In re M.H.

NOTICE
2021 IL App (5th) 200349-UNOTICE
Decision filed 03/26/21. The
This order was filed under
text of this decision may be
NOS. 5-20-0349, 5-20-0350, 5-20-0351 cons. Supreme Court Rule 23 and
changed or corrected prior to
the filing of a Petition for is not precedent except in
Rehearing or the disposition IN THE he limited circumstances
of the same. allowed under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
In re M.H., O.H., and M.H., Minors ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Marion County.
)
Petitioner-Appellee, ) Nos. 17-JA-51, 17-JA-52, &
) 17-JA-53
v. )
)
Michele H., ) Honorable
) Ericka A. Sanders,
Respondent-Appellant). ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Justices Wharton and Vaughan concurred in the judgment.
ORDER
¶1 Held: The trial court’s determinations that Father was unfit and that termination
of his parental rights was in the minors’ best interests were not contrary to
the manifest weight of the evidence. The trial court’s denial of Father’s
motion to continue the best-interest hearing was not an abuse of discretion
and did not violate Father’s right to due process. The trial court’s docket
entry setting forth the basis for the termination of Father’s parental right
satisfied the writing requirement of 705 ILCS 405/2-27(1) (West 2018).
¶2 Respondent, Michele H. (Father), appeals the judgment of the circuit court of
Marion County terminating his parental rights to his three minor children, O.H., M.H., and
M.H. For the following reasons, we affirm.
1
¶3 O.H., M.H., and M.H. are the biological children of Father and Misty C. (Mother),
who is not a party to this appeal. O.H. was born on July 14, 2009, and M.H. and M.H. are
twins born on January 31, 2011. In July 2015, the children were removed from Mother’s
care based upon allegations of neglect by Mother due to her substance abuse. Mother
successfully completed services, and the children were returned to her care in December
2016, and the safety plan was ended in June 2017.
¶4 On November 23, 2017, while Father was incarcerated, Mother was arrested for
methamphetamine possession. On December 7, 2017, the State filed a petition for
adjudication of wardship for each of the children alleging the minors were neglected
pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-
3(1)(b) (West 2016)), in that their environment was injurious to their welfare. The petitions
alleged that Mother’s drug use prevented her from periodically caring for the minors, but
that the minors were not currently in protective custody.
¶5 At a status hearing on January 10, 2018, Father appeared and reported that the
children were living with he and Mother. The court ordered Father to take a drug test, which
Father agreed to do. At the next hearing, on January 17, 2018, the caseworker reported that
Father did not take a drug test as ordered on January 10, 2018. The caseworker stated that
Father had taken a drug test that morning, and that the results were negative but the sample
was “dilute, clear as water.” The court noted that a dilute test was “as good as a positive
test 99 percent of the time” and indicated that it would conduct a hearing on a rule to show
cause against Father for failing to obey the court’s order at the next status hearing.
2
¶6 At the next hearing, on January 31, 2018, Father was present with his attorney.
Father’s counsel advised the court that Father did not report to the probation office on
January 10, 2018, for the drug test because Father did not want to be arrested on an active
warrant from Clay County for driving on a revoked license. The court found Father in
contempt for violating the court order. The court ordered Father to immediately submit to
another drug test. After a recess, the probation officer reported that Father tested positive
for methamphetamine, cocaine, and benzodiazepines. Mother then submitted to a drug test,
which returned positive for methamphetamine. The State made an oral motion for
emergency shelter care based on the parents’ positive drug tests.
¶7 At the hearing, the caseworker testified that the Illinois Department of Children and
Family Services (DCFS) had opened the case a couple of months earlier based on
allegations of substance abuse by Mother. The caseworker testified she was conducting
weekly home visits and that Mother had been referred to psychiatric and counseling
services, which she had begun attending. The caseworker stated that Father was offered
substance abuse services, but he indicated that he did not need or want these services. The
trial court found there was probable cause to believe the children were neglected as defined
by the Act, and DCFS was granted temporary custody of the children. Following the
hearing, Father was taken into custody on the outstanding Clay County warrant.
¶8 On February 8, 2018, the State filed an amended petition for adjudication of
wardship for each of the minors, again alleging the minors were neglected pursuant to
section 2-3(1)(b) of the Act, in that their environment was injurious to their welfare. In
3
separate paragraphs, the amended petitions alleged that Mother’s and Father’s drug use
periodically prevented them from caring for the minors.
¶9 On March 7, 2018, the court conducted an adjudicatory hearing on the neglect
petitions. At the hearing, Mother and Father admitted to the allegations of neglect based on
Mother’s drug use. The court granted the State’s petitions and adjudicated the children
neglected, finding the minors were in an environment that was injurious to their welfare
based on Mother’s admitted drug use. On April 18, 2018, Father was arrested for failing to
appear in court in Clay County on his charge of driving on a revoked license.
¶ 10 On May 2, 2018, the court conducted the dispositional hearing. Father, who was in
the custody of the Clay County jail, was present. Mother and Father agreed to the entry of
a dispositional order temporarily placing custody and guardianship of the minors with
DCFS. That day, the court entered dispositional orders finding that Mother and Father were
unable to care for the children, and that it was in the best interests of the minors that they
be removed from their parents’ custody. The court adjudicated the children wards of the
court and granted DCFS guardianship and custody of the children.
¶ 11 During a September 2018 permanency hearing, Father’s counsel reported that
Father had pled guilty to felony driving with a revoked license in St. Clair County and Clay
County and was currently in the Illinois Department of Corrections (DOC). On June 3,
2019, Father was released from DOC. At a permanency hearing on June 19, 2019, Father’s
counsel reported that Father had called her office that morning and reported that he was
having car troubles. Father did not appear at the hearing, but Father’s counsel reported that
4
Father was attempting to secure housing and employment, and to obtain records of the
services he completed while in DOC.
¶ 12 On July 24, 2019, the caseworker filed a status report with the court. The caseworker
reported that Father indicated he had been working and living with a friend since his release
from prison on June 3, 2019, but that Father would not provide information about his
employer or the address where he was living. Father had also not signed the necessary
releases so that the caseworker could access Father’s record, including any records
regarding services Father reportedly completed while incarcerated. Father was calling the
minors and was participating in visits with the minors. The caseworker noted that Father
sometimes had to be redirected while interacting with the minors because he was “making
promises that are not a possibility.” During a visit on July 12, 2019, when out of earshot of
the case aide supervising the visit, Father told the minors that the caseworker hated him
and was keeping the minors from him, and that they were going to be taken away from
their foster parents and returned to him. One of the minors was particularly upset by
Father’s actions, and the minors reported the conversation to their foster parents.
¶ 13 On November 27, 2019, the caseworker filed a permanency report with the court.
The caseworker reported that Father still had not signed the necessary releases, so she was
unable to verify his claims that he had completed some services while incarcerated. The
caseworker reported that Father needed to complete another substance abuse assessment
and mental health assessment, and that he needed to attend another parenting class due to
his continued substance abuse and lack of cooperation with the caseworker. The report
indicated that Father had submitted to drug testing and received negative test results on
5
July 30, 2019, August 8, 2019, and October 21, 2019. Father testified positive for
methamphetamines or amphetamines on September 6, 2019. Father failed to appear for
scheduled drug testing on September 25, 2019, October 8, 2019, November 4, 2019, and
November 20, 2019.
¶ 14 The November 27, 2019, report also indicated that when Father was questioned
about the July 12, 2019, incident with the minors, Father denied any knowledge of the
conversation and called the children “liars.” The caseworker advised Father that future
visits would end if Father talked to the children about the case or spoke negatively about
anyone involved in the case. The report indicated that during a visit on August 21, 2019,
Father told the minors that the caseworker and the foster parents were preventing him from
talking to them or seeing them, and the visit was immediately ended. Father had a visit
with the minors on September 3, 2019, with no issues. Father’s scheduled visits with the
minors were cancelled after Father was a no call/no show for his visit on September 11,
2019, and failed to confirm his visits on October 2, 2019, and October 9, 2019. The
caseworker reported that she attempted to reach Father seven times between September 24,
2019, and October 1, 2019, to inform him of required drug tests and to confirm a visit but
Father did not respond. The caseworker reported that she had attempted to contact him
several times to schedule visits with the minors, conduct a home visit, and to inform Father
of drug tests but that Father had not responded since October 27, 2019. On December 5,
2019, the guardian ad litem (GAL) filed a petition to temporarily suspend Father’s
visitation, alleging Father’s visits with the children were detrimental to their welfare based
on reports of the Father’s conduct during supervised visits.
6
¶ 15 On December 10, 2019, the State filed petitions to terminate Mother’s and Father’s
parental rights to the children. The petitions alleged that Father was unfit based on three
statutory grounds: (1) failure to maintain a reasonable degree of interest, concern, or
responsibility as to the welfare of the minors (750 ILCS 50/1(D)(b) (West 2018));
(2) failure to make reasonable efforts to correct the conditions that were the basis for the
removal of the children during any nine-month period following the adjudication of
neglect, specifically between March 8, 2018, and December 8, 2018, or March 10, 2019,
and December 10, 2019 (750 ILCS 50/1(D)(m)(i) (West 2018)); and (3) failure to make
reasonable progress toward the return of the minors to him during any nine-month period
following the adjudication of neglect, specifically between March 8, 2018, and December
8, 2018, or March 10, 2019, and December 10, 2019 (750 ILCS 50/1(D)(m)(ii) (West
2018)).
¶ 16 On December 11, 2019, the court conducted a permanency hearing and a hearing
on the motion to terminate Father’s visitation. The GAL reported that Father had been
arrested in Madison County and charged with possession of methamphetamine on
November 25, 2019. The court granted the GAL’s motion to suspend Father’s visits over
Father’s objection.
¶ 17 On March 11, 2020, the court held a fitness hearing, at which Mother and Father
were present. At the hearing, the State introduced into evidence four service plans created
by DCFS for Father. The initial service plan was created in January 2018, and the plan was
evaluated and updated every six months. Each service plan contained the same
7
recommended tasks for Father, which included tasks and services in the areas of substance
abuse, mental health, parenting, and cooperation with DCFS.
¶ 18 Caseworker Courtney Schnake testified she managed the case from March 2018
through August 2018. When she was assigned the case, the children were already in DCFS
care and the first service plan was already in place. The service plan recommended that
Father complete a substance abuse assessment and any recommended treatment, complete
a mental health assessment and any recommended treatment, attend parenting classes, and
cooperate with DCFS. Although Father had signed the necessary releases in cooperation
with DCFS, Father’s overall performance was rated as unsatisfactory because he had not
engaged in the required assessments and recommended services. When Schnake evaluated
Father’s performance in July 2018, Father was incarcerated in the St. Clair County jail,
having been charged with driving on a suspended or revoked license. Schnake testified that
Father did not complete any of the recommended services in the plan, but acknowledged
that she could not order drug tests while he was incarcerated and that she did not confirm
whether Father completed any services while incarcerated.
¶ 19 Caseworker Christine Leathers testified she had been the assigned caseworker since
December 10, 2018. Leathers confirmed that Father’s recommended tasks remained the
same throughout the case and with each new service plan. Again, Father’s recommended
tasks were substance abuse services, mental health services, parenting classes, and
cooperation with DCFS. Leathers testified Father did not successfully complete any of his
recommended tasks, and that he failed to make progress on the service plans.
8
¶ 20 In January 2019, Father’s overall performance on his second service plan was rated
as unsatisfactory in all areas. Although Father had signed releases for information, Leathers
noted that she was not able to effectively rate Father’s cooperation with DCFS as successful
due to Father’s incarceration. Leathers reported that Father did not appear under the
influence of controlled substances during visits with the children, but rated Father’s overall
performance related to his substance abuse issues as unsatisfactory because he had not
engaged in substance abuse counseling and could not submit to random testing due to his
incarceration. Leathers rated Father’s performance of the remaining tasks as unsatisfactory
because Father had not received a mental health assessment or sought any mental health
counseling, and he had not completed parenting classes.
¶ 21 Father was released from DOC on June 3, 2019. In July 2019, Leathers reevaluated
the service plan and rated Father’s overall performance under his third service plan as
unsatisfactory. The service plan indicated that Father met the goal of not being under the
influence during visits with the children but he had not provided proof that he had
completed any substance abuse services with an agency-approved provider. The service
plan also indicated that Father had not completed a mental health assessment with an
agency-approved service provider and had not engaged in parenting classes. Although
Father had been keeping his appointments, Father’s overall cooperation with DCFS was
rated as unsuccessful because he had failed to sign all of the necessary releases and failed
to keep DCFS informed of his employment, contact information, and address. The plan
indicated that Father advised Leathers that he would not provide her with the name of who
he was living with or his address because it was “not anyone’s business.” Leathers testified
9
that when she evaluated Father’s compliance under the third service plan in July 2019, the
evaluation found that Father had not completed any of his recommended tasks. Leathers
testified that she became aware sometime after Father’s release from DOC that he had
completed a parenting class while incarcerated. Leathers testified she did not receive any
paperwork suggesting that Father completed a mental health assessment.
¶ 22 On January 10, 2020, Father’s overall performance on his fourth and final service
plan, covering the period from July 2019 through January 2020 was rated by Leathers as
unsatisfactory based on his failure to successfully complete any of the recommended tasks.
Leathers rated Father’s cooperation with DCFS as unsatisfactory based on Father’s failure
to sign all of the necessary releases for information, his refusal to provide verification of
his employment and residency, his failure to respond to phone calls or messages, and his
failure to make all of his appointments or to call to cancel them. Leathers testified that
while Father had signed the necessary releases for information early in the proceeding, he
failed to sign new ones after those had lapsed. Although Father provided some
documentation verifying the programs he completed while in prison, Leathers stated she
was not able to obtain the necessary documentation from DOC to confirm his participation
without the proper releases. Leathers also testified that DCFS provided Father with
transportation to the visits with his children but that there were two instances where Father
was a no call/no show for his visits when the case aide arrived to pick him up.
¶ 23 Leathers stated that Father completed a parenting class while he was incarcerated
but that Father failed to demonstrate progress in this area, as evidenced by his repeated
inappropriate interactions with the children. Leathers testified that DCFS recommended
10
Father take another parenting class, which he failed to do. Leathers also reported that Father
failed to complete a mental health assessment or to participate in mental health counseling
despite being referred to three different service providers.
¶ 24 With regard to substance abuse services, Leathers rated Father unsatisfactory
overall. Leathers testified that Father was incarcerated between August 8, 2018, and June
3, 2019, and was unable to participate in random drug screens. Leathers reported that Father
tested positive for controlled substances twice during the pendency of the case, on January
31, 2018, and September 6, 2019, and that he failed to appear for testing four times between
September 25, 2019, and November 20, 2019.
¶ 25 Leathers explained that Father had completed a substance abuse assessment on June
7, 2019, several days after he was released from DOC, and received an assessment that no
substance abuse treatment was necessary. Leathers testified this was not a “compliant
assessment” because Father did not provide accurate information during the evaluation.
Leathers stated that Father reported to the evaluator that he had been abstinent from all
substances for at least seven years, which was not truthful. Leathers concluded that Father
had not successfully completed treatment or remained substance-free, as recommended.
¶ 26 Father testified he was incarcerated from April 2018 until June 3, 2019. Father
acknowledged that he received copies of some of the service plans, and that he knew he
should do the recommended tasks under the plans. Father testified that he had completed
every task under the service plans. Father stated he had completed five substance abuse
evaluations since the initiation of the case, four while incarcerated and another after his
release, and that no treatment was ever recommended because “everyone says he doesn’t
11
have a problem.” With regard to the substance abuse evaluation completed in June 2019,
Father acknowledged telling the evaluator that he had abstained from all substances for at
least seven years but asserted that he also advised the evaluator about his failed drug test
in January 2018, and that she still found no treatment was necessary. Father testified that
he completed a substance abuse course in April 2019, while he was incarcerated, and
asserted that he had been compliant with drug testing. When asked whether the September
6, 2019, test was positive for methamphetamine or amphetamines, Father stated only, “That
is what they say.” Father testified he failed to appear for drug tests on September 25, 2019,
October 8, 2019, November 4, 2019, and November 20, 2019, because he did not receive
notice that the tests were scheduled because someone “hacked” his cellular phone account.
Father also testified the caseworker texted him the information about the scheduled drug
tests even though he told her to either leave him a message or mail him information because
his phone was broken, and he does not “read texts all of the time.”
¶ 27 Father also testified that he had completed multiple mental health evaluations while
incarcerated, and another on June 7, 2019, at “B and I” in St. Louis. Father testified that
every evaluation concluded that no treatment was necessary, so he did not see any reason
to have another evaluation completed. Father testified that his paperwork proving that he
completed the June 7, 2019, evaluation was outside “in the car.”
¶ 28 Father testified he completed a parenting class in May 2019, while he was
incarcerated, and that he emailed copies of all of his paperwork proving his compliance to
the caseworker. Father testified he wrote and called the children while incarcerated, and
12
that he visited them after he was released. When asked if he missed visits or failed to call
or show for visits, Father responded, “So they say.”
¶ 29 On March 30, 2020, the court entered an order finding the State had proven by clear
and convincing evidence that Father was an unfit person for failing to make reasonable
progress toward the return of the minors in any nine-month period following the
adjudication of neglect. The court found Father did not complete most of the services
recommended in his service plans, and that he clearly demonstrated a need for substance
abuse treatment and mental health counseling, but that he did not take these services
seriously.
¶ 30 On June 1, 2020, the court set the best-interest hearing for July 15, 2020. Notice of
the hearing was sent to Father and his attorney. On July 13, 2020, upon the State’s
uncontested motion, the court reset the hearing for August 12, 2020. On August 11, 2020,
upon Mother’s motion to continue, the court reset the best-interest hearing for September
30, 2020.
¶ 31 On September 30, 2020, the court called the case for the best-interest hearing.
Mother and Father were not present. Mother’s attorney reported that Mother was in DOC
and that no writ had been issued to transport her to court that day. Mother’s counsel made
a motion to continue her portion of the proceeding. The State and GAL had no objection
to Mother’s motion but requested to proceed with Father’s portion of the hearing.
¶ 32 Father’s attorney joined in the motion to continue. Father’s counsel reported that
she had sent Father notice of the hearing by email but was not aware of whether he received
notice by mail. Counsel stated it was “possible there was an oversight” and argued that it
13
would make sense to conduct the best-interest hearings for both parents at the same time.
The court granted Mother’s motion to continue but denied Father’s motion. The court
found Father was not in custody, was present at the last hearing, and that the clerk had sent
Father notice of the initial hearing date. The court found that even though the date of the
hearing had been continued, Father was aware that the hearing was pending. The court also
found that Father’s counsel had attempted to contact Father but that Father had not
communicated with his counsel despite his ability to do so.
¶ 33 The court proceeded to the best-interest hearing with regard to Father, and heard
testimony from the children’s foster parents, Jill L. and Mark L., who were the minors’
great-aunt and great-uncle. Jill testified that the minors had been living with the foster
parents for a little over two years, and that they had developed a close aunt-niece
relationship. Jill stated the minors were doing well in school, were involved in activities,
and were attending counseling. Jill testified she loves the children and wants them to
remain a part of her life. Jill stated she would like to be granted guardianship of the minors
because the minors wished to be reunited with their Mother, in the hope that Mother will
be rehabilitated by her incarceration. Jill testified that if the parents’ parental rights were
terminated, she would like to adopt the minors. Jill testified that Father had not seen or had
any contact with the minors in a year, and that he had not contributed to their care. Jill
testified the minors have expressed that they did not want to see or live with Father.
¶ 34 Mark testified he loved the minors like his own children, that the children have been
incorporated into the family, and that he and Jill’s grown children refer to the minors as
their sisters. Mark testified they were willing to adopt the minors and give them a home if
14
the parents’ parental rights were terminated. Mark stated Father has not contributed to the
minors’ care, and that they have not seen or heard from Father in a year. Mark testified the
minors have stated that they do not want to be returned to Father.
¶ 35 The court issued a verbal ruling finding that it was in the children’s best interests
that Father’s parental rights be terminated. The court found that the children were happy
and well cared for in their foster home. The court found that the foster parents offered the
children permanency, in that Mark was unequivocal that he loved the children, and he
would adopt them if he were able. The court found that the children did not wish to see
Father, and that Father’s visits with the children were terminated due to his behavior and
Father never sought to remedy the situation.
¶ 36 In a docket entry from the day of the hearing, the court stated that it denied Father’s
motion to continue because Father was sent notice of the original hearing date, was aware
that the best-interest hearing was imminent, and was sent electronic notice of the new
hearing date from his attorney. The court also found that it was in the best interests of the
minors that Father’s parental rights be terminated. The court found that the children were
well cared for with the foster parents, and that the foster father testified that he loved them
like his own children. The court found the foster parents were willing to adopt the minors.
The court also found that the minors had not had contact with Father and that they did not
wish to have contact with Father. This appeal follows.
¶ 37 ANALYSIS
¶ 38 Prior to discussing respondent’s contentions on appeal, we briefly address the
timeliness of our decision. This case has been designated as accelerated pursuant to Illinois
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Supreme Court Rule 311 (eff. July 1, 2018). Rule 311(a)(5) provides, in part, that “[e]xcept
for good cause shown, the appellate court shall issue its decision within 150 days after the
filing of the notice of appeal.” Ill. S. Ct. R. 311(a)(5) (eff. July 1, 2018). The 150-day
deadline expired on March 22, 2021. In this case, Father requested two extensions of time
to file his opening brief, and oral argument was held on March 23, 2021. Since the case
was not ready for disposition until after the expiration of the deadline, we find good cause
for issuing our decision after the 150-day deadline. See In re B’Yata I., 2013 IL App (2d)
130558, ¶ 26.
¶ 39 On appeal, Father argues the trial court’s determinations that he was unfit and that
the termination of his parental rights was in the best interests of the children were against
the manifest weight of the evidence. Father also argues that the court’s denial of his motion
to continue the best-interest hearing in his absence was an abuse of discretion and violated
his right to due process. Father also maintains that the trial court’s September 30, 2020,
docket entry as to the court’s best interest finding did not satisfy the writing requirement
of section 2-27 of the Act (705 ILCS 405/2-27 (West 2018)).
¶ 40 Section 2-29 of the Act sets forth a two-step process for the involuntary termination
of parental rights. 705 ILCS 405/2-29(2) (West 2018). First, the State must prove by clear
and convincing evidence that the parent is an unfit person as defined by the Adoption Act
(750 ILCS 50/1(D) (West 2018)). In re J.L., 236 Ill. 2d 329, 337 (2010). If the trial court
finds the parent to be unfit, the court must then determine whether the State has proven, by
a preponderance of the evidence, that it is in the child’s best interest that parental rights be
terminated. 705 ILCS 405/2-29(2) (West 2018); In re D.T., 212 Ill. 2d 347, 367 (2004).
16
During the second stage of the proceedings, the focus of the court’s scrutiny shifts from
the rights of the parents to the best interest of the child. In re B.B., 386 Ill. App. 3d 686,
697 (2008).
¶ 41 The trial court’s decision to terminate parental rights involves factual findings and
credibility assessments which, on review, are accorded great deference. In re M.J., 314 Ill.
App. 3d 649, 655 (2000). On appeal, the trial court’s findings of parental unfitness and that
termination of parental rights was in the child’s best interest will not be disturbed unless
they are contrary to the manifest weight of the evidence. In re R.L., 352 Ill. App. 3d 985,
998, 1001 (2004).
¶ 42 Determination of Unfitness
¶ 43 Here, the trial court found that the State had proven one ground of unfitness against
Father, that Father failed to make reasonable progress toward the return of the minors in
any nine-month period following the adjudication of neglect. See 750 ILCS 50/1(D)(m)(ii)
(West 2018). The State alleged two nine-month time periods in the petitions, between
March 8, 2018, and December 8, 2018, or between March 10, 2019, and December 10,
2019.
¶ 44 “Reasonable progress” is an objective standard, and is based upon the amount of
progress, as measured from the conditions existing at the time of removal. In re Jacorey,
2012 IL App (1st) 113427, ¶ 21. Reasonable progress requires a measurable or
demonstrable movement toward the goal of reunification. In re Jacorey, 2012 IL App (1st)
113427, ¶ 21. A parent has made “reasonable progress” when the trial court can conclude
that it will be able to return the child to parental custody in the near future. In re Jacorey,
17
2012 IL App (1st) 113427, ¶ 21. If a service plan has been established to correct the
conditions that were the basis for the removal of the child from the parent, a “failure to
make reasonable progress” includes a parent’s failure to substantially fulfill his obligations
under the service plan. 750 ILCS 50/1(D)(m) (West 2018).
¶ 45 In this case, the condition that was the original basis for the removal of the minors
from the home was that they were in an environment that was injurious to their welfare due
to Mother’s substance abuse which affected her ability to provide the children with
adequate care. The record indicates the children first came into DCFS care in 2016 and
were returned home in July 2017. DCFS became involved with the family again in
November 2017, after Mother was arrested for possession of methamphetamine. The
children remained in the home for approximately two months while DCFS conducted home
visits and offered both parents services, including substance abuse services. Father rejected
these services as unwanted and unnecessary. On January 10, 2018, Father skipped a court-
ordered drug test and then provided a negative but dilute sample a week later. On January
31, 2018, Mother and Father both tested positive for controlled substances, and the children
were taken into care. Father’s first service plan was created in January 2018 and was
revisited three times over the course of the proceeding with the goals remaining unchanged.
Father’s service plans always included the following tasks: (1) complete a substance abuse
assessment and any recommended treatment, (2) complete a mental health assessment and
any recommended treatment, (3) attend parenting classes, and (4) cooperate with DCFS.
¶ 46 The evidence in the record demonstrates that Father failed to successfully complete
the goals in his service plan. Although Father testified that he completed multiple mental
18
health assessments and that no treatment was ever recommended, Father failed to provide
any evidence supporting his alleged compliance. With regard to those services Father did
complete, the evidence was that his participation in the recommended service did not result
in a change of condition. For example, Father completed a parenting class while
incarcerated but, when required to put his parenting skills to work, Father repeatedly
exhibited inappropriate behaviors during visits with the minors by talking negatively about
the foster parents, the caseworker, and Mother, and by making promises on which he could
not deliver. Father’s conduct greatly upset the minors, and he was cautioned that the visits
would cease if he persisted in this conduct. Father responded by denying any wrongdoing
and by calling his children liars. Father, nevertheless, persisted in this conduct, which
ultimately resulted in his visits being terminated.
¶ 47 Father also completed a substance abuse program while in DOC and completed a
substance abuse assessment following his release from prison which concluded that Father
did not require substance abuse treatment. The evidence is clear, however, that Father
procured this favorable evaluation by providing the evaluator with false information about
his substance use. Furthermore, it was clear that Father continued to struggle with
substance abuse, as he had a positive drug test in September 2019 and missed four
scheduled tests between September 25, 2019, and November 20, 2019. Father was also
arrested and charged with possession of methamphetamine in November 2019.
¶ 48 At the time of the fitness hearing, it had been two years since the minors had been
adjudicated neglected. Despite this passage of time, Father had failed to make any
measurable movement toward reunification with his children. Based upon the evidence
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presented, the trial court’s finding that Father was unfit for failing to make reasonable
progress toward the return of the minors was not against the manifest weight of the
evidence.
¶ 49 Best-Interest Hearing and Determination
¶ 50 Father raises three issues with regard to the best-interest hearing and the trial court’s
finding that termination of Father’s parental rights was in the children’s best interests. First,
Father argues that the trial court’s denial of his motion to continue the best-interest hearing
constituted an abuse of discretion and violated his right to due process. Father also contends
that the trial court failed to enter a written order setting forth the court’s factual findings
supporting its determination in violation of section 2-27(1) of the Act. Finally, Father
argues that the trial court’s finding that termination of his parental rights was in the minors’
best interest was against the manifest weight of the evidence.
¶ 51 Denial of the Motion to Continue
¶ 52 Father argues the trial court abused its discretion and denied him his constitutional
right to due process by denying his counsel’s motion to continue the best-interest hearing
and by holding the hearing in Father’s absence. Father contends the court’s denial of his
motion prevented him from presenting evidence at the best-interest hearing and deprived
him of “his day in court.”
¶ 53 A parent has a fundamental liberty interest, protected by the due process clause of
the fourteenth amendment, in maintaining a parental relationship with his or her child. In re
D.R., 307 Ill. App. 3d 478, 482 (1999). To protect this interest, parents are entitled to certain
due process safeguards in actions to terminate their parental rights. In re D.R., 307 Ill. App.
203d at 482. These safeguards include the right to be present, to be heard, to present evidence
material to the proceedings, and to cross-examine witnesses. In re D.R., 307 Ill. App. 3d at
482; 705 ILCS 405/1-5 (1) (West 2018).
¶ 54 Due process also requires adequate notice to a parent in a juvenile proceeding. In re
C.L.T., 302 Ill. App. 3d 770, 778 (1999). Although a parent has the right to be present at a
hearing to terminate parental rights, his presence is not mandatory, and the trial court is not
obligated to wait until he chooses to appear. In re C.L.T., 302 Ill. App. 3d at 778. The
respondent does not have an absolute right to a continuance in a proceeding under the Act.
In re S.W., 2015 IL App (3d) 140981, ¶ 31. Furthermore, the trial court does not deprive
the respondent his right to due process by conducting a termination hearing in his absence.
In re S.W., 2015 IL App (3d) 140981, ¶ 34. Whether to grant or deny a motion to continue
in a proceeding under the Act is a matter within the trial court’s discretion. In re C.L.T.,
302 Ill. App. 3d at 778. We will not overturn the trial court’s decision absent manifest
abuse or palpable injustice. In re S.W., 2015 IL App (3d) 140981, ¶ 31.
¶ 55 Contrary to Father’s assertions on appeal, the trial court’s denial of his motion to
continue did not deprive Father of his right to appear at the hearing or to present evidence.
Simply stated, Father had the opportunity to appear at the best-interest hearing, he just did
not avail himself of the opportunity. Furthermore, Father’s counsel was present at the
hearing, cross-examined the witnesses, and made arguments on Father’s behalf.
¶ 56 Father was present at the fitness hearing on March 11, 2020, and was aware that the
best-interest hearing would be held at some point in the near future. Notice of the first
setting was mailed to Father, and Father’s counsel was aware that the hearing had been
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continued twice. Even though Father was not sent notice from the court of the final hearing
date, Father’s counsel advised the court that she had sent Father notice of the hearing via
electronic mail. A party has a duty to follow the progress of his case and to learn from his
attorney the date of the next hearing. In re C.L.T., 302 Ill. App. 3d at 778. Father has
presented no explanation for his absence, and it is reasonable to conclude that Father either
failed to reasonably maintain contact with his attorney or to follow the progress of his case,
or that he deliberately failed to appear at the hearing. We also note that Father’s assertion
on appeal that he was “involved at every other hearing” is not accurate. Father attended
many of the hearings in the case, frequently as a result of the State issuing a writ for his
attendance because Father was incarcerated for a substantial portion of the proceedings.
Father, however, did not attend every hearing, including the first hearing following his
release from prison. Based on the foregoing, the trial court did not abuse its discretion or
violate Father’s right to due process by denying his counsel’s motion to continue the best-
interest hearing.
¶ 57 Written Order of Termination of Rights
¶ 58 In his brief, Father has asserted that an issue on appeal is whether a trial court may
“make an oral finding and docket entry at a best-interest hearing terminating the rights of
[Father] without entering a written order with a basis for the termination.” Father’s only
argument on this issue is that section 2-27(1) of the Act requires that the court put the
factual basis supporting the determination of parental fitness in writing, and that “there is
no written order for parental termination” for Father in this case.
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¶ 59 Section 2-27(1) of the Act allows the court to order certain placements or to appoint
a legal custodian or guardian for a minor that has been made a ward of the court. 705 ILCS
405/2-27(1) (West 2018). The provision, however, instructs that this may be done:
“[i]f the court determines and puts in writing the factual basis supporting the
determination of whether the parents, guardian, or legal custodian of a minor
adjudged a ward of the court are unfit or unable, for some reason other than financial
circumstances alone, to care for, protect, train or discipline the minor or are
unwilling to do so, and that the health, safety, and best interest of the minor will be
jeopardized if the minor remains in the custody of his or her parents, guardian or
custodian[.]” 705 ILCS 405/2-27(1) (West 2018).
¶ 60 Here, the trial court made oral findings at the hearing and entered consistent findings
in a docket entry the same day. The September 30, 2020, docket entry states the court found
that it was in the best interest of the minors that Father’s parental rights be terminated. The
docket entry states this determination was based on the fact that the minors were well cared
for in their foster home, and the foster parents loved the children as their own and wanted
to adopt them. The court also found that the minors did not currently have contact with
Father, and that they did not wish to have contact with Father in the future. While it is
preferable for the court to enter its finding in a written order, the docket entry setting forth
the court’s determination and the factual basis for that determination is sufficient to satisfy
the writing requirement of section 2-27(1). See In re R.M.S., 187 Ill. App. 3d 41, 43 (1989)
(respondent parent can appeal from the order terminating her parental rights as entered in
the record sheet).
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¶ 61 Best Interest Determination
¶ 62 Once a parent has been found to be unfit, the parental rights yield to the child’s best
interest. In re Tashika F., 333 Ill. App. 3d 165, 170 (2002). Again, this court will not
reverse the trial court’s determination as to the child’s best interest unless it is contrary to
the manifest weight of the evidence. In re R.L., 352 Ill. App. 3d at 1001.
¶ 63 The record clearly reveals Father’s lack of progress to complete the objectives of
his service plan. While the finding of adjudication was based on the Mother’s substance
abuse, the record is clear that Father also had untreated substance abuse issues. Instead of
availing himself of the services that could help treat his condition and reunite him with his
children, Father rejected those services as unnecessary. While Father maintained contact
with his children while he was incarcerated and exercised his visitation with the children
after his release, he was not always consistent. Father missed several visits before having
his visits temporarily terminated due to his inappropriate conduct. Father did not seek to
have his visits reinstated. By contrast, the foster parents were meeting the children’s needs,
and had been doing so for the last two years. The children were happy in their foster home
and bonded to their foster parents. The children had been integrated into their foster family,
and the foster parents wished to adopt the children if both parents’ parental rights were
terminated. Based on the circumstances presented, the trial court’s determination
that termination of Father’s parental rights was in the best interest of the children was not
contrary to the manifest weight of the evidence.
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¶ 64 CONCLUSION
¶ 65 For the foregoing reasons, we affirm the judgment of the circuit court of Marion
County.
¶ 66 Affirmed.
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