A.W. ( 2022 )

2022 IL App (2d) 210219-UNo. 2-21-0219
Order filed January 10, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re A.W., a Minor, ) Appeal from the Circuit Court of
) Winnebago County.
)
) No. 19-JA-471
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Darnell W., ) Francis M. Martinez,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Presiding Justice Bridges and Justice Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court’s finding that respondent father was unfit was not against the
manifest weight of the evidence. Affirmed.
¶2 Respondent, Darnell W., appeals from the trial court’s order finding that he was an unfit
parent and that it was in the best interests of his minor child, A.W., that respondent’s parental
rights be terminated. Initially, appointed appellate counsel filed a motion to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967), and In re Alexa J., 345 Ill. App. 3d 985 (2003), stating
that she reviewed the record, determined that there were no meritorious issues that could be raised
on appeal, and served respondent with a copy of the motion. The notice of appeal was filed on
April 23, 2021, and counsel filed the motion to withdraw on June 18, 2021. We denied the motion
2022 IL App (2d) 210219-Uwithout prejudice on September 15, 2021, and counsel subsequently submitted a brief raising three
claims of error on October 8, 2021. Accordingly, there is good cause for issuing our decision
beyond 150 days after the notice of appeal was filed. See Ill. S. Ct. R 311(a)(5) (eff. July 1, 2018).
For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Respondent’s daughter, A.W., was born in October 2019. The State filed a neglect petition
on October 30, 2019, alleging that A.W. was born with cocaine, or a metabolite of cocaine, in her
blood, urine, or meconium. Respondent and A.W.’s mother appeared in the trial court on October
31, 2019, and waived their rights to a shelter care hearing. 1 The trial court adjudicated A.W. to be
a neglected child, placed her in the temporary custody of the Department of Children and Family
Services (DCFS), and ordered the parents to complete various services per a stipulated agreement.
¶5 Respondent and A.W.’s mother had two other children together. Respondent’s parental
rights with respect to those children had previously been terminated, and the children had been
placed with a foster parent, who subsequently adopted them. A.W. was also placed with the same
foster parent. Respondent was on probation at the time the petition was filed. He had been
diagnosed with schizophrenia and was receiving treatment.
¶6 In January 2020, the trial court held its first permanency-review hearing. Respondent and
A.W.’s mother stipulated that they were either unfit, unable for reasons other than financial, or
unwilling to care for A.W. and agreed to DCFS guardianship of A.W. The court placed A.W. in
short-term care with a goal to return home. See 705 ILCS 405/2-28(2)(B) (West 2020).
1
The parental rights of A.W.’s biological mother were also terminated but are not at issue
in this appeal.
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2022 IL App (2d) 210219-U¶7 At a July 9, 2020, permanency-review hearing, the trial court determined that respondent
had made reasonable efforts during the review period. The next permanency-review hearing was
scheduled for December 8, 2020, but was continued until January 4, 2021. Following the hearing,
the court concluded that it was appropriate to change the goal to substitute care pending
termination of parental rights. See id. § 2-28(2)(C).
¶8 On February 9, 2021, the State filed a petition to terminate respondent’s parental rights.
The petition alleged that respondent had (1) “failed to maintain a reasonable degree of interest,
concern or responsibility as to [A.W.’s] welfare” (750 ILCS 50/l(D)(b) (West 2020)) (count I);
(2) “failed to protect [A.W.] from conditions within the environment injurious to [her] welfare”
(id. § l(D)(g)) (count II); (3) “failed to make reasonable efforts to correct the conditions that caused
[A.W.] to be removed during” the period of April 5, 2020, to January 4, 2021 (count III) (id.
§ 1(D)(m)(i)); and (4) “failed to make reasonable progress toward the return of [A.W.] to him
during” either (a) the period of January 10, 2020, to October 10, 2020, or (b) the period of April
5, 2020, to January 4, 2021 (id. § l(D)(m)(ii)) (count IV).
¶9 On March 8, 2021, the trial court conducted a termination of parental rights fitness hearing.
Two witnesses testified: Krista Vaccarello and respondent.
¶ 10 Vacarello had been A.W.’s DCFS caseworker since June 2020. She testified that, after
A.W. was removed from her parents’ care, DCFS conducted an integrated assessment and
generated a service plan, which was periodically reviewed. The State introduced into evidence the
integrated assessment report as well as service plans dated December 2019, February 2020, and
August 2020.
¶ 11 As part of the service plan, respondent was required to complete the partner abuse
intervention program (PAIP), engage in mental health services, undergo a substance abuse
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2022 IL App (2d) 210219-Uassessment and engage in substance abuse services, and demonstrate satisfactory cooperation and
parenting. Although respondent had enrolled in PAIP twice, he had not completed it and provided
no explanation. Respondent had been diagnosed with schizophrenia and was fully compliant with
his mental health services and his medication schedule.
¶ 12 It was recommended that respondent attend alcoholics anonymous (A.A.) and narcotics
anonymous (N.A.). Although respondent had told her he had attended meetings, he provided no
proof of attendance and Vaccarello had not received any supporting documentation. She was
concerned about respondent’s ability to remain sober. Respondent had continued to live with
A.W.’s mother during the service plan period even though she was still actively using drugs.
Respondent missed drug screenings in September and October 2020. On cross-examination,
Vaccarello explained that respondent was drug-tested at least monthly and agreed that, although
he missed some drops, most of his drops were negative. Moreover, Vaccarello had previously
reported to the court that respondent’s probation officer told her that defendant tested positive for
alcohol in September and October 2020.
¶ 13 Vaccarello was aware of an incident in which police were called to respondent’s home.
She believed police had been told that respondent threatened to kill A.W.’s mother.
¶ 14 Respondent was consistent in his visits with A.W., missing only when A.W. was sick.
However, Vaccarello denied that respondent had “provided any form of support or clothing or
food” or “inquired about the safety or health or welfare” of A.W. She had concerns about
respondent’s mental health, the possibility of his continued drug use, and his ability to safely
parent.
¶ 15 Respondent testified that he was enrolled in domestic violence classes in January 2021. He
attended one session but was discharged. He thought someone would notify him of the next
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2022 IL App (2d) 210219-Uscheduled session but was never contacted. Respondent did not know that “they don’t contact
people.” Respondent further testified that, during his visits with A.W., respondent attempted to
bring clothes and other items but DCFS did not let him.
¶ 16 From April 2020 until the date of his testimony, respondent attended A.A. and N.A.
meetings “every day” except Fridays, missing only a few meetings due to, for example, doctor’s
appointments. He did not have a sponsor. He never documented his attendance, although he
verbally told his caseworker he had been attending. He completed his steps and had been
“upgrade[d]” to another part of the substance abuse counseling program. When asked why he had
not told his caseworker about his A.A. and N.A. attendance, respondent stated, “I’ve been getting
different case managers, stuff like that, and lost numbers, different phone stuff, you know. Just
wasn’t going right. So I couldn’t report at that time.” When asked if he had any evidence of his
attendance, respondent replied “I left them at home.” He also described the format of meetings and
explained that A.A. participants recite a “serenity prayer” after every meeting, but he did not know
the prayer.
¶ 17 Respondent testified that he had not used marijuana since 2016. He stated, “I don’t do
drugs, but I was playing around with some fentanyl” and admitted to snorting fentanyl in “2019 or
2018.”
¶ 18 In December 2020, respondent moved out of the residence he shared with A.W.’s mother
and into his sister’s house. Regarding the incident involving police, respondent denied that he
threatened A.W.’s mother and explained that police found ammunition that belonged to his
stepbrother.
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2022 IL App (2d) 210219-U¶ 19 On April 19, 2021, the trial court found respondent unfit (under counts I, III, and IV) by
clear and convincing evidence and that termination of respondent’s parental rights would be in
A.W.’s best interest. Regarding the unfitness finding, the trial court noted the following:
“Father’s services were as follows: Mental health services, substance abuse
assessment and treatment, parenting, domestic violence services, and parent coaching I
believe was the final service. He did not engage in PAIP, according to testimony, attempted
but missed dates.
Per the Family Service Plan, State’s Exhibit No. 4, he did not complete the DV
services because he did not complete substance abuse and did not demonstrate sobriety.
The delay in substance abuse treatment caused a delay in parenting. The cumulative
effect of these delays or incomplete services resulted in a failure to make efforts or
progress.
Therefore, the State has proven 1, 3 and 4, Counts 1, 3 and 4, by clear and
convincing evidence.”
Respondent timely appealed.
¶ 20 II. ANALYSIS
¶ 21 Respondent argues that the trial court erred in finding him unfit on each of its three
grounds—that he failed to maintain a reasonable degree of interest, concern or responsibility for
A.W.’s welfare; to make reasonable efforts to correct the conditions that led to A.W.’s removal;
and to make reasonable progress toward A.W.’s return.
¶ 22 Every case involving a finding that a parent is unfit is sui generis. In re Adoption of Syck,
138 Ill. 2d 255, 278 (1990). A parent may be found unfit on the ground that he or she has “fail[ed]
to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.”
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2022 IL App (2d) 210219-U750 ILCS 50/1(D)(b) (West 2020). If a child has been adjudicated a neglected minor, a parent may
be found unfit if, during any nine-month period following such adjudication, he or she failed “to
make reasonable efforts to correct the conditions that were the basis for the removal of the child
from the parent” or “to make reasonable progress toward the return of the child to the parent.” Id.§ 1(D)(m)(i), (ii) (West 2020). Whether a parent has made “reasonable efforts” is judged
subjectively; whether a parent has made “reasonable progress” is judged objectively and requires
“measurable or demonstrable movement toward the goal of reunification.” In re Jacorey, 2012 IL
App (1st) 113427, ¶ 21. The “benchmark” for determining whether a parent has made reasonable
progress toward the return of the child “encompasses the parent’s compliance with the service
plans and the court’s directives, in light of the condition which gave rise to the removal of the
child” and “other conditions which later become known and which would prevent the court from
returning custody of the child to the parent.” In re C.N., 196 Ill. 2d at 216–17; see also 750 ILCS
50/1(D)(m) (West 2020) (“ ‘[F]ailure 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[.]”). A finding that any of the three above grounds is satisfied can support a finding
of unfitness. See 750 ILCS 50/1(D) (West 2020) (“The grounds of unfitness are any one or more
of the following***.”). We choose to focus on the third ground relied on by the trial court—
whether respondent demonstrated reasonable progress—although we would reach the same result
under all three grounds.
¶ 23 A trial court’s finding of unfitness will be reversed only if it is against the manifest weight
of the evidence. In re Adoption of L.T.M., 214 Ill. 2d 60, 68 (2005). We defer to the findings of the
trial court because it is in the best position to observe and assess the credibility of witnesses. In re
D.F., 201 Ill. 2d 476, 498-99 (2002). A finding is against the manifest weight of the evidence if is
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2022 IL App (2d) 210219-Uunreasonable, arbitrary, or not based on the evidence presented. Id. at 498.
¶ 24 The trial court found that there was a delay in respondent’s substance abuse treatment,
which caused a delay in parenting. According to the court, “The cumulative effect of these delays
or incomplete services resulted in a failure to make efforts or progress.” Thus, the court found
defendant unfit, and this finding is not against the manifest weight of the evidence.
¶ 25 Respondent challenges the unfitness finding on grounds that: (1) he maintained regular
visits with A.W., (2) he consistently engaged in mental health treatment and complied with his
medication regimen, (3) he consistently attended A.A. and N.A. meetings, (4) most of his drug
tests were negative, (5) he completed a PAIP assessment and was ready to begin domestic violence
counseling, and (6) as of December 2020 he was no longer living with A.W.’s mother. However,
several facts adduced at the fitness hearing weighed in favor of a finding that respondent failed to
make reasonable progress: (1) respondent submitted no documentation of his A.A. or N.A. meeting
attendance; (2) he was unable to recite the A.A. serenity prayer despite testifying that he attended
meetings regularly; (3) he missed several drug screenings and, according to his probation officer,
tested positive twice for alcohol; (4) he had not meaningfully engaged in domestic violence
services during the year prior to the hearing; and (5) he continued to live with A.W.’s mother until
December 2020 despite her continued drug use. Respondent’s conduct during the period of
substitute care, and his failure to fulfill conditions of his service plan, bear directly on the
reasonableness of his efforts and progress toward A.W.’s return and on the extent of respondent’s
interest, concern, or responsibility for A.W.’s welfare. Under these circumstances, based on the
evidence presented, the finding of respondent’s unfitness was not against the manifest weight of
the evidence.
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2022 IL App (2d) 210219-U¶ 26 Respondent also argues that the trial court’s finding that he failed to make reasonable
efforts to cure the conditions that caused A.W. to be removed was not based on the evidence. The
court found at a July 9, 2020, permanency review hearing that defendant had, at that time,
demonstrated reasonable efforts. Respondent contends that the court was thus required to find that
the State failed to satisfy its burden for count III, but provides no authority for this contention. This
argument has no merit. The time period specified by the State for count III included the six months
following the July 9, 2020, hearing. Even if defendant’s efforts were satisfactory before that date,
the trial court was not prohibited from making a contrary finding after considering additional
evidence. Regardless, we reiterate that any of the three findings of unfitness was sufficient and we
would reach the same outcome considering any ground.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 29 Affirmed.
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