People v. Floyd F. (In re N.G.)

• Decision Date: 09 August 2018
• Docket Number: Docket Nos. 121939,121961
• Citation: 115 N.E.3d 102,2018 IL 121939,425 Ill.Dec. 547
• Parties: IN RE N.G., a Minor (The People of the State of Illinois et al., Appellants, v. Floyd F., Appellee).
• Court: Illinois Supreme Court

2018 IL 121939

115 N.E.3d 102

425 Ill.Dec. 547

IN RE N.G., a Minor(The People of the State of Illinois et al., Appellants,

v.Floyd F., Appellee).

Docket Nos. 121939

121961

Supreme Court of Illinois.

Opinion filed August 9, 2018.

Rehearing denied December 17, 2018

CHIEF JUSTICE KARMEIER delivered the judgment of the court, with opinion.

¶ 1 At issue in this appeal is whether the circuit court of Will County erred when it terminated Floyd F.'s parental rights to his minor child, N.G., on the grounds that he was an unfit person within the meaning of section 1(D) of the Adoption Act ( 750 ILCS 50/1(D) (West 2010) ) because, prior to N.G.'s birth, he had been convicted of at least three felonies under the laws of this state and was therefore "depraved" (id. § 1(D)(i) ).

¶ 2 The appellate court held that because one of the three felonies on which the circuit court had relied in making its finding of depravity—a 2008 conviction for aggravated unlawful use of a weapon (AUUW) ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008) )—was based on the same statute we found to be facially unconstitutional under the second amendment to the United States Constitution ( U.S. Const., amend. II ) in People v. Aguilar , 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321, the conviction had no legal force or effect and therefore should not have been considered by the circuit court in making its fitness determination. Consistent with that holding, the appellate court vacated Floyd F.'s AUUW conviction and reversed the trial court's finding that he was an unfit parent. Without such a finding, there was no basis for holding that termination of Floyd F.'s parental rights was in N.G.'s best interests. The appellate court therefore reversed the trial court's best interest determination as well and remanded for further proceedings. 2017 IL App (3d) 160277, 411 Ill.Dec. 16, 72 N.E.3d 436.

¶ 3 One member of the appellate court dissented in part. She agreed that the judgment terminating Floyd F.'s parental rights should be set aside and the cause remanded for further proceedings. Unlike the other members of the panel, however, she would have refrained from vacating the 2008 AUUW conviction, leaving that instead to the circuit court. She would also have ordered that further consideration of the petition to terminate be postponed until after the circuit court had addressed the viability of Floyd F.'s 2008 AUUW conviction. 2017 IL App (3d) 160277, ¶ 37, 411 Ill.Dec. 16, 72 N.E.3d 436 (Wright, J., concurring in part and dissenting in part).

¶ 4 The Department of Children and Family Services (DCFS) and the minor, through her guardian ad litem , separately petitioned this court for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Nov. 1, 2017). We allowed both petitions and consolidated them for argument and disposition. For the reasons that follow, we affirm the judgment of the appellate court.

¶ 5 BACKGROUND

¶ 6 Floyd F. is the natural father of N.G., who was born on July 27, 2011. On December 19, 2011, while Floyd F. was incarcerated in the Department of Corrections and N.G. was living with her mother, DCFS petitioned the circuit court of Will County to adjudicate N.G. a ward of the court on the grounds that she was neglected within the meaning of section 2-3(1)(b) of the Juvenile Court Act of 1987 ( 705 ILCS 405/2-3(1)(b) (West 2010) ) because her environment was injurious to her welfare.

A guardian ad litem was appointed to represent N.G.'s best interests, and a temporary custody hearing was held the same day (see id. § 2-10). At the conclusion of the hearing, the trial court found probable cause to believe that N.G. was neglected, determined that no efforts could reasonably be made to prevent or eliminate her removal from the home, and held that it was in her best interest to be placed in shelter care.

¶ 7 During the ensuing months, Floyd F.'s mother was given care of N.G., but N.G. was subsequently placed with her maternal grandmother so that she could be together with a half-sibling. The record shows that N.G.'s mother took N.G. to visit Floyd F. in the Department of Corrections. Floyd F.'s grandmother (N.G.'s paternal great-grandmother) also took her, at least monthly, to visit Floyd F. where he was incarcerated. During those visits, Floyd F. and N.G. practiced counting numbers, reciting the ABCs, and writing N.G.'s name.

¶ 8 While N.G. was briefly returned to her mother's custody, her mother proved unable to properly care for her or to remedy the problems that had led to filing of the initial petition for adjudication of wardship. N.G. was once again placed with her maternal grandmother. Eventually, N.G.'s mother admitted the allegations of the petition, and the minor was adjudicated neglected on September 19, 2012. After a dispositional hearing, the trial court made N.G. a ward of the court, granted guardianship to DCFS with the right to place, and found Floyd F. to be an unfit parent.

¶ 9 Originally, the goal of DCFS was to keep N.G. safe while it provided services to her mother so that N.G. could be returned to her. However, 2 ½ years later, N.G.'s mother was still unable to maintain a safe and stable environment, and it was not foreseeable that she would be able to do so in the near future. Accordingly, DCFS sought termination of both parents' rights so that N.G. could be adopted by her maternal grandmother.

¶ 10 In August 2014, DCFS filed a motion pursuant to section 2-29(2) of the Juvenile Court Act (id. § 2-29(2) ) to terminate the mother's and Floyd F.'s parental rights and to appoint a guardian for N.G. with the authority to consent to her adoption. DCFS sought termination on the grounds that the parents were "unfit person[s]" within the meaning of section 1(D) of the Adoption Act because they had failed "to maintain a reasonable degree of interest, concern or responsibility as to the [minor's] welfare" ( 750 ILCS 50/1(D)(b) (West 2010) ), failed "to make reasonable efforts to correct the conditions that were the basis for the removal of the [minor]" from them (id. § 1(D)(m)(i) ), and failed "to make reasonable progress toward the return of the [minor]" to them during any nine-month period after the end of the initial nine months following the adjudication of neglect (id. § 1(D)(m)(ii) ). DCFS asked the court to give its guardian administrator guardianship of N.G. with the power to consent to her adoption.

¶ 11 The trial court continued the hearing on this motion twice: initially so Floyd F. could take a paternity test in order to confirm that he was N.G.'s biological father, as indicated on her unsigned birth certificate, and again because the court was concerned that Floyd F. might not have received either proper notice that his parental rights were at risk or a sufficient opportunity to participate in DCFS's services. In September 2015, the court found N.G.'s mother unfit but ruled that DCFS had failed to prove its case against Floyd F. The trial court was unwilling to find Floyd F. unfit until he had the opportunity to engage in services for at least another nine months.

¶ 12 In February 2016, DCFS filed a second motion to terminate Floyd F.'s parental rights. This time, however, it relied on an entirely new theory. Instead of citing Floyd F.'s actions or failure to act with respect to N.G.'s welfare, the conditions that were the basis for DCFS's original motion, the new motion charged unfitness based on totally different circumstances, all of which occurred before N.G. was born. Specifically, it asserted that Floyd F. had been criminally convicted of at least three felonies under the laws of this state and at least one of those convictions had taken place within five years of the filing of its motion. The three convictions on which DCFS relied were a 2008 AUUW conviction, a Class 4 felony; a 2009 conviction for unlawful use of a weapon by a felon, a Class 2 felony; and a 2011 conviction for being an armed habitual criminal, a Class X felony arising from an arrest months before N.G.'s birth. DCFS's new theory was that because of these three prior felony convictions, Floyd F. was "depraved" or presumptively "depraved," within the meaning of section 1(D)(i) of the Adoption Act (id. § 1(D)(i) ), and therefore unfit to retain his parental rights with respect to N.G., who appears to be his only child.

¶ 13 DCFS's decision to proceed under section 1(D)(i) and abandon its claims of unfitness under the provisions of the Adoption Act asserted in its original termination motion was timely. We note, however, that DCFS made no mention of section 1(D)(i) until the five-year time limit set forth in that provision was nearing its end. Floyd F.'s most recent conviction was entered August 22, 2011. DCFS's motion seeking termination under section 1(D)(i) was not filed until February 11, 2016, more than 4 ½ years later, and the order terminating Floyd F.'s parental rights was entered May 12, 2016. The record offers no explanation for DCFS's decision to wait so long to invoke the provision. Under the circumstances, however, it seems likely that DCFS resorted to section 1(D)(i) only because it thought the provision offered a potential last-minute expedient for sidestepping the circuit court's rejection of its efforts to establish that Floyd F. was unfit on other grounds.

¶ 14 In any case, when the new termination hearing was held, DCFS moved to admit into evidence certified copies of all three convictions. Floyd F. objected to the admission of evidence of his 2008 AUUW conviction. He noted that there was a pending appeal that could potentially affect the validity of that conviction. The court indicated that it did not believe the appeal had any effect on the judgment of conviction and admitted all three convictions into evidence. Other admitted evidence established that respondent was currently incarcerated on his 2011 armed habitual criminal conviction and is projected to be paroled in 2019. Based on this evidence, the trial court found that respondent was depraved...