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No. 3--01--0594

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The State filed juvenile petitions for wardship, allegingthat the minors, Yasmine P. and Jeremy P., born December 21,1994, and October 4, 1996, respectively, were abused andneglected. Respondent Michael P. stipulated that the State couldprove its allegations. Accordingly, the court granted thepetition on grounds that respondent had physically abused theminors' mother, Marjorie R., and a stepdaughter, Miriam L., andthat he had sexually abused Yasmine and another stepdaughter,Samantha L.

The State subsequently filed a petition to terminaterespondent's parental rights on the ground of depravity (750 ILCS50/1(D)(i) (West 2000)). Following separate hearings, the courtfound respondent unfit and terminated his parental rights. Respondent appeals, contending that (1) hearsay documentsintroduced by the State at the unfitness hearing were improperlyadmitted into evidence, and (2) the State's evidence wasinsufficient to prove him unfit to be a parent. We affirm.

At the unfitness hearing of May 9, 2001, the Stateintroduced certified copies of respondent's convictions for threeoffenses committed in 1999. Respondent pled guilty to theaggravated assault of a police officer in January 1999 and todomestic battery based on choking and hitting Marjorie on May 15,1999. He also entered into a plea agreement in which he pledguilty to predatory criminal sexual assault of seven-year-oldSamantha, in exchange for a 12-year prison sentence. Respondentwas living in the household with Marjorie and her four childrenat the time of all three offenses.

The State also presented certified medical records and areport of an examining physician of the Pediatric Resource Centerrelating to an examination of Yasmine. The examination revealedscarring on the fossa navicularis, which the physician foundconsistent with a reported history of digital penetration of thevagina. Finally, before presenting its witnesses, the Stateintroduced a certified and delegated report of a psychologicalevaluation of respondent conducted on February 16, 2000, at therequest of the Department of Children and Family Services. Thepsychological evaluation materials indicated that respondent'sdenial of sexual misconduct with the children was false. Respondent objected to the admission of the psychologicalevaluation and pediatric records on grounds of relevancy andhearsay. The court admitted the psychological evaluation overrespondent's objection and reserved ruling on his hearsayobjection to the pediatric documents pending further evidence.

The State then introduced Peoria County sheriff'sinvestigator Dave Doubet, who testified that he interviewedSamantha on July 29, 1999. Doubet testified that respondent hadforced her to suck his penis in the summer of 1999. Shedescribed "white, globby stuff" that came out, which she had toclean off the bed. Samantha said respondent warned her "to bequiet about it."

On July 30, 1999, Doubet interviewed respondent. At thattime, respondent denied Samantha's allegations. However, headmitted that he had beaten Marjorie in 1998 and left her lyingon the roadside with a broken eardrum.

On September 13, 1999, Doubet interviewed Yasmine. AfterYasmine demonstrated that she knew the difference between thetruth and lies, she told Doubet that respondent had put his"fingers in her butt." She showed Doubet the conduct by rubbingher hands on her vagina. She said the rubbing lasted "a longtime" and it happened in her bedroom at night "a lot of times"when respondent lived with them. Yasmine said she toldrespondent it hurt and she cried when he did it to her.

After the State rested, the court overruled respondent'sobjection to the pediatric documents. Respondent then testifiedon his own behalf. Respondent said he was studying the Bible andtaking a college class while serving a 12-year prison term forthe predatory criminal sexual assault of Samantha. Respondentadmitted the sexual assault of Samantha and admitted that he wasphysically abusive to the children and Marjorie. However, hestated that the allegations concerning Yasmine were false. Oncross-examination, respondent admitted that he had used drugs andalcohol most of his adult life. He completed a drug treatmentprogram several years earlier, but was using drugs and alcoholagain in 1999 when he committed the offense against Samantha. Respondent said he tried to get into a drug treatment program inprison, but this request was refused because of the length of hissentence.

Following arguments of counsel, the court found that theState had proved depravity by clear and convincing evidence. Atthe ensuing best interest hearing, the court found that it was inthe best interests of Yasmine and Jeremy to terminaterespondent's parental rights. Accordingly, the court granted theState's petition.

On appeal, respondent first argues that the court erred inadmitting hearsay evidence at the unfitness hearing, becauseapplication of the hearsay exception in section 2--18(4) of theJuvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2--18(4) (West 2000)) violated respondent's constitutional equalprotection guarantees. Respondent contends that the foundationalrequirement for the admission of medical and psychologicalreports is relaxed when parental termination proceedings areinitiated under the Juvenile Court, as opposed to when theproceedings are initiated under the Adoption Act (750 ILCS 50/1et seq. (West 2000)). He argues that as a consequence of thisrelaxed standard, a parent such as he, facing parentaltermination proceedings initiated under the Juvenile Court Act,is treated more harshly than a parent facing similar proceedingsinitiated under the Adoption Act. We do not agree.

Generally, statutes are presumed to be constitutional, andit is the burden of the party challenging a statute to clearlyestablish a constitutional violation. Miller v. Rosenberg, 196Ill. 2d 50, 749 N.E.2d 946 (2001). Guarantees of equalprotection under the federal and state constitutions require thatthe government treat similarly situated individuals in a similarmanner. In re R.C., 195 Ill. 2d 291, 745 N.E.2d 1233 (2001). Thus, the State may not accord different treatment to persons whohave been placed by statute into different classes on the basisof criteria wholly unrelated to the purpose of legislation. R.C., 195 Ill. 2d 291, 745 N.E.2d 1233.

An examination of the Adoption Act and the Juvenile CourtAct discloses that parents facing termination proceedings underthe two acts are not accorded different treatment with respect tothe admission of records relating to parental unfitness. Lookingfirst to the Adoption Act, we note that section 2.1 specificallyprovides that the Adoption Act "shall be construed in concertwith the Juvenile Court Act of 1987." 750 ILCS 50/2.1 (West2000). Next, we note that the Juvenile Court Act provides rulesrelating to certain evidence in juvenile proceedings, includinghearings to determine parental unfitness under the Adoption Act. See 705 ILCS 405/2--18 (West 2000). Specifically, section 2--18(4)(a) of the Juvenile Court Act provides that certifiedrecords of hospitals and public or private agencies concerning acondition, act, occurrence or event relating to a minor in anabuse, neglect or dependency proceeding shall be admissible asproof of the condition, act, occurrence or event. 705 ILCS405/2--18(4)(a) (West 2000). This provision permits suchcertified records to be admitted at trial without the additionalfoundational requirements of the business records exception tothe hearsay rule. See 145 Ill. 2d R. 236.

Reading the Adoption Act in concert with the Juvenile CourtAct, we reject respondent's equal protection position. TheAdoption Act has no special provision relating to the admissionof evidence of child abuse, neglect or dependency. Consequently,the hearsay exception contained in section 2--18(4)(a) of theJuvenile Court Act would apply equally, whether suit to terminateparental rights is initiated under the Juvenile Court Act or theAdoption Act. Thus, with respect to the admission of certifieddocuments relating to Yasmine's medical examination andrespondent's psychological evaluation, respondent has not shownthat the treatment he received under the Juvenile Court Act wasdifferent from the treatment he would have received had theparental unfitness proceeding been initiated under the AdoptionAct.

Within the context of his equal protection argument,respondent also asserts that he was denied due process of law. Specifically, he claims that his right of confrontation wasdenied by the admission of hearsay testimony under section 2--18(4)(a), and he was deprived of notice that provisions of theJuvenile Court Act would be applied at the unfitness hearing. Wereject both arguments.

The certification requirement of section 2--18(4)(a) ensuresan adequate indicia of reliability for the admissibility ofdocumentary evidence in an abuse, neglect or dependencyproceeding. The circumstances of the making of such documents,including lack of personal knowledge of the maker, may be provedto affect the weight to be accorded to the evidence, but does notaffect its admissibility. 705 ILCS 405/2--18(4)(c) (West 2000). The records introduced in the instant case were properlycertified and were not so unreliable as to constitute aconfrontation clause violation. See In re A.P., 179 Ill. 2d 184,688 N.E.2d 642 (1997) (rejecting respondent father'sconfrontation clause argument with respect to admission ofminor's hearsay statements under section 2--18(4)(c)).

Further, respondent's lack-of-notice argument is more in thenature of an "ignorance of the law" defense than a due processclaim. It is well-settled that all persons are presumed to knowthe law. In re Estate of Malone, 198 Ill. App. 3d 960, 556N.E.2d 678 (1990). In this case, respondent acknowledges that hewas given notice in the State's petition that an adjudication ofparental unfitness was sought on the ground of depravity underthe Adoption Act (750 ILCS 50/1(D)(i) (West 2000)). Aspreviously noted, the Adoption Act specifically provides that itshall be construed in concert with the Juvenile Court Act. Therefore, respondent was deemed to know that the hearsayexception contained in section 2--18(4)(a) of the Juvenile CourtAct was applicable at the unfitness hearing.

Next, respondent argues that section 2--18(4)(a) appliesonly to adjudications of neglect, abuse and dependence. Hesubmits that a parental unfitness hearing is not an "abuse,neglect or dependency proceeding." Therefore, he contends, therecords of Yasmine's physical examination and his ownpsychological evaluation should not have been admitted based oncertification pursuant to section 2--18(4)(a). This argument isbeing made for the first time on appeal. As such, it has notbeen properly preserved for appeal and is waived. See People v.Lewis, 165 Ill. 2d 305, 651 N.E.2d 72 (1995). Respondent doesnot contend that review is appropriate under the plain errordoctrine or that counsel was ineffective for failing to preservethis issue for review. Consequently waiver applies. People v.Casillas, 195 Ill. 2d 461, 749 N.E.2d 864 (2001).

As his last issue, respondent argues that the State'sevidence of unfitness based on depravity was insufficient.

Depravity is defined as an inherent deficiency of moralsense and rectitude. In re Abdullah, 85 Ill. 2d 300, 423 N.E.2d915 (1981). Where depravity is alleged as a statutory ground ofparental unfitness, the trial judge is required to closelyscrutinize the character and credibility of the parent. In reA.L., 301 Ill. App. 3d 198, 702 N.E.2d 1021 (1998). A finding ofunfitness must be supported by clear and convincing evidence. Inre Allen, 172 Ill. App. 3d 950, 527 N.E.2d 647 (1988). An act ofsexual penetration with a child member of the respondent'shousehold may, in itself, be sufficient to support a finding ofdepravity. See 750 ILCS 50/1(D)(i)(5) (West 2000); In re S.H.,284 Ill. App. 3d 392, 672 N.E.2d 403 (1996); In re J.B., 298 Ill.App. 3d 250, 698 N.E.2d 550 (1998). Also, a series ofconvictions showing a pattern of criminality will support afinding of depravity. In re Dawn H., 281 Ill. App. 3d 746, 667N.E.2d 485 (1996). On review, the trial court's determinationwill not be reversed unless it is contrary to the manifest weightof the evidence. A.L., 301 Ill. App. 3d 198, 702 N.E.2d 1021.

In this case, the State's evidence of depravity consisted ofcertified convictions of three recent offenses--one Class Xfelony predatory criminal sexual assault of a stepdaughter andtwo misdemeanor batteries--and testimony establishing thatrespondent had also battered the minors' mother in 1998 andminimized his culpability for that offense. All of the offensesinvolved acts of violence. In addition, respondent admittedabusing drugs and alcohol. He also admitted physically abusingthe minors and their mother. Although respondent persisted indenying that he had sexually assaulted Yasmine, there wassufficient other evidence from which the trial court could haveconcluded that respondent had committed the acts she described.

Based on our careful review of the record, we hold that thetrial court's finding of depravity was not contrary to themanifest weight of the evidence. Accordingly, we affirm thecourt's finding of unfitness.

For the reasons stated, the judgment of the circuit court ofPeoria County is affirmed.

Affirmed.

McDADE and SLATER, J.J., concurred.