People v. Okittous B. (In re O.B.)

2022 IL App (4th) 220419

217 N.E.3d 341

466 Ill.Dec. 514

IN RE O.B. and E.R., Minors

(The People of the State of Illinois, Petitioner-Appellee,

v.Okittous B., Respondent-Appellant).

NOS. 4-22-0419

4-22-0420 cons.

Appellate Court of Illinois, Fourth District.

Filed October 6, 2022

Dana M. Kelly, of Peoria, for appellant.

Jodi M. Hoos, State's Attorney, of Peoria (Patrick Delfino and Rosario David Escalera Jr., of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 Within days of their respective births in November 2019 and October 2020, the State filed petitions for adjudication of neglect with respect to O.B. and E.R., the minor children of respondent Okittous B. (Father) and Bridget R., who is now deceased and not a party to this appeal. In due course, the trial court adjudicated the minors neglected, made them wards of the court, and placed custody and guardianship with the Illinois Department of Children and Family Services (DCFS). The State filed motions to terminate Father's parental rights to both children in December 2021. Following a hearing on the State's motions in April 2022, the court found respondent an "unfit person" within the meaning of section 1(D) of the Adoption Act ( 750 ILCS 50/1(D) (West 2020)). The court then found it was in the minors’ best interests to terminate respondent's parental rights.

¶ 2 In May 2022, respondent moved to consolidate the two cases into this one appeal, and we granted the motion. On appeal, respondent argues the trial court erred in terminating his parental rights; specifically, he alleges the trial court's unfitness finding stands against the manifest weight of the evidence because the State failed to provide competent evidence that he suffered a mental impairment or intellectual disability. We disagree.

¶ 3 I. BACKGROUND

¶ 4 On November 7, 2019, the State filed a petition for adjudication of neglect with respect to O.B. (born November 3, 2019), alleging her environment proved injurious to her welfare, in part, because of Father's criminal record and a 2010 incident where he left his nieces unsupervised. The State's October 6, 2020, petition for adjudication of neglect regarding E.R. (born October 2, 2020) contained the same allegations. After shelter care hearings, the trial court found probable cause existed that the minor children were neglected as alleged in the petitions. Finding immediate and urgent necessity based upon the neglect, the trial court placed temporary custody and guardianship of the children with DCFS.

¶ 5 A. Adjudicatory Proceedings

¶ 6 At the adjudicatory hearings (February 2020 and October 2020), Father stipulated to the petition's allegations and the trial court found factual bases for the stipulation. The trial court entered concomitant orders, adjudicating O.B. and E.R. neglected based on the contents of the State's petition, i.e. , Father's criminal record and history of leaving two young children unattended. In both matters, the trial court held the dispositional hearings immediately following the adjudication. The trial court's two dispositional orders both contained admonishments for Father to comply with recommended services and cooperate with DCFS or risk termination of his parental rights. But while the order concerning O.B. found Father unfit to care for, protect, train, or discipline her due to the petition's allegations, the order regarding E.R. found Father unable to do so. Beyond instructing Father to complete the tasks assigned to him in the service plan, the trial court's order directed him to visit his children at the times and places set by DCFS and demonstrate appropriate parenting conduct.

¶ 7 The family service plan outlined recommended services for Father. Besides having to cooperate with DCFS, the plan required the following services: (1) identify supports in his life and utilize them when needed, especially when parenting O.B. and E.R.; (2) participate and complete individual counseling; (3) participate and complete a parenting course; (4) random monthly drug drops; (5) obtain and maintain stable, safe housing; and (6) maintain a legal source of income. As these matters proceeded through the juvenile court system, the record reflected when Father completed services. Over the course of time, Father obtained employment and moved to a house with his sister and her two children. He successfully completed the necessary parenting class in May 2020. He began individual counseling in June 2020, made moderate progress, and was discharged in December 2020.

¶ 8 On December 3, 2020, Father participated in a psychological evaluation with Dr. Richard A. Hutchison, Ph.D., a clinical psychologist, based upon DCFS's "concern about [Father's] ability to raise his child due to his ‘cognitive functioning abilities and deficits in his ability to reason, plan, solve problems, think abstractly, comprehend complex ideas, learn quickly, and/or learn from experiences.’ " Dr. Hutchison reviewed pertinent case records, interviewed Father, and administered various tests, including intelligence testing. Dr. Hutchison used the Stanford-Binet Intelligence Scales, Fifth Edition, to evaluate Father's intellectual functioning. Father scored the following: nonverbal intelligence quotient (IQ) 83; verbal IQ 78; full-scale IQ 80. Dr. Hutchison interpreted Father's scores to indicate the following:

"[Father's] Nonverbal IQ is in the Low Average range. His Verbal IQ is in the Borderline range. His Full Scale IQ is at the bottom of the Low Average, top of the Borderline range. The difference between his IQ scores is not significant but would indicate that his Nonverbal abilities are somewhat more highly developed."

After all testing, Dr. Hutchison made no diagnoses, but he opined Father's "scores fit with his history of Special Education while in school" and "indicate that he would have difficulty learning and retaining new things." Dr. Hutchison went on to note Father's scores "indicate that his knowledge of the world and how it operates is quite limited" and "would tend to make parenting difficult as it would be a new thing with many things to learn and remember."

¶ 9 Following a May 26, 2021, permanency review hearing, the trial court ordered Father to undergo a parenting capacity assessment. Due the service provider's congested schedule, the assessment was delayed until November 2021. Jonna Tyler, LCPC, RPT-S, conducted the assessment and was tasked to answer several questions about Father's parenting capabilities, including, "What effect has [Father's] intellectual deficits had on his ability to parent his children?" Tyler's report recapped part of Dr. Hutchison's psychological evaluation of Father in December 2020, particularly, " ‘[Father's] verbal IQ is 78, in the borderline range of intellectual abilities. His non-verbal IQ is 83, in the low average range.’ " Tyler further noted Dr. Hutchison's opinion that Father's scores indicated the above-referenced difficulties he would experience with parenting. As part of the parenting capacity assessment, Tyler interviewed the children's caseworker, who reported, "Dr. Hutchison's report identified [Father's] intellectual disability as in the mild range." Tyler also interviewed Father, who reported he received special education services in school, but he noted he also attended "some mainstream classes." Tyler administered the Marschak Intervention Method (MIM), a test "designed to assess the quality and nature of the parent-child relationship." The MIM showed Father had weaknesses in the categories of structure, challenge, and nurturance. Father had limited awareness of when to attend to his children's needs. Tyler next administered the "Child Abuse Potential Inventory" on which Father obtained a low abuse score, though Tyler noted Father's elevated score on the lie scale invalidated those findings. Finally, Tyler observed the children's interactions with Father and with their foster parents. Ultimately, Tyler opined, "Father is not able to meet minimum parenting standards independently for [O.B.] and [E.R.] due to their complex medical needs. Tyler further stated: "It is this examiner's opinion that [Father's] intellectual deficits may impair his ability to manage the dietary needs and daily care needs of his daughters." She then opined: "[Father] does not have the capacity to care for the safety and security needs of his children or attend to the higher level of care they are in need of, due to their complex medical needs."

¶ 10 B. Termination of Respondent's Parental Rights

¶ 11 On December 10, 2021, the State filed petitions seeking a finding of unfitness and termination of Father's parental rights to O.B. and E.R. The State alleged Father was an unfit person pursuant to section 1(D) of the Adoption Act ( 750 ILCS 50/1(D) (West 2020)). The State's petition identified one ground of unfitness as to Father: "[He] is an unfit person as that term is defined in the Illinois Compiled Statutes, Chapter 750, Section 50/1 D(p), in that he is unable to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness or mental retardation as defined in Section 1-116 of the Mental health and Development Disabilities Code, or developmental disability as defined in Section 1-106 of that Code, and there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time period." See 750 ILCS 50/1(D)(p) (West 2020). The State further contended termination of Father's parental rights was in the children's best interests and asked for custody and guardianship to remain with DCFS, giving it the authority to consent to the minors’ adoption.

¶ 12 C. Fitness

¶ 13 On April 25, 2022, the trial court held a fitness hearing. The State offered one exhibit, records of Father's parenting capacity...