Jasmen S. v. Eric B. (In re Adoption of T.B.)

• Decision Date: 08 April 2021
• Docket Number: NO. 4-20-0575,4-20-0575
• Citation: 2021 IL App (4th) 200575 -U
• Parties: In re ADOPTION OF T.B. (Caleb S. and Jasmen S., Petitioners-Appellees, v. Eric B., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

2021 IL App (4th) 200575-U

In re ADOPTION OF T.B.

(Caleb S. and Jasmen S., Petitioners-Appellees, v. Eric B., Respondent-Appellant).

NO. 4-20-0575

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 8, 2021

NOTICE

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Champaign County

No. 19AD10

Honorable Randall B. Rosenbaum, Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court.

Justices DeArmond and Holder White concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court did not err by not entering a directed verdict in respondent father's favor at the close of petitioners' case.

(2) The trial court's finding respondent father was an unfit parent based on depravity was premature.

(3) The trial court abused its discretion in denying a motion to continue that would have allowed respondent father to review discovery materials based on the erroneous conclusion evidence of rehabilitation was irrelevant to the charge of depravity.

¶ 2 In February 2019, petitioners, Caleb S. and Jasmen S., filed a petition to adopt, seeking to terminate the parental rights of respondent father, Eric B., as to T.B. (born June 22, 2010). Jasmen is the biological mother of T.B., and she was married to Caleb. Petitioners alleged Eric was an unfit parent on multiple grounds, including that he was depraved.

¶ 3 After finding Eric depraved and unfit, the trial court, in September 2020, terminated Eric's parental rights as to T.B. Eric appealed, arguing (1) a motion for a directed verdict in Eric's favor at the close of petitioners' case was obligatory and should have been granted, (2) the finding of depravity was against the manifest weight of the evidence, and (3) the trial court abused its discretion by delaying its ruling on Eric's February 24, 2020, motion to continue the adjudicatory hearing and in denying him leave to file a late response to the request to admit facts. Agreeing in part with the third argument, we reverse and remand.

¶ 4 I. BACKGROUND

¶ 5 In their petition, Jasmen and Caleb alleged Eric, a prisoner at the Pontiac Correctional Center, was an unfit father on multiple grounds under section 1(D) of the Illinois Adoption Act (750 ILCS 50/1(D) (West 2018)). One of the grounds of unfitness alleged was depravity based on Eric's criminal convictions and failure to conform to society's norms (750 ILCS 50/1(D)(i) (West 2018)). Petitioners alleged termination of Eric's parental rights and the adoption of T.B. were in the best interest of T.B.

¶ 6 On February 24, 2020, the hearing on parental fitness was set. At the start of the hearing, Eric's counsel reported she had spoken to staff of the Department of Corrections (DOC) on Thursday, February 20. She was assured the "writ" had been accepted and "[i]t had been planned for and *** the transportation would be handled appropriately." Counsel reported she received a call at 7:37 a.m. that day and was informed transportation could not occur. It was planned Eric would be in a wheelchair. When they attempted to put Eric in a wheelchair, he represented he was not strong enough to sit in the wheelchair and "was sliding down the wheelchair." An ambulance had not been planned, so one was not available that morning. ADOC staff member said an ambulance could transport Eric in a bed at another time. Counsel stated, "I do believe that I have to request a continuance" until Thursday to get an ambulance. Counsel reported Eric had a massive stroke after receiving the petition and preparing a response. Eric had moved to multiple facilities seeking medical treatment but was at Dixon Correctional Center at the time of the hearing.

¶ 7 The trial court questioned counsel regarding how much time was needed for a hearing. The court then asked petitioners for their response to Eric's counsel's request for a continuance. Petitioners' counsel began by asking, "as an evidentiary matter, we can admit—and I've got it right here, and I definitely think we need to do this. We can admit his responses to the request to admit. He had counsel. He was represented by counsel and he made these admissions. So I think that's an evidentiary matter we can take care of first."

¶ 8 The trial court agreed first to the issue regarding the requests to admit. The court asked Eric's counsel if there was an objection. Counsel responded: "I do believe, yes, this was agreed upon after my conversation with him. I was just looking through my notes to confirm my recollection." The court ruled it would admit the exhibit. Petitioners stated they would produce no other evidence. Eric's counsel stated she would call Eric to testify and then they would have arguments.

¶ 9 Petitioners objected to the continuance, noting petitioners had been waiting but agreed they could continue the matter until Thursday if the court would proceed immediately to the best-interest hearing. Eric's counsel had no objection. The trial court continued the matter until Thursday.

¶ 10 The adjudicatory hearing on the petition was held on February 27, 2020. Eric waspresent in the custody of DOC. He appeared at the hearing on a gurney with his feet and hands restrained. The trial court noted it admitted the request to admit into evidence without objection. The court further noted for the record the answers were deemed admitted, denied, or withdrawn by agreement. Petitioners had no other evidence to admit on the issue of unfitness.

¶ 11 Eric was deemed to have admitted the following offenses: (1) 2003 conviction for felony aggravated battery of a peace officer in Cook County; (2) 2004 convictions of three felony counts of armed robbery in case Nos. 04-CR-1402701, 04-CR-1502801, and 04-CR-1502601; (3) 2005 conviction of felony aggravated battery of a peace officer; (4) 2006 conviction for home invasion causing injury; (5) 2006 conviction for escape with a dangerous weapon; (6) 2006 conviction for residential burglary; (7) 2006 conviction for attempted aggravated arson; (8) 2006 conviction for aggravated battery harm of a peace officer; (9) 2006 conviction for aggravated battery of a government employee; and (10) 2010 conviction for armed robbery with a firearm. Eric was also deemed to have admitted he was serving a 55-year prison sentence with a projected parole date of February 19, 2038.

¶ 12 Eric testified on his own behalf. He was convicted of his last offense in February 2014 and had been imprisoned since that time. In the beginning of 2010, Eric was incarcerated. Eric "used to see [T.B.] on the phone," and Jasmen brought T.B. to see him. Eric testified, "and then a couple of years, you know, due to a court order, me and [Jasmen were] co-defendants on a case. Someone said the conclusion of that case, though, the judge ordered that it be no communication between the both of us, you know, because we [were] co-defendants and they ain't whatever. So—so after like 2016, that's when [Jasmen], you know, got back in tune with me, my son wanted to contact me, and then that's when we started talking, writing each other,and we was just doing that for years." Eric wrote T.B. letters. Eric testified he tried to educate his son on history, including black history and American history, as well as politics. T.B. wrote letters, too. He sent drawings. The two developed a "real close" relationship.

¶ 13 When asked about employment, Eric testified to the following: "No, but I was receiving—you know, I had income coming in when I was first incarcerated. And during that time, like when my son was first born from like 2010 to 2012[,] I was sending [Jasmen] over like a couple of thousands, like just at a time. Like asked, you requested, or just sending it, just so she could have things for her and my son." With money Jasmen sent him, Eric sent his son "cards and stuff like that" for holidays and his birthdays.

¶ 14 Eric testified after Jasmen met Caleb things changed. Jasmen and Caleb did not provide Eric with T.B.'s address, meaning DOC would not allow him to send anything. Eric stated he hired an attorney to fix the situation but due to Caleb's "insecurities *** that was unable to happen."

¶ 15 Eric further testified about the current status of his most recent criminal case. He testified he was "going through the wrongful[-]conviction thing" as "[t]hey just found out another guy committed the crime." According to Eric, three people were involved: "It was me, the plaintiff, [Jasmen], and my cousin, Michael King. He just got out. He's—he got released last year. He got exonerated."

¶ 16 On cross-examination, defendant testified he did not know whether Jasmen pleaded guilty to an obstruction-of-justice offense involving hiding Eric's name from the police. As to the money he sent to Jasmen for T.B., Eric testified he received that money from his family. When asked what he had done to rehabilitate himself from his twelve felonies, Erictestified he obtained his paralegal certificate and he taught classes, such as "crafts classes on history, black history." Eric did "a lot of legal stuff" and helped firms. Eric further testified to the following:

"I'm doing—I also got, you know, you know, like mental problems and stuff like that. That kind of—most of my convictions back then that you're referring to as far as aggravated batteries, those is like mental-related, it wasn't no gang-related stuff. It was just, not off of my medication and stuff like that, getting the proper treatment that I was supposed to get, and it resulted to me flipping out and freaking out. So they just learned recently that I had these problems since I've been incarcerated this time, and I've been in the—what's called a residential treatment unit. And I learned like coping skills and stuff like that, how to better cope with my anger, and you know, grief, and loss, and stuff like that. I got these certificates, so I'm actually still in the program. It'll take a few years, but I'm doing pretty good, though. That's

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