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In re M.M.J., No. 4-99-0940

4th District, 3 May 2000

JUSTICE McCULLOUGH delivered the opinion of the court:

Respondent father, James Johnson, appeals from the orders of the circuit court of McLean County finding him an unfit parent and terminating his parental rightsin M.M.J., born January 23, 1998. The parental rights of respondent mother have previously been terminated, and she is not a party to this appeal. The issues arewhether the trial court's findings of parental unfitness and that termination of respondent father's parental rights was in M.M.J.'s best interests were against themanifest weight of the evidence. We affirm.

On January 26, 1998, the State filed a petition for adjudication of wardship alleging that the then newly born infant was a neglected minor because the childwould be residing in an environment injurious to her welfare due to respondent mother's unresolved issues of substance abuse and respondent mother havingpreviously been found unfit as to another child, M.M. On September 17, 1998, the parents stipulated to the State's evidence, and M.M.J. was adjudicated aneglected minor. Following a dispositional hearing, the trial court entered a dispositional order on October 27, 1998, making M.M.J. a ward of the court,continuing the removal of custody from the parents, and placing her in the guardianship of the Department of Children and Family Services (DCFS).

On August 10, 1999, the State filed a petition to terminate respondent father's parental rights, alleging (1) failure to make reasonable efforts to correct theconditions that were the basis for the child's removal from him; (2) failure to make reasonable progress toward the return of the child within 12 months after theadjudication of neglect (although the statute now states 9 months); and (3) the child being in the temporary custody and guardianship of DCFS, respondentfather having little or no contact with her, and respondent father's repeated incarcerations as a result of criminal convictions preventing him from discharging hisparental responsibilities. 750 ILCS 50/1(D)(m), (D)(s) (West 1998). At the unfitness hearing, the State dismissed without prejudice the allegations of unfitnessbased on failure to make reasonable efforts and reasonable progress and proceeded on the remaining count.

The trial court took judicial notice of the presentence investigation report filed in People v. Johnson, McLean County case No. 99-CF-609, in which respondentfather had been sentenced the prior week to three years in the Department of Corrections (DOC) for his conviction on two counts of domestic battery(subsequent offense felony). The presentence investigation report is not part of the record on appeal; however, the trial court did read relevant portions of it intothe record, and respondent father testified as to his incarcerations.

According to the trial judge's recitations, the presentence investigation report indicated that respondent was born February 24, 1978; on March 26, 1997, he wassentenced to 12 months' probation with 25 days in jail for unlawful use of a weapon; on March 16, 1998, shortly after the child's birth, respondent father wassentenced to 30 months' probation, including as a condition 90 days in jail with credit for 10 days previously served; on May 22, 1998, he was unsuccessfullydischarged from probation in relation to a Woodford County case dealing with unlawful possession of a controlled substance occurring on August 14, 1997(also after the child's birth); in the Woodford County case, respondent father was sentenced to three years' imprisonment; he was released from prison on April27, 1999, but on July 15, 1999, he was returned as a mandatory release violator; and when he was sentenced on October 26, 1999, in the most recent criminalproceeding, he received 140 days' credit for time previously served from June 9, 1999.

Respondent father testified he was in the hospital with respondent mother at the time of M.M.J.'s birth. Four days later, he came to court, and the child wasgiven to DCFS. As a result of that hearing, he understood that to get the child back he had to get a place to stay and a job. On April 1, 1998, he reported to theMcLean County jail to serve 36 days. He was released on May 6, 1998. He thought he had a visit during that period of incarceration. On May 13, 1998, hereported to Woodford County. He had a supervised visit during the week he was not in jail. On May 13, 1998, he was sentenced to three years in prison. Whilein the Woodford County jail, he got to see his daughter for 15 minutes. He was in DOC until April 23, 1999. While in Stateville minimum security, he had twovisits with the child. On April 23, 1999, he was released. Arrangements were made for supervised visits. There were two visits at Catholic Social Services(CSS) offices, one or two at a park, and another visit at a mall. After being incarcerated in June 1999, he had no visits. The recent trouble he got into in Juneinvolved a girlfriend with whom he was living. His release date was December 2000. He testified that the offense for which he was convicted was a falseaccusation. He admitted, however, that the domestic battery that occurred in 1997 was not a false accusation.

The trial court found the State had proved respondent father unfit as alleged by clear and convincing evidence. Findings of unfitness will be upheld on appealunless they are against the manifest weight of the evidence. In re C.L.T., 302 Ill. App. 3d 770, 772, 706 N.E.2d 123, 125 (1999).

Section 1(D)(s) of the Adoption Act provides as a ground for parental unfitness as follows: