In re P.S. , 2024 IL App (4th) 240888-U ( 2024 )

NOTICE
This Order was filed under 2024 IL App (4th) 240888-U FILED
Supreme Court Rule 23 and is November 15, 2024
not precedent except in the NO. 4-24-0888 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re P.S., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Knox County
Petitioner-Appellee, ) No. 21JA32
v. )
James S., ) Honorable
Respondent-Appellant). ) Curtis S. Lane,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court.
Justices Lannerd and Grischow concurred in the judgment.
ORDER
¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed
the trial court’s judgment terminating respondent’s parental rights.
¶2 Respondent James S. appeals from the trial court’s judgment terminating his
parental rights to P.S. (born in 2019). Respondent’s court-appointed appellate counsel moves to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), arguing this appeal presents no
issue of arguable merit for review. See In re S.M., 314 Ill. App. 3d 682, 685-86 (2000) (holding
Anders applies to termination of parental rights cases and providing the proper procedure to be
followed by appellate counsel). For the reasons that follow, we grant appellate counsel’s motion
to withdraw and affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 A. Adjudication of Wardship
¶5 In August 2021, the State filed a single-count petition for adjudication of wardship,
alleging that P.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 P.S. was subjected to an
environment injurious to her welfare. The State alleged, among other things, that respondent
(1) was homeless; (2) was previously adjudicated as an unfit parent to a different minor in a 2017
juvenile matter, and his parental rights were terminated; and (3) failed to complete any services in
the 2017 juvenile matter to become fit. P.S.’s biological mother was also a party to these
proceedings but is not a party to this appeal. Following a shelter care hearing, the trial court found
probable cause to support the allegations of neglect and placed temporary custody and
guardianship with the Illinois Department of Children and Family Services (DCFS).
¶6 At a subsequent hearing, respondent stipulated to an amended petition filed by the
State containing the same allegations laid out above. The trial court admonished respondent, and
the State provided a factual basis. The court determined P.S. was neglected and made her a ward
of the court. Custody of P.S. remained with the guardianship administrator of DCFS. At a
dispositional hearing, respondent was found to remain unfit from the prior juvenile matter and had
not begun services.
¶7 B. Petition for Termination of Parental Rights
¶8 In December 2022, the State filed a petition to terminate respondent’s parental
rights. The petition alleged that respondent was an unfit parent under the Adoption Act (750 ILCS
50/1(D) (West 2022)) in that he failed to (1) make reasonable efforts to correct the conditions
serving as the basis of the removal of P.S. during the relevant nine-month period (January 4, 2022,
to October 4, 2022) (id. § 1(D)(m)(i)), (2) make reasonable progress toward the return of P.S.
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during the relevant nine-month period (id. § 1(D)(m)(ii)), and (3) maintain a reasonable degree of
interest, concern, or responsibility as to P.S.’s welfare (id. § 1(D)(b)).
¶9 1. The Fitness Hearing
¶ 10 In March 2024, the trial court conducted a fitness hearing. Respondent was not
present for the hearing. Tara Wilder testified that she was assigned as the caseworker from January
2022 through July 2022. Respondent’s service plan required that he complete a substance abuse
assessment; participate in mental health services, domestic violence counseling, and parenting
classes; comply with drug screens; and maintain employment, along with stable and appropriate
housing. Respondent failed to complete any of the services during the relevant time period but
completed some of the services afterward. Respondent lived with his mother during the pendency
of this matter, but the home was not an appropriate placement for P.S. because she could not pass
the required background check. Respondent held several different jobs during the course of the
case and switched jobs frequently. He did not provide proof of employment, but Wilder witnessed
him working one of the jobs. Respondent was also required to comply with weekly drug tests, but
he only completed “ten to twenty” percent of those tests. Respondent regularly visited P.S. and
was appropriate during those visitations.
¶ 11 Karen Moore was the caseworker from July 2022 through October 2022. The
services respondent was required to complete while Moore was the caseworker had not changed
from those in place when Wilder served in that role. Respondent failed to complete the required
services and was twice removed from required programs due to positive drug tests, inconsistent
participation, and an altercation with another individual in one of the programs. He submitted to
drug tests while Moore was the caseworker, but the majority of the results were positive.
Respondent was discharged twice from the domestic violence program for inconsistent attendance
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and because he was “having an issue with another person that was in the program.” Visitation with
P.S. was consistent and went well, as respondent was always “appropriate and nurturing” and
“used positive parenting skills.” Eventually, he was required to produce a negative drug test prior
to visitation, and he was denied visitation when he tested positive. Respondent had an apartment,
but Moore was unable to inspect it despite several scheduled visits because “he always had other
things or he would not respond.”
¶ 12 The trial court found that P.S. was no closer to being returned to respondent’s care
than when the case began and determined respondent was unfit based on the grounds articulated
in the State’s petition.
¶ 13 2. The Best Interest Hearing
¶ 14 The best interest hearing ensued. Wilder again testified, stating she was the
caseworker assigned to the case from January 2022 until Moore took over the case and she resumed
working on the case after Moore. P.S. had been in foster care for over two and a half years and had
been in the current placement for almost two years—half of her life. Respondent was appropriate
and loving during visitation. P.S. knew respondent was her father and Wilder could tell “she loves
her dad and he loves her.”
¶ 15 Wilder visited the foster home monthly. There were no issues with the home, and
P.S. referred to the foster parents as “Mom” and “Dad.” P.S. did not understand the workings of
the situation but understood “she has two dads.” The foster parents provided for her physical and
emotional needs, and P.S. was bonded to her foster parents and foster siblings. P.S. was “thriving”
in the placement, and the foster parents expressed a desire to adopt P.S. and give her permanence.
¶ 16 The foster mother testified that she and her husband were willing to adopt P.S. P.S.
was bonded with the other children in the home and the extended families of the foster parents.
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P.S. loved respondent and looked forward to her visits with him. If the matter proceeded to an
adoption, the foster mother would not cut respondent out of P.S.’s life, as “she’d have a hard time
with that.” Rather, the foster mother would facilitate the relationship, as long as it was “safe and
healthy.” If it became problematic, they would take a break and try to reengage at a later time.
¶ 17 Respondent testified that he lived with his mother and was not employed but was
starting full-time employment the following week; he also delivered for DoorDash. He loved P.S.
and believed that she loved him. He described their visitation and how she called him “Dad.” P.S.
had not lived with him for over two and a half years. He had attempted to have P.S. placed at his
mother’s house, where he lived, but DCFS stated the placement was not possible. He had an
apartment for a period of time during the case but ended up moving back in with his mother when
“it didn’t end up working out.”
¶ 18 The trial court recalled Wilder to the stand to inquire why the grandmother’s home
was not an acceptable placement. Wilder stated that the grandmother did not receive clearance
based on “her history.” When pressed, Wilder could not remember the exact issue precluding
placement except that it was due to an issue with her criminal history. The grandmother “became
belligerent” when DCFS tried to discuss the issue with her, causing concern about placement at
the home in general. During closing arguments, counsel for respondent contested the assertion by
Wilder that there was any criminal issue preventing placement. Counsel stated, “My client’s
mother has no criminal history whatsoever.”
¶ 19 The trial court considered the statutory best interest factors and found that they
favored the termination of respondent’s parental rights. The court reasoned, “While it’s wonderful
that there is a sense of attachment and there is a bond to at least the father, that bond is clearly
outweighed by the remainder of the best interest factors.”
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¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 Appellate counsel now moves to withdraw pursuant to Anders and argues that
respondent’s appeal presents no potentially meritorious issue for review. See S.M., 314 Ill. App.
3d at 685-86. Counsel states he has reviewed the record on appeal and has identified two potential
issues for review: (1) whether the trial court’s determination that respondent was unfit was against
the manifest weight of the evidence and (2) whether the court’s determination that termination of
respondent’s parental rights was in the best interest of P.S. was against the manifest weight of the
evidence. Counsel provided respondent notice of the motion to withdraw, and this court followed
with its own notice. Respondent has not filed a response. After reviewing the record and appellate
counsel’s memorandum, we agree with counsel that this appeal presents no issue of potential merit.
We therefore grant the motion to withdraw and affirm the court’s judgment.
¶ 23 A. Unfitness Finding
¶ 24 Section 2-29(2) of the Juvenile Court Act (705 ILCS 405/2-29(2) (West 2022))
provides for a two-step process to involuntarily terminate parental rights. The State must first prove
by clear and convincing evidence that the respondent is “unfit” as defined in section 1(D) of the
Adoption Act (750 ILCS 50/1(D) (West 2022)). In re N.G., 2018 IL 121939, ¶ 28.
¶ 25 In this case, the trial court determined respondent was unfit on two of the three
bases alleged in the State’s petition. However, a “parent’s rights may be terminated if a single
alleged ground for unfitness is supported by clear and convincing evidence.” In re D.C., 209 Ill.
2d 287, 296 (2004). Here, we focus on the ground that respondent failed to make reasonable
progress toward the return of P.S. during the relevant nine-month period pursuant to section
1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2022)).
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“Reasonable progress is examined under an objective standard based upon the
amount of progress measured from the conditions existing at the time custody was
taken from the parent. [Citation.] The benchmark for measuring a parent’s
reasonable progress under section 1(D)(m) of the Adoption Act encompasses the
parent’s compliance with the service plans and 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. [Citation.] 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.
¶ 26 The trial court is in a superior position to observe witnesses and evaluate their
credibility. In re D.F., 201 Ill. 2d 476, 498-99 (2002). Accordingly, the court’s findings regarding
parental unfitness are afforded great deference and will not be reversed unless against the manifest
weight of the evidence. Id. “A finding is against the manifest weight of the evidence where the
opposite conclusion is clearly evident.” In re C.N., 196 Ill. 2d 181, 208 (2001).
¶ 27 Respondent in this case failed to complete any of the court-ordered services during
the relevant time period and produced positive drug tests when he did comply with the testing
regimen. Respondent failed to make reasonable progress toward the return of P.S. during the
relevant nine-month period, and the trial court did not err in finding respondent was making no
progress toward having P.S. returned to his custody in the near future. Therefore, it would be
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frivolous to argue that the court’s unfitness finding was against the manifest weight of the
evidence.
¶ 28 B. Best Interest Determination
¶ 29 If a trial court finds a parent to be unfit, it then determines whether the best interest
of the child requires that parental rights be terminated. In re D.T., 212 Ill. 2d 347, 352 (2004). At
the best interest stage of termination proceedings, 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 C.P., 2019 IL App (4th) 190420, ¶ 71. In reaching a best interest determination, the trial court
must consider, within the context of the child’s age and developmental needs, the following
factors, which are derived from section 1-3(4.05) of the Juvenile Court Act (705 ILCS
405/1-3(4.05) (West 2022)):
“(1) the child’s physical safety and welfare; (2) the development of the child’s
identity; (3) the child’s familial, cultural[,] and religious background and ties;
(4) the child’s sense of attachments, including love, security, familiarity, continuity
of affection, and the least disruptive placement alternative; (5) the child’s wishes
and long-term goals; (6) the child’s community ties; (7) the child’s need for
permanence, including the need for stability and continuity of relationships with
parent figures and siblings; (8) the uniqueness of every family and child; (9) the
risks related to substitute care; and (10) the preferences of the person available to
care for the child.” (Internal quotation marks omitted.) In re J.B., 2019 IL App (4th)
190537, ¶ 32.
¶ 30 “The court’s best interest determination [need not] contain an explicit reference to
each of these factors, and a reviewing court need not rely on any basis used by the trial court below
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in affirming its decision.” In re Tajannah O., 2014 IL App (1st) 133119, ¶ 19. Additionally, a trial
court “may consider the nature and length of the child’s relationship with his present caretaker and
the effect that a change in placement would have upon his emotional and psychological
well-being.” In re Jaron Z., 348 Ill. App. 3d 239, 262 (2004). We afford great deference to the trial
court’s best interest finding due to the court’s superior position in viewing the witnesses and
judging their credibility. J.B., 2019 IL App (4th) 190537, ¶ 33. We will not disturb the trial court’s
judgment at this stage unless it is against the manifest weight of the evidence. Id.¶ 31 In this case, P.S. had been in foster care for the majority of her life. The foster
parents provided for her safety, shelter, and general welfare. P.S. was bonded with her foster
parents and her foster family, and the foster parents sought to provide permanence. We share the
sentiment of the trial court in its acknowledgment that there is clearly a loving bond between P.S.
and respondent and that P.S. recognizes him as her biological father. However, the bond between
respondent and P.S. is alone insufficient to reverse the court’s decision. See D.T., 212 Ill. 2d at
364 (“[A]t a best-interests hearing, the parent’s interest in maintaining the parent-child relationship
must yield to the child’s interest in a stable, loving home life.”). While P.S. is attached to
respondent, P.S.’s familial background and ties, as well as continuity of affection and least
disruptive placement, all reside with the foster parents. On balance, the factors do not show that
the judgment of the trial court was against the manifest weight of the evidence.
¶ 32 Having reviewed the record, we agree with counsel that there is no arguable issue
of merit that could be advanced challenging the trial court’s best interest finding.
¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we grant appellate counsel’s motion to withdraw and affirm
the trial court’s judgment.
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¶ 35 Affirmed.
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