People v. Percy B. (In re S.B.)

1

2023 IL App (4th) 220629-U

In re S.B., a Minor

The People of the State of Illinois, Petitioner-Appellee, v. Percy B., Respondent-Appellant.

No. 4-22-0629

Court of Appeals of Illinois, Fourth District

January 27, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Winnebago County No. 19JA309 Honorable Mary Linn Green, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.

ORDER

STEIGMANN JUSTICE

¶ 1 Held: Pursuant to Anders v. California 386 U.S. 738 (1967), the appellate court granted counsel's motion to withdraw because no meritorious issues could be raised on appeal.

¶ 2 Respondent, Percy B., is the father of S.B. (born May 2015). In June 2022, the trial court found respondent was an unfit parent under the Adoption Act (see 750 ILCS 50/1 (West 2020)) and that termination of respondent's parental rights was in S.B.'s best interest.

¶ 3 Respondent appealed the trial court's judgment terminating his parental rights, and pursuant to Anders v. California, 386 U.S. 738 (1967), respondent's counsel on appeal moves to withdraw. See In re S.M., 314 Ill.App.3d 682, 685-86, 732 N.E.2d 140, 143 (2000) (holding Anders applies to termination of parental rights cases and providing the proper procedure to be followed by appellate counsel). In his brief, appellate counsel contends that appeal of this case presents no potentially meritorious issues for review. We agree, grant appellate counsel's motion to withdraw, and affirm the trial court's judgment.

¶ 4 I. BACKGROUND

¶ 5 A. Procedural History

¶ 6 In July 2019, the State filed a petition for adjudication of wardship, alleging S.B. was a neglected minor as defined by the Juvenile Court Act of 1987 (Act) in that his environment was injurious to his health and welfare because (1) his sibling was physically abused by his mother's paramour and (2) he lived in unsanitary conditions. 705 ILCS 405/2-3(1)(b) (West 2018). (We note that the State filed similar petitions regarding S.B.'s siblings but those petitions and siblings are not at issue in this appeal.) The same day the petitions were filed, the trial court conducted a shelter care hearing and placed temporary custody and guardianship of S.B. with the guardianship administrator of the Illinois Department of Children and Family Services (DCFS).

¶ 7 In September 2019, the trial court conducted an adjudicatory hearing, at which respondent was not present. The State informed the court that respondent was incarcerated and had told the caseworker that he wished "to participate with an attorney" but did not "want to be writted back" because he was engaged in services at the prison. The court appointed counsel for respondent and continued the hearing.

¶ 8 In October 2019, the trial court resumed the adjudicatory hearing, at which respondent was represented by counsel but did not personally appear. Counsel informed the court that she had spoken with respondent, who said he wanted to participate but did not want to be transported from Centralia, where he was incarcerated, to the court in Rockford. The court, after considering the evidence presented, found S.B. was a neglected minor as alleged in the petition.

¶ 9 In December 2019, the trial court conducted a dispositional hearing. Respondent again was represented by counsel but was not personally present. Counsel again represented that respondent requested not to be transported to court. Respondent agreed with the State that he was unable, due to his incarceration, to care for S.B. and that custody and guardianship should be placed with DCFS.

¶ 10 The trial court found it was in the best interest of S.B. and the public that S.B. be made a ward of the court and adjudicated a neglected minor. The court further found respondent unfit and unable, for reasons other than financial circumstances alone, to care for, protect, train, and discipline the minor, and it would be contrary to the minor's health, safety, and best interest to be in his custody. The court placed guardianship and custody with the guardianship administrator of DCFS and ordered that "[v]isitation between the minor and the parents shall be at [the] discretion of DCFS." (We note that the State requested visitation be at the discretion of DCFS and respondent did not object.)

¶ 11 B. The Petition for Termination of Parental Rights

¶ 12 In March 2021, the State filed a motion for termination of respondent's parental rights. The State alleged respondent was an unfit parent because, among other things, he was depraved (750 ILCS 50/1(D)(i) (West 2020)).

¶ 13 1. The Fitness Proceedings

¶ 14 a. The Evidence Presented

¶ 15 In July 2021, the trial court conducted a hearing on the fitness portion of the termination proceedings. The State entered certified copies of three convictions for respondent. On April 26, 2001, respondent was convicted of armed robbery a Class X felony (720 ILCS 5/18-2(a)(2) (West 2000)). On April 13, 2012, respondent was convicted of aggravated battery, a Class 3 felony (720 ILCS 5/12-3.05(c) (West 2010)). On September 27, 2017, respondent was convicted of aggravated robbery, a Class 1 felony (720 ILCS 5/18-1(b)(1) (West 2014)).

¶ 16 Charles Ward testified that he was the DCFS caseworker assigned to the case since its inception. Ward testified that respondent was incarcerated at the time of the initial service plan. Ward testified that S.B. was born in May 2015 and that respondent was in custody since November 2015. Respondent was sentenced to 22 years in prison on his November 2015 conviction, with an anticipated release date in 2026. Ward agreed that respondent was cooperative with DCFS, had completed some services in prison, and sent gifts and cards to his children.

¶ 17 Ward testified that visitation was difficult because respondent was incarcerated in Centralia and the children lived in Rockford. The several hour drive was hard on the children because they had behavioral issues. Ward stated that DCFS did conduct one in person visitation, but it "did not go well because of the age of the children *** [and] the lack of a place at the prison to do a safe visit." Ward explained that visits were thereafter conducted virtually.

¶ 18 On cross-examination, Ward admitted that DCFS never contacted the prison to (1) make referrals for services, (2) determine what services were available for respondent, or (3) determine which services respondent had already completed. Ward testified that respondent provided him certificates of completion for parenting and anger management classes. Respondent never refused visitation and participated in video visits once DCFS made them available to him.

¶ 19 Respondent testified that Ward never made referrals for respondent to get services but services were available for things like domestic violence at the discretion of the prison. Had Ward made the request, respondent could have been allowed to participate. Respondent was earning additional sentencing credit through a job assignment and had sought "COVID clemency in order to be released early" several months before the hearing but it was still "in the process."

¶ 20 Regarding visitation, respondent stated that he never had a phone call with his children even though he had provided DCFS and the various foster parents with the information necessary to set up phone calls. Among other things, by the time a foster parent could add their phone number to the list of approved callers, the children would be moved. Respondent estimated that he had between 8 and 10 video visits during the life of the case, each lasting about 30 minutes. The visits always went well, and he was never told he did anything wrong. Respondent testified that the in-person visit went well and the children did not have any behavior issues that were not age appropriate. Respondent testified there was a visiting room for parents and children, although he acknowledged that that same room was also used for regular visitation. According to respondent, the visitation room had books and toys in it.

¶ 21 Respondent had spoken with Ward several times and each time asked Ward about his children-particularly, their physical health, how they were behaving, and whether they seemed happy in their placements. Respondent also requested pictures of his children whenever he could. Respondent sent cards, pictures, and gifts frequently to his children.

¶ 22 Respondent admitted that he was currently incarcerated for aggravated robbery, during which he had used a gun. Respondent stated he felt remorseful and that he had changed. Respondent testified that he provided care ("diapers, burping, bathing.") and financial support for S.B. for the first six months of his life before respondent was arrested.

¶ 23 The trial court continued the matter for closing arguments from the parties.

¶ 24 b. Respondent's Motion To Dismiss

¶ 25 In August 2021, respondent pro se filed a motion to dismiss the State's motion to terminate parental rights, arguing that the proceedings were void because (1) the petition did not accuse respondent, personally, of any abuse or neglect of S.B.; (2) respondent was never served with an original copy of the petition; and (3) the State denied him visitation with his children.

¶ 26 In September 2021, the trial court reconvened the hearing on parental fitness. Respondent's counsel informed the court that she was not adopting respondent's pro se motions but requested they be considered as part of closing arguments. Respondent objected and, after consulting with his counsel during a recess, requested the court permit him to proceed...