In re A.L. , 409 Ill. App. 3d 492 ( 2011 )

NO. 4-10-0925 Opinion Filed 4/14/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: A.L., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Schuyler County
v. ) No. 08JA1
ALYSSA MAYFIELD, )
Respondent-Appellant. ) Honorable
) Alesia A. McMillen,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice McCullough con-
curred in the judgment and opinion.
OPINION
In July 2010, the State filed a petition to terminate
the parental rights of respondent, Alyssa Mayfield, as to her
daughter, A.L. (born February 10, 2007). Following a November
2010 hearing, the trial court found respondent unfit. Immedi-
ately thereafter, the court conducted a best-interest hearing and
determined that terminating respondent's parental rights would be
in A.L.'s best interest.
Respondent appeals, arguing only that the trial court's
fitness findings were against the manifest weight of the evi-
dence. We disagree and affirm.
I. BACKGROUND
A. The Circumstances That Prompted the State's Motion
To Terminate Respondent's Parental Rights
In June 2008, the State filed a petition for adjudica-
tion of wardship, alleging that A.L. was a neglected minor in
that her environment was injurious to her welfare (705 ILCS
405/2-3(1)(b) (West 2008)). The State's petition was based on
(1) respondent's admission that she smoked cannabis on a daily
basis and (2) domestic-violence incidents that occurred between
respondent and A.L.'s biological father, Slade Logan.
Prior to the start of a July 2008 adjudicatory hearing,
the State informed the trial court that an agreement had been
reached. Under the terms of the agreement, respondent admitted
that she had unresolved drug-abuse and domestic-violence issues
as alleged by the State. In exchange, the State (1) moved to
continue its petition for adjudication of wardship and (2)
recommended that respondent regain custody of A.L. subject to (a)
supervision by the Department of Children and Family Services
(DCFS) and (b) respondent's completion of specific requirements.
After confirming that (1) respondent's admission was
knowing and voluntary and (2) a factual basis existed, the trial
court accepted the agreement. Thereafter, the court entered an
agreed order of continuance under supervision, which continued
the State's petition for adjudication of wardship until July
2009. In addition, the court's order mandated that respondent
(1) cooperate with DCFS to include compliance with client-
service-plan goals; (2) keep DCFS informed of her current ad-
dress; (3) undergo evaluations, complete counseling, and sign
releases for information as DCFS requests; (4) submit to random
drug tests as DCFS directs; (5) discontinue any contact with
Logan until further notice; and (6) comply with mental-health,
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substance-abuse, and domestic-violence counseling.
Following a September 2008 review hearing, the trial
court found that respondent failed to comply with the court's
agreed order of continuance under supervision, noting that
despite respondent's compliance with counseling services and
three negative drug tests, respondent admitted that she smoked
cannabis once. After sternly admonishing respondent that contin-
ued drug use would result in removal of A.L. from her custody and
the subsequent termination of her parental rights, the court
determined that respondent should maintain custody of A.L.
In October 2008, the State filed a petition to revoke
continuance under supervision, alleging that respondent violated
the trial court's order by traveling in a car with Logan and
failing to report that contact to her caseworker. At a November
5, 2008, hearing on the State's petition, respondent admitted
that she failed to comply with the court's order. In response,
the court entered an order that (1) granted the State's petition,
(2) appointed DCFS as A.L.'s temporary guardian, and (3) sched-
uled a dispositional hearing.
On November 20, 2008, Susan Pierce, respondent's
caseworker, filed a dispositional hearing report, noting that
respondent (1) was complying with her counseling and client-
service-plan goals, (2) tested negative on a random drug-screen-
ing test, and (3) maintained her visitation schedule with A.L.
The following day, the trial court conducted a dispo-
sitional hearing where Pierce testified consistent with her
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report findings, which she stated were based on conversations she
had with two of respondent's counselors. Pierce recommended that
A.L. return to respondent's care contingent upon her continued
cooperation with services. Prior to announcing its judgment, the
court stated the following:
"And 15 days ago we were in this court-
room, and [the court] heard *** evidence,
unrebutted, about what had been going on.
*** [T]here was an admission to the Petition
for Adjudication of Wardship. But even since
then [respondent was] absolutely ignoring the
orders of the court ***. *** [Respondent]
had used drugs, as well as broken the no-
contact rule ***. And yet 15 days later, all
this has magically changed[?] *** [F]or
that kind of dramatic turnaround in 15 days,
[the court would] think [it would] have a ***
piece of paper with somebody's signature on
it *** explaining to [the court] exactly why
[respondent was] able to make that dramatic
of a change. People's personalities and the
problems they have with their behavior don't
change in 15 days."
Thereafter the court entered a dispositional order, (1) adjudi-
cating A.L. a ward of the court, (2) maintaining DCFS as her
guardian, (3) granting respondent unsupervised, overnight visita-
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tion on the weekends and one weekday, and (4) setting a perma-
nency goal of "return home within 12 months."
At a January 2009 status review hearing, the trial
court considered a status hearing report prepared by a DCFS
contractor that showed respondent reported she was living with a
"boyfriend," which prompted the following exchange:
"THE COURT: ***
You have somebody in your home *** liv-
ing with you[? The court] couldn't get a
straight read from the report, because [the
court does not] think you were *** forthcom-
ing with the [caseworker] about what that
situation is, but you've got somebody in the
home now who's a convicted felon, multiple
times convicted of drug use, and this is a
person that you think is appropriate to have
in your home when [A.L.] is there?
[RESPONDENT]: Apparently not."
Following the hearing, the court entered an order, finding that
respondent was not in compliance with its November 2008
dispositional order despite respondent's counseling participation
and negative drug-screening test results. The court's order
mandated that respondent refrain from having any contact with
Logan, her boyfriend, or "any other member of the opposite sex."
In addition, the court (1) eliminated respondent's overnight
visitation with A.L. and (2) maintained the permanency goal of
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return home within 12 months.
At a May 2009 permanency review hearing, the court
considered evidence, contained in a permanency-review-hearing
report prepared by respondent's caseworker, Frani Estes. Estes'
report noted that in April 2009, respondent violated the court's
November 2008 dispositional order by testing positive for tetra-
hydrocannabinol (THC), a psychoactive substance in cannabis, and
opiates. The court entered a permanency hearing order, finding
that respondent failed to make reasonable progress toward A.L.'s
return home within 12 months. The court's order mandated that
(1) respondent's visitation schedule with A.L. be reduced to two
hours of supervised visitation per week and (2) the current
permanency goal of return home within 12 months remain unchanged.
Later that same month, Estes rated respondent's overall progress
on completing her client-service-plan goals as unsatisfactory
because of respondent's drug relapse.
At an October 2009 permanency review hearing, which was
continued to December 2009, the trial court considered the
permanency-review-hearing report of respondent's new caseworker,
Brandy Bradshaw, which was supported by Bradshaw's testimony. In
particular, Bradshaw noted that respondent failed to (1) comply
with drug and alcohol counseling in that she was not attending
the number of weekly meetings prescribed and (2) provide the
requested documentation confirming her attendance at those
counseling sessions. Bradshaw confirmed that respondent's
visitation with A.L. was "positive and full of activities[,]
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dinners[,] and readings" but recommended that respondent's
visitation remain supervised at two hours per week because she
was not making sufficient progress in completing her substance-
abuse, domestic-violence, and individual counseling.
Respondent testified that she was not attending her
semiweekly drug and alcohol counseling sessions because "several"
sessions were cancelled because fewer than three participants
were present. Respondent also noted that following the October
2009 permanency review hearing, she began completing 75 hours of
outpatient drug and alcohol treatment by attending weekly meet-
ings. Respondent explained that she did not appear for a Novem-
ber 2009 drug-screening test because she had car troubles and the
driving conditions on that night were not good.
Respondent admitted that she (1) had failed to complete
at least two drug-screening tests; (2) had been in contact with
her former male roommate, whom she described as a friend; (3)
entered a drug-treatment facility in April 2009 because she had
been using heroin; and (4) had previously admitted that she found
ways to register a negative result on drug-screening tests
despite using illicit drugs.
Thereafter, the trial court entered a permanency
hearing order, (1) finding that respondent failed to make reason-
able progress toward A.L.'s return home within 12 months, (2)
maintaining the permanency goal of return home within 12 months,
and (3) scheduling a March 2010 permanency review hearing to
consider DCFS' recommendations from its proposed legal screening
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of respondent's case.
At the March 2010 hearing, the trial court considered a
permanency-review-hearing report prepared by respondent's new
caseworker, Julie Thompson, who testified consistent with her
report. In particular, the report and testimony showed that
respondent (1) was unemployed and did not have any transporta-
tion; (2) had not attended any substance-abuse or individual
counseling sessions since the December 2009 permanency review
hearing but had expressed a willingness to do so once her trans-
portation problems were resolved; (3) admitted that she was using
heroin "at least two times per day"; and (4) was not participat-
ing in drug screening because she knew the test results would be
positive. During the hearing, the court ordered respondent to
undergo a drug test. Shortly thereafter, the test result re-
vealed that respondent tested positive for THC and opiates.
Afterward, the court entered a permanency hearing order, changing
the permanency goal to substitute care pending termination of
respondent's parental rights.
In July 2010, the State filed a petition seeking to
terminate the parental rights of respondent, alleging that she
was an unfit parent in that she (1) failed to make reasonable
progress toward the return of A.L. within nine months after the
adjudication of neglect (November 21, 2008, through August 21,
2009) (750 ILCS 50/1(D)(m)(ii) (West 2008)) and (2) failed to
make reasonable progress toward the return of A.L. during any
nine-month period after the adjudication of neglect (750 ILCS
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50/1(D)(m)(iii) (West 2008)), specifically the nine-month period
from August 21, 2009, through May 21, 2010.
B. The Evidence Presented at Respondent's Fitness Hearing
1. The State's Evidence
A summary of the pertinent evidence presented by the
State at respondent's fitness hearing showed the following.
Kari Blickhan, respondent's caseworker from November
2009 through January 2010, characterized the frequency of her
interaction with respondent as "inconsistent." Blickhan met with
respondent three times during her tenure, adding that respon-
dent's "follow-through" was virtually nonexistent. Blickhan
recounted how she scheduled respondent for approximately six
drug-screening tests and received documentation that respondent
(1) completed one test and (2) failed to appear for three tests.
Respondent admitted to Blickhan that she was not complying with
her drug-screening tests because "she knew she would be dirty."
Blickhan acknowledged that during one conversation, respondent
stated that she was "going through some struggles" to explain her
missed drug-screening tests. However, Blickhan stated that
respondent did not mention that she was having trouble getting to
her appointments, mentioning instead that respondent stated that
she had her own vehicle or could find transportation.
Thompson, who, in February 2010, became respondent's
new caseworker, testified that in March 2010, she spoke with
respondent about scheduling services for respondent, who had
stopped making any progress on her client-service-plan goals.
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When Thompson mentioned that respondent would be required to
continue drug testing, respondent informed Thompson that she "was
back to a twice-a-day usage and that there was no point, that she
would be dirty." In May 2010, Thompson rated respondent's
overall progress on completing her client-service-plan goals as
unsatisfactory. Thompson based her rating on respondent's
substance-abuse problems, which respondent admitted to Thompson
were occurring during the six-month evaluation period.
Prior to the close of the State's case, the trial court
complied with the State's request--which was proffered without
objection--to take judicial notice of (1) its pertinent orders,
(2) the permanency-review-hearing reports, and (3) respondent's
client service plans.
2. Respondent's Evidence
Respondent testified (1) about her employment history
from January 2009 through November 2009; (2) about her living
arrangement, which she described consisted of residing in a
mobile home that was owned by her mother; (3) that she trans-
ported herself to her drug-screening tests; (4) that she initi-
ated her individual counseling sessions, which she paid for; and
(5) that she asked her caseworkers for "other treatment" that
they failed to provide. Respondent also admitted that from (1)
January 2009 through April 2009; (2) August 2009 through December
2009; and (3) January 2010 through May 2010, she continued to use
heroin and that she did not have any financial difficulties
acquiring that particular drug.
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3. The Trial Court's Determination
After considering the arguments of the respective
parties, the following exchange occurred:
"THE COURT: Counsel, can you all agree
on what the date of adjudication was in this
case? Is it November of [20]08?
[THE STATE]: Yes. Once the Court su-
pervision was revoked, that's the adjudica-
tion.
THE COURT: There was actually an adju-
dication. Do you disagree with that date[?]
[RESPONDENT'S COUNSEL]: I believe
that's accurate.
[GUARDIAN AD LITEM]: I believe it is."
After considering the evidence and counsel's arguments,
the trial court entered a written order, finding that respondent
was unfit in that she (1) failed to make reasonable progress
toward the return of A.L. within nine months after the adjudica-
tion of neglect (750 ILCS 50/1(D)(m)(ii) (West 2008)) and (2)
failed to make reasonable progress toward the return of A.L.
during any nine-month period after the end of the initial nine-
month period following the adjudication of neglect (750 ILCS
50/1(D)(m)(iii) (West 2008)).
C. The Trial Court's Determination at
the Best-Interest Hearing
At a best-interest hearing conducted immediately
thereafter, the trial court considered evidence presented by the
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State that A.L. (1) was placed in a single-family home with her
paternal grandparents; (2) had bonded with her grandparents; and
(3) was thriving in a loving environment in which her personal,
health, and emotional needs were being met. Respondent's case-
worker testified that respondent (1) moved to Missouri sometime
after July 2010 and (2) had not expressed any interest in or
asked any questions regarding A.L.'s welfare since her departure.
The caseworker recommended that respondent's parental rights be
terminated based on respondent's inability to correct the condi-
tions that led to DCFS' involvement. (Respondent did not present
any evidence at the best-interest hearing.)
After considering the evidence and counsel's arguments,
the trial court terminated respondent's parental rights.
This appeal followed.
II. THE TRIAL COURT'S FITNESS FINDING
Respondent argues that the trial court's fitness
findings were against the manifest weight of the evidence. We
disagree.
A. The Applicable Statute, Reasonable Progress,
and the Standard of Review
"Parental rights may be involuntarily terminated where
(1) the State proves, by clear and convincing evidence, that a
parent is unfit pursuant to grounds set forth in section 1(D) of
the Adoption Act (750 ILCS 50/1(D) (West 2006)) and (2) the trial
court finds that termination is in the child's best interests."
In re M.R., 393 Ill. App. 3d 609, 613, 912 N.E.2d 337, 341-42
(2009).
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Section 1(D)(m)(iii) of the Adoption Act provides, in
pertinent part, as follows:
"The grounds of unfitness are any *** of the
following ***:
* * *
(m) Failure by a parent ***
(iii) to make reasonable progress
toward the return of the child to
the parent during any [nine]-month
period after the end of the initial
[nine]-month period following the
adjudication of neglected or abused
minor *** or dependent minor ***."
750 ILCS 50/1(D)(m)(iii) (West
2008).
In In re C.N., 196 Ill. 2d 181, 216-17, 752 N.E.2d
1030, 1050 (2001), the supreme court discussed the following
benchmark for measuring "reasonable progress" under section
1(D)(m) of the Adoption Act:
"[T]he benchmark for measuring a parent's
'progress toward the return of the child'
under section 1(D)(m) of the Adoption Act
encompasses the parent's compliance with the
service plans and the court's directives, in
light of the condition which gave rise to the
removal of the child, and in light of other
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conditions which later become known and which
would prevent the court from returning cus-
tody of the child to the parent."
In In re L.L.S., 218 Ill. App. 3d 444, 461, 577 N.E.2d
1375, 1387 (1991), this court discussed reasonable progress under
section 1(D)(m) of the Adoption Act and held as follows:
"'Reasonable progress' *** exists when the
[trial] court *** can conclude that *** the
court, in the near future, will be able to
order the child returned to parental custody.
The court will be able to order the child
returned to parental custody in the near
future because, at that point, the parent
will have fully complied with the directives
previously given to the parent ***." (Empha-
ses in original.)
The supreme court's discussion in C.N. regarding the benchmark
for measuring a respondent parent's progress did not alter or
call into question this court's holding in L.L.S. For cases
citing the L.L.S. holding approvingly, see In re Daphnie E., 368
Ill. App. 3d 1052, 1067, 859 N.E.2d 123, 137 (2006); In re Jordan
V., 347 Ill. App. 3d 1057, 1068, 808 N.E.2d 596, 605 (2004); In
re B.W., 309 Ill. App. 3d 493, 499, 721 N.E.2d 1202, 1207 (1999);
and In re K.P., 305 Ill. App. 3d 175, 180, 711 N.E.2d 478, 482
(1999).
"The State must prove parental unfitness by clear and
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convincing evidence, and the trial court's findings must be given
great deference because of its superior opportunity to observe
the witnesses and evaluate their credibility." Jordan V., 347
Ill. App. 3d at 1067, 808 N.E.2d at 604. A reviewing court will
not reverse a trial court's fitness finding unless it was con-
trary to the manifest weight of the evidence, meaning that the
opposite conclusion is clearly evident from a review of the
record. Jordan V., 347 Ill. App. 3d at 1067, 808 N.E.2d at 604.
B. Respondent's Claim That the Trial Court's Fitness Finding
Was Against the Manifest Weight of the Evidence
In her brief to this court, respondent essentially
contends that the evidence presented at her fitness hearing
showed that she had made reasonable progress toward the return of
A.L. Specifically, respondent asserts, in part, that the evi-
dence showed that from August 21, 2009, through May 21, 2010--the
nine months that immediately followed the initial nine-month
period--she received a satisfactory progress rating on the
following client-service-plan goals: (1) cooperate in completing
an alcohol/drug-use assessment, (2) ensure that respondent did
not inflict physical punishment or allow such punishment to be
inflicted upon A.L., (3) demonstrate parenting techniques when
interacting with A.L., and (4) cooperate and comply with DCFS
administrative requirements.
However, despite respondent's claims, the same client
service plan that respondent relies on to tout her satisfactory
ratings on specific client-service-plan goals was rated as
unsatisfactory overall because respondent failed to show reason-
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able progress on the following client-service-plan goals: (1)
comply with drug-screening tests; (2) comply with drug-treatment,
mental-health, and individual counseling recommendations; (3)
stop use of all alcohol and nonprescribed medication; (4) demon-
strate progress on substance-abuse issues by developing a relapse
plan; and (5) comply with court orders regarding client-service-
plan services. In addition, the evidence presented at respon-
dent's fitness hearing belies her argument that the trial court's
fitness finding was against the manifest weight of the evidence.
In this case, the evidence showed that after the
initial nine-month period following the neglect adjudication,
which ended on August 20, 2009, respondent received an overall
unsatisfactory evaluation on two separate client service plans
spanning a time period from November 2009, when Bradshaw rated
her overall progress as unsatisfactory, through May 2010, when
Thompson rated respondent's progress as unsatisfactory--both
based primarily upon respondent's continued failure to address
her increasing illicit drug use. Indeed, respondent readily
admitted at her November 2010 fitness hearing that from August
2009 through May 2010, she continued to use heroin at least two
times per day and that she did not have any financial difficul-
ties acquiring that particular drug.
More important, the evidence did not show that respon-
dent had fully complied with her specific client-service-plan
goals during the relevant nine-month periods such that A.L. could
have been placed in respondent's care in the near future.
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Accordingly, reviewing the evidence pursuant to the applicable
standard of review (as we are required to do), we conclude that
the court's unfitness finding was not against the manifest weight
of the evidence.
Because we have concluded that the trial court's
finding that respondent failed to make reasonable progress toward
the return of her child during any nine-month period after the
end of the initial nine-month period following the adjudication
of neglect (750 ILCS 50/1(D)(m)(iii) (West 2006)) was not con-
trary to the manifest weight of the evidence, we need not con-
sider other findings of parental unfitness. See In re Katrina
R., 364 Ill. App. 3d 834, 842, 847 N.E.2d 586, 593 (2006) (on
review, if sufficient evidence is shown to satisfy any one
statutory ground, we need not consider other findings of parental
unfitness).
III. EPILOGUE
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, a trial court can
take judicial notice of the entire record preceding the parental-
termination hearing without first finding that the contents of
the court file were admissible under the civil rules of evidence.
See In re M.S., 239 Ill. App. 3d 938, 946, 606 N.E.2d 768, 773
(1992) (where this court concluded that the rules of evidence
that normally apply to civil cases also apply to fitness hearings
under the Adoption Act). The rationale for our decision in J.G.
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concerned the severity of the sanction that could be imposed upon
a parent at a fitness proceeding under the Adoption Act--namely,
"the permanent and irrevocable loss of any rights to his or her
child." J.G., 298 Ill. App. 3d at 629, 699 N.E.2d at 175.
However, the same civil rules of evidence that we
deemed applicable to fitness hearings under the Adoption Act do
not apply at either dispositional hearings or permanency review
hearings, which are governed, in part, by sections 2-22(1) and 2-
28(2) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705
ILCS 405/2-22(1), 2-28(2) (West 2008)). In J.G., we explained
this difference in the rules of evidence as follows:
"In the typical termination of rights
case, the file has been open for at least a
year and, frequently, much longer. During
that period, the trial court will have con-
ducted any number of review hearings and DCFS
will have filed various service plans and
reports with the court. These materials
serve a vital function at the review hearings
in assisting the court in determining whether
a child may be returned home and the case
closed, or whether the parent has failed to
progress to the point where reunification is
appropriate. These reports may contain hear-
say. However, trial courts are allowed by
statute at review hearings to consider all
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evidence relevant to determining the ques-
tions of (1) appropriateness of the perma-
nency goal, (2) appropriateness of the ser-
vice plan to achieve this goal, (3) appropri-
ateness of the services contained in the plan
and whether those services have been pro-
vided, (4) whether reasonable efforts have
been made by all parties to the service plan
to achieve the goal, and (5) whether the plan
and goal have been achieved. 705 ILCS
405/2-28(2) (West 1996).
At an unfitness hearing, the trial court
must necessarily take notice of certain facts
relating to how the case has reached the
point at which termination of parental rights
is sought by the State. Thus, the court must
know what steps the parent was supposed to
have taken in order to achieve reunification
with the child and when the clock began to
run during which time the parent was required
to take these steps. However, wholesale
judicial notice of everything that took place
prior to the unfitness hearing is unnecessary
and inappropriate. The rules of evidence in
civil cases apply to adjudicatory hearings
under the Act (705 ILCS 405/2-18(1) (West
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1996)), with a limited exception for hearsay,
as contained in section 2-18(4)(a) of the Act
(705 ILCS 405/2-18(4)(a) (West 1996))."
J.G., 298 Ill. App. 3d at 628-29, 699 N.E.2d
at 175.
We note that section 2-22(1) of the Juvenile Court Act
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
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 con-
sider the permanency goal set for the minor,
the nature of the service plan for the minor
and the services delivered and to be deliv-
ered under the plan. All evidence helpful in
determining these questions, including oral
and written reports, may be admitted and may
be relied upon to the extent of its probative
value, even though not competent for the
purposes of the adjudicatory hearing." (Em-
phasis added.) 705 ILCS 405/2-22(1) (West
2008).
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Similarly, section 2-28(2) provides that in selecting
the permanency goal that is in the best interest of the child, a
trial court shall consider the following:
"The court shall consider (i) the perma-
nency goal contained in the service plan,
(ii) the appropriateness of the services
contained in the plan and whether those ser-
vices have been provided, (iii) whether rea-
sonable efforts have been made by all the
parties to the service plan to achieve the
goal, and (iv) whether the plan and goal have
been achieved. All evidence relevant to
determining these questions, including oral
and written reports, may be admitted and may
be relied on to the extent of their probative
value." (Emphasis added.) 705 ILCS 405/2-
28(2) (West 2008).
In J.G., 298 Ill. App. 3d at 629, 699 N.E.2d at 175-76,
this court also stated the following regarding the proper proce-
dure to employ when requesting that a trial court take judicial
notice of evidence at a fitness hearing pursuant to the Adoption
Act:
"If the State wishes the trial court to
take judicial notice of portions of the court
file in a particular unfitness proceeding,
the State can make a proffer to the court of
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the material requested to be noticed. De-
fense counsel should then be allowed an op-
portunity to object to the State's request.
Such a procedure would serve to focus the
trial court's attention on only those matters
that are admissible under the rules of evi-
dence, as well as make it easier for a re-
viewing court to determine what the trial
court actually relied on in making its deci-
sion of unfitness. Above all, the trial
court's decision as to whether a parent is
unfit should be based only upon evidence
properly admitted at the unfitness hearing."
In In re Ch.W., Nos. 4-09-0925, 4-10-0831 cons., slip op. at 14
(Ill. App. Mar. 10, 2011), this court recently reaffirmed the
above analysis and suggestions.
It is within this aforementioned context that we
provide the portion of the record in this case that occurred, as
we previously noted, immediately prior to the close of the
State's case, at which the parties had the following discussion
regarding the entry of the entire record preceding respondent's
November 2010 fitness hearing:
"[THE STATE]: And [the State believes]
all that's left at this point is [the State
requests] the Court to take judicial notice
of the Court file in [this case] in regard[]
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to the Court orders and permanency review
reports, and client service plans that have
previously been on file.
THE COURT: Any objections with that,
Counsel?
[RESPONDENT'S COUNSEL]: No.
THE COURT: Then the Court will take
judicial notice of its *** orders in [this
case] and all permanency reports filed
therein."
The prevailing theme of our discussions regarding the
various proceedings under the Juvenile Court Act and Adoption Act
is that when a party requests that the trial court take judicial
notice of the prior record at a fitness hearing, the parties as
well as the court must be clear as to the scope of the judicial
notice requested. This required clarity is important given our
aforementioned discussion regarding the different rules of
evidence that apply--namely, no formal rules of evidence at a
dispositional or permanency review hearing, yet those same rules
of evidence are strictly enforced at fitness hearings.
The record in this case suggests that the State did not
intend to tailor its judicial-notice request to narrow portions
of the prior proceedings that would merely inform the trial court
of the circumstances surrounding how the parties found themselves
at a fitness hearing seeking to terminate respondent's parental
rights. Instead, the record implies that the State was asking
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the court to take judicial notice of the entire record of pro-
ceedings prior to the termination hearing and to give that prior
record substantive effect. However, for the reasons stated in
J.G., the parties need to be explicit as to the scope of the
judicial notice being requested, and the court must be explicit
as to the scope of the judicial notice it is granting. Doing so
would avoid the need for this court to speculate about what
evidence the trial court considered in making its determination
at the fitness hearing.
Here, we will infer, based on the record, that the
State was asking for the trial court to take judicial notice of
the entire record (various reports as well as testimony) preced-
ing the parental-termination hearing and to give that record
substantive effect. We further infer that respondent agreed to
the scope of the judicial notice taken by the court.
We find support for our inference regarding respon-
dent's acquiescence to the broad scope of the trial court's
judicial notice based on the defense respondent chose to employ.
At the November 2010 fitness hearing, respondent sought to call
into question the written statements that her caseworkers made in
support of their respective evaluations that she was not making
reasonable progress in completing her client-service-plan goals.
In particular, respondent sought to discredit Thompson's May 2010
overall unsatisfactory rating on respondent's client service plan
by claiming that Thompson's evaluation was not based on her own
personal knowledge but, instead, on prior contact, notes, and
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discussions with the prior caseworker. Thus, respondent may have
made the strategic decision to allow the trial court to take
broad judicial notice of the client service plan, which was
otherwise inadmissable as substantive evidence, to bolster her
argument in that regard. Similarly, in her brief to this court,
respondent relies on specific responses Bradshaw provided at an
October 7, 2009, permanency review hearing to refute Bradshaw's
claim in her permanency-review-hearing report--both of which
would normally be inadmissible--that respondent was not complying
with her client-service-plan goals.
In concluding, we note that even if the trial court had
not taken judicial notice of the record preceding the parental-
termination hearing, the remaining evidence presented at the
November 2010 fitness hearing supported the court's determina-
tion. Nonetheless, we mention this matter because in future
proceedings, we expect the court and parties to comply with J.G.
See In re A.B., 308 Ill. App. 3d 227, 239, 719 N.E.2d 348, 358
(1999) (where the Second District endorsed this court's analysis
in J.G. and similarly suggested that the better practice is for a
"trial court to require the State to make a proffer of the items
of which it wished the court to take notice").
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
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