nine in the interest of mckayla age olivia age michael h minors are going for the appellate minors is alexander fine arguing for the people of the state of illinois jennifer camden each side will have fifteen minutes for their argument the will also have five minutes for a republic and place not only the clerk of the court is permitted to record these proceedings today ok mr fine are you ready to proceed i am ready  them good morning my name is alexander five and i represent respondent father michael h your honor is this case involves a drastic measure resulting in the terminate parental rights of father my gate imperfect and struggling with chemical addiction a father who nonetheless loves his children and in the pursuit of this fundamental right to raise his children deserves the opportunity to have his day in court just as the mother did in this chairs might h respectfully request this real progress under the circumstances towards the circumstance towards the service plan go nd term a nation of criminal right is a drastic measure which impacts the child the child's entire family the parent and society and therefore the ruling should be reversed and remanded to my age an opportunity to present his case at investing interest here progress the service plans were riddled with inconsistence it's the st case worker and i refer to her by her last initial missed us and my gauge had to ha negative drug tests that b c s best personnel cannot administer drug tests to those who aren't car short during their service plan and when asked is the assumption that he would be negative for all substances march two thousand and nineteen in the member of two thousand and nineteen and justices i want you to have those periods the specific periods of the true nine month periods we're talking about and then to the side of that consider that essentially between march of two thousand and eighteen in june of two thousand and nineteen my client was incarcerated in department of corrections now i understand it was is  my age was for in the st five months of that service point she said that she didn't check to see a piece signed up for parenting classes and his will find out later even if  he was already a car short he was rated on satisfy our another caseworker took over now she actually took over i believe in december of two thousand and eighteen if you look at a few months between september and november it appears that there was really no caseworker administering anything or covering that plant but mr l took over and she went back to press service player recommendations without failing or missing any part of it to be found satisfactory during the entire six month period she stated that if a person is tested for drugs during the six month period and passes all drug tests for one they would be evaluated as and satisfactory during the entire six month period then she testify that a person incarcerated is automatically rated  once you become incarcerated that is your situation that was created by the the respondent here yes and we understand judge just as we understand that but i guess decision as to whether or not that he was making so i understand what the lawyers but it's the same time what i'm hoping that the court well at least recognize that the they at least know the progress he made and i and that's when as i go into this i'm just trying to note that there was some indication that there wasn't an individual who was just member from all indication of the word about this outcome they may have to go over with them either then we're working on the bus routes about progress standard but reasonable progress of the what he has done is important in for example while he was in and he did he had a drugs in societies or kept it inside out dance or if it interpersonal skills computers are to get what this does it goes to the point to show that he was trying in corman a in where we're where i guess the import of this argument is at the best interest or assume as to why he wasn't there the fact is he did find out about the result and wanted to appeal it now justices i do put in this this this motion that he was denied this  getting at here is that if my age having done a lot of things while he was in prison those that he could do he did what he could that grant interest hearing is is not only in his best interest because you know the purpose of the best interest is what's in the children's best interest but it's still in the children's best interest and justice warren i understand when you deal with their everything the kids have already been through and the fact that they are in some stable environment i still say that it is important in this case for my age to have had that opportunity even coun even state commented well you know the defense counsel didn't produce any witnesses but at the same time commented that you know no one no one here was there to testify you know in wheat bran yes wasn't there i mean this was not the st time that the case was set i think it was the rd time the case essentially said and judge what happened at the time that it actually came to that fitness hearing in the state asked for a continuance because mom wasn't there and that continuance is granted where mike's wasn't grant now we would argue that if the case is going to reset to a different date it certainly would not have hurt to go ahead and for what ever reason under the circumstances that we were facing in this country even not knowing why he was there it would not have it would not have done anything to even put the kids at any risk because they were in a stable environment we were probably be talking a couple months in order to realize that it is me isn't it true that the mother that as an excuse to kolkata we're just saying that's a fact and once the state can pay it once that once the state has has him there if if if all we look at is these service plans and and that's the progress standard that that reasonable progress exists where objectively the parents progress is sufficient that the children can be returned to the parent in the near future and a minimum that requires a measurable or demolished role progress toward service plans rated him as an satisfactory during that period i and the court has already noted that incarceration does not toll that period in which the parent must make reasonable progress i also know that a parent does not have unlimited d time to make reasonable progress toward regaining custody of the child and that it's judged objectively responded today argued that he was making efforts and doing what he could while service plans rated him on satisfactory during the entire nd nine month period and that alone would support the court's finding of unfitness but i'd like to point out that the evidence showed that during that period that's that nd period the responde progress was particularly on satisfactory with regard to drugs and that was the issue that had caused the children to be removed from the respondents care the court took judicial notice at the fitness hearing that on january  and when the hearing resumed the results of the drug house where that he tested positive for methamphetamine cocaine and benzo die as a pain so that was the condition that led to the removal of the children and that was the particular area in which they respond would have been required to make reasonable progress in order to toward the return of the children to him so what happened after his release from prison in june th team was that he obtained a substance abuse assessment but it which was a part of the service plan and required by that plant but at that assessment he lied to the substance abuse answer and said that he hadn't used for seven years when that was demonstrably untrue as he tested positive for meth cocaine tested positive for methamphetamine and then after that between september and november twenty one thousand dollars again still within that nd nine month period he failed to appear for four subsequent drug test meant the court had that evidence in front of it at the best interest hearing and relied on that evidence in its in its ruling now the respondent argues that and in the c n n case the supreme court stated that unjust to consider only a failure to comply with administrative directives in the service plan and that a court should consider whether a parent otherwise complied with the goals of the service plan outside the spirit shares of the plan but that isn't what happened in this case in this case the respondent didn't merely fail to comply with administrative directives he that most of the two parent time periods in prison and then a relapse into drug use one is released dodge dr think about the court's findings do you think there has to be a separate order or do you think the doc going to entry is sufficient in this case i don't believe that i believe that the documentary would have been sufficient in this in this case i mean clearly there was a basis to go ahead and proceed with the best interest terry and there was a final appeal order from that and  well the trial court made verbal findings but nothing's it seems like there was a posse if you well a written order in this case do you believe from the state notice he had a duty to follow the progress of the case and learned the date from counsel and in fact counsel i told the court that she had emailed the respondent with the reset hearing date provided counsel with no notice before the hearing that he wouldn't  appear and she also did not indicate that she had intended to present his testimony at the hearing and so for those reasons there was no abuse of discretion or prejudice resulting from the denial of that request and of the best interest erin whether she had intended to present any evidence she declined and and at any rate that testimony that evidence would not have been relevant at the best interest ringback area because the focus would have been on the best interests of children not the respondents feelings or efforts and there was no such thing it did seem a little odd that because the metal mesh didn't issue for mother and they had to continue it that they didn't d that probably would have been a due process violation because she she was prevented from from attending whereas in d this case as is the court noted a seal to case it was not a violation of due process this hearing to be conducted i don't so note that the that the state and the girls had an interest in finality as to the respondent separate and apart from the interest infidelity as to the mother and that ultimate y as explained in the people's answer brief there was no nd best interest hearing because the issue with with mother meant to have guardianship so ultimately there was no judicial economy savings or cost savings that would have accrued from from granting that don't you think mr fein could make the argument that because in fact i think it was continued three more times after  at the here during and that he did obtain notice of the hearing and that there was no risk of erroneous that permission given the strength of the best interests of a dense as to as to the respondent at the hearing and there would have been no value to additional efforts to secure his presence and i think this goes specifically to your honor's question because again there was no indication as to when or whether he would choose to attend a future hearing and he would have had little insight into the best interests of children that he hadn't had contact with for a year or so and and even though the mother got a continuance both the state and the children had an interest in obtaining from ality as to the respond independent of these and complying with court orders including our showing up in court i'm not sure how much that that played a factor i don't believe the court referred to that consider present at the at the that is hearing i think that went to the issue of notice of the best interest hearing i think that the court that the fact that responde counsel could provide the court with any reason why the respondent had failed to appear or any indication as to when respondent could appear in that so that the the request for a continuance was open ended that that that granted for my age and entirely different result transpired and yes i was going to address this in this final argument this was an oral order this was not a  motion to continue was granted his woods than are in substantially different results occur and this gets back to the arc of what's in the best interest and i truly understand that the dependent and he was kimock lead to and before and after that does it mean that nonetheless he is not the biological father of this child in yes we truly understand the best interests here maybe it wouldn't have gone any differently but maybe it would maybe if mike h had been there he could have been pleased given his perspective and later on as the children grew up and went through life in the future they would know that while their father was flawed and have these problems that he struggled nonetheless he continued to love his children very much and the court noted that in her order correcting order during the fitness course what we're saying is in this quite the relationship that is pretty important and to take a hearing that's already been contained and then continued because the mother was ripped rigid based on a father did appear at the fitness area and based on a father who apparently knew that he there was a problem and asked to have the case here i don't believe that you can can say just wanted a chance to fight for his right and the comment that you know the state mentioned yes he did have contact for the year but i think if the records examined those and the visitation was stand for approximately we're arguing is not have been no harm no foul no great cost no great delay to give might an opportunity to come before the court and the best interest terry and i guess in the circumstances of this global pandemic even a mistake which would normally maybe not have been her he could have been given the benefit of the doubt justices finest with regard to the continuance is the standard  is what's the harm are we supposed to apply the standard of to the judge of use for discretion in denying the continuance you know i think that it's not that it would be what's the harm and maybe it's not maybe it's not effective