In re Brandon K.

2017 IL App (2d) 170075

• Court: Appellate Court of Illinois
• Decided: July 13, 2017
• Docket: 2-17-00752-17-00762-17-0077 cons.
• Status: Unpublished

Opinion

2017 IL App (2d) 170075 Nos. 2-17-0075, 2-17-0076, 2-17-0077 cons. Opinion filed July 13, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re BRANDON K., a Minor ) Appeal from the Circuit Court ) of Kane County. ) ) No. 14-JA-93 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. S. K., ) William Parkhurst, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

In re NATHAN K., a Minor ) Appeal from the Circuit Court ) of Kane County. ) ) No. 14-JA-94 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. S. K., ) William Parkhurst, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

In re JUSTIN K., a Minor ) Appeal from the Circuit Court ) of Kane County. ) ) No. 14-JA-95 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. S. K., ) William Parkhurst, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION 2017 IL App (2d) 170075

¶1 Respondent, S. K., appeals from the Kane County circuit court’s order terminating his

parental rights to his three minor children, Brandon K., Nathan K., and Justin K. In the

underlying criminal action, a jury found respondent guilty of the first-degree murder of the

minors’ mother (see 720 ILCS 5/9-1(a)(1) (West 2014)), based on evidence of strangulation.

Respondent’s direct appeal from the conviction is pending in this court.

¶2 The trial court found that the State had shown by clear and convincing evidence that

respondent was unfit, based on (1) depravity (see 750 ILCS 50/1(D)(i) (West 2014)); (2) failure

to make reasonable progress toward the return of the minors to him during the nine-month period

from June 26, 2015, to March 26, 2016 (see 750 ILCS 50/1(D)(m)(ii) (West 2014)); and (3)

failure to make reasonable efforts to correct the conditions that were the basis for the removal of

the minors from him during the nine-month period from June 26, 2015, to March 26, 2016 (see

750 ILCS 50/1(D)(m)(i) (West 2014)). However, the trial court also found that the State did not

prove respondent unfit for failing to make reasonable efforts from September 25, 2014, to June

25, 2015 (see 750 ILCS 50/1(D)(m)(i) (West 2014)). The trial court then determined that

termination of respondent’s parental rights was in the minors’ best interests. Respondent does

not contest the best-interests determination but argues that the evidence does not support the

court’s finding of unfitness. We affirm.

¶3 I. BACKGROUND

¶4 A. Adjudication and Disposition

¶5 Brandon was born on September 1, 2004, Nathan was born on April 28, 2007, and Justin

was born on December 8, 2008. On July 6, 2014, the Department of Children and Family

Services (DCFS) received a hotline call stating that the minors’ mother was found deceased

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under suspicious circumstances. At the time of their mother’s death, the boys were nine, seven,

and five years old, respectively.

¶6 At a temporary-custody hearing on July 21, 2014, respondent stipulated that, on July 11,

2014, he was charged with two counts of first-degree murder for the mother’s death and was

incarcerated in the Kane County jail on a $1.5 million bond. The court found that probable cause

and urgent and immediate necessity existed for the removal of the minors. DCFS was granted

custody, and the minors were placed with their maternal grandfather.

¶7 On September 24, 2014, the trial court adjudicated the minors dependent. See 705 ILCS

405/2-4(1)(a) (West 2014). On October 27, 2014, respondent was found unfit, unable, and

unwilling to care for and protect the minors, and the minors were made wards of the court. The

initial goal was for the minors to return home within 12 months. The minors remained in the

care of their maternal grandfather.

¶8 B. Permanency Reviews

¶9 1. November 2014 through January 2015

¶ 10 On January 20, 2015, the trial court conducted a permanency review. The court heard

evidence that respondent’s criminal trial was scheduled for that spring. Christina Divito, a

caseworker from the Youth Service Bureau (YSB), reported that respondent was cooperating

with DCFS to the extent that he could while in custody. Divito scheduled an appointment that

week for respondent to sign various consent forms and complete an integrated assessment, which

was required before services could be offered. The minors remained with their maternal

grandfather.

¶ 11 2. February 2015 through June 2015

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¶ 12 At a permanency review on July 7, 2015, the court continued the matter to January 20,

2016, because of intervening events in respondent’s criminal case. On March 16, 2015,

respondent had been found guilty of first-degree murder, and on July 31, 2015, respondent had

been sentenced to 30 years’ imprisonment. On November 6, 2015, respondent filed a direct

appeal from the murder conviction, which is pending.

¶ 13 3. July 2015 through March 2016

¶ 14 On January 20, 2016, Kelly Beinborn, a caseworker assigned to the minors in October

2015, reported that respondent had completed the integrated assessment in June 2015. Domestic

violence and mental health services were recommended, but respondent had not attempted to

follow through with those recommendations. Those services had been unavailable in the Kane

County jail, but in August 2015, soon after his conviction, respondent was transferred to

Stateville Correctional Center, where the services were available. In January 2016, respondent

was transferred to Menard Correctional Center. Beinborn reported that she would follow up as

to the availability of services there.

¶ 15 Respondent had submitted letters to the minors, but they were not delivered. The letters

were deemed to be not therapeutically recommended, because respondent had made certain

promises in the letters that he could not keep, due to his incarceration. The maternal grandfather

was willing to provide permanency through adoption.

¶ 16 On February 5, 2016, respondent filed a motion to stay the proceedings during the

pendency of his criminal appeal. On March 30, 2016, the motion was heard and denied.

¶ 17 C. Termination of Parental Rights

¶ 18 On July 16, 2016, the State filed three amended petitions for termination of respondent’s

parental rights and the power to consent to adoption. Each petition was directed at one of the

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minors and contained identical allegations. Following several hearings at which the State

presented evidence regarding respondent’s first-degree-murder conviction and whether he had

made reasonable efforts and progress, the trial court found respondent unfit, based on (1)

depravity (750 ILCS 50/1(D)(i) (West 2014)); (2) failure to make reasonable progress toward the

return of the minors to him during the nine-month period from June 26, 2015, to March 26, 2016

(750 ILCS 50/1(D)(m)(ii) (West 2014)); and (3) failure to make reasonable efforts to correct the

conditions that were the basis for the removal of the minors from him during the nine-month

period from June 26, 2015, to March 26, 2016 (750 ILCS 50/1(D)(m)(i) (West 2014)).

¶ 19 The cause proceeded to a best-interests hearing. The court found that it was in the

minors’ best interests to terminate respondent’s parental rights and entered a judgment doing so.

This timely appeal followed.

¶ 20 II. ANALYSIS

¶ 21 Respondent appeals from the termination of his parental rights. Initially, we admonish

respondent’s counsel for using the minors’ full names in briefing materials, in violation of

Illinois Supreme Court Rule 660(c) (eff. Oct. 1, 2001), which provides as follows:

“In all appeals filed from proceedings under the Juvenile Court Act, the minor(s) shall be

identified by first name and last initial or by initials only. The preferred method is first

name and last initial. The alternative method of initials only is to be used when, due to an

unusual first name or spelling, the preferred method would create a substantial risk of

revealing a minor’s identity. The name(s) of the involved minor(s) shall not appear on

any documents filed with the Appellate Court or any subsequent court.”

¶ 22 Turning to the merits of the appeal, we emphasize that a parent’s right to raise his or her

biological child is a fundamental liberty interest and that the involuntary termination of that right

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is a drastic measure. In re Haley D., 2011 IL 110886, ¶ 90. Accordingly, the Juvenile Court Act

of 1987 provides a two-stage process for the involuntary termination of parental rights. 705 ILCS

405/2-29(2) (West 2014). Initially, the petitioner must prove by clear and convincing evidence

that the parent is unfit. 705 ILCS 405/2-29(2), (4) (West 2014); 750 ILCS 50/1(D) (West 2014);

In re Adoption of Syck, 138 Ill. 2d 255, 277 (1990); In re Antwan L., 368 Ill. App. 3d 1119, 1123

(2006). We will reverse the trial court’s finding of unfitness only if it is against the manifest

weight of the evidence. A determination of unfitness is against the manifest weight of the

evidence only if the opposite conclusion is clearly evident or the determination is unreasonable,

arbitrary, or not based on the evidence presented. In re Addison R., 2013 IL App (2d) 121318,

¶ 22.

¶ 23 If the court finds the parent unfit, the petitioner must then show that termination of

parental rights would serve the child’s best interests. 705 ILCS 405/2-29(2) (West 2014); Syck,

138 Ill. 2d at 277; Antwan L., 368 Ill. App. 3d at 1123. As our supreme court has noted, at the

best-interests phase, “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).

Respondent does not challenge the trial court’s best-interests determination on appeal, so our

analysis is limited to the unfitness finding.

¶ 24 Section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2014)) sets forth numerous

grounds on which a parent may be found unfit, but any one of the grounds, if properly proven, is

sufficient to enter a finding of unfitness. In re Joshua S., 2012 IL App (2d) 120197, ¶ 44. The

trial court is generally in the best position to assess the credibility of the witnesses and, therefore,

we will not reassess credibility on appeal. As cases concerning parental unfitness are sui

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generis, unique unto themselves, courts generally do not make factual comparisons to other

cases. Joshua S., 2012 IL App (2d) 120197, ¶ 44.

¶ 25 The Adoption Act specifies the following among the grounds for a finding of parental

unfitness:

“(i) Depravity. Conviction of any one of the following crimes shall create a

presumption that a parent is depraved which can be overcome only by clear and

convincing evidence: (1) first degree murder in violation of paragraph 1 or 2 of

subsection (a) of Section 9-1 of the Criminal Code of 1961 or the Criminal Code of 2012

[(Criminal Code) (720 ILCS 5/1-1 et seq. (West 2014))] or conviction of second degree

murder in violation of subsection (a) of Section 9-2 of the Criminal Code *** of a parent

of the child to be adopted ***.

***

There is a rebuttable presumption that a parent is depraved if that parent has been

criminally convicted of either first or second degree murder of any person as defined in

the Criminal Code *** within 10 years of the filing date of the petition or motion to

terminate parental rights.” 750 ILCS 50/1(D)(i) (West 2014).

¶ 26 Respondent challenges the finding of depravity on two grounds. First, he asserts that the

statutory presumption in section 1(D)(i) of the Adoption Act should not apply unless and until all

avenues of appeal have been exhausted. Second, he asserts that the State must show that the

parent committed more than one offense or that the offense committed was based upon “heinous

circumstances or brutal, wanton cruelty.” Respondent points out that he was convicted of only

one offense and downplays the heinousness of a murder involving “death by asphyxiation.” We

agree with the State that respondent’s arguments are flawed in that they disregard the

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unambiguous language of section 1(D)(i) while relying entirely on certain Illinois cases that

predate the statutory presumption and on case law from other states.

¶ 27 Although the ultimate finding of unfitness is subject to review under the manifest-weight-

of-the-evidence standard, the parties agree that respondent’s arguments raise primarily a question

of statutory interpretation, which we review de novo. See In re Donald A.G., 221 Ill. 2d 234,

246 (2006). The primary objective of statutory interpretation is to give effect to the intent of the

legislature, and the most reliable indicator of legislative intent is the language of the statute given

its plain, ordinary, and popularly understood meaning. Gardner v. Mullins, 234 Ill. 2d 503, 511

(2009). The statute “ ‘should be read as a whole with all relevant parts considered.’ ” Gardner,

234 Ill. 2d at 511 (quoting Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990)). If the statutory

language is clear, a reviewing court need not resort to extrinsic aids of construction, such as

legislative history. Northern Kane Educational Corp. v. Cambridge Lakes Education Ass’n, 394

Ill. App. 3d 755, 758 (2009). In such a situation, a court may not depart from the plain language

of the statute and read into it exceptions, limitations, or conditions that are inconsistent with the

express legislative intent. Landheer v. Landheer, 383 Ill. App. 3d 317, 321 (2008). Nonetheless,

when reviewing a statute, we also consider the subject it addresses and the legislature’s apparent

objective in enacting it, while presuming that the legislature did not intend to create absurd,

inconvenient, or unjust results. Fisher v. Waldrop, 221 Ill. 2d 102, 112 (2006).

¶ 28 Section 1(D)(i) of the Adoption Act provides that a “conviction” of first-degree murder

under section 9-1(a)(1) of the Criminal Code creates a presumption that a parent is depraved and

that the presumption can be overcome only by clear and convincing evidence. 750 ILCS

50/1(D)(i) (West 2014). Section 2-5 of the Criminal Code provides that “ ‘[c]onviction’ means a

judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of

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guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction

authorized to try the case without a jury.” 720 ILCS 5/2-5 (West 2014). Respondent does not

contest the authority of the trial court in the criminal case to enter judgment on the jury’s verdict

that he committed the first-degree murder of the minors’ mother under section 9-1(a)(1) of the

Criminal Code. The plain and ordinary meanings of section 2-5 of the Criminal Code and

section 1(D)(i) of the Adoption Act demonstrate that the judgment in the criminal case qualifies

as a “conviction” to create a presumption of depravity under section 1(D)(i).

¶ 29 Respondent objects to the trial court’s “literal reading” of section 1(D)(i), but in fact he

attempts to read into the statute a condition that the legislature never intended. See Board of

Education of Woodland Community Consolidated School District 50 v. Illinois State Charter

School Comm’n, 2016 IL App (1st) 151372, ¶ 38 (“a court may not depart from the plain

language of a statute by reading into it exceptions, limitations, or conditions that the legislature

did not express”). He asserts that his murder conviction would be a ground for the statutory

presumption only upon “the exhaustion of all state court avenues of appeal consistent with

decades of case law.”

¶ 30 Our supreme court has rejected the related notion that an unfitness determination may be

postponed while the underlying criminal conduct is under appellate review. The court held, “the

Adoption Act does not call for courts to reserve ruling on findings of unfitness which are related

to criminal matters until the appellate process in the underlying cause has been exhausted.”

Donald A.G., 221 Ill. 2d at 254. “Regardless of how painful it may be to a parent, regardless of

whether the parent is likely to prevail on appeal, if he is convicted of murdering the children’s

other parent, then he is unfit and his parental rights are to be terminated immediately, unless he

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can overcome the presumption of unfitness by clear and convincing evidence.” In re C.M.J., 278

Ill. App. 3d 885, 892 (1996).

¶ 31 Disregarding the longstanding statutory presumption of depravity, respondent argues that

the State was required to show that he has “an inherent deficiency of moral sense and rectitude”

with evidence of “repetitious acts of sufficient duration to establish a deficiency in a moral sense

and either an inability or an unwillingness to conform to accepted moral standards.” He

concludes that the State failed to meet this standard, because “one criminal conviction is not

sufficient to establish unfitness based on depravity” and the State did not show that his murder

conviction was accompanied by a finding of brutal and heinous conduct.

¶ 32 In support, respondent cites Stalder v. Stone, 412 Ill. 488 (1952), Young v. Prather, 120

Ill. App. 2d 395 (1970), In re Sanders, 77 Ill. App. 3d 78 (1979), In re S.H., 284 Ill. App. 3d 392

(1996), and other cases, but neither those Illinois cases nor those he cites from other jurisdictions

addressed the current version of section 1(D)(i) of the Adoption Act, which applies to

respondent. Respondent takes superficially favorable language from those cases out of context,

implies that the conduct in those cases makes his murder conviction appear less abhorrent by

comparison, and incorrectly concludes that the finding of depravity must be reversed. See

Joshua S., 2012 IL App (2d) 120197, ¶ 44 (courts generally do not make factual comparisons to

other cases concerning parental unfitness).

¶ 33 Respondent cites no authority to refute the trial court’s conclusion that the judgment in

the criminal case qualifies as a “conviction” to create a presumption of depravity under section

1(D)(i) of the Adoption Act. Adopting respondent’s position would contravene the supreme

court’s definitive pronouncement that a court should not reserve ruling on a finding of unfitness

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that is related to a criminal matter until the appellate process in the underlying cause has been

exhausted. Donald A.G., 221 Ill. 2d at 254.

¶ 34 Respondent disagrees with the presumption itself. He does not argue that he rebutted the

presumption by clear and convincing evidence presented at the unfitness hearing. We conclude

that the trial court’s unfitness finding based on depravity is not against the manifest weight of the

evidence.

¶ 35 Our determination that the finding of unfitness based on depravity is not against the

manifest weight of the evidence obviates the need to consider the other bases for finding

unfitness. See Joshua S., 2012 IL App (2d) 120197, ¶ 44 (any one ground, if properly proven, is

sufficient to enter a finding of unfitness).

¶ 36 III. CONCLUSION

¶ 37 We conclude that the finding of unfitness based on depravity is not against the manifest

weight of the evidence. Therefore, we affirm the judgment of the circuit court terminating

respondent’s parental rights.

¶ 38 Affirmed.

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