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In re Nevaeh R.

Court of Appeals of Illinois, Second District

September 7, 2017

In re NEVAEH R. and MARY R., Minors
v.
Gabriel R., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Winnebago County. Nos. 13-JA-568 13-JA-570 Honorable Francis M. Martinez, Judge, Presiding.

          JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

          OPINION

          ZENOFF JUSTICE.

         ¶ 1 Respondent, Gabriel R., appeals the trial court's orders finding him to be an unfit parent and terminating his parental rights. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Mary R. was born on November 10, 2001, and Nevaeh R. was born on April 28, 2008. On November 13, 2014, the trial court formally adjudicated respondent to be the minors' biological father. Respondent was never married to the minors' mother, Melissa O.[1]

         ¶ 4 On April 21, 2011, respondent was convicted of aggravated driving under the influence (DUI) that resulted in a death. He was sentenced to eight years in the Illinois Department of Corrections. He remained incarcerated at all times relevant to these proceedings. His scheduled release date was May 19, 2017.

         ¶ 5 In December 2013, the minors were taken into care by the Illinois Department of Children and Family Services (DCFS) after they disclosed that Melissa's paramour had touched their bodies while showering with them. On December 9, 2013, DCFS was granted temporary custody and guardianship, and the minors were placed in traditional foster care. On May 13, 2014, the minors were adjudicated neglected. On October 20, 2015, the State filed a motion to terminate the parental rights of both respondent and Melissa. With respect to respondent, the motion alleged that he was an unfit parent in that he failed to maintain a reasonable degree of interest, concern, or responsibility as to the minors' welfare (count I) and that he failed to make reasonable progress toward their return to him within any nine-month period after they were adjudicated neglected (count II). Count II alleged two nine-month periods: May 13, 2014, to February 13, 2015, and August 30, 2014, to May 30, 2015.

         ¶ 6 The unfitness hearing commenced on March 1, 2016, and continued periodically until its conclusion on July 26, 2016. With respect to respondent, the evidence showed the following. Prior to his incarceration in 2010, respondent was fully involved in the children's lives, although he had not lived with them on a daily basis since 2008. After the children went into foster care, respondent maintained contact with DCFS, sent the children cards and letters, attended all scheduled visitation sessions, and requested more frequent visitation. While incarcerated, respondent obtained a degree in cosmetology and an associate's degree in liberal arts. He also completed a parenting class.

         ¶ 7 DCFS conducted an integrated assessment of respondent followed by a service plan mandating him to "complete [a] substance abuse assessment and evaluation/treatment/counseling and follow up with [a] recommendation at the correctional facility in which he is placed" by December 30, 2014.

         ¶ 8 DCFS caseworker Stephanie Sanders testified that respondent did not comply with the recommended services. She testified that respondent had not inquired about a substance-abuse assessment by November or December 2014. Documents in the record establish that, as of May 11, 2015, respondent had not requested or attended substance-abuse classes.[2]

         ¶ 9 On September 2, 2016, the court orally ruled that the State failed to prove count I (failure to maintain interest, concern, or responsibility). As to count II, the court found respondent to be an unfit parent and ruled: "[Respondent] remains incarcerated and, therefore, cannot make progress. Because of [respondent's] incarceration, by law he is no closer today to being placed [sic] because he's incarcerated than he was when the children were taken into care." The court added: "I do find that the State has shown, by clear and convincing evidence, count II of [the] petition."

         ¶ 10 Thereafter, the court proceeded to a best-interest hearing. With respect to respondent, the evidence showed the following. Sanders testified that she had never observed the children interact with respondent, as another agency supervised the visits at the prison where respondent was incarcerated. However, Sanders reviewed the other agency's case notes regarding those visits and received reports from the children. Sanders understood that the children had a bond with respondent and enjoyed their visits with him. Sanders testified that the children and respondent also exchanged cards and letters. On cross-examination, Sanders agreed that the termination of respondent's parental rights could be detrimental to the children. She testified: "I'm not saying that [the children] won't be harmed by a termination. I think they would be harmed either way, if they stay in the foster home or go home to the parents." Sanders added that it was "up to the mercy of the court." She opined that it would be good for the children to continue to have a relationship with their biological parents.[3]

         ¶ 11 Sanders also testified that the children were living with the foster parents and had bonded with that family. Sanders opined that the foster parents were meeting all of the children's needs. According to Sanders, the children were vehement that they did not want to testify, because they did not want to voice a choice between living with the foster parents and going home to their mother. Sanders testified that the children desired finality above all else. In Sanders's opinion, the children would benefit more from the termination of parental rights, because of the support and structure offered by the foster parents. Her sense was that the children felt that they belonged more to the foster family than to their mother. Sanders testified that recently ...


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