In re Jay H. , 395 Ill. App. 3d 1063 ( 2009 )

Filed 11/9/09 NOS. 4-09-0439, 4-09-0460 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: Jay. H., Jas. H., and T.W., ) Appeal from
Minors, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) McLean County
Petitioner-Appellee, ) No. 08JA37
v. (No. 4-09-0439) )
JASON HODGES, )
Respondent-Appellant. )
_____________________________________ )
) No. 08JA37
In re: Jay. H., Jas. H., and T.W., )
Minors, )
THE PEOPLE OF THE STATE OF ILLINOIS, )
Petitioner-Appellee, )
v. (No. 4-09-0460) ) Honorable
SHANNON TOLER, ) Kevin P. Fitzgerald,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In January 2009, the State filed an amended petition to
terminate the parental rights of respondent mother, Shannon
Toler, as to her children Jay. H. (born April 22, 2005), Jas. H.
(born June 4, 2004), and T.W. (born September 9, 1994). In March
2009, the State filed a first supplemental amendment to its
petition seeking to terminate the parental rights of respondent
father, Jason Hodges, as to his children Jay. H. and Jas. H.
(Respondent father is not T.W.'s biological father.) Following
hearings in February and May 2009, the trial court found respon-
dent mother and respondent father, respectively, unfit. At a
separate May 2009 hearing, the court determined that it would be
(1) in the best interest of Jay. H. and Jas. H. to terminate the
parental rights of both respondent mother and respondent father
and (2) in T.W.'s best interest to terminate respondent mother's
parental rights.
Respondent mother and respondent father appeal (Nos. 4-
09-0460 and 4-09-0439, respectively), arguing that (1) the trial
court erred by taking judicial notice of various documents at the
best-interest hearing and (2) the court's best-interest findings
were against the manifest weight of the evidence. We disagree
and affirm.
I. BACKGROUND
In March 2008, the State filed a petition for adjudica-
tion of wardship, alleging that Jay. H., Jas. H., and T.W. were
neglected minors under section 2-3(1)(b) of the Juvenile Court
Act of 1987 (Juvenile Court Act), in that their environment was
injurious to their welfare because respondent mother and respon-
dent father (collectively, respondents) had unresolved issues of
substance abuse (705 ILCS 405/2-3(1)(b) (West 2008)). At an
April 2008 adjudicatory hearing, respondents admitted the State's
allegations in its petition for wardship. After accepting the
State's evidence, the trial court entered an order adjudicating
Jay. H., Jas. H., and T.W. neglected minors. Following a July
2008 dispositional hearing, the court entered an order adjudicat-
ing Jay. H., Jas. H., and T.W. wards of the court and appointed
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the Department of Children and Family Services (DCFS) as their
guardian.
In January 2009, the State filed an amended petition to
terminate parental rights, alleging, in pertinent part, that
respondent mother was an unfit parent under section 1(D)(k) of
the Adoption Act, in that she was alcohol dependent and addicted
to drugs, other than those prescribed by a physician, for at
least one year immediately prior to the start of the unfitness
hearing (750 ILCS 50/1(D)(k) (West 2008)).
In March 2009, the State filed a first supplemental
amendment to its amended petition to terminate parental rights,
alleging, in pertinent part, that respondent father was an unfit
parent under section 1(D)(i) of the Adoption Act, in that he was
depraved because (1) he had at least three felony convictions and
(2) one of his convictions occurred within five years of the
filing of the State's petition seeking termination of his paren-
tal rights (750 ILCS 50/1(D)(i) (West 2008)).
At a February 2009 hearing, the trial court found
respondent mother unfit based on her admission at the hearing
that she had a drinking problem and was addicted to drugs. The
State's evidence showed that (1) in May 2005, DCFS took Jay. H.,
Jas. H., and T.W. into protective custody (McLean County case No.
05-JA-56) based on respondent mother's substance-abuse issues;
(2) respondent mother had attempted substance-abuse treatment
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multiple times, including February 2007, in which she was diag-
nosed as opiate-, cocaine-, and alcohol-dependent; and (3)
respondent mother tested positive for cocaine in November 2008.
At a May 2009 hearing, the trial court found respondent
father unfit based on his admission at the hearing that he had at
least three felony convictions, with one of those convictions
occurring within five years of the filing of the State's peti-
tion. Without objection, the court admitted into evidence
respondent father's 5 separate sentencing orders, showing his
convictions over the previous 10 years (from 1998 through 2008)
for (1) delivery of cannabis (2 separate convictions), (2)
delivery of cocaine, (3) possession of cannabis, and (4) aggra-
vated battery.
At respondents' best-interest hearing that immediately
followed respondent father's May 2009 fitness hearing, the trial
court took judicial notice, without objection, of the following
documents from McLean County case No. 05-JA-56: (1) the docket
entries, (2) the petition for adjudication of wardship, (3) the
shelter-care order, (4) an investigative summary, (5) a social-
history report, (6) the adjudicatory and dispositional reports
and orders, and (7) various permanency orders and reports. The
court also took judicial notice, without objection, of the
following documents in this case: (1) the petitions, orders, and
docket entries; (2) a June 2008 dispositional report; (3) two
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October 2008 permanency reports; and (4) respondent mother's
November 2008 and February 2009 positive drug-screen results.
In addition, at that best-interest hearing, the trial
court also received and considered a May 2009 best-interest
report, which was prepared by a DCFS-contracted caseworker who
had been the sole caseworker assigned to respondents' case since
its inception in May 2005. That report stated the following.
In May 2005, Jay. H., Jas. H., and T.W. were taken into
protective custody (McLean County case No. 05-JA-56) because (1)
respondent mother was found under the influence of cannabis and
cocaine and (2) respondent father had an extensive criminal
history that involved the possession and delivery of controlled
substances. Although the caseworker characterized respondent
mother's progress in completing her client-service-plan goals as
inconsistent, in December 2007, Jay. H., Jas. H., and T.W. were
returned to respondent father's care after he successfully
completed his client-service-plan goals.
In February 2008, respondent mother was arrested for
obstructing justice. At the time of her arrest, she was intoxi-
cated, and she admitted that she had relapsed. Later that same
month, DCFS took protective custody of Jay. H., Jas. H., and T.W.
after police charged respondent father, in part, with delivery of
cannabis. DCFS subsequently placed Jay. H., Jas. H., and T.W.
with respondent father's sister, Tiffany Hodges, who had since
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expressed a clear desire to adopt all three children.
In summarizing his finding, the caseworker provided the
following:
"[Respondent mother] has not demon-
strated that she is capable of caring for
[Jay. H., Jas. H., and T.W.] She has not
been able to maintain sobriety for extended
periods of time[, n]or has she been able to
maintain a consistent income through any
source other than [respondent father]. [Re-
spondent father] is now incarcerated with a
projected parole date of [February 29, 2013].
He has an extensive criminal history of drug
charges. The one stable parental figure
[Jay. H., Jas. H., and T.W.] have had is
Tiffany Hodges. [Jay. H., Jas. H., and T.W.]
need permanency with a parent they can depend
on and trust to put their needs first. [I]
strongly believe[] that [Jay. H., Jas. H.,
and T.W.] need the security, safety, and
stability they would be afforded through
adoption by Tiffany Hodges."
Respondent mother testified, in pertinent part, that
she (1) had struggled with substance-abuse issues for about 20
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years; (2) had maintained her sobriety for 7 months, which she
had not accomplished since she was 14 years old; and (3) loved
her children. In addition, respondent mother admitted that she
(1) had not independently parented Jay. H., Jas. H., or T.W.
throughout their lifetimes; (2) had not maintained a relationship
with her other 11-year-old child, who lived in Kentucky with
another aunt; and (3) might maintain her relationship with
respondent father.
After considering the evidence, counsels' arguments,
and the statutory factors under section 1-3(4.05) of the Juvenile
Court Act (705 ILCS 405/1-3(4.05) (West 2008)), the trial court
found, by a preponderance of the evidence, that it was in the
minors' best interest to terminate (1) respondent mother's
parental rights as to Jay. H., Jas. H., and T.W. and (2) respon-
dent father's parental rights as to Jay. H. and Jas. H. (Al-
though the court also terminated the parental rights of T.W.'s
biological father, he is not a party to this appeal.)
Both respondents filed appeals, which this court sua
sponte consolidated.
II. RESPONDENTS' CLAIM THAT THE TRIAL COURT IMPROPERLY TOOK
JUDICIAL NOTICE OF VARIOUS DOCUMENTS AT THE BEST-INTEREST HEARING
A. The Trial Court's Decision To Take
Judicial Notice of Various Documents
Respondents argue that the trial court improperly took
judicial notice of various documents at the best-interest hear-
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ing. Initially, we note that because respondents failed to
object at that hearing to the admission of the various documents
about which they now complain, they have forfeited this argument
on appeal. See In re M.W., 232 Ill. 2d 408, 430, 905 N.E.2d 757,
772 (2009) (A respondent's failure to object at trial forfeits
consideration of the claimed error on appeal unless respondent
can demonstrate plain error). Nonetheless, respondents urge this
court to consider their claim under the plain-error doctrine
because the best-interest hearing was fundamentally unfair in
that the court took judicial notice of a "substantial quantum of
incompetent evidence."
"This court may review an error under the plain-error
doctrine if (1) the evidence is closely balanced or (2) the error
is 'so substantial that it affected the fundamental fairness of
the proceeding, and remedying the error is necessary to preserve
the integrity of the judicial process.'" People v. Hostetter,
384 Ill. App. 3d 700, 707, 893 N.E.2d 313, 319 (2008), quoting
People v. Hall, 194 Ill. 2d 305, 335, 743 N.E.2d 521, 539 (2000).
However, before addressing whether respondents' forfeited claim
constitutes plain error, we will first determine whether it
constitutes any error at all. People v. Owens, 372 Ill. App. 3d
616, 620, 874 N.E.2d 116, 118 (2007).
Based upon the following analysis of the interrelation-
ship between the Juvenile Court Act and Adoption Act, we conclude
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that we need not consider respondents' argument under a plain-
error analysis because the trial court did not err.
1. Proceedings Under the Juvenile Court Act
The Juvenile Court Act sets forth the two-step process
a trial court must employ in deciding whether a minor should be
made a ward of the court. In re A.W., 231 Ill. 2d 241, 254, 897
N.E.2d 733, 740 (2008). The first step is the adjudicatory
hearing on a petition for adjudication of wardship at which "the
court shall first consider only the question whether the minor is
abused, neglected[,] or dependent." 705 ILCS 405/2-18(1) (West
2008). In making that determination, the rules of evidence in
the nature of civil proceedings apply. A.W., 231 Ill. 2d at 256,
897 N.E.2d at 741; 705 ILCS 405/2-18(1) (West 2008). If the
trial court determines that the minor child is abused, neglected,
or dependent, the court shall then proceed to the second step--
the dispositional hearing--and determine whether the minor should
be made a ward of the court. In re Timothy T., 343 Ill. App. 3d
1260, 1262-63, 799 N.E.2d 994, 996 (2003); 705 ILCS 405/2-21(2)
(West 2008). Proceedings at the dispositional hearing are
governed by section 2-22(1) of the Juvenile Court Act, which
provides as follows:
"At the dispositional hearing, the court
shall determine whether it is in the best
interests of the minor and the public that he
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be made a ward of the court, and, if he is to
be made a ward of the court, the court shall
determine the proper disposition best serving
the health, safety[,] and interests of the
minor and the public. The court also shall
consider the permanency goal set for the
minor, the nature of the service plan for the
minor and the services delivered and to be
delivered under the plan. All evidence help-
ful in determining these questions, including
oral and written reports, may be admitted and
may be relied upon to the extent of its pro-
bative value, even though not competent for
the purposes of the adjudicatory hearing."
(Emphasis added.) 705 ILCS 405/2-22(1) (West
2008).
The plain language of section 2-22(1) of the Juvenile
Court Act shows the legislature's intent to give trial courts
wide latitude in admitting evidence at the dispositional hearing.
In re April C., 326 Ill. App. 3d 245, 261, 760 N.E.2d 101, 114
(2001); see also In re D.L., 226 Ill. App. 3d 177, 187, 589
N.E.2d 680, 686 (1992) ("Although hearsay and other types of
incompetent evidence may not be admissible at the adjudicatory
hearing, they are admissible at the dispositional hearing").
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2. Proceedings Under the Adoption Act
In In re D.F., 201 Ill. 2d 476, 494-95, 777 N.E.2d 930,
940 (2002), the supreme court outlined the following two-step
process a trial court must employ when dealing with petitions to
terminate parental rights under the Adoption Act:
"The involuntary termination of parental
rights upon the petition of the State is
governed by the Juvenile Court Act of 1987
[citation], and the Adoption Act [citation].
A two-step process is mandated. First, the
State must show, by clear and convincing
evidence, that the parent is 'unfit,' as that
term is defined in section 1(D) of the Adop-
tion Act [citation]. *** If the court makes
such a finding, it will then consider whether
it is in the best interest[] of the child
that parental rights be terminated."
In addition, section 2.1 of the Adoption Act provides,
in pertinent part, that the Adoption Act shall be construed in
concert with the Juvenile Court Act. 750 ILCS 50/2.1 (West
2008).
3. The Formal Rules of Evidence Do Not
Apply at Best-Interest Hearings
Construing the Adoption Act in concert with the Juve-
nile Court Act, we hold that the Adoption Act is the structural
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equivalent of the Juvenile Court Act. Further, we note that this
structural equivalency is hardly a new or novel concept.
In In re J.G., 298 Ill. App. 3d 617, 628-29, 699 N.E.2d
167, 175-76 (1998), this court rejected the State's argument that
at a fitness hearing under the Adoption Act, the trial court
could take judicial notice of the entire record that preceded the
parental-termination proceeding without first finding that the
contents of the court file were admissible under the civil rules
of evidence. In so doing, we concluded that it would be illogi-
cal to apply the rules of evidence to adjudicatory hearings, the
result of which may only be temporary, but not to apply those
same rules to parental-fitness hearings, where parents face
permanent revocation of parental rights. J.G., 298 Ill. App. 3d
at 629, 699 N.E.2d at 175; see also In re M.S., 239 Ill. App. 3d
938, 946, 606 N.E.2d 768, 773 (1992) (where this court concluded
that the civil rules of evidence apply to fitness hearings).
Further construing the acts under section 2.1 of the
Adoption Act (750 ILCS 50/2.1 (West 2008)), we likewise conclude
that the second step of both proceedings--the dispositional
hearing under the Juvenile Court Act and the best-interest
hearing under the Adoption Act--are functional equivalents.
These respective second steps are subject to the same relaxed
standard regarding the admission of evidence--that is, the formal
rules of evidence do not apply. Thus, at both second-step
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hearings, all evidence helpful (in the trial court's judgment) in
determining the questions before the court may be admitted and
may be relied upon to the extent of its probative value, even
though that evidence would not be admissible in a proceeding
where the formal rules of evidence applied. See 705 ILCS 405/2-
22(1) (West 2008).
In support of this conclusion, we note that the primary
issue before the trial court in both dispositional hearings and
best-interest hearings is the same--namely, what action is in the
child's best interest? See In re Y.A., 383 Ill. App. 3d 311,
315, 890 N.E.2d 710, 714 (2008) (the purpose of the dispositional
hearing is for the trial court to determine what is in the
child's best interest); see also In re B.B., 386 Ill. App. 3d
686, 697, 899 N.E.2d 469, 479 (2008) (the purpose of the best-
interest hearing is to minimize further damage to the child by
shifting the court's scrutiny to the child's best interest).
4. The Trial Court's Taking Judicial Notice Was Appropriate
As noted, respondents argue that the trial court erred
by taking judicial notice of the aforementioned documents at the
best-interest hearing. We disagree.
Because cases under the Juvenile Court Act are sui
generis and must be decided on the basis of their unique facts,
this court gives great deference to the trial court's determina-
tions at the dispositional hearing, given that the court is in
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the best position to observe the demeanor of the witnesses and
the parties, assess credibility, and weigh the evidence pre-
sented. In re Gabriel E., 372 Ill. App. 3d 817, 823, 867 N.E.2d
59, 65 (2007), citing In re Sharena H., 366 Ill. App. 3d 405,
415, 852 N.E.2d 474, 482 (2006). This same deferential standard
of review applies to the court's determinations at the best-
interest hearing. See In re D.M., 298 Ill. App. 3d 574, 581, 699
N.E.2d 212, 217 (1998) (the trial court's determination at the
subsequent best-interest hearing is afforded great deference by
the reviewing court).
The record shows that the various orders, reports,
docket entries, and results of which the trial court took judi-
cial notice solely concerned the parental relationship between
respondents and Jay. H., Jas. H., and T.W. In particular, the
evidence showed that in May 2005, DCFS took Jay. H., Jas. H., and
T.W. into protective custody because (1) respondent mother was
found under the influence of cannabis and cocaine and (2) respon-
dent father had an extensive criminal history that involved the
possession and delivery of controlled substances. These problems
persisted until February 2008, when DCFS again took Jay. H., Jas.
H., and T.W. into their protective custody because respondents
continued to engage in the same destructive activities--that is,
respondent mother continued her substance abuse and respondent
father continued his illegal drug activity.
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By taking judicial notice of the aforementioned evi-
dence at the best-interest hearing, the trial court obviously
viewed that evidence as probative of its determination as to what
decision was in the best interest of Jay. H., Jas. H., and T.W.
Because the court is allowed to consider all evidence that it
finds helpful in answering the best-interest question, we con-
clude that the trial court did not err by taking judicial notice
of the aforementioned documents.
III. THE TRIAL COURT'S BEST-INTEREST FINDINGS
Respondent mother and respondent father also argue that
the trial court's best-interest findings were against the mani-
fest weight of the evidence. We disagree.
After a finding of parental unfitness, the trial court
must give full and serious consideration to the child's best
interest. In re G.L., 329 Ill. App. 3d 18, 24, 768 N.E.2d 367,
372 (2002). At the best-interest stage of termination proceed-
ings, the State bears the burden of proving by a preponderance of
the evidence that termination is in the child's best interest.
In re D.T., 212 Ill. 2d 347, 366, 818 N.E.2d 1214, 1228 (2004).
When determining whether termination is in the child's best
interest, the court must consider, in the context of a child's
age and developmental needs, the following factors: (1) the
child's physical safety and welfare; (2) the development of the
child's identity; (3) the child's background and ties, including
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familial, cultural, and religious; (4) the child's sense of
attachments, including love, security, familiarity, and continu-
ity of affection, and the least-disruptive placement alternative;
(5) the child's wishes; (6) the child's community ties; (7) the
child's need for permanence, including the need for stability and
continuity of relationships with parental figures and siblings;
(8) the uniqueness of every family and child; (9) the risks
related to substitute care; and (10) the preferences of the
persons available to care for the child. 705 ILCS 405/1-3(4.05)
(West 2008).
We will not reverse the trial court's best-interest
determination unless it was against the manifest weight of the
evidence. In re Tiffany M., 353 Ill. App. 3d 883, 890, 819
N.E.2d 813, 819 (2004). A decision is against the manifest
weight of the evidence only if the facts clearly demonstrate that
the court should have reached the opposite result. In re D.M.,
336 Ill. App. 3d 766, 773, 784 N.E.2d 304, 310 (2002).
In this case, the evidence presented at the May 2009
best-interest hearing showed that respondent mother (1) had a
substantial and serious history of alcohol and drug abuse, (2)
admitted that she had problems maintaining her sobriety for any
considerable length of time, and (3) had not maintained any
independent parental relationship with Jay. H., Jas. H., or T.W.
In addition, respondent father (1) had an extensive criminal
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history that involved the possession, manufacturing, and delivery
of controlled substances; (2) was currently incarcerated for
manufacturing and distributing cannabis; and (3) would remain
incarcerated until February 2013. Alternatively, since February
2008, Jay. H., Jas. H., and T.W. had been thriving in a loving,
caring environment with Tiffany, respondent father's sister, who
had (1) provided for the health, welfare, and emotional needs of
Jay. H., Jas. H., and T.W. and (2) expressed a sincere interest
in adopting them.
Our review of the record shows that the trial court
appropriately applied this evidence to each of the statutory
factors under section 1-3(4.05) of the Juvenile Court Act (705
ILCS 405/1-3(4.05) (West 2008)), finding that, in addition to
other applicable factors, the current home environment, familiar-
ity, sense of security, and continuity of affection afforded Jay.
H., Jas. H., and T.W. warranted termination of respondents'
parental rights.
Given our standard of review, we conclude that the
court's finding that it was in the best interest of Jay. H., Jas.
H., and T.W. to terminate respondents' parental rights was not
against the manifest weight of the evidence.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
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No. 4-09-0439--Affirmed.
No. 4-09-0460--Affirmed.
McCULLOUGH, P.J., and TURNER, J., concur.
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