                                             2018 IL App (3d) 180218

                              Opinion filed September 13, 2018
     ____________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

     In re L.J.S.,                                      )
                                                        )      Appeal from the Circuit Court
             a Minor                                    )      of the 14th Judicial Circuit,
                                                        )      Rock Island County, Illinois.
     (The People of the State of Illinois,              )
                                                        )
             Petitioner-Appellee,                       )      Appeal No. 3-18-0218
                                                        )      Circuit No. 16-JA-25
             v. 	                                       )

                                                        )

     Richard S.,                                        )      The Honorable

                                                        )      Theodore G. Kutsunis, 

             Respondent-Appellant).	                    )      Judge, presiding.
                                                        )

     ____________________________________________________________________________

             JUSTICE McDADE delivered the judgment of the court, with opinion.
             Justices Holdridge and Schmidt concurred in the judgment and opinion.

     ____________________________________________________________________________

                                                   OPINION

¶1           L.J.S. was adjudicated abused and neglected based on allegations that respondent,

     Richard S., sexually abused her. Afterward, the State filed a petition to terminate parental rights,

     claiming that Richard was an unfit parent because (1) he was depraved, (2) he failed to make

     reasonable efforts to correct the conditions that were the basis for L.J.S.’s removal, and (3) he
     failed to make reasonable progress toward the return of L.J.S. It also claimed that it was in

     L.J.S.’s best interest to terminate Richard’s parental rights. The trial court found Richard unfit

     and, subsequently, terminated Richard’s parental rights. Richard appealed the unfitness ruling.

     We affirm.

¶2                                                  FACTS

¶3          The State filed a petition for adjudication of wardship, claiming that L.J.S., born August

     7, 2006, was neglected, abused, and dependent. The petition alleged that L.J.S.’s environment

     was injurious to her welfare because she was sexually abused by her father, Richard. Richard had

     been incarcerated in Rock Island County jail because he was charged with six counts of

     predatory sexual assault. L.J.S.’s mother, Dawn B., was not involved in L.J.S.’s life. The State

     also filed a petition for temporary custody.

¶4          In May 2016, Dawn stipulated to the allegations in the petition. In its adjudicatory order,

     the court granted the State’s petition, finding that, based on the stipulation, there were sufficient

     facts to find L.J.S. had been abused. In June 2016, a dispositional hearing was held. Richard was

     not present; however, his attorney made his first appearance at the hearing. After the hearing, the

     court entered a dispositional order, adjudicating L.J.S. abused and neglected. It also granted the

     Department of Children and Family Services (DCFS) placement and custody of L.J.S. and

     ordered that visitation was at the discretion of DCFS and the Center for Youth and Family

     Solutions (CYFS). It stated that a service plan was appropriate and that DCFS must “develop and

     implement a new service plan in conformity of this Order.”

¶5          In July 2016, the court entered a nunc pro tunc finding to support an adjudicatory order

     and a supplemental dispositional order, stating that, inter alia, Richard must (1) cooperate with

     services and service providers, (2) follow the “497 Client Service Plan” and sign necessary


                                                      2

     releases of information, (3) obtain and maintain appropriate housing and income, (4) participate

     in sex offender treatment, (5) complete integrated assessment, and (6) not have visitation with

     L.J.S. while he is incarcerated.

¶6           In December 2016, the first permanency review was held. The court found that Richard

     was not making reasonable efforts to correct the conditions that were the basis for L.J.S.’s

     removal and not making reasonable progress toward the return of L.J.S. The permanency order

     stated that the appropriate permanency goal was to return L.J.S. home within 12 months. A

     second permanency review was held in March 2017. Dawn submitted a final and irrevocable

     consent to adoption, and the trial court certified that her consent was knowing and voluntary. The

     court ruled that Richard was not making reasonable progress or reasonable efforts. In its written

     order, the court stated that the appropriate permanency goal was substitute care pending

     determination of termination of parental rights. During this time, Richard pled guilty to five

     counts of aggravated criminal sex abuse, four of which related to L.J.S., and was sentenced to

     five 48-month terms of probation, all to be served concurrently. As part of his probation

     conditions, Richard was prohibited from having contact with L.J.S. He was released from jail on

     December 2, 2017.

¶7           The State filed a supplemental petition to terminate parental rights. 1 The State alleged

     that Richard was an unfit parent because (1) he was depraved under section 1(D)(i) of the

     Adoption Act (750 ILCS 50/1(D)(i) (West 2016)); (2) he failed to make reasonable efforts to

     correct the conditions that were the basis for L.J.S.’s removal during the relevant nine-month

     period of June 23, 2016, through March 23, 2017, under section 1(D)(m)(i) of the Adoption Act

             1
              While the record refers to an original petition to terminate parental rights, we have not found
     such a petition in the record.



                                                          3

     (id. § 1(D)(m)(i)); and (3) he failed to make reasonable progress toward the return of L.J.S.

     during the relevant nine-month period of June 23, 2016, through March 23, 2017, under section

     1(D)(m)(ii) of the Adoption Act (id. § 1(D)(m)(ii)). The State asserted as factual support for its

     allegations that Richard (1) pled guilty to five counts of aggravated criminal sex abuse, (2) failed

     to maintain appropriate employment or income while he was incarcerated, (3) failed to complete

     an integrated assessment, and (4) failed to communicate with DCFS about his participation in

     sex offender treatment or other services. The State also pled that it was in the best interest of

     L.J.S. that Richard’s parental rights were terminated.

¶8          In August 2017, a parental fitness hearing was held. On direct examination, Kathie

     McAdams, caseworker for CYFS, testified that she had been L.J.S.’s caseworker for three

     months. She was not L.J.S.’s original caseworker but had been familiar with the earlier history of

     the case. When L.J.S. was adjudicated abused and neglected, Richard was incarcerated in Rock

     Island County jail awaiting charges for sexually abusing L.J.S. However, he was not in jail when

     McAdams was assigned to the case. While Richard was in jail, he was ordered to complete an

     integrated assessment. To her knowledge, Richard never attempted to coordinate and complete

     the integrated assessment or any other services. McAdams had no knowledge about the former

     caseworker’s communication, if any, with Richard about completing the assessment.

     McAdams’s first discussion with Richard about completing the assessment was on August 14,

     2017. On that day, Richard told her that he had started receiving services at the Robert Young

     Center (Robert Young) after he had been released from jail. She was not able to verify his

     statement, however, because he would not sign a release. She had made two prior attempts to

     speak with him after receiving his contact information from his father, who came to McAdams’s

     office and left her Richard’s number. However, she had not made any effort to contact him


                                                      4

       before August 2017, and Richard never contacted her or, to her knowledge, the former

       caseworker. Richard was prohibited from visitation with L.J.S. because there had been a no-

       contact order. McAdams testified that, because of the no-contact order, he was not a return home

       option for L.J.S. Richard was living in Moline and receiving supplemental security income (SSI).

       In order for him to become a possible placement option for L.J.S., he would have to complete

       parenting classes, sex abuse classes, and the no-contact order would need to be dismissed.

¶9            On cross-examination, McAdams stated that she had not told Richard that she was the

       new caseworker although it was common to do so. In order for Richard to complete the

       assessment he would have to coordinate with McAdams. Richard’s case file stated that he was

       mentally delayed, and he told McAdams that he was delayed and “had trouble understanding

       some things.” When she spoke with Richard on August 14, she asked him if he understood

       everything she told him and he did not seem confused. She took over the case at the end of May

       or beginning of June 2017. McAdams did not know if the former caseworker had been in contact

       with Richard or if she had made any attempt to coordinate the assessment with him. McAdams

       believed that Richard knew that CYFS was L.J.S.’s servicing agency because he would have

       received court documents from the agency through the jail or his attorney.

¶ 10          The court took judicial notice of L.J.S.’s birth certificate; a 13-page document detailing

       Richard’s five-count charge of aggravated criminal sexual abuse to which he pled guilty; an

       amended order of protection; and a February 28, 2017, permanency hearing report. In the

       permanency report, Lela Donaldson, the former caseworker, stated that she had been unable to

       communicate with Richard while he was in jail “per his attorney.” As a condition of his

       probation, Richard was ordered to complete sex offender treatment. He did not cooperate with

       CYFS to participate in services or inform the agency of the services he was participating in.


                                                       5

       Donaldson also stated that CYFS could not pursue reunification because the no-contact order

       prohibited Richard from having any contact with L.J.S. The agency planned to seek termination

       of parental rights. Richard submitted into evidence an updated criminal docket “as proof that

       [Richard] has put his past conduct behind him. There’s no further evidence of any criminality

       from him.”

¶ 11          On direct examination, Richard testified that he had been living in Moline, Illinois, for a

       month. He had previously lived by himself in Silvis, Illinois. He had been incarcerated for about

       10 months in 2016 and was currently on probation for four years. He had not been in trouble

       since he was released from jail. While in jail, Richard was unable to attend parenting classes and

       sex offender treatment because the jail did not offer it. He got out of jail in December 2016 and

       started sex offender treatment in January 2017. He also had been seeing a doctor at the Robert

       Young for a “couple months now.” He never had a job and his highest level of education was

       high school. He was currently on SSI because “I can’t read and write that good.” He understood

       that he had to complete sex offender treatment, but he did not know who to contact. The

       treatment was a two-year program. When he got out of jail, he did not know who his caseworker

       was. He was planning to appeal his criminal case.

¶ 12          On cross-examination, Richard explained that he did not contact CYFS because “I didn’t

       think it would be—I didn’t think I would have to do that.” He believed he would get his daughter

       back by doing things his attorney told him. Aside from the sex offender treatment and seeking

       psychiatric care at Robert Young, Richard did not attempt to participate in other services. He

       acknowledged that he did not sign a release to allow CYFS to review his treatment because “I

       didn’t think it’s necessary.” He never missed a sex offender class. He believed that he would get




                                                       6

       L.J.S. back by completing sex offender treatment, seeing his doctor, and completing other

       classes. He was willing to complete other classes he might later be assigned if necessary.

¶ 13          The court requested that both parties submit written arguments with supporting

       precedent. Based on In re S.H., 284 Ill. App. 3d 392 (1996), the court determined that the four

       counts of criminal sexual abuse related to L.J.S., of which Richard was convicted, constituted

       four separate acts sufficient to support a presumption of depravity. Next, the court stated that

       “The burden shifted then to the respondent father to prove to this court by clear and convincing

       evidence that he was not depraved.” It held that Richard did not overcome the presumption of

       depravity and, thus, found him unfit. It further ruled that there was sufficient evidence to show

       that Richard did not make reasonable efforts to correct the conditions that were the basis for

       L.J.S.’s removal and did not make reasonable progress toward the return of L.J.S. The court

       explained:

                             “As to the allegation of lack of effort—reasonable effort—

                      the court report filed by the former caseworker on February 28,

                      2017, clearly indicated that [Richard] had not communicated with

                      the caseworker during his incarceration. He did not engage in any

                      services, to that worker’s knowledge, including sex offender

                      treatment as ordered in the felony case for criminal sexual abuse

                      charges, as indicated above. The caseworker also testified that she

                      had not heard from [Richard] until shortly before the fitness

                      hearing. She further testified that [Richard] had not engaged in any

                      services that she was aware of, except for [Richard’s] self report

                      that he had begun sex offender treatment. When questioned about


                                                       7

why he had not engaged in services or communications with the

caseworker, [Richard] stated that he did not think he needed to

communicate with the worker or provide verification for any of the

services he was engaged in. When further questioned as to why he

thought [Richard] could provide no answer other than to restate his

belief. [Richard] clearly knew the expectations of the agency and

frankly of this court and he constantly appeared in court while in

custody and thereafter and had been repeatedly admonished by this

court to cooperate with the Department of Children and Family

Services, the designated agency with—and with the services

contained in the service plan.

       So, therefore, the court believes that the State has proven

by clear and convincing evidence that the father failed to make

reasonable efforts during the applicable time periods of June 23,

2016 to March 23, 2017.

       As to the allegation of lack of reasonable progress towards

the return of the child, the former caseworker’s report and the

testimony provided by the case worker clearly demonstrated that

[Richard], in all reality, was and is unable to make that progress.

Certainly [Richard] could have made no reasonable progress

towards returning the child to his care while he was incarcerated.

Post incarceration [Richard] is serving 48 months’ probation which

commenced December 2, 2016. Paragraph 12 of that probation


                                 8

                        order specifically prohibits [Richard] from having contact with the

                        minor. Because of these impediments which this court believes are

                        of the making of the father himself, the court is of the opinion that

                        the State has proven, again for the same time period, that [Richard]

                        failed to make reasonable progress toward the return of the child.

                        Therefore, my ruling is today that the State has proven its case and

                        that [Richard] is deemed unfit by this court as supported by clear

                        and convincing evidence on the record.”

¶ 14           In April 2018, a best interest hearing was held. The court found that it was in L.J.S.’s best

       interest to terminate Richard’s parental rights. Richard filed a notice of appeal on April 18, and

       the court entered its written order on April 27. 2 Richard only appealed the unfitness ruling.

¶ 15                                                  ANALYSIS

¶ 16           First, Richard argues that the trial court erred when it determined he was unfit based on

       depravity because (1) the State’s evidence only showed that petitioner had one conviction;

       (2) the trial court erred when it determined that petitioner had to rebut the presumption of

       depravity by clear and convincing evidence; (3) even if the State met the presumption, it was

       rebutted because (a) he had no criminal history since his release from jail and (b) he was

       currently enrolled in sex offender classes and receiving psychiatric care at Robert Young.

¶ 17           Section 1(D) provides the grounds on which the trial court may find a parent unfit. 750

       ILCS 50/1(D) (West 2016). One ground is that the parent is depraved. Id. § 1(D)(i). Section

       1(D)(i) states, in relevant part:


               2
                 This court has jurisdiction to hear this case. See Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017) (“A
       notice of appeal filed after the court announces a decision, but before the entry of the judgment or order,
       is treated as filed on the date of and after the entry of the judgment or order.”).
                                                             9

                              “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.” Id.

¶ 18          In Illinois, the term “depravity” means “ ‘an inherent deficiency of moral sense and

       rectitude.’ ” In re A.M., 358 Ill. App. 3d 247, 253 (2005) (quoting Stalder v. Stone, 412 Ill. 488,

       498 (1952)). The State shows depravity by establishing that respondent has a “ ‘deficiency’ in

       moral sense and either an inability or an unwillingness to conform to accepted morality.”

       (Internal quotation marks omitted.) Id. (quoting In re J.A., 316 Ill. App. 3d 553, 561 (2000)).

       “Where the presumption of depravity is rebuttable, the ‘parent is still able to present evidence

       showing that, despite his convictions, he is not depraved.’ ” Id. (quoting J.A., 316 Ill. App. 3d at

       562). If respondent presents evidence contradicting the presumption, the presumption is removed

       and the issue is determined based on the evidence presented. J.A., 316 Ill. App. 3d at 562. The

       burden of proving by clear and convincing evidence that the respondent is depraved remains with

       the State. A.M., 358 Ill. App. 3d at 254. The trial court’s determination that a parent is unfit will

       not be reversed unless it is against the manifest weight of the evidence. In re Gwynne P., 215 Ill.

       2d 340, 354 (2005).

¶ 19          The parties dispute whether the State had proven Richard had at least three felony

       convictions in accordance with section 1(D)(i). Specifically, Richard claims that the four counts

       of aggravated sexual abuse were a part of one guilty plea that resulted in one conviction, and the

       State alleges that each count constituted a separate conviction. The trial court determined that,


                                                        10 

       under S.H., the counts against Richard constituted four separate convictions. In S.H., the State

       filed a petition for termination of parental rights against respondent on the basis of depravity.

       S.H., 284 Ill. App. 3d at 393. At the hearing on the petition, the State’s only evidence was

       respondent’s conviction of two counts of aggravated criminal sexual assault and the trial court

       held that the State presented a prima facie case that respondent was depraved. Id. at 394-95.

       Affirming the trial court’s decision, the Fourth District determined that “a parent who commits

       [sexual] acts like these upon his or her own child is subject to being found unfit due to depravity

       based solely upon that conduct.” (Emphasis omitted.) Id. at 400.

¶ 20          We find S.H. distinguishable from this case. The court in S.H. relied on a prior version of

       section 1(D)(i) that only required a showing of depravity. The prior version stated:

                              “D. ‘Unfit person’ means any person whom the court shall

                      find to be unfit to have a child, without regard to the likelihood that

                      the child will be placed for adoption. The grounds of unfitness are

                      any one or more of the following:

                                                        ***

                                      (i) Depravity.” 750 ILCS 50/1(D)(i) (West 1996).

       The current version of section 1(D)(i) that this court must rely on mandates, in relevant part, that

       a rebuttable presumption is only established if the State proves the respondent was convicted of

       at least three felonies within five years of the filing of the termination petition. Therefore, we

       decline to follow the trial court’s reasoning.

¶ 21          However, we can affirm the trial court’s decision on any basis in the record (People v.

       Campos, 349 Ill. App. 3d 172, 177 (2004)), and we believe the record shows that Richard had at

       least five felony convictions within five years of the filing of the State’s petition. A criminal


                                                         11 

       history data sheet appearing in the record of exhibits shows there were five separate charges for

       aggravated criminal sex abuse (Class 2 felony), Richard pled guilty to each charge in December

       2016, and he was placed on probation for each charge to be served concurrently. Therefore, we

       find that the State successfully raised the statutory rebuttable presumption that Richard was

       depraved.

¶ 22          Both parties acknowledge that the trial court erred at the next step when it required

       Richard to rebut the presumption by proving by clear and convincing evidence that he was not

       depraved. We agree that this was error. This court has determined that, under section 1(D)(i), a

       respondent need only provide some contrary evidence to rebut the presumption. See In re P.J.,

       2018 IL App (3d) 170539, ¶ 14. Richard tendered some evidence of rehabilitation, rebutting the

       presumption and requiring the State to prove depravity by clear and convincing evidence. The

       trial court did not require the State to meet that burden. The application of the appropriate

       standard of proof is fundamental for persons facing involuntary termination of their parental

       rights. Id. ¶ 15. Thus, we find the State has failed to prove that depravity is a proper basis for

       unfitness in this case. The State has, however, raised three bases for finding Richard unfit. Proof

       of any one of those grounds is sufficient to support a finding of unfitness. In re C.W., 199 Ill. 2d

       198, 210 (2002). We, therefore, consider the State’s next contention—that Richard failed to

       make reasonable efforts to correct the conditions that were the basis for L.J.S.’s removal under

       section 1(D)(m)(i).

¶ 23          Richard counters that the trial court erred when it found him unfit on that basis.

       Specifically, Richard alleges that he made reasonable efforts because (1) he began sex offender

       treatment in January 2017, (2) he began seeing a doctor at Robert Young, (3) he had not been in




                                                       12 

       trouble since his release from jail in December 2016, and (4) he was attending all his sex

       offender treatment classes.

¶ 24          Section 1(D)(m)(i) states that a court may enter a finding of unfitness if a parent fails to

       “make reasonable efforts to correct the conditions that were the basis for the removal of the child

       from the parent during any 9-month period following the adjudication of neglected or abused

       minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under Section 2-4

       of that Act.” 750 ILCS 50/1(D)(m)(i) (West 2016). “Reasonable efforts relate to the goal of

       correcting the conditions that caused the removal of the child from the parent [citation], and are

       judged by a subjective standard based upon the amount of effort that is reasonable for a

       particular person.” In re Daphnie E., 368 Ill. App. 3d 1052, 1066-67 (2006). The reviewing court

       must determine whether the parent has made “earnest and conscientious” strides toward

       correcting the conditions that led to the removal of the minor. In re B.S., 317 Ill. App. 3d 650,

       658 (2000), overruled on other grounds by In re R.C., 195 Ill. 2d 291 (2001). “Parental

       deficiencies collateral to the conditions that were the basis for the child’s removal, even if

       serious enough to prevent the return of the child, are outside the scope of this inquiry and are

       therefore not relevant.” In re C.M., 305 Ill. App. 3d 154, 164 (1999).

¶ 25          The evidence reveals that Richard failed to make reasonable efforts to correct the

       conditions that were the basis for L.J.S.’s removal. The February 28, 2017, report shows that

       Richard did not communicate with CFYS while he was in jail. The report also stated that Richard

       had not cooperated with CFYS to participate in services. Although Richard testified that he had

       participated in sex offender treatment, the trial court relied on McAdams’s testimony that, to her

       knowledge, defendant did not engage in any services because Richard refused to sign any

       releases to allow her to verify his participation. In re T.D., 268 Ill. App. 3d 239, 245 (1994)


                                                       13 

       (“Reviewing courts accord the trial court’s findings great deference in recognition of its unique

       ability to assess the credibility of witnesses.”). The trial court reasonably inferred that Richard’s

       statement that he did not think he needed to communicate with the caseworker and his refusal to

       sign releases indicated his defiance of his obligation to comply with the service plan. See id.

       Despite Richard’s testimony that he lived by himself in Silvis and, later, in Moline after he was

       released from prison and that he was receiving SSI, there is also no evidence that the housing or

       income were “appropriate” or that any servicing agency was notified about this information.

       There is similarly no evidence that he completed his integrated assessment during the relevant

       nine-month period. Thus, we find that the trial court’s ruling that Richard failed to make

       reasonable efforts during the applicable period was not against the manifest weight of the

       evidence. Because that finding is adequate basis for the court’s determination that Richard was

       unfit, there is no need to address whether Richard made reasonable progress toward the return of

       L.J.S. See In re C.W., 199 Ill. 2d at 210.

¶ 26                                                CONCLUSION

¶ 27          The judgment of the circuit court of Will County is affirmed.

¶ 28          Affirmed.




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