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March 15, 2001

No. 3--00--0442

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE HOLDRIDGE delivered the Opinion of the Court:

The respondent, Deanthony B., was found to be an unfit parent, for amongother reasons, his repeated incarceration which prevented him from performinghis parental responsibilities. After a best interest hearing, his parentalrights to the minor, D.P., were terminated. On appeal, the respondent urges thiscourt to declare section 1(D)(s) of the Adoption Act (Adoption Act) (750 ILCS50/1(D)(s) (West 1998)) unconstitutional and reverse the trial court's decision.We affirm.

FACTS

D.P. was born on October 2, 1996. The State filed a petition on June 3, 1999,alleging neglect by D.P.'s mother. The respondent was served with the petition.A hearing was held on August 11, 1999. The respondent was present. At theconclusion of the neglect hearing, the trial court found that D.P. was abandonedand that her environment was injurious to her welfare and adjudicated herneglected.

On September 29, the State filed a motion to terminate parental rightsclaiming that D.P.'s mother and the respondent failed to maintain a reasonabledegree of interest, concern, and responsibility for D.P., or to make reasonableefforts to correct the conditions for the removal of D.P., or to make reasonableprogress toward her return within nine months of adjudication. Four monthslater, the State amended the motion to include an allegation that therespondent's parental rights should be terminated due to his repeatedincarceration. The respondent was served with notice of both motions and waspresent at the fitness hearing.

At the hearing, the State presented certified copies of the respondent'sconvictions. The convictions showed that the respondent had served two terms ofimprisonment since D.P.'s birth. The respondent admitted that he pled guilty topossession of a firearm in November 1996, and sentenced to 30 months' probation.In March 1997, he pled guilty to possession of a stolen motor vehicle andsentenced to a term of three years' imprisonment. He was released in February of1998. At the time of the hearing, the respondent was serving a 12-year sentencein the Department of Corrections for armed robbery. His projected parole datewas November 28, 2010. The respondent testified that if he received credit forgood behavior, he might be eligible for early parole in 2004.

The respondent further testified that he did not know he was D.P.'s fatheruntil August of 1999. After the respondent realized he was D.P.'s father, hewrote to her four or five times, and spoke with her on the telephone. On oneoccasion, D.P.'s foster mother took D.P. to visit the respondent in prison. Therespondent also wrote to D.P.'s caseworker inquiring about D.P.'s well-being. Asof the hearing, the respondent had not sent D.P. child support. He admitted thathis effort to financially support D.P. was limited because of his incarceration.

The trial court found that the respondent failed to make reasonable effortsto correct the conditions which were the basis for the removal of the child, orto make reasonable progress towards the return of the child within nine monthsafter the adjudication of neglect (750 ILCS 50/1(D)(m) (West 1998)). It alsoconcluded that the respondent was unfit because he was incarcerated at the timethe motion to terminate was filed and had been repeatedly incarcerated as aresult of criminal convictions (750 ILCS 50/1(D)(s) (West 1998)). A bestinterest hearing was held, and the respondent's parental rights were terminated.The respondent appeals.

ANALYSIS

Among other factors, the defendant was found to be unfit pursuant to section1(D)(s) of the Adoption Act because he had been continually incarcerated. Onappeal, the respondent does not argue that the evidence failed to establish thathe had been repeatedly incarcerated or that such incarceration prevented himfrom completing his parental responsibilities. Rather, he maintains that section1(D)(s) is unconstitutional.

Section 1(D)(s) of the Adoption Act provides that the State may prove aparent unfit if:

"the parent is incarcerated at the time the petition or motion for termination of parental rights is filed, the parent has been repeatedly incarcerated as a result of criminal convictions, and the parent's repeated incarceration has prevented the parent from discharging his or her parental responsibilities for the child." 750 ILCS 50/1(D)(s) (West 1998).

Generally, statutes are presumed to be constitutional, and any doubts areresolved in favor of the legislation's validity. In re A.S.B., 293 Ill.App. 3d 836, 688 N.E.2d 1215 (1997). A statute is unconstitutional if itviolates a person's substantive and procedural rights to due process. Kelleyv. Johnson, 425 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). Todetermine if a law violates substantive due process, we must first considerwhether the statute impedes upon a fundamental right or discriminates against asuspect class. A.S.B., 293 Ill. App. 3d 836, 688 N.E.2d 1215. If thestatute does not affect a fundamental right, we apply the rational basis test todetermine its constitutionality. People ex rel. Lumpkin v. Cassidy, 184Ill. 2d 117, 703 N.E.2d 1 (1998). To withstand such a test, the statute"need only be rationally related to a legitimate state goal." Committeefor Educational Rights v. Edgar, 174 Ill. 2d 1, 37, 672 N.E.2d 1178, 1195(1996). If any set of facts can reasonably be conceived to justify therelationship, the law must be upheld. A.S.B., 293 Ill. App. 3d 836, 688N.E.2d 1215.

In the context of the Adoption Act, whether a fundamental right is at issuedepends upon the facts of the particular case. When a parent has neverestablished "a custodial, personal, or financial relationship" with achild or merely abandons the child, the constitution does not bestow upon himthe fundamental right of parenthood. A.S.B., 293 Ill. App. 3d 836, 847,688 N.E.2d 1215, 1224. A determination of unfitness may be made regardless ofthe respondent's efforts or the amount of interest he shows in his daughter'swelfare. See In re M.M.J., 313 Ill. App. 3d 352, 728 N.E.2d 1237 (2000)

Here, the respondent was convicted of a crime within weeks of D.P.'s birthand served several months' probation. Four months later, he was convicted ofpossession of a stolen motor vehicle for which he was imprisoned for 11 months.In April of 1999, he was sentenced to 12 years for armed robbery. He had justbegun to serve that sentence when he testified at the fitness hearing. Nothingin the record indicates that the respondent made an attempt to form arelationship with D.P. prior to his 11-month imprisonment. Upon his release, itdoes not appear that the respondent tried to see D.P., send her cards or gifts,inquire about her well-being, or financially support her in any way. He did notcontact D.P.'s custodians until he was notified of the petition alleging neglectin the summer of 1999. Thus, it is clear from the facts of this case that therespondent did not establish a custodial, personal, or financial relationshipwith D.P prior to the termination proceedings. Accordingly, the respondentcannot claim to have a fundamental right in the care and custody of D.P. Wetherefore review the challenged statutory provision under the rational basistest.

Applying the rational relationship standard, we find that the statute isreasonably related to a legitimate state interest. The paramount concern of theAdoption Act is the best interest of the child. In re B.W., 309 Ill. App.3d 493, 721 N.E.2d 1202 (1999). Terminating a parent's rights when it is in thebest interests of a child is a legitimate governmental interest. A.S.B.,293 Ill. App. 3d 836, 688 N.E.2d 1215. It is not in the best interests of achild to preserve a parent's custody when that parent has failed to establish arelationship with the child due to his continued incarceration. Further, therespondent has provided no authority for determining that the provision is notrationally related to a legitimate state goal. Therefore, we conclude thatsection 1(D)(s) of the Adoption Act does not violate substantive due process.

Further, the statute does not violate notions of procedural due process.Procedural due process requires meaningful notice and the opportunity to beheard. Stillo v. State Retirement Systems, 305 Ill. App. 3d 1003, 714N.E.2d 11 (1999). Here, the respondent received notice of the petition allegingneglect and the motion to terminate. He was present at the proceedings in bothmatters and was represented by an attorney at the hearing on the motion toterminate his parental rights. Clearly, the defendant was afforded due processprior to his parental rights being discharged. The defendant appears to arguethat by allowing the court to declare a parent unfit due to continuedincarceration, section 1(D)(s) denied him due process in his criminal case. Wedo not accept the respondent's contention that he would have defended himselfmore vigorously in his criminal case had he known that his parental rights wouldbe terminated due to his incarceration. The defendant pled guilty to the offensebefore he had any knowledge of his parentage to D.P. Hence, any claim that hewould have pled not guilty to the charge to protect his rights as a parent lacksmerit.

In sum, the respondent does not argue that the court's finding that he wascontinually incarcerated and that his incarceration prevented him fromdischarging his parental responsibilities was against the manifest weight of theevidence. Therefore, we affirm the trial court's determination of unfitness onthe ground that respondent's continued incarceration prevented him from caringfor D.P.

Next, the respondent asserts that reversible error occurred in the trialcourt's findings of unfitness based on failure to make reasonable efforts andfailure to make reasonable progress towards the eventual reunification with D.P.Since we have determined that the respondent was unfit due to his continuedincarceration, we need not review the trial court's findings on the remaininggrounds of unfitness. In re J.P., 261 Ill. App. 3d 165, 633 N.E.2d 27(1994) (when multiple allegations of unfitness are made, a finding that any oneallegation has been made is sufficient to declare the respondent unfit).

For the foregoing reasons, the judgment of the circuit court of Will Countyis affirmed.

Affirmed.

HOMER, P.J., and LYTTON, J., concur.