                                         2017 IL App (3d) 160277

                               Opinion filed January 20, 2017
     _____________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     In re N.G., a/k/a N.F.,                )     Appeal from the Circuit Court
                                            )     of the 12th Judicial Circuit,
            a Minor                         )     Will County, Illinois.
                                            )
     (The People of the State of Illinois,  )
                                            )     Appeal No. 3-16-0277
            Petitioner-Appellee,            )     Circuit No. 11-JA-152
                                            )
            v.                              )
                                            )
     Floyd F.,                              )     The Honorable
                                            )     Paula Gomora,
            Respondent-Appellant).          )     Judge, presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justice O’Brien concurred in the judgment and opinion.
           Justice Wright dissented, with opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          The circuit court entered orders finding the respondent, Floyd F., to be an unfit parent and

     terminating his parental rights to the minor, N.G. On appeal, the respondent argues that the

     circuit court’s finding of unfitness based on depravity was error because his 2008 felony

     conviction was based on a statute that was declared unconstitutional by the supreme court and it

     must be vacated. We reverse and remand the case for further proceedings.

¶2                                                FACTS
¶3          On December 19, 2011, a juvenile petition was filed that alleged the minor was neglected

     due to an injurious environment. The minor’s mother admitted the allegations of the petition and

     the minor was adjudicated neglected on September 19, 2012. After a dispositional hearing, the

     circuit court made the minor a ward of the court, granted guardianship to the Department of

     Children and Family Services with the right to place, and found, inter alia, the respondent to be

     an unfit parent.

¶4          In February 2016, the State sought to terminate the respondent’s parental rights to the

     minor, alleging he was depraved based on his three felony convictions: (1) a Class 4 felony

     conviction for aggravated unlawful use of a weapon (circuit court case No. 08-CF-910); (2) a

     Class 2 felony conviction for unlawful use of a weapon by a felon (circuit court case No. 09-CF-

     10); and (3) a Class X felony conviction for armed habitual criminal (circuit court case No. 11-

     CF-201).

¶5          At the termination hearing in May 2016, the State presented certified copies of the

     respondent’s three felony convictions. Counsel for the respondent informed the court that there

     was an appeal pending regarding the respondent’s 2008 conviction and objected to the

     introduction of the certified copy of that conviction. The court overruled the objection, stating,

     “I don’t believe the appeal has any effect on the judgment of conviction.” The transcript of that

     hearing reflects the following discussion:

                             “MR. PAVUR: Your Honor, my client tells me that on the

                    third exhibit, that there is a pending appeal going on. And I am not

                    exactly sure how that would effect [sic] it. But I just couldn’t let it

                    go by.




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                            So I do have an objection to that one based on the fact there

                    is an ongoing appeal having been filed challenging the

                    constitutionality of the arrest.

                            MS. RIPPY: Judge, I have no information, nor has this

                    conviction been reversed. If there is an appeal pending, this

                    conviction still stands until the Appellate Court states otherwise.

                    So I ask to admit People’s Exhibit 3.

                            THE COURT: I don’t believe the appeal has any effect on

                    the judgment of conviction. Over your objection, People’s 3 is

                    admitted.”

¶6          Other evidence presented at the termination hearing established that the respondent was

     currently incarcerated on his armed habitual criminal conviction, for which he received a

     sentence of 9½ years of imprisonment, and he was projected to be paroled in 2019. At the close

     of the hearing, the circuit court found that the respondent was depraved and, therefore, unfit.

     After a best interest hearing on the same date, the court found that it was in the minor’s best

     interest to terminate the respondent’s parental rights. The respondent appealed.

¶7                                          Supplemental Briefing

¶8          We sought and obtained documents from the Will County circuit court regarding the

     respondent’s 2008 conviction for aggravated unlawful use of a weapon and 2011 conviction for

     armed habitual criminal. Those documents indicated that the respondent pled guilty to

     aggravated unlawful use of a weapon in the 2008 case pursuant to 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)) and that there

     was no appeal or other matter pending regarding that case at any time after October 2008.


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     However, there is a pending postconviction petition in the 2011 case, which alleges that the

     respondent’s armed habitual criminal conviction cannot stand because it was predicated in part

     on his 2008 conviction, which has been rendered a nullity by People v. Aguilar, 2013 IL 112116.

¶9          Upon receipt of these documents, we asked the parties to provide additional briefing

     pursuant to the following minute order:

                           “The panel assigned to the above-captioned case has

                    secured, sua sponte, (1) the indictment in case number 08-CF-910,

                    reciting that the respondent in the instant case was charged with

                    two counts of aggravated unlawful use of a weapon in violation of

                    720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2008), the section of the

                    statute found unconstitutional by the Illinois Supreme Court in

                    People v. Aguilar, 2013 IL 112116, (2) the amended judgment-

                    sentence showing he was found guilty of violating 720 ILCS 5/24-

                    1.6(a)(1)(3), a Class 4 felony, and (3) the circuit court’s docket

                    entry that states the court accepted the defendant’s guilty plea to

                    aggravated unlawful use of a weapon (Class 4 felony) as charged

                    in Count II of the indictment.

                           The parties are asked to answer the following question and

                    to submit additional documents pertinent to supporting your

                    answer: ARE THE PARTIES AWARE OF ANY REASON WHY

                    THIS COURT COULD NOT TAKE JUDICIAL NOTICE OF

                    THE IDENTIFIED DOCUMENTS AS A FACTUAL BASIS FOR




                                                      4
                       FINDING THE 2008 CONVICTION AT ISSUE IN THIS

                       APPEAL VOID?”

¶ 10           The parties filed their supplemental briefs, which we have considered in reaching the

       following disposition.

¶ 11                                                  ANALYSIS

¶ 12           The respondent’s sole issue in this appeal is his contention that the circuit court erred

       when it found him to be an unfit parent based on depravity. The sole basis for this contention is

       that his 2008 conviction is a nullity because the statutory provision under which he was

       prosecuted and pled guilty in 2008 was found unconstitutional by our supreme court in Aguilar.

       Resolution of this issue places us at the junction of several recent supreme court decisions:

       Aguilar, 2013 IL 112116, People v. McFadden, 2016 IL 117424; People v. Castleberry, 2015 IL

       116916; People v. Ernest Thompson, 209 Ill. 2d 19 (2004); and People v. Dennis Thompson,

       2015 IL 118151.

¶ 13           In its original responsive brief, the State asserted that the respondent had forfeited this

       issue by failing to raise it in the trial court and by failing, in his initial brief, to ask this court to

       consider his claim under the plain error doctrine. We reserve resolution of the State’s forfeiture

       challenge to a later point in this decision.

¶ 14           We begin with the State’s asserted basis for the finding of depravity. In relevant part,

       section 1(D)(i) of the Adoption Act provides that a rebuttable presumption arises that a parent is

       depraved (and is therefore an unfit person) if he or she has been convicted of at least three

       felonies in Illinois and at least one of those convictions has occurred within the five years

       preceding the filing of the termination petition. 750 ILCS 50/1(D)(i) (West 2014). A circuit




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       court’s determination that a parent is an unfit person will not be overturned unless it is against

       the manifest weight of the evidence. In re E.C., 337 Ill. App. 3d 391, 398 (2003).

¶ 15          Here, the respondent admits that his three convictions technically satisfied these

       requirements such that he could legally be found an unfit person due to depravity. See 750 ILCS

       50/1(D)(i) (West 2014). However, the respondent argues that the circuit court should not have

       included his 2008 conviction (for Class 4 felony aggravated unlawful use of a weapon) in the

       depravity determination because the specific section of the statute under which he was

       prosecuted and convicted has since been declared unconstitutional.

¶ 16          In relevant part, the version of the aggravated unlawful use of a weapon statute which

       served as the basis for the respondent’s 2008 conviction stated as follows:

                              “(a) A person commits the offense of aggravated unlawful

                      use of a weapon when he or she knowingly:

                                      (1) Carries on or about his or her person or in any

                              vehicle or concealed on or about his or her person except

                              when on his or her land or in his or her abode or fixed place

                              of business any pistol, revolver, stun gun or taser or other

                              firearm ***

                                                      ***

                              and

                                      (3) One of the following factors is present:

                                              (A) the firearm possessed was uncased,

                                      loaded and immediately accessible at the time of the

                                      offense.” 720 ILCS 5/24-1.6 (West 2008).

                                                         6
       In Aguilar, our supreme court held that section 24-1.6(a)(1), (a)(3)(A) of the aggravated unlawful

       use of a weapon by a felon statute was unconstitutional on its face. Aguilar, 2013 IL 112116, ¶

       22; see also People v. Burns, 2015 IL 117837, ¶ 21. When a statute is held to be unconstitutional

       on its face, it is said to be void ab initio. Hill v. Cowen, 202 Ill. 2d 151, 156 (2002). In other

       words, “the statute was constitutionally infirm from the moment of its enactment and, therefore,

       is unenforceable.” People v. McFadden, 2016 IL 117424, ¶ 17.

¶ 17          We noted that the certified copies of respondent’s criminal convictions included in the

       original record in this civil case did not reflect the specific provision under which the respondent

       was convicted for aggravated unlawful use of a weapon. Because Aguilar did not invalidate the

       entirety of the aggravated unlawful use of a weapon statute, that information is vital in this case.

       We have, therefore, supplemented the record with documents from the Will County circuit court

       that confirm the statutory basis of the respondent’s 2008 conviction. The parties’ responses to

       our request for supplemental briefing have not identified any compelling reason why we cannot

       take judicial notice of these documents for the purposes of resolving the instant appeal. The

       question becomes, then, whether we are able to grant the relief the respondent requests in this

       case based on a clearly meritorious claim that his 2008 conviction for aggravated unlawful use of

       a weapon is a nullity.

¶ 18          The supreme court majority stated in McFadden:

                                “It 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


                                                         7
                       basis for vacating defendant's prior 2002 [aggravated unlawful use

                       of a weapon] conviction, Aguilar did not automatically overturn

                       that judgment of conviction. Thus, at the time defendant

                       committed the [unlawful use of a weapon] by a felon offense,

                       defendant had a judgment of conviction that had not been vacated

                       and that made it unlawful for him to possess firearms.” Id. ¶ 31.

       Clearly, invalidation of the instant respondent’s 2008 conviction for aggravated unlawful use of a

       weapon did not occur automatically; it must be invalidated through a direct appeal or a collateral

       attack. Id.

¶ 19           There are two statutory options for collaterally attacking an invalid judgment in a

       criminal case: a postconviction petition filed pursuant to the Post-Conviction Hearing Act (725

       ILCS 5/122-1 et seq. (West 2014)) or a petition filed pursuant to section 2-1401 of the Code of

       Civil Procedure (735 ILCS 5/2-1401 (West 2014)). People v. Helgesen, 347 Ill. App. 3d 672,

       675-76 (2004) (citing Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 105 (2002) and

       People v. Thompson, 209 Ill. 2d 19 (2004)). The respondent has pursued a 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, however, before us in

       this civil appeal.

¶ 20           While this case is neither a direct appeal from the respondent’s 2008 conviction, nor a

       postconviction or section 2-1401 challenge to that conviction, the respondent does, nonetheless,

       seek to have the conviction vacated in an action that is collateral to the criminal case. “A

       collateral attack on a judgment is an attack made by or in an action or proceeding that has an

       independent purpose other than impeaching or overturning the judgment. [Citation.]” Black’s


                                                        8
       Law Dictionary 261 (6th ed. 1990). The instant case is a civil action to determine the

       appropriate custody of the minor, N.G., and, more specifically, the fitness of his biological father

       to maintain a role in N.G.’s life. The continued existence of the 2008 conviction is pivotal to

       that determination on the basis asserted by the State. This action is clearly collateral to

       respondent’s 2008 criminal case.

¶ 21          We now turn to the question of whether we have the ability, in this proceeding, to vacate

       the respondent’s conviction, and we find that our authority to do so is explicitly grounded in

       supreme court precedent. In People v. Dennis Thompson, 2015 IL 118151, the supreme court

       described, as follows, three forms of voidness recognized by Illinois law:

                              “A voidness challenge based on a lack of personal or

                      subject matter jurisdiction is not subject to forfeiture or other

                      procedural restraints because a judgment entered by a court

                      without jurisdiction ‘may be challenged in perpetuity.’ [Citation.]”

                      Id. ¶ 31.

                              “A second type of voidness challenge that is exempt from

                      forfeiture and may be raised at any time involves a challenge to a

                      final judgment based on a facially unconstitutional statute that is

                      void ab initio. When a statute is declared facially unconstitutional

                      and void ab initio, it means that the statute was constitutionally

                      infirm from the moment of its enactment and, therefore,

                      unenforceable. [Citation.]” Id. ¶ 32.

                              “A third type of voidness challenge to a final judgment

                      under section 2-1401 recognized by this court is a challenge to a


                                                         9
                      sentence that does not conform to the applicable sentencing statute.

                      [Citation.] This type of challenge is based on the ‘void sentence

                      rule’ [citation], holding that a sentence that does not conform to a

                      statutory requirement is void. Recently, however, this court

                      abolished the void sentence rule. People v. Castleberry, 2015 IL

                      116916, ¶ 19. Consequently, that type of challenge is no longer

                      valid.” Id. ¶ 33.

¶ 22          In a pre-Castleberry case, the court considered a claim, raised for the first time in a

       postconviction proceeding, that the extended-term portion of a sentence for violation of an order

       of protection was void and could be attacked at any time. People v. Ernest Thompson, 209 Ill. 2d

       19 (2004). The court agreed with the defendant, finding:

                              “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 postconviction petition. In fact,

                      courts have an independent duty to vacate void orders and may

                      sua sponte declare an order void. [Citation.]” (Emphasis added.)

                      Id. at ¶ 27. (Emphasis added.)

       Even though Dennis Thompson’s basis for voidness was invalidated in Castleberry, the 2015

       Ernest Thompson decision makes it clear that the procedural voidness principles articulated in

       the earlier decision still apply to the two remaining valid bases for voidness (lack of jurisdiction

       and void ab initio).


                                                        10
¶ 23          The two Thompson cases amply demonstrate that the State’s forfeiture challenge lacks

       merit. Again, the respondent’s claim may be raised at any time in any court. Id.

¶ 24          Despite the language stating that courts have an independent duty to sua sponte declare

       an order void, the McFadden court declined to do so. We, therefore, consider whether its

       reasons for not doing so are equally applicable to the instant case. For the reasons that follow,

       we conclude that this case is significantly different and those reasons do not apply here. The

       McFadden majority first noted that the defendant:

                      “is not seeking to apply the void ab initio doctrine to vacate his

                      prior 2002 AUUW conviction. Rather, defendant is seeking to

                      reverse his 2008 conviction for UUW by a felon, a constitutionally

                      valid offense, by challenging the sufficiency of the evidence to

                      convict him. This distinction presents a different question, namely

                      whether a prior conviction, which is asserted to be based on a

                      statute that has been subsequently declared facially

                      unconstitutional, may nevertheless serve as proof of the predicate

                      felony conviction in prosecuting the offense of UUW by a felon.”

                      McFadden, 2016 IL 117424, ¶ 21.

¶ 25          In the instant case, the respondent is not claiming, as McFadden was, 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 is seeking to vacate. While that may

       be the posture of the postconviction petition in the respondent’s 2011 habitual criminal case, it is

       not his argument in the instant case. Rather, here he is contending that his 2008 conviction had

       been declared a nullity in 2013; that that conviction should be recognized as null and void, and


                                                        11
       vacated; and that this void conviction could not serve in 2016 as a basis for the imposition of a

       civil penalty—the loss of his parental rights. We believe these differences distinguish the instant

       case from McFadden in legally significant ways and that McFadden does not preclude, on this

       basis, the action we take here.

¶ 26           The court’s second reason for rejecting McFadden’s argument was 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.” Id. ¶ 32. The

       court notes that although six separate charges under various statutory sections were alleged,

       defendant was only convicted on one, and there is no confirmation in the record that he pled

       guilty to the unconstitutional section. Id. ¶ 33.

¶ 27           As previously indicated, we have, sua sponte, supplemented the record in this case. We

       have done so because we believe that a refusal to vacate the 2008 conviction at this juncture

       would elevate form over substance, constitute an affront to judicial economy, and, perhaps most

       importantly, result in an unfounded deprivation of a fundamental liberty interest (see, e.g.,

       Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584, 2600 (2015) (recognizing, while

       analyzing the right to marry, the great importance of parental rights and quoting Zablocki v.

       Redhail, 434 U.S. 374, 384 (1978) for the statement that “the right to marry, establish a home

       and bring up children is a central part of the liberty protected by the Due Process Clause

       [citation]”)).

¶ 28           The additions to the record include documents from the 2008 felony case confirming that

       respondent was charged in 2008 with two counts of AUUW, both of which alleged violations of

       the same unconstitutional section of the statute; that he pled guilty to one count; and that the

       judgment expressly confirmed his conviction under the section that had been declared


                                                           12
       unconstitutional. There can be no doubt that respondent’s 2008 conviction was pursuant to a

       statute that was void ab initio and was, therefore, a nullity. This fact, too, constitutes a

       significant distinction from McFadden, allowing us to reach a different outcome.

¶ 29          Under Aguilar, the respondent’s 2008 conviction for aggravated unlawful use of a

       weapon was a nullity from the moment it was entered. It is a nullity now; one that has not yet

       been officially vacated. In this case, the State chose to pursue the termination of the

       respondent’s parental rights based only on depravity premised on three felony convictions.

       Without the 2008 conviction, the State cannot establish that the respondent was depraved

       pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)), and

       therefore the respondent’s parental rights could not have been terminated on that basis.

¶ 30          We find: this is an action collateral to the 2008 criminal prosecution; there is, unlike the

       situation in McFadden, no dispute about which conviction the respondent is attacking and no

       dispute about which section of the statute was the basis for that conviction; and we are

       indisputably a court with reviewing authority.

¶ 31          We therefore find the respondent’s 2008 conviction for aggravated unlawful use of a

       weapon null and void and hold that it cannot serve as a basis for a depravity consideration

       pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)). See Ill. S.

       Ct. R. 366(a)(5) (eff. Feb. 7, 1994) (stating that a reviewing court has the discretion to “enter any

       judgment and make any order that ought to have been given or made, and make any other further

       orders and grant any relief, including a remandment, a partial reversal, the order of a partial new

       trial, the entry of a remittitur, or the enforcement of a judgment, that the case may require”);

       People v. Stoffel, 239 Ill. 2d 314, 330 (2010) (addressing the merits of a postconviction petition,

       rather than remanding the case for the merits to be considered, “[i]n the interests of judicial


                                                         13
       economy”). 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.

¶ 32                                             CONCLUSION

¶ 33          The judgment of the circuit court of Will County is reversed and the case is remanded for

       further proceedings.

¶ 34          Reversed and remanded.

¶ 35          JUSTICE WRIGHT, dissenting.

¶ 36          I agree that a unique solution is required in this case to prevent a miscarriage of justice

       with respect to father’s parental rights. I respectfully observe the juvenile court judge was not

       fully informed that the viability of the conviction in case No. 11-CF-201 was simultaneously

       being considered by another judge in the same circuit.

¶ 37          Based on this unique record, I would take a conservative approach and vacate the order

       terminating father’s parental rights without addressing the merits of the pending petitions in case

       No. 11-CF-201. Upon remand, the trial court should be directed to postpone the hearing on the

       petition to terminate father’s parental rights pending the ruling of the circuit court in the criminal

       proceedings. I respectfully suggest that the interests of judicial economy may warrant the

       assignment of one judge to hear both cases in an expedited fashion.

¶ 38          Here, the record is unique because the viability of father’s conviction in case No. 11-CF-

       201 was simultaneously under consideration in a different division of the circuit court on the date

       he lost his parental rights. For reasons not apparent of record, neither father’s attorney, the

       child’s guardian ad litem, nor the attorney representing the State asked the trial court to postpone

       the juvenile proceeding or consolidate the criminal matter with the juvenile case in the spirit of

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       Illinois Supreme Court Rule 903 (eff. Mar. 8, 2016). This is a classic case of one hand not being

       aware of what the other hand was doing, simply due to the volume of pending cases in various

       courtrooms of a busy circuit court.

¶ 39          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.




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