                                             2016 IL App (3d) 160265

                               Opinion filed October 13, 2016
     _____________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2016

     In re Mi.S., P.S. and Ma.S.,                       )      Appeal from the Circuit Court
                                                        )      of the 12th Judicial Circuit,
             Minors                                     )      Will County, Illinois.
                                                        )
     (The People of the State of Illinois,              )
                                                        )      Appeal Nos. 3-16-0265, 3-16-0266, and
            Petitioner-Appellee,                        )      3-16-0267
                                                        )      Circuit Nos. 12-JA-0157, 12-JA-0158,
            v. 	                                        )      and 12-JA-0159 

                                                        )

     Bahaa S.,                                          )      Honorable

                                                        )      Paula Gormora,
            Respondent-Appellant).                      )      Judge presiding.

     ___________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices Lytton and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                   OPINION

¶1          The respondent father, Bahaa S., appeals from an order of the trial court, finding him to

     be an unfit parent and terminating his parental rights as to his minor children, Mi.S., P.S. and

     Ma.S. On appeal, the father argues that the trial court erred in finding him unfit on the basis of

     “extreme cruelty” under section 1D(e) of the Adoption Act (750 ILCS 50/1D(e) (West 2012))

     where he did not commit an act of physical cruelty to the minors. We affirm the trial court’s

     finding of unfitness.
¶2                                                  FACTS

¶3          The respondent father was criminally charged with the December 19, 2012, murder of his

     wife, who was the mother of their four minor children. The youngest three minors are the subject

     of this appeal from the trial court’s order terminating the father’s parental rights.

¶4          On December 19, 2012, the father was taken into police custody and the minors were

     taken into protective custody by the State. The State filed a juvenile petition requesting that the

     minors be made wards of the court, alleging the minors were neglected in that their environment

     was injurious to their welfare (705 ILCS 405/2-3(1)(b) (West 2012)) and were dependent in that

     they were without a parent, guardian or legal custodian (705 ILCS 405/2-4(1)(a) (West 2012)).

¶5          On December 27, 2012, following a temporary shelter care hearing, the trial court found

     there was probable cause to believe the minors were neglected in that “domestic violence

     between the mother and father led to mother’s death [and] the four year old [minor] was home at

     the time.” The trial court found there was probable cause to believe the minors were dependent

     in that the minors, who were under the age of 18, were without parents due to their father being

     charged with the murder of their mother. The trial court found that there was an immediate and

     urgent necessity for protection of the minors and for them to be placed in shelter care. The trial

     court ordered that the minors be placed in the temporary custody of the Department of Child and

     Family Services (DCFS). DCFS was granted the authority to place the minors. Visitation

     between the father and the minors was ordered to be at the discretion of DCFS.

¶6          On February 4, 2013, the oldest minor, 14-year-old K.S. (who is not one of the three

     minors that are the subject of this appeal) requested visitation with the father, who was

     incarcerated. On February 11, 2013, the trial court granted K.S.’s motion for visitation as to K.S.

     only. K.S. also indicated to the trial court that he wished to show the father a certificate that he


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     earned from school and wished to write the father letters. K.S. asked the trial court to transfer his

     placement and his siblings’ placement from his aunt and uncle’s home to the home of family

     friends. The trial court was informed that the family friends had moved to Indiana but agreed to

     foster parent the minors. The family’s church agreed to purchase a home for the potential foster

     family to relocate back to Illinois so that they could foster parent the minors. The trial court

     asked K.S. to be patient with the judicial system and his current placement while the family

     friends were being relocated to Illinois.

¶7          According to reports by Lutheran Child and Family Services (LCFS), Court Appointed

     Special Advocate (CASA) and the minors’ counselors, all four of the minors were placed in the

     home of family friends on July 6, 2013. On July 11, 2013, an incident occurred involving K.S.

     and the 14-year-old daughter of the family friends that included police involvement, and K.S.

     was hospitalized and began receiving psychiatric services. After his discharge from the hospital

     on July 30, 2013, K.S. was placed in a traditional foster home and received treatment for post-

     traumatic stress syndrome and depression.

¶8          The three youngest minors—Mi.S., P.S. and Ma.S.—remained in the home of family

     friends. The therapists of the youngest three minors recommended that no visitation should be

     approved between them and their father or between them and their older brother, K.S.

¶9          On August 26, 2013, an adjudication hearing took place after a few continuances so that

     an Arabic interpreter could be arranged for the father. At the adjudication hearing, the parties

     stipulated that the minors’ mother was deceased and their father was incarcerated. The trial court

     found that the minors were dependant and ordered that DCFS remain temporary guardian and

     custodian of the minors pending the final disposition of the case.




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¶ 10          On November 22, 2013, a dispositional hearing took place, at which the State requested

       the minors be made wards of the court. The State presented two exhibits: the dispositional report

       and the service plan. Defendant’s attorney agreed that the minors should be made wards of the

       court and requested that the father be found dispositionally unable to care for the minors due to

       his incarceration rather than dispositionally unfit. Defense counsel argued that no evidence of the

       father’s unfitness had been presented other than the incarceration itself. The trial court found the

       father to be dispositionally unfit and found that it was in the best interest of the minors for them

       to be made wards of the court. The trial court placed the minors in the custody and guardianship

       of DCFS. The factual basis for the dispositional unfitness finding was that the father was

       incarcerated pending criminal charges of the murder of the minors’ mother and the dispositional

       report and service plan indicated a history of domestic violence in the home between the father

       and the minors’ mother, with the minors witnessing several incidents and with reports of the

       father hitting, choking and biting the minors’ mother. The father objected, indicating that the

       reports of domestic violence were not true, and the trial court noted his objection.

¶ 11          On January 22, 2015, the State filed a petition to terminate the father’s parental rights as

       to all four of the minors, and later amended the petition by striking K.S. from the amended

       motion. In the petition, the State alleged that the minors’ mother was deceased and the father was

       an unfit parent in that (a) he failed to maintain a reasonable degree of interest, concern or

       responsibility to the minors’ welfare (750 ILCS 50/1D(b) (West 2012)) and (b) exposed the

       minors to extreme or repeated cruelty (750 ILCS 50/1D(e) (West 2012)).

¶ 12          On April 14, 2016, the hearing on the petition to terminate parental rights took place as to

       Mi.S., P.S. and Ma.S. The State introduced the death certificate of the minors’ mother into




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       evidence. The cause of death listed on the death certificate was “craniocerebral injuries” due to

       blunt head trauma and assault.

¶ 13           Detective Heather Trinidad testified that on December 19, 2012, she was called to the

       family’s residence in regard to a deceased body on the front lawn. When Trinidad arrived at the

       family’s residence she observed a female body on the front lawn. Trinidad went inside the home

       and saw four-year-old Mi.S. on the couch with what appeared to be blood spatter on his face and

       clothing. Trinidad took Mi.S. into protective custody. Three other minor children resided in the

       home, but they were not home at the time of the incident. The following day Trinidad was

       present for a victim sensitive interview of Mi.S., which was recorded. The State entered the

       video of Mi.S.’s interview into evidence, in addition to photographs of Mi.S. with blood spatter

       on his face, a female body laying in the grass, a metal bar in the grass that appeared to have hair

       and blood on it, the driver’s license of the minors’ mother that appeared to have blood on it, and

       the father with blood on his clothing. Trinidad confirmed that the video showed Mi.S. stating that

       his dad hit his mother with a hard object. Mi.S. made motions with his hands to demonstrate how

       many times his dad hit his mother and that his dad hit his mother in the stomach. Trinidad

       testified that the metal bar shown in one of the photographs was similar to the object Mi.S.

       described as the object his father used to strike his mother. Mi.S. was the only eyewitness to the

       incident.

¶ 14          Detective Sam Dajani testified that the father was read his Miranda rights (Miranda v.

       Arizona, 384 U.S. 436 (1966)) and then spoke with police. The father indicated that he and the

       minors’ mother got into an altercation on the morning of December 19, 2012, because she

       wanted to go visit their daughter in the hospital and the father did not want her to leave. The

       minors’ mother made a comment about the father being unemployed and a physical altercation


                                                        5

       ensued. The minors’ mother bit the father and exited the home. The father pursued her out of the

       home with four-year-old Mi.S. following behind them. When the father caught up with the

       minors’ mother he struck her with a curling bar that had been located near the front door inside

       the residence. The father indicated that he struck the minors’ mother once or maybe twice. The

       father asked police if the minors’ mother was okay and what would happen to his children. In

       cross-examining Dajani, defense counsel asked Dajani if, in his professional capacity as police

       officer and somebody who was trained in domestic violence and family matters, he would

       consider the father “a caring father, somebody that you would trust to have control of his

       children?” Danjani replied, “No.”

¶ 15          Denise Beran testified that she was the guardian ad litem for the minors. Beran testified

       that Ma.S. told her that there was a lot of arguing and physical fighting between her parents

       daily, to the point of slapping, biting, and constant yelling. Ma.S. indicated that no matter what

       her mother did her father could not be pleased. One main cause of her parents’ arguments was

       financial and the fact that her mother worked all the time because her dad did not work. If her

       mother did not work, her father would get mad because they would be at risk of losing their

       home. When her mother was working two jobs her father would get mad because her mother was

       never home and could not take care of him, the household, and the children. They also argued

       because the minors’ maternal grandmother lived in the home and would side with the minors’

       mother and the father would be “somewhat argumentative.” Ma.S. indicated that she lived in

       constant fear in the home.

¶ 16          Beran testified that in July of 2013 K.S. had been hospitalized for psychological issues.

       During his psychological consultation in July of 2013, K.S. described specific incidents that he

       had witnessed while living with his parents that had traumatized him. Beran was asked by the


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       guardian ad litem, “[a]nd he obviously was clearly traumatized?” Beran replied, “Yes.” K.S.

       indicated that there were daily arguments between his parents and his father was depressed but

       would not take his medication. K.S. witnessed his parents biting each other. K.S. also witnessed

       punching, slapping, and constant yelling between his parents. K.S. disclosed that on one occasion

       he walked into his bedroom and saw his father sexually assaulting his mother on his bed, against

       his mother’s will, while his mother was saying “no” during the sexual assault.

¶ 17          At the close of the State’s evidence, the father’s attorney motioned the court for a

       directed finding. After having considered the testimony of Dajani, Trinidad, the victim impact

       statement of Mi.S., and the photographs of Bahaa, Mi.S. and the blood and hair covered metal

       curling bar, the trial court found there was clear and convincing evidence by the State to prove

       paragraph “b” of the termination petition regarding extreme or repeated cruelty but not as to

       paragraph “a” regarding the father’s alleged failure to maintain a reasonable degree of interest,

       concern, or responsibility toward the minors.

¶ 18          The trial court noted the death certificate of the minors’ mother indicated that she was

       struck with a blunt object and her cause of death was cranial cerebral injuries due to blunt head

       trauma; the vicitim impact statement of Mi.S. revealed that he witnessed the father hit his mother

       with a long thing and he hit her in the stomach and the head; Mi.S. indicated that his father killed

       his mother; Mi.S.’s statements were corroborated by a photograph of Mi.S. with blood spatter on

       Mi.S.’s face and clothes, the testimony of Trinidad who arrived at the residence to find Mi.S.

       sitting on the couch with blood spatter on his face and clothes, and the testimony of Dajani, who

       took the father’s statement that he and his wife were involved in an altercation, during which the

       father followed her out of the house with a curling bar and struck her once, if not twice, with

       Mi.S. in their vicinity. The trial court further noted the photograph of the father in custody with


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       blood on his shirt. The trial court found the State presented clear and convincing evidence of

       extreme cruelty to Mi.S. “as he was an eyewitness to the killing of his mother.” As to P.S. and

       Ma.S., the trial court found “that the killing of their mother at the hands of their father is

       extremely emotionally cruel.” For those reasons, the trial court denied the father’s motion for

       directed finding as to paragraph “b” of the termination petition.

¶ 19          The father did not present any evidence. The trial court found, by clear and convincing

       evidence, that the father was unfit based upon the allegations by the State with respect to extreme

       or repeated cruelty. The trial court indicated that its decision that the State had met its burden of

       proof was based upon essentially the same evidence that supported its decision with respect to

       the motion for directed finding—testimony of Dajani, testimony of Trinidad, the victim sensitive

       interview of Mi.S., the death certificate of the minors’ mother, and the photographs of Bahaa,

       Mi.S. and the blood and hair covered metal curling bar. The trial court indicated that the State

       had presented clear and convincing evidence of extreme cruelty as to Mi.S. “since he was an

       eyewitness to the killing of his mother.” With respect to P.S. and Ma.S., the trial court found that

       the killing of their mother at the hands of the father was extremely emotionally cruel “since the

       Court [could not] think of any greater cruelty to any child to have their mother taken out of their

       life at the hands of their father.” The trial court noted that even though P.S. and Ma.S. did not

       witness the killing of their mother, they have to live with the knowledge that their father left

       them motherless, which the trial court found to be “extremely emotionally cruel.”

¶ 20          After the trial court found the father to be unfit on the basis of extreme cruelty, the case

       proceeded to a best interest hearing. The trial court found that it was in the best interest of Mi.S.,

       P.S. and Ma.S. to terminate the parental rights of the father and grant DCFS the authority to

       consent to the adoption of the minors. The father appealed.


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¶ 21                                               ANALYSIS

¶ 22          On appeal, the father argues that the trial court erred by terminating his parental rights on

       the basis of extreme cruelty pursuant to section 1D(e) of the Adoption Act. 750 ILCS 50/1D(e)

       (West 2012) (providing “[e]xtreme or repeated cruelty to the child” as a basis for a finding of

       unfitness). The father argues that the word “cruelty” used in section 1D(e) of the Adoption Act

       requires physical harm to the child and the trial court erred in interpreting the term “cruelty” to

       include emotional cruelty. 750 ILCS 50/1D(e) (West 2012).

¶ 23          The parties agree that this case involves the trial court’s interpretation of subsection (e) of

       section 1D of the Adoption Act. The primary rule of statutory construction is to ascertain and

       give effect to the intent of the legislature. People v. Donoho, 204 Ill. 2d 159, 171 (2003). The

       best evidence of legislative intent is the plain language of the statute. Id. When possible, the

       court should interpret the statute according to its plain and ordinary meaning. Id. If the statutory

       language is clear and unambiguous a court may not turn to external aids for construction of the

       statute, but the court may look to similar statutes to aid in construction where the statute is

       unclear or susceptible to more than one meaning. In re A.G., 325 Ill. App. 3d 429, 433-34

       (2001). In addition to the language of the statute, the court should consider the reason for the

       law, the evil to be remedied, and the purpose to be obtained thereby. Id. at 434. The

       interpretation of a statute is review de novo. See id.

¶ 24          The grounds for parental unfitness are contained in the Adoption Act. 750 ILCS 50/1D

       (West 2012). The Juvenile Court Act of 1987 also contains several provisions related to the

       termination of parental rights. See 705 ILCS 405/1-1 et seq. (West 2012).




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¶ 25           Under the Adoption Act, an “unfit person” means any person whom the court finds unfit

       to have a child, with the statute enumerating various grounds of unfitness that includes

       “[e]xtreme or repeated cruelty to the child” under subsection (e) of section 1D. 750 ILCS 50/1D

       (West 2012). We acknowledge that “extreme or repeated cruelty” has generally been applied to

       torturous or other extreme forms of physical abuse. See, e.g., In re B.R., 282 Ill. App. 3d 665

       (1996) (affirming a finding of unfitness of a father under subparagraph (e) of section 1D of the

       Adoption Act where the father shook his companion’s child so violently that the child sustained

       retinal hemorrhages, brain damage and cardiac arrest); In re D.L.W., 226 Ill. App. 3d 805 (1992)

       (affirming a finding that father engaged in acts of extreme and repeated cruelty toward his son

       where he, on various occasions, had struck his son in the face and left a bruise on his nose, kneed

       his son in the groin for soiling his underwear, spanked his son with a board for wetting the bed,

       hit his son with a wooden spoon, and hit his son causing blurred vision); In re E.P., 167 Ill. App.

       3d 534 (1988) (affirming a finding of parental unfitness on grounds of extreme and repeated

       cruelty to the minors where the children’s father sexually abused them on several occasions); In

       re Wheeler, 86 Ill. App. 3d 564 (1980) (affirming a finding of the parents’ unfitness on the basis

       of extreme and repeated cruelty by virtue of repeated acts of physical abuse); In re Dixon, 81 Ill.

       App. 3d 493 (1980) (affirming a finding that father’s repeated acts of physical abuse against the

       son constituted extreme and repeated cruelty sufficient to sustain the termination of the father’s

       parental rights).

¶ 26           The case at hand, wherein the trial court terminated the father’s parental rights on the

       basis of “extreme cruelty” that involved no direct physical act to the children, appears to be a

       matter of first impression in Illinois. In reviewing the plain language of the statute, we note that




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       the statute does not limit “extreme cruelty” to physical cruelty. If the legislature intended for the

       statute to include only physical cruelty, the legislature would have so specified.

¶ 27          The Adoption Act is to be liberally construed in conjunction with the Juvenile Court Act

       (705 ILCS 405/1-1 et seq. (West 2012)) and “the best interests and welfare of the child are of

       paramount consideration.” In re B.W., 309 Ill. App. 3d 493, 498 (1999). Interpreting the phrase

       “extreme cruelty” to exclude extreme emotional cruelty would not be in keeping with

       consideration of the best interest and welfare of the children. Thus, we hold that the phrase

       “extreme or repeated cruelty” under section 1(D)(e) of the Adoption Act encompasses acts of

       extreme or repeated mental or emotional cruelty to a child.

¶ 28          In this case, the State proved by clear and convincing evidence that the father violently

       killed the minors’ mother as the result of an argument and there is no indication of a legal

       justification for the killing. See In re Hollis, 135 Ill. App. 3d 585, 587 (1985) (a parent’s

       unfitness must be proven by clear and convincing evidence and will not be reversed unless it is

       against the manifest weight of the evidence). The evidence also showed that four-year-old Mi.S.

       witnessed his father violently kill his mother and had blood spatter on his face and clothes as a

       result of being in the vicinity of his mother’s murder. The violent killing of the minors’ mother

       by their father subjected all three minors to extreme cruelty. All three children suffer the

       consequences of living with the knowledge that their father committed uxoricide—the murder of

       his spouse, their mother—thereby exposing all three children to extreme emotional and mental

       cruelty. As the trial court noted, not many intentional acts could be considered more cruel. These

       three children are not only bereaved by the death of their mother at the hands of their father, but

       have also been uprooted, lost their home, former relationships, and both their parents. In

       addition, Mi.S. witnessed the killing, which exposed him to additional extreme emotional and


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       mental cruelty. Thus, the trial court did not err in finding the father was an unfit parent on the

       basis of “extreme cruelty” to the minors where the facts showed the father killed the minors’

       mother in a violent act of rage.

¶ 29                                             CONCLUSION

¶ 30          The judgment of the circuit court of Will County is affirmed.

¶ 31          Affirmed.




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