In re I.L. , 2024 IL App (4th) 231023-U ( 2024 )

NOTICE 2024 IL App (4th) 231023-U FILED
This Order was filed under March 8, 2024
Supreme Court Rule 23 and is NOS. 4-23-1023, 4-23-1024, 4-23-1025 cons. Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re I.L., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Winnebago County
Petitioner-Appellee, ) Nos. 19JA322
v. (No. 4-23-1023) ) 19JA323
Nina K., ) 19JA324
Respondent-Appellant). )
______________________________________________ )
)
In re An. L., a Minor )
)
(The People of the State of Illinois, )
Petitioner-Appellee, )
v. (No. 4-23-1024) )
Nina K., )
Respondent-Appellant). )
______________________________________________ )
)
In re Al. L., a Minor )
)
(The People of the State of Illinois, )
Petitioner-Appellee, )
v. (No. 4-23-1025) ) Honorable
Nina K., ) Erin B. Buhl,
Respondent-Appellant). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Justices DeArmond and Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed the judgment of the trial court terminating
respondent’s parental rights because (1) respondent agreed to the admission of the
documents she now challenges as improper hearsay and a violation of her due
process rights, (2) the court’s fitness findings were not against the manifest weight
of the evidence, and (3) the record does not show that the court relied on in camera
statements by the children when considering her fitness.
¶2 Respondent, Nina K., is the mother of I.L. (born May 2014), An. L. (born April
2011), and Al. L. (born June 2010). In October 2023, the trial court found respondent was an unfit
parent under the Adoption Act (see 750 ILCS 50/1(D)(b), (m)(ii) (West 2022)) and that termination
of respondent’s parental rights would be in the children’s best interest.
¶3 Respondent appeals, arguing that (1) her due process rights were violated because
the State relied on multiple levels of hearsay to prove her unfitness, (2) the trial court’s fitness
determinations were against the manifest weight of the evidence, and (3) the court improperly
considered the children’s in camera statements as part of its fitness determination. We affirm.
¶4 I. BACKGROUND
¶5 This order disposes of three cases the trial court considered together and which we
have consolidated on appeal. Each appeal relates to a single child. The appeal of Henry L., the
children’s putative father, is separately addressed in appellate court case Nos. 4-23-1234, 4-23-
1235, and 4-23-1236.
¶6 A. Initial Proceedings.
¶7 In July 2019, the State filed two two-count petitions seeking adjudications that I.L.
and An. L. were neglected minors under the provisions of section 2-3(1)(b) of the Juvenile Court
Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2018)). These two petitions alleged that I.L. and
An. L.’s environment was injurious to their welfare in that Al. L. (who was part of the same
household) received excessive corporal punishment and that I.L. and An. L. were in a home in
which domestic violence occurred. Also in July 2019, the State filed a two-count petition alleging
that Al. L was a neglected minor under section 2-3(1)(b) of the Act and an abused minor under
section 2-3(2)(i) of the Act (id. § 2-3(2)(i)). She was an abused minor in that a household
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member—Henry L.—“inflict[ed], cause[d] to be inflicted, or allow[ed] to be inflicted upon
[Al. L.] physical injury, by other than accidental means, which causes death, disfigurement,
impairment of physical or emotional health, or loss or impairment of any bodily function.” She
was a neglected minor in that she was in a home in which domestic violence occurred.
¶8 In September 2019, Henry L. stipulated to the counts alleging that I.L. and An. L.
were neglected because they were exposed to the excessive corporal punishment of Al. L. and that
Al. L. was abused because she had been physically injured. Nina K. then waived her right to a
hearing. The trial court then adjudicated Al. L. to be an abused minor and I.L. and An. L to be
neglected minors. The court named the Illinois Department of Children and Family Services
(DCFS) as the children’s guardian.
¶9 B. The Proceedings for Termination of Parental Rights
¶ 10 In March 2023, the State filed petitions to terminate respondent’s parental rights as
to each child, alleging she had failed (1) “to maintain a reasonable degree of interest, concern or
responsibility as to the [minors’] welfare” and (2) to make reasonable progress toward the return
of the children during the nine-month periods of (a) December 7, 2020, to September 7, 2021;
(b) September 7, 2021 to June 7, 2022; or (c) June 27, 2022 to March 27, 2023.
¶ 11 A hearing on the unfitness portion of the termination petitions took place in May
2023. Respondent has challenged the trial court’s unfitness finding but not its best interest finding.
Accordingly, we set out details only of the unfitness portion.
¶ 12 1. The State’s Evidence
¶ 13 a. Stipulations to the Admission of Evidence
¶ 14 After the trial court, with the agreement of the parties, took judicial notice of the
filings in the case, the State told the court that the parties had “no objection to the foundational
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requirements of all the State’s exhibits.” The lawyers for respondent and Henry L. agreed that this
was correct. The State’s exhibits included (1) the integrated assessments of both parties, (2) two
DCFS “indicated packages,” (3) psychological assessments of respondent and Henry, and (4) the
information and guilty plea documents from the criminal case against Henry, which stemmed from
the incident in which he inflicted harm on Al. L.
¶ 15 These documents show, among other things, that the State had charged Henry L.
with one count of aggravated battery of a child (720 ILCS 5/12-3.05(b)(2) (West 2018)). The
information in that case alleged that, on July 20, 2019, Henry grabbed Al. L., causing her to suffer
bruising. Henry entered a fully negotiated plea to the charged offense and received a sentence of
24 months’ probation. According to the DCFS investigator’s report of the incident, Al. L. got into
an argument with Henry and then punctured his waterbed with a pen. She ran to hide from him,
but he pulled her out of a closet and choked her until she started to black out. He stopped when
respondent yelled at him to stop. This incident took place in the presence of An. L. and I.L.
¶ 16 b. The Testimony of Evanya Perry-Burks
¶ 17 Evanya Perry-Burks, a caseworker at Youth Service Bureau of Illinois Valley
(YSB), testified she initially received reports that respondent had described being the victim of
domestic violence. Later, Perry-Burks heard no domestic violence had occurred. YSB continued
to “have concerns regarding domestic violence in [respondent’s] relationships” because “there’s
still a lack of clarity between whether [domestic violence] incidents happened in terms of
maintaining consistent answers.” In later testimony, she stated that the details of the incident had
never been clarified. For instance, at an unspecified hearing, respondent mentioned that a plastic
bag had been used in the attack on Al. L., which was something Perry-Burks had not heard
previously.
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¶ 18 Respondent had engaged in many recommended services and had regular visits
with her son for most of the time the children were in care. She did not visit her daughters because
they refused visits. I.L. became uncomfortable with visiting respondent after she became hostile
to the YSB caseworkers supervising a March 2023 visit. Respondent “felt that there were too many
people watching her during the visit, and then she became escalated and asked everyone to leave.”
After that, I.L. was reluctant to visit. However, aside from the spring 2023 visit, respondent’s visits
with I.L. were appropriate. Respondent was also described as being aggressive with a housing
advocate with whom she was working. Counsel for respondent did not object to this testimony.
¶ 19 YSB was concerned that respondent lacked the skills to be a safe parent:
“[A]lthough [respondent] has completed [relevant services], the engagement level
or the authenticity of applying the skills learned seems to be lacking. Our Agency
believes that she has still failed to acknowledge what happened and acknowledge
the children’s feelings in what happened in order to apply the skills appropriately.”
Respondent’s account of the incident that caused the minors to be brought into care differed from
the minors’ and downplayed “the intensity of what happened.” Thus, respondent had not
“acknowledged the violence in the home” in “the way [YSB] would ask her to.”
¶ 20 YSB was also concerned that there was ongoing domestic violence between
respondent and Henry L. based on respondent setting up a safety plan with another caseworker
and seeking independent housing. However, Perry-Burks was not aware of any incidents of
domestic violence after 2019.
¶ 21 2. Respondent’s Testimony
¶ 22 Respondent testified that she had never denied that Henry L. had battered Al. L. or
that she and Henry had a history of domestic violence. However, Henry had not been violent with
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her since the start of the case. Respondent agreed that she was Henry’s caregiver. (Henry used an
electronic larynx and, at least for some interval, a feeding tube. He also had a “blood cancer.”)
Respondent’s counsel asked if her extremely low IQ—an evaluator measured it as 66—interfered
with her ability to care for her children. Respondent expressed doubt about the IQ measurement
and stated that she could always do what she needed to do. She said that she would not again
behave the way she had at the March 2023 visit, but she said the caseworkers had upset her by
laughing.
¶ 23 3. The Trial Court’s Ruling
¶ 24 The trial court found that respondent had failed to show reasonable concern for the
children and make reasonable progress towards their return. It summarized the evidence at length,
including its own findings about the battery that precipitated DCFS’s filing of the original
petitions. It concluded the evidence was “overwhelming” that Henry L. had reacted to Al. L’s
puncturing his mattress by “attempt[ing] to murder” her in front of her two siblings:
“According to State’s Exhibit 14[, the ‘indicated’ finding,] on July 20, 2019, [Henry
L.] choked [Al. L.], then age 9, to the point she started to go blind and could not
breathe.
*** He straddled her on the floor, placed both hands around her neck and
choked her. She tried to kick and scream, and he squeezed tighter. He also covered
her head and mouth with a plastic bag. [Respondent] and [An. L.] pulled on him,
while [I.L.] watched and cried.”
¶ 25 The trial court summarized a psychological evaluation conducted in August 2022
as stating that respondent:
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“had no understanding of why her children were removed and have not been
returned home. *** [Respondent’s] cognitive limitations [made] it difficult for her
to understand the circumstances of the case and her role in it[—]that [respondent]
did not appear to realize that she is responsible for her children’s welfare, even if
*** mistreated by [Henry] and not herself.”
It further found that both Henry and respondent “denied there was domestic violence in the home
when the children resided in their care,” but that this was not credible.
¶ 26 The trial court noted it had repeatedly communicated with the minors on the record.
It deemed their statements to be credible and reliable.
¶ 27 In concluding, the trial court stated:
“I believe the parents *** have demonstrated some efforts; however, they
are unable to correct or adjust their mode of thinking or parenting to create a safe
environment for their children.
[Al. L., An. L.,] and even [I.L.] have voiced ongoing fear for [sic] their
parents throughout the duration of these cases.
*** There has been no progress demonstrated by [respondent] or [Henry L.]
during the time period that’s alleged in the termination motion, and generally,
considering the severity of the situation which gave rise to the removal of the
children in July 2019 and other violence and abuse that prevents this court from
returning custody of any children to either parent.
The parents still demonstrated the same aggressive behavior and lack of
protective skills during the visit with [I.L.] in March 2023 as occurred in and prior
to 2019.
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The parents’ inability to make progress in services is analogous to their
failure to maintain a reasonable degree of interest, concern or responsibility as to
the welfare of their children.
It is impossible for this Court to conclude, after reviewing all of the
consistent evidence presented, that these children will or can return home to their
parents in the near future.”
¶ 28 After a hearing at which the trial court determined that it would be in the best
interest of each minor to terminate the parental rights of respondent and Henry L., on October 13,
2023, the court entered orders terminating their rights.
¶ 29 This appeal followed.
¶ 30 II. ANALYSIS
¶ 31 On appeal, respondent argues first she was denied due process in that the State
relied on multiple levels of hearsay to meet its burden of proof. Alternatively, she contends that,
even considering the hearsay evidence, the State failed to meet its burden to show by clear and
convincing evidence that she was unfit. She contends the trial court applied an inappropriate
standard for reasonable progress by insisting that the only way she could make progress was to
adopt DCFS’s narrative of Henry L’s July 2019 attack on Al. L. Respondent argues:
“[R]egardless of how [she] described the assault, her consistent engagement in
services, appropriate participation in visitation (when permitted by DCFS), the lack
of any violence by [her] or [Henry L.] in 4 years, and [her] participation in
counseling over the entire case, all demonstrate reasonable progress by [her].”
Finally, she argues the court erred in relying at the fitness hearing on unsworn in camera
statements by the minors.
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¶ 32 The State argues that we should not address respondent’s first claim. It contends
she either (in effect) invited the error by stipulating to the foundation for all the documents at issue
or at least forfeited the issue by failing to raise it. It further argues that the trial court’s finding that
respondent was unfit was not contrary to the manifest weight of the evidence. Concerning the
court’s finding that respondent failed to make reasonable progress towards the minors’ return, it
contends that the court noted multiple failures by respondent to address the violence in the home.
Finally, the State contends the minors’ statements were used only at the best interest portion of the
proceeding.
¶ 33 In reply, respondent contends that because she never agreed to the “multi-level
hearsay” in the documents she agreed to admit, she did not invite error. She does not suggest that
she preserved her objections by making timely objections to the trial court’s admission of the
evidence. She asks that we address her claim that the court improperly relied on hearsay as second-
prong plain error.
¶ 34 We conclude that respondent forfeited her claim that the trial court improperly
admitted and relied on multi-level hearsay. Moreover, these claims are not subject to plain-error
review. We conclude that respondent has not shown that the unfitness finding was against the
manifest weight of the evidence. Finally, she has not shown that the court’s mention of the
children’s in camera statements during its summary of the evidence amounted to improper
consideration of those statements.
¶ 35 A. Respondent Forfeited Her Hearsay-Based Claims
¶ 36 Respondent forfeited her claims that the trial court improperly admitted and relied
on multi-level hearsay in the State’s exhibits by failing to object to use of the hearsay portions of
those exhibits. To preserve an evidentiary issue in a termination-of-parental-rights case for
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appellate review, a party must object at the hearing. In re M.W., 232 Ill. 2d 408, 430, 905 N.E.2d
757, 772 (2009). The requirements for preserving a claim of error in a termination proceeding are
the same as those in a criminal case, except that a respondent in a termination proceeding, unlike
a defendant in a criminal case, need not raise the claimed error in a postjudgment motion. Id.Respondent never objected to the State’s introduction of documents containing potentially
inadmissible hearsay or the court’s consideration of that hearsay and thus forfeited all claims based
on the admission of that hearsay.
¶ 37 Indeed, respondent arguably agreed to the consideration of all information in the
State’s exhibits when she stipulated to the existence of a foundation for those exhibits. If this is so,
respondent’s claim that the trial court improperly considered inadmissible hearsay is barred under
the invited error rule. Under the invited error rule, a party is, in effect, estopped from raising as
error on appeal actions he or she had requested in the trial court. Gaffney v. Board of Trustees of
the Orland Fire Protection District, 2012 IL 110012, ¶ 33, 969 N.E.2d 359.
¶ 38 Further, respondent’s evidentiary claim is not reviewable as plain error. The
supreme court has stated:
“[T]he plain error rule allows reviewing courts discretion to review forfeited errors
under two alternative prongs: (1) when a clear or obvious error occurred and the
evidence is so closely balanced that the error alone threatened to tip the scales of
justice against the defendant, regardless of the seriousness of the error, or (2) when
a clear or obvious error occurred and the error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” People v. Moon, 2022 IL 125959, ¶ 20,
215 N.E.3d 58.
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The supreme court equates second-prong plain error with “ ‘structural error’ ”—error that is
presumed to be prejudicial. Id. ¶ 28. But errors, including constitutional errors, are presumed to be
subject to harmless error review—that is, they are presumed to be nonprejudicial. Id. We find no
authority for the proposition that the admission of hearsay, even when that admission constitutes
constitutional error, is ever structural error.
¶ 39 B. The Trial Court’s Unfitness Determination
Was Not Contrary to the Manifest Weight of the Evidence
¶ 40 Respondent argues that, even considering the hearsay evidence to which she
objects, the State failed to prove that she was unfit by clear and convincing evidence. We here
address the findings of unfitness based on respondent’s failures to make reasonable progress during
the three nine-month periods specified by the State. “[A]ny one ground [for finding unfitness],
properly proven, is sufficient to enter a finding of unfitness.” (Emphasis omitted.) In re C.W., 199
Ill. 2d 198, 210, 766 N.E.2d 1105, 1113 (2002). Thus, a reviewing court should affirm a trial
court’s finding of unfitness if any ground on which the court found the respondent unfit is
sustainable (see, e.g., In re J.O., 2021 IL App (3d) 210248, ¶ 33, 195 N.E.3d 837) and we need
not address every basis on which the court found respondent unfit to affirm the finding of unfitness.
We conclude the evidence was sufficient to support the court’s finding that respondent failed
altogether to make progress in understanding her children’s need for acknowledgment of the
harmfulness of their household environment.
¶ 41 1. The Standard of Review
¶ 42 “A trial court’s finding of parental unfitness will not be reversed unless it is against
the manifest weight of the evidence.” In re Ta. T., 2021 IL App (4th) 200658, ¶ 48, 187 N.E.3d
763. “A trial court’s decision is against the manifest weight of the evidence only if the opposite
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conclusion is clearly apparent or the decision is unreasonable, arbitrary, or not based on the
evidence.” (Internal quotation marks omitted.) In re N.B., 2019 IL App (2d) 180797, ¶ 30, 125
N.E.3d 444. A reviewing court “give[s] deference to the trial court as the finder of fact” and does
not “substitute [its] judgment for that of the trial court on the credibility of witnesses, the weight
given the evidence, or inferences drawn from the evidence.” In re A.W., 231 Ill. 2d 92, 104, 896
N.E.2d 316, 324 (2008).
¶ 43 2. The Law Regarding Reasonable Progress
¶ 44 The State must prove unfitness as defined in section 1(D) of the Adoption Act (750
ILCS 50/1(D) (West 2022)) by clear and convincing evidence. In re N.G., 2018 IL 121939, ¶ 28,
115 N.E.3d 102. Section 1(D)(m)(ii) of the Adoption Act defines an unfit person as a parent who
fails to make “reasonable progress toward the return of the child” during any nine-month period
following an adjudication of neglect or abuse. 750 ILCS 50/1(D)(m)(ii) (West 2022). The Illinois
Supreme Court has held:
“The benchmark for measuring a parent’s reasonable progress under section
1(D)(m) of the Adoption Act encompasses compliance with the service plans and
[trial] court’s directives in light of the condition that gave rise to the removal of the
child and other conditions which later become known that would prevent the court
from returning custody of the child to the parent.” In re K.P., 2020 IL App (3d)
190709, ¶ 36, 157 N.E.3d 493 (citing In re C.N., 196 Ill. 2d 181, 216-17, 752
N.E.2d 1030, 1050 (2001)).
¶ 45 Similarly, this court has defined “reasonable progress” as follows:
“ ‘Reasonable progress’ is an objective standard which exists when the [trial] court,
based on the evidence before it, can conclude that the progress being made by a
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parent to comply with directives given for the return of the child is sufficiently
demonstrable and of such a quality that the court, in the near future, will be able to
order the child returned to parental custody. The court will be able to order the child
returned to parental custody in the near future because, at that point, the parent will
have fully complied with the directives previously given to the parent in order to
regain custody of the child.” (Emphases in original.) In re L.L.S., 218 Ill. App. 3d
444, 461, 577 N.E.2d 1375, 1387 (1991).
See K.P., 2020 IL App (3d) 190709, ¶ 36 (“Reasonable progress exists when the trial court can
conclude that the progress *** [is] of such a quality that the trial court will be able to order the
minor returned to parental custody in the near future.”).
¶ 46 3. The Evidence of Unfitness Was Sufficient
¶ 47 Here, the trial court found respondent unfit on all grounds alleged, including failure
to make reasonable progress towards the minors’ return during all three time periods set out in the
petition. It found that serious violence occurred in the home when the children were present. It
found that respondent and Henry L. were “unable to correct or adjust their mode of thinking or
parenting to create a safe environment for their children” and that the children remained fearful of
returning to their parents. This was the core of its grounds for finding that respondent both failed
to maintain a reasonable degree of concern for the children’s welfare and failed to make reasonable
progress.
¶ 48 The trial court’s ruling was based on respondent’s failure to grasp how the
children’s understanding of the choking incident, and their understanding of incidents of violence
that preceded it, affected them. Although respondent argues that the court overstated the intensity
of the violence in her home, she does not dispute that the violence was serious. Moreover, the
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record was replete with evidence, such as the psychological evaluation, that supported the
conclusion that respondent lacked insight into how the violence was harmful to her children. Thus,
the State offered sufficient evidence to support the finding of unfitness.
¶ 49 4. The Trial Court Did Not Apply an Inappropriate Standard for
Reasonable Progress
¶ 50 Respondent argues that the trial court applied an unreasonable standard for
reasonable progress in that it made respondent’s acceptance of DCFS’s description of the events
that resulted in the children’s removal the sole measure of progress. We disagree.
¶ 51 The trial court stated that both respondent and Henry L. were “unable to correct or
adjust their mode of thinking or parenting to create a safe environment for their children.” Nothing
the court said suggested it required respondent to accept any specific set of facts. It did, however,
make clear that to support her children, respondent would have to be able to acknowledge
consistently that (1) Henry’s attack on Al. L. involved serious violence, (2) there had been serious
violence in the household prior to the attack, and (3) she had a duty to protect her children from
the effects of the violence in the household.
¶ 52 Respondent does not deny the existence of serious violence in the household.
Instead, she challenges the trial court’s description of Henry L.’s attack on Al. L. as attempted
murder, suggesting that the court expected her to accept that description. We find nothing in the
court’s comments to support that suggestion. The court’s evaluation of the severity of Henry’s
violence bore on Henry’s fitness. However, the record suggests that at no other time than the
court’s oral ruling was Henry’s attack on Al. L. described as attempted murder. The court was thus
emphasizing its view of the seriousness of the attack, not stating the position of DCFS or YSB. It
could not have plausibly expected respondent to have prospectively adopted a position for which
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no one had advocated.
¶ 53 C. Respondent Has Not Shown That the Trial Court
Relied on the Children’s in Camera Statements at the Fitness Hearing
¶ 54 Respondent argues that the trial court erred in making use of unsworn in camera
statements by the children at the fitness hearing. She contends the only proper use of such
statements is during best-interest proceedings to determine the children’s preferences. We agree
with respondent that the court discussed the statements at the fitness portion of the proceeding,
noting that the statements were credible. However, our review of the court’s oral finding of
unfitness does not show any point at which the in camera statements informed its analysis. The
court’s comments included a discursive review of the material before it. Its mention of the
existence of the in camera statements thus does not imply that it gave any weight to those
statements during the fitness portion of the proceedings. Respondent does not provide any
examples of how the statements affected the court’s fitness analysis, and we cannot find any in the
record. There is thus no basis to conclude that the court placed any weight on the in camera
statements during the fitness portion of the proceeding.
¶ 55 III. CONCLUSION
¶ 56 For the reasons stated, we affirm the trial court’s judgment.
¶ 57 Affirmed.
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