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People v. M.D.

January 12, 2000


Appeal from the Circuit Court of Kane County. No. 96--JA--85 Honorable Judith M. Brawka, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

Respondent, M.D., appeals the circuit court's judgment that terminated his parental rights to his son, D.D. Respondent contends that the State did not prove by clear and convincing evidence that he failed to make reasonable progress toward the goal of returning the minor to his custody. He also contends that the second ground the court relied on for termination, respondent's "repeated incarceration," does not apply because respondent has been imprisoned only once since the minor's birth.

I. Background

D.D. was born July 17, 1996, with cocaine in his system. He was placed in foster care immediately after his birth and has lived with a foster family ever since. At the time of D.D.'s birth, respondent was in the Kane County jail awaiting trial on charges of home invasion and armed violence. He was later convicted and received concurrent sentences of 10 and 6 years' imprisonment. At the time of trial, he resided at the Sheridan Correctional Center.

Shortly after the minor's birth, his mother, Penny Warren, asked Elizabeth Washington, who subsequently married respondent, to take custody of him. Washington agreed and she and respondent purchased a number of items for the baby. However, the Department of Children and Family Services (DCFS) would not allow Washington to have custody because she had a criminal record.

The State filed a petition against respondent and Warren to have the minor declared neglected because he was born with cocaine in his system. Respondent stipulated to this allegation and Warren was defaulted.

On March 9, 1998, the State filed a petition to terminate the parental rights of respondent and Warren. The petition alleged numerous grounds of unfitness against respondent, including that he failed to make reasonable progress toward the return of the minor within 12 months of the adjudication of neglect (see 750 ILCS 50/1(D)(m) (West 1996)) and that his repeated incarceration would prevent him from discharging his parental duties (see 750 ILCS 50/1(D)(s) (West 1998)).

From the time the case was opened, DCFS made diligent attempts to contact Warren but was unsuccessful. The trial court terminated her parental rights. That order is not challenged on appeal.

At trial, Charles Moon of DCFS testified that he was the first caseworker assigned to the matter. He drafted the initial client service plan in August 1996. No tasks were set for respondent at that time, and it was difficult to establish visitation when he was in the county jail.

The January 1997 service plan required respondent to, among other things, participate in "services available which are appropriate." Respondent was rated "satisfactory" because he had put his name on a waiting list for services.

In the July 1997 service plan, respondent was required specifically to sign up for the substance abuse program at Sheridan, complete a substance abuse assessment and follow its recommendations, sign up for parenting classes, seek out psychological services offered at Sheridan, participate in counseling, and sign appropriate releases. Respondent was rated satisfactory to the extent that he was on a waiting list for substance abuse and parenting programs, but unsatisfactory in that he had not requested psychological services.

The last plan Moon drafted was in January 1998. Respondent was required to complete a drug abuse assessment to determine if he needed treatment, complete parenting classes, and participate in psychological counseling. Respondent was rated unsatisfactory in that he had not obtained a drug abuse assessment. However, the report notes that respondent was not eligible for services at Sheridan until two years from his scheduled release date.

Moon testified that he required parenting classes because the minor had cried during visitations, respondent had not had much contact with his other children as a result of being incarcerated for extended periods, and respondent had set a bad example by his criminal history. Moon said that respondent's mother, P.D., had told him she suspected respondent of using drugs, although respondent denied that he did so. Psychological services were required to determine whether respondent had "behavioral issues," given his criminal history. Moon acknowledged that Sheridan's policy is to give prisoners with earlier release dates preference in receiving services.

Until December 1997, respondent attended visitations with the child except one time when the prison was on lockdown status. Respondent then temporarily discontinued visitations, citing health concerns during the winter.

Steven Stocker supervises correctional counselors at Sheridan. Programs available to inmates there include educational and vocational programs, anger management counseling, substance abuse treatment, and cooperative work training (CWT) classes that cover such matters as parenting, budgets, and job applications. The waiting list for CWT was about two months.

In January 1999, respondent requested enrollment in parenting classes. These classes, however, are not listed separately but are considered part of the CWT program. Respondent was not enrolled in a substance abuse program or anger management classes, apparently because he had not requested them. An inmate generally cannot enroll in the substance abuse program unless his "out-date," or release date, is less than three years away. Darlene Bridge, record supervisor and litigation coordinator at Sheridan, testified that respondent's out-date is June 24, 2001.

Rachel Weiss took over as respondent's caseworker in February 1998. She reviewed the January 1998 service plan in July 1998. She rated respondent unsatisfactory for failing to complete the required services.

Each service plan contained a visitation task. Although visitations were not occurring when Weiss took over the case in February, they resumed in May 1998. Patricia Kozlowski, a case aide for Carlton Health Care, normally supervised the visits. Weiss planned to attend the July 1998 visitation herself because Kozlowski and the foster parents had expressed concern about the minor's behavior during the previous two visits. However, respondent canceled that visit, as well as two scheduled for September, because he objected to Weiss's presence. On appeal, respondent does not dispute that this was the reason the visits were canceled.

A visitation did take place in November. However, D.D. was "difficult to engage." After making some efforts to get the minor to look at him, respondent spent most of the time talking to Weiss and the foster parents. At the December visit, respondent spent very little time with the minor. He spent most of the time talking to the foster parents. Respondent was also trying to communicate non-verbally with another inmate in the room. ...

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