In re N.W. , 2022 IL App (3d) 210546-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210546-UOrder filed March 4, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
In re N.W, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
a Minor ) Will County, Illinois,
)
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) Appeal No. 3-21-0546
) Circuit No. 18-JA-172
v. )
)
NAKIA W., ) Honorable
) Paula A. Gomora,
Respondent-Appellant). ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Justices Holdridge and Hauptman concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: (1) Counsel’s express statement declining to object to admission of service plans
foreclosed plain error review on appeal pursuant to the invited error doctrine; (2)
respondent forfeited review of claim that caseworker’s testimony amounted to
hearsay; and (3) trial court’s determination that respondent was unfit was not
contrary to the manifest weight of the evidence.
¶2 Respondent, Nakia W., appeals following the termination of her parental rights. She
argues that the trial court erred in admitting certain evidence at the unfitness portion of
termination proceedings. She also contends that the court’s determination that she was unfit was
contrary to the manifest weight of the evidence. We affirm.
¶3 I. BACKGROUND
¶4 On October 22, 2018, the State filed a petition for adjudication of wardship in which it
alleged that N.W. (born May 13, 2016) was a neglected minor. In support of that allegation, the
State asserted that respondent, N.W.’s mother, had left N.W. with an unrelated person without a
care plan. Subsequently, the unrelated person was unable to contact respondent. Further, the
State asserted that respondent had failed to cooperate with a Department of Child and Family
Services (DCFS) investigator and with a DCFS care plan for N.W. Following a hearing, the court
placed N.W. in shelter care.
¶5 The court found N.W. to be neglected on February 4, 2019. One month later, following a
dispositional hearing, the court found respondent unfit and adjudicated N.W. a ward of the court.
In the written order, the court found that respondent had “not been compliant with services and
visitation” and had been uncooperative with DCFS.
¶6 Between July 22, 2019, and July 15, 2021, the court conducted five permanency review
hearings. Following four of those five hearings, the trial court found that respondent had not
made reasonable progress toward the goal of N.W.’s return to the home.
¶7 On July 20, 2021, the State filed a petition to terminate respondent’s parental rights. In
the petition, the State alleged three grounds on which respondent was unfit to have a child: (1)
she failed to maintain a reasonable degree of interest, concern, and responsibility as to N.W.’s
welfare; (2) she failed to make reasonable efforts to correct the conditions which were the basis
for N.W.’s removal; and (3) she failed to make reasonable progress toward N.W.’s return in the
nine-month period between September 1, 2020, and June 30, 2021.
2
¶8 A hearing on the State’s termination petition commenced on October 22, 2021.
Respondent was not present at the hearing. Salvador Arias testified that he was the assigned
caseworker from September 2020 through March 2021. Arias generated a service plan for
respondent that required her to complete substance abuse and mental health assessments and
follow any resulting recommendations. She was also required to attend parenting class and
complete a domestic violence program. The service plan also contemplated visitation. Arias
testified that respondent had completed some services prior to his involvement in the case,
including the domestic violence program and parenting classes. Further parenting coaching was
still required.
¶9 After Arias described the requirements set forth in the service plan, the following
exchange ensued:
“[THE STATE]: Mr. Arias, I’m showing you what I have marked as State’s
Exhibit No. 1
Do you recognize this document?
A: Yes, that is the service plan that I did.
Q: Okay. And the plan date is December 17 of 2020; is that right?
A: That’s correct.
Q: Okay. Could you please just briefly thumb through this service plan and look
up when you are finished to let me know that that is a true and accurate copy of
your service plan?
A: Sure. It looks – it looks like what I did.
The State then requested that the service plan be admitted into evidence. Counsel for respondent
stated: “No objection.” The court admitted the evidence but noted that it would only be
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considered “for the purpose of showing what the services were and what the ratings were.” The
court noted that it would not consider any hearsay statements contained within, absent testimony
from Arias.
¶ 10 Arias testified that respondent was “unsatisfactory” in the completion of the service plan.
He also observed that, throughout his time on the case, respondent had never reached out to him
to inquire as to N.W.’s well-being or to otherwise receive updates on N.W. She never sent any
gifts or correspondence to be forwarded to N.W.
¶ 11 Upon questioning from the trial court, Arias testified that visitation between respondent
and N.W. “was very inconsistent and sometimes only lasted a couple minutes at a time.” Because
visitation was supervised by the foster parent, Arias explained, visitation was possible any time
respondent and the foster parent were available. Respondent and N.W. “would do *** phone
calls and FaceTimes and stuff like that and periodically they would meet in person.”
¶ 12 Yaritza Cruz testified that she was the assigned caseworker beginning in March 2021.
When Cruz was assigned to the case, respondent had yet to follow through on the treatment
recommendations following her 2019 substance abuse assessment. Respondent was also to
receive weekly counseling sessions, but Cruz testified that the agency had not received
documentation of that service since late 2019. Respondent also failed to participate in the
recommended parenting coaching.
¶ 13 Cruz testified that respondent was inconsistent in visiting with N.W. Respondent would
call the foster parent approximately once a month, but never made accommodations to see N.W.
Cruz and her supervisor suspended visitation in April 2021 because respondent “didn’t do
drops.” Cruz also observed that respondent never reached out to her to inquire as to N.W.’s well-
4
being. Nor did respondent attend any of N.W.’s routine medical appointments. During the nine-
month period in question, respondent did not complete her recommended services.
¶ 14 Cruz generated a service plan in June 2021. After reviewing a copy provided by the State,
Cruz agreed that it was a true and correct copy of the service plan. The State requested that it be
admitted into evidence as State’s exhibit 2. When the court asked if there was any objection,
counsel for respondent replied: “No.”
¶ 15 The service plans admitted into evidence indicated that DCFS originally became involved
in the case after respondent had made repeated attempts to leave N.W. in the care of others.
Respondent had refused to participate in a safety plan for N.W. She tested positive in October
2018 for benzodiazepines and THC. Respondent “refused to partake in substance abuse
treatment and has refused to get sober from using THC.” Both reports listed respondent’s
residence and employment status as unknown.
¶ 16 The service plan dated December 17, 2020, generated by Arias, indicated that in the
preceding six months, respondent had failed to attend her random drug screenings and had not
completed substance abuse treatment “due to her unwillingness to stop smoking marijuana.”
Respondent had asked the caseworker to “leave her alone.” The plan also indicated that N.W.
had been in the foster care of a relative since July 2020. 1
¶ 17 The service plan indicated that respondent had successfully participated in an integrated
assessment as of February 11, 2019. Respondent had made satisfactory progress in participating
in individual therapy, having commenced counseling on May 20, 2020. The plan also showed
that respondent completed parenting classes on July 19, 2019. The service plan indicated that
1
Cruz would testify at the subsequent best interest hearing that the foster parent was N.W.’s
maternal aunt, respondent’s sister.
5
respondent had completed a domestic violence education program, though the date of that
completion was not included.
¶ 18 Respondent completed a mental health evaluation on October 23, 2019, and was
subsequently recommended for “weekly sessions.” The service place indicated that the most
recent documentation of participation was from November 16, 2019. Respondent refused to
speak with Arias about the mental health action step and had not signed a consent for release of
documentation of her progress.
¶ 19 Respondent completed a substance abuse evaluation on October 22, 2019, but had not
completed any recommended services. Respondent missed five requested drug screenings in the
six-month period preceding the service plan.
¶ 20 As to visitation, the plan noted that visitation was taking place via phone and video
conferencing due to the COVID-19 pandemic. The plan indicated that respondent “engages with
[N.W.] as well as she can considering the quarantine circumstances.” The plan rated respondent
unsatisfactory in her visitation, as she had “missed visitation in the month of November.”
¶ 21 Overall, the service plan rated respondent’s progress as unsatisfactory. Completion of
substance abuse treatment and mental health counseling, and documentation thereof, were
among the continuing needs listed in the plan.
¶ 22 The service plan of June 2, 2021, generated by Cruz, described respondent as having
made “minimal progress” in the six-month reporting period. Specifically, the plan indicated that
respondent “has not completed her substance abuse treatment due to her unwillingness to stop
smoking marijuana, engaged in her mental health recommended treatment after the screening, or
attend[ed] random drug drops.” The narrative evaluation continued: “When caseworker
attempted to speak with [respondent] about her engagement in services or willingness to do so,
6
[respondent] informed caseworker to leave her alone if the agency was not giving back her
children.” The service plan listed six dates on which respondent had failed to appear for a drug
screening, though five of those dates had appeared on the previous service plan.
¶ 23 As to visitation, the service plan stated that respondent was “not engaged in visitation and
was not appropriately engaging in visitation prior to visitation stopping.” The plan also described
respondent’s visitation as “sporadic” prior to the complete cessation of visitation. Finally, the
plan showed that Cruz had “suspended visits because it had been sporadic and inconsistent.”
¶ 24 The June service plan rated respondent’s overall progress as unsatisfactory. It
documented the same shortcomings with respect to substance abuse treatment, counseling, drug
testing, and certain documentation as had the December service plan.
¶ 25 The trial court found that the State had proved by clear and convincing evidence that
respondent had failed to maintain a reasonable degree of interest, concern, or responsibility as to
N.W.’s welfare. The court noted that respondent’s visitation with N.W. had been “sporadic at
best,” despite the fact that visitation had been allowed to be “frequent and liberal.” The court also
found that the State had proven by clear and convincing evidence that respondent had failed to
make reasonable progress toward the return of N.W. in the nine-month period in question.
Finally, the court found that the State had not sufficiently proven that respondent had failed to
make reasonable efforts to correct the conditions that were the basis for N.W.’s removal, noting
that there had been no testimony concerning the original basis for removal.
¶ 26 After proceeding directly to the best interest portion of the termination proceedings, the
court found that it was in N.W.’s best interest that respondent’s parental rights be terminated.
¶ 27 II. ANALYSIS
7
¶ 28 Respondent raises three arguments on appeal. First, she argues that the trial court erred in
admitting the service plans into evidence absent proper foundational testimony. Second, she
contends that the court erred in allowing Cruz to testify regarding information to which she had
no personal knowledge, namely, events predating her involvement in the case. Finally,
respondent asserts that the trial court’s finding that the State proved her unfit on the two stated
grounds was contrary to the manifest weight of the evidence.
¶ 29 A. Service Plans
¶ 30 Section 2-18 of the Juvenile Court Act of 1987 (Act) holds that, in any hearing under that
Act, any business record relating to a minor subject to the proceedings will be admissible “if the
court finds that the document was made in the regular course of the *** agency and that it was in
the regular course of such business to make it, at the time of the act, transaction, occurrence or
event, or within a reasonable time thereafter.” 705 ILCS 405/18-2(4)(a) (West 2020).
“For a writing to be admissible as a business record under section 2-18(4)(a), the
proponent must establish a foundation showing that the writing was (1) made as a
memorandum or record of the event, (2) made in the ordinary course of business,
and (3) made at the time of the event or within a reasonable time thereafter.” In re
A.B., 308 Ill. App. 3d 227, 235 (1999).
¶ 31 Respondent contends that no such foundation was laid for the admission of the service
plans in this case. She concedes that counsel did not object to the admission of those service
plans, but argues that this court should consider the issue under the rubric of plain error.
¶ 32 The State does not argue that sufficient foundation was provided for the admission of the
service plans. Instead, the State asserts that the doctrine of invited error precludes respondent
8
from presently raising this issue after counsel below expressly declined to object to the plans’
admission.
¶ 33 “The rule of invited error or acquiescence is a procedural default sometimes described as
estoppel. [Citation.] Simply stated, a party cannot complain of error which that party induced the
court to make or to which that party consented.” In re Detention of Swope, 213 Ill.2d 210, 217
(2004).
“To allow a defendant to use the exact ruling or action procured in the trial court
as a vehicle for reversal on appeal would offend notions of fair play and
encourage defendants to become duplicitous. [Citation.] It would also deprive the
State of the opportunity to cure the alleged defect.” People v. Harding, 2012 IL
App (2d) 101011, ¶ 17.
“[A] defendant's invitation or agreement to the procedure later challenged on appeal ‘goes
beyond mere waiver.’ ” People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting People v.
Villarreal, 198 Ill. 2d 209, 227 (2001)). Accordingly, a determination that an error was invited
forecloses plain error review. Harding, 2012 IL App (2d) 101011, ¶¶ 2, 22.
¶ 34 In the instant case, counsel for respondent explicitly stated that he had no objection to the
admission of the service plans into evidence. Respondent is therefore estopped from now
claiming that the admission of those plans was error. See In re Detention of Swope, 213 Ill.2d at
217; People v. Farley, 2021 IL App (3d) 190735-U, ¶ 42 (counsel’s express refusal to object
created invited error).
¶ 35 Application of the invited error doctrine is particularly appropriate here, given the
apparent ease with which the State could have cured the defect in question. Both Arias and Cruz
testified that they were the caseworkers assigned to respondent’s case, they authored their
9
respective service plans, and the services plans contemplated the events of the preceding six-
month period. Had counsel for respondent objected on foundational grounds, it seems likely that
Arias and Cruz would have testified that the service plans were compiled in the ordinary course
of business. To not invoke the invited error doctrine in this context would incentivize attorneys
to not object to such technical, easily curable omissions, to provide a potential path to relief on
appeal.
¶ 36 Furthermore, even if we were to not find the doctrine of invited error forecloses plain
error review, we would find that respondent has waived any such argument on appeal. In her
brief, respondent asserts only the reviewing court may apply plain error review in the context of
neglect and termination proceedings. From there, however respondent makes no argument and
provides no legal citation that might explain how or why the instant issue rises to the level of
plain error. Respondent does not explain whether the error is reversible under the first prong or
the second prong of the plain error doctrine; in fact, respondent makes no reference to either
prong. See People v. Thompson, 238 Ill. 2d 598, 613 (2010) (describing the first and second
prongs of the plain error test). It is well settled that “bare contentions in the absence of argument
or citation of authority do not merit consideration on appeal and are deemed waived.” Obert v.
Saville, 253 Ill. App. 3d 677, 682 (1993); see also Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)
(“Points not argued are waived[.]”). Respondent has therefore waived any contention of plain
error.
¶ 37 B. Caseworkers Testimony
¶ 38 Respondent next argues that “the trial court erred by allowing the testimony of the
caseworkers regarding the case file.” It seems that respondent’s argument is comprised of two
distinct claims of error. First, she argues that the court erred in allowing Arias and Cruz to testify
10
regarding the contents of their respective service plans “absent a proper foundation.” Respondent
points to the caseworkers’ testimony that respondent was rated unsatisfactory in each plan as an
example of such improper testimony.
¶ 39 This portion of respondent’s argument appears to be based on the well settled axiom that
“[a] witness is not permitted to testify as to the contents of the document or provide a summary
thereof; the document ‘speaks for itself.’ ” M. Graham, Cleary & Graham's Handbook of Illinois
Evidence § 803.10, at 825 (7th ed.1999). That particular rule, however, is a corollary to the
business records exception—the hearsay exception upon which section 18-2(4)(a) of the Act is
based. In re A.B., 308 Ill. App. 3d at 236. Accordingly, the axiom from Graham’s is inapplicable,
as the caseworkers’ testimony regarding respondent’s progress was not hearsay. Rather, Arias
and Cruz were the assigned caseworkers at the times the respective service plans were authored;
it was Arias and Cruz who assigned the rating to which they each testified, based on their
personal knowledge of respondent’s progress.
¶ 40 To that point, the second portion of respondent’s argument is that Cruz did testify to
events in the case of which she no direct personal knowledge. Respondent provides a single
example of such evidence, the following exchange at the end of Cruz’s testimony:
“[THE STATE:] So, Miss Cruz, I know you have been the caseworker since
March of [2021], but during the time frame from approximately September of
2020 through June 30th of this year being 2021, can you adequately tell the Court
whether [respondent] and [N.W.’s father] have completed all of their
recommended services?
[CRUZ:] No, they did not.”
11
Respondent notes that Cruz became the assigned caseworker in March 2021, such that any
knowledge of respondent’s performance before that time would have been, at most, indirect.
¶ 41 Initially, respondent broadly asserts that this issue should be subject to plain error review.
However, once again, she provides no argument or legal citation in support the notion that this
passage from Cruz’s testimony actually amounts to plain error. Thus, respondent’s plain error
argument must be deemed waived. See Obert, 253 Ill. App. 3d at 682. In turn, appellate review
of the underlying claim has been forfeited by respondent’s failure to preserve it below. People v.
Enoch, 122 Ill. 2d 176, 186 (1988).
¶ 42 In any event, it is not immediately apparent that Cruz testified to information of which
she did not have personal knowledge. As the assigned caseworker beginning in March 2021,
there is no dispute that Cruz would have had direct personal knowledge of the goals respondent
needed to complete. The simple fact that those goals were still outstanding at the time Cruz took
over the case would have made clear to Cruz that respondent had not previously completed them.
¶ 43 Even assuming, arguendo, that the single, four-word answer from Cruz amounts to a
“clear, obvious, and plain error,” (see People v. Mitok, 2018 IL App (3d) 160743, ¶ 8 (describing
the first step of plain error analysis)), that error would not present grounds for relief under either
prong of plain error. First, as detailed below (infra ¶¶ 49-55), the evidence at the termination
hearing was decidedly not closely balanced. See Thompson, 238 Ill. 2d at 613. Second, we are
unaware of any case suggesting that a basic hearsay error rises to the level of structural error. 2
See id. Thus, even if respondent had not waived the issue, we would not find that reversible plain
error had been committed.
2
In fact, our supreme court has held that even where the improper admission of hearsay evidence
amounts to a confrontation clause violation, the error is still not structural. People v. Patterson, 217 Ill. 2d
407, 424 (2005).
12
¶ 44 C. Manifest Weight of the Evidence
¶ 45 Finally, respondent contends that the trial court’s determination that she was unfit was
contrary to the manifest weight of the evidence.
¶ 46 Before terminating parental rights under the Act, the trial court must find by clear and
convincing evidence that the parent is unfit under the definitions provided in the Adoption Act
(750 ILCS 50/1 (West 2020)). 705 ILCS 405/2-29(2) (West 2020). The grounds for unfitness
under the Adoption Act include the three alleged by the State in this case:
“(b) Failure to maintain a reasonable degree of interest, concern or
responsibility as to the child’s welfare [and]
***
(m) Failure by a parent (i) to make reasonable efforts to correct the
conditions that were the basis for the removal of the child from the parent during
any 9-month period following the adjudication of neglected or abused minor ***,
or (ii) to make reasonable progress toward the return of the child to the parent
during any 9-month period following the adjudication of neglected or abused
minor ***.” 750 ILCS 50/1(D)(b), (m) (West 2020).
We note that of those three charged grounds, the trial court made an express finding that the
State had failed to prove the allegation under subsection (m)(i), as no testimony had been offered
establishing the original basis for which N.W. was removed.
¶ 47 The trial court’s determination that the State has demonstrated a parent’s unfitness by
clear and convincing evidence will not be disturbed on review unless it is against the manifest
weight of the evidence. In re D.D., 196 Ill. 2d 405, 417 (2001). “A decision regarding parental
fitness is against the manifest weight of the evidence where the opposite conclusion is clearly the
13
proper result.” Id. Finally, a finding that any one allegation has been proven by clear and
convincing evidence is sufficient to sustain a parental unfitness finding on review. In re D.H.,
323 Ill. App. 3d 1, 9 (2001).
¶ 48 In the instant case, the court’s finding that respondent failed to make reasonable progress
toward the goal of N.W. returning to home over the nine-month period in question was not
contrary to the manifest weight of the evidence.
¶ 49 The service plans, in conjunction with the testimony of Arias and Cruz, showed that
respondent essentially made no such progress between September 2020 and June 2021. When
Arias took over as caseworker, respondent’s goals included participating in substance abuse
treatment, continuing mental health treatment, and parenting coaching. Arias’s service plan
indicated that respondent had been rated unsatisfactory in each of those goals, and the service
plan generated six months later was no different. Respondent made no progress toward those
goals in the nine-month period. Additionally, respondent continued to fail to appear for drug
screenings throughout the period.
¶ 50 To be sure, the record shows that respondent did successfully complete some goals over
the life of the case. Respondent participated in an integrated assessment, completed a domestic
violence program and parenting classes, and had commenced counseling. However, with the
exception of the domestic violence program—for which no date of completion was provided—
all of this progress occurred prior to the nine-month period in question. Indeed, most of it
occurred in 2019, well before September 2020.
¶ 51 With respect to visitation, respondent demonstrated regression over the course of the
nine-month period. Respondent failed to complete any visitation in November 2020, and Arias
noted that her visitations were “very inconsistent and sometimes only lasted a couple minutes at
14
a time.” Still, Arias credited respondent with doing “as well as she can considering the
quarantine circumstances.” In April 2021, visitation was suspended due to respondent’s
noncompliance with the service plan. 3 Moreover, as the trial court observed, visitation was
allowed to be “frequent and liberal,” with respondent allowed to visit with N.W. any time her
schedule and the foster parent’s—respondent’s sister—allowed. Despite this fact, respondent’s
visitation was inconsistent and sporadic.
¶ 52 Respondent argues that much of her lack of progress in the nine months in question can
be attributed to the COVID-19 pandemic, as it was “raging across the [s]tate during the entire
relevant nine-month period.” Specifically, she notes that the electronic visitation made necessary
by the pandemic was especially difficult given that N.W. was four or five years old at the time.
Also, respondent urges that her failure to submit to drug screenings is of lessened significance
because “[t]o what extent that drug testing facilities and treatment providers remained open
during the first year of the pandemic remains unclear.”
¶ 53 Respondent’s argument is entirely speculative. The record contains no evidence that
respondent suffered any difficulties in communicating with or visiting N.W. through telephone
or video conferencing. In fact, Arias indicated that in-person visitation had not been completely
foreclosed. See supra ¶ 11. Further, even if telephonic communication with N.W. was
challenging, the unfettered nature of the visitation would have allowed to respondent to engage
in more frequent, short visits—an option to which she did not avail herself. Moreover, there was
no evidence that drug testing facilities were closed at any point from September 2020 through
3
While Cruz testified that visitation was suspended because of respondent’s refusal to submit to
drug screening, her service plan indicated that it was her unreliable participation in visitation that led to
the suspension. In either event, it is clear that it was respondent’s conduct in contravention of the service
plan that resulted in suspension of visitation.
15
June 2021. With respect to substance abuse treatment, the service plans indicated that respondent
“refused” treatment and “refused to” and was “unwilling[] to” stop smoking marijuana. This
evidence undermines that notion that respondent failed to complete treatment only because of the
purported closure of treatment centers.
¶ 54 In the case of In re J.O., 2021 IL App (3d) 210248, this court reversed the trial court’s
unfitness determination where eight months of the nine-month period in question were the first
eight months of the COVID-19 pandemic. That case contrasts markedly with this one. In J.O.,
the record was replete with evidence indicating precisely how the pandemic had impeded the
mother’s progress. See id. ¶¶ 9-28. This included actual testimony from the caseworker
describing the difficulties inherent in conducting video visitation with two- and three-year-old
children. Id. ¶ 23. Moreover, we observed the particular difficulties inherent in navigating “the
lockdown phase of the pandemic.” Id. ¶ 60. Here, of course, the period in question ranged from
six months to 15 months after the pandemic began. Absent any evidence of the COVID-19
pandemic’s impact on respondent’s progress, we are unable to indulge her speculation.
¶ 55 Between September 2020 and June 2021, respondent made no measurable progress
toward the goal of N.W. returning to home. Accordingly, we cannot find that the trial court’s
determination that she failed to make reasonable progress was contrary to the manifest weight of
the evidence. Because that determination was sufficient to a finding of unfitness, we need not
address the additional basis on which the court found respondent unfit. In re D.H., 323 Ill. App.
3d at 9.
¶ 56 III. CONCLUSION
¶ 57 The judgment of the circuit court of Will County is affirmed.
¶ 58 Affirmed.
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