In re J.H. , 2020 IL App (4th) 200150 ( 2020 )

2020 IL App (4th) 200150FILED
NOS. 4-20-0150, 4-20-0151 cons. August 3, 2020
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re J.H., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Macon County
Petitioner-Appellee, ) No. 18JA160
v. (No. 4-20-0150) )
Shalyn M., )
Respondent-Appellant). )
____________________________________________ )
)
) No. 18JA161
In re K.H., a Minor )
)
(The People of the State of Illinois, )
Petitioner-Appellee, )
v. (No. 4-20-0151) ) Honorable
Michael H., ) Thomas E. Little,
) Judge Presiding.
Respondent-Appellant).
JUSTICE CAVANAGH delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice DeArmond concurred in the judgment
and opinion.
OPINION
¶1 We have consolidated two appeals from the termination of parental rights. One
appeal is by Shalyn M., the father of J.H., who was born on September 12, 2014. The other appeal
is by Michael H., the father of K.H., who was born on September 26, 2011. Although J.H. and
K.H. have different fathers, they have the same mother. The mother, who voluntarily surrendered
her parental rights to the two children, does not appeal. But the fathers, the respondents, Shalyn
M. and Michael H., do appeal. They contend that, in arriving at the decision to terminate their
parental rights, the circuit court of Macon County made findings that were against the manifest
weight of the evidence. Specifically, respondents challenge the court’s findings that (1) they are
unfit to have children and (2) terminating their parental rights would be in the best interests of their
respective daughters, J.H. and K.H.
¶2 The circuit court’s findings against Michael H. are not against the manifest weight
of the evidence. By finding Shalyn M., however, to be unfit to have a child, the court made a
finding that was against the manifest weight of the evidence. Therefore, in case No. 4-20-0150,
we reverse the judgment against Shalyn M., but, in case No. 4-20-0151, we affirm the judgment
against Michael H.
¶3 I. BACKGROUND
¶4 A. The Motions for the Termination of Parental Rights
¶5 On July 31, 2019, the State filed motions to terminate respondents’ parental rights
(as well as the mother’s parental rights, but, as it turned out, she voluntarily surrendered her
parental rights before the best-interest hearing). The State made the same four allegations against
both respondents, that is, against both fathers.
¶6 First, the State alleged that respondents had “failed to maintain a reasonable degree
of interest, concern, or responsibility as to the minor’s welfare.” See 750 ILCS 50/1(D)(b) (West
2018).
¶7 Second, the State alleged that respondents had “failed to make reasonable efforts to
correct the conditions that were the basis for the removal of the minor from the parent during any
[nine-]month period following the adjudication of neglect.” See id. § 1(D)(m)(i).
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¶8 Third, the State alleged that, during the nine-month period of August 30, 2018, to
May 30, 2019, respondents “failed to make reasonable progress toward the return of the minor to
the parent.” See id. § 1(D)(m)(ii).
¶9 Fourth, the State alleged that, during the nine-month period of October 29, 2018, to
July 29, 2019, respondents “failed to make reasonable progress toward the return of the minor to
the parent.” See id.
¶ 10 B. The Parental Fitness Hearing
¶ 11 On January 27, 2020, the circuit court held an evidentiary hearing on the issue of
whether the parents of J.H. and K.H. met the statutory definitions of an “unfit person” that the
State cited in its motions for the termination of their parental rights (see id. § 1(D)(b), (D)(m)(i),
(D)(m)(ii)). The witnesses in the hearing testified substantially as follows. (We have omitted most
of the evidence pertaining to the mother, since she is not a party to these appeals.)
¶ 12 1. The Testimony of Antoinette Dawson
¶ 13 Antoinette Dawson was a case aide at Webster-Cantrell Hall in Decatur, Illinois.
She supervised the mother’s visits of J.H. and K.H. and Shalyn M.’s visits of J.H.
¶ 14 Dawson had observed the mother’s visits for about a year. Initially, when visits
were weekly, the mother’s attendance was unreliable. Her attendance improved somewhat after
the visitation schedule was changed to once a month instead of every week. Some days, the
medication the mother was taking rendered her unable to attend. And when the mother showed up
for visitation, the medication tended to make her doze off.
¶ 15 Shalyn M.’s visits with J.H. went better. He brought books and read to J.H. He
taught her the alphabet and how to tie her shoes. He never let her eat candy or drink pop. He did
well in visitations—but afterward he went to prison, and Dawson saw no more of him.
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¶ 16 Dawson never knew K.H.’s father, Michael H. He never visited K.H.
¶ 17 2. The Testimony of Mary Mescher
¶ 18 Mary Mescher was assigned the cases of J.H. and K.H. in October 2018 and had
been their court-appointed special advocate ever since then.
¶ 19 Mescher supervised the mother’s visitations. Something about the dosage of
methadone the mother was taking made her prone to fall asleep, even while she was standing up.
Mescher was afraid that, during visits, the mother might fall on J.H.
¶ 20 There had been no visitation between Michael H. and K.H. But K.H. once remarked
that she had received a letter from Michael H. The context of the remark was a conversation
between J.H. and K.H. about their both having fathers who were in prison.
¶ 21 Mescher herself had never observed any of the visits between Shalyn M. and J.H.
But those visits, by Mescher’s understanding, had been going well. Shalyn M. had been visiting
J.H. every week, and he was being considered for extended visitation, depending on whether he
got his legal problems cleared up. In early 2019, he was even being considered as a possible
return-home placement. Then, in March 2019, Shalyn M. was sentenced to imprisonment.
¶ 22 3. The Testimony of Matthew Stymets
¶ 23 a. His Testimony Regarding Michael H.
¶ 24 Matthew Stymets, a foster-care caseworker at Webster-Cantrell Hall, had been
assigned the cases of J.H. and K.H. since February 2019. Not long after Stymets took over these
cases from a previous caseworker, he received two letters from Michael H., who was incarcerated
in Florida. One letter was addressed to him, Stymets. The other letter was addressed to K.H.
Stymets wrote back to Michael H., informing him that K.H. was healthy and happy in her foster
home. The letter to K.H., her counselor reported back, was upsetting to K.H. because she barely
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knew Michael H. and was afraid he would come to Illinois and take her with him to Florida. In
September 2019, Michael H. sent K.H. a birthday card. The previous caseworker, the one
preceding Stymets, had received one letter or, perhaps, two letters from Michael H. As for Stymets,
the letter to him and the letter to K.H. were the only two letters he had received from Michael H.
since February 2019, when Stymets took over the case. Stymets had never set up any phone calls
with Michael H. Nor had he ever heard of any instances when Michael H. spoke with K.H. by
phone.
¶ 25 Because the contact from Michael H. had been so sparse, he was never added to the
service plans. To Stymets’s knowledge, Michael H. had never received any services in Florida.
But Stymets had never asked him about services, nor had Stymets recommended any. Having
never observed Michael H. with K.H., Stymets could not say, one way or the other, whether
Michael H. would be able to fulfill his parental responsibilities.
¶ 26 By Stymets’s understanding, Michael H. would be released from the Florida
correctional system in 2021.
¶ 27 b. Stymet’s Testimony Regarding Shalyn M.
¶ 28 In the service-plan evaluation of January 2019, Shalyn M. received a rating of
satisfactory. When he was incarcerated in approximately April 2019, the only services remaining
for him were visitation and random drug-testing. Before being incarcerated, however, Shalyn M.
completed a substance-abuse assessment, and the determination from the assessment was that he
needed no substance-abuse services. When Shalyn M. went to jail, visitation ceased. But before
going to jail, he was receiving overnights and weekends with J.H. He was doing well until his legal
problems flared up.
¶ 29 The prosecutor asked Stymets:
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“Q. When [Shalyn M.] was incarcerated in the jail, did he have visits over
the—over the phone?
A. At the time, visitation was offered, but I believe they were—he—he—
we were told that he did not want visitation.”
After April 2019, when he went to prison, Shalyn M. had no further in-person contact with J.H.,
although he spoke with her by phone “a handful of times,” as Stymets put it.
¶ 30 Despite the determination, from the substance-abuse evaluation, that Shalyn M.
needed no substance-abuse services, it was in his service plan that he continue undergoing random
drug-testing, just as it was in his service plan that he continue visiting J.H. But there had been no
drug-testing or in-person visitation since he was incarcerated.
¶ 31 Stymets agreed that Shalyn M. was not the reason why J.H. came into care. Instead,
there were (unspecified) issues with the mother. Shalyn M. participated satisfactorily in services
throughout the case. In fact, as of March 2019, Stymets had no concerns at all about him. The only
thing that was still hanging out there, as of March 2019, was the criminal case. Shalyn M. was
doing well with weekend visits and was having good interactions with J.H. And, in fact, by March
2019, he was being considered for a return-home placement once his legal status was clear. The
trouble was, after a brief stay in the Macon County jail, he was sentenced in April 2019 and went
straight to prison. His expected parole date was in February 2022. (Stymets also testified that it
was in 2021.)
¶ 32 Ever since Shalyn M. went to the Illinois Department of Corrections, Stymets had
never sent him any letters or gone to the prison to see him. Once, Stymets attempted to speak with
Shalyn M. by phone, but when Stymets went into his office, the call never came through. Stymets
was made aware, through Shalyn M.’s attorney, that there was difficulty getting the connection to
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go through to Webster-Cantrell Hall. Stymets also attempted to speak with Shalyn M.’s counselor
at the Department of Corrections but could never get anyone there to return his message. That was
the counselor’s fault, Stymets admitted, not Shalyn M.’s fault. Stymets had sent no correspondence
to Shalyn M. in prison. Shalyn M. participated, by phone, in an annual case review while he was
incarcerated, but Stymets could not recall, one way or the other, whether visitation was discussed.
¶ 33 Someone had told Stymets that Shalyn M. “would not want visits in jail.” Stymets
had never heard that directly from Shalyn M.—and Stymets had never asked Shalyn M. himself
whether he wanted visitation in jail. Stymets could not remember for sure who had told him that
Shalyn M. wanted to forgo jail visitation, but he thought it was “the foster parents.” At no time did
Stymets attempt to arrange for visits while Shalyn M. was incarcerated.
¶ 34 On cross-examination, Stymets was asked if he was aware that Shalyn M. had been
telephoning J.H. during his incarceration:
“Q. Are you aware that [Shalyn M.] has been maintaining phone contact
with [J.H.]?
A. Yes.
Q. Are you aware it’s weekly communication?
A. Yes.”
(This was despite Stymets’s earlier testimony, on direct examination, that Shalyn M. had spoken
with J.H. by phone only “a handful of times” after he was incarcerated.) Stymets also was aware
that, while incarcerated, Shalyn M. had been using family members to send packages to J.H.—
items such as clothing and toys—and that Shalyn M. had proposed arranging a guardianship with
one of his own family members, an idea the agency had rejected out of an unwillingness to separate
the children.
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¶ 35 One of the periods during which Shalyn M. allegedly failed to make reasonable
progress was August 30, 2018, to May 30, 2019. In the opinion of Stymets, though, Shalyn M.
made reasonable progress from August 30, 2018, through April 2019. Of that nine-month period,
it was only April 2019, the month of Shalyn M.’s admission to the Illinois Department of
Corrections, that was problematic in Stymets’s thinking.
¶ 36 The other period during which Shalyn M. allegedly failed to make reasonable
progress was October 29, 2018, to July 29, 2019. But his progress from October 29, 2018, to April
2019 was, in Stymets’s estimation, reasonable.
¶ 37 Defense counsel asked Stymets:
“Q. When [Shalyn M.] is released from prison, you wouldn’t have any
additional services for [him] to complete; is that correct?
A. I would probably ask him to re-do a substance abuse assessment just on
the grounds that that was what the charge was for.
Q. All right. But once he completed that, would he again be a suitable
placement for [J.H.]?
A. Um, we would have to observe [J.H.] with him again.
Q. But there are no other concerns that have arisen in the last few months
that cause you concern?
A. No.”
¶ 38 On redirect examination, the State asked Stymets:
“Q. Was there any initial problem with placing [J.H.] with [Shalyn M.], due
to his criminal history?
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A. I was not made aware of his criminal history until after he had already
been arrested, or charged, I should say.
Q. So you didn’t know what his background—
A. No.
Q. —included?
A. (Shook head in the negative.)
Q. Had you known that, would the visits with [J.H.] been allowed?
A. A visitation would have still been allowed; however, we probably would
not have gone all the way doing weekend visits at that time until the criminal
charges were cleared up.”
¶ 39 At the conclusion of the parental fitness hearing, the circuit court found Dawson,
Mescher, and Stymets to be credible witnesses. According to Dawson, Shalyn M. had done well
in visitation. According to Stymets, Shalyn M. “was rated [as] overall satisfactory in [the] first
[s]ervice [p]lan.” Stymets “plainly testified that [Shalyn M.] had overnight and extended weekend
visitations” and that, “overall[,] he was doing well.” But subsequently, in April 2019, Shalyn M.
went to prison, whereupon his in-person visitation with J.H. ceased. The court continued: “With
respect to [Shalyn M.], he would not be released until sometime next year. So again, Mr. Stymets
testified that he did not believe that [Shalyn M.] could be considered realistically a fit parent within
the next six to nine months.”
¶ 40 As for Michael H., Stymets “had no observations of [him] with the child, so
[Stymets] really couldn’t say one way or the other, but it [was] clear that [Michael H.] ha[d] not
performed any requirements.” In closing arguments, the guardian ad litem “ha[d] pointed out
that[,] apparently[,] [Michael H.] was not involved in the [s]ervice [p]lan.” Even so, the circuit
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court reasoned, “the fact that [Michael H. was] incarcerated apparently [was] due to his own
devices.”
¶ 41 The circuit court found, by clear and convincing evidence, that respondents were
“unfit persons” within the meaning of each subsection of section 1(D) of the Adoption Act (id.
§ 1(D)) that the State had cited in its motions for the termination of parental rights. (The court
found the mother to be an “unfit person,” too, for the reasons the State had alleged.)
¶ 42 Specifically, as to respondents, the fathers, the circuit court found as follows.
¶ 43 First, the circuit court found, by clear and convincing evidence, that Shalyn M. and
Michael H. “ha[d] failed to maintain a reasonable degree of interest, concern, or responsibility as
to the minor’s welfare.” See id. § 1(D)(b).
¶ 44 Second, the circuit court found, by clear and convincing evidence, that Shalyn M.
and Michael H. “ha[d] failed to make reasonable efforts to correct the conditions that were the
basis for the removal of the minor from the parent during any [nine-]month period following the
adjudication of neglect.” See id. § 1(D)(m)(i).
¶ 45 Third, the circuit court found, by clear and convincing evidence, that Shalyn M.
and Michael H. “ha[d] failed to make reasonable progress toward the return of the minor to the
parent during” the nine-month period of August 30, 2018, to May 30, 2019. See id. § 1(D)(m)(ii).
¶ 46 Fourth, the circuit court found, by clear and convincing evidence, that Shalyn M.
and Michael H. “ha[d] failed to make reasonable progress toward the return of the minor to the
parent during” the nine-month period from October 29, 2018, to July 29, 2019. See id.
¶ 47 B. The Best-Interest Hearing
¶ 48 1. The Testimony of Matthew Stymets
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¶ 49 The two children had been in relative foster care since 2018, when the case began.
The foster mother is their maternal grandmother, who would like to adopt them. She provides for
the children’s needs, and they are close to her and to one another.
¶ 50 K.H. was enrolled in school. J.H. was in preschool and would be starting
kindergarten in the fall of 2020.
¶ 51 The assistant state’s attorney asked Sytmets:
“Q. Do they have family events? You said this is a relative foster placement.
Do they have family events that the children know wider family members?
A. The children are familiar with other family members. However, from my
understanding, there aren’t a lot of family gatherings.”
¶ 52 On cross-examination, Shalyn M.’s attorney asked Stymets:
“Q. Are you aware that since the fitness hearing that the foster mother has
been avoiding contact with [Shalyn M.’s] family?
A. I was not aware of that.”
¶ 53 Shalyn M.’s attorney also asked Stymets:
“Q. The only issue you’ve ever had with [Shalyn M.] has been the
incarceration; correct?
A. That’s correct.
Q. Otherwise, he wasn’t required to do any services; right?
A. He was required to do a substance abuse assessment and some drug
drops.
Q. And that was fine?
A. And he came back fine, yes.
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Q. And, in fact, he was going to be the presumptive placement; right?
A. Yes.
Q. And that was up until his incarceration?
A. Yes.”
Stymets admitted that the charges for which Shalyn M. ultimately was incarcerated predated J.H.’s
present case.
¶ 54 Shalyn M.’s attorney also asked Stymets:
“Q. In talking with the adoptive placement, the foster mother’s had some
health issues. Is that accurate?
A. That is accurate.
Q. What kind of health issues has she had?
A. She has been diagnosed with multiple sclerosis. However, she frequently
sees her doctor. She’s been given an excellent bill of health and frequently attends
all of her checkups.
Q. Does the multiple sclerosis diagnosis make it difficult for her to perform
certain tasks when it comes to the children?
A. I have never observed her having any issues with the children.
Q. And let’s talk about housing as well. Would it be accurate to say that the
foster mother has moved around quite a bit?
A. She has moved a few times.
Q. Maybe about five times?
A. Since I got the case, I would say twice.
Q. And that’s since you’ve had the case?
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A. Uh-huh.
Q. Is that a yes?
A. Yes.
Q. And were you aware that the foster mother would seek financial support
from [Shalyn M.’s] family?
A. Yes.
Q. And is she still intending to rely on that support going forward?
A. She has indicated she would like to have as much support from his side
of the family as she could. However, if we were to go through with the adoption,
she would also be eligible for a subsidy through [the Illinois Department of
Children and Family Services (DCFS)] which would help her care for the children.”
¶ 55 Finally, Shalyn M.’s attorney asked Stymets about the conference call he had with
Shalyn M.:
“Q. Since [Shalyn M.] has been incarcerated, you’ve had pseudo contact
with him one time. Is that correct?
A. Yes.
Q. And that was—I believe it was a phone conference?
A. Yes.
Q. And there were multiple people on the line?
A. I believe it was—would have been myself, [Shalyn M.], and one of the
DCFS screeners.
Q. And during that phone call, do you remember [Shalyn M.’s] specifically
requesting visits?
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A. I do not recall.”
¶ 56 2. The Testimony of Shalyn M.
¶ 57 In the best-interest hearing, though not in the preceding parental fitness hearing,
Shalyn M. testified in his own behalf. (By this observation, we do not mean to imply that Shalyn
M. was required to prove anything in either hearing.) Much of his testimony in the best-interest
hearing, however, had to do with his fitness to raise J.H. The time for giving that testimony would
have been in the parental fitness hearing instead of in the best-interest hearing. Therefore, we have
tried to limit our summary of Shalyn M.’s testimony to the parts that seem relevant to the question
of J.H.’s best interests. (And, to be clear, in addressing the issue of Shalyn M.’s parental fitness,
we are considering none of his testimony in the best-interest hearing.)
¶ 58 After the State rested in the best-interest hearing, Shalyn M. took the stand in his
own behalf. He testified in substance as follows.
¶ 59 He was J.H.’s father and was serving a prison sentence after being convicted of
charges that predated this case. He had been approved, however, for work release. He would
receive two six-hour passes throughout the week. These weekly passes would enable him to
resume in-person visitation with J.H. Although he had a release date of 2021, he expected the date
would be much earlier as a result of his being approved for work release.
¶ 60 Ever since he was incarcerated in the midst of this case, Shalyn M. had maintained
contact with J.H. until the last hearing, the hearing in which the circuit court found him to be an
unfit person. After that hearing, the maternal grandmother, whose first name was Angela, suddenly
cut all ties with Shalyn M.’s family. Shalyn M. testified:
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“[Angela] said she was keeping [J.H.] that weekend, and my mother tried to reach
out to her because they had been doing weekends still visits, and ever since the
so-called verdict came down, she haven’t allowed contact, phone call-wise or visits.
Q. And you said that’s for your family. Is that for you as well?
A. Yes.
Q. You attempted to make phone calls?
A. Yes, I attempted to reach out.
Q. But no response?
A. No. And actually sent messages through trying to smooth things over,
whatever, however she’s feeling, trying to figure out what’s going on.
Q. All right.
A. And she actually hung up on my family the last attempt.”
¶ 61 This, Shalyn M. testified, was despite the fact that Shalyn M.’s family had been
providing Angela with financial assistance, not only for J.H. but also for K.H.—and his family
intended to continue doing so. Angela had been moving from residence to residence because of
her on-and-off relationship with her significant other. Beyond J.H., K.H., and their mother, Angela
had no family. Her father and her brother had passed away. But J.H. had an extended family on
her father’s side. Shalyn M. testified:
“Yes, I have family that she already close to. I also have an aunt that can provide,
she has a daycare, so everything that she needs—childcare, transportation, clothing,
housing, stable housing is there with my family. So I know the State is going to
view however they want to view, but at the end of the day when you wake up
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tomorrow, just remember that the best interest would be for the child, not for
kicking another case through court.”
¶ 62 This case was, Shalyn M. observed, the second or third time the two children had
been in care through DCFS. There was DCFS involvement from 2016 to 2018, after which the
children were returned home. Then, a few months later, in 2018, the children came back into care
a third time. Shalyn M. testified:
“[J.H. is] my baby. I’ve been there since day one when she was born ***. I went
over to the Carle Center because she was born with heroin in her system, so I’ve
been fighting this since day one.
***
Q. And do you think that, due to your work release, you will be able to
provide stability and permanency for her in the near future?
A. Yes.”
¶ 63 At the conclusion of the best-interest hearing, the circuit court found, by a
preponderance of the evidence, that terminating the parental rights of Shalyn M. to J.H. would be
in her best interest and that terminating Michael H.’s parental rights to K.H. would be in her best
interest. Accordingly, the court terminated respondents’ parental rights to their daughters.
¶ 64 These appeals followed.
¶ 65 II. ANALYSIS
¶ 66 A. The Findings That Respondents Were “Unfit Persons”
¶ 67 There are two steps to the involuntary termination of parental rights. First, the State
must prove, by clear and convincing evidence, that the parent is an “unfit person” as defined in
section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2018)). 705 ILCS 405/2-29(2) (West
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2018); In re M.I., 2016 IL 120232, ¶ 20. If the State proves that the parent meets one of the
definitions of an “unfit person” in section 1(D), the circuit court will hold a subsequent and
separate hearing, in which the State must prove, by a preponderance of the evidence (In re D.T.,
212 Ill. 2d 347, 367 (2004)), that the proposed termination of parental rights would be in the child’s
best interests. 705 ILCS 405/2-29(2) (West 2018); M.I., 2016 IL 120232, ¶ 20.
¶ 68 When a parent appeals the circuit court’s findings that he or she is an “unfit person”
and that terminating parental rights is in the best interests of the child, we do not retry the case but,
instead, limit ourselves to deciding whether the court’s findings are against the manifest weight of
the evidence. In re A.W., 231 Ill. 2d 92, 104 (2008); In re Austin W., 214 Ill. 2d 31, 51-52 (2005).
This is a deferential standard of review. A finding is against the manifest weight of the evidence
only if the evidence “clearly” calls for the opposite finding (In re Daphnie E., 368 Ill. App. 3d
1052, 1072 (2006)), such that “no reasonable person” could arrive at the circuit court’s finding on
the basis of the evidence in the record (Prater v. J.C. Penny Life Insurance Co., 155 Ill. App. 3d
696, 701 (1987)).
¶ 69 Therefore, we will begin by considering whether it is clearly evident, from the
evidence in the record, that the State failed to carry its burden of proof. In other words, is it clearly
evident that the State failed to prove, by clear and convincing evidence, that respondents met any
one of the four definitions of an “unfit person” cited in the motions to terminate their parental
rights? See In re A.J., 269 Ill. App. 3d 824, 828 (1994).
¶ 70 1. Michael H.
¶ 71 In its motion to terminate Michael H.’s parental rights, the State alleged that he was
an “unfit person” within the meaning of section 1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b)
(West 2018)) in that he had “failed to maintain a reasonable degree of interest, concern, or
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responsibility as the to the minor’s welfare,” to quote from the motion. The “minor,” of course,
was Michael H.’s daughter, K.H. Under section 1(D)(b) of the Adoption Act, one of the “grounds
of unfitness” is a “[f]ailure to maintain a reasonable degree of interest, concern[,] or responsibility
as to the child’s welfare.” 750 ILCS 50/1(D)(b) (West 2018).
¶ 72 In deciding whether a parent’s interest in, concern for, and responsibility toward
the child’s welfare have been reasonable in degree, the circuit court should consider the parent’s
efforts to visit the child and to otherwise maintain contact with the child, as well as the parent’s
inquiries into the child’s welfare. Daphnie E., 368 Ill. App. 3d at 1064. The court should consider
such efforts in the circumstances in which they were made, taking into account any obstacles to
visiting the child. Id. If circumstances make personal visitation impractical, the court should
consider the extent to which the parent showed reasonable interest, concern, and responsibility by
other means, such as letters, telephone calls, and gifts to the child, “taking into account the
frequency and nature of those contacts.” Id.
¶ 73 Michael H.’s imprisonment in Florida made personal visits between him and K.H.
impractical. The question, then, was whether he demonstrated a reasonable degree of interest,
concern, and responsibility by other means, such as by letters, telephone calls, and gifts to K.H.
and by inquiries about her welfare. See id. It appears, from the evidence in the parental fitness
hearing, that Michael H. showed some interest in, concern for, and responsibility toward K.H.’s
welfare. In the period of February 2019 to January 2020, he sent a letter to Stymets, a letter to
K.H., and a birthday card to K.H. But that was it for a period of almost a year. Not every
fair-minded person would regard those communications as frequent enough to be objectively
reasonable in degree. See 750 ILCS 50/1(D)(b) (West 2018); Daphnie E., 368 Ill. App. 3d at 1064;
Prater, 155 Ill. App. 3d at 701. It is telling that when K.H. received the letter from Michael H.,
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she panicked at the imagined prospect of being removed from Illinois and taken to Florida by
someone who was a stranger to her. By finding that Michael H. had failed to show a reasonable
degree of interest, concern, or responsibility as to K.H.’s welfare, the circuit court did not make a
finding that was against the manifest weight of the evidence. See A.W., 231 Ill. 2d at 104.
¶ 74 Because meeting only one of the statutory definitions in section 1(D) of the
Adoption Act (750 ILCS 50/1(D) (West 2018)) is enough to make the parent an “unfit person,”
we need not discuss the remaining unfitness allegations against Michael H. See In re F.P., 2014
IL App (4th) 140360, ¶ 83.
¶ 75 We turn now to the unfitness case against Shalyn M.
¶ 76 2. Shalyn M.
¶ 77 a. His Alleged Failure to Maintain a Reasonable Degree of
Interest, Concern, or Responsibility as to J.H.’s Welfare
¶ 78 The circuit court found that Shalyn M. had “failed to maintain a reasonable degree
of interest, concern, or responsibility as to the minor’s welfare,” to quote from the court’s order.
See 750 ILCS 50/1(D)(b) (West 2018). This finding is against the manifest weight of the evidence.
See A.W., 231 Ill. 2d at 104.
¶ 79 At the parental fitness hearing, the State presented only three witnesses in support
of its petition that alleged Shalyn M. was an unfit parent, and most of that testimony was not
unfavorable toward him. Indeed, but for Shalyn M.’s incarceration in April 2019, this record
contains almost no basis to conclude that Shalyn M. was an unfit parent.
¶ 80 For instance, we note that the prosecutor referred to Shalyn M.’s incarceration at
closing argument and simply noted that “he cannot take custody at this point.” Similarly, the
circuit court noted that Stymets testified that Shalyn M. was doing well prior to his incarceration
in April 2019. The court further noted that, although Shalyn M. will be released in 2021, Stymets
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did not believe Shalyn M. could be realistically considered a fit parent for at least another six to
nine months after the termination hearing.
¶ 81 The State’s brief on appeal similarly points only to Shalyn M.’s incarceration and
the fact that he will not be released from prison until 2021 as being essentially the only ground in
support of the circuit court’s ruling. Shalyn M.’s incarceration (which should last less than a
year) is not enough, given the other factors, upon which to base a determination that he is an
unfit parent.
¶ 82 Other evidence of Shalyn M.’s parental unfitness could conceivably have been
offered (based upon evidence presented at permanency review hearings and the dispositional
hearing), but it was not. Thus, we are forced to evaluate the sufficiency of the State’s evidence
based solely upon what was presented at the fitness hearing—and it is not sufficient.
¶ 83 B. The Finding That It Would Be in K.H.’s Best
Interests to Terminate Michael H.’s Parental Rights
¶ 84 Michael H. challenges the circuit court’s finding that terminating his parental rights
to K.H. would be in her best interests. He argues:
“With regard to Michael, it would not be in the best interests to terminate his
parental rights. He has written K.H. letters which shows his desire to remain in her
life. It would be in the best interests of K.H. to grow up with her father who loves
her and has fought for her. It was against the manifest weight of the evidence for
the court to find that it was in the best interests of the child to terminate the parental
rights of Michael, and its decision should be reversed.”
¶ 85 Michael H. has accurately identified our standard of review. The question for us is
whether, in finding that it would be in K.H.’s best interests to terminate Michael H.’s parental
rights, the circuit court made a finding that was against the manifest weight of the evidence. See
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In re B.B., 386 Ill. App. 3d 686, 697 (2008). The finding is against the manifest weight of the
evidence only if it is “clearly evident” that the State failed to carry its burden of proof, namely, the
burden of proving, by a preponderance of the evidence, that terminating Michael H.’s parental
rights would be in K.H.’s best interests. Id. at 697-98. In other words, we should deem the finding
to be against the manifest weight of the evidence if the finding is “unreasonable, arbitrary, or not
based on the evidence presented.” Id.
¶ 86 Was the circuit court’s best-interest finding as to K.H. a reasonable, nonarbitrary,
evidence-based application of the best-interest factors in section 1-3(4.05) of the Juvenile Court
Act of 1987 (705 ILCS 405/1-3(4.05) (West 2018))? Considering that the foster parent is willing
to adopt K.H. (see In re Tashika F., 333 Ill. App. 3d 165, 170 (2002)), several of those factors
arguably weigh in favor of terminating Michael H.’s parental rights and thereby making the
adoption possible. For example, K.H. is attached to the foster parent but not attached, apparently,
to Michael H. See 705 ILCS 405/1-3(4.05)(d) (West 2018). Michael H. insists that he loves K.H.,
but the question is “where the child actually feels love, attachment, and a sense of being valued
(as opposed to where adults believe the child should feel such love, attachment, and a sense of
being valued).” Id. § 1-3(4.05)(d)(i). K.H.’s sense of security and familiarity are in the foster home,
as vividly demonstrated by her fear of being uprooted from that home and being moved to Florida
with someone whom she did not know. See id. § 1-3(4.05)(d)(ii), (iii). Her need for permanence
arguably would be best served by allowing her to remain with her maternal grandmother, with
whom she has lived since 2018. See id. § 1-3(4.05)(g). For all those reasons, we are unable to say
that the circuit court’s best-interest determination regarding K.H. is against the manifest weight of
the evidence. See B.B., 386 Ill. App. 3d at 697.
¶ 87 III. CONCLUSION
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¶ 88 For the foregoing reasons, we reverse the judgment against Shalyn M. in case No.
4-20-0150, but we affirm the judgment against Michael H. in case No. 4-20-0151.
¶ 89 No. 4-20-0150, Reversed.
No. 4-20-0151, Affirmed.
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