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In Interest of T.S. III, No. 3-99-0363 (Cons. with No. 3-99-0446)

3rd District, 12 April 2000

JUSTICE LYTTON delivered the opinion of the court:

The respondents, A.F. and T.S., appeal from an order of the circuit court of Peoria County finding them to be unfit parentsand subsequently terminating their parental rights. The respondent-mother, A.F., was found unfit for failing to makereasonable progress or reasonable efforts toward the return of her children, J.W., A.T., E.T., R.T., L.F., and T.S. III. 750ILCS 50/1(D)(m) (West 1996). The respondent-father, T.S., was found unfit based on a finding of depravity. 750 ILCS50/1(D)(i) (West 1998). He is the father of T.S. III. Both parents appeal. We affirm.

I. PROCEDURAL HISTORY

On September 19, 1996, the State filed a juvenile petition alleging that six-day-old R.T. was neglected because he testedpositive for cocaine at birth. The State also alleged that three-year-old J.W., two-year-old A.T., and one-year-old E.T. wereneglected in that their environment was injurious to their welfare because R.T. was born with cocaine in his system. Therespondent-mother admitted to the allegations in the petition and the minors were adjudicated neglected. A year later, theState filed another juvenile petition alleging that 10-day-old L.F. was neglected because the respondent-mother hadpreviously been found unfit and there had been no subsequent finding of fitness.

On July 7, 1998, the State filed a petition to terminate the respondent-mother's parental rights. The State alleged that shewas unfit for failing to make either reasonable efforts to correct the conditions which led to the removal of her children orreasonable progress toward the return of her children within 12 months after they had been adjudicated neglected. 750 ILCS50/1(D)(m) (West 1998). On September 2, 1998, the State filed another juvenile petition alleging that two-day-old T.S. IIIwas neglected because: (1) the respondent-mother had previously been found unfit without a subsequent finding of fitness;and (2) the respondent-father had a long criminal history and was currently imprisoned. The respondent-mother admitted tothe allegations in the petition and T.S. III was adjudicated neglected.

On October 5, 1998, the State filed a supplemental petition for termination of parental rights. The supplemental petitionincluded T.S. III and again alleged that the respondent-mother was unfit for failing to make reasonable efforts or progresstoward the return of her children. 750 ILCS 50/1(D)(m) (West 1998). The State alleged that the respondent-father was unfiton the basis of depravity. 750 ILCS 50/1(D)(i) (West 1998). In the petition the State included a list of the respondent-father's 18 prior offenses. Six of those offenses were felony convictions, and four of the six felonies had been committedwithin five years of the filing of the termination petition. An adjudicatory hearing for both parents was held on February 10,1999.

II. RESPONDENT-FATHER

A. Facts

At the adjudicatory hearing, the court admitted certified copies of the respondent-father's criminal convictions intoevidence. The respondent-father testified that he was currently incarcerated and his release date was May 20, 1999. He saidthat when he got out of prison he would prove that he could be a fit father and go through any necessary programs, get ajob, and find a place to live. He said that he would not go back to a life of crime because he now has his son, T.S. III, whoneeded him. On cross-examination, the respondent-father admitted that he had three other children that he has no contactwith. He said that he had been involved with the respondent-mother for four years and that he had never struck her.

Debra Stanley, a Lutheran Social Services caseworker, testified that within the past year, the respondent-mother came to avisit with a black eye. She initially told Stanley that she fell at work, but she later admitted that the respondent-father hadstruck her. This occurred while the respondent-mother was pregnant with T.S. III.

At the best interest hearing, the court found that T.S. III deserved more stability in his life and should not have to wait to seeif his father turned his life around. Therefore, it terminated the respondent-father's rights.

B. Analysis

The respondent-father argues that the trial court erred in finding that he was depraved and therefore an unfit parent to T.S.III. He argues that while a series of criminal convictions may support a finding of depravity, those acts must establish byclear and convincing evidence that the respondent is deficient in a moral sense and has shown an inability or anunwillingness to conform to accepted moral standards.

A trial court's finding of unfitness will not be reversed unless it is contrary to the manifest weight of the evidence. In rePronger, 118 Ill. 2d 512, 517 N.E.2d 1076 (1987).

Historically, Illinois courts have held that a parent's history of criminal convictions, standing alone, was not sufficientevidence of depravity. In re Sanders, 77 Ill. App. 3d 78, 395 N.E.2d 1228 (1979). However, in 1998, the Illinois legislatureamended section 1 of the Adoption Act to provide that, in some cases, several prior felony convictions were sufficient tocreate a presumption of depravity. 750 ILCS 50/1(D)(i) (West 1998). Under the amended statute, a presumption ofdepravity exists: