In re Adoption of S.S. , 2023 IL App (3d) 220339-U ( 2023 )

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).
2023 IL App (3d) 220339-UOrder filed January 30, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
In re ADOPTION OF S.S. and A.S., ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Minors ) Kankakee County, Illinois.
)
(Paulla G. and Eduardo O., )
)
Petitioners-Appellants, ) Appeal No. 3-22-0339
) Circuit No. 2019 AD 13
v. )
)
Allen J.S., Jr., ) The Honorable
) Scott N. Sliwinski,
Respondent-Appellee). ) Judge, Presiding.
)
______________________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices McDade and Hettel concurred in the judgment.
______________________________________________________________________________
ORDER
¶1 Held: The trial court’s denial of the petitioners’ petition to terminate the father’s parental
rights and to adopt his children was against the manifest weight of the evidence.
¶2 Petitioners-Appellants, Paulla Grzych (Grzych) and Eduardo Ochoa (Ochoa) filed a
petition to adopt Sophia S. and Ava S., the minor daughters of Respondent-Appellee Allen Smith,
Jr. (Smith) and Grzych’s late sister Elizabeth Grzych (Elizabeth). The petition alleges that it is
in the best interests of the children for Grzych and Ochoa (Grzych’s long-time fiancé) to adopt
the children and for Smith’s parental rights to be terminated. After finding Smith to be an unfit
parent, the trial court held a separate proceeding to determine the best interests of the children.
The trial court found that the termination of Smith’s parental rights would not be in the children’s
best interests, and denied the petition. This appeal followed.
¶3 I. FACTS
¶4 Elizabeth and Smith were married in December 2004 and divorced on May 11, 2015. They
had two biological children together, Sophia S. (Sophia) and Ava S. (Ava). Sophia was born on
January 27, 2011, and Ava was born on November 16, 2012. At the time of the best interest
hearing, Ava was eleven and Sophia was nine.
¶5 Smith has an extensive criminal history and has been incarcerated for a substantial portion
of his life. He has been convicted of several felony offenses, including aggravated arson, unlawful
use of a weapon, theft, and various drug offenses. He has also been convicted of domestic battery
twice, once for slapping Elizabeth two times and once for striking his girlfriend.
¶6 Elizabeth was diagnosed with stage 4 cervical cancer in May of 2015. Smith was
incarcerated at the time. On May 26, 2015, Grzych, the children’s maternal aunt, was appointed
the children’s legal guardian pursuant to a plenary guardianship. She has remained the children’s
guardian since that time. Smith was incarcerated when Elizabeth died on January 29, 2016, and
when Grzych was appointed guardian. Smith consented to the guardianship while he was
incarcerated. However, after he was released from prison, Smith filed a petition to either
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terminate the guardianship or, in the alternative, grant him visitation.
¶7 On May 15, 2019, Grzych and Ochoa filed their Complaint for Adoption. The complaint
alleged that Smith was unfit on the basis of depravity and that allowing Grzych and Ochoa to
adopt the children was in the children’s best interests.
¶8 A. The Fitness Hearing
¶9 The trial court conducted a fitness hearing on August 6, 2020, and September 24, 2020.
At the commencement of the hearing, the petitioners called Smith as an adverse witness. Although
Smith disputed certain aspects of the criminal charges brought against him, he acknowledged his
criminal history and his repeated incarcerations. Smith admitted that, after he was released from
prison following his second domestic battery conviction, he violated the terms of his parole and
returned to prison, where he remained until November 26, 2017. He also admitted that, on several
occasions when he saw Ochoa at the Kankakee County Courthouse, he called Ochoa a "dirty spic"
and told Ochoa that he wanted to get into a physical altercation with him.
¶ 10 Anna Grzych (Anna), the children’s maternal grandmother, testified on behalf of the
petitioners. Anna testified that she had seen Smith physically abuse Elizabeth on one occasion in
2010. That occurred while Smith, Elizabeth and Anna were driving home from Indiana together.
Anna stated that Smith had repeatedly called Elizabeth names and eventually started striking her.
¶ 11 Anna further testified that, in 2011, she lived in an apartment below Smith and Elizabeth
that shared a hallway/staircase. She stated that she would frequently hear Smith screaming at
Elizabeth while Elizabeth was pregnant with Sophia and after Sophia was born. Anna recalled a
specific instance when she heard Smith yelling angrily and Elizabeth calling for help. When Anna
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went to investigate, Smith blocked her entry into the apartment and would not allow Elizabeth to
leave the bathroom. Sophia was present in the next room at the time. Anna further testified that,
in 2012 and 2013, there were verbal altercations between Smith and Elizabeth on a weekly basis
while Sophia was present.
¶ 12 Detective Lacy Zingre of the Kankakee City Police Department also testified on behalf of
the petitioners. Zingre stated that, in September of 2019, she encountered Smith in an alley at
approximately 3:00 a.m. Smith was on parole at the time. Zingre testified that Smith was acting
odd and did not appear to know where he was. Based on her experience, Zingre believed that
Smith appeared to be under the influence of something more than alcohol.
¶ 13 Zingre further testified that, in the Spring of 2020, Smith called the Kankakee Police
Department multiple times a day for weeks regarding a video that he had seen on Facebook. The
video depicted a young girl being beaten. Smith was convinced that the girl in the video was his
daughter. When Zingre explained that the video depicted events that had occurred in another
country, Smith became irate and refused to accept it.
¶ 14 Zingre further testified that, when she arrived at the courthouse on the day of the fitness
hearing, Smith threatened to punch her for coming to testify.
¶ 15 Grzych testified that she became the children’s legal guardian in 2015 when Elizabeth’s
oncologist told Elizabeth to make her final arrangements. She stated that, after Smith was
released from prison in September of 2016, she arranged for Smith to visit the children a few
times. These visits occurred during the winter of 2016 and spring of 2017. The first such visit
occurred on the day Smith was released from prison.
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¶ 16 The last visit occurred on May 23, 2017. On that date, Grzych took the children to see
Smith at his mother’s house, where he lived. While the children were with Smith that evening,
Grzych received a telephone call from Smith’s sister, who expressed concern and told Grzych
that she should to pick up the children. As a result of that call, Grzych decided that she needed
to pick the children up right away. When she called Smith’s mother to discuss the matter, she
could hear Smith in the background angrily yelling “[f]uck her, fuck that spic” and repeatedly
saying “pedophile.” Smith indicated that Grzych could not pick up the children. Grzych then
called the Kankakee police and arranged for them to be present while she picked up the children.
When Grzych arrived at the house, Smith walked out to the yard to meet her. He got very close
to her face, called her a "stupid bitch," and threatened to "knock [her] teeth down [her] throat.”
The police then intervened and allowed Grzych to enter the residence to retrieve the children from
an upstairs bedroom. Grzych testified that, when she entered the bedroom, Smith grabbed her and
threw her across the room. With assistance from the police, Grzych was able to retrieve the
children safely.
¶ 17 Grzych testified that, the following day, Smith left multiple voicemails on her phone
threatening her and Ochoa. As a result, Grzych and Ochoa obtained an emergency order of
protection against Smith. Their subsequent petition for a plenary order of protection was granted.
The order of protection was later extended for two years. The order barred Smith from visiting
or contacting Grzych, Ochoa, or the children.
¶ 18 On cross-examination, Grzych acknowledged that, prior to the incident that led to the
order of protection, Smith was angry that Ochoa was spanking the children. Although she
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described the “spanking” incident as merely a “tap on the hand,” she conceded that Smith had a
right to be angry about that. She agreed that she had brought criminal charges against Smith for
the battery he had committed on her, and she acknowledged that Smith had been acquitted of
those charges after a jury trial. She stated that she had not observed any “physical safety issues”
between Smith and the children other than the incident that resulted in the order of protection. In
response to questioning by Smith’s counsel, Grzych testified that Sophia and Ava each receive a
survivor’s benefit of $714 per month. She stated that she spends all of that money on the children.
¶ 19 During his case in chief, Smith testified that he loved and cherished his children, he missed
them, and it was important to him that he see them. He stated that he had never been accused of
abusing a child and that his daughters would be safe with him.
¶ 20 Smith repeatedly expressed anger and concern over the fact that Ochoa had spanked the
children. Smith testified that Ochoa left knives around the house and he had spanked one of the
children on the hand for picking up one of the knives. Smith became angry about that because he
believed that Ochoa should never touch his children. Smith did not know whether Ochoa did
anything other than spank the children.
¶ 21 Smith further testified that he did not contest the divorce sought by Elizabeth because he
wanted his children to get social security benefits. He stated that Grzych had allowed her own
biological daughter to live with Smith and Elizabeth intermittently from the time she was 6
months old until she was 14 years old. Grzych never made any complaints about Smith’s
behavior toward her daughter while she was living with Smith and Elizabeth. Smith believed that
Grzych was now alleging that Smith was morally depraved because of Ochoa, who Smith
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characterized as “scary.” Smith claimed that he had never spoken with Ochoa because Ochoa did
not want to speak with him.
¶ 22 Smith testified that he is 43 years old and has spent 17 or 18 years in prison. He noted
that he had been undergoing therapy due to his depression, which he attributed to his separation
from his daughters. However, Smith offered no evidence of rehabilitation or efforts to curb his
anger issues.
¶ 23 The trial court found Smith to be unfit under section 1(D)(i) of the Adoption Act. 750
ILCS 5/1(D)(i) (West 2020). That section provides that a parent may be found to be depraved
(and therefore unfit) if he has been convicted of at least three felonies, at least one of which took
place within five years of the filing of the petition or motion seeking termination of parental rights.
The trial court noted that it was unrebutted that Smith had the requisite number of felony
convictions within the statutory timeframe. The court found that Smith had presented no evidence
that would rebut the statutory presumption of unfitness on grounds of depravity. Specifically, the
trial court noted that Smith had provided no evidence that he sought anger management treatment
or was in any way trying to modify his behavior. The trial court further noted that Smith’s conduct
during the fitness proceedings, including his many outbursts and his threatening of witnesses
while they were in the courtroom or on the witness stand, further supported a finding of unfitness.
The trial court stated that Smith "cannot or is unwilling to conform to moral and social
requirements."
¶ 24 Smith filed a motion to reconsider the trial court’s order more than 30 days after the order
was issued. Upon motion of the petitioners, the trial court struck Smith’s motion as untimely.
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Approximately 17 months later, Smith filed another motion that, in part, asked the trial court to
reconsider its finding of unfitness. Once again, the petitioners moved to strike Smith’s motion as
untimely. The trial court did not rule on Smith’s motion until the conclusion of the best interests
hearing.
¶ 25 B. The Best Interests Hearing
¶ 26 The trial court held a separate proceeding to determine the children’s best interests. The
hearing was conducted on February 11, 2021, and May 10, 2022.
¶ 27 During the hearing, Grzych testified that she and Ochoa have lived together for seven and
a half years and have been engaged for seven years. When asked why they have not gotten
married, Grzych stated that she did not “put a big, heavy importance on a piece of paper.” She
stated that she and Ochoa consider themselves to be husband and wife and have been living as
such. She testified that they have delayed their wedding because Ochoa wanted to get married in
a church and have a big wedding but they cannot afford to pay for a big wedding at this time.
Grzych stated that “[w]hen we have enough money to do that big wedding *** we’ll do it.”
¶ 28 Grzych and Ochoa each testified as to their lives and relationships with the children.
Grzych testified that Sophia and Ava live together with Grzych, Ochoa, their daughter, Erica, and
Grzych’s oldest daughter, Teanna. The family lives in a four-bedroom home in Lansing, Illinois.
Both Grzych and Ochoa described their daily routine, which consisted of getting the girls ready
for school in the morning, making dinner together, and assisting with homework. Grzych further
testified that she and Ochoa had taken extra steps to set up a special program at Sophia’s school
when she was struggling. They described the extracurricular activities and neighborhood events
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the children had participated in since 2015, and detailed how they have specifically gotten
involved with the girls’ softball, Girl Scouts and art classes. They also described the friends the
girls had made at school and around the neighborhood.
¶ 29 Grzych testified that Ava suffered from spina bifida occulta. She described how she and
Ochoa had addressed it with doctors at University of Chicago. Grzych and Ochoa also set the
girls up with grief counseling for a few years after their mother passed away. They each described
the strong bonds that Sophia and Ava have not only within the nuclear family, but with Grzych’s
and Ochoa’s extended families as well.
¶ 30 Grzych and Ochoa each testified that they have considered the children to be their
daughters and have treated them as such since the guardianship was granted in 2015. The children
came to them whenever they needed comfort or help. Ochoa described times when Ava had come
to him in the middle of the night because she had a nightmare. He further testified that Sophia
had sought his advice about making friends at school. Grzych and Ochoa described a very safe,
stable home life for the children that was filled with love and support.
¶ 31 During cross-examination, Grzych testified that, although Elizabeth babysat Teanna when
Grzych was working two jobs, Teanna never lived with Smith and Elizabeth. Grzych and Teanna
moved in with Elizabeth for a period of time before Elizabeth was married to Smith. Grzych
testified that Smith has not helped her to raise her daughter Teanna in any way.
¶ 32 Grzych admitted that, on the occasions that she saw the children visit Smith, they were
happy to see him. She stated that she had never seen Smith physically abuse the children.
However, she stated that she saw Smith yelling in front of the children and that the children were
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in the room when Smith threw Grzych across the room during the incident that led Grzych to seek
an order of protection.
¶ 33 Grzych admitted to spanking the children to discipline them, but she stated that Ochoa
had merely tapped Ava on the hand on one occasion. She testified that neither she nor Ochoa
have ever abused the children.
¶ 34 On redirect examination, Grzych testified that she rarely spanks the children because they
are well behaved. When she does spank them, she does not hit them hard, and the spankings have
never left a mark.
¶ 35 On recross-examination, Ochoa testified that the children had a “great time” with Smith
when Ochoa dropped them off at Smith’s house. He believed that the children should know where
their father is and should have a relationship with him. On the few occasions that Ochoa observed
Smith and his daughters together, he never saw Smith yell or behave in an unsafe manner around
the girls.
¶ 36 On redirect examination, Ochoa testified that, although he had dropped the children off
for visits with Smith on a few occasions, he saw Smith interact with the children only once. He
did not see Smith do anything to jeopardize the children’s welfare on that occasion. Nevertheless,
Ochoa had concerns about the children’s welfare when they are with Smith due to Smith’s volatile
and aggressive behavior in the courthouse and the courtroom, including his repeated outbursts
during the trial testimony. Ochoa further testified that Smith had threatened him three times at
the courthouse. Ochoa believed that this type of behavior would scare the children.
¶ 37 Teanna Grzych, Grzych’s daughter, also testified. Teanna was 20 years old at the time of
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the hearing. Teanna testified that she resided with Grzych, Ochoa, her cousins (Sophia and Ava),
and her half-sister, Erica. Teanna stated that she considered Sophia and Ava to be her little sisters.
Teanna recounted in detail how well her mother cared for the children on a daily basis,
including their daily routine and activities. Teanna also described the relationship that she,
Sophia, and Ava have with Ochoa. She stated that Ochoa has been a father figure for her and the
girls. Teanna gave Ochoa “an A+ grade” as a father. She further described the good relationship
the girls had with Ochoa’s extended family.
¶ 38 Teanna testified as to several instances when she witnessed Smith yell at Elizabeth. On
one occasion, when Teanna was approximately 10-11 years old, she saw Smith yell so
aggressively at Elizabeth that the police had to be called. She described a similar incident that
occurred approximately two years earlier when the police had to be called. She testified as to two
other instances when Smith yelled at Elizabeth. Teanna felt threatened on at least one of those
occasions.
¶ 39 Theresa Goudie, the court-appointed guardian ad litem, also testified. Goudie was initially
appointed the guardian ad litem in 2018, during the guardianship proceedings. In order to
determine what was in the children’s best interests, Goudie interviewed Grzych, Smith, and
Ochoa. She met the children at their home and saw them at her office twice. She spoke with the
girls’ teachers and the school social worker. She also visited Smith’s home. Goudie prepared
two reports after the adoption petition was filed, and testified consistently with her reports.
¶ 40 Goudie testified that, every time she met with the children, they appeared to be fed,
healthy, and clean. Goudie never had any concerns about their current living conditions or the
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interactions between Grzych, Ochoa and the children. The children had a good relationship with
both Grzych and Ochoa. They considered Grzych, Ochoa, Teanna, and Erica to be their family.
The home life the children enjoyed with Grzych and Ochoa was safe, secure and stable. Goudie
opined that there was love in the home and that the girls were valued and appeared to be well-
adjusted. Goudie further stated that the children told her that they wanted to continue living with
Grzych in the family home on a long-term basis.
¶ 41 Goudie testified that the children also appeared to have a good relationship with Grzych’s
extended family. Their maternal grandmother was at the house the first time Goudie went there.
The children saw her every Friday. In addition, the girls spoke and acted as if Teanna and Erica
were their sisters. Goudie also noted that the girls have cousins that they enjoy playing with on
Ochoa’s side of the family.
¶ 42 Goudie stated that the girls did not have a comparable relationship with anyone in Smith’s
extended family. When she visited Smith at his mother's home (where he resides), his mother did
not make herself available. No one from Smith’s family reached out to Goudie.
¶ 43 Goudie spoke with the children's teachers and reviewed their school records. The teachers
spoke very highly of the children and indicated that they were well adjusted educationally and
socially. Further, the girls had been involved in numerous extracurricular activities that suited
their interests. They had friends both at school and in the neighborhood, which Grzych and Ochoa
encouraged and helped facilitate.
¶ 44 Goudie also commented on the behavior exhibited by each party during the investigation
and subsequent hearings. Grzych and Ochoa had been calm and had acted normally. However,
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Goudie saw Smith threaten Ochoa and act angrily on several occasions during the court
proceedings.
¶ 45 Goudie testified that the children had never alleged that Smith had abused them, either
mentally or physically. She noted that Smith had expressed a very strong desire to remain in his
children’s lives. She commented that Smith was extremely persistent and had attended every
scheduled meeting and court hearing. Moreover, when Goudie visited Smith’s mother’s home,
“it appeared to be an appropriate home to live in.” It was clean, well cared for, and stocked with
food.
¶ 46 Goudie testified that the children expressed a desire to see their father. They mentioned
that they had some good memories of their father and recall having fun with him when they were
very young. However, the children also recalled Smith’s yelling and anger, and they told Goudie
that they want to remain with Grzych and Ochoa long term.
¶ 47 Goudie noted that the issue of Smith’s visitation rights was addressed before a different
judge during the guardianship proceedings. According to Goudie, the issue of supervised
visitation was addressed at the guardianship hearing, but the court’s final order indicates that
neither party seemed to be interested in that option. The trial court denied visitation.
¶ 48 Goudie did not render an opinion as to whether the granting of the petition for adoption
was in the best interests of the children because she believed that was a matter for the court to
decide. She also found it difficult to render a definitive opinion on the matter because she had
not had an opportunity to observe Smith’s parenting or his interaction with the girls due to the
order of protection. Nevertheless, upon further questioning by counsel and by the trial court,
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Goudie stated that nearly every best interest factor referenced in 705 ILCS 405/1-3(4.05) weighed
in favor of the adoption being granted. She testified that the children were safe, secure, and well
cared for by Grzych and Ochoa. She stated that the children were coming into their own in their
current home and that they identified as members of Grzych and Ochoa’s nuclear family. The
children had a stronger relationship with Grzych’s and Ochoa’s families than they had with
Smith’s family. Goudie opined that the children had a strong attachment to Grzych and Ochoa
because they are loved and feel secure. She concluded that the children were very well integrated
into their home, school and community. Moreover, Goudie stated that the children's need for
permanence and stability of relationships was best maintained with Grzych and Ochoa, and that
allowing the children to remain with them would be the least disruptive alternative for the
children.
¶ 49 Goudie noted that not every statutory factor weighed in favor of the adoption “100
percent.” Specifically, she suggested that the “uniqueness of the child and the family” factor
weighed in Smith’s favor because this case presents a “very unique situation.” Goudie explained
that she had not had a chance to observe Smith with the girls, and she noted that Smith has
attended every court date so that the trial court would know that he does not want to give up his
girls. Nevertheless, Goudie stated that, when the ten statutory factors are considered and applied
to the facts in this case, “it probably would sway towards allowing the adoption.”
¶ 50 Smith testified that he only yelled in the girls’ presence on two occasions. Once when
two of his friends had been murdered. The second time was when Elizabeth kicked him out of
the car. Smith stated that he is against spanking and that neither he nor Elizabeth ever touched
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the children in that way. He believed that an adult should be able to reason with his or her
children. Smith further testified that Teanna had lived with Elizabeth (and with Smith when he
was out of prison and living with Elizabeth) for long periods of time from the time she was a baby
until she turned 14. Smith stated that he had concerns about Teanna’s safety with Grzych because
of some of the men Grzych had at her home.
¶ 51 Smith stated that, if the court were to terminate the guardianship, the children would live
with him. He testified that he had “undying love” for his children. He claimed to have 30 nieces
and nephews, including 21 nieces who are the same age as Ava and Sophia. Smith testified that
these children would welcome Ava and Sophia when they meet. When asked whether he was a
proper person for his girls to live with, Smith responded “I'm the best. I'm the best father in this
world because I never needed nothing from no one but Elizabeth. Our undying love was just that
strong.” He later stated “[w]hat other man got better qualities than me? He don't.” Smith testified
that he was angry at Grzych and Ochoa because they “kidnapped my kids.”
¶ 52 Smith further testified that someone sent him a video from Brazil of a Mexican woman
beating his daughters. He thought that some Mexican had sent him the tape because they thought
Smith was “some old goofy nigger that could be extorted.” He added that Mexicans extort each
other. He claimed that, when he brought the matter to the attention of the police, he was charged
with making a false statement.
¶ 53 On cross-examination, Smith admitted that he had harmed people while he was in prison.
¶ 54 The trial court denied Grzych and Ochoa’s petition to terminate Smith’s parental rights
and to adopt the children. The court stated that it was legally bound to follow the best interests
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of the child standard as articulated in the adoption statute, which give great weight to the specific
needs of the child. The court acknowledged that “[t]he evidence in this case indicates that the
guardians have provided a loving and nurturing environment for the minor children.” The court
noted that it did not have an opportunity to speak to the children, as neither child was called as a
witness and neither party asked the court to conduct an in camera interview with the children.
Accordingly, the court gave “great weight” to the reports of the guardian ad litem. The court
noted that those reports “indicate that the minor children still miss their father, still ask about their
father, and are unaware as to the reasons behind their father's absence.” The court found that,
“[p]articularly in light of the fact that the children have lost their mother due to illness, *** the
consequences of losing their father as well would be a harm far greater than the alternative.” For
that reason, the court found it is not in the best interests of the children that Smith’s parental rights
be terminated.
¶ 55 After issuing its ruling, the trial court addressed Smith’s pending motion to reconsider the
court’s finding of unfitness. The court told Smith’s counsel that it “would deem [the motion] as
moot at this point,” but it noted that “that’s something for you to decide.” The court asked Smith’s
counsel whether he was withdrawing his motion to reconsider. In response, Smith’s counsel
stated, “I think it’s moot. So yes, I will.” The court then noted for the record that Smith’s motion
to reconsider had been withdrawn on the oral motion of his counsel.
¶ 56 This appeal followed.
¶ 57 II. ANALYSIS
¶ 58 Grzych and Ochoa argue that the trial court erred when it denied their petition to adopt
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Ava and Sophia. They maintain that the evidence demonstrates that terminating Smith’s parental
rights and allowing the adoption would be in the children’s best interests.
¶ 59 When determining whether termination of parental rights is in a child's best interest, a
court must consider the following factors in the context of the child's age and developmental
needs: (1) the child's physical safety and welfare; (2) the development of the child's identity; (3)
the child's familial, cultural and religious background and ties; (4) the child's sense of attachments,
including love, security, familiarity, continuity of affection, and the least disruptive placement
alternative; (5) the child's wishes and long-term goals; (6) the child's community ties, including
church, school, and friends; (7) the child's need for permanence, including the need for stability
and continuity of relationships with parent figures and siblings; (8) the uniqueness of every family
and child; (9) the risks related to substitute care; and (10) the preferences of the person available
to care for the child. 705 ILCS 405/1–3 (4.05) (West 2022). No single factor is dispositive. In re
Austin W., 214 Ill. 2d 31, 50 (2005).
¶ 60 A trial court's decision to terminate parental rights involves factual findings and credibility
assessments that the trial court is in the best position to make. In re Katrina R., 364 Ill. App. 3d
834, 842 (2006); In re B.B., 386 Ill. App. 3d 686, 698 (2008). The trial court is in the best position
to observe the conduct and demeanor of the witnesses. In re B.B., 386 Ill. App. 3d at 698.
Accordingly, “a trial court's determination that it is in a child's best interest to terminate the rights
of his or her parent is given great deference and will not be reversed on appeal unless it is contrary
to the manifest weight of the evidence.” In re D.M., 298 Ill. App. 3d at 574, 581 (1998).
¶ 61 A factual finding is against the manifest weight of the evidence only if the opposite
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conclusion is clearly evident or the determination is unreasonable, arbitrary, and not based on the
evidence presented. Id. Findings are against the manifest weight of the evidence when an opposite
conclusion is clearly apparent from the record. McAllister v. Illinois Workers’ Compensation
Comm'n, 2020 IL 124848, ¶ 30; In re D.D., 2022 IL App (1st) 220410, ¶ 65. Although reviewing
courts are reluctant to conclude that a determination is against the manifest weight of the evidence,
we will not hesitate to do so when the clearly evident weight of the evidence compels an opposite
conclusion. McAllister, 2020 IL 124848, ¶ 30; D.D., 2022 IL App (1st) 220410, ¶ 65.
¶ 62 Here, the overwhelming weight of the evidence and all of the statutory factors favor
granting the adoption petition. The testimony of the guardian ad litem and of the petitioners’
witnesses establishes that the children are safe and well-cared for by Grzych and Ochoa. They
identify as members of Grzych and Ochoa’s family and are deeply attached to Grzych and Ochoa,
and also to Erica and Teanna, whom they consider to be their sisters. The children are also
attached to their maternal grandmother and other members of Grzych’s and Ochoa’s extended
family. They are loved and secure in their family home. Grzych and Ochoa take care of the
children’s daily needs, they work with the children’s teachers to help them make progress at
school, and they have enrolled the children in various extracurricular activities. Grzych and
Ochoa also consulted with doctors to treat Ava’s medical condition and obtained long-term grief
counseling for the girls following the death of their mother.
¶ 63 Allowing the children to stay with Grzych, Ochoa and the other members of the family
would satisfy the children’s need for permanence, stability, and the continuity of their
relationships with their parent figures and with Erika and Teanna. The children have lived with
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Grzych and Ochoa for the past seven years, which represents the majority of their lives. They
have known no other home since Sophia was four years old and Ava was two years old. They
have only a few memories of their father from their early childhood. Removing the children from
their home would be far more disruptive than allowing them to stay there.
¶ 64 The evidence further shows that allowing Smith to retain his parental rights, block the
adoption, and assume decision-making authority in regard to the children would pose substantial
risks. Smith has an extensive criminal history. He has been convicted of multiple felonies,
including violent felonies. Most significantly, he has been convicted and incarcerated for
battering both the children’s mother as well as his girlfriend. In addition, an order of protection
was entered against him (and was subsequently extended for two years) after he allegedly threw
Grzych across a room in front of the children while she attempted to pick them up at his mother’s
house and later threatened Grzych and Ochoa. Although a jury found that the evidence of Smith’s
conduct was insufficient to convict him of the crime of battery, a trial judge found the evidence
sufficient to issue an order of protection. Moreover, it is undisputed that Smith has yelled in front
of the children. The children felt scared during at least one of these incidents.
¶ 65 There was evidence that Smith threatened witnesses at the courthouse, including a
Kankakee City police officer. He has been incarcerated repeatedly and has spent 17 of his 43
years in prison. After he is released, he frequently ends up back in prison due to either a parole
violation or his conviction of another offense. Smith clearly has a volatile personality and a bad
temper, and he has trouble controlling his emotions and impulses. These shortcomings were on
full display during the trial court proceedings. Almost every page of the trial transcript shows
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Smith interrupting the testimony of other witnesses, either by angrily blurting out insults and
expletives, disputing or otherwise commenting on the witness testimony, or rambling
incoherently. Both the trial court and Smith’s lawyer repeatedly told him to stop, to no avail.
After exhibiting superhuman patience with Smith for the bulk of the trial, the trial court finally
had him removed from the courtroom for a portion of the proceedings.
¶ 66 Smith appears to love his children and he has expressed a strong desire to get them back.
However, Smith’s lack of interest in supervised visitation following the guardianship proceeding
undercuts these claims to a certain extent. In any event, we are required to consider the children’s
best interests, not only Smith’s desires. Although Smith has never been accused of physically
abusing the children, his history of violence and his inability to control his emotions and impulses
could pose a risk to the children’s welfare. Smith was convicted of battering the children’s
mother, and some of his angry outbursts have occurred in the children’s presence. He has never
had to take care of the children on his own. His background, including his admitted drug use and
his history of violence and repeated incarceration, suggests that he might not be able to take care
of the children nearly as well as Grzych and Ochoa have.
¶ 67 Although the guardian ad litem testified that the majority of the statutory best interest
factors favored Grzych and Ochoa, she suggested that two of the factors arguably supported
Smith: the “children’s wishes and long-term goals” and the “the uniqueness of every family and
child.” We disagree. Although the children expressed a wish to see their father, they did not
want to live with him. To the contrary, they repeatedly and unequivocally told Goudie that they
wanted to live with Grzych and Ochoa long term. Accordingly, denying the adoption petition
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would contravene the children’s wishes.
¶ 68 In addition, the guardian ad litem misunderstood and misapplied the “uniqueness of every
family and child” factor. She opined that this factor arguably favored Smith because this case
presents a “unique situation.” She found the situation to be unique because she had no opportunity
to observe Smith interacting with his children or to evaluate his parenting style due to the order
of protection. However, the statute requires the court to consider the uniqueness of every family
and child, not the uniqueness of the evidence (or lack thereof) available to the guardian ad litem.
The statute contemplates that some children or families might have unique qualities that must be
considered in determining the best interest of the child. It does not address the quantum of
evidence presented to the guardian ad litem.
¶ 69 Moreover, the trial court appeared to deny the adoption petition based primarily (if not
entirely) on the children’s wishes. However, as noted above, no single statutory factor is
dispositive. In any event, the trial court gave scant attention to the children’s expressed desire to
stay with Grzych and Ochoa long term. Accordingly, it failed to appreciate that the “wishes of
the child” factor actually favored the granting of the petition.
¶ 70 For all these reasons, it is clearly apparent that the petition for adoption and for the
termination of Smith’s parental rights should have been granted. The trial court’s denial of the
petition was against the manifest weight of the evidence.
¶ 71 One further point bears mentioning. In his brief on appeal, Smith merely attacks the trial
court’s finding of unfitness. His brief contains no argument in support of the trial court’s ruling
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as to the best interests of the children and ignores the petitioners’ arguments on that issue. 1 The
trial court’s fitness ruling is not at issue and may not be relitigated in this appeal. Smith waived
any challenge to the fitness ruling by explicitly withdrawing his motion to reconsider that ruling
after the trial court denied the adoption petition. Moreover, even if he had preserved the issue
below, he may not address the issue in this appeal because he has not cross-appealed the trial
court’s finding of unfitness. See Martis v. Grinnell Mutual Reinsurance Co., 308 Ill. App. 3d
1017, 1023 (2009) (“In the absence of a cross-appeal, an appellee will not be permitted to
challenge or ask the reviewing court to modify a portion of the trial court’s order,” and “the
reviewing court is confined to the issues presented by the appellant”).
¶ 72 Smith also asks us to consider documents that were not admitted into the record, including
records of Smith’s sessions with a therapist and a 2017 “certificate of completion” of a course in
an “integrated cognitive behavior change program.” The trial court’s refusal to admit these
documents was the primary basis of Smith’s motion for reconsideration. We will not consider
these documents because they are outside the record. However, if we were to consider the
documents, they would have no impact on our decision because they do not demonstrate that
Smith made an effort to address his anger issues for the sake of his children. Smith concedes that
1
In his brief, Smith’s counsel states that he possibly did not “spend the time that [he] should on this case.”
We agree with his self-assessment. Counsel’s complete failure to address the issue presented in this appeal
and to include relevant citations to the record has required this court to comb through the record looking
for evidence supporting the trial court’s judgment, thereby creating substantially more work for this court
and requiring us to expend judicial resources on something that should have been done by counsel. We
would ordinarily refuse to do counsel’s work for him and would strike his brief for failing to comply with
the Supreme Court rules governing the content of appellate briefs. We decline to take that drastic step in
this case due to the gravity of the issues presented. However, we caution counsel to avoid making such
fundamental errors in the future.
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he went to therapy for his own benefit in order to deal with his depression that was caused by his
inability to see his children, not in order to change behaviors that might negatively impact the
children. Moreover, the “certificate of completion” does not explain the nature of the course that
Smith completed.
¶ 73 III. CONCLUSION
¶ 74 For the foregoing reasons, we reverse the trial court’s denial of the petitioners’ petition
for adoption and termination of Smith’s parental rights and remand the matter to the trial court to
enter an order granting the petition for adoption.
¶ 75 Reversed; cause remanded.
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