In re Z.S. , 2023 IL App (4th) 221063-U ( 2023 )

NOTICE 2023 IL App (4th) 221063-UThis Order was filed under
FILED
NO. 4-22-1063 April 26, 2023
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the
IN THE APPELLATE COURT 4th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
In re Z.S., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Winnebago County
Petitioner-Appellee, ) No. 21JA94
v. )
Lamarr S., ) Honorable
Respondent-Appellant.) ) Francis M. Martinez,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Cavanagh and Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, holding the trial court’s findings that respondent
was unfit in that he failed to make reasonable progress during a nine-month
period after the adjudication of neglect and that termination of his parental rights
was in the minor’s best interest were not against the manifest weight of the
evidence.
¶2 Respondent, Lamarr S., appeals the trial court’s order terminating his parental
rights to his son, Z.S. (born March 22, 2021). Respondent argues the court erred in finding the
State had proven he was unfit for failing to make reasonable efforts to correct the conditions that
led to Z.S.’s removal or reasonable progress toward Z.S.’s return during either of the nine-month
periods alleged in the motion for termination of parental rights. Respondent also argues the court
erred in finding it was in Z.S.’s best interest to terminate respondent’s parental rights. We affirm.
¶3 I. BACKGROUND
¶4 On March 25, 2021, the State filed a neglect petition concerning Z.S. The next
day, the State filed an amended neglect petition. In the amended petition, respondent was named
as the putative father of Z.S., Amber H. was named as Z.S.’s mother, and Laiveil H., Amber’s
husband at the time of Z.S.’s birth, was named as Z.S.’s father. The amended petition alleged
Z.S. was neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile
Court Act) (705 ILCS 405/2-3(1)(b) (West 2020)) in that his environment was injurious to his
welfare because (1) Amber failed to cure the conditions that brought his sibling into care and
(2) Amber had mental health issues that prevented her from properly parenting.
¶5 The trial court held a shelter care hearing on March 25, 2021. Respondent
attempted to appear at the shelter care hearing by Zoom, but the court refused to let him do so
because he had outstanding arrest warrants. During the hearing, the parties indicated that
respondent was Z.S.’s biological father, and Laiveil was Z.S.’s legal father due to his status as
Amber’s husband at the time of Z.S.’s birth. The court ordered DNA testing to confirm
respondent was the biological father. After hearing witness testimony, the court found there was
probable cause to believe Z.S. had been neglected and awarded temporary custody and
guardianship of Z.S. to the Illinois Department of Children and Family Services (DCFS).
¶6 On June 16, 2021, an adjudicatory hearing was held. Respondent did not appear at
the hearing. On July 16, 2021, the trial court announced its ruling and entered an adjudicatory
order, finding the State had proven Z.S. was neglected under both counts alleged in the neglect
petition. The court allowed respondent to appear by Zoom when it announced its decision, and
the court appointed counsel to represent respondent at that time. The matter proceeded to a
dispositional hearing, and the court found the parents unfit, unwilling, or unable to care for Z.S.
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The court entered an order making Z.S. a ward of the court, granting guardianship to DCFS, and
ordering the parents to cooperate with DCFS and its contracting agencies.
¶7 On September 22, 2022, the State filed a motion to terminate respondent’s
parental rights as to Z.S. pursuant to the Adoption Act (750 ILCS 50/1 et seq. (West 2020)). The
motion alleged respondent was unfit in that he failed to (1) protect Z.S. from conditions within
the environment that were injurious to his welfare (id. § 1(D)(g)), (2) make reasonable efforts to
correct the conditions that were the basis for Z.S.’s removal during a nine-month period after the
adjudication of neglect (id. § 1(D)(m)(i)), and (3) make reasonable progress toward Z.S.’s return
during a nine-month period following the adjudication of neglect (id. § 1(D)(m)(ii)). The petition
indicated the nine-month periods at issue were from July 16, 2021, to April 16, 2022, and from
November 11, 2021, to August 11, 2022. We note the motion stated the second nine-month
period ranged from “11/11/22 to 8/11/22.” We assume this was a typographical error and that the
correct date for the beginning of the nine-month period was November 11, 2021.
¶8 The trial court held a fitness hearing on October 4, 2022, and November 2, 2022.
At the State’s request, the court admitted into evidence several service plans, including plans
approved on October 27, 2021, and April 12, 2022. Those service plans listed the following
“desired outcomes” for respondent: (1) cooperation with the agency, including completing
substance abuse and mental health assessments and (2) achieving “levels of interaction which do
not include acts of domestic violence.” Respondent’s progress as to these desired outcomes was
rated unsatisfactory in each of the service plans. The court also admitted documentation showing
respondent had a prior conviction for domestic battery in Winnebago County case No. 19-CF-
178.
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¶9 Evidence at the fitness hearing showed respondent was charged with aggravated
battery in Winnebago County case No. 20-CF-1851 for an August 2020 incident involving
Amber while she was pregnant with Z.S. A warrant for his arrest was issued on September 1,
2020, and he was arrested on July 25, 2021. After his arrest, he was extradited to California for a
few weeks. After he was released from custody in California, he returned to Illinois, pled guilty
to aggravated battery in Winnebago County case No. 20-CF-1851, and received a sentence of
probation. His probation was subsequently revoked. A warrant for his arrest was issued on
November 9, 2021, and he was arrested on February 17, 2022. He received a sentence of
imprisonment upon the revocation of his probation and was still incarcerated at the time of the
fitness hearing.
¶ 10 Samantha Hagerman, an employee of an agency contracted by DCFS to provide
case management services, testified she was respondent’s caseworker. Hagerman indicated Z.S.
came into care in March 2021, and she contacted respondent at the beginning of the case. She
completed an integrated assessment with respondent in June 2021, and it was recommended that
respondent complete domestic violence services, a substance abuse assessment, and a mental
health assessment.
¶ 11 Hagerman testified she had a meeting with respondent and his former attorney on
November 22, 2021. At the meeting, they discussed respondent completing a mental health
assessment and domestic violence services. They also planned for respondent to complete drug
drops and potentially a substance abuse assessment depending on the results of the drops.
Respondent failed to complete a mental health assessment or any drug drops before he was taken
into custody in February 2022. The agency had domestic violence concerns about respondent due
to a report of an incident of domestic violence involving him and Amber in January 2022.
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Hagerman testified that her agency did not refer respondent to domestic violence services. The
service plan dated April 12, 2022, indicated that the agency was unable to refer respondent to
domestic violence services because he failed to sign consents, and Hagerman testified at the
fitness hearing that the agency never received consents from respondent. Hagerman believed
respondent was referred to domestic violence services through probation before his incarceration
in February 2022, though she did not believe he would have been able to complete these services
through probation while he had outstanding warrants.
¶ 12 Hagerman testified that, early in the case, the trial court barred respondent from
having visitation because he had outstanding warrants. The bar was lifted after the November
2021 meeting, and respondent had visitation with Z.S. approximately once per month at his
mother’s house. The court again barred visitation in February 2022 because respondent had new
outstanding warrants. The second bar on visitation had not been lifted at the time of the fitness
hearing, even though respondent no longer had outstanding warrants. If the bar had been lifted,
respondent would have possibly been able to have visitation with Z.S. while in prison.
¶ 13 Hagerman stated a paternity test showing definitively that respondent was Z.S.’s
father was completed at the end of 2021, and the results were submitted to the trial court in
February 2022. Respondent never progressed to unsupervised or overnight visitation due to a
lack of progress in services. The agency had concerns about respondent’s ability to safely parent
due to his involvement in domestic violence. Hagerman indicated that, if respondent was
released from prison, he would have to complete a domestic violence course, which takes
approximately six months, before he could receive unsupervised visitation. There could be a
waitlist for the program, and it could take “upwards to a couple months” to get into the program.
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¶ 14 Respondent testified he learned that DNA testing confirmed he was Z.S.’s father
in late January or early February 2022. Counsel asked respondent if he participated in services
before he learned of the DNA results. Respondent replied: “Well, up until Miss Hagerman made
that claim in November that we had a meeting with [my former attorney], I was told that I wasn’t
allowed to have services because I wasn’t the presumed father.” Respondent then stated he
believed the first time they discussed services was during the meeting with his former attorney
and the agency. They discussed respondent participating in a domestic violence class through
probation, a parenting class, and a mental health assessment.
¶ 15 Respondent testified that he completed a mental health assessment in May 2022
while he was incarcerated. He was diagnosed with posttraumatic stress disorder and was
receiving treatment. Respondent recalled receiving one e-mail from the agency about completing
a drug drop before his most recent incarceration, but he did not see it in time to complete the
drop. Respondent testified that, while he was on probation, his probation officer referred him to
domestic violence classes, but he was never able to participate due to a long waitlist. He also
signed up to take a domestic violence class when he was in prison, but a long waitlist prevented
him from taking that class as well. Respondent testified he would be released on November 23,
2022, and he planned to take domestic violence classes as soon as possible after his release.
¶ 16 Respondent testified that, when he was out of custody, he had visitation with Z.S.
approximately every two weeks during Z.S.’s visits with respondent’s mother. He had not
requested that the bar on visitation that was currently in place be lifted because he did not know
he needed to do so or that it was possible for him to have visitation while incarcerated.
¶ 17 The trial court found the State had not proven respondent was unfit for failing to
protect Z.S. from conditions in his environment that were injurious to his welfare. However, the
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court found the State had proven by clear and convincing evidence that respondent was unfit in
that he failed to make reasonable efforts to correct the conditions that led to Z.S.’s removal or
reasonable progress toward Z.S.’s return during the alleged nine-month periods. The court found
respondent’s efforts and progress were “handicapped by his intermittent incarceration and by
outstanding warrants during the course of this case.” The court stated the “significant issue in
this case with [respondent]” was domestic violence, and the court found respondent had not
“satisfactorily completed significant services needed to correct those conditions that led to the
removal of the minor.”
¶ 18 On November 30, 2022, the matter proceeded to a best interest hearing. The trial
court took judicial notice of the fitness proceedings and a best interest report recommending that
the parental rights of Z.S.’s parents be terminated. The best interest report indicated Z.S.’s
current foster parent had provided everything he needed for approximately the past 10 months,
Z.S. knew he was loved by his foster family, and Z.S. was always happy when the caseworker
came to the home. The report stated disrupting Z.S.’s current attachments could be detrimental to
his future development because he was at a critical age for developing secure attachments. The
report indicated Z.S. needed permanency to continue to foster secure attachments and stated that
neither of his parents had made progress. Hagerman testified that Z.S. was 18 months old at the
time of the hearing and was not verbal.
¶ 19 Respondent testified that Z.S. was attached to him when he had visitation.
Respondent stated he was released from custody on November 23, 2022, and was living with his
mother. He had signed up for domestic violence classes, mental health services, and substance
abuse services through a reentry program. He also indicated he would be drug tested while on
parole.
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¶ 20 The trial court found the State had proven by a preponderance of the evidence that
termination of respondent’s parental rights was in Z.S.’s best interest. The court found Z.S. had
been in his current placement for approximately 11 months and was well cared for there. The
court also noted Z.S.’s current placement was willing to provide permanency. The court found
the potential for reunification between Z.S. and his parents was an important consideration but
noted respondent was “starting from ground zero.” The court stated that even if respondent was
successful in completing services, which the court noted was not guaranteed, “it would probably
be 9 to 12 months away, given the necessity of services, based on the Court’s experience.”
¶ 21 II. ANALYSIS
¶ 22 On appeal, respondent argues the trial court erred in finding he was unfit for
failing to make reasonable efforts to correct the conditions that led to Z.S.’s removal or
reasonable progress toward Z.S.’s return during either of the nine-month periods alleged in the
motion for termination of parental rights. Respondent also argues the court erred in finding
termination of his parental rights was in Z.S.’s best interest.
¶ 23 A. Fitness
¶ 24 Respondent argues the trial court erred in finding he was unfit for failing to make
reasonable efforts to correct the conditions that led to Z.S.’s removal or reasonable progress
toward Z.S.’s return during either of the nine-month periods at issue. Specifically, respondent
argues the State failed to prove he was unfit for failing to make reasonable efforts to correct the
conditions that led to Z.S.’s removal because he was not responsible for the conditions that led to
Z.S.’s removal and could not cure them. Respondent also argues the court erred in finding him
unfit for failing to make reasonable efforts or reasonable progress because the State did not
provide him with a nine-month period during which to make efforts or progress. Finally,
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respondent argues the State failed to prove by clear and convincing evidence that he failed to
make reasonable efforts or reasonable progress during either of the nine-month periods.
¶ 25 Proceedings to terminate parental rights are governed by the Juvenile Court Act
and the Adoption Act. Section 2-29 of the Juvenile Court Act (705 ILCS 405/2-29 (West 2020))
sets forth a two-step process for the involuntary termination of parental rights. In re J.L., 236 Ill.
2d 329, 337 (2010). First, the State must prove by clear and convincing evidence that a parent is
unfit based on one or more of the grounds set forth in section 1(D) of the Adoption Act (750
ILCS 50/1(D) (West 2020)). 705 ILCS 405/2-29(2), (4) (West 2020); J.L., 236 Ill. 2d at 337. If
the trial court finds the parent is unfit, it then determines whether termination of parental rights is
in the best interest of the minor. 705 ILCS 405/2-29(2) (West 2020); In re D.T., 212 Ill. 2d 347,
352 (2004).
¶ 26 Section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) West 2020))
provides that one ground for unfitness is a parent’s failure 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.” That section further provides that if a service plan has been
established and the services were available to the parent, “ ‘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.” Id.¶ 27 “ ‘Reasonable progress’ is an objective standard that is not concerned with a
parent’s individual efforts and abilities.” In re Nevaeh R., 2017 IL App (2d) 170229, ¶ 21.
Reasonable progress exists when the evidence shows “the progress being made by a parent to
comply with directives given for the return of the child is sufficiently demonstrable and of such a
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quality that the court, in the near future, will be able to order the child returned to parental
custody.” (Emphasis in original.) In re L.L.S., 218 Ill. App. 3d 444, 461 (1991). Time spent in
prison is included in the nine-month period during which reasonable progress must be made.
J.L., 236 Ill. 2d at 343. While the mere fact of incarceration is not evidence of a parent’s failure
to make reasonable progress, incarceration may impede the parent’s progress toward the goal of
reunification. Nevaeh R., 2017 IL App (2d) 170229, ¶ 21.
¶ 28 Generally, a trial court’s finding that a parent is unfit will not be reversed unless it
is against the manifest weight of the evidence. In re N.G., 2018 IL 121939, ¶ 29. That is, a
fitness determination will be reversed “only where the opposite conclusion is clearly apparent.”
Id.¶ 29 Here, the trial court’s determination that respondent was unfit for failing to make
reasonable progress toward Z.S.’s return during the nine-month period from November 11, 2021,
through August 11, 2022, was not against the manifest weight of the evidence. The evidence at
the fitness hearing showed respondent had a significant history of domestic violence that he
failed to address by participating in domestic violence services. During most of the nine-month
period at issue, respondent was incarcerated for aggravated battery concerning a 2020 incident
involving Amber while she was pregnant with Z.S. Hagerman testified there was an additional
incident of domestic violence involving respondent and Amber in January 2022, and the
evidence showed respondent also had a prior conviction for domestic battery in in Winnebago
County case No. 19-CF-178.
¶ 30 Hagerman testified that her agency had concerns about respondent’s ability to
safely parent due to his history of domestic violence and that completion of domestic violence
services would be necessary before respondent could have unsupervised visitation with Z.S.
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However, respondent never even began taking domestic violence courses during the nine-month
period at issue. While Hagerman testified that her agency had not referred respondent to
domestic violence services, the April 2022 service plan indicated the agency was unable to refer
him because he had failed to sign consents. Respondent testified he planned to complete
domestic violence services through probation prior to his incarceration in February 2022.
However, Hagerman stated she did not believe respondent would have been able to do so while
he had an outstanding warrant, which he did from the beginning of the nine-month period at
issue until his incarceration in February 2022. Respondent testified he signed up for domestic
violence classes while in prison but was unable to take the classes due to a waiting list. While
respondent was nearing the end of his prison sentence at the time of the fitness hearing and stated
he would take domestic violence courses as soon as he could upon release, Hagerman testified
the course would take six months and there could be a waiting list for the course.
¶ 31 Accordingly, we conclude it is not clearly apparent that respondent made
sufficiently demonstrable progress that the trial court would be able to order Z.S. to return to his
custody in the near future. See L.L.S., 218 Ill. App. 3d at 461. While respondent’s ability to
participate in services during the relevant nine-month period was hindered by his outstanding
warrants and subsequent incarceration, the fact that his personal circumstances prevented him
from making reasonable progress is irrelevant to the objective standard of reasonable progress.
See In re F.P., 2014 IL App (4th) 140360, ¶ 89.
¶ 32 In reaching our holding, we reject respondent’s argument that the State failed to
provide him with a nine-month period during which to demonstrate reasonable progress.
Respondent argues that section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West
2020)) requires that a parent be given a “9-month period following the adjudication of neglected
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or abused minor” in which to show reasonable progress. Respondent contends such a nine-month
period may only begin after the parent has at least actual notice of the requirements of the service
plan. Respondent contends he was first “formally involved” in the case in February 2022, he
provided “un-rebutted” testimony that the first time he discussed services with Hagerman was in
February 2022, and there was no evidence to show the October 2021 service plan or any prior
service plan was ever served on him.
¶ 33 Initially, respondent has forfeited the argument that he was not given a proper
nine-month period during which to demonstrate reasonable progress by failing to raise it in the
trial court. See In re N.T., 2015 IL App (1st) 142391, ¶ 41. Respondent contends this argument
may be reviewed under the plain error doctrine because the alleged error was so serious that it
eroded the integrity of the judicial process. The plain error doctrine permits review of an
unpreserved error where a clear or obvious error occurred and either (1) the evidence is closely
balanced or (2) the error is so serious that it affected the fairness of the trial or challenged the
integrity of the judicial process. In re D.D., 2022 IL App (4th) 220257, ¶ 31. However,
“application of the plain error doctrine to civil cases should be exceedingly rare and limited to
circumstances amounting to an affront to the judicial process.” Allison v. Stalter, 251 Ill. App. 3d
127, 131 (1993).
¶ 34 We find respondent has not shown an error occurred in this case. Section
1(D)(m)(ii) of the Adoption Act specifies the time period for measuring reasonable progress is
“any 9-month period following the adjudication of neglected or abused minor.” (Emphasis
added). 750 ILCS 50/1(D)(m)(ii) (West 2020). The statute requires only that the nine-month
period follow the adjudication of neglect; it does not include the additional requirement that the
parent be given actual notice of the contents of a service plan before the nine-month period may
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commence. The only authority respondent cites in support of his argument is the requirement in
section 8.2 of the Abused and Neglected Child Reporting Act (325 ILCS 5/8.2 (West 2020)) that
DCFS is required to promptly notify families of its responsibility to provide the services
identified in a service plan. However, this section has no bearing on whether a nine-month period
for demonstrating reasonable progress under section 1(D)(m)(ii) of the Adoption Act may begin
before a parent has actual notice of the required services.
¶ 35 Moreover, even if we were to accept respondent’s argument that a nine-month
period for demonstrating reasonable progress may not commence until after a parent has actual
notice of the contents of a service plan, any error in this case would not rise to the level of a
“circumstance[ ] amounting to an affront to the judicial process.” Allison, 251 Ill. App. 3d at 131.
The record shows respondent was “formally involved” in the case long before February 2022, as
he was named as the putative father in the amended neglect petition, was aware of the trial court
proceedings from the beginning of the case, and began participating fully in the court
proceedings prior to the dispositional hearing. Hagerman testified at the fitness hearing that she
conducted an integrated assessment in June 2021 and that services were recommended as a
result. While she did not expressly state she discussed the services with respondent at that time,
the court could have inferred she did. In any event, Hagerman testified that she discussed the
required services with respondent at a meeting on November 22, 2021. Thus, the record shows
respondent had actual notice of the contents of the service plan, at the latest, less than two weeks
after the beginning of the nine-month period at issue. This brief delay in advising respondent of
the contents of the service plan, even if erroneous, was not an error so serious as to erode the
integrity of the judicial process.
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¶ 36 Because we have found the trial court did not err in finding respondent unfit for
failing to make reasonable progress toward Z.S.’s return during the nine-month period from
November 11, 2021 through August 11, 2022, we need not review its finding that respondent
was unfit for failing to make reasonable progress during the other nine-month period alleged in
the motion for termination of parental rights or for failing to make reasonable efforts to correct
the conditions that led to Z.S.’s removal. See In re C.W., 199 Ill. 2d 198, 210 (2002).
¶ 37 B. Best Interest
¶ 38 Respondent argues the trial court erred in finding termination of his parental
rights was in Z.S.’s best interest. Respondent contends his attempts to engage in services show
he could be reunified with Z.S. in the near future. He also argues that Z.S. is attached to him and
can have permanency with him “as much as any other person.”
¶ 39 “At the best-interest portion of a termination hearing, the State bears the burden of
proving by a preponderance of the evidence that termination of parental rights is in the child’s
best interest.” In re J.B., 2019 IL App (4th) 190537, ¶ 31. At this stage, the focus shifts from the
parent to the child, and “the parent’s interest in maintaining the parent-child relationship must
yield to the child’s interest in a stable, loving home life.” D.T., 212 Ill. 2d at 364. Section 1-
3(4.05) of the Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2020)) provides that the trial
court must consider several enumerated factors when making a best interest determination. These
factors include, among others, the child’s physical safety; “the child’s sense of attachments,
including love, security, familiarity, continuity of affection, and the least disruptive placement
alternative;” the child’s need for permanence; and the risks related to substitute care. In re
Daphnie E., 368 Ill. App. 3d 1052, 1072 (2006); see also 705 ILCS 405/1-3(4.05) (West 2020).
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¶ 40 We will reverse a trial court’s best-interest determination only if it is against the
manifest weight of the evidence. J.B., 2019 IL App (4th) 190537, ¶ 33. “A best-interest
determination is against the manifest weight of the evidence only if the facts clearly demonstrate
that the trial court should have reached the opposite result.” Id.¶ 41 Here, the trial court’s ruling that termination of parental rights was in Z.S.’s best
interest was not against the manifest weight of the evidence. The best interest report indicated
Z.S. had been in his current foster home for approximately 10 months (which was over half his
life), his foster parent provided for his needs, his foster parent wished to adopt him, and Z.S. was
attached to his foster family. The report indicated Z.S. was at a critical stage for developing
secure attachments and disrupting his current attachments could be detrimental to his
development. Respondent had just been released from prison approximately one week prior to
the best interest hearing and would not have been able to take custody of Z.S. in the near future,
as he had not yet begun services. Under these circumstances, the facts do not clearly demonstrate
the court should have found the State failed to prove by a preponderance of the evidence that
termination of respondent’s parental rights was in Z.S.’s best interest.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the trial court’s judgment.
¶ 44 Affirmed.
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