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                                  Supreme Court                             Date: 2019.02.04
                                                                            11:02:55 -06'00'



                              In re N.G., 2018 IL 121939




Caption in Supreme   In re N.G., a Minor (The People of the State of Illinois et al.,
Court:               Appellants, v. Floyd F., Appellee).



Docket Nos.          121939, 121961 cons.



Filed                August 9, 2018
Rehearing denied     December 17, 2018



Decision Under       Appeal from the Appellate Court for the Third District; heard in that
Review               court on appeal from the Circuit Court of Will County, the Hon. Paula
                     Gomora, Judge, presiding.



Judgment             Appellate court judgment affirmed.
                     Circuit court judgment reversed.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and James W.
Appeal               Glasgow, State’s Attorney, of Joliet (David L. Franklin, Solicitor
                     General, and Mary C. LaBrec, Assistant Attorney General, of
                     Chicago, and Patrick Delfino, Lawrence M. Bauer, and Richard T.
                     Leonard, of the Office of the State’s Attorneys Appellate Prosecutor,
                     of Ottawa, of counsel), for the People.

                     Neil J. Adams, of Joliet, for appellee.
                               Kristen Messamore, of Hammel Law Offices, P.C., of Joliet, guardian
                               ad litem.



     Justices                  CHIEF JUSTICE KARMEIER delivered the judgment of the court,
                               with opinion.
                               Justice Burke concurred in the judgment and opinion.
                               Justice Kilbride specially concurred, with opinion.
                               Justice Neville specially concurred, with opinion.
                               Justice Theis dissented, with opinion, joined by Justices Thomas and
                               Garman, and dissented upon denial of rehearing, with opinion, joined
                               by Justices Thomas and Garman.



                                                 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, 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.
¶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 (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.


                                                    -2-
       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, 2½ 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.



                                                   -3-
¶ 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 4½ 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 and, thus, unfit. As a result,
       the trial court found that it was in the minor’s best interest to terminate Floyd F.’s parental
       rights.



                                                    -4-
¶ 15        Floyd F. appealed to the appellate court. In that appeal, he argued that the trial court erred
       in finding him depraved and therefore unfit under section 1(D)(i) of the Adoption Act because
       the 2008 conviction on which that determination depended was based on the specific statutory
       provision struck down by this court as facially unconstitutional in Aguilar, 2013 IL 122116,
       and was therefore a nullity.1 While Floyd F. acknowledged that he had not explicitly raised
       this issue before the trial court, he argued that the appellate court should exercise its authority
       to put aside any considerations of waiver or forfeiture due to the novelty of the issue and the
       liberty interest at stake.
¶ 16        DCFS and N.G. responded with three arguments: (1) that respondent had forfeited the
       issue and failed to ask for consideration of his claim under the plain error doctrine, (2) that
       under our decision in People v. McFadden, 2016 IL 117424, the invalidity of the underlying
       statute did not render a conviction void but only made it subject to vacatur, and respondent had
       not obtained vacatur of his 2008 conviction, and (3) that the record contained no evidence that
       respondent was convicted under the provision found unconstitutional in Aguilar.
¶ 17        The appellate court reversed and remanded. It first observed that, under McFadden, 2016
       IL 117424, ¶ 31, invalidation of respondent’s 2008 conviction for AUUW did not occur
       automatically; rather, it had to be invalidated through a direct appeal or a collateral attack.
       2017 IL App (3d) 160277, ¶ 18. The appellate court then explained that the case at hand is a
       civil action to determine respondent’s fitness to maintain a role in the minor’s life and that the
       continued existence of the 2008 conviction was pivotal to that determination on the basis
       asserted by DCFS. Id. ¶ 20. Accordingly, the appellate court held that the action qualified as a
       collateral attack and was a permissible vehicle for challenging the validity of Floyd F.’s 2008
       criminal conviction. Id.
¶ 18        The appellate court found that its authority to vacate respondent’s 2008 conviction was
       grounded in our precedent. Id. ¶ 21. It noted that in People v. Thompson (Dennis Thompson),
       2015 IL 118151, we described three forms of voidness challenges recognized in Illinois:
       (1) challenges to judgments entered by a court without jurisdiction, (2) challenges to
       judgments based on a facially unconstitutional statute that is void ab initio, and (3) challenges
       to judgments that do not conform to the applicable sentencing statute. 2017 IL App (3d)
       160277, ¶ 21. The third type of challenge was based on the “void sentence rule,” which was
       recently abolished by People v. Castleberry, 2015 IL 116916. 2017 IL App (3d) 160277, ¶ 21.
       The appellate court then noted that in a pre-Castleberry case, this court, in People v. Thompson
       (Ernest Thompson), 209 Ill. 2d 19 (2004), considered a claim raised for the first time in a
       postconviction proceeding that the extended-term portion of a sentence was void and could be

           1
            In Aguilar, we held that the provision of the AUUW statute under which Floyd F. was convicted
       was facially invalid because it violated the right to keep and bear arms, as guaranteed by the second
       amendment. Aguilar, 2013 IL 112116. That determination was based on the United States Supreme
       Court’s reasoning in District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that individuals
       have a right to keep and bear arms for the purposes of self-defense), and McDonald v. City of
       Chicago, 561 U.S. 742 (2010) (holding a right to bear arms implies a right to carry a loaded gun
       outside of the home), as well as the Seventh Circuit’s expansion of those cases in Moore v. Madigan,
       702 F.3d 933 (7th Cir. 2012) (holding Illinois’s unlawful use of weapons statute and the AUUW
       statute, which generally prohibit the carrying of guns in public, violate second amendment right to
       bear arms for self-defense outside the home).

                                                     -5-
       attacked at any time. 2017 IL App (3d) 160277, ¶ 22. As indicated by the appellate court, the
       Ernest Thompson court explained:
               “ ‘A void order may be attacked at any time or in any court, either directly or
               collaterally. An argument that an order or judgment is void is not subject to waiver.
               Defendant’s argument that the extended-term portion of his sentence is void does not
               depend for its viability on his post conviction petition. In fact, courts have an
               independent duty to vacate void orders and may sua sponte declare an order void.’ ”
               (Emphasis omitted.) Id. (quoting Ernest Thompson, 209 Ill. 2d at 27).
       The appellate court concluded that, even though the basis for voidness in Dennis Thompson
       was invalidated in Castleberry, the decision in that case made it clear that the voidness
       principles articulated in Ernest Thompson still apply to the two remaining valid bases for
       voidness (lack of jurisdiction and judgment based on a facially unconstitutional statute that is
       void ab initio). Id. The appellate court therefore held that Floyd F.’s claim “may be raised at
       any time in any court.” Id. ¶ 23.
¶ 19       The appellate court then clarified that Floyd F. was not claiming, as the defendant in
       McFadden had, that his void conviction served as the predicate for a second conviction, both of
       which occurred prior to the invalidation of the statute and only the second of which he sought
       to vacate. Id. ¶ 25. It explained, while that may be the posture of the postconviction petition in
       respondent’s 2011 habitual criminal case, it was not his argument here. Id. Rather, Floyd F.’s
       contention was that (1) his 2008 conviction had been rendered a nullity in 2013, when Aguilar
       was decided, (2) that conviction should be recognized as null and void, and vacated, and
       (3) this void conviction could not serve in 2016 as a basis for the imposition of a civil
       penalty—the loss of his parental rights. Id. The appellate court found these differences
       distinguished Floyd F.’s case from McFadden and, therefore, did not preclude Floyd F.’s
       challenge here. Id.
¶ 20       Consistent with this reasoning, the appellate court subsequently found that, under Aguilar,
       Floyd F.’s 2008 conviction for AUUW was void and could not serve as a basis for finding him
       depraved under section 1(D)(i) of the Adoption Act. Id. ¶ 31. It therefore vacated respondent’s
       2008 conviction, reversed the trial court’s unfitness finding, set aside the trial court’s related
       conclusion that termination of Floyd F.’s parental rights was in N.G.’s best interest, and
       remanded the case to the trial court for further proceedings. Id.
¶ 21       Both DCFS and N.G., through her guardian ad litem, petitioned this court for leave to
       appeal. We allowed both petitions and consolidated the proceedings for argument and
       disposition. For the following reasons, we affirm the appellate court’s judgment.

¶ 22                                           ANALYSIS
¶ 23       We begin our review of this case by recognizing the gravity of the interests at stake. When
       the State secured Floyd F.’s conviction under the portion of the AUUW statute held
       unconstitutional in Aguilar, 2013 IL 112116, it violated his second amendment rights. Through
       this proceeding, the State seeks to use that unconstitutional conviction to secure an additional
       sanction: termination of Floyd F.’s parental rights. Those parental rights are fundamental.
¶ 24       The United States Constitution provides that no state shall “deprive any person of life,
       liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. The clause
       “guarantees more than fair process”; it offers “heightened protection against government

                                                   -6-
       interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg,
       521 U.S. 702, 719-20 (1997). “These liberty interests include the right to contract, engage in an
       occupation, acquire knowledge, marry, establish a home and raise children, and worship God.”
       In re M.H., 196 Ill. 2d 356, 362 (2001) (citing Board of Regents of State Colleges v. Roth, 408
       U.S. 564, 572 (1972), citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). Parental rights,
       such as the right to rear one’s children or control their education, are included in the parental
       rights protected by the due process clause. Pierce v. Society of Sisters, 268 U.S. 510, 534-35
       (1925). A natural parent’s right to the care of his or her child is, in fact, an interest far more
       precious than any property right protected by that provision. Santosky v. Kramer, 455 U.S. 745
       (1982).
¶ 25       The United States Supreme Court has stated that “ ‘[i]t is cardinal with us that the custody,
       care and nurture of the child reside first in the parents, whose primary function and freedom
       include preparation for obligations the state can neither supply nor hinder.’ ” Troxel v.
       Granville, 530 U.S. 57, 65-66 (2000) (quoting Prince v. Massachusetts, 321 U.S. 158, 166
       (1944)). Further, “the interest of parents in the care, custody, and control of their children—is
       perhaps the oldest of the fundamental liberty interests recognized by [the United States
       Supreme Court].” Troxel, 530 U.S. at 65. In light of this precedent, “it cannot now be doubted
       that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of
       parents to make decisions concerning the care, custody, and control of their children.” Id. at 66.
       Indeed, such rights are a “central part” of the liberty protected by that clause (Obergefell v.
       Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584, 2600 (2015)), as the appellate court in this case
       correctly observed (2017 IL App (3d) 160277, ¶ 27).
¶ 26       Our court has likewise recognized parents’ fundamental liberty interest in raising their
       children. See In re M.H., 196 Ill. 2d at 362; Lulay v. Lulay, 193 Ill. 2d 455, 470-71 (2000);
       People v. R.G., 131 Ill. 2d 328, 342 (1989); In re Enis, 121 Ill. 2d 124, 128-29 (1988); see also
       In re Vanessa C., 316 Ill. App. 3d 475, 481 (2000); In re D.R., 307 Ill. App. 3d 478, 482
       (1999);. Because a natural parent’s right to raise his or her child is a fundamental liberty
       interest, involuntary termination of parental rights is a drastic measure. Where a parent has not
       consented to relinquishment of his or her parental rights, a court has no power to terminate the
       parent’s rights involuntarily except as authorized by statute. In re Gwynne P., 215 Ill. 2d 340,
       354 (2005).
¶ 27       A court’s statutory authority to terminate a parent’s rights involuntarily and to appoint a
       guardian with the right to consent to the child’s adoption is delineated by the language of the
       Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2010)) and the Adoption Act (750 ILCS
       50/0.01 et seq. (West 2010)). These acts contain strict requirements that embody Illinois’s
       policy favoring parents’ superior right to the custody of their children. 705 ILCS 405/1-1
       et seq. (West 2010); 750 ILCS 50/0.01 et seq. (West 2010). When a court exercises its
       authority, it must proceed within the confines of those laws. In re E.B., 231 Ill. 2d 459, 464
       (2008).
¶ 28       Under the Juvenile Court Act, parental rights cannot be terminated absent the parent’s
       consent unless the court first determines, by clear and convincing evidence, that the parent is
       an “unfit person” as defined by section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West
       2010)). 705 ILCS 405/2-29(2) (West 2010). “Involuntary termination of a parent’s rights



                                                   -7-
       without a prior showing of unfitness would, in fact, be unconstitutional.” In re Gwynne P., 215
       Ill. 2d at 354; In re Petition of Kirchner, 164 Ill. 2d 468, 501 (1995).
¶ 29        Each case concerning parental fitness is sui generis, unique unto itself. In re M.I., 2016 IL
       120232, ¶ 21. As a general rule, a trial court’s finding that a parent is unfit under section 1(D)
       of the Adoption Act will not be reversed on appeal unless that finding is against the manifest
       weight of the evidence. Id. A trial court’s decision regarding a parent’s fitness is against the
       manifest weight of the evidence only where the opposite conclusion is clearly apparent. Id.
¶ 30        The circuit court’s finding of unfitness in this case was premised exclusively on section
       1(D)(i) of the Adoption Act, under which a parent is presumptively deemed “depraved” and
       therefore unfit, if it has been established by clear and convincing evidence that the parent has
       committed certain crimes or a combination of crimes. See In re Gwynne P., 215 Ill. 2d at 249.
       More specifically, the circuit court found Floyd F. “depraved” based on the portion of section
       1(D)(i) that provides:
                    “There is a rebuttable presumption that a parent is depraved if the parent has been
                criminally convicted of at least 3 felonies under the laws of this State or any other state,
                or under federal law, or the criminal laws of any United States territory; 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 2010).
¶ 31        The problem, as Floyd F.’s trial counsel suggested and the appellate court recognized, is
       that one of the three felony convictions on which DCFS’s claim of depravity depended, the
       conviction from 2008 for aggravated unlawful use of a weapon, was based on the very statute
       we struck down as unconstitutional in Aguilar. The dispositive question in this appeal, and the
       one we must therefore now address, is whether the trial court could rely on such a
       constitutionally invalid conviction in determining whether DCFS had met its burden of
       establishing that Floyd F. was unfit within the meaning of the depravity provisions of section
       1(D)(i) of the Adoption Act and, on that basis, terminate his constitutionally protected parental
       rights. The answer to that question, as the appellate court correctly concluded, is that it could
       not.
¶ 32        In Aguilar, we held that section 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal Code of 1961
       (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)), specifically the offense of aggravated
       unlawful use of a weapon, was unconstitutional on its face under the second amendment to the
       United States Constitution. 2013 IL 112116, ¶ 22; see also People v. Burns, 2015 IL 117387.
       There is no question that Floyd F.’s 2008 conviction was based on that facially
       unconstitutional statute. Although the certified copies of Floyd F.’s criminal convictions
       included in the original record in this case did not reflect the specific provision of the statute
       under which he was convicted, the appellate court recognized the importance of determining
       whether Floyd F.’s conviction was, in fact, based on the particular subsection of the statute
       found to be facially unconstitutional in Aguilar. The appellate court therefore, sua sponte, took
       judicial notice of court records from Floyd F.’s 2008 prosecution in the circuit court of Will
       County. 2017 IL App (3d) 160277, ¶ 17. Doing so was well within the appellate court’s
       authority. See Metropolitan Life Insurance Co. v. American National Bank & Trust Co., 288
       Ill. App. 3d 760, 764 (1997); NBD Highland Park Bank, N.A. v. Wien, 251 Ill. App. 3d 512
       (1993); State Farm Fire & Casualty Co. v. Watts Regulator Co., 2016 IL App (2d) 160275,
       ¶ 40. Those records confirmed that Floyd F.’s 2008 conviction was based on section


                                                     -8-
       24-1.6(a)(1), (a)(3)(A), (d) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A),
       (d) (West 2010)).
¶ 33        Because section 24-1.6(a)(1), (a)(3)(A), (d) is facially unconstitutional under the second
       amendment to the United States Constitution (Aguilar, 2013 IL 112116, ¶ 22; Burns, 2015 IL
       117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)) and the existence of Floyd F.’s
       conviction under that facially unconstitutional statute was necessary to the trial court’s
       determination that he was depraved within the meaning of the Adoption Act, Floyd F.’s
       conviction under the statute must be vacated, and the circuit court’s finding of depravity must
       be reversed. The reason for that is grounded in both federal constitutional law, which we are
       required to follow, and the law of this state.
¶ 34        The United States Supreme Court has identified two basic paths for analyzing the
       consequences of a constitutionally deficient criminal conviction. Which path a court must
       follow depends, in the first instance, on the reason the conviction is unconstitutional. Where
       the conviction is found to have resulted from constitutionally deficient procedures, that
       determination does not negate the possibility that the defendant is actually culpable for the
       underlying offense and could have been convicted of that offense had the constitutionally
       mandated standards been followed.
¶ 35        In such cases, the conviction may still be used for some purposes, though not for others.
       The general rule is that new rules of procedure do not apply retroactively and therefore have no
       effect on prior convictions. Retroactive effect is given only in a small set of cases where the
       decision by which the conviction was rendered unconstitutional announced a watershed rule of
       criminal procedure implicating the fundamental fairness and accuracy of the proceeding. See
       Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). Even in cases where such a watershed rule
       is involved, however, there are circumstances in which the conviction obtained in violation of
       that rule may still be given recognition and effect in later criminal prosecutions. Lewis v.
       United States, 445 U.S. 55 (1980), discussed more fully later in this opinion, elucidates this
       principle.
¶ 36        The second basic path identified by the United States Supreme Court, exemplified by cases
       such as Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), and Class v. United
       States, 583 U.S. ___, 138 S. Ct. 798 (2018), applies where a conviction is invalid because it
       was based on a statute found to be unconstitutional on its face. To hold that a statute is facially
       unconstitutional means that the conduct it proscribed was beyond the power of the state to
       punish. Montgomery, 577 U.S. ___, 136 S. Ct. 718. It was not, is not, and could never be a
       crime. Ex parte Siebold, 100 U.S. 371, 376 (1879). That being the case, the conviction must be
       treated by the courts as if it did not exist, and it cannot be used for any purpose under any
       circumstances. Id. This is the line of authority by which the present case is governed.
¶ 37        The principles underlying this second path are not new. They are deeply embedded in our
       jurisprudence. See 16A Am. Jur. 2d Constitutional Law § 195 (1998). More than a century
       ago, the United States Supreme Court held that where, as here, the statute on which a criminal
       conviction is based has been declared facially invalid under the United States Constitution, the
       conviction must be vacated and cannot be given any force or effect. Ex parte Siebold, 100 U.S.
       at 376-77. “An unconstitutional law is void, and is as no law.” Id. at 376. Thus, “[a]n offence
       created by it is not a crime,” and “[a] conviction under it is not merely erroneous, but is illegal
       and void.” Id.; Ex parte Royall, 117 U.S. 241, 248 (1886) (“it is clear that if the [Virginia]


                                                    -9-
       statute under which [the defendant] was indicted be repugnant to the constitution, the
       prosecution against him has nothing upon which to rest, and the entire proceeding against him
       is a nullity”).
¶ 38        The United States Supreme Court recently reaffirmed these principles in Montgomery, 577
       U.S. ___, 136 S. Ct. 718. In accordance with long-established precedent, the court held in
       Montgomery that where, as here, a conviction is based on an unconstitutional law, that
       conviction is not only erroneous but is illegal and void and cannot be the legal cause of
       punishment. Id. at ___, 136 S. Ct. at 730. Indeed, for a state to enforce a proscription or penalty
       barred by the Constitution would itself be unlawful. Id. at ___, 136 S. Ct. at 730. Accordingly,
       not only must the State stop charging defendants under the invalidated law in future
       prosecutions, it is precluded from using past convictions under the facially unconstitutional
       law in any subsequent proceedings “ ‘to support guilt or enhance punishment for another
       offense,’ ” for doing so would be tantamount to forcing the defendant to suffer anew the
       deprivation of his constitutional rights. United States v. Bryant, 579 U.S. ___, ___, 136 S. Ct.
       1954, 1956-57 (2016) (quoting Burgett v. Texas, 389 U.S. 109, 115 (1967), and holding that
       convictions obtained in violation of the sixth amendment are deemed void and may not be used
       in subsequent prosecutions). Undeniably, the state is barred from giving any legal recognition
       to a conviction based on a facially unconstitutional statute. That is so even if the underlying
       statute is not invalidated until after the conviction becomes final. Montgomery, 577 U.S. at
       ___, 136 S. Ct. at 730.
¶ 39        The explanation for this inheres in the nature of what it means for a statute to be declared
       facially unconstitutional. While legislative repeal of a statute may not invalidate convictions
       based on conduct occurring prior to the repeal (5 ILCS 70/4 (West 2010); People v. Glisson,
       202 Ill. 2d 499, 507-08 (2002)), that is not the case where a statute is declared unconstitutional
       by the courts. As a matter of federal constitutional law, a judicial declaration that a criminal
       statute is facially invalid under the United States Constitution means that the statute was fatally
       infirm from the moment of its enactment and that the conduct it sanctioned was never a crime
       at all. Ex parte Siebold, 100 U.S. at 376. Accordingly, in contrast to situations where a
       conviction was obtained through a constitutionally deficient procedure, there is no possibility
       of guilt or criminal culpability. The underlying conduct was constitutionally immune from
       punishment. United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971). While
       the text of the law may remain in the statute books, it is “ ‘in legal contemplation, as
       inoperative as though it had never been passed.’ ” United States ex rel. Williams v. Preiser,
       497 F.2d 337, 339 (2d Cir. 1974) (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886)).
¶ 40        Put in other words, a judicial determination that a law is facially invalid under the
       Constitution of the United States means, as a matter of federal constitutional law, that the state
       had no authority and the courts never acquired jurisdiction to impose punishment under that
       law. Montgomery, 577 U.S. at ___, 136 S. Ct. at 730-31. And because there was never
       authority or jurisdiction to impose the punishment in the first place, the United States Supreme
       Court has further held that “a court has no authority to leave in place a conviction or sentence
       that violates a substantive rule, regardless of whether the conviction or sentence became final
       before the rule was announced.” Id. at ___, 136 S. Ct. at 731. “There is no grandfather clause
       that permits States to enforce punishments the Constitution forbids,” the Court has explained.
       Id. at ___, 136 S. Ct. at 731. “To conclude otherwise would undercut the Constitution’s
       substantive guarantees.” Id. at ___, 136 S. Ct. at 731. When a court is confronted with a law

                                                   - 10 -
       repugnant to the constitution, what it must do “is simply to ignore it” and “decide[ ] the case
       ‘disregarding the [unconstitutional] law.’ ” (Emphasis omitted and in original.) Reynoldsville
       Casket Co. v. Hyde, 514 U.S. 749, 760 (1995) (Scalia, J., concurring, joined by Thomas, J.)
       (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)).
¶ 41       State courts are under a mandatory obligation to adhere to this federal constitutional
       command. Under the supremacy clause of the federal constitution (U.S. Const., art. VI, cl. 2),
               “ ‘[w]e are bound to follow the United States Supreme Court’s interpretation of the
               Constitution of the United States.’ People v. Wagener, 196 Ill. 2d 269, 287 (2001). This
               means that when the Supreme Court adopts a particular framework for applying a
               federal constitutional provision, we are required to follow that framework, regardless
               of how other courts, including this one, may have approached the issue in other
               decisions. People v. Hale, 2013 IL 113140, ¶ 20.” People v. Hood, 2016 IL 118581,
               ¶ 22.
       Accordingly, because the United States Supreme Court has held that a statute that is facially
       invalid under the constitution is void and unenforceable and “is as no law,” the supremacy
       clause requires this court to reach the same conclusion. As the highest court of one of our sister
       states has observed, “[i]t is fundamental that by virtue of the Supremacy Clause, the State
       courts are bound by the decisions of the Supreme Court with respect to the federal Constitution
       and federal law, and must adhere to extant Supreme Court jurisprudence. U.S. Const. art. VI,
       cl. 2; Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 221, 51 S.Ct. 453, 75 L.Ed. 983
       (1931).” Council 13, American Federation of State, County & Municipal Employees v.
       Rendell, 986 A.2d 63, 77 (Pa. 2009); see also People v. Hope, 184 Ill. 2d 39, 44 (1998) (“state
       courts are required to follow United States Supreme Court precedent where the result therein is
       mandated by the Constitution of the United States” (citing People v. Gillespie, 136 Ill. 2d 496,
       502 (1990))). “States may not disregard a controlling, constitutional command in their own
       courts.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 727; see also Reynoldsville Casket Co.,
       514 U.S. at 760 (Scalia, J., concurring, joined by Thomas, J.) (where Ohio statute violated
       federal constitution, Ohio courts were bound to ignore it).
¶ 42       We thus have an affirmative duty to invalidate Floyd F.’s AUUW conviction and to treat
       the statute on which it was based as having never existed. Because the finding of depravity
       depended on a void conviction based on a constitutionally nonexistent statute, we must, in turn,
       reverse that finding, for without that conviction the State would have failed to meet its burden
       of showing by clear and convincing evidence that Floyd F. was depraved and therefore unfit
       under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). Absent that
       conviction, the statutory presumption of depravity under section 1(D)(i) would not even have
       been triggered.
¶ 43       There is no merit to the argument that this proceeding is not an appropriate forum for Floyd
       F. to invoke Aguilar to establish that his 2008 AUUW conviction was invalid because it was
       based on a statute that is facially invalid under the second amendment. Our court has held that
       a judgment based on a statute that is facially unconstitutional is void. People v. Price, 2016 IL
       118613, ¶ 31. Illinois law permits void judgments to be “ ‘impeached at any time in any
       proceeding whenever a right is asserted by reason of that judgment, and it is immaterial ***
       whether or not the time for review by appeal has expired.’ ” People v. Meyerowitz, 61 Ill. 2d
       200, 206 (1975) (quoting Reynolds v. Burns, 20 Ill. 2d 179, 192 (1960)); R.W. Sawant & Co. v.


                                                   - 11 -
       Allied Programs Corp., 111 Ill. 2d 304, 309 (1986) (a void judgment, order, or decree “may be
       attacked at any time or in any court, either directly or collaterally” (emphasis omitted)).
       Further, challenges to void judgments are not subject to forfeiture or other procedural
       restraints. Price, 2016 IL 118613, ¶ 30. Because Illinois state courts would thus afford the
       opportunity for a collateral challenge to the validity of a judgment in cases such as this, we
       cannot refuse to give retroactive effect to a substantive federal constitutional right that is
       dispositive of the challenge advanced by Floyd F. here. The supremacy clause of the United
       States Constitution prohibits it. Montgomery, 577 U.S. at ___, 136 S. Ct. at 731-32.
¶ 44       Following the same established principles applied in Montgomery, other state courts have
       reached the same conclusion under similar circumstances. See, e.g., People v. Germany, 674
       P.2d 345, 349 (Colo. 1983) (en banc), where the Supreme Court of Colorado invalidated a
       provision of state law that imposed a time bar on challenges to unconstitutional convictions,
       including convictions based on statutes declared unconstitutional after the conviction was
       imposed. Id. at 352. In reaching this result, the court reasoned that a contrary conclusion would
       contravene “the long-standing rule that a conviction under an unconstitutional law is void.” Id.
       “[I]t is axiomatic,” held the court, “that a conviction imposed in violation of a basic
       constitutional right may not be used to support guilt or to enhance punishment,” a precept that
       emanates from “the principle that unconstitutional convictions, in addition to being of suspect
       reliability, abridge the very charter from which the government draws its authority to prosecute
       anyone.” Id. at 349. “[T]he implementation of an accused’s right to challenge governmental
       use of an unconstitutional conviction is no more than one aspect of the duty of the judiciary to
       uphold the constitution in all judicial proceedings.” Id. at 350. And while “the state has a
       legitimate interest in preserving the finality of criminal convictions,” “the state’s interest in
       finality is not a justification for permitting unconstitutional convictions to stand.” Id.
¶ 45       To similar effect is Keeny v. Fitch, 458 S.W.3d 838 (Mo. Ct. App. 2015). In that case, the
       defendant was required by state law to register as a sex offender after pleading guilty more than
       25 years earlier to a sexual offense based on consensual conduct that was subsequently found
       by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to be
       constitutionally protected. Keeny, 458 S.W.3d 838. The defendant claimed that he should no
       longer be required to register as a sex offender. Id. By the time the United States Supreme
       Court declared that his conduct could not be made a crime, however, there was no longer any
       mechanism under Missouri state law for him to withdraw his plea. Id. The Missouri Court of
       Appeals nevertheless granted him relief. Id. It held that he was entitled to a declaratory
       judgment that he was no longer required to register as a sex offender and ordered the state to
       remove his name and all other registration information about him from the state’s sex offender
       registry. Id.
¶ 46       State v. Smith, 2016-Ohio-3521, 68 N.E.2d 114 (Ct. App.), a recent Ohio case decided after
       Montgomery, is also in accord. Similar to Keeny, 458 S.W.3d 838, the case involved a
       defendant who was under an ongoing duty to register as a child-victim-oriented offender
       following his release from confinement for convictions for child-enticement offenses under
       Ohio law. Smith, 2016-Ohio-3521, 68 N.E.2d 114. The convictions were imposed in 2004, no
       appeal was taken, and defendant was released from confinement in 2007. Id. Seven years later,
       in an unrelated case, the Ohio Supreme Court determined that the statute under which the
       defendant had been convicted was facially unconstitutional under the first amendment to the
       United States Constitution. Id. Based on that ruling, the defendant filed motions to vacate his

                                                  - 12 -
       2004 conviction. Id. The trial court rejected defendant’s claims, but the Ohio Court of Appeals
       reversed. Id. After recognizing that the effect of the 2014 ruling was to leave defendant
       convicted under an unconstitutional statute, the court turned to the question of its jurisdiction
       to grant relief. Id. It noted that the defendant had not specified a particular statute or rule on
       which relief could be granted and concluded that none of the normal procedural avenues under
       Ohio law for appeal or collateral attack remained available to him. Id. ¶ 15. The court held,
       however, that under the United States Supreme Court’s decisions in Siebold and Montgomery,
       as well as under Ohio law, the effect of the Ohio Supreme Court’s 2014 declaration that the
       statute under which defendant had been convicted was facially unconstitutional under the first
       amendment of the United States Constitution was to render defendant’s convictions void. Id.
       ¶ 29. Under Montgomery and related Supreme Court precedent, the court was obligated to give
       the 2014 state court ruling full retroactive effect. Id. ¶¶ 22-29. Because in Ohio, as in Illinois,
       “a court always has jurisdiction to correct a void judgment” (id. ¶ 20), it reversed the trial
       court’s judgment and remanded with instructions to vacate defendant’s conviction and ordered
       “that he be discharged from further prosecution for those offenses,” a command that would
       relieve defendant from any ongoing obligation to register as a child-victim-oriented offender
       under Ohio law. Id. ¶ 30.
¶ 47       Application of these principles by federal courts has likewise afforded individuals relief
       when they have found no recourse in state courts. In United States ex rel. Williams, 497 F.2d
       337, for example, the United States Court of Appeals for the Second Circuit affirmed the grant
       of habeas corpus relief to a licensed physician who had been convicted of manslaughter under
       state law and sentenced to prison for performing a nonnegligent, consensual medical procedure
       eight years before the United States Supreme Court ruled that physicians had a constitutional
       right to perform the procedure without fear of prosecution. The court held that because the
       states were forbidden by the constitution from regulating such procedures, the state law for
       which the physician had been prosecuted was “ ‘in legal contemplation, as inoperative as
       though it had never been passed.’ [Citation.]” Id. at 339. It necessarily followed that the
       physician could no longer remain deprived of liberty based on that law. “This declaration of
       retroactive invalidity,” concluded the court, “assures the supremacy of the newly recognized
       substantive right over a state’s power to punish.” Id.
¶ 48       Moreover, while the United States Supreme Court has refused to consider claims on
       habeas corpus that an indictment did not state an offense (Ex parte Parks, 93 U.S. 18 (1876)),
       that an individual had been placed in double jeopardy for the same offense (Ex parte Bigelow,
       113 U.S. 328 (1885)), or that an individual had been compelled to incriminate himself (In re
       Moran, 203 U.S. 105 (1906)), the Court has consistently and without exception recognized an
       obligation to afford relief to a person convicted under an unconstitutional (void) statute (Ex
       parte Siebold, 100 U.S. 371), and it continues to do so, as Montgomery illustrates.
¶ 49       Indeed, the United States Supreme Court reaffirmed the foregoing principles just this year
       in Class, 583 U.S. ___, 138 S. Ct. 798. There, a defendant who had been convicted of unlawful
       possession of a firearm on the grounds of the United States Capitol sought to challenge the
       constitutionality of the statute under which he was charged on the theory that it violated the
       second amendment and the due process clause. Class, 583 U.S. ___, 138 S. Ct. 798. The
       government objected, arguing that the defendant should be barred from raising his
       constitutional challenge because he had pled guilty to the offense and because he had not
       followed procedures set forth in the Federal Rules of Criminal Procedure. Id. The Supreme

                                                   - 13 -
       Court rejected these arguments. Id. Following its prior precedent, it held that because
       defendant’s constitutional challenge, like the challenge asserted by Floyd F. here, went to the
       power of the government to criminalize the conduct at issue and, if successful, would have
       meant that the offense in question was one that the government had no constitutional authority
       to prosecute, defendant had the right to raise that challenge on direct appeal. Id. Although
       Class involves a guilty plea, the same underlying principle applies. Defendants convicted
       under a facially unconstitutional statute may challenge the conviction at any time, even after a
       guilty plea, because the state or government had no power to impose the conviction to begin
       with.
¶ 50       Likewise, Illinois law mandates Floyd F.’s 2008 conviction be vacated and the finding of
       depravity reversed. Although the terminology may differ in certain respects, Illinois follows
       the same basic approach as the United States Supreme Court when dealing with the
       consequences of a facially unconstitutional statute. When a statute is found to be facially
       unconstitutional in Illinois, it is said to be void ab initio; that is, it is as if the law had never
       been passed (McFadden, 2016 IL 117424, ¶ 17; People v. Holmes, 2017 IL 120407, ¶¶ 12-13;
       Dennis Thompson, 2015 IL 118151, ¶ 32; People v. Carrera, 203 Ill. 2d 1, 14 (2002); Hill v.
       Cowan, 202 Ill. 2d 151, 156 (2002); People v. Gersch, 135 Ill. 2d 384, 399 (1990)) and never
       existed (People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999)). Such laws are “infirm from the
       moment of [their] enactment and, therefore, [are] unenforceable.” McFadden, 2016 IL 117424,
       ¶ 17; Holmes, 2017 IL 120407, ¶ 12; Dennis Thompson, 2015 IL 118151, ¶ 32.
¶ 51       We apply these principles strictly where a defendant’s constitutional rights are in need of
       vindication. Perlstein v. Wolk, 218 Ill. 2d 448, 466 (2006). “[W]here a statute is violative of
       constitutional guarantees, we have a duty not only to declare such a legislative act void, but
       also to correct the wrongs wrought through such an act ***.” Gersch, 135 Ill. 2d at 399. As we
       recently noted in McFadden, to refuse to give a decision declaring a statute facially
       unconstitutional full retroactive effect would forever prevent those injured under the
       unconstitutional legislative act from receiving a remedy for deprivation of a guaranteed right, a
       result that “ ‘would clearly offend all sense of due process.’ ” McFadden, 2016 IL 117424,
       ¶ 18 (quoting Gersch, 135 Ill. 2d at 397).
¶ 52       While a conviction and sentence based on a facially unconstitutional statute have no legal
       force or effect, and can be given none, their nullification is not self-executing. Id. Judicial
       action is necessary. As we recently said in McFadden, “[i]t is axiomatic that no judgment,
       including a judgment of conviction, is deemed vacated until a court with reviewing authority
       has so declared.” Id. ¶ 31. The voidness of a conviction and sentence based on a facially
       unconstitutional statute may be addressed either on direct review of the conviction and
       sentence or in a collateral proceeding. Id.
¶ 53       Floyd F. did not challenge the validity of his 2008 AUUW conviction through direct
       appeal. The time for pursuing such a direct appeal had expired five years before we declared
       the statutory basis for that conviction invalid under the second amendment in Aguilar, 2013 IL
       112116. A collateral challenge was therefore his only option. Illinois law provides two
       statutory options for collaterally attacking an invalid judgment in a criminal case. The first is a
       postconviction petition filed pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1
       et seq. (West 2014)), and the second is a petition filed pursuant to section 2-1401 of the Code
       of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). While Floyd F. has pursued a


                                                    - 14 -
       postconviction petition in his 2011 criminal case claiming that his 2008 conviction was a
       nullity and could not serve as a basis for an armed habitual criminal charge, that petition is not
       before us, nor was it before the appellate court.
¶ 54       That, however, is of no consequence. Despite DCFS’s contentions to the contrary, the
       foregoing options are not and have never been held to be the sole means for collaterally
       attacking the validity of a conviction premised on a facially invalid, and indisputably
       unenforceable, statute. Malone v. Cosentino, 99 Ill. 2d 29 (1983), cited by DCFS as support for
       a contrary conclusion, is inapposite. Malone was a class action in which the lead plaintiff
       sought to recover modest monetary penalties and fees he paid after pleading guilty to two
       traffic violations. Id. at 31. In contrast to Floyd F., the plaintiff in Malone did not take issue
       with the validity of his convictions. Id. His contention centered exclusively on the
       constitutionality of the statutes authorizing the penalties and fees he had been required to pay
       following those convictions. Id.
¶ 55       In rejecting the plaintiff’s challenge in Malone, our court held that he was barred from
       collaterally challenging the penalties and fees in what it described as an “ad hoc” proceeding
       because he had neither appealed the underlying judgment nor sought collateral review in one
       of the “established forms of collateral proceedings,” and the modest fees and assessments
       involved did not involve a substantial denial of constitutional rights. Id. at 33-35. We took care,
       however, to contrast the situation with People v. Warr, 54 Ill. 2d 487, 491-93 (1973), where
       defendants, who had been convicted of misdemeanors, brought suit to challenge their
       convictions on the grounds that the convictions had been obtained in violation of constitutional
       protections mandated by controlling United States Supreme Court precedent, and with
       McCabe v. Burgess, 75 Ill. 2d 457 (1979), where defendant sought to use a civil action to
       expunge constitutionally infirm convictions from his criminal record and the criminal records
       of other individuals and to recover fines paid in connection with those unconstitutional
       convictions, and Meyerowitz, 61 Ill. 2d 200 (1975), discussed more fully below. Malone, 99 Ill.
       2d at 34-35. In such circumstances, where there was a substantial denial of constitutional
       rights, we held that allowing nonstatutory remedies would be justified. Id. at 35. This, of
       course, is just such a case. Here, there is an unconstitutional conviction on Floyd F.’s record.
       Further, Floyd F. has alleged a substantial denial of not only his second amendment rights but
       also his right to rear his child, a fundamental liberty interest. Malone thus refutes rather than
       supports DCFS’s position.
¶ 56       Meyerowitz, 61 Ill. 2d 200, cited by this court in Malone, underscores the lack of merit in
       DCFS’s position. In Meyerowitz, we considered whether defendants may properly attack the
       judgments of conviction in their motions to terminate probation. Id. In holding that they may,
       we reiterated “that considerations of justice and fairness require that an accused who asserts a
       substantial denial of his constitutional rights in the proceedings in which he was convicted be
       afforded a procedure by which the challenged proceedings may be reviewed.” Id. at 205.
       Accordingly, where a person has been convicted under an unconstitutional statute, he or she
       may obtain relief from any court that otherwise has jurisdiction. The person is not restricted to
       specific statutory methods for collaterally attacking a judgment. Id. at 206. And it does not
       matter that the time for direct appeal may have passed. “ ‘A void judgment can be impeached
       at any time in any proceeding whenever a right is asserted by reason of that judgment, and it is
       immaterial, in a consideration of the validity of the judgment, whether or not the time for
       review by appeal has expired.’ ” Id. (quoting Reynolds, 20 Ill. 2d at 192).

                                                   - 15 -
¶ 57       Simply put, under Illinois law, there is no fixed procedural mechanism or forum, nor is
       there any temporal limitation governing when a void ab initio challenge may be asserted. See
       Ernest Thompson, 209 Ill. 2d at 25. Under our precedent, it is sufficient if a person subject to a
       conviction premised on a facially invalid statute raises his or her challenge through an
       appropriate pleading in a court possessing jurisdiction over the parties and the case. See
       McFadden, 2016 IL 117424, ¶ 21. Indeed, if the constitutional infirmity is put in issue during a
       proceeding that is pending before a court, the court has an independent duty to vacate the void
       judgment and may do so sua sponte. Ernest Thompson, 209 Ill. 2d at 27; Meyerowitz, 61 Ill. 2d
       200. A void order may be attacked at any time in any court. Ernest Thompson, 209 Ill. 2d at 27.
       Such challenges are not subject to forfeiture (People v. Relerford, 2017 IL 121094, ¶ 29 n.2) or
       any other ordinary procedural bar (Dennis Thompson, 2015 IL 118151, ¶¶ 30-33).
¶ 58       Moreover, it is not a valid objection that permitting parents such as Floyd F. to challenge
       their constitutionally invalid convictions in termination proceedings will adversely impact
       administration of the criminal justice system. Establishing that a prior conviction is invalid
       because it was based on a facially unconstitutional statute requires no elaborate fact-finding or
       hearing. The statutory basis for the conviction can be readily ascertained by retrieval and
       review of official court records, of which a subsequent court can take judicial notice (see
       People v. Williams, 149 Ill. 2d 467, 492 (1992)), as happened in this case, and the fact that the
       statute has been found unconstitutional can be confirmed by the case law. As for concerns over
       the finality of judgments, these are of little consequence as a practical matter because penal
       statutes are rarely found facially invalid and, when they are, defendants have every incentive to
       raise the defect at the earliest possible, practical moment. Moreover, the particular statute on
       which Floyd F.’s challenged 2008 conviction was based was declared unconstitutional five
       years ago, ending further prosecutions under that statute and limiting the number of
       convictions that will have to be set aside going forward.
¶ 59       In any event, to the extent that the administration of justice may be inconvenienced by the
       need to take corrective action, such concerns cannot justify leaving in place and giving further
       effect to a criminal conviction based on a facially unconstitutional statute. While the State has
       a weighty interest in the finality of convictions and sentences, the United States Supreme Court
       has made it clear that whatever administrative, penal, or other policy concerns might be taken
       into account in other circumstances, if the State were required to revisit convictions that had
       been obtained in conformity to then-existing constitutional standards, such concerns have
       absolutely no application where, as here, a statute has been declared facially invalid under a
       substantive rule of constitutional law, “for no resources marshaled by a State could preserve a
       conviction or sentence that the Constitution deprives the State of power to impose.”
       Montgomery, 577 U.S. at ___, 136 S. Ct. at 732 (“ ‘There is little societal interest in permitting
       the criminal process to rest at a point where it ought properly never to repose’ ” (quoting
       United States v. Mackey, 401 U.S. 667, 693 (1971) (Harlan, J., concurring in part and
       dissenting in part))). The procedural objections raised by DCFS and N.G. to Floyd F.’s
       challenge to his void 2008 AUUW conviction were therefore meritless and properly rejected
       by the appellate court.
¶ 60       The appellate court was likewise correct to reject the contention by DCFS that under this
       court’s decision in McFadden, 2016 IL 117424, Floyd F.’s constitutionally invalid (and
       therefore legally nonexistent) firearms conviction could still be used by the State to meet its
       burden of establishing that Floyd F. was “depraved” within the meaning of the Adoption Act

                                                   - 16 -
       so that his parental rights could be extinguished. In making that argument, DCFS was asking
       the court to hold, in effect, that a person’s fundamental rights to parenthood may be terminated
       based on conduct protected by the second amendment and therefore beyond the power of the
       state to punish. That such is not the case should be self-evident. It can certainly find no support
       in McFadden.
¶ 61        McFadden was a criminal proceeding involving the validity of a defendant’s conviction for
       unlawful use of a weapon by a felon (UUWF). Id. The state’s contention was that under the
       governing provisions of Illinois’s criminal code, the defendant in that case was eligible to be
       convicted for UUWF based on a prior conviction for aggravated unlawful use of a weapon
       (AUUW). Id. The defendant, however, argued that, because the AUUW statute had been
       declared facially unconstitutional in Aguilar, his conviction under that statute should not have
       been be taken into account for purposes of determining whether his subsequent offense
       constituted UUWF. Id. ¶ 16.
¶ 62        The appellate court agreed, but this court reversed and reinstated the UUWF conviction. Id.
       ¶ 27. Although we reaffirmed long-standing principles that a facially unconstitutional statute is
       void from the moment of its enactment and unenforceable, that a declaration that a statute is
       facially invalid must be given full retroactive effect, and that a conviction based on such a
       statute cannot stand, we held, based on the language of the UUWF statute, that where a
       defendant has not taken affirmative action to have a court set aside the initial conviction and
       therefore still has an extant, undisturbed felony conviction on his record at the time he engaged
       in the conduct on which the subsequent UUWF prosecution was predicated, the elements of the
       UUWF statute are satisfied and the UUWF conviction may stand, regardless of whether the
       initial conviction might be subject to vacatur later on the grounds that it was unconstitutional.
       Id. Underlying this conclusion was a concern that unless felons who had previously been
       convicted of a firearms offense were required to formally clear their prior records before
       obtaining firearms, they might resort to self-help and acquire firearms again in the hope that,
       after the fact, they could defend against any subsequent firearms charges by having their earlier
       conviction set aside. Id. ¶ 30. Such an outcome, in our view, would undermine the UUWF
       statute’s purpose of protecting the public from dangerous persons who are seeking to obtain
       firearms. Id. ¶¶ 29-30.
¶ 63        Because Floyd F. did not move to nullify his 2008 AUUW conviction prior to initiation of
       the parental rights termination proceedings at issue in this case, DCFS contends that while the
       conviction is constitutionally infirm, it may likewise be used, under the same reasoning we
       employed in McFadden, to establish that he was a three-time felon and thus “depraved” within
       the meaning of the Adoption Act. We agree with the appellate court that DCFS’s argument is
       not well taken.
¶ 64        As a preliminary matter, a careful reading of McFadden reveals evidentiary and procedural
       differences that separate that case from this one. While our decision in Aguilar was raised in
       both cases, Aguilar did not invalidate the entire AUUW statute, only part of it, namely, section
       24-1.6(A)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)
       (West 2008)). In contrast to the matter before us here, there was no indication in the record in
       McFadden as to either the particular provision of the AUUW statute to which the defendant




                                                   - 17 -
       had pled guilty or the factual basis for the plea. McFadden, 2016 IL 117424, ¶¶ 4, 32-33.2 We
       therefore had no basis for concluding that the defendant’s prior conviction was, in fact,
       premised on section 24-1.6(A)(1), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)),
       and we took care to specifically point out that we were not doing that. McFadden, 2016 IL
       117424, ¶ 41. Without evidence that defendant had actually been convicted for violating that
       particular subsection, any claim that defendant’s subsequent UUWF conviction was premised
       on a void prior conviction was, of course, completely untenable.
¶ 65       No such problem is present in this case. In contrast to McFadden, it is clear from the
       supplemented appellate record that Floyd F.’s AUUW conviction was based on exactly the
       same section of the statute we found facially unconstitutional in Aguilar. Id. ¶¶ 25, 28. We can
       therefore say with certainty that the trial court’s finding of unfitness here was premised on a
       conviction that has no legal force or effect.
¶ 66       We note, moreover, that while the defendant in McFadden sought to set aside his
       subsequent UUWF conviction on the grounds that his prior AUUW conviction should not be
       given legal recognition under Aguilar, he never filed any pleadings to actually vacate that prior
       AUUW conviction and did not request that the prior conviction be vacated in the case then
       under review. Id. ¶ 21. That was not true of Floyd F. Unlike the defendant in McFadden, he not
       only challenged the use of the prior AUUW conviction in this subsequent proceeding, he
       sought to have the prior conviction itself nullified and vacated. 2017 IL App (3d) 160277, ¶ 25.
       As our previous discussion makes clear, using a collateral proceeding to attack a conviction
       based on a facially unconstitutional statute, as Floyd F. has done here, is clearly permissible.
¶ 67       McFadden is also problematic because of the line of United States Supreme Court
       authority on which it is based. In upholding the use of the defendant’s prior firearms conviction
       to establish an element of the subsequent firearms offense for which he had been convicted,
       our opinion in McFadden neither considered nor addressed Montgomery or the numerous
       earlier United States Supreme Court cases which have consistently held that convictions based
       on facially unconstitutional statutes are void, can be given no effect, and must be treated by the
       courts as if they do not exist. No mention of Montgomery is made in the dissent either. While
       the decision was referenced in a motion filed by the defendant for leave to file additional
       authority and was argued in his petition for rehearing, it triggered no analysis by the majority
       or the dissenters in our court, and the defendant’s petition for rehearing was ultimately denied
       without comment. Because a judicial opinion, like a judgment, is authority only for what is
       actually decided in the case (Board of Governors of State Colleges & Universities for Chicago
       State University v. Illinois Fair Employment Practices Comm’n, 78 Ill. 2d 143, 149 (1979);
       Spring Hill Cemetery of Danville v. Ryan, 20 Ill. 2d 608, 619 (1960)), McFadden cannot be
       read as expressing any view by this court as to the implications of Montgomery for the

           2
            In McFadden, we stated that “[a]lthough for purposes of this appeal, the State does not dispute
       that defendant’s 2002 conviction is premised on an unconstitutional statute, the record does not
       confirm defendant’s assertion. The indictment for the 2008 UUW by a felon offense does not identify
       the specific nature of the 2002 predicate AUUW offense under which defendant pleaded guilty.
       Rather, it alleges that defendant had a felony conviction for ‘[AUUW] under case number
       02CR-30903.’ ” McFadden, 2016 IL 117424, ¶ 32. We went on to make clear that “the record does
       not affirmatively reflect that defendant pleaded guilty under section 24-1.6(a)(1), (a)(3)(A), the only
       section held unconstitutional in Aguilar.” Id. ¶ 33.

                                                     - 18 -
       circumstances present in that case. Suggestions to the contrary by our appellate court (see, e.g.,
       People v. Smith, 2017 IL App (1st) 151643, ¶ 18; People v. Spivey, 2017 IL App (1st) 123563,
       ¶ 14) are incorrect and have no basis in our case law regarding the interpretation of judicial
       precedent.
¶ 68       What is clear from the discussion in McFadden is that our decision was based, instead,
       squarely on the United States Supreme Court’s decision in Lewis, 445 U.S. 55 (1980). At issue
       in Lewis was whether a defendant’s extant prior felony conviction, which was subject to
       collateral attack on the grounds that the defendant had been denied his right to counsel
       pursuant to Gideon v. Wainwright, 372 U.S. 335 (1963), could be used as the predicate for a
       subsequent conviction under section 1202(a)(1), as amended, of Title VII of the Omnibus
       Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 1202(a)(1) (1976)), which barred
       possession of firearms by any person who “has been convicted by a court of the United States
       or of a State *** of a felony.” (Internal quotation marks omitted.) Lewis, 445 U.S. at 60.
¶ 69       In answering this question in the affirmative, the Supreme Court examined the legislative
       history of section 1202(a)(1) as well as the overall statutory framework of which it was a part
       and concluded that its prohibitions were triggered by any felony conviction, not merely “valid”
       convictions. Id. Accordingly, for purposes of that statute, it did not matter that the predicate
       felony might be subject to collateral attack on the grounds that it was obtained in violation of a
       defendant’s right to counsel. Id. So long as the defendant’s conviction for that felony remained
       undisturbed through court challenge or pardon at the time of the conduct giving rise to the
       subsequent felony (possession of a firearm), it could be used to establish an element of the
       second offense. Id. at 62-65. A contrary conclusion, in the Court’s view, would be at odds with
       the statutory scheme enacted by Congress “in response to the precipitous rise in political
       assassinations, riots, and other violent crimes involving firearms, that occurred in this country
       in the 1960’s,” under which even mere indictment was a disabling circumstance, and which
       was designed to be “a sweeping prophylaxis *** against misuse of firearms.” Id. at 63.
¶ 70       While the Court acknowledged its precedent holding that uncounseled convictions
       obtained in violation of the sixth amendment under Gideon could not be used to enhance
       punishment under a state’s recidivist statute (Burgett, 389 U.S. 109) or considered by a court in
       sentencing a defendant after a subsequent conviction (United States v. Tucker, 404 U.S. 443
       (1972)) or to impeach the general credibility of the defendant in a subsequent prosecution
       (Loper v. Beto, 405 U.S. 473 (1972); Lewis, 445 U.S. at 60), it distinguished those situations on
       the grounds that in each instance, the constitutional defect affected the reliability of the prior
       conviction. In Lewis, by contrast, the focus of the federal gun laws was “not on reliability, but
       on the mere fact of conviction, or even indictment, in order to keep firearms away from
       potentially dangerous persons.” Lewis, 445 U.S. at 67. The court also found it significant that
       the sanction imposed by the federal statute could not be said to “ ‘support guilt or enhance
       punishment’ ” because that sanction “attaches immediately upon the defendant’s first
       conviction” and not, as in Burgett, only after the fact of the second conviction. Id. (quoting
       Burgett, 389 U.S. at 115); see Deborah S. Prutzman, Prior Convictions and the Gun Control
       Act of 1968, 76 Colum. L. Rev. 326, 339 (1976).
¶ 71       In McFadden, we found that Illinois’s UUWF statute was similar in purpose, structure, and
       operation to the federal firearms statute at issue in Lewis and that it was therefore appropriate
       to follow the same reasoning in construing and applying the Illinois law. In focusing on the


                                                   - 19 -
       similarity of the statutory schemes, however, we failed to take into account a fundamental
       distinction between the constitutional flaws afflicting the two predicate offenses. In contrast to
       McFadden, Lewis did not present a situation where the prior offense was based on a facially
       unconstitutional statute that penalized conduct the state had no power to punish, and no second
       amendment concerns were at play (see District of Columbia v. Heller, 554 U.S. 570, 625 n.25
       (2008)). The problem with the predicate conviction in Lewis, felony breaking and entering
       with intent to commit a misdemeanor imposed under Florida law by a Florida state court, was
       that it was subject to attack on the grounds that it was obtained through a constitutionally
       deficient procedure, specifically, a trial in which the defendant had been denied the right to
       counsel, a defect the defendant had failed to raise in any Florida state proceeding prior to being
       prosecuted for the federal offense then before the court.
¶ 72       The distinction is a critical one, as the United States Supreme Court’s prior case law
       demonstrates and its decision in Montgomery confirms.
                “Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or
                sentence by regulating ‘the manner of determining the defendant’s culpability.’
                [Citations.] Those rules ‘merely raise the possibility that someone convicted with use
                of the invalidated procedure might have been acquitted otherwise.’ [Citation.] Even
                where procedural error has infected a trial, the resulting conviction or sentence may
                still be accurate; and, by extension, the defendant’s continued confinement may still be
                lawful. For this reason, a trial conducted under a procedure found to be unconstitutional
                in a later case does not, as a general matter, have the automatic consequence of
                invalidating a defendant’s conviction or sentence.” Montgomery, 577 U.S. at ___, 136
                S. Ct. at 730.
       Correspondingly, a conviction resulting from a trial in which the defendant was not afforded
       his or her right to counsel may be used for some purposes but not for others. Lewis, 445 U.S. at
       66-67.
¶ 73       What our decision in McFadden did not take into account is that “[t]he same possibility of
       a valid result does not exist where a substantive rule has eliminated a State’s power to
       proscribe the defendant’s conduct or impose a given punishment,” for “ ‘[e]ven the use of
       impeccable factfinding procedures could not legitimate a verdict’ where ‘the conduct being
       penalized is constitutionally immune from punishment.’ ” Montgomery, 577 U.S. at ___, 136
       S. Ct. at 718 (quoting United States Coin & Currency, 401 U.S. at 724). Convictions resulting
       from a facially unconstitutional statute fall directly within this category. As discussed in detail
       earlier in this opinion, under Montgomery and the long line of cases on which Montgomery is
       based, such convictions are illegal and void, a nullity to which no court may give adverse effect
       in any proceeding against the defendant. They can give rise to no criminal status nor create any
       legal impediment, for the state had no authority, and the courts never acquired jurisdiction, to
       impose punishment under such laws to begin with. Id. at ___, 136 S. Ct. at 730-31.
¶ 74       Because of this, as we have explained, a facially unconstitutional statute and any
       conviction based on the statute must be treated as if they never existed. Because they are
       nonexistent, as a matter of federal constitutional law, and must therefore be ignored by the
       courts, using them against a defendant in any subsequent proceeding, civil or criminal, is not
       only conceptually impossible (if something has no legal existence how can it be given any
       legal recognition?) but would subvert the very constitutional protections that resulted in the


                                                   - 20 -
       statute being found facially invalid to begin with and is incompatible with the United States
       Supreme Court’s command that when, as under Aguilar and here, the conduct penalized by a
       statute is constitutionally immune from punishment, that determination must be given
       complete retroactive effect. Id. at ___, 136 S. Ct. at 731. Nothing in Lewis or any other United
       States Supreme Court decision of which we are aware supports a different conclusion.3
¶ 75       Our appellate court has struggled to reconcile McFadden with the line of United States
       Supreme Court authority culminating in Montgomery, often calling for a legislative solution in
       the absence of direction from our court. See Smith, 2017 IL App (1st) 151643, ¶ 15; Spivey,
       2017 IL App (1st) 123563, ¶¶ 25-26 (Hyman, J., specially concurring); People v. McGee, 2017
       IL App (1st) 141013-B, ¶ 33 (Hyman, J., specially concurring). The appellate court’s unease is
       unsurprising and justified, especially given that the appellate court’s findings took the proper
       analytical approach. See People v. McGee, 2016 IL App (1st) 141013; People v. Cowart, 2015
       IL App (1st) 113085; People v. Richardson, 2015 IL App (1st) 130203; People v. Ramsey,
       2015 IL App (1st) 131878; People v. Faulkner, 2015 IL App (1st) 132884; People v. Claxton,
       2014 IL App (1st) 132681; People v. Soto, 2014 IL App (1st) 121937; People v. Fields, 2014
       IL App (1st) 110311; People v. Dunmore, 2013 IL App (1st) 121170. Numerous unpublished
       orders follow the same analysis, indicating the appellate court no longer considered this
       analysis to be a new or conflict-ridden area of law. See Ill. S. Ct. R. 23(a)-(b) (eff. July 1,
       2011); see also People v. Marshall, 2015 IL App (1st) 142461-U; People v. Fryer, 2015 IL
       App (1st) 141409-U; People v. Speciale, 2015 IL App (1st) 132376-U; People v. Hernandez,
       2015 IL App (1st) 131871-U; People v. Sterling, 2015 IL App (1st) 130556-U; People v.
       Spivey, 2015 IL App (1st) 123563-U; People v. Moton, 2015 IL App (1st) 123385-U; People v.
       Brown, 2015 IL App (1st) 122651-U; People v. Somerville, 2014 IL App (1st) 132202-U;
       People v. Carter, 2014 IL App (1st) 123589-U; People v. Smith, 2015 IL App (1st) 123281-U;
       People v. Dean, 2015 IL App (1st) 122570-U; People v. White, 2014 IL App (1st) 122371-U;

           3
             The fact that this is the only reasonable conclusion is emphasized by the number of defendants
       that have petitioned for certiorari following the denial of their petition for leave to appeal by this
       court. See People v. McGee, 2017 IL App (1st) 141013-B, leave to appeal denied, No. 122419 (Ill.
       Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 935 (2018); People v. Faulkner, 2017 IL App
       (1st) 132884, leave to appeal denied, No. 122204 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138
       S. Ct. 1023 (2018); People v. Perkins, 2016 IL App (1st) 150889, leave to appeal denied, No. 121407
       (Ill. Nov. 23, 2016), cert. denied, ___ U.S. ___, 137 S. Ct. 2294 (2017); People v. Williams, 2016 IL
       App (3d) 120840, leave to appeal denied, No. 121329 (Ill. Nov. 23, 2016), cert. denied, ___ U.S. ___,
       137 S. Ct. 2294 (2017); People v. Brown, 2017 IL App (1st) 122651-U, leave to appeal denied, No.
       122309 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 936 (2018); People v. White, 2017
       IL App (1st) 122371-UB, leave to appeal denied, No. 122423 (Ill. Sept. 27, 2017), cert. denied, ___
       U.S. ___, 138 S. Ct. 935 (2018); People v. Fryer, 2017 IL App (1st) 141409-U, leave to appeal
       denied, No. 122273 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 1029 (2018); People v.
       Carter, 2017 IL App (1st) 123589-UB, leave to appeal denied, No. 121929 (Ill. May 24, 2017), cert.
       denied, ___ U.S. ___, 138 S. Ct. 199 (2017); People v. Williams, 2016 IL App (1st) 143453-U, leave
       to appeal denied, No. 121482 (Ill. Jan. 25, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 67 (2017);
       People v. Powell, 2015 IL App (1st) 140837-U, leave to appeal denied, No. 121758 (Ill. Mar. 29,
       2017), cert. denied, ___ U.S. ___, 138 S. Ct. 172 (2017). This is clearly becoming a pressurized issue.
       The further we extend McFadden’s reach, the less justification we have for following Lewis down the
       wrong analytical path.

                                                     - 21 -
       People v. Smith, 2014 IL App (1st) 122370-U; People v. Fields, 2014 IL App (1st) 122012-U;
       People v. Lester, 2014 IL App (1st) 121882-U; People v. Crosby, 2014 IL App (1st)
       121645-U; People v. Foster, 2014 IL App (1st) 101376-U. Simply put, the analysis in
       McFadden not only took the wrong analytical path, it failed to recognize that the other path
       existed.
¶ 76       Had our analysis in McFadden taken into account the distinction between a prior
       conviction resulting from a constitutionally deficient procedure and one based on a facially
       unconstitutional statute, the approach we took in that case would have been different. It is
       important that we acknowledge that now. “Our most important duty as justices of the Illinois
       Supreme Court, to which all other considerations are subordinate, is to reach the correct
       decision under the law.” People v. Mitchell, 189 Ill. 2d 312, 339 (2000). Courts are and should
       be reluctant to abandon their precedent in most circumstances, but considerations of
       “[s]tare decisis should not preclude us from admitting our mistake” when we have made one
       and interpreting the law correctly, for as Justice Frankfurter once observed, “ ‘Wisdom too
       often never comes, and so one ought not to reject it merely because it comes late.’ ” Id.
       (quoting Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600 (1949) (per
       curiam) (Frankfurter, J., dissenting)). “[S]tare decisis is not so static a concept that it binds our
       hands to do justice when we have made a mistake.” Vitro v. Mihelcic, 209 Ill. 2d 76, 93 (2004)
       (Fitzgerald, J., dissenting, joined by Kilbride and Rarick, JJ.) (“Here, there are not only
       compelling reasons, but also the best cause to abandon Dralle v. Ruder, 124 Ill. 2d 61 (1988): it
       was incorrectly decided.”). Justice Calvo, a former member of this court, put the matter more
       bluntly: “When a thing is wrong, it is wrong. The longer we wait to right this wrong, *** the
       more difficult it will be to rectify the error, embedded in the case law through usage.” Hayes v.
       Mercy Hospital & Medical Center, 136 Ill. 2d 450, 495-96 (1990) (Calvo, J., dissenting, joined
       by Ward and Clark, JJ.).
¶ 77       Even if Lewis could somehow be construed to justify the result in McFadden,
       notwithstanding the fundamental qualitative difference in the predicate convictions, we would
       decline to extend it to the matter before us here. At least one state court has rejected Lewis
       outright. See State v. Portsche, 606 N.W.2d 794 (Neb. 2000) (limiting the reach of Lewis to the
       federal statute in that case and holding that defendant’s prior uncounseled conviction could not
       be used to establish that he was a convicted felon for purposes of Nebraska’s
       felon-in-possession statute). And numerous subsequent decisions by the federal courts,
       including the United States Supreme Court, have declined to extend the decision to cases
       which do not involve felon-in-possession statutes. See Baldasar v. Illinois, 446 U.S. 222
       (1980) (holding that a defendant can collaterally attack an uncounseled misdemeanor
       conviction used to convert a subsequent misdemeanor into a felony); United States v. Clawson,
       831 F.2d 909, 914 (9th Cir. 1987) (“Lewis is inapplicable where prior convictions are used to
       determine the punishment, rather than to define the offense.”); United States v. Paleo, 9 F.3d
       988 (1st Cir. 1992) (despite Lewis the sentence enhancement statute does not require a court to
       consider unconstitutionally obtained—but not yet set aside—convictions as sentencing
       predicates); United States v. Nicholas-Armenta, 763 F.2d 1089 (9th Cir. 1985) (allowing
       collateral attacks on deportation orders that form the basis of a subsequent criminal
       conviction).
¶ 78       If Lewis’s effect is thus limited even within the context of criminal cases, it is difficult to
       see any sound justification for extending it—or McFadden—to a civil case such as this one.

                                                    - 22 -
       Those decisions are simply inapposite. Both involved criminal prosecutions, both involved the
       interpretation and application of specific felon-in-possession statutes, and both were premised
       on concerns over effectuating the purposes of those statutes, namely, protecting the public
       from dangerous persons who are seeking to obtain firearms. McFadden, 2016 IL 117424,
       ¶¶ 29-30; Lewis, 445 U.S. at 67. None of those factors is present here. This is not a criminal
       proceeding, and we are not being called upon to construe and apply either Illinois’s UUWF
       statute or the federal felon-in-possession statute. Rather, this is a parental rights termination
       proceeding involving section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)).
       The issue here is whether Floyd F. is fit to be a parent. Insisting that Floyd F.’s prior AUUW
       conviction be given effect in this proceeding would not advance any firearms-related public
       safety concerns. It would have no impact on firearms policy or public safety at all. Instead, all
       it would do is place the courts in the constitutionally untenable position of permanently
       depriving an individual of his fundamental parental rights based on conduct that the state had
       no power to punish.
¶ 79       We note, moreover, that in Lewis, on which McFadden relied, the United States Supreme
       Court justified use of the constitutionally deficient firearms conviction because, in that case,
       the sanction imposed by the federal felon-in-possession statutory scheme “attache[d]
       immediately upon the defendant’s first conviction” and, unlike its earlier decisions in Burgett,
       Tucker, and Loper, the subsequent conviction did not depend on reliability of that first
       conviction. Lewis, 445 U.S. at 67. Those considerations are not present here either. Under
       section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)), the provision that
       controls this case, the sanction—being deemed “depraved” and thus unfit—does not attach
       immediately upon the first offense. Three convictions of certain specified types are required,
       and they must fall within a certain time frame. And whether one meets the definition of
       “depravity” depends not just on the fact of those three prior convictions but on what they tell us
       about a person’s fitness to continue to be a parent. Reliability of the convictions thus matters a
       great deal.
¶ 80       This is apparent from the terms of section 1(D)(i) of the Adoption Act. Under the plain and
       unambiguous language of the statute, the existence of a prior felony conviction is not
       dispositive for purposes of establishing that a parent is “depraved” and therefore unfit and
       subject to having his or her rights terminated. Id. Rather, the conviction merely goes to creation
       of a rebuttable presumption of “depravity,” a presumption that a parent is given the chance to
       refute. Indeed, the statutory opportunity afforded parents under section 1(D)(i) to show why
       the presumption is inapplicable is the very thing that differentiates this subsection from a
       related provision struck down by this court in In re D.W., 214 Ill. 2d 289 (2005).
¶ 81       It is difficult to envision a more compelling reason for rejecting the presumption of
       depravity than that one of the predicate convictions on which the State’s claim of depravity
       depends is actually a legal nullity and must therefore be ignored, as Floyd F. clearly established
       in this case with regard to his constitutionally invalid 2008 AUUW conviction. If a parent were
       barred from making such a showing and the circuit court were barred from taking that evidence
       into account, the protections afforded to parents by the statute would be reduced to an empty
       promise. The presumption of depravity would not be rebuttable at all. In reality, it would be
       conclusive. Such a conclusion cannot be squared with the plain language of the Adoption Act
       and would place Illinois in direct opposition to the core constitutional principle that one may


                                                   - 23 -
       not be forced to suffer sanctions for conduct the federal constitution places beyond the power
       of the state to punish. We must therefore reject it.
¶ 82       We note, moreover, that if Lewis and McFadden applied to parental rights cases in the
       same way that they applied to prosecutions for firearms violations, it would mean that a person
       would have to set aside the unconstitutional weapons offense before exercising his or her
       fundamental constitutional right to procreate and raise a child. Parents who failed to do so and
       thus stood convicted of three felonies, as Floyd F. was here, would be unable to escape the
       categorization of “depravity” within the meaning of the Adoption Act and therefore be
       categorically barred from parenthood. Such a result would place Illinois law uncomfortably
       close to the Oklahoma statute struck down on equal protection grounds in Skinner v. Oklahoma
       ex rel. Williamson, 316 U.S. 535 (1942), under which defendants who had committed two or
       more felonies of certain types could be deemed “habitual criminals” and subject to forced
       sterilization.
¶ 83       It would also raise serious due process concerns particularly where, as here, the rule
       announced in McFadden requiring vacatur of the unconstitutional conviction prior to engaging
       in the subsequent constitutionally protected conduct—in this case procreation of a child—had
       no antecedent in Illinois law and was not announced by our court until five years after the child
       was already born, by which time it was too late for the father to take the action the new rule
       requires. Notice and “fair warning,” touchstones of due process (Rogers v. Tennessee, 532 U.S.
       451, 461-62 (2001)), and changes in judicial interpretation of the law making the law less
       favorable to defendants can only be applied prospectively (People v. Patton, 57 Ill. 2d 43,
       47-48 (1974)). Extending McFadden to this case could not be squared with these
       well-established principles.
¶ 84       In sum, Floyd F.’s unconstitutional AUUW conviction is null and void; thus it cannot serve
       as a basis for finding him depraved under section 1(D)(i) of the Adoption Act (750 ILCS
       50/1(D)(i) (West 2010)). With this conviction removed from consideration, DCFS cannot
       establish that Floyd F. met the statutory definition of depravity. Id. It follows that respondent’s
       parental rights cannot be terminated on that basis. The trial court’s termination of Floyd F.’s
       parental rights under the presumption of depravity was therefore contrary to the manifest
       weight of the evidence and was properly set aside by the appellate court. While we find this
       case distinguishable from McFadden, to the extent that this result and controlling United States
       Supreme Court precedent conflict with McFadden, McFadden is hereby overruled.
¶ 85       In reaching this conclusion, we in no way seek to excuse Floyd F.’s shortcomings as a
       parent. Based on the record before us, it seems unlikely that he will ever succeed in
       maintaining a relationship with N.G. that comports with conventional norms. Such concerns,
       however, cannot excuse us from our obligation to follow the law. As our precedent makes
       clear, “[t]he liberty interest of parents in the care, custody and management of their child
       ‘ “does not evaporate simply because they have not been model parents or have lost temporary
       custody of their child to the State.” ’ In re D.T., 212 Ill. 2d 347, 359 (2004), quoting Santosky v.
       Kramer, 455 U.S. 745, 753, 71 L.Ed.2d 599, 606, 102 S. Ct. 1388, 1394-95 (1982).” In re
       D.W., 214 Ill. 2d at 311.
¶ 86       On remand, DCFS will have the opportunity to attempt to prove that Floyd F. meets the
       definition of unfitness under some other provision of the Adoption Act. Today, we hold simply
       that he cannot be found depraved and therefore unfit under section 1(D)(i) of the Adoption Act


                                                    - 24 -
       based on his legally nonexistent and now-vacated 2008 AUUW conviction.

¶ 87                                        CONCLUSION
¶ 88      For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 89      Appellate court judgment affirmed.
¶ 90      Circuit court judgment reversed.

¶ 91        JUSTICE KILBRIDE, specially concurring:
¶ 92        I agree with and join the court’s opinion. I also agree with the part of Justice Neville’s
       special concurrence emphasizing that the primary burden of vacating a void conviction based
       on a facially unconstitutional statute should not be placed on the defendant who has already
       suffered the violation of his constitutional rights. The special concurrence correctly explains
       that the dissent’s approach unjustly places the entire burden for vacating a void conviction on
       the defendant. As this court has held, “courts have an independent duty to vacate void orders
       and may sua sponte declare an order void.” People v. Thompson, 209 Ill. 2d 19, 27 (2004).
¶ 93        A facially unconstitutional statute is void ab initio. The statute was, therefore,
       constitutionally infirm from the moment it was enacted and must be treated as if it were never
       enacted. People v. McFadden, 2016 IL 117424, ¶ 58 (Kilbride, J., concurring in part and
       dissenting in part, joined by Burke, J.). Given those circumstances, it is fundamentally unfair to
       use a void conviction based on a facially unconstitutional statute against a defendant in a
       subsequent proceeding when he or she has not taken affirmative action to vacate the void
       conviction. McFadden, 2016 IL 117424, ¶¶ 62-63 (Kilbride, J., concurring in part and
       dissenting in part, joined by Burke, J.) (requiring a defendant to obtain official vacatur of a
       void conviction before engaging in constitutionally protected conduct offends all sense of due
       process). “ ‘[W]here a statute is violative of constitutional guarantees, we have a duty not only
       to declare such a legislative act void, but also to correct the wrongs wrought through such an
       act by holding our decision retroactive.’ ” McFadden, 2016 IL 117424, ¶ 73 (Kilbride, J.,
       concurring in part and dissenting in part, joined by Burke, J.) (quoting People v. Gersch, 135
       Ill. 2d 384, 399 (1990)). In my view, recognizing the ability of our courts to vacate void
       convictions sua sponte is consistent with our duty to “correct the wrongs wrought” by a
       facially unconstitutional statute. See Gersch, 135 Ill. 2d at 399. Accordingly, I specially
       concur.

¶ 94       JUSTICE NEVILLE, specially concurring:
¶ 95       I agree with the court’s opinion. I write separately to highlight important concerns that are
       not necessary to the resolution of this appeal but that weigh heavily on this court’s duty to
       ensure the fair administration of justice for all citizens in Illinois.
¶ 96       There is no dispute that a statute that has been declared to be facially unconstitutional is
       void ab initio and is unenforceable from the time it was enacted. Supra ¶ 50. Like my
       colleagues in the majority, I agree that a criminal conviction based on a facially
       unconstitutional statute is “ ‘illegal and void.’ ” Supra ¶ 37 (quoting Ex parte Siebold, 100
       U.S. 371, 376 (1879)). Consequently, such a conviction is a nullity and “cannot be used for any
       purpose under any circumstances.” Supra ¶ 37 (citing Siebold, 100 U.S. at 376). As the court’s

                                                   - 25 -
        opinion correctly observes, the State is prohibited from giving any efficacy to a prior
        conviction based on a facially unconstitutional statute (supra ¶ 38 (citing Montgomery v.
        Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 730 (2016))) because to do so “would be
        tantamount to forcing the defendant to suffer anew the deprivation of his constitutional rights”
        (supra ¶ 38 (citing United States v. Bryant, 579 U.S. ___, ___, 136 S. Ct. 1954, 1956-57
        (2016))).
¶ 97        The appellate court vacated defendant’s 2008 conviction for aggravated unlawful use of a
        weapon, and our agreement with that decision settles the question for this appeal. But the
        pervasive problem of properly allocating the responsibility for correcting a void conviction
        endures.
¶ 98        The dissent expresses the view that each defendant whose constitutional rights have been
        violated by an illegal conviction must undertake the task of having that conviction vacated and
        must do so in an “appropriate proceeding.” See infra ¶¶ 133-36, 158, 171. The upshot of this
        position is that if a defendant fails to do so, the illegal conviction stands and can be used
        against that defendant in later proceedings where his or her criminal history is at issue. This
        approach nullifies the void ab initio rule and places additional restrictions and burdens on
        defendants who have been convicted under a facially unconstitutional statute. I strongly
        disagree with the dissent’s approach.
¶ 99        According to the dissent, the defendant bears the responsibility for vacating his illegal
        conviction premised on a facially unconstitutional statute. See infra ¶¶ 149-53, 158. But it is
        manifestly unfair to hold defendants exclusively responsible for vacating a void conviction.
        This approach places an onerous burden on lay defendants who are the least equipped to
        undertake that burden because they lack legal skills and do not know how to navigate the legal
        system. The dissent’s approach would allow a void conviction to remain on the record of this
        defendant and all other similarly situated defendants. That result cannot be tolerated in a
        well-ordered system of justice.
¶ 100       Vacatur is the procedural means used to correct the entry of a void judgment of conviction.
        See Black’s Law Dictionary 1782 (10th ed. 2014) (defining “vacatur” as “[t]he act of annulling
        or setting aside” or “[a] rule or order by which a proceeding is vacated”). However, vacatur
        alone is inadequate to remedy the wrong occasioned by an illegal conviction. The rights and
        interests of the defendant can only be restored if the record of that conviction is expunged from
        his or her criminal record. Expungement is the procedure used to remove the conviction from
        the defendant’s record after a conviction has been vacated. See 20 ILCS 2630/5.2(b)(6) (West
        2016); 730 ILCS 5/5-5-4(b) (West 2016). Thus, it is the necessary capstone in providing a
        remedy to those who were prosecuted under a facially unconstitutional statute.
¶ 101       In my view, the burden of correcting an illegal conviction must be borne by all of the
        participants in the criminal justice system. It is axiomatic that “courts have an independent
        duty to vacate void orders and may sua sponte declare an order void.” People v. Thompson,
        209 Ill. 2d 19, 27 (2004). Therefore, our circuit and appellate courts must take action to vacate
        and expunge a conviction that was based on a facially unconstitutional statute.
¶ 102       Prosecutors also share the responsibility of ensuring that void convictions are vacated and
        expunged. In fact, I believe the standards adopted by the American Bar Association indicate
        that prosecutors have a duty to initiate proceedings of their own accord to vacate any
        convictions that are premised on a statute that has been declared to be facially unconstitutional.


                                                    - 26 -
        Section 3-1.2(f) of the American Bar Association (ABA) Standards for Criminal Justice, titled
        “Functions and Duties of the Prosecutor,” states:
                  “The prosecutor is not merely a case-processor but also a problem-solver responsible
                  for considering broad goals of the criminal justice system. The prosecutor should seek
                  to reform and improve the administration of criminal justice, and when inadequacies or
                  injustices in the substantive or procedural law come to the prosecutor’s attention, the
                  prosecutor should stimulate and support efforts for remedial action.” ABA Standards
                  for Criminal Justice, Standard 3-1.2(f) (4th ed. 2015).
        The “[p]revailing norms of practice as reflected in American Bar Association standards ***
        are guides to determining what is reasonable.” Strickland v. Washington, 466 U.S. 668, 688
        (1984). While the imperatives set forth in section 3-1.2(f) are “only guides” (id.), they
        highlight the fact that prosecutors are often in the best position to address inadequacies or
        injustices in the criminal justice system by initiating remedial action to improve the
        administration of justice.
¶ 103        Therefore, contrary to the views expressed by the dissent, I reject the notion that the burden
        of correcting a void conviction falls exclusively on the defendant. Rather, the State should be
        required to undertake that responsibility. Where a court—at any level—has notice that a
        defendant’s conviction is void, that court has an independent obligation to vacate and expunge
        the void conviction. In addition, the state’s attorney in each county should commence
        proceedings to vacate and expunge all void convictions that were predicated on a statute that
        has been declared to be facially unconstitutional. In my view, the aforementioned remedies can
        be used by criminal justice participants to return illegally convicted defendants to their
        preconviction status.
¶ 104        I also disagree with the dissent’s conclusion that the vacatur of a void conviction can only
        be accomplished by the filing of a petition in a collateral proceeding under (i) the
        Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016)) or (ii) section 2-1401 of
        the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)) or (iii) the Habeas Corpus Act
        (id. § 10-124). See infra ¶ 133. As this court’s opinion observes, such petitions are not the only
        avenues available to mount a collateral attack on a conviction under a statute that has been
        declared to be facially unconstitutional. Supra ¶ 54. Rather, void judgments are not subject to
        forfeiture and may be attacked at any time or in any court (supra ¶ 43).
¶ 105        To preclude a defendant from challenging a void conviction in a proceeding in which that
        conviction is being used against him or her is unjust. Indeed, that seems to be the most
        appropriate time for doing so. The position adopted by the dissent would leave in place a
        conviction premised on a facially unconstitutional statute merely because the defendant failed
        to commence a collateral attack prior to the State’s attempt to use the illegal conviction against
        him—a circumstance that the defendant may not be able to anticipate. The facts of this case
        illustrate the point. All three of Floyd F.’s felony convictions were entered before N.G. was
        born. The fact that the void conviction for aggravated unlawful use of a weapon was being used
        against him to terminate his right to parent N.G. is precisely why the termination proceeding
        was an appropriate proceeding to raise the constitutional challenge.
¶ 106        In conclusion, I concur that the judgment of the appellate court in this case must be
        affirmed. I remind our circuit and appellate courts of their duty to sua sponte vacate and
        expunge void convictions. I also encourage the state’s attorney in each county to commence


                                                    - 27 -
        proceedings to vacate and expunge any illegal convictions based on a facially unconstitutional
        statute. Finally, I note that the expungement of void convictions from the criminal record is
        necessary for all defendants who have been wrongfully convicted to receive complete justice.

¶ 107       JUSTICE THEIS, dissenting:
¶ 108       The issue brought before the appellate court was whether a criminal conviction, which had
        not been collaterally attacked, was admissible as evidence of depravity in a subsequent
        termination of parental rights proceeding. The appellate court contorted the issue to decide
        whether the appellate court had the authority to vacate the criminal conviction on appeal from
        the termination of parental rights proceeding. The majority takes the bait and follows suit. In
        doing so, the majority tramples on the facts, judicial restraint, party presentation, appellate
        jurisdiction, proper procedure, precedent, and the role of courts in our adversarial system to
        achieve its desired result.
¶ 109       Facts matter. In proceedings before a reviewing court, the record is vital to our
        understanding of the procedural posture of the case and to our analysis. The majority insists
        that (1) “it is clear from the supplemented appellate record” (supra ¶ 65) that respondent’s
        conviction was based on the unconstitutional statutory provision addressed in Aguilar and
        (2) that respondent “sought to have the prior conviction itself nullified and vacated” (supra
        ¶ 66). Both points are egregiously inaccurate.
¶ 110       First, the record as presented to this court contains no “supplemented appellate record”
        from which this court could verify the documents of which the appellate court took judicial
        notice. The appellate court indicated that it “sought and obtained documents from the Will
        County circuit court” (2017 IL App (3d) 160277, ¶ 8), but there is no indication that any order
        was entered to obtain those documents, and no supplement to the record was actually made.
        Appellate courts are courts of review, not fact-finding tribunals, and their role is to decide the
        merits of cases based on the record of proceedings.
¶ 111       Second, the record contains absolutely no pleading filed by respondent in which he sought
        to have his 2008 judgment of conviction vacated. Furthermore, at no point in the termination of
        parental rights hearing before the circuit court did respondent seek to vacate that conviction,
        nor did he even seek to do so for the first time on appeal from the termination proceeding. At
        most, respondent testified at the unfitness hearing, to rebut the presumption of depravity, that
        there was a pending appeal, or perhaps a postconviction petition attacking his 2011 conviction,
        and that if successful it would impact his release date. The majority’s misstatements and
        mischaracterizations of the record not only undermine confidence in its decision but skew the
        result, making it outcome determinative.
¶ 112       Judicial restraint matters. As recognized by the appellate court, there was a factually
        unresolved question on appeal as to whether our decision in Aguilar was even applicable to
        respondent’s 2008 conviction. That matter was outside the record of these proceedings. At the
        termination hearing, the State submitted into evidence certified copies of respondent’s
        convictions. The certified copies, however, did not indicate that the 2008 conviction was based
        on the provision declared unconstitutional in Aguilar. No other documents were made part of
        the record by respondent before the circuit court with respect to the 2008 criminal proceeding.
¶ 113       At the time of the offense, the AUUW statute required the State to prove the elements
        found in subsections (a)(1) or (a)(2), as well as one of the elements found in subsection (a)(3).

                                                    - 28 -
        See 720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3) (West 2008). Only subsection (a)(1), (a)(3)(A) (id.
        § 24-1.6(a)(1), (a)(3)(A)) was found to be unconstitutional in Aguilar due to a recent
        intervening change in constitutional interpretation. People v. Aguilar, 2013 IL 112116. There
        is simply no indication in the record that respondent’s conviction was under that subsection.
¶ 114        Although Illinois Supreme Court Rule 366(a)(3) (eff. Feb. 1, 1994) permits this court to
        order or permit amendments to the record by correcting errors in the record or by adding
        matters that should have been included from the record, “it is axiomatic that where evidence
        was not offered during the trial of a matter, it cannot be introduced for the first time on appeal.”
        H.J. Tobler Trucking Co. v. Industrial Comm’n, 37 Ill. 2d 341, 344 (1967). Instead, the
        appellate court took it upon itself to investigate the 2008 criminal proceeding, which was not
        squarely before the court. It also took it upon itself to investigate respondent’s pending
        postconviction petition related to his 2011 judgment of conviction. As the majority recognizes,
        that petition was also not squarely before the appellate court. Supra ¶ 53.
¶ 115        After taking judicial notice of certain facts from the 2008 criminal proceeding to establish
        evidentiary proof regarding the nature of the conviction, the appellate court used those facts to
        not only fill evidentiary gaps in the record but as a basis to vacate the judgment of conviction in
        the 2008 criminal proceeding. Despite the fact that the majority finds the investigation was
        “well within the appellate court’s authority” (supra ¶ 32), none of the majority’s cited
        precedent, nor the Illinois Rules of Evidence (Ill. R. Evid. 201 (eff. Jan. 1, 2011)) regarding
        judicial notice, countenances the use of judicially noticed facts from outside the record on
        appeal to fill gaps in the evidentiary record and to sua sponte vacate a judgment of conviction
        in a separate criminal proceeding. The majority ignores any proper limitations on the use of
        judicially noticed facts. Now, going forward, appellate courts have the green light to undo final
        judgments in a completely different proceeding.
¶ 116        Party presentation of the issues matters. The appellate court’s sua sponte actions were
        especially problematic where respondent did not seek to have his 2008 judgment of conviction
        vacated in this termination proceeding. Instead, he raised an entirely different issue for the first
        time on appeal, seeking to bar the admission of his 2008 conviction as evidence in his
        termination proceeding because that conviction was based on an unconstitutional statute.
¶ 117        By sua sponte reaching a totally different issue here the appellate court no longer
        functioned as neutral arbiter. Instead, the court became an advocate for respondent and denied
        the State and the minor the opportunity to address the newly reframed issue regarding the
        court’s authority to vacate the 2008 conviction. Indeed, the minor specifically argued before
        this court that the appellate court circumvented her right to a full hearing on that matter. She
        asserted that “the appellate court overreached in its authority and discretion by sua sponte
        supplementing the original appellate record [which it actually did not even supplement], and
        by vacating respondent’s [2008] conviction in a Juvenile matter where respondent did not
        request a vacatur, nor filed a notice of appeal or any other post conviction motions in his [2008]
        case.”
¶ 118        As we have repeatedly explained, our precedent counsels adherence to the principle of
        judicial restraint. The parties are responsible for advancing the facts and arguments entitling
        them to relief. “ ‘[Courts] do not, or should not, sally forth each day looking for wrongs to
        right. We wait for cases to come to us, and when they do we normally decide only questions
        presented by the parties. ***’ [Citation.]” Greenlaw v. United States, 554 U.S. 237, 244


                                                     - 29 -
        (2008); see also People v. Boeckmann, 238 Ill. 2d 1, 13 (2010) (it is not appropriate to address
        issues in a case where the parties have not raised or argued it); accord Roberts v. Northland
        Insurance Co., 185 Ill. 2d 262, 270 (1998).
¶ 119       The doctrine of judicial restraint is especially compelling here where the appellate court
        had to first sua sponte fill in an evidentiary gap and then sua sponte reframe the issue without
        any briefing on the issue of vacatur by the State or the minor. This process is antithetical to our
        pledge, audi alteram partem—hear the other side—which is prominently displayed in our
        courtroom. Despite the myriad problems with the appellate court’s approach, the majority
        barrels on without pause.
¶ 120       Nevertheless, the majority fails to break down the analysis of the entirely separate and
        distinct questions now before this court. Seen clearly, the issues before this court are as
        follows: (1) whether the reviewing court had jurisdiction to vacate the 2008 criminal
        conviction on appeal from the termination of parental rights proceeding and, if not, (2) whether
        the 2008 criminal conviction could be admitted as evidence in the termination of parental
        rights proceeding to establish the rebuttable presumption of depravity.

¶ 121                            Jurisdiction to Vacate the 2008 Conviction
¶ 122       The appellate court lacked jurisdiction to vacate the 2008 criminal conviction in these
        proceedings. The circuit court’s jurisdiction over the 2008 judgment of conviction had long
        since lapsed. No appeal had been taken from that judgment. Thus, at the time the State alleged
        respondent was depraved, respondent had a judgment of conviction that was final and had not
        been vacated. The only matter before the circuit court was the State’s pleading in the
        termination proceeding. The circuit court entered a judgment in that proceeding, and
        respondent appealed from that judgment.
¶ 123       As we explained in Flowers, “the appellate court is not vested with authority to consider
        the merits of a case merely because the dispute involves an order or judgment that is, or is
        alleged to be, void.” People v. Flowers, 208 Ill. 2d 291, 308 (2003). Thus, as applied here, the
        appellate court was not vested with jurisdiction to enter any orders with respect to the 2008
        judgment merely because the termination dispute involved a judgment in another proceeding
        that is alleged for the first time on appeal to be void. Respondent correctly recognized this
        problem where he stated in his supplemental brief to the appellate court that declaring the 2008
        conviction as “inadmissible for evidentiary purposes in a hearing on a petition to terminate
        parental rights is not necessarily tantamount to declaring the conviction void and vacating it.
        This may well reconcile any jurisdictional concerns.” The appeal from the judgment in the
        termination proceeding was simply not a vehicle for obtaining relief from a final judgment in a
        separate criminal proceeding.
¶ 124       The majority buys into the appellate court’s judicial sleight of hand and proceeds to case
        discussion. The majority insists that Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718
        (2016), Ex parte Siebold, 100 U.S. 371 (1879), and our own precedent mandate that the court
        has an affirmative duty to vacate respondent’s 2008 conviction in these proceedings and that
        this is an appropriate forum to seek that relief. Supra ¶¶ 34-36. These cases say nothing of the
        kind.
¶ 125       Montgomery merely stands for the proposition that, under the supremacy clause, new
        substantive constitutional rules must be made retroactively applicable to cases on state

                                                    - 30 -
        collateral review. In Montgomery, the United States Supreme Court held that the rule
        announced in Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory life
        sentences without parole for juvenile offenders violated the eighth amendment, was a new
        substantive constitutional rule that must be given retroactive effect in state collateral
        proceedings regardless of when the conviction became final. Montgomery, 577 U.S. at ___,
        136 S. Ct. at 733-34. Montgomery was relying on the retroactivity jurisprudence announced in
        Teague v. Lane, 489 U.S. 288, 300 (1989), which clarified and limited the circumstances under
        which a defendant whose conviction was final could claim the benefit of a new rule. As we
        recently reiterated, “[i]f a new rule qualifies as a ‘substantive rule’ under Teague, then
        defendants whose convictions are final may seek the benefit of that rule through appropriate
        collateral proceedings.” People v. Price, 2016 IL 118613, ¶ 31. In contrast, new rules of
        criminal procedure, other than a watershed rule of procedure, will not be applied on collateral
        review. Teague, 489 U.S. at 310.
¶ 126       Finality of judgments matters. The majority makes the extraordinary claim that “[a]s for
        concerns over the finality of judgments, these are of little consequence as a practical matter.”
        Supra ¶ 58. As the Supreme Court explained in Lockhart v. Fretwell, 506 U.S. 364, 372
        (1993), retroactivity jurisprudence “was motivated by a respect for the States’ strong interest in
        the finality of criminal convictions.” In recognizing that finality of judgments mattered, the
        Supreme Court in Montgomery reiterated that when a state court “adjudicate[es] claims under
        its collateral review procedures,” the claim must be “properly presented in the case.”
        Montgomery, 577 U.S. at ___, 136 S. Ct. at 732. The Court explained that “this Court is careful
        to limit the scope of any attendant procedural requirement to avoid intruding more than
        necessary upon the States’ sovereign administration of their criminal justice systems.” Id. at
        ___, 136 S. Ct. at 735.
¶ 127       To state the corollary, the supremacy clause does not impose upon state courts a
        constitutional obligation to grant relief from a final judgment where the claim is not properly
        presented in the state court proceedings. Nor does the supremacy clause mandate the
        procedural mechanisms by which state courts afford collateral review. The Court was well
        aware that the proper mode of collaterally attacking a criminal conviction in a state court
        depends on state law, not federal law. See Danforth v. Minnesota, 552 U.S. 264, 288 (2008)
        (“the remedy a state court chooses to provide its citizens for violations of the Federal
        Constitution is primarily a question of state law”).
¶ 128       To the extent the majority hangs its analytical hat on Siebold for the proposition that we
        have a duty to vacate respondent’s criminal conviction in these proceedings, the majority is
        again off base. Siebold mandates that there be a remedy for a challenge to a conviction
        obtained under an unconstitutional law. It does not mandate that we create a new method of
        collateral attack.
¶ 129       In Siebold, petitioners were convicted of violating federal election laws. They filed a
        petition for a writ of habeas corpus in the Supreme Court attacking the validity of the
        judgment on the ground that the federal statutes under which they were convicted were
        unconstitutional. The Supreme Court addressed whether habeas relief was an available remedy
        because a federal court had no inherent habeas power. It was unlawful to use the federal
        habeas writ “as a mere writ of error.” Siebold, 100 U.S. at 375.



                                                    - 31 -
¶ 130       The Court held that a conviction obtained under an unconstitutional law warranted
        expansion of habeas relief because, if the law was unconstitutional and void, it placed the
        conduct beyond the power of the Congress to proscribe and “cannot be a legal cause of
        imprisonment.” Id. at 377. If the federal habeas statute did not expand to allow for challenges
        to a conviction obtained under an unconstitutional law, then prisoners would have no remedy.
        Id. Therefore, the claim was subject to collateral attack in federal habeas corpus proceedings.
        Id.
¶ 131       Montgomery holds that the conclusion in Siebold applies to state collateral review
        proceedings, “assuming the claim is properly presented in the case.” Montgomery, 577 U.S. at
        ___, 136 S. Ct. at 732. This limitation is an important one. Illinois applies the principle of
        finality of judgments rigorously in both civil and criminal cases. We recognize only those
        remedies clearly embedded in our statutes and common law.
¶ 132       Under the specific facts in Montgomery, the defendant had a state law collateral remedy,
        which was properly presented. Id. at ___, 136 S. Ct. at 726. As the Montgomery court
        explained, in Louisiana, there are two principal mechanisms for collateral challenge to the
        lawfulness of imprisonment. Indeed, the defendant had a state remedy and followed the proper
        procedure to obtain that remedy by bringing a collateral attack on his sentence by filing a
        motion to correct an illegal sentence in the district court. Id. at ___, 136 S. Ct. at 726. Thus,
        Montgomery requires that, in a properly presented state court collateral proceeding, the
        Louisiana Supreme Court was required to give Miller retroactive effect.
¶ 133       Illinois has several procedural methods by which a defendant could collaterally attack a
        final judgment. A prisoner may seek habeas corpus relief on the grounds enumerated in
        section 10-124 of the Habeas Corpus Act. See 735 ILCS 5/10-124 (2014); People v. Gosier,
        205 Ill. 2d 198, 205 (2001). Additionally, a defendant whose conviction is final and who
        claims his conviction is premised on an unconstitutional statute may seek relief under the
        Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) or by filing a petition
        pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)).
¶ 134       Section 2-1401 establishes a comprehensive, statutory procedure that allows for final
        orders and judgments to be challenged more than 30 days after their entry. See People v.
        Vincent, 226 Ill. 2d 1, 7 (2007). A defendant seeking to vacate a void judgment is not subject to
        the usual time limitations or due diligence requirements of section 2-1401. Sarkissian v.
        Chicago Board of Education, 201 Ill. 2d 95, 104-05 (2002); People v. Harvey, 196 Ill. 2d 444,
        452-53 (2001) (McMorrow, J., specially concurring, joined by Freeman, J.). Thus, in this case,
        section 2-1401 is an available mechanism to collaterally attack respondent’s 2008 conviction
        where respondent could present evidence before the circuit court to support his claim and
        where the State would have the opportunity to respond accordingly. See, e.g., People v.
        Shinaul, 2017 IL 120162, ¶ 14 (the defendant properly understood that the way to vacate his
        void conviction after a final judgment had been entered on his guilty plea was to collaterally
        attack it through the filing of a section 2-1401 petition). Respondent did nothing like that.
¶ 135       Until now, we have never held that an appeal from a termination of parental rights
        proceeding is a proper vehicle under Illinois law to seek relief from a final judgment of
        conviction in a criminal proceeding. To put this proceeding in the framework of Montgomery,
        the termination proceeding is not a state “collateral-review proceeding” and does not involve a
        claim that is “properly presented.”


                                                   - 32 -
¶ 136        Instead, the majority perverts and distorts the concept of collateral attack. Under the
        majority’s novel and unprecedented view, despite there being a remedy available to
        respondent, after today, Illinois courts are now compelled to sua sponte revisit settled
        convictions in any proceeding that is pending before a court where defendant contends his
        conviction is based on a facially unconstitutional statute. “[I]f the constitutional infirmity is put
        in issue during a proceeding that is pending before a court, the court has an independent duty to
        vacate the void judgment and may do so sua sponte.” Supra ¶ 57. The breadth of this holding is
        stunning.
¶ 137        Additionally, the majority’s application of retroactivity jurisprudence in the context of
        collateral review is misplaced here. The matter at issue here is a direct review of whether the
        circuit court erred in the termination proceeding. The Aguilar decision was rendered before the
        termination proceeding. Therefore, to say that we must apply Aguilar “retroactively” to this
        matter, on direct review from a termination proceeding that did not predate Aguilar, makes no
        sense.
¶ 138        More importantly, this is not a case where we are asked to decide whether a new
        substantive constitutional rule applies to a criminal case pending on collateral review.
        Montgomery would be relevant if respondent sought to have his prior 2008 judgment of
        conviction vacated in a proper collateral proceeding attacking that judgment, which did
        precede Aguilar. That is not by any stretch of the imagination the procedural posture of this
        case.
¶ 139        Not only is Montgomery inapt here, none of the Illinois cases cited by the majority
        remotely support the majority’s newly articulated view. For example, People v. Meyerowitz,
        61 Ill. 2d 200 (1975), involved the defendants’ motion to vacate their guilty pleas and to
        terminate probation based on an unconstitutional statute. This court allowed that motion to
        serve as an appropriate mechanism to collaterally attack their judgments of conviction where
        there was no other statutory remedy available to them. In doing so, this court “recognized that
        considerations of justice and fairness require that an accused who asserts a substantial denial of
        his constitutional rights in the proceedings in which he was convicted be afforded a procedure
        by which the challenged proceedings may be reviewed.” Id. at 205. The court also emphasized
        that the circuit court had continuing jurisdiction over the defendants in that case because they
        were still under probation when they initiated the postconviction proceedings. Id.
¶ 140        People v. Warr, 54 Ill. 2d 487 (1973), involved certain defendants who pleaded guilty to
        certain offenses without the assistance of counsel. A year later, they filed pleadings in the trial
        court purporting to be either a habeas petition or a postconviction petition in which they
        contended that the plea violated their constitutional rights. The circuit court dismissed the
        pleadings because they did not fall within the scope of the remedies that had been sought. Id. at
        490-91. This court recognized the familiar statutory methods of collateral attack upon a
        judgment; however, these remedies were not available to these defendants. Id. at 491-92. This
        court found it was imperative that a remedy be provided for the substantial violations of
        constitutional rights. Thus, in the court’s exercise of its supervisory authority, it held that,
        where there was no other remedy, these defendants could institute a proceeding in the nature of
        a postconviction proceeding. Id. at 493.
¶ 141        Finally, in People v. Thompson, 209 Ill. 2d 19, 25-27 (2004), this court allowed a challenge
        to a sentence as void to be raised for the first time in an appeal from the denial of a


                                                     - 33 -
        postconviction petition. Under the void sentence rule, which has now been abolished,
        defendants could, at any time, challenge their sentence as void because they were not
        authorized by statute, thereby bypassing the normal rules of forfeiture. See 725 ILCS 5/122-3
        (West 2014) (any claim of substantial denial of constitutional right not raised in the original or
        an amended petition is forfeited); Price, 2016 IL 118613, ¶ 16 (“the void sentence rule
        functioned as a judicially created exception to the forfeiture doctrine”).
¶ 142       The takeaway from these Illinois cases is not the extremely broad holding articulated by
        the majority. The majority insists that these cases stand for the broad principle that “there is no
        fixed procedural mechanism or forum, nor is there any temporal limitation governing when a
        void ab initio challenge may be asserted.” Supra ¶ 57. The majority again misses the mark.
        These cases merely represent examples of the unremarkable proposition that we provide a
        mechanism by which to remedy the substantial denial of a constitutional right and that, where a
        conviction is alleged to be void, the normal rules of forfeiture and statutory limitation periods
        are simply inapplicable. Here, to be sure, respondent has not forfeited his right to a remedy. He
        has a procedural mechanism by which to remedy the deprivation of his constitutional right. He
        just never used that mechanism.
¶ 143       The majority’s novel and expansive holding has serious implications. After today, a final
        judgment of conviction is apparently now open to a new, unprecedented form of collateral
        attack. The appellate court now has a sua sponte duty to engage in a minitrial on the
        underlying conviction to determine whether the underlying conviction is void and, if so, then
        would have a sua sponte duty to vacate that conviction. Indeed, Justice Wright sounded the
        alarm. 2017 IL App (3d) 160277, ¶ 39 (Wright, J., dissenting) (“I respectfully disagree that this
        court should vacate the 2008 criminal conviction in order to resolve the serious issues in this
        appeal. I have concerns that the precedent flowing from this decision to vacate a criminal
        conviction in a juvenile case would have far reaching, but unintended consequences we have
        yet to consider.”).
¶ 144       Using this new ad hoc method to vacate a judgment creates real life problems and
        consequences. It is important to note that the appellate court’s ruling vacating the 2008
        judgment appears in the body of the opinion: “Accordingly, we vacate the 2008 conviction,
        reverse the circuit court’s unfitness finding and, reverse, by necessity, the court’s best interest
        determination, and remand the case for further proceedings consistent with this decision.” Id.
        ¶ 31 (majority opinion). The vacatur appears nowhere in the actual judgment line. Id. ¶¶ 33-34.
        Nor could it. The judgment line is telling.
¶ 145       After today, anyone relying on the status of a conviction, including the circuit court clerk,
        the Department of Corrections, law enforcement, probation officers, prosecutors, and counsel,
        will have to scour our opinions to determine if a judgment in another proceeding has been
        vacated. The majority fails to address any of these real concerns and, indeed, perpetuates the
        problem by agreeing that the 2008 conviction must be vacated but then affirming the judgment
        of the appellate court, which merely reversed and remanded the judgment in the termination
        proceeding. Supra ¶ 88.
¶ 146       To recap, the appellate court lacked jurisdiction to vacate the 2008 judgment of conviction
        in these proceedings, and the majority should not have followed that court’s errant lead and
        vacated that conviction.



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¶ 147                Whether the 2008 Conviction Was Admissible in This Proceeding
¶ 148       The majority’s error does not stop with the improper vacatur. Assuming the 2008 judgment
        could be vacated in this proceeding, then there were only two convictions from which to seek a
        finding of depravity and, thus, a failure of proof under section 1(D)(i) of the Adoption Act. 750
        ILCS 50/1(D)(i) (West 2014). Under the majority’s analysis then, there is no need to address
        whether the 2008 conviction, which has not yet been vacated, could be admissible in this
        proceeding. Accordingly, based on the majority’s analysis, there is no need for it to address
        People v. McFadden, 2016 IL 117424; the majority’s entire discussion is mere dicta.
¶ 149       Nevertheless, because I would find that this is not a proper forum to vacate respondent’s
        conviction, I will address whether the 2008 conviction was admissible as evidence in the
        termination of parental rights proceeding to establish the rebuttable presumption of depravity.
        The State and the minor maintain that respondent could not be relieved of the presumption of
        depravity predicated on the certified statements of conviction before that conviction was
        properly vacated in an appropriate collateral proceeding. They rely for support on our decision
        in McFadden.
¶ 150       In McFadden, this court was asked whether a prior conviction, which was vulnerable to
        collateral attack based on an unconstitutional statute, could properly serve as proof of the
        predicate felony conviction in a separate criminal prosecution for UUW by a felon. Id. ¶ 21.
        Noting that our existing precedent had not addressed this issue as presented in this framework,
        we turned to federal court precedent for illustration and guidance. Id. ¶ 22. In Lewis v. United
        States, 445 U.S. 55 (1980), the United States Supreme Court addressed the issue of whether a
        state felony conviction, which was subject to collateral attack under Gideon v. Wainwright,
        372 U.S. 335 (1963), but had not been vacated, could serve as a predicate offense to a
        subsequent prosecution for a felon in possession of a firearm. Lewis held that the defendant’s
        prior criminal conviction could properly be used as a predicate in his subsequent conviction for
        possession of a firearm regardless of the fact that the prior conviction might otherwise be
        subject to collateral attack on constitutional grounds. Lewis, 445 U.S. at 65.
¶ 151       The Court had before it a statute under which the federal crime of being a felon in
        possession of a firearm depended on the defendant being a person who “has been convicted
        *** of a felony.” (Internal quotation marks omitted.) Id. at 60. The Court characterized the
        language of the statute, “convicted by a court,” as “unambiguous[ ]” and “sweeping.” Id. The
        Court held that the statute’s “plain meaning is that the fact of a felony conviction imposes a
        firearm disability until the conviction is vacated or the felon is relieved of his disability by
        some affirmative action” Id. at 60-61. The Court viewed the statutory language as being
        consistent “with the common-sense notion that a disability based upon one’s status as a
        convicted felon should cease only when the conviction upon which that status depends has
        been vacated.” Id. at 61 n.5. That the disabling conviction was unconstitutionally obtained did
        not alter the fact that the defendant had been convicted of a felony at the time he possessed the
        firearm. Id. at 60-61. The Court found it immaterial whether the predicate conviction
        “ultimately might turn out to be invalid for any reason.” Id. at 62. The Court emphasized that
        “a convicted felon may challenge the validity of a prior conviction, or otherwise remove his
        disability, before obtaining a firearm.” Id. at 67.
¶ 152       We viewed our own statute in concert with the federal statute, agreeing that, like the federal
        statute, our own legislation is concerned with the role of that conviction as a disqualifying


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        condition for the purpose of obtaining firearms. McFadden, 2016 IL 117424, ¶ 29. The UUW
        by a felon statute requires the State to prove only the defendant’s felon status. Id. We found
        that the policy and purpose of the statute “are served by requiring an individual to clear his
        felony record before possessing a firearm, ‘no matter what infirmity infects his conviction.’
        [Citation.]” Id. ¶ 30. We also explained that
                    “[i]t is axiomatic that no judgment, including a judgment of conviction, is deemed
                vacated until a court with reviewing authority has so declared. As with any conviction,
                a conviction is treated as valid until the judicial process has declared otherwise by
                direct appeal or collateral attack. Although Aguilar may provide a basis for vacating
                defendant’s prior *** conviction, Aguilar did not automatically overturn that judgment
                of conviction. Thus, at the time defendant committed the UUW by a felon offense,
                defendant had a judgment of conviction that had not been vacated ***.” Id. ¶ 31.
¶ 153       We further found that nothing prevented a defendant from seeking a remedy for the
        deprivation of his constitutionally guaranteed right. The remedy was to challenge the judgment
        and have the conviction set aside before deciding to possess a firearm. Id. ¶ 34. We rejected the
        defendant’s undeveloped assertion that this construction of the statute violated either due
        process or second amendment rights, as UUW by a felon was a presumptively lawful
        “ ‘longstanding prohibition[ ] on the possession of firearms.’ ” Id. ¶¶ 34-35 (quoting District of
        Columbia v. Heller, 554 U.S. 570, 626 (2008)).
¶ 154       The majority’s feeble attempts to distinguish this case from the procedural posture of
        McFadden are meritless and mystifying. The majority posits that, unlike the present case, in
        the case presented in McFadden, there was no indication in the record as to either the particular
        provision of the AUUW statute to which the defendant had pled guilty or the factual basis for
        the plea. Without the requisite evidence, his claim was untenable. Supra ¶ 64.
¶ 155       That fact had no bearing on our holding in McFadden. We explained that, even assuming
        the defendant could successfully vacate his conviction on the basis of Aguilar, “that remedy
        would neither alter nor extinguish the requirement under section 24-1.1(a) that defendant clear
        his felon status before obtaining a firearm.” McFadden, 2016 IL 117424, ¶ 37. Nevertheless,
        we did note that “had defendant properly sought to vacate his 2002 guilty plea before
        possessing a firearm, these issues could have been adequately considered and resolved in an
        appropriate proceeding.” Id. ¶ 33.
¶ 156       Remarkably, this case, like McFadden, also suffers from an evidentiary deficiency in that
        there was nothing presented to the trial court in the termination proceeding that would establish
        proof that respondent’s conviction was based on an unconstitutional statute. There was no
        indication in the trial court as to either the provision of the AUUW statute to which respondent
        had pleaded guilty or the factual basis for the plea. As I already established, there is also no
        “supplemented appellate record” from which “we can therefore say with certainty” that the
        conviction was based on an unconstitutional statute.
¶ 157       Next, the majority inexplicably posits that, unlike the defendant in McFadden, who never
        filed any pleading to vacate his prior felony conviction and did not seek to vacate the prior
        conviction on appeal from the prosecution for UUW by a felon, respondent “not only
        challenged the use of the prior AUUW conviction in this subsequent proceeding, he sought to
        have the prior conviction itself nullified and vacated.” Supra ¶ 66. For that proposition, the
        majority relies on paragraph 25 of the appellate court opinion. 2017 IL App (3d) 160277, ¶ 25.


                                                    - 36 -
¶ 158        In reality, just like the defendant in McFadden, respondent has not filed a pleading seeking
        to vacate his prior conviction on the basis of an unconstitutional statute and did not seek to
        vacate it on appeal. Rather, exactly like McFadden, respondent is seeking to challenge the
        admissibility of his conviction on the basis of Aguilar for the first time on appeal, as
        respondent indeed acknowledged in his appellate brief. To the extent he objected before the
        trial court in the termination proceeding to the admissibility of the 2008 conviction, that
        objection was “based on the fact that there [was] an ongoing appeal having been filed
        challenging the constitutionality of the arrest.” Notably, the circuit court’s ruling overruling
        that objection was correct. As we have explained, “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.” In re Donald A.G., 221 Ill. 2d 234, 254
        (2006). Moreover, respondent could not have sought to vacate the 2008 conviction on review
        from the termination proceeding.
¶ 159        Next, the majority critiques our analysis in McFadden by stating that this court failed to
        take into consideration a critical distinction between Lewis and McFadden, which is
        purportedly confirmed by Montgomery. Supra ¶¶ 71-72. Of course, at the outset, Lewis and
        McFadden are not cases with the same procedural posture as Montgomery, which addressed
        retroactivity jurisprudence and state collateral review.
¶ 160        To be sure, Lewis involved a constitutionally infirm conviction predicated on a violation of
        the defendant’s sixth amendment right to counsel. In McFadden and in this case, the
        constitutional infirmity was based on second amendment rights. The majority emphasizes that
        the constitutional infirmity in Lewis was procedural, while the infirmity in McFadden and this
        case is substantive. The majority finds this to be a “fundamental distinction,” relying on
        Montgomery. Supra ¶¶ 71-72.
¶ 161        Even assuming that Teague’s procedural vs. substantive distinction is relevant here, the
        majority overlooks that the constitutional infirmity in Lewis was a watershed rule of criminal
        procedure, which pursuant to Teague is treated the same way for retroactivity purposes as a
        new substantive constitutional rule. A Gideon violation was such a watershed rule of
        procedure, which would be applied retroactively. See Beard v. Banks, 542 U.S. 406, 417
        (2004) (“[i]n providing guidance as to what might fall within this exception, we have
        repeatedly referred to the rule of Gideon [citation] and only to this rule”). In other words,
        Teague treats substantive rules and watershed rules of criminal procedure the same.
¶ 162        Furthermore, the nature of the constitutional infirmity, the sixth amendment violation, was
        not ultimately dispositive of the holding in Lewis. All that mattered in Lewis was the fact of
        defendant’s conviction as a disqualifying condition for the purpose of obtaining firearms. The
        defendant’s status as a felon at the time he possessed a firearm imposed upon him a civil
        disability prohibiting him from possessing firearms before vacating the disability. Similarly, in
        McFadden, the fact of defendant’s status as a felon remained, not because we refused to give
        retroactive effect to Aguilar in a collateral review proceeding, but because the defendant had a
        disability and had not properly vacated his prior conviction before obtaining a firearm. Thus,
        contrary to the majority’s assertion, this court took the correct analytical path in McFadden.
        There is no reason to abandon our precedent by following the majority’s confused and
        conflated analysis.



                                                   - 37 -
¶ 163        Our rationale for our decision in McFadden has not been undermined by any controlling
        precedent. The dissent in McFadden relied on essentially the same line of reasoning as the
        majority here, and it was rejected by this court. The defendant’s certiorari petition was denied
        by the United States Supreme Court. McFadden, 2016 IL 117424, cert. denied, ___ U.S. ___,
        137 S. Ct. 2291 (2017).
¶ 164        As we explained in McFadden, lower federal courts have consistently applied the federal
        statute in this way, regardless of the nature of the constitutional infirmity. See, e.g., United
        States v. Mayfield, 810 F.2d 943, 945-46 (10th Cir. 1987) (affirming conviction where
        predicate felony conviction may have been void under state law for lack of jurisdiction);
        United States v. Chambers, 922 F.2d 228, 238-40 (5th Cir. 1991) (upholding conviction where
        predicate felony was subject to nullification on collateral attack); United States v. Wallace, 280
        F.3d 781, 784 n.1 (7th Cir. 2002) (affirming conviction where predicate conviction was
        pursuant to a statute declared void ab initio by Illinois court under single subject rule); United
        States v. Padilla, 387 F.3d 1087, 1092 (9th Cir. 2004) (upholding conviction where predicate
        felony was subsequently vacated nunc pro tunc but was not yet invalidated when defendant
        possessed firearm); United States v. Leuschen, 395 F.3d 155, 157-59 (3d Cir. 2005) (upholding
        conviction where predicate felony conviction was based on a statute that had been amended
        prior to trial).
¶ 165        There is no merit to the majority’s implication that this court’s decision in McFadden was
        somehow erroneous based on the number of certiorari petitions filed and denied. Supra ¶ 74
        n.3. It is illogical to conclude that the Supreme Court’s denial of certiorari in McFadden and
        its repeated denial in cases relying on McFadden meant the case was wrongly decided. Rather,
        as the Supreme Court has explained, “[t]he denial of a writ of certiorari imports no expression
        of opinion upon the merits of the case” and has no precedential value. United States v. Carver,
        260 U.S. 482, 490 (1923).
¶ 166        Furthermore, any suggestion by the majority that applying McFadden to the present case
        would implicate procreative rights and would somehow be akin to forced sterilization is simply
        ludicrous and merely displays the majority’s lack of discipline and outcome-determinative
        decision-making.
¶ 167        Of course, the proceeding squarely before us is not a criminal proceeding, and we are not
        being called upon to construe a felon-in-possession statute. Rather, we are being called upon to
        construe the Adoption Act. I agree there are different statutes at play here that should be
        individually addressed. Under section 1(D)(i) of the Adoption Act, a parent can be found unfit
        based on a finding of depravity. 750 ILCS 50/1(D)(i) (West 2014). Although the statute does
        not define depravity, this court has defined it as “ ‘ “an inherent deficiency of moral sense and
        rectitude.” ’ ” In re Abdullah, 85 Ill. 2d 300, 305 (1981) (quoting Stalder v. Stone, 412 Ill. 488,
        498 (1952)). It has been similarly described as a course of conduct that indicates a deficiency in
        a moral sense and shows either an inability or an unwillingness to conform to accepted moral
        standards. In re Keyon R., 2017 IL App (2d) 160657, ¶ 22. Under this section, there is a
        rebuttable presumption that a parent is depraved if he “has been criminally convicted” of at
        least three felonies and at least one of these convictions occurred within five years of the filing
        of the petition seeking to terminate parental rights. 750 ILCS 50/1(D)(i) (West 2014).
¶ 168        Under the plain language of the statute, the legislature has determined that the fact of
        having had three felony convictions within a certain time period is enough to create a


                                                    - 38 -
        rebuttable presumption of depravity. Id. The statute evidences a presumptive correlation
        between repeated felony convictions, which frequently result in incarceration, and the ability
        to carry out parental responsibilities. The whole focus of the statute is and must be on the
        operative facts existing at the time of the termination proceedings. When the fundamental
        parental relationship with a child is at stake, historical facts must matter.
¶ 169        Here, the majority would like us to just simply ignore the fact that respondent has been
        imprisoned based on the choices respondent has made for nearly this child’s entire life. The
        historical facts, which cannot simply be erased, are that respondent was convicted in 2008 of a
        felony and was sentenced to 18 months in prison. Approximately one year later, in 2009 he was
        again convicted of a felony and had other charges dismissed in a plea agreement. Respondent
        was sentenced to another five years in prison. Just two years later, in 2011, while N.G.’s
        mother was pregnant with N.G., respondent was charged with additional felonies. One month
        after N.G. was born, respondent was convicted of his third felony after a plea agreement to
        dismiss another felony charge. He was sentenced to over nine years in prison. Those three
        convictions have not been overturned.
¶ 170        The hard facts of the matter are that respondent has spent most of his child’s seven years of
        life, from 2011 to the present, incarcerated and unable to carry out parental responsibilities. His
        pattern of choices at the time negatively affected his ability to provide for N.G. physically,
        emotionally, and financially. That history cannot be swept away or ignored. See People v.
        Holmes, 2017 IL 120407, ¶ 32 (“ ‘[t]he past cannot always be erased by a new judicial
        declaration’ ” (quoting People v. Blair, 2013 IL 114122, ¶¶ 29-30)).
¶ 171        Under the statute, despite three felony convictions, a parent retains the right to offer
        evidence of parental fitness in rebuttal. 750 ILCS 50/1(D)(i) (West 2014). Here, respondent,
        who had counsel, exercised that right when he testified regarding his fitness to parent N.G. The
        trial court heard and considered that testimony. And respondent had ample opportunity to
        collaterally attack his 2008 conviction in an appropriate proceeding and seek to vacate his
        conviction well before the termination of parental rights proceeding. His failure to rebut the
        presumption of depravity is not a reason to find that the circuit court erred. Nor, as I explained,
        where a respondent has a remedy to collaterally attack his conviction, does the depravity
        statute in any way violate a respondent’s constitutional due process rights.
¶ 172        Accordingly, I would reverse the judgment of the appellate court and affirm the judgment
        of the circuit court.
¶ 173        For all of these reasons, I dissent.
¶ 174        JUSTICES THOMAS and GARMAN join in this dissent.

¶ 175                        DISSENT UPON DENIAL OF REHEARING

¶ 176       JUSTICE THEIS, dissenting:
¶ 177       This court held, in a fractured 4 to 3 opinion, that federal and state law mandated that the
        court vacate a criminal conviction on appeal from a civil action to terminate parental rights. In
        doing so, the majority overruled this court’s recent decision in People v. McFadden, 2016 IL
        117424, “to the extent that” (supra ¶ 84) it conflicts with United States Supreme Court
        precedent.


                                                    - 39 -
¶ 178       I continue to strenuously object to the majority’s flawed rationale for its novel belief that,
        despite a lack of appellate jurisdiction, a defendant may now, for the first time on appeal from
        a judgment in a civil proceeding, obtain relief from a final judgment in a separate criminal
        proceeding.
¶ 179       As I explained in my dissent and as the State maintains in its petition for rehearing, the
        majority reaches its errant conclusions by contorting the procedural posture of this case, by
        misapprehending the Supreme Court’s holding in Montgomery v. Louisiana, 577 U.S. ___, 136
        S. Ct. 718 (2016), and the scope of its application in state court proceedings, and by
        erroneously perverting the concept of collateral attack. Indeed, the majority opinion mandates
        that we create new unprecedented ad hoc methods of collateral attack where several uniform
        and fair mechanisms already exist for handling relief from final judgments but were simply not
        properly followed here.
¶ 180       Furthermore, for the reasons stated in my dissent and as argued by the State, this court
        should excise the portion of the opinion calling McFadden’s continued validity into question
        or at least grant rehearing on the issue.
¶ 181       No legitimate or principled reason exists in this case to warrant this court’s reconsideration
        of the continued validity of our recent decision in McFadden. As the State argues, the
        majority’s sua sponte treatment of this issue was pure dicta, which should be excised from its
        opinion given the court’s conclusion that this case could be distinguished from McFadden on
        “evidentiary and procedural” grounds (see supra ¶ 64).
¶ 182       Even if ruling on the continued validity of McFadden was necessary to the court’s
        opinion—which it clearly was not—the majority’s decision to place McFadden in doubt is
        contrary to the doctrine of stare decisis.
¶ 183       Stare decisis expresses the policy of the courts to stand by precedent to allow the law to
        develop in a principled, intelligent manner and not to disturb settled points without a
        compelling reason. People v. Colon, 225 Ill. 2d 125, 145-46 (2007). Stare decisis is “essential
        to the respect accorded to the judgments of [a reviewing court] and to the stability of the law.”
        Lawrence v. Texas, 539 U.S. 558, 577 (2003).
¶ 184       The majority offers no compelling reason to revisit McFadden. Not only does McFadden
        not conflict with any United States Supreme Court precedent, two weeks after this opinion was
        filed, the Seventh Circuit reconfirmed in United States v. Thompson, 901 F.3d 785, 786 (7th
        Cir. 2018), that McFadden was indeed correctly decided based on the Supreme Court’s
        decision in Lewis v. United States, 445 U.S. 55 (1980). In Thompson, the defendant pleaded
        guilty to being a felon in possession of a firearm pursuant to federal law. His prior felony
        conviction was premised on the state statutory provision found unconstitutional in Aguilar.
        The defendant argued that his prior conviction, which was based on a statute that has been
        declared void ab initio, could not serve as the predicate felony. The defendant raised the very
        same purportedly dispositive distinction the majority attempts to rely on to overturn
        McFadden—that Lewis is limited in scope to an uncounseled conviction as opposed to a
        facially unconstitutional statute.
¶ 185       The Seventh Circuit rejected the defendant’s argument, holding that a prior conviction
        based on a statute that has been declared void ab initio can serve as the predicate felony for a
        violation of the federal felon in possession statute, relying on the Supreme Court’s decision in
        Lewis. Thompson, 901 F.3d at 787. The court continued to adhere to the absolutely sound

                                                    - 40 -
        position it had taken previously in United States v. Lee, 72 F.3d 55 (7th Cir. 1995), that the
        felon in possession statute represents a considered and deliberate decision to require that a
        prior felony conviction be vacated or expunged before a firearm is possessed. Thompson, 901
        F.3d at 786.
¶ 186       I am deeply troubled by the majority’s about-face that a defendant in McFadden’s position
        may now resort to self-help by encouraging a person who has formerly been convicted of a
        felony to gamble by possessing a firearm, believing that, if arrested, that conviction will be
        later set aside. The majority’s determination, at best, creates legal ambiguity after Thompson,
        which warrants this court’s immediate attention.
¶ 187       Abandoning stare decisis—a critical aspect of our jurisprudence—was not only wrong, it
        was fundamentally unfair given that neither party asked the court to revisit the validity of that
        precedent in this case. I strongly agree with the State that, at a minimum, it should be given an
        opportunity for supplemental briefing to address the continued validity of McFadden where it
        was clearly blindsided by the majority’s redefining of the issues in this case. The majority was
        comfortable going outside the record to reach its desired result, but it did not even consider
        requesting supplemental briefing to overturn precedent that was only decided by this court two
        years ago. See, e.g., Stone Street Partners, LLC v. City of Chicago Department of
        Administrative Hearings, 2017 IL 117720 (ordering supplemental briefing after the case was
        taken under advisement); Bartlow v. Costigan, 2014 IL 115152 (directing the parties to file
        supplemental briefing following oral argument); In re Marriage of Donald B., 2014 IL 115463
        (requesting the parties address an issue through supplemental briefing); People v. Boeckmann,
        238 Ill. 2d 1, 32 (2010) (Freeman, J., dissenting, joined by Burke, J.) (recognizing that, where
        no one asked for the case to be overruled, the court did not have the benefit of any developed
        argument by the parties to warrant a showing of good cause).
¶ 188       Compounding the majority’s errors, serious problems are created by the majority’s
        abandonment of basic presumptions on how courts function. The State has now informed us
        that during the pendency of these proceedings Floyd indeed obtained a proper vacatur of his
        2008 conviction under an appropriate section 2-1401 petition in the circuit court. Thus, the
        majority’s entire discussion of the reviewing court’s authority and duty regarding vacatur only
        adds to the confusion created by the majority’s unworkable and impractical precedent. Now
        we have a circuit court judgment vacating Floyd’s conviction and a simultaneous opinion from
        the reviewing court vacating that same conviction. This just confirms once more that the
        proper forum to address these issues is in the circuit court with an appropriate pleading and not
        for the first time on appeal from a termination of parental rights proceeding.
¶ 189       Lastly, above all else, what is clearly apparent from this case is that the majority has
        completely lost sight of the undeniable state interest in protecting children from abuse and
        neglect, and it has effectively erased the historical facts of N.G.’s life that led to these
        proceedings in the first place.
¶ 190       For all of these reasons and the reasons set forth in my initial dissent, I would grant the
        State’s request to excise the portion of the opinion calling McFadden’s continued validity into
        question and otherwise grant its petition for rehearing.
¶ 191       JUSTICES THOMAS and GARMAN join in this dissent.




                                                   - 41 -
