In re S.E. , 296 Ill. App. 3d 412 ( 1998 )

No. 4--97--0923

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

IN THE INTEREST OF S.E., Jr.,    )  Appeal from the Circuit Court

a Minor                          )  for the 10th Judicial Circuit

                                )  Peoria County, Illinois

(THE PEOPLE OF THE STATE OF      )

ILLINOIS,                        )

                                )

    Petitioner,                 )

                                )

and                              )

                                )

S.E., Jr., a Minor,              )  No. 93--J--431

                                )

    Appellant,                  )

                                )

    v.                          )

                                )

SCOTTIE E., SR.,                 )  Honorable

                                )  Michael E. Brandt

    Respondent-Appellee).       )  Judge, Presiding

_________________________________________________________________

JUSTICE HOLDRIDGE delivered the opinion of the Court:

_________________________________________________________________

    The guardian ad litem for the minor, S.E., Jr., brings this

appeal from the judgment of the circuit court finding that the

State failed to prove by clear and convincing evidence that the

respondent, Scottie E., Sr., was unfit.  We find that the trial

court's judgment is against the manifest weight of the evidence.

Thus, we reverse and remand for further proceedings.

    The record reveals that prior to S.E.'s birth, on August 14,

1995, the respondent was convicted of robbery (720 ILCS 5/18--

1(a) (West 1994)).  He was sentenced to 180 days in the county

jail and 3 years' probation.  The respondent was released from

jail in October 1995.

    When S.E. was born on December 2, 1995, tests revealed

cocaine and barbiturates in his urine.  He was taken into shelter

care three days later.  On January 16, 1996, the respondent was

found unfit because of substance abuse, failure to complete

treatment, past domestic violence and past violent criminal

history.  The trial court ordered the respondent to complete:

(1) a drug and alcohol assessment; (2) a psychological evalua-

tion; (3) parenting classes; and (4) domestic violence counsel-

ing.  In addition, the respondent was told to cooperate with the

Department of Children and Family Services (the Department) and

comply with its service plans.

    On January 19, 1996, the respondent committed retail theft

(720 ILCS 5/16A--3(a) (West 1996)) by taking a bottle of liquor

from a store without paying for it.  He pled guilty on April 19,

1996, pursuant to a plea agreement.  As part of the agreement,

the State promised to recommend a sentence of probation and

agreed not to revoke the probation the respondent was on at the

time for the earlier robbery conviction.  The respondent's

sentencing hearing on the retail theft charge was scheduled for

June 14, 1996.

    On June 7, 1996, the respondent committed an armed robbery

(720 ILCS 5/18--2(a) (West 1996)) when he pulled a knife on a

woman and took money from her.  The respondent was placed in jail

the following day and remained incarcerated throughout the

subsequent proceedings involving S.E.  On July 12, 1996, the

respondent was convicted of armed robbery.  He was transferred to

the Illinois Department of Corrections on July 18, 1996, and

eventually placed at Sheridan Correctional Center on July 23,

1996.

    The State filed a petition to terminate the respondent's

parental rights with regard to S.E. on March 11, 1997.  In the

motion, the State alleged that the respondent had failed to make

reasonable progress toward S.E.'s return.

    A fitness hearing was held on June 4, 1997.  At the hearing,

the respondent testified that between January 19, 1996, and his

incarceration in June 1996, he attended weekly visits with S.E.,

missing only four during this period.  After his incarceration,

however, he had no visits with S.E. until January 1997.  Between

January and June 1997, the respondent had visited with S.E. three

times.

    The respondent testified that prior to his arrest in June

1996, he had made appointments for the various evaluations re-

quired by the January 1996 dispositional order.  However, he had

not attended any of those appointments.  He testified that during

this time he was actively involved in the Black Gangsters and was

using drugs, notably cocaine, on a daily basis.

    Since he had been in prison, the respondent testified, he

had been involved in the Gateway substance abuse program.  He

entered the program on October 24, 1996.  On November 5, 1996, he

was removed from the program for disciplinary reasons, but he was

returned to the program on December 11, 1996.  The respondent

testified that he also attended an anger management counseling

group.  This group also covered issues involved with domestic

violence.  He had taken two parenting classes.  He had inquired

about obtaining a psychological evaluation but had not completed

the evaluation.

    The respondent acknowledged that he had received two disci-

plinary "tickets" while in prison.  One ticket was for a minor

violation.  The respondent had written gang laws and prayers on a

piece of paper in his cell.  The other infraction was a major

violation and resulted in either five or six days of segregation.

Apparently the respondent was ordered to write a 1500-word essay

on neatness, objected to doing it, and approached a prison

official in a threatening manner.

    With regard to his release from prison, the respondent

stated that his "out date" was around February 4, 1999.  At the

time of the hearing, he was eligible for work release but did not

know whether he would be granted that opportunity and did not

know where he would go if he were allowed work release.

    After hearing the evidence presented, the trial court

determined that the State had not proven by a preponderance of

the evidence that the respondent was unfit for failure to make

reasonable progress toward the return of the child.

    The sole issue on appeal is whether the trial court's

determination of the respondent's fitness is against the manifest

weight of the evidence.

    A parent may be declared unfit if he fails to make reason-

able progress toward the return of the child following an adjudi-

cation of neglect, abuse or dependency.  750 ILCS 50/1(D)(m)

(West 1996).  Reasonable progress requires, at a minimum, measur-

able or demonstrable movement toward the goal of the return of

the child to the parent.  In re S.M., 219 Ill. App. 3d 269, 579

N.E.2d 1157 (1991).  The trial court's finding of unfitness will

not be disturbed on review unless it is contrary to the manifest

weight of the evidence.  In re J.B., 198 Ill. App. 3d 495, 555

N.E.2d 1198 (1990).

    Following careful review of the record, it is clear that the

respondent has not made reasonable progress toward S.E.'s return.

His failure to make progress began three days after being told

what he needed to do to regain custody of S.E.  Instead of making

arrangements for a drug and alcohol assessment or a psychological

evaluation, the respondent committed a retail theft.  He partici-

pated in gang activities and, more ominously, used drugs on a

daily basis.  He engaged in these activities while he was on

probation for a prior robbery conviction.

    The respondent's misbehavior did not end there, however.

Though he was apprehended and agreed to plead guilty to the

retail theft charge, the respondent continued to break the law.

He committed armed robbery--a Class X felony--one week before he

was scheduled to be sentenced to probation a second time.  By

repeatedly involving himself in illegal activity, the respondent

evidenced the opposite of reasonable progress.  See In re J.R.Y.,

157 Ill. App. 3d 396, 510 N.E.2d 541 (1987).

    The respondent urges us to accept his contention that he has

made reasonable progress because he has taken steps to rehabili-

tate himself during his time in prison.  We are not persuaded.

While it may be less difficult to leave behind substance abuse

and criminal activity in the controlled environment of prison,

neglected children are not returned to their parents in a con-

trolled environment.  In order to show progress toward the return

of his child, the respondent needed to show that he could func-

tion as a law-abiding citizen and responsible parent in an

unstructured, real world, environment.

    The respondent has not made such a showing.  He has not

shown an ability to refrain from using drugs or alcohol, nor has

he shown an ability to abide by the laws of the state.  He has

not shown an ability to maintain a household in which S.E. could

have a home.  

    The ultimate inquiry for this court is, "How close has the

respondent come to regaining custody of S.E.?"  The answer in

this case is, "No closer than he was in January 1996 when he was

first adjudicated unfit."  Consequently, we hold that the State

has proved by clear and convincing evidence that the respondent

is an unfit parent for failure to make reasonable progress toward

S.E.'s return.

    The judgment of the circuit court of Peoria County is

reversed and the cause remanded for further proceedings consis-

tent with this order.

    Reversed and remanded.

    McCUSKEY, P.J., and SLATER, J., concurring.