                                       2018 IL 121939



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS



                            (Docket Nos. 121939, 121961, cons.)

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

                                Opinion filed August 9, 2018.



        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.



                                          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. Rule 315(a) (eff. Nov. 1, 2017). We allowed both petitions and
     consolidated them for argument and disposition. For the reasons that follow, we
     affirm the judgment of the appellate court.




                                              -2-
¶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




                                            -3-
       sought termination of both parents’ rights so that N.G. could be adopted by her
       maternal grandmother.

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

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

¶ 12       In February 2016, DCFS filed a second motion to terminate Floyd F.’s parental
       rights. This time, however, it relied on an entirely new theory. Instead of citing
       Floyd F.’s actions or failure to act with respect to N.G.’s welfare, the conditions
       that were the basis for DCFS’s original motion, the new motion charged unfitness
       based on totally different circumstances, all of which occurred before N.G. was
       born. Specifically, it asserted that Floyd F. had been criminally convicted of at least
       three felonies under the laws of this state and at least one of those convictions had
       taken place within five years of the filing of its motion. The three convictions on
       which DCFS relied were a 2008 AUUW conviction, a Class 4 felony; a 2009




                                                -4-
       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 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 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
       evidenced 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.

¶ 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




                                                -5-
       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.

           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).




                                                      -6-
       Thompson, 2015 IL 118151 (Dennis Thompson), 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, 209 Ill. 2d 19 (2004) (Ernest Thompson), 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 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. ¶ 22, (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. ¶ 22. 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




                                                -7-
       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 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




                                               -8-
       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); In re Vanessa C., 316 Ill. App. 3d 475, 481 (2000); In re D.R.,
       307 Ill. App. 3d 478, 482 (1999); People v. R.G., 131 Ill. 2d 328, 342 (1989); In re
       Enis, 121 Ill. 2d 124, 128-29 (1988). 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




                                                 -9-
       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 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
       subsection 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 subsection 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).




                                               - 10 -
¶ 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 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; People v. Burns, 2015 IL 117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th




                                                - 11 -
       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




                                               - 12 -
       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] 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.




                                                - 13 -
¶ 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 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)).




                                                - 14 -
¶ 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
          thatframework, 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




                                              - 15 -
       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. 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, 377 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




                                                - 16 -
       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 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




                                                - 17 -
       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




                                               - 18 -
       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 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]




                                              - 19 -
       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
       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.




                                               - 20 -
¶ 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 indivuals 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 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




                                                - 21 -
       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).

¶ 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




                                               - 22 -
       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, 377 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 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




                                                - 23 -
       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




                                               - 24 -
       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 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. at ¶¶ 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

           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.




                                                       - 25 -
       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 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 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 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 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.




                                               - 26 -
       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




                                                - 27 -
       “attaches immediately upon the defendant’s first conviction” and not, as in Burgett,
       only after the fact of the second conviction. Lewis, 445 U.S. at 67 (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 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.




                                               - 28 -
       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 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


           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.




                                                      - 29 -
¶ 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. Brown, 2015 IL App (1st) 122651-U; People v. Sterling,
       2015 IL App (1st) 130556-U; People v. Fields, 2014 IL App (1st) 122012-U;
       People v. Hernandez, 2015 IL App (1st) 131871-U; People v. Somerville, 2014 IL
       App (1st) 132202-U; People v. Spivey, 2015 IL App (1st) 123563-U; People v.
       White, 2014 IL App (1st) 122371-U; People v. Fryer, 2015 IL App (1st) 141409-U;
       People v. Smith, 2015 IL App (1st) 123281-U; People v. Smith, 2014 IL App (1st)


       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.




                                                      - 30 -
       122370-U; People v. Dean, 2015 IL App (1st) 122570-U; People v. Carter, 2014 IL
       App (1st) 123589-U; People v. Crosby, 2014 IL App (1st) 121645-U; People v.
       Moton, 2015 IL App (1st) 123385-U; People v. Lester, 2014 IL App (1st)
       121882-U; People v. Speciale, 2015 IL App (1st) 132376-U; People v. Marshall,
       2015 IL App (1st) 142461-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. at
       339 (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




                                               - 31 -
       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. 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.




                                               - 32 -
¶ 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 not be forced to suffer sanctions for




                                               - 33 -
       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




                                               - 34 -
       case distinguishable from McFadden, to the extent that this result and controlling
       United State’s 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 Act 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.




                                               - 35 -
       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



                                               - 36 -
        (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 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”



                                                - 37 -
        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. 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



                                                 - 38 -
        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.




                                                - 39 -
¶ 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 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.



                                                 - 40 -
¶ 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). 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




                                                - 41 -
        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.”




                                                 - 42 -
¶ 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 (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.




                                                - 43 -
¶ 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 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




                                                - 44 -
        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



                                                 - 45 -
        habeas power. It was unlawful to use the federal habeas writ “as a mere writ of
        error.” Siebold, 100 U.S. at 375.

¶ 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, 377 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)).




                                                - 46 -
¶ 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.”

¶ 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




                                                - 47 -
        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.




                                                - 48 -
¶ 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 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




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        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.

¶ 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




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        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.




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¶ 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 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



                                               - 52 -
        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.

¶ 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




                                                - 53 -
        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



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        correct analytical path in McFadden. There is no reason to abandon our precedent
        by following the majority’s confused and conflated analysis.

¶ 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.



                                                - 55 -
¶ 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 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.




                                                - 56 -
¶ 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.




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