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In re M.I.

Supreme Court of Illinois

December 15, 2016

In re M.I., a Minor
v.
J.B., Appellee. People of the State of Illinois, Appellant,

          JUSTICE GARMAN delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

          OPINION

          GARMAN JUSTICE.

         ¶ 1 The State filed a petition to terminate the parental rights of J.B. for failing to maintain a reasonable degree of interest, concern, or responsibility for his daughter M.I.'s welfare (750 ILCS 50/1(D)(b) (West 2014)) and for failing to make reasonable progress toward the return of M.I. (750 ILCS 50/1(D)(m) (West 2014)). The juvenile court granted the State's petition. The appellate court, in a split decision, reversed and remanded, finding that the trial court's conclusions were against the manifest weight of the evidence. The dissenting justice would have affirmed the judgment of the juvenile court. We allowed the State's petition for leave to appeal, pursuant to Illinois Supreme Court Rule 315 (eff. Jan. 1, 2015), to determine (1) whether the appellate court improperly grafted a willfulness requirement onto subsections (b) and (m) of the Adoption Act (750 ILCS 50/1(D)(b), (m) (West 2014)), (2) whether the juvenile court erred by not expressly stating that it did not consider evidence outside the nine-month period in ruling on subsection (m), (3) whether the juvenile court's ruling was against the manifest weight of the evidence, and (4) whether the State is limited to asserting subsection (p) when petitioning to terminate an intellectually disabled parent's rights. We allowed the Cook County Public Guardian as well as Equip for Equality, the Family Defense Center, the Chicago Coalition for the Homeless, Cabrini Green Legal Aid, and LAF (Legal Assistance Foundation) to file briefs as amici curiae pursuant to Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010).

         ¶ 2 BACKGROUND

         ¶ 3 In July 2010, the Illinois Department of Children and Family Services (DCFS) petitioned for wardship of M.I., a minor, pursuant to section 2-3 of the Juvenile Court Act of 1987 (705 ILCS 405/2-3 (West 2014)). DCFS alleged that M.I.'s mother, E.I., had neglected her and that M.I.'s father, J.B., had an extensive criminal history. The juvenile court granted the petition, finding M.I. to be neglected and also finding both parents, E.I. and J.B., to be fit. On October 13, 2010, the juvenile court directed J.B. to execute any necessary authorizations for release of information requested by DCFS, cooperate with DCFS, obtain a drug and alcohol assessment, submit to random drug testing twice monthly, undergo a psychological examination, and complete a parenting class.

         ¶ 4 In 2011, J.B. underwent a psychological examination per the juvenile court's directive. The examination revealed the following information about J.B. Until he dropped out of his senior year of high school, J.B. was enrolled in special education courses for learning disabilities. J.B. had been unemployed since 2007. J.B. had been incarcerated on eight different occasions for approximately 18 to 19 years in total but had not been incarcerated since 2005. J.B. suffers from bipolar disorder. Also, J.B. admitted to regular marijuana use but indicated that he had been clean for two months. It was further discovered that J.B. lacked his own residence, is functionally illiterate, and possesses an IQ of 58, indicating significant intellectual limitation and mild mental retardation. The psychologist concluded that, from an intellectual and academic perspective, J.B. could not independently parent M.I. and recommended that any interventions and services be modified. Additionally, the psychologist opined that J.B. could benefit from circumscribed interventions because J.B.'s functioning limited his ability to benefit from traditional mental health services involving verbal exchange.

         ¶ 5 On March 21, 2011, the State filed a motion to find J.B. unfit. The State asserted that J.B. did not attend drug testing or participate in a drug and alcohol evaluation and that J.B. refused to provide an address to his caseworker. The State's motion to find J.B. unfit was granted on March 30, 2011. Thereafter, at five different permanency hearings, the juvenile court found that he had failed to make reasonable efforts to achieve the service plan and permanency goal.

         ¶ 6 In May 2013, the juvenile court returned guardianship of M.I. to her mother, E.I., but subsequently found E.I. unfit and appointed DCFS as guardian. On April 30, 2014, the juvenile court found that J.B. had not made reasonable efforts, and the permanency goal was changed to "substitute care pending court decision."

         ¶ 7 In May 2014, the State filed a petition to terminate E.I.'s and J.B.'s parental rights. The State alleged that J.B. had (1) failed to maintain a reasonable degree of interest, concern, or responsibility under subsection (b) and (2) failed to make reasonable progress toward the return of M.I. between August 1, 2013, and May 1, 2014, under subsection (m).

         ¶ 8 At the adjudicatory hearings in December 2014 and February 2015 on the petition for termination of parental rights, the State presented the testimony of Brenda Lee, the assigned caseworker. Lee began working on the case on August 11, 2011. Lee testified that when she had asked J.B. about his drug use, he responded that he had been through classes before and was continuing to use marijuana. J.B. indicated that he would not stop using marijuana.

         ¶ 9 Lee further testified that, as of February 2012, J.B. had not provided DCFS with his address, had indicated that he would not stop using marijuana, and had not completed drug testing. Lee explained that she did not provide J.B. referrals for various services because she did not have J.B.'s contact information but did give J.B. information about community agencies offering such services. Lee initially gave J.B. bus passes to attend visitation and drug testing in Peoria. J.B. somewhat regularly attended visits with M.I. until he missed a week, attended two to three more visits, and then stopped. Lee ceased providing the passes when J.B. began using them for other purposes. Beginning around August 2012, Lee required J.B. to call in before visits with M.I because J.B.'s inconsistent attendance was having a negative impact on M.I. Lee testified that J.B. followed this procedure for a couple of visits.

         ¶ 10 Although Lee was not certain, she did not believe that J.B. visited M.I. between August 15, 2012, and January 30, 2013. She did testify that J.B. did not complete drug testing during that period. As of April 23, 2013, J.B. had not visited M.I. or submitted to drug testing. He did attend permanency hearings. J.B. visited M.I. once in June 2013. J.B. completed an Integrated Assessment interview, and Lee restarted visits after M.I. went into foster care. J.B. visited twice in December 2013 and once in June 2014. A visit was scheduled the week before the December 2014 adjudicatory hearing but had to be rescheduled because M.I. was sick.

         ¶ 11 On cross-examination, Lee admitted that she never inquired about compliance with the Americans with Disabilities Act (ADA) or whether the parenting classes were proper for J.B. given his mental disabilities because J.B. did not follow through on services. Lee did not inquire into DCFS services or guidelines regarding homeless clients, did not provide J.B. any homemaker services, and did not modify his services. Although Lee had conversations with J.B. about restarting psychiatric care at the Human Service Center and had J.B. sign medical releases so Lee could obtain his medical records, J.B. did not follow up with the center.

         ¶ 12 The juvenile court found J.B. unfit under count IV, which alleged that J.B. failed to maintain a reasonable degree of interest, concern, or responsibility under subsection (b). The juvenile court specifically noted J.B.'s disinterest. Additionally, J.B. was found unfit under subsection (m) for failing to make reasonable progress toward reunification. The juvenile court commented that DCFS could not modify services for someone who did not show up. The juvenile court also noted that J.B.'s presence at some visits and attendance at court proceedings indicated that his failure to attend other visitations was a choice rather than a product of J.B.'s low IQ. The juvenile court stated that it had considered J.B.'s IQ and read through the psychological evaluation but nevertheless concluded that J.B. appeared to be disinterested. Specifically, the juvenile court stated:

"It's hard to modify services for a person that's not willing to show up. You know, you didn't maintain contact. You were inconsistent in your visits. You did come to court.
You have one visit from April 2013 to May of 2014. *** They probably could have modified services, but you're not making contact with the caseworker. You met her August 29th, 2011, and would not give her your address. How is she to maintain contact with you or modify services if you were unwilling to give her information to contact you? That's the decision you made.
I don't think it has anything to do with your IQ. As we look at this, you were able to use bus passes for the visits you did make. You were sporadic in your visits, and I think you understand the importance of making visits.
You know, but you made your visits that you saw fit. And you didn't visit on a regular basis. That was your choice. I understand the bus passes were taken away from you, because you were not using them for your visits. You do come to court. I commend you for that. But I think by clear and convincing evidence, you have not maintained a ...

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