People v. Mayfield

NO. 4-10-0925 Opinion Filed 4/14/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: A.L., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Schuyler County
v. ) No. 08JA1
ALYSSA MAYFIELD, )
Respondent-Appellant. ) Honorable
) Alesia A. McMillen,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice McCullough con-
curred in the judgment and opinion.

OPINION

In July 2010, the State filed a petition to terminate

the parental rights of respondent, Alyssa Mayfield, as to her

daughter, A.L. (born February 10, 2007). Following a November

2010 hearing, the trial court found respondent unfit. Immedi-

ately thereafter, the court conducted a best-interest hearing and

determined that terminating respondent's parental rights would be

in A.L.'s best interest.

Respondent appeals, arguing only that the trial court's

fitness findings were against the manifest weight of the evi-

dence. We disagree and affirm.

I. BACKGROUND

A. The Circumstances That Prompted the State's Motion
To Terminate Respondent's Parental Rights

In June 2008, the State filed a petition for adjudica-

tion of wardship, alleging that A.L. was a neglected minor in
that her environment was injurious to her welfare (705 ILCS

405/2-3(1)(b) (West 2008)). The State's petition was based on

(1) respondent's admission that she smoked cannabis on a daily

basis and (2) domestic-violence incidents that occurred between

respondent and A.L.'s biological father, Slade Logan.

Prior to the start of a July 2008 adjudicatory hearing,

the State informed the trial court that an agreement had been

reached. Under the terms of the agreement, respondent admitted

that she had unresolved drug-abuse and domestic-violence issues

as alleged by the State. In exchange, the State (1) moved to

continue its petition for adjudication of wardship and (2)

recommended that respondent regain custody of A.L. subject to (a)

supervision by the Department of Children and Family Services

(DCFS) and (b) respondent's completion of specific requirements.

After confirming that (1) respondent's admission was

knowing and voluntary and (2) a factual basis existed, the trial

court accepted the agreement. Thereafter, the court entered an

agreed order of continuance under supervision, which continued

the State's petition for adjudication of wardship until July

2009. In addition, the court's order mandated that respondent

(1) cooperate with DCFS to include compliance with client-

service-plan goals; (2) keep DCFS informed of her current ad-

dress; (3) undergo evaluations, complete counseling, and sign

releases for information as DCFS requests; (4) submit to random

drug tests as DCFS directs; (5) discontinue any contact with

Logan until further notice; and (6) comply with mental-health,

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substance-abuse, and domestic-violence counseling.

Following a September 2008 review hearing, the trial

court found that respondent failed to comply with the court's

agreed order of continuance under supervision, noting that

despite respondent's compliance with counseling services and

three negative drug tests, respondent admitted that she smoked

cannabis once. After sternly admonishing respondent that contin-

ued drug use would result in removal of A.L. from her custody and

the subsequent termination of her parental rights, the court

determined that respondent should maintain custody of A.L.

In October 2008, the State filed a petition to revoke

continuance under supervision, alleging that respondent violated

the trial court's order by traveling in a car with Logan and

failing to report that contact to her caseworker. At a November

5, 2008, hearing on the State's petition, respondent admitted

that she failed to comply with the court's order. In response,

the court entered an order that (1) granted the State's petition,

(2) appointed DCFS as A.L.'s temporary guardian, and (3) sched-

uled a dispositional hearing.

On November 20, 2008, Susan Pierce, respondent's

caseworker, filed a dispositional hearing report, noting that

respondent (1) was complying with her counseling and client-

service-plan goals, (2) tested negative on a random drug-screen-

ing test, and (3) maintained her visitation schedule with A.L.

The following day, the trial court conducted a dispo-

sitional hearing where Pierce testified consistent with her

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report findings, which she stated were based on conversations she

had with two of respondent's counselors. Pierce recommended that

A.L. return to respondent's care contingent upon her continued

cooperation with services. Prior to announcing its judgment, the

court stated the following:

"And 15 days ago we were in this court-

room, and [the court] heard *** evidence,

unrebutted, about what had been going on.

*** [T]here was an admission to the Petition

for Adjudication of Wardship. But even since

then [respondent was] absolutely ignoring the

orders of the court ***. *** [Respondent]

had used drugs, as well as broken the no-

contact rule ***. And yet 15 days later, all

this has magically changed[?] *** [F]or

that kind of dramatic turnaround in 15 days,

[the court would] think [it would] have a ***

piece of paper with somebody's signature on

it *** explaining to [the court] exactly why

[respondent was] able to make that dramatic

of a change. People's personalities and the

problems they have with their behavior don't

change in 15 days."

Thereafter the court entered a dispositional order, (1) adjudi-

cating A.L. a ward of the court, (2) maintaining DCFS as her

guardian, (3) granting respondent unsupervised, overnight visita-

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tion on the weekends and one weekday, and (4) setting a perma-

nency goal of "return home within 12 months."

At a January 2009 status review hearing, the trial

court considered a status hearing report prepared by a DCFS

contractor that showed respondent reported she was living with a

"boyfriend," which prompted the following exchange:

"THE COURT: ***

You have somebody in your home *** liv-

ing with you[? The court] couldn't get a

straight read from the report, because [the

court does not] think you were *** forthcom-

ing with the [caseworker] about what that

situation is, but you've got somebody in the

home now who's a convicted felon, multiple

times convicted of drug use, and this is a

person that you think is appropriate to have

in your home when [A.L.] is there?

[RESPONDENT]: Apparently not."

Following the hearing, the court entered an order, finding that

respondent was not in compliance with its November 2008

dispositional order despite respondent's counseling participation

and negative drug-screening test results. The court's order

mandated that respondent refrain from having any contact with

Logan, her boyfriend, or "any other member of the opposite sex."

In addition, the court (1) eliminated respondent's overnight

visitation with A.L. and (2) maintained the permanency goal of

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return home within 12 months.

At a May 2009 permanency review hearing, the court

considered evidence, contained in a permanency-review-hearing

report prepared by respondent's caseworker, Frani Estes. Estes'

report noted that in April 2009, respondent violated the court's

November 2008 dispositional order by testing positive for tetra-

hydrocannabinol (THC), a psychoactive substance in cannabis, and

opiates. The court entered a permanency hearing order, finding

that respondent failed to make reasonable progress toward A.L.'s

return home within 12 months. The court's order mandated that

(1) respondent's visitation schedule with A.L. be reduced to two

hours of supervised visitation per week and (2) the current

permanency goal of return home within 12 months remain unchanged.

Later that same month, Estes rated respondent's overall progress

on completing her client-service-plan goals as unsatisfactory

because of respondent's drug relapse.

At an October 2009 permanency review hearing, which was

continued to December 2009, the trial court considered the

permanency-review-hearing report of respondent's new caseworker,

Brandy Bradshaw, which was supported by Bradshaw's testimony. In

particular, Bradshaw noted that respondent failed to (1) comply

with drug and alcohol counseling in that she was not attending

the number of weekly meetings prescribed and (2) provide the

requested documentation confirming her attendance at those

counseling sessions. Bradshaw confirmed that respondent's

visitation with A.L. was "positive and full of activities[,]

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dinners[,] and readings" but recommended that respondent's

visitation remain supervised at two hours per week because she

was not making sufficient progress in completing her substance-

abuse, domestic-violence, and individual counseling.

Respondent testified that she was not attending her

semiweekly drug and alcohol counseling sessions because "several"

sessions were cancelled because fewer than three participants

were present. Respondent also noted that following the October

2009 permanency review hearing, she began completing 75 hours of

outpatient drug and alcohol treatment by attending weekly meet-

ings. Respondent explained that she did not appear for a Novem-

ber 2009 drug-screening test because she had car troubles and the

driving conditions on that night were not good.

Respondent admitted that she (1) had failed to complete

at least two drug-screening tests; (2) had been in contact with

her former male roommate, whom she described as a friend; (3)

entered a drug-treatment facility in April 2009 because she had

been using heroin; and (4) had previously admitted that she found

ways to register a negative result on drug-screening tests

despite using illicit drugs.

Thereafter, the trial court entered a permanency

hearing order, (1) finding that respondent failed to make reason-

able progress toward A.L.'s return home within 12 months, (2)

maintaining the permanency goal of return home within 12 months,

and (3) scheduling a March 2010 permanency review hearing to

consider DCFS' recommendations from its proposed legal screening

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of respondent's case.

At the March 2010 hearing, the trial court considered a

permanency-review-hearing report prepared by respondent's new

caseworker, Julie Thompson, who testified consistent with her

report. In particular, the report and testimony showed that

respondent (1) was unemployed and did not have any transporta-

tion; (2) had not attended any substance-abuse or individual

counseling sessions since the December 2009 permanency review

hearing but had expressed a willingness to do so once her trans-

portation problems were resolved; (3) admitted that she was using

heroin "at least two times per day"; and (4) was not participat-

ing in drug screening because she knew the test results would be

positive. During the hearing, the court ordered respondent to

undergo a drug test. Shortly thereafter, the test result re-

vealed that respondent tested positive for THC and opiates.

Afterward, the court entered a permanency hearing order, changing

the permanency goal to substitute care pending termination of

respondent's parental rights.

In July 2010, the State filed a petition seeking to

terminate the parental rights of respondent, alleging that she

was an unfit parent in that she (1) failed to make reasonable

progress toward the return of A.L. within nine months after the

adjudication of neglect (November 21, 2008, through August 21,

2009) (750 ILCS 50/1(D)(m)(ii) (West 2008)) and (2) failed to

make reasonable progress toward the return of A.L. during any

nine-month period after the adjudication of neglect (750 ILCS

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50/1(D)(m)(iii) (West 2008)), specifically the nine-month period

from August 21, 2009, through May 21, 2010.

B. The Evidence Presented at Respondent's Fitness Hearing

1. The State's Evidence

A summary of the pertinent evidence presented by the

State at respondent's fitness hearing showed the following.

Kari Blickhan, respondent's caseworker from November

2009 through January 2010, characterized the frequency of her

interaction with respondent as "inconsistent." Blickhan met with

respondent three times during her tenure, adding that respon-

dent's "follow-through" was virtually nonexistent. Blickhan

recounted how she scheduled respondent for approximately six

drug-screening tests and received documentation that respondent

(1) completed one test and (2) failed to appear for three tests.

Respondent admitted to Blickhan that she was not complying with

her drug-screening tests because "she knew she would be dirty."

Blickhan acknowledged that during one conversation, respondent

stated that she was "going through some struggles" to explain her

missed drug-screening tests. However, Blickhan stated that

respondent did not mention that she was having trouble getting to

her appointments, mentioning instead that respondent stated that

she had her own vehicle or could find transportation.

Thompson, who, in February 2010, became respondent's

new caseworker, testified that in March 2010, she spoke with

respondent about scheduling services for respondent, who had

stopped making any progress on her client-service-plan goals.

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When Thompson mentioned that respondent would be required to

continue drug testing, respondent informed Thompson that she "was

back to a twice-a-day usage and that there was no point, that she

would be dirty." In May 2010, Thompson rated respondent's

overall progress on completing her client-service-plan goals as

unsatisfactory. Thompson based her rating on respondent's

substance-abuse problems, which respondent admitted to Thompson

were occurring during the six-month evaluation period.

Prior to the close of the State's case, the trial court

complied with the State's request--which was proffered without

objection--to take judicial notice of (1) its pertinent orders,

(2) the permanency-review-hearing reports, and (3) respondent's

client service plans.

2. Respondent's Evidence

Respondent testified (1) about her employment history

from January 2009 through November 2009; (2) about her living

arrangement, which she described consisted of residing in a

mobile home that was owned by her mother; (3) that she trans-

ported herself to her drug-screening tests; (4) that she initi-

ated her individual counseling sessions, which she paid for; and

(5) that she asked her caseworkers for "other treatment" that

they failed to provide. Respondent also admitted that from (1)

January 2009 through April 2009; (2) August 2009 through December

2009; and (3) January 2010 through May 2010, she continued to use

heroin and that she did not have any financial difficulties

acquiring that particular drug.

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 3. The Trial Court's Determination

After considering the arguments of the respective

parties, the following exchange occurred:

"THE COURT: Counsel, can you all agree

on what the date of adjudication was in this

case? Is it November of [20]08?

[THE STATE]: Yes. Once the Court su-

pervision was revoked, that's the adjudica-

tion.

THE COURT: There was actually an adju-

dication. Do you disagree with that date[?]

[RESPONDENT'S COUNSEL]: I believe

that's accurate.

[GUARDIAN AD LITEM]: I believe it is."

After considering the evidence and counsel's arguments,

the trial court entered a written order, finding that respondent

was unfit in that she (1) failed to make reasonable progress

toward the return of A.L. within nine months after the adjudica-

tion of neglect (750 ILCS 50/1(D)(m)(ii) (West 2008)) and (2)

failed to make reasonable progress toward the return of A.L.

during any nine-month period after the end of the initial nine-

month period following the adjudication of neglect (750 ILCS

50/1(D)(m)(iii) (West 2008)).

C. The Trial Court's Determination at
the Best-Interest Hearing

At a best-interest hearing conducted immediately

thereafter, the trial court considered evidence presented by the

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State that A.L. (1) was placed in a single-family home with her

paternal grandparents; (2) had bonded with her grandparents; and

(3) was thriving in a loving environment in which her personal,

health, and emotional needs were being met. Respondent's case-

worker testified that respondent (1) moved to Missouri sometime

after July 2010 and (2) had not expressed any interest in or

asked any questions regarding A.L.'s welfare since her departure.

The caseworker recommended that respondent's parental rights be

terminated based on respondent's inability to correct the condi-

tions that led to DCFS' involvement. (Respondent did not present

any evidence at the best-interest hearing.)

After considering the evidence and counsel's arguments,

the trial court terminated respondent's parental rights.

This appeal followed.

II. THE TRIAL COURT'S FITNESS FINDING

Respondent argues that the trial court's fitness

findings were against the manifest weight of the evidence. We

disagree.

A. The Applicable Statute, Reasonable Progress,
and the Standard of Review

"Parental rights may be involuntarily terminated where

(1) the State proves, by clear and convincing evidence, that a

parent is unfit pursuant to grounds set forth in section 1(D) of

the Adoption Act (750 ILCS 50/1(D) (West 2006)) and (2) the trial

court finds that termination is in the child's best interests."

In re M.R., 393 Ill. App. 3d 609, 613, 912 N.E.2d 337, 341-42

(2009).

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 Section 1(D)(m)(iii) of the Adoption Act provides, in

pertinent part, as follows:

"The grounds of unfitness are any *** of the

following ***:

* * *

(m) Failure by a parent ***

(iii) to make reasonable progress

toward the return of the child to

the parent during any [nine]-month

period after the end of the initial

[nine]-month period following the

adjudication of neglected or abused

minor *** or dependent minor ***."

750 ILCS 50/1(D)(m)(iii) (West

2008).

In In re C.N., 196 Ill. 2d 181, 216-17, 752 N.E.2d

1030, 1050 (2001), the supreme court discussed the following

benchmark for measuring "reasonable progress" under section

1(D)(m) of the Adoption Act:

"[T]he benchmark for measuring a parent's

'progress toward the return of the child'

under section 1(D)(m) of the Adoption Act

encompasses the parent's compliance with the

service plans and the court's directives, in

light of the condition which gave rise to the

removal of the child, and in light of other

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 conditions which later become known and which

would prevent the court from returning cus-

tody of the child to the parent."

In In re L.L.S., 218 Ill. App. 3d 444, 461, 577 N.E.2d

1375, 1387 (1991), this court discussed reasonable progress under

section 1(D)(m) of the Adoption Act and held as follows:

"'Reasonable progress' *** exists when the

[trial] court *** can conclude that *** the

court, in the near future, will be able to

order the child returned to parental custody.

The court will be able to order the child

returned to parental custody in the near

future because, at that point, the parent

will have fully complied with the directives

previously given to the parent ***." (Empha-

ses in original.)

The supreme court's discussion in C.N. regarding the benchmark

for measuring a respondent parent's progress did not alter or

call into question this court's holding in L.L.S. For cases

citing the L.L.S. holding approvingly, see In re Daphnie E., 368

Ill. App. 3d 1052, 1067, 859 N.E.2d 123, 137 (2006); In re Jordan

V., 347 Ill. App. 3d 1057, 1068, 808 N.E.2d 596, 605 (2004); In

re B.W., 309 Ill. App. 3d 493, 499, 721 N.E.2d 1202, 1207 (1999);

and In re K.P., 305 Ill. App. 3d 175, 180, 711 N.E.2d 478, 482

(1999).

"The State must prove parental unfitness by clear and

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convincing evidence, and the trial court's findings must be given

great deference because of its superior opportunity to observe

the witnesses and evaluate their credibility." Jordan V., 347

Ill. App. 3d at 1067, 808 N.E.2d at 604. A reviewing court will

not reverse a trial court's fitness finding unless it was con-

trary to the manifest weight of the evidence, meaning that the

opposite conclusion is clearly evident from a review of the

record. Jordan V., 347 Ill. App. 3d at 1067, 808 N.E.2d at 604.

B. Respondent's Claim That the Trial Court's Fitness Finding
Was Against the Manifest Weight of the Evidence

In her brief to this court, respondent essentially

contends that the evidence presented at her fitness hearing

showed that she had made reasonable progress toward the return of

A.L. Specifically, respondent asserts, in part, that the evi-

dence showed that from August 21, 2009, through May 21, 2010--the

nine months that immediately followed the initial nine-month

period--she received a satisfactory progress rating on the

following client-service-plan goals: (1) cooperate in completing

an alcohol/drug-use assessment, (2) ensure that respondent did

not inflict physical punishment or allow such punishment to be

inflicted upon A.L., (3) demonstrate parenting techniques when

interacting with A.L., and (4) cooperate and comply with DCFS

administrative requirements.

However, despite respondent's claims, the same client

service plan that respondent relies on to tout her satisfactory

ratings on specific client-service-plan goals was rated as

unsatisfactory overall because respondent failed to show reason-

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able progress on the following client-service-plan goals: (1)

comply with drug-screening tests; (2) comply with drug-treatment,

mental-health, and individual counseling recommendations; (3)

stop use of all alcohol and nonprescribed medication; (4) demon-

strate progress on substance-abuse issues by developing a relapse

plan; and (5) comply with court orders regarding client-service-

plan services. In addition, the evidence presented at respon-

dent's fitness hearing belies her argument that the trial court's

fitness finding was against the manifest weight of the evidence.

In this case, the evidence showed that after the

initial nine-month period following the neglect adjudication,

which ended on August 20, 2009, respondent received an overall

unsatisfactory evaluation on two separate client service plans

spanning a time period from November 2009, when Bradshaw rated

her overall progress as unsatisfactory, through May 2010, when

Thompson rated respondent's progress as unsatisfactory--both

based primarily upon respondent's continued failure to address

her increasing illicit drug use. Indeed, respondent readily

admitted at her November 2010 fitness hearing that from August

2009 through May 2010, she continued to use heroin at least two

times per day and that she did not have any financial difficul-

ties acquiring that particular drug.

More important, the evidence did not show that respon-

dent had fully complied with her specific client-service-plan

goals during the relevant nine-month periods such that A.L. could

have been placed in respondent's care in the near future.

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Accordingly, reviewing the evidence pursuant to the applicable

standard of review (as we are required to do), we conclude that

the court's unfitness finding was not against the manifest weight

of the evidence.

Because we have concluded that the trial court's

finding that respondent failed to make reasonable progress toward

the return of her child during any nine-month period after the

end of the initial nine-month period following the adjudication

of neglect (750 ILCS 50/1(D)(m)(iii) (West 2006)) was not con-

trary to the manifest weight of the evidence, we need not con-

sider other findings of parental unfitness. See In re Katrina

R., 364 Ill. App. 3d 834, 842, 847 N.E.2d 586, 593 (2006) (on

review, if sufficient evidence is shown to satisfy any one

statutory ground, we need not consider other findings of parental

unfitness).

III. EPILOGUE

In In re J.G., 298 Ill. App. 3d 617, 628-29, 699 N.E.2d

167, 175-76 (1998), this court rejected the State's argument that

at a fitness hearing under the Adoption Act, a trial court can

take judicial notice of the entire record preceding the parental-

termination hearing without first finding that the contents of

the court file were admissible under the civil rules of evidence.

See In re M.S., 239 Ill. App. 3d 938, 946, 606 N.E.2d 768, 773

(1992) (where this court concluded that the rules of evidence

that normally apply to civil cases also apply to fitness hearings

under the Adoption Act). The rationale for our decision in J.G.

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concerned the severity of the sanction that could be imposed upon

a parent at a fitness proceeding under the Adoption Act--namely,

"the permanent and irrevocable loss of any rights to his or her

child." J.G., 298 Ill. App. 3d at 629, 699 N.E.2d at 175.

However, the same civil rules of evidence that we

deemed applicable to fitness hearings under the Adoption Act do

not apply at either dispositional hearings or permanency review

hearings, which are governed, in part, by sections 2-22(1) and 2-

28(2) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705

ILCS 405/2-22(1), 2-28(2) (West 2008)). In J.G., we explained

this difference in the rules of evidence as follows:

"In the typical termination of rights

case, the file has been open for at least a

year and, frequently, much longer. During

that period, the trial court will have con-

ducted any number of review hearings and DCFS

will have filed various service plans and

reports with the court. These materials

serve a vital function at the review hearings

in assisting the court in determining whether

a child may be returned home and the case

closed, or whether the parent has failed to

progress to the point where reunification is

appropriate. These reports may contain hear-

say. However, trial courts are allowed by

statute at review hearings to consider all

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evidence relevant to determining the ques-

tions of (1) appropriateness of the perma-

nency goal, (2) appropriateness of the ser-

vice plan to achieve this goal, (3) appropri-

ateness of the services contained in the plan

and whether those services have been pro-

vided, (4) whether reasonable efforts have

been made by all parties to the service plan

to achieve the goal, and (5) whether the plan

and goal have been achieved. 705 ILCS

405/2-28(2) (West 1996).

At an unfitness hearing, the trial court

must necessarily take notice of certain facts

relating to how the case has reached the

point at which termination of parental rights

is sought by the State. Thus, the court must

know what steps the parent was supposed to

have taken in order to achieve reunification

with the child and when the clock began to

run during which time the parent was required

to take these steps. However, wholesale

judicial notice of everything that took place

prior to the unfitness hearing is unnecessary

and inappropriate. The rules of evidence in

civil cases apply to adjudicatory hearings

under the Act (705 ILCS 405/2-18(1) (West

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 1996)), with a limited exception for hearsay,

as contained in section 2-18(4)(a) of the Act

(705 ILCS 405/2-18(4)(a) (West 1996))."

J.G., 298 Ill. App. 3d at 628-29, 699 N.E.2d

at 175.

We note that section 2-22(1) of the Juvenile Court Act

provides as follows:

"At the dispositional hearing, the court

shall determine whether it is in the best

interests of the minor and the public that he

be made a ward of the court, and, if he is to

be made a ward of the court, the court shall

determine the proper disposition best serving

the health, safety and interests of the minor

and the public. The court also shall con-

sider the permanency goal set for the minor,

the nature of the service plan for the minor

and the services delivered and to be deliv-

ered under the plan. All evidence helpful in

determining these questions, including oral

and written reports, may be admitted and may

be relied upon to the extent of its probative

value, even though not competent for the

purposes of the adjudicatory hearing." (Em-

phasis added.) 705 ILCS 405/2-22(1) (West

2008).

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 Similarly, section 2-28(2) provides that in selecting

the permanency goal that is in the best interest of the child, a

trial court shall consider the following:

"The court shall consider (i) the perma-

nency goal contained in the service plan,

(ii) the appropriateness of the services

contained in the plan and whether those ser-

vices have been provided, (iii) whether rea-

sonable efforts have been made by all the

parties to the service plan to achieve the

goal, and (iv) whether the plan and goal have

been achieved. All evidence relevant to

determining these questions, including oral

and written reports, may be admitted and may

be relied on to the extent of their probative

value." (Emphasis added.) 705 ILCS 405/2-

28(2) (West 2008).

In J.G., 298 Ill. App. 3d at 629, 699 N.E.2d at 175-76,

this court also stated the following regarding the proper proce-

dure to employ when requesting that a trial court take judicial

notice of evidence at a fitness hearing pursuant to the Adoption

Act:

"If the State wishes the trial court to

take judicial notice of portions of the court

file in a particular unfitness proceeding,

the State can make a proffer to the court of

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 the material requested to be noticed. De-

fense counsel should then be allowed an op-

portunity to object to the State's request.

Such a procedure would serve to focus the

trial court's attention on only those matters

that are admissible under the rules of evi-

dence, as well as make it easier for a re-

viewing court to determine what the trial

court actually relied on in making its deci-

sion of unfitness. Above all, the trial

court's decision as to whether a parent is

unfit should be based only upon evidence

properly admitted at the unfitness hearing."

In In re Ch.W., Nos. 4-09-0925, 4-10-0831 cons., slip op. at 14

(Ill. App. Mar. 10, 2011), this court recently reaffirmed the

above analysis and suggestions.

It is within this aforementioned context that we

provide the portion of the record in this case that occurred, as

we previously noted, immediately prior to the close of the

State's case, at which the parties had the following discussion

regarding the entry of the entire record preceding respondent's

November 2010 fitness hearing:

"[THE STATE]: And [the State believes]

all that's left at this point is [the State

requests] the Court to take judicial notice

of the Court file in [this case] in regard[]

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 to the Court orders and permanency review

reports, and client service plans that have

previously been on file.

THE COURT: Any objections with that,

Counsel?

[RESPONDENT'S COUNSEL]: No.

THE COURT: Then the Court will take

judicial notice of its *** orders in [this

case] and all permanency reports filed

therein."

The prevailing theme of our discussions regarding the

various proceedings under the Juvenile Court Act and Adoption Act

is that when a party requests that the trial court take judicial

notice of the prior record at a fitness hearing, the parties as

well as the court must be clear as to the scope of the judicial

notice requested. This required clarity is important given our

aforementioned discussion regarding the different rules of

evidence that apply--namely, no formal rules of evidence at a

dispositional or permanency review hearing, yet those same rules

of evidence are strictly enforced at fitness hearings.

The record in this case suggests that the State did not

intend to tailor its judicial-notice request to narrow portions

of the prior proceedings that would merely inform the trial court

of the circumstances surrounding how the parties found themselves

at a fitness hearing seeking to terminate respondent's parental

rights. Instead, the record implies that the State was asking

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the court to take judicial notice of the entire record of pro-

ceedings prior to the termination hearing and to give that prior

record substantive effect. However, for the reasons stated in

J.G., the parties need to be explicit as to the scope of the

judicial notice being requested, and the court must be explicit

as to the scope of the judicial notice it is granting. Doing so

would avoid the need for this court to speculate about what

evidence the trial court considered in making its determination

at the fitness hearing.

Here, we will infer, based on the record, that the

State was asking for the trial court to take judicial notice of

the entire record (various reports as well as testimony) preced-

ing the parental-termination hearing and to give that record

substantive effect. We further infer that respondent agreed to

the scope of the judicial notice taken by the court.

We find support for our inference regarding respon-

dent's acquiescence to the broad scope of the trial court's

judicial notice based on the defense respondent chose to employ.

At the November 2010 fitness hearing, respondent sought to call

into question the written statements that her caseworkers made in

support of their respective evaluations that she was not making

reasonable progress in completing her client-service-plan goals.

In particular, respondent sought to discredit Thompson's May 2010

overall unsatisfactory rating on respondent's client service plan

by claiming that Thompson's evaluation was not based on her own

personal knowledge but, instead, on prior contact, notes, and

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discussions with the prior caseworker. Thus, respondent may have

made the strategic decision to allow the trial court to take

broad judicial notice of the client service plan, which was

otherwise inadmissable as substantive evidence, to bolster her

argument in that regard. Similarly, in her brief to this court,

respondent relies on specific responses Bradshaw provided at an

October 7, 2009, permanency review hearing to refute Bradshaw's

claim in her permanency-review-hearing report--both of which

would normally be inadmissible--that respondent was not complying

with her client-service-plan goals.

In concluding, we note that even if the trial court had

not taken judicial notice of the record preceding the parental-

termination hearing, the remaining evidence presented at the

November 2010 fitness hearing supported the court's determina-

tion. Nonetheless, we mention this matter because in future

proceedings, we expect the court and parties to comply with J.G.

See In re A.B., 308 Ill. App. 3d 227, 239, 719 N.E.2d 348, 358

(1999) (where the Second District endorsed this court's analysis

in J.G. and similarly suggested that the better practice is for a

"trial court to require the State to make a proffer of the items

of which it wished the court to take notice").

IV. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

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