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THIRD DIVISION
October 15, 2003

JUSTICE SOUTH delivered the opinion of the court:

Following a hearing, the circuit court found respondent,Herman O., to be an unfit parent and unable to care for his son,Travarius O., based on his depraved behavior and his repeatedincarcerations. At a subsequent hearing, the court held it wasin the best interest of the child to terminate respondent'sparental rights and to appoint a guardian with the right toconsent to adoption. Respondent contends on appeal: (1) that thecircuit court abused its discretion by failing to appointrespondent an attorney to represent him during the hearings; (2)that the court's finding of unfitness was against the manifestweight of the evidence; and (3) that the court's finding that itwas in the minor's best interest to terminate respondent'sparental rights was against the manifest weight of the evidence. We affirm.

Travarius was born May 3, 1997, and tested positive forexposure to cocaine and heroin. A finding of neglect was enteredJuly 29, 1997. Respondent and the child's mother, Tracy H., whois not a party to this appeal, were found to be unable, for somereason other than financial circumstances alone, and to beunwilling to care for, protect, train, or discipline Travarius. On the same date, the child was adjudicated a ward of the courtand placed under the guardianship of the Department of Childrenand Family Services (DCFS).

The State filed petitions on August 2, 1999, and onSeptember 6, 2000, for termination of parental rights andappointment of a guardian with the right to consent to adoption. The petitions alleged respondent was an unfit parent because hebehaved in a depraved manner; because he was incarcerated as aresult of a conviction and the incarceration would prevent himfrom discharging his parental responsibilities in excess of twoyears after the filing of the petitions; and because respondent'srepeated incarcerations had prevented him from discharging hisparental responsibility in violation of subsections 1(D)(i),1(D)(r), and 1(D)(s) of the Adoption Act. 750 ILCS 50/1(D)(i),(D)(r), (D)(s) (West 2002).

Respondent appeared in court on September 17, 1999, on whichdate attorney Paul Katz was appointed to represent him incontesting the State's petitions. During an April 2000 discoveryhearing, respondent indicated to the circuit court that he nolonger wished Katz to represent him. Katz asked leave towithdraw, which the court granted. The trial judge admonishedrespondent, "This is the one and only time. If you don't likethe attorney that you're gonna [sic] speak to today, you couldhire your own lawyer to represent you." The judge thereafterappointed attorney Charles Aron to represent respondent.

During a July 2000 status hearing, Aron addressed the courtand stated that he could not proceed in representing respondentwithout violating the Canons of Ethics. The trial judge againwarned respondent, "[Y]ou can't keep picking lawyers untilsomebody decides to go along with what you want to do." Thejudge explained to respondent that his attorneys could not bemade to make statements in open court that the attorneys did notbelieve were true. Aron asked respondent permission to disclosethe contents of their conversations with the judge. Respondentdeclined. The judge stated that she would not appoint anotherattorney and that respondent would have to represent himself. The judge granted Aron leave to withdraw. Respondent indicatedthat he would not participate in discovery or the terminationhearing without representation.

At the intended close of discovery in August 2000, the trialjudge offered to appoint respondent new counsel but would notappoint any further attorneys if new counsel subsequently movedto withdraw. She stated, "You have fair warning that this is thethird and final lawyer that is going to be appointed." Thereafter, the court appointed attorney Larry Necheles torepresent respondent.

At a case management conference in March 2001, respondentstated that he did not wish Necheles to represent him. The judgerepeated her warning from the prior hearing that she wasunwilling to appoint respondent any new counsel were Necheles towithdraw. Respondent again stated that he would not proceed withNecheles as counsel. The court vacated Necheles's appointmentand advised respondent that he would have to proceed pro se.

At the trial on the termination petition, respondentindicated to the court that he was unaware of what was takingplace because his appointed attorneys had not apprised him of theproceedings. The trial judge stated that Necheles was present incourt and offered to reappoint him to assist respondent. Respondent declined and the court proceeded to trial. The courttook judicial notice of the July 1997 adjudications as to neglectand guardianship as well as certified copies of respondent'sApril 1997 burglary conviction, for which he was sentenced to 10years in prison; respondent's January 1993 burglary conviction,for which he was sentenced to 6 years; and respondent's 1991conviction of unlawful use of a weapon by a felon, for which hewas sentenced to 2 years.

The State called respondent as a witness, but respondentrefused to take the stand and to be sworn. He eventually agreedto be sworn in, but refused to answer any questions from theassistant State's Attorney or the public guardian. When asked tostate his name for the record, respondent declared that he wasinvoking his fifth amendment right against self-incrimination andrefused to answer. The trial judge advised respondent, severaltimes, that she would treat his refusal to answer any questionsas an admission.

By asking questions that respondent refused to answer, theassistant State's Attorney elicited the following facts: thatrespondent was the natural father of Travarius O.; thatrespondent was presently incarcerated; that respondent wasconvicted of burglary in April 1997 and sentenced to 10 years'imprisonment, and that he was still incarcerated on that count;that respondent was taken into custody for that offense onNovember 16, 1996; that respondent had been incarcerated sincebefore Travarius' birth; that respondent was convicted ofburglary in January 1986 and sentenced to five years; thatrespondent was convicted of aggravated battery in September 1982and sentenced to five years; that respondent was convicted ofrobbery in August 1982 and sentenced to five years; thatrespondent was convicted of burglary in November 1992 andsentenced to six years; that respondent was convicted of burglaryin January 1993 and sentenced to six years; that respondent wasconvicted of unlawful use of a weapon by a felon in May 1991 andsentenced to two years; that respondent was incarcerated onAugust 2, 1999, the date that the State filed its petition toterminate respondent's parental rights; and that respondent wouldnot be released until November 2001.

The State then called Yolanda Dunmars, a social worker forChicago Associates for Retarded Citizens (CARC), who was assignedto Travarius O.'s case. Dunmars testified that she had begunservice for Travarius and his older sister, Sashiana H. (who hasthe same mother but a different father), in March 1998 and thatshe had offered Travarius' natural mother, Tracy H., assistancein obtaining drug treatment services, parenting classes, andcounseling. The mother indicated an interest in obtainingservices, but Dunmars lost contact with her in October 1998. InMarch 1999, Dunmars sent the mother a letter informing her thather children's cases were progressing toward termination of herparental rights. Dunmars received no response to the letter.

On cross-examination, Dunmars stated that Travarius' motherhad submitted to seven compulsory urine drops and had failed toappear for three others. One of the performed drops testedpositive for narcotics, but Dunmars was unaware of the date thatthe drop took place and whether it was performed before or afterthe mother had completed a drug treatment program. Respondentdid not ask Dunmars any questions.

The State and the public guardian then rested as to theunfitness portion of the trial. Respondent presented noevidence. The circuit court found that the State had proven theallegations in its petitions by clear and convincing evidence andthat Tracy H., respondent, and Sashiana's natural father wereunfit to care for their respective minor children. The courtentered an order terminating respondent's parental rights basedon his depraved behavior and repeated and ongoing incarceration.

The court then proceeded to a hearing to determine the bestinterests of Travarius and his sister. The State called Dunmars,who testified that the children had been placed in foster carewith nonrelatives when she was assigned to their case in March1998. The children were removed to preadoptive placement withnonrelatives in August 1998 and remained there at the time of thehearing. The foster parents with whom the children were placedwere married and willing to adopt both children. The childrenhad bonded with their foster family and there had been no unusualincidents while the children were in their care. Dunmarsbelieved that the current placement was safe and appropriate. Travarius and Sashiana had bonded with the foster parents' grownbiological children and their two other foster children. Thefoster parents took the children to church every week along withtheir biological children. The foster mother was a beauticianand worked in her home, and the foster father stayed home onmedical leave.

Dunmars had considered placing the children with relatives. Sashiana's maternal aunt initially expressed interest in caringfor her but failed to follow up on any of Dunmars'recommendations. Dunmars had considered placing Travarius withrespondent's mother, who indicated to Dunmars that she alreadyhad several children in her care at that time but would considercaring for Travarius. Respondent's mother made no furthercontact with Dunmars and both children remained in their currentplacement.

Dunmars believed that it was in the children's bestinterests to terminate the parental rights of their biologicalparents, that the children be free for adoption, and that thecurrent foster parents adopt the children.

Respondent asked Dunmars why Travarius could not be placedwith his paternal grandmother unless she also cared for Sashiana. Dunmars responded that she felt it was in the children's bestinterests that they stay together and not be separated. TheState and public guardian rested, and respondent presented noevidence.

The trial court ruled that the termination of respondent'sparental rights was in Travarius' best interests. The courtstated that DCFS had determined that Travarius should remain withhis sister no matter where they were placed, that the fosterparents had been acting in the children's best interest, and thatit was in the children's best interest that they remain in thefoster parents' care. The court then appointed a guardian withthe right to consent to the children's adoption and set apermanency goal of adoption.

On appeal, respondent initially contends that his dueprocess right to counsel was violated when the circuit courtrefused to appoint him new counsel after Necheles' appointmentwas vacated.

Under the Adoption Act, an indigent parent is entitled tocourt-appointed counsel for proceedings pursuant to a petitionfor termination of parental rights. 705 ILCS 405/1-5 (West2002); In re Adoption of Sotelo, 130 Ill. App. 3d 398, 400(1985). However, the Supreme Court has held that an indigentparent does not necessarily have a due process right to court-appointed counsel in a termination proceeding brought by theState. Lassiter v. Department of Social Services, 452 U.S. 18,68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981). In Illinois, courtsanalyze the possible deprivation of a parent's due process rightsin termination and adoption proceedings by balancing the factorsenunciated by the Court in Mathews v. Eldridge, 424 U.S. 319, 47L. Ed. 2d 18, 96 S. Ct. 893 (1976). See In re D.T., 338 Ill.App. 3d 133, 151-52 (2003). The Mathews factors are: (1) theprivate interests affected by the State's action; (2) the risk ofan erroneous deprivation of the parent's interest through theprocedures used and the probable value of additional safeguards;and (3) the State's interest, including the function involved andthe fiscal and administrative burdens that the additionalsafeguards would entail. Mathews, 424 U.S. at 335, 41 L. Ed. 2dat 33, 96 S. Ct. at 903.

Here, the first factor is respondent's interest in thecustody, care, and control of his child and in maintaining aparental relationship with him. This is a fundamental interestwhich courts will not extinguish lightly. In re M.H., 196 Ill.2d 356, 365 (2001). Of equal import is Travarius' interest in astable and safe home environment and in maintaining arelationship with his foster parents. In re D.T., 338 Ill. App.3d at 152. Considering respondent's repeated and continuousincarcerations and the effect they have had and are likely tohave on his ability to care for Travarius, we find that thisfirst factor weighs against respondent.

Under the second factor, we must balance the rights of thechild versus the rights of respondent to determine who shouldshoulder the risk of error at the termination and best interesthearings. In re D.T., 338 Ill. App. 3d at 153. In this case,while the risk of an erroneous deprivation of respondent'sparental rights and his right to counsel is a serious one, thetrial court made every possible effort to protect respondent'sright to counsel and to ensure a full and fair adjudication ofrespondent's parental rights.

The court appointed attorney Katz at the outset of theproceedings. A few months later, Katz withdrew becauserespondent no longer wished Katz to represent him. The courtappointed a new attorney, Aron, and granted a continuance toallow Aron to prepare the case. Aron subsequently withdrewbecause he believed he could not proceed without violating rulesof attorney ethics. The trial judge initially refused to appointnew counsel, but relented at the next hearing and appointedNecheles. After the case was continued again, respondent refusedto proceed with Necheles as counsel, whose appointment the courtthen vacated.

Neither the statute nor judicial precedents specify how manytimes a trial court must appoint counsel in the event thatcounsel withdraws or an indigent parent no longer desires theirparticular services. While we judge that three appointmentssuffice in this case, other circumstances may call for adifferent measure. Moreover, we see no other additionalsafeguards that the trial court could have provided other thanagain appointing new counsel, and given respondent's failure tocooperate with three separate attorneys, we see no value inrepeating the measure on a fourth occasion.

Under the third Mathews factor, we consider the State'sinterest in preserving and promoting the welfare of the child andits interest in reducing the cost and burden of terminationproceedings. In re D.T., 338 Ill. App. 3d at 153. The State'sinterest in Travarius' welfare is obvious. Furthermore,respondent was twice granted new counsel and twice grantedcontinuances in order to allow the new attorneys to prepare thecase, prolonging the proceedings by several months. Moreover,the trial court granted each of appointed counsel's petitions forattorney fees incurred in representing respondent. Appointingrespondent new counsel for yet a third time would have prolongedthe case even further and would have been an additional drain onthe state treasury, which would have had to reimburse a fourthlawyer for simply repeating the work of three others.

Respondent correctly cites the rule that parties intermination proceedings are entitled to effective assistance ofcounsel to the same degree as are criminal defendants underStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984). In re R.G., 165 Ill. App. 3d 112, 127 (1988). He also relies on our supreme court's comment in In re Adoptionof K.L.P., 198 Ill. 2d 448, 461 (2002), that "the legislature haschosen to guarantee the assistance of counsel to indigent parentsrather than requiring courts to engage in the case-by-casedetermination permitted under Lassiter."

However, respondent concedes that he is not entitled to thecounsel of his choosing. Furthermore, the trial judge made everyreasonable effort to guarantee respondent his right to counsel,and, we believe, was generous in appointing additional counselwhen his original attorney withdrew. Finally, respondent offersno argument as to how or why his apparent lack of effectiverepresentation prejudiced him, as is required under Strickland. People v. Caballero, 126 Ill. 2d 248, 259-60 (1989).

For the reasons stated above, we find that each of theMathews factors weighs against respondent and that the circuitcourt thus did not abuse its discretion by failing to appoint himnew counsel on a fourth occasion.

Respondent next contends that the circuit court's findingsthat he was unfit because he had behaved in a depraved manner andbecause his current and repeated incarceration would prevent himfrom discharging his parental responsibilities were against themanifest weight of the evidence.

In termination proceedings, the State must prove by clearand convincing evidence that a respondent is an unfit parent. Inre J.B., 198 Ill. App. 3d 495 (1990). We will not reverse acircuit court's finding of unfitness unless the decision toterminate parental rights is against the manifest weight of theevidence. In re J.B., 198 Ill. App. 3d at 497. Such a decisionis against the manifest weight of the evidence where the oppositeresult is clearly evident from the record. In re A.J., 269 Ill.App. 3d 824, 828 (1994).

Section 1(D)(i) of the Adoption Act provides that a parentcan be found unfit based on a showing of depravity. 750 ILCS50/1(D)(i) (West 2002). There is a rebuttable presumption that aparent is depraved if he has been criminally convicted of atleast three felonies and at least one of the convictions occurredwithin five years of the filing of the State's petition seekingtermination of parental rights. 750 ILCS 50/1(D)(i) (West 2002). Certified copies of conviction create a prima facie showing ofdepravity, which shifts the burden to the parent to show by clearand convincing evidence that he is in fact not depraved. In reJ.A., 316 Ill. App. 3d 553, 562 (2000).

Respondent argues that his past convictions are notsufficient to prove he has behaved in a depraved manner and thathis attendance at the termination proceedings showed concern forTravarius' welfare. He relies on our holding in In re Sanders,77 Ill. App. 3d 78 (1979), that a parent's history of criminalconvictions, standing alone, is not sufficient to establishdepravity. However, Sanders was decided before the enactment ofsubsection 1(D)(i) and has since been superseded by the statute. See In re T.S., 312 Ill. App. 3d 875, 878 (2000).

Here, the State presented evidence of at least seven ofrespondent's felony convictions, the most recent occurring withinfive years of the date that the State's petition was filed, thusestablishing a rebuttable presumption of respondent's depravity. Respondent presented no evidence in rebuttal and left the trialcourt with nothing to consider in his favor. Therefore, thetrial court's finding that respondent was unfit because ofdepravity was not against the manifest weight of the evidence.

Respondent further contends that the trial court's findingsthat he was unfit because his present and repeated incarcerationwould prevent him from discharging his parental responsibilitieswere against the manifest weight of the evidence. Because theState is only required to establish the existence of onestatutory ground of unfitness, and did so by clear and convincingevidence that respondent behaved in a depraved manner, we neednot reach these allegations. In re D.D., 196 Ill. 2d 405, 417(2001).

Respondent lastly contends that the circuit court's findingthat it was in Travarius' best interest to terminate respondent'sparental rights was against the manifest weight of the evidence.

Where the trial court finds a parent unfit by clear andconvincing evidence, the parent's rights may be terminated underthe Juvenile Court Act if the court finds that termination is inthe best interests of the child. 705 ILCS 405/2-29(2) (West2002). Once a finding of parental unfitness has been made, allconsiderations yield to the best interests of the child. In reG.L., 329 Ill. App. 3d 18, 24 (2002). In determining the child'sbest interests, the court is to consider a number of factors inthe context of the child's age and developmental needs. 705405/1-3(4.05) (West 2002). Among the factors to be consideredare the child's physical safety, welfare, sense of attachments,community ties, need for permanence and continuity inrelationships with parent figures and siblings, and thepreferences of the persons available to care for the child. 705405/1-3(4.05) The decision of whether termination of parentalrights is in the best interests of the child is within the sounddiscretion of the trial court, and that determination will not bedisturbed unless it was contrary to the manifest weight of theevidence or the trial court otherwise abused its discretion. Inre G.L., 329 Ill. App. 3d at 25.

Respondent argues that it was not in Travarius' bestinterests to deny him the opportunity of knowing his father andthat respondent may have been capable of caring for Travariusupon his release in November 2001 had DCFS provided services torespondent and prepared him to care for the child. Respondentignores the factors enunciated by the trial judge in reaching herdecision, specifically, DCFS's determination that Travarius andhis sister ought to be placed together, that Travarius had bondedwith his foster family and established ties with their churchcommunity, and that his foster parents wished to adopt him. Itwas well within the trial court's discretion to consider thesefactors as well as respondent's desire that the child have arelationship with his father and respondent's potentialrehabilitation in determining Travarius' best interests. Uponconsideration of those factors, the court properly exercised itsdiscretion in terminating respondent's parental rights andappointing a guardian with the right to consent to adoption.

For the foregoing reasons, we affirm the judgment of thecircuit court.

Affirmed.

HOFFMAN, P.J., and HALL, J., concur.