The opinion of the court was delivered by: Presiding Justice Quinn
Appeal from the Circuit Court of Cook County Honorable Carol Pearce McCarthy, Judge Presiding.
On July 8, 1998, the State filed a petition to terminate the parental rights of J.A.'s biological parents. The State claimed that Angel Rosado, J.A.'s biological father, was unfit because he was depraved (750 ILCS 50/1(D)(i) (West 1998)) and because he failed to make reasonable efforts or reasonable progress toward unification with J.A. (750 ILCS 50/1(D)(m) (West 1998)). The trial court found that Rosado was not unfit. (J.A.'s biological mother did not appear before the trial court and was found unfit.) The State and guardian ad litem now appeal the ruling of the trial court as to Rosado's fitness.
Minor-respondent J.A. is a girl who was born on September 3, 1992. At the time of J.A.'s birth, her biological mother had been using heroin and cocaine for approximately 11 years. J.A. was born one month premature, weighed slightly more than five pounds, and tested positive for cocaine. The biological mother was indicated by the Illinois Department of Children and Family Services (DCFS) for substance misuse at J.A.'s birth, but she was allowed to retain custody of J.A.
On April 22, 1993, an order of parentage was entered naming Angel Rosado as J.A.'s father, based on the results of a paternity test. Once paternity was established, Rosado began visiting J.A., paying child support, and retaining health insurance for her. At the fitness hearing, Rosado testified that he asked the biological mother to give him custody of J.A. so that the biological mother could get treatment for her drug addiction. However, Rosado testified that the biological mother refused to do so.
On the evening of June 17, 1995, J.A.'s biological mother was arrested for prostitution. The biological mother telephoned Maria Acevedo, J.A.'s maternal grandmother, and asked Acevedo to go to the mother's apartment and pick up J.A. When Acevedo arrived at the biological mother's apartment, the door was locked and she could not get in. In an attempt to gain access to the apartment, Acevedo told the janitor and the landlord of the building that J.A. was in the apartment alone. The landlord notified the police, who arrived approximately two hours later at 12:50 a.m. The police immediately took J.A. to their station and called DCFS.
On June 18, 1995, the biological mother was indicated for inadequate supervision of J.A. and DCFS took protective custody of J.A. On June 19, 1995, J.A. was placed in relative foster care with her maternal grandmother, Maria Acevedo. On June 20, 1995, DCFS was given temporary legal custody of J.A.
DCFS failed to locate Rosado and inform him of the status of his daughter. DCFS and Child Serv documents stated that Rosado's status and whereabouts were unknown. The initial publication notice, on July 14, 1995, also incorrectly listed J.A.'s father as Navarrette Melchor. Proper publication notice to Rosado was not made until September 6, 1995.
Rosado testified that he was initially unaware that J.A. had been removed from her mother's home. He stated that it was not unusual that he was unable to visit J.A. because it was common for her biological mother to refuse to allow him to visit. After a series of visits to J.A.'s biological mother's house with no answer at the door, Rosado went to J.A.'s grandmother's home. It was there that he learned that J.A. was in the temporary legal custody of DCFS and that Acevedo was acting as a foster parent to J.A.
Following notification, Rosado appeared in court on October 6, 1995. J.A. was adjudicated a neglected minor and a ward of the court on November 22, 1995.
An initial service plan dated August 1, 1995, makes no mention of Rosado and contains no service recommendations for him. Rosado's first contact with DCFS apparently occurred sometime shortly before the second administrative case review (ACR), scheduled for December 8, 1995. Baltazar Ordonez, the assigned caseworker from Child Serv, a private agency acting under contract with DCFS to provide services, informed Rosado of the upcoming ACR, but Rosado told Ordonez that he could not attend because of work commitments. The service plan resulting from the ACR contained a task sheet for Rosado, recommending two specific services: a psychological evaluation and a drug and alcohol assessment. The task sheet also recommended generally that Rosado sign releases of information, inform DCFS of his whereabouts, and comply with court orders. In addition, the service plan included a court-ordered visitation schedule for Rosado, which allowed him to visit J.A. once a week.
By February of 1996, Rosado had completed both the psychological evaluation and the substance abuse assessment and had authorized disclosure of the reports to DCFS. While the psychological evaluation stated that Rosado "might benefit from participation in Anger Management and Stress Management classes," neither that evaluation nor the drug and alcohol assessment made recommendations for specific follow-up services. Rosado also submitted to a drug test on January 26, 1996, the results of which were negative. Rosado continued to visit J.A. at least once per week, supervised by the foster mother, until he was incarcerated in October of 1996.
In June of 1996, DCFS conducted a third ACR and prepared a revised service plan. Although Rosado attended the ACR, the June 1996 service plan does not contain a review of Rosado's progress toward achieving the goals set out in the December plan. A revised task sheet for Rosado recommended family counseling, follow-up on recommendations from the previous psychological evaluation, signing of release forms, and cooperation with DCFS.
Though not included specifically in the June 1996 service plan, Ordonez also requested that Rosado complete anger management counseling. It is unclear from the record whether this recommendation was made before or after an alleged encounter in which Ordonez claimed that Rosado made threatening remarks about him to his supervisor. Rosado denied making any threats and the trial court found that Ordonez' testimony regarding the incident was not credible. The first written record of a request for anger management counseling was not made until September 6, 1996, more than nine months after the date of the adjudicatory hearing.
Rosado reported in his answers to interrogatories that, in or around May of 1996, he did in fact attend three sessions of anger management counseling with Edgardo Torres. According to Rosado, Torres told Rosado that his frustration with DCFS was justified and that he did not need to return for more sessions.
In July of 1996, Rosado filed a motion for custody of J.A. The motion was never presented at a hearing, however, because Rosado was convicted of possession of narcotics and incarcerated for approximately five months, beginning on October 7, 1996. As a result of this conviction, Rosado was in prison until March 28, 1997. Rosado's incarceration precluded him from immediately pursuing family counseling at the Midwest Family Resource Center, which Ordonez had recommended sometime after June of 1996. Apparently unaware that Rosado had been to a counselor, Ordonez also continued to recommend anger management counseling. Rosado maintained contact with J.A. during his incarceration through telephone calls. After his release from prison, Rosado resumed visiting J.A. even more often than recommended by DCFS. In 1998, Rosado also began taking parenting classes that were ongoing at the time of trial.
On July 8, 1998, the State filed a petition to terminate the parental rights of both Rosado and J.A.'s biological mother.*fn1 As to Rosado, the initial petition alleged that Rosado was unfit under sections 1(D)(b) and (D)(m) of the Adoption Act (750 ILCS 50/1(D)(b),(D)(m) (West 1998)). Subsequently, the trial court granted the State leave to amend its pleading to additionally allege unfitness under section 1(D)(i) and withdraw its claim under section 1(D)(b). The State thus proceeded to trial with the grounds for unfitness against Rosado based on sections 1(D)(i) ...