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                                  Appellate Court                            Date: 2017.10.16
                                                                             08:45:51 -05'00'




                          In re D.T., 2017 IL App (3d) 170120



Appellate Court       In re D.T., a Minor (The People of the State of Illinois, Petitioner-
Caption               Appellee, v. Sehrika S., Respondent-Appellant).



District & No.        Third District
                      Docket No. 3-17-0120



Rule 23 order filed   June 15, 2017
Motion to publish
allowed               July 13, 2017
Opinion filed         July 13, 2017



Decision Under        Appeal from the Circuit Court of Peoria County, No. 14-JA-184; the
Review                Hon. Katherine Gorman, Judge, presiding.



Judgment              Affirmed.


Counsel on            Charles M. Miller, of Miller Law Offices, P.C., of Peoria, for
Appeal                appellant.

                      Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino and Mark A.
                      Austill, of State’s Attorneys Appellate Prosecutor’s Office, of
                      counsel), for the People.
     Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                              Justices Lytton and Schmidt concurred in the judgment and opinion.


                                               OPINION

¶1         The State filed a petition for termination of parental rights against respondent, Sehrika S.,
       alleging respondent failed to make reasonable progress toward the return of the minor, D.T.,
       during a nine-month period following adjudication of D.T.’s neglect, pursuant to section
       1(D)(m)(ii) of the Adoption Act. 750 ILCS 50/1(D)(m)(ii) (West 2014). The trial court found
       respondent unfit pursuant to section 1(D)(m)(ii) of the Adoption Act and that it was in the
       best interest of D.T. to terminate respondent’s parental rights. Respondent appealed, arguing
       the trial court erred in finding her unfit. We affirm the trial court’s finding of unfitness.

¶2                                                FACTS
¶3          On August 4, 2014, the State filed a juvenile petition and subsequently amended the
       petition to allege D.T. was neglected and that his environment was injurious to his welfare. In
       the petition, the State alleged (1) D.T. was born on August 2, 2013, and an umbilical cord
       and meconium sample taken from D.T. tested positive for phencyclidine (PCP); (2)
       respondent also tested positive for cannabis and PCP at the time of D.T.’s birth; (3) on July
       30, 2014, while respondent was bathing D.T., she turned away to talk on the phone and D.T.
       became submerged underwater, stopped breathing, and turned blue; (4) respondent had
       attention-deficit/hyperactivity disorder, bipolar disorder, and schizophrenia, was not taking
       her medications, and reported that she would harm D.T. if she was not medicated; (5) on July
       30, 2014, respondent was sent for a drug drop, which she did not complete due to a lack of
       identification, at which time she left the building, walked into a parking lot, pulled her pants
       down, and urinated; (6) on August 4, 2014, the respondent received a ride from her paramour
       (E.W.) to a location where she entered a vehicle with men she barely knew and later reported
       being sexually assaulted by one of the men in the vehicle; (7) E.W. had been convicted in
       1996 for predatory criminal sexual assault; and (8) respondent had a criminal record that
       included criminal trespass to land (2014), DUI (2009), resisting police officers (2007), and a
       vehicle code offense (2007). The juvenile petition further alleged that D.T.’s father, Trechon
       H., had a criminal history, which included possession of a stolen vehicle (2014) and DUI
       (2012). The petition requested that the Department of Children and Family Services (DCFS)
       be made guardian of D.T. and that D.T. be made a ward of the court. On August 5, 2014, the
       trial court found it was a matter of immediate and urgent necessity that the minor be placed
       in temporary shelter care for his protection.
¶4          During the adjudication hearing on December 2, 2014, the trial court found the State had
       proven D.T. was neglected due to PCP found in his umbilical cord and meconium sample.
       The trial court indicated that the State had shown by a preponderance of the evidence that
       D.T. was neglected as a result of an injurious environment, which was not a result of physical
       abuse. On December 23, 2014, at the dispositional hearing, the trial court found the
       respondent to be unfit to care for, protect, train, or discipline D.T. or was unwilling to do so
       based on the contents of the State’s petition. D.T. was made a ward of the court, and DCFS


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     was named guardian of D.T. The trial court ordered respondent to execute authorizations for
     the release of information and fully cooperate with DCFS, complete a substance abuse
     assessment where respondent would self-report and comply with treatment
     recommendations, perform two random drug screens per month, complete a parenting class,
     obtain a mental health exam and comply with treatment recommendations, obtain a
     psychological and psychiatric examination and comply with recommendations, resume
     psychiatric services, maintain stable housing, provide DCFS with any change of address
     within three days, provide DCFS with any and all information in relation to anyone DCFS
     believed had a relationship with respondent that would impact the minor, and to visit with the
     minor as designated by DCFS.
¶5       On August 18, 2015, during the initial permanency review hearing, the trial court held
     that respondent’s efforts had been mixed and that the agencies had made reasonable efforts.
     The trial court ordered supervised visitation to be increased for an assessment of
     respondent’s parenting abilities. Additionally, the trial court changed the permanency goal
     from a goal of 22 (“[t]he minor will be in short-term care with a continued goal to return
     home within a period not to exceed one year, where the progress of the parent or parents is
     substantial giving particular consideration to the age and individual needs of the minor” (705
     ILCS 405/2-28(2)(B) (West 2014))) to a goal of 23 (“[t]he minor will be in short-term care
     with a continued goal to return home pending a status hearing” (705 ILCS 405/2-28(2)(B-1)
     (West 2014))).
¶6       A second permanency review hearing took place on February 9, 2016. The State showed
     that respondent committed a felony drug offense, which resulted in respondent having been
     incarcerated within a month of the previous permanency review hearing. Largely as a result
     of her incarceration, respondent only attended 7 of possible 22 visits with D.T. (respondent
     missed two visits because the agency was closed). The State also showed that respondent was
     unsuccessfully discharged from counseling due to her poor attendance. The trial court found
     that respondent had not made reasonable efforts toward the return home of D.T., noting
     respondent had admitted to drug use and unlawfully possessing a controlled substance. The
     permanency goal was changed from a goal of 23 (short-term care with a continued goal to
     return home pending a status hearing (705 ILCS 405/2-28(2)(B-1) (West 2014))) to a goal of
     24 (“[t]he minor will be in substitute care pending court determination on termination of
     parental rights” (705 ILCS 405/2-28(2)(C) (West 2014))).
¶7       On August 12, 2016, the State filed a petition to terminate respondent’s parental rights.
     The State’s petition alleged that respondent was unfit pursuant to section 1(D)(m)(ii) of the
     Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2014)), in that respondent had failed to make
     reasonable progress toward the return home of the minor during any nine-month period
     following the adjudication of neglect, with the specified nine-month period being October 30,
     2015, through July 30, 2016. Respondent filed a response denying the allegations against her
     in the termination petition.
¶8       On January 3, 2017, the trial court conducted a hearing to adjudicate respondent’s fitness.
     Shawn Miller testified that he was the only caseworker that had handled respondent’s case.
     Miller testified respondent maintained an apartment in Peoria that was suitable for a child but
     respondent did not live there between October 2015 and December 2015 because she was
     living in Chicago. Miller also testified respondent was not maintaining employment but
     acknowledged respondent was pregnant, which would impact her opportunities to obtain

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       employment. Between October 30, 2015, and February 2, 2016, respondent only attended 2
       of 10 scheduled visits with D.T. and missed a DCFS case review. Visitation had not been
       increased as previously ordered on August 18, 2015, due to respondent’s incarceration in
       Chicago for unlawful possession of a controlled substance. Respondent attended all monthly
       visitations with D.T. from February 9, 2016, through July 30, 2016.
¶9         Miller indicated that respondent had completed two drug and alcohol assessments and,
       based on respondent’s self-reporting, no treatment was recommended. Miller further testified
       respondent did not complete any drug drops between October 30, 2015, and January 5, 2016.
       Between the end of January 2016 through the end of July 2016, respondent completed three
       drug drops that came back negative and one that tested positive for PCP and cannabis. In July
       2016, respondent gave birth to another child whose umbilical cord tested positive for PCP.
¶ 10       The trial court found, by clear and convincing evidence, that respondent had not made
       reasonable progress within the nine-month period of October 30, 2015, through July 30,
       2016, and found respondent to be unfit pursuant to section 1(D)(m)(ii) of the Adoption Act.
       The trial court noted that respondent was not compliant with random drug drops, attending
       counseling, attending to obligations while incarcerated in Chicago, and that respondent had
       given birth to another child whose umbilical cord sample tested positive for PCP. On
       February 7, 2017, the trial court conducted a best interest hearing and found it was in D.T.’s
       best interest to terminate respondent’s parental rights.
¶ 11       Respondent appealed.

¶ 12                                            ANALYSIS
¶ 13       On appeal, respondent challenges the trial court’s determination that she was unfit, under
       section 1(D)(m)(ii) of the Adoption Act, because she failed to make reasonable progress
       toward the return of the minor from October 30, 2015, through July 30, 2016. Respondent
       asserts that the trial court’s findingthat she had not made reasonable progress—was against
       the manifest weight of the evidence. In support of this assertion, respondent points to her
       compliance with maintaining a stable residence appropriate for a child, completing a
       parenting class, receiving a psychological and psychiatric evaluation, and attending
       scheduled visits during the last half of the relevant nine-month period. Respondent also
       argues that she was allowed to believe she was progressing towards the goal of reunification
       when in actuality she had been placed in a position of assured failure because she was not
       referred to substance abuse treatment. Respondent asks, therefore, that we reverse the trial
       court’s determination that she failed to make reasonable progress during the relevant
       nine-month period. The State, in response, argues the trial court’s determination was proper.

¶ 14                                      I. Unfitness Finding
¶ 15      In this case, respondent argues the trial court’s determination of parental unfitness was
       against the manifest weight of the evidence and should be reversed. The State contends the
       court’s finding that respondent was unfit should be affirmed.
¶ 16      In Illinois, the power to involuntarily terminate parental rights is statutory and is derived
       pursuant to the Adoption Act (750 ILCS 50/0.01 et seq. (West 2014)) and the Juvenile Court
       Act of 1987 (Juvenile Act) (705 ILCS 405/1-1 et seq. (West 2014)). In re E.B., 231 Ill. 2d
       459, 463 (2008). The involuntary termination of parental rights is a two-step process. 705


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       ILCS 405/2-29(2) (West 2014); In re C.W., 199 Ill. 2d 198, 210 (2002). Initially, the court
       must find that a parent is unfit as defined in section 1(D) of the Adoption Act. 750 ILCS
       50/1(D) (West 2014); In re E.B., 231 Ill. 2d at 472. Section 1(D) lists several grounds upon
       which a finding of unfitness can be made. 750 ILCS 50/1(D) (West 2014). For instance,
       under section 1(D)(m)(ii) of the Adoption Act, a parent may be found unfit if he or she fails
       to make reasonable progress towards the return of the child within any nine-month period
       after an adjudication of neglect. 750 ILCS 50/1(D)(m)(ii) (West 2014). If the court makes a
       finding of parental unfitness under section 1(D) of the Adoption Act, the court then considers
       the best interests of the child in determining whether parental rights should be terminated.
       705 ILCS 405/2-29(2) (West 2014); In re J.L., 236 Ill. 2d 329, 337-38 (2010).
¶ 17        In the case at bar, the trial court found the respondent unfit under section 1(D)(m)(ii) of
       the Adoption Act because she failed to make reasonable progress toward the return home of
       D.T. during the period of October 30, 2015, through July 30, 2016. Reasonable progress is
       examined under an objective standard based upon the amount of progress measured from the
       conditions existing at the time custody was taken from the parent. In re Daphnie E., 368 Ill.
       App. 3d 1052, 1067 (2006). The benchmark for measuring a parent’s reasonable progress
       under section 1(D)(m) of the Adoption Act encompasses the parent’s compliance with the
       service plans and court’s directives in light of the condition that gave rise to the removal of
       the child and other conditions which later become known that would prevent the court from
       returning custody of the child to the parent. In re C.N., 196 Ill. 2d 181, 216-17 (2001).
       Reasonable progress exists when the trial court can conclude that progress being made by a
       parent to comply with directives given for the return of the minor is sufficiently demonstrable
       and of such a quality that the trial court will be able to order the minor returned to parental
       custody in the near future. In re J.H., 2014 IL App (3d) 140185, ¶ 22; In re L.L.S., 218 Ill.
       App. 3d 444, 461 (1991). Failure to make reasonable progress toward the return of the minor
       includes the parent’s failure to substantially fulfill his or her obligations under the service
       plan and correct the conditions that brought the child into care. 750 ILCS 50/1(D)(m) (West
       2014); In re C.N., 196 Ill. 2d at 217.
¶ 18        A determination of parental unfitness involves factual findings and credibility
       assessments that the trial court is in the best position to make; therefore, we will defer to the
       trial court’s factual findings. In re A.W., 231 Ill. 2d 92, 102 (2008); In re Tiffany M., 353 Ill.
       App. 3d 883, 889-90 (2004). The trial court is to consider evidence occurring only during the
       relevant nine-month period mandated in section 1(D)(m) in determining whether a parent has
       made reasonable progress toward the return of the minor. In re J.L., 236 Ill. 2d at 341. The
       State must prove parental unfitness by clear and convincing evidence before the trial court
       may terminate parental rights. 705 ILCS 405/2-29(4) (West 2014); 750 ILCS 50/1(D) (West
       2014); In re C.N., 196 Ill. 2d at 208. A trial court’s finding of parental unfitness will not be
       reversed on appeal unless it is against the manifest weight of the evidence. In re C.N., 196 Ill.
       2d at 208. Only if it is clearly apparent from the record that the trial court should have
       reached the opposite conclusion will the trial court’s decision be against the manifest weight
       of the evidence. Id.; In re Tiffany M., 353 Ill. App. 3d at 890.
¶ 19        In reviewing the record in this case, we cannot say the trial court’s findings of parental
       unfitness based upon the respondent’s failure to make reasonable progress toward the return
       of the minor during the nine-month time period of October 30, 2015, through July 30, 2016,
       was against the manifest weight of the evidence. Testimony of the caseworker regarding the

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       nine-month period showed that respondent failed to substantially fulfill obligations placed on
       her by the service plan and she failed to correct conditions that brought D.T. into care in the
       first place.
¶ 20        Specifically, respondent was to receive a psychiatric evaluation, comply with any
       recommendations, and resume psychiatric services. The psychiatrist who performed the
       evaluation recommended respondent continue counseling as a form of treatment, but
       respondent was unsuccessfully discharged from counseling. The counselor noted that
       respondent had not made any significant progress during her time in counseling and did not
       appear to be stable or to be making good choices. Additionally, while respondent was
       incarcerated in Chicago, she failed to meet the obligations placed on her by the court, which
       frustrated attempts to increase visitation and to further evaluate respondent’s parenting
       abilities. See In re J.L., 236 Ill. 2d at 342-43 (it is well-settled that a respondent’s
       incarceration during the relevant nine-month period for demonstrating reasonable progress
       will not excuse lack of progress and will not toll the relevant time period). Further, the
       service plan required respondent to complete two random drug drops per month, but she
       missed multiple drug drops and failed her drug drop on February 3, 2016. Also, at the end of
       the relevant nine-month period, respondent gave birth to a child whose umbilical cord tested
       positive for PCP. Thus, the trial court’s finding that respondent failed to make reasonable
       progress during the specified nine-month period was not against the manifest weight of the
       evidence.

¶ 21                                            II. Due Process
¶ 22       Additionally, respondent argues that she was allowed to believe that she was progressing
       towards the goal of reunification when in actuality the State placed her in a position of
       assured failure because at no time during the relevant period was she referred to substance
       abuse treatment despite evidence of her drug problems. In support of her argument,
       respondent cites In re O.S., 364 Ill. App. 3d 628, 632 (2006), in which the trial court had
       ordered the foster parents, the biological mother, and O.S.’s half-sisters to inform O.S. that
       the woman he was visiting was “Jenny” instead of his mother. Consequently, when the best
       interest hearing took place, O.S. was found to be more attached to his foster parents than his
       biological mother. Id. at 633. On appeal in O.S., the appellate court found the trial court’s
       actions led the mother to believe that she was progressing towards the goal of reunification
       when, in fact, the arrangement ensured her failure of the best interest test and made the best
       interest hearing a futile gesture in violation of due process. Id. at 638.
¶ 23       “One of the fundamental rights protected under the fourteenth amendment is the right of
       parents to make decisions concerning the care, custody, and control of their children without
       unwarranted state intrusion.” Wickham v. Byrne, 199 Ill. 2d 309, 316 (2002). The State’s
       interference with fundamental parental childrearing rights is justified in limited instances in
       order to protect the health, safety, and welfare of children. Id. at 317. The due process clause
       of the United States Constitution provides heightened protection against government
       interference with fundamental rights of parents. Id. at 316. Due process in the context of
       interference with parental rights is achieved by compliance with the provisions of the
       Juvenile Court Act and fundamental fairness. In re O.S., 364 Ill. App. 3d at 638.
¶ 24       In this case, the trial court’s actions did not predetermine the outcome of the best interest
       hearing or lead respondent to believe that she was progressing towards reunification with her

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       child. As part of the service plan, respondent was to complete a substance abuse assessment.
       Based on her own self-reporting, respondent was deemed to not require substance abuse
       treatment, essentially ensuring she would not receive treatment. Additionally, trial court’s
       changes of the permanency goals indicated respondent was not progressing toward
       reunification. Thus, we reject respondent’s contention that there was a violation of due
       process that tainted the constitutionality of the termination of her parental rights.
¶ 25       We, therefore, affirm the trial court’s finding that respondent was unfit pursuant to
       section 1(D)(m)(ii) of the Adoption Act. See 750 ILCS 50/1(D)(m)(ii) (West 2014). We
       acknowledge the State’s emergency motion to strike portions of the respondent’s brief that
       referenced testimony presented at the permanency review hearing of February 9, 2016, of
       which the State argues the trial court had not taken judicial notice. However, we find it
       unnecessary to address the State’s motion given our disposition.

¶ 26                                       CONCLUSION
¶ 27      For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.

¶ 28      Affirmed.




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