In re M.I. ( 2016 )

2016 IL 120232IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120232)
In re M.I., a Minor (People of the State of Illinois, Appellant, v. J.B., Appellee).
Opinion filed December 15, 2016.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 The State filed a petition to terminate the parental rights of J.B. for failing to
maintain a reasonable degree of interest, concern, or responsibility for his daughter
M.I.’s welfare (750 ILCS 50/1(D)(b) (West 2014)) and for failing to make
reasonable progress toward the return of M.I. (750 ILCS 50/1(D)(m) (West 2014)).
The juvenile court granted the State’s petition. The appellate court, in a split
decision, reversed and remanded, finding that the trial court’s conclusions were
against the manifest weight of the evidence. The dissenting justice would have
affirmed the judgment of the juvenile court. We allowed the State’s petition for
leave to appeal, pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015), to
determine (1) whether the appellate court improperly grafted a willfulness
requirement onto subsections (b) and (m) of the Adoption Act (750 ILCS
50/1(D)(b), (m) (West 2014)), (2) whether the juvenile court erred by not expressly
stating that it did not consider evidence outside the nine-month period in ruling on
subsection (m), (3) whether the juvenile court’s ruling was against the manifest
weight of the evidence, and (4) whether the State is limited to asserting subsection
(p) when petitioning to terminate an intellectually disabled parent’s rights. We
allowed the Cook County Public Guardian as well as Equip for Equality, the
Family Defense Center, the Chicago Coalition for the Homeless, Cabrini Green
Legal Aid, and LAF (Legal Assistance Foundation) to file briefs as amici curiae
pursuant to Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010).
¶2 BACKGROUND
¶3 In July 2010, the Illinois Department of Children and Family Services (DCFS)
petitioned for wardship of M.I., a minor, pursuant to section 2-3 of the Juvenile
Court Act of 1987 (705 ILCS 405/2-3 (West 2014)). DCFS alleged that M.I.’s
mother, E.I., had neglected her and that M.I.’s father, J.B., had an extensive
criminal history. The juvenile court granted the petition, finding M.I. to be
neglected and also finding both parents, E.I. and J.B., to be fit. On October 13,
2010, the juvenile court directed J.B. to execute any necessary authorizations for
release of information requested by DCFS, cooperate with DCFS, obtain a drug and
alcohol assessment, submit to random drug testing twice monthly, undergo a
psychological examination, and complete a parenting class.
¶4 In 2011, J.B. underwent a psychological examination per the juvenile court’s
directive. The examination revealed the following information about J.B. Until he
dropped out of his senior year of high school, J.B. was enrolled in special education
courses for learning disabilities. J.B. had been unemployed since 2007. J.B. had
been incarcerated on eight different occasions for approximately 18 to 19 years in
total but had not been incarcerated since 2005. J.B. suffers from bipolar disorder.
Also, J.B. admitted to regular marijuana use but indicated that he had been clean for
two months. It was further discovered that J.B. lacked his own residence, is
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functionally illiterate, and possesses an IQ of 58, indicating significant intellectual
limitation and mild mental retardation. The psychologist concluded that, from an
intellectual and academic perspective, J.B. could not independently parent M.I. and
recommended that any interventions and services be modified. Additionally, the
psychologist opined that J.B. could benefit from circumscribed interventions
because J.B.’s functioning limited his ability to benefit from traditional mental
health services involving verbal exchange.
¶5 On March 21, 2011, the State filed a motion to find J.B. unfit. The State
asserted that J.B. did not attend drug testing or participate in a drug and alcohol
evaluation and that J.B. refused to provide an address to his caseworker. The
State’s motion to find J.B. unfit was granted on March 30, 2011. Thereafter, at five
different permanency hearings, the juvenile court found that he had failed to make
reasonable efforts to achieve the service plan and permanency goal.
¶6 In May 2013, the juvenile court returned guardianship of M.I. to her mother,
E.I., but subsequently found E.I. unfit and appointed DCFS as guardian. On April
30, 2014, the juvenile court found that J.B. had not made reasonable efforts, and the
permanency goal was changed to “substitute care pending court decision.”
¶7 In May 2014, the State filed a petition to terminate E.I.’s and J.B.’s parental
rights. The State alleged that J.B. had (1) failed to maintain a reasonable degree of
interest, concern, or responsibility under subsection (b) and (2) failed to make
reasonable progress toward the return of M.I. between August 1, 2013, and May 1,
2014, under subsection (m).
¶8 At the adjudicatory hearings in December 2014 and February 2015 on the
petition for termination of parental rights, the State presented the testimony of
Brenda Lee, the assigned caseworker. Lee began working on the case on August
11, 2011. Lee testified that when she had asked J.B. about his drug use, he
responded that he had been through classes before and was continuing to use
marijuana. J.B. indicated that he would not stop using marijuana.
¶9 Lee further testified that, as of February 2012, J.B. had not provided DCFS with
his address, had indicated that he would not stop using marijuana, and had not
completed drug testing. Lee explained that she did not provide J.B. referrals for
various services because she did not have J.B.’s contact information but did give
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J.B. information about community agencies offering such services. Lee initially
gave J.B. bus passes to attend visitation and drug testing in Peoria. J.B. somewhat
regularly attended visits with M.I. until he missed a week, attended two to three
more visits, and then stopped. Lee ceased providing the passes when J.B. began
using them for other purposes. Beginning around August 2012, Lee required J.B. to
call in before visits with M.I because J.B.’s inconsistent attendance was having a
negative impact on M.I. Lee testified that J.B. followed this procedure for a couple
of visits.
¶ 10 Although Lee was not certain, she did not believe that J.B. visited M.I. between
August 15, 2012, and January 30, 2013. She did testify that J.B. did not complete
drug testing during that period. As of April 23, 2013, J.B. had not visited M.I. or
submitted to drug testing. He did attend permanency hearings. J.B. visited M.I.
once in June 2013. J.B. completed an Integrated Assessment interview, and Lee
restarted visits after M.I. went into foster care. J.B. visited twice in December 2013
and once in June 2014. A visit was scheduled the week before the December 2014
adjudicatory hearing but had to be rescheduled because M.I. was sick.
¶ 11 On cross-examination, Lee admitted that she never inquired about compliance
with the Americans with Disabilities Act (ADA) or whether the parenting classes
were proper for J.B. given his mental disabilities because J.B. did not follow
through on services. Lee did not inquire into DCFS services or guidelines regarding
homeless clients, did not provide J.B. any homemaker services, and did not modify
his services. Although Lee had conversations with J.B. about restarting psychiatric
care at the Human Service Center and had J.B. sign medical releases so Lee could
obtain his medical records, J.B. did not follow up with the center.
¶ 12 The juvenile court found J.B. unfit under count IV, which alleged that J.B.
failed to maintain a reasonable degree of interest, concern, or responsibility under
subsection (b). The juvenile court specifically noted J.B.’s disinterest.
Additionally, J.B. was found unfit under subsection (m) for failing to make
reasonable progress toward reunification. The juvenile court commented that
DCFS could not modify services for someone who did not show up. The juvenile
court also noted that J.B.’s presence at some visits and attendance at court
proceedings indicated that his failure to attend other visitations was a choice rather
than a product of J.B.’s low IQ. The juvenile court stated that it had considered
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J.B.’s IQ and read through the psychological evaluation but nevertheless concluded
that J.B. appeared to be disinterested. Specifically, the juvenile court stated:
“It’s hard to modify services for a person that’s not willing to show up. You
know, you didn’t maintain contact. You were inconsistent in your visits. You
did come to court.
You have one visit from April 2013 to May of 2014. *** They probably
could have modified services, but you’re not making contact with the
caseworker. You met her August 29th, 2011, and would not give her your
address. How is she to maintain contact with you or modify services if you were
unwilling to give her information to contact you? That’s the decision you made.
I don’t think it has anything to do with your IQ. As we look at this, you were
able to use bus passes for the visits you did make. You were sporadic in your
visits, and I think you understand the importance of making visits.
You know, but you made your visits that you saw fit. And you didn’t visit
on a regular basis. That was your choice. I understand the bus passes were taken
away from you, because you were not using them for your visits. You do come
to court. I commend you for that. But I think by clear and convincing evidence,
you have not maintained a reasonable degree of interest, concern, or
responsibility as to the minor’s welfare.
And obviously during this period of time being May—excuse me—August
1, 2013[,] to May 1st, 2014, you weren’t even really visiting with the child on a
consistent basis as I said earlier. Therefore, I find Count 3 and 4 *** proven as
to you ***.”
¶ 13 On May 20, 2015, the juvenile court held a best interest and permanency review
hearing. Lee’s testimony was presented again. By May 20, 2015, additional
permanency and best interest reports, a bonding assessment of J.B. and M.I., and a
bonding assessment of M.I.’s foster parents were also before the juvenile court. The
juvenile court found that DCFS had made reasonable efforts to achieve
permanency. An order was entered terminating J.B.’s parental rights, and J.B.
appealed.
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¶ 14 The appellate court reversed in a split decision, finding that the juvenile court
failed to take into account J.B.’s circumstances—his low IQ and functioning. The
majority noted: “The record is clear that there was no consideration of how the
respondent’s mental retardation impacted his efforts to comply with the court’s
directives.” 2015 IL App (3d) 150403, ¶ 16. Specifically, the majority stated:
“We cannot accept the trial court’s determination that failing to complete a
task that is beyond one’s intellectual capacity is the same as refusing to comply
with court-ordered directives and willfully not making reasonable progress
toward the return of a minor child or willfully failing to maintain a reasonable
degree of interest in the child.” Id.¶ 15 Important to the majority’s holding was the fact that the State never provided
J.B. a service plan, and therefore, the only benchmarks to measure J.B.’s progress
were the tasks the trial court assigned. The majority believed that J.B.’s failure to
schedule appointments, submit to all drug drops, attend all visitations, and provide
an address to his caseworker might be sufficient to demonstrate a lack of reasonable
progress or a failure to maintain a reasonable degree of interest if J.B. were not
intellectually disabled. The majority also found that the juvenile court erred in
considering evidence outside the nine-month period pertaining to the reasonable
progress count under subsection (m). Further, the majority remarked that the
statutory scheme of the Adoption Act “recognizes that there are situations where, as
here, through no fault, a parent lacks the sufficient mental ability necessary to be
responsible for the welfare of a child.” Id.; see 750 ILCS 50/1(D)(p) (West 2014).
¶ 16 The dissent asserted that the majority reversed the juvenile court on a basis for
which it had no legal authority and should not read into the Adoption Act a
requirement that does not exist. 2015 IL App (3d) 150403, ¶ 25 (Schmidt, J.,
dissenting). The dissent noted: “whether respondent failed to make reasonable
progress toward the return of M.I. or failed to maintain a reasonable degree of
interest, concern or responsibility in her welfare because he is intellectually
incapable or because he outright refused to do so is irrelevant to this court’s
inquiry.” Id. ¶ 26. Furthermore, the dissent believed that the evidence supported the
juvenile court’s findings.
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¶ 17 ANALYSIS
¶ 18 Before this court, the State argues that (1) the appellate court majority
improperly grafted a willfulness requirement onto the plain language of subsections
(b) and (m) of the Adoption Act (750 ILCS 50/1(D)(b), (m) (West 2014)); (2) the
juvenile court did not err by failing to expressly state, when ruling on subsection
(m), that it did not consider evidence outside the statutorily prescribed nine-month
period of consideration; (3) the juvenile court’s ruling was not against the manifest
weight of the evidence; and (4) the State is not limited to asserting subsection (p) to
terminate an intellectually disabled parent’s parental rights.
¶ 19 “In Illinois, the authority to involuntarily terminate parental rights is purely
statutory and the scope of the court’s authority is defined by the Juvenile Court Act
and the Adoption Act.” In re E.B., 231 Ill. 2d 459, 463 (2008). Illinois policy
“favors parents’ superior right to the custody of their own children.” Id. at 464.
¶ 20 Section 2-29 of the Juvenile Court Act sets forth a two-step process for the
involuntary termination of parental rights. 705 ILCS 405/2-29(2) (West 2014).
“First, the court must find, by ‘clear and convincing evidence, that a parent is an
unfit person as defined in Section 1 of the Adoption Act.’ ” In re J.L., 236 Ill. 2d
329, 337 (2010) (quoting 705 ILCS 405/2-29(2) (West 2008)). “When ruling on
parental unfitness, a court is not to consider the child’s ‘best interests.’ ” In re
Adoption of Syck, 138 Ill. 2d 255, 276 (1990). “Second, once a finding of parental
unfitness is made under section 1(D) of the Adoption Act, the court considers the
‘best interest’ of the child in determining whether parental rights should be
terminated.” In re J.L., 236 Ill. 2d at 337 (quoting 705 ILCS 405/2-29(2) (West
2008)).
¶ 21 “[A] finding of unfitness will not be reversed unless it is against the manifest
weight of the evidence *** [because] the trial court’s opportunity to view and
evaluate the parties *** is superior to that of a reviewing court.” In re Brown, 86 Ill.
2d 147, 152 (1981). “A court’s decision regarding a parent’s fitness is against the
manifest weight of the evidence only where the opposite conclusion is clearly
apparent.” In re Gwynne P., 215 Ill. 2d 340, 354 (2005). “Each case concerning
parental unfitness is sui generis, unique unto itself.” In re Adoption of Syck, 138 Ill.
2d at 279.
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¶ 22 Here, whether the juvenile court’s findings were against the manifest weight of
the evidence depends on whether subsections (b) and (m) of the Adoption Act
expressly or implicitly contain a willfulness requirement. This court reviews issues
of statutory interpretation de novo. In re C.W., 199 Ill. 2d 198, 211 (2002). In
relevant part, section D of the Adoption Act provides:
“D. ‘Unfit person’ means 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. The grounds of unfitness are any one or more of the following, except
that a person shall not be considered an unfit person for the sole reason that the
person has relinquished a child in accordance with the Abandoned Newborn
Infant Protection Act:
***
(b) Failure to maintain a reasonable degree of interest, concern or
responsibility as to the child’s welfare.
***
(m) Failure by a parent *** (ii) to make reasonable progress toward the
return of the child to the parent during any 9-month period following the
adjudication of neglected or abused minor under Section 2-3 of the Juvenile
Court Act of 1987 or dependent minor under Section 2-4 of that Act. If a
service plan has been established as required under Section 8.2 of the
Abused and Neglected Child Reporting Act to correct the conditions that
were the basis for the removal of the child from the parent 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 and correct the conditions that brought the child into care
during any 9-month period following the adjudication under Section 2-3 or
2-4 of the Juvenile Court Act of 1987. Notwithstanding any other provision,
when a petition or motion seeks to terminate parental rights on the basis of
item (ii) of this subsection (m), the petitioner shall file with the court and
serve on the parties a pleading that specifies the 9-month period or periods
relied on.” 750 ILCS 50/1(D)(b), (m) (West 2014).
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¶ 23 “Our primary objective in construing a statute is to give effect to the intention
of the legislature.” In re J.L., 236 Ill. 2d at 339. “The most reliable indicator of the
legislature’s intent is the language of the statute, which must be given its plain and
ordinary meaning.” Id. “[A] statute should be read as a whole, considering all
relevant parts.” Id. “Where the statutory language is clear and unambiguous, there
is no need to resort to other aids of construction.” In re C.W., 199 Ill. 2d at 211.
“We may not depart from a statute’s plain language by reading into it exceptions,
limitations, or conditions the legislature did not express.” In re J.L., 236 Ill. 2d at
339.
¶ 24 Whether Subsection (b) Contains a Willfulness Requirement
¶ 25 In finding that the juvenile court’s fitness determination regarding subsection
(b) was against the manifest weight of the evidence, the appellate court noted that,
“[w]e cannot accept the trial court’s determination that failing to complete a task
that is beyond one’s intellectual capacity is the same as refusing to comply with
court-ordered directives and willfully *** failing to maintain a reasonable degree
of interest in the child.” 2015 IL App (3d) 150403, ¶ 16. The State asserts that,
although the appellate court did not explicitly engage in statutory construction of
subsection (b), the appellate court’s ruling improperly grafts a willfulness
requirement onto subsection (b). J.B. characterizes the appellate court’s statement
as obiter dictum that reflects existing precedent holding that “reasonable interest,
concern or responsibility” must be measured in light of the parent’s circumstances,
which includes consideration of a parent’s mental deficiency and poverty.
¶ 26 The language of subsection (b) is plain and unambiguous. Subsection (b)
contains no state of mind requirement, nor does it carve out an exception for
faultless failure. See 750 ILCS 50/1(D)(m) (West 2014). “In determining the plain,
ordinary, and popularly understood meaning of a term, it is entirely appropriate to
look to the dictionary for a definition.” People v. Bingham, 2014 IL 115964, ¶ 55.
“Failure” means “the fact of being cumulatively inadequate or not matching hopes
or expectations.” Webster’s Third New International Dictionary 815 (2002).
“Where the language is clear and unambiguous, courts may not read into it
exceptions that the legislature did not express.” In re J.L., 236 Ill. 2d at 340. Thus,
the plain meaning of the phrase “[f]ailure to maintain a reasonable degree of
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interest, concern or responsibility as to the child’s welfare” in subsection (b)
includes all situations in which a parent’s attempts at maintaining a reasonable
degree of interest, concern, or responsibility are inadequate, regardless of whether
that inadequacy seems to stem from unwillingness or an inability to comply.
¶ 27 Case law similarly indicates that subsection (b) contains no implied state of
mind requirement. Rather, case law holds that a parent’s reasonable interest,
concern, or responsibility requires consideration of a parent’s circumstances.
¶ 28 In In re Adoption of Syck, this court held that:
“[I]n determining whether a parent showed reasonable concern, interest or
responsibility as to a child’s welfare, [the trial court is required] to examine the
parent’s conduct concerning the child in the context of the circumstances in
which that conduct occurred. Circumstances that warrant consideration when
deciding whether a parent’s failure to personally visit his or her child
establishes a lack of reasonable interest, concern or responsibility as to the
child’s welfare include the parent’s difficulty in obtaining transportation to the
child’s residence [citations], the parent’s poverty [citation], the actions and
statements of others that hinder or discourage visitation [citation], and whether
the parent’s failure to visit the child was motivated by a need to cope with other
aspects of his or her life or by true indifference to, and lack of concern for, the
child [citation]. If personal visits with the child are somehow impractical,
letters, telephone calls, and gifts to the child or those caring for the child may
demonstrate a reasonable degree of concern, interest and responsibility,
depending upon the content, tone, and frequency of those contacts under the
circumstances. [Citations.] Also, mindful of the circumstances in each case, a
court is to examine the parent’s efforts to communicate with and show interest
in the child, not the success of those efforts. [Citation.]
*** In a case proceeding under section 1(D)(b) of the Adoption Act, the
issue is whether a parent maintained concern, interest and responsibility as to
his or her child’s welfare that, under the circumstances, was of a reasonable
degree.” (Emphasis in original.) 138 Ill. 2d at 278-80.
¶ 29 A parent’s circumstances, such as an intellectual disability, do not necessarily
or automatically redeem a parent’s failure to demonstrate reasonable interest,
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concern, or responsibility. Nor do such circumstances fix a different standard of
reasonableness. Rather, the question is whether a parent’s then-existing
circumstances provide a valid excuse. See id. at 276 (“[U]nlike other cases cited
therein where there were transportation difficulties, financial limitations, or
discouragement of parent’s visitation by State agency, here there was no valid
excuse for mother’s lack of effort to communicate with child.” (Emphasis added.)).
¶ 30 We find the Second District’s decision in In re E.O. illustrative of this point.
See In re E.O., 311 Ill. App. 3d 720 (2d Dist. 2000). There, the appellate court
noted that “a parent need not be at fault to be unfit” and a parent “is not fit merely
because she has demonstrated some interest in or affection for her children; her
interest, concern, and responsibility must be reasonable.” (Emphases in original.)
Id. at 727. The respondent mother argued that the evidence before the trial court did
not demonstrate that she was unfit and that her chronic mental illness made it
harder for her to visit or care for her children. Id. Specifically, the mother
contended that the trial court failed to understand that the reasonableness of her
behavior must be viewed in context of her mental illness. Id. Limiting its analysis to
whether there was sufficient evidence that the mother failed to show a reasonable
degree of interest, concern, or responsibility, the appellate court found that the trial
court did recognize that the mother’s mental illness at times required her to be
hospitalized and required use of prescription drugs. Id. Further, the appellate court
held that the mother made voluntary decisions to distance herself from her children.
Id. For example, when the mother’s two children were in foster care, the mother
moved to Florida for several months. Id. at 725. Before moving to Florida, the
mother had missed most of her scheduled visits and sometimes failed to inform
DCFS of her address. Id. at 728. The mother’s failure to visit more regularly or
keep in contact with DCFS was “not caused primarily by obstacles beyond
respondent’s control but, rather, by her own discouragement or inability to make
the children’s welfare the priority it would have to be if they were ever to be
returned to her.” Id. Although the mother “was still subjectively interested in her
children, her conduct was not reasonable under all the circumstances.” Id.
¶ 31 Similarly, in the present case, the juvenile court recognized obstacles facing
J.B., such as his intellectual disability, but concluded that J.B. still had the ability to
attend visitation and failed to do so. Whatever subjective interest J.B. may have for
M.I., J.B.’s actions failed to demonstrate that interest. Just as the respondent
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mother’s mental illness in In re E.O. did not provide a valid excuse for her failure to
visit her children, J.B.’s intellectual disability and poverty do not provide him with
a valid excuse for failing to attend visitation with M.I. Furthermore, and again like
the respondent mother in In re E.O., J.B.’s failure to attend visitation appears to be
the result of his voluntary decision making. For example, when J.B. was inclined to
do so, he attended most of the permanency hearings. We cannot, therefore, see how
J.B.’s failing to consistently attend visitation is attributable to anything but a lack of
interest.
¶ 32 Manifest Weight of the Evidence
¶ 33 Alternatively, J.B. argues that the appellate court did not imply an element of
willfulness into the statutory language of section 1(D)(b). Rather, the appellate
court’s statement was obiter dictum reflecting that J.B.’s intellectual disability and
poverty were not sufficiently considered by the juvenile court.
¶ 34 After reviewing the record, we hold that the juvenile court’s finding regarding
subsection (b) was not against the manifest weight of the evidence. Limited to the
facts in this case, the juvenile court properly considered J.B.’s circumstances before
concluding that J.B. failed to demonstrate a reasonable degree of interest, concern,
or responsibility.
¶ 35 J.B. sets forth multiple arguments as to why his circumstances were not
adequately considered. J.B. contends that his failure to attend visitation stemmed
from Lee’s ceasing to provide him free bus passes and that it was unreasonable to
expect a mentally ill, intellectually disabled homeless man to call by a certain time
on visitation days to confirm visits. J.B. cites In re Adoption of Syck, 138 Ill. 2d at
278-79, and In re Daphnie E., 368 Ill. App. 3d 1052 (2006), for the proposition
that, because J.B. did not regularly attend visitation, the juvenile court was to
consider other factors—like whether J.B. paid child support; sent M.I. gifts, cards,
or letters; or was prevented by M.I.’s mother from visiting M.I. outside of
scheduled DCFS-supervised visitations. The State, however, did not elicit
testimony regarding such factors and only focused on visitation. The State declined
to ask whether M.I.’s mother allowed J.B. to visit M.I. without DCFS supervision.
J.B. contends that because he is functionally illiterate, has no income, and is
homeless, he could not have been expected to pay child support; send M.I. gifts,
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cards, or letters; or navigate public transportation without the aid of free bus passes.
Regardless, J.B. asserts that the burden was on the State to inquire about other
indicia of interest, concern, or responsibility since he was missing visitation. At
oral argument, J.B. also contended that the juvenile court’s ruling was cursory.
Therefore, J.B. maintains that his circumstances were not considered by the
juvenile court and the State failed to meet its burden of presenting clear and
convincing evidence proving him unfit.
¶ 36 We disagree. Evidence of J.B.’s sporadic visitation sufficiently warrants the
juvenile court’s finding of unfitness. Attending visitation was not a task beyond
J.B.’s intellectual capacity. See 2015 IL App (3d) 150403, ¶ 16. As noted by the
assistant State’s Attorney before the juvenile court, “whatever level of his ability,
the first step is showing up.” J.B.’s circumstances were considered when deciding
whether his failure to visit M.I. established a lack of reasonable interest, concern, or
responsibility as to her welfare. See In re Adoption of Syck, 138 Ill. 2d at 278-79.
The juvenile court acknowledged J.B.’s low IQ. Despite his intellectual disability,
mental illness, poverty, and homelessness, J.B. was able to navigate the bus system
to make it to the majority of permanency review hearings, even after bus passes
were taken away. He also attended some visits. The juvenile court concluded that
J.B.’s failure to consistently attend visitation was due to choice rather than
circumstance. A court looks to other factors such as letters or telephone calls “[i]f
personal visits *** [were] somehow impractical.” Id. at 279. The primary
consideration is visitation; other factors demonstrating interest, concern, or
responsibility are considered if visitation was impractical. The ability to
consistently attend permanency review hearings does not demonstrate
impracticality. As such, the juvenile court did not err by finding that J.B. failed to
demonstrate interest, concern, or responsibility despite the lack of inquiry into
whether J.B. wrote M.I. letters, called M.I., or made other such attempts to
demonstrate his interest, concern, or responsibility.
¶ 37 J.B. argues that the juvenile court should have considered whether E.I. allowed
visitation between J.B. and M.I. or whether J.B. visited M.I. outside supervised
visitation. This contention fails. M.I. was in E.I.’s care from July 1, 2010, until
October 30, 2013. A permanency review order entered March 30, 2011,
specifically ordered that E.I. was not to supervise visits between J.B. and M.I.
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¶ 38 Further, J.B. did not submit to court-ordered bimonthly drug tests. He also
expressed an unwillingness to stop using marijuana. As the State argued at oral
arguments, an unwillingness to cease using drugs represents a lack of
responsibility.
¶ 39 We note that the parties presented arguments regarding the lack of a service
plan and lack of modification to services and directives after the psychological
evaluation concluded such was necessary to accommodate J.B.’s intellectual
deficit. However, subsection (b) does not hinge on a parent’s compliance with a
service plan or directives. See 750 ILCS 50/1(D)(b) (West 2014) (“Failure to
maintain a reasonable degree of interest, concern or responsibility as to the child’s
welfare.”). In contrast, under subsection (m), a parent’s “compliance with DCFS
service plans is intimately tied to a parent’s progress toward the return of the child,
so much so, that where a service plan has been established to correct the conditions
that were the basis for the removal of the child from the parent, the failure to make
reasonable progress now includes the failure to ‘substantially’ fulfill the terms of
that service plan.” In re C.N., 196 Ill. 2d 181, 217 (2001).
¶ 40 Regarding any intersect between the lack of service plan or service
modifications and J.B.’s attendance at visitation, the lack of service plan or
modifications do not excuse J.B.’s sporadic attendance. It was not evident that
visitation was impractical given J.B.’s ability to attend the majority of permanency
review hearings. As noted by the dissent and the State at oral argument, if a parent
does not show up, a State agency is not required to go get the parent or force the
parent to comply.
¶ 41 In sum, we do not find the juvenile court’s finding as to subsection (b) to be
against the manifest weight of the evidence.
¶ 42 Subsection (m)
¶ 43 In light of our conclusion regarding subsection (b), we decline to address the
parties’ arguments relating to subsection (m), including any concerns about a lack
of a service plan or service modifications in this case. We also decline to address
the question of whether a juvenile court must expressly state on the record, when
ruling on subsection (m), that it did not consider evidence from outside the relevant
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nine-month period. “A parent’s rights may be terminated if even a single alleged
ground for unfitness is supported by clear and convincing evidence.” In re
Gwynne P., 215 Ill. 2d at 349.
¶ 44 Whether the State Is Limited to Alleging Subsection (p)
to Terminate an Intellectually Disabled Parent’s Parental Rights
¶ 45 Implicit in this court’s holding, and as expressly noted in the statute, the State
has discretion to allege any ground it wishes when seeking to terminate parental
rights regardless of a parent’s intellectual disability. See 750 ILCS 50/1(D) (West
2014) (“The grounds of unfitness are any one or more of the following ***.”). The
State’s choice is dependent upon the evidence. See In re C.W., 199 Ill. 2d at 210(“Although section 1(D) of the Adoption Act sets forth numerous grounds under
which a parent may be deemed ‘unfit,’ any one ground, properly proven, is
sufficient to enter a finding of unfitness.” (Emphasis in original.)). As a matter of
statutory construction, this court “may not depart from a statute’s plain language by
reading into it exceptions, limitations, or conditions the legislature did not
express.” In re J.L., 236 Ill. 2d at 339. Simply because another specific ground may
also apply to a given case does not make the State’s choice in proceeding under a
different ground erroneous.
¶ 46 CONCLUSION
¶ 47 The plain and unambiguous language of subsection (b) does not contain a
willfulness requirement. The juvenile court considered J.B.’s intellectual disability
and other circumstances when it found J.B. unfit under subsection (b). As such, and
particularly due to J.B.’s sporadic attendance at visitation, the juvenile court’s
finding that J.B. is unfit pursuant to subsection (b) was not against the manifest
weight of the evidence. The State is not limited to alleging subsection (p) to
terminate an intellectually disabled parent’s parental rights. Because we conclude
that the juvenile court did not err in finding J.B. unfit under subsection (b), we
decline to address arguments regarding subsection (m).
¶ 48 Appellate court judgment reversed.
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¶ 49 Circuit court judgment affirmed.
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