People v. Gregorio F. (In re J.M.)
| Decision Date | 11 February 2020 |
| Docket Number | No. 2-19-0806,2-19-0806 |
| Citation | 153 N.E.3d 1059,2020 IL App (2d) 190806,440 Ill.Dec. 483 |
| Parties | IN RE J.M., (People of the State of Illinois, Petitioner-Appellee v. Gregorio F., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
Azhar J. Minhas, of Belvidere, for appellant.
Marilyn Hite Ross, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 Respondent-father, Gregorio F., appeals from the trial court's orders finding him to be an unfit parent and subsequently terminating his parental rights to his son, J.M. Respondent's sole issue on appeal is that his right to due process was violated when the trial court denied his counsel's request for a continuance and held the proceedings in his absence when he was incarcerated. For the following reasons, we affirm.
¶ 3 The record reflects that on January 12, 2018, the State filed a four-count petition and alleged that four-year-old J.M. was a neglected minor pursuant to section 2-3 of the Juvenile Court Act (Act). 705 ILCS 405/2-3 (West 2018). All the counts pertained to J.M.'s mother, and at that time respondent did not live with J.M. or J.M.'s mother. Respondent was present at the shelter care hearing held that day and he said that he lived in Milwaukee, Wisconsin. The State informed the court that the parties had decided to waive their right to a hearing and the custody and guardianship of J.M. would be transferred to the Department of Children and Family Services (DCFS) with leave to place him with a responsible relative or in traditional foster care. The State informed the court that it was contemplating placing J.M. with respondent.
¶ 4 On January 17, 2018, the State informed the court that the parties had agreed that guardianship and custody of J.M. would be placed with respondent and that J.M. and respondent would live with respondent's mother.
¶ 5 DCFS filed a report to the court on April 17, 2018. In that report DCFS noted that according to respondent, J.M. had "issues following directions from authority figures." Respondent also said that J.M., who was five years old at the time, had choked and slapped one of his female cousins. Respondent reported that he was working on getting J.M. counseling.
¶ 6 On June 1, 2018, the parties returned in court for adjudication. Respondent had earlier requested and been granted permission not to attend this hearing since he lived in Milwaukee and his counsel was present at the hearing. The neglect petition had been earlier amended to add a fifth count, but none of the counts pertained to respondent. The State informed the court that the parties had agreed that the fathers1 would waive their right to a hearing, the mother would stipulate to count five of the amended petition and counts one through four would be dismissed. Count five alleged that J.M. was a neglected minor because his environment was injurious to his welfare "in that minor was living in a home where he, his sibling and other minors living in the house were sexually acting out and no protective means were put in place, thereby placing the minor at risk of harm." 705 ILCS 405/2-3(1)(b) (West 2018). The court entered an adjudication order reflecting that agreement.
¶ 7 In a report to the court on July 13, 2018, DCFS noted that temporary guardianship was given to respondent on January 14, 2018. Respondent reported that J.M was in school half a day and in daycare the other half of the day. J.M. had been doing well in his new environment. DCFS recommended that the court grant custody and guardianship of J.M. to respondent and then close the case.
¶ 8 A dispositional hearing was held that day. Respondent's counsel said that he had spoken to respondent a few weeks ago and he was prepared to act on his behalf. The State told the court that the parties had agreed that custody and guardianship of J.M. should remain with respondent and that the previous order requiring respondent and J.M. to live with respondent's mother should be vacated. Respondent's counsel told the court that respondent had found his own place to live and no longer had a relationship with J.M.'s mother. The guardian ad litem (GAL) told the court that she had visited respondent and J.M. in Milwaukee and she had no concerns. The trial court entered a dispositional order finding J.M. to be neglected, made him a ward of the court, and granted respondent custody and guardianship of J.M.
¶ 9 On October 10, 2018, respondent's counsel informed the court that respondent was not in court that day because he was in custody in Milwaukee. A caseworker from Children's Home and Aid informed the court that respondent was arrested for battering J.M. The State said that J.M. had been taken into protective custody by Wisconsin Child Protective Services. After allowing the parties to conference, the State said that it would be contacting the District Attorney's office in Milwaukee to "try to figure out what their plan is." The court was told that respondent was currently out of custody. The investigative report of the alleged battery indicated that J.M. sustained injuries to 25 different areas of his body from head to toe and those bruises were at different stages of healing. J.M. had also sustained liver damage as a result of the battering. The cause was then set for status on October 18, 2018.
¶ 10 On that day, the State said it had spoken to the District Attorney's office in Wisconsin. A petition for protective services had been filed in Wisconsin and the court granted leave to have that petition filed in this court.
¶ 11 On November 7, 2018, respondent did not appear in court but was again represented by counsel. The State said that the Milwaukee District Attorney's Office would consider closing the proceedings if the Illinois proceedings continued. The court noted that since respondent was under criminal indictment, he probably could not leave the state of Wisconsin and it asked respondent's attorney to contact him and discuss that matter. At the end of the proceedings the trial court entered a temporary custody order indicating that it was a matter of urgent and immediate necessity that J.M. be placed in the temporary guardianship and custody of DCFS. DCFS was given the discretion to place J.M. with a responsible relative or in traditional foster care. Finally, the court stayed the order until the State of Wisconsin dismissed its abuse and neglect case involving this matter.
¶ 12 On November 29, 2018, the State filed a motion to vacate the dispositional order and enter a new one based upon the change in circumstances brought about by respondent's arrest for battering J.M., the bruising on J.M.'s face, arms, legs, back and buttocks, and J.M.'s report that respondent had hit him with a belt and that he had done so before. The State requested that J.M.'s guardianship and custody be transferred to DCFS and that DCFS have the discretion to place J.M.
¶ 13 On December 6, 2018, the GAL told the court that the juvenile case in Wisconsin had been closed and the J.M. was now in a placement in Illinois. Respondent was not present for the hearing. Respondent's counsel informed the court that he had been unable to reach him, but he had spoken to respondent's Wisconsin counsel. Counsel had also spoken to respondent's mother, but she did not have any contact with respondent. Over respondent's objection the trial court granted the State's motion to modify the dispositional order and transferred custody and guardianship to DCFS.
¶ 14 On January 14, 2019, DCFS filed a report with the court. In the report DCFS indicated that as a result of respondent's abuse, J.M. had been re-entered into care on November 7, 2018. The Wisconsin authorities had transferred the case to Illinois. A DCFS worker picked up J.M. on November 9, 2018, and placed him in foster care in Rockford. Respondent had been charged with the offense of "physical abuse of a child" in Wisconsin. The respondent's service plan required him to generally cooperate with DCFS by staying in contact with the caseworker at least bimonthly, complete an Integrated Assessment, sign all required releases and, if needed, participate in drug and alcohol treatment.
¶ 15 On that day the parties met in court. The trial court asked respondent's counsel if respondent was in Wisconsin and whether he was being held in custody. Counsel said that respondent was out of custody and that he had spoken to respondent that morning. The court then asked if counsel knew whether respondent was going to be in court that day. Counsel said that respondent would not be in court because he did not know about this court date, but that he would attend the next court date.
¶ 16 The State noted that the cause was in court for a permanency review and that it would stand on DCFS' report. No findings needed to be made about the respondent, and after the mother's findings were made the court adjourned.
¶ 17 DCFS filed another report on May 15, 2019. In the report it indicated that respondent had pled guilty to "child abuse, intentionally cause harm" in Wisconsin and he was to be sentenced on June 3, 2019. A caseworker telephoned respondent and left him a voice message, but he did not call back. At the permanency hearing that day respondent was not present in court. Counsel said that he had spoken to respondent a few times that morning and that although respondent was out of custody, he would not be attending the permanency hearing. The State recommended that the trial court find that DCFS had made reasonable efforts. It also recommended that the court find respondent had failed to make reasonable efforts or progress. Specifically, the State referred to respondent's lack of contact with his caseworker, and the fact that he did not complete an integrated assessment or engage in services. It also recommended that ...
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