In re J.J.

NOTICE 2023 IL App (4th) 230001-UFILED
This Order was filed under May 18, 2023
Supreme Court Rule 23 and is NO. 4-23-0001
Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
In re J.J., a Minor ) Appeal from the
) Circuit Court of
) Tazewell County
(The People of the State of Illinois,
) No. 20JA262
Petitioner-Appellee, )
v. ) Honorable
Emily M., ) David A. Brown,
Respondent-Appellant). ) Judge Presiding.
)
JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and Zenoff 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 concluding no
meritorious issues could be raised on appeal.
¶2 On December 22, 2022, the trial court entered an order terminating the parental
rights of respondent, Emily M., to her son, J.J. (born May 2018). Respondent appealed. Counsel
was appointed to represent respondent on appeal. Appellate counsel now moves to withdraw on
the basis that no meritorious argument can be raised on appeal. Appellate counsel’s notice of
filing and proof of service indicate he sent a copy of the motion to withdraw to respondent by
mail. Respondent has not filed a response. After reviewing the record and counsel’s motion, we
grant the motion to withdraw and affirm the court’s judgment.
¶3 I. BACKGROUND
¶4 On September 21, 2020, the State filed a shelter care petition alleging J.J. was
neglected by his parents, respondent and Thomas G. (who is not a party to this appeal), in that
J.J. was in an environment injurious to his welfare. Specifically, the petition alleged (1) J.J.
suffered injuries to his face and head, (2) J.J. was left unattended by respondent, and
(3) methamphetamine use by respondent. The trial court entered an order placing J.J. in the
temporary custody of the Illinois Department of Children and Family Services (DCFS).
¶5 On October 8, 2021, the trial court entered an adjudicatory order, finding J.J. was
abused or neglected in that that J.J.’s environment was injurious to his welfare as defined by
section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
405/2-3(1)(b) (West 2020)).
¶6 On November 5, 2021, the trial court entered a dispositional order finding that
respondent and Thomas G. were unfit to care for J.J. The court made J.J. a ward of the court and
granted custody and guardianship to DCFS. The court ordered respondent and Thomas G. to
cooperate with DCFS and comply with specific terms as directed by DCFS.
¶7 On August 12, 2022, the State filed a two-count petition to terminate the parental
rights of respondent and Thomas G., respectively. The petition alleged they both failed to make
reasonable progress toward the return of J.J. to their custody after the adjudication of neglect
during the nine-month period from October 8, 2021, through July 8, 2022.
¶8 On August 30, 2022, Thomas G. answered the State’s petition, stating his
intention to surrender his parental rights in the event respondent’s parental rights were
terminated.
¶9 On October 26, 2022, a fitness hearing was held on the State’s petition to
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terminate respondent’s parental rights.
¶ 10 At the hearing, Kayla Hanten, the caseworker assigned to the case on October 18,
2021, testified respondent was referred to services for counseling, domestic violence, and
substance abuse and was required to submit to drug screenings four times per month. Hanten
testified respondent was referred to counseling in November 2021 but was unsuccessfully
discharged due to nonparticipation. Respondent was also referred to domestic violence classes in
February 2022 and again was unsuccessfully discharged. Hanten stated respondent did not
undergo a substance abuse assessment as required in February 2022. Hanten also testified that
from October 8, 2021, through July 8, 2022, respondent did not participate in any of the
four-times-per-month drug screenings she was directed to complete as part of the service plan.
Hanten rated respondent’s service plan as unsatisfactory. Hanten also testified to numerous
missed appointments and several unsuccessful home visits. On cross-examination, Hanten stated
respondent never suggested she had transportation issues as an excuse for her failure to attend
counseling, domestic violence classes, or the substance abuse assessment. The State offered into
evidence certified records from counseling and domestic violence class referrals over
respondent’s objection.
¶ 11 Respondent testified on her own behalf, stating she was unsuccessfully discharged
from counseling due to “the termination trial” and contracting COVID-19. Respondent testified
she failed to attend multiple visits with her caseworker because of scheduling conflicts with a
pest control service, which visited her apartment periodically to treat a pest infestation.
Respondent stated she missed her domestic violence classes due to an inability to obtain
transportation.
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¶ 12 The trial court found the State had met its burden by clear and convincing
evidence, noting during the relevant nine-month period, respondent had not made any progress.
The court specifically observed respondent failed to complete any services or submit to any drug
screenings. The matter was continued for a best interest hearing.
¶ 13 During the December 2022 best interest hearing, Hanten testified she visited J.J.’s
foster parents’ home monthly and that it was “clean and appropriate,” and a “strong bond”
existed between J.J. and his foster parents, stating, “[h]e’s happy and healthy” with them. Hanten
noted that J.J. shows his foster parents “love and affection.” Hanten further testified respondent
had one-hour visits with J.J. in August and October 2022. Hanten advised respondent was unable
to have visitation with J.J. in March 2022 due to the pest infestation at respondent’s home.
Hanten also stated respondent failed to attend a visitation in November 2022 without providing
notice or an excuse. Hanten testified respondent only inquired with her about J.J. on one
occasion in November.
¶ 14 Taylor S. testified she had been J.J.’s foster mother since May 2021. She testified
they had a “great” relationship and that J.J. called her “mom.” J.J. had a similar relationship with
his foster father, Taylor S.’s husband. Taylor S. discussed with J.J. that respondent is his “mom”
and that J.J. could see her. However, J.J. indicated he wanted to live with his “mommy and
daddy,” referring to Taylor S. and her husband. J.J. also identified the Taylor S.’s home as his
home. Her direct contact with respondent initially began as “fine conversations,” but eventually
deteriorated into lengthy text message exchanges in the middle of the night, during which
respondent accused her of “forcing” J.J. to call her “mommy.” Taylor S. estimated she
terminated contact with respondent sometime in early 2022 due to respondent’s text messages.
She also testified to receiving no cards, letters, gifts, or financial support for J.J. from respondent
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but stated that respondent offered “once or twice” to help with clothes or pull-ups for J.J. Taylor
S. testified that J.J. was enrolled in extracurricular activities and had developed friendships
within the community. Taylor S. further stated she was willing to adopt J.J.
¶ 15 Respondent testified on her own behalf to being unable to attend visits with J.J.
due to scheduling conflicts with a pest control service, which required her to meet them at her
apartment, and being unable to obtain transportation to the visits located in Peoria, Illinois.
Respondent testified to last having contact with Taylor S. in July 2021. Respondent stated her
last visitation with J.J. was in October 2022. Respondent testified she knows J.J.’s favorite foods
and toys. On cross-examination, respondent stated she did not call but did e-mail Hanten about
missing the November 2022 visit because of the pest infestation that she maintained she had
been contending with for the past “twenty-sevens [sic] months.” Respondent also testified that,
during the 27-month period, she had arranged for exterminators to visit her home, despite it
being a rental property, because the landlord was “not doing their job.” When asked why she
would schedule conflicting extermination appointments during her visitation with J.J.,
respondent stated some of the missed visits were due to her inability to obtain transportation.
However, respondent also testified she never requested a bus pass from Hanten to assist with her
transportation issues.
¶ 16 J.J.’s guardian ad litem (GAL) testified that he visited the foster parents’ home
and described it as “immaculate.” According to the GAL, J.J. was calling the foster parents
“mom and dad,” and J.J. was “integrated” into his foster family.
¶ 17 During closing arguments, respondent interrupted the proceedings and then left
the courtroom prior to the trial court’s ruling.
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¶ 18 The trial court found respondent was unable to provide shelter and was still
“unstable” after more than two years of J.J. being in substitute care. The court found it was
“clearly” in J.J.’s best interest to remain with his foster family and terminated respondent’s
parental rights.
¶ 19 Respondent appealed, and counsel was appointed to represent her on appeal.
Appellate counsel now moves to withdraw on the basis that any argument the trial court erred
either in its finding of unfitness or best interest determination or that trial counsel provided
ineffective assistance would be without merit.
¶ 20 II. ANALYSIS
¶ 21 The procedure for appellate counsel to withdraw set forth in Anders v. California,
386 U.S. 738 (1967), applies to a respondent’s appeal of a decision to terminate her parental
rights. In re S.M., 314 Ill. App. 3d 682, 685 (2000). Under this procedure, counsel’s request to
withdraw must “ ‘be accompanied by a brief referring to anything in the record that might
arguably support the appeal.’ ” Id. (quoting Anders, 386 U.S. at 744). Counsel must “(a) sketch
the argument in support of the issues that could conceivably be raised on appeal, and then
(b) explain why he believes the arguments are frivolous.” Id. Counsel must then conclude the
case presents no viable grounds for appeal. Id. In doing so, counsel should review both the
unfitness finding and the best interest determination and indicate in the brief that he or she has
done so. Id. at 685-86.
¶ 22 Appellate counsel asserts he has reviewed the record on appeal and concluded an
appeal in this case would be without arguable merit. Specifically, counsel asserts he considered
whether the trial court’s unfitness finding and best interest determination were in error and
whether respondent was provided ineffective assistance of counsel. According to counsel, there
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is no nonfrivolous argument that can be made on appeal. We granted respondent leave to file
additional points and authorities. She has not responded. For the reasons that follow, we agree
this appeal presents no issues of arguable merit, grant counsel’s motion to withdraw, and affirm
the trial court’s judgment.
¶ 23 A. Finding of Parental Unfitness
¶ 24 1. Manifest Weight of the Evidence Claim
¶ 25 Appellate counsel considered raising the argument that the trial court’s unfitness
finding was against the manifest weight of the evidence. However, counsel maintains any such
argument would be meritless. We agree.
¶ 26 Parental rights may not be terminated without the parent’s consent unless the trial
court first determines, by clear and convincing evidence, the parent is unfit under section 1(D) of
the Adoption Act (750 ILCS 50/1(D) (West 2020)). In re Gwynne P., 215 Ill. 2d 340, 354
(2005). Pursuant to section 1(D)(m) of the Adoption Act, a parent may be found unfit if she fails
“(i) to make reasonable efforts to correct the conditions that were the basis for removal of the
child from the parent during any 9-month period following the adjudication of neglected or
abused minor ***, or (ii) to make reasonable progress toward the return of the child to the parent
during any 9-month period following the adjudication of the neglected or abused minor.” 750
ILCS 50/1(D)(m) (West 2020). “A trial court’s determination that a parent’s unfitness has been
established by clear and convincing evidence will not be disturbed on review unless it is contrary
to the manifest weight of the evidence.” Gwynne P., 215 Ill. 2d at 354.
¶ 27 Here, the trial court’s finding of unfitness was not against the manifest weight of
the evidence. The State alleged respondent was unfit for failing to make reasonable progress
toward the return of J.J. during the nine-month period from October 8, 2021, through July 8,
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2022. The court found the State established unfitness by clear and convincing evidence where
respondent did not complete any services or participate in any drug screenings as directed by
DCFS. Hanten’s testimony showed respondent made virtually no progress toward the return of
J.J. during the relevant nine-month period. Respondent was unsuccessfully discharged from both
counseling and domestic violence services because she failed to attend scheduled appointments,
did not obtain a substance abuse assessment, and failed to participate in a single drug screening.
While respondent testified she was unable to obtain transportation to her appointments, Hanten
testified respondent never raised any transportation issues with her.
¶ 28 2. Ineffective Assistance of Counsel Claim—Admission of Exhibits
¶ 29 Appellate counsel also asserts no meritorious argument can be made on appeal
that trial counsel was ineffective for failing to specify the basis for his objection to the admission
of the State’s exhibits during the fitness phase of the termination proceedings. We agree.
¶ 30 Parents have a statutory right to the effective assistance of counsel in proceedings
to terminate parental rights. In re Br. M., 2021 IL 125969, ¶ 42. Claims of ineffective assistance
of counsel in termination proceedings are governed by the two-prong standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984); In re M.D., 2022 IL App (4th) 210288, ¶ 92.
Under the Strickland standard, to establish a claim of ineffective assistance, a parent must show
(1) counsel’s performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. In re M.F., 326 Ill. App. 3d 1110, 1119 (2002). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” In re A.R., 295
Ill. App. 3d 527, 531 (1998). “Failure to satisfy either prong precludes a finding of ineffective
assistance of counsel.” In re A.P.-M., 2018 IL App (4th) 180208, ¶ 41.
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¶ 31 Here, the exhibits admitted into evidence were records of respondent’s counseling
and domestic violence class referrals. The trial court admitted the exhibits into evidence over
trial counsel’s objection. Appellate counsel states a “foundational objection would likely fail”
where the State’s exhibits were “properly certified and delegated records.” Section 2-18(4)(a) of
the Juvenile Court Act (705 ILCS 405/2-18(4)(a) (West 2020)) states, in relevant part, the
following:
“Any writing, record, photograph or x-ray of any hospital or public or private
agency *** made as a memorandum or record of any condition, act, transaction,
occurrence or event relating to a minor in an abuse, neglect or dependency
proceeding, shall be admissible in evidence as proof of that condition, act,
transaction, occurrence or event, if the court finds that the document was made in
the regular course of business of the hospital or agency and that it was in the
regular course of such business to make it ***. *** A certification by someone
other than the head of the hospital or agency shall be accompanied by a
photocopy of a delegation of authority signed by both the head of the hospital or
agency and by such other employee.”
Section 2-18(4)(a) permits the admission of records “if the provision’s foundational requirements
are satisfied.” In re R.R., 2022 IL App (4th) 220473, ¶ 23.
¶ 32 The record here shows that the State’s exhibit No. 1 is accompanied by a
“Certification of Delegation of Authority.” It contains a signature by the head of the hospital or
agency delegating authority and certifying the records as “made in the regular course of business
and that it was in the regular course of business to make such records.” The State’s exhibit No. 2
contains a nearly identical form, also titled, “Certification of Delegation of Authority.” It
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likewise contains the same requisite content as described by section 2-18(4)(a). Given that the
statutory foundational requirements are satisfied, the healthcare records were admissible
pursuant to section 2-18(4)(a). Trial counsel’s general objection was properly overruled, and a
foundational objection would have been unavailing. Accordingly, we agree with appellate
counsel that no nonfrivolous argument on appeal can be made respondent’s trial counsel was
ineffective for failing to object to the admission of the State’s exhibits during the fitness hearing.
¶ 33 3. Ineffective Assistance of Counsel Claim—Failure to Develop Respondent’s
Testimony Regarding Her Inability to Attend Services as Directed by DCFS
¶ 34 Appellate counsel asserts he considered raising the issue of whether trial counsel
was ineffective for failing to develop respondent’s testimony regarding her inability to attend
services as directed by DCFS.
¶ 35 Again, to show ineffective assistance, respondent must show her counsel’s
performance was both deficient and that said deficiency resulted in prejudice. Failure to show
either deficient performance or prejudice precludes a finding of ineffective assistance. “Judicial
review of counsel’s performance is highly deferential.” A.P.-M., 2018 IL App (4th) 180208,
¶ 40. “A defendant must overcome the strong presumption that the challenged action or inaction
may have been the product of sound trial strategy.” Id.¶ 36 Hanten testified respondent did not comply with referrals for counseling,
domestic violence classes, a substance abuse assessment, or drug screenings. On
cross-examination, respondent’s counsel asked Hanten if respondent ever raised a concern about
transportation. Hanten replied she had not. Trial counsel then asked respondent why she was
unable to attend counseling for which she had been referred. Respondent initially stated she was
discharged from counseling due to contracting COVID-19 and then, most recently, due to the
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fitness hearing itself. Respondent also told trial counsel she missed visits with Hanten because
she had experienced a pest infestation at her apartment since March 2021 that required her to be
at home to allow access for exterminators. Respondent also testified she could not make her
domestic violence appointments because she could not get transportation at 5 p.m., when
“everybody was just getting off of work and it’s all the way in Peoria.” On cross-examination,
however, respondent admitted to oversleeping as a reason she missed a counseling appointment.
Respondent testified she could not recall why she missed her December 22, 2021, appointment.
¶ 37 Here, respondent fails to demonstrate deficient performance of counsel. The
State’s evidence showed respondent failed to comply with any of the DCFS-referred services.
The record reveals trial counsel sought to mitigate Hanten’s testimony by asking her if
respondent had ever raised transportation issues with her. Trial counsel then gave respondent the
opportunity to explain why she was unable to comply with services. Respondent offered her
becoming sick with COVID-19 as a reason for missing one counseling session in November
2021 and essentially blamed a pest infestation for missing the remaining sessions. Respondent
only testified to transportation issues with regard to being unable to attend her domestic violence
referral. On cross-examination, however, respondent admitted to oversleeping on one occasion
and not being able to recall the reason for missing a December 2021 counseling session.
¶ 38 In sum, the record demonstrates trial counsel attempted to develop an evidentiary
basis to explain why respondent failed to comply with services, both through cross-examination
of the State’s witness and through respondent’s own testimony. Given the nature of respondent’s
replies, developing those answers with further questioning could reasonably be viewed as risking
further damage to respondent’s position. Counsel’s choice to avoid any further damage falls
under reasonable trial strategy, and not ineffective assistance. Accordingly, we agree with
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appellate counsel no nonfrivolous issue can be raised on appeal that trial counsel was ineffective
for failing to develop respondent’s testimony regarding her inability to attend DCFS-directed
services.
¶ 39 B. Best Interest
¶ 40 Appellate counsel also contends that no viable challenge to the trial court’s best
interest determination can be made. We agree.
¶ 41 When a trial court finds a parent to be unfit, “the court then determines whether it
is in the best interests of the minor that parental rights be terminated.” In re D.T., 212 Ill. 2d 347,
352 (2004). At a best interest hearing, the State must prove by a preponderance of the evidence
that termination of parental rights is in the best interest of the minor. Id. at 366. In making the
best interest determination, the court must consider the factors set forth in section 1-3(4.05) of
the Juvenile Court Act (705 ILCS 405/1-3(4.05) (West 2020)). These factors include the
following:
“(1) the child’s physical safety and welfare; (2) the development of the child’s
identity; (3) the child’s background and ties, including familial, cultural, and
religious; (4) the child’s sense of attachments, including love, security,
familiarity, and continuity of affection, and the least-disruptive placement
alternative; (5) the child’s wishes; (6) the child’s community ties; (7) the child’s
need for permanence, including the need for stability and continuity of
relationships with parental figures and siblings; (8) the uniqueness of every family
and child; (9) the risks related to substitute care; and (10) the preferences of the
persons available to care for the child.” In re Jay. H., 395 Ill. App. 3d 1063, 1071
(2009) (citing 705 ILCS 405/1-3(4.05) (West 2008)).
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“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 in
affirming its decision.” In re Tajannah O., 2014 IL App (1st) 133119, ¶ 19. We will reverse the
trial court’s best interest determination only if it is against the manifest weight of the evidence.
In re J.B., 2019 IL App (4th) 190537, ¶ 33. “A best-interest determination is against the manifest
weight of the evidence only if the facts clearly demonstrate that the trial court should have
reached the opposite result.” Id.¶ 42 Here, the trial court explicitly referenced the “statutory best interest factors” and
highlighted most of the factors set forth in section 1-3(4.05) in explaining its ruling. The court
noted that the foster parents had provided for J.J.’s physical safety and welfare for nearly two
years, while respondent was unable to provide J.J. shelter due to a pest infestation. The court
noted that J.J.’s identity was forming with his foster family and he was developing a sense of
attachment with them. The court also found that the factors relating to J.J.’s sense of security,
familiarity, continuity of affection, and the least disruptive placement “all favor[ed] termination.”
The court additionally noted that J.J. is well-bonded with his foster family and has developed ties
within the community, specifically at his school. The court found that permanency was
“amplified” by the inability of J.J. to return to respondent in the foreseeable future due to her
instability. The court noted J.J.’s biological father’s preference was the termination of his
parental rights as well.
¶ 43 Following our review of the record, we agree with appellate counsel that any
argument it was not in J.J.’s best interest to terminate respondent’s parental rights would be
meritless. Indeed, the trial court’s best interest finding was based on an appropriate consideration
of the statutory factors and was not against the manifest weight of the evidence.
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¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we grant appellate counsel’s motion to withdraw and
affirm the trial court’s judgment.
¶ 46 Affirmed.
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