In re Brandon A.

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In re Brandon A.

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0657 Rel

Case Date: 10/15/2009

Preview:Rule 23 order filed September 16, 2009; Motion to publish granted October 15, 2009.

NO. 5-08-0657 IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ In re BRANDON A., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Franklin County. ) Petitioner-Appellee and Cross-Appellant, ) ) No. 05-JA-40 v. ) ) Timothy A., ) Honorable ) E. Kyle Vantrease, Respondent-Appellant and Cross-Appellee). ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE WEXSTTEN delivered the opinion of the court: Timothy A., the respondent, appeals from the circuit court's order terminating his parental rights to his minor son, Brandon A., on its findings that the respondent's repeated incarceration has prevented him from discharging his parental responsibilities (750 ILCS 50/1(D)(s) (West 2006)) and that the termination was in the minor's best interests (705 ILCS 405/2-29(2) (West 2006)). The State cross-appeals from the court's finding that the

respondent is not depraved (750 ILCS 50/1(D)(i) (West 2006)). For the reasons that follow, we affirm. BACKGROUND Brandon was born in December 1998. In January 2005, his mother, Patsy, died of a drug overdose, and his father, the respondent, was arrested and incarcerated on drug charges. Brandon's maternal grandmother, Shirley Rice, immediately assumed custody of him, and in November 2005, the State filed a petition for an adjudication of wardship on his behalf (705 ILCS 405/2-13 (West 2004)).

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In December 2005, at the first hearing on the State's petition for an adjudication of wardship, the trial court expressed concern that the respondent had not been served with a summons. In response, the State informed the court that it had learned where the respondent was being housed by the Illinois Department of Corrections (DOC) and would serve him prior to the next hearing. By the agreement of the parties present, the court placed Brandon in the temporary custody of the Department of Children and Family Services (DCFS). DCFS then deemed Shirley "a relative foster parent," and Brandon was permitted to remain in her care. The respondent was later served with a copy of the petition for the adjudication of wardship, a notice of rights, and notices of hearings. The court subsequently entered additional temporary custody orders continuing temporary custody with DCFS. In February 2006, the cause proceeded to an adjudicatory hearing. The court noted that the respondent had been served with a summons but was not present. Joe Frey of DCFS testified that, although Shirley had "quickly and appropriately" assumed custody of Brandon following Patsy's death and the respondent's incarceration, she "still did not have the legal authority to make decisions on his behalf." Thereafter, the court adjudicated Brandon a dependent minor pursuant to section 2-4(1)(a) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-4(1)(a) (West 2004)) and set the cause for a dispositional hearing. The

respondent subsequently retained counsel and filed a writ to be present at the dispositional hearing. In June 2006, the cause proceeded to a dispositional hearing, where the respondent was present with counsel. Frey testified that DCFS had placed Brandon in Shirley's care and that she had been cooperative with DCFS ever since. Frey stated that it would be in Brandon's best interests to remain in foster care with Shirley. The respondent testified that, although he and Brandon had "always been close," he was unable to take care of Brandon because he was incarcerated. The respondent referred to Shirley as a "wonderful

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grandmother" who loved Brandon, and he stated that under Shirley's care is "where [Brandon] should be." At the conclusion of the hearing, the court found that it was in Brandon's best interests that he be made a ward of the court. The court granted custody and guardianship to DCFS and ordered DCFS to arrange visitation with the respondent. In June 2007, the cause proceeded to a permanency hearing. Faith Johnson of Lutheran Social Services (LSS) testified that referrals with respect to many of the components of the respondent's service plan could not be made because of his incarceration. She further testified that Brandon was doing very well under Shirley's care and was wellbehaved and well-adjusted. Johnson opined that given Brandon's "desperate need for permanency," the appropriate permanency goal "would be substitute care pending termination of parental rights." The respondent testified that he expected to be released on parole from DOC in January 2008. He acknowledged that there were federal drug charges still pending against him, but he insisted that he was not guilty of those charges. He indicated that he sincerely loved Brandon, that he had improved himself while in prison, and that, once released, he was willing to do whatever was necessary to regain custody of his son. Noting that Brandon had already been in foster care for approximately 2

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