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July 17, 2001

No. 3--00--0822

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE SLATER delivered the opinion of the court:

The parental rights of the respondent mother, Lakeesha S.,were terminated regarding her children A.J., K.F., and T.F. Onappeal, the respondent argues that (1) the court erred byconsidering at the fitness hearing evidence of the respondent'sprogress during a time period not authorized by statute, and (2)her attorney was ineffective for failing to object to the State'sproposal of this time period and failing to object to the State'sintroduction of evidence concerning the respondent's conductduring this time period. We affirm.

BACKGROUND

The respondent's three children were adjudged neglected by awritten order of the court on March 31, 1998. On April 11, 2000,the court ordered the children to be placed in substitute care. On this same day, the State petitioned to terminate therespondent's parental rights, alleging that she had failed tomake reasonable efforts to correct the conditions that were thebasis for the removal of the children under section 1(D)(m)(i) ofthe Adoption Act (Act). 750 ILCS 50/1(D)(m)(i) (West 2000). Thepetition also alleged that she had failed to make reasonableprogress toward the return of her children during a nine-monthperiod after the end of the initial nine-month period followingthe adjudication of neglect under section 1(D)(m)(iii). 750 ILCS50/1(D)(m)(iii) (West 2000).

The court held a fitness hearing on September 13, 2000. Theparties agreed that the nine-month period at issue fordetermining whether the respondent had made reasonable progresswas from December 13, 1999, through September 13, 2000. At theconclusion of the fitness hearing, the court found that the Statehad proved the respondent to be an unfit person by clear andconvincing evidence.

At the best interest hearing, held on October 10, 2000, thecourt ruled that it was in the minors' best interests toterminate the parental rights of the respondent. It is from thisruling that the respondent appeals.

ANALYSIS

I. Whether the Court Erred by Considering Evidence of the
Respondent's Conduct from December 13, 1999,
through September 13, 2000

Interpreting or construing a statute is a matter of law for the court and, therefore, we will conduct a de novo review. In re A.M.F., 311 Ill. App. 3d 1049, 726 N.E.2d 661(2000).

Section 1(D)(m) of the Act defines one of many ways that aparent may be adjudged to be an unfit person. This section isdivided into three subsections. The time period in subsection(iii), which is the subsection at issue in this case, isdetermined by reference to the time period in subsection (ii). Aparent may be found unfit by failing to make reasonable progresstoward the return of the children within nine months after anadjudication that the children were neglected. 750 ILCS50/1(D)(m)(ii) (West 2000). Alternatively, a parent may be foundunfit by failing to make reasonable progress toward the return ofthe children during any nine-month period after the end of theinitial nine-month period following the adjudication that thechildren were neglected. 750 ILCS 50/1(D)(m)(iii) (West 2000).⁽¹⁾ The date that the court files its dispositional order adjudging achild to be abused or neglected determines the beginning of theinitial nine-month period at issue in subsection (ii). In reD.S., 313 Ill. App. 3d 1020, 730 N.E.2d 637 (2000).

"The cardinal rule of statutory construction is toascertain and give effect to the intention of thelegislature. [Citations.] The language of the statute isthe best indication of legislative intent, and our inquiryappropriately begins with the words used by the legislature. [Citation.] If the statutory language is clear andunambiguous, then there is no need to resort to other aidsof construction. [Citations.] Moreover, there is no ruleof construction that authorizes a court to say that thelegislature did not mean what the plain language of thestatute provides. [Citation.] 'Where the language of astatute is clear and unambiguous, a court must give iteffect as written, without "reading into it exceptions,limitations or conditions that the legislature did notexpress." ' [Citations.]" In re D.L., 191 Ill. 2d 1, 9, 727 N.E.2d 990, 994 (2000).

On appeal, the respondent argues that the court erred byconsidering evidence of the respondent's conduct that occurredafter the State filed its petition to terminate her parentalrights. The court filed its dispositional order concerning thechildren on May 12, 1998. The initial nine-month period at issuein subsection (ii) of the Act then would have been from May 12,1998, through February 12, 1999.

The plain language of subsection (iii) indicates that thecourt could consider the respondent's conduct during "any" nine-month period following February 12, 1999. Clearly, the nine-month period from December 13, 1999, through September 13, 2000,is among "any" of the nine-month periods following February 12,1999. The statute does not mention an exception, limitation, orcondition that "any" of these potential nine-month periods mustend before the date that the State files its petition toterminate parental rights, as the respondent suggests. We willnot read into the statute such an exception, limitation, orcondition.

Accordingly, we hold as a matter of law that it was noterror for the trial court to consider evidence from this nine-month period and to rule that the respondent was an unfit person.

II. Whether the Respondent's Counsel Was Ineffective

Courts will apply the standard utilized in criminal cases toassess a parent's claim of the ineffectiveness of counselappointed under the Juvenile Court Act. In re D.M., 258 Ill.App. 3d 669, 631 N.E.2d 341 (1994). To prevail on a claim ofineffective assistance of counsel, a defendant must establishthat (1) trial counsel's performance fell below an objectivestandard of reasonableness, and (2) that counsel's deficientperformance so prejudiced the defendant that but for counsel'serrors, the outcome of the trial likely would have beendifferent. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504,473 N.E.2d 1246 (1984). A court need not determine whethercounsel's performance was deficient if it is easier to dispose ofan ineffectiveness claim on the ground of lack of sufficientprejudice. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246.

In the instant case, the respondent was appointed counselunder the Juvenile Court Act. Therefore, we apply the sameineffectiveness of counsel analysis in this case as in a criminalcase.

In order to show that her counsel was ineffective, therespondent must show that but for counsel's performance, theoutcome of her case likely would have been different. She arguesthat her attorney was ineffective because (1) he failed to objectto the nine-month period advanced by the State for calculatingher lack of reasonable progress under section 1(D)(m)(iii), and(2) he failed to object to introduction of evidence of herconduct during the time period after the State had filed itspetition to terminate her parental rights. As discussed above,the plain language of section 1(D)(m)(iii) clearly allows thecourt to consider the respondent's conduct during the nine-monthperiod that the State proposed to examine. It would have beenpointless for her counsel to object either to the State'sproposed nine-month period or to the evidence offered concerningthis nine-month period under the plain language of the statute. The outcome of her case would not have been different if hercounsel had raised objections on either of these related grounds. Therefore, we conclude that the respondent's counsel was notineffective.

CONCLUSION

For the foregoing reasons, the ruling of the Peoria Countycircuit court is affirmed.

Affirmed.

HOLDRIDGE and McDADE, J.J., concur.

1. Subsection (iii) was amended to the statute by Public Act91--572, which went into effect on January 1, 2000. Pub. Act 91--572, eff. January 1, 2000.