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No. 3--01--0158
December 17, 2001

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

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JUSTICE LYTTON delivered the opinion of the Court:

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BACKGROUND

The respondent is the father of D.S., born on April 18, 1991,and Dn.S., born July 12, 1993. On August 18, 2000, the Statesubmitted a juvenile petition asking the court to find therespondent's children to be neglected because of an injuriousenvironment. The court's adjudication order of January 30, 2001,found the children to be neglected on that basis.

The record contains the criminal information whereby therespondent was charged on December 13, 1993, with three counts ofaggravated kidnaping. The information states that the defendantcommitted these crimes on December 7, 1993. He was charged withone count of Class X aggravated kidnaping for the purpose ofobtaining a ransom. 720 ILCS 5/10--2(a)(1) (West 1992). He alsowas charged with two counts of Class 1 aggravated kidnaping whilearmed with a handgun. 720 ILCS 5/10--2(a)(5) (West 1992).

The respondent was sentenced on June 6, 1994. The sentencingorder indicates that he received 24 years' imprisonment for theClass X offense and 14 years each for the Class 1 offenses, all tobe served concurrently. He told Lutheran Social Services ofIllinois that his release date from prison is in February 2004.

The dispositional hearing regarding his children was held onFebruary 20, 2001, and the court issued its dispositional order thesame day. At the hearing, the judge stated that she was findingthe respondent to be unfit because of his "very serious" Class Xfelony conviction for aggravated kidnaping. The judge noted thathe was sentenced to 24 years' imprisonment for this conviction. The judge said that "[i]t's the type of criminality that the Courtwould find, although it's not a repeated nature, because of theseriousness of the charge, the nature of the felony, the Courtwould be finding him unfit." The dispositional order states thatthe court found the respondent to be unfit to care for his childrenbecause of his "serious criminality - aggravated kidnapping." Therespondent appeals from the circuit court's ruling.

ANALYSIS

A trial court's determination of parental unfitness at thedispositional phase will be reversed only if the findings of factare against the manifest weight of the evidence. In re Lakita B.,297 Ill. App. 3d 985, 697 N.E.2d 830 (1998).

At a dispositional hearing, the court shall determine whetherit is in the best interest of the minor and the public that theminor be made a ward of the court. If the minor is made a ward ofthe court, the court shall determine the proper disposition to bestserve the health, safety, and interests of the minor and thepublic. 705 ILCS 405/2--22(1) (West 2000).

Section 2--27(1)(d) of the Juvenile Court Act of 1987 providesthat:

"(1) If the court determines and puts in writing thefactual basis supporting the determination of whether theparents *** of a minor adjudged a ward of the court areunfit or are unable, for some reason other than financialcircumstances alone, to care for, protect, train ordiscipline the minor or are unwilling to do so, and thatthe health, safety, and best interest of the minor willbe jeopardized if the minor remains in the custody of hisor her parents, *** the court may at this hearing and atany later point:

* * *

(d) commit the minor to the Department of Childrenand Family Services for care and service." 705 ILCS405/2--27(1)(d) (West 2000).

Cases involving custody rights of parents at the dispositionalstage must be decided in accordance with the particular facts ofthat case. In re Powers, 94 Ill. App. 3d 646, 418 N.E.2d 1145(1981).

On appeal, the respondent relies upon In re L.M., 319 Ill.App. 3d 865, 747 N.E.2d 440 (2001), for the proposition that arespondent who previously has been convicted of a serious felonycannot automatically be found to be an unfit parent. The Stateargues that L.M. is both factually and procedurally distinguishablefrom the instant case. We agree.

In L.M., the 26-year-old respondent dated and eventuallyimpregnated a 16-year-old girl. Three and one-half months afterthe birth of the child, the father was convicted of aggravatedcriminal sexual abuse of the mother because she was a minor at thetime. Nonetheless, the day after the conviction, the mother lefttheir infant in the care of the father. On the day after that, theState petitioned the court to find the child to be neglected basedon an injurious environment. The trial court granted the petition,finding the child to be neglected. The appellate court reversed,holding that the father's status as a sex offender, by itself, didnot establish an injurious environment for the infant.

L.M. is factually distinguishable from the present case. Theaggravated criminal sexual abuse charge in L.M. involved no violentor forced behavior; the defendant's conviction for aggravatedkidnaping with a handgun and for the purpose of obtaining a ransom,a crime characterized by violent behavior and physical force. Therespondent in L.M. ultimately was sentenced to 36 months' probationfor his offense, whereas this respondent was sentenced to 24 years'imprisonment.

The trial court was required by statute to determine the bestinterests of the children to be made wards of the State. The courtfound the defendant to be unfit based on his serious criminality. Under Powers, the trial court makes the finding based upon theindividual facts of the case. It was not manifestly against theweight of the evidence for the trial court to find the respondentunfit to care for his children based on his criminality.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the PeoriaCounty circuit court.

Affirmed.

HOMER, P.J., and SLATER, J., concurring.