In re N.C. , 2021 IL App (3d) 210243-U ( 2021 )

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).
2021 IL App (3d) 210243-UOrder filed October 27, 2021
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
In re N.C. and A.C., ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Minors ) Will County, Illinois.
)
(The People of the State of Illinois, )
) Appeal Nos. 3-21-0243, 3-21-0244
Petitioner-Appellee, ) Circuit Nos. 17-JA-19, 17-JA-20
)
v. )
)
Kelvin C., ) The Honorable
) John J. Pavich,
Respondent-Appellant). ) Judge, presiding.
_____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court.
Justices Holdridge and Lytton concurred in the judgment.
_____________________________________________________________________________
ORDER
¶1 Held: In an appeal in a termination of parental rights case, the appellate court held that
any error in the admission of evidence at the parental unfitness hearing would not
warrant a reversal in this case because: (1) the trial court’s finding of parental
unfitness was well-supported by properly admitted evidence; and (2) the
biological father (respondent) had invited or acquiesced in the admission of the
improper evidence. The appellate court, therefore, affirmed the trial court's
judgment, terminating the respondent’s parental rights to his minor children.
¶2 In the context of juvenile-neglect proceedings, the State filed petitions to involuntarily
terminate the parental rights of respondent father, Kelvin C., to his minor children, N.C. and
A.C. After hearings on the matter, the trial court found that respondent was an unfit
parent/person and that it was in the children’s best interest to terminate respondent's parental
rights. Respondent appeals, claiming that the trial court’s decision should be reversed and
remanded because certain evidence was improperly admitted at the parental unfitness hearing.
We affirm the trial court's judgment.
¶3 I. BACKGROUND
¶4 Respondent and Tiarra H. were the biological parents of the minor children, A.C. (born in
January 2015) and N.C. (born in July 2016). In March 2017, when N.C. was eight-months old,
the family came to the attention of the Department of Children and Family Services (DCFS) after
medical staff, who were treating N.C. at the hospital for possible pneumonia, saw that N.C. had
multiple rib fractures. The fractures did not appear to be accidental in nature. At the time that
the injuries were discovered, N.C. and A.C. were living with their mother (Tiarra) and her
boyfriend (not the respondent). Tiarra allegedly did not know how the fractures had occurred,
although she later indicated that N.C.’s injuries took place while her boyfriend was watching
N.C. 1 DCFS subsequently took protective custody of both children and filed juvenile neglect
petitions in the trial court, alleging that the children had been subjected to an injurious
environment. Respondent was given a court-appointed attorney to represent him in the juvenile-
court proceedings. A paternity test was later ordered, and respondent was found to be the
biological father of N.C. and A.C.
1
The children did not live with respondent at that time, and there is no allegation or suggestion in
this case that respondent caused N.C.’s injuries.
2
¶5 In July 2017, an adjudicatory hearing was held on the neglect petitions. Respondent and
Tiarra admitted the allegation contained in the petitions. Based upon those admissions, the trial
court found that N.C. and A.C. were neglected minors.
¶6 A dispositional hearing was held the following month. At the conclusion of the hearing,
the trial court found that respondent and Tiarra were unfit parents. The trial court made the
children wards of the court and named DCFS as the children’s guardian. The permanency goal
was set at that time for the children to be returned home within 12 months.
¶7 Over the next several years, numerous permanency review hearings were held in this
case. The first four permanency review hearings were held in March 2018, October 2018, April
2019, and October 2019. For each of those hearings, a permanency review report and a copy of
the most recent service plan were filed with the trial court. Respondent was not present in court
for those hearings, although his attorney was present in court on his behalf. At the conclusion of
each hearing, the trial court found that respondent had not made reasonable efforts or reasonable
progress. The trial court, however, did not change the permanency goal of the children.
¶8 In November 2019, the State filed motions to terminate respondent’s parental rights to
N.C. and A.C.2 In the motions, the State alleged that respondent was an unfit parent/person as
defined in the Adoption Act because: (1) he had failed to maintain a reasonable degree of
interest, concern, or responsibility as to the children’s welfare (see 750 ILCS 50/1(D)(b) (West
2012)); (2) he had failed to make reasonable efforts to correct the conditions that were the basis
for the removal of the children (see 750 ILCS 50/1(D)(m)(i) (West 2012)); (3) he had failed to
make reasonable progress toward the return home of the children within the initial nine-month
period after the adjudication of neglect from July 13, 2017, to April 13, 2018 (see 750 ILCS
2
The State also sought to terminate Tiarra’s parental rights to the children as well.
3
50/1(D)(m)(ii) (West 2012)); and (4) he had failed to make reasonable progress toward the return
of the children during any nine-month period after the end of the initial nine-month period
following the adjudication of neglect from April 14, 2018, through January 14, 2019; January 15,
2019, through October 15, 2019; and October 16, 2019, through the present date (see 750 ILCS
50/1(D)(m)(iii) (West 2012)).3,4
¶9 The next two permanency review hearings were held in June and October 2020. For
each of those hearings, a permanency review report and a copy of the most recent service plan
were filed with the trial court. Respondent was present in court for the hearings and was
represented by his attorney. At the conclusion of each hearing, the trial court again found that
respondent had not made reasonable efforts or reasonable progress but did not change the
children’s permanency goal.
¶ 10 In March 2021, a status hearing was held in this case. At the conclusion of the status
hearing, the trial court changed the permanency goal of the children to substitute care pending a
court ruling on termination of parental rights.
¶ 11 The following month, in April 2021, the final permanency review hearing was held in
this case. As with the prior hearings, a permanency review report and a copy of the most recent
service plan were filed with the trial court for the hearing. Respondent was present in court for
the hearing and was represented by his attorney. At the conclusion of the hearing, the trial court
made no finding as to whether respondent had made reasonable efforts or reasonable progress.
3
Although the motion to terminate parental rights was filed in 2019, it appears that the State was
using the statutory language from a prior version of the Adoption Act in the motion.
4
The State alleged an additional ground as to N.C. for a finding of parental unfitness but did not
pursue that ground at the parental unfitness hearing.
4
¶ 12 In May 2021, an evidentiary hearing was held on the parental unfitness portion of the
termination petitions. Respondent was present in court for the hearing and was represented by
his attorney. During its case-in-chief, the State asked the trial court to take judicial notice of all
of the permanency review orders entered in the present case.
¶ 13 The State also called the current caseworker, Latasha Bonds, to testify as its only
witness. 5 Bonds testified that she had been the caseworker for the children’s cases since
February 2019 and was familiar with the history of the cases. During the State’s direct-
examination, although Bonds was questioned at times about matters that occurred before she had
become the caseworker, respondent’s attorney did not object to those questions. Bonds testified
that the cases originated in March 2017 when the children came into DCFS care. According to
Bonds, the initial service plan required respondent to obtain a drug assessment, participate in
individual therapy, perform random drug tests, obtain a mental health evaluation, participate in
domestic violence counseling, and visit with the children. Respondent completed a parenting
class in early 2018 but did not perform or complete any other services.
¶ 14 More specifically, as to respondent’s contact with her, Bonds testified that after she
became the caseworker in February 2019, the first time that she had contact with respondent was
in November 2019 in court. At that court date, respondent asked Bonds about his services, and
Bonds told respondent that he needed to come to the office to be re-evaluated and to get a copy
of his service plan. Respondent did not comply. The next contact that Bonds had with
respondent was in March 2020 when respondent called the agency to find out where the children
had been placed after he learned that the children were no longer staying with their maternal
5
Not all of the information presented here was brought out by the State in its direct-examination
of Bonds. Some of the information was elicited in cross-examination but has been placed here for the
convenience of the reader.
5
grandparents (the children had been moved to a traditional foster home in November 2019).
Bonds told respondent that she could not give him the current foster parents’ address.
Respondent gave Bonds the address of where he was living in Minnesota at that time. Bonds did
not have contact with respondent again until January or February 2021 when respondent sent
Bonds an email asking what services he needed to complete. In response to that email, Bonds
sent a copy of the service plan to respondent.
¶ 15 As for respondent’s contact with the agency, Bonds testified that every six months, the
agency sent out a diligent search request (a process that was used to try to find parents with
whom the agency had lost contact or had not had contact) to try to locate respondent. If an
address for respondent was found using the search request, a letter was sent to respondent at that
address. The letter identified the agency, informed respondent that his children were in the
agency’s care, and told respondent that he needed to come to the agency office to be assessed for
services. In this particular case, letters were sent to respondent in February and August 2019.
Bonds, however, did not receive a response to those letters from respondent.
¶ 16 With regard to respondent’s contact with the children, Bonds testified that according to
the case file, respondent had not visited with the children in-person since July 2018. Respondent
had allegedly told the previous caseworker during that same month that he was moving to
Minnesota and was done with the case. To Bonds’s knowledge, respondent did not have any in-
person contact with the children after he moved to Minnesota, although Bonds had been
informed by the maternal grandparents (the foster parents at the time) that respondent was having
regular phone contact with the children. In addition, respondent did not send any cards or gifts
to the children, as far as Bonds was aware. It was not until respondent came to court that he
asked for visitation with the children. Bonds told respondent at that time that N.C. was
6
struggling with his behavior and that Bonds would do a referral to determine if it was in the best
interest of the children to start having visits with respondent again. Bonds confirmed during her
testimony that respondent was not the person who had physically abused N.C. or, at least, that no
one had ever said respondent was the person who had physically abused N.C.
¶ 17 On cross-examination, respondent’s attorney asked Bonds repeatedly about matters that
occurred before Bonds was the caseworker to elicit information that was favorable to respondent.
Bonds confirmed that she was not the caseworker at the time but did try to answer the questions
based upon her knowledge of the case file. Upon such questioning by respondent’s attorney,
Bonds confirmed that the initial permanency review report indicated that respondent had made
reasonable efforts but not satisfactory progress. Bonds also confirmed that respondent had
completed parenting classes, established paternity, participated in the integrated assessment, had
stable work, had visited weekly with his children at that time without issue, and had made
monthly contact with the caseworker. Bonds denied, however, that respondent had completed a
substance abuse evaluation. Additional permanency review reports showed that respondent had
maintained phone contact with the children until at least October 2019.
¶ 18 After the State rested its case-in-chief, respondent testified on his own behalf.
Respondent stated that he was 27 years old and lived in Minnesota. In 2017 (presumably when
the case started), respondent was working as a cook. After the children were taken into DCFS
care, respondent completed a parenting class and visited with the children. In September 2018,
respondent moved to Minnesota to look for better opportunities. Prior to that time, respondent
was living on the east side of Chicago, and the violence in his neighborhood was getting out of
control. Respondent called and told the agency that he was moving to Minnesota. Respondent
did not tell the agency that he was no longer interested in the children.
7
¶ 19 In Minnesota, respondent initially found a job working as a machine operator for $15 an
hour. Respondent went to automotive school and got automotive certifications and also went to
construction school and got OSHA and CPR certifications. Respondent later became a member
of the pipefitters union. He was currently employed through the union and was making $22.50
an hour. Respondent was currently living in an apartment and was working on getting a house.
He was involved in a relationship and was planning on getting married.
¶ 20 According to respondent, after he moved to Minnesota, he still had contact with the
children through video chats with the grandparents. Respondent also went to visit the children
one time in-person while the children were still living with the grandparents. The children knew
who respondent was and referred to respondent as “[D]addy.” When respondent talked to the
agency while he was in Minnesota, he did not ask about whether he should be doing services; he
just asked how the children were doing. Respondent did not know whether the agency wanted
him to continue doing services. Respondent acknowledged during his testimony that he had not
talked to the children for over a year but stated that he loved the children, that he still wanted to
have contact with the children, and that he still wanted to be a part of the children’s lives.
Respondent also stated that he would perform any services required, that he had been
participating in individual and couple’s counseling in Minnesota for about a year, and that he had
been looking into domestic violence counseling. Respondent had not, however, provided proof
to the agency of the counseling he had attended. When respondent was asked why he did not
have more contact with the agency or more visits with the children, he stated that he was trying
to find more stable employment because he knew that he would need money to come see the
children.
8
¶ 21 During his testimony, respondent acknowledged that Bonds felt that respondent had
completely failed to work with the agency to have his children returned to him. According to
respondent, he had worked with the previous caseworker more than he had worked with Bonds.
Respondent established his paternity through the proceedings in this case and not through a
separate family court proceeding. According to respondent, he made attempts over the last four
years to cooperate with DCFS—he completed a parenting class, a domestic violence assessment,
and a drug assessment, although Bonds would not have been aware of the drug assessment.
Respondent also completed random drug tests for the prior caseworker until he before moved to
Minnesota at the end of summer or beginning of fall 2018.
¶ 22 At the conclusion of the parental fitness hearing, after all of the evidence and arguments
had been presented, the trial court found that the State had proven by clear and convincing
evidence that respondent had failed to make reasonable progress toward the return of the children
for all four of the nine-month periods listed in the termination petition. The trial court
determined, therefore, that respondent was unfit parent/person. In making its determination, the
trial court commented that its conclusion was supported by the testimony of Bonds and by the
prior permanency review orders, of which the trial court took judicial notice. The trial court also
noted that although respondent had made some significant progress in his personal life, he had
not made reasonable progress toward having the children returned to him. The trial court made
no ruling on any of the other grounds of parental unfitness alleged in the termination petition.6
6
Although the written order indicates that the trial court also found that respondent failed to
maintain a reasonable degree of interest, concern, or responsibility toward the children, the trial court’s
oral pronouncement of its ruling contained no such finding. See In re K.L.S-P., 383 Ill. App. 3d 287, 294
(2008) (indicating that when there is a conflict between the trial court’s written order and oral
pronouncement, the oral pronouncement controls).
9
¶ 23 A best interest hearing was held immediately thereafter. At the conclusion of the best
interest hearing, the trial court found that it was in the best interest of the children to terminate
respondent’s parental rights. The trial court terminated respondent's parental rights, set the
children’s permanency goal to adoption, and named DCFS as the guardian of the children with
the right to consent to adoption.7 Respondent appealed.
¶ 24 II. ANALYSIS
¶ 25 On appeal, respondent argues that the trial court erred in finding him to be an unfit
parent/person. More specifically, respondent asserts that it was improper for the trial court to
consider at the parental unfitness hearing Bonds’s testimony about the events that occurred prior
to when Bonds became the caseworker because Bonds had no firsthand knowledge of those
events and because the service plans about which Bonds testified were not admitted into
evidence. Respondent acknowledges that he did not object to that testimony at the parental
unfitness hearing but asserts that we should reach the merits of that issue, nevertheless, as a
matter of plain error. Based upon that alleged error, respondent asks that we reverse the trial
court’s finding of parental unfitness and that we remand this case for a new parental unfitness
hearing.
¶ 26 The State and the children argue that the trial court’s finding of parental unfitness was
proper and should be upheld. The State and the children assert that even if improper evidence
was admitted, reversal is not required in this case because the trial court’s finding of parental
unfitness was amply supported by proper evidence and because respondent invited or acquiesced
7
The trial court also terminated the parental rights of Tiarra (the biological mother of the
children).
10
in any error that occurred. The State and the children ask, therefore, that we affirm the trial
court’s judgment.
¶ 27 The involuntary termination of parental rights is governed by the provisions of both the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2018)) and the
Adoption Act (750 ILCS 50/0.01 et seq. (West 2018)). See In re D.T., 212 Ill. 2d 347, 352
(2004). In the first stage of termination proceedings in the trial court, the State has the burden to
prove the alleged ground of parental unfitness by clear and convincing evidence. See 705 ILCS
405/2-29(2) (West 2018); In re C.W., 199 Ill. 2d 198, 210 (2002). The proof of any single
statutory ground will suffice. 750 ILCS 50/1(D) (West 2018); C.W., 199 Ill. 2d at 210. A trial
court's finding of parental unfitness will generally not be reversed on appeal unless it is against
the manifest weight of the evidence. In re C.N., 196 Ill. 2d 181, 208 (2001). In this particular
case, however, respondent does not directly challenge the trial court’s finding of parental
unfitness. Instead, respondent attacks the admissibility of evidence. The admissibility of
evidence at a parental unfitness hearing is a matter that is within the sound discretion of the trial
court, and the trial court’s decision in that regard will not be reversed on appeal absent an abuse
of discretion. See In re A.S., 2014 IL App (3d) 140060, ¶ 28.
¶ 28 The rules of evidence in civil cases apply at a parental unfitness hearing. In re J.G., 298
Ill. App. 3d 617, 629 (1998). In keeping with those rules, it has generally been held that at a
parental unfitness hearing, a caseworker may not testify about the contents of a case file of which
he or she has no personal knowledge.8 See, e.g., In re M.H., 2020 IL App (3d) 190731, ¶ 20. Of
course, to raise such an error on appeal, the aggrieved party must preserve the error for appellate
8
The opposite rule would apply as well in a parental unfitness hearing—that a caseworker who
has direct knowledge of information within the case file because of his or her involvement in the case
may testify about the contents of the case file. See, e.g., In re Z.J., 2020 IL App (2d) 190824, ¶ 64.
11
review by objecting to the improper testimony in the trial court. See Ill. S. Ct. R. 366(b)(3)(ii)
(eff. Feb. 1, 1994); In re Lakita B., 297 Ill. App. 3d 985, 991 (1998). The failure to do so results
in the forfeiture of the issue. See M.H., 2020 IL App (3d) 190731, ¶ 15. However, an appellate
court may still consider the issue, despite the forfeiture, under the plain error doctrine because
the termination of parental rights affects a fundamental liberty interest. Id. Indeed, as our
supreme court has recognized, “a reviewing court should not easily declare forfeiture of an
argument directed at a decision to terminate [parental] rights.” See In re Br. M., 2021 IL
125969, ¶ 40.
¶ 29 In the present case, although respondent forfeited his claim of error by failing to object in
the trial court to the allegedly improper caseworker testimony, we reach the merits of that issue
under the plain error doctrine because of the fundamental liberty interest involved. See M.H.,
2020 IL App (3d) 190731, ¶ 15. Upon our review of the merits, we find that the complained-of
portions of Bonds’s testimony were indeed improper since Bonds did not have personal
knowledge of what had occurred in the case prior to when she became the caseworker. See id. ¶
20. That being said, we also find that a reversal is not warranted in this case for two reasons.
¶ 30 First, respondent was not prejudiced by the error because two of the four nine-month
periods alleged (January 15, 2019, through October 15, 2019, and October 16, 2019, through the
present date) were periods when Bonds was the caseworker and could properly testify about
what had occurred. See Z.J., 2020 IL App (2d) 190824, ¶ 64. As to those two periods, Bonds
properly testified that respondent did not maintain contact with her or the agency, that
respondent did not visit with the children, that respondent did not participate in counseling, and
that respondent did not perform any other services. Bonds’s testimony in that regard was
generally corroborated by the permanency review orders, which found that respondent had failed
12
to make reasonable progress for the periods in question, and by respondent’s own testimony.
The properly admitted evidence overwhelmingly established that respondent had failed to make
reasonable progress toward the return home of the children during the two nine-month periods
when Bonds was the caseworker. See 750 ILCS 50/1(D)(m)(iii) (West 2012); C.N., 196 Ill. 2d at
216-17 (describing the benchmark for measuring whether a parent has made reasonable progress
as encompassing the parent's compliance with the service plans and the court's directives, in light
of the condition that gave rise to the removal of the child, and in light of other conditions that
later became known that would prevent the court from returning custody of the child to the
parent); In re J.A., 316 Ill. App. 3d 553, 565 (2000) (indicating that at a minimum, reasonable
progress requires measurable or demonstrable movement toward the goal of the return of the
child). Thus, any error that resulted from Bonds’s testimony about other nine-month periods
when she was not the caseworker did not prejudice respondent. See 750 ILCS 50/1(D) (West
2018); C.W., 199 Ill. 2d at 210 (recognizing that proof of a single ground of parental unfitness is
sufficient to justify a trial court’s finding that a person is an unfit parent/person).
¶ 31 Second, a reversal is also not warranted in this case, despite the admission of improper
evidence at the parental unfitness hearing, because respondent invited or acquiesced in the
admission of that improper evidence. See In re Detention of Swope, 213 Ill. 2d 210, 217 (2004)
(stating that a party cannot complain about an error that the party induced the trial court to make
or to which the party consented). It would be truly unfair in this case to allow respondent to
benefit from that error when respondent elicited much of the same type of improper evidence in
his cross-examination of Bonds at the parental unfitness hearing. See id. (indicating that the
rationale behind the invited error rule is that it would be manifestly unfair to allow a party a
second trial based upon an error which that party injected into the proceedings).
13
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
¶ 34 Affirmed.
14