NOTICE 2024 IL App (4th) 240731-U This Order was filed under FILED NO. 4-24-0731 September 12, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
In re Adoption of J.G., a Minor ) Appeal from the ) Circuit Court of (John B. and Katie G., ) Lee County Petitioners-Appellees, ) No. 22AD6 v. ) Richard G., ) Honorable Respondent-Appellant). ) Jacquelyn Dawn Ackert, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Grischow concurred in the judgment.
ORDER ¶1 Held: The appellate court granted appellate counsel’s motion to withdraw and affirmed the trial court’s judgment, finding no arguable issue could be raised on appeal.
¶2 Petitioners, John B. and Katie G., the stepfather and biological mother,
respectively, of J.G., filed a petition to adopt J.G. and to terminate the parental rights of
respondent, Richard G., who is J.G.’s biological father. Petitioners alleged that respondent’s
consent to the adoption was unnecessary because he was unfit on various grounds. The trial court
found respondent to be unfit on the grounds of depravity and substantial neglect. The court
subsequently determined that termination of respondent’s parental rights was in J.G.’s best
interest. ¶3 Respondent appealed, and counsel was appointed to represent him. Counsel has
filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), alleging that
there is no arguably meritorious issue to be raised on appeal. We grant appellate counsel’s
motion to withdraw and affirm the trial court’s judgment.
¶4 I. BACKGROUND
¶5 On May 5, 2022, petitioners filed a petition to adopt J.G. and to terminate
respondent’s parental rights. The petition alleged that respondent’s consent to the adoption was
unnecessary because he was unfit in several respects, including: (1) failing to maintain a
reasonable degree of interest, concern, or responsibility for the child’s welfare; (2) evidencing an
intent to forgo his parental rights by his failure to plan for the future of the child for a period in
excess of 12 months; (3) evidencing an intent to forgo his parental rights by failing to
communicate with the child; (4) evidencing an intent to forgo his parental rights by failing to
visit the child; (5) failing to provide a reasonable amount of financial support for the child;
(6) abandoning the child; (7) deserting the child for more than three months; (8) substantially
neglecting the child; (9) being depraved, in that he had at least three felony convictions, one of
which occurred within five years of the filing of the petition; and (10) being habitually addicted
to drugs other than those prescribed by a physician.
¶6 Respondent, pro se, filed a response, objecting to the adoption and to the petition
to terminate his parental rights, and the trial court subsequently appointed counsel to represent
him.
¶7 On September 26, 2023, the trial court held a hearing on the unfitness portion of
the petition. Katie G. testified that she and John B. had been married for approximately two years
and had been in a dating relationship for approximately six years before their marriage. (Katie’s
-2- last name had changed by the time of the unfitness hearing, but we refer to her as “Katie G.”
throughout this order for purposes of consistency.) Katie acknowledged that a visitation order
had been in place since 2012, which granted respondent parenting time with J.G. on Wednesday
evenings and alternating weekends. Katie stated that respondent missed visitation or was late
more than 20 times over the years. There were also instances where respondent attempted to pick
up J.G. for parenting time but Katie would not allow him to due to concerns about his drinking
and drug use. In August 2020, Katie told respondent, at J.G.’s request, that J.G. no longer wished
to have visits with him. J.G. saw respondent for a few hours in December 2020 for Christmas.
She had a few visits with respondent after that but stopped having visits in February or March
2021. Respondent brought presents for J.G.’s birthday and Christmas in November 2021, but
J.G. would not come to the door to accept the items.
¶8 Katie testified that she recalled respondent being incarcerated three times during
J.G.’s life. The first was in 2013, when J.G. was in kindergarten. He was released in 2014, and he
was again incarcerated in 2015. When he was released, he slowly resumed having a relationship
with J.G. Respondent returned to prison in 2022 for less than one year. Respondent attempted to
place collect calls to J.G. each time he was incarcerated. Katie accepted some calls during his
first period of incarceration, but she did not accept any calls during his second and third periods
of incarceration because she did not want to pay for them. Respondent sent mail to J.G. during
his first period of incarceration but not the subsequent ones.
¶9 Certified copies of respondent’s prior felony convictions were admitted into
evidence, and respondent also testified concerning his criminal history. This evidence showed
that, in 2005, respondent was convicted of two counts of possession of cocaine and one count of
possession of cannabis. In 2014, respondent was convicted of unlawful possession of cannabis
-3- with the intent to deliver and was sentenced to two years and six months’ imprisonment. He was
released from prison after 10 months. Respondent testified that he was arrested for domestic
battery in 2019, and he spent approximately three weeks in jail. In 2020, respondent was arrested
for possession of methamphetamine and spent a few weeks in jail. He was subsequently
convicted of that offense and sentenced to 18 months’ probation. His probation was subsequently
revoked after he tested positive for methamphetamine, and he was resentenced to two years’
imprisonment in 2022. Respondent testified that, in 2021, he was arrested for domestic battery
and spent approximately three weeks in jail. He was also arrested for disorderly conduct and
driving under the influence (DUI) in 2021. Petitioners’ evidence showed respondent was
convicted of domestic battery and disorderly conduct, but he received a disposition of court
supervision on the DUI charge.
¶ 10 Respondent testified there were times over the years when he took J.G. to events
or parties where individuals were drinking alcohol. Respondent stated that there were several
occasions during which he drank alcohol and became intoxicated when J.G. was in his care.
¶ 11 John B. testified that he had been living with Katie G. since 2015. Since that time,
John had picked up J.G. from her visits with respondent on several occasions, and respondent
appeared to be intoxicated on many of those occasions. John indicated that, between 2015 and
2021, respondent failed to pick up J.G. for scheduled visits on approximately six occasions.
Respondent also missed visits on several other occasions when he was incarcerated. Starting in
approximately 2018, J.G. started refusing to go to visits with respondent because she was
uncomfortable with his drinking and drug use. John testified that he did not ask J.G. what drug
respondent was using, but he assumed it was cannabis.
-4- ¶ 12 At the close of petitioners’ case in chief, respondent’s counsel moved for a
directed finding as to all grounds of unfitness alleged in the petition except depravity. The trial
court granted the motion for a directed finding as to the first seven grounds of unfitness alleged
in the petition but did not grant the motion as to the grounds of substantial neglect and habitual
addiction to drugs.
¶ 13 Respondent testified on his own behalf. He acknowledged that his past
incarcerations had impacted his relationship with J.G. When asked to describe his criminal
history, respondent stated: “It’s bad, and it’s all due to, you know, drugs and I’ve—I want to say
I learned my lesson. I don’t know. It looks—looks really bad, I know, but I am a good father
***.” Respondent said he was “clean,” though he occasionally used cannabis and alcohol; he had
not been arrested since his last release from prison; and his parole term was ending later that
month. He stated he had been “trying to get back in [J.G.’s] life.” Respondent indicated he had
“changed [his] friends” and his “outlook of life,” though he admitted he still spent time with
some of his lifelong friends. Respondent stated he had never used illegal drugs in J.G.’s
presence. He stated he had drunk alcohol while caring for her, but he never became intoxicated
to the point that he did not know what was going on or could not “handle” her.
¶ 14 On November 27, 2023, the trial court entered an order finding petitioners had
established by clear and convincing evidence that respondent was depraved. The court stated:
“Depravity may be rebutted; however, there was insufficient evidence presented at trial to rebut
this presumption.” The court also found that respondent was unfit in that he substantially
neglected J.G., noting his prior substance abuse disorder, criminal history, prior incarceration,
and history of failing to appear for visits. The court found petitioners failed to establish by clear
and convincing evidence that respondent was habitually addicted to drugs.
-5- ¶ 15 On April 3, 2024, the trial court held a best interest hearing. J.G., then 15 years
old, testified that she lived with petitioners and her three siblings. J.G. testified that she had lived
with John B. for the past five years. J.G. indicated she had been calling John “dad” for
approximately one year, and it was her choice to begin calling him that. J.G. stated: “He’s just
been more of a father figure and dad in my life, and I take him as a dad.” J.G. stated that she
asked John to adopt her approximately two years earlier because he had always taken care of her
and “been there as a dad” for her, and she still wanted him to adopt her. She stated that her
mother and John were the ones who took care of her, providing her with housing, clothing, and
medical care. J.G. testified that she stopped visiting respondent approximately four years earlier
because she was not comfortable visiting him. She stated: “He’d always be drinking or partying
with his friends, and I didn’t like being around that environment.”
¶ 16 The guardian ad litem (GAL) testified that she recommended that respondent’s
parental rights be terminated and that J.G. be adopted by petitioners. The GAL testified that she
believed J.G.’s relationship with respondent was damaged by the fact that respondent had not
had parenting time with J.G. for approximately four years, but she believed the relationship had
already been damaged prior to that. She noted that J.G. reported that she did not feel comfortable
or safe when she visited respondent, and respondent continued to drink alcohol when she asked
him not to. The GAL’s report was admitted into evidence.
¶ 17 The trial court found petitioners had established by a preponderance of the
evidence that termination of respondent’s parental rights was in J.G.’s best interest. The court
indicated it had considered the evidence presented, the parties’ arguments, and the GAL’s report.
The court stated that J.G. had found stability with petitioners, and she considered them to be her
-6- parents. The court noted that J.G. had been very clear that she wished to be adopted by John B.
The court stated:
“[T]his process started long ago when this child was very small, and it was
a result of [respondent’s] own actions. His criminal behavior; his being in
and out of jail or prison; the way he handled his parenting time with the
minor; the fact that he was drinking and partying while she was present,
instead of enjoying his time with her; he’s the one that initiated this action
many, many years ago by his conduct.”
¶ 18 The trial court entered an order terminating respondent’s parental rights. This
appeal followed.
¶ 19 II. ANALYSIS
¶ 20 On appeal, appointed appellate counsel has moved to withdraw, indicating that he
has reviewed the record and has concluded respondent’s appeal is without arguable merit. Along
with his motion to withdraw, counsel filed a certification indicating he had mailed a copy of his
motion to withdraw and brief in support to respondent. Respondent has not filed a response.
Counsel states he considered arguing that the trial court’s unfitness and best interest
determinations were against the manifest weight of the evidence. However, counsel has
determined that no meritorious argument can be made as to either of these issues.
¶ 21 The procedure for appellate counsel to withdraw set forth in Anders applies to
findings of parental unfitness and termination of parental rights. In re S.M., 314 Ill. App. 3d 682,
685 (2000). Under this procedure, counsel’s motion to withdraw must “be accompanied by a
brief referring to anything in the record that might arguably support the appeal.” (Internal
quotation marks omitted.) Id. Counsel must sketch the arguments in support of such issues and
-7- explain why counsel believes the arguments are frivolous. Id. In cases involving the termination
of parental rights, counsel should review both the finding of unfitness and the best interest
determination. Id.
¶ 22 A. Unfitness
¶ 23 Counsel indicates he considered arguing the trial court’s determination that
respondent was unfit was against the manifest weight of the evidence. However, counsel
determined he was unable to do so because respondent was presumed unfit on the basis of
depravity due to his prior felony convictions, and he failed to present any evidence he had been
rehabilitated.
¶ 24 Generally, both parents must consent to a child’s adoption. In re Adoption of
L.T.M., 214 Ill. 2d 60, 67 (2005). However, when the trial court finds that a parent is unfit
pursuant to one of the grounds enumerated in section 1(D)(i) of the Adoption Act (Act) (750
ILCS 50/1(D)(i) (West 2022)), that parent’s consent is not required. 750 ILCS 50/8(a)(1) (West
2022); L.T.M., 214 Ill. 2d at 67. It is the petitioner’s burden to prove by clear and convincing
evidence that the respondent is unfit. L.T.M., 214 Ill. 2d at 67-68. If the court finds a parent to be
unfit, the court then considers whether termination of the respondent’s parental rights is in the
child’s best interest. In re Adoption of Syck, 138 Ill. 2d 255, 277 (1990).
¶ 25 One of the grounds for parental unfitness set forth in the Act is depravity. 750
ILCS 50/1(D)(i) (West 2022)). While the Act does not define “depravity,” our supreme court has
held that “depravity is an inherent deficiency of moral sense and rectitude.” (Internal quotation
marks omitted.) In re Abdullah, 85 Ill. 2d 300, 305 (1981).
“Depravity must be shown to exist at the time of the petition to terminate parental
rights, and the acts constituting depravity *** must be of sufficient duration and
-8- of sufficient repetition to establish a deficiency in moral sense and either an
inability or an unwillingness to conform to accepted morality.” (Internal quotation
marks omitted.) In re A.M., 358 Ill. App. 3d 247, 253 (2005).
It is the petitioner’s burden to prove by clear and convincing evidence that the respondent is
depraved. In re L.J.S., 2018 IL App (3d) 180218, ¶ 18.
¶ 26 Having several felony convictions may be sufficient to establish depravity. In re
J.A., 316 Ill. App. 3d 553, 562 (2000). While the legislature has not stated what number and
magnitude of offenses are sufficient for a finding of depravity, it has specified the number and
magnitude of convictions that create a rebuttable presumption of depravity. Id. Relevant to this
appeal, section 1(D)(i) of the Act (750 ILCS 50/1(D)(i) (West 2022)) provides:
“There is a rebuttable presumption that a parent is depraved if the parent
has been criminally convicted of at least 3 felonies under the laws of this State or
any other state, or under federal law, or the criminal laws of any United States
territory; and at least one of these convictions took place within 5 years of the
filing of the petition or motion seeking termination of parental rights.”
Because the presumption of depravity set forth in the statute is rebuttable, “a parent is still able to
present evidence showing that, despite his convictions, he is not depraved.” J.A., 316 Ill. App. 3d
at 562. “Rehabilitation can only be shown by a parent who, upon leaving prison, maintains a
lifestyle suitable for parenting children safely.” In re J.V., 2018 IL App (1st) 171766, ¶ 183.
¶ 27 “A rebuttable presumption creates a prima facie case as to the particular issue in
question and thus has the practical effect of requiring the party against whom it operates to come
forward with evidence to meet the presumption.” (Internal quotation marks omitted.) J.A., 316
Ill. App. 3d at 562. Once evidence opposing the presumption is introduced, “the presumption
-9- ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if
no presumption had ever existed.” Id. “The only effect of the rebuttable presumption is to create
the necessity of evidence to meet the prima facie case created thereby, and which, if no proof to
the contrary is offered, will prevail.” Id. at 563.
¶ 28 “[A] trial court’s finding that a parent is unfit under section 1(D) of the [Act] will
not be reversed on appeal unless that finding is against the manifest weight of the evidence.”
In re N.G., 2018 IL 121939, ¶ 29. A court’s decision is against the manifest weight of the
evidence only where the opposite conclusion is clearly apparent. Id.
¶ 29 Here, petitioners presented evidence that respondent had previously been
convicted of five felony convictions, one of which took place within five years of the filing of
the petition, which created a rebuttable presumption of depravity. See 750 ILCS 50/1(D)(i)
(West 2022). In an attempt to rebut this presumption, respondent presented his own testimony
that he had not been arrested since he was released from prison in October 2022; he was “clean,”
other than occasionally using cannabis and alcohol; he had “changed [his] friends,” though not
all of them; he would be released from parole soon; and he was trying to get back into J.G.’s life.
¶ 30 Even assuming for the sake of argument respondent’s testimony was sufficient to
rebut the presumption of depravity created by his criminal history, the trial court’s finding that
petitioners established by clear and convincing evidence that respondent was depraved was not
against the manifest weight of the evidence. The petitioners’ evidence showed that respondent
had five felony convictions for drug-related offenses, the oldest of which was entered in 2005.
His most recent felony conviction, which was for possession of methamphetamine, was entered
in 2021, and respondent initially received a sentence of probation. His probation was revoked
after he tested positive for methamphetamine. He was resentenced to two years’ imprisonment in
- 10 - January 2022, and he was released from custody in October 2022. Respondent testified that, in
2021, he was also arrested for the misdemeanor offenses of domestic battery, disorderly conduct,
and DUI. The evidence showed that respondent’s criminal issues and terms of incarceration in
the county jail and in prison negatively affected his relationship with J.G., as he was unable to
support her during those times. Evidence was also presented that respondent’s use of alcohol had
negatively affected his relationship with J.G. Respondent admitted to regularly drinking alcohol
when J.G. was in his care, and petitioners’ evidence indicated this made J.G. uncomfortable.
¶ 31 The petitioners’ evidence, taken as a whole, showed that respondent had a long
history of drug-related criminal offenses and alcohol use that negatively impacted his
relationship with his daughter. Respondent appeared to be unwilling or unable to conform his
conduct to an acceptable level of morality, as he continued to use substances, including
methamphetamine, when he was on probation and continued to commit criminal offenses during
his sentence of probation. While respondent testified that he was “clean” at the time of the
unfitness hearing and had not been arrested since he was released from prison approximately 11
months prior to the hearing, this period of abstention from unlawful behavior was relatively
brief. Moreover, respondent offered only his own testimony as evidence that he was not
depraved, and the trial court was not required to accept it as credible.
¶ 32 Under these circumstances, we agree with counsel that there is no meritorious
argument to be made that the trial court’s determination that respondent was unfit on the ground
of depravity was against the manifest weight of the evidence, as the opposite conclusion is not
clearly apparent. See N.G., 2018 IL 121939, ¶ 29. While counsel’s brief should have ideally
addressed substantial neglect as a ground of unfitness as well (see In re Zy. D., 2021 IL App (2d)
- 11 - 200629, ¶ 7; In re Austin C., 353 Ill. App. 3d 942, 947 (2004)), only one ground for unfitness
need be proven to establish unfitness. See In re Gwynne P., 215 Ill. 2d 340, 349 (2005).
¶ 33 B. Best Interest
¶ 34 Counsel also indicates that he considered arguing that the trial court’s
determination that termination of respondent’s parental rights was in J.G.’s best interest was
against the manifest weight of the evidence but concluded that such an argument would be
without merit. We agree.
¶ 35 After a parent is determined to be unfit, the trial court “proceed[s] to consider the
child’s best interests and whether those interests would be served by the child’s adoption by the
petitioners, requiring termination of the natural parent’s parental rights.” Syck, 138 Ill. 2d at 277.
At this point, the focus shifts from the parent to the child, and “the parent’s interest in
maintaining the parent-child relationship must yield to the child’s interest in a stable, loving
home life.” In re D.T., 212 Ill. 2d 347, 364 (2004). “The issue is no longer whether parental
rights can be terminated; the issue is whether, in light of the child’s needs, parental rights should
be terminated.” (Emphases in original.) Id.
¶ 36 In determining whether termination of parental rights is in a minor’s best interest,
the trial court must consider the following factors within the context of the child’s age and
developmental needs:
“(1) the child’s physical safety and welfare; (2) the development of the child’s
identity; (3) the child’s familial, cultural[,] and religious background and ties;
(4) the child’s sense of attachments, including love, security, familiarity,
continuity of affection, and the least[-]disruptive placement alternative; (5) the
child’s wishes and long-term goals; (6) the child’s community ties; (7) the child’s
- 12 - need for permanence, including the need for stability and continuity of
relationships with parent figures and siblings; (8) the uniqueness of every family
and child; (9) the risks related to substitute care; and (10) the preferences of the
person available to care for the child.” (Internal quotation marks omitted.) In re
Dal. D., 2017 IL App (4th) 160893, ¶ 52.
See also 705 ILCS 405/1-3(4.05) (West 2022).
¶ 37 “We will not disturb a court’s finding that termination is in the children’s best
interest unless it was against the manifest weight of the evidence.” In re T.A., 359 Ill. App. 3d
953, 961 (2005). “A trial court’s decision is against the manifest weight of the evidence only if
the opposite conclusion is clearly apparent or the decision is unreasonable, arbitrary, or not based
on the evidence.” In re Keyon R., 2017 IL App (2d) 160657, ¶ 16.
¶ 38 Here, 15-year-old J.G. testified at length that she wished to be adopted by her
stepfather, John B. She stated she had lived with John for five years and had started calling him
“dad” one year prior to the hearing. She testified she had asked John to adopt her two years
before the hearing because he had “been there as a dad” for her. She stated that her mother and
John were the ones who took care of her, providing her with housing, clothing, and medical care.
She testified she stopped visiting respondent approximately four years prior to the best interest
hearing. She stated respondent was always “drinking or partying with his friends,” and she was
not comfortable being in that environment. The GAL’s testimony was consistent with J.G.’s, and
the GAL recommended that respondent’s parental rights be terminated so that J.G. could be
adopted by petitioners. Respondent presented no evidence.
- 13 - ¶ 39 Based on the foregoing evidence, we agree with counsel’s assessment that an
argument that the trial court’s best interest determination was against the manifest weight of the
evidence would be without arguable merit.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we grant appellate counsel’s motion to withdraw and
affirm the trial court’s judgment.
¶ 42 Affirmed.
- 14 -