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FOURTH DIVISION
July 18, 2005

1-05-0521

JUSTICE THEIS delivered the opinion of the court:

Following an adjudicatory hearing, the circuit court found respondent, D.H., to be an unfit parent because he was depraved and his repeated incarceration prevented him from discharging his parental responsibilities. 750 ILCS 50/1(D)(i), (D)(s) (West 2004). Following a subsequent best interest hearing, the court terminated respondent's parental rights. Respondent now appeals, contending that (1) the circuit court's finding of unfitness was against the manifest weight of the evidence; (2) his due process right to a fair trial was denied, his ability to assist his lawyer was hampered, and the dignity of the judicial process was offended when he remained shackled during the adjudicatory hearing; and (3) his due process rights were denied when the circuit court misconstrued section 1-5 of the Juvenile Court Act of 1987 (705 ILCS 405/1-5 (West 2004)) and permitted the attorney and guardian ad litem for the minor, A.H., to intervene at the end of the State's case-in-chief and present its own case against him.⁽¹⁾ For the following reasons, we affirm.

The State has filed a motion to strike portions of respondent's opening brief, which we have taken with the case. Therein, the State contends that respondent improperly relies upon facts not contained in the record in making his argument regarding the shackling issue. Specifically, respondent relies upon the fact that he remained shackled during the adjudicatory hearing, even though the record does not indicate whether the shackles were removed after he objected to their use. For the reasons set forth below in our discussion of the shackling issue, we do not find this factual discrepancy to be dispositive of the issue. Therefore, to the extent that respondent relies upon facts not of record, we will disregard those portions of his argument. See People v. Haas, 100 Ill. App. 3d 1143, 1149, 427 N.E.2d 853, 857-58 (1981).

The record discloses that respondent's son, A.H., was born on February 28, 1996. On February 1, 1999, A.H., along with seven of his siblings, were found by Chicago police living in a squalid apartment. The apartment had no furniture, kitchen, bathroom, or food, and was filled with garbage, rodents, and feces. The Department of Children and Family Services (DCFS) accordingly took A.H. and his siblings into protective custody the same day. A.H. was subsequently adjudicated a ward of the court on June 14, 2000.

At the time in question, respondent was serving an eight-year sentence for aggravated criminal sexual assault resulting in great bodily harm. 720 ILCS 5/12-14 (West 1998). Respondent had been charged with 18 counts of aggravated criminal sexual assault, as well as aggravated kidnaping and aggravated battery, based on allegations that on August 3, 1998, he threatened the life of a woman with a piece of broken glass, inserted a piece of wood into her vagina, and had oral and vaginal intercourse with her, resulting in contusions and abrasions to the woman's neck, face, and body. On February 5, 1999, respondent pled of guilty to count VII of this indictment, which alleged that he "committed an act of sexual penetration upon [A.B.], to wit: contact between [D.H.'s] penis and [A.B.'s] vagina by the use of force or threat of force and caused bodily harm to [A.B.], to wit: contusions and abrasions about the neck, face and body." The other counts of the indictment were dismissed. Respondent had previously served a five-year term of imprisonment for four cocaine trafficking convictions dating back to 1990. Ill. Rev. Stat. 1989, ch. 56