In re KENNETH J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Carmen D., Respondent-Appellant).
Appellate Court of Illinois, First District, Second Division.
*941 Edwin A. Burnette, Public Defender of Cook County (Eileen T. Pahl, Assistant Public Defender, of counsel), Chicago, for Appellant.
Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, James E. Fitzgerald, Peter Maltese, Assistant State's Attorneys, of counsel), Chicago, for Appellee.
Patrick T. Murphy, Cook County Public Guardian, Office of the Cook County Public Guardian (Patrick T. Murphy, Charles P. Golbert, Christopher J. Williams, of Counsel), Chicago, for Minor-Appellee.
Presiding Justice BURKE delivered the opinion of the court:
Respondent Carmen D. appeals from an order of the circuit court, finding her unfit on the basis that she failed to make reasonable progress toward the return of her child, Kenneth J., within the nine-month period following adjudication of neglect or abuse and/or within any nine-month period thereafter and terminating her parental rights. On appeal, respondent contends that: (1) the petition for termination denied her due process because it failed to identify the nine-month period at issue; (2) the trial court erred in admitting into evidence a "Parenting Assessment Report" (Report) as relevant and as a business record; (3) the trial court erred in admitting testimony from case workers; and (4) the trial court's finding of unfitness was against the manifest weight of the evidence. *942 For the reasons set forth below, we affirm.
STATEMENT OF FACTS
Respondent and her children first became involved with child protection agencies in October 1990. On August 7, 1996, the State filed a petition for adjudication of wardship over respondent's three children, including Kenneth, born February 17, 1996, alleging that Kenneth was abused and neglected on the bases that his two siblings, Michael and Tiffany, had been sexually molested by respondent's paramour on August 28, 1995, respondent refused services, and respondent refused to comply with requests, including counseling. On August 8, Patrick Murphy was appointed guardian ad litem (GAL) and temporary custody of Kenneth was granted to his maternal aunt, Wanda, respondent's sister, and her husband, Derrick.
On February 20, 1997, an adjudication order was entered, finding Kenneth abused or neglected based on an injurious environment and substantial risk of injury. On May 30, a dispositional order was entered, adjudicating Kenneth a ward of the court. At all times thereafter, respondent's visits with her children were supervised pursuant to court order.
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
On March 4, 1999, the trial court ordered a parenting assessment evaluation to be done of respondent. This assessment was undertaken in late 1999 by members of a team from Thresholds Mothers' Project, an agency funded by the Department of Children and Family Services (DCFS), whose purpose was to assist DCFS and the juvenile court in evaluating parenting capabilities of mentally ill parents. The Report, consisting of a summary and four individual evaluations, was subsequently entered into evidence at respondent's termination hearing over respondent's objection. The Report summary indicated that respondent's case was referred to the team on May 4, 1999. Respondent and her children were evaluated by Kathleen Pesek, M.Ed., a child development specialist, on November 8, 1999; Mark Amdur, M.D., a psychiatrist, on October 28; Nycole Bridle, B.A., a case aide, and Frank Lani, Ph.D., a psychologist, on October 27; and Barbara White, L.C.S.W., A.C.S.W., a social worker, on October 25. White's evaluation took place at respondent's home and the other evaluations took place at the team's office. The summary identified the referral questions and the team's subsequent answers as:
"1. Are there any additional services that would enable [respondent] to regain custody of her children?
[Respondent's] primary areas of difficulty appear to be her limited intellectual resources and her highly abusive, unstable, and traumatic life history. She does not appear to be suffering from a major mental illness at this time, and does not require any specific therapeutic intervention that would help remediate her circumstances. While [respondent] may personally benefit from a supportive professional relationship, there are no specific services that would enable [respondent] [to] adequately parent her children.
2. With regard to permanency, would a goal of return home for [respondent's] children be in her best interest?
[Respondent] made it clear that she does not feel that her children should have been removed from her care, and that she cares for her children very much and would like for them to return home. However, it does not appear to be in her best interest for the children to return home, nor in their best interest. [Respondent's] psychiatric conditions *943 are all of the type that may become particularly problematic under stress. When this occurs, she responds with agitation, disorganization and threats of self-harm. The special needs of her children which [respondent] has a poor understanding of combined with parenting difficulties are likely to result in an increasing level of stress that [respondent] has been unable to handle in the past which would further tax [respondent's] functioning."
The summary also identified significant risk factors, including respondent's primary difficulty as being her extremely limited intellectual capacity. According to the Report, respondent had no clear understanding of why her children were taken away and disagreed with the decision to do so. As such, the Report indicated that respondent's "lack of insight suggests low probability that problematic issues would change." The Report further noted that respondent was driven by her need for the children or how they made her feel and not by their needs. She tended toward role reversal and held unreasonably high expectations of her children. The Report continued that respondent's understanding of child development was deficient and that she was "in significant psychological distress." As a result of this, her relationships with others tended to be "unrewarding or difficult." The Report also indicated that respondent's social support network was very limited. The Report recommended that, given respondent's difficulties, there were "no additional services that would sufficiently increase her parenting capability to an acceptable level."[1]
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
On May 30, 2001, the State filed a supplemental petition to appoint a guardian with the right to consent to adoption. The petition alleged that respondent was unfit under section (1)(D)(b) of the Adoption Act (Act), failure to maintain a reasonable degree of interest, concern or responsibility, and under section (1)(D)(m), in that she "failed to make reasonable effort to correct the conditions which were the basis for the removal of the children from [her] and/or [has] failed to make reasonable progress toward the return of the children to [her], within 9 months after the adjudication of neglect or abuse * * * and/or within any 9 month period after said finding." 750 ILCS 50/1 (West 2002).
Hearings on the termination petition began on May 15, 2002.
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
After hearing the evidence and the arguments of the parties, the court found respondent unfit only with respect to section (1)(D)(m)(iii) of the Act. 750 ILCS 50/1(D)(m) (West 2002). Following an immediate best interests hearing, the court concluded that it was in Kenneth's best interests to appoint a guardian with the right to consent to adoption. On October 15, 2002, the trial court entered a termination hearing order, finding respondent unfit with respect to reasonable progress. The trial court also entered a permanency order terminating respondent's parental rights and stating that the goal was adoption. This appeal followed.
ANALYSIS
I. Due Process
Respondent first contends that the State's petition for termination violated her due process rights because it did not *944 identify the nine-month period in which she allegedly failed to make reasonable progress. Respondent argues that it is impossible to determine from the petition which nine-month period, of the five different nine-month periods existing, the State was going to litigate and, thus, she did not have sufficient notice as required by due process. Respondent maintains that the law requires the State to set forth a specific and distinct time period. Respondent further argues that her failure to raise the issue in the trial court did not waive it for review because the failure to state a cause of action, as is the case here, can be raised at any time.
The Guardian contends that respondent waived review of this issue because she failed to object to it in the trial court and give the State an opportunity to cure any alleged defect, that the petition did not deny respondent due process because the State is not required to set forth a specific nine-month time period-the State is only required to allege respondent's unfitness and the statutory ground for same and, alternatively, even if the State was required to do so, respondent suffered no prejudice and failed to demonstrate how she was surprised or prejudiced by the petition. The Guardian relies on several cases to support his position that the State need not allege a specific time frame.[2] The State presents essentially the same arguments.
Section 1(D)(m) of the Act sets forth the following bases for the termination of parental rights:
"Failure by a parent (i) to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent, or (ii) to make reasonable progress toward the return of the child to the parent within 9 months after an adjudication of neglected or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under Section 2-4 of that Act, or (iii) to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of neglected or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under Section 2-4 of that Act." 750 ILCS 50/1(D)(m) (West 2002).
It is well-settled that "pleading defects must be raised at trial so they may be remedied; otherwise they are forfeited." In re Janine M.A.,
*945 Respondent relies on two cases in support of her argument that she did not waive review of this issue because the State's petition failed to state a cause of action, which she may raise at any time: In re Rauch,
"Under the circumstances presented in this case, the failure to allege the unfitness of respondents and the grounds therefore, as required by the Adoption Act, rendered the petition fatally defective and the cause must be reversed." Rauch,45 Ill.App.3d at 789 ,4 Ill.Dec. 61 ,359 N.E.2d 894 .
Instead of supporting respondent's position here that the petition failed to state a cause of action, Rauch supports the conclusion that the petition did, in fact, under the directives of Rauch, state a cause of action. Unlike the petition in Rauch, the State's petition in the instant case alleged that respondent was unfit and the grounds therefore, i.e., that she failed to maintain a reasonable degree of interest in her children, failed to make reasonable efforts to correct conditions, and failed to make reasonable progress toward the return of her children in the nine-month period following adjudication or any nine-month period thereafter.
In In re J.P.S., the State's petition sought termination of the mother's parental rights on the basis that the minor was adjudicated abused and the mother failed to make reasonable efforts to correct the condition under which the child was removed. In re J.P.S.,
*946 Since we have found that the State's petition here did not fail to state a cause of action, the rule allowing a respondent to challenge the petition for the first time on appeal is not applicable. Further, because respondent failed to object to the State's petition in the trial court or request that the State provide specific dates, she forfeited review of this issue. See In re Jaron Z.,
Assuming, arguendo, that respondent had not forfeited her challenge, we would find her argument unpersuasive. Although no case has directly addressed whether the State's petition must identify the specific nine-month period at issue, several cases offer instruction in this regard. In In re Jaron Z., the State filed a petition to terminate parental rights under section (1)(D)(m) of the Act, alleging that the respondent failed to make reasonable progress toward return of her child within nine months after the adjudication hearing or within any nine-month period thereafter. In re Jaron Z.,
"the State's ability to choose any nine-month time period after the initial nine months following an adjudication of neglect in which to examine a parent's fitness * * * affords no notice to the parent regarding which nine-month period she will be evaluated on and, accordingly, reduces the State's burden of proof in demonstrating the parent's unfitness." In re Jaron Z.,348 Ill.App.3d at 255 ,284 Ill.Dec. 455 ,810 N.E.2d 108 .
Although concluding that the respondent forfeited review of the issue because of her failure to raise it in the trial court, the In re Jaron Z. court concluded that even assuming the issue was reviewable, the respondent's argument was without merit *947 because section (iii) provides merely an additional ground to prove unfitness, but does not change the State's burden of proof, i.e., the section does not change the quantum of evidence needed to prove unfitness, only the type. In re Jaron Z.,
"In our view, the section is clear with respect to the applicable time: a parent's actions for a fitness determination may be examined in light of any nine month increment of time beginning following the expiration of the first nine month period after the adjudication of neglect. [Citation.]" (Emphasis added.) In re Jaron Z.,348 Ill.App.3d at 258 ,284 Ill.Dec. 455 ,810 N.E.2d 108 .
In re K.H.,
"Simply put, a parent is required to make reasonable progress during a nine-month period. * * * The trial court had an adequate basis to find that the State proved by clear and convincing evidence that respondent failed to make reasonable progress in a nine-month period after the nine-month period that followed the adjudication of neglect." In re K.H.,346 Ill.App.3d at 455 ,281 Ill.Dec. 813 ,804 N.E.2d 1108 .
Not once in this decision was any specific nine-month period identified. Clearly, the cases discussed above demonstrate that the State need not identify the specific nine-month period in its petition for termination.[3]
*948 In In re Dominique W., which we granted the State leave to file as additional authority in the instant case, the respondent was found unfit under section 1(D)(b) of the Act (failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare). In re Dominique W.,
Moreover, the language of section (iii) of the Act itself does not support a conclusion that the State need identify a specific nine-month period. The statute uses the term "any." 750 ILCS 50/1(D)(m)(iii) (West 2002). It does not state "an or any identified" or "a or any specified" nine-month period after the initial nine-month period. "Any" means "one, no matter what one," or "any part, quantity, or number." Webster's Third New International Dictionary 97 (1993). Respondent asks this court to add language to the statute that the legislature did not include.
Lastly, as the Guardian argues, respondent has not demonstrated how she was prejudiced by the failure to identify a specific nine-month period. Respondent has not identified what additional evidence she would have offered or alternative arguments she would have made to the court that would have changed the outcome of this case. See In re Jaron Z.,
Based on the foregoing, we find that the State's petition did not fail to state a cause of action and, therefore, because respondent did not challenge the petition in the trial court, she cannot do so now. Further, were we to address respondent's challenge substantively, we would find that relevant case law, as well as the language of section (iii) itself, does not mandate a conclusion that the State must identify a *949 specific nine-month period in its petition for termination. Accordingly, we would find respondent's challenge unpersuasive.
II. Admission of Parenting Assessment Team Report
Respondent next contends that the trial court erred in admitting the Report because it was irrelevant to the issue of her fitness and it was not a business record.
A. Relevancy
Respondent first maintains that the Report was not relevant to the issue of her fitness, but rather only to the best interests analysis, and, thus, it was inadmissible. In this regard, respondent argues that compliance with service plans is the touchstone of reasonable progress and the Report had no relevance to her reasonable progress or whether she made progress in correcting the conditions that resulted in the adjudication in the first instance.
The Guardian maintains that the Report was relevant because it was primarily concerned with respondent's services and was completed for the express purpose of determining whether there were any services available to respondent to assist her in having Kenneth returned to her. According to the Guardian, the Report directly related to respondent's ability to regain custody of Kenneth and the core of the evaluation was respondent's ability to parent. The Guardian further argues that the Report was created for the same purpose as service plans are created as a social service tool and not for litigation. The Guardian also maintains that the Illinois Supreme Court has rejected the view that reasonable progress determinations are limited to correcting circumstances occurring when the case started.
The State presents arguments that are the same as the Guardian's. In addition, the State argues that respondent ignores the first stated goal of the Report and misquotes the second. According to the State, the first goal clearly addresses issues relevant to reasonable progress.
The cases relied upon by respondent in support of her position that the Report is only admissible with respect to a best interests hearing, In re D.T.,
*950 Respondent relies on In re C.B. for the proposition that a bonding assessment, and thus here, the parenting assessment, is relevant only to a best interests determination. Again, this case does not support respondent's position. In In re C.B., the question of which of two individuals, neither of whom was the natural mother of the minor, should be awarded permanent custody was at issue. In re C.B.,
First, respondent does not explain or argue how the parenting assessment here is akin to the bonding assessment in In re C.B. or why the two clearly different types of assessments should be treated the same. More importantly, however, In re C.B. is clearly inapplicable to the instant case. It did not involve a question of the fitness of a natural parent, unlike the instant case. Moreover, the question of the admissibility of the bonding assessment report or testimony in connection with same was not at issue. Lastly, the assessment and report were clearly inadequate. As such, In re C.B. does not aid respondent, nor this court, in determining whether the Report here, which respondent does not contend is inadequate, was admissible in connection with her fitness.
The question in the instant case ultimately revolves around whether respondent made reasonable progress toward the return of her children. "The admission of evidence is within the discretion of the circuit court and its ruling will not be reversed absent an abuse of that discretion. [Citation.] All evidence must be relevant to be admissible. [Citation.] Evidence is relevant if it tends to prove a fact in controversy or render a matter in issue more or less probable." Smith v. Silver Cross Hospital,
The In re C.N. court rejected the narrow view "that a court may only look to the situation that triggered the minor's initial removal, or the conditions existing at the time custody [was] taken." In re C.N.,
Ultimately, the court stated that "the overall focus in evaluating a parent's progress toward the return of the child remains, at all times, on the fitness of the parent in relation to the needs of the child." In re C.N.,
"[T]he benchmark for measuring a parent's progress under section 1(D)(m) of the Adoption Act must take into account the dynamics of the circumstances involved; the reality that the condition resulting in removal of the child may not be the only, or the most severe, condition which must be addressed before custody of the child can be returned to the parent; the appropriate role of service plans in addressing these conditions; and the overriding concern that a parent's rights to his or her child will not be terminated lightly." In re C.N.,196 Ill.2d at 216 ,256 Ill.Dec. 788 ,752 N.E.2d 1030 .
Accordingly, the court held:
"[T]he benchmark for measuring a parent's `progress toward the return of the child' under section 1(D)(m) of the Adoption Act encompasses the parent's compliance with the service plans and the court's directives, in light of the condition which gave rise to the removal of the child, and in light of other conditions which later become known and which would prevent the court from returning custody of the child to the parent." In *952 re C.N.,196 Ill.2d at 216-17 ,256 Ill.Dec. 788 ,752 N.E.2d 1030 .
Based on In re C.N., relevant evidence with respect to reasonable progress includes: evidence in connection with compliance with service plans and court directives; evidence in connection with correction of the conditions leading to removal; and evidence in connection with any other conditions that may be disclosed through subsequent investigation that a parent must address in achieving the goal of return. Contrary to respondent's argument here, the sole focus is not on compliance with service plans or correction of the conditions resulting in removal. Rather, evidence relevant to the reasonable progress analysis includes other conditions that may become known that require correction or addressing. The Report here certainly falls within the ambit of this. The Report, although it does contain information and conclusions in connection with the best interests of the children, extensively addresses conditions or circumstances of respondent that relate to her fitness in relationship to the needs of her children. Certainly, the Report tends to prove a fact in controversy, respondent's fitness, i.e., whether there are any conditions that would prevent the court from returning her children to her. As such, we conclude that the trial court did not abuse its discretion in admitting the Report as relevant.
B. Business Record
Respondent next maintains that the Report was not admissible as a business record because it was prepared for litigation. Specifically, respondent argues that it was prepared by a team of experts to assist in litigation and was done at the request of the trial court. As such, respondent argues that it is not a business record. Respondent also maintains that the Report contained expert opinions that were not subject to cross-examination. According to respondent, expert opinions must be given by live testimony.
The Guardian contends that the Report was properly admitted as a business record since it is similar to services plans in nature and purpose. The Guardian further contends that the current trend of authority allows opinions to be admitted as part of business records, authority that respondent ignores. In this regard, the Guardian maintains that the Report in fact did not contain expert opinions because none of the authors were qualified as experts. The State again presents arguments similar to the Guardian's.
Section 18(4)(a) of the Juvenile Court Act provides:
"Any writing, record, photograph or x-ray of any hospital or public or private agency, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a minor in an abuse, neglect or dependency proceeding, shall be admissible in evidence as proof of that condition, act, transaction, occurrence or event, if the court finds that the document was made in the regular course of the business of the hospital or agency and that it was in the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." 705 ILCS 405/2-18(4)(a) (West 2002).
To be admissible as a business record under this section, the State must establish that the writing was "(1) made as a memorandum or record of the event, (2) made in the ordinary course of business, and (3) made at the time of the event or within a reasonable time thereafter." In re A.B.,
*953 We find that the trial court did not err in admitting the Report as a business record. First, the case relied upon by respondent in support of her argument, Kelly v. HCI Heinz Construction Co.,
With respect to respondent's argument that the Report was prepared for litigation and, therefore, is not a business record, we disagree. First, it has been noted that "[s]imply because they [client service plans] are used in an adversarial-type proceeding is of no consequence." In re A.B.,
Accordingly, we find that the trial court did not err in admitting the Report as a business record.
III. Case Worker Testimony
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
We agree with the State's argument that respondent forfeited review of this issue on appeal by failing to object to the testimony in the trial court. Accordingly, we decline to address respondent's challenge.
IV. Finding of Unfitness
[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]
We have carefully reviewed the record and find that the State proved by clear and convincing evidence that respondent failed to make reasonable progress in any nine-month period after the adjudication and that an opposite conclusion is not clearly evident. Accordingly, we conclude that the trial court's finding that respondent was unfit was not against the manifest weight of the evidence.
CONCLUSION
For the reasons stated, we affirm the judgment of the circuit court of Cook County.
Affirmed.
CAHILL and GARCIA, JJ., concur.
NOTES
Notes
[1] Due to page restrictions, the four individual evaluation reports are not included in the published portion of this opinion, but are detailed in the unpublished portion.
[2] We note that all of these cases were decided prior to January 1, 2000, when section (iii) of the Act became effective. Accordingly, they can have no bearing on the issue presented to this court since they clearly could not have interpreted this section.
[3] Also enlightening is the following comment made by Senator Karpiel of the Illinois General Assembly regarding the addition of section (iii):
"SENATOR KARPIEL: * * * House Bill 1298 amends the Adoption Act. It amends the grounds of parental unfitness to include failure to make reasonable progress toward the return of a child to the parent during any nine-month period after the end of the initial nine-month period following the adjudication of the child as neglected, abused or a dependent. At present under the Adoption Act, they the court can only use evidence in the nine-month period from the adjudication to the filing period of termination. And since the termination hearing sometimes isn't till maybe a year later, the court would really like to hear be able to hear evidence during the other the rest of the period. This can be good or bad fora a parent. Sometimes that first nine-month period, perhaps they don't really get their act together too well, and then they at the termination hearing, the court can only use a bad evidence of of their fitness for being a parent, or it can be that they start out good and then they start start to slowly go back to their old bad ways and that's not so good for the kids. So either way, but the court would like to be able to use the entire time, look at the evidence during that entire period. And that's all the bill does." (Emphasis added.) 91st Ill. Gen. Assem., Senate Proceedings, May 6, 1999, 37-38 (statements of Senator Karpiel).