                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                              In re S.D., 2011 IL App (3d) 110184




Appellate Court            In re S.D., L.D. and E.T., Minors (The People of the State of Illinois,
Caption                    Petitioner-Appellee, v. Clarence T., Respondent-Appellant).



District & No.             Third District
                           Docket No. 3-11-0184


Filed                      August 5, 2011


Held                       In proceedings seeking to terminate respondent’s parental rights arising
(Note: This syllabus       from the stabbing death of the biological mother of his children, the trial
constitutes no part of     judge properly denied an oral motion for recusal based on his presence in
the opinion of the court   the courtroom prior to the unfitness hearing while other persons were
but has been prepared      discussing evidence presented by the State in respondent’s murder trial,
by the Reporter of         since there was no indication the judge found respondent unfit based on
Decisions for the          anything other than his prior criminal convictions.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Peoria County, Nos. 10-JA-30, 10-JA-
Review                     31, 10-JA-32, the Hon. Mark E. Gilles, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Louis P. Milot, of Peoria, for appellant.
Appeal
                           Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel and Nadia
                           L. Chaudhry, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                           Presiding Justice Carter and Justice Lytton concurred in the judgment and
                           opinion.




                                              OPINION

¶1          The court found the State proved the allegations of a neglect petition alleging the minors’
        environment was injurious to their welfare because their biological father, appellant Clarence
        T., stabbed their biological “mother 30 times while in the presence of [E.T.] and a five year
        old girl, killing the mother,” and because father had several prior criminal convictions.
        Subsequently, the State filed a petition to terminate father’s parental rights.
¶2          On the morning of the unfitness hearing, the record reveals that individuals, who were
        not involved in the termination proceedings, were engaged in conversation in the courtroom
        while the judge was seated on the bench. According to the prosecutor, this conversation
        included a discussion of photographs of blood-splatter evidence presented by the State during
        father’s murder trial.
¶3          The judge denied father’s motion for recusal noting that anything the court overheard
        would not affect his decision and he would rely on only the evidence presented to him at the
        termination hearing. At the close of the termination hearing evidence, the court found father
        unfit. Then, following a best interest hearing, the court also found it was in the minors’ best
        interests to terminate father’s parental rights and allow the Department of Children and
        Family Services (DCFS) to consent to their adoption.
¶4          Father appeals the court’s ruling denying his oral motion for recusal of the judge and the
        court’s finding that it was in the best interests of the minors to terminate his parental rights
        and place the minors for adoption. We affirm.

¶5                                      BACKGROUND
¶6          Respondent-appellant Clarence T. is the father of the minor children, S.D., L.D. and E.T.,
        born October 17, 2002, June 15, 2006, and August 21, 2008, respectively. The mother of the
        minors, Martha T., was deceased. On February 4, 2010, the State filed a neglect petition
        alleging the minors’ environment was injurious to their welfare because father stabbed his

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       estranged wife and the mother of the minors “30 times while in the presence of [E.T.] and
       a five year old girl, killing the mother,” and that father had several criminal convictions in
       his history. The court entered a temporary shelter care order placing the minors with DCFS
       on February 5, 2010.
¶7         On June 29, 2010, after the adjudicatory hearing, the court found that the minors were
       neglected due to an injurious environment. At the dispositional hearing on August 3, 2010,
       the court found father dispositionally unfit to care for the minors, made the minors wards of
       the court, and placed them under the guardianship of DCFS. At that time, father was still
       incarcerated in the Peoria County jail pending trial on the murder charges involving the
       minors’ mother’s death.
¶8         Subsequently, on August 11, 2010, the State filed a petition for termination of parental
       rights on behalf of each of the minors alleging that respondent father was an unfit parent due
       to depravity, under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)),
       in that he had been convicted of several crimes from 1992 through 2006.1 Specifically, the
       petition alleged father was convicted of the following offenses:
               “92-CR-1300301           Aggravated Battery                    Cook County
               93-C-22073401            Robbery and Aggravated Battery
                                        Of Senior Citizen                      Cook County
               95-CF-826                Theft (Misdemeanor)                    Sangamon County
               98-CM-142                Battery                                Morgan County
               98-CR-1822101            Aggravated Battery                    Cook County
               03-CM-2397               Resisting a Peace Officer             Peoria County
               04-CM-2717               Retail Theft                           Peoria County
               04-CM-2763               Domestic Battery (2 counts)            Peoria County
               06-CF-364                Violation of Order of Protection
                                        Subsequent [O]ffenses                  Tazewell County.”
¶9         On February 3, 2011, prior to the termination hearing, the prosecutor disclosed on the
       record that, as she entered the courtroom, she overheard general remarks made by other
       persons in the courtroom, not involved in the termination proceedings, concerning details
       about the photographic evidence depicting the blood-splattered murder scene which was
       admitted during father’s separate murder trial. She stated that the judge was on the bench in
       the courtroom, but was not participating in this discussion. According to the prosecutor, she
       immediately interrupted and stopped the conversation.
¶ 10       Based on these circumstances, the State and guardian ad litem orally moved to have the
       court recuse itself from the termination hearing arguing that, although the court did nothing
       wrong, the court may have overheard some unsolicited details of photographic evidence that
       would not be presented to the court for consideration during the termination hearing. Father


               1
                We note that S.D.’s petition to terminate parental rights listed respondent father as a
       “putative father” under count I, and included a count II, which listed S.D.’s father as “unknown.”

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       joined in that motion.
¶ 11       Before ruling on the motion to recuse, the trial judge noted that he had a general
       knowledge that father’s felony trial had been completed and was aware of the outcome of
       that trial. He said their circuit was a small circuit and he did not know of another judge who
       would not be aware of father’s other case. Additionally, the judge stressed that he had not
       viewed any photographic evidence and was not familiar with any evidence introduced by the
       State during father’s felony trial. The court stated that any remarks that occurred in his
       courtroom would have “no bearing on [his] mind and the matters that will be before [him],”
       and stated that he would not consider any evidence beyond what the parties introduced
       during the termination hearing. Consequently, the court denied the oral motion for the court
       to recuse itself.
¶ 12       The court then conducted the unfitness hearing regarding the State’s petition for
       termination of parental rights. The State produced certified copies of father’s convictions,
       as alleged in the termination petition, to prove that father was depraved as defined by the
       Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). The court found that the State proved its
       case by clear and convincing evidence and found father unfit based on father’s previous
       criminal history, which did not include the murder conviction. Following this finding, the
       court set the case for a “best interests” hearing.
¶ 13       The family’s caseworker, Jenna Ricker, prepared a written report for the best interests
       hearing revealing that, on January 19, 2011, father was convicted of murdering the minors’
       mother and, at the time the report was prepared, father had not been sentenced. Additionally,
       the report included Ricker’s opinion that it was in the best interests of the minors to
       terminate father’s parental rights.
¶ 14       Ms. Ricker’s report further provided that the minors had initially been placed together
       in temporary foster care at the home of their godmother until August 2010, when father
       objected to that placement based upon the godmother’s extensive criminal history. The court
       agreed with father and ordered that the minors be placed in a more suitable foster home. At
       that time, S.D. was placed in a separate foster home, where he continued to reside. The two
       younger minors were placed in a temporary foster home for two days until finding a more
       permanent foster home, where they remained in placement, together, at the time of the
       unfitness hearing. According to the report, the minors had adjusted well to their current foster
       homes, which provided the minors with a safe and healthy environment, and all three minors
       had strong bonds with their foster parents. Additionally, their current foster parents were
       willing to adopt the minors if father’s rights were terminated. The report stated that the
       minors had not seen their father since the stabbing on January 19, 2010, nor did they have
       a bond with their father.
¶ 15       On February 16, 2011, the court held the best interests hearing and admitted Ricker’s
       written report. During the best interests hearing, father testified that he disagreed with the
       report. Father stated that he had a close bond with the minors and that it was not in their best
       interests to terminate his parental rights. He explained that, when he resided with the minors
       and their mother, he saw the minors consistently on a daily basis. Father said the minors
       show their affection for him by hugging and kissing him. Father stated that he played games


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       with the minors, read books to them, and attended school events with the oldest child. He
       said he also cooked for the minors, washed their clothing, and made sure they were properly
       bathed and dressed. Father testified that he disciplined the minors by giving them “timeouts”
       if they did not obey him. Father stated that he wanted the minors placed with family members
       rather than in a foster home.
¶ 16        Father then read a prepared statement to the court. Father said that he married the minors’
       mother in 2005 and they remained a family until October 9, 2009, when father and mother
       separated. They had been living in Miami, Florida, for a while. In October 2009, mother was
       diagnosed with schizophrenia and bipolar disorder and, according to father, mother’s attitude
       toward father changed. Father testified that mother started threatening father and used his
       criminal history and her own mental illness to manipulate the court system to get father in
       trouble.
¶ 17        Father stated that he was tried and convicted by the court system before his murder case
       actually went to trial. He shared similar concerns that the outcome of the juvenile proceeding
       was affected by statements made in the courtroom before his unfitness hearing began and
       when the juvenile judge was present. Father said he was wrongfully determined to be a
       depraved parent based on some outdated paperwork.2 Father stated he was innocent of first
       degree murder and, because of the current proceedings, if the court terminates his rights, the
       minors will have lost two parents instead of one, as well as all of their other family members.
       Father asked the court not to terminate his parental rights and to place the minors with his
       family members in Chicago.
¶ 18        Father testified that he, mother, and the minors all lived together in Miami from February
       29, 2009, through fall of 2009. After mother’s death, father said the minors were originally
       placed with the minors’ godmother, Karen, in the instant case and father did not agree with
       that placement because she had several criminal felony convictions.
¶ 19        At the close of the evidence and arguments at the best interests hearing, the court found
       that it was in the best interests of all three minors to terminate father’s parental rights, as well
       as any possible unknown father of S.D. The court then awarded DCFS the guardianship of
       the minors with the power to consent to adoption. Father filed a timely appeal.

¶ 20                                          ANALYSIS
¶ 21       On appeal, father claims that the trial court erred in denying the oral motion for recusal
       on February 3, 2011. Additionally, father argues that it was not in the best interests of the
       minors to terminate his parental rights. The State contends that the trial judge did not abuse
       his discretion when deciding not to recuse himself from the juvenile case and, further, that
       the court’s finding that it was in the best interests of the minors to terminate father’s parental
       rights was not against the manifest weight of the evidence.




               2
                Father does not challenge this finding on appeal.

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¶ 22                                    I. Recusal By the Court
¶ 23       Supreme Court Rule 63(C)(1)(a) imposes an ethical obligation on every judge to
       disqualify himself or herself in a proceeding when the court’s impartiality may be in
       question. Ill. S. Ct. R. 63(C) (eff. Apr. 16, 2007). The rule provides:
                “(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s
           impartiality might reasonably be questioned, including but not limited to instances
           where:
                    (a) the judge has a personal bias or prejudice concerning a party or a party’s
                lawyer, or personal knowledge of disputed evidentiary facts concerning the
                proceeding.” Ill. S. Ct. R. 63(C) (eff. Apr. 16, 2007).
¶ 24       The record reveals that father joined the prosecutor’s and the guardian ad litem’s motion
       for the court to recuse itself due the serious nature of termination of parental rights
       proceedings. We review a trial judge’s recusal decision using an abuse of discretion standard
       of review. Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 175 (2008); People v.
       Kliner, 185 Ill. 2d 81, 169 (1998).
¶ 25       Neither an oral nor a written motion to recuse is required to trigger a judge’s personal
       obligation to consider recusal as required by the Code of Judicial Conduct (Ill. S. Ct. R.
       63(A) (eff. Apr. 16, 2007)). Although attorneys may make the court aware of certain factors
       that could potentially require the trial judge to contemplate recusal, a party cannot compel
       a judge to step aside by “moving” for recusal.
¶ 26       If the parties are not satisfied with the court’s ruling on an informal request for recusal,
       the parties may then file a motion for substitution under section 2-1001(a)(3) of the Code of
       Civil Procedure with the required affidavits in order to compel substitution in certain
       situations. 735 ILCS 5/2-1001(a)(3) (West 2010); In re D.F., 201 Ill. 2d 476, 506 (2002).
       Here, the parties did not file a written motion for substitution following the court’s decision
       to deny the request to recuse; thus, the considerations applicable to a ruling on written
       motion to substitute are not applicable to the analysis in this case.
¶ 27       In the case at bar, the prosecutor stressed that, although the judge was on the bench
       during the conversation concerning father’s murder trial, the judge was not participating in
       this discussion that occurred off the record. After the parties brought this circumstance to the
       court’s attention, the trial judge carefully considered the concerns as raised by the parties.
       The judge assured both sides that the discussion between other individuals in his courtroom
       would have “no bearing on [his] mind and the matters that will be before [him].”
       Consequently, the court elected to conduct the hearing as scheduled.
¶ 28       The case law establishes that a trial judge is presumed to be impartial. Eychaner v. Gross,
       202 Ill. 2d 228, 280 (2002); In re Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991). The
       case law also provides that a judge, when he is the trier of fact, is presumed to have
       considered only admissible evidence before reaching a decision. People v. Naylor, 229 Ill.
       2d 584, 603 (2008).
¶ 29       On appeal, father does not challenge the court’s finding of unfitness as improper or state
       how the conversation, if overheard, affected the outcome of the best interests hearing.
       Instead, father summarily contends the court should have recused itself based on the judicial

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       canons.
¶ 30       After carefully reviewing this record, we conclude there is no indication that the judge
       determined father was unfit based on any information other than the certified copies of
       father’s previous criminal convictions offered for the court’s consideration. Based on this
       record, we conclude that the trial judge did not abuse his discretion by denying the oral
       motion to recuse himself from the proceedings.

¶ 31                                     II. Best Interests Hearing
¶ 32         Proceeding on a petition for termination of parental rights involves a two-step, bifurcated
       approach where the court first holds an “unfitness hearing” (705 ILCS 405/2-29 (West 2010);
       750 ILCS 50/1(D) (West 2010)) and, if the parent is found unfit, conducts a subsequent “best
       interests hearing” (705 ILCS 405/2-29(2) (West 2010)). In re D.T., 212 Ill. 2d 347, 352-53
       (2004). In the instant case, father does not challenge the court’s finding of unfitness at the
       termination hearing. Instead, father contends that the court erroneously found that it was in
       the best interests of the minors to terminate his parental rights and allow DCFS to place the
       minors for adoption.
¶ 33         After a finding of unfitness, the State must prove by a preponderance of the evidence that
       it is in the child’s best interests to terminate the parental rights. D.T., 212 Ill. 2d at 365. When
       reviewing a trial court’s best interests determination, this court applies the manifest weight
       of the evidence standard of review. In re R.L., 352 Ill. App. 3d 985, 1001 (2004); In re B.B.,
       386 Ill. App. 3d 686, 697 (2008). A trial court’s decision is against the manifest weight of
       the evidence if the facts clearly demonstrate that the court should have reached the opposite
       result. In re D.F., 201 Ill. 2d at 498; B.B., 386 Ill. App. 3d at 697-98.
¶ 34         During the best interests hearing, the parent’s interest in maintaining the parent-child
       relationship must yield to the child’s interest to live in a stable, permanent, loving home.
       D.T., 212 Ill. 2d at 364. When determining the best interests of a child for purposes of a
       termination petition, the court is required to consider a number of statutory factors “in the
       context of the child’s age and developmental needs.” 705 ILCS 405/1-3(4.05) (West 2010).
       These statutory factors include: (a) the physical safety and welfare of the child, including
       food, shelter, health, and clothing; (b) the development of the child’s identity; (c) the child’s
       background and ties, including familial, cultural, and religious; (d) the child’s sense of
       attachments including (i) where the child actually feels love, attachment, and a sense of being
       valued; (ii) the child’s sense of security; (iii) the child’s sense of familiarity; (iv) continuity
       of affection for the child; and (v) the least disruptive placement alternative for the child; (e)
       the child’s wishes and long-term goals; (f) the child’s community ties, including church,
       school, and friends; (g) the child’s need for permanence, which includes the child’s need for
       stability and continuity of relationships with parent figures and with siblings and other
       relatives; (h) the uniqueness of every family and child; (i) the risks attendant to entering and
       being in substitute care; and (j) the preferences of the persons available to care for the child.
       705 ILCS 405/1-3(4.05) (West 2010); B.B., 386 Ill. App. 3d at 698-99.
¶ 35         In the case at bar, the evidence showed that father’s unfitness finding of depravity was
       based upon several earlier convictions charging violent acts. Father does not challenge this

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       depravity finding, and many of these convictions show father’s propensity for violence
       relative to the minors’ safety and sense of security, which are factors in determining the
       minors’ bests interests. In addition, prior to the best interests hearing, father had also been
       convicted of the first degree murder charge which alleged that father killed the minors’
       mother by stabbing her several times in the presence of E.T. and others.
¶ 36       By the time the court held the best interests hearing on February 3, 2011, the minors had
       not seen father since their mother died on January 19, 2010. In spite of father’s testimony that
       he had a close bond with his children, the best interests report stated that the minors did not
       mention their father or have a bond with him. Instead, the report verified that all three minors
       had adjusted well to their current foster care placements and had strong bonds with their
       foster parents, and that the foster parents were willing to provide safe, healthy, and
       permanent homes for the minors if they were released for adoption.
¶ 37       Based on this information, the trial judge found that the State had established, by a
       preponderance of the evidence, that it was in the best interests of the minors to terminate
       father’s parental rights. After our careful review of the record, in light of the factors to be
       considered during a best interests hearing, we conclude the trial court’s finding regarding the
       children’s best interests was not against the manifest weight of the evidence.

¶ 38                                    CONCLUSION
¶ 39       For the foregoing reasons, we affirm the decision of the trial court terminating father’s
       parental rights.

¶ 40      Affirmed.




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