No. 3--04--0946

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE BARRY delivered the Opinion of the court.

The State filed a petition alleging that (1) the minors,A.M. and E.M., were neglected because of their mother's conduct;and (2) the children's father was unknown. Later, the courtidentified the respondent, J.T., as the father. The court foundthat the children were neglected.

The State then filed a petition asking the trial court toterminate the respondent's parental rights, alleging that therespondent was unfit because of depravity (750 ILCS 50/1(D)(i)(West 2002)). The court found the respondent unfit andterminated his parental rights. On appeal, the respondent arguesthat (1) the Department of Children and Family Services (DCFS)and Lutheran Social Services (LSS) violated his due processrights by failing to contact him or to complete a social historyfor him; (2) the trial court erred as a matter of law by findinghim unfit because it had not found that he neglected thechildren; (3) after the respondent rebutted the presumption thathe was depraved because of his criminal record, he proved that hewas not depraved; and (4) the trial court erred by terminatinghis parental rights. We affirm.

BACKGROUND

A.M. was born on August 22, 1993, and E.M. was born onSeptember 24, 1994. On August 28, 2002, the State filed ajuvenile petition alleging that A.M., E.M., and other children oftheir mother were neglected because of an injurious environment. In the petition, the State said that the fathers of the childrenwere unknown at that time. The State alleged that the motherphoned the Peoria police, stated that she was going to leave thechildren, and asked that someone come to her home to care forthem. When the police arrived at the home, the children werealone in the residence without running water.

The trial court issued an arraignment order on September 6,2002, in which the respondent was found to be the putative fatherof A.M. and E.M. The State served the respondent with process bypublication on September 19, 2002. On January 6, 2003, the trialcourt issued an adjudication order finding the childrenneglected.

On January 5, 2004, the State filed a petition asking thetrial court to terminate the respondent's parental rightsconcerning A.M. and E.M. The State alleged that the respondentwas unfit because of depravity.

At the fitness hearing, the State offered certified copiesof the respondent's convictions. The respondent had beenconvicted of the felonies of burglary in 1995, theft in 1997, andunlawful delivery of a controlled substance on June 10, 2003. Hewas convicted of the misdemeanors of possession of a controlledsubstance in 1998 and retail theft in 2000.

The respondent testified about his interactions with hischildren. He also asserted that he had never been contacted byDCFS or LSS about his children.

The respondent presented evidence to rebut the presumptionthat he was depraved because of his criminal record. Hesubmitted that he was rehabilitated from his depravity. Asevidence of his rehabilitation, he said that he had completed hisGeneral Equivalency Diploma on October 4, 1995, whileincarcerated in the Peoria County jail. The respondent alsotendered copies of certificates he had earned while incarceratedin the Department of Corrections (DOC) for (1) completion of an"Education to Careers Seminar" on October 8, 2003, (2) perfectattendance in the same "Education to Careers Seminar," and (3)"Commercial Custodial Services" on December 15, 2003. He saidthat he had been appointed the supervisor for the custodialprogram because he "completed the class with a 3.8 grade pointaverage." He had attended the custodial class daily for sixmonths from 8 a.m. to 3 p.m. The "Education to Careers Seminar"was an "8 to 10-week program" given on Mondays and Wednesdaysfrom 4 to 6:30 p.m.

The respondent stated that he was working on a degree insmall business management while he was incarcerated in the DOC. He had signed up for drug abuse and parenting classes, but hadbeen put at the bottom of a waiting list because of his absencescaused by court appearances regarding his children. Therespondent said that he recently had been approved for workrelease. He stated that he was scheduled to be released from DOCcustody in March 2006. At the conclusion of the hearing, thetrial court found that the State had proved the respondent unfitby clear and convincing evidence.

The matter proceeded to the best interest hearing onDecember 8, 2004. The trial judge stated that he had consideredthe best interest report prepared by LSS. In the report, LSSsaid that A.M. and E.M. had been in several different fosterhomes because of their behavioral problems at school and in thehomes. LSS had not yet been able to find adoptive homes for thechildren because of their behavioral problems.

In the report, LSS stated that returning the children totheir mother was not in the children's best interest because ofher noncompliance with service plans and other court-orderedtasks. Placement with the respondent was not in the children'sbest interest because of the respondent's incarceration untilMarch 2006. LSS submitted that the children were "in desperateneed of a permanent, stable home." Therefore, LSS recommendedthe termination of both parents' rights and adoption for thechildren.

At the best interest hearing, the State did not presentevidence beyond the LSS report. Tera Boettcher, the LSScaseworker, testified for the mother. Boettcher stated that LSSdid not have an adoptive home arranged for the children. LSS wasattempting to find an alternative placement for the children,such as placement with the mother's aunt or the respondent'saunt. Boettcher said that she had spoken to the children aboutthese possible placements. A.M. had frequently asked aboutplacement with the mother's aunt, but was not "particular" aboutplacement with either aunt.

The respondent did not present any evidence at the bestinterest hearing. After hearing closing arguments, the trialcourt found that it was in the best interest of the children toterminate the respondent's parental rights. The court statedthat even though an adoptive home was not yet available for thechildren, they deserved "stability, continuity, [and]reliability," which the respondent could not provide because ofhis repeated incarcerations. The respondent appealed.

ANALYSISI. Due Process

The respondent contends that DCFS and LSS violated his dueprocess rights by failing to contact him or to complete a socialhistory for him. He argues, therefore, that the trial courterred in finding him unfit and terminating his parental rights. The respondent, however, has not provided citation to relevantauthority for this argument.

Bare contentions advanced without citation to relevantauthority do not merit consideration on appeal. Official ReportsAdvance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff.October 1, 2001; Eisenberg v. Industrial Comm'n of Illinois, 337Ill. App. 3d 373, 785 N.E.2d 1005 (2003).

In this case, the respondent has not cited relevantauthority for this argument. Therefore, we need not consider it.

II. Fitness

A. No Finding That Respondent Neglected Children

The respondent submits that the trial court erred as amatter of law by finding him unfit because it had not found thathe neglected the children.

The respondent relies upon this court's ruling in In reCheyenne S., 351 Ill. App. 3d 1042, 815 N.E.2d 1186 (2004). InCheyenne S., the trial court made two neglect adjudications. Thefirst finding of neglect concerned only the parent who was notthe respondent. In the second neglect adjudication, the trialcourt found that the respondent neglected the child because therespondent allowed the other parent in the car with the childafter the court had ordered the respondent to obtain an order ofprotection against the other parent. The respondent's parentalrights were later terminated.

On appeal, we stated that the State's termination petitionin Cheyenne S. could not be based on either of the two findingsof neglect. We said that "common sense dictates *** that theState cannot file a termination petition alleging that a parentis unfit before the parent that is the subject of the terminationpetition has been found to have abused or neglected the child inquestion." Cheyenne S., 351 Ill. App. 3d at 1050, 815 N.E.2d at1192. We held that because the adjudications of neglectconcerned the parent that was not the respondent, the State'sevidence failed to prove that the respondent was an unfit parentas a matter of law.

A few days after we issued Cheyenne S., the Illinois SupremeCourt issued its opinion in In re Arthur H., 212 Ill. 2d 441, 819N.E.2d 734 (2004). In Arthur H., our supreme court stated that"the only question to be resolved at an adjudicatory hearing iswhether or not a child is neglected, and not whether every parentis neglectful." Arthur H., 212 Ill. 2d at 467, 819 N.E.2d at749.

The Illinois Appellate Court is bound by the principle ofstare decisis, and therefore we must adhere to the decisions ofthe Illinois Supreme Court. King v. Northern Indiana CommuterTransportation District, 337 Ill. App. 3d 52, 785 N.E.2d 35(2003). As a result, we must apply the rule of Arthur H. to thiscase.

Resolution of the respondent's argument also requires anexamination of the statutory procedures for termination. Underthe Juvenile Court Act of 1987 (Act) (705 ILCS 405/1--1 (West2002)), a person, agency, or association may file a petitionalleging that a child is neglected. 705 ILCS 405/2--13(1), (2)(West 2002). At an adjudicatory hearing, the court is todetermine if the minor is neglected. 705 ILCS 405/2--21(1) (West2002). If the court determines that the child is neglected, thematter proceeds to a dispositional hearing. 705 ILCS 405/2--21(2), 2--22 (West 2002). After the dispositional hearing, thecourt issues a dispositional order. 705 ILCS 405/2--23 (West2002).

At any time after entry of the dispositional order, theoriginal neglect petitioner may request the termination of aparent's rights. 705 ILCS 405/2--13(4) (West 2002). The matterthen proceeds to a hearing to determine if the parent is unfit. 705 ILCS 405/2--29(2) (West 2002). If the parent is found unfit,the cause proceeds to a hearing to decide if it is in the child'sbest interest to terminate the parent's rights. 705 ILCS 405/2--29(2) (West 2002).

In the present case, under Arthur H., the trial court wasnot to determine at the adjudicatory hearing whether therespondent was neglectful, but rather, whether the respondent'schildren were neglected. The court determined that A.M. and E.M.were neglected. After the State filed its petition to terminatethe respondent's rights, the trial court found the respondentunfit. Under Arthur H. and the procedures set forth in the Act,a finding that the respondent neglected the children was not aprerequisite to the trial court finding the respondent unfit. Therefore, the respondent is incorrect that the trial court erredas a matter of law by finding him unfit because it had not foundthat he neglected the children.

B. Depravity

The respondent claims that after he rebutted the presumptionthat he was depraved because of his criminal record, he provedthat he was not depraved. He argues, therefore, that the trialcourt erred by finding him unfit.

In the trial court, the State must prove its basis for aparent's unfitness by clear and convincing evidence. In re B.R.,282 Ill. App. 3d 665, 669 N.E.2d 347 (1996). Appellate courtsmust give great deference to a trial court's finding of unfitnessand must not reverse such a finding unless it is against themanifest weight of the evidence. A finding is against themanifest weight of the evidence only if the opposite conclusionis readily apparent. In re J.A., 316 Ill. App. 3d 553, 736N.E.2d 678 (2000).

One of the grounds for unfitness is depravity. 750 ILCS50/1(D)(i) (West 2002). The depravity statute states that"[t]here is a rebuttable presumption that a parent is depraved ifthe parent has been criminally convicted of at least 3 felonies*** and at least one of these convictions took place within 5years of the filing of the petition *** seeking termination ofparental rights." 750 ILCS 50/1(D)(i) (West 2002).

"A rebuttable presumption creates 'a prima faciecase as to the particular issue in question and thushas the practical effect of requiring the party againstwhom it operates to come forward with evidence to meetthe presumption.' [Citation.] However, once evidenceopposing the presumption comes into the case, thepresumption ceases to operate, and the issue isdetermined on the basis of the evidence adduced attrial as if no presumption had ever existed. [Citation.] The burden of proof does not shift butremains with the party who initially had the benefit ofthe presumption. [Citation.] The only effect of therebuttable presumption is to create the necessity ofevidence to meet the prima facie case created thereby,and which, if no proof to the contrary is offered, will prevail. [Citation.]" J.A., 316 Ill. App. 3d at 562-63, 736 N.E.2d at 686.

The Illinois Supreme Court has defined "depravity" as "aninherent deficiency of moral sense and rectitude." Stalder v.Stone, 412 Ill. 488, 498, 107 N.E.2d 696, 701 (1952). Depravitymust be shown to exist at the time of the petition to terminateparental rights, and "the 'acts constituting depravity *** mustbe of sufficient duration and of sufficient repetition toestablish a "deficiency" in moral sense and either an inabilityor an unwillingness to conform to accepted morality.' [Citation.]" J.A., 316 Ill. App. 3d at 561, 736 N.E.2d at 685. Where the presumption of depravity is rebuttable, the "parent isstill able to present evidence showing that, despite hisconvictions, he is not depraved." J.A., 316 Ill. App. 3d at 562,736 N.E.2d at 686.

In the instant case, the State presented certified copies ofthe respondent's convictions for two misdemeanors and threefelonies. One of the felony convictions was within five years ofthe filing of the termination petition. Therefore, under section1(D)(i), the State's evidence created a rebuttable presumptionthat the respondent was depraved.

The respondent offered evidence that he was not depraved. Under the analysis in J.A. concerning rebuttable presumptions,once the respondent's evidence came into the case, thepresumption of depravity ceased to exist. The burden remainedwith the State to prove by clear and convincing evidence that therespondent was unfit because of depravity. The respondent couldattempt to prove that he was not depraved.

As noted above, the State's evidence consisted of therespondent's convictions for two misdemeanors and three feloniesin 1995, 1997, 1998, 2000, and 2003. These convictions showedclear and convincing evidence of the respondent's inherentdeficiency of moral sense and rectitude. See Stalder, 412 Ill.488, 107 N.E.2d 696. The evidence proved that the respondent'sdepravity existed at the time the termination petition was filed,and that the acts constituting his depravity were of sufficientduration and of sufficient repetition to establish a deficiencyin the respondent's moral sense and either an inability or anunwillingness of the respondent to conform to accepted morality. See J.A., 316 Ill. App. 3d 553, 736 N.E.2d 678.

As evidence that the respondent was not depraved, he offeredthe completion of his GED in 1995. However, he committed twomisdemeanors and two felonies after obtaining his GED. Whilecommendable, the completion of the respondent's GED did not showthat he was no longer depraved.

After the respondent's last felony conviction in 2003, heobtained certificates for (1) the "Education to Careers Seminar,"(2) perfect attendance in the seminar, and (3) "CommercialCustodial Services." However, completion of classes in prison,while also commendable, does not show rehabilitation. See In reShanna W., 343 Ill. App. 3d 1155, 799 N.E.2d 843 (2003).

The respondent had enrolled in parenting and drug abuseclasses. He also had been approved for work release. Again,these efforts are commendable. However, because the respondenthad not yet begun any of these programs, these facts could not beconsidered as proof that he was no longer depraved.

In summary, after the respondent's evidence entered the caseand the rebuttable presumption of depravity ceased to exist, theburden remained with the State to prove by clear and convincingevidence that the respondent was depraved. The State's evidencewas clear and convincing, and the respondent failed to prove thathe was no longer depraved. Therefore, we hold that it was notagainst the manifest weight of the evidence for the trial courtto find that the respondent was unfit because of depravity.

III. Best Interest

The respondent submits that the trial court erred by findingthat it was in his children's best interest to terminate hisparental rights.

Once the trial court has found the parent to be unfit, allconsiderations must yield to the best interest of the child. Inre G.L., 329 Ill. App. 3d 18, 768 N.E.2d 367 (2002). Indetermining a child's best interest, the trial court shallconsider (1) the physical safety and welfare of the child; and(2) the child's need for permanence, including stability andcontinuity of relationships with parental figures. 705 ILCS405/1--3(4.05)(a), (g) (West 2002). The termination of aparent's rights based on a child's best interest will not bereversed absent an abuse of the trial court's discretion. In reV.O., 284 Ill. App. 3d 686, 673 N.E.2d 439 (1996).

In this case, the trial court considered statutory factorsin determining the best interest of A.M. and E.M. The evidenceshowed that the respondent did not provide for the children'ssafety or welfare for most of their lives because he could notprovide an adequate home for them while he was repeatedlyincarcerated. The children deserved the kind of permanence andstability that the respondent had failed to give them during mostof their lives, and that he could not provide until March 2006,at the earliest.

We rule that the trial court did not abuse its discretion byterminating the respondent's parental rights regarding A.M. andE.M.

CONCLUSION

For the foregoing reasons, we affirm the judgment of thePeoria County circuit court finding the respondent to be unfitand terminating his parental rights concerning A.M. and E.M.

Affirmed.

SLATER, P.J. concurring and MCDADE, J. specially concurring.

JUSTICE McDADE, specially concurring

The children A.M. and E.M. are currently nearing 12 and 11years respectively. They have been found neglected and havelived apart from both parents for the past three years. Becauseof serious behavioral problems, they have been placed in asuccession of foster homes. They are, according to LutheranSocial Services, in "desperate need" of stable, permanent homeswith reliable and nurturing care-givers. No adoptive familieshave yet been identified. The respondent father in this case ispresently incarcerated in the Illinois Department of Correctionsand is not scheduled for full release until March 2006. He isplainly unable to physically parent his children for at leastanother year and his evidence demonstrates that although he hassigned up for parenting classes, he has not yet studied parentingskills. In these circumstances, I believe the finding ofunfitness and the termination of respondent's parental rights asbeing in the children's best interest are justifiable.

I write separately because I cannot agree with our depravityanalysis. In this case, the State initially relied on therebuttable presumption of depravity created by statute. 750 ILCS50/1 (D)(i) (West 2002). Procedurally, as the order explains,the presumption is sufficient, standing alone, to establishdepravity and thus unfitness - but only if the respondentproduces no evidence opposing the presumption. If opposingevidence is produced, the burden of proof remains on the State.

That burden is to prove, by clear and convincing evidence,that (1) respondent's acts constituting depravity are ofsufficient duration and repetition to establish deficiency inmoral sense and (2) either an inability or an unwillingness toconform to accepted morality. In re J.A., 316 Ill. App. 3d 553,736 N.E.2d 678 (2000). It thus appears to me that once therespondent has produced opposing evidence, the simple recitationof his criminal history is no longer sufficient to provedepravity. The State must also prove inability or unwillingnessto conform to accepted morality. If, indeed, all the State mustdo to meet its burden is simply to reiterate the criminal historywhich originally triggered the rebuttable presumption, thepresumption is in reality an irrebuttable one. It seems to methat the State's burden is to show that, despite respondent'scounter evidence, he is still unable or unwilling to conform hisbehavior to accepted morality.

The crimes of which respondent was convicted were burglary(felony 1995), theft (felony 1997), retail theft (misdemeanor2000), unlawful delivery of a controlled substance (felony 2003),and possession of a controlled substance (misdemeanor 1997). His evidence established that during his current incarceration hehad completed an 8-10 week "Education to Careers Seminar" withperfect attendance and a six-month "Commercial CustodialServices" class that he had finished with a 3.8 grade pointaverage. Because of his superior grades, he was appointed supervisor for the custodial program. He was also working on adegree in small business management and had recently beenapproved for work release. In contrast to the securing of hisG.E.D. in 1995, respondent's recent achievements demonstrate (1)efforts to position himself for gainful employment - perhaps evenstarting his own business - upon his release and (2) seriouseffort to succeed in the classes, as shown by his attendance andhis grades. Viewed in terms of the test for depravity, hisevidence tends to support a conclusion that he is both willingand developing the ability to conform his behavior to acceptedmorality - to earn an honest living rather than resorting tocrime.

For all of these reasons, I do not believe the State hassustained its burden of proving, by clear and convincingevidence, that respondent is unfit by reason of depravity.