Defending Against the Substantive Grounds for

Jessica Bryar
Peter Parry
Part I
The Parent Who Failed
Grounds “b” “k” “m”
Part II
The Broken Parent
“d” “e” and “g”
“f” and “i”
“r” and “s”
Any time left for Best Interests?
Ground “b”
“Failure to maintain a reasonable degree of
interest, concern or responsibility as to the
child’s welfare.”
• Vague terms
• Measure parent’s efforts, not success
• Visits, phone calls, letters
Actions and statements of others hindering or
discouraging visitation
Coping with other problems
Letters, telephone calls, gifts?
In re Adoption of Syck, 138 Ill.2d 255 (1990)
Ground “b” is not confined to visiting. . .
“Noncompliance with an imposed service plan, a
continued addiction to drugs, a repeated failure
to obtain treatment for an addiction, and
infrequent or irregular visitation with the child
have all been held to be sufficient evidence
warranting a finding of unfitness under
subsection (b).”
In re Jaron Z., 348 Ill.App.3d 239 (1st Dist. 2004)
Ground “k”
“Habitual drunkenness or addiction to drugs,
other than those prescribed by a physician,
for at least one year immediately prior to the
commencement of the unfitness
The Illinois Supreme Court’s test for “k”:
In the one year immediately prior to the filing of the
TPR petition, the parent:
Had a ‘fixed habit” of drinking (or using non-prescribed
drugs) to “excess.” Excess means that the parent
“suffered significant impairment in her ability to
supervise and parent her children due to the
consumption of alcohol.” And “used alcohol so
frequently as to show an inability to control the need or
craving for it.”
In re J.J., 201 Ill.2d 236 (2002)
This was enough evidence to terminate under
Ground “k”:
•Drank 6 to 12 beers every day for the first two
months of the one year period.
•Tested positive for cocaine twice during middle
of the one year period.
In re Precious W., 333 Ill.App.3d 893 (3rd Dist.,
Ground “m”
Failure by a parent
(i) to make reasonable efforts to correct the conditions
(that led to the removal of the child) during any 9month period after adjudication, OR
(ii) to make reasonable progress toward the return of the
child during any 9-month period after adjudication.
Failure to make reasonable progress includes the parent’s
failure to substantially fulfill her obligations under the
service plan and correct the conditions, if those services in
the service plan “were available.”
Ground “m(i)” is easy to prove – or easy to
defend. It’s subjective.
Ground “m(ii)” is objective – follow the service
What is “reasonable progress?”
“Demonstrable movement toward the goal of
In re C.N., 196 Ill.2d 181 (2001).
Reasonable progress is measured against the
conditions that triggered the child’s removal AND
“other serious conditions” that existed at the time of
the removal, but were not discovered until after
temporary custody. The serious conditions are those
which could give rise to a finding of abuse or neglect.
Reasonable progress is measured by the parent’s
compliance with service plans and the court’s
directives, related to the conditions that triggered the
child’s removal and the other later-discovered serious
The focus in evaluating a parent’s
progress toward reunification
remains “on the fitness of the
parent in relation to the needs of
the child.”
The Imprisoned Parent and Ground “m”
Incarceration does not toll the 9-month period.
In re J.L., 236 Ill.2d 329 (2010).
However, were the services “available?”
First 6 months in prison – Took psychotropic
medication, completed 4-day anger management
class, completed prestart program (academic
courses), eight sessions of parenting classes. Did
not take a domestic violence course.
Last 3 months out of prison – Stopped taking
psychotropic medication. Visits did not go well.
Ground “m” and the Privilege Against Self-Incrimination
Ground “m” and the Privilege Against Self-Incrimination
The General Rule:
The court may not compel a parent to admit to a
crime (e.g., abuse) that could be used against her in a
subsequent criminal proceeding by threatening TPR.
In re A.W., 231 Ill.2d 92 (2008); In re P.M.C., 387
Ill.App.3d 1145 (5th Dist. 2009)
A parent refuses to admit to the abuse in therapy.
So, the parent “fails to complete” the therapy.
Then, the parent’s refusal and failure are used as
evidence in a Ground “m” case.
Held: The parent’s refusal and failure cannot be used
against the parent in the TPR trial IF the parent can
show that her admission was required by the court or
the therapist and show that there was no way to
complete “meaningful” therapy without the admission.
The court and service plan can direct the parent to
engage in therapy but may not compel therapy which
requires the parent to admit to a crime.
Grounds “d”, “e” and “g”
“d” – “Substantial neglect . . . If continuous or repeated.”
“e” – “Extreme or repeated cruelty to the child.”
“g” – “Failure to protect the child from conditions within
his environment injurious to the child’s welfare.”
Can a parent, who has made reasonable efforts and
reasonable progress under “m,” nevertheless be found
unfit under Ground “d” (or “e” or “g”)?
In re D.F., 201 Ill.2d 476 (2002)
Grounds “f” and “i”
Ground “f”
2 or more findings of physical
abuse in Juvenile Court; OR
Convicted or NGRI resulting from
death of any child by physical abuse; OR
finding of physical abuse-death of
any child in Juvenile Court.
THEN: rebuttable presumption, to be
overcome only by clear and convincing
evidence, that the parent is unfit.
Ground “i”
What is “depravity?” “An inherent deficiency of moral sense and
rectitude. . . . Acts constituting depravity must be of sufficient
duration and of sufficient repetition to establish a deficiency in
moral sense and either in inability or an unwillingness to conform
to accepted morality.”
In re J.A., 316 Ill.App.3d 553 (1st Dist. 2000)
The “three strikes” provision: Three prior felony convictions, one
of which occurred within 5 years of the filing of the TPR petition.
THEN: rebuttable presumption that the parent is depraved and
unfit – to be overcome by only clear and convincing evidence?
Grounds “r” and “s” – The Incarcerated Parent
Ground “r”
The parent is incarcerated at the time the TPR is filed,
prior to incarceration the parent had little or no
contact with the child or provided little or no
support, and the parent’s incarceration will prevent
the parent from discharging her “parental
responsibilities for the child for a period in excess of 2
years after” the filing of the TPR.
“little to no contact” = “small in number” or “lacking
Father unfit under “r”:
Had not seen children in the three years prior to
the TPR trial; had been out of prison only 10
months during the preceding 6 years; had not
requested visits in prison; had not provided any
support, financial or otherwise.
In re S.R., 326 Ill.App.3d 356 (2nd Dist. 2001).
Ground “s”
The parent is incarcerated at the time the TPR is filed,
the parent has been “repeatedly incarcerated,” and the
parent’s “repeated incarceration has prevented the
parent from discharging his or her parental
responsibilities for the child.”
An incarceration occurring before the child is born may
be used against the parent. So, State need only prove
one incarceration during child’s lifetime.
In re D.D., 196 Ill.2d 405 (2001).
What are the “parental responsibilities?”
The “capacity to provide financial, physical
and emotional support for the child.”
In re D.D. , 196 Ill.2d 405 (2001)(father
imprisoned nearly his entire adult life
“acquired no appropriate life skills” and
showed an “inability to conform to societal
Assessing impact of repeated incarceration on
ability to parent does not end at filing of TPR: the
court must consider the ability to parent from
prison to the time the TPR trial is conducted.
In re Gwynne P. , 215 Ill.2d 340 (2005).
Because Gwynne’s mother never parented her,
because Gwynne has special needs her mother is
not trained to handle, and because the mother has
no high school diploma and no job skills, she is
unfit under “s.”
Ground “p”
“Inability to discharge parental responsibilities
supported by competent evidence from a
psychiatrist, licensed clinical social worker, or
clinical psychologist of mental impairment,
mental illness or an intellectual disability . . . or
developmental disability . . . and there is
sufficient justification to believe that the inability
to discharge parental responsibilities shall extend
beyond a reasonable time period.”
What are “parental responsibilities” under
Ground “p”?
The same as in Ground “s”?
Meeting the child’s physical, material,
moral, mental and emotional needs.
What to do when the State requests a pretrial mental health examination of the
Ground “t”
1) Child in this TPR was born + for controlled substance.
2) One prior child was born + and adjudicated DEI.
3) After that prior child was born, mother had the
“opportunity to enroll in and participate in a clinically
appropriate substance abuse counseling, treatment
and rehabilitation program.”
Yes, the burden of proof is still “clear and convincing
evidence,” yet it appears that the State may prove up
the entire case with certified and delegated medical
In re Jamarqon C. , 338 Ill.App.3d 639 (2nd Dist. 2003).

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