Opinion
4-23-0177
07-27-2023
In re R.E., a Minor v. Willie B., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County No. 21JA171 Honorable Francis M. Martinez, Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.
ORDER
ZENOFF JUSTICE
¶ 1 Held: The appellate court affirmed the trial court's decision to terminate respondent's parental rights where the trial court properly found that respondent failed to make reasonable progress toward reunification with the minor and trial counsel was not ineffective for failing to present evidence to rebut the presumption of depravity.
¶ 2 Respondent, Willie B., appeals an order terminating his parental rights to the minor, R.E. Respondent contends the trial court applied the wrong legal standard in finding he made no reasonable progress toward the goal of reunification with the minor. Respondent also contends his trial counsel rendered ineffective assistance by not presenting evidence to rebut the presumption of depravity. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On April 13, 2021, at one week old, R.E. was taken into care by the Illinois Department of Children and Family Services (DCFS) because her mother, Raven E.C., suffered from unaddressed substance-abuse issues. According to a DCFS report, R.E. was born "substance exposed." R.E.'s older siblings were also in care. Raven E.C. is not a party to this appeal. At all times herein, respondent was incarcerated on multiple felony driving-while-intoxicated convictions at several correctional institutions in Wisconsin. During the instant proceedings, respondent, who was never married to Raven E.C., was determined to be R.E.'s biological father. ¶ 5 On July 8, 2021, the trial court adjudicated R.E. a neglected minor. At the dispositional hearing on September 3, 2021, respondent participated by telephone. At the State's request, the court took judicial notice of the evidence presented at the adjudicatory hearing and the caseworker's current report. Respondent's counsel stipulated that respondent was "currently unable to have *** [R.E.] in his custody due to his incarceration." The court found respondent "unable and unfit, but not unwilling, to care for, train or discipline [R.E.]" The court placed guardianship and custody of R.E. with DCFS. DCFS placed R.E. with a foster family.
¶ 6 Following the dispositional hearing, the trial court conducted two permanency review hearings. On March 1, 2022, the court entered an order finding that respondent made reasonable efforts toward the goal of "return home" within 12 months. DCFS's report indicated that respondent was incarcerated but had been "invite[d]" by DCFS to participate in court hearings and "move forward with services."
¶ 7 On August 8, 2022, DCFS filed a report stating respondent completed an integrated assessment. DCFS recommended that respondent also complete substance abuse and domestic violence assessments. The report stated respondent agreed to complete those assessments but would be unable to engage in services during his incarceration. The report noted respondent participated in biweekly visits with R.E. On October 4, 2022, DCFS filed another report. DCFS stated that respondent would be transferred to an institution where he could complete a substance-abuse program. Respondent indicated he would be released from prison in August 2023, at which time he wanted to be reunited with R.E. (The record shows that respondent never had physical custody of the minor due to his incarceration.)
¶ 8 The second permanency review hearing was held on October 17, 2022. The trial court found that respondent made reasonable efforts toward the "return home" goal but that respondent, due to his incarceration, had not made reasonable progress toward that goal. The court stated, "The statute is very clear that a parent must make reasonable progress during a relevant nine-month period regardless of their [ sic ] circumstances." The court changed the permanency goal to substitute care pending termination of parental rights.
¶ 9 On November 29, 2022, the State filed a motion to terminate parental rights. The motion alleged respondent (1) failed to make reasonable progress during two different nine-month periods following the adjudication of neglect and (2) was depraved due to multiple felony convictions. The hearing on the motion to terminate parental rights commenced on December 12, 2022. Respondent was not present. When the trial court stated its intention to proceed in respondent's absence, respondent's counsel did not object. Upon the State's motion, and without objection, the court took judicial notice of certain documents in the case. The State then admitted into evidence, over respondent's counsel's objection, four certified copies of respondent's convictions. Three certified copies were felony driving-while-intoxicated convictions from Rock County, Wisconsin, from 2012 and 2016. The fourth was a 2022 felony driving-while-intoxicated conviction from Walworth County, Wisconsin.
¶ 10 DCFS caseworker Kim Mohammed-Grimes testified on direct examination, as follows. Respondent was required to complete substance abuse, domestic violence, and mental health assessments. Respondent was also required to cooperate with DCFS and participate in visitations with R.E. DCFS maintained contact with respondent through a prison social worker, and respondent regularly visited with R.E. through supervised Zoom visits. However, respondent was unable to complete the required assessments due to his incarceration. DCFS had concerns about respondent's parenting because he had not completed any of the required services. On cross-examination, respondent's counsel established that respondent told R.E. during his visits that he missed her and could not wait to see her. Counsel also established that the prison social worker informed DCFS the services recommended for respondent were not available while he was incarcerated.
¶ 11 At the conclusion of Mohammed-Grimes's testimony, the trial court continued the matter to February 10, 2023, for any evidence respondent wished to present and for its decision. At the February 10, 2023, hearing, respondent was present by telephone and represented by counsel. Respondent presented no evidence. The court found that respondent failed to make reasonable progress because he did not engage in the required services. The court noted that those services were not available in prison. The court also found that respondent's felony convictions raised the presumption of depravity and that respondent presented no evidence of rehabilitation to attempt to rebut that presumption.
¶ 12 Respondent testified on his own behalf at the best-interests hearing, as follows. When respondent learned he was R.E.'s father, he formed a bond with her. His visits with her were "good," although she was too young to talk. The programs respondent participated in while in prison, including for substance abuse, matured him and prepared him for his responsibilities to R.E. and his other children. Respondent had one child in college and another he raised who was never in trouble. Respondent intended to live with his girlfriend of 20 years and establish a stable home for R.E. when he was released from prison. Respondent was being released in July 2023 and would engage in any services necessary "to spend time with my daughter, anything that I have to do." Respondent acknowledged that R.E. had a good relationship with her foster parents.
¶ 13 R.E.'s foster mother stated R.E. was placed with her family when R.E. was three days old and had been with them for 22 months. The foster mother stated R.E. was "thriving." She added the foster family loved R.E. "like she is our own," and her family had "just wrapped themselves around [R.E.]" Respondent then thanked the foster parents for caring for R.E. Respondent stated he was almost in tears, "begging *** to have my own child." Respondent said, "I feel like I'm the best for [R.E.] because I'm her parent." The court found that, although respondent sincerely loved R.E., he was incarcerated, with limited services available to him. The court found that R.E. was bonded with her foster family, who allowed R.E. to thrive. The court found by a preponderance of the evidence that it was in R.E.'s best interests to terminate respondent's parental rights.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Respondent raises two issues: (1) the trial court improperly found a failure to make reasonable progress where the evidence showed that the services under DCFS's service plan were not available due to respondent's incarceration and (2) his trial counsel was ineffective for not presenting any evidence to rebut the presumption of depravity.
¶ 17 Proceedings to terminate parental rights are governed principally by the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2022)) and the Adoption Act (750 ILCS 50/1 et seq. (West 2022)). In re D.T., 212 Ill.2d 347, 352 (2004). Generally, where a child is adjudicated neglected under the Juvenile Court Act and the State seeks to free the child for adoption without the parents' consent, the State must first establish the parents' unfitness under one or more grounds of the Adoption Act. D.T., 212 Ill.2d at 352. Because termination of parental rights is such a serious matter, the State's burden is to prove unfitness by clear and convincing evidence. In re H.D., 343 Ill.App.3d 483, 493 (2003). If the trial court finds the parents to be unfit, the court then determines whether it is in the child's best interests to terminate parental rights. D.T., 212 Ill.2d at 352. Although section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)) sets forth numerous grounds for unfitness, any one ground, if proved, is sufficient for a finding of unfitness. In re DonaldA.G., 221 Ill.2d 234, 244 (2006).
¶ 18 Count I of the State's motion to terminate parental rights alleged that respondent was unfit pursuant to section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2022)) because he failed to make reasonable progress toward the return of the child during any of two specified nine-month periods following the adjudication of neglect. Count II alleged that respondent was depraved within the meaning of section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2022)), which creates a rebuttable presumption that the parent is depraved if he or she has been convicted of at least three felonies and at least one of those convictions took place within five years of the filing of the motion to terminate parental rights.
¶ 19 Respondent first contends the trial court erred in finding him unfit where the evidence showed he did not complete the required services because they were not available to him in prison. An "unfit person" is "any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption." 750 ILCS 50/1(D) (West 2022). One of the enumerated grounds of unfitness is the failure by a parent to "make reasonable progress toward the return of the child to the parent during any 9-month period" following the adjudication of neglect. 750 ILCS 50/1(D)(m)(ii) (West 2022). Section 1(D)(m)(ii) further provides:
"If a service plan has been established *** and if those services were available, then, for purposes of this Act, 'failure to make reasonable progress toward the return of the child to the parent' includes the parent's failure to substantially fulfill his or her obligations under the service plan ***." (Emphasis added.)
¶ 20 Respondent seizes upon the italicized language of the statute to argue that "substantial fulfillment" of obligations under a service plan is predicated on the availability of such services. Respondent argues that if such services were not available, the statute precludes a finding of no reasonable progress. Statutory interpretation presents a question law, which we review de novo. In re C.N., 196 Ill.2d 181, 208 (2001). The cardinal rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. In re J.R., 342 Ill.App.3d 310, 318 (2003). The most reliable indicator of legislative intent is the statutory language itself. J.R., 342 Ill.App.3d at 318. Where the language is plain and unambiguous, courts will not read into it exceptions, limitations, or other conditions. J.R., 342 Ill.App.3d at 318. We presume the legislature did not intend to create absurd, inconvenient, or unjust results. J.R., 342 Ill.App.3d at 318.
¶ 21 Respondent argues the trial court failed to consider the nexus between the service plan and the nonavailability of services in finding him unfit. The record belies this assertion. The court noted the unavailability of services while respondent was incarcerated. The court found that such unavailability was not a barrier to finding a lack of reasonable progress because reasonable progress is not measured according to individual circumstances but is, rather, an objective standard.
¶ 22 Respondent relies on In re Keyon R., 2017 IL App (2d) 160657. In Keyon R., the appellate court reversed the trial court's finding of unfitness where the respondent was never given an assessment or a service plan, but DCFS simply predetermined he was unfit due to his incarceration. Keyon R., 2017 IL App (2d) 160657, ¶ 30. In a different case, but referring to Keyon R., the appellate court noted that "using the respondent's lack of compliance with nonexistent services to terminate his parental rights was paradoxical." In re Neveah R., 2017 IL App (2d) 170229, ¶ 22. Keyon R. is distinguishable. Here, respondent was given an integrated assessment and a service plan.
¶ 23 Respondent recognizes the factual dissimilarities between the present case and Keyon R. Nevertheless, respondent argues the legislature intended to make the obligation of completing services dependent on their availability. Respondent relies on our decision in In re J.R.Y., 157 Ill.App.3d 396, 403 (1987), where we held that the "mere fact of incarceration is not evidence of failure to make reasonable progress." However, we also opined that "incarceration does not provide [a respondent] with immunity from a petition to terminate parental rights." J.R.Y., 157 Ill.App.3d at 403.
¶ 24 Respondent asks us to interpret section 1(D)(m)(ii) of the Adoption Act to exclude time spent in prison without available services from the relevant nine-month periods in which he failed to make reasonable progress. In In re J.L., 236 Ill.2d 329, 340 (2010), our supreme court rejected the argument that a respondent's imprisonment tolls any nine-month period during which reasonable progress must be made. Although the court in J.L. did not consider the statutory language urged here by respondent, we do not find that language distinguishes this case from J.L. The statute says that if services were available, a parent's failure to complete those services is included in a determination of failure to make reasonable progress. Nothing in the plain language of the statute exempts an incarcerated parent from the requirement of making reasonable progress during any relevant nine-month period. To interpret the statute as respondent suggests would lead to absurd and unjust results. Children who are adjudicated neglected could wait years before being freed for adoption.
¶ 25 Respondent acknowledges the trial court correctly found that "reasonable progress" is an objective standard. In re F.P., 2014 IL App (4th) 140360, ¶ 88. A parent has made reasonable progress when progress to comply with directives for return of the child is "sufficiently demonstrable" and of "such quality that the court, in the near future, will be able to order the child returned to parental custody." (Emphasis in original and internal quotation marks omitted.) F.P., 2014 IL App (4th) 140360, ¶ 88. In F.P., the trial court found the respondent-mother unfit because she failed to make reasonable progress. F.P., 2014 IL App (4th) 140360, ¶ 73. The lack of reasonable progress was due to the respondent's incarceration, which prevented her from completing the goals in her service plan of obtaining adequate housing and employment. F.P., 2014 IL App (4th) 140360, ¶ 76. We affirmed, holding that the respondent's "personal circumstances"-meaning incarceration-were irrelevant to the objective standard of reasonable progress. F.P., 2014 IL App (4th) 140360, ¶ 89. This is the standard the court applied in the case at bar. Accordingly, we determine that the trial court properly applied section 1(D)(m)(ii) of the Adoption Act in finding that respondent failed to make reasonable progress.
¶ 26 Next, respondent argues his counsel was ineffective for failing to present any evidence to rebut the presumption of depravity. In addition to finding respondent unfit under count I of the motion to terminate parental rights (failure to make reasonable progress), the trial court also found respondent unfit on the ground of depravity, as alleged in count II of the State's motion to terminate parental rights. The court continued the unfitness hearing for respondent to present any evidence he wished. Respondent presented no evidence to rebut the presumption of depravity that was raised by the certified copies of convictions.
¶ 27 To prevail on an ineffective-assistance-of-counsel claim in a termination-of-parental-rights proceeding, a respondent must show that counsel's performance was (1) deficient and (2) prejudicial. In re A.P.-M., 2018 IL App (4th) 180208, ¶ 39. To establish deficient performance, a respondent must demonstrate that counsel's performance fell below an objective standard of reasonableness. A.P.-M., 2018 IL App (4th) 180208, ¶ 40. To establish prejudice, a respondent must show that, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. A.P.-M., 2018 IL App (4th) 180208, ¶ 41. Failure to satisfy either prong is fatal to an ineffective-assistance-of-counsel claim. A.P.-M., 2018 IL App (4th) 180208, ¶ 41.
¶ 28 Respondent argues the record shows his counsel (1) was unfamiliar with the applicable laws and (2) failed to investigate the facts. Respondent concludes his counsel was unfamiliar with the applicable laws because "[i]t is difficult to imagine a scenario where a trial counsel would make a conscious decision not to present" evidence to rebut the presumption of depravity. Respondent posits that counsel failed to investigate the facts based on counsel's limited contact with him by telephone during the proceedings and counsel's failure to explore or develop respondent's participation in an early release program. As to the prejudice prong, respondent argues the certified convictions, standing alone, were not clear and convincing evidence of depravity. Respondent argues that his convictions, all alcohol-related, showed he has a disease rather than a moral deficiency.
¶ 29 "Depravity" is defined as "an inherent deficiency of moral sense and rectitude." (Internal quotation marks omitted.) In re Shanna W., 343 Ill.App.3d 1155, 1166 (2003). Section 1(D)(i) of the Adoption Act creates a rebuttable presumption of depravity where a parent has been criminally convicted of at least three felonies and at least one of these convictions took place within five years of the filing of the motion to terminate parental rights. 750 ILCS 50/1(D) (West 2022). Because the presumption is rebuttable, the parent can present evidence showing that, despite the convictions, he or she is not depraved. Shanna W., 343 Ill.App.3d at 1166. Once the parent produces evidence opposing the presumption, it ceases to operate, and the issue is determined as if no presumption ever existed. In re Addison R., 2013 IL App (2d) 121318, ¶ 24. Evidence of rehabilitation is shown only by a parent who "leaves prison and maintains a lifestyle suitable for parenting children safely." Shanna W., 343 Ill.App.3d at 1167.
¶ 30 The State concedes counsel's performance was deficient but argues respondent suffered no prejudice. We do not accept the State's concession. A reviewing court is not bound by a party's concession. People v. Horrell, 235 Ill.2d 235, 241 (2009). Here, the State's concession is erroneous because, as noted, rehabilitation can be shown only by a parent who is out of prison and maintaining a suitable lifestyle for parenting children safely. Shanna W., 343 Ill.App.3d at 1167. Participation in some services or making some efforts at rehabilitation while still in prison will not overcome the presumption of depravity. Addison R., 2013 IL App (2d) 121318, ¶ 30. Consequently, despite respondent's good and sincere intentions and his participation in valuable prison educational opportunities, he could not present evidence of rehabilitation sufficient to overcome the presumption of depravity. Respondent testified to his aspirations of setting up a household with his longtime girlfriend and creating a suitable home for R.E., but, unfortunately, those aspirations do not meet the legal standard.
¶ 31 Although a single felony conviction is insufficient to establish depravity, a pattern of criminality will suffice. In re M.B.C., 125 Ill.App.3d 512, 514 (1984). Here, the four certified felony convictions show that respondent committed six driving-while-intoxicated offenses, as well as the offenses of driving while license suspended and revoked and recklessly endangering safety.
The record shows the State of Wisconsin treated these offenses as serious criminal activity. The accumulation of convictions demonstrates a pattern of criminal activity. Accordingly, we determine that respondent cannot establish his counsel's performance was deficient.
¶ 32 Nor can respondent demonstrate prejudice. Respondent relies on Keyon R., where the court held that the State failed even to raise a presumption of depravity because all of the respondent's felony convictions occurred eight years prior to the filing of the motion to terminate parental rights. Keyon R., 2017 IL App (2d) 160657, ¶ 21. The court also held that the respondent's continued incarceration was irrelevant to a finding of lack of progress because DCFS made clear that it would never consider reuniting the respondent with the minor under any circumstances. Keyon R., 2017 IL App (2d) 160657, ¶ 31. Here, DCFS gave respondent a service plan, but he did not engage in services because they were not available to him in prison. We have already held his noncompliance was grounds to find a lack of reasonable progress. Therefore, respondent cannot demonstrate that the outcome of the proceedings would have been different even if his counsel had performed deficiently. Accordingly, we affirm the trial court's decision to terminate respondent's parental rights.
¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we affirm the trial court's judgment.
¶ 35 Affirmed.