People v. Xavier P. (In re N.P.)

1

2024 IL App (4th) 240268-U

In re N.P., a Minor

The People of the State of Illinois, Petitioner-Appellee, v. Xavier P., Respondent-Appellant

No. 4-24-0268

Court of Appeals of Illinois, Fourth District

July 5, 2024

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. 22JA312 Honorable Francis M. Martinez, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Lannerd and Vancil concurred in the judgment.

ORDER

DeARMOND, JUSTICE

¶ 1 Held: The appellate court granted appellate counsel's motion to withdraw and affirmed the trial court's judgment, finding no issue of arguable merit could be raised on appeal.

¶ 2 In November 2023, the State filed a motion to terminate the parental rights of respondent father, Xavier P. (Father), to his minor child, N.P. (born July 24, 2021). The trial court found Father to be an unfit parent pursuant to section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2022)) and it was in the child's best interest to terminate Father's parental rights. Father appealed.

¶ 3 In April 2024, appellate counsel filed a motion to withdraw as counsel for the consolidated cases and a supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing no meritorious issue could be raised on appeal. For the following reasons, we grant the motion to withdraw and affirm the trial court's judgment.

¶ 4 I. BACKGROUND

¶ 5 A. Initial Procedural History

¶ 6 On July 5, 2022, the State filed a petition for adjudication of wardship alleging N.P. was a neglected and/or abused minor whose environment was injurious to her welfare pursuant to the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2020)). The allegations all related to the conduct of Taylor B. (Mother), now deceased. The petition named Father the putative father of N.P. An amended petition, filed July 6, 2022, changed nothing relevant to this appeal.

¶ 7 In September 2022, Mother and Father stipulated N.P. was a neglected minor. The trial court then entered an adjudicatory order based on the first count of the petition, which alleged N.P. was in an environment injurious to her welfare. On November 10, 2022, Father stipulated, because he was incarcerated, he was, at the least, unable to care for protect, train, educate, supervise, or discipline N.P. The mother also stipulated her unfitness or inability to care for N.P. The court thus entered an order of disposition making N.P. a ward of the court and placing custody with the guardianship administrator of the Illinois Department of Children and Family Services (DCFS).

¶ 8 In September 2023, the trial court adjudicated Father to be N.P.'s father.

¶ 9 B. The Petition for Termination of Parental Rights

¶ 10 In November 2023, the State filed a petition for termination of parental rights. The motion noted Mother was deceased. As to Father, the petition alleged he was an unfit father because he (1) failed to make reasonable efforts to progress toward the return of the child to the parent during the nine-month periods of September 27, 2022, to June 27 2023, and January 27, 2023, to October 27, 2023 (see 750 ILCS 50/1(m)(ii) (West 2022)), (2) had been repeatedly incarcerated as a result of criminal convictions, and his repeated incarcerations had prevented him from discharging his parental responsibilities to the child (see id § 1(D)(s)) and (3) was depraved (see id § 1(D)(i)).

¶ 11 C. The Fitness Portion of the Termination Proceedings

¶ 12 1. The State S Evidence

¶ 13 The hearing on the fitness portion of the termination proceedings took place on December 21, 2023. Respondent, who was in the custody of the Illinois Department of Corrections (DOC), was present via Zoom. The trial court, on the State's motion, took notice of, inter alia, the existing court record and admitted onto evidence certificates of conviction for Father's felony convictions in three cases: in Winnebago County case No. 22-CF-283, an April 29, 2022, conviction of unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2022)), a Class 2 felony; in Winnebago County case No. 21-CF-2287, an April 29, 2022, conviction of aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2022)), a Class 2 felony; and in Winnebago County case No. 17-CF-1862, an April 26, 2018 conviction of home invasion (720 ILCS 5/19-6(a)(2) (West 2018)), a Class X felony, which is nonprobationable (730 ILCS 5/5-4.5-25(d) (West 2018)).

¶ 14 Charo Garlitz testified she was a caseworker with the Youth Service Bureau (YSB) and had been assigned to N.P.'s case from the outset. She recognized the service plans, and the trial court admitted them. The only requirement for Father was his participation in the integrated assessment. He completed a written integrated assessment in September 2023. Garlitz had sent him the form "at least twice" in 2022, and Father did not complete it then. He participated in services available to him through the DOC. Further, N.P.'s case came into care based solely on Mother's conduct.

¶ 15 N.P. was two years old when the hearing occurred. Father had contact with her before he was incarcerated. Garlitz had recently succeeded in arranging in-person visits for N.P. with Father at Sheridan Correctional Center of the DOC. N.P. was slow to "warm up" to Father, but he was patient with her. However, Garlitz believed N.P. did not know who Father was. Father's projected release date was November 2024.

¶ 16 2. Respondent 's Evidence

¶ 17 Respondent testified he was currently incarcerated, serving his sentence for unlawful possession of a firearm by a felon. He expected his November 2024 release date to be moved forward based on his participation in a drug treatment program. He had participated in a program to teach men better parenting skills. He had also participated in a church-based parenting program. He had had trouble receiving forms from the YSB. DCFS succeeded in bringing N.P. to visit him in prison, but earlier attempts to have N.P. visit him had failed because the adults who accompanied her were not acceptable to the DOC. The first two visits he had were "kind of rocky," but the third and last visit went very well. He agreed he had been incarcerated, either in jail or prison, since N.P. was seven months old. He further agreed he had been arrested for domestic violence against Mother.

¶ 18 Father believed he had grown up since his last arrest and had become a different person. He expected to go back to his old job. He stated he had a "stable home" with his sister to go to when the DOC released him.

¶ 19 In arguing against the trial court's finding that Father's repeated incarcerations had prevented him from discharging his parental responsibilities to the child, Father's counsel noted Father had been incarcerated only once during N.P.'s lifetime. However, he further noted Father had been incarcerated in 2017, presumably when he was serving his sentence for home invasion.

¶ 20 3. The Trial Court S Finding of Unfitness

¶ 21 At a January 31, 2024, hearing, the trial court found Father unfit. It recognized the State's burden was to prove at least one count by clear and convincing evidence. The court stated it had needed "to wrestle with" the first count, which alleged lack of reasonable progress. It concluded a service plan should have been created for father regardless of the availability of an integrated assessment, as, without a service plan, it lacked a benchmark for Father's progress. It thus concluded the State had failed to offer sufficient evidence of Father's lack of progress. Concerning the second count, the court noted Father had been incarcerated for approximately three-fourths of N.P.'s life. Father's incarceration had thus "effectively prevented him from providing the financial, physical, and emotional support that [N.P.] is entitled to." Concerning the third count, the court found defendant's three felony convictions, two of which were within the last five years, triggered a statutory presumption of depravity. It further held Father's testimony about his participation in services was insufficient to overcome the presumption. It noted defendant's convictions were for "serious crimes of violence," including aggravated battery and home invasion and stated the "programs simply do not rise to the level where they would indicate a rehabilitation."

¶ 22 D. The Best-Interest Portion of the Termination Proceedings

¶ 23 1. The State's Evidence

¶ 24 The State recalled Garlitz to testify at the best-interest portion of the termination proceeding. She said N.P. had been in the current placement for "the majority of her life." The couple with which N.P. was placed-an aunt and uncle of her half siblings-was the only family placement willing to take in both N.P. and her half siblings. They had hoped the children would return to Mother; however, after Mother died, they affirmed their willingness to adopt all three children. They had experienced harassment from both the maternal and paternal grandmothers, and Father's sister all of whom favored placements involving one or two of the children but not all three.

¶ 25 Garlitz believed N.P. and her half siblings were integrated into the family of the couple with whom she was placed. In her opinion, N.P. felt secure in the placement and felt loved and valued. N.P. understood her relationship to Mother but did not really understand her relationship to Father. N.P. had visits with Father's mother once a month. Garlitz believed the couple would encourage a relationship between N.P. and Father if his presence was deemed appropriate. Garlitz believed N.P. was...