Opinion
4-23-0636 4-23-0637
12-15-2023
In re R.D. and A.D., Minors v. Brent D., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County Nos. 20JA343 20JA344 Honorable Francis M. Martinez, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Cavanagh and Knecht concurred in the judgment.
ORDER
STEIGMANN, JUSTICE
¶ 1 Held: The appellate court affirmed the trial court's judgment terminating respondent's parental rights.
¶ 2 The State filed motions to terminate the parental rights of respondent, Brent D., to his minor children, R.D. (born in 2019) and A.D. (born in 2017). Following the fitness hearing, the trial court found respondent unfit, and the court subsequently determined it was in the minors' best interest to terminate respondent's parental rights.
¶ 3 In this consolidated appeal, respondent argues (1) the trial court erred by admitting and relying on hearsay evidence contained in the service plans in making its fitness determination, (2) he was deprived of his right to due process because the judge presiding over the fitness hearing also presided over previous hearings in this case, and (3) the court's fitness determination was against the manifest weight of the evidence. We disagree and affirm.
¶ 5 In this case, respondent challenges only the procedure and the findings at his fitness hearing. The parental rights of the minors' mother are not at issue in this appeal.
¶ 6 A. The Wardship Petitions and Findings of Neglect
¶ 7 In September 2020, the State filed petitions seeking to adjudicate the minors neglected under the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(a), (b) (West 2020)). The State alleged the minors were neglected because (1) their mother's mental health issues prevented her from properly parenting, thereby presenting a risk of harm to the minors (id. § 2-3(1)(b)); (2) the minors' parents failed to provide proper support, education, or medical care for R.D. in that R.D. was not receiving the required medication for his heart condition (id. § 2-3(1)(a)); and (3) respondent allowed the minors' mother to care for them for over one week after being told not to leave them in her care (id. § 2-3(1)(b)). Later that month, the parties waived a shelter care hearing, and the trial court awarded temporary custody and guardianship of the minors to the guardianship administrator of the Illinois Department of Children and Family Services (DCFS).
¶ 8 At the adjudicatory hearing in February 2021, respondent stipulated to count I of the petition, and the State voluntarily dismissed counts II and III. The trial court found the minors neglected based on a statement of facts filed by the parties.
¶ 9 B. The Dispositional Hearing
¶ 10 Following the May 2021 dispositional hearing, the trial court ruled temporary custody and guardianship would remain with DCFS. The court found respondent unfit or unable to have custody of the minors until he received the recommended services.
¶ 11 C. The Permanency Review Hearings
¶ 12 Over the following two years, the trial court conducted several permanency review hearings.
¶ 13 D. The Fitness Portion of the Termination Proceedings
¶ 14 In May 2023, the State filed motions to terminate respondent's parental rights to both minors. The motion for each minor alleged respondent had failed to make reasonable progress toward the minor's return during the nine-month periods from October 14, 2021, to July 14, 2022, and from July 13, 2022, to April 13, 2023 (750 ILCS 50/1(D)(m)(ii) (West 2022)).
¶ 15 1. The Fitness Hearing
¶ 16 Respondent was not present at the June 2023 fitness hearing. Respondent's counsel stated he had emailed respondent, informed him of the need to appear in person, and sent him copies of the trial court's orders. Respondent's attorney stated he had also included the date and time of the hearing in the body of his email to respondent. The court found respondent had waived his right to appear.
¶ 17 The State called Monica Gallagher as its only witness. Gallagher testified she had been employed by the Youth Service Bureau for approximately two years. Her duties included observing home visits, meeting monthly with parents to ensure they were involved with services, having parents complete drug drops if necessary, and providing documentation and court reports. Gallagher was assigned as the minors' caseworker in March 2022. The minors were in care for over a year before Gallagher was assigned as their caseworker. A.D. was currently five years old and R.D. was three years old.
¶ 18 Gallagher described an integrated assessment as the initial assessment of the parents' background and the recommendations for services for the parents to complete. Gallagher identified People's exhibit No. 1 as respondent's integrated assessment, which was completed on December 2, 2020. When the State moved to admit the exhibit into evidence, the trial court stated, "Very good. Any objection? No objection being heard, it shall be admitted."
¶ 19 Next, Gallagher explained that a service plan outlines the recommended services for the parents and the tasks to be completed under each service. The service plans are reviewed at least every six months and are provided to the trial court for permanency reviews. Gallagher identified People's exhibit Nos. 2 through 6 as respondent's complete service plans dated March 9, 2021, September 5, 2021, March 4, 2022, September 14, 2022, and March 1, 2023. When the State moved to admit the exhibits into evidence, the court again inquired, "Very good. Any objection?" The record shows respondent's attorney responded by "Shaking [his] head back and forth." The court then stated, "Not hearing one, I shall admit without objection."
¶ 20 Gallagher testified the service plan recommended respondent complete substance abuse treatment, mental health or individual counseling, parenting education, and domestic violence counseling. The service plan also recommended that respondent participate in visitation with the minors, cooperate with his caseworker, and attend the minors' medical appointments. Gallagher testified the agency attempted to communicate with respondent in person each month and also communicated by email, phone calls, and text messages. She described her contact with respondent as "decent" for the first couple months after she received the case. However, near the end of 2022 and through 2023, respondent changed his phone number four or five times, and he no longer kept in contact consistently. Gallagher stated respondent was "decent with confirming" visitation from March 2022 to November 2022, but after that it "became an issue."
¶ 21 Gallagher testified there was a concern about respondent's mental health and his ability to regulate his emotions. Respondent engaged in counseling at Howard Counseling and, although there were some "inconsistencies" due to scheduling conflicts, respondent was successfully discharged from counseling on March 1, 2023.
¶ 22 Domestic violence services were also recommended for respondent due to his "past, as well as current, domestic history and charges." Respondent was referred to a program typically lasting 27 weeks. He completed the assessment for the program and one class but was discharged because he "didn't feel that he needed to go."
¶ 23 Substance abuse treatment and random drug drops were also recommended due to respondent's history of substance abuse. Gallagher testified respondent did not complete his initial substance abuse assessment and rarely completed drug drops. Some of the results were positive on the three occasions he completed drug drops. Gallagher later clarified that respondent had a negative test result in November 2022, but every other drug drop resulted in either a failure to appear or a positive result for opiates, cocaine, or tetrahydrocannabinol (THC).
¶ 24 Gallagher also asserted she was concerned about respondent's "aura of smoke or smoke-filled presence around him," given that R.D. suffered from asthma. Although she repeatedly spoke to respondent about her concern, he never corrected it and, in fact, brought a bag smelling strongly of mold and marijuana to a visit in October 2022.
¶ 25 Gallagher further testified to concerns about respondent's parenting. She had observed visitation with the minors and opined respondent did not demonstrate any parenting skills. She explained the minors "kind of did what they wanted. And when there was a paramour involved, that paramour kind of took on the parenting role more than [respondent] did." Respondent and his paramour argued at the beginning of one visit. Respondent consistently attended weekly visitation until February or March 2023, but he did not try to schedule any visits after that date. Although respondent was referred to parenting classes, he never completed them. Additionally, respondent did not go to the minors' medical appointments or participate in training about R.D.'s medical condition.
¶ 26 Gallagher further testified an emergency order of protection had been obtained against respondent. Respondent did not tell Gallagher about the order of protection. Instead, she found out during a permanency review hearing about the order of protection and a domestic violence charge filed against respondent on February 1, 2023. At that hearing, Gallagher also learned a warrant had been issued for respondent's arrest.
¶ 27 Following Gallagher's testimony, the State rested. Respondent did not present any evidence.
¶ 28 2. The Trial Court's Ruling
¶ 29 After taking the matter under advisement, the trial court found respondent had failed to make reasonable progress to correct the conditions that led to the removal of the minors during the relevant nine-month periods. Accordingly, the State had met its burden of proving respondent unfit by clear and convincing evidence.
¶ 30 E. The Best Interest Portion of the Termination Proceedings
¶ 31 At the best interest hearing in July 2023, the parties presented witness testimony and exhibits. Following the hearing, the trial court found it was in the minors' best interest to terminate respondent's parental rights and entered orders to that effect.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 In this consolidated appeal, respondent argues (1) the trial court erred by admitting and relying on hearsay evidence contained in the service plans in making its fitness determination, (2) he was deprived of his right to due process because the judge presiding over the fitness hearing also presided over previous hearings in this case, and (3) the court's fitness determination was against the manifest weight of the evidence. We disagree and affirm.
¶ 35 A. The Trial Court's Admission and Reliance on Hearsay Evidence
¶ 36 Respondent first argues that the trial court erred by admitting and relying on hearsay evidence contained in the service plans at the fitness hearing. Respondent argues the service plans contained "multi-level hearsay" from unidentified people or agencies and that evidence cannot provide the sole basis for finding him unfit by clear and convincing evidence. Respondent concludes the court's reliance on multi-level hearsay violated his right to due process.
¶ 37 Although respondent concedes he forfeited this issue for review by failing to object during the fitness hearing, he maintains it is reviewable under the plain error rule.
¶ 38 The State counters that respondent invited any error by acquiescing to the admission of the service plans during the fitness hearing. According to the State, invited error is not subject to plain error review. We agree.
¶ 39 1. Plain Error
¶ 40 To preserve an issue for appellate review, a party must object at trial and raise the issue in a written posttrial motion. People v. Enoch, 122 Ill.2d 176, 186, 522 N.E.2d 1124, 1130 (1988). The plain error doctrine provides a "narrow and limited exception to the typical forfeiture rule applicable to unpreserved claims." People v. Johnson, 238 Ill.2d 478, 484, 939 N.E.2d 475, 480 (2010). A forfeited claim may be considered under the plain error rule when
"(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill.2d 551, 565, 870 N.E.2d 403, 410-11 (2007).
¶ 41 Plain error review applies to cases involving forfeiture, but it does not apply to affirmative acquiescence. People v. McGuire, 2017 IL App (4th) 150695, ¶ 29, 92 N.E.3d 494. A party will not be allowed to complain of error when that party induced or consented to the alleged error. In re Detention of Swope, 213 Ill.2d 210, 217, 821 N.E.2d 283, 287 (2004). Thus, when defense counsel affirmatively acquiesces to the trial court's actions, counsel waives any potential claim of plain error on appeal. McGuire, 2017 IL App (4th) 150695, ¶ 29.
¶ 42 2. This Case
¶ 43 Here, the trial court asked respondent's attorney directly if there were any objections to admission of the service plans contained in People's exhibit Nos. 2 through 6. Counsel responded by shaking his head back and forth. The court then stated, "Not hearing one, I shall admit without objection." Although he was directly asked if he objected, respondent's counsel acquiesced to the admission of the exhibits without any objection. Counsel's response to the trial court's inquiry constituted an affirmative acquiescence to the admission of the exhibits. See People v. Cox, 2017 IL App (1st) 151536, ¶ 76, 89 N.E.3d 898 (concluding defense counsel acquiesced to the admission of a certificate by affirmatively responding to the trial court's questions that the defendant had no objection to its admission). Accordingly, respondent has waived any error in the admission of the exhibits, and his claim is not reviewable under the plain error rule.
¶ 44 We also note "the law is clear that hearsay admitted without objection can be given its natural probative weight." In re M.D., 2022 IL App (4th) 210288, ¶ 102, 193 N.E.3d 933. The supreme court has held," 'It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural probative effect.'" People v. A Parcel of Property Commonly Known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill.2d 481, 504, 841 N.E.2d 928, 942 (2005) (quoting Jackson v. Board of Review of the Department of Labor, 105 Ill.2d 501, 508-09, 475 N.E.2d 879, 883 (1985)). Accordingly, after respondent acquiesced to the admission of the service plans without raising any hearsay objection, the trial court was permitted to give any hearsay evidence included in those plans its natural probative weight.
¶ 45 B. Respondent's Claim That Due Process Required the Trial Court's Recusal at the Fitness Hearing
¶ 46 Respondent next argues he was denied his right to due process because the judge presiding over his fitness hearing also presided over permanency review hearings during a two-year period at which multi-level hearsay evidence was presented. Respondent notes that the judge at the last such hearing changed the goal to substitute care pending termination of parental rights. Respondent contends that the trial judge should have recused himself because only admissible evidence may be considered at the fitness hearing. Respondent acknowledges he forfeited this issue by failing to raise it in the trial court, but he maintains it is subject to review under the plain error rule.
¶ 47 The State responds that this court has rejected respondent's argument in recent cases, including In re J.J., 2022 IL App (4th) 220131-U. The State concludes respondent's forfeited claim is not reviewable under the plain error rule because the record shows no clear or obvious error occurred.
¶ 48 1. The Applicable Law
¶ 49 a. Plain Error
¶ 50 As noted, the plain error rule provides a "narrow and limited exception to the typical forfeiture rule applicable to unpreserved claims." Johnson, 238 Ill.2d at 484. In plain error review, the usual first step is determining whether a clear or obvious error occurred. Piatkowski, 225 Ill.2d at 565. The party claiming plain error bears the burden of persuasion. People v. McLaurin, 235 Ill.2d 478, 495, 922 N.E.2d 344, 355 (2009). When plain error is not established, a reviewing court will generally honor the procedural default. People v. Leach, 2012 IL 111534, ¶ 61, 980 N.E.2d 570.
¶ 51 b. Due Process
¶ 52 This court has addressed this issue in several recent cases. To summarize, this court has held recusal is not required in these circumstances for three basic reasons. First, Illinois Supreme Court Rule 903 (eff. Mar. 8, 2016) provides that "[w]henever possible and appropriate, all child custody and allocation of parental responsibilities proceedings relating to an individual child shall be conducted by a single judge." Accordingly, the supreme court has expressed a preference for the same judge to hear all proceedings relating to an individual child that involve custody and the division of parental responsibilities. In re D.D., 2022 IL App (4th) 220257, ¶ 33, 215 N.E.3d 302 (quoting J.J., 2022 IL App (4th) 220131-U, ¶ 25).
¶ 53 Second," '[w]hen the trial judge is the trier of fact, the reviewing court presumes the judge considered only admissible evidence and disregarded inadmissible evidence in reaching [his or her] decision.'" Id. (quoting J.J., 2022 IL App (4th) 220131-U, ¶ 26, citing People v. Naylor, 229 Ill.2d 584, 603, 893 N.E.2d 653, 665 (2008)). On this point, we note that a trial court's fitness findings must be based solely on the evidence presented at the fitness hearing, not on any evidence presented at other hearings preceding the fitness hearing. In re Dar. H., 2023 IL App (4th) 230509, ¶ 46. As set forth in M.D., 2022 IL App (4th) 210288, ¶ 72, the evidentiary rules governing permanency and dispositional hearings are far less strict than those governing the fitness hearing and, therefore, evidence and orders from permanency hearings may not be considered at the fitness portion of termination proceedings. Dar. H., 2023 IL App (4th) 230509, ¶¶ 48-49.
¶ 54 Third, section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West 2020)), allows for substitution of a judge when cause exists after a substantive ruling has been made in a civil case. Judges are presumed to be impartial, and the party alleging bias has the burden of overcoming that presumption, which generally requires a showing of actual prejudice. D.D., 2022 IL App (4th) 220257, ¶ 34 (quoting J.J., 2022 IL App (4th) 220131-U, ¶ 27).
¶ 55 In both D.D. and J.J., this court also found the respondents' arguments were not supported by the special concurrence in In re A.T., 197 Ill.App.3d 821, 835-36 555 N.E.2d 402, 411-12 (1990) (Steigmann, J., specially concurring). D.D., 2022 IL App (4th) 220257, ¶ 35; J.J., 2022 IL App (4th) 220131-U, ¶ 28. The special concurrence in A.T. stated that when a judge indicates a need for filing a petition to terminate a respondent's parental rights, that judge must recuse himself or herself from proceedings on the petition after it is filed. A.T., 197 Ill.App.3d at 835. Those circumstances were not present in either D.D. or J.J. because the trial court in those cases did not sua sponte find a need for filing a motion to terminate parental rights. Instead, the court changed the goal only at the request of the State and the guardian ad litem. D.D., 2022 IL App (4th) 220257, ¶ 35; J.J., 2022 IL App (4th) 220131-U, ¶ 28.
¶ 56 2. This Case
¶ 57 Here, the trial judge did not commit clear or obvious error by presiding over respondent's fitness hearing after presiding over previous hearings or by changing the goal at the last permanency hearing to substitute care pending termination of parental rights. The reasoning in D.D. and J.J. applies to this case.
¶ 58 We conclude respondent has not met his burden of establishing clear or obvious error. Accordingly, the plain error rule does not apply to excuse respondent's forfeiture for failing to raise this claim in the trial court.
¶ 59 C. The Fitness Determination
¶ 60 Last, respondent argues the trial court's determination of parental unfitness was against the manifest weight of the evidence. Respondent maintains that the evidence does not establish he failed to make reasonable progress toward the return of the minors during the relevant nine-month periods. We disagree.
¶ 611. The Applicable Law and Standard of Review
¶ 62 Parental rights may not be terminated without the parent's consent unless the trial court determines, by clear and convincing evidence, that the parent is unfit as defined by section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)). Section 1(D)(m)(ii) of the Adoption Act provides that a parent may be found unfit if he or she fails to "make reasonable progress toward the return of the child to the parent during any 9-month period following the adjudication" of neglect. Id. § 1(D)(m)(ii). "Reasonable progress" has been defined as "demonstrable movement toward the goal of reunification." (Internal quotation marks omitted.) In re Reiny S., 374 Ill.App.3d 1036, 1046, 871 N.E.2d 835, 844 (2007). Reasonable progress exists when the trial court can conclude that it will be able to return the child to parental custody in the near future. In re Ta. T., 2021 IL App (4th) 200658, ¶ 51, 187 N.E.3d 763. A trial court's finding that a parent is unfit will not be reversed unless it is against the manifest weight of the evidence. In re N.G., 2018 IL 121939, ¶ 29, 115 N.E.3d 102. A decision is against the manifest weight of the evidence only when the opposite conclusion is clearly apparent. Id.
¶ 63 2. This Case
¶ 64 Initially, respondent claims the State's witness, Monica Gallagher, had direct knowledge only of her referrals of respondent to treatment and of the three or four visits she observed. According to respondent, Gallagher did not have any other direct knowledge of his progress. Respondent argues the trial court's judgment is not supported by Gallagher's hearsay testimony and the hearsay evidence contained in the service plans.
¶ 65 However, respondent did not raise a hearsay objection to any of the evidence presented in Gallagher's testimony or the service plans. As previously discussed, hearsay evidence admitted without objection may be given its natural probative weight. M.D., 2022 IL App (4th) 210288, ¶ 102.
¶ 66 The record here shows the State met its burden of proving by clear and convincing evidence that respondent failed to make reasonable progress toward the return of the minors. The service plan recommended respondent complete substance abuse treatment, mental health counseling, parenting education, and domestic violence counseling. Respondent successfully completed mental health counseling, but he did not make reasonable progress on any of the other requirements. Respondent did not complete his initial substance abuse assessment. He had a negative test result on a random drug drop in November 2022, but every other drug drop resulted in either a failure to appear or a positive result. Respondent did not complete his parenting education class. Respondent completed the assessment and one class of his domestic violence program, which typically took 27 weeks to complete. He was discharged from that program because he "didn't feel that he needed to go," and he was charged with domestic violence in February 2023.
¶ 67 The service plan also recommended respondent participate in visitation, attend the minors' medical appointments, and cooperate with his caseworker. Respondent did not try to schedule any visits after March 2023, and he never went to the minors' medical appointments or participated in training for R.D.'s medical condition. He also did not keep in contact with Gallagher consistently after late 2022.
¶ 68 The record shows respondent failed to make demonstrable progress to correct the conditions that brought the minors into care. Over the two years since the adjudication of neglect, respondent failed to make reasonable progress toward the goal of returning the minors to his care. Accordingly, we conclude that the trial court's finding of unfitness was not against the manifest weight of the evidence.
¶ 69 III. CONCLUSION
¶ 70 For the reasons stated, we affirm the trial court's judgment.
¶ 71 Affirmed.