In re M.I. , 2016 IL 120232 ( 2017 )

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Supreme Court Date: 2017.07.06
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In re M.I., 2016 IL 120232Caption in Supreme In re M.I., a Minor (People of the State of Illinois, Appellant, v. J.B.,
Court: Appellee).
Docket No. 120232
Filed December 15, 2016
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Peoria County, the Hon.
Albert Purham, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Jerry Brady,
Appeal State’s Attorney, of Peoria (Carolyn E. Shapiro and David L. Franklin,
Solicitors General, and Daniel J. Hartweg, Assistant Attorney
General, of Chicago, and Patrick Delfino, Terry A. Mertel, and Laura
E. DeMichael Bialon, of the Office of the State’s Attorneys Appellate
Prosecutor, of counsel), for the People.
Susan K. O’Neal, of Peoria, for appellee.
Robert F. Harris, Kass A. Plain, and John David Jarrett, of the Office
of the Cook County Public Guardian, of Chicago, for amicus curiae
Cook County Public Guardian.
Barry C. Taylor, Laura J. Miller, and Jin-Ho Chung, of Equip for
Equality, of Chicago, amicus curiae.
Diane Redleaf, of Chicago, for amicus curiae Family Defense Center
et al.
Justices JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1 The State filed a petition to terminate the parental rights of J.B. for failing to maintain a
reasonable degree of interest, concern, or responsibility for his daughter M.I.’s welfare (750
ILCS 50/1(D)(b) (West 2014)) and for failing to make reasonable progress toward the return of
M.I. (750 ILCS 50/1(D)(m) (West 2014)). The juvenile court granted the State’s petition. The
appellate court, in a split decision, reversed and remanded, finding that the trial court’s
conclusions were against the manifest weight of the evidence. The dissenting justice would
have affirmed the judgment of the juvenile court. We allowed the State’s petition for leave to
appeal, pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015), to determine
(1) whether the appellate court improperly grafted a willfulness requirement onto subsections
(b) and (m) of the Adoption Act (750 ILCS 50/1(D)(b), (m) (West 2014)), (2) whether the
juvenile court erred by not expressly stating that it did not consider evidence outside the
nine-month period in ruling on subsection (m), (3) whether the juvenile court’s ruling was
against the manifest weight of the evidence, and (4) whether the State is limited to asserting
subsection (p) when petitioning to terminate an intellectually disabled parent’s rights. We
allowed the Cook County Public Guardian as well as Equip for Equality, the Family Defense
Center, the Chicago Coalition for the Homeless, Cabrini Green Legal Aid, and LAF (Legal
Assistance Foundation) to file briefs as amici curiae pursuant to Illinois Supreme Court Rule
345 (eff. Sept. 20, 2010).
¶2 BACKGROUND
¶3 In July 2010, the Illinois Department of Children and Family Services (DCFS) petitioned
for wardship of M.I., a minor, pursuant to section 2-3 of the Juvenile Court Act of 1987 (705
ILCS 405/2-3 (West 2014)). DCFS alleged that M.I.’s mother, E.I., had neglected her and that
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M.I.’s father, J.B., had an extensive criminal history. The juvenile court granted the petition,
finding M.I. to be neglected and also finding both parents, E.I. and J.B., to be fit. On October
13, 2010, the juvenile court directed J.B. to execute any necessary authorizations for release of
information requested by DCFS, cooperate with DCFS, obtain a drug and alcohol assessment,
submit to random drug testing twice monthly, undergo a psychological examination, and
complete a parenting class.
¶4 In 2011, J.B. underwent a psychological examination per the juvenile court’s directive.
The examination revealed the following information about J.B. Until he dropped out of his
senior year of high school, J.B. was enrolled in special education courses for learning
disabilities. J.B. had been unemployed since 2007. J.B. had been incarcerated on eight
different occasions for approximately 18 to 19 years in total but had not been incarcerated
since 2005. J.B. suffers from bipolar disorder. Also, J.B. admitted to regular marijuana use but
indicated that he had been clean for two months. It was further discovered that J.B. lacked his
own residence, is functionally illiterate, and possesses an IQ of 58, indicating significant
intellectual limitation and mild mental retardation. The psychologist concluded that, from an
intellectual and academic perspective, J.B. could not independently parent M.I. and
recommended that any interventions and services be modified. Additionally, the psychologist
opined that J.B. could benefit from circumscribed interventions because J.B.’s functioning
limited his ability to benefit from traditional mental health services involving verbal exchange.
¶5 On March 21, 2011, the State filed a motion to find J.B. unfit. The State asserted that J.B.
did not attend drug testing or participate in a drug and alcohol evaluation and that J.B. refused
to provide an address to his caseworker. The State’s motion to find J.B. unfit was granted on
March 30, 2011. Thereafter, at five different permanency hearings, the juvenile court found
that he had failed to make reasonable efforts to achieve the service plan and permanency goal.
¶6 In May 2013, the juvenile court returned guardianship of M.I. to her mother, E.I., but
subsequently found E.I. unfit and appointed DCFS as guardian. On April 30, 2014, the juvenile
court found that J.B. had not made reasonable efforts, and the permanency goal was changed to
“substitute care pending court decision.”
¶7 In May 2014, the State filed a petition to terminate E.I.’s and J.B.’s parental rights. The
State alleged that J.B. had (1) failed to maintain a reasonable degree of interest, concern, or
responsibility under subsection (b) and (2) failed to make reasonable progress toward the
return of M.I. between August 1, 2013, and May 1, 2014, under subsection (m).
¶8 At the adjudicatory hearings in December 2014 and February 2015 on the petition for
termination of parental rights, the State presented the testimony of Brenda Lee, the assigned
caseworker. Lee began working on the case on August 11, 2011. Lee testified that when she
had asked J.B. about his drug use, he responded that he had been through classes before and
was continuing to use marijuana. J.B. indicated that he would not stop using marijuana.
¶9 Lee further testified that, as of February 2012, J.B. had not provided DCFS with his
address, had indicated that he would not stop using marijuana, and had not completed drug
testing. Lee explained that she did not provide J.B. referrals for various services because she
did not have J.B.’s contact information but did give J.B. information about community
agencies offering such services. Lee initially gave J.B. bus passes to attend visitation and drug
testing in Peoria. J.B. somewhat regularly attended visits with M.I. until he missed a week,
attended two to three more visits, and then stopped. Lee ceased providing the passes when J.B.
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began using them for other purposes. Beginning around August 2012, Lee required J.B. to call
in before visits with M.I because J.B.’s inconsistent attendance was having a negative impact
on M.I. Lee testified that J.B. followed this procedure for a couple of visits.
¶ 10 Although Lee was not certain, she did not believe that J.B. visited M.I. between August 15,
2012, and January 30, 2013. She did testify that J.B. did not complete drug testing during that
period. As of April 23, 2013, J.B. had not visited M.I. or submitted to drug testing. He did
attend permanency hearings. J.B. visited M.I. once in June 2013. J.B. completed an integrated
assessment interview, and Lee restarted visits after M.I. went into foster care. J.B. visited twice
in December 2013 and once in June 2014. A visit was scheduled the week before the December
2014 adjudicatory hearing but had to be rescheduled because M.I. was sick.
¶ 11 On cross-examination, Lee admitted that she never inquired about compliance with the
Americans with Disabilities Act (ADA) or whether the parenting classes were proper for J.B.
given his mental disabilities because J.B. did not follow through on services. Lee did not
inquire into DCFS services or guidelines regarding homeless clients, did not provide J.B. any
homemaker services, and did not modify his services. Although Lee had conversations with
J.B. about restarting psychiatric care at the Human Service Center and had J.B. sign medical
releases so Lee could obtain his medical records, J.B. did not follow up with the center.
¶ 12 The juvenile court found J.B. unfit under count IV, which alleged that J.B. failed to
maintain a reasonable degree of interest, concern, or responsibility under subsection (b). The
juvenile court specifically noted J.B.’s disinterest. Additionally, J.B. was found unfit under
subsection (m) for failing to make reasonable progress toward reunification. The juvenile court
commented that DCFS could not modify services for someone who did not show up. The
juvenile court also noted that J.B.’s presence at some visits and attendance at court proceedings
indicated that his failure to attend other visitations was a choice rather than a product of J.B.’s
low IQ. The juvenile court stated that it had considered J.B.’s IQ and read through the
psychological evaluation but nevertheless concluded that J.B. appeared to be disinterested.
Specifically, the juvenile court stated:
“It’s hard to modify services for a person that’s not willing to show up. You know, you
didn’t maintain contact. You were inconsistent in your visits. You did come to court.
You have one visit from April 2013 to May of 2014. *** They probably could have
modified services, but you’re not making contact with the caseworker. You met her
August 29th, 2011, and would not give her your address. How is she to maintain
contact with you or modify services if you were unwilling to give her information to
contact you? That’s the decision you made.
I don’t think it has anything to do with your IQ. As we look at this, you were able to
use bus passes for the visits you did make. You were sporadic in your visits, and I think
you understand the importance of making visits.
You know, but you made your visits that you saw fit. And you didn’t visit on a
regular basis. That was your choice. I understand the bus passes were taken away from
you, because you were not using them for your visits. You do come to court. I
commend you for that. But I think by clear and convincing evidence, you have not
maintained a reasonable degree of interest, concern, or responsibility as to the minor’s
welfare.
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And obviously during this period of time being May—excuse me—August 1,
2013[,] to May 1st, 2014, you weren’t even really visiting with the child on a consistent
basis as I said earlier. Therefore, I find Count 3 and 4 *** proven as to you ***.”
¶ 13 On May 20, 2015, the juvenile court held a best interest and permanency review hearing.
Lee’s testimony was presented again. By May 20, 2015, additional permanency and best
interest reports, a bonding assessment of J.B. and M.I., and a bonding assessment of M.I.’s
foster parents were also before the juvenile court. The juvenile court found that DCFS had
made reasonable efforts to achieve permanency. An order was entered terminating J.B.’s
parental rights, and J.B. appealed.
¶ 14 The appellate court reversed in a split decision, finding that the juvenile court failed to take
into account J.B.’s circumstances—his low IQ and functioning. The majority noted: “The
record is clear that there was no consideration of how the respondent’s mental retardation
impacted his efforts to comply with the court’s directives.” 2015 IL App (3d) 150403, ¶ 16.
Specifically, the majority stated:
“We cannot accept the trial court’s determination that failing to complete a task that
is beyond one’s intellectual capacity is the same as refusing to comply with
court-ordered directives and willfully not making reasonable progress toward the
return of a minor child or willfully failing to maintain a reasonable degree of interest in
the child.” Id.¶ 15 Important to the majority’s holding was the fact that the State never provided J.B. a service
plan and, therefore, the only benchmarks to measure J.B.’s progress were the tasks the trial
court assigned. The majority believed that J.B.’s failure to schedule appointments, submit to all
drug drops, attend all visitations, and provide an address to his caseworker might be sufficient
to demonstrate a lack of reasonable progress or a failure to maintain a reasonable degree of
interest if J.B. were not intellectually disabled. The majority also found that the juvenile court
erred in considering evidence outside the nine-month period pertaining to the reasonable
progress count under subsection (m). Further, the majority remarked that the statutory scheme
of the Adoption Act “recognizes that there are situations where, as here, through no fault, a
parent lacks the sufficient mental ability necessary to be responsible for the welfare of a child.”
Id.; see 750 ILCS 50/1(D)(p) (West 2014).
¶ 16 The dissent asserted that the majority reversed the juvenile court on a basis for which it had
no legal authority and should not read into the Adoption Act a requirement that does not exist.
2015 IL App (3d) 150403, ¶ 25 (Schmidt, J., dissenting). The dissent noted: “whether
respondent failed to make reasonable progress toward the return of M.I. or failed to maintain a
reasonable degree of interest, concern or responsibility in her welfare because he is
intellectually incapable or because he outright refused to do so is irrelevant to this court’s
inquiry.” Id. ¶ 26. Furthermore, the dissent believed that the evidence supported the juvenile
court’s findings.
¶ 17 ANALYSIS
¶ 18 Before this court, the State argues that (1) the appellate court majority improperly grafted a
willfulness requirement onto the plain language of subsections (b) and (m) of the Adoption Act
(750 ILCS 50/1(D)(b), (m) (West 2014)); (2) the juvenile court did not err by failing to
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expressly state, when ruling on subsection (m), that it did not consider evidence outside the
statutorily prescribed nine-month period of consideration; (3) the juvenile court’s ruling was
not against the manifest weight of the evidence; and (4) the State is not limited to asserting
subsection (p) to terminate an intellectually disabled parent’s parental rights.
¶ 19 “In Illinois, the authority to involuntarily terminate parental rights is purely statutory and
the scope of the court’s authority is defined by the Juvenile Court Act and the Adoption Act.”
In re E.B., 231 Ill. 2d 459, 463 (2008). Illinois policy “favors parents’ superior right to the
custody of their own children.” Id. at 464.
¶ 20 Section 2-29 of the Juvenile Court Act sets forth a two-step process for the involuntary
termination of parental rights. 705 ILCS 405/2-29(2) (West 2014). “First, the court must find,
by ‘clear and convincing evidence, that a parent is an unfit person as defined in Section 1 of the
Adoption Act.’ ” In re J.L., 236 Ill. 2d 329, 337 (2010) (quoting 705 ILCS 405/2-29(2) (West
2008)). “When ruling on parental unfitness, a court is not to consider the child’s ‘best
interests.’ ” In re Adoption of Syck, 138 Ill. 2d 255, 276 (1990). “Second, once a finding of
parental unfitness is made under section 1(D) of the Adoption Act, the court considers the ‘best
interest’ of the child in determining whether parental rights should be terminated.” In re J.L.,
236 Ill. 2d at 337 (quoting 705 ILCS 405/2-29(2) (West 2008)).
¶ 21 “[A] finding of unfitness will not be reversed unless it is against the manifest weight of the
evidence *** [because] the trial court’s opportunity to view and evaluate the parties *** is
superior to that of a reviewing court.” In re Brown, 86 Ill. 2d 147, 152 (1981). “A court’s
decision regarding a parent’s fitness is against the manifest weight of the evidence only where
the opposite conclusion is clearly apparent.” In re Gwynne P., 215 Ill. 2d 340, 354 (2005).
“Each case concerning parental unfitness is sui generis, unique unto itself.” In re Adoption of
Syck, 138 Ill. 2d at 279.
¶ 22 Here, whether the juvenile court’s findings were against the manifest weight of the
evidence depends on whether subsections (b) and (m) of the Adoption Act expressly or
implicitly contain a willfulness requirement. This court reviews issues of statutory
interpretation de novo. In re C.W., 199 Ill. 2d 198, 211 (2002). In relevant part, section D of the
Adoption Act provides:
“D. ‘Unfit person’ means any person whom the court shall find to be unfit to have a
child, without regard to the likelihood that the child will be placed for adoption. The
grounds of unfitness are any one or more of the following, except that a person shall not
be considered an unfit person for the sole reason that the person has relinquished a child
in accordance with the Abandoned Newborn Infant Protection Act:
***
(b) Failure to maintain a reasonable degree of interest, concern or responsibility
as to the child’s welfare.
***
(m) Failure by a parent *** (ii) to make reasonable progress toward the return
of the child to the parent during any 9-month period following the adjudication of
neglected or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or
dependent minor under Section 2-4 of that Act. If a service plan has been
established as required under Section 8.2 of the Abused and Neglected Child
Reporting Act to correct the conditions that were the basis for the removal of the
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child from the parent and if those services were available, then, for purposes of this
Act, ‘failure to make reasonable progress toward the return of the child to the
parent’ includes the parent’s failure to substantially fulfill his or her obligations
under the service plan and correct the conditions that brought the child into care
during any 9-month period following the adjudication under Section 2-3 or 2-4 of
the Juvenile Court Act of 1987. Notwithstanding any other provision, when a
petition or motion seeks to terminate parental rights on the basis of item (ii) of this
subsection (m), the petitioner shall file with the court and serve on the parties a
pleading that specifies the 9-month period or periods relied on.” 750 ILCS
50/1(D)(b), (m) (West 2014).
¶ 23 “Our primary objective in construing a statute is to give effect to the intention of the
legislature.” In re J.L., 236 Ill. 2d at 339. “The most reliable indicator of the legislature’s intent
is the language of the statute, which must be given its plain and ordinary meaning.” Id. “[A]
statute should be read as a whole, considering all relevant parts.” Id. “Where the statutory
language is clear and unambiguous, there is no need to resort to other aids of construction.”
In re C.W., 199 Ill. 2d at 211. “We may not depart from a statute’s plain language by reading
into it exceptions, limitations, or conditions the legislature did not express.” In re J.L., 236 Ill.
2d at 339.
¶ 24 Whether Subsection (b) Contains a Willfulness Requirement
¶ 25 In finding that the juvenile court’s fitness determination regarding subsection (b) was
against the manifest weight of the evidence, the appellate court noted that, “[w]e cannot accept
the trial court’s determination that failing to complete a task that is beyond one’s intellectual
capacity is the same as refusing to comply with court-ordered directives and willfully ***
failing to maintain a reasonable degree of interest in the child.” 2015 IL App (3d) 150403, ¶ 16.
The State asserts that, although the appellate court did not explicitly engage in statutory
construction of subsection (b), the appellate court’s ruling improperly grafts a willfulness
requirement onto subsection (b). J.B. characterizes the appellate court’s statement as obiter
dictum that reflects existing precedent holding that “reasonable interest, concern or
responsibility” must be measured in light of the parent’s circumstances, which includes
consideration of a parent’s mental deficiency and poverty.
¶ 26 The language of subsection (b) is plain and unambiguous. Subsection (b) contains no state
of mind requirement, nor does it carve out an exception for faultless failure. See 750 ILCS
50/1(D)(m) (West 2014). “In determining the plain, ordinary, and popularly understood
meaning of a term, it is entirely appropriate to look to the dictionary for a definition.” People v.
Bingham, 2014 IL 115964, ¶ 55. “Failure” means “the fact of being cumulatively inadequate or
not matching hopes or expectations.” Webster’s Third New International Dictionary 815
(2002). “Where the language is clear and unambiguous, courts may not read into it exceptions
that the legislature did not express.” In re J.L., 236 Ill. 2d at 340. Thus, the plain meaning of the
phrase “[f]ailure to maintain a reasonable degree of interest, concern or responsibility as to the
child’s welfare” in subsection (b) includes all situations in which a parent’s attempts at
maintaining a reasonable degree of interest, concern, or responsibility are inadequate,
regardless of whether that inadequacy seems to stem from unwillingness or an inability to
comply.
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¶ 27 Case law similarly indicates that subsection (b) contains no implied state of mind
requirement. Rather, case law holds that a parent’s reasonable interest, concern, or
responsibility requires consideration of a parent’s circumstances.
¶ 28 In In re Adoption of Syck, this court held that:
“[I]n determining whether a parent showed reasonable concern, interest or
responsibility as to a child’s welfare, [the trial court is required] to examine the parent’s
conduct concerning the child in the context of the circumstances in which that conduct
occurred. Circumstances that warrant consideration when deciding whether a parent’s
failure to personally visit his or her child establishes a lack of reasonable interest,
concern or responsibility as to the child’s welfare include the parent’s difficulty in
obtaining transportation to the child’s residence [citations], the parent’s poverty
[citation], the actions and statements of others that hinder or discourage visitation
[citation], and whether the parent’s failure to visit the child was motivated by a need to
cope with other aspects of his or her life or by true indifference to, and lack of concern
for, the child [citation]. If personal visits with the child are somehow impractical,
letters, telephone calls, and gifts to the child or those caring for the child may
demonstrate a reasonable degree of concern, interest and responsibility, depending
upon the content, tone, and frequency of those contacts under the circumstances.
[Citations.] Also, mindful of the circumstances in each case, a court is to examine the
parent’s efforts to communicate with and show interest in the child, not the success of
those efforts. [Citation.]
*** In a case proceeding under section 1(D)(b) of the Adoption Act, the issue is
whether a parent maintained concern, interest and responsibility as to his or her child’s
welfare that, under the circumstances, was of a reasonable degree.” (Emphasis in
original.) 138 Ill. 2d at 278-80.
¶ 29 A parent’s circumstances, such as an intellectual disability, do not necessarily or
automatically redeem a parent’s failure to demonstrate reasonable interest, concern, or
responsibility. Nor do such circumstances fix a different standard of reasonableness. Rather,
the question is whether a parent’s then-existing circumstances provide a valid excuse. See id.
at 276 (“[U]nlike other cases cited therein where there were transportation difficulties,
financial limitations, or discouragement of parent’s visitation by State agency, here there was
no valid excuse for mother’s lack of effort to communicate with child.” (Emphasis added.)).
¶ 30 We find the Second District’s decision in In re E.O. illustrative of this point. See In re
E.O., 311 Ill. App. 3d 720 (2d Dist. 2000). There, the appellate court noted that “a parent need
not be at fault to be unfit” and a parent “is not fit merely because she has demonstrated some
interest in or affection for her children; her interest, concern, and responsibility must be
reasonable.” (Emphases in original.) Id. at 727. The respondent mother argued that the
evidence before the trial court did not demonstrate that she was unfit and that her chronic
mental illness made it harder for her to visit or care for her children. Id. Specifically, the
mother contended that the trial court failed to understand that the reasonableness of her
behavior must be viewed in context of her mental illness. Id. Limiting its analysis to whether
there was sufficient evidence that the mother failed to show a reasonable degree of interest,
concern, or responsibility, the appellate court found that the trial court did recognize that the
mother’s mental illness at times required her to be hospitalized and required use of prescription
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drugs. Id. Further, the appellate court held that the mother made voluntary decisions to distance
herself from her children. Id. For example, when the mother’s two children were in foster care,
the mother moved to Florida for several months. Id. at 725. Before moving to Florida, the
mother had missed most of her scheduled visits and sometimes failed to inform DCFS of her
address. Id. at 728. The mother’s failure to visit more regularly or keep in contact with DCFS
was “not caused primarily by obstacles beyond respondent’s control but, rather, by her own
discouragement or inability to make the children’s welfare the priority it would have to be if
they were ever to be returned to her.” Id. Although the mother “was still subjectively interested
in her children, her conduct was not reasonable under all the circumstances.” Id.
¶ 31 Similarly, in the present case, the juvenile court recognized obstacles facing J.B., such as
his intellectual disability, but concluded that J.B. still had the ability to attend visitation and
failed to do so. Whatever subjective interest J.B. may have for M.I., J.B.’s actions failed to
demonstrate that interest. Just as the respondent mother’s mental illness in In re E.O. did not
provide a valid excuse for her failure to visit her children, J.B.’s intellectual disability and
poverty do not provide him with a valid excuse for failing to attend visitation with M.I.
Furthermore, and again like the respondent mother in In re E.O., J.B.’s failure to attend
visitation appears to be the result of his voluntary decision making. For example, when J.B.
was inclined to do so, he attended most of the permanency hearings. We cannot, therefore, see
how J.B.’s failing to consistently attend visitation is attributable to anything but a lack of
interest.
¶ 32 Manifest Weight of the Evidence
¶ 33 Alternatively, J.B. argues that the appellate court did not imply an element of willfulness
into the statutory language of section 1(D)(b). Rather, the appellate court’s statement was
obiter dictum reflecting that J.B.’s intellectual disability and poverty were not sufficiently
considered by the juvenile court.
¶ 34 After reviewing the record, we hold that the juvenile court’s finding regarding subsection
(b) was not against the manifest weight of the evidence. Limited to the facts in this case, the
juvenile court properly considered J.B.’s circumstances before concluding that J.B. failed to
demonstrate a reasonable degree of interest, concern, or responsibility.
¶ 35 J.B. sets forth multiple arguments as to why his circumstances were not adequately
considered. J.B. contends that his failure to attend visitation stemmed from Lee’s ceasing to
provide him free bus passes and that it was unreasonable to expect a mentally ill, intellectually
disabled homeless man to call by a certain time on visitation days to confirm visits. J.B. cites
In re Adoption of Syck, 138 Ill. 2d at 278-79, and In re Daphnie E., 368 Ill. App. 3d 1052(2006), for the proposition that, because J.B. did not regularly attend visitation, the juvenile
court was to consider other factors—like whether J.B. paid child support; sent M.I. gifts, cards,
or letters; or was prevented by M.I.’s mother from visiting M.I. outside of scheduled
DCFS-supervised visitations. The State, however, did not elicit testimony regarding such
factors and only focused on visitation. The State declined to ask whether M.I.’s mother
allowed J.B. to visit M.I. without DCFS supervision. J.B. contends that because he is
functionally illiterate, has no income, and is homeless, he could not have been expected to pay
child support; send M.I. gifts, cards, or letters; or navigate public transportation without the aid
of free bus passes. Regardless, J.B. asserts that the burden was on the State to inquire about
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other indicia of interest, concern, or responsibility since he was missing visitation. At oral
argument, J.B. also contended that the juvenile court’s ruling was cursory. Therefore, J.B.
maintains that his circumstances were not considered by the juvenile court and the State failed
to meet its burden of presenting clear and convincing evidence proving him unfit.
¶ 36 We disagree. Evidence of J.B.’s sporadic visitation sufficiently warrants the juvenile
court’s finding of unfitness. Attending visitation was not a task beyond J.B.’s intellectual
capacity. See 2015 IL App (3d) 150403, ¶ 16. As noted by the assistant State’s Attorney before
the juvenile court, “whatever level of his ability, the first step is showing up.” J.B.’s
circumstances were considered when deciding whether his failure to visit M.I. established a
lack of reasonable interest, concern, or responsibility as to her welfare. See In re Adoption of
Syck, 138 Ill. 2d at 278-79. The juvenile court acknowledged J.B.’s low IQ. Despite his
intellectual disability, mental illness, poverty, and homelessness, J.B. was able to navigate the
bus system to make it to the majority of permanency review hearings, even after bus passes
were taken away. He also attended some visits. The juvenile court concluded that J.B.’s failure
to consistently attend visitation was due to choice rather than circumstance. A court looks to
other factors such as letters or telephone calls “[i]f personal visits *** [were] somehow
impractical.” Id. at 279. The primary consideration is visitation; other factors demonstrating
interest, concern, or responsibility are considered if visitation was impractical. The ability to
consistently attend permanency review hearings does not demonstrate impracticality. As such,
the juvenile court did not err by finding that J.B. failed to demonstrate interest, concern, or
responsibility despite the lack of inquiry into whether J.B. wrote M.I. letters, called M.I., or
made other such attempts to demonstrate his interest, concern, or responsibility.
¶ 37 J.B. argues that the juvenile court should have considered whether E.I. allowed visitation
between J.B. and M.I. or whether J.B. visited M.I. outside supervised visitation. This
contention fails. M.I. was in E.I.’s care from July 1, 2010, until October 30, 2013. A
permanency review order entered March 30, 2011, specifically ordered that E.I. was not to
supervise visits between J.B. and M.I.
¶ 38 Further, J.B. did not submit to court-ordered bimonthly drug tests. He also expressed an
unwillingness to stop using marijuana. As the State argued at oral arguments, an unwillingness
to cease using drugs represents a lack of responsibility.
¶ 39 We note that the parties presented arguments regarding the lack of a service plan and lack
of modification to services and directives after the psychological evaluation concluded such
was necessary to accommodate J.B.’s intellectual deficit. However, subsection (b) does not
hinge on a parent’s compliance with a service plan or directives. See 750 ILCS 50/1(D)(b)
(West 2014) (“Failure to maintain a reasonable degree of interest, concern or responsibility as
to the child’s welfare.”). In contrast, under subsection (m), a parent’s “compliance with DCFS
service plans is intimately tied to a parent’s progress toward the return of the child, so much so,
that where a service plan has been established to correct the conditions that were the basis for
the removal of the child from the parent, the failure to make reasonable progress now includes
the failure to ‘substantially’ fulfill the terms of that service plan.” In re C.N., 196 Ill. 2d 181,
217 (2001).
¶ 40 Regarding any intersection between the lack of service plan or service modifications and
J.B.’s attendance at visitation, the lack of service plan or modifications does not excuse J.B.’s
sporadic attendance. It was not evident that visitation was impractical given J.B.’s ability to
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attend the majority of permanency review hearings. As noted by the dissent below and the
State at oral argument, if a parent does not show up, a State agency is not required to go get the
parent or force the parent to comply.
¶ 41 In sum, we do not find the juvenile court’s finding as to subsection (b) to be against the
manifest weight of the evidence.
¶ 42 Subsection (m)
¶ 43 In light of our conclusion regarding subsection (b), we decline to address the parties’
arguments relating to subsection (m), including any concerns about a lack of a service plan or
service modifications in this case. We also decline to address the question of whether a
juvenile court must expressly state on the record, when ruling on subsection (m), that it did not
consider evidence from outside the relevant nine-month period. “A parent’s rights may be
terminated if even a single alleged ground for unfitness is supported by clear and convincing
evidence.” In re Gwynne P., 215 Ill. 2d at 349.
¶ 44 Whether the State Is Limited to Alleging Subsection (p)
to Terminate an Intellectually Disabled Parent’s Parental Rights
¶ 45 Implicit in this court’s holding, and as expressly noted in the statute, the State has
discretion to allege any ground it wishes when seeking to terminate parental rights regardless
of a parent’s intellectual disability. See 750 ILCS 50/1(D) (West 2014) (“The grounds of
unfitness are any one or more of the following ***.”). The State’s choice is dependent upon the
evidence. See In re C.W., 199 Ill. 2d at 210 (“Although section 1(D) of the Adoption Act sets
forth numerous grounds under which a parent may be deemed ‘unfit,’ any one ground,
properly proven, is sufficient to enter a finding of unfitness.” (Emphasis in original.)). As a
matter of statutory construction, this court “may not depart from a statute’s plain language by
reading into it exceptions, limitations, or conditions the legislature did not express.” In re J.L.,
236 Ill. 2d at 339. Simply because another specific ground may also apply to a given case does
not make the State’s choice in proceeding under a different ground erroneous.
¶ 46 CONCLUSION
¶ 47 The plain and unambiguous language of subsection (b) does not contain a willfulness
requirement. The juvenile court considered J.B.’s intellectual disability and other
circumstances when it found J.B. unfit under subsection (b). As such, and particularly due to
J.B.’s sporadic attendance at visitation, the juvenile court’s finding that J.B. is unfit pursuant to
subsection (b) was not against the manifest weight of the evidence. The State is not limited to
alleging subsection (p) to terminate an intellectually disabled parent’s parental rights. Because
we conclude that the juvenile court did not err in finding J.B. unfit under subsection (b), we
decline to address arguments regarding subsection (m).
¶ 48 Appellate court judgment reversed.
¶ 49 Circuit court judgment affirmed.
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