1 

2023 IL App (5th) 220664-U 

NO. 5-22-0664 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

In re B.C., a Minor ) Appeal from the

 ) Circuit Court of

(The People of the State of Illinois, ) Christian County. 

 ) 

Petitioner-Appellee, ) 

 ) 

v. ) No. 19-JA-6 

 ) 

Joseph C., ) Honorable 

 ) Jeffrey A. DeLong, 

 Respondent-Appellant). ) Judge, presiding.

______________________________________________________________________________ 

JUSTICE VAUGHAN delivered the judgment of the court.

 Presiding Justice Boie and Justice Barberis concurred in the judgment.

 

 ORDER

¶ 1 Held: Respondent did not receive ineffective assistance from his trial counsel, and 

therefore, the circuit court’s finding of unfitness and order terminating respondent’s 

parental rights are affirmed. 

¶ 2 Respondent, Joseph C., appeals the Christian County circuit court’s finding of unfitness 

and order terminating his parental rights, arguing that his trial counsel provided ineffective 

assistance of counsel at the fitness hearing. For the following reasons, we affirm.

NOTICE

Decision filed 10/18/23. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
2 

¶ 3 I. BACKGROUND

¶ 4 Courtney C. is the wife of Joseph C. and the biological mother of two children, N.R., born 

September 5, 2014, and M.R., born March 7, 2012.1

 Joseph C. is not the biological father of those 

children. On March 22, 2018, the Illinois Department of Children and Family Services (DCFS) 

received a hotline call stating that Joseph was a registered sex offender due to a prior conviction 

for child pornography and was residing with Courtney, N.R., and M.R. The reporter stated that 

Courtney did not believe Joseph’s presence was an issue for the children. Courtney believed Joseph 

was innocent and would not harm the girls. DCFS received a second hotline call on April 24, 2018. 

At that time, the reporter expressed concern that Joseph was on school district property with 

Courtney while she was dropping off the girls. DCFS notified the Greenville Police Department. 

M.R. and N.R. later reported to DCFS that Joseph stuck his fingers in N.R.’s buttocks and told her 

to poop. Courtney disputed M.R. and N.R.’s allegations and stated she did not believe Joseph was 

a predator. DCFS took custody of M.R. and N.R. 

¶ 5 B.C., whose biological parents are Courtney and Joseph, was born on January 21, 2019. 

B.C. was taken into custody following her birth due to the pending DCFS case involving her 

siblings. On January 24, 2019, the State filed a petition for adjudication of wardship alleging two 

counts of neglect. The first count alleged that B.C.’s environment was injurious because Courtney 

was involved in two pending juvenile cases involving B.C.’s siblings who were previously found 

neglected, pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) 

(705 ILCS 405/2-3(1)(b) (West 2018)). The allegation was based on Courtney allowing Joseph, a 

sex offender, to have access to the children after he was indicated for sexual penetration against 

1

Neither Courtney nor the children M.R. and N.R. are parties to this appeal, and they will only be 

discussed as necessary to provide relevant background for this case. 
3 

one of the minor’s siblings. Count II alleged that B.C. was neglected because Courtney was still 

living with and married to Joseph, had not completed her current service plan in the other cases, 

and was only receiving supervised visitation with B.C.’s siblings. 

¶ 6 A shelter care hearing was held on January 28, 2019, at which time counsel was appointed 

for each parent, a guardian ad litem (GAL) was appointed for B.C., and both parents consented to 

B.C.’s placement in shelter care. The adjudicatory hearing was scheduled for June 26, 2019. 

However, at that time, Joseph was incarcerated in the Bond County jail. His counsel advised the 

court that Joseph’s probation had been revoked and the hearing was continued. 

¶ 7 The adjudicatory hearing was held on August 21, 2019. Both parents stipulated that the 

State could prove the allegations in count I of the petition for wardship and the State agreed to 

dismiss count II. In order to confirm the parties’ stipulation, the court required the State to provide 

a factual statement as to the evidence that would have been presented. The State’s factual statement 

indicated that testimony would be provided regarding Joseph’s status as a registered sex offender, 

his residence in the home with B.C.’s siblings, and that DCFS determined, after March 22, 2018, 

that Joseph sexually penetrated one of those children based on the allegations raised by both 

children. Following the State’s recitation, the parents agreed the State had sufficient evidence to 

prove the allegations in count I but denied the actions stated therein. The court found the 

stipulations were knowing and voluntary and that sufficient facts were presented to show that B.C. 

was neglected. The court set the dispositional hearing in 30 days and ordered DCFS to file a written 

report 3 days before the hearing.

¶ 8 The dispositional hearing was held on September 18, 2019. The agency report, which was 

not timely filed but was circulated prior to the hearing, listed Joseph’s service plan as requiring 

completion of a sexual perpetrator evaluation and following all recommendations stemming from 
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the evaluation. The report stated Joseph had not yet completed the assessment. The report also 

recommended setting a goal of return home in five months and granting custody and guardianship 

to DCFS. Both parents consented to the report’s dispositional request, and thereafter, the court 

awarded custody and guardianship to DCFS with a return home goal in five months. A permanency 

hearing was scheduled for December 18, 2019.

¶ 9 On December 18, 2019, Joseph’s attorney indicated that an arrest warrant was issued for 

Joseph in Bond County. The case was rescheduled for January 29, 2020. 

¶ 10 The agency’s permanency report was filed on January 13, 2020. The report included text 

messages between the caseworker and Joseph on December 19, 2019, in which Joseph accused the 

caseworker of lying on the witness stand and threatened to press charges against the worker. A 

later text exchange addressed B.C.’s availability to visit Joseph’s family for Christmas. When 

Joseph was advised that supervised visitation was required, Joseph’s texts revealed increased 

animosity toward the caseworker and anger regarding the agency’s holiday arrangements. Joseph’s 

texts became more animated after the caseworker disengaged from responding. 

¶ 11 The permanency report indicated that Joseph’s text messages related to the Christmas 

visitation continued on December 20, 2019, and were equally, or more, aggressive and profanityladen with each communication. On December 23, 2019, Joseph left two profanity-laden, 

insulting, and threatening voicemails. The agency program director issued a “critical decision” 

stating the “agency has decided not to continue to offer a visit to [Joseph] this week” due to his 

“derogatory language and threatening statements.” On December 24, 2019, Joseph’s antagonistic 

and profanity-laden voicemails and text messages continued. When no responses were provided, 

he proceeded to call the caseworker obscene names. The agency was advised by the foster parent 

on December 24, 2019, that Courtney told B.C. during her supervised visitation that “Mommy is 
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going to go to Tiffany’s[2] house while she is sleeping and kill her and her family.” Joseph sent 

additional threatening and profanity-laden texts on December 30, 2019, and January 1, 2020. 

¶ 12 The report further indicated that on January 6, 2020, Joseph was arrested in Courtney’s 

home on the outstanding warrant issued while he was having visitation with B.C. Prior to the arrest, 

Joseph asked the caseworker to lie and state he was not in the home. The caseworker refused and 

Joseph was arrested.

¶ 13 A permanency review hearing was held on January 29, 2020. Joseph’s counsel advised the 

court that Joseph was now in prison. 

¶ 14 The July 22, 2020, permanency report revealed that Joseph was sentenced to 31⁄2 years in 

the Illinois Department of Corrections (IDOC) and was incarcerated at Graham Correctional 

Facility. The report noted that although Joseph had numerous conversations with Courtney, he had 

not reached out to the agency regarding his potential to complete services while incarcerated. He 

had not received visitation since his incarceration due to COVID. The report further noted that 

legal screening was being completed due to the parents’ lack of progress. The history confirmed 

that Joseph was previously convicted of child pornography and completed his 22-month sentence 

for that conviction in IDOC. The permanency hearing on July 29, 2020, was continued due to 

Joseph’s nonappearance due to his incarceration.

¶ 15 The permanency reports from September 11, 2020, to the end of 2020 revealed that Joseph 

participated in no services and visitation never occurred between Joseph and B.C. while Joseph 

was incarcerated. While Joseph requested video visitation in December 2020, the prison staff 

advised DCFS that it was not authorizing the visitation due to B.C.’s age. Other relevant entries in 

the permanency reports indicated that by November 19, 2020, Courtney ceased contact with 

2

Tiffany was the caseworker. 
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Joseph, who sent her letters that started off nice and then turned mean and finally ended with 

Joseph threatening the father of Courtney’s older children. 

¶ 16 A permanency review hearing was held on January 21, 2021. Joseph remained 

incarcerated. The parties addressed the sexual offender evaluation performed as part of Joseph’s 

probation. After numerous comments misconstrued Joseph’s most recent conviction, the court 

clarified that Joseph’s current sentence was based on the violation of “child sex offender residing 

500 feet within a park.” The court stated that Joseph was placed on probation in November 2018 

and then probation was revoked based on other allegations which led to his current three years in 

IDOC. The court asked Joseph if any of the stated information was incorrect and Joseph replied, 

“Nope.” The parties indicated that they would try to obtain the records from the November 2018 

sex offender evaluation. 

¶ 17 All of the permanency reports filed in 2021 revealed that Joseph failed to complete any 

services and received no visitation while he was incarcerated. The reports continued to express 

concern for Courtney and B.C.’s safety when Joseph was released from prison in December 2021. 

¶ 18 The DCFS family service plan was filed on December 2, 2021. The report noted that 

Joseph’s prior sexual perpetrator evaluation diagnosed him with “other specific paraphilic 

disorder.” The report found Joseph’s progress—on the recommendations stemming from the 

sexual perpetrator evaluation—was unsatisfactory due to him twice being discharged from 

services. The agency requested a new assessment due to the passage of time and added a new 

service requirement consisting of compliance with his probation requirements.

¶ 19 The March 2, 2022, permanency report revealed that Joseph was released from prison, but 

the agency had no knowledge of his compliance because he had not signed a consent that would 

allow the agency to speak with his probation officer. The agency again requested an updated sexual 
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perpetrator evaluation. The caseworker was finally able to contact Joseph on February 15, 2022, 

and tried to set up a meeting with him and his attorney to discuss the suspended visitation. The 

agency requested a petition to terminate parental rights.

¶ 20 The March 28, 2022, permanency hearing report indicated the agency still had not received 

the consent to contact Joseph’s probation officer. Joseph contacted the caseworker on March 9, 

2022, requesting visitation with B.C. and the caseworker again requested Joseph and his attorney 

set up a meeting date to discuss the suspension of Joseph’s visitation. As of the date of the report, 

no meeting was scheduled. The agency continued to recommend filing a petition to terminate 

parental rights. 

¶ 21 Courtney’s parenting capacity assessment report was filed on March 28, 2022. The report 

indicated that Courtney continued to express concern that DCFS might allow Joseph to have 

contact with B.C. and her fears that Joseph would sexually abuse B.C. Courtney was currently 

using a post office box so Joseph would not know her address and expressed interest in obtaining 

an order of protection. Courtney was concerned that if Joseph knew her address, he might be 

dangerous to her. She stated that she believed Joseph “would physically harm her [but] probably 

not kill her.”

¶ 22 On March 29, 2022, the State filed a petition to terminate parental rights and for 

appointment of guardian with power to consent to adoption. The petition alleged that Joseph was 

an unfit person because he failed to maintain a reasonable degree of interest, concern, or 

responsibility pursuant to section 2-3 of the Juvenile Court Act (705 ILCS 405/2-3 (West 2022)). 

¶ 23 A permanency hearing was held on March 30, 2022, to address the proposed goal change 

to substitute care pending termination. Joseph contested the change and the State called Savannah 

Herald, the caseworker, to testify. She testified that she mailed Joseph a copy of his service plan 
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while he was incarcerated and tried to contact him following his release. He eventually contacted 

her and provided his contact information. She was last in contact with Joseph on March 9, 2022. 

She testified about Joseph’s services, stating that he completed the sexual perpetrator evaluation 

but failed to follow the recommendations, as he was discharged from treatment twice. His other 

service involved compliance with probation, which she was unable to confirm because Joseph had 

not signed a consent allowing her to communicate with his probation officer. 

¶ 24 Chelsey Leclair testified that she was a caseworker supervisor and came into the case in 

January 2021. She provided a foundation for the report and no further questions were asked.

¶ 25 Following argument, the court noted Joseph’s lack of progress. While noting that Joseph 

was incarcerated, the court stated that did not mean Joseph could not make efforts or progress 

while incarcerated. The court noted Joseph was released four months earlier and still had not signed 

a release for the agency to communicate with his parole officer. Thereafter, the court changed the 

goal to substitute care pending determination of termination of parental rights as to Joseph after 

finding no reasonable substantial progress. 

¶ 26 On April 1, 2022, the State filed a supplemental petition to terminate alleging two counts. 

The first count remained a failure to maintain a reasonable degree of interest, concern, or 

responsibility. The second count alleged Joseph was depraved based on three previous felony 

convictions with at least one of the prior convictions taking place within five years of the filing of 

the petition to terminate parental rights. 

¶ 27 On April 26, 2022, Caritas Family Solutions filed a termination hearing report. The report 

stated the caseworker sent, via email and U.S. mail, a consent to Joseph to allow the worker to 

speak with his probation officer. The mail version included a return envelope. A follow-up email 

was sent by the supervisor on April 20, 2022. No consent was returned. The report stated that 
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visitation was inappropriate given B.C.’s age while Joseph was incarcerated, and the agency 

believed it was not in B.C.’s best interest to visit him in a prison setting. Since then, B.C. was 

diagnosed with separation anxiety. A critical decision was made on January 14, 2022, to suspend 

visitation between Joseph and B.C. until Joseph and his attorney met with the agency. The agency 

recommended termination of Joseph’s parental rights. 

¶ 28 On May 4, 2022, a first appearance hearing on the termination petition hearing was held. 

Joseph failed to appear and was found in default. The court set the matter for first appearance, 

unfitness, and possibly best interest on May 25, 2022. 

¶ 29 On May 24, 2022, a termination hearing report was filed. The consent allowing the 

caseworker to speak with Joseph’s probation officer was still not returned. Visitation had still not 

occurred as Joseph and his attorney had not met with the agency.

¶ 30 On May 25, 2022, all the parties appeared except Joseph. The State indicated it was ready 

to proceed. Joseph’s counsel asked for a continuance. Counsel stated that he called his client’s 

number, but it was disconnected. Neither East St. Louis parole nor Effingham County had any 

contact information for him. The State and the GAL objected to the motion. Courtney’s counsel 

took no position. The court denied the motion to continue, stating Joseph did not appear on May 

5, 2022, or March 25, 2022. His attorney then presented a notice issue claiming the State’s 

amended petition did not reveal whether it was properly served. The State indicated that summons 

was issued for both petitions and the burden was on Joseph to show that service was not made. 

The GAL expressed concern of having to do everything over if service was improper. The court 

ultimately granted the motion to continue and scheduled the unfitness hearing for July 6, 2022.

¶ 31 On July 25, 2022, a termination hearing report was filed. The report revealed that Joseph 

self-reported on July 9, 2022, that he made an appointment with Alternatives Counseling to 
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complete an updated assessment on August 2, 2022. The consent to communicate with his 

probation officer was not received, and no visitation had occurred. 

¶ 32 On August 3, 2022, the parties presented for the fitness hearing. The State called Savannah 

Herald who testified that she was assigned as the caseworker on March 9, 2021. She explained 

why B.C. was brought into care and that the service plan was already in force when she took over 

the case. She testified as to Joseph’s service plan and stated Joseph had not completed the classes 

recommended following the sex offender assessment. Joseph initially had supervised visitation 

with B.C. and last participated on January 6, 2020. Thereafter, he was incarcerated. She further 

testified that after Joseph’s release, a critical decision was made to terminate visitation on January 

14, 2022, because Joseph had not seen the child in over two years and there was no relationship or 

bond. Her office tried to schedule a meeting with Joseph and his attorney to discuss visitation, but 

no meeting was ever set. She stated the scheduling issues were not due to the agency. Ms. Herald 

was unaware of any cards, letters, or gifts sent by Joseph to B.C. while he was incarcerated or 

following his release. When Joseph was incarcerated, Ms. Herald sent him his service plan on 

October 5, 2021, with a letter inviting him to the administrative case review (ACR) meeting with 

the agency that also discussed what was expected of him for his services. He participated in the 

meeting on October 18, 2021. She sent a referral to Joseph after his incarceration for alternative 

counseling for him to get engaged in that evaluation and services. The correction facility, where 

Joseph was housed, offered sex offender treatment, and Joseph would have had to place himself 

on the waiting list for the class. Ms. Herald stated that she sent Joseph a letter telling him to get on 

the waiting list. 

¶ 33 She did not know how long the waiting list was or if he got on it. She stated that from 

January 2022 to the present, Joseph made one attempt to have visitation with B.C. The caseworker 
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believed she had done everything possible for reunification and stated that the parents’ completion 

of services was a factor and visitation was not necessary for reunification. She disputed that her 

agency did not provide Joseph with an opportunity to visit his daughter, stating there were 

visitations before he was incarcerated. Ms. Herald confirmed that the parent was required to supply 

the agency with any completion of or attempts to complete the service plan requirements. Joseph 

never provided anything. 

¶ 34 Following Ms. Herald’s testimony, the State moved to submit copies of Joseph’s certified 

convictions. Joseph’s attorney objected, stating the documents, in the manner presented, did not 

qualify as business records and/or a true and accurate representation of a certified conviction. In 

response, the State stated that the evidence rule did not require any kind of raised stamp. It further

argued that as long as the record was certified by the person authorizing it, it complied with the 

rule. The State indicated that the documents at issue were certified by the clerk of Bond County 

and notarized. The State averred that the convictions were requested as a group and the clerk 

certified them as a group. The court expressed concern about the grouping. Although no formal 

rejection of the documents was presented, the State moved to call Joseph as an adverse witness. 

¶ 35 Joseph testified that he was convicted of unlawful residency of child sex offender, and 

when asked if he was convicted of that charge in November 2020, he stated, “I guess so. I don’t 

know.” He agreed that he was convicted of child pornography but stated he did not know the date 

of the conviction. He further admitted that he was convicted of violation of an order of protection, 

which was also a felony, but he did not know if he was convicted of a second violation of an order 

of protection. Cross-examination by Courtney’s attorney revealed that Joseph did not know how 

many felony convictions he had. He stated he had more than three but did not know if he had more 

than five. He was last in IDOC two or three years earlier and was sent to IDOC three times. All of 
12 

his IDOC incarcerations were in the last 12 or 13 years. The State rested and no witnesses were 

called by Joseph’s attorney. 

¶ 36 The State argued that it met the burden for depravity since Joseph admitted having three 

felonies, one of which was in the last five years since he was charged with unlawful residency of 

a child sex offender in 2018. The State further argued that Joseph failed to rebut the presumption 

of unfitness as no evidence was presented. Joseph’s attorney argued that the State failed to put in 

certified copies of the convictions, failed to meet its burden, and there was no evidence to show 

that Joseph would not be a good father. Joseph’s counsel further argued that the agency did nothing 

in terms of providing Joseph with an opportunity to be reunited with his daughter. 

¶ 37 Following arguments, the court found insufficient evidence of a lack of reasonable interest

alleged in count I. As to count II, the court stated that Joseph’s testimony of convictions for 

unlawful residency of a criminal sex offender, possession of child pornography, and violation of 

an order of protection confirmed the felony status of the convictions. The court also noted that the 

unlawful residency conviction would have to fall within the five-year requirement based on the 

charges being filed in 2018. The court noted that the cross-examination testimony further 

confirmed at least three felonies and that Joseph was in IDOC at least three separate times in the 

last 12 years. The court found there was no testimony to rebut the presumption of depravity, and 

therefore, the court found unfitness based on depravity and set the matter for a best interest hearing 

on September 7, 2022.

¶ 38 On August 26, 2022, a best interest report was filed, stating that B.C. was bonded with the 

foster parent who provided care since January 24, 2019. B.C. loved living in the home and being 

with her foster parent. Her medical, emotional, and physical needs were met, and she was always 

dressed appropriately. B.C. had two half-sistersthat she visited often. She was too young to express 
13 

her wishes. The agency recommended B.C. remain in her current placement and that Joseph’s 

parental rights be terminated.

¶ 39 On September 7, 2022, the best interest hearing was held. Caseworker Herald testified as 

did the foster mother. Ms. Herald testified that she had observed the interactions between B.C. and 

her foster parent and, in her opinion, B.C. was bonded to the foster parent. B.C. had been with the 

same foster parent since the case began, when she was only a few days old, and the foster parent 

was a relative. Her medical, physical, and emotional needs were met by the foster parent. The 

foster parent was willing to provide permanency. B.C. had her own room at the house and was 

bonded with the foster mother’s oldest daughter, who also lived in the home. 

¶ 40 On cross-examination, Ms. Herald stated that Joseph’s visitation was suspended while she 

was the caseworker. She stated that there was an opportunity to establish a connection prior to his 

incarceration. She agreed that Joseph had no contact with the minor for over two years. Joseph last 

had visitation on January 6, 2020, and was arrested on that visit. She stated that Joseph was released 

from prison in December, approximately eight months earlier. Visitation was immediately 

suspended due to the fact that he had not done his services and B.C. had not seen her father. She 

stated that Joseph was provided an opportunity to come to the agency and sit down with her and 

the supervisor; however, no meeting was set up because his attorney did not get back to the agency 

with date and times to meet. Ms. Herald disagreed that the agency was punishing Joseph because 

his attorney did not respond to an email. She agreed the attorney’s presence was not required but 

wanted the attorney there in case Joseph had any questions or concerns. She stated that eventually, 

after the last court hearing, all of them sat down and talked. She stated that attempts at reunification 

were made while he was incarcerated, including invitations to the ACR meetings which were used 

to discuss what Joseph needed to do to reunify with his child. Joseph participated by calling in. 
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Joseph’s attorney inquired as to whether only one attempt was made, and the court reminded 

counsel this was the best interest hearing, not the fitness hearing. After counsel argued his point 

about the agency not providing an opportunity for his client to bond with his child, no further 

questions were asked. The GAL asked Ms. Herald if there had been any ACRs this year and she 

said there were. Joseph was given notice but did not attend. On recross by Joseph’s attorney, Ms. 

Herald stated the notice was provided by email and had a copy of the email with her. No further 

questions were asked. 

¶ 41 The foster parent testified that B.C. had been with her since birth and was now 31⁄2 years 

old. She confirmed the bond between B.C. and her oldest daughter. B.C. had her own room and 

was going to preschool. B.C. had a little bit of separation anxiety going to school, but the teacher 

said she did well once she got there. The foster parent took B.C. to the doctor when she needed to 

go. She got a physical to start school. She was willing to provide permanency. She loved B.C. On 

cross-examination, the foster parent stated that Joseph had supervised visits with B.C. prior to his 

incarceration. She further stated that at no point did she take B.C., nor was she asked by the agency 

to take B.C., to the IDOC facility where Joseph was housed. She did not know if Joseph was 

provided with a Zoom opportunity or video conferencing with B.C. while he was incarcerated but 

stated she would have been willing to do Zoom. The foster parent stated Joseph was at the hospital 

when B.C. was born and was with her thereafter. Joseph had supervised visits. She did not know 

if there was a bond because she did not supervise the visits between Joseph and B.C. She had no 

concerns about her ability to take care of the minor child. She understood that she could be 

financially responsible for the child until she reached 18. Thereafter, the State rested. None of the 

other parties called any witnesses.
15 

¶ 42 Joseph’s counsel argued that his client never had an opportunity to maintain a relationship 

with the child. The State and the GAL argued that Joseph’s rights should be terminated. Courtney’s 

counsel agreed and was asked, by the court, the status of Courtney. Her counsel advised the court 

that she signed a consent to guardianship. Joseph’s counsel asked to be heard and stated: 

“One of the biggest things that I’m concerned about, this is maternal grandmother, 

mom has the opportunity to receive the guardianship. Mom is always going to be 

in this child’s life and because of their dislike of dad, dad didn’t get that 

opportunity. So, I do want to preserve that for any appeal issues, but that is how it 

comes across. Even if dad would get guardianship, the likelihood of *** him seeing 

this minor [is] very, very small. However, this is a perfect opportunity for mom to 

still be in this child’s life and dad not getting the opportunity to do so.” 

The caseworker provided a copy of the signed guardianship to the court and the court took a recess. 

¶ 43 Following the recess, the court returned the paper and stated it believed that was “a factor 

that needs to be considered in the best interest determination.” After considering the factors in the 

definition of section 1-3 of the Juvenile Court Act (705 ILCS 405/1-3 (West 2022)), the court 

found it was in the best interest of B.C. to terminate Joseph’s parental rights. A written order 

terminating father’s parental rights was filed on September 19, 2022. Joseph timely appealed.

¶ 44 II. ANALYSIS

¶ 45 Before we address the merits of this appeal, we find it appropriate to first discuss the timing 

of our decision. This case involved an accelerated appeal pursuant to Illinois Supreme Court Rule 

311(a) (eff. July 1, 2018). Section (a)(5) of that rule requires this court to issue our decision 150 

days after the filing of the notice of appeal, except where good cause is shown. Ill. S. Ct. R. 
16 

311(a)(5) (eff. July 1, 2018). The notice of appeal was filed on October 3, 2022, rendering our 

decision due by March 6, 2023. 

¶ 46 This case was not ready for review and received by this panel until it was placed on the 

October 24, 2023, docket. After Joseph filed his notice of appeal, he was appointed counsel who 

filed a motion to withdraw as counsel, pursuant to Anders v. California, 386 U.S. 738 (1967), on 

February 2, 2023. The motion alleged that appellate counsel found nothing in his review that would 

support an appeal. On February 16, 2023, this court noted the lack of a supporting memorandum 

as required by Anders and granted counsel 14 days to file an Anders brief in support of his motion 

to withdraw. On March 2, 2023, counsel filed a memorandum listing four potential issues with 

unmeritorious arguments. On March 8, 2023, this court issued an order allowing Joseph until April 

19, 2023, to file a response as to why the appeal should not be dismissed. None was filed.

¶ 47 On May 8, 2023, this court issued an order directing appellate counsel to file a 

supplemental memorandum in support of the motion to withdraw addressing whether Joseph’s 

trial counsel was ineffective setting forth three specific issues for consideration. Appellate counsel 

filed the supplemental memorandum on May 30, 2023. On June 14, 2023, this court issued an 

order denying appellate counsel’s motion to withdraw pursuant to Anders and ordered counsel to 

file his appellant’s brief within 35 days. On July 20, 2023, appellate counsel moved for additional 

time to prepare the brief. This court granted the motion and directed counsel to file his brief by 

August 9, 2023. Counsel timely filed the brief. Thereafter, the State moved for additional time to 

file its responsive brief on August 28, 2023, and again on September 14, 2023. Both requests were 

granted, and the State’s brief was filed on September 29, 2023. On September 14, 2023, the case 

was placed on this panel’s October 24, 2023, docket.
17 

¶ 48 This court cannot properly review a cause and render a decision until we are fully briefed 

on the issues and arguments of the parties. In re Chance H., 2019 IL App (1st) 180053, ¶ 35. The 

briefing was not completed until September 29, 2023, well after the 150 days expired. 

Accordingly, we find good cause for issuing our decision after the 150-day time limit.

¶ 49 Turning to the merits, Joseph raises no direct argument as to the trial court’s finding of 

unfitness or its termination of his parental rights. Instead, Joseph argues that his trial counsel 

provided ineffective assistance setting forth three arguments in support thereof. In a proceeding to 

terminate parental rights, a parent has a statutory, as opposed to a constitutional, right to counsel. 

In re Br. M., 2021 IL 125969, ¶ 41. The statutory right to effective assistance from that counsel 

under the Juvenile Court Act is implied. Id. ¶ 42. 

¶ 50 A claim of ineffective assistance of counsel is reviewed under the Stickland v. Washington, 

466 U.S. 668 (1984), standard. Illinois courts apply the same standard utilized in criminal cases to 

determine a parent’s claim of ineffective assistance of counsel under the Juvenile Court Act. In re 

A.J., 323 Ill. App. 3d 607, 611 (2001). The Strickland standard consists of two prongs. People v. 

Thomas, 2017 IL App (4th) 150815, ¶ 10. Failure to satisfy either prong precludes a finding of 

ineffective assistance of counsel. People v. Simpson, 2015 IL 116512, ¶ 35. 

¶ 51 The first prong requires a respondent to show that his counsel’s performance fell below an 

objective standard of reasonableness. People v. McGath, 2017 IL App (4th) 150608, ¶ 37. As such, 

the parent must overcome the strong presumption that the challenged action or inaction may have 

been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327 (2011). Trial 

strategy includes decisions such as when, and to what, matters an objection should be made 

(People v. Ramsey, 2017 IL App (1st) 160977, ¶ 36) as well as decisions regarding what evidence 

to present and whether or not to call witnesses (People v. West, 187 Ill. 2d 418, 432 (1999)). 
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Judicial review of counsel’s performance is highly deferential. McGath, 2017 IL App (4th) 

150608, ¶ 38. 

¶ 52 The second prong of the Strickland standard requires the respondent to show that, but for 

counsel’s errors, there is a reasonable probability that the result of the proceedings would have 

been different. People v. Houston, 229 Ill. 2d 1, 4 (2008). A reasonable probability is defined as a 

probability that undermines confidence in the outcome of the trial. Id. 

¶ 53 Joseph’s first issue on appeal contends that his trial counsel was ineffective for failing to 

assert his fifth amendment privilege against self-incrimination on the basis that his testimony about 

having committed prior felonies could be used against him in future prosecutions which have, as 

an element thereof, the commission of a prior felony. Ultimately, however, Joseph concedes that 

his counsel’s failure to assert the privilege would not prevent the criminal convictions from being 

used against Joseph in any future proceeding. The State agrees, arguing that Joseph’s testimony 

could not further incriminate him as the convictions are a matter of public record.

¶ 54 “The fifth amendment to the United States Constitution provides that no person ‘shall be 

compelled in any criminal case to be a witness against himself.’ ” In re A.W., 231 Ill. 2d 92, 106 

(2008) (quoting U.S. Const., amend. V). “The fifth amendment privilege against self-incrimination 

gives a person the right to refuse to testify against himself or herself when the person is a defendant 

in a criminal trial, or any other civil or criminal proceeding when the testimony may incriminate 

the person in future criminal proceedings.” Id. (citing Allen v. Illinois, 478 U.S. 364, 368 (1986)). 

“[T]he fifth amendment right against self-incrimination applies to juvenile proceedings.” Id. at 

107. However, “a witness may exercise his right to avoid self-incrimination only where he has 

reasonable cause to suspect the possibility of a subsequent prosecution from a direct answer.” 

People v. McNeal, 301 Ill. App. 3d 889, 892 (1998). “The privilege against self-incrimination must 
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be liberally construed in favor of the accused or the witness.” Id. at 893. However, the privilege 

may be denied “when it is perfectly clear, from a careful consideration of all the circumstances in 

the case, that the answers sought cannot possibly have [a] tendency to incriminate.” (Internal 

quotation marks omitted.) Id.

¶ 55 Here, Joseph points to no circumstance in which any answer provided by his testimony 

would have a tendency to incriminate him. Joseph’s testimony related solely to the dates of his 

prior convictions, which are a matter of public record. Joseph points to no pending criminal 

proceeding in which the testimony in this case would further incriminate Joseph. Nor do we believe 

such testimony could incriminate Joseph when “prior convictions are ‘highly verifiable matters of 

record.’ ” People v. Watson, 322 Ill. App. 3d 164, 167 (2001) (quoting United States v. Forbes, 16 

F.3d 1294, 1299 (1st Cir. 1994)). As Joseph provides no argument to the contrary, we find that his 

claim that his trial counsel was ineffective for failing to assert Joseph’s fifth amendment right 

when questioned about his past convictions fails to show deficient performance by counsel. No 

argument claiming prejudice was presented. 

¶ 56 Joseph’s second issue contends his trial counsel was ineffective for making no meaningful 

effort to rebut the presumption of depravity. In support, Joseph argues that his counsel failed to 

call any witness or present any evidence at the hearing. He further argues that counsel could have 

argued that Joseph’s completion of his sentences from the prior convictions was evidence of 

rehabilitation. 

¶ 57 Depravity is defined as “an inherent deficiency of moral sense and rectitude.” Stalder v. 

Stone, 412 Ill. 488, 498 (1952). The Adoption Act does not provide a specific number of felony 

convictions that equate to an irrebuttable finding of depravity. The “[d]epravity of a parent may 

be shown by a series of acts or a course of conduct that indicates a moral deficiency and an inability 
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to conform to accepted morality.” In re Dawn H., 281 Ill. App. 3d 746, 757 (1996). Generally, a 

single felony is insufficient to establish depravity in a parent. Id.; see also In re R.G., 165 Ill. App. 

3d 112, 134 (1988). However, in some circumstances, one felony will suffice. See In re Abdullah, 

85 Ill. 2d 300, 306-07 (1981); see also 750 ILCS 50/1(D)(i) (West 2022). Instead, the Adoption 

Act provides a rebuttable presumption of depravity “if the parent has been criminally convicted of 

at least 3 felonies” with at least one of the convictions taking “place within 5 years of the filing of 

the petition or motion seeking termination of parental rights.” 750 ILCS 50/1(D)(i) (West 2022). 

The presumption is rebutted by “clear and convincing evidence” that respondent is not depraved. 

Id. 

¶ 58 While Joseph contends his counsel should have presented witnesses or submitted evidence 

to rebut the presumption of depravity, no witness was named, and no evidence was identified that 

could have been presented. “[T]here can be no substantial showing of ineffective assistance of 

counsel for failure to investigate or call a witness if there is no evidence that the exculpatory 

evidence actually exists.” People v. Dupree, 2018 IL 122307, ¶ 37. Because Joseph identifies no 

specific piece of exculpatory evidence that would rebut the presumption of depravity, we cannot 

find that Joseph’s counsel was deficient in failing to present the unnamed evidence or witness. 

¶ 59 Nor do we find that counsel was deficient in failing to argue that Joseph was rehabilitated 

by serving the sentences associated with his prior convictions. Trial counsel’s decision as to what 

to argue in closing argument is trial strategy. People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 83 

(citing People v. Shamlodhiya, 2013 IL App (2d) 120065, ¶ 15). Here, instead of focusing on 

Joseph’s sentences for his prior convictions—which would place additional focus on Joseph’s 

prior convictions for violation of an order of protection, child pornography, and his sex offender 

status—counsel focused his argument on the lack of evidence showing that Joseph would not be a 
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good father and Joseph’s attempts to reunite with his daughter, both of which focused more 

positively on Joseph. Joseph provides no argument as to why counsel’s trial strategy to focus on 

the positive, rather than the negative, in his closing argument, was evidence of deficient 

performance. Given the lack of evidence and argument on this issue, we find that Joseph failed to 

prove deficient performance by his trial counsel. 

¶ 60 Finally, Joseph’s contends that his trial counsel was ineffective for failing to argue that his 

testimony provided an insufficient basis to make a finding of depravity. We find this argument 

completely without merit. 

¶ 61 First, trial counsel argued that “the State did not meet their burden” of proof. Such 

statement would encompass the element of whether one of Joseph’s prior convictions fell within 

the requisite five-year period. Second, Joseph’s contention that his testimony failed to provide the 

necessary information is equally erroneous. Joseph admitted that one of his felonies was for 

unlawful residency of a child sex offender at the fitness hearing. When asked if this conviction 

occurred on November 19, 2020, Joseph replied, “I guess so. I don’t know.” While this response 

was not definite, it did not deny the underlying facts premised in the question. 

¶ 62 Regardless of Joseph’s less than clear response provided at the fitness hearing, his 

argument ignores his testimony at the permanency hearing on January 21, 2021. At that time, the 

parties were attempting to determine the basis of Joseph’s most recent conviction and whether a 

sex offender assessment was performed prior to sentencing. The court clarified that Joseph’s 

conviction “was based on child sex offender residing 500 feet within a park” for which he received 

probation in November 2018. After failing to adhere to the conditions of probation, Joseph’s 

probation was revoked, which led to his three-year sentence in IDOC. When the court asked Joseph 

if it got that wrong, Joseph replied, “Nope.” As such, Joseph’s January 21, 2021, admission that 
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his conviction for unlawful residency of a child sex offender occurred in November 2018 provided 

the information necessary to determine whether the conviction was within five years of the State’s 

petition to terminate parental rights. The petition was filed on April 1, 2022, and Joseph’s 

testimony confirmed the elements necessary for invocation of the presumption. Accordingly, 

neither deficient performance by Joseph’s trial counsel, nor prejudice to Joseph, can be shown. 

¶ 63 Joseph’s contentions alleging that his trial counsel provided ineffective assistance have no 

merit. Accordingly, we affirm the circuit court’s finding of unfitness and order terminating 

Joseph’s parental rights. 

¶ 64 III. CONCLUSION

¶ 65 For the reasons stated herein, we affirm the circuit court’s finding of unfitness and order 

terminating Joseph’s parental rights. 

 

¶ 66 Affirmed.