People v. Toby B. (In re T.B.)
| Decision Date | 19 June 2019 |
| Docket Number | NO. 4-19-0139,4-19-0139 |
| Citation | 2019 IL App (4th) 190139 -U |
| Parties | In re T.B. Jr., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Toby B., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County
Honorable Brett N. Olmstead, Judge Presiding.
¶ 1 Held: The appellate court affirmed, finding the trial court did not err in (1) finding him unfit, (2) denying his motion to continue, (3) denying his request for new counsel, and (4) terminating his parental rights.
¶ 2 In February 2017, the State filed a petition for adjudication of neglect with respect to T.B. Jr. (T.B.), the minor child of respondent, Toby B. The trial court made the minor a ward of the court and placed custody and guardianship with the Department of Children and Family Services (DCFS). In August 2018, the State filed a motion to terminate respondent's parental rights. The court found respondent unfit and determined it was in the minor's best interests that respondent's parental rights be terminated.
¶ 3 On appeal, respondent argues the trial court erred in (1) finding him unfit, (2) denying his motion to continue the best-interests hearing, (3) conducting an inadequate analysis of his pro se claim of ineffective assistance of counsel, and (4) terminating his parental rights.
We affirm.
¶ 5 In February 2017, the State filed a petition for adjudication of neglect with respect to T.B., the minor child of respondent and Kristen K. The State alleged the minor was neglected pursuant to sections 2-3(1)(b) and (1)(c) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b), (c) (West 2016)) because of being (1) an infant whose blood, urine, or meconium contained any amount of a controlled substance or a metabolite of a controlled substance at the time of his birth, the presence of which was not the result of medical treatment administered to the mother or the infant and (2) a minor whose environment was injurious to his welfare when he resided with Kristen K. in that said environment exposed him to substance abuse. The petition indicated respondent resided in the Illinois Department of Corrections.
¶ 6 Respondent waived his right to an adjudicatory hearing. The trial court found the minor neglected for exposure to controlled substances, as stipulated by the State, the guardian ad litem, and Kristen K. In its April 2017 dispositional order, the court found respondent and Kristen K. unfit and unable for reasons other than financial circumstances alone to care for, protect, train, or discipline the minor and the health, safety, and best interests of the minor would be jeopardized if he remained in his parents' custody. The court noted respondent "suffers from a severe substance abuse problem" and remained incarcerated. The court adjudicated the minor neglected, made him a ward of the court, and placed custody and guardianship with DCFS.
¶ 7 In its July 2017 permanency order, the trial court found respondent had made reasonable and substantial progress and reasonable efforts toward returning the minor home. In October 2017, the court's permanency order found respondent had made reasonable efforts, but it found he had not made reasonable and substantial progress because of his continuedincarceration.
¶ 8 The trial court also ordered genetic testing in October 2017. Although respondent signed a voluntary acknowledgment of paternity at the time of T.B.'s birth, during the pendency of the case, he corresponded with the court and his counsel, indicating his belief he was not the father of the child. He stated, however, knowing this, he had freely signed the voluntary acknowledgment of paternity and birth certificate and accepted responsibility for the child as his own and was opposed to the genetic testing order. Testing in December 2017 determined respondent is not the biological father of T.B.
¶ 9 Respondent was released from prison on December 28, 2017. In its February 2018 permanency order, the trial court found respondent had made reasonable progress and reasonable efforts toward returning the minor home. The May 2018 permanency order found respondent had made reasonable progress and reasonable efforts but noted he must attend all visits offered to build the bond and attachment with T.B. that will permit a safe transition of custody. In July 2018, the court found respondent had not made reasonable progress or reasonable efforts.
¶ 10 In August 2018, the State filed a motion to terminate the parental rights of respondent and Kristen K. The State alleged both parents were unfit because they failed to make reasonable progress toward the return of the minor to their care during any nine-month period following the adjudication of neglect, namely October 24, 2017, to July 24, 2018 (750 ILCS 50/1(D)(m)(ii) (West 2016)).
¶ 11 In November and December 2018, the trial court conducted a hearing on the State's motion. Syretta Butler testified she is a caseworker at Center for Youth and Family Solutions and has been T.B.'s caseworker since June 2017. At the start of the case, respondentresided in prison. He sent letters to T.B. and completed services related to substance abuse and parenting. Once he was released from prison in December 2017, he was required to cooperate with the agency and attend visits. From December 2017 to January 2018, respondent cooperated with the agency and attended weekly visits. Butler stated she had no trouble contacting respondent during that time. She also stated respondent cooperated with the agency and attended visits in February and March 2018.
¶ 12 Butler stated she last talked with respondent on April 19, 2018. She called him, and respondent said he was working out of state for a power company. She did not receive any pay stubs or a letter of employment from him. At that time, respondent stated he wanted to put his visits on hold and would call to let Butler know when he wanted them to resume. Between April 19, 2018, and August 9, 2018, Butler had no in-person contact with respondent and spoke with him less than five times. Respondent contacted Butler to restart the visits in July 2018. Respondent visited with T.B. in August 2018, but he also became incarcerated again.
¶ 13 On cross-examination, Butler testified respondent maintained contact with the agency while incarcerated, contacted her once he was released, and had appropriate visits starting in January 2018. Butler stated a bond existed between respondent and T.B.
¶ 14 Respondent testified he lived with Kristen K. and T.B. during the "first few months of his life." When T.B. was approximately three months old, respondent was sentenced to four years in prison. Believing substance abuse was an issue for him, he placed himself in a substance-abuse program while incarcerated. He also took parenting courses, contacted the agency, and wrote T.B. every week.
¶ 15 Respondent stated he was released from prison on December 28, 2017, and "set up an impromptu visit" with T.B. on that day. Thereafter, respondent "established a regularvisitation schedule" with T.B. until he "took a job that caused [him] to suspend the visits temporarily." Respondent stated he began working as an independent contractor for Evaptech and "built observation decks for cooling towers at power companies." He stated it was "an excellent job opportunity," could earn him "almost a hundred thousand dollars a year," and required him to "travel across the United States." Prior to taking the job in Ohio, respondent called Butler and told her he "would need to temporarily suspend [his] visits due to employment purposes." Respondent, however, did not notify his parole officer, knowing "the bureaucracy of the parole office" would take weeks to get approval to leave Illinois. During his 90-day stay in Ohio, respondent contacted Butler "two or three times" and even texted a picture of a negative drug screen he had taken for his employment. Respondent stated he was working 12-hour days and had little time to make phone calls while on the job.
¶ 16 When he returned to Illinois in July 2018, respondent contacted Butler. After a meeting with the agency, visits resumed in August 2018. Also in August 2018, respondent returned to custody after his parole was revoked for leaving the state without notifying his parole officer. He also reported being charged with retail theft in August 2018 and stated he had 60 days left on his stay in prison.
¶ 17 Called as a witness by respondent, Butler testified respondent informed her of taking an out-of-state job in April 2018 and maintained "very minimal" contact with her thereafter. He contacted her in July 2018 and visits resumed. Butler stated respondent had no contact with T.B. while he was working.
¶ 18 In its ruling on unfitness, the trial court noted respondent had two requirements upon his release from prison in December 2017—maintain contact with the agency and visit with T.B. Respondent visited with T.B., and the court assumed the bond between them was growing.
However, respondent left in April 2018 and, "by choosing to remove himself" from T.B.'s life, it created a problem for respondent in "making progress toward return of his child to his custody." While respondent restarted the visits when he returned in July 2018, "there was another problem" because he had left the state without notifying his parole officer, which ultimately led to his return trip to prison. The court found respondent unfit.
¶ 19 On February 8, 2019, respondent's counsel filed a motion to continue, stating respondent was set to be released from prison on February 22, 2019. Respondent requested a bonding study, a psychological evaluation of T.B., and a study of respo...
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