People v. A.M. (In re Interest of D.M.)

Decision Date10 August 2020
Docket NumberNo. 1-20-0103,1-20-0103
Citation2020 IL App (1st) 200103,174 N.E.3d 993,447 Ill.Dec. 627
Parties In the INTEREST OF D.M., (People of the State of Illinois, Petitioner-Appellee, v. A.M., Respondent-Appellant.)
CourtUnited States Appellate Court of Illinois

Amy P. Campanelli, Public Defender, of Chicago (Suzanne Isaacson, Assistant Public Defender, of counsel), for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Victoria Kennedy, Assistant State's Attorney, of counsel), for the People.

Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Carrie Fung, of counsel), guardian ad litem.

PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

¶ 1 Respondent A.M., the father of minor D.M., appeals the trial court's order denying his motion for a continuance made just before the court proceeded with a trial to terminate parental rights. A.M. contends that the rejection of his motion for a continuance violated his statutory right to counsel and denied him due process of the law. Finding no abuse of discretion, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On September 8, 2016, just two months after D.M. was born, the State filed a petition for adjudication of wardship. In the petition, the State named respondent A.M. as D.M.'s father. However, paternity was not legally established at that time. The same day that the State filed the petition for an adjudication of wardship, the Cook County public defender's office was appointed to represent respondent A.M. on the basis that he was D.M.'s putative father.

¶ 4 In April 2017, the public defender's office filed a motion to withdraw as A.M.'s counsel. In its motion to withdraw, the public defender's office explained that "Respondent-Father has not attended several scheduled court dates, including November 03, 2017, December 21, 2017, and February 07, 2017." The public defender's office further explained in its motion that "Respondent-Father has not had contact with [the appointed] attorney since September 08, 2016," which was the day the attorney was appointed for A.M. seven months earlier, despite the attorney's efforts to contact him. Therefore, due to A.M.'s unavailability, the attorney concluded that the public defender's officer could not fulfill its role of representing A.M.'s interests in the proceedings.

¶ 5 In July 2017, D.M. was adjudicated abused and neglected. The trial court concluded that D.M. was abused and neglected because he was a drug-exposed infant, was subject to an injurious environment, and because he was at substantial risk of physical injury. The trial court explained that, among other things, its finding was supported by the fact that D.M. was born testing positive for drugs and that his mother was not engaged in services or treatment. At that time, A.M. had not been assessed for parental fitness, and paternity for D.M. had not yet been legally established. A.M. did not appear in court for the proceedings or ever challenge the court's conclusion that D.M. was an abused and neglected minor.

¶ 6 As the case proceeded towards establishing permanency for D.M., the court received updates from the parties regarding the status of the case and the status of the interested persons involved. For example, at a case management conference on April 4, 2018, the court concluded that D.M. would continue to live in a pre-adoptive home pending a determination on the termination of parental rights and it noted in its written order that day that the "mother and putative father (A.M.) have not engaged in services and are not visiting consistently."

¶ 7 D.M.'s mother was defaulted in the case for failing to participate. Her appointed attorney also withdrew from representation due to her lack of cooperation and interest in the case. The attorney was later reappointed for D.M.'s mother, but then withdrew a second time. D.M.'s mother never made any effort to participate in the case after her counsel withdrew for the second time in May 2018.

¶ 8 D.M.'s mother has four other children, none of which are in her care or custody. Both D.M. and his mother tested positive for drugs when he was born. D.M.'s mother also admitted to using drugs in the months just after D.M. was born. D.M.'s mother was diagnosed with bipolar disorder

and other mental health issues and she failed to complete drug treatment or engage in mental health services. She failed to visit D.M. even though the trial court had granted her limited visitation. Throughout the proceedings, D.M. was in pre-adoptive foster care with his biological mother's cousin who wants to continue to support and care for him and adopt him.

¶ 9 In September 2018, the State filed the operative supplemental petition to terminate parental rights. As to A.M., the State alleged that he had abandoned D.M., failed to maintain a reasonable degree of interest in the child's welfare, deserted the child, and failed to make reasonable efforts to correct the conditions that led to the child's removal. The State further alleged that A.M. had evidenced an intent to forgo parental rights by failing to visit the child for over a year or communicate with the child or the caseworkers.

¶ 10 On October 16, 2018, shortly after the State's supplemental petition to terminate parental rights was filed, the public defender's office was reappointed to represent A.M. The same day that the public defender's office was reappointed to represent A.M., the trial court also made a legal finding that A.M. "is the father of minor [D.M.]." A.M. had signed a voluntary acknowledgement of paternity. The trial court also noted at that same court appearance that D.M.'s parents "are not engaged in services or visiting with [D.M.]."

¶ 11 The case was set for a hearing for the termination of parental rights on May 22, 2019. A.M. was unable to appear because he was accompanying one of his other children to the emergency room. The parties agreed to try to resolve the case in mediation and the court entered an order to that effect. The court also set a future date for a termination of parental rights hearing in case the parties were not able to resolve the case in mediation.

¶ 12 A.M. did not appear at the scheduled mediation. The mediation session, therefore, did not occur. On July 10, 2018, the court set the case for a termination of parental rights trial to be held September 18, 2019. The case was later continued until December 17, 2019 for the trial on the issue of terminating parental rights.

¶ 13 When the trial court called the case for trial on December 17, 2019, the State and the public guardian answered ready, but counsel for A.M. responded that she was not ready for trial. Between the time the public defender's office was reappointed to represent A.M. on October 16, 2018 and the day of the trial, December 17, 2019, A.M. had been represented by Assistant Public Defender Jeremy Lemmons. However, at trial, Assistant Public Defender Carolyn Howard appeared on behalf of A.M.

¶ 14 Howard informed the court that she was not prepared to go forward with the trial.

"I'm new to the case, so the file hasn't actually transitioned to me yet. This will be my first time making an appearance on it. I don't actually have the file, so I need time to prepare and time to actually get the file copied for me from the State or the GAL."

Howard made an oral motion requesting a continuance of the trial date. Howard also informed the court that she had not yet had any contact with A.M. A.M. was not present in court on the day of the scheduled trial. After some discussion, the caseworker informed the court that A.M. had not appeared since the very first court appearance in the case in 2016.1 Noting the importance of resolving cases involving the legal parentage of abused and neglected children in a timely fashion and the fact that a brand new attorney showed up and made an oral motion for a continuance on the day of trial, the trial court denied the motion for a continuance.

¶ 15 The case went forward with the trial on the termination of parental rights. After the trial court heard testimony and accepted exhibits into evidence, it found both parents to be unfit. As to A.M., the trial court grounded its finding on a lack of reasonable interest, concern, and responsibility for the minor's welfare, lack of reasonable efforts or progress, and A.M.'s proven intent to forgo parental rights. The trial court subsequently found in the second portion of the proceedings that it was in the best interests of D.M. that parental rights be terminated.

¶ 16 After the unfitness stage of the hearing, Ms. Howard stated that she objected "on behalf of Jeremy Lemmons, the attorney that is actually assigned to this case." Ms. Howard stated that she "had an opportunity to look up this case, and [that she was] not even assigned to this case," so she was "standing in for Jeremy Lemmons." After the best interests stage of the hearing, Ms. Howard reiterated that she was just the "stand-in attorney," a conflicting position with what she had told the court before trial in support of her motion for a continuance where she stated the case was newly assigned to her. Ms. Howard did not inform the court as to why Mr. Lemmons did not appear nor did she state when he would be available to try to the case. No motion to reconsider or other posttrial motion was filed.

¶ 17 A.M. now appeals the judgment, arguing that the trial court erred when it denied the motion for the continuance. A.M. contends that the denial of the continuance deprived him of the right to counsel that is statutorily granted to him by the Juvenile Court Act of 1987 ( 705 ILCS 405/1-5(1) (West 2016)). A.M. further contends that the denial of the continuance deprived him of his right to procedural due process.

¶ 18 II. ANALYSIS

¶ 19 Respondent A.M. argues that the trial court abused its discretion in denying his motion for a continuance. A.M.'s position is that "the court's denial of a continuance had the effect of violating A.M.'s rights to counsel and to...

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