Opinion
No. 2-14-0200
07-25-2014
In re KYLI W., a Minor (Devinn M.D. and Michael A.D., Petitioners-Appellees, v. Jonathan W., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Lee County.
No. 13-AD-6
Honorable
,
Judge, Presiding.
PRESIDING JUSTICE BURKE delivered the judgment of the court.
Justices Schostok and Birkett concurred in the judgment.
ORDER
¶ 1 Held: In private adoption case, the trial court's finding of parental unfitness of father was not against the manifest weight of the evidence. ¶ 2 Petitioner Devinn M.D. and respondent, Jonathan W., are the biological parents of Kyli W. Devinn married petitioner Michael A.D., and the couple initiated private adoption proceedings by petitioning to terminate respondent's parental rights. The trial court granted the petition, finding respondent unfit based on depravity. See 750 ILCS 50/1(D)(i) (West 2012)). Kyli was less than five months old when respondent was incarcerated most recently, and at the time of the adoption hearing, she was more than four and a half years old. Respondent appeals, arguing that the finding of unfitness is against the manifest weight of the evidence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On May 21, 2013, petitioners filed their petition for adoption of Kyli, alleging that respondent was unfit for various statutory reasons, including depravity based on multiple felony convictions. On November 14, 2013, Darla Foulker, the guardian ad litem, filed a report in which she recommended the adoption after speaking with Kyli and petitioners. Foulker reported that Kyli was born on July 14, 2009, and Devinn also had a 16-month old son, Kaethen, and was expecting another baby in April 2014. Devinn had custody of Kyli since birth, the children lived with petitioners, and Michael played a major role in Kyli's life. Petitioners were married and had been together about two and a half years. Petitioners provided for Kyli's daily social, emotional, physical, and economic needs. Kyli and Michael had shared a close and loving relationship like that of a father and daughter, and Michael is the only father Kyli had ever known. In contrast, respondent had not played a role in Kyli's life since her birth, and he had been continuously incarcerated since his arrest on December 1, 2009. Foulker concluded that approving the adoption would be in Kyli's best interest and would solidify the already tight family bond. Petitioners sought the adoption, in part, to change Kyli's surname before she enrolled in school. ¶ 5 On February 25, 2014, the trial court found respondent to be an unfit parent on the grounds of depravity. Petitioners introduced evidence that respondent previously had been convicted of six felonies. At the time of the hearing, respondent was serving a nine-year sentence for a burglary conviction (720 ILCS 5/19-1(a) (West 2008)), entered on January 25, 2010, which was within five years of the filing of the petition. On April 24, 2006, respondent was convicted of aggravated unlawful failure to obey an order to stop (625 ILCS 5/4-103.2(a)(7)(A) (West 2004)); disarming a peace officer (720 ILCS 5/31-1(a) (West 2004)); unlawful possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2004)); aggravated battery (720 ILCS 5/12-4(b)(6) (West 2004)); and aggravated fleeing or attempting to elude a police officer (625 ILCS 5/11-204.1(a)(4) (West 2004)). The trial court admitted copies of the sentencing orders for the six felonies as well as a certified copy of respondent's conviction of burglary. ¶ 6 Respondent testified that, when Devinn became pregnant with Kyli, he was 25 years old and Devinn was 17 years old. Respondent stated that he provided financial support toward the household expenses while Devinn was pregnant but did not pay any of her medical expenses. Respondent admitted that he had provided no financial, physical, educational, or emotional support for Kyli since he was incarcerated. ¶ 7 Respondent did testify that he twice accompanied Kyli to the local hospital's emergency room when she suffered choking episodes. Respondent also testified to his living arrangement with Devinn and Kyli and his financial contributions to their living expenses prior to his incarceration. Respondent's last visit with Kyli was in June 2011 when Devinn brought her to the prison. Respondent's account in prison had a balance of $14. Respondent expected to be released from prison in June 2014. ¶ 8 Devinn testified that her relationship with respondent had been unhealthy and involved frequent arguments that sometimes required police intervention. Before his most recent incarceration, respondent's status as a felon barred him from residing with Devinn in her "section 8" housing, but respondent stayed with her sometimes anyway. During Devinn's pregnancy, respondent did not pay any expenses related to Kyli's birth or provide child support after she was born. In the previous five years, respondent had neither provided any financial support nor helped with Kyli's physical or emotional needs. In fact, respondent frequently pestered Devinn to send him money in prison. From the age of six months to one and a half years, Kyli accompanied Devinn on visits to respondent, but Devinn stopped those visits because she did not want to bring her baby to a prison. ¶ 9 Respondent called Kyli two weeks before the hearing, but the call was his first since her third birthday. Devinn testified that, when she did not allow respondent to speak with Devinn the last time he called, he told her to jump off a roof or slit her wrists. Devinn was fearful that respondent would "take off with" Kyli upon his release "if things didn't go as he want[ed]." Devinn stated that Kyli does not know who respondent is. ¶ 10 The trial court found that petitioners established by clear and convincing evidence that respondent is an unfit parent based on the grounds of depravity, citing his felony convictions and finding that he did not rebut the statutory presumption. The court excused respondent and heard testimony from Foulker and petitioners regarding the best interest of Kyli. The court determined it was in Kyli's best interest that the adoption petition be granted. This timely appeal followed.
¶ 11 II. ANALYSIS
¶ 12 A parent's right to raise his or her biological child is a fundamental liberty interest, and the involuntary termination of that right is a drastic measure. In re Haley D., 2011 IL 110886, ¶ 90. Accordingly, the Juvenile Court Act of 1987 (Juvenile Court Act) provides a two-stage process for the involuntary termination of parental rights. 705 ILCS 405/2-29(2) (West 2012). Initially, the State must prove that the parent is unfit. 705 ILCS 405/2-29(2), (4) (West 2012); 750 ILCS 50/1(D) (West 2012); 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 was 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. ¶ 13 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 2012); 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). Section 1-3(4.05) of the Adoption Act (705 ILCS 405/1-3(4.05) (West 2012)) sets forth various factors for the trial court to consider in assessing a child's best interests. The petitioner bears the burden of proving by a preponderance of the evidence that termination is in the best interests of the minor. D.T., 212 Ill. 2d at 366; In re Deandre D., 405 Ill. App. 3d 945, 953 (2010). A trial court's best-interests finding will not be disturbed on appeal unless it is against the manifest weight of the evidence. Deandre D., 405 Ill. App. 3d at 953.
¶ 14 A. Unfitness
¶ 15 Respondent challenges the trial court's finding of unfitness based on depravity. Section 1(D) of the Adoption Act provides several grounds for unfitness, including a parent's depravity (750 ILCS 50/1(D)(i) (West 2012)). Although the legislature did not include a definition of "depravity," our supreme court has defined depravity as " 'an inherent deficiency of moral sense and rectitude.' " Addison R., 2013 IL App (2d) 121318, ¶ 23 (quoting Stalder v. Stone, 412 Ill. 488, 498 (1952)). Depravity may be shown by a series of acts or a course of conduct that indicates a deficiency in a moral sense and shows either an inability or an unwillingness to conform to accepted morality. In re Adoption of K.B.D., 2012 IL App (1st) 121558, ¶ 200. To establish unfitness, clear and convincing evidence of depravity must be shown to exist at the time of the petition, and the acts constituting depravity must be of sufficient duration and repetition to establish a deficiency in a moral sense and either an inability or an unwillingness to conform to accepted morality. K.B.D., 2012 IL App (1st) 121558, ¶ 200. In determining depravity, the trial court must closely scrutinize the character and credibility of the parent, and the reviewing court should defer to the trial court's factual determination. K.B.D., 2012 IL App (1st) 121558, ¶ 201. Because each case involving parental unfitness is sui generis, courts do not make factual comparisons to other cases. K.B.D., 2012 IL App (1st) 121558, ¶ 201. ¶ 16 Our legislature created "a rebuttable presumption that a parent is depraved if the parent has been criminally convicted of at least 3 felonies ***; 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." 750 ILCS 50/1(D)(i) (West 2012). Here, the trial court admitted evidence of respondent's six felony convictions, the most recent of which was within five years of the petition for adoption. Respondent concedes that the convictions created a rebuttable presumption of his depravity. Addison R., 2013 IL App (2d) 121318, ¶ 23. ¶ 17 Because the presumption is rebuttable, a parent may present evidence showing that, despite his convictions, he is not depraved. Addison R., 2013 IL App (2d) 121318, ¶ 24. Once the parent produces evidence opposing the presumption, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. Addison R., 2013 IL App (2d) 121318, ¶ 24. ¶ 18 Respondent testified on his own behalf but did not rebut the presumption of depravity. Respondent argues that the unfitness finding must be reversed because he was involved in Kyli's life before his incarceration. Specifically, respondent asserts that he contributed to the household expenses and "demonstrated enough concern for the minor child that on two occasions when the minor was hospitalized, he accompanied the minor to the hospital." Even if respondent twice accompanied Kyli to the emergency room, Devinn disputed respondent's pre-incarceration involvement in Kyli's life, and the trial court was free to give more weight to her testimony. ¶ 19 Respondent further asserts that, during his incarceration, he "continued to have contact with the child by in person visits, telephone calls, letters, and cards." Respondent argues that these efforts to maintain contact, allegedly thwarted by Devinn, are evidence of his "rehabilitation" and sufficient to overcome the presumption of depravity. The evidence shows that, aside from sporadic attempts to contact Kyli while incarcerated, respondent did nothing but "think about" his daughter's future. Respondent claimed there was nothing he could do to prepare for Kyli's future while he was incarcerated, but his lack of contact was the result of his own conduct resulting in incarceration. Respondent offered no evidence that he had attempted to make a better life for himself and for his daughter. ¶ 20 Respondent did not explain the circumstances leading to his convictions or even assert that he would not reoffend. Respondent merely testified that, while incarcerated, he had been contemplating in abstract terms what he needed to do upon his release, without taking any action toward any particular goal. From the evidence, the trial court could infer that respondent's six convictions were not isolated incidents and established a pattern of depravity. The court reasonably could conclude that respondent exhibited a deficiency in a moral sense and either an inability or an unwillingness to conform to accepted morality. ¶ 21 Thus, respondent failed to produce evidence to rebut the presumption of depravity. On the record before us, we conclude that the trial court's finding of unfitness based on depravity was not against the manifest weight of the evidence because a conclusion that respondent was not depraved or had been rehabilitated was not clearly evident. See Addison R., 2013 IL App (2d) 121318, ¶ 26.
¶ 22 B. Best Interest
¶ 23 Respondent also cites In re B.C. & W.C., 247 Ill. App. 3d 803 (1993), in arguing that he could not be found unfit because petitioners failed to establish a connection between the depraved conduct and the alleged need to terminate his parental rights. Respondent conflates the concepts of parental unfitness and the child's best interests. To the extent that respondent is arguing that termination of his rights is not in Kyli's best interest, the evidence refutes that assertion. Respondent has been absent from Kyli's life for four years, Kyli does not know him, and Foulker recommended termination so petitioners could adopt Kyli. ¶ 24 In B.C., the appellate court affirmed the finding of parental unfitness but determined that the State failed to prove that it was in the children's best interest to terminate the mother's parental rights. B.C., 247 Ill. App. 3d at 806. The termination apparently was based only on a finding that the mother was a depraved person, without any other evidence presented at the best interest hearing. B.C., 247 Ill. App. 3d at 806-07. The appellate court held that, "when the State relies solely upon a finding of depravity to support the termination of parental rights, it must establish some connection between the depraved conduct and the alleged need to terminate parental rights." B.C., 247 Ill. App. 3d at 807. ¶ 25 In this case, the termination of respondent's parental rights was not based only on his depravity. The evidence in B.C. showed that the termination of the mother's parental rights was not in the best interest of the children because (1) they shared a loving relationship and (2) the foster mother implied and the social worker stated directly that it was not in the children's best interest to terminate the mother's parental rights. B.C., 247 Ill. App. 3d at 807. In contrast, petitioners and Foulker testified that the adoption was in Kyli's best interest and provided examples of how Kyli was thriving with her family. The trial court's best interest determination is not against the manifest weight of the evidence.
We note that, instead of applying the preponderance-of-the-evidence standard in determining the best interests of the children, the appellate court in B.C. incorrectly applied the clear-and-convincing standard of proof. D.T., 212 Ill. 2d at 366.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, the judgment of adoption of the circuit court of Lee County is affirmed. ¶ 28 Affirmed.