstances, the challenged action or inaction was the product of sound trial

strategy. People v. Barrow, 133 Ill. 2d 226, 247 (1989).

¶ 31 Here, respondent was represented at all hearings—at least those that were transcribed—

and his counsel appropriately cross-examined the State’s witnesses and presented respondent’s

version of events. Respondent never explicitly complained about counsel’s representation. The

only possible exception concerned the “newly discovered” evidence of Lisa M.’s phone call to her

uncle. Respondent conceded that he knew of this evidence before the fitness hearing, explaining

that he had given the recording to his attorneys but that it was never introduced in evidence.

However, respondent never explicitly asserted that counsel was ineffective for not introducing the

8 recording and, with only respondent’s vague description of the evidence in the record, the decision

not to introduce it appears to fall easily within the presumption of sound trial strategy.

¶ 32 Even if respondent could establish that the failure to introduce the recording was

unreasonable, he could not establish the requisite prejudice. Even if the recording conclusively

established defendant’s innocence in the criminal case—a dubious proposition on this record—it

would, at most, establish that he would no longer be incarcerated. This would not affect the finding

that he failed to make reasonable progress prior to his incarceration, and as noted, that ground

alone was sufficient to support the finding of unfitness.

¶ 33 CONCLUSION

¶ 34 As this appeal presents no issue of arguable merit, we grant appellate counsel leave to

withdraw and affirm the circuit court’s judgment.

¶ 35 Motion granted; judgment affirmed.