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SECOND DIVISION
February 24, 2004

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Sometimes there is just too much history. Detra W. made substantialprogress toward correcting her life as she sought to regain custody of herchild, Gwynne P., but she could not overcome the prison terms that preventedher from discharging her parental responsibilities.

Following a hearing, the circuit court found respondents Edward D. andDetra W. were unfit parents to their daughter Gwynne P. At a subsequenthearing, the court determined it was in the best interests of the child toterminate respondents' parental rights and to appoint a guardian with theright to consent to adoption.

Respondents contend the trial court's findings regarding unfitness andthe child's best interests were against the manifest weight of the evidenceand that the court erred when it prematurely changed the permanency goal totermination of parental rights five months after the adjudication of neglect. Edward D. also contends the trial court erred in admitting opinion testimonyduring the best interests portion of the hearing. We affirm.

FACTS

Gwynne P. was born on June 18, 1999, and tested positive for exposure tococaine and heroin.

Detra W. and Edward D. are Gwynne P.'s biological parents. In March1998, Detra W. escaped from custody by breaking her electronic monitoringdevice. On June 15, 1999, she was arrested for possession of a controlledsubstance three days before Gwynne P. was born. On August 11, 1999, Detra W.returned to prison and was placed in disciplinary segregation for one year. She was released from prison in March 2002.

Edward D. was incarcerated on September 3, 1999, and was released inDecember 2002.

On December 7, 1999, Gwynne P. was adjudicated a ward of the court andplaced under the guardianship of the Department of Children and FamilyServices (DCFS) based on findings of abuse, neglect, and dependency. Fivemonths later, the court changed the permanency goal to "substitute carepending court determination on termination of parental rights."

On January 30, 2001, the State petitioned for termination of parentalrights and appointment of a guardian with the right to consent to adoption. The State later amended its petition to include additional grounds fortermination of parental rights. As grounds for termination, the State allegedrespondents were unfit parents because they failed to maintain a reasonabledegree of concern, interest, or responsibility as to the child's welfare; theybehaved in a depraved manner; they failed to make reasonable efforts tocorrect the conditions which were the basis for the removal of the child fromthem; they failed to make reasonable progress toward the return of the childwithin nine months after the adjudication of neglect; and they were repeatedlyincarcerated as a result of criminal convictions, preventing them fromdischarging their parental responsibilities in violation of subsections50/1(D)(b),(i),(m), and (s) of the Adoption Act (Act) and section 2-29 of theJuvenile Court Act. 750 ILCS 50/1(D)(b),(i),(m),(s) (West 2000); 705 ILCS405/2-29 (West 2000).

In March 2003, after conducting a fitness hearing the previous December,the trial court found both respondents unfit on four statutory grounds: failure to maintain a reasonable degree of interest, failure to makereasonable efforts or reasonable progress, repeated incarceration, anddepravity. See (750 ILCS 50/1(D)(b),(m),(s), (i) (West 2002).

After conducting a separate hearing, the court found it was in GwynneP.'s best interests to terminate respondents' parental rights and appointedthe DCFS guardianship administrator with the right to consent to adoption.

DECISION

I. Standard of Review

The State must prove by clear and convincing evidence respondents areunfit parents. In re D.F., 201 Ill. 2d 476, 494-95, 777 N.E.2d 930 (2002). Atrial court's finding of unfitness is afforded great deference because it hasthe best opportunity to view and evaluate the parties and their testimony; thetrial court's finding will not be disturbed on appeal unless it is against themanifest weight of the evidence. In re D.F., 201 Ill. 2d at 498-99. Adecision is against the manifest weight of the evidence where the oppositeresult is clearly evident from the record. In re D.F., 201 Ill 2d. at 498.

II. Statutory grounds for unfitness

Respondents contend the trial court's findings of unfitness based on thefour statutory grounds were against the manifest weight of the evidence. Afinding of unfitness will stand if supported by any one of the statutorygrounds set forth in section 1(D) of the Act. In re D.D., 196 Ill. 2d 405,422, 752 N.E.2d 1112 (2001); 750 ILCS 50/1(D) (West 2002). We examine eachstatutory ground as it applies to each respondent.

A. Failure to maintain a reasonable degree of concern, interest, orresponsibility.

The Adoption Act provides that a court may find a parent unfit if theparent fails to maintain reasonable concern, interest, or responsibility forthe welfare of a child. 750 ILCS 50/1(D)(b) (West 2002).

"[I]n determining whether a parent showed reasonableconcern, interest or responsibility as to a child'swelfare, we have to examine the parent's conductconcerning the child in the context of thecircumstances in which that conduct occurred. Circumstances that warrant consideration when decidingwhether a parent's failure to personally visit his orher child establishes a lack of reasonable interest,concern or responsibility as to the child's welfareinclude the parent's difficulty in obtainingtransportation to the child's residence, the parent'spoverty, the actions and statements of others thathinder or discourage visitation, and whether theparent's failure to visit the child was motivated by aneed to cope with other aspects of his or her life orby true indifference to, and lack of concern for, thechild." [Citations omitted.] In re Adoption of Syck,138 Ill. 2d 255, 278-79, 562 N.E.2d 174 (1990).

If visitation is impractical, the parent can show reasonable concern,interest, and responsibility in a child through letters, telephone calls, andgifts, depending on the frequency and tone of those communications. In reAdoption of Syck, 138 Ill. 2d at 279. Completion of service plan objectivesalso can be considered evidence of a parent's concern, interest, andresponsibility. See In re T.Y. & T.Y., 334 Ill. App. 3d 894, 906, 778 N.E.2d1212 (2002) (court considered parent's failure to complete services whenfinding him unfit under section 1(D)(b)). Courts will consider the parent'sefforts which show interest in the child's well-being, regardless of whetherthose efforts were successful. In re Adoption of Syck, 138 Ill. 2d at 279.

1. Detra W.

Jamie Steczo, a social worker from Lutheran Social Services (theagency), testified she was assigned to Gwynne P.'s case from July 1999 untilJune 1, 2000. During that time, Detra W. was being held in segregation atDwight Correctional Center because she had broken her electronic monitoringdevice.

From December 7, 1999 to June 1, 2000, Detra W.'s service plan requiredthe following services: parenting classes, substance abuse assessment andtreatment, psychological evaluation, and counseling. Some of the serviceswere not available to Detra W. while she was in segregation. According toSteczo, Detra W. placed her name on the waiting list for those services, butshe did not complete any services before June 1, 2000.

Detra W. was required by the service plan to request visits with GwynneP. by telephone or mail. The agency planned to schedule quarterly one-hourvisits with Gwynne P. At the hearing, Steczo identified letters from Detra W.requesting visits with Gwynne P. Steczo scheduled a visit in November 1999and another in March 2000.

Molly Ashbaugh was assigned Gwynne P.'s case beginning September 1,2000, until March 2002. During that time, Detra W. had three visits withGwynne P. Ashbaugh testified two visits were not scheduled because Detra W.did not request them. Detra W. completed a series of parenting classes onSeptember 14, 2000, after she was released from segregation. Detra W. begansubstance abuse classes in March 2001, and finished the program in September2001. Detra W. was referred for a psychological evaluation while insegregation, and Detra W. told Ashbaugh she had completed the evaluation;however, Detra's case manager at the prison had no record of the evaluation.

On cross-examination, Ashbaugh testified she could not explain why DetraW. was allowed only two visits with her child despite Detra's several requestsfor Ashbaugh to schedule visits. Ashbaugh said Detra W. acted appropriatelywith Gwynne P. during her visits, tried to engage her, and actedaffectionately. Detra W. frequently asked for pictures of Gwynne P. and wasinterested in the quality of care Gwynne P. was receiving. After Detra W. wasreleased from prison in March 2002, she visited with Gwynne P. on a monthlybasis.

At the hearing, Detra W. introduced evidence of 10 letters and 3telephone calls requesting visits with Gwynne P. during Detra's incarceration. In total, Detra W. was entitled to 11 visits with Gwynne P. during that time. Leslie Berg, a supervisor at the agency, was unable to explain why Detra W.received only five visits with Gwynne P. despite her requests.

Detra W. also introduced several cards and letters she sent to Gwynne P.expressing her love and desire to see her. Detra W. also sent Gwynne P. abook and a tape of Detra reading the book. After Detra W.'s release fromprison, she gave Gwynne P. a series of small gifts.

Detra W. also voluntarily completed a drug treatment program atHaymarket after her release from prison. Detra W. testified she did miss someof the sessions because she was visiting Gwynne P. or interviewing for jobs. Detra W. later completed the missed sessions and graduated from the program. She was subsequently hired by Haymarket as a "detox specialist."

The State and public guardian contend Detra W. failed to maintainreasonable concern, interest, and responsibility for Gwynne P. because "sheescaped from prison while pregnant with Gwynne, used drugs, got arrestedagain, and was returned to prison and held in segregation." They also contendDetra W. did not show interest in Gwynne P. because of the sporadic visitationduring her incarceration, although they acknowledge the evidence suggestedsome of the missed visits were due to the agency's failures. The State alsocontends Detra W.'s cards and letters were insufficient.

First, although the State and public guardian repeatedly contendotherwise, the record shows Detra W. escaped from electronic detention inMarch 1998, 18 months before Gwynne P.'s birth -- she was not pregnant at thetime of her escape. Second, we are not convinced any of these facts establishclear and convincing evidence Detra W. failed to show reasonable concern,interest, or responsibility toward Gwynne P. before termination of herparental rights.

While we agree Detra W.'s incarceration did not absolve her of the dutyto show reasonable concern, interest, or responsibility (see In re SheltanyaS., 309 Ill. App. 3d 941, 954, 723 N.E.2d 744 (1999)), we must consider hercircumstances when measuring the reasonableness of her efforts. We look ather efforts to schedule visits, not the number of scheduled visits. We mustalso consider the limitations of Detra W.'s incarceration when consideringwhether her efforts with Gwynne P. showed reasonable interest or concern.

In In re F.S., 322 Ill. App. 3d 486, 493-98, 749 N.E.2d 1033 (2001), thetrial court terminated the respondent's parental rights for failure tomaintain reasonable concern, interest, and responsibility for her child'swelfare. The trial court found the respondent missed several scheduled visitswith her child and failed to directly comply with objectives in her serviceplan by using programs other than those DCFS recommended. On appeal, thiscourt reversed the trial court's finding of unfitness. The court said themissed visits were not clear and convincing evidence of a lack of concern forthe child under the circumstances. In re F.S., 322 Ill. App. 3d at 497. Atthe time of the missed visits, the respondent was participating in arestrictive drug treatment program which helped her overcome her addiction --the reason the child was removed from her custody. The respondent alsocompleted parenting skills classes and was drug-free within six months of theadjudication of neglect. The court found the respondent substantiallyfulfilled her obligations under the service plan, and the trial court'sfinding was against the manifest weight of the evidence. In re F.S., 322 Ill.App. 3d at 498.

In this case, Detra W. remained drug-free in the nine months between herrelease from prison and the unfitness hearing. Detra W. voluntarily enrolledin substance abuse treatment at Haymarket in addition to the classes shecompleted while incarcerated and regularly requested visits with Gwynne P. She also met the goals and objectives listed in her service plans. Based onthe record, we find no clear and convincing evidence that Detra W. failed toshow reasonable concern, interest, or responsibility toward Gwynne P. prior tothe termination of her parental rights. The trial court's finding was againstthe manifest weight of the evidence.

2. Edward D.

Ashbaugh testified Edward D. had a total of five visits with Gwynne P.during his incarceration from 1999 until December 2002. Edward D. wasresponsible for requesting a visit before one would be scheduled. He actedappropriately during those visits, attempting to engage Gwynne P. and askingthe social workers about her well-being. In 2001, two visits were cancelleddue to his transfer to another correctional facility. Another visit wascancelled due to the agency's transportation problems.

Ashbaugh testified the service plans listed several services Edward D.was required to complete toward the goal of reunification. He never completedany of the listed services although the services were available to him throughthe correctional facilities where he stayed. Ashbaugh also testified EdwardD. sent Gwynne P. cards and letters, but did not indicate the frequency ofthose letters or their content. The record does not contain any of theletters Edward D. sent.

It appears Edward D. made efforts to schedule visitation while he wasincarcerated. For whatever reason, only five visits actually were completed. Edward D. did express interest in Gwynne P.'s well-being during those visits;however, without more information regarding his written communication withGwynne P., there is little evidence showing he maintained reasonable concern,interest, or responsibility between the sporadic visits. Based on thisevidence, we cannot conclude the trial court's finding of unfitness based onsection 1(D)(b) of the Act (750 ILCS 50/1(D)(b) (West 2002)) was against themanifest weight of the evidence.

B. Failure to make reasonable progress

Section 1(D)(m) of the Adoption Act allows findings of unfitness basedon a parent's failure to make reasonable progress toward the return of thechild to the parent within any nine-month period following an adjudication ofneglect, abuse, or dependency. 750 ILCS 50/1(D)(m) (West 2002). Under anobjective standard, "reasonable progress" requires, at a minimum, the parentmake measurable steps toward the goal of reunification through compliance withcourt directives, service plans or both. In re J.A., 316 Ill. App. 3d 553,564-65, 736 N.E.2d 678 (2000); In re Sheltanya S., 309 Ill. App. 3d at 953-54,("In order for a parent to make 'reasonable progress' toward the return of achild, they must make 'a minimum measurable or demonstrable movement towardthat goal' "). When assessing whether a parent substantially fulfilled hisobligations under the service plans, "the court 'must recogniz[e] thatcompliance with DCFS service plans is a means to a desired end, not the end initself ***.' " In re F.S., 322 Ill. App. 3d at 492 (respondent madereasonable progress and efforts by remaining drug-free for three months duringthe relevant time period, even though DCFS had not approved the drug treatmentprogram she attended).

In this case, we examine respondent's progress during the nine monthsfollowing the adjudication of wardship: from December 7, 1999, to September7, 2000. See In re D.F., 208 Ill. 2d 223, ___, ___ N.E.2d ___ (2003).

1. Detra W.'s progress

During the nine months following adjudication of wardship, the relevantservice plan required Detra W. to complete a drug and alcohol assessment, apsychological evaluation, parenting classes, and counseling. At that time,Detra W. was incarcerated and being held in segregation as punishment for herescape from electronic detention. While in segregation, the only servicesavailable to Detra W. were psychological evaluation and counseling; thecounseling was dependent on the evaluation. Steczo testified the agency hadno record of Detra W. completing her evaluation although Detra W. hadrequested a doctor to schedule one. Steczo's notes on the November 23, 1999,service plan indicated Detra W. was referred for the evaluation which would becompleted at the doctor's earliest convenience.

Detra W. testified she completed a psychiatric evaluation and submittedthe evaluation at the hearing. The evaluation was completed on June 20, 2000,by Dr. Andrew Guschwan. In the evaluation, Dr. Guschwan did not recommend anypsychiatric treatment or follow-up. Although Detra W. did not participate inthe other services while in segregation, she placed her name on the waitinglists for parenting classes and the drug assessment. Once released fromsegregation in August 2000, she began parenting classes and finished thecourse on September 14, 2000. Detra W. also remained on the waiting list fora drug assessment and began substance abuse classes when she was transferredto another correctional facility a few months later.

The record contains several letters sent by Detra W. or her attorney onher behalf requesting the agency to schedule visits with Gwynne P. During therelevant period, Detra W. was entitled to quarterly one-hour visits withGwynne P. upon Detra's request. The record contains seven letters written byDetra W. to the agency requesting visits with Gwynne P. during those firstnine months, and one letter her attorney wrote requesting a visit on May 31,2000. According to the testimony of Jamie Steczo and Molly Ashbaugh, only onevisit was scheduled while Detra W. was in segregation.

Because Detra W. took several steps toward completing the services inher service plan, including her persistent efforts to schedule visits withGwynne P., we find Detra W. made a minimum measurable or demonstrable movementtoward reunification. The court's finding that she failed to make reasonableprogress was against the manifest weight of the evidence.

2. Edward D.'s progress

During the relevant time period, the agency's service plan for Edward D.required him to complete parenting classes, a drug and alcohol assessment, apsychological evaluation, and substance abuse treatment. The agency did notrefer Edward D. for these services because he was incarcerated at the time. All of the required services were offered at the prison facility where EdwardD. was living; however, the agency could not enroll Edward D. in thoseservices. Instead, Edward D. had to sign up for those classes. According tothe agency records, Edward D. never completed any of those services during therelevant time period. Because Edward D. failed to fulfill any of the requiredservices available to him, the trial court's finding that Edward D. failed tomake reasonable progress was not against the manifest weight of the evidence.

C. Failure to make reasonable efforts

Section 1(D)(m) of the Adoption Act provides a court can find a parentunfit if the parent failed to make reasonable efforts to correct theconditions that were the basis for removing the child from the parent'scustody. 750 ILCS 50/1(D)(m) (West 2002). Courts focus on the amount ofeffort that is subjectively reasonable for the particular parent whose rightsare at stake. In re J.A., 316 Ill. App. 3d 553, 565, 736 N.E.2d 678 (2000). We examine respondents' efforts from December 7, 1999 to September 7, 2000. See In re D.F., 208 Ill. 2d at ___ ("the nine-month evaluation period insection 1(D)(m) of the Adoption Act *** applied to both the reasonable-effortsground and the reasonable-progress ground, and that the date on which to beginassessing a parent's efforts or progress is the date the trial court entersits order adjudging the minor neglected, abused, or dependent").

1. Detra W.'s efforts

Gwynne P. was found neglected and abused because she was born exposed tocontrolled substances, her mother admitted to drug use creating an injuriousenvironment, and both parents were incarcerated.

During part of the relevant time period, Detra W. was serving time insegregation. Services were not available to her until August 2000, but sheplaced her name on the waiting list while in segregation. Upon release fromsegregation, she began parenting classes and remained on the waiting list forsubstance abuse treatment.

In the nine months following adjudication of neglect and abuse, Detra W.had little opportunity to make reasonable efforts toward correcting theconditions that led to Gwynne P.'s removal due to the limiting circumstancesof her incarceration. By placing her name on the waiting list for services,and participating in services when they became available, we believe DetraW.'s efforts to correct the conditions that led to Gwynne P.'s removal, namelyher drug addiction, were reasonable under the circumstances. The court'sfinding that Detra W. failed to make reasonable efforts was against themanifest weight of the evidence.

2. Edward D.'s efforts

Edward D. was incarcerated during the nine months following theadjudication of neglect and abuse. Unlike Detra W., services were availableto Edward D. throughout his incarceration, including parenting classes andsubstance abuse treatment. There was no evidence he attempted to participatein any of those services, although Ashbaugh testified Edward D. completed asubstance abuse class prior to the adjudication of neglect.

The trial court's finding of Edward D.'s unfitness for failure to makereasonable efforts was not against the manifest weight of the evidence.

D. Repeated incarceration

Section 1(D)(s) provides a parent is unfit if:

"[t]he child is in the temporary custody orguardianship of the Department of Children and FamilyServices, the parent is incarcerated at the time thepetition or motion for termination of parental rightsis filed, the parent has been repeatedly incarceratedas a result of criminal convictions, and the parent'srepeated incarceration has prevented the parent fromdischarging his or her parental responsibilities forthe child." 750 ILCS 50/1(D)(s) (West 2002).

Only one incarceration will support a finding of unfitness if theincarceration prevented the discharge of parental duties, including providingthe child with a stable home and the necessary physical, emotional, andfinancial support. In re E.C. and D.C., 337 Ill. App. 3d 391, 399, 786 N.E.2d590 (2003); see In re D.D., 196 Ill. 2d 405, 420-22, 752 N.E.2d 1112 (2001)(it is the "overall impact" that repeated incarceration may have on theparent's ability to discharge her parental responsibilities -- "circumstanceswhich may flow from the fact of repeated incarceration, such as the diminishedcapacity to provide financial, physical, and emotional support for thechild"); In re M.P., 324 Ill. App. 3d 686, 755 N.E.2d 1063 (2001); see also Inre M.M.J., 313 Ill. App. 3d 352, 355, 728 N.E.2d 1237 (2000) ("Being a parentinvolves more than attending a few visits and sending an occasional gift tothe child. The child needs a positive, caring role model present in her life. This ground for unfitness [repeated incarceration] may be utilized regardlessof [respondent's] efforts, compliance with DCFS tasks and satisfactoryattainment of goals, or the amount of interest he has shown in his daughter'swelfare"). There is no requirement that the repeated incarceration occursduring the lifetime of the child (In re D.D., 196 Ill. 2d at 419), although,in this case, Detra W.'s incarceration lasted through the first three years ofGwynne P.'s life.

Detra W. was incarcerated shortly after Gwynne P.'s birth until March2002, four months after the State petitioned for termination of parentalrights. Edward D. was incarcerated from September 1999 until December 2002. Both respondents had been incarcerated on multiple occasions before GwynneP.'s birth. Gwynne P. was in the temporary custody and guardianship of DCFSduring respondents' incarceration. According to the social worker assigned toGwynne P.'s case, neither respondent was able to provide a stable home,financial or emotional support for the first three years of Gwynne P.'s younglife. We find the trial court's determination that both respondents wereunfit based on the statutory ground of repeated incarceration (750 ILCS50/1(D)(s) (West 2002)) was not against the manifest weight of the evidence.

D. Depravity

The Adoption Act provides that a parent can be found unfit based on afinding of depravity. 750 ILCS 50/1(D)(i) (West 2002). Illinois courts havedefined depravity as "an inherent deficiency of moral sense and rectitude." In re J.A., 316 Ill. App. 3d 553, 561, 736 N.E.3d 678 (2000), quoting Stalderv. Stone, 412 Ill. 488, 498, 107 N.E.2d 696 (1952). Under the statute, thereis a rebuttable presumption of depravity if the parent has been convicted ofat least three felonies and one of the convictions happened within five yearsof the petition seeking termination of parental rights. 750 ILCS 50/1(D)(West2002).

1. Detra W.

The State produced certified copies of Detra W.'s convictions: twofelony narcotics convictions and one felony theft conviction. All theconvictions occurred within five years of the petition for termination ofparental rights.

Detra W. testified she had successfully completed a drug treatmentprogram at Haymarket and remained drug-free since 1999. She also was hired asa "detox specialist" at Haymarket and was continually employed there duringthe seven months prior to the hearing. She was meeting the requirements ofher parole -- to remain a drug-free and law-abiding citizen. She completedall the required services, including parenting skills classes. Thecaseworkers testified that Detra W. always acted appropriately during hervisits with Gwynne P. We find Detra W. produced sufficient evidence thatrebutted the presumption she had an inherent moral deficiency; the manifestweight of the evidence does not establish depravity.

2. Edward D.

The State produced certified copies of Edward D.'s convictions includingseven felony arrests, with the most recent occurring in 2001, creating thepresumption Edward D. was depraved. Edward D. did not offer any rebuttalevidence. Edward D. failed to complete any of the services required by theservice plans. Accordingly, we do not believe the trial court's finding ofdepravity with regard to Edward D. was against the manifest weight of theevidence.

III. Best interests finding

Respondents contend the trial court erred because terminating theirparental rights was not in Gwynne P.'s best interests.

Once a parent has been found unfit, the court must determine the bestinterests of the child before terminating parental rights. In re D.T., 338Ill. App. 3d 133, 145, 788 N.E.2d 133 (2003), petition for leave to appealgranted No. 96229. The State must prove the best interests of the child by apreponderance of the evidence. In re D.T., 338 Ill. App. 3d at 145. Once thetrial court has made a determination regarding the child's best interests, itsdecision will not be disturbed on appeal unless it is against the manifestweight of the evidence. In re D.T., 338 Ill. App. 3d at 146-47.

Section 1-3(4.05) of the Juvenile Court Act of 1987 (705 ILCS 405/1-3(4.05) (West 2002)) lists factors the court must consider when decidingwhether termination of parental rights serves a child's best interests. Thefactors include (1) the child's physical safety and welfare; (2) thedevelopment of the child's identity; (3) the child's familial, cultural, andreligious background; (4) the child's sense of attachment, including love,security, familiarity, continuity of affection, and the least disruptiveplacement alternative; (5) the child's wishes; (6) the child's ties to his orher community; (7) the child's need for permanence, including her need forstability and continuity of relationships with parent figures and siblings;(8) the uniqueness of every family and child; (9) the risks related tosubstitute care; and (10) the preferences of the person available to care forthe child. 705 ILCS 405/4-3(4.05) (West 2002).

Detra W. and Edward D. contend the trial court's finding that it was inGwynne P.'s best interest to terminate their parental rights was against themanifest weight of the evidence. Detra W. contends the court's finding waserroneous because she has rehabilitated herself and has good parenting skills,as demonstrated during her visits with Gwynne P. Edward D. contends the factGwynne P. calls him "daddy" and hugs him during their visits shows a strongbond between them.

At the best interests hearing, Molly Ashbaugh, Gwynne P.'s socialworker, testified Gwynne P. was placed with her current foster family inFebruary 2000. Ashbaugh said Gwynne P. had a "very loving and bonded"relationship with both foster parents and got along well with her two fostersisters. Gwynne P. calls her foster family members "mom", "papa", and"sisters". Because Gwynne P. was born exposed to cocaine and heroin, she hasspecial needs requiring occupational, physical, and speech therapy. At thetime of the hearing, those services were being provided "as needed". Ashbaughtestified the foster parents were able to meet those special needs becausethey completed extensive training and the foster mother had a master's degreein early childhood special education. The foster mother participated inGwynne P.'s therapy and was able to monitor Gwynne P.'s progress and reinforcenecessary skills. Ashbaugh opined termination of respondents' parental rightswas in Gwynne P.'s best interests.

On cross-examination, Ashbaugh testified she supervised visits betweenGwynne P. and respondents. She observed respondents interact appropriatelywith Gwynne P. Both parents hugged Gwynne P. when greeting her and sent hercards. Detra W. gave Gwynne P. several gifts and Edward D. made her a familyscrapbook. Ashbaugh heard Gwynne P. call Edward D. "daddy" when he asked herwho he was.

Detra W. testified she had not used drugs since June 1999 and had beenout of prison for one year. She attended Alcoholics Anonymous and NarcoticsAnonymous meetings at least twice a week. After completing her drug treatmentclasses, she began working at Haymarket and had worked there for seven monthsat the time of the hearing. Detra W. testified Gwynne P. calls her "mommy"during their visits and overheard Gwynne P. call Edward D. "daddy."

The trial court considered all the statutory factors, and althoughrespondents' visits with Gwynne P. were "appropriate and good" and they have abond with their daughter, the court found the preponderance of the evidencesupported termination of parental rights. Specifically, the court mentionedthe fact that Gwynne P. had lived with her foster parents for almost herentire life. She had bonded with her foster family, and referred to them as"mom", "papa", and "sisters" without prompting. The foster family provided a"loving, caring, and secure" home and had completed extensive training to meetGwynne P.'s special needs. Additionally, the foster parents wanted to adoptGwynne P.

Considering this evidence in the context of the statutory factors, we donot believe the trial court's decision that it was in Gwynne P.'s bestinterests to terminate respondents' parental rights was against the manifestweight of the evidence.

IV. The permanency goal

Both respondents contend the trial court erred by entering a permanencygoal of termination of parental rights five months after the adjudication ofneglect. Before the initial permanency hearing, DCFS considered the goal tobe "return home." Respondents contend the court should not have changed theagency's goal of "return home" to termination of parental rights until atleast nine months following adjudication. Edward D. contends the Statedeprived him of due process by changing the permanency goal in five monthsrather than nine months, which is the period of time allowed under section1(D)(m) (750 ILCS 50/1(D)(m) (West 2002)) for a parent to make reasonableefforts or progress toward reunification.

We find no such requirement in the relevant statutes, and we note thetrial court never entered a "return home" permanency goal. Section 1(D) ofthe Act provides statutory grounds for a finding of unfitness; it does notconfer rights to parents regarding permanency goals. See In re M.M. & R.M.,261 Ill. App. 3d 71, 72, 634 N.E.2d 36 (1994).

Although Edward D. contends the court's permanency goal deprived him ofaccess to reunification services, nothing in the record supports hiscontention. He was incarcerated for two years after the permanency goal wasentered and had access through the correctional facility to the servicesrequested by the agency. In addition, the agency continued to schedulevisits.

We find respondents' contentions that the trial court abused itsdiscretion by entering the permanency goal of "termination of parental rights"five months after the adjudication of wardship is without merit.

V. Admission of opinion testimony at best interests hearing

Finally, Edward D. contends the trial court erred when it allowed theState to offer opinion testimony which was not included in the Rule 213disclosures during the best interests hearing.

A circuit court's decision to admit evidence will not be reversed absentan abuse of discretion. Clayton v. County of Cook, No. 1-02-1009, slip op. at12 (December 11, 2003).

Rule 213 specifies what information must be included in answers towritten interrogatories and limits the scope of direct examination testimonyto the party's answers. See 199 Ill. 2d R. 213(f),(g). The rule requiresdifferent levels of specificity in interrogatory answers depending on the typeof witness:

"For each lay witness, the party must identify thesubjects on which the witness will testify.

***

For each independent expert witness, the party mustidentify the subjects on which the witness willtestify and the opinions the party expects to elicit." 199 Ill. 2d R. 213(f)(1),(2).

For both types of witnesses, "an answer is sufficient if it givesreasonable notice of the testimony, taking into account the limitations on theparty's knowledge of the facts known by and opinions held by the witness." 199 Ill. 2d R. 213(f)(1),(2).

Courts should liberally construe the rule to ensure substantial justicebetween the parties. 199 Ill. 2d R. 213(k). In other words, the rule shieldsa party from unfair surprise, but cannot be used to exclude relevant evidencebased on a technicality. 199 Ill. 2d R. 213(k), Committee Comments.

In this case, Ashbaugh testified she believed the foster mother wasassisting Gwynne P.'s personal development by participating in all of theskill therapies Gwynne P. received. Ashbaugh also said she believed it was inGwynne P.'s best interests to terminate the respondents' parental rights. Edward D. objected to the testimony because those opinions were not includedin the interrogatory answers. The State argued Ashbaugh was a lay witness,and her testimony fell within the substance of the State's answers to theinterrogatories.

In the State's answers to discovery interrogatories, the State listed aspossible subject matter:

"Any and all issues regarding the placement of thisminor, including, but not limited to, the bond betweenthis minor and the foster parent, any and all servicesthe foster parent has needed and completed, ***."

The State listed as a possible conclusion and opinion that "[i]t is thisminor's best interest to have the natural father's parental rightsterminated," based on several factors, including "any and all observationregarding the interaction between this minor and the foster parent and theexistence of the parent-child bond between the foster parent and this minor."

On appeal, Edward D. contends the trial court abused its discretion byadmitting Ashbaugh's testimony, because the State's interrogatory answers didnot sufficiently disclose her opinions with the specificity required foreither a lay witness or an independent expert.

When we apply the more stringent requirements for independent experttestimony, we find the State's interrogatory answers meet the requirements ofRule 213(f) (199 Ill. 2d R. 213(f)). First, the State's written answersstated witness testimony might include the opinion that termination ofparental rights was in the child's best interests. Second, the State'sanswers listed "any and all observation regarding the interaction between theminor and the foster parent" as a basis for any conclusion regardingtermination of parental rights. We agree with the State that Ashbaugh'stestimony concerning the foster mother's participation in Gwynne P.'s therapymerely expanded on the subject of her observations of the foster mother andGwynne P.'s interactions. The State's answers gave Edward D. sufficientnotice of Ashbaugh's testimony. We find the trial court did not abuse itsdiscretion in allowing Ashbaugh's testimony.

CONCLUSION

We affirm the trial court's findings of unfitness on all statutorygrounds with regard to Edward D. We uphold the trial court's finding Detra W.was unfit based on the statutory factor of repeated incarceration (750 ILCS50/1(D)(s) (West 2002)). We affirm the trial court's judgment thattermination of respondents' parental rights was in the best interests of thechild.

Affirmed.

CAHILL, J., concurs.

GARCIA, J., dissents.

JUSTICE GARCIA, dissenting:

This dissent concerns the appeal of Detra W. only.

I agree with the majority that the trial court erred in findingrespondent Detra W. unfit as to the following grounds: (1) failure to maintaina reasonable degree of interest, care, or concern based on section 1(D)(b) ofthe Adoption Act (750 ILCS 50/1(D)(b) (West 2002)); (2) failure to makereasonable progress based on section 1(D)(m) of the Adoption Act (750 ILCS50/1(D)(m) (West 2002)); (3) failure to make reasonable efforts based onsection 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 2002)); and,(4) depravity based on section 1(D)(i) of the Adoption Act (750 ILCS50/1(D)(i) (West 2002)). In each instance, we agree that each of the trialcourt's findings was against the manifest weight of the evidence.

Having found the trial court erred in its assessment of the evidenceregarding four of the five grounds of parental unfitness the trial court hadbefore it, I cannot agree that on the very same record, the trial court didnot also err as to its finding that Detra W. was unfit as to the ground ofrepeated incarceration based on section 1(D)(s) of the Act (750 ILCS50/1(D)(s) (West 2002)). The very same evidence, which the majoritypersuasively marshals, that compelled us to find error in the trial court'sfour other findings of unfitness, compels the same result as to this ground aswell. On the record before us, I find the trial court's ruling of unfitnessof Detra W. that her repeated incarceration resulted in precluding her fromdischarging her parental responsibilities at the time of the unfitness hearingto be against the manifest weight of the evidence.

The crux of the issue before the trial court on this remaining ground ofunfitness must be clear: it was not whether Detra W. had "repeatedincarcerations" but rather, whether Detra's repeated incarcerations "prevented[her] from discharging *** her parental responsibilities for the child." 750ILCS 50/1(D)(s) (West 2002). The focus of the trial court's finding must beon Detra W.'s ability to be a mother to Gwynne P. at the time of the unfitnesshearing.

Because a "proceeding to involuntary terminate parental rights is adrastic measure" (In re D.D., 196 Ill. 2d at 417), and we have reversed thetrial court on four of its five findings of parental unfitness, we must notrely on the principle of review that a trial court's finding of unfitness isentitled to great deference in assessing the adequacy of the evidence as tothis remaining ground. See In re Adoption of Syck, 138 Ill. 2d at 271-72. Rather, we must closely examine the record to determine whether there is clearand convincing evidence to support the bases the trial court gave for itsfinding that Detra W.'s was unfit to be a mother to Gwynne P. See In re S.J.,233 Ill. App. 3d 88, 115, 598 N.E.2d 456 (1992).

The trial court in its rulings addressed each of the grounds ofunfitness in succession. The trial court first considered each of the fourgrounds on which we have found the supporting evidence to fall short of therequired clear and convincing showing to support a finding of unfitness. Thetrial court then addressed the ground of repeated incarceration. In itsdiscussion of the evidence as to this ground, the trial court stated,"[n]atural mother has never progressed to unsupervised day visits orunsupervised overnight visits with the minor." The trial court's only commenton Detra W.'s parenting skills was that her skills were "limited."

What the trial court failed to consider in its observation that Detra W.had not progressed to unsupervised visits with Gwynne is the DCFS policy thatvisits between a minor child and the natural parent may be restricted when apetition to terminate parental rights has been filed.⁽¹⁾ The petition toterminate was filed in May 2000, nearly three years before the unfitnesshearing. DCFS through its social service agency had restricted Detra W.'svisits with Gwynne P. to one visit per quarter while she was in custody andone hour per month after her release. In light of this DCFS policy, Detra W.would never have progressed to unsupervised visits in the face of the pendingtermination petition. Clearly, the trial court, in stating a basis for itsfinding of unfitness on the ground of repeated incarceration, was under themistaken belief that Detra W. could have progressed to unsupervised visits hadshe made sufficient progress. On this faulty assumption rests the trialcourt's finding of parental unfitness. The trial court was wrong in findingDetra W. an unfit parent based on the lack of progress to unsupervised visitswith Gwynne. See In re Perez, 173 Ill. App. 3d 922, 936, 528 N.E.2d 238(1988) (finding of unfitness against the manifest weight of the evidencewhere trial court mistakenly believed that any evidence of unfitness must befrom date of the adjudicatory hearing and thereafter).

The trial court also found that Detra W. had limited parenting skills,without elaborating on how her parenting skills were deficient. As mandatedby the service plan, Detra W. successfully completed parenting classes, fromwhich there were no further recommendations. In fact, Detra W. satisfactorilycompleted every class set out in her service plan, and others not required. Also, Detra W. testified that she cares for her brother's three children threetimes per week - cooking for them, bathing them, dressing them, basicallybeing a mother to them. As to the parenting skills demonstrated during hervisits with Gwynne P., every visitation between Detra W. and Gwynne P. wasnoted as "appropriate" by the supervising representative of the social serviceagency. This evidence is directly at odds with the perfunctory conclusion ofthe trial court that Detra W.'s parenting skills were "limited."

As support for the majority's determination that the trial court'sfinding of unfitness as to this remaining ground "was not against the manifestweight of the evidence," the majority cites the testimony of the social workerassigned to the child's case that "neither respondent was able to provide astable home, financial or emotional support for the first three years ofGwynne P.'s young life." I first note that the trial court made no mention ofthis testimony in its discussion of the evidence relied upon for its findingof unfitness on the ground of repeated incarceration. Also, the social workeraddressed the respondents jointly when she stated that conclusion. At thetime of the unfitness hearing, the respondent father was in custody, Detra W.was not. However, there is no denying that Detra W. was unable to provide forGwynne, from her birth on June 1999 to March 2002, when Detra was paroled fromthe Illinois Department of Corrections.⁽²⁾ But by the time of the unfitnesshearing in May 2003, much had changed in Detra W.'s life.

In May 2003, Detra W. had been drug free for nearly four years; she wasemployed full time; she worked as a "detox specialist" helping others "get offdrugs" (this job at Haymarket makes it almost certain that she would not fallinto a relapse); she had her own apartment; and she was entrusted with caringfor her brother's three children. The majority's reliance solely on theperiod of time Detra W. was in custody for its determination that the trialcourt's finding was not against the manifest weight of the evidence, withoutconsidering the changes Detra W. made in her life from the beginning of herincarceration in 1999 to the date of the unfitness hearing in May 2003, fliesin the face of the statutory goal of the Juvenile Court Act of 1987 "ofpreserving and strengthening family ties whenever possible." In re F.S., 322Ill. App. 3d at 488.

The majority's unpersuasive application of this ground to theundisputable evidence that Detra W. was in custody for the first two years andnine months of Gwynne P.'s life is not warranted by the statute and at oddswith the cautionary note by our Supreme Court in the case where it firstconstrued the ground of repeated incarceration. "Under differentcircumstances, a parent's repeated incarceration, whether during the lifetimeof the child or not, may not prevent the parent from discharging his or herparental duties and, therefore, would not establish that parent's unfitness."⁽³⁾ In re D.D., 196 Ill. 2d at 422. Detra W. has presented those "differentcircumstances."

I submit that other than the obvious conclusion drawn by the socialworker that Detra W. could not provide a home for her child while she was incustody, the evidence as to this ground amounts to no more than the evidenceon the ground of depravity, which we all agree falls short of clear andconvincing standard. More to the point, the trial court made no specificmention of any "circumstances" that flowed from Detra W.'s incarceration thatresulted in her diminished capacity to discharge her parental responsibilitiesas of the time of the unfitness hearing. While the social worker'sconclusion is factually true, it is a legal fiction to ascribe thatshortcoming to Detra W. as if she could have "provided a stable home" andfinancial support while she was in the custody of the Illinois Department ofCorrections. Moreover, Detra W. did provide emotional support to her child,although unbeknownst to Gwynne given her tender age at the time, in the formof letter writing, small gifts, the sharing of photos, the cassette of herreading a book for Gwynne, and the kind and gentle words she must haveexpressed to Gwynne during their brief visits.⁽⁴⁾

The social worker in presenting her conclusion made no mention of DetraW.'s unfailing visits with her child every month from March 2002 to May 2003. Gwynne was two years, nine months old at the time of Detra's release. Gwynneis now four years, seven months old. Assuming monthly visits were allowed tocontinue during the pendency of this appeal, Gwynne will have visited with hermother every month for nearly two years. There was no evidence presented thatwould support a finding that at the time of the unfitness hearing, Detra W.could not provide "financial, physical, and emotional support" for Gwynne. Itis almost unnecessary to state, and certainly beyond dispute, that at the timeof the hearing, Detra W. had a greater "capacity to provide financial,physical, and emotional support for the child" than at any other time in herlife, certainly in the last 15 years. There should be no question that DetraW., as the person she is now, provides "a positive, caring role model for herchild." In re M.M.J., 313 Ill. App. 3d at 355. She also serves as a rolemodel for the many other addicted mothers, now in drug treatment, that haveneglected a child while in the throes of their drug dependency. Detra W.should serve as a model for the efforts required to regain fitness as aparent.

If the trial court had considered the entire period of time between theneglect adjudication and the unfitness hearing, as I believe he is required todo (See, e.g., Adams v. Adams, 103 Ill. App. 3d 126, 430 N.E.2d 744 (1982) (inevaluating fitness of parents or the exercise of parental rights, court mustlook to the entirety of parents' conduct over the period in question)), whichclearly demonstrates the substantial rehabilitation on the part of Detra W.,the finding that Detra W. was unable to carry out her parentalresponsibilities at the time of the unfitness hearing could not have beenmade. To require Detra W. to have done more than she accomplished to minimizethe impact of her incarceration, would in effect have required her to havedone the impossible - - undo the criminal acts she committed while in thethroes of a drug addiction. She overcame her drug addiction, and her criminalacts are now history, history that no longer speaks of the person she is now. Detra W., as the person she is now, is not an unfit parent because of herconvictions and incarcerations.

Because I find Detra W. not unfit, I do not reach the issue of the bestinterest of the minor. See In re D.T., 338 Ill. App. 3d 133 (parentalunfitness must first be established before considering child's best interest). I would remand this cause for a permanency hearing pursuant to 750 ILCS 405/2-28(2) (West 2002).

1. The rationale for this policy is that the goal of terminatingthe parental rights ceases all other services aimed at accomplishingreunification. See In re M.F., 326 Ill. App. 3d 1110, 1117, 762N.E.2d 701 (2002) (visits reduced to once per month when permanencygoal changed to termination).

2. This position, taken by the State and Public Guardian aswell, that Detra W.'s separation from Gwynne during the child's firsttwo years and nine months of her life is a sufficient showing toprove unfitness commingles the evidence of the minor's best interestand the mother's unfitness. Undoubtedly, separation from Detra W.following Gwynne P.'s birth was the best outcome for the child at thetime. Gwynne P., a child with special needs, was provided withservices that Detra W. would not have been able to provide at thetime because, at least in part, she was incarcerated. Regardless ofthis mixing of factors, the evidence nonetheless falls short of clearand convincing that Detra W. is an unfit mother as of the day of theunfitness hearing.

3. Without requiring a trial court to set out the manner inwhich a natural parent's repeated incarceration has prevented theparent "from discharging his or her parental duties" would , I fear,make this ground too easy to establish. Cf. In re M.F., 326 Ill.App. 3d 1110 (two-part analysis required on ground of mentaldisability: first focus on mental disability of parent; second focuson parent's ability to discharge parental responsibilities). The sadreality is that many children in our foster system are from familieswith parents in custody because of criminal (almost invariably drugrelated) convictions. If we are to give substance to our SupremeCourt's cautionary note that under "different circumstances" repeatedincarcerations will not invariably lead to a finding of unfitness, wemust make clear that the focus of this ground is on the ability ofthe parent to carry out parental responsibilities, and not on theindisputable fact that a parent has been incarcerated. This isespecially the case where a parent is not in custody at the time ofthe unfitness hearing. The trial court ought to state in very clearterms the relation between the repeated incarceration and theinability to carry out parental responsibilities before a finding ofunfitness should be affirmed. Otherwise, parental unfitness becomesa fiat accompli upon a simple showing of repeated incarcerations. This is clearly not the intent of the statute as construed by ourSupreme Court. I am concerned this is where affirming a case likethis may lead us. I also note Detra W.'s case bears littleresemblance to the cases on repeated incarceration cited by themajority.

4. A related point needs to be addressed, although mentioned bythe majority, they properly did not highlight it: the special needsof Gwynne P. The record is clear that as of the unfitness hearing,Gwynne P. had progressed to the point where she receives therapyonly at the school she attends and only on an "as needed basis." There is no evidence that Detra W. could not meet the "special needs"of Gwynne P. As the majority implicitly recognizes in rejecting thetrial court's finding of unfitness as to the ground of reasonableprogress, Detra W. made "measurable or demonstrable movement towardthe goal of reunification." In re M.C., 201 Ill. App. 3d 792, 798,559 N.E.2d 236 (1990); See also In re J.A., 316 Ill. App. 3d at 565. But perhaps more importantly, it appears likely the trial court, andthe majority here as well, was swayed by the argument that the fosterparents met all of Gwynne's special needs during the first nearlythree years of her life. This once again improperly introduces "bestinterest" considerations which are not to be considered in judgingthe parental fitness of the Detra W. In any event, there is nofinding by the trial court that at the time of the unfitness hearing,Detra W. could not meet the special needs of Gwynne P.