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In re Z.M.

Court of Appeals of Illinois, Third District

June 21, 2019

In re Z.M., a Minor
v.
Donald W., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 16-JA-42 The Honorable Paula A. Gomora, Judge, presiding.

          CARTER JUSTICE delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion.

          OPINION

          CARTER JUSTICE.

         ¶ 1 The respondent, Donald W., appeals from the circuit court's order terminating his parental rights as to his minor daughter, Z.M. On appeal, the respondent argues that (1) his right to due process was violated throughout the proceedings terminating his parental rights, (2) the trial court's finding that he was an unfit parent was against the manifest weight of the evidence, and (3) the trial court's finding that it was in Z.M.'s best interest to terminate his parental rights was against the manifest weight of the evidence. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On March 22, 2016, the State filed a petition alleging that Z.M., who was almost two years old, was a neglected minor pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b) (West 2016)) in that her environment was injurious to her welfare. On the same day, a shelter care hearing took place.

         ¶ 4 A. Shelter Care Hearing

         ¶ 5 At the shelter care hearing on March 22, 2016, Minnie Carr, a child protection specialist with the Department of Children Family Services (DCFS), testified that on March 20, 2016, she investigated a report of a domestic dispute at the apartment where Z.M. resided in Rockdale, Illinois. A police officer told Carr that the apartment had "reeked of marijuana upon his entry" and that respondent had called the police because someone had pulled a knife on him. Z.M.'s mother was not at the apartment when Carr arrived. At the time of the incident, respondent had not yet established paternity regarding Z.M.

         ¶ 6 Carr testified that respondent told her that, when he awoke that morning, Z.M.'s mother and the cousin of Z.M.'s mother were in the living room smoking marijuana and he confronted them. According to respondent, he was going to remove Z.M. from the home, but a knife was pulled on him and he called police. Respondent indicated that he lived in the apartment and that he has had custody of Z.M. for the past 1½ years. Respondent later gave Carr an address for where he actually resides in Chicago, Illinois. Respondent could not participate in a safety plan for Z.M. because his paternity of Z.M. had not been established.

         ¶ 7 Carr spoke with Ariel, the cousin of Z.M.'s mother. Ariel indicated that she lived in the apartment but Z.M.'s mother did not live in the apartment. Another cousin of Z.M.'s mother- Yolanda-indicated that respondent did not live in the apartment but he was allowed to visit Z.M. whenever he wanted and he sometimes spent the night. Ariel and her children lived in the apartment, and Yolanda was in the process of moving into the apartment. Yolanda showed Carr a letter from Z.M.'s mother granting Yolanda permission to care for Z.M. until further notice. Carr also spoke with Z.M.'s mother, who indicated she was unsure if respondent was the father of Z.M.

         ¶ 8 The trial court found probable cause to believe that Z.M. was neglected due to an injurious environment. The factual basis for the trial court's finding was that a domestic dispute took place between Z.M.'s mother and respondent at 4 a.m. after respondent attempted to remove Z.M., Ariel pulled a knife on respondent, and the apartment reeked of marijuana. The trial court also noted that respondent had not established paternity. The trial court placed Z.M. in shelter care and reiterated that the basis of its finding was "the domestic dispute between the parents, smoking of marijuana, and the natural father not establishing paternity of the minor." The trial court ordered that Z.M. be placed in the temporary custody of DCFS and admonished respondent and Z.M.'s mother to fully cooperate with DCFS to correct the conditions that required Z.M. to be removed or they would risk the termination of their parental rights.

         ¶ 9 The trial court also ordered respondent to submit to a paternity test. The results of the paternity test confirmed respondent's paternity of Z.M.

         ¶ 10 B. Adjudication Hearing

         ¶ 11 On July 28, 2016, at the adjudication hearing, the parties stipulated that Z.M.'s environment was injurious to her welfare and that Z.M. was a neglected minor, with the factual basis being that there had been "a domestic disturbance where [her] mother's cousin had pulled a knife on [her] father and the minor was present" and cannabis was being used in the home where the minor was residing. The trial court accepted the stipulation of the parties and found that Z.M. was neglected in that her environment was injurious to her welfare. At that time, a service plan had not yet been established for respondent because he had missed two different appointments for an assessment interview. The trial court ordered respondent to complete the assessment interview with DCFS to determine what services he may need. The trial court admonished respondent as follows:

"So you are going to need to do that fairly quickly because in the next 30 days, we are going to have what is called a disposition, which will determine whether or not [Z.M.] should be made a ward of the Court.
And you will want to go through the service plan with your attorneys so that they can kind of, they can look at the service plan and decide also with you whether or not the services are those that would be beneficial to you so that you regain custody of your child.
This is your child. So you should be as involved as you can be at this point. That means visiting, engaging the services, making an effort, making progress with regard to the services.
If you are not getting the services in a timely fashion, you need to talk with your lawyers. That is what they are here for. They will in turn contact the caseworker and hound her to make sure that you get into the services that you need or let me know about it the next time we get together so I know that you are not getting the services that you need in order to get your child back.
Our intention is not to keep your child in foster care for any longer than we have to. And the 'have to' portion depends on you. Okay. So it is very, very important that you are compliant with the agency, that you do the services that are requested and demonstrate that you are able to safely and appropriately parent your child. That is all we are looking for."

         ¶ 12 The trial court indicated that respondent's interview would determine which services would be necessary so respondent should set that up as soon as possible.

         ¶ 13 C. Dispositional Hearing

         ¶ 14 On October 26, 2016, a dispositional hearing took place. The State entered into evidence the dispositional report, an addendum to the dispositional report, and the service plan dated October 13, 2016, with no objection from respondent. In the dispositional report and addendum, the caseworker indicated that respondent had been attempting to complete substance abuse treatment since March 2016, tested positive for marijuana several times since the beginning of the program, "recently" tested positive for both marijuana and cocaine (in September 2016), and was referred to an intensive outpatient program due to the positive drug screen and missed drug drops. The caseworker noted respondent's substance abuse would have to be continually monitored "due to extensive use since eighteen." Respondent was to complete services of substance abuse treatment, random drug testing, individual psychotherapy, and domestic violence classes. He was also required to maintain adequate housing and income, improve his parenting skills, and maintain an interest in the case. No other evidence was presented. Respondent's attorney noted that respondent was scheduled to complete parenting classes on October 29, 2016, and he was "actively involved" in substance abuse classes, had stable housing in Chicago, Illinois (although he admittedly still needed to provide proof of his housing to the caseworker), had "income from a legal settlement that occurred sometime ago," and was working (although he admittedly still needed to provide his pay stubs to the caseworker).

         ¶ 15 The trial court found that it was in the best interest of Z.M. to make her a ward of the court and found both parents unfit to care for, protect, train, or discipline Z.M., with the factual basis being that "both parents have yet to complete services outlined in their service plan in order for the minor to be returned home safely." The trial court ordered that Z.M. be placed in the custody and guardianship of DCFS, granted visitation at the discretion of DCFS, and set the permanency goal for Z.M. as returning home within 12 months. The trial court did not admonish respondent that he had the right to appeal.

         ¶ 16 D. Proceedings Following the Dispositional Hearing

         ¶ 17 1. Permanency Review Hearings

         ¶ 18 On April 26, 2017, at a permanency review hearing, respondent's attorney indicated that respondent had completed substance abuse treatment (on November 15, 2016), was in individual counseling, and had supervised visits with Z.M. multiple times per week. The guardian ad litem reported that, while respondent had completed his substance abuse program, he "tested dirty a week before he was discharged" and had missed a random drug drop in December 2016. The trial court ordered that drug screens be performed more frequently to determine "with certainty that there is progress." The trial court found respondent had made substantial progress toward the goal of returning Z.M. home and set the permanency goal as returning home within 12 months.

         ¶ 19 On October 3, 2017, at a permanency review hearing, respondent's attorney acknowledged that respondent needed to "work on his drug drops" but indicated that respondent had been visiting Z.M. and had completed individual counseling. Reports from the guardian ad litem and the caseworker indicated that respondent had completed substance abuse treatment on November 15, 2016, failed to appear for a drug screen on June 21, 2017, had a clean drug screen on July 12, 2017, failed to complete a drug screen on August 4, 2017 (due to respondent producing too little urine and then leaving the building even though he had been asked to remain in the building to try again), and failed to appear on September 15, 2017. The result of the drug screen performed on September 27, 2017, was still pending. The caseworker reported that since the last court date respondent had completed individual therapy, was currently addressing domestic violence issues in therapy, and had two-hour supervised visits with Z.M. once per week. Respondent was allowed to visit Z.M. twice per week but failed to indicate another day that he was available to do so each week. On September 20, 2017, respondent had submitted proof of employment at a temporary staffing agency and three check stubs, each for one day of employment. The trial judge stated, "I am going to order that the agency take the case to legal screening, whatever the results are," and changed the permanency goal to "return home pending status."

         ¶ 20 On November 6, 2017, at a status hearing, the caseworker indicated that the legal screening had not yet taken place. The respondent's attorney indicated that she was concerned that respondent had not been receiving any drug testing. The caseworker explained that she had not been requesting drug drops because respondent had tested positive for marijuana at the end of September and was still "dropping dirty" after completing treatment. The trial court indicated that the permanency goal was still returning home "so services should continue."

         ¶ 21 On November 17, 2017, the caseworker confirmed that the matter had passed legal screening. The trial court continued the case until January 3, 2018, for a status on the filing of the termination petition. On January 3, 2018, the assistant state's attorney stated:

"My first nine-month period is from July of 2016 to April of 2017. Dad was satisfactory during that period. I don't have a second nine-month period. My second nine-month period doesn't end until January 28th.
So I can't file anything until after January 28th.
Now, during the second nine-month period, there is no progress; but during the first nine-month period, I've got progress."

         ¶ 22 On February 21, 2018, at a status hearing, the assistant state's attorney confirmed that she had not filed a termination petition because during the first nine-month period respondent had been rated as "satisfactory" and she had been waiting for the completion of the second nine-month period.[1] The assistant State's attorney indicated that she wanted to review the caseworker's report to "determine whether or not there ha[d] been any changes or if [she could] file a petition to terminate." The caseworker reported that respondent had tested positive for marijuana in September 2017 and January 2018. The caseworker indicated that she offered to refer respondent to substance abuse treatment in his area but respondent had indicated that he had a provider and he would contact the caseworker with the information of that provider so that she could provide a referral. Respondent confirmed that he was waiting on "Gateway to call [him] back." The following colloquy ensued:

"[RESPONDENT'S ATTORNEY]: Isn't the agency supposed to be making referrals instead of having dad do it?
THE COURT: Yes.
[ASSISTANT STATE'S ATTORNEY]: I believe she indicated that she was having him call her with places in his area so that she can refer him.
THE COURT: Can't you reach out to DCFS in Chicago to see what services are available near him so he doesn't have to hunt them down. I mean I understand if there are services in his area, but ...

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