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In re I.W.

Court of Appeals of Illinois, Fourth District

February 21, 2018

In re I.W., a Minor
Danial W., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal 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 opinion.



         ¶ 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 court's judgment.

         ¶ 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, Rachel Z.

         ¶ 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 Patton:

"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 returns."

         ¶ 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 intelligence test.

         ¶ 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 group."

         ¶ 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. Osgood testified:

"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 Osgood:

"Q. [O]n page [6] of your psychiatric report, you testified that he was unable to complete standardized testing?
A. That's correct.
Q. So how were you able to administer these tests then?
A. I apologize. I meant psychological and personality standardized testing.
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 ...

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