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                                Appellate Court                           Date: 2018.06.26
                                                                          09:37:55 -05'00'




                      In re A.F., 2018 IL App (3d) 170826



Appellate Court   In re A.F., a Minor (The People of the State of Illinois, Petitioner-
Caption           Appellee, v. Gabriel F., Respondent-Appellant).



District & No.    Third District
                  Docket No. 3-17-0826



Filed             May 3, 2018



Decision Under    Appeal from the Circuit Court of Tazewell County, No. 12-JA-73; the
Review            Hon. Kirk D. Schoenbein, Judge, presiding.



Judgment          Affirmed.


Counsel on        James D. Bradshaw, of Pekin, for appellant.
Appeal
                  Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino, David
                  J. Robinson, and Richard T. Leonard, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.

                  Aimee E. Dluski, of Pekin, guardian ad litem.



Panel             JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                  Justices McDade and Schmidt concurred in the judgment and opinion.
                                                OPINION

¶1       The trial court entered orders finding respondent, Gabriel F. (father), to be an unfit parent
     and terminating father’s parental rights concerning the minor, A.F. On appeal, father argues
     that the trial court’s fitness determination was erroneous. We affirm.

¶2                                               FACTS
¶3        On October 19, 2012, the State filed a neglect petition alleging that father neglected A.F.,
     born July 9, 2012, by subjecting the minor to an environment injurious to her welfare pursuant
     to section 2-3(1)(b) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b) (West 2012)).
     Specifically, the neglect petition alleged that on or about September 9, 2012,1 A.F. suffered a
     fracture to her right femur and a fracture to her left tibia by means other than accidental while
     in the care of father. On December 6, 2012, the State filed a supplemental petition adding the
     allegation that, “During the time that the minor was hospitalized in August of 2012, multiple
     problems with the father were noted by hospital staff which included but were not limited to
     the father having disregard for the minor’s pain or risks of moving the minor’s fractured limb.”
¶4        On February 28, 2013, father stipulated that the allegations of the original petition could be
     proven by a preponderance of the State’s evidence. On that same date, the trial court entered an
     adjudicatory order finding A.F. neglected. On April 19, 2013, the trial court entered a
     dispositional order finding father unfit based on the physical abuse of A.F.
¶5        The injuries A.F. suffered in 2012 gave rise to criminal proceedings in Tazewell County
     case No. 13-CF-36 against father. The State initially charged father with the Class X felony of
     aggravated battery to a child. 720 ILCS 5/12-3.05(b)(1) (West 2012). However, pursuant to a
     plea agreement, father plead guilty to the Class 2 felony of aggravated domestic battery
     pursuant to section 12-3.3(a) of the Criminal Code of 2012 in that he “knowingly caused great
     bodily harm to A.F. (F/W DOB 7/9/12), a family member, in that he performed the acts which
     resulted in fractures to A.F.’s left tibia and right femur.” See id. § 12-3.3(a). In exchange for
     father’s guilty plea to aggravated domestic battery, the State dismissed the Class X felony of
     aggravated battery to a child. The trial court sentenced father to a term of seven years in the
     Illinois Department of Corrections. Father remained incarcerated when this appeal was filed.
¶6        The juvenile case proceeded over the next three years and the trial court conducted several
     permanency review hearings. On December 30, 2016, the State filed a petition to terminate
     father’s parental rights. The termination petition alleged that father was depraved, pursuant to
     section 1(I) of the Adoption Act (750 ILCS 50/1(I) (West 2016)), because father had been
     “convicted of Aggravated Domestic Battery to a Minor, 2 in Tazewell County case No.
     13-CF-36.” On January 26, 2017, father filed an answer to the State’s termination petition,
     which admitted to his prior conviction of aggravated domestic battery but claimed he was
     rehabilitated and denied that it was in A.F.’s best interests to terminate his parental rights.



         1
           The record indicates that A.F. was hospitalized due to the incident in August of 2012, though the
     State’s neglect petition states that the incident occurred in September of 2012.
         2
           Father’s conviction in Tazewell County case No. 13-CF-36 was for aggravated domestic battery
     not aggravated domestic battery to a minor.

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¶7          On June 9, 2017, the trial court began a hearing on the State’s termination petition. The
       parties agreed that the statutory provision under which the termination petition was brought
       should be amended to correct a scrivener’s error and amend the statutory basis for the petition
       to section 1(D)(i) of the Adoption Act (id. § 1(D)(i)) instead of section 1(I). The trial court
       continued the hearing to August 24, 2017. On that date, the State admitted State’s exhibit No.
       1, a certified copy of father’s conviction for aggravated domestic battery in Tazewell County
       case No. 13-CF-36, over father’s objection, as evidence of father’s depravity. Additionally, the
       court took judicial notice of the entire court file in Tazewell County case No. 13-CF-36
       without objection from father.
¶8          After the State’s evidence, father testified before the court and explained that he was 19
       years of age at the time of his arrest in Tazewell County case No. 13-CF-36. In August 2012,
       around the time of the incident in this case, father lived with his infant child, A.F., and A.F.’s
       biological mother.
¶9          Father testified that he grew up with two brothers and an adopted sister, had a good
       relationship with his parents, had a good upbringing, was never abused, and graduated from
       high school in 2011. Father advised the court that, prior to his arrest in Tazewell County case
       No. 13-CF-36, he had been employed and his prior record included convictions of
       misdemeanor possession of cannabis, failure to signal, and a prior adjudication for retail theft
       when he was a minor. Father reported that he had previously used marijuana, mushrooms, and
       MDMA but stopped using drugs when his girlfriend became pregnant with A.F. Father was
       engaged in some DCFS services prior to his arrest in January 2013 but did not complete
       services, such as a drug-alcohol assessment, a psychological evaluation, or a parenting class.
       Father completed no additional services in prison because he was on the back of the waitlists.
       Father enjoys fishing, building things, playing guitar, and aquariums.
¶ 10        Father provided an explanation to the court concerning the 2012 injuries to A.F. that
       resulted in criminal charges against father. According to father’s testimony, he accidentally
       fell on A.F. and broke her leg while changing her diaper in August 2012. Father admitted that
       his testimony was inconsistent with the agreed factual basis presented to the court as part of
       father’s guilty plea in Tazewell County case No. 13-CF-36. Father conceded that the agreed
       factual basis for his guilty plea in Tazewell County case No. 13-CF-36, as recited to the trial
       court, established A.F.’s injuries occurred when father burped A.F. In addition, father admitted
       that he had given law enforcement different versions of how A.F.’s injury had occurred on
       prior occasions but had to tell the truth now because he did not “feel comfortable sticking to a
       lie.” Father expected to be released from prison in January 2018, due to good behavior, with
       his mandatory sentence actually running to January 2021.
¶ 11        The court found father’s version of events incredible and found father unfit on depravity
       grounds by clear and convincing evidence. The matter proceeded to a best interest hearing, and
       the court entered a dispositional order terminating father’s parental rights on November 7,
       2017. Father filed a timely notice of appeal on December 6, 2017.

¶ 12                                           ANALYSIS
¶ 13       On appeal, father argues that his prior conviction for aggravated domestic battery does not
       create a presumption of depravity under section 1(D)(i) of the Adoption Act (id.).
       Additionally, father argues that even if his aggravated domestic battery conviction created a


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       presumption of depravity, father adequately rebutted the presumption with his testimony.
       Consequently, father requests this court to set aside the trial court’s order finding him unfit.
¶ 14        The standard of proof applied by a trial court when determining parental fitness is clear and
       convincing evidence. In re D.D., 196 Ill. 2d 405, 422 (2001). Clear and convincing evidence is
       said to be something more than a preponderance of the evidence but less than proof beyond a
       reasonable doubt. In re D.T., 212 Ill. 2d 347, 362 (2004). A trial court’s fitness finding will not
       be reversed unless it is contrary to the manifest weight of the evidence. In re D.D., 196 Ill. 2d at
       417. A finding is contrary to the manifest weight of the evidence where the opposite result is
       clearly evident from the review of the evidence. Id.
¶ 15        Section 1(D)(i)(7) of the Adoption Act creates a presumption of depravity as a statutory
       ground for parental unfitness if a parent has committed aggravated battery to any child. 750
       ILCS 50/1(D)(i)(7) (West 2016). Once a presumption of depravity is established, the burden
       shifts from the State to the parent and requires the parent to show by clear and convincing
       evidence that the parent is not depraved. Id. § 1(D)(i).
¶ 16        On appeal, the State acknowledges that father’s conviction for aggravated domestic battery
       is not one of the grounds listed in section 1(D)(i)(7) of the Adoption Act that would create a
       presumption of depravity. In spite of the trial court’s lengthy and thoughtfully written order
       addressing a different approach of first impression, we accept the State’s concession. Based on
       the position of the State for purposes of this appeal, we conclude father’s conviction for
       aggravated domestic battery did not establish a presumption of depravity during father’s
       fitness hearing.
¶ 17        Nonetheless, the State can establish that a parent is depraved following a conviction for
       aggravated domestic battery, even without the benefit of any presumption listed in section
       1(D)(i)(7) of the Adoption Act. In re Adoption of K.B.D., 2012 IL App (1st) 121558, ¶ 207. In
       such situations, absent the statutory presumption, it is more difficult, but not impossible, for
       the State to prove depravity based on the evidence presented to the court.
¶ 18        Our supreme court has defined depravity as “an inherent deficiency of moral sense and
       rectitude.” (Internal quotation marks omitted.) In re Abdullah, 85 Ill. 2d 300, 305 (1981). We
       may affirm the trial court’s fitness determination on any grounds appropriate in the record.
       People v. Novak, 163 Ill. 2d 93, 101 (1994).
¶ 19        Here, the State’s exhibit No. 1 served to memorialize father’s aggravated domestic battery
       conviction in which father “knowingly caused great bodily harm to A.F. (F/W DOB 7/9/12), a
       family member, in that he performed the acts which resulted in fractures to A.F.’s left tibia and
       right femur.” Further, the court took judicial notice of the entire court file in Tazewell County
       case No. 13-CF-36, which established that A.F. was around six weeks old at the time of the
       crime and was, in other words, an infant. Frankly, after considering the State’s evidence, it
       would be a struggle to imagine another factual scenario that describes a depraved parent more
       fittingly. Father’s intentional actions caused horrific injuries to A.F. and necessitated father’s
       extended absence from A.F.’s life while father served his prison sentence. Father clearly
       exhibits an “inherent deficiency of moral sense and rectitude.” Therefore, we conclude the
       certified copy of father’s conviction in Tazewell County case No. 13-CF-36, together with the
       contents of the record subject to the circuit court’s judicial review, fulfilled the State’s burden
       of proof and established depravity for purposes of the State’s termination petition.
¶ 20        Father argues that his testimony rebutted the State’s evidence and established that A.F.’s
       injuries were the result of an accident. However, the trial court did not find father’s version of

                                                    -4-
       events credible. Further, father’s guilty plea in Tazewell County case No. 13-CF-36, was based
       on the factual basis recited to the court indicating that father “knowingly” inflicted the serious
       injuries to A.F. Father agreed to the factual basis and admitted his guilt by entering a voluntary
       plea. The agreed facts supporting his guilty plea were in direct contradiction to father’s sworn
       testimony during the hearing on the State’s petition to terminate his parental rights. We
       recognize that the trial court is in a superior position to evaluate father’s credibility. We see no
       reason to disturb the trial court’s credibility determinations, and we conclude that father’s
       testimony did little to combat the evidence of depravity presented by the State.
¶ 21       For these reasons, we affirm the trial court’s orders finding father unfit based on depravity
       and terminating father’s parental rights.

¶ 22                                       CONCLUSION
¶ 23      The judgment of the circuit court of Tazewell County is affirmed.

¶ 24      Affirmed.




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