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Ru le 23 or der filed NO. 5-08-0657 Septe mbe r 16, 2009; Mot ion t o pu bli sh gr an ted I N THE Octobe r 15, 2009. AP PE LLA TE C O U R T O F IL LIN O IS FI FTH DI STRI CT

________________________________________________________________________ In re BRAN DON A., a Minor ) Appeal f rom the ) Circuit Co urt of (The People of the State of I llinoi s, ) Frank lin County. ) Petitioner-Appe llee and C ross-Appellant, ) ) No. 05-JA- 40 v. ) ) Timothy A., ) Ho nora ble ) E. K yle Va ntrease, Respo ndent-Ap pellant and C ross-Appellee). ) Judge, presiding.

________________________________________________________________________ PR ESIDIN G JU STICE W EX STT EN delivered the op inion o f the co urt: Timothy A., the respondent , appeals from the circ u it co ur t's orde r termina ting his parenta l rights t o his mi nor son, BrandonA., on it s findings t hat the respondent 's repeat ed incarc erati on has pr ev ent ed h imfr om d is charg in g h is par ent al re spo nsibi li ti es (7 50 I LCS 50/1(D)(s) (West 2006)) and t hat the termi nationwas in the m in or ' s be st in te re st s ( 705 I LCS 405/2-29( 2) (Wes t 2006)). The Stat e cross- appeals f rom the cour

t' s finding that the respondent

is not deprave d (750 I LCS 50/1( D)(i) ( West 2006)). For t he reasons th at

fo ll ow, we affirm. BACKGR OUND Brandon wa s born in D ecem ber 1 998 . In Janu ary 2 005 , his mother, Pa tsy, died of a drug overdos e, and his father , the r espondent, was arres ted andincarcerated on drug charg es. B ra nd on 's matern al grand moth er, Shirley Rice , imme diately assumedcustody of him, and in November 2005, the State filed a p etition fo r an adjudica tion of w ardsh ip on his be half (705 ILCS 405 /2-13 (W est 2004)).2

In December 2005, at t he fir st hearing on t

he S tate 's petition for

an adjudi cati on of wardship, t

he tri al court

expresse d concern that the respondent had not been se rved wit h a
summons. In r esponse, t he State inf

ormed the cour

t that it had l earnedwhere the re spondent
was being h ouse d by the Illinois D epartm ent of C orrectio ns (D OC ) and wo uld se rve him prior to th e ne xt h earin g. By the agr eement of t he parti es prese nt, t

he court pl aced Brandon in the te mporary custody of the Department o f Chil dren and Fami ly S erv ices (DCFS). DCFS then dee med Shirle y "a relat ive foste r parent ," and Brandon was permi tted to remain in her
care. The respondent

was later

serv ed with a copy of

the pet iti on for the adjudi cati on of wardship, a notice of rights, and notices of hear ings . The court s ubsequently entere d additio nal tem pora ry cu stody orde rs con tinuing tem pora ry cu stody with DC FS. In February 2006, the cause proceed ed to an adjudicatory hearing . The court not ed that the res pondent had been s erved wit h a summons butwas notpres ent. Joe Fr ey of DCFS test ifi ed that, alth ough Sh irley ha d "qu ickly and appropri atel y" assumed cus tody of Brandon foll owing Pats y's death andthe res pondent' s incar cerat ion, she "sti ll di d not hav e the l egal autho rity to make decisi ons on his beha lf." Thereaft er, t he court a djudicated Brandon a dependentminor pur suant t o secti on 2-4(1)( a) of the Juv enile Court Act

of 1987 (Act) (705 I LCS 405/2-4( 1)(a) (West 2004)) and s et the c ause for a dispositionalhearing . The respondent

subs eque ntly retained counsel and fil ed a writ t o be present at the disposi tional hea ring. In June 2006, the cause proceeded t o a dispositionalhearing , where the respondent
was present

with counsel . Frey te sti fied t hat DCFS had placed

B ra nd on in Sh ir le y's care and that she had been co operative with D CFS ever since

. Fr ey state d that it w ould be in B ra nd on 's best i nteres ts t o remain in foste r care w ith Shirley. T he res pon dent te stified tha t, although he and Brandon had "alw ays b een c lose," h e w as un able to tak e care of Brandon because he was inc arc erate d. Th e re spondent r eferr ed to Shirley as a "wonderful3

grandmothe r" who loved Brandon, and he stat ed that under Shi rley' s care i s "whe re [Brandon] should be." At the conclusi on of the hear ing, the court foun d that it w as in B ra nd on 's best i nteres ts that he be made a ward of the court. The court granted c ustody and guardia nship to D CF S and o rdered DC FS to ar range visitatio n w ith the re spon dent. In June 2007 , the caus e proceeded t o a permanency hearing. Faith J ohnson of Luther an Social Se rvices (LSS ) tes tif ied that ref

erral s with re spect t o many of the
com pon ents of

the res pondent' s serv ice pl an could not be made because of

his i ncarcer ation. She further testified that Brand on w as doing very w ell under Shir ley 's care an d w as w ellbehavedan d wel l-adj usted. J ohnson opined t hat g ive n Brandon' s "desper ate need f or permane ncy," the appropriate permanency g oal "would be s ubsti tute c are pendi ng termi nationof parent al ri ghts ." The responde nt tes tif ied that he expect ed to be re leased on paro le from D OC in January 2008. He acknowledg ed that t here were fede ral dr

ug charg es still pe nding ag ai ns t h im , b uthe in si st edth at he was not

gu iltyof

th os e c ha rg es . He indicatedthat he sincer ely lov ed Brandon, that he had improv ed himsel f while in prison, and that, once rel ea sed, he was willing to do w hatever wa s nec essary to regain custo dy o f his son. N oting that Brando n had a lready bee n in foster care for appr oximate ly 21⁄2 years, t he tri al court agreed with L SS' s recommendation a nd foun d that t he appropri ate per

manency goal was substi tute c are pendi ng a det ermination on the terminati on of parental rights. The court al so ordere d that v isi tati on between the r espondent and t he minor be continued. In No vembe r 200 7, the State fil ed a moti on forthe te rminat ion of par ental rights and for the appointment of a guardian wit h the power to c onsent t o an adop tion. In its motion, the Stat e all eged t

hat the respondent

was unfit

for the foll owing reasons: (1) he had fail ed to mainta in a rea sonable degree of intere st, con cern, or resp onsib ility for Brand on's welfare (750 ILCS 50/1(D)(b ) (We st 2006)), (2) he had f aile d to prot ect Brandon f rom envi ronmental conditi ons that w ere inju rious to B ra nd on 's welfare ( 750 IL CS 50/1(D)( g) ( West 2006)), ( 3)4

he had fail ed to make re ason able ef fort s to cor

rect t he condit ions t

hat were the basis of B ra nd on 's rem oval ( 750 ILCS 5 0/1 (D )(m) (i) (W est 2 006 )), (4 ) he had faile d to make
reaso nable progr ess towards Brandon' s ret urn withi n nine months after Brandon had be en adjudic ateda dependent mi nor (750 ILCS 50 /1(D )(m)(ii) (West 2006)), (5) he was depr aved in that he had been cri minally convi cted of at lea st three fel onies andat le ast one of his convi ctions had tak en place wit hin fi ve year s of the fil ing of the moti on to ter

minate parenta l rights (750 I LCS 50/1( D)(i) ( West 2006)), and ( 6) he was incar cerat ed at the time of the fil ing of the mot ion to t erminate pare nt al rights, he has been repeatedly incarcerat ed as a result of cri minal c onvic tions , and his r epeated i ncarcer at ion has prev ented hi m from discharging his parental respo nsibilities (750 ILCS 50/1(D )(s) (Wes t 2006)). In April 2008, the respond ent filed a motion to d ismiss the State's motion for t h e termi nationof parent al ri ghts . Citi ng section 2-13( 4.5)(a) of the Act (705 IL CS 405/2- 13(4.5)( a) (West 2006)), the res pondent mai ntaine d that t he State wa s not sta tutorily authori zed to commence t he termi nation a ctionbecause Brandon was bei ng care d for by a relative

. Followinga heari ng on the matter, the trial court denied the respondent 's motion to dismiss. In June 2008, the cause proce eded to a f itnes s heari ng, at

which the fol lowing evi dence w as ad du ce d. In April2003, when Brandon was four, t he respondent

pled gu ilty to a charge of fel ony driv ing whil e lic ense rev okedand was sentence d to one year in pri son. Including jailtime, the res pondent was incarcerat ed approximately si x months on the convi ction. I n S ept emb er200 4, DCF S first beca me invo lved w ith Bra ndo n w hen it inve sti gat ed a drug- relat ed ris k-of -harm re port wit

h respect to Pats y. In January 2005, Patsy diedof a drug ov erdose; the res pondent, who was suspect ed of prov idingthe drug s that kil led Patsy, was arrest ed on drug charge s; and S hirl ey assumed custody of Brandon. In June 2005, the respo nden t pled gu ilty to the Sta te's drug ch arges aga inst him , and in Augu st 2 005, he5

was sentenced to seven years in DOC. W hile in pri so n, the r espo nden t "sent m oney to Bra ndo n fo r sch ool sup plies and thin gs like that" but w as un able to otherw ise sup port h im financi ally. In J anuary 2008, t he respondent

was paroled f

rom DOC but was imme diately tak en into c ustody by fe deral a gent s on a warrant stemmi ng fr om his fe deral drug charges. Since his ar

rest on the fede ral warr ant, he had been incarcerat ed at the Jeff erson Co unty jail. The respondent

test ifi ed that

he belie ved that the sentencing rang e on his f ederal charge s was 5 to 40 years ' imprisonm ent bu t that he wa s eligible to re ceive cre dit for h is time sp ent in DOC. He indicated that he was pres ently working on aplea agreement and hoped to be out of fed eral prison by 2011. He ack nowledged t

hat he coul d not "par ent" Brand on w hil e incarc erate d. In August

2008, the t

rialcourt ent ered a writ

ten order findi ng that the respondent was unfit due to his repeat ed incar cerat ion. The court found that the State had failed to prove its other allegations of unfitness. W ith respect to the repea ted-incarceration grou nd, the co urt state d th e fo llow ing:

"In this case, [ the respondent ] was incar cerat ed forsix months when Brandon
was four years old. [The respondent ] has been i ncarcer ated since January 7, 2005, when Bran don wa s six ye ars old [,] and will no t be rele ased from c ustod y un til atleast 2011. Brandon will t

urn thi rteen ye ars ol d at the end of that y ear. [T he res pon dent] could remain in custody after 2011 ***. Duringthis time of incarc erati on, [the respo nden t] is not

able t o provi de 't

he necessar

y emotiona l and fi nancialsupport and stability requir ed of a pare nt.'The Court fi nds that the St ate has proven by cl ear and convi ncingevi dence that [the r espondent] was incarce rated at the time of

fil ing t he motionfortermi nation of parenta l ri ghts , [that] he has been repeat edly inc arcerated
as a resul t of criminalconvi ctions , and [t hat] hi s repeat ed incar cerat ion has prev ented him from disch arging his parental respons ibilities."6

In October 2008, t

he cause proceeded t o a best- inter ests he aring . Sar ah Viernum of LSS testif

ied tha t she had been counse lingBrandon since t he summer of 2005. When Viernum fir st saw Brandon, he was expe riencing dif ficul ties deal ing with the loss of his motherand wa s ex hib iting re gress ive beh avior s su ch a s be d-w ettin g, tantr um-thr owing, and talking l ike a baby. Aft er a year of counsel ing, Brandon' s behavi or impro ved bu t was still incon sistent. Viernum tes tif ied that her m ain goa l was to help Bran don develo p cop ing skills because it was very diffic ult for h im to no t know wh at w as ult imate l y going to happ en to him. She obse rved on e visit that B rand on h ad w ith the re spon dent, and s he state d that, altho ugh Brandon "seemed t o be excit ed to see hi s father ***[,] he didn' t real ly know what to say orwhat to do." S he noted that Brandon had l ater told her that he did not l ike vis iting the respondent

when they had t o "tal k through a phone andthrough gla ss" and t hat Brandon had "made comments that he d id n't really care i f he vi sit ed or not. " She al so opined t hat Brandon did not have atypica l fat her-son attac hment to t

he respondent

and that he needed "a stable, structure d env ironment that he knows he can count on." Viernum bel iev ed that B ra nd on 's impro vemen ts we re the re sult of h is being " in the s ame place f or such a l ong time" and that he could regress in the futu re in the abse nce o f stability b ecau se he did not know what could happen at

any gi ven t ime. M illie Deadmond of LSS test ifi ed that she was Brandon's caseworker and that the last atte mpted vis it bet

ween Brandon and the res pondent had occ urre d tw o w eeks befo re the b estinterests hea ring. When D eadmond spoke to Br ando n prio r to the s ched uled visit, h e told her that he "hated his father and did not want

to vi sit anymore." Although s he encourag ed him to att end the vis it, he sti ll r efused. Deadmond t esti fied t hat Brandon hadalso r efused to atte nd the v isi t befor e that and had stat ed that

he never wanted to see the res pondent ag ain. Brandon' s last

vis it wit h the respond ent wa s a "through-the-glass visit," and Bran don "left 20 minutes early. " Deadmond test ifi ed that Shirley' s home was an appropri ate env ironment7

forBrand on and that he had his own room an d a playroo m. B randon wa s doin g well in school and had be en discharged fr om speech therapy. He had maternalaunts, unc les, and cousins in the are a and had made fr iends wit h childr en in the neig hborhood. Shir ley test ifi ed that

she re sided with Bran don in her h ome in Joh nston City and that she had be en taking care of him since January 2 005. She state d that Brandon, who was almost 10, was doi ng well in s chool and that she che cked hi s homework ni ghtly. She indicated that Brandon was also doi ng well in counsel ing and that t he behav ior al pr oble ms he exhibi tedduringtheir fir st year

toge ther had s ubsided. She testifie d that sh e w anted to adopt Brandon and had the means to support him. S he stat ed that

Brandon does his chores and that hi s best f

riend l ive s down the str eet. S hirl ey testified that she was 5 7, wa s in very good health, and had never been convi cted of a crime. She indi cated t hat Brandon was excit ed about the prospect of her adopting him and that he was very happyin her home. She stat ed that, when Brandon startedschool i n Johnston Cit y, he "tol d everyone his name was Brand on R ice." On the res pon dent's be half, T amara M aybe rry of LSS t est ifi ed that , during the summer of 20 07, Brandon was always exci ted to v isi t the r espondent at the Shawnee Correcti on a l Center. Ma yberry stat ed that , during the v isi ts at

the corr ecti onal cent er, the respondent was pleasant and "very involved with Brandon." In her opini on, Brandon and the respondent had "won derful visit[s]," and the respon dent "seem ed like a great dad." Frey test ifi ed that

he superv ised one v isi t between Brandon and t he respondent

at the Vienna Correcti onal Center. Duri ng the v isi t, t he respondent 's behavi or was appropri ate, and there was so me bon ding. W hen cross-e xamined , how ever, Frey stated that "Brandon' s been in lim bo f

or half his l ife" and that

it would be in Brandon' s best interes ts t o have a "perman ent living environment and a p ermanen t bond w ith a caretaker." The respondent 's mother, Pamela Hail ey, tes tif ied th at, w hen s he too k Bran don to visit8

the res pondent at

the Vienna Correct ional Cent er, i t was obvi ous that Brandon lov ed him. She further tes tif

ied that Shi rley and Deadmond had at tempte d to ali enate Brandon f rom the respondent . She acknowledg ed that , since she had recent ly moved to Texas, she would be unab le to hav e much contact with Brandon, ev en if t he respondent 's parenta l rights were not termi nated. The respondent

test ifi ed that , while i n prison, he had tak en numerous classe s to imp rove himself. He testified that he loved Bran don very m uch an d wa nted to remain a part of his l ife. He expressed hi s will ingne ss to do whate ver was nece ssary t o s pend as muc h time w ith Bra ndo n as p ossible follow ing his relea se fro m p rison . H e sta ted th at, a ltho ugh the se nt en ci ng rang e o n hi s f ed er al ch ar ge s wa s 10 t o 14 yea rs, h e w as go ing to rece ive sentence reducti ons for

his cooper ati on and f

or hi s ti me spent i n DOC . He stat ed that under a "best case scenario" he would be rele ased fr om federalcustody i n 6 to 9 months and that under a "worst ca se scenario" he would be r elease d in 2 to 21⁄2 years . He claime d that, upon his release from p rison, h e w as going to wo rk for his brother for$70,000 a year. He further clai med that S hirl ey had provi ded Patsy with prescr ipti on drugs while she was aliv e and that Brandon would lack

a posit ive male rol e model under he r care. In i ts cl osingargument , the State noted that, w hile the respo nden t was und oub tedly going to be incar cerat ed "for s ome time in the futur e," how longhe would be incar cerat ed
was unknown. St ating

that "[t] his has be en ling eringon for year s," t he Stat e maint ained that Brandon need ed pe rman ency in his life. The State asked the co urt to ter mi nate the
re sp on de nt 's paren tal rights so th at Bra ndo n cou ld move on. Suggesting that the present case
was not a dif

ficul t one and arguing that "Brandon des erves permanency," Brandon' s guar dian ad lit em also urged the court to terminate the r espondent's parentalright s. Counsel for the respondent argued, inter alia , that B rand on w ould sti ll be young when the respondent

is re leased f

rom pri son. Counsel not ed that the res pondent cl early l oved9

Brandon and w anted to "be there fo r him." Co unse l suggeste d that S hi rley hat ed the respondent

because she bl amed him for Patsy' s death. In November 2008, t

he tri al court ent ered a writ ten order termi nating

th e r es po nd en t's parenta l rights to B rand on an d app ointing D CF S as his gu ardian with the powerto consent to an adopti on. Aft er noti ng that it had previ ously found

that t he respondent

was unfit

due to h is rep eate d in carc erati on, the c our t state d th e fo llow ing: "Brandon has been in the c are an d cus tody of his maternalgrandmot her, S hirl ey Rice, since his m ot he r's death i n January 2005. I n December of thi s year, Brandon will be ten ye ar s o ld . In Janu ary, h e w ill have sp ent fou r years living with his grandmothe r. Throughout

that time, [the respond ent] h as been incarc erate d. [He] remains in the custodyof the United States G over nment. The dat e of his scheduled r elease from custodyis unknow n. For the past four year s, Brandon' s only cont act with his father has been corres pon denc e and visits at a co unty jai l or an I llinois st ate cor recti onal facilit y. W hile those visits were app ropriate, accord ing to witnesses, they were limited b y the re quirem ents of the facility whe re [the r espondent] was incarce rated. Since [the res pon dent] h as be en in the cust ody of the [ United St ates Gover nment], the visits have been 'no contact'visi ts, apparently t hrough glass. At least one witness test ifi ed that du ring the visits in the s ummer of 200 7, [the respo nden t] wa s trying to get to know his son. Brandon has b ecom e attach ed to his grandmother and has a sense of b elon ging. He does not ap pear to be atta ched to his fa ther an d rece ntly ha s refus ed to visit w ith him. Brandonis i n need of permane ncy, to k now with whom he will be liv ing and by whom he will be car ed for. To a t en[-] year[- ]old chi ld, four years se ems li ke an eterni ty. It

is stillnot known when [the res pondent] wil l be rel easedfrom cust ody. At th e f it ne ss he ar in g, he te st if

ie d tha t t he be st ca se sc en ar io wa s that he might be10

relea sed in 20 11. [A t the be st-interes ts hear ing], he c laimed he m ay be release d in 2009, although there was no evi dence to suppor t that clai m. Even if

he were rele ased from custody, t

here is no assuranc e that [he] wo uld be in an y position to care for his son." The resp onden t subseque ntly filed a timely notice of ap peal. AN AL Y SIS The respondent

rais es numerous i ssues on appeal, and as prev iousl y noted, t he State rais es one is sue on cross -appeal . We will addres s each in t urn. The V alidity of the Trial Co urt's Temporary C ustody O rders The respo nden t first com plains th at, because he had not been giv en adequate notice of the proce eding s at which t emporary cus tody was granted to and contin ued w ith DCFS, the tri al court's temporary cu stody orde rs were invalid. W e agree with the S tate , however, that the respondent

has waived t

he consider ation of

this issue by r aisi ng it

for the fir st t ime on appeal. S ee Fawc ett v
. Reinert sen , 131 I ll. 2d 380, 386 (1989). We further agree with t he St at e's obse rvations th at the trial c ourt compl ied with t he stat utory r equirement s att endant to temporar

y custody or ders ent ered ex pa rte (see 705 ILCS 405/2-10(3) (West 2004)), that the respond ent never sought a reh earing on any of the court's temporary o rders (see 705 I LCS 405/2-10( 4) (West 2004)) , and that the is sue is ultimat ely moot ( see In re D.S. , 217 Ill. 2d 306 , 320 (200 5); I

n re A .D .W

. , 278 Ill. App. 3d 4 76, 480 (1996)). The Validit

y of the Tri al Court' s Termination Order Referenci ng section 2-13 (4.5 )(a) of the Act (705 ILCS 4 05/2-13(4 .5)(a) (W est 2006)), the respondent

contends t

hat the trial co urt's order te rmina ting his paren tal rights is invalid because the St ate was not au t horize d to co mme nce th e termin ation a ction. T he State counters that t

he respondent 's argument misre ads secti on 2-13(4.5) (a) and i s "tot ally wit hout support."11

In rel evant part, s ection 2-13(4.5)(a) prov ides as foll ows:

" W ith respect to any minors com mitted to its care pursuan t to this Act, t h e Department

of Children and Family Servi ces shall request the St ate' s Att orney to file
a petition ormotion f

or ter minati on of parent al ri ghts and appointme nt of guardian of the person with po wer to co nsent to ado ption of the min or unde r Section 2-29 if:

(i) a minor has been in fost er care , as described in s ubsecti on (b), f or 15 months of t

he most r ecent 22 mont hs *** * * * unless: (i) the chi ld is beingcared for by a relativ e[.]" 705 IL CS 405/2- 13(4.5)(a) (W est 2006). The respondent

mainta ins that, beca

use Brandon was beingcared for by a relativ e the entire ti me he was in foste r care, the State w as no t autho rized u nder section 2-13 (4.5)(a ) to file its motion for the termination of parental rights. As the t rialcourt not ed when reject ing this argument , however, secti on 2-13(4.5) (a) does not l imit the St ate' s power to commence
a termi nationproc eedin g; it rather ma ndate s that D CF S requ est that th e State commence that proceedi ng und er certa in circums tances. Moreover, as the trial c ourt f urther noted, t he State may com men ce pro ceed ings on a mo tion to termi nate par ental rights any t ime aft er the entry of a dispositional order. See 705 ILCS 40 5/2-13(4) (W est 2006). W hile issues of statutory constr uctionare rev iewed de novo ( Hennings v. Chandler , 229 Ill. 2d 18, 24 (2008)), "[w ]e
can not read words into a statute t hat are not there" ( Chicago Tribune Co. v. Boa rd o f Education of

the Cit y of Chicago , 332 Ill. App. 3d 6 0, 67 (20 02)). According ly, we reject the respon dent's proposed interpretation of section 2 -13(4.5)(a).

The Respondent' s 1997 Crimi nal Convi ction in Mississippi At the fi tness he aring , as proof of a pri or fel ony convi ction, the St ate produc ed a12

certi fiedcopy of an order from the circuit court of Prentiss Co unty , M ississipp i, stating tha t, in June 1997, the respondent pled g uilt

y to a char ge of " [s]al e of crack co caine with in 1500' of [a] chur ch." The order further st ated that the respondent recei ved a 15-year prison sentence on th e cha rge with "credi t for time s erved and the remainder of [ the] sentence *** suspend ed." On appeal, the respondent contends that t

he court s hould not hav e consider ed the evi dence of this 19 97 convi ction a s proof of a felony c onvic tion. He argues t hat the convi ctionshould not

be dee med a felony conv icti on because he was g ive n a "defer red senten ce." W e agree w ith the St ate, howev er, t hat notonly is this clai m without merit but it is also imm aterial. As the trial c ourt det ermined bel ow, "based upon a review of the M ississippi statutes," the respondent 's 1997 convi ction was a c onvic tion f or a fel ony offense , reg ardles s of the fact that t he "remai nder" of t

he 15-year s entence had be en "suspended." See Miss. Code Ann. §§41-2 9-139, 41-29-142 (1996) . As the Stat e observ es on appeal , gi ven the leng th of t he sentence that the re spon dent rec eiv ed, the of fense under lyingthe conv icti on had to be a felonybecause it coul d not hav e been a misde meanor. S ee Co nner v. Sta te , 98-KM-01650- SCT (¶7) ( Miss. 2000) (" A misdemeanor , by definiti on, is ' a criminal off ense punishabl e by a maximu m possible sen tence of co nfinemen t for one yea r or less, fine, or both.' Uniform Circu it and C oun ty Co urt R ule 6. 01"); An derso n v. S tate , 2002-KA-0158 6-COA (¶22) (M iss. App. 2004) ("Th ere are only two broad cat egori es of cr imes according to the g ravi ty of t he offense , feloni es and misdemea nors"). U ltimately, how ever, whether the respondent 's 1997 convi ctionconsti tuted a felony conv icti on is i mmateri al because the tri al court 's termi nation orderindica tes that it o nly consider ed the ev idence of the convi ction when ev aluat ing one of the St ate' s all egat ions that the cour t found the State had failed to prove, i.e. , that the respondent

was depraved

in that he had been criminall y convicted of at l east three f elonie s and at least on e of h is con victions h ad taken place with in five ye ars of th e filin g of th e13

motionto ter

mina t e parent al ri ghts (750 I LCS 50/1( D)(i) ( West 2006)). The court' s order indicates that, when evaluating t he sole al leg ationthat t

he court f

ound the St ate had pr oven, i.e. , that t

he respondent 's repeat ed incar cerat ion had pr evented him fro m disc harging h is parenta l responsibili ties (750 I LCS 50/1( D)(s) ( West 2006)), i t did not co nsid er the 1997 convi ction. Thu s, even if we we re to conclude that the respo nden t's 1997 c onvictio n sho uld not have been cons idered a felony conv icti on, we would conclude that the error was harmless. See Peop le v. N itz , 219 I ll. 2d 400, 410 (2006) ( notingthat an error is harmless whe re "the result wo uld have bee n the same absent the erro r"). The Respondent' s Servic e Plans At the fi tne ss hearing , the S tate produced copi es of ser vic e plans t

hat DCFS had prepared f or the resp ondent, and t he tri al court

admitt ed the pl ans int o evi dence over the
re sp on de nt 's hearsay obj ecti ons. On appeal, t he respondent

contends that th e plans w ere
erroneous ly admit

ted. As the Stat e argue s, however , serv ice pl ans are admi ssibl e pursuant to secti on 2-18(4)( a) of t he Act (705 ILCS 405/2- 18(4)(a ) (West 2006)) , which sets f orth a statutory "var iati on of the common- law 'bus iness r ecords'excepti on to the hearsay rule." In re A. B. , 308 Ill. App. 3d 2 27, 235 (1999). "The admissi on of evi dence is wit hin the sound discre tion of th e trial cou rt, and its ruli ng will be de clare d erroneous only w here there i s ' a clear showing of

abuse of t

hat discretion.' " People v. Alsup , 373 I ll. App. 3d 745, 755 (2007) ( quotingPeople v. Ward , 101 Ill. 2d 443, 456 (1984)) . Here, proper foundati ons for t

he serv ice plans'admissi on were lai d, and the trial co urt did not abuse i ts di scret ion in admi tting the plans i nto ev idence ov er the respondent 's object ions. Moreov er, when findi ng the respo nden t unfit, the trial cou rt only refer red to the ser

vic e plans when ev aluat ing alle gat ions that it determined the S tate had not proven. Thus, e ven if we we re to co nclud e that e videnc e of the plans wa s impro perly admitt ed, we would conclude t hat the error

was harmless . See Nitz , 219 I ll. 2d at 410.14 Viernum' s and Deadmond's Testimony A t the b est- inter ests he aring , the r espondent obj ected t o porti ons of Viernum' s and D ea dm on d's test imony on hears ay grounds and furt her objec ted to Vie rnum' s testimony on the grounds that t

he State had fa iled

to dis close ce rtain report s from her counseling ses sions with Brandon and that she was an unqualified expert. The trialcourt overrul ed these object ions, and on a

ppeal, t he re sp on de nt co nt en ds th at th e c ou rt 's rulings were erroneous. We disagree. As with the admi ssion of evi dence (see Alsup , 373 Ill. App. 3d a t 755), "[w ]hether a witness is sufficie ntly qu alifie d t o test ify as an expert is a mat ter commi tted to the sound discr etionof the t

rialcourt[ ,] whose dete rmina tion on th e issue may be reve rsed o nly if it
cons titute s a c lear abuse of that di scretion" ( In re Beatr iz S. , 267 I ll. App. 3d 496, 499 (1994)). Here, Viernum t esti fiedthat s he had worked for LSS for more t

han two years but had been Brandon' s counsel or for mor e than three year s, hav ing f irst seen him while s he was employedat ano ther so cial s ervi ce a gency. S he indic ated that she couns eled Brandon weekly. She fu rther testifie d that she is a lic ensed clinical counselor , and she obt ained a
m as te r's degree in counseli ng in 1999. Given these quali fications, t he tri al cour t rightfully allowedVier num to test ify as an exp ert competen t to offer insight into Brando n's behaviors and needs, and under the circumstances, the court would have abused its d iscr etion h ad it preclude d her fr om doing s o. See In re Beatr iz S. , 267 I ll. App. 3d at 499- 500. As for the St at e's failure t o disclose allof Viernum's reports re garding h er cou nseling s ession s with Brandon, she stated at

the hearing t

hat she di d not have a ccess to her records from t he social
serv ice agency where she had w orked prior t o joining LS S. Noting that the records'
unava ilability explai ned why the State had not pro duced them, the co urt intimated that there was good cause t o excuse the Stat e' s fai lure t o discl ose (see 166 Il l. 2dR. 213(g) ), andwe findno abuse of i ts di scret ion. We al so no te th at th e t ri al co ur t r ef er re d t o V ie rn um 's15

test imony regarding her first-yea r sessio ns w ith Bra ndo n as "b ackgrou nd in forma tion." W ith respect to the r espondent' s asser tionthat por

tions of Viernum' s and Deadmond's test imony consti tuted e rroneously admitt ed hearsay, that c laim i s beli ed by the re cord. "Hearsay eviden ce is an out-of -court stat ement off

ered to prove the trut

h of the matte r asserted[] and i s genera ll y inadmissible u nless it falls within a recognized exception ." Peop le v. Clouti er , 178 Il l. 2d 141, 154 (1997). "However, an out -of-c ourt st atement not offer ed for the truth of the ma tter asserted is not hearsay ." People v. Malave , 230 I ll. App. 3d 556 , 560 (19 92). Here, when overrul ing th e r es po nd en t's hearsay obj ecti ons, the t rialcourt conf

irmed that the State was "not attempting to prove that whatev erthe child related actua lly occurred," and then the court i ndicat ed that it was admi tting the test imony in quest ion as ev idence of B ra nd on 's "stat e of mind" and as foundati onal ev idence f or the basis of Viernum's opinions. The rule pr ohibiting t

he admiss ion of hear say evi dence is not impli cated where t

he test imony in questi on is off

ered as ev idence of

a chil d's "stat e of mind and e motional stat e" (In re Marriage of Siec k , 78 Ill. Ap p. 3d 204 , 218 (197 9)), an d "[t]he rule is n ot implic ated ** * whe re stateme nts otherwis e inadmi ssibl e as hears ay are used by e xperts for the purpose of explai ning the bases for their opinions" ( People v. Leach , 391 Ill. App. 3d 1 61, 173 (2009)). According ly, the trial c ourt di d not err in ove rrul ing t

he respondent's hears ay objections. The Trial Court 's Dependency Finding The respondent

argues that, because Brandon was const antly be ing c ared for by a kn own relative , the t

rialcourt er

red in adjud ic ating

him a dependent

minor. Noting that altho ugh Shir ley had "phys ical custody" of Brandon, she lack ed the legal a uth ority to m ake decisi ons on his behalf, the St ate maintains t hat the resp ondent's argume nt inco rrectly assumes t

hat "i f a chil d is st ayingwith a rel ativ e[,] he can never be dependent." We agree with the S tate
.16

"Atan a dju dica tory hea ring, a trial court must determine whe ther a minor i s abused, negl ected, or dependent." In reC. M. , 351 I ll. App. 3d 913, 916 (2004). " Dependency need only be establ ished by a pr eponderance of the ev idence," and "[a] tri al co ur t's determination regarding dependency will not be overt urned unless it is manifestly erroneous." In re J.J. , 246 Ill. App. 3d 1 43, 151 (1993). Here, the court

adjudic atedBrandon a dependent mi nor pursuant to section 2-4( 1)(a) of the Act (705 I LCS 405/2- 4(1)(a ) (West 2004)) . Section 2-4( 1)(a) allows f or a findi ng that
a mino r is "dep ende nt" if he is "wi th out

a pare nt , guar di an[ ,] orle ga l c ustodi an. " 70 5 I LCS 405/2-4( 1 )(a) (West 2004). In January 2005, Pat sy died, and the res pondent was arr ested and incarc erate d on drug charges. At that point , Brandon was lef t without a parent or leg al guardi an to care for hi m. The tr ia l c ou rt 's findi ng that Brandon was a dependent minor was therefore "fully su ppo rted" b y the fa cts before it. In reA. D. W. , 278 I ll. App. 3d 476, 482 (1996) (aff

irmi ng th e t ri al co ur t's findi ng of depende ncy where the "evidence showed that both [of the m inor's parents] were inc arcerated at the time o f the hearing"). The Trial Court 's Unfitnes s Finding The respondent

next chal leng es the pr opriet y of the t rialcourt' s finding that he was unfit. A s previou sly no ted, alth ough th e State alle ged tha t the resp ond ent w as un fit on six statutory grounds, the trial c ourt f ound that t

he State had prov en only on e ground, i.e. , that his re peated i ncarcer ation ha s prev entedhim fr om dischar ginghis par ental responsibili ties (750 ILCS 50/1 (D)(s) (W est 2006)). "Because termi nation of parenta l ri ghts is a se rious matter , the Sta te mus t pro ve unfitness by clear

and convincing ev idence." In re Ri ch ard H. , 376 Ill. App. 3d 162, 164-65 (2007). The groun ds tha t will supp ort a findi ng of unf itnes s are f

ound in section 1(D) of t he AdoptionAct (750 ILCS 50 /1(D) (W est 2006)), a nd a lthough section 1(D ) sets forth
numerous grou nds on w hich a pa ren t may be d eem ed u nfit, a n un fitne ss fin din g m ay b e17

entere d if t

here is suffi cient

evi dence to satis fy any one ground

. In re Don ald A. G. , 221 Ill. 2d 234 , 244 (20 06). As a r ev ie wi ng court , we accord the tri al court 's findi ng of par ental unfit ness g reat deferenc e beca use it is in th e b est po sition to m ake factu al findin gs and credib ility assessments. In reD.L. , 326 I ll. App. 3d 262, 269 (2001) . Further more, we willrever se the tri al cour t's decision regardin g paren tal fitness o nly if it is agai nst the mani fest weight of the evi dence. In re D.D. , 196 I ll. 2d 405, 417 (2001). " A decisi on regardin g paren tal fitness is against the ma nifest w eight of th e eviden ce w here th e opp osite co nclus ion is clear ly the proper result." In re D.D. , 196 I ll. 2d at 417. Sect ion 1(D)(s) allows f or a fi nding of

parenta l unf

itnes s und er the f

ollowing circumstances:

"The chil d is i n the temporar y custodyor guar dianship of the Depart ment of Childrenand Family S ervi ces, the parent is i ncarcer ated at

the time t h e peti tion or motionfor t ermination of par ental rights i s fil ed, the par ent has be en rep eated ly incarc erate d as a res ult of crimi nal conv icti ons, and the parent' s repeat ed i n carcer ation has prevent ed the par ent fr om dischar ginghis or he r parent al res ponsibi lities for the child." 750 ILCS 50/1(D)(s) (W est 2006). Sect ion 1(D )(s) reco gnizes th at, des pite a re spon dent's de mon strated in terest in h is chi ld 's welfare, a child needs permanency i n a st able home with a posi tiv e, cari ng rol e model. S ee In re M .P. , 324 Ill. App. 3 d 68 6, 69 3 (20 01). " Secti on 1(D )(s), no dou bt, is ap plicab le in sit uations where the par ent, dur ing t he l ifet ime of t

he chil d, has had re curri ng absence s
caus ed by in carce rations wh ich ha ve preven ted the paren t from p roviding h is or he r child with a stable home environment." In re D.D. , 196 Ill. 2d 405, 4 20 (200 1). Here, at the ti me of the f itnes s heari ng, t

he respondent

had been incarcerat ed for nearly half of Bran don's life and w as further exp ected to rema in incarcerated fo r at least18

another three ye ars. As the trial cou rt indica ted in its o rder fin ding the respo nden t unfit, h is "repeated inc arcerations have p revented him from providing [Brand on] w ith the necessary emotiona l and financ ial support and stability required of a parent." See In re M .P. , 324 Ill. App. 3d 6 86, 6 93 (2 001 ). Th e State pr oved th e existe nce o f the co ndition s set forth in secti on 1(D)(s) by clear and convi ncingevi dence (see In re M .P. , 324 Ill. App. 3d a t 693), and we cannot conclude that t he tri al court' s finding that the respo nden t is unfit be caus e his repeat ed incarc erati on has prevent ed him fr om dischar ginghis par entalresponsibili ties was against the mani fest

weight of the ev idence ( see In re M.M.J. , 313 I ll. App. 3 d 352, 355 (2000)). We also take judici al noti ce of the factthat t he respondent

is not scheduled to be relea sed f

r om federalprison until June 2022, at which time Brandon wil l be 23 year s old. See People v. Young , 355 Il l. App. 3d 317, 321 n.1 (2005) ; http://www .bop.gov/iloc2/LocateInmate.jsp (visited August 25 , 2009). The Trial Court 's Best-Interes ts Finding The respondent

last ly chal leng es the t

rialcourt' s finding that ter minating his parenta l rights was in Br andon' s be st i nteres ts. The S tate mainta ins that it present ed "more than suffi cient

evi dence" to s ustai n the trial c ourt' s deter minati on, and we agree

. The goal s of

a proceedi ng to ter

minate parenta l ri ghts are as f ollows: "(1) t o determine whetherthe naturalparents are unfi t[] and if s o (2) to determine whether adoption will best
serve the child' s needs." I n re M. M. , 156 Ill. 2d 53, 61 (1993). "Once parentalunfit ness has been found in a pr oceedingto ter minate parenta l rights, the p arent's rights m ust yield to the best interes ts of the chil d." In re M .F. , 326 Ill. App. 3d 1110, 1115 (2002). To determi ne the child's best interests, the t rialcourt i s requi red to cons ider t he foll owing factors in t he context of the child' s age and developmental needs:

"(a) the physi cal saf

ety andwelfare of

the chi ld, i ncluding

food, shel ter, health, and c lothing;19 (b) the devel opment of t he chil d's identity; (c) the chi ld' s background and ti es, inc ludingfamilial, c ultural, and religi ous; (d) the child's sen se of a ttachm ents, in cludin g:

(i) wh ere the child a ctually feels love , att achment, and a sense of being valued (as oppose d to wher e adu lts believe th e child shou ld feel su ch love , attach men t, and a sen se of b eing value d); (ii) the ch ild's sense o f secu rity; (ii i) t he chil d's sense of f

amili arit y; (iv ) conti nuity of

affection for

the chi ld; (v) the leas t disrup tive place men t alternative for the c hild; (e) the c hild's wish es an d lon g-term goa ls; (f) the chil d's community ti es, including church, school, and friends; (g) the ch il d's need for per manence[,] which incl udes the chi ld' s need for stability and conti nuity of relationships with par ent fi gures and wit h sib lings and other relatives; (h) the uniq uene ss of eve ry fam ily and child; (i) the ri sks attendant to ent eringand beingin substitut e care; and (j) the preferenc es of the perso ns available to care for t he c hi ld ." 705 I LCS 405/1-3(4 .05) (W est 2006). Other import ant consi derati ons include the nature and le ngth of th e child 's relationsh ip w ith his present

caret akers and t he ef

fect t hat a chang e of plac ement would hav e upon the emotiona l and psycholog ical well-being of t he chil d. In re Aust i n W. , 214 I ll. 2d 31, 50 (2005). The Stat e must pr ove, by a pr eponderance of the ev idence, t

hat the termi nation of parenta l rights is in the child' s best inter ests ( I n re D .W

. , 214 I ll. 2d 289, 315 (2005)) , and "[t] he court' s best-int erest fi nding will not be rev ersed unless it i s against the manifes t weig ht20

of the evidence." In re Veronica J. , 371 Ill. App. 3d 8 22, 831 -32 (200 7). The evi dence prese n ted at th e best- inter ests he aringestabl ished t hat Shirley has provi ded Brandon with an appropriate home for many years. He has become att ached to her and is doin g well so cially and aca dem ically und er h er ca re. H e co ntin ues to im pro ve thr ough counseli ng and is no l onger r equired to atte nd speech the rapy. S hirl ey testifi ed t hat she wanted t o adopt

Brandon and had t

he means to s upport

him. Brandon has had littl e opportunity to att ach to the resp ond ent becaus e of the
re sp on de nt 's repeat ed incar cerat ion. Moreover , if t he respondent

is not scheduled to be relea sed from fe deral p rison u ntil Bra ndo n is 23 years old, h e w ill never be able to
mean ingfully father

or care for Brandon du ringhis mi norit y. We also note t

hat Frey and Vier num both opined t hat Brandon needed a

stabl e home envi ronment wit h a permane n t
c aret aker, w hi ch is w ha t h e n ow ha s w it h S hi rl ey . V ie rn um al so be li ev ed th at B ra nd on 's impro vemen ts were the re sult of his bei ng "i n the same pl ace for s uch a longtime" and that he could regress in the fu ture in the a bsence of s tabil ity. Under the ci rcumst ances, we cannot conclude that the trial cou rt's determin ation that it w as in B rand on's bes t interests to termin ate the res pondent' s parent al ri ghts and to appoi nt DCFS as the guardian wit h t h e power to consent

to an adopt ion was against t he manifes t weig ht of t

he evi dence. The Stat e' s Cross-Appeal The State cr oss-appeals from th e tri al court 's determination t hat the respondent
succ essfully rebutt ed the st atutor y presumpt ion that

he is depr aved i n light of hi s fel ony convic tions (se e 750 ILCS 50 /1(D )(i) (W est 2006)). Because we have al ready det ermined th at the trial court's finding that the responden t is unfit pursuant to section 1 (D)(s) of th e AdoptionAct

(7 50 I LCS 50/1(D )(s) (Wes t 2006)) was not against the manifes t weig ht of t he evi dence, it is unn ecess ary to address the State's argument. "[A] finding of unfit ness on any
one ground obv iate s the need to review other stat utory grounds." In re J.J. , 307 I ll. App. 3d21

71, 76 (1 999). CONCL USI ON For th e forego ing reaso ns, w e affirm the jud gment o f the circ uit cou rt.

Affi rmed.

CH APM AN a nd STE W ART , JJ., concu r.NO. 5-08-0657 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ In re BRAN DON A., a Minor ) Appeal f rom the ) Circuit Co urt of (The People of the State of I llinoi s, ) Frank lin County. ) Petitioner-Appe llee and C ross-Appellant, ) ) No. 05-JA- 40 v. ) ) Timothy A., ) Ho nora ble ) E. K yle Va ntrease, Respo ndent-Ap pellant and C ross-Appellee). ) Judge, presiding.

___________________________________________________________________________________ Rule 2 3 O rder F iled: Septe mber 16, 2009 M otion to Publish Gra nted: October 15, 2009 Opini on Fi led : October 15, 2009

___________________________________________________________________________________ Justi ces : Hon orable Jame s M . W exstten, P.J.,

Honorable Meliss a A. Chapman, J., and Hon orable B ruce D . Stewart, J., Concur

___________________________________________________________________________________ Attorn ey Paula Newcomb, 503 Public S quare, P.O. Box 753, Benton, IL 62812 for Appe llant

___________________________________________________________________________________ Attorn eys Hon. Tom Dinn, Stat e' s Att orney, Franklin County Court house, 202 West Main, for Benton , IL 62812; Patrick D elfino, Director, Steph en E. N orris, Depu ty Director, Appell ee Sharo n Shan ahan , Staff Attorn ey, O ffice of th e State's Attorn eys A ppella te

Pr os ec ut or , 7 30 E. Illin oi s H igh w ay 15 , Su ite 2, P. O . B ox 22 49 , M t. V er no n, IL 62864

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