dissenting:
This dissent concerns the appeal of Detra W only.
I agree with the majority that the trial court erred in finding respondent Detra W unfit as to the following grounds: (1) failure to maintain a reasonable degree of interest, care, or concern based on section l(D)(b) of the Adoption Act (750 ILCS 50/l(D)(b) (West 2002)); (2) failure to make reasonable progress based on section 1(D) (m) of the Adoption Act (750 ILCS 50/l(D)(m) (West 2002)); (3) failure to make reasonable efforts based on section l(D)(m) of the Adoption Act (750 ILCS 50/l(D)(m) (West 2002)); and, (4) depravity based on section l(D)(i) of the Adoption Act (750 ILCS 50/l(D)(i) (West 2002)). In each instance, we agree that each of the trial court’s findings was against the manifest weight of the evidence.
Having found the trial court erred in its assessment of the evidence regarding four of the five grounds of parental unfitness the trial court had before it, I cannot agree that on the very same record, the trial court did not also err as to its finding that Detra W was unfit as to the ground of repeated incarceration based on section l(D)(s) of the Act (750 ILCS 50/l(D)(s) (West 2002)). The very same evidence, which the majority persuasively marshals, that compelled us to find error in the trial court’s four other findings of unfitness, compels the same result as to this ground as well. On the record before us, I find the trial court’s ruling of unfitness of Detra W. that her repeated incarceration resulted in precluding her from discharging her parental responsibilities at the time of the unfitness hearing to be against the manifest weight of the evidence.
The crux of the issue before the trial court on this remaining ground of unfitness must be clear: it was not whether Detra W had “repeated incarcerations” but, rather, whether Detra’s repeated incarcerations “prevented [her] from discharging *** her parental responsibilities for the child.” 750 ILCS 50/l(D)(s) (West 2002). The focus of the trial court’s finding must be on Detra W.’s ability to be a mother to Gwynne E at the time of the unfitness hearing.
Because a “proceeding to involuntarily terminate parental rights is a drastic measure” (In re D.D., 196 Ill. 2d at 417), and we have reversed the trial court on four of its five findings of parental unfitness, we must not rely on the principle of review that a trial court’s finding of unfitness is entitled to great deference in assessing the adequacy of the evidence as to this remaining ground. See In re Adoption of Syck, 138 Ill. 2d at 271-72. Rather, we must closely.examine the record to determine whether there is clear and convincing evidence to support the bases the trial court gave for its finding that Detra W was unfit to be a mother to Gwynne P. See In re S.J., 233 Ill. App. 3d 88, 115, 598 N.E.2d 456 (1992).
The trial court in its rulings addressed each of the grounds of unfitness in succession. The trial court first considered each of the four grounds on which we have found the supporting evidence to fall short of the required clear and convincing showing to support a finding of unfitness. The trial court then addressed the ground of repeated incarceration. In its discussion of the evidence as to this ground, the trial court stated, “[n]atural mother has never progressed to unsupervised day visits or unsupervised overnight visits with the minor.” The trial court’s only comment on Detra W.’s parenting skills was that her skills were “limited.”
What the trial court failed to consider in its observation that Detra W. had not progressed to unsupervised visits with Gwynne is the DCFS policy that visits between a minor child and the natural parent may be restricted when a petition to terminate parental rights has been filed.1 The petition to terminate was filed in May 2000, nearly three years before the unfitness hearing. DCFS through its social service agency had restricted Detra W’s visits with Gwynne E to one visit per quarter while she was in custody and one hour per month after her release. In light of this DCFS policy, Detra W. would never have progressed to unsupervised visits in the face of the pending termination petition. Clearly, the trial court, in stating a basis for its finding of unfitness on the ground of repeated incarceration, was under the mistaken belief that Detra W. could have progressed to unsupervised visits had she made sufficient progress. On this faulty assumption rests the trial court’s finding of parental unfitness. The trial court was wrong in finding Detra W an unfit parent based on the lack of progress to unsupervised visits with Gwynne. See In re Perez, 173 Ill. App. 3d 922, 936, 528 N.E.2d 238 (1988) (finding of unfitness against the manifest weight of the evidence where trial court mistakenly believed that any evidence of unfitness must be from date of the adjudicatory hearing and thereafter).
The trial court also found that Detra W had limited parenting skills, without elaborating on how her parenting skills were deficient. As mandated by the service plan, Detra W. successfully completed parenting classes, from which there were no further recommendations. In fact, Detra W. satisfactorily completed every class set out in her service plan, and others not required. Also, Detra W. testified that she cares for her brother’s three children three times per week — cooking for them, bathing them, dressing them, basically being a mother to them. As to the parenting skills demonstrated during her visits with Gwynne E, every visitation between Detra W. and Gwynne E was noted as “appropriate” by the supervising representative of the social service agency. This evidence is directly at odds with the perfunctoiy conclusion of the trial court that Detra W.’s parenting skills were “limited.”
As support for the majority’s determination that the trial court’s finding of unfitness as to this remaining ground “was not against the manifest weight of the evidence,” the majority cites the testimony of the social worker assigned to the child’s case that “neither respondent was able to provide a stable home, financial or emotional support for the first three years of Gwynne E’s young life.” I first note that the trial court made no mention of this testimony in its discussion of the evidence relied upon for its finding of unfitness on the ground of repeated incarceration. Also, the social worker addressed the respondents jointly when she stated that conclusion. At the time of the unfitness hearing, the respondent father was in custody; Detra W was not. However, there is no denying that Detra W was unable to provide for Gwynne, from her birth in June 1999 to March 2002, when Detra was paroled from the Illinois Department of Corrections.2 But by the time of the unfitness hearing in May 2003, much had changed in Detra W’s life.
In May 2003, Detra W had been drug free for nearly four years; she was employed full time; she worked as a “detox specialist” helping others “get off drugs” (this job at Haymarket makes it almost certain that she would not fall into a relapse); she had her own apartment; and she was entrusted with caring for her brother’s three children. The majority’s reliance solely on the period of time Detra W was in custody for its determination that the trial court’s finding was not against the manifest weight of the evidence, without considering the changes Detra W. made in her life from the beginning of her incarceration in 1999 to the date of the unfitness hearing in May 2003, flies in the face of the statutory goal of the Juvenile Court Act of 1987 of “ £preserv[ing] and strengthening] family ties whenever possible.’ ” In re F.S., 322 Ill. App. 3d at 488, quoting 705 ILCS 405/1 — 2(1) (West 1998).
The majority’s unpersuasive application of this ground to the undisputable evidence that Detra W was in custody for the first two years and nine months of Gwynne E’s life is not warranted by the statute and at odds with the cautionary note by our supreme court in the case where it first construed the ground of repeated incarceration. “Under different circumstances, a parent’s repeated incarceration, whether during the lifetime of the child or not, may not prevent the parent from discharging his or her parental duties and, therefore, would not establish that parent’s unfitness.”3 In re D.D., 196 Ill. 2d at 422. Detra W. has presented those “different circumstances.”
I submit that other than the obvious conclusion drawn by the social worker that Detra W could not provide a home for her child while she was in custody, the evidence as to this ground amounts to no more than the evidence on the ground of depravity, which we all agree falls short of the clear and convincing standard. More to the point, the trial court made no specific mention of any “circumstances” that flowed from Detra W’s incarceration that resulted in her diminished capacity to discharge her parental responsibilities as of the time of the unfitness hearing. While the social worker’s conclusion is factually true, it is a legal fiction to ascribe that shortcoming to Detra W. as if she could have “provided a stable home” and financial support while she was in the custody of the Illinois Department of Corrections. Moreover, Detra W. did provide emotional support to her child, although unbeknownst to Gwynne given her tender age at the time, in the form of letter writing, small gifts, the sharing of photos, the cassette of her reading a book for Gwynne, and the kind and gentle words she must have expressed to Gwynne during their brief visits.4
The social worker in presenting her conclusion made no mention of Detra W’s unfailing visits with her child every month from March 2002 to May 2003. Gwynne was two years, nine months old at the time of Detra’s release. Gwynne is now four years, seven months old. Assuming monthly visits were allowed to continue during the pendency of this appeal, Gwynne will have visited with her mother every month for nearly two years. There was no evidence presented that would support a finding that at the time of the unfitness hearing, Detra W. could not provide “financial, physical, and emotional support” for Gwynne. It is almost unnecessary to state, and certainly beyond dispute, that at the time of the hearing, Detra W had a greater “capacity to provide financial, physical, and emotional support for the child” than at any other time in her life, certainly in the last 15 years. There should be no question that Detra W, as the person she is now, provides “a positive, caring role model” for her child. In re 313 Ill. App. 3d at 355. She also serves as a role model for the many other addicted mothers, now in drug treatment, that have neglected a child while in the throes of their drug dependency. Detra W should serve as a model for the efforts required to regain fitness as a parent.
If the trial court had considered the entire period of time between the neglect adjudication and the unfitness hearing, as I believe it is required to do (see, e.g., Adams v. Adams, 103 Ill. App. 3d 126, 430 N.E.2d 744 (1982) (in evaluating fitness of parents or the exercise of parental rights, court must look to the entirety of parents’ conduct over the period in question)), which clearly demonstrates the substantial rehabilitation on the part of Detra W, the finding that Detra W. was unable to carry out her parental responsibilities at the time of the unfitness liearing could not have been made. To require Detra W. to have done more than she accomplished to minimize the impact of her incarceration would in effect have required her to have done the impossible — undo the criminal acts she committed while in the throes of a drug addiction. She overcame her drug addiction, and her criminal acts are now history, history that no longer speaks of the person she is now. Detra W, as the person she is now, is not an unfit parent because of her convictions and incarcerations.
Because I find Detra W. not unfit, I do not reach the issue of the best interest of the minor. See In re D.T., 338 Ill. App. 3d 133 (parental unfitness must first be established before considering child’s best interest). I would remand this cause for a permanency hearing pursuant to section 2 — 28(2) (705 ILCS 405/2 — 28(2) (West 2002)).
The rationale for this policy is that the goal of terminating the parental rights ceases all other services aimed at accomplishing reunification. See In re M.F., 326 Ill. App. 3d 1110, 1117, 762 N.E.2d 701 (2002) (visits reduced to once per month when permanency goal changed to termination).
This position, taken by the State and public guardian as well, that Detra W.’s separation from Gwynne during the child’s first two years and nine months of her life is a sufficient showing to prove unfitness commingles the evidence of the minor’s best interest and the mother’s unfitness. Undoubtedly, separation from Detra W. following Gwynne E’s birth was the best outcome for the child at the time. Gwynne E, a child with special needs, was provided with services that Detra W would not have been able to provide at the time because, at least in part, she was incarcerated. Regardless of this mixing of factors, the evidence nonetheless falls short of clear and convincing that Detra W is an unfit mother as of the day of the unfitness hearing.
Without requiring a trial court to set out the manner in which a natural parent’s repeated incarceration has prevented the parent “from discharging his or her parental duties” would, I fear, make this ground too easy to establish. Cf. In re M.F., 326 Ill. App. 3d 1110 (2000) (two-part analysis required on ground of mental disability: first, focus on mental disability of parent; second, focus on parent’s ability to discharge parental responsibilities). The sad reality is that many children in our foster system are from families with parents in custody because of criminal (almost invariably drug related) convictions. If we are to give substance to our supreme court’s cautionary note that under “different circumstances” repeated incarcerations will not invariably lead to a finding of unfitness, we must make clear that the focus of this ground is on the ability of the parent to carry out parental responsibilities, and not on the indisputable fact that a parent has been incarcerated. This is especially the case where a parent is not in custody at the time of the unfitness hearing. The trial court ought to state in vezy clear terms the relation between the repeated incarceration and the inability to carry out parental responsibilities before a finding of unfitness should be affirmed. Otherwise, parental unfitness becomes a fait accompli upon a simple showing of repeated incarcerations. This is clearly not the intent of the statute as construed by our supreme court. I am concerned this is where affirming a case like this may lead us. I also note Detra W’s case bears little resemblance to the cases on repeated incarceration cited by the majority.
A related point needs to be addressed; although mentioned by the majority, they properly did not highlight it: the special needs of Gwynne P. The record is clear that as of the unfitness hearing, Gwynne P. had progressed to the point where she receives therapy only at the school she attends and only on an “as needed basis.” There is no evidence that Detra W could not meet the “special needs” of Gwynne P. As the majority implicitly recognize in rejecting the trial court’s finding of unfitness as to the ground of reasonable progress, Detra W made “measurable or demonstrable movement toward the goal of reunification.” In re M.C., 201 Ill. App. 3d 792, 798, 559 N.E.2d 236 (1990); see also In re J.A., 316 Ill. App. 3d at 565. But perhaps more importantly, it appears likely the trial court, and the majority here as well, was swayed by the argument that the foster parents met all of Gwynne’s special needs during the first nearly three years of her life. This once again improperly introduces “best interest” considerations which are not to be considered in judging the parental fitness of Detra W In any event, there is no finding by the trial court that at the time of the unfitness hearing, Detra W could not meet the special needs of Gwynne P.