from Circuit Court of McLean County No. 16JA35 Honorable
Kevin P. Fitzgerald, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Justice Holder White concurred in the judgment and
1 Respondent, Danial W., appeals the termination of his
parental rights to I.W., born February 8, 2016. He argues (1)
the finding of parental unfitness is against the manifest
weight of the evidence and (2) he was denied effective
assistance by counsel. After reviewing the record, we find no
merit in either claim. Therefore, we affirm the trial
2 I. BACKGROUND
3 A. Why I.W. Came Into Care
4 On May 11, 2016, a friend who had been staying with
respondent and I.W.'s mother, Sarah Z., called the police
after seeing the mother throw three-month-old I.W. into a
crib while having an argument with respondent.
5 I.W. was placed in the custody of the mother's sister,
6 B. Respondent's Counsel Moves for a Continuance on
Behalf of the Mother's Counsel
7 On June 21, 2016, the trial court held a pretrial hearing.
At the beginning of the hearing, the court stated, for the
record, that the mother was present with Assistant Public
Defender Jennifer Patton, who was standing in for Assistant
Public Defender Matthew Koetters. Assistant Public Defender
Robert Keir was present with respondent. The court noted
that, previously, in the shelter-care hearing, which was held
on May 16, 2016, Patton appeared for respondent and Koetters
appeared for the mother. The trial court asked, "You
know, so there's no issue, Ms. Patton was here for Mr.
Keir the last time. Does anyone see that as an issue? Ms.
Patton was here for Mr. Keir with [respondent] the last
time." The attorneys and the court agreed that because
nothing of substance would be addressed in the present
hearing, the temporary switch would pose no problem.
8 For the record, the assistant state's attorney asked
"MS. McLAUCHLAN: Ms. Patton, you haven't given any
legal advice to [the mother], have you?
MS. PATTON: No, Judge. I told her Mr. Koetters was out of the
office and he was asking to continue the case until he
9 C. The Petition To Terminate Parental Rights
10 On March 6, 2017, the State filed a petition for the
termination of parental rights. The State alleged that
respondent met two of the statutory definitions of an
"unfit person": (1) he had failed to maintain a
reasonable degree of interest, concern, or responsibility as
to I.W.'s welfare (see 750 ILCS 50/1(D)(b) (West 2016))
and (2) an intellectual or developmental disability rendered
him unable to discharge his parental responsibilities (see
id. § 1(D)(p)).
11 D. The Mother Voluntarily Surrenders Her Parental Rights
12 On July 25, 2017, after being admonished by the trial
court, Sarah Z. voluntarily surrendered her parental rights
to I.W. and consented to the adoption of I.W.-but only by her
sister, Rachel Z., and her sister's husband, Jessup F.
13 E. Psychological Opinion Testimony in the Fitness Hearing
14 On August 9, 2017, the trial court held a fitness hearing.
For purposes of the hearing, the State's only theory was
that respondent was an "unfit person" within the
meaning of section 1(D)(p) of the Adoption Act (id.
(intellectual or developmental disability)).
15 At the beginning of the hearing, the parties stipulated to
the qualifications of Judy Osgood, a clinical psychologist
the trial court had appointed to evaluate the parents. The
stipulation was that "Osgood's education, training[,
] and experience as a licensed clinical psychologist in the
State of Illinois qualifie[d] her to testify as an expert in
the field of psychology."
16 Osgood testified she met with respondent on October 4,
2016, for 2½ to 3 hours and performed a psychological
evaluation. She determined that because of limitations in his
cognitive abilities and academic skills, she was unable to
administer all the tests she typically would have
administered. Specifically, she was unable to do
"standardized psychological and personality
testing." She was able, however, to administer an
17 The assistant state's attorney handed Osgood a copy of
section 1-116 of the Mental Health and Developmental
Disabilities Code (Code) (405 ILCS 5/1-116 (West 2016)),
which defined an "intellectual disability" as
"significantly subaverage general intellectual
functioning which exists concurrently with impairment in
adaptive behavior and which originates before the age of 18
years." She asked Osgood if respondent had an
"intellectual disability" within the meaning of the
statutory definition. Osgood answered yes.
18 For one thing, respondent had "significantly
subaverage general intellectual functioning."
Id. He had a full-scale intelligence quotient (IQ)
of 67, which was "at the one percentile for his age
19 This intellectual deficit "exist[ed] concurrently
with impairment in adaptive behavior." Id. His
reading and math skills were at the level of kindergarten or
first grade. He had difficulty assimilating and applying
information. Two organizations had observed and documented
his extreme difficulty with learning and reasoning: The Baby
Fold, where he had taken a parenting course, and Chestnut
Health Systems, where he had received domestic-violence
services. In the parenting course, for example, even though
he did everything that was required of him, he ultimately
failed the course because at examination time he was unable
to understand and apply the material that had been taught.
"Not only was he unable to pass the course, [but] he was
really unable to apply the information and benefit from it to
assimilate the information. Based upon the report I received
is that post-test that he still demonstrated a lot of the
risk factors for parenting a child. Difficulties with
empathy, unrealistic expectations of a child, just having
difficulty understanding appropriate forms of intervention
and disciplining a child."
20 Osgood saw an impairment of empathy and judgment in
respondent's decision not to call the police when the
mother threw I.W. into the crib. A friend, rather than he,
had made the call, and he admitted to Osgood that, at the
time, he never had any intention to call the police. The
domestic violence the mother had inflicted on respondent
himself was severe: at various times she had shot him with a
BB gun and paint gun and had stabbed him. Nevertheless, he
remained in a relationship with her, apparently unable to
comprehend the danger to I.W.
21 In Osgood's opinion, any child left in
respondent's care would be at a "high risk of harm,
" and because of his chronic intellectual deficit, his
parental deficiencies were uncorrectable. This was a lifelong
condition. According to an individualized education plan in
his high school records, he was tested at age 16 and was
found at that time to have subaverage intellectual
functioning with impairments in speech and language.
22 Osgood's diagnoses were an intellectual disability,
parent-child relational problems, and personal risk factors.
In her report, which was admitted as petitioner's exhibit
No. 1, she made recommendations calculated to help respondent
function better in society. She believed he was incapable,
however, of benefitting from services and treatment
calculated to improve his performance as a parent.
23 On cross-examination, respondent's attorney asked
"Q. [O]n page  of your psychiatric report, you
testified that he was unable to complete standardized
A. That's correct.
Q. So how were you able to administer these tests then?
A. I apologize. I meant psychological and personality
Q. So that didn't affect how you got these results?
A. Not for the IQ testing."
24 At the conclusion of the evidence and after hearing
arguments, the trial court found, by clear and convincing
evidence, that respondent was an "unfit person"
within the meaning of section 1(D)(p) of the Adoption
Act-that is, he had an inability to discharge parental
responsibilities by reason of intellectual and developmental
disability, and the inability would "extend beyond a
reasonable period of time." The court remarked that
Osgood, "an extremely competent and experienced clinical
psychologist, " had "testified qualifiedly, ***
very clearly, concisely[, ] and in the Court's mind very
convincingly" to that effect.
25 F. The Hearing on I.W.'s Best Interests
26 Immediately after finding respondent to be an "unfit
person, " the trial court heard evidence on the best
interests of I.W. We need not recount all the evidence in the
best-interest hearing because the only argument respondent
makes regarding that hearing is that his attorney failed to
cross-examine the foster parent, Rachel Z., about the
termination of her parental rights to one of her own
children, as revealed in a court order respondent has
included in the appendix of his brief. In the present case,
Rachel Z. testified essentially that I.W. was strongly
attached to her and her husband and was integrated into their
family. She added that they wanted to adopt her even if a
stipend from the State were discontinued.
27 In addition to Rachel Z., the State called the caseworker
from The Baby Fold, Reland Carter, who corroborated
I.W.'s attachment to the foster parents and her
well-being in the foster home. Respondent then testified on
his own behalf.
28 At the conclusion of the best-interests hearing, the trial
court went through the factors in section 1-3(4.05)
of the Juvenile Court Act of 1987 (705 ILCS
405/1-3(4.05) (West 2016)) and found it would be in
the best interests of I.W. to terminate respondent's
parental rights. The court ...