In re Nevaeh R.

2017 IL App (2d) 170229
No. 2-17-0229
Opinion filed September 7, 2017
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

In re NEVAEH R. and MARY R., Minors ) Appeal from the Circuit Court
) of Winnebago County.
)
) Nos. 13-JA-568
) 13-JA-570
)
) Honorable
(The People of the State of Illinois, Petitioner- ) Francis M. Martinez,
Appellee, v. Gabriel R., Respondent-Appellant).) Judge, Presiding.
______________________________________________________________________________

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

OPINION

¶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

1
Melissa also gave birth to a third daughter, Alexis R., during her relationship with

respondent. DNA testing revealed that respondent was not Alexis’s biological father.

Consequently, Alexis is not part of this appeal. When we refer to the “children,” the “minors,”
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¶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,

or the “girls” in this opinion, we refer to Mary and Nevaeh.

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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

2
The record shows that respondent participated in 24 hours of drug education

programming from August 25, 2015, to December 22, 2015.

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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 Melissa

had been having unauthorized, unsupervised visits where she tried to influence the children to

decide to return home. The evidence also showed that the children did not want to live with

respondent.

3
Melissa gave birth to a baby, Brandon, during these proceedings. Brandon’s father was

not involved in these proceedings. Brandon was removed from Melissa’s care for a period of

time but was then returned to her. The record shows that the children, particularly Mary, had

bonded with Brandon.

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¶ 12 Alan Nylund, the foster father, testified that the girls had lived with him and his wife for

three years. Nylund testified that Mary had recently become very frustrated with how long the

court proceedings were taking. At first, Mary was unable to read anything except children’s

books, but she progressed to age-appropriate reading skills. Mary got along with her foster

mother, although they clashed at the beginning. Nylund recounted that Nevaeh was six years old

when she came to live with him and his wife, and she had bedwetting incidents. She also

expressed fear of going home. According to Nylund, Nevaeh recently told him that she felt safe

with the foster family. Neveah participated in school activities and was integrated into their

larger, extended family. Nylund testified that he and his wife wanted to adopt the girls

(including Alexis), and he indicated that they were willing to foster the girls’ relationships with

Brandon and their biological parents.

¶ 13 Respondent testified that he and the children were “inseparable” before his incarceration.

He testified that he did with his girls what fathers do with their sons. Respondent testified that

he regretted his crime. After his incarceration, respondent maintained his bond with the children,

although in the last three years he had spent only the equivalent of three full days with them.

Respondent described his jail visits with the children as “beautiful.” The children pretended to

make him food. Respondent testified that he had a difficult conversation with Mary when he

found out that she was posting pictures of herself on the Internet. According to respondent, the

children expressed a desire to continue a relationship with him, even if they were adopted by the

foster parents. Mary told him that she would run away if the court terminated his parental rights.

Respondent testified that he wanted whatever the children decided, whether it was to be adopted,

live with their mother, or live with him. According to respondent, when the children talked to

him about the future, he redirected the conversation.

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¶ 14 On March 8, 2017, in ruling on the children’s best interest, the court found that

respondent had never turned his back on the children, despite his incarceration. However, the

court noted that it had to consider the best interest of the children, not the parent, and it found

that it was not in the children’s best interest to wait for respondent’s release from custody in May

2017 and his completion of services thereafter, which “may or may not” lead to reunification.

The court found that the children engaged with the Nylunds as their own parents and thrived in

the Nylunds’ custody. The court further found that the children were fully integrated into the

Nylunds’ household and that “finality and permanency” were factors that weighed in favor of

placing the children with the Nylunds. The court ruled that it was in the children’s best interest

to terminate parental rights. Respondent filed a timely appeal.

¶ 15 II. ANALYSIS

¶ 16 Respondent first argues that he was found unfit solely because he was incarcerated.

Respondent contends that such a finding is inconsistent with this court’s opinion in In re Keyon

R., 2017 IL App (2d) 160657.

¶ 17 Before addressing respondent’s arguments, we review the principles applicable to

termination proceedings. The Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West

2014)) provides a two-step process for the involuntary termination of parental rights. In re

Deandre D., 405 Ill. App. 3d 945, 952 (2010). First, the State must prove that the parent is unfit

by clear and convincing evidence. Deandre D., 405 Ill. App. 3d at 952. Section 1(D) of the

Adoption Act (750 ILCS 50/1(D) (West 2014)) lists the grounds under which a parent may be

found unfit. In re Tiffany M., 353 Ill. App. 3d 883, 889 (2004). Second, if the court makes a

finding of unfitness, the court then considers whether it is in the best interest of the minor to

terminate parental rights. Deandre D., 405 Ill. App. 3d at 953. The State has the burden of

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proving by a preponderance of the evidence that termination is in the minor’s best interest.

Deandre D., 405 Ill. App. 3d at 953. The appellate court will reverse a finding of unfitness only

where it is against the manifest weight of the evidence, that is, where the opposite conclusion is

clearly evident. Deandre D., 405 Ill. App. 3d at 952. The appellate court will reverse a best-

interest finding only where it is against the manifest weight of the evidence or where the trial

court abused its discretion. Deandre D., 405 Ill. App. 3d at 953.

¶ 18 Section 1(D)(m) of the Adoption Act contains two separate grounds, either of which can

serve as a basis for a finding of unfitness. 750 ILCS 50/1(D)(m) (West 2014). Subsection (i)

deals with a parent’s failure to make “reasonable efforts” to correct the conditions that were the

basis for the minor’s removal; subsection (ii) deals with a parent’s failure to make “reasonable

progress” toward the return of the minor during “any 9-month period” following the adjudication

of neglect. 750 ILCS 50/1(D)(m)(i)-(ii) (West 2014).

¶ 19 In addition, section 1(D)(b) of the Adoption Act provides that a parent’s failure to

maintain a reasonable degree of interest, concern, or responsibility as to the child’s welfare is a

ground for a finding of unfitness. 750 ILCS 50/1(D)(b) (West 2014).

¶ 20 Here, the State alleged in count I of the motion to terminate parental rights that

respondent failed to maintain a reasonable degree of interest, concern, or responsibility as to the

minors’ welfare. Count II alleged that respondent failed to make reasonable progress toward the

minors’ return to him within nine months after they were adjudicated neglected and/or within the

nine-month period from August 30, 2014, to May 30, 2015. The court found that the State failed

to prove the allegations in count I but proved the allegations in count II by clear and convincing

evidence. The court need find a parent unfit under only one of the grounds enumerated in

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section 1(D) of the Adoption Act to proceed to a best-interest hearing. Deandre D., 405 Ill. App.

3d at 953.

¶ 21 In finding that the State proved count II, the court remarked: “[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.” That statement does not accurately reflect the law. The mere fact

of incarceration is not evidence of failure to make reasonable progress. In re J.R.Y., 157 Ill. App.

3d 396, 403 (1987). Nevertheless, incarceration can impede progress toward the goal of

reunification. In re D.D., 309 Ill. App. 3d 581, 589 (2000). “Reasonable progress” is an

objective standard that is not concerned with a parent’s individual efforts and abilities. D.D.,

309 Ill. App. 3d at 589; see In re F.P., 2014 IL App (4th) 140360, ¶ 89 (the respondent failed to

make reasonable progress where her imprisonment prevented the children from being returned to

her in the near future). Time spent in prison is included in the nine-month period during which

reasonable progress must be made. In re J.L., 236 Ill. 2d 329, 443 (2010).

¶ 22 Contrary to respondent’s argument, this court’s recent decision in Keyon R. is not

applicable. In Keyon R., we reversed a finding that the incarcerated respondent was unfit where

DCFS refused to provide him with an integrated assessment or a service plan. Keyon R., 2017 IL

App (2d) 160657, ¶ 30. We held that using the respondent’s lack of compliance with nonexistent

services to terminate his parental rights was paradoxical. Keyon R., 2017 IL App (2d) 160657,

¶ 30. In contrast, respondent in the instant case was assessed for services and was provided with

a service plan.

¶ 23 A service plan is an integral part of the statutory scheme for measuring progress toward

the goal of reunification of the parent and the child. In re C.N., 196 Ill. 2d 181, 215 (2001). A

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service plan must reasonably relate to remedying the conditions that gave rise, or that could give

rise, to any finding of child abuse or neglect. 325 ILCS 5/8.2 (West 2014); C.N., 196 Ill. 2d at

215. Here, respondent was incarcerated for aggravated DUI that resulted in a death. The service

plan’s requirement that respondent undergo an assessment and treatment for substance abuse was

reasonably related to the conditions that could give rise to a finding of neglect.

¶ 24 Respondent seems to argue that the State set him up to fail by picking nine-month periods

that coincided with his incarceration, or that it is unfair to expect incarcerated individuals to meet

the reasonable-progress standard. However, respondent’s incarceration did not prevent him from

complying with the service plan. His failure to apply for the services is what resulted in his

noncompliance. Even though the service plan mandated that respondent complete substance-

abuse assessment and treatment by December 30, 2014, the record shows that he still had not

applied for classes as of May 2015. The appellate court may affirm on any basis appearing in the

record, whether or not the trial court relied on that basis. Benson v. Stafford, 407 Ill. App. 3d

902, 912 (2010). Accordingly, we hold that the trial court’s finding of unfitness is not against

the manifest weight of the evidence.

¶ 25 Respondent next argues that the trial court’s finding that it was in the children’s best

interest to terminate parental rights is against the manifest weight of the evidence. In light of

Sanders’s testimony that, in her opinion, the children would be harmed whether they stayed with

the foster parents or went home to their biological parents, respondent argues that we should

appoint the foster parents as permanent guardians or remand to the trial court for a hearing on

that issue.

¶ 26 Respondent relies on In re M.M., 337 Ill. App. 3d 764 (2003). M.M. is inapposite,

because the trial court there did not find the mother unfit but nevertheless could not return the

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children to the mother, as they had bonded more with the foster parents and resisted returning

home. M.M., 337 Ill. App. 3d at 768-70. The court could not terminate the mother’s parental

rights, so it appointed the foster parents as guardians. M.M., 337 Ill. Ap. 3d at 770. Here, the

trial court found both parents unfit.

¶ 27 The trial court must consider the following factors in making a best-interest

determination: (1) the physical safety and welfare of the child; (2) the development of the child’s

identity; (3) the child’s background and ties; (4) the child’s sense of attachment, including where

the child feels love, attachment, and security; (5) the child’s wishes and long-term goals; (6) the

child’s community ties; (7) the child’s need for permanence, including the need for stability and

continuity of relationships with parent figures, siblings, and other relatives; (8) the uniqueness of

every family and child; (9) the risks attendant to entering and being in substitute care; and

(10) the preferences of the persons available to care for the child. 705 ILCS 405/1-3(4.05) (West

2014). Additionally, the court may consider the nature and length of the child’s relationship with

his or her present caretaker and the effect that a change in placement would have on his or her

emotional and psychological well-being. In re Davon H., 2015 IL App (1st) 150926, ¶ 78. The

trial court need not explicitly reference each of these factors, and this court need not rely on any

basis used by the trial court in affirming its decision. Davon H., 2015 IL App (1st) 150926, ¶ 78.

¶ 28 Here, the record supports the trial court’s determination that termination of respondent’s

parental rights was in the minors’ best interest. The minors were attached to the foster parents,

and Nylund testified that Nevaeh particularly had a relationship with his extended family. The

minors had progressed educationally and emotionally while they were with the Nylunds. The

lack of finality was causing the minors great stress. Further, respondent’s own testimony at the

unfitness hearing showed that he had no home for the minors. Consequently, the trial court’s

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finding that it was in the best interest of Mary and Nevaeh that respondent’s parental rights be

terminated is not against the manifest weight of the evidence.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 31 Affirmed.

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