                                    2018 IL App (4th) 180208 
                           FILED

                                                                                        August 14, 2018

                                          NO. 4-18-0208
                                 Carla Bender

                                                                                     4th District Appellate

                                 IN THE APPELLATE COURT
                                   Court, IL


                                          OF ILLINOIS


                                       FOURTH DISTRICT



 In re A.P.-M., A.P., A.M., and S.J., Minors                 )       Appeal from the
                                                             )       Circuit Court of
 (In re A.M., a Minor                                        )       McLean County
                                                             )       Nos. 16JA7
                                                             )            16JA8
 (The People of the State of Illinois,                       )            16JA9
               Petitioner-Appellee,                          )            16JA10
               v.                                            )
 Angel P.,                                                   )       Honorable

               Respondent-Appellant)).                       )       Kevin P. Fitzgerald, 

                                                             )       Judge Presiding.



               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices Knecht and Turner concurred in the judgment and opinion.

                                            OPINION

¶1             Angel P., respondent, is the mother of S.J. (born April 28, 2003), A.M. (born

April 15, 2008), A.P. (born November 25, 2013), and A.P.-M. (born April 7, 2015). (We note

that this case is titled In re A.P.-M. and bears the trial court No. 16-JA-7. However, this appeal

concerns respondent’s parental rights over A.M. initiated as 16-JA-9.) In June 2016, the trial

court vested custody and guardianship of S.J. in his father and made A.M., A.P., and A.P.-M.

wards of the court and vested guardianship of these children with the Department of Children

and Family Services (DCFS) with the goal to return the children to respondent’s care within 12

months.

¶2             In December 2016, the State filed a petition to terminate respondent’s parental
rights. In February 2017, the trial court found that respondent was an unfit parent. In May 2017,

the court terminated respondent’s parental rights as to S.J., A.P., and A.P.-M. However, because

the court wanted to give A.M.’s father more time to comply with service plans, the court did not

terminate respondent’s parental rights as to A.M. The court changed A.M.’s permanency goal to

return home to her father within 12 months. In August 2017, DCFS stopped providing reunifica­

tion services to respondent. Respondent’s lawyer did not object. In February 2018, the trial court

conducted a second best-interest hearing and terminated respondent’s parental rights as to A.M.

¶3             Respondent appeals, arguing (1) the trial court lacked jurisdiction to enter the se­

cond order terminating her parental rights as to A.M., (2) she was denied due process when

DCFS stopped providing her reunification services, and (3) trial counsel rendered ineffective as­

sistance of counsel. We disagree and affirm.

¶4                                     I. BACKGROUND

¶5                              A. The Adjudication of Wardship

¶6             Respondent is the mother of S.J., A.M., A.P., and A.P.-M. In February 2016, the

State filed a petition for adjudication of wardship, alleging that respondent’s four children were

neglected because respondent had (1) anger-management issues and (2) alcohol-abuse issues

creating an environment that was injurious to their welfare. 705 ILCS 405/2-3(1)(b) (West

2016). In March 2016, the trial court held an adjudicatory hearing. The court adjudicated the

children as neglected minors because respondent stipulated that she had alcohol-abuse issues. Id.

¶7             In June 2016, the trial court vested custody and guardianship of S.J. to S.J.’s fa­

ther. The court made A.M., A.P., and A.P.-M. wards of the court and vested guardianship with

DCFS. The court stated that its goal was to return the children to respondent’s care within 12

months. In July 2016, A.M.’s paternal grandmother and stepgrandfather became A.M.’s foster



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parents.

¶8                          B. The Trial Court’s Fitness Determination

¶9             In December 2016, the State filed a petition to terminate respondent’s parental

rights, alleging that she (1) failed to maintain a reasonable degree of interest, concern, or respon­

sibility as to the minor’s welfare and (2) failed to make reasonable progress toward the goal of

returning her children home. 750 ILCS 50/1(D)(l), (D)(m)(ii) (West 2016). In February 2017, the

trial court found respondent to be an unfit parent after respondent conceded that she failed to

make reasonable progress toward the goal of returning her children home. Id. § 1(D)(m)(ii).

¶ 10                             C. The First Best-Interest Hearing

¶ 11           In May 2017, the trial court conducted the best-interest portion of the termination

hearing. A police officer testified about a March 2017 incident where respondent, who appeared

to be intoxicated, was arrested. Respondent’s domestic-violence counselor testified that respond­

ent relapsed multiple times and appeared in court under the influence of alcohol. A DCFS case­

worker testified that A.M. had been successfully living with her grandmother and

stepgrandfather since July 2016. A.M.’s father testified that he was a forklift operator, that he

loved A.M. very much, and that he had been sober since January 2016.

¶ 12           The trial court terminated respondent’s parental rights as to S.J., A.P., and A.P.­

M. However, the court declined to terminate A.M.’s father’s parental rights, concluding that he

“deserves a chance to be able to demonstrate [his] sobriety.” Because the court concluded that it

was not currently in A.M.’s best interest to terminate her father’s parental rights, the court noted

that “I don’t really see the point of terminating mom’s rights at this point in time as to [A.M.].”

¶ 13           That same day, the trial court entered a revised permanency order. 705 ILCS

405/2-28(2) (West 2016). In the written order, the court concluded that the mother was not mak­



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ing reasonable efforts or reasonable progress toward returning A.M. home. The court further

concluded that the “mother is not a return home option.” The court changed A.M.’s permanency

goal to returning to her father within 12 months.

¶ 14                               D. The Updated Service Plan

¶ 15           In August 2017, DCFS updated its family service plan. In the plan, DCFS stated

that “[A.M.’s] return home goal is specifically to return home to her father. DCFS is not ordered

to provide [respondent] with services at this time. [Respondent] has had little involvement in this

case since her rights were terminated on the other children.” Accordingly, DCFS stopped provid­

ing reunification services to respondent. Respondent’s trial counsel did not object to the termina­

tion of reunification services at the next permanency hearing.

¶ 16                           E. The Second Best-Interest Hearing

¶ 17           In February 2018, the trial court conducted a second best-interest hearing. At the

hearing, A.M.’s father consented to A.M. being adopted by her foster parents. With the father

consenting to adoption, the court addressed whether it was in the best interest of A.M. to termi­

nate respondent’s parental rights. After the presentation of evidence and argument, the court ter­

minated respondent’s parental rights over A.M., reasoning as follows:

                       “[W]hen we were here last May [at the first best-interest hearing], the rea­

               son I didn’t terminate [respondent’s parental] rights at that time is because I

               thought [A.M.’s father] *** had the potential for being a return home [parent].

               *** But had it not been for [A.M.’s father] appearing to be a return-home parent, I

               would have terminated [respondent’s] rights for the same reason I terminated the

               rights as to the other three children.”

¶ 18           This appeal followed.



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¶ 19                                        II. ANALYSIS

¶ 20            Respondent appeals, arguing (1) the trial court lacked jurisdiction to enter the se­

cond order terminating her parental rights as to A.M., (2) she was denied due process when

DCFS stopped providing her reunification services, and (3) trial counsel rendered ineffective as­

sistance of counsel. We address these issues in turn.

¶ 21                              A. The Trial Court’s Jurisdiction

¶ 22            Respondent argues that the trial court lacked jurisdiction to enter the second order

that terminated her parental rights as to A.M. We disagree.

¶ 23                                    1. The Applicable Law

¶ 24            A trial court is divested of jurisdiction over a matter when (1) 30 days have

passed following the entry of a final and appealable order concerning that matter and (2) during

that time, neither party has taken any legally proper action to extend the 30-day period. Leavell v.

Department of Natural Resources, 397 Ill. App. 3d 937, 950, 923 N.E.2d 829, 843 (2009). An

order is final if it terminates the litigation between the parties on the merits and disposes of the

rights of the parties so that if the order is affirmed, the trial court need only execute the order.

MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 23, 52 N.E.3d 378. When determining

whether an order is final, the ultimate issue is whether the order fully and finally disposes of the

rights of the parties to the cause so that no material controverted issue remains to be determined.

Id.

¶ 25                                         2. This Case

¶ 26            The May 2017 order was not a final order because it did not fully dispose of the

rights of the parties. See id. Instead, this order only terminated respondent’s parental rights as to

S.J., A.P., and A.P.-M. The order had not conclusively determined whether A.M.’s father would



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have his parental rights terminated. Accordingly, because this was not a final order, the trial

court had jurisdiction when it issued the February 2018 order that terminated respondent’s paren­

tal rights. See Leavell, 397 Ill. App. 3d at 950.

¶ 27                                       B. Due Process

¶ 28           Respondent argues that DCFS denied her due process of law when it ended reuni­

fication services in August 2017. We disagree.

¶ 29                                   1. The Applicable Law

¶ 30           One of the fundamental rights protected by the due process clause of the four­

teenth amendment is the right of a parent to make decisions regarding the care, custody, and con­

trol of her child without unwarranted state intrusion. In re D.T., 2017 IL App (3d) 170120, ¶ 23,

83 N.E.3d 485; U.S. Const., amend. XIV. The State’s interference with a parent’s rights is justi­

fied in limited instances in order to protect the health, safety, and welfare of the child. D.T., 2017

IL App (3d) 170120, ¶ 23. In the context of proceedings to terminate parental rights, due process

is achieved when the State complies with the provisions of the Juvenile Court Act of 1987 (Juve­

nile Court Act) (705 ILCS 405/1-1 et seq. (West 2016)) and fundamental fairness. In re Al. P.,

2017 IL App (4th) 170435, ¶ 54, 87 N.E.3d 1101.

¶ 31           The Juvenile Court Act, in pertinent part, states as follows:

                       “At the permanency hearing, the court shall determine the future status of

               the child. The court shall set one of the following permanency goals:

                               (A) The minor will be returned home by a specific date within 5

                       months.

                               (B) The 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



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                       the parent or parents is substantial giving particular consideration to the

                       age and individual needs of the minor.

                               (B-1) The minor will be in short-term care with a continued goal to

                       return home pending a status hearing. ***

                                                ***

                       *** Where the court has selected a permanency goal other than (A), (B),

               or (B-1), the Department of Children and Family Services shall not provide fur­

               ther reunification services, but shall provide services consistent with the goal se­

               lected.” 705 ILCS 405/2-28(2) (West 2016).

¶ 32           In In re Robert H., 353 Ill. App. 3d 316, 318-20, 818 N.E.2d 406, 408-09 (2004),

the trial court found the permanency goals detailed in subsections (A) through (B-1) of section 2­

28(2) were not proper because the parents were unable to provide stable housing. Thus, the court

authorized subsidized guardianship with the child’s foster parents. Id. at 319. While affirming

this order, the Second District concluded that “after the trial court selected this goal [of subsi­

dized guardianship], DCFS was statutorily prohibited from providing further reunification ser­

vices [to the parents].” Id. at 320 (citing 705 ILCS 405/2-28(2) (West 2002)).

¶ 33                                        2. This Case

¶ 34           In June 2016, the trial court stated that its goal was to return A.M. to respondent’s

care within 12 months. In May 2017, the trial court terminated respondent’s parental rights as to

three of her four children. Although the court did not then terminate respondent’s parental rights

as to A.M., the court changed A.M.’s permanency goal to returning home to her father within 12

months. In August 2017, DCFS terminated respondent’s reunification services as to A.M.

¶ 35           Because the trial court directed that A.M. would not be returned home to respond­



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ent, DCFS properly terminated her reunification services under the Act. 705 ILCS 405/2-28(2)

(West 2016); Robert H., 353 Ill. App. 3d at 320. Moreover, it was not fundamentally unfair for

DCFS to terminate respondent’s reunification services when A.M. was not scheduled to be reuni­

fied with respondent. Accordingly, DCFS did not violate respondent’s due process rights.

¶ 36                           C. Ineffective Assistance of Counsel

¶ 37           Finally, respondent argues that she received ineffective assistance of counsel be­

cause her attorney failed to object to the termination of reunification services. We disagree.

¶ 38                                  1. The Applicable Law

¶ 39           Illinois courts apply the same standard utilized in criminal cases to determine a

parent’s claim of ineffective assistance of counsel appointed under the Juvenile Court Act. In re

A.J., 323 Ill. App. 3d 607, 611, 753 N.E.2d 551, 553 (2001). To prevail on such a claim, a de­

fendant must show that counsel’s performance was (1) deficient and (2) prejudicial. People v.

Thomas, 2017 IL App (4th) 150815, ¶ 10, 93 N.E.3d 664.

¶ 40           To establish deficient performance, a defendant must show that her attorney’s per­

formance fell below an objective standard of reasonableness. Id. Judicial review of counsel’s

performance is highly deferential. People v. McGath, 2017 IL App (4th) 150608, ¶ 38, 83 N.E.3d

671. A defendant must overcome the strong presumption that the challenged action or inaction

may have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327, 948

N.E.2d 542, 547 (2011). Trial strategy includes decisions such as what matters to object to and

when to object. People v. Ramsey, 2017 IL App (1st) 160977, ¶ 36, 86 N.E.3d 1068.

¶ 41           To establish prejudice, the defendant must show that, but for counsel’s errors,

there is a reasonable probability that the result of the proceeding would have been different. Peo­

ple v. Houston, 229 Ill. 2d 1, 4, 890 N.E.2d 424, 426 (2008). A reasonable probability is defined



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as a probability that undermines confidence in the outcome of the trial. Id. Failure to satisfy ei­

ther prong precludes a finding of ineffective assistance of counsel. People v. Simpson, 2015 IL

116512, ¶ 35, 25 N.E.3d 601.

¶ 42                                         2. This Case

¶ 43           First, respondent fails to demonstrate deficient performance. We have already

concluded that DCFS was statutorily prohibited from providing further reunification services to

respondent after the trial court changed the goal of reunification to the father. 705 ILCS 405/2­

28(2) (West 2016); Robert H., 353 Ill. App. 3d at 320. Accordingly, it was proper for trial coun­

sel not to object to the termination of respondent’s reunification services. See Ill. R. Prof’l Con­

duct (2010) R. 3.1 (eff. Jan. 1, 2010) (“A lawyer shall not *** assert *** an issue therein, unless

there is a basis in law and fact for doing so that is not frivolous ***.”).

¶ 44           Second, respondent fails to demonstrate prejudice. Simply put, even if trial coun­

sel would have objected to the termination of reunification services and requested that the per­

manency goal should be changed to the mother, it is highly unlikely that the trial court would

have granted this request. The record clearly demonstrates that respondent failed to complete re­

unification services when DCFS offered them to her, she continued to have documented alcohol

relapses after DCFS terminated reunification services, and the trial court had recently terminated

respondent’s parental rights as to her other three children. On appeal, respondent does not argue

that she could have complied with reunification services or that she would have been a proper

placement for A.M. Thus, because respondent failed to demonstrate a reasonable probability that

the result of the proceeding would have been different, she has failed to establish prejudice. Hou­

ston, 229 Ill. 2d at 4. As such, we reject her ineffective assistance of counsel argument. Simpson,

2015 IL 116512, ¶ 35.



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¶ 45                           III. CONCLUSION

¶ 46   For the reasons stated, we affirm the trial court’s judgment.

¶ 47   Affirmed.




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