NOTICE 2020 IL App (5th) 190444-U NOTICE Decision filed 05/20/20. The This order was filed under text of this decision may be NO. 5-19-0444 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
In re ADOPTION OF LOGAN L. and ) Appeal from the BRAYDEN N. ) Circuit Court of ) Madison County. (Belinda Warren, ) ) Petitioner-Appellee, ) ) v. ) No. 18-AD-126 ) James Lyons III, ) Honorable ) Martin J. Mengarelli, Respondent-Appellant). ) Judge, presiding. ________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court. Justices Cates and Barberis concurred in the judgment.
ORDER
¶1 Held: The circuit court’s determinations that respondent was an unfit parent and that termination of respondent’s parental rights was in the minor children’s best interest were not contrary to the manifest weight of the evidence.
¶2 Respondent, James Lyons III, is the biological father of the minor children, Logan
L., born on October 13, 2015, and Brayden N., born on March 26, 2013. Petitioner, Belinda
Warren, is the paternal great aunt of the minor children. The circuit court found respondent
to be an unfit parent based upon respondent’s stipulation of unfitness and further
determined that the termination of respondent’s parental rights was in the minor children’s 1 best interests. Respondent now appeals, arguing that the circuit court’s findings were
against the manifest weight of the evidence. For the following reasons, we affirm the circuit
court’s judgment.
¶3 I. BACKGROUND
¶4 Petitioner filed a petition for adoption of the minor children on October 17, 2018.
The petition for adoption alleged that respondent was an unfit parent based on depravity
pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2018)),
because respondent had more than three felony convictions, including one felony
conviction that occurred within the previous five years. Respondent’s felony convictions
listed within the petition for adoption were as follows:
“a. 16-CF-2167, Madison County, Illinois, Domestic Battery/Bodily Harm, sentenced to 30 months’ incarceration;
b. 12-CF-1837, Madison County, Identity Theft/Knows ID Stolen, sentenced to probation 30 months[;]
c. 08-CF-2847, Madison County, Obstruct Justice/Destroy evidence, sentenced to 2 years, 6 months incarceration;
d. 09-CF-105, Jersey County, Aggravated Domestic Battery, 3 years incarceration;
e. 06-CF-834, Madison County, Felon Probationer Escape Off Ret Theft/Display Merch/>$150, Sentenced to 24 months probation[;]
f. 06-CF-144901 and 902, St. Clair County, Retail Theft, sentence to 24 months probation.”
The petition for adoption further alleged that respondent was an unfit parent pursuant to
section 1(D)(a) of the Adoption Act (750 ILCS 50/1(D)(a) (West 2018)), because
respondent had abandoned the minor children. 2 ¶5 Respondent was incarcerated within the Illinois Department of Corrections (IDOC),
when the petition for adoption was filed. Respondent had been incarcerated within the
IDOC since August 25, 2016. In response to the petition for adoption, respondent filed a
pro se entry of appearance and a motion to dismiss on November 14, 2018. On November
16, 2018, the circuit court appointed counsel to represent respondent concerning the
petition for adoption.
¶6 On March 29, 2019, the circuit court conducted a hearing on respondent’s parental
fitness. Respondent was present at the hearing with counsel. At the beginning of the
hearing, the follow dialogue transpired:
“THE COURT: *** It’s my understanding that the Respondent is going to stipulate to the unfitness portion; is that correct?
[RESPONDENT’S COUNSEL]: Yes, Your Honor.
THE COURT: I still need to hear what evidence the Petitioner believes they would be able to prove and what you’re stipulating to, okay?”
¶7 Petitioner then submitted three exhibits regarding respondent’s criminal history.
Exhibit 1 demonstrated respondent’s aggravated domestic battery conviction on July 20,
2009, in matter 09-CF-105, Seventh Judicial Circuit, Jersey County, Illinois. Respondent
had pled guilty to aggravated domestic battery in violation of section 12-3.3 of the Criminal
Code of 1961 (720 ILCS 5/12-3.3 (West 2008)) and was sentenced to three years’
incarceration and two years of mandatory supervised released. Exhibit 1 further indicated
3 that on June 26, 2009, respondent struck Holly M. Naylor 1 in the face with a TV tray which
caused a large laceration between her eyes and fractured Naylor’s nasal cavity.
¶8 Petitioner’s exhibit 2 demonstrated respondent’s felony convictions on charges of
forgery and possession of a forging instrument on February 7, 2019, in matter 1811-
CR03592-1, St. Charles City, Missouri. Petitioner’s exhibit 3 was a copy of respondent’s
pretrial services criminal history in case 17-CF-2379, Third Judicial Circuit, Madison
County, Illinois. The pretrial services criminal history indicated that, along with numerous
misdemeanor convictions dating back to 1993, respondent had felony convictions in 2006,
2008, 2009, 2012, and 2016. 2
¶9 There were no objections to the exhibits and the circuit court admitted the exhibits
into evidence. Petitioner also orally stated for the record that respondent was convicted of
at least three felonies, with one felony conviction within the previous five years, as required
for a finding of depravity pursuant to section 1(D)(i) of the Adoption Act (750 ILCS
50/1(D)(i) (West 2018)). Petitioner also read respondent’s felony convictions into the
record. The circuit court confirmed that respondent was stipulating to the same.
“THE COURT: And, [respondent’s counsel], it’s my understanding that
you’re stipulating to that; is that correct?
1 Holly M. Naylor is the biological mother of the minor children. Naylor was determined unfit and her parental rights were terminated by the circuit court concurrent with respondent but are not at issue in this appeal.
06-CF-834, Madison County, Illinois: felon probationer escape and retail theft; 08-CF-2847, 2
Madison County, Illinois: obstruction of justice/destroying evidence; 09-CF-105, Jersey County, Illinois: aggravated domestic battery; 12-CF-1837, Madison County, Illinois: identity theft; and 16-CF-2167, Madison County, Illinois: domestic battery/bodily harm. 4 [RESPONDENT’S COUNSEL]: Yes, Your Honor.”
¶ 10 The circuit court then held:
“THE COURT: Okay. Based upon the evidence presented to the Court, the
Court finds that the Respondent James Lewis Lyons, III, has had at least three felony
convictions with at least one felony conviction in the last five years, and based upon
the stipulation will find him depraved in regards to the unfitness. So, he’s found
unfit by clear and convincing evidence by the stipulation.”
¶ 11 The circuit court entered a written order the same day as follows:
“Cause called on fitness as to the defendant, James L. Lyons, III. The
Defendant, after consultation with his attorney stipulates to the findings of unfitness
pursuant to 750 ILCS 50/1(i) and to the criminal history as found in the pretrial
services criminal history presented in 17-CF-2379.”
The circuit court’s written order was signed by the judge, respondent, respondent’s counsel,
petitioner, and petitioner’s counsel.
¶ 12 On June 17, 2019, the circuit court entered a nunc pro tunc order stating that the
circuit court’s written order of March 29, 2019, failed to indicate that a hearing was
conducted on March 29, 2019, in which evidence was presented, and that the circuit court
found a factual basis for the acceptance of the respondent’s stipulation of unfitness. As
such, the circuit court’s order of March 29, 2019, was amended to reflect that the circuit
court found a factual basis for respondent’s unfitness stipulation.
5 ¶ 13 On August 12, 2019, the circuit court held a hearing concerning the best interest of
the minor children. Respondent was present at the hearing and represented by counsel. At
the beginning of the hearing, the circuit court stated:
“THE COURT: Okay, and for the record, on June 17, 2019, the mother was
found unfit after a hearing, and on March 29, 2019, the father stipulated and the
Court found the factual basis for a stipulation as to unfitness.”
¶ 14 The circuit court further indicated that the parties were present and were proceeding
with the best interests portion of the termination proceedings pursuant to the factors set
forth in section 1-3(4.05) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
405/1-3(4.05) (West 2018)). At this point, respondent orally requested new counsel.
Respondent informed the circuit court that he wanted:
“to consolidate the guardianship and the Order of Protection that [petitioner] has
because it all involves the same thing, and to hire a private counsel or another
lawyer, I guess, to do all of that. [Current counsel] only been appointed on the
adoption.”
¶ 15 Petitioner objected based on the timing of respondent’s request, and the circuit court
denied respondent’s oral motion for new counsel. The circuit court heard the following
evidence at the best interest hearing.
¶ 16 A. Testimony of Petitioner
¶ 17 Petitioner testified that she was 65 years old and in good health. She stated that she
was retired from the U.S. Marine Corps and that there was nothing that prevented her from
taking care of the minor children. Petitioner resided in South Roxana, Illinois, with the 6 minor children and her mother. At the time of the hearing, petitioner stated that Brayden
was six years old and Logan was three years old. The minor children had resided with
petitioner since November 17, 2015.
¶ 18 According to petitioner’s testimony, in November 2015, petitioner was contacted
by her daughter and informed that respondent needed a place for his children to reside.
Petitioner contacted respondent directly and respondent had stated that “they were down
and out with money and stuff like that.” Petitioner told respondent that she would provide
a home for the minor children for a period of one month. Respondent informed petitioner
that he would only need a place for his minor children for two weeks. Respondent,
however, did not come for the minor children in two weeks, or in a month. Petitioner
testified that respondent never made any effort to have the minor children returned to him
until petitioner filed for guardianship in 2017. At that time, petitioner stated respondent
“fought it” but “they went back after almost a year” and petitioner obtained guardianship
of the minor children in 2018.
¶ 19 Petitioner testified that respondent never took the minor children for medical care.
Petitioner stated that the minor children were currently on public aid but would be covered
under petitioner’s military medical insurance if she were allowed to adopt the minor
children. According to petitioner, respondent had also not provided any financial support.
Petitioner stated that, on one occasion, respondent and the minor children’s mother
“brought over like two or three yogurts for Brayden.”
¶ 20 Petitioner also testified that respondent did not visit the minor children. Petitioner
stated that she had attempted to give respondent a Wednesday and a Sunday for visitation 7 for two to three hours, but petitioner could “probably count on one hand when [respondent]
actually came and spent time.” Petitioner testified that in the two years before petitioner
was granted guardianship, respondent and/or the minor children’s mother had visited the
minor children less than 10, but probably no more than 7, times. Petitioner testified that
she worked with respondent on visitation until around December of 2016 but then stopped
because respondent and/or the minor children’s mother were not showing up.
¶ 21 When specifically asked about the respondent, petitioner testified that respondent
had probably been to visit the minor children approximately three times and the last visit
would have been in March 2016, for Brayden’s third birthday. Petitioner stated it was the
only birthday of the minor children that respondent attended. Petitioner did admit that
respondent sent a lot of correspondence to her and the minor children. The correspondence
directed to petitioner, however, accused petitioner of molesting the minor children and
“things of that nature.” Petitioner stated that she had obtained an order of protection against
respondent based on respondent’s correspondence. The order of protection has been in
place continuously since February 2017 and currently expires in 2021. Petitioner further
stated that respondent was convicted of violating the order of protection and intimidating
a witness in a proceeding in the circuit court of Madison County, Illinois, cause number
17-CF-2288.
¶ 22 Petitioner stated that the minor children were “happy adjusted kids.” According to
petitioner, the minor children have their own room and love their home. The minor children
have stayed in the same home and have not been required to move, so the minor children
are familiar with, and have friends in, the neighborhood. Petitioner testified that Brayden 8 is doing well in school and Logan is doing well in pre-K school. Further, petitioner’s
mother, daughter, granddaughters, and sister are in the area and often interact with the
minor children. The minor children refer to petitioner as “mom” and petitioner’s daughter
as their sister. Petitioner acknowledged that Logan had asthma and that there were a few
medical issues in the beginning, but further stated that Logan was under medical care and
his asthma was under control.
¶ 23 Petitioner testified that there had never been any criminal activity in her home in the
last five years, no episodes of domestic violence, and no police calls. According to
petitioner, the minor children are in a stable home and they are loved.
¶ 24 Petitioner admitted that the minor children have a sister and two brothers and that
the minor children have no contact with their siblings. Petitioner also admitted that she
smokes approximately a half of a pack of cigarettes a day, but does so outside of the house.
Petitioner acknowledged that smoking was potentially harmful to children, especially a
child with asthma. Petitioner also acknowledged that there was an issue with the air quality
in South Roxana due to a refinery, and an issue with toxic soil, but petitioner had no current
plans of moving. Petitioner stated that if a move was necessary for the minor children’s
health, she would relocate.
¶ 25 Although respondent is petitioner’s nephew, petitioner freely admitted that she no
longer cared about respondent. Petitioner testified that “[respondent] is a piece of crap,
okay. He is. It’s not his first domestic and it won’t be his last. He will hurt those kids.”
Petitioner contends that respondent had threatened to burn her house down, and that she
believed that respondent would harm the minor children. Because of the threats, petitioner 9 does not speak about the respondent around the minor children. Petitioner also stated that
she does not take the minor children to visit respondent in prison because petitioner
believes a prison is not a place for children. According to petitioner, respondent had ample
time to have a relationship with the minor children instead of obtaining felony convictions.
¶ 26 Finally, petitioner admitted that respondent contacted the Department of Children
and Family Services (DCFS) alleging that petitioner abused the minor children, and that
DCFS determined that the allegation was unfounded. Petitioner also acknowledged that
her brother filed a DCFS complaint against her in 1995, accusing petitioner of sexually
abusing him.
¶ 27 B. Testimony of Jayme Warren
¶ 28 Jayme Warren 3 testified that is she is the petitioner’s daughter and the respondent’s
cousin. Jayme stated that she speaks with her mother daily and still communicates with the
respondent through telephone calls and letters. Jayme stated that she sees the minor
children at least once a week and attempts to take the minor children overnight about once
every other week. According to Jayme, the minor children are happy, excitable, and
growing mentally and physically. Jayme stated that she talks to the minor children about
their feelings and tells them about her cousin, but she does not clarify to the minor children
that her cousin is the minor children’s father.
¶ 29 Jayme testified that in her communication with respondent, she inquires how
respondent is doing, what classes respondent is taking, and tells respondent about the minor
3 Since the witness’s and petitioner’s surnames are Warren, this court will refer to the witness by her first name to avoid any potential confusion. 10 children. Jayme testified that when she talks about the minor children to respondent,
respondent states that he misses them, and Jayme believes respondent. Jayme also stated,
however, that she believed respondent “misses the idea of them more.” By that, Jayme
explained that thinking about having fun with children can sound great, but having fun is
not always what it turns out to be because parenting is more involved than hanging out at
a beach because “[y]ou have to deal with the sand in the shorts, and yes, and there is more
to it than the, Oh, let’s go out for a day.”
¶ 30 Jayme stated that she loved the respondent and believed that respondent loved the
minor children. When asked whether she believed respondent would harm the minor
children, Jayme stated that she could not be sure since respondent got frustrated easily.
Jayme testified that she had never witnessed, or heard of, respondent harming the minor
children, but that she had seen respondent hurt other people. Jayme did not believe that
respondent could harm the minor children because petitioner was protective and would not
allow respondent near the minor children. Jayme stated that her mother loved the minor
children and that the minor children loved petitioner. According to Jayme, the minor
children are well integrated in petitioner’s home.
¶ 31 Jayme testified that respondent and the minor children had lived with respondent’s
mother and out of state for a while. Jayme stated that since respondent had been in Illinois,
respondent and the minor children had lived in various motels and respondent had not
provided the minor children with a stable home. From what Jayme had observed,
respondent had not demonstrated the financial ability to take care of the minor children.
Jayme testified that she believed that the best thing respondent did was to place the minor 11 children with petitioner because the minor children were living in a motel and money was
tight when the minor children were residing with respondent.
¶ 32 C. Testimony of Respondent
¶ 33 Respondent testified that he is the father of the minor children. Respondent stated
that he was present at Brayden’s birth. Thereafter, respondent and Brayden resided with
respondent’s mother for 2½ to 3 years. After residing with his mother, respondent moved
with Brayden to California for about six months and then returned when respondent’s
mother’s health got worse. Respondent and Brayden then resided in Granite City, staying
“in motels and whatnot” because respondent’s mother had moved in with petitioner and
petitioner was caring for respondent’s mother. Respondent’s mother died a few months
after respondent returned from California. Respondent stated that Brayden was happy, and
that Brayden loved respondent and that respondent loved Brayden.
¶ 34 Respondent stated that a few months after returning from California, he began
working for a guy in Granite City and that the work involved traveling out of state.
Respondent was making minimum wage, but respondent contended that Brayden had good
clothes, good shoes, and was well fed and well taken care of during this time. Respondent
stated that he was attempting to get a house but stopped working as much and got
incarcerated. Respondent testified that he was doing his best.
¶ 35 Respondent stated that in November 2015 he had contacted petitioner because of
financial hardship. Respondent was working for a fencing company at that time and was
going to Kansas City for work. Respondent stated that he knew the minor children’s mother
would not do well caring for the minor children on her own, so he contacted petitioner for 12 help. Respondent stated that the minor children were only at petitioner’s house for four or
five months that year and that he visited the minor children during that period. Respondent
also stated that he had provided Brayden with clothes, toys, new shoes, and a few things,
but was in and out of town due to work. Respondent was then incarcerated.
¶ 36 Respondent stated that he was not happy about petitioner having the minor children
because respondent was aware of how petitioner tried to control everything. But
respondent’s mother had just died, and they were residing in a motel, so they needed
assistance. Respondent testified that he was struggling to pay the rent by the day and he
wanted a place where the minor children would not be moved around. Respondent testified
that the minor children’s mother was not really the best parent by herself and that
respondent’s family had helped raised Brayden before respondent’s mother’s death.
¶ 37 Respondent stated that, after he left the minor children with petitioner, he visited
pretty regularly at first, but then petitioner began interfering with respondent’s visitation.
Respondent testified that he would attempt to call petitioner and could not reach her for
weeks. Respondent asserted that the petitioner would “make up excuses” why respondent
could not come to visit the minor children.
¶ 38 According to respondent’s testimony, petitioner did not inform respondent that she
had filed for guardianship by forging his signature. Respondent stated that he went to court
and that petitioner’s guardianship of the minor children was denied because respondent
informed the court that he never signed the documents. Respondent visited the minor
children once or twice after that but did not want to remove the minor children from
petitioner’s care. Respondent stated that he was incarcerated on August 25, 2016, and was 13 not able to visit the minor children due to his incarceration. Respondent testified that
petitioner then got guardianship because respondent was incarcerated, and the minor
children’s mother did not contest it.
¶ 39 Respondent testified that the day after petitioner received guardianship, petitioner
obtained an order of protection that included the minor children. Respondent stated that he
was served with the order of protection on February 2, 2017, while incarcerated at a federal
correctional center. Respondent testified that he could not contact the minor children
because of the order of protection. Respondent stated that he had gotten abrasive in his
letters because petitioner had not responded to the 9 or 10 letters respondent had sent to
petitioner over several months, asking about the minor children.
¶ 40 Respondent testified that he had raised Brayden for two years and was with Brayden
every day, so respondent was upset that petitioner would not give him any information
pertaining to Brayden’s welfare. Respondent testified that petitioner was forcing
respondent to become adversarial when there was no need to be so. Respondent admitted
that he began telling petitioner that “she was no good and an old bitch.” Respondent,
however, claimed that he never made any threats of violence towards petitioner or anyone
else.
¶ 41 After the order of protection, respondent stated that he wrote to Jayme. Respondent
testified that in one of his letters to Jayme, the state’s attorney misconstrued a statement in
the letter as a threat. Respondent stated that he only pled guilty to intimidating a witness
because he could not afford an attorney, and that respondent did not believe his chances
were good at trial. Respondent contended that he had filed several motions in an attempt 14 to have the circuit court rehear the guardianship case because it was clear that petitioner
was not going to allow respondent contact with the minor children. Respondent stated that
he has fought the order of protection “tooth and nail” because of the minor children, but
that the circuit court has continued to deny his motions. Respondent testified that he would
like to speak with the minor children but has not been allowed any contact since being
incarcerated.
¶ 42 Respondent submitted various photographs of respondent with Brayden between the
ages of one to three years old. Also submitted were two photographs of the minor children
at petitioner’s home, and respondent asserted that he visited the minor children 10 to 15
different times while the minor children were in petitioner’s care. These photographs were
admitted into evidence without objection. Respondent further asserted that he brought
Brayden a blanket, some toys, “some Nikes,” a box of fruit and yogurt and “things like
that.” Respondent further testified that he had offered his Link card to petitioner, but
petitioner refused to accept it. According to respondent’s testimony, the last time he saw
Brayden was the day before respondent was incarcerated on August 24, 2016. Respondent
stated that he was released in August 2017, however, the order of protection was still in
place, and respondent could not contact the minor children. In January 2018, respondent
was again incarcerated for a parole violation.
¶ 43 Respondent testified that he has taken four or five courses while incarcerated,
including GEO drug rehabilitation, the behavior modification program, and lifestyle
redirection and restoration maintenance. Respondent stated that he had also completed
anger management and was currently enrolled in an automobile body repair course. 15 Respondent further noted that he was signed up for a class called “Inside-Out Dad,” to be
a better father for the minor children. Respondent testified that once he is released from
prison, respondent’s father has agreed to allow respondent the opportunity to perform
automobile body repair and maintenance out of a shop his father has an interest in until
respondent can move on to something else. Respondent stated that, ultimately, his
employment goal was to work on barges.
¶ 44 Respondent also testified that he had earned “good time” for completing the courses
and he expected to be released in approximately 50 days. Respondent stated that he would
be required to complete four years of mandatory supervised release where respondent
would be “on a short leash” and could be taken back into custody for any violation.
¶ 45 Respondent further stated that he spent considerable time with petitioner when he
was a child and lived with petitioner “throughout his childhood” in Bethalto, Illinois.
Respondent’s mother also resided with petitioner at the time. According to respondent’s
testimony, petitioner was operating a foster home, and respondent witnessed petitioner
have a relationship with a 15-year-old girl. Respondent further testified that petitioner had
respondent sleep with her without any pants on, and would enter the bathroom while
respondent was showering or using the toilet. Further, petitioner’s brother came forward
and accused petitioner of sexually molesting him as a child. Respondent stated that because
of those incidents, he was concerned as to petitioner’s true motives in keeping respondent
away from the minor children. Respondent stated that he struggled with the decision to
take the minor children to petitioner but knew that petitioner’s mother and daughter were
also present, so respondent believed the minor children would be alright. 16 ¶ 46 Respondent stated that after being released, he had “places to go and try to find a
house.” Respondent also stated that there was $700 in a settlement from his grandfather
and that respondent was “going to work up from that.” Respondent argued that adoption
would not be in the best interest of the minor children, where the minor children had a
father who loved them, never abused them, and never had a DCFS investigation.
¶ 47 The circuit court requested a recommendation from the minor children’s guardian
ad litem. The guardian ad litem’s recommendation to the circuit court was that it was in
the minor children’s best interests that the parental rights of respondent be terminated so
that petitioner could move forward with adopting the minor children. At the conclusion of
the August 12, 2019, hearing, the circuit court took the matter under advisement.
¶ 48 On August 14, 2019, the circuit court issued a written order finding that respondent
had stipulated on March 29, 2019, to be an unfit parent due to depravity. The circuit court
indicated that it had found a factual basis for respondent’s stipulation and had accepted the
same. The circuit court also indicated that it had considered the testimony and exhibits
tendered at the August 12, 2019, hearing. In evaluating the minor children’s best interests,
the circuit court stated that it used the factors set forth in section 1-3(4.05) of the Juvenile
Court Act (705 ILCS 405/1-3(4.05) (West 2018)), and the circuit court specifically
addressed each factor in its written order. The circuit court then determined:
“Based upon the above, the Court finds that the Petitioner has proved by a
preponderance of the evidence that it is in the minors’ best interests that any and all
parental rights flowing to and through [respondent] *** with respect to the minors
are hereafter permanently terminated. 17 The Court does not make this decision lightly. It was quite obvious to the
Court that [respondent] loves his boys and that he did have a relationship with
Brayden prior to the boys being in [petitioner’s] care. It was also quite obvious that
there is a lot of hostility between [petitioner] and [respondent]. If and when
[petitioner] does in fact adopt both boys, the Court hopes that [petitioner] and
[respondent] may be able to work through their differences so that [respondent] may
be a part of the boys’ lives once he gets out of prison.”
¶ 49 Respondent appeals arguing that the circuit court’s findings that respondent was an
unfit parent and that termination of respondent’s parental rights was in the minor children’s
best interests were against the manifest weight of the evidence
¶ 50 II. ANALYSIS
¶ 51 Before proceeding to an analysis of the issues raised on appeal, we note that
pursuant to Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), except for good cause
shown, this court is to issue a decision within 150 days after the filing of the notice of
appeal. The notice of appeal in this matter was filed on October 21, 2019. Accordingly, the
decision in this case was due to be filed on or before March 19, 2020. However, the
following events resulted in the placing of this appeal on the docket for March 25, 2020:
(1) two motions for extension of time to file the record on appeal, dated November 20,
2019, and December 10, 2019; and (2) a motion for extension of time to file an appellant
brief, dated January 10, 2020. For these reasons, we find good cause to issue this order past
the deadline and proceed to the issues respondent raises on appeal.
18 ¶ 52 A. Unfit on the Grounds of Depravity
¶ 53 On appeal, respondent urges this court to reverse the circuit court’s finding that he
is an unfit parent as set forth in section 1(D)(i) of the Adoption Act. 750 ILCS 50/1(D)(i)
(West 2018). Respondent contends that the circuit court had insufficient evidence of his
felony convictions because the evidence presented at the fitness hearing was a copy of a
pretrial services criminal history that, respondent argues, cannot reach the clear and
convincing standard necessary for the circuit to find respondent an unfit parent. Respondent
further argues that the circuit court was required to closely scrutinize respondent’s
character and credibility at the fitness hearing and failed to do so. Finally, respondent
argues that the circuit court failed to inquire as to whether respondent understood what
information was being used as the basis for a stipulation at the fitness hearing.
¶ 54 To terminate a parent’s parental rights in a proceeding commenced under the
Adoption Act (750 ILCS 50/1(D) (West 2018)), the circuit court must first find, by clear
and convincing evidence, that the parent is unfit. In re M.M., 156 Ill. 2d 53, 61 (1993). A
finding of parental unfitness will not be disturbed on appeal unless it is against the manifest
weight of the evidence. In re C.N., 196 Ill. 2d 181, 208 (2001). A finding is against the
manifest weight of the evidence only if the opposite conclusion is clearly apparent or the
determination is arbitrary, unreasonable, and not based on the evidence. In re G.W., 357
Ill. App. 3d 1058, 1059 (2005). The circuit court’s finding of unfitness is given great
deference because it has the best opportunity to view and evaluate the parties and their
testimony. In re Daphnie E., 368 Ill. App. 3d 1052, 1064 (2006). This court, therefore, does
not reweigh the evidence or reassess the credibility of the witnesses. In re M.A., 325 Ill. 19 App. 3d 387, 391 (2001). Each case concerning parental fitness is unique and must be
decided on the particular facts and circumstances presented. In re Gwynne P., 215 Ill. 2d
340, 354 (2005).
¶ 55 1. Evidence of Respondent’s Felony Convictions
¶ 56 Section 1(D)(i) of the Adoption Act provides, inter alia, a rebuttable presumption
that a parent is depraved if the parent has been criminally convicted of at least three felonies
under federal law, or the laws of any state, and at least one of the felony convictions
occurred within five years prior to the filing of the petition or motion seeking termination
of parental rights. Because the presumption is rebuttable, a parent may still present
evidence showing that, despite the convictions, the parent is not depraved. The
presumption, however, can only be overcome by clear and convincing evidence. 750 ILCS
50/1(D)(i) (West 2018).
¶ 57 In this matter, respondent did not present any evidence to overcome the presumption
of unfitness. Instead, respondent stipulated to the evidence and to his parental unfitness.
On appeal, respondent does not state that his felony convictions were misrepresented or
incorrect but argues that a copy of a pretrial services criminal history was insufficient to
reach the clear and convincing standard. Respondent, however, did not object to the
evidence admitted at the time of the fitness hearing and did not raise the issue within
respondent’s motion to reconsider, or for a new trial.
¶ 58 To preserve an alleged error for appellate review, a party must object at trial and file
a written posttrial motion addressing the alleged error. In re William H., 407 Ill. App. 3d
858, 869-70 (2011). “Where a party fails to make an appropriate objection in the court 20 below, he or she has failed to preserve the question for review and the issue is waived.”
In re April C., 326 Ill. App. 3d 225, 242 (2001). As such, respondent has waived the issue
of whether a copy of pretrial services criminal history was sufficient to reach the clear and
convincing standard.
¶ 59 2. Acceptance of Respondent’s Stipulation
¶ 60 Respondent next argues that the circuit court failed to inquire as to whether
respondent understood that respondent’s parental unfitness, and the evidence in support his
unfitness, was being stipulated to at the hearing on March 29, 2019. Respondent, however,
provides no statutory or precedential support for his argument that the circuit court was
required to inquire whether respondent understood the proffered stipulation.
¶ 61 The circuit court, as a requirement of due process, was obligated to determine
whether a factual basis existed for an admission of parental unfitness before it accepted
respondent’s stipulation. In re Tamera W., 2012 IL App (2d) 111131, ¶ 32. However, the
circuit court is not required to admonish respondent regarding the consequences of his
admission, or to inquire regarding the voluntariness of his admission. Id. ¶ 34. In this
matter, the circuit court went through each of respondent’s felony convictions which
formed the basis of respondent’s stipulation and found that a factual basis existed for an
admission of parental unfitness before it accepted respondent’s stipulation. As such, we
find respondent’s argument that the circuit court was required to conduct an inquiry into
respondent’s understanding of his stipulation is without merit.
21 ¶ 62 3. Respondent’s Character and Credibility
¶ 63 Respondent’s argument that the circuit court was required to inquire into
respondent’s character and credibility at the fitness hearing is misplaced. Respondent cites
to In re J’America B., 346 Ill. App. 3d 1034, 1046 (2004), which states that, “[i]n
determining depravity, the trier of fact is required to closely scrutinize the character and
credibility of the parent.” The underlying circuit court proceeding in J’America was a
hearing on parental fitness in which depravity was contested and rebuttal evidence was
presented. Here, respondent did not contest parental unfitness, and presented no evidence
to rebut the presumption of his parental unfitness. As such, the circuit court was not
required to scrutinize respondent’s character and credibility at the fitness hearing since
respondent’s parental unfitness was undisputed.
¶ 64 Based on the above, we find that the circuit court had sufficient evidence to find a
factual basis for respondent’s stipulation of parental unfitness, and that the circuit court
was not required to inquire on respondent’s understanding of the stipulation. We further
find that the circuit court was not required to scrutinize respondent’s character and
credibility at the fitness hearing. As such, the circuit court’s determination that respondent
was an unfit person pursuant to section 1(D)(i) of the Adoption Act was not against the
manifest weight of the evidence. 750 ILCS 50/1(D)(i) (West 2018).
¶ 65 B. Termination of Parental Rights
¶ 66 Once a finding of parental unfitness is made, the circuit court must then determine
whether it is in the best interests of the child that the parental rights be terminated. In re
J.L., 236 Ill. 2d 329, 337-38 (2010). During this stage of the proceedings, the focus of the 22 circuit court’s scrutiny shifts from the rights of the parents to the best interests of the child.
In re B.B., 386 Ill. App. 3d 686, 697 (2008). In determining the best interests of the child,
the circuit court is required to consider certain enumerated factors in the context of the
child’s age and developmental needs. 705 ILCS 405/1-3(4.05) (West 2018). These factors
include (a) the physical safety and welfare of the child, including food, shelter, health, and
clothing; (b) the development of the child’s identity; (c) the child’s background and ties,
including the familial, cultural, and religious ties; (d) the child’s sense of attachments,
which includes where the child actually feels love, attachment, and a sense of being valued,
the child’s sense of security and familiarity, the continuity of affection for the child, and
the least disruptive placement alternative for the child; (e) the child’s wishes and long-term
goals; (f) the child’s community ties, including church, school, and friends; (g) the child’s
need for permanence, which includes the child’s need for stability and continuity of
relationships with parent figures and with siblings and other relatives; (h) the uniqueness
of every family and child; (i) the risks attendant to entering and being in substitute care;
and (j) the preferences of the persons available to care for the child. Id. The circuit court’s
best interests determination does not need to contain an explicit reference to each of these
factors. In re Tajannah O., 2014 IL App (1st) 133119, ¶ 19.
¶ 67 Respondent acknowledges that the circuit court’s written order of August 14, 2019,
addressed all of the statutory best interest factors that the circuit court was required to
consider. However, respondent argues that those factors were skewed in petitioner’s favor
because petitioner had systematically attempted to remove respondent from the lives of the
minor children. Respondent argues that the circuit court’s determination that it was in the 23 minor children’s best interests to terminate respondent’s parental rights was against the
manifest weight of the evidence because the circuit court failed to consider petitioner’s
alienation of respondent from the minor children. Respondent argues that if the adoption
case had been consolidated with the guardianship and order of protection cases, the circuit
court would have been able to address petitioner’s conduct and not rely solely on the
testimonies of the parties at the best interests hearing. It is respondent’s position that the
circuit court failed to mention that the only reason respondent did not have a relationship
with the minor children was because of the actions of the petitioner.
¶ 68 In this matter, it is clear that the circuit court was aware of the hostility between the
parties when making its determination that termination of respondent’s parental rights was
in the best interests of the minor children. The circuit court noted the hostility between
respondent and petitioner in the circuit court’s written order, as follows:
“It was also quite obvious that there is a lot of hostility between Belinda and James.
If and when Belinda does in fact adopt both boys, the Court hopes that Belinda and
James may be able to work through their differences so that James may be a part of
the boys’ lives once he gets out of prison.”
¶ 69 As stated above, the circuit court’s best interests determination does not need to
contain an explicit reference to each factor taken under consideration. Further, concerning
respondent’s argument on the consolidation of the cases, the circuit court’s written order
noted that, “[s]ince this Judge is already assigned the aforementioned cases, there was no
need for the consolidation.”
24 ¶ 70 Respondent also argues that the circuit court ignored respondent’s testimony that
would have impacted the circuit court’s findings. Respondent states that he testified that
he had a job upon release and that he would be released within three months of the hearing.
The circuit court’s written order, however, contradicts respondent’s argument that the
circuit court ignored his testimony. The circuit court noted in its order that respondent
indicated that he would like to get employment as a barge worker, but also indicated that
while barge work was a good paying job, it usually required many weeks away from home
at a time. Further, the circuit court noted that respondent would be released later that year,
but also noted that respondent was required to serve four years of mandatory supervised
release wherein respondent could be returned to jail for any violations. As such, there is no
indication that the circuit court ignored respondent’s testimony.
¶ 71 Respondent next argues that the circuit court ignored the fact that the minor children
have three siblings, and that the minor children would have no relationship with those
siblings if the adoption proceeded. Other than the fact that the minor children have siblings,
there was no evidence presented at the best interests hearing concerning the location of the
siblings, who had custody of the siblings, or whether the siblings had previous contact with
the minor children. There was also no testimony at the best interests hearing that the minor
children would have any contact with their siblings if respondent’s parental rights were not
terminated. The only testimony at the best interests hearing concerning the minor children’s
familial ties was that the minor children interacted with many biological family members
at petitioner’s home. Respondent’s argument that the circuit court ignored the fact that the
minor children have three siblings is without merit. 25 ¶ 72 Finally, respondent argues that the circuit court did not take into consideration that
respondent raised Brayden for the first 2½ years of Brayden’s life and that there was no
evidence presented demonstrating that the minor children were detached from respondent.
In the circuit court’s written order, the court noted in several of its findings that it had no
doubt that both petitioner and respondent loved the minor children. The circuit court also
specifically stated that:
“The Court does not make this decision lightly. It was quite obvious to the
Court that James loves his boys and that he did have a relationship with Brayden
prior to the boys being in Belinda’s care.”
¶ 73 The circuit court acknowledged respondent’s relationship with Brayden but also
acknowledged that Logan had resided with petitioner for all but the first five weeks of his
life. The circuit court further noted that Brayden had lived more than half of his life with
petitioner. As such, it is clear that the circuit court did consider the fact that respondent
raised Brayden for the first 2½ years of Brayden’s life but also considered that petitioner
had raised Brayden since that time and had raised Logan for all but the first five weeks of
his life.
¶ 74 Based on the above, the circuit court’s determination that termination of
respondent’s parental rights was in the best interests of the minor children was not against
the manifest weight of the evidence.
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, we affirm the judgment of the circuit court.
26 ¶ 77 Affirmed.