2021 IL App (2d) 210446-U 

No. 2-21-0446 

Order filed December 7, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

In re D.A., Jr., a Minor ) Appeal from the Circuit Court

) of Stephenson County. 

) 

) No. 18-JA-17 

) 

(The People of the State of Illinois, ) Honorable 

Petitioner-Appellee, v. D.A., Sr., ) David M. Olson, 

Respondent-Appellant). ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE SCHOSTOK delivered the judgment of the court.

Justices Hudson and Birkett concurred in the judgment.

ORDER

¶ 1 Held: The trial court’s finding that the respondent was unfit and that it was in his child’s 

best interest that his parental rights be terminated was not against the manifest 

weight of the evidence. 

¶ 2 The respondent, D.A., Sr., appeals from the trial court’s order terminating his parental 

rights to his minor son, D.A., Jr. (D.A.). For the reasons that follow, we affirm. 

¶ 3 I. BACKGROUND

¶ 4 The respondent is the biological father of D.A., born February 7, 2015. The parental rights

of D.A.’s mother, B.D., are not at issue in this appeal. The case was initiated following a June 17, 

2018, incident in which B.D. left the minor at home without supervision for an unreasonable period 
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of time. At this time, the respondent was incarcerated. On July 16, 2018, the State filed a petition 

for adjudication of wardship alleging that D.A. was neglected on the basis that this incident 

demonstrated a disregard for D.A.’s mental or physical health, safety, or welfare. See 705 ILCS 

405/2-3(1)(d) (West 2016)). The petition further alleged that D.A. was neglected on the basis that 

he was in an environment injurious to his welfare in that his mother had prior indicated reports for 

inadequate supervision of D.A. and his sister. See 705 ILCS 405/2-3(1)(b) (West 2016). The State 

also filed a petition for temporary shelter care. Following a hearing on the same date, the trial 

court entered an order placing D.A. in the temporary guardianship and custody of the Department 

of Children and Family Services (DCFS), with discretion to place D.A. with a responsible relative. 

D.A. was placed with a maternal cousin and her husband. 

¶ 5 On January 22, 2019, the State filed an amended petition for an adjudication of wardship. 

The petition alleged that D.A. was a neglected minor on the basis that (1) B.D. left D.A. at home 

without supervision on June 17, 2018, without regard to his mental or physical health, safety, or 

welfare (705 ILCS 405/2-3(1)(d) (West 2016)); (2) B.D. left D.A. at home without supervision

sometime between June and July 2018, without regard for his mental or physical health, safety, or 

welfare (705 ILCS 405/2-3(1)(d) (West 2016)); and (3) D.A. was in an environment injurious to 

his welfare in that B.D. left him at home unsupervised on multiple occasions and had a prior 

indicated DCFS investigation for inadequate supervision of D.A. and his siblings (705 ILCS 405/2-

3(1)(b) (West 2016)). 

¶ 6 The case was scheduled for an adjudicatory hearing on January 29, 2019. However, B.D. 

and the respondent stipulated that the first allegation constituted neglect and that the State could 

prove the allegations at trial. On January 29, 2019, the trial court entered an order setting forth the 
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stipulation, dismissing the remaining allegations, and reflecting the parties’ agreement to engage 

in recommended services.

¶ 7 On March 19, 2019, the trial court held a dispositional hearing. Following the hearing, the 

trial court found that it was in the best interest of D.A. that he be adjudicated neglected and made 

a ward of the court, and that DCFS continue to maintain guardianship and custody of D.A. With 

respect to the respondent, the trial court found that he was unable to care for or protect D.A. 

because the respondent was in prison and would be in prison for a few more years. The respondent 

had not seen D.A. since his arrest in 2016. The trial court found that outside placement was 

necessary for the safety and protection of D.A. The trial court set the goal at return home within 

12 months. 

¶ 8 A permanency review hearing was held on September 17, 2019. The respondent was still 

incarcerated and had not been offered any services. He had not had contact with D.A. since 2016. 

B.D. had not engaged in services and had not visited D.A. The trial court noted that it was not 

opposed to D.A. making a visit to the respondent in prison. The trial court ordered DCFS to 

investigate potential services for the respondent while in prison. The trial court found that, under 

the circumstances, the respondent had made reasonable efforts. The trial court set the permanency 

goal at return home within 12 months. 

¶ 9 The trial court held another permanency review hearing on December 17, 2019. Julie 

Auestad, D.A.’s case worker, testified that the respondent was still in prison with a potential release 

date of January 4, 2022. She had taken D.A. to visit the respondent in prison. It was a five hour 

drive each way, so it was a long day for D.A. The respondent asked D.A. a lot of questions and 

the two interacted well. Auestad testified that there was a shelf of toys in the visitation room and 

the toys intrigued D.A. more than interacting with the respondent. The respondent told Auestad 
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that he would like to have custody of D.A., but he realized that D.A. was being well taken care of 

in his current placement. B.D. had not had any contact with DCFS, had not performed any 

services, and had not visited D.A. 

¶ 10 Following arguments, the trial court found that B.D. had not made reasonable efforts or 

progress toward the return home of D.A. The trial court found that, although the respondent had 

made reasonable efforts under the circumstances, there was not reasonable progress because the 

respondent was incarcerated. The trial court found that because B.D. had no interest in D.A.’s 

return home, and because the respondent would be incarcerated for another two years, return home 

was no longer a viable goal. The trial court found that it was in D.A.’s best interest to change the 

goal to substitute care pending termination of parental rights. 

¶ 11 On January 6, 2020, the State filed a petition to terminate the parental rights of B.D. and 

the respondent. As to the respondent, the State alleged that the respondent was unfit because (1) 

he was incarcerated, had been incarcerated repeatedly due to criminal convictions, and that his 

repeated incarceration had prevented him from discharging his parental responsibilities for D.A.

(750 ILCS 50/1(s) (West 2018)); and (2) he failed to make reasonable progress toward the return 

home of the minor during the nine-month period of March to December 2019 (750 ILCS 

50/1(m)(ii) (West 2018)). 

¶ 12 The fitness phase of the termination-of-parental-rights hearing was conducted on 

November 24, 2020, and January 5, 2021. Auestad testified that the respondent was still 

incarcerated. She had taken D.A. to visit the respondent in prison on one occasion. While D.A. 

knew he was “visiting his dad in prison,” D.A. was not “exactly sure who that was.” Although the 

respondent was allowed to make two phone calls a day in prison, he had only called D.A. on one 

occasion. She was with D.A. during that call. When the call ended, D.A. said he did not know 
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who he was talking to. The respondent had only sent two letters to D.A. since the time D.A. was 

placed in foster care. The respondent was unable to provide financial support due to his 

incarceration and had not sent any Christmas or birthday gifts to D.A. The respondent was 

cooperative and had completed an individual counseling session as requested by DCFS. DCFS 

requested that the respondent take a parenting class that was offered at the prison. The respondent 

said that he could not take the class until closer to his release date. The respondent had completed 

four college classes while incarcerated and had participated in a Narcotics Anonymous program. 

On cross-examination, Auestad acknowledged that it cost money to make phone calls in prison. 

She did not know if the respondent had available funds or if he had the foster parents’ phone 

number. 

¶ 13 The respondent testified that he was incarcerated when D.A. was born. He met D.A. for 

the first time in May 2015. He was arrested again on January 6, 2016. The respondent testified 

that his projected parole date was November 18, 2021. 

¶ 14 Following argument, the trial court noted that the State agreed that it had not proved the 

respondent unfit based on the second count in the motion to terminate parental rights, namely, a 

failure to make reasonable progress toward the return of the child from March to December 2019. 

As to the first count, the trial court found that, except for a few months from May 2015 to January 

2016, the respondent had been incarcerated for most of D.A.’s life. The respondent’s incarceration 

had prevented him from discharging his parental responsibilities as to D.A. The trial court found 

that the respondent was unfit based on his repeated incarceration. 

¶ 15 On April 6, 2021, the case proceeded to a best interest hearing. Auestad testified that D.A. 

had been living with his foster family since July 2016. He was returned to B.D. in mid-2018 but 

was taken back into DCFS custody three months later due to improper supervision. Since then, 
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B.D. had essentially abandoned D.A. D.A. had been living with his foster family since he was just 

over a year old. He was now six years old. D.A. viewed his foster parents as his mother and 

father. D.A.’s foster parents adopted D.A.’s younger sister. The foster parents would like to adopt 

D.A. All of D.A.’s needs are met in the foster family home. D.A. has his own room and many 

toys. D.A. told Auestad that he likes his foster home and feels safe there. The foster family had 

facilitated visits between D.A.’s older sister and younger brother, who are currently in other foster 

homes. Auestad had visited the foster family’s home about once a month since she took over 

D.A.’s case in September 2019. D.A. became integrated into the foster family over time. The 

foster family was a very loving family. According to Auestad, D.A. believed that the foster family 

was his family and that the foster home was his home. This was the only home that D.A. 

remembered. 

¶ 16 Auestad testified that D.A. had some behavior issues, but his foster parents worked closely 

with the school and the situation had improved. Auestad opined that if D.A.’s placement was

changed, his behavior could again become an issue. D.A. was in the process of being tested for 

the gifted and talented program at his school. 

¶ 17 Auestad also testified that, when the respondent is released from prison, the respondent 

would need to have stable employment and housing for at least six months before DCFS would 

consider changing D.A.’s placement. The respondent would have to complete services such as 

counseling and parenting classes. Auestad opined that the respondent had not maintained a 

meaningful role in D.A.’s life. Auestad acknowledged that, in February 2021, the respondent’s 

sister went to the foster parents’ home to drop off gifts for D.A. from the respondent. Auestad 

stated that she talked to the respondent on the phone about once a month and the respondent 
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appeared very interested in D.A. and how he was doing. Auestad believed that the foster parents

were willing to supervise visits between D.A. and the respondent. 

¶ 18 Venetta Mitchell testified that she was D.A.’s foster mother. She had cared for D.A. since 

he was one and she was there for his first word. She also has custody of D.A.’s younger sister, 

and the siblings are very close. D.A. is also very close to her three children. They all get along 

and are very loving toward each other. D.A. was thriving in her home and she and her husband 

would like to adopt him. D.A. knows that B.D. is his mother, so he calls Mitchell “TT,” for auntie. 

D.A. calls Mitchell’s husband “Dad.” She intends to foster good relationships between D.A. and 

his biological parents. D.A.’s older sister, who is in the custody of her father, comes to stay with 

Mitchell about every other weekend. The children are able to be together and maintain a sibling 

relationship. 

¶ 19 The respondent testified that he was grateful to Mitchell for taking care of D.A. However, 

he would like to have custody of D.A. when he is released from prison. He wants the chance to 

be a father to D.A. He would continue to allow D.A. to have a relationship with Mitchell and her 

children. If he had known D.A.’s phone number, he would have called him from prison. He did 

not remember ever receiving D.A.’s phone number. He had tried to write letters to D.A. When 

he is released from prison, he plans to move in with his mother, who lives in southern Illinois. His 

mother has a job lined up for him. He would complete his services in order to get custody of D.A.

¶ 20 The respondent further testified that he completed college courses while in prison. By the 

time he leaves prison, he will have earned as associate’s degree in liberal arts. He completed a 

mental health evaluation in prison, but the evaluator did not recommend any further counseling. 

He had been trying to take a parenting class, but enrollment was based on one’s discharge date, so 

he had not been able to take the class yet. The respondent said he was willing to complete whatever 
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services DCFS recommended so that he could gain custody of D.A. He has a support network to 

help him when he is released—his mother, sisters, brother, aunt, and grandmother. His mother 

and brother both have jobs lined up for him. 

¶ 21 Mary Ellis-White testified that she was the respondent’s mother. She lived in Virginia, 

Illinois, worked at Reynolds Consumer Products, and had been married for 10 years. She will be 

able to get the respondent a job at Reynolds when he is released from prison. It will be a wellpaying job that would allow the respondent to take care of D.A. The plan is for the respondent to 

move in with her when he is released from prison. She had tried to contact D.A.’s foster family to 

arrange to see D.A., but she found it very difficult to get in touch with them. Her daughter brought 

some gifts to the foster family’s house for D.A., but her daughter was not able to see D.A. while 

she was there. 

¶ 22 In closing, the State argued that it was in D.A.’s best interest to be adopted by his foster 

family. D.A. was bonded with his foster family and had stability. Even after the respondent was 

released from prison, there would be a significant amount of time for the respondent to establish a 

relationship with D.A. and for DCFS to determine whether the respondent was capable of 

parenting him. Considering the nature and the length of D.A.’s relationship with his foster parents, 

it would jeopardize D.A.’s emotional and psychological well-being to change custody at that point 

in time. D.A. was thriving with his foster family and the respondent’s rights had to yield to the 

best interest of D.A. 

¶ 23 The respondent argued that it was in D.A.’s best interest to be raised by his biological 

father. For the few monthsthe respondent was out of prison, he was with D.A. a significant amount 

of time and taking care of him. The respondent will have an associate’s degree when he leaves 

prison and his release date had been moved up because of his good behavior. He has a place to 
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live when he is released and a job. His mother is willing to drive him to Freeport to establish a 

relationship with D.A. The respondent argued that it was his highest priority to be a father to his 

son. He had shown a reasonable degree of interest in D.A. and had done what he could, given his 

incarceration. The respondent requested that the trial court deny the petition to terminate his 

parental rights.

¶ 24 The guardian ad litem (GAL) acknowledged that the foster family had been caring for D.A. 

for six years and that it would be very difficult for them to eventually lose custody of D.A. The 

GAL argued, however, that foster parents are supposed to be a temporary stopgap to getting 

children back to their biological parents. The system should not be designed such that foster 

parents become legal parents in every single case. The GAL opined that it was in D.A.’s best 

interest to still have his biological father, the respondent, have a chance to prove that he can parent 

D.A. The GAL noted that the respondent was very young when he went to prison and had been in 

custody on a single offense. Because the respondent was due to be released from prison very soon, 

the GAL opined that it would not be detrimental to D.A. to have the case continued to find out 

whether the respondent was capable of regaining custody. 

¶ 25 On May 20, 2021, the trial court entered a written order terminating the respondent’s 

parental rights. The trial court noted that D.A. had been in the custody of his foster family since 

he was one and that, at the time of judgment, D.A. was six years old. The respondent had been 

incarcerated that entire time. The trial court acknowledged the profound love and interest that the 

respondent had for D.A. but noted that its sympathy for the respondent did not change the best 

interest analysis. The trial court noted that its analysis had “nothing to do with punishment, or 

further vilification of [the respondent] for crimes he committed in the past, and for which he had 

paid his price.” Further, its decision had nothing to do with the emotional damage that would be 
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inflicted on the adults involved. But that, “[i]t [had] everything to do with an innocent and 

unwitting child, who doesn’t have any bond with [the respondent], and a significant bond with the 

foster placement ***.” 

¶ 26 The trial court addressed the statutory best interest factors. The trial court found that the 

majority of the factors favored the termination of parental rights. The trial court noted that, at the 

time of judgment, D.A.’s physical safety and welfare was being provided by the foster parents. 

D.A. only knew his foster family and his identity revolved around his foster placement. As far as 

D.A. knew, his foster family was his family. His younger sister was in the same house and the 

foster parents were close blood relatives of D.A. D.A. did not have any ties to the respondent. 

The trial court found that D.A.’s sense of security and familiarity was with the foster family and 

that the foster family treated D.A. with love and commitment. The trial court believed that a 

disruption of these relationships would be damaging to D.A.’s emotional well-being. As to D.A.’s 

wishes, the trial court found that D.A. expressed an affinity for his current foster placement and 

did not appear to express any affinity for the respondent. As to D.A.’s community ties, the trial 

court noted those ties were entirely with the foster family. Further, the respondent made clear that, 

if he gained custody of D.A., he intended to move D.A. to southern Illinois, and thus away from 

the only community D.A. has ever known. 

¶ 27 In addressing D.A.’s need for permanence and stability, the trial court responded to the 

GAL’s argument that the respondent should have an opportunity to gain custody and that denying 

the petition to terminate parental rights would not be detrimental to D.A. because it would 

essentially maintain the status quo. The trial court found that a foster family is not strictly a “place 

holder” in every instance and further explained: 
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“That may have been true 3 years ago, but that is no longer the case here. Sometimes, the 

‘placeholder’ becomes so important to the child, as opposed to the alternative, over a long 

period of time, that the ‘placeholder’ replaces the biological parents as the primary 

stakeholder in that capacity.”

The trial court further noted that providing permanency is more than just maintaining the status 

quo. Rather, it also includes finalizing a child’s position and eliminating potential future 

disruptions to the child’s life. The trial court found that this factor favored termination of the 

respondent’s parental rights. Finally, the trial court found the statutory factor addressing the nature 

and length of D.A.’s relationship with his foster family, and the effect that a change in placement 

would have on D.A.’s emotional and psychological well-being, was the essence of this case. The 

trial court noted that D.A. had been with his foster family since before he was one year old and 

had, except for short three-month period, remained there past his sixth birthday. The trial court 

found that disrupting D.A.’s placement would “have a catastrophic negative impact on the mental 

and emotional health and well-being” of D.A. and that “this [was] consideration ‘number one’ for 

the Court.” The trial court concluded that the State had proven by a preponderance of the evidence 

that it was in D.A.’s best interest to terminate the parental rights of the respondent. Following the 

denial of his motion to reconsider, the respondent filed a timely notice of appeal. 

¶ 28 II. ANALYSIS

¶ 29 On appeal, the respondent argues that the State failed to prove by a preponderance of the 

evidence that the termination of his parental rights was in D.A.’s best interest. 

¶ 30 The Juvenile Court Act of 1987 (Act) sets forth a two-stage process for the involuntary 

termination of parental rights. 705 ILCS 405/1-1 et seq. (West 2016). Initially, the State must 

establish, by clear and convincing evidence, that the parent is unfit under any single ground set 
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forth in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2016)). See 705 ILCS 405/2-

29(2), (4) (West 2016); In re J.L., 236 Ill. 2d 329, 337 (2010). If the trial court finds the parent 

unfit, the State must then show by a preponderance of the evidence that termination of parental 

rights is in the child’s best interest. See 705 ILCS 405/2-29(2) (West 2016); In re D.T., 212 Ill. 

2d 347, 367 (2004). We will not disturb a trial court’s findings with respect to parental unfitness 

or the child’s best interest unless the findings are against the manifest weight of the evidence. In 

re N.B., 2019 IL App (2d) 180797, ¶¶ 30, 43. A decision is against the manifest weight of the 

evidence “ ‘only if the opposite conclusion is clearly apparent or the decision is unreasonable, 

arbitrary, or not based on the evidence.’ ” Id. ¶ 30 (quoting In re Keyon R., 2017 IL App (2d) 

160657, ¶ 16).

¶ 31 The focus of the termination proceeding shifts to the child following a finding of unfitness. 

In re Davon H., 2015 IL App (1st) 150926, ¶ 75. “The issue is no longer whether parental rights 

can be terminated; the issue is whether, in light of the child’s needs, parental rights should be 

terminated.” (Emphases in original.) In re D.T., 212 Ill. 2d 347, 364 (2004). The parent’s interest 

in maintaining the parent-child relationship must yield to the child’s interest in a stable, loving 

home life. Id. 

¶ 32 When making its best interest determination, the trial court must consider the following 

factors in the context of the child’s age and developmental needs: (1) the child’s physical safety 

and welfare; (2) the development of the child’s identity; (3) the child’s background and ties; (4) 

the child’s sense of attachments; (5) the child’s wishes and long-term goals; (6) the child’s 

community ties; (7) the child’s need for permanence, including the need for stability and continuity 

of relationships with parent figures, siblings, and other relatives; (8) the uniqueness of every family 

and child; (9) the risks attendant to entering and being in substitute care; and (10) the preferences 
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of the persons available to care for the child. 705 ILCS 405/1-3(4.05) (West 2016). “A court may 

also consider the nature and length of the child’s relationship with his present caretaker and the 

effect that a change in placement would have upon his emotional and psychological well-being.” 

In re Tiffany M., 353 Ill. App. 3d 883, 893 (2004). 

¶ 33 In the present case, the record shows that the trial court engaged in a thorough analysis of 

the best interest factors in determining that the termination of the respondent’s parental rights was 

in the best interest of D.A. The evidence shows that the respondent was incarcerated when D.A. 

was born but was released from jail when D.A. was three months old. When D.A. was 11 months 

old, the respondent was reincarcerated and remained incarcerated throughout these proceedings. 

D.A. had only made one visit to the respondent in prison. After the caseworker had facilitated a 

phone call between the respondent and D.A., D.A. indicated that he did not know who he was 

talking to. D.A. had no established relationship with the respondent. 

¶ 34 The evidence also demonstrates that D.A. had been cared for by the foster family for the 

majority of his life. The foster family had provided for all of D.A.’s needs and D.A. felt safe in 

their home. D.A. referred to his foster father as “Dad” and considered the foster home to be his 

home. D.A. was in foster care with a biological sibling, who has been adopted by the foster family. 

The foster family facilitated activities between D.A. and other biological siblings that were not in 

the foster family’s care. In addition, D.A.’s foster parents indicated that they were willing to 

encourage a relationship between D.A. and his biological parents. In light of this evidence, we do 

not believe that the decision to terminate the respondent’s parental rights was contrary to the 

manifest weight of the evidence. 

¶ 35 The respondent addresses each statutory best interest factor and argues why it should not

weigh in favor of termination of his parental rights. However, this court will not reweigh the 
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evidence anew on appeal. In re J.B., 2014 IL App (1st) 140773, ¶ 49. Moreover, the respondent’s 

arguments are unpersuasive. With respect to many of the factors, the respondent argues that they 

should weigh against termination because D.A. is still young and the respondent will be able to 

provide things such as identity, community ties, sense of attachments, and permanence when he is 

released from prison. He further argues that since he will be released from prison soon, he should 

be given an opportunity to be a father to D.A. However, the issue here is not the respondent’s 

right to maintain his legal relationship with D.A., rather it is the best interest of D.A. As noted 

above, it is well settled that a parent’s interest in maintaining the parent-child relationship must 

yield to the child’s interest in a stable, loving home life. D.T., 212 Ill. 2d at 364. The respondent 

had an opportunity to be a father when he was released from prison when D.A. was three months 

old. However, he was reincarcerated about six months later. During the respondent’s 

incarceration, and for almost six years now, D.A. was cared for by the foster parents, they provided 

for all his needs, and he had bonded with the foster family. Therefore, we cannot say that the trial 

court’s finding, that D.A.’s best interest, including his interest in permanence, would be best served 

by terminating the respondent’s parental rights, was against the manifest weight of the evidence. 

¶ 36 Finally, the respondent takes issue with the trial court’s finding that removing D.A. from 

the foster family home “would have a catastrophic negative impact on the mental and emotional 

health and well-being” of D.A. The respondent argues that there is no support for this in the record. 

However, Auestad testified that a disruption in placement could lead to behavioral problems for 

D.A. Moreover, such a conclusion is not against the manifest weight of the evidence as the record 

shows that D.A. had been cared for by the foster parents for almost six years, had bonded with the 

foster family, was thriving in his foster placement, and had no significant relationship with the 

respondent. 
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¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Stephenson County. 

¶ 39 Affirmed.