In re J.B.
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0916
Case Date: 06/10/1998
NO. 4-97-0916
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of J.B., J.B., J.B., ) Appeal from
K.B., D.D. and L.A.D., Alleged to be ) Circuit Court of
Abused and Neglected Minors, ) McLean County
THE PEOPLE OF THE STATE OF ILLINOIS, ) Nos. 91J2
Petitioner-Appellant, ) 92J64
v. )
JOSEPH DEERWESTER, )
Respondent-Appellee. ) Honorable
) Elizabeth A. Robb,
) Judge Presiding.
JUSTICE GREEN delivered the opinion of the court:
The State appeals from an order entered by the circuit
court of McLean County on September 18, 1997, dismissing its
petition to terminate the parental rights of respondent, Joseph
Deerwester, to D.D. (born October 5, 1989) and L.D. (born April
16, 1991) in McLean County case Nos. 91-J-2 and 92-J-64, respec-
tively. On appeal, the State contends that evidence of respon-
dent's criminal convictions for offenses against his stepchildren
in McLean County case No. 91-CF-22 was sufficient for the trial
court to have found that respondent was an unfit parent based on
depravity (750 ILCS 50/1(D)(i) (West 1996)). We agree with the
State and reverse and remand to the trial court.
Respondent had four minor stepchildren with whom he
lived in a one-room trailer and raised as his own children with
their mother, his wife, Sherry Deerwester. Those children are
Je.B. (born December 21, 1983), Jo.B. (born December 28, 1984),
Ja.B. (born March 17, 1986), and K.B. (born May 28, 1988).
Respondent and Sherry had two children of their own, D.D. and
L.D., who are the subjects of the termination proceedings against
respondent. L.D. never lived with respondent as she was born
after respondent was incarcerated. Sherry is not a respondent to
the instant termination proceedings.
On January 11, 1991, the four stepchildren and D.D.
were taken into protective custody due to allegations of neglect
and abuse. An investigation ensued by the Bloomington police
department and, on February 14, 1991, respondent was criminally
charged with seven counts of aggravated criminal sexual assault
(Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)), two counts of
aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38,
par. 12-16(c)(1)), unlawful restraint (Ill. Rev. Stat. 1989, ch.
38, par. 10-3)), and cruelty to children (Ill. Rev. Stat. 1989,
ch. 23, par. 2368), based upon acts respondent committed against
his four stepchildren. On April 24, 1991, the four stepchildren
and D.D. were adjudicated wards of the court based upon a finding
that the children were neglected and abused, the Department of
Children and Family Services (DCFS) was appointed guardian, and a
protective order was entered prohibiting respondent from having
any contact with the children. On September 5, 1991, L.D. was
adjudicated a ward of the court based on a finding that she was a
neglected minor.
On March 13, 1992, following a jury trial, respondent
was found guilty of each of the 11 counts. The trial court
imposed three consecutive terms of 40 years' imprisonment with
concurrent sentences of 45, 30, 10, 5, and 5 years' imprisonment.
On direct appeal, this court upheld all convictions, except count
VIII alleging aggravated criminal sexual assault. This court
reversed the conviction and sentence as to that count and upheld
the other sentences, with certain reductions, in all other
counts. People v. Deerwester, 249 Ill. App. 3d 1109, 660 N.E.2d
569 (1993) (unpublished order under Supreme Court Rule 23).
On May 23, 1994, the State filed an amended petition to
terminate respondent's parental rights to D.D. and L.D. The
petition alleged respondent was an unfit parent as defined by
section 1(D) of the Adoption Act (Act) (750 ILCS 50/1(D) (West
1996)), as follows:
"A. The minor's father was convicted of
inflicting sexual abuse and other acts of
physical violence on four half-siblings of
[D.D.] and [L.D.] in McLean County case No.
91-CF-22, such acts were of a depraved nature
and demonstrate [respondent's] unfitness to
have a child. [750 ILCS 50/1(D)(i) (West
1994).]
B. The minor's father was convicted of
inflicting sexual abuse and other acts of
physical violence on four half-siblings of
[D.D.] and [L.D.] in McLean County case No.
91-CF-22, such acts being other [than] ne-
glect of, or misconduct toward the children.
[750 ILCS 50/1(D)(h) (West 1994).]
C. The minor's father was convicted of
inflicting sexual abuse and other acts of
physical violence on four half-siblings of
[D.D.] and [L.D.] in McLean County case No.
91-CF-22, such acts constitute extreme or re-
peated cruelty to the children. [750 ILCS
50/1(D)(e) (West 1994).]
D. The minor's father failed to make
reasonable efforts to correct the conditions
which were the basis for the removal of the
children. [750 ILCS 50/1(D)(m) (West 1994).]
E. The minor's father failed to make
reasonable progress toward the return of the
[children to] him within 12 months of the
adjudication of the child under the Juvenile
Court Act [of 1987 (705 ILCS 405/2-3 (West
1994)). 750 ILCS 50/1(D)(m) (West 1994)]."
Subsequently, adjudicatory hearings were held on the
petition. The court took judicial notice of the 11-count indict-
ment of which respondent was convicted in case No. 91-CF-22.
That 11-count indictment, excluding count VIII (which this court
held on direct review was not sufficiently proved at trial)
charged respondent with placing his penis in Jo.B.'s mouth (count
I), placing Jo.B.'s penis in respondent's mouth (count II), and
placing respondent's penis in Jo.B.'s anus (count VII). Respon-
dent was further charged with placing his penis in K.B.'s mouth
(count III), placing respondent's penis in the hand of Ja.B.
(count VI), placing respondent's penis in Ja.B.'s anus (count
IX), placing respondent's penis in Ja.B.'s mouth (count X), and
placing respondent's penis in the hand of Je.B. (count XI). The
indictment further alleged respondent committed unlawful re-
straint against Ja.B. in that respondent tied Ja.B. up with a
rope (count IV) and committed cruelty to children against Ja.B.
by throwing Ja.B. against a board, causing a large cut on Ja.B.'s
chin (count V). At the time of the indictment, Je.B. was seven
years old, Jo.B. was six years old, Ja.B. was four years old, and
K.B. was two years old.
At the termination hearing, the trial court allowed the
State's motion to withdraw its request that the court review the
transcripts of the criminal proceedings. Thus, the only evidence
of respondent's criminal conduct was in the form of certified
copies of his convictions, the indictment, and this court's order
on direct appeal. Other evidence was presented by the State
relating to respondent's compliance with DCFS caseworkers and his
service plan goals.
Section 1(D) of the Act sets forth the statutory
grounds for parental unfitness, including "depravity." 750 ILCS
50/1(D)(i) (West 1996). The Supreme Court of Illinois has
defined depravity in this context as "'"an inherent deficiency of
moral sense and rectitude."'" In re Abdullah, 85 Ill. 2d 300,
305, 423 N.E.2d 915, 917 (1981), quoting Stalder v. Stone, 412
Ill. 488, 498, 107 N.E.2d 696, 701 (1952), quoting 26 C.J.S. 975;
Young v. Prather, 120 Ill. App. 2d 395, 397, 256 N.E.2d 670, 671
(1970). The trial court here found the State failed to prove
that respondent was an unfit parent because the "heinous and
unspeakable acts" of which he was found guilty of committing
against his stepchildren did not establish he was depraved as to
his biological children, D.D. and L.D., who are the subjects of
the termination petition.
We disagree with the trial court and reject respon-
dent's argument that proof of his criminal convictions in case
No. 91-CF-22, standing alone, did not serve as a basis for a
finding of depravity relating to D.D. and L.D. solely because his
victims were stepchildren rather than biological children. We
also reject respondent's argument that the State was required to
present evidence, presumably the trial transcript, of the under-
lying facts of the criminal conduct because somehow respondent's
sexual misconduct with his stepchildren, as compared to his
biological children, could conceivably be found to be not de-
praved if all the underlying facts were known. Respondent does
not dispute that evidence of parental unfitness regarding one
child may serve as the basis for terminating parental rights to
that child's siblings, even if the siblings were not directly
abused or had not been born at the time the abuse occurred. In
re S.H., 284 Ill. App. 3d 392, 400, 672 N.E.2d 403, 408-09
(1996). As we will discuss, we hold that proof of respondent's
criminal conduct against his stepchildren, as known to the court
by certified copies of his convictions and the indictment, was,
alone, sufficient proof of his depravity and "inherent deficiency
of moral sense and rectitude" to prove his unfitness to parent
D.D. and L.D.
The instant case is similar to this court's recent
decision in S.H.. There, the respondent father pleaded guilty in
criminal proceedings of placing his penis in his five-year-old
daughter's vagina and mouth on several occasions and was sen-
tenced to an eight-year term of imprisonment. Based solely on
the evidence of these convictions, the State sought to terminate
respondent's parental rights to the daughter and her two siblings
based on depravity. At an adjudicatory hearing, the respondent
admitted the allegations of sexual misconduct against the daugh-
ter. At the termination hearing, the State merely requested the
trial court to take judicial notice of respondent's criminal
convictions. The trial court concluded the State presented a
prima facie case of parental unfitness based on depravity and
noted that it had reviewed the report of proceedings in the
criminal case. This court affirmed the trial court's termination
order.
In affirming, this court discussed the Abdullah deci-
sion, where the supreme court considered whether evidence of the
respondent's conviction for murdering his ex-wife, the mother of
the child to whom the State sought to terminate the respondent's
parental rights, in itself, was sufficient to establish depravi-
ty. The supreme court held that, there, evidence of the convic-
tion, the fact that the murder victim was the child's mother, and
the trial court's imposition of extended-term sentences due to
the heinous circumstances sufficiently proved depravity. This
court in S.H. refused to interpret Abdullah to hold that in all
cases a single criminal conviction, without more, will not
support a finding of unfitness due to depravity. This court held
that the facts in S.H. were distinguishable from murder cases
because no set of circumstances could conceivably establish that
the respondent's perverted sexual conduct toward his five-year-
old daughter would not amount to depravity. Accordingly, this
court held:
"[A] parent who commits acts like these upon
his or her own child[ren] is subject to being
found unfit due to depravity based solely
upon that conduct, and that parent thereby
forever forfeits any claim to any further
contact with that child or his or her sib-
lings." (Emphasis in original.) S.H., 284
Ill. App. 3d at 400, 672 N.E.2d at 408.
We conclude the holding in S.H. is equally applicable
to the instant case where the sexually abused stepchildren have
been raised as respondent's own biological children. The fact
that respondent here was convicted following a trial and the
respondent in S.H. pleaded guilty to the criminal offense does
not alter this conclusion. Accordingly, proof of respondent's
criminal convictions, based on the allegations set forth in the
indictment, in itself establishes respondent's depravity and
unfitness to parent D.D. and L.D. The trial court abused its
discretion in failing to so find.
Respondent also contends the trial court erred in not
allowing respondent's proffered testimony of Professor Kathleen
Alison Clark-Stewart. The record indicates the court allowed
respondent's offer of proof of the professor's testimony, but
denied admission of the evidence on the grounds it was an attempt
to relitigate the criminal trial and juvenile adjudications.
On appeal, the State contends this court should not
consider this issue because respondent failed to file a cross-
appeal. On November 4, 1997, this court denied respondent's
motion for leave to file a late pro se notice of cross-appeal of
interlocutory orders as being unnecessary. In a motion to strike
this portion of the State's argument because the State failed to
cite to any supporting authority, respondent refers to Solimini
v. Thomas, 293 Ill. App. 3d 430, 434-35, 688 N.E.2d 356, 359
(1997). There, the Second District Appellate Court noted that
"[t]rial court findings adverse to an appellee do not require the
appellee's cross-appeal if the trial court judgment was not at
least in part against the appellee." Solimini, 293 Ill. App. 3d
at 434, 688 N.E.2d at 359. We agree.
However, we do not believe the trial court abused its
discretion in refusing to admit the testimony of Professor Clark-
Stewart. The record indicates Professor Clark-Stewart developed
a written report based on an evaluation of the police interviews
with respondent's stepchildren and those children's trial testi-
mony, concluding that all the children's accusations were not
credible. Professor Clark-Stewart also testified generally,
without ever meeting respondent, that she believed respondent
could change his behavior.
In In re Boolman, 141 Ill. App. 3d 508, 512, 491 N.E.2d
1, 3 (1986), this court, in a termination proceedings, rejected
the respondents' argument that the trial court should have
granted them a summary judgment on the termination petition where
they filed an affidavit stating the minor children had not been
abused and they had cooperated with their counselors. The State
failed to file a counteraffidavit. This court reasoned the
respondents were collaterally estopped from denying a previous
court's determination adjudicating the minor neglected.
Here, Professor Clark-Stewart's testimony regarding her
report was an attempt by respondent to deny the criminal conduct
he performed against his stepchildren, upon which judgments of
convictions have already been entered. This evidence is distin-
guishable from evidence that the court in Abdullah considered as
admissible when the State had made a prima facie case of depravi-
ty and the burden shifted to the respondent to "explain away the
damning evidence of the conviction, the relationship of the
victim to the child, and the sentence. If there were exonerating
circumstances that would rebut the initial showing of depravity,
defendant was free to present them." Abdullah, 85 Ill. 2d at
307, 423 N.E.2d at 918. Professor Clark-Stewart's testimony on
her report, attacking the credibility of the stepchildren, cannot
be considered exonerating circumstances. Moreover, as already
discussed, this case is very similar to S.H. where this court
distinguishes these kind of circumstances from the circumstances
of murder, as in Abdullah, on the basis that no set of exonerat-
ing circumstances can really exist when a parent is guilty of
committing a number of sexual assaults on his children or, as
here, his stepchildren. The trial court here did not abuse its
discretion in refusing to admit the testimony of Professor Clark-
Stewart.
Because of our determination that the trial court
abused its discretion in not finding respondent was depraved and
an unfit parent based on the evidence before it, we need not
discuss the State's alternative arguments that it had sufficient-
ly proved the other allegations of the termination petition.
Accordingly, for the reasons we have discussed, we
reverse the trial court's dismissal of the State's termination
petition and remand for further proceedings.
Reversed and remanded.
GARMAN, P.J., and STEIGMANN, J., concur.
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