No. 2--03--0883

The respondent, Elunder D., appeals from the July 23, 2003, order of the circuit court ofWinnebago County terminating her parental rights to her minor child, J'America B. On appeal, therespondent contends that the trial court erred in: (1) denying her motion to strike the part of theState's petition to terminate her parental rights that referred to the death of her seven-month-oldcousin; (2) finding that she is depraved; and (3) failing to admonish her properly. We affirm.

On February 7, 1995, the respondent, who was 10 years old at the time, was adjudicateddelinquent (705 ILCS 405/5--3(1) (West 1994)) for having committed the offenses of aggravatedbattery (720 ILCS 5/12--4(a) (West 1994)), aggravated criminal sexual assault (720 ILCS 5/12--14(b)(2)(i) (West 1994)), and involuntary manslaughter (720 ILCS 5/9--3(a) (West 1994)), againsther seven-month-old cousin. The offenses of aggravated battery and aggravated criminal sexualassault were based on the respondent's conduct in inserting a popsicle stick into the anus of her seven-month-old cousin. The offense of involuntary manslaughter was based on the respondent's conductin smothering her cousin, causing his death. On September 1, 1998, the State filed a neglect petitionalleging that the respondent's daughter, J'America B., who had been born four days earlier to the 13-year-old respondent, was in an environment that was injurious to her welfare. The trial court grantedthe State's petition and entered a temporary custody order transferring guardianship and custody ofJ'America to the Department of Children and Family Services (DCFS).

On April 14, 1999, J'America was declared a ward of the court and placed in the legal custodyand guardianship of DCFS. On the same date, the State filed a petition to terminate the respondent'sparental rights. The petition alleged two counts: (1) depravity in that the respondent had beenconvicted of the offense of aggravated criminal sexual assault of her seven-month-old cousin (750ILCS 50/1(D)(i)(5) (West 1998)); and (2) depravity in that the respondent had placed a popsicle stickin the anus of a seven-month-old child.

A fitness hearing was held on September 7, 2000. After taking judicial notice of therespondent's delinquency adjudications, the trial court held that the conduct involving the popsiclestick created a presumption of unfitness under the Adoption Act (750 ILCS 50/1(D)(i)(5) (West2000)). This presumption shifted to the respondent the burden of proof and the burden of goingforward with the evidence on the issue of fitness with respect to count I. At the conclusion of thefitness hearing, the trial court found that the respondent had not overcome the presumption ofunfitness with respect to count I. However, with respect to count II, the trial court found that theState had not "adequately proven that a 10-year-old under the [respondent's] circumstances wouldhave the necessary state of mind or the ability to form the requisite intent to establish depravity." Accordingly, the trial court dismissed count II. Following a best interests hearing, the trial courtterminated the respondent's parental rights.

On direct appeal, this court vacated the trial court's judgment that the respondent was unfit. See In re J'America B., No. 2--01--0586 (2001) (unpublished order under Supreme Court Rule 23). This court explained that the trial court erred when it found that, under the Adoption Act, apresumption of unfitness arose from the respondent's adjudication of delinquency for aggravatedcriminal sexual assault of a child. This court explained that the statutory presumption of unfitnessapplies only to a criminal conviction, not an adjudication of delinquency. As such, this court reversedthe order terminating the respondent's parental rights and remanded the cause for further proceedings. Following remand, the State filed a series of amended petitions to terminate the respondent'sparental rights. The fourth amended petition contained four counts on which the State alleged thatthe respondent was unfit to be a parent. Count IV of the fourth amended petition, the only count onwhich the respondent was found unfit, alleged that the respondent was depraved due to her (1)continuing propensity to steal; (2) disregard for human life, which in one case resulted in the deathof a child and in another resulted in the delay of needed medical care; and (3) repeated violations ofher probation terms. The State indicated that it would present evidence that the respondent wasresponsible for the suffocation and death of her seven-month-old cousin. The respondent's counselmoved to strike the portion of the State's petition that referred to the death of the respondent's seven-month-old cousin, on the grounds of collateral estoppel and res judicata. The respondent's counselargued that the State should not be allowed to present evidence that could have been the basis for therespondent's alleged depravity at the first fitness hearing. The trial court denied the respondent'smotion to strike.

Between April 4 and May 29, 2004, the trial court conducted a fitness hearing on the State'sfourth amended petition to terminate the respondent's parental rights. At the hearing, Bobby Smithtestified that he is a loss prevention associate at a Kohl's department store in Rockford, Illinois. OnFebruary 2, 2003, he caught the respondent shoplifting from the store and he notified the police. Richard Cunningham, a Rockford police officer, testified that he was called to the Kohl's departmentstore on February 2, 2003, due to a shoplifting complaint. He arrested the respondent for felonyretail theft.

Retired Rockford police officer Dennis Woody testified that on August 3, 1994, he took astatement from the respondent concerning the death of her seven-month-old cousin. In thisstatement, which was admitted into evidence, the respondent indicated that she was caring for heryoung cousin. She fed him some cereal and gave him a bath. Thereafter, she gave the baby a bottleand put him on her bed. She decided to eat a grape popsicle and brought the popsicle stick back toher bedroom. She discovered that the baby had "pooped" and some of it was on her bed. Shecleaned up the mess. She said she became angry thinking about how she had been abused by heruncle and so she took the popsicle stick and put it in her cousin's anus. She said the baby whined alittle but then went back to sleep. She said she tried to get the popsicle stick back out, but it was toofar in.

Officer Woody further testified that the autopsy report indicated that the insertion of thepopsicle stick was not the cause of the baby's death. Rather, the report indicated that the baby's deathwas due to asphyxiation from suffocation by smothering. He further testified that he had asked therespondent about this, but she denied smothering the baby.

The respondent's probation officer, Brenda Johnson of the Winnebago County JuvenileProbation Department, testified that the respondent was put on probation in February 1995 and wasdischarged from probation in January 2002. Johnson testified that the respondent received sex-abusevictim and sex offender services through Family Advocate and residential services through The Milland Indian Oaks Academy. Johnson testified that she did not believe that the respondent wasprogressing with the counseling treatment at The Mill, so the respondent was transferred to IndianOaks for a higher level of sex offender treatment. Johnson further testified that during counseling,the respondent took responsibility for the death of her baby cousin. However, the respondent did notprovide details surrounding her responsibility. The respondent violated her probation in 1996 whenshe was charged with felony retail theft. She spent 3 days in detention and was given 20 hours ofpublic service work. In January 1998, a rule to show cause was filed. The respondent was placedin detention based on reports from The Mill and Family Advocate of curfew violations, truancy,stealing her mother's car, and unsupervised contact with her brother. Finally, Johnson testified thatalthough the respondent was guilty of serious probation violations, her behavior was generally goodwhile she was in residential care. As such, Johnson had recommended successful discharge. However, the trial court did not terminate the respondent's probation successfully because therespondent, while still a minor, became pregnant twice while on probation.

The respondent testified as an adverse witness. Despite the adjudication of delinquency, theevidence of the admissions she had made in sex offender therapy, and the circumstantial evidence ofher guilt, the respondent denied that she had smothered her baby cousin to death. She admittedviolating her probation by stealing her mother's car, staying out all night, and not going to school. However, she refused to answer questions about the felony charges of retail theft. She testified thatshe did not know whether she intended to maintain her relationship with her husband. Her husband was in prison for causing multiple injuries to a three-month-old baby who was living with therespondent and her husband. The respondent was not sure if her husband had hurt the baby. Herhusband told her that the baby was injured as a result of falling off the bed. Finally, she testified thatshe did what she could for the baby; she looked for the mother to get medical help for the baby. When she found the baby's mother, the mother did not want to take the baby to the hospital. Consequently, the respondent did not take the baby to the hospital until the next day.

Deborah McKinney, a DCFS investigator, testified that she had investigated the injuries tothe three-month-old baby who was in the care of the respondent and her husband. McKinneyreceived a call concerning the baby on September 17, 2002. After an investigation of the baby'sinjuries, her report indicated that the respondent's husband was responsible for several fractures tothe baby, including a head fracture and a significant femur fracture. Her report was unfounded as tothe respondent. Originally, McKinney had initiated a safety plan that barred the respondent fromcontact with her second child. McKinney testified that the respondent's second child, a boy, wasunder the guardianship of his paternal grandparents. However, the grandparents regularly allowedthe respondent and her husband to provide care for their son. McKinney testified that the respondentcomplied with the safety plan and that contact between the respondent and her son was reestablishedonce the investigation was completed.

Paul White, a private clinical social worker on contract with DCFS who provided services tothe respondent from September 1998 to October 2002, testified that the respondent successfullycompleted the residential treatment program at The Mill. Thereafter, the respondent was sent toIndian Oaks for further residential treatment. We note that this testimony contradicted the testimonyof the respondent's probation officer, Brenda Johnson, who testified that the respondent wastransferred to Indian Oaks because she was not progressing with the treatment at The Mill. IndianOaks specializes in treating juvenile sex offenders and victims of sexual abuse. White further testifiedthat his counseling with the respondent pertained to her visits with J'America and the stress associatedwith the petition to terminate her parental rights. His assessment of the respondent's maturity andparenting skills was positive. He believed that the respondent had sufficient counseling to prepareher to be a fit mother. Furthermore, based upon his extensive hours of counseling the respondent andseeing her interaction with J'America, White did not believe that the respondent posed a risk tochildren. On cross-examination, White acknowledged that the best indicator of the respondent'sproductivity as an adult was not what she had told her counselors but, rather, how she was actuallyliving her life.

The respondent's grandmother testified that the night that the respondent's seven-month-oldcousin had died, the respondent had carried him to her. At first he looked alright, but then shenoticed that he was not breathing properly. The child had a history of breathing problems, so shecalled the paramedics. The grandmother testified that she was aware that the respondent had beena victim of sex abuse. The respondent started receiving counseling services two years before hercousin's death. Finally, she testified that she was not aware of any other incidents that would causeher to fear that the respondent would harm other children.

The respondent testified on her own behalf. She testified that she was the mother ofJ'America. She also testified that she had been sexually abused by a relative. The abuse started whenshe was six or seven years old and it occurred possibly more than 20 times. Following the death ofher seven-month-old cousin, she lived in different placements, including detention, foster care, relativeplacement, home, and residential schooling. She was on probation until she was 18 years old. Shebelieved that she had made a lot of progress since the death of her cousin, and she believed that shehad provided the best for the three-month-old who was in her care. She testified that she had asupport system in place and could thus provide proper care for her children. Finally, in response toquestions concerning the death of her seven-month-old cousin, she acknowledged that she was alonewith him on the night of his death; however, she had no explanation for his suffocation.

On June 5, 2003, the trial court dismissed the first three counts of the State's fourth amendedpetition to terminate the respondent's parental rights. However, as to count IV, the trial court foundthat the State had demonstrated by clear and convincing evidence that the respondent was depraved. Following a best interests hearing, the trial court determined that it was in J'America's best intereststhat the respondent's parental rights be terminated. The respondent filed a timely notice of appeal.

The respondent's first contention on appeal is that the trial court erred in denying her motionto strike the portion of the State's petition alleging that she was responsible for the death of her seven-month-old cousin. Specifically, the respondent argues that because this issue could have beenlitigated in a prior proceeding to terminate her parental rights, the State was barred by res judicataand collateral estoppel from relitigating this issue. As such, the respondent contends that the Stateis barred from arguing that she is depraved on this basis.

A trial court's determination that a parent is unfit is entitled to great deference and will notbe disturbed unless it is contrary to the manifest weight of the evidence or constitutes a clear abuseof discretion. In re Kenneth F., 332 Ill. App. 3d 674, 677 (2002). Nevertheless, questions of law arereviewed de novo. Kenneth F., 332 Ill. App. 3d at 677. The applicability of the doctrines of resjudicata and collateral estoppel constitutes a question of law.

"The doctrine of res judicata provides that a final judgment rendered by a court of competentjurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, asto them, constitutes an absolute bar to a subsequent action involving the same claim, demandor cause of action." Nowak v. St. Rita High School, 197 Ill. 2d 381, 389 (2001).

For the doctrine of res judicata to apply, the following three requirements must be satisfied: (1) a finaljudgment on the merits rendered by a court of competent jurisdiction; (2) an identity of causes ofaction; and (3) an identity of parties or their privies. Nowak, 197 Ill. 2d at 390. Different claims areconsidered part of the same cause of action if they arise from a single group of operative facts. Terryv. Watts Copy Systems, Inc., 329 Ill. App. 3d 382, 387 (2002). However, exceptions to theapplication of res judicata exist (Terry, 329 Ill. App. 3d at 388), and the doctrine will not be appliedwhere it would be fundamentally unfair to do so (Nowak, 197 Ill. 2d at 390).

Furthermore, res judicata is an equitable doctrine designed to prevent the multiplicity oflawsuits between the same parties and involving the same facts and the same issues. Torcasso v.Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490-91 (1993). Res judicata should be applied onlyas fairness and justice require, and only to facts and conditions as they existed at the time judgmentwas entered. Carey v. Neal, Cortina & Associates, 216 Ill. App. 3d 51, 64 (1991). In any event, itis well established that res judicata should not be applied strictly in custody and visitation matters. In re Marriage of Fields, 283 Ill. App. 3d 894, 901-02 (1996). Courts should be cautious indetermining when to apply res judicata in child custody cases. In re Marriage of Weaver, 228 Ill.App. 3d 609, 616 (1992). Res judicata should not be strictly applied to bar evidence when the mostimportant consideration is the welfare of the child. Weaver, 228 Ill. App. 3d at 616.

The doctrine of collateral estoppel applies when a party participates in two consecutive casesarising on different causes of action and some controlling fact or question material to thedetermination of both causes has been adjudicated against that party in the former suit by a court ofcompetent jurisdiction. Nowak, 197 Ill. 2d at 389-90. The adjudication of the fact or question in thefirst cause will be conclusive of the same question in the later suit, but the judgment in the first suitoperates as an estoppel only as to the point or question actually litigated and determined, and not asto other matters which might have been litigated and determined. Nowak, 197 Ill. 2d at 390. Theminimum requirements for the application of collateral estoppel are: (1) the issue decided in the prioradjudication is identical to the one presented in the suit in question; (2) there was a final judgmenton the merits in the prior adjudication; and (3) the party against whom estoppel is asserted was aparty or in privity with a party to the prior adjudication. Nowak, 197 Ill. 2d at 390.

Application of the doctrine of collateral estoppel must be narrowly tailored to fit the precisefacts and issues that were clearly determined in the prior judgment. Nowak, 197 Ill. 2d at 390-91. Collateral estoppel is an equitable doctrine. Nowak, 197 Ill. 2d at 391. Even where the thresholdelements of the doctrine are satisfied, collateral estoppel must not be applied to preclude parties frompresenting their claims or defenses unless it is clear that no unfairness results to the party beingestopped. Nowak, 197 Ill. 2d at 391. In deciding whether the doctrine of collateral estoppel isapplicable in a particular situation, a court must balance the need to limit litigation against the rightof a fair adversary proceeding in which a party may fully present his case. Nowak, 197 Ill. 2d at 391. In determining whether a party has had a full and fair opportunity to litigate an issue in a prior action,those elements which comprise the practical realities of litigation must be examined. Nowak, 197 Ill.2d at 391.

Based on these principles, we do not believe that the doctrines of res judicata and collateralestoppel are applicable in the present case. First, the doctrines do not apply because the trial court'sdecision at the September 7, 2000, fitness hearing was not a final judgment on the merits. Althoughthe trial court determined that the State did not prove depravity under count II at that point in time,that does not, in itself, render the order final. In re A.H., 207 Ill. 2d 590, 594 (2003). The possibilitystill exists that the rights of a parent could be terminated in the future. A.H., 207 Ill. 2d at 595. Furthermore, a judgment is final if it determines the litigation on the merits so that, if affirmed, theonly thing remaining is to proceed with the execution of the judgment. In re Alexis H., 335 Ill. App.3d 1009, 1012 (2002). In the present case, the appellate court did not affirm the trial court'sjudgment. Rather, the appellate court vacated the judgment finding the respondent unfit, reversedthe order terminating her parental rights, and remanded the case for further proceedings. As such,the appellate court mandate directed the trial court to conduct further proceedings. Consequently,the judgment of the trial court was not a final judgment on the merits for the purposes of res judicataand collateral estoppel.

Moreover, courts have generally held that the doctrines of res judicata and collateral estoppelcannot be used to bar evidence that was or could have been considered at a previous terminationproceeding, when a second petition to terminate parental rights is supported by evidence of activitiesthat occurred after the first hearing. See People ex rel. J.R., 711 P.2d 701, 703 (Colo. App. 1985)(res judicata does not prohibit State from filing subsequent petition to terminate parental rights whenadditional facts arise after first petition is denied); In re Juvenile Appeal, 83--DE, 190 Conn. 310,318, 460 A.2d 1277, 1282 (1983) (the doctrines of collateral estoppel and res judicata ordinarilyafford very little protection to a parent who has once successfully resisted an attempt to terminate hisrights to a child); In re A.S., 12 Kan. App. 2d 594, 601, 752 P.2d 705, 711 (1988) (a trial court mustbe free to examine all of the circumstances, evidence, prior facts, prior orders, and other relevantinformation in order to arrive at a correct conclusion concerning parental fitness); In re V.B., 220Neb. 369, 372, 370 N.W.2d 119, 122 (1985) (when a second termination proceeding is not itselfbarred, the proof is not limited by res judicata or collateral estoppel principles to facts or evidencethat was not considered in, or that came into being after, the first proceeding); State ex rel. Juvenile Department v. Newman, 49 Or. App. 221, 226, 619 P. 2d 901, 904-05 (1980) (if new facts justifythe filing of a new termination proceeding, evidence and facts that were or could have beenconsidered in the earlier proceeding can be considered or reconsidered in the later one). In Illinois,it has been held that facts underlying a previous juvenile adjudication may be presented at asubsequent juvenile proceeding. In re J.R., 130 Ill. App. 3d 6, 9 (1985). In J.R., despite the mother'scontention that such evidence was barred by res judicata, the reviewing court held that the trial courtcould consider the evidence underlying a previous neglect petition cumulatively to evaluate whether,based on that and further evidence, the parents were unfit. J.R., 130 Ill. App. 3d at 9-10.

Accordingly, any evidence that was or could have been considered at the respondent's firstfitness hearing could properly be considered by the trial court at her second fitness hearing. Theevidence underlying the issue of depravity at the first fitness hearing was necessary for the trial court'sfull understanding of the evidence at the second fitness hearing and also gave the trial court a properhistorical context in which to consider if the respondent was fit to be a parent. See J.R., 130 Ill. App.3d at 9. Furthermore, at the second fitness hearing, the State presented significant additionalevidence of the respondent's depravity that was not available at the first fitness hearing. Thatevidence included the respondent's neglect in failing to obtain prompt medical care for a three-month-old baby who had been left in her care in September 2002, and her continued propensity to steal, asreflected in the felony retail theft incident of February 2003. This additional evidence was properlyconsidered along with the previous evidence of the respondent's depravity. The trial court did notattempt to reevaluate whether the respondent was unfit due to circumstances that were present at thefirst fitness hearing. Rather, the trial court considered the previous evidence cumulatively to evaluatewhether, based on that and further evidence, the respondent was an unfit parent. As such, theevidence was properly before the trial court. See J.R., 130 Ill. App. 3d at 10.

Furthermore, we decline to apply the doctrines of res judicata and collateral estoppel in thepresent case because we believe that it would be fundamentally unfair. See Nowak, 197 Ill. 2d at390-91. J'America has been in the care of the same foster family for more than five years. It was inthe best interests of the child that the trial court be able to consider the cumulative evidence indetermining whether the respondent was fit to be a parent. It is well established that res judicatashould not be strictly applied to bar evidence in child custody cases when the most importantconsideration is the welfare of the child. See Weaver, 228 Ill. App. 3d at 616. Furthermore,collateral estoppel must not be applied unless it is clear that no unfairness results to the party beingestopped. See Nowak, 197 Ill. 2d at 391. Accordingly, for all these reasons, the doctrines of resjudicata and collateral estoppel should not be applied in the present case.

The respondent's second argument on appeal is that there was insufficient evidence to proveher parental unfitness on the basis of depravity. The proper role of a reviewing court is to determinewhether the trial court's finding of unfitness was against the manifest weight of the evidence. In reD.F., 201 Ill. 2d 476, 498 (2002). A determination will be found to be against the manifest weightof the evidence only if the opposite conclusion is clearly evident or the determination is unreasonable,arbitrary, or not based on the evidence presented. D.F., 201 Ill. 2d at 498. Under a manifest weightof the evidence standard, we give deference to the trial court as the finder of fact because it is in thebest position to observe the conduct and demeanor of the parties and the witnesses and has a degreeof familiarity with the evidence that a reviewing court cannot possibly obtain. D.F., 201 Ill. 2d at498-99. A reviewing court, therefore, must not substitute its judgment for that of the trial courtregarding the credibility of witnesses, the weight to be given the evidence, or the inferences to bedrawn. D.F., 201 Ill. 2d at 499.

Pursuant to the Adoption Act (750 ILCS 50/0.01 et seq. (West 2000)), a respondent'sparental rights may be terminated if he or she is an unfit person. 750 ILCS 50/1(D) (West 2000). An "unfit person" means any person whom the trial court shall find to be unfit to have a child, withoutregard to the likelihood that the child will be placed for adoption. 750 ILCS 50/1(D) (West 2000). A parent may be found unfit if he or she is found "depraved." 750 ILCS 50/1(D)(i) (West 2000). The Illinois Supreme Court has defined depravity as " 'an inherent deficiency of moral sense andrectitude.' " In re J.A., 316 Ill. App. 3d 553, 561 (2000), quoting Stalder v. Stone, 412 Ill. 488, 498(1952). The " ' "[d]epravity of a parent may by shown by a series of acts or a course of conduct thatindicates a moral deficiency and an inability to conform to accepted morality." ' " In re Shanna W.,343 Ill. App. 3d 1155, 1166 (2003), quoting In re S.H., 284 Ill. App. 3d 392, 396 (1996), quotingIn re Dawn H., 281 Ill. App. 3d 746, 757 (1996). In order to establish unfitness, clear and convincingevidence of depravity must be shown to exist at the time of the petition or at the time of the decreeof adoption. In re Adoption of Kleba, 37 Ill. App. 3d 163, 166 (1976). Furthermore, the actsconstituting depravity must be of sufficient duration and of sufficient repetition to establish adeficiency in moral sense and either an inability or an unwillingness to conform to accepted moralstandards. Kleba, 37 Ill. App. 3d at 166. In determining depravity, the trier of fact is required toclosely scrutinize the character and credibility of the parent. In re Perez, 173 Ill. App. 3d 922, 937(1988). Finally, because each case involving parental unfitness is sui generis, courts do not makefactual comparisons to other cases. In re J.A., 316 Ill. App. 3d 553, 561 (2000).

The determination of a trial court that a respondent is depraved is against the manifest weightof the evidence only if the opposite conclusion is clearly evident. See D.F., 201 Ill. 2d at 498. In thepresent case, the determination of the trial court is not against the manifest weight of the evidencebecause the opposite conclusion is not clearly evident. The evidence at trial revealed that therespondent was adjudicated delinquent for the offenses of involuntary manslaughter, aggravatedbattery, and aggravated criminal sexual assault. The adjudication of delinquency for involuntarymanslaughter (720 ILCS 5/9--3(a) (West 1994)) was based on a determination beyond a reasonabledoubt that the respondent had recklessly caused the death of her seven-month-old cousin. Theadjudications of delinquency for aggravated battery (720 ILCS 5/12--4(a) (West 1994)) andaggravated criminal sexual assault (720 ILCS 5/12--14(b)(2)(i) (West 1994)) were based on therespondent's conduct of pushing a popsicle stick into the anus of her seven-month-old cousin.

Furthermore, the record also revealed that a three-month-old child in the respondent's carehad suffered multiple injuries, including a head fracture and a significant femur fracture. At the timeof the child's injuries, September 2002, the respondent was 18 years old. Although the DCFSinvestigation indicated the respondent's husband, the evidence showed that the respondent was awareof the child's injuries and yet failed to take the child for immediate medical attention. Additionally,the evidence showed that the respondent had a continuing propensity to steal, manifested in twofelony retail theft offenses, one as recently as February 2003.

Finally, the respondent's probation officer testified that the respondent was not progressingwith the counseling treatment at The Mill; consequently, the respondent was transferred to IndianOaks for a higher level of sex offender treatment. The probation officer also testified that, while therespondent was on probation, the respondent was placed in detention based on reports of curfewviolations, truancy, and stealing her mother's car. Based on these reports, and the fact that therespondent became pregnant twice while she was a minor, the respondent did not receive a successfuldischarge from her term of probation.

Depravity of a parent may by shown by a course of conduct that indicates a moral deficiencyand an inability to conform to accepted moral standards. See In re Shanna W., 343 Ill. App. 3d at1166. At age 10, the respondent was adjudicated delinquent for the offenses of involuntarymanslaughter, aggravated battery, and aggravated criminal sexual assault. The respondent was placedon probation for eight years. During her probation, the respondent was guilty of numerous probationviolations, including curfew violations, truancy, and stealing her mother's car. Additionally, duringher probation, the respondent was transferred to a second treatment facility because she was notprogressing at the first treatment facility. At age 13, the respondent gave birth to J'America andbecame an unwed mother. At some point prior to turning 18 years old, the respondent gave birth toa second child. The respondent did not have custody of the second child. Rather, the child was underthe legal guardianship of his paternal grandparents. Furthermore, when she was 18 years old, therespondent failed to provide necessary medical care for a three-month-old child left in her care. Finally, the respondent had committed felony retail theft on two occasions. The trial court wasclearly in the best position to scrutinize the character and credibility of the respondent. See Perez,173 Ill. App. 3d at 937. As such, based on the foregoing facts, we cannot say that the order of thetrial court finding the respondent depraved was against the manifest weight of the evidence or thatthe opposite conclusion was clearly evident.

In so ruling, we must address the dissent's contention that a finding of depravity based on the1995 delinquency adjudications circumvents the purpose of the Juvenile Court Act of 1987 (705ILCS 405/1--1 et seq. (West 2002)). In In re J.W., 204 Ill. 2d 50, 69 (2003), our supreme courtexplained that, effective January 1, 1999, the purpose and policy section of the Juvenile Court Actwas amended. The amendments represent a fundamental shift in the purpose and policy of theJuvenile Court Act from the singular goal of rehabilitation to the inclusion of the overriding concernsof protecting the public and holding juveniles accountable for violations of the law. In re J.W., 204Ill. 2d at 69. Although the respondent was adjudicated delinquent in 1995, the shift in the purposeof the Juvenile Court Act occurred while she was still on probation and is still relevant to how weview her juvenile offenses. As such, given that one purpose of the Juvenile Court Act is to holdjuveniles accountable for their violations of the law, we do not believe that considering therespondent's delinquency adjudications in making a determination of her parental unfitness, based ondepravity, is at odds with the purpose and policy of the Juvenile Court Act. Furthermore, despite thedissent's contention that the respondent is being penalized for acts committed when she was 10, wenote that the purpose behind a decision to terminate one's parental rights is not a matter ofpunishment. Rather, we are concerned with one's ability to be a fit parent and with the best interestsof the child.

The dissent also questions how an 18-year-old can be found depraved based on acts shecommitted eight years ago. However, in addressing the respondent's first contention on appeal, wedetermined that the trial court was properly able to consider the delinquency adjudications in makingits determination of parental unfitness. Furthermore, we believe that as much as the respondent's agecan weigh in her favor in determining depravity, it can also weigh against her. The bases for thedelinquency adjudications were quite serious, especially for a 10-year-old. Although the dissentseems to focus on the respondent's delinquency adjudication for aggravated criminal sexual assault,the respondent was also adjudicated delinquent for aggravated battery and involuntary manslaughter. Furthermore, J'America was born when the respondent was 13 years old, just three years after thedelinquency adjudications. Additionally, while we have waited for the respondent to become an adult,J'America has been in the custody of the same foster family for five years. Based on thecircumstances in this case, it is quite rational to find an 18-year-old depraved based on a course ofconduct that began when she was 10 years old.

Additionally, in its contention that there is insufficient evidence to find the respondentdepraved, the dissent places significant weight on the opinion testimony of White, the clinical socialworker who counseled the respondent for four years. White's counseling with the respondentpertained to her visits with J'America and the stress associated with the petition to terminate herparental rights. White's counseling did not pertain to her issues as a juvenile sex offender or a victimof sexual abuse. Consequently, the limited scope of his counseling must be considered whenweighing his positive assessment of the respondent's maturity and parenting skills. Moreover, Whiteacknowledged on cross-examination that the best indicator of the respondent's productivity as anadult was not what she had told him in counseling but, rather, how she was actually living her life.

Furthermore, the respondent's probation officer, Johnson, testified that the respondent hadto be transferred to a second treatment facility because she was not progressing at the first facility. As her probation officer, Johnson had contact with the respondent over an eight-year period. Johnson further testified that during counseling, the respondent took responsibility for the death ofher baby cousin. Johnson also testified to the respondent's multiple probation violations during herterm of probation. In light of the conflicting testimony of White and Johnson, we must keep in mindthat our function is not to substitute our judgment for that of the trial court on questions regardingthe evaluation of the witnesses credibility and the inferences to be drawn from their testimony; thetrial court is in the best position to observe the conduct and demeanor of the witnesses as they testify. In re M.S., 302 Ill. App. 3d 998, 1002 (1999). As such, despite the contentions set forth in thedissent, we cannot say that the trial court's determination finding the respondent depraved was againstthe manifest weight of the evidence or that the opposite conclusion was clearly evident.

The respondent's final argument on appeal is that the trial court's order terminating herparental rights must be reversed because she was not admonished as required by section 1--5(3) ofthe Juvenile Court Act (705 ILCS 405/1--5(3) (West 2000)). Section 1--5(3) of the Juvenile CourtAct provides, in pertinent part, the following:

"If the child is alleged to be abused, neglected or dependent, the court shall admonishthe parents that if the court declares the child to be a ward of the court and awards custodyor guardianship to the Department of Children and Family Services, the parents mustcooperate with the Department of Children and Family Services, comply with the terms of theservice plans, and correct the conditions that require the child to be in care, or risktermination of their parental rights." 705 ILCS 405/1--5(3) (West 2000).

The respondent's final argument is without merit. In the present case, the State's petition toterminate the respondent's parental rights was not based on a failure of the respondent to comply witha DCFS service plan related to J'America's adjudication of neglect under section 2--3 of the JuvenileCourt Act (705 ILCS 405/2--3 (West 2000). Rather, the respondent's parental rights were terminatedbased on a finding of depravity pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i)(West 2000)). The trial court's failure to admonish the respondent regarding the need to cooperatewith DCFS and comply with her service plans did not excuse an extended course of conductmanifesting an inherent deficiency of moral sense and rectitude. As such, the failure to admonish therespondent pursuant to section 1--5(3) of the Juvenile Court Act does not require a reversal.

For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

HUTCHINSON, J., concurs.

JUSTICE BOWMAN, dissenting in part:

I respectfully dissent. Specifically, I believe that the trial court's finding of unfitness based ondepravity was against the manifest weight of the evidence. In order to establish unfitness, clear andconvincing evidence of depravity must be shown to exist at the time of the petition. In re J.A., 316Ill. App. 3d 553, 561 (2000). According to case law, depravity is defined as " 'an inherent deficiencyof moral sense and rectitude.' " In re J.A., 316 Ill. App. 3d at 561, quoting Stalder v. Stone, 412 Ill.488, 498 (1952). " '[A]cts constituting depravity *** must be of sufficient duration and of sufficientrepetition to establish a "deficiency" in moral sense and either an inability or an unwillingness toconform to accepted morality.' " In re J.A., 316 Ill. App. 3d at 561, quoting In re Adoption of Kleba,37 Ill. App. 3d 163, 166 (1976). In my opinion, the State in this case failed to prove by clear andconvincing evidence that respondent was depraved. Because the State failed to meet its burden, thetrial court's finding of unfitness was against the manifest weight of the evidence. See In re J.J., 201Ill. 2d 236, 250-51 (2002).

Essentially, respondent, who is now 18 years old, is being punished for acts committed whenshe was 10. The majority places great emphasis on the fact that, at age 10, respondent wasadjudicated delinquent for involuntary manslaughter, aggravated battery, and aggravated criminalsexual assault (1995 delinquency adjudications). However, a finding of depravity based on the 1995delinquency adjudications circumvents the purpose of the Juvenile Court Act (705 ILCS 405/1--1 etseq. (West 2002)). Despite the 1999 amendments to the Juvenile Court Act, one of the primarypurposes of the Juvenile Court Act remains the rehabilitation of the minor. In re J.W., 204 Ill. 2d 50,69 (2003). Moreover, the 1999 amendments were not in effect in 1995 when respondent wasadjudicated delinquent. If rehabilitation remains one of the goals of the Juvenile Court Act, how canan 18-year-old mother be depraved based on acts she committed 8 years ago? In my opinion, themajority's decision effectively penalizes respondent for acts that could not be prosecuted under theCriminal Code of 1961 and blurs the distinction between the statutes.

Section 6--1 of the Criminal Code of 1961 states that "[n]o person shall be convicted of anyoffense unless he had attained his 13th birthday at the time the offense was committed." 720 ILCS5/6--1 (West 2002). In addition, the Juvenile Court Act distinguishes between juveniles over andunder the age of 13. 705 ILCS 405/5--805(3)(a) (West 2002); In re J.W., 204 Ill. 2d at 90 (Kilbride,J., concurring in part and dissenting in part). Further, no suggestion or taint of criminality attachesto any finding of delinquency by a juvenile court. In re Dow, 75 Ill. App. 3d 1002, 1006 (1979). While respondent's acts at age 10 could be considered by the trial court in determining the issue ofdepravity, sexually inappropriate behavior by a 10-year-old does not necessarily pose a long-term riskof recurring. See In re J.W., 204 Ill. 2d at 89 (Kilbride, J., concurring in part and dissenting in part). Given the legislature's decision to distinguish between juveniles over and under the age of 13, wemust be careful not to place undue significance on behavior exhibited by a child at the tender age of10.

I also note that the trial court refused to find respondent depraved according to the case lawdefinition of depravity as set forth in count II of the original petition . When the State filed its originalpetition to terminate parental rights, count II alleged that respondent was depraved because "shestuck a popsicle stick in the anus of a child who was seven months old and that child ended up dying." Despite taking judicial notice of the 1995 delinquency adjudications, the court dismissed count II,stating that the State had not "adequately proved that a 10-year-old under [respondent's]circumstances would have the necessary state of mind or the ability to form the requisite intent toestablish depravity." If the 1995 delinquency adjudications did not establish depravity according tocase law when the State filed its original petition to terminate parental rights, they should not formthe bases for depravity now.

In addition, I do not believe that the additional evidence proffered by the State was sufficientto establish that respondent was depraved. Count IV of the State's fourth amended petition toterminate parental rights, the only count on which respondent was found unfit, alleged thatrespondent was depraved due to her (1) continuing propensity to steal; (2) disregard for human life,which in one case resulted in the death of a child and in another resulted in a delay of needed medicalcare for a young child she had agreed to care for; and (3) repeated violations of her probation terms. However, a careful review of the record reveals that the acts listed above do not amount to clear andconvincing evidence of depravity.

First, with respect to her alleged failure to seek medical attention for the three-month-oldchild in her care, DCFS investigator McKinney testified that her report was unfounded as torespondent and that respondent's husband was responsible for the child's injuries. Further, respondent testified that she did what she could for the baby and that the baby's mother did not wantto get medical help. Despite the mother's response, respondent took the baby to the hospital thefollowing day.

Second, probation officer Johnson testified that, although respondent was guilty of probationviolations, her behavior was generally good while she was in residential care. According to Johnson,her behavior was good both at The Mill and at Indian Oaks. In terms of probation violations,Johnson testified that in January 1998 respondent was placed in detention for not coming home atnight, not attending school, stealing her mother's car, and having unsupervised contact with herbrother. However, respondent's grandmother, Maggie Ann Taylor, testified that the car incidentactually occurred in July 1994, before the delinquency adjudications. In addition, the chargeregarding unsupervised contact with her brother was dismissed. Finally, Johnson recommendedsuccessful discharge from probation, based on respondent's overall behavior.

Third, with respect to respondent's "continuing propensity to steal," Johnson testified thatrespondent was arrested on December 20, 1996, for felony retail theft. However, no evidence of aconviction or detail as to what she stole was provided. Respondent was also arrested on February1, 2003, for shoplifting $275 worth of merchandise from a store. At the time of the hearing,however, respondent had not yet been convicted of this offense. In my opinion, one unsubstantiatedincident in 1996 coupled with another felony retail theft charge does not establish a "propensity tosteal."

Last, the only opinion testimony offered at trial was favorable to respondent and weighedagainst the court's finding. Clinical social worker White worked with respondent from 1998 to 2002.In White's opinion, respondent had sufficient counseling to prepare her to be a fit mother. Basedupon his extensive hours of counseling, and his observations of respondent's interaction with J'America B., White made a positive assessment of her maturity and parenting skills. Contrary to thetestimony of probation officer Johnson, White testified that respondent successfully completed thesex-abuse victim and sex offender services at The Mill before being sent to Indian Oaks for furtherresidential treatment. According to White, respondent did not pose a risk to children and haddeveloped "an understanding of the world that really were [sic] beyond her years in a positive way." In addition, respondent received overall satisfactory ratings on three service plans for activelyparticipating in treatment and for making satisfactory progress towards her goals.

In sum, there was not clear and convincing evidence that respondent was depraved. Respondent's behavior from age 10 to 18 did not demonstrate an inability or an unwillingness toconform to accepted moral standards, and the trial court's finding of unfitness based on depravity wasagainst the manifest weight of the evidence. Accordingly, I would reverse both the trial court'sjudgment of unfitness based on depravity and the judgment terminating respondent's parental rightsto J'America B.