2023 IL App (4th) 230509 FILED NOS. 4-23-0509, 4-23-0510, 4-23-0511 November 3, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
` In re DAR. H., DAY. H., and DI. H., Minors ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Knox County Petitioner-Appellee, ) Nos. 19JA1, v. ) 19JA2, Tosha B., ) 19JA21 Respondent-Appellant). ) ) Honorable Curtis S. Lane, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Harris and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Respondent, Tosha B., is the mother of Dar. H. (born March 2007), Day. H. (born
August 2009), and Di. H. (born March 2019). In April 2023, in proceedings involving all three
children, the trial court found respondent was an unfit parent. In May 2023, the court found that
termination of respondent’s parental rights would be in the minor children’s best interests.
¶2 Respondent appeals, arguing that the trial court’s findings that respondent
(1) failed to make reasonable efforts, (2) failed to make reasonable progress, (3) failed to
maintain a reasonable degree of interest, and (4) exhibited habitual drunkenness or addiction to
drugs in each case were against the manifest weight of the evidence. We disagree and affirm.
¶3 I. BACKGROUND
¶4 A. Procedural History Regarding Dar. H. and Day. H. ¶5 In January 2019, the State filed petitions for adjudication of wardship as to Dar.
H. and Day. H., alleging the children were neglected in that they lived in an environment
injurious to their welfare because in December 2018 an incident of domestic violence occurred
between respondent and the children’s father, Demond H., in the presence of Dar. H. See 705
ILCS 405/2-3(1)(b) (West 2018). The petitions further alleged that, as a result of that incident,
Demond was arrested and ordered not to have any contact with respondent.
¶6 The petitions also alleged that three days later, Ashleigh Ruark, a social worker,
“was assigned to a report regarding a domestic violence altercation between respondent *** and
*** Demond.” That same day, Ruark interviewed Demond, who was at the residence with
respondent, and he indicated that he used cocaine, marijuana, and alcohol. See id. § 2-3(1)(b). At
the time of those incidents, respondent was about five months pregnant with Di. H. (We note that
Demond is not a party to this appeal.)
¶7 On the same day the petitions were filed, the trial court conducted a shelter care
hearing and placed temporary custody of Dar. H. and Day. H. with the guardianship
administrator of the Department of Children and Family Services (DCFS).
¶8 In March 2019, the trial court conducted an adjudicatory hearing regarding Dar.
H. and Day. H. The court found that the children were neglected minors as alleged in the
petition, noting that “the finding of abuse/neglect/dependence is based on the following facts:
Domestic violence with child present. Mother[’s] use of drugs (cocaine, cannabis, benzo) and
prior indication.” The court also orally admonished respondent that she “must cooperate with
[DCFS], comply with the terms of the service plans, and correct the conditions that required the
children to be in care or risk termination of [her] parental rights.”
¶9 In April 2019, the trial court conducted a dispositional hearing regarding Dar. H.
-2- and Day. H., at the conclusion of which it entered a written order finding (1) respondent unfit for
reasons other than financial circumstances alone to care for, protect, train, educate, supervise, or
discipline the minors and (2) it was in the best interests of the minors to be made wards of the
court.
¶ 10 B. Procedural History Regarding Di. H.
¶ 11 In May 2019, the State filed a petition for adjudication of wardship as to Di. H.,
alleging (1) the domestic violence incident between respondent and Demond, (2) Dar. H. and
Day. H.’s being adjudicated neglected, (3) respondent’s being found unfit to exercise custody or
guardianship of Di. H.’s siblings the month prior, and (4) respondent’s testing positive for
cocaine, marijuana, and benzoylecgonine at Di. H.’s birth in January 2019 (see id. § 2-3). On the
same day the petition was filed, the trial court conducted a shelter care hearing and placed
temporary custody of Di. H. with the guardianship administrator of DCFS.
¶ 12 In July 2019, the trial court conducted both an adjudicatory hearing and
dispositional hearing regarding Di. H. The court found that she was a neglected minor in that her
environment was injurious to her welfare, writing, “The finding of abuse/neglect/dependence is
based on the following facts: Domestic violence between parents, unfitness in 19 JA 01 + 19 JA
02 of both parents.” The court also found (1) respondent unfit for reasons other than financial
circumstances alone to care for, protect, train, educate, supervise, or discipline the Di. H. and
(2) it was in the best interests of Di. H. to be made a ward of the court.
¶ 13 C. The Termination Hearing
¶ 14 In January 2023, the State filed amended petitions to terminate respondent’s
parental rights as to each of the minor children. The State alleged respondent was an unfit parent
within the meaning of the Adoption Act (750 ILCS 50/1 et seq. (West 2022)) because she failed
-3- to (1) make reasonable efforts to correct the conditions that were the bases for the children’s
removal during the nine-month periods of (a) March 2019 to December 2019 and (b) July 2021
to April 2022, (2) make reasonable progress toward the return of the children within those same
nine-month periods, and (3) maintain a reasonable degree of interest concern or responsibility as
to the minor children’s welfare. See id. § 1(D)(b), (m)(i)-(ii). In addition, the petition alleged that
respondent had habitual drunkenness or addiction to drugs for at least one year immediately prior
to the commencement of the unfitness proceeding. See id. § 1(D)(k).
¶ 15 In March, April, and May 2023, the trial court conducted bifurcated termination
hearings on the State’s petitions.
¶ 16 1. The Fitness Portion of the Termination Proceedings
¶ 17 a. Randall Aldridge
¶ 18 Randall Aldridge testified that he worked for the Center for Youth and Family
Solutions (CYFS) and was the caseworker for the family from April 2019 through October 2019.
Aldridge reviewed the case file and notes from prior case workers when he received the file.
¶ 19 Aldridge testified that the service plan for respondent required her to complete a
substance abuse evaluation and recommended treatment; participate in drug drops and a mental
health evaluation and recommended treatment; and cooperate with DCFS. Respondent
completed substance abuse treatment and was successfully discharged from an inpatient
treatment the month prior to Aldridge taking over the case. However, respondent later
participated in only 2 of 11 drug drops, one of which she tested positive for alcohol, which, as
Aldridge explained, was “one of the major issues that brought this case into care.” Respondent
was resistant to obtaining mental health therapy during Aldridge’s time working with her, and
respondent did not demonstrate forward progress with her mental health or substance abuse.
-4- ¶ 20 Respondent was also required to complete counseling directed at victims of
domestic violence, which she completed in May 2019. However, she subsequently had another
domestic violence incident with Demond in July 2019. Aldridge did not believe that respondent
demonstrated progress related to domestic violence.
¶ 21 b. Alyssa Franqui
¶ 22 Alyssa Franqui testified that she worked for CYFS and was the caseworker for the
family from October 2019 through May 2021.
¶ 23 Franqui testified that respondent’s service plan required her to engage in mental
health services, domestic violence services, substance abuse services, and parenting classes.
Regarding substance abuse treatment, “there [were] certain periods of time whe[n] [respondent]
was successful and then certain periods of time whe[n] she was unsuccessful.” Franqui testified
that at one point respondent was unsuccessful because she tested positive for methamphetamine
and cocaine. Respondent also relapsed on alcohol in December 2019 during an overnight visit
with Day. H., at which she was discovered “intoxicated and passed out.” After that incident,
Franqui directed respondent to engage in substance abuse services, “which [respondent] did end
up engaging in after the fact.” However, respondent had yet to follow through with that new
substance abuse treatment by March 2020.
¶ 24 c. Cecily Dorsett
¶ 25 Cecily Dorsett testified that she worked for CYFS as the regional coordinator of
child welfare and was involved in the family’s case from July 2021 to April 2022.
¶ 26 Dorsett testified that respondent’s service plan required her to complete domestic
violence treatment, substance abuse treatment, and mental health treatment. Also, she was
required to complete urine screens, cooperate with the agency, obtain proper housing, and
-5- participate in visitation. In July 2021, Dorsett directed a caseworker to stop by respondent’s
residence for a “drop-in.” When the caseworker arrived at the residence, she found all three of
the children but not respondent present. Dorsett noted that there was not supposed to be an
unsupervised visit between respondent and the children at that time and then had the children
removed from the home.
¶ 27 Dorsett testified that respondent later explained to her that she was not present at
the house because she had met up with a friend to have sex. She also claimed that she had left a
babysitter for the children, but the children reported that was not true. Her children “reported that
when she left she told them to lock the door and not let anyone else in the home because if
[someone] came, they would be taken from her and she would kill herself if they were taken
from her again.” Following the incident, respondent did not visit the children consistently until
September 2021, at which time she would often end visits early for reasons such as having plans
or needing to check on dinner. “During that time frame, there were times where virtual visits
were necessary ***. [S]he would frequently call-in other individuals. That—that was an issue
that was addressed on a number of occasions.”
¶ 28 Dorsett also testified that between July 2021 and April 2022, “[Respondent] was
scheduled for 32 drug drops ***. She missed 18 of those. Eight of them were positive. All eight
of those [were] positive for THC, one also positive for alcohol, and then there was one service
denied and four negative [urine analyses] of those 32.” In April 2022, Dar. H. reported to Dorsett
that “[h]e’d been in a car with friends. He claimed that [respondent] was driving [another car] in
the center lane, tried to run [Dar. H. and his friends] off the road and reported to staff that he felt
she was intoxicated at the time, and he wanted us to know because he felt like her drinking had
become a problem again at that point.”
-6- ¶ 29 Dorsett also testified that respondent did have stable housing and employment
while Dorsett was involved in the case.
¶ 30 d. Carolyn Hawes
¶ 31 Respondent called Carolyn Hawes as a witness. Hawes testified that she worked
at CYFS and had been respondent’s caseworker since April 2022. Since taking over as
respondent’s caseworker, Hawes had noticed a shift in respondent’s behavior, explaining, “She
has steadily been focusing more on her mental health and coping mechanism. She has engaged in
therapy, substance abuse, NA [(Narcotics Anonymous)] and AA [(Alcoholics Anonymous)]
meetings. She has attended group therapy. She has become employed full time.” Further,
respondent had engaged in substance abuse counseling and her housing was satisfactory. She
also had visits with Day. H. and Di. H. that went well.
¶ 32 Regarding drug drops, from September 2022 to January 2023, respondent had not
tested positive for drugs and did not miss any drops. In November 2022, respondent obtained a
medical marijuana card. From April 2022 to September 2022, respondent was scheduled for 17
drug drops. However, she missed 5 of those drops.
¶ 33 e. Respondent
¶ 34 Respondent testified that that she had been engaged in counseling services since
February 2021 and intended to continue with those services. In June 2023, she attended drug
counseling but left early and followed up with outpatient treatment. She was also recently
discharged unsuccessfully from Bridgeway because Bridgeway would not “honor” the medical
marijuana program. Respondent, nonetheless, continued to use marijuana. Further, she was
working and had housing.
¶ 35 f. The Trial Court’s Parental Fitness Findings
-7- ¶ 36 After hearing arguments from the parties, the trial court noted that it had heard
evidence regarding (1) the March 2019 to December 2019 time period and (2) the July 2021 to
April 2022 time period. Further, the court noted that the first time period was significant
specifically to Dar. H. and Day. H.; the second time period was significant to Di. H.
¶ 37 Regarding the evidence, the trial court stated the following:
“The evidence produced during the first time period was that there was
almost zero completion of any services. There was a domestic violence incident.
There [were] missed drug drops. There were relapses. During the second time
period, the mother’s passage rate of drug drops [was] approximately 12.5 percent.
They were either positive, missed, or invalid for some reason.
The—again, there were additional relapses. ***.
There was an incident in July of ’21 where the mother had the children at
her home and left them all alone, and that was at—basically at the beginning of
the second time period.
***The—the—the reality here is that case numbers 19-JA-1 and 19-JA-2
technically commenced in January of 2019. That’s over four years old. The other
case, 19-JA-21, started in May of ’19 and is approaching four years old.
And I don’t disagree with [Demond’s counsel]. It—you know, the State
has elected to allow this to continue for a period of time, which I disagree with
personally because of the—I’ve never quoted a prosecutor before, but [the
prosecutor] stated, and I agree, the only consistency is the inconsistency in this
case for the parents. They cannot keep it together. There are always problems.
Always problems. They will do one thing but not the other. There are problems
-8- with the visits. It—it—it—it does not stop regardless of the time periods.
The—the case as [respondent’s counsel] stated correctly basically started
because of Mom’s alcohol and cocaine matters, but she has admitted during these
times here of relapsing on alcohol.”
¶ 38 The trial court concluded that the State had proven by clear and convincing
evidence all four grounds for unfitness in the petition to terminate parental rights (see 750 ILCS
50/1(D)(b), (k), (m)(i), (ii) (West 2022)).
¶ 39 2. The Best-Interest Portion of Termination Proceedings
¶ 40 In May 2023, the trial court conducted a hearing on the best-interest portion of
terminating proceedings, at the conclusion of which the court found that termination of
respondent’s parental rights was in the best interests of the children.
¶ 41 This appeal followed.
¶ 42 II. ANALYSIS
¶ 43 Respondent appeals, arguing that the trial court’s findings that respondent
(1) failed to make reasonable efforts, (2) failed to make reasonable progress, (3) failed to
maintain a reasonable degree of interest, and (4) exhibited habitual drunkenness or addiction to
drugs in each case were against the manifest weight of the evidence. We disagree and affirm.
¶ 44 A. Evidence Presented at Permanency Review Hearings Is Not Relevant to the
Fitness-Portion of Termination Proceedings
¶ 45 As an initial matter, because respondent’s brief relies entirely on evidence
presented at permanency review hearings, we discuss the importance—or rather, lack of
importance—of that evidence to the fitness portion of termination proceedings. Because
evidence presented at hearings other than a fitness hearing, like permanency review hearings, is
-9- generally not subject to the rules of evidence, a discussion in an appellant’s brief of the evidence
presented at a permanency review hearing, as well as any remarks of the trial court regarding that
evidence, is a waste of both counsel’s and this court’s time.
¶ 46 We reiterate that a trial court’s fitness findings made after it conducted a hearing
on a petition to terminate parental rights are to be based solely on the evidence the court heard at
the fitness hearing, not on any evidence that may have been presented at other hearings that
preceded the fitness hearing.
¶ 47 This case is a prime example of what respondents should not argue in their briefs
to this court. In the 22-page brief prepared by respondent’s counsel on appeal in this case, not
one paragraph discusses the evidence presented at the fitness hearing; instead, counsel discusses
only evidence presented at earlier permanency review hearings and orders entered after those
hearings. Counsel’s sole argument on appeal is premised on alleged contradictions between the
trial court’s fitness findings and the court’s earlier permanency review orders. However, that
argument presupposes that the permanency review orders—and the evidence upon which those
orders are based—hold some value in the trial court’s fitness determination. We emphasize again
they do not.
¶ 48 As we pointed out in in In re M.D., 2022 IL App (4th) 210288, ¶ 72, 193 N.E.3d
933, the evidentiary rules governing permanency and dispositional hearings are far less strict
than those of the fitness hearing:
“At a permanency hearing, ‘[a]ll evidence relevant to determining [the
legal issues set forth in section 2-28(2)], including oral and written reports, may
be admitted and may be relied upon to the extent of their probative value.’
[Citation.] Notably, ‘[i]f the permanency goal is return home, the court shall make
- 10 - findings that identify any problems that are causing continued placement of the
[child] away from the home and identify what outcomes would be considered a
resolution to these problems.’ (Emphasis added.) [Citation.] As this court has
explained, a permanency hearing is essentially a continuation of the dispositional
hearing, and—just as is the case with a dispositional hearing—there are no rules
of evidence governing what the court may receive and consider at a permanency
hearing.”
On the other hand, fitness hearings are formal proceedings governed by the Illinois Rules of
Evidence. Id. ¶ 75.
¶ 49 Because of the different evidentiary rules governing fitness hearings and
permanency hearings, evidence and orders from permanency hearings may not be considered by
a trial court at the fitness portion of the termination proceedings. Id. ¶ 81. Similarly, this court
will not reverse a trial court’s fitness findings based on evidence presented at the permanency
hearings; instead, we review the trial court’s findings based solely on evidence presented at the
fitness hearing.
¶ 50 B. The Trial Court’s Fitness Findings
¶ 51 It is well settled that “[b]ecause each of the statutory grounds of unfitness is
independent, the trial court’s finding may be affirmed where the evidence supports a finding of
unfitness as to any one of the alleged grounds.” In re Adoption of P.J.H., 2019 IL App (5th)
190089, ¶ 11, 143 N.E.3d 805. Based on our review of the record, we conclude that the court’s
findings that respondent failed to make reasonable progress within the applicable nine-month
periods were not against the manifest weight of the evidence. Accordingly, we discuss only those
findings.
- 11 - ¶ 52 1. The Applicable Law and Standard of Review
¶ 53 The State must prove unfitness as defined in section 1(D) of the Adoption Act
(750 ILCS 50/1(D) (West 2022)) by clear and convincing evidence. In re N.G., 2018 IL 121939,
¶ 28, 115 N.E.3d 102. Section 1(D)(m)(ii) of the Adoption Act defines an unfit person as a
parent who fails to make “reasonable progress toward the return of the child” during any
nine-month period following an adjudication of neglect or abuse. 750 ILCS 50/1(D)(m)(ii) (West
2020). Reasonable progress is an objective review of the steps the parent has taken toward the
goal of reunification and examines the demonstrability and quality of those steps. In re Ta. T.,
2021 IL App (4th) 200658, ¶ 51, 187 N.E.3d 763. Reasonable progress exists when the trial court
can conclude that, in the near future, it will be able to order the children returned to parental
custody. Id.
¶ 54 A determination of parental unfitness involves factual findings and credibility
determinations that the trial court is in the best position to make. In re M.I., 2016 IL 120232,
¶ 21, 77 N.E.3d 69. Accordingly, a trial court’s finding of parental unfitness will not be reversed
unless it is against the manifest weight of the evidence. N.G., 2018 IL 121939, ¶ 29. A decision
is against the manifest weight of the evidence when the opposite conclusion is clearly apparent.
Id.
¶ 55 2. This Case
¶ 56 a. March 2019 to December 2019
¶ 57 Aldridge testified that in 2019, while he was the caseworker, respondent was
directed to complete substance abuse and mental health classes, cooperate with the agency, and
complete a domestic violence program. The State concedes that the record superficially reflects
respondent’s completion of those services but asserts her subsequent behavior showed that “she
- 12 - did not learn from those services.” The State contends that respondent’s completion was merely
performative. We agree with the State.
¶ 58 Aldridge testified that respondent missed 9 out of 11 drug drops and tested
positive for alcohol during 1 of the 2 drug drops she attended. We note that Dar. H. and Day. H.
were adjudicated neglected, in part, due to respondent’s alcohol and drug use. Aldridge also
testified that (1) respondent believed she did not need to complete therapy and (2) she was
involved in a domestic violence incident in July 2019, which was another reason the children
were removed from her custody. Although, respondent may have “completed” some of the
services she was told to engage with, simply “showing up” is not enough to demonstrate
reasonable progress under the Adoption Act. To the contrary, her demonstrated failure to
incorporate what she learned from those services into her life establishes a distinct lack of
progress toward returning her children safely to her care.
¶ 59 We reiterate the following passage we wrote in Ta. T., 2021 IL App (4th) 200658,
¶ 56:
“[T]here [is] a significant difference between going through the motions,
checking off the boxes, and mechanically doing what is asked of the parent, and
actually changing the circumstances that brought the children into care. The point
of requiring parents to attend classes and engage in services is not just so the
parents can say they attended; it is so parents apply what they learn in their lives,
in the real world, such that the court can be confident that the children will be safe
in their care.” (Emphasis in original.).
¶ 60 Just as in Ta. T., respondent here did not demonstrate that her progress was of
such a quality that (1) the conditions that brought the children into care had been corrected and
- 13 - (2) the children could be returned home safely. Accordingly, the trial court’s fitness findings for
the first nine-month period were not against the manifest weight of the evidence.
¶ 61 b. July 2021 to April 2022
¶ 62 Likewise, the record supports the trial court’s finding that respondent failed to
make reasonable progress during the second time period, between July 2021 and April 2022.
¶ 63 Dorsett testified that in July 2021, she directed a caseworker to stop by
respondent’s residence, who determined there was an unsupervised visit with all the children that
was not supposed to occur. When the caseworker arrived, respondent was not present.
Respondent then did not visit the children consistently until September 2021, at which time she
would often end visits early for minor reasons. Further, between July 2021 and April 2022,
“[respondent] was scheduled for 32 drug drops ***. She missed 18 of those. Eight of them were
positive. All eight of those are positive for THC, one also positive for alcohol.”
¶ 64 Again, drug and alcohol use were two of the reasons that Di. H. was removed
from respondent’s care. Respondent’s failure to make meaningful changes during the nine-month
period from July 2021 to April 2022 to correct the conditions that brought the Di. H. into care
easily demonstrate a lack of progress. Accordingly, the trial court’s fitness finding as to the
second nine-month period was not against the manifest weight of the evidence.
¶ 65 III. CONCLUSION
¶ 66 For the reasons stated, we affirm the trial court’s judgments.
¶ 67 Affirmed.
- 14 - In re Dar. H., 2023 IL App (4th) 230509
Decision Under Review: Appeal from the Circuit Court of Knox County, Nos. 19-JA-1, 19-JA-2, & 19-JA-21; the Hon. Curtis S. Lane, Judge, presiding.
Attorneys Paul L. Mangieri of Barash & Everett, LLC, of Galesburg, for for appellant. Appellant:
Attorneys Jeremy S. Karlin, State’s Attorney, of Knox County (Patrick for Delfino, David J. Robinson, and Rosario David Escalera, Jr., of Appellee: State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
- 15 -