In re A.M. , 2023 IL App (5th) 220616-U ( 2023 )

NOTICE
2023 IL App (5th) 220616-UNOTICE
Decision filed 01/06/23. The
This order was filed under
text of this decision may be NOS. 5-22-0616, 5-22-0617 cons. Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re A.M. and M.M., Minors ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Champaign County.
)
Petitioner-Appellee, )
)
v. ) Nos. 22-JA-18, 22-JA-19
)
Timothy M., ) Honorable
) Matthew D. Lee,
Respondent-Appellant). ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Welch and Barberis concurred in the judgment.
ORDER
¶1 Held: Where the respondent stipulated to evidence that he physically abused the minors
and agreed with a recommendation that they be removed from his custody, the
circuit court did not err in finding the minors abused, finding the respondent an
unfit parent, and making the minors wards of the court. As any argument to the
contrary would clearly lack merit, we grant leave to appointed counsel to withdraw
and affirm the circuit court’s judgment.
¶2 The respondent, Timothy M., appeals the circuit court’s orders finding the respondent an
unfit parent and making his children, A.M. and M.M., wards of the court. The respondent’s
appointed appellate counsel contends that there is no arguably meritorious contention that the
circuit court erred in so doing. Accordingly, he has filed a motion to withdraw as counsel. See
Anders v. California, 386 U.S. 738 (1967). Counsel has notified the respondent of his motion and
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this court provided the respondent with ample opportunity to file a response, but he has not done
so. After reviewing the record and considering counsel’s motion, we agree that this appeal presents
no issue of even arguable merit. Therefore, we grant counsel leave to withdraw and affirm the
circuit court’s judgment.
¶3 BACKGROUND
¶4 On February 18, 2022, the State filed two substantively identical petitions for adjudication
of wardship. Count I of each petition alleged that the minors were neglected because their mother,
Paige R., had failed to correct conditions that resulted in a prior finding of parental unfitness. Count
II alleged that the minors were abused in that the respondent injured them “by other than accidental
means.” Count III alleged that the minors were abused in that the respondent had committed sex
offenses against them.
¶5 At a shelter care hearing held that same day, Department of Children and Family Services
(DCFS) investigator April Wilson testified that Rantoul police had reported that A.M. did not
attend school on February 14, 2022, because the respondent had punched her in the face and did
not want anyone to see the resultant bruise. Later, A.M. told Wilson that the respondent would
regularly punch her in the head, face, neck, and ribs, and treated M.M. similarly.
¶6 A.M. also told Wilson that the respondent regularly ordered A.M. to lay on the bed and
take off her pants, after which the respondent would “put it in” her. The last such abuse occurred
one to two weeks earlier. The circuit court found probable cause to believe that the minors had
been abused and neglected, and an urgent necessity to place them in shelter care.
¶7 At an adjudicatory hearing on August 3, the respondent stipulated to count II of each
petition. In return, the State agreed to dismiss count III of each petition (after noting that count I
did not contain any allegations about the respondent) and not to use the stipulation as evidence in
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a criminal case against the respondent resulting from his alleged abuse of A.M. The circuit court
found, in the shelter care report, a factual basis for the stipulation.
¶8 At a subsequent dispositional hearing, Lutheran Social Services of Illinois (LSSI) noted
that M.M., then age 13, had been placed with his paternal grandmother in Rock Falls, and had just
begun eighth grade. A.M., age 10, was in the same house, but had been harming herself and
threatening to burn the house down. She did set a fire, which M.M. extinguished.
¶9 LSSI caseworkers “expressed concerns” about A.M.’s placement, given that A.M.’s
grandmother apparently did not believe her allegations of sexual abuse against the respondent. It
appeared that the grandmother was communicating with the respondent, which was negatively
affecting A.M.’s mental health. Caseworkers had discussed finding a “more supportive placement”
for A.M.
¶ 10 Paige R. had not been heard from since at least April. She apparently had not been actively
involved in the minors’ lives for several years.
¶ 11 LSSI recommended that the circuit court grant custody and guardianship of both minors to
DCFS, and that both parents be ordered to cooperate with recommended services. The respondent
accepted these recommendations. Accordingly, the circuit court adjudged the minors to be
neglected and abused, made them its wards, and found the respondent unfit and unable to parent
and Paige R. unfit, unable, and unwilling to do so. In its dispositional order, the circuit court
granted custody and guardianship of both children to DCFS. The circuit court also noted credible
evidence that A.M. had disclosed abuse to her grandmother, with whom she was placed, but the
grandmother took no action. The circuit court further noted A.M.’s self-harm and attempt to burn
down her grandmother’s house. Thus, the circuit court ordered DCFS to remove A.M. from her
current placement.
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¶ 12 At a subsequent status hearing, Zinanta Brown, an LSSI caseworker, testified that A.M.
had been moved from her grandmother’s house and placed with the family of a school friend. She
seemed happy there and was scheduled to start school in the local system. Arrangements were
being made to move M.M. as well. The respondent expressed a desire to appeal, and a notice of
appeal was filed on his behalf.
¶ 13 ANALYSIS
¶ 14 The respondent’s appointed appellate counsel concludes that he can make no reasonably
meritorious argument that the circuit court erred in finding the respondent an unfit parent and
granting DCFS custody and guardianship of the minors. We agree.
¶ 15 The respondent stipulated to the allegations of physical abuse in count II of the petitions.
Further, he did not dispute the recommendation that the circuit court grant DCFS custody and
guardianship of the minors. Wilson’s testimony and the accompanying reports, which the circuit
court considered, provide a more than adequate factual basis for the stipulation and accompanying
recommendations. The respondent, of course, never produced any countervailing evidence.
¶ 16 A stipulation is an agreement between the parties or their attorneys concerning business
before the circuit court. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 462 (1992). It has the
effect of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact.
Id. A parent’s stipulation of facts can provide a sufficient basis by itself for a circuit court’s finding
of neglect. In re R.B., 336 Ill. App. 3d 606, 618 (2003). A party may not be relieved from a
stipulation unless it is clear that the stipulation is untrue, against public policy, unreasonable, or
procured by fraud. In re Commitment of Walker, 2014 IL App (2d) 130372, ¶ 59. The record
provides no evidence that any of these exceptions applies. Thus, there is no possible factual
predicate for an argument that the circuit court erred.
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¶ 17 Counsel asserts that, after being appointed to represent the respondent, he learned that his
“primary, if not only, reason for appealing was to challenge the order that DCFS remove [A.M.]
from the custody of his mother.” Counsel concludes that an argument against this portion of the
order would not be viable given that it was permitted by statute and there is no evidence in the
record to support a claim that the order was erroneous.
¶ 18 Section 2-23(3) of the Juvenile Court Act of 1987 provides that the circuit court “shall
enter any other orders necessary to fulfill the service plan.” 705 ILCS 405/2-23(3) (West 2020).
The circuit court may not “order specific placements, specific services, or specific service
providers to be included in the plan.” Id. However, this provision does not prevent a circuit court
from ordering DCFS to remove a minor from a foster care placement and select another so long as
the circuit court does not select the new placement. In re B.S., 2021 IL App (5th) 200039, ¶ 31
(citing In re A.L., 294 Ill. App. 3d 441, 446-47 (1998)).
¶ 19 The circuit court’s order to remove A.M. from her grandmother’s house was thus permitted
by section 23-3(3). Moreover, the undisputed evidence was that the grandmother either did not
believe A.M.’s allegations of sexual abuse by the respondent or blamed A.M. This attitude was,
not surprisingly, affecting A.M.’s mental and emotional health. Thus, the order was supported by
both the law and the facts.
¶ 20 In any event, any challenge to the order would be moot. The agencies were planning to
move A.M. before the circuit court’s order and, shortly thereafter, completed the move. A.M. was
placed with a family friend and appeared happy there. An order to place A.M. back with her
grandmother would run afoul of section 23-3(3)’s prohibition against ordering a specific
placement. Accordingly, we agree with counsel that this appeal presents no issue of even arguable
merit.
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¶ 21 CONCLUSION
¶ 22 For the foregoing reasons, we grant counsel leave to withdraw and affirm the circuit court’s
judgment.
¶ 23 Motion granted; judgment affirmed.
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