In re K.G. ( 2021 )

2021 IL App (1st) 200596-UFOURTH DIVISION
March 25, 2021
No. 1-20-0596
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
In re K.G., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County
)
Petitioner-Appellee, )
) No. 12 JA 755
v. )
)
K.S., ) Honorable
) Kimberly Lewis,
Respondent-Appellant). ) Judge Presiding.
______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court.
Presiding Justice Gordon and Justice Martin concurred in the judgment.
ORDER
¶1 Held: Affirming the judgment of the circuit court of Cook County finding the natural
father to be unfit where the State established by clear and convincing evidence
that he failed to make reasonable progress toward reunification with his child
during a nine-month period following an adjudication of abuse or neglect.
¶2 Respondent K.S. is the natural father of minor K.G. In an adjudication order entered in
2013, K.G. was found to be abused or neglected. The State subsequently filed a petition to
terminate respondent’s parental rights based on his failure to make reasonable progress toward
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the return of K.G. during the nine-month period following the adjudication order, pursuant to
section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1 et seq. (West 2018)). The circuit court
of Cook County found respondent to be unfit and determined that it was in K.G.’s best interest
for respondent’s parental rights to be terminated. Respondent argues on appeal that the circuit
court erred in finding him to be unfit; he does not challenge the “best interest” determination.
He contends that the unavailability of services during his incarceration for approximately eight
months of the applicable nine-month period – and his progress prior to and during incarceration
– precludes a finding of unfitness. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 After K.G. was born on October 24, 2011, he resided with his natural mother, S.G.;
respondent resided separately. In a petition for adjudication of wardship filed on July 25, 2012,
the State alleged that K.G. was neglected due to an injurious environment (705 ILCS 405/2-
3(1)(b) (West 2012)) and abused due to a substantial risk of physical injury (705 ILCS 405/2-
3(2)(ii) (West 2012)). The petition provided, in part, that: S.G. had two other children who were
in the custody of the Department of Children and Family Services (DCFS); S.G. had been
diagnosed with impulse control disorder, mood disorder, and borderline intellectual functioning;
an intact case was opened on June 1, 2012, to offer services to the family; and K.G.’s “care plan
disrupted” on July 23, 2012. The petition further alleged that DCFS had assessed respondent’s
residence and found it to be inappropriate. The circuit court granted temporary custody to the
DCFS Guardianship Administrator, and K.G. was placed with a foster parent, A.J.
¶5 Based on a stipulation of facts entered into the record, the circuit court entered an
adjudication order on March 11, 2013, finding K.G. to be abused or neglected based on an
injurious environment and a substantial risk of physical injury. The adjudication order noted that
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respondent was non-custodial. In a disposition order entered on April 15, 2013, the circuit court
found that S.G. and respondent were each unable for some reason to care for, protect, train, or
discipline K.G.; the child was placed with the DCFS Guardianship Administrator. As the case
continued in the years that followed, K.G. remained with his foster parent, A.J.
¶6 On July 24, 2018, the State filed a petition for termination of parental rights and for the
appointment of a guardian with the right to consent to adoption. The State alleged, in pertinent
part, that respondent and S.G. were unfit in that they failed to make reasonable efforts to correct
the conditions which were the basis for K.G.’s removal from them and/or failed to make
reasonable progress toward the return of K.G. to them within nine months after the adjudication
of abuse or neglect under the Juvenile Court Act and/or within any nine-month period after such
finding, in violation of section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 2018))
and section 2-29 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-29
(West 2018)). The State further asserted that K.G.’s foster parent wished to adopt him, and that
such adoption was in the child’s best interest.
¶7 K.G.’s natural mother S.G. ultimately relinquished her parental rights and consented to
his adoption by his foster parent. The allegations of unfitness were withdrawn as to S.G., and
she is not a party to the instant appeal. As to respondent, the State narrowed its allegations to
solely the nine-month period following the adjudication order, i.e., March 11, 2013 to
December 11, 2013. Three witnesses testified at the hearing to determine whether respondent
was unfit: Evelyn Johnson, Tara Lampkin, and respondent.
¶8 Respondent’s witness Evelyn Johnson (Johnson), 1 the former executive director of the
“New Beginning” agency, testified that respondent participated in a 15-hour program of
1
Due to availability issues, the witnesses testified out of order.
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observed parent-child interaction with K.G. The program provided parenting and life skills
training, e.g., respondent learned about healthy snacks and discipline techniques. The record
includes a certificate of completion dated March 26, 2013. On cross-examination, Johnson
confirmed that respondent still needed to complete “a lot of services” after the New Beginning
program. She also testified that while respondent had participated in seven and one-half two-
hour weekly sessions, only three sessions occurred after March 11, 2013, i.e., during the relevant
nine-month period.
¶9 The State called Tara Lampkin (Lampkin), the case manager in 2013 and 2014. She
testified that respondent was incarcerated in the Cook County jail after the adjudication order.
The record indicates that respondent was incarcerated from April 7, 2013 to March 25, 2014 and
was charged with manufacture/delivery of cannabis, 30 – 500 grams. Lampkin spoke with him
twice during his incarceration when he had been transported to the juvenile court for hearings in
this case. Although respondent indicated he was engaged in services at the jail, neither he nor
his attorney provided documentation regarding the completion of any such services.
¶ 10 When questioned regarding the barriers faced by workers in offering services to
incarcerated parents, Lampkin responded, in part, that the process is “challenging” and that
“[y]ou have to work with the counselor.” According to Lampkin, an outside service provider
cannot physically enter the Cook County jail. Lampkin testified that the services are limited to
what is available in a particular correctional facility, and it was respondent’s responsibility to
seek out services while incarcerated. She confirmed that she would not have been permitted to
allow unsupervised day or night visits or the return of K.G. during respondent’s incarceration.
When asked to characterize the progress made by respondent during the nine months after the
adjudication order, she responded that “[t]here was no progress.”
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¶ 11 During cross-examination, Lampkin was questioned regarding notes in a July 23, 2013
DCFS service plan which she had authored. While she had rated respondent’s participation as
“satisfactory” for a number of services, the record indicates that certain services were completed
prior to the relevant nine-month period. One of the services that respondent had not completed
was a psychological evaluation. The service plan rated respondent’s progress as to this service
as “unsatisfactory” since he “failed to keep the schedule[d] appointment and was later arrested.”
Lampkin did not know whether the jail offered this service but testified that respondent was
supposed to speak with his counselor “to get it for him.”
¶ 12 Lampkin testified she had spoken with respondent’s jail caseworker, but she could not
recall the exact timing or details of the conversations, and she did not memorialize the
conversations. Lampkin further testified that respondent had participated in services and visits
with K.G. and had made substantial progress prior to his incarceration in April 2013.
¶ 13 The State’s exhibits included DCFS integrated assessments dated July 31, 2012 and
January 9, 2013, and DCFS family service plans dated July 23, 2013 and June 20, 2014. After
the State rested, respondent filed a motion for a directed finding. Respondent, who is African-
American, contends his equal protection and due process rights were violated based on racial
disparities in the enforcement of drug offenses and that the trend both nationally and in Illinois is
toward the decriminalization of marijuana. Respondent further asserted that the State did not
present sufficient evidence to support its allegation of failure to make reasonable progress where
it did not establish that services were available during his incarceration and where he had made
progress prior to his incarceration and was willing to continue with services upon his release.
The State and K.G.’s guardian ad litem opposed the motion, arguing that the evidence
demonstrated that respondent had failed to make reasonable progress during the applicable nine-
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month time frame. The circuit court denied respondent’s motion for a directed finding.
¶ 14 Respondent testified that the only services provided to him during his incarceration were
through West Care, a drug treatment program. According to respondent, “someone put [him] in”
West Care. The record indicates that respondent was admitted to the West Care pre-release
center for a 130-day program on November 15, 2013, which he completed in late March 2014.
Respondent testified that, if services would have been provided in jail, he would have
participated in them.
¶ 15 During cross-examination, respondent was asked whether he had been told by the court
that he needed to speak to his social worker or other jail personnel to inquire about available
services. Although respondent’s answer was unclear, he appears to have testified that he was
only informed of the availability of a counselor – and received his psychological evaluation – at
the end of his incarceration.
¶ 16 On October 29, 2019, the circuit court entered an order finding that respondent was unfit
pursuant to section 2-29 of the Juvenile Court Act (705 ILCS 405/2-29 (West 2018)) and
section 1(D) of the Adoption Act (705 ILCS 50/1(D) (West 2018)) based on “no reasonable
progress” from March 11, 2013 to December 11, 2013. 2 In its oral ruling, the circuit court
acknowledged that respondent had completed certain services during the nine-month period, i.e.,
the parenting program in March 2013 and his participation in the West Care program on and
after November 15, 2013. The circuit court found, however, that “largely due to his
incarceration,” respondent was not able to be properly assessed, to engage in services including a
2
Although the circuit court found that the State met its burden to prove by clear and convincing
evidence that respondent failed to “make reasonable progress toward the return of the child” (750 ILCS
50/1(D)(m)(ii) (West 2018)) during the applicable nine-month period, the court found that the State did
not meet its burden to prove that respondent failed to “make reasonable efforts to correct the conditions
that were the basis for the removal of the child” (750 ILCS 50/1(D)(m)(i) (West 2018)).
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mental health assessment, to have visitation with K.G. “where he could demonstrate his ability to
execute parental responsibilities,” or to obtain stable housing.
¶ 17 During the “best interests” hearing, K.G.’s foster mother A.J. testified, in part, that she
had cared for him for more than seven years and had adopted his biological sister. Caseworker
Maleta Portillo testified that the relationship between A.J. and K.G. was “very natural, nurturing,
and healthy.” Dr. Sweety Agrawal – a psychologist who completed a parent capacity assessment
for respondent – testified regarding certain “risk factors” with respect to respondent, including
his inability to obtain or maintain stable housing. She also expressed concern regarding
respondent’s interaction with K.G. during a visit she observed, i.e., respondent was unable to
engage with or soothe K.G. Respondent testified, in part, that he resided with his girlfriend and
her children in Rockford, Illinois, beginning in November 2018 and was able to visit K.G. by a
two-hour bus ride. His income is provided through social security payments.
¶ 18 On December 13, 2019, the circuit court involuntarily terminated respondent’s parental
rights based on the finding of unfitness and the best interest of K.G. The circuit court ordered
that the appropriate permanency goal is adoption by A.J. The court denied respondent’s motion
to reconsider, and respondent filed this timely appeal.
¶ 19 ANALYSIS
¶ 20 Respondent argues on appeal that the circuit court erred in finding that he was an unfit
parent due to a failure to make reasonable progress toward the return home of K.G. The State
and K.G.’s attorney each challenge this contention and ask this court to affirm the judgment.
¶ 21 As a preliminary matter, we observe that this is an accelerated appeal pursuant to Illinois
Supreme Court Rule 311(a) (eff. July 1, 2018), which addresses the disposition of child custody
and related appeals. Rule 311(a)(5) provides that an appellate court shall issue its decision
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within 150 days after the filing of the notice of appeal “[e]xcept for good cause shown.” Id. As
the notice of appeal was filed on April 6, 2020, the 150-day period expired on September 3,
2020. However, respondent requested and was granted three extensions of time for filing his
opening brief. Upon inquiry by this court, respondent’s counsel confirmed on December 9, 2020
that no reply brief would be filed. Based on the foregoing, we find that good cause is shown for
the delay in filing this disposition. In re Keyon R., 2017 IL App (2d) 160657, ¶ 1, n.1; In re
B’yata I., 2013 IL App (2d) 130558, ¶ 26. We thus turn to the merits.
¶ 22 The authority to terminate parental rights is found in the Juvenile Court Act and the
Adoption Act. In re J.L., 236 Ill. 2d 329, 337 (2010). Section 2-29 of the Juvenile Court Act
delineates a two-step process for the involuntary termination of parental rights. 705 ILCS 405/2-
29 (West 2018). See also J.L., 236 Ill. 2d at 337; Keyon R., 2017 IL App (2d) 160657, ¶ 16. The
court must first hold an evidentiary hearing to determine whether the parent is unfit. In re M.A.,
325 Ill. App. 3d 387, 390 (2001). See also In re D.T., 212 Ill. 2d 347, 352 (2004) (noting that
“[g]enerally, under the Juvenile Court Act, where a child is adjudicated abused, neglected or
dependent, and the State seeks to free the child for adoption, unless the parent consents, the State
must first establish that the parent is ‘unfit’ under one or more of the grounds set forth in the
Adoption Act”). If the trial court finds the parent to be unfit, then the court determines whether
the termination of the parent’s rights is in the minor’s best interest. Id.; M.A., 325 Ill. App. 3d at
390; 705 ILCS 405/2-29(2) (West 2018). As respondent’s arguments on appeal are limited to the
unfitness finding, any arguments regarding the “best interest” determination have been forfeited
and shall not be addressed herein. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (stating that
“[p]oints not argued are forfeited”).
¶ 23 The State was required to establish by clear and convincing evidence one ground of
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parental unfitness from those enumerated in section 1(D) of the Adoption Act. 750 ILCS
50/1(D) (West 2018); In re Je. A., 2019 IL App (1st) 190467, ¶ 47; Keyon R., 2017 IL App (2d)
160657, ¶ 16. See also In re D.D., 196 Ill. 2d 405, 417 (2001) (noting that “[w]hen deciding a
parent’s fitness, the court is not to consider the best interests of the child but, rather, must focus
on whether the parent’s conduct falls within one or more of the several ‘grounds of unfitness’
described in section 1(D) of the Adoption Act”). “Each case concerning parental unfitness is sui
generis, unique unto itself.” In re Adoption of Syck, 138 Ill. 2d 255, 279 (1990).
¶ 24 When a parent appeals the circuit court’s unfitness finding, we do not retry the case;
our review is limited to whether the finding is against the manifest weight of the evidence. In re
J.H., 2020 IL App (4th) 200150, ¶ 68. A decision is against the manifest weight of the evidence
where the opposite result is clearly evident from the record. Je. A., 2019 IL App (1st) 190467,
¶ 46. See also Keyon R., 2017 IL App (2d) 160657, ¶ 16 (noting that a decision is against the
manifest weight of the evidence “only if the opposite conclusion is clearly apparent or the
decision is unreasonable, arbitrary, or not based on the evidence”). “A trial court’s finding of
unfitness is afforded great deference because it has the best opportunity to view and evaluate the
parties and their testimony.” In re Gwynne P., 346 Ill. App. 3d 584, 590 (2004), aff’d, 215 Ill. 2d
340 (2005). See also In re T.B., 215 Ill. App. 3d 1059, 1062 (1991).
¶ 25 This appeal involves a finding of unfitness based on section 1(D)(m)(ii) of the Adoption
Act, which provides that a parent’s failure to make reasonable progress toward the return of the
child during any nine-month period following the adjudication of abuse or neglect is a ground of
unfitness. 750 ILCS 50/1(D)(m)(ii) (West 2018). The State proceeded as to the nine-month
period immediately following the adjudication order, from March 11, 2013 to December 11,
2013. Therefore, we must consider whether it is clearly evident that the State failed to prove, by
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clear and convincing evidence, that respondent was an “unfit person” pursuant to
section 1(D)(m)(ii) based on his failure to make reasonable progress toward K.G.’s return during
the foregoing time frame. See J.H., 2020 IL App (4th) 200150, ¶ 69.
¶ 26 “Reasonable progress exists when the trial court can conclude that progress being made
by a parent to comply with directives given for the return of the minor is sufficiently
demonstrable and of such a quality that the trial court will be able to order the minor returned to
parental custody in the near future.” In re D.T., 2017 IL App (3d) 170120, ¶ 17. Accord In re
F.P., 2014 IL App (4th) 140360, ¶ 88; In re D.H., 323 Ill. App. 3d 1, 9 (2001). In determining
whether a parent has made reasonable progress, a court is to consider evidence occurring only
during the applicable nine-month period mandated in section 1(D)(m). J.L., 236 Ill. 2d at 341.
See also Je. A., 2019 IL App (1st) 190467, ¶ 72 (noting that services completed by the parent
outside of the nine-month time frame were irrelevant to the court’s analysis of his unfitness).
“ ‘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.
¶ 27 In the instant case, respondent was incarcerated for approximately eight months of the
relevant nine-month period. While “[t]he mere fact of incarceration is not evidence of failure to
make reasonable progress,” time spent in prison is included in the nine-month period during
which reasonable progress must be made. Id. Our supreme court has made clear that
incarceration does not toll the nine-month period and that the statute does not provide any
exception for incarcerated parents. J.L., 236 Ill. 2d at 341-42.
¶ 28 The services recommended through DCFS for respondent included a psychological
evaluation. Lampkin indicated that respondent had made “unsatisfactory progress” with respect
to participation in a psychological evaluation since he missed a scheduled appointment and was
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subsequently arrested. During the circuit court hearing regarding unfitness, Lampkin testified
that it was respondent’s responsibility to seek out services while incarcerated. While the record
suggests that respondent may have inquired regarding a mental health assessment in October
2013, the record does not establish that respondent actually participated in such an assessment
during the nine-month period. A family service plan prepared in June 2014 indicated that
respondent stated that he had completed a psychological evaluation while incarcerated, but
neither he nor his counsel provided a copy of any evaluation to Lampkin. Although respondent
attempts to minimize the importance of the evaluation – and speculates regarding its availability
during the relevant time frame – a DCFS service plan “is an integral part of the statutory scheme
for measuring progress toward the goal of reunification of the parent and child.” Neveah R.,
2017 IL App (2d) 170229, ¶ 23. Respondent’s failure to timely comply with this service is not
consistent with “measurable or demonstrable movement toward the goal of reunification.”
Je. A., 2019 IL App (1st) 190467, ¶ 62.
¶ 29 As did the circuit court, we recognize that respondent engaged in a parenting program
during the first few weeks of the relevant nine-month period. The record suggests, however, that
any progress due to his participation in the program may have been “impeded by the setback of
his incarceration.” Id. ¶ 68. Among other things, Lampkin testified that respondent’s
incarceration precluded any unsupervised visitation with K.G. While the mere fact of
respondent’s incarceration was not evidence of failure to make reasonable progress, his apparent
decision to engage in criminal conduct while his child was in DCFS custody is not indicative of
reasonable progress toward K.G.’s return. M.A., 325 Ill. App. 3d at 392. See also In re Reiny S.,
374 Ill. App. 3d 1036, 1046 (2007) (finding that the respondent’s continued use of illegal drugs
and repeated illegal activity evidenced the “opposite” of reasonable progress).
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¶ 30 When issuing its ruling regarding unfitness, the circuit court also expressly acknowledged
respondent’s participation in the West Care program during the last few weeks of the nine-month
period. The circuit court nevertheless found that defendant failed to make reasonable progress,
i.e., measurable or demonstrable movement toward the goal of reunification with K.G. in the
near future. See Je. A., 2019 IL App (1st) 190467, ¶ 62. Among other things, the court found
that – primarily due to his incarceration – respondent’s ability to visit and bond with K.G., to be
properly assessed for services, and to secure stable housing had been impaired. As noted above,
we are limited to deciding whether this ruling was against the manifest weight of the evidence –
a deferential standard of review which recognizes the circuit court’s superior position to observe
the witnesses, assess their credibility, and weigh the evidence. J.H., 2020 IL App (4th) 200150,
¶ 68; T.B., 215 Ill. App. 3d at 1062. Based on our review of the record, we cannot conclude that
the circuit court’s ruling was against the manifest weight of the evidence.
¶ 31 The cases involving incarcerated parents relied upon by respondent are not persuasive.
For example, the appellate court in Keyon R. reversed the judgment of the circuit court
terminating the respondent’s parental rights where the State failed to prove unfitness. Keyon R.,
2017 IL App (2d) 160657, ¶ 34. Unlike the instant case, however, DCFS had “predetermined”
that the respondent was unfit and refused to assess him or to give him a service plan. Id. ¶ 32. In
J.H., the appellate court found that the State had not met its burden during the fitness hearing.
J.H., 2020 IL App (4th) 200150, ¶ 82. The J.H. appellate court noted that the foster-care
caseworker had opined that the respondent had made reasonable progress during the majority of
the two relevant nine-month periods. Id. ¶¶ 35-36. Conversely, caseworker Lampkin testified
that respondent made “no progress” during the applicable period, the substantial majority of
which he was incarcerated. Furthermore, the analysis in J.H. was focused on an unfitness
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ground under section 1(D) of the Adoption Act other than “reasonable progress.” Id. ¶¶ 76-82.
The appellate court in Gwynne P. held the circuit court’s finding that the respondent failed to
make reasonable progress was against the manifest weight of the evidence. Gwynne P., 346 Ill.
App. 3d at 596. Noting that the respondent “took several steps” toward completing the services
in her service plan, including her “persistent efforts” to schedule visits with her child during the
relevant nine-month period, the appellate court held that she “made a minimum measurable or
demonstrable movement toward reunification.” Id. at 595-96. Not only was the progress made
by respondent herein substantially less than in Gwynne P., but also the appellate court therein
arguably applied an incorrect definition of “reasonable progress.” E.g., F.P., 2014 IL App (4th)
140360, ¶ 88 (noting that “[i]f all a parent had to do was to make ‘a minimum measurable or
demonstrable movement toward reunification,’ it could be years before the parent was prepared
for reunification”). We further note that the Gwynne appellate court affirmed the circuit court’s
finding of unfitness based on another statutory ground, and our supreme court affirmed this
judgment. In re Gwynne P., 215 Ill. 2d 340, 363 (2005). Respondent’s reliance on the foregoing
cases is unavailing.
¶ 32 For the reasons discussed above, the circuit court’s finding that respondent was unfit
pursuant to section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1 et seq. (West 2018)) was not
against the manifest weight of the evidence.
¶ 33 CONCLUSION
¶ 34 The judgment of the circuit court of Cook County is affirmed in its entirety.
¶ 35 Affirmed.
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