FIFTH DI VISI ON SEPTEMBER 19, 2008 1-07-2675

In re PETIT ION

OF L .M. AND M. M. ) Appeal from the TO ADOPT M.J.A. ) Circuit Court of (L.M. and M.M.,) ) ) Co ok Co un ty. Petitioner s-Appell ees, ) ) 05 COAD 950 ) M.A., ) Honorab le ) Patrick McGann, Responde nt-Appe llant. ) Judge Presi ding.

JUSTICE TULL Y deliver ed the opi nion of the

court: The circuit court of Cook County f ound respondent, M.A., to be an unfit parent on the ground of depra vity under se ction 1(D )(i) of t he Adopti on Act (7 50 IL

CS 50/1(D) (i) (West 2002)). Respondent was found to be depraved beca use he was convicted of the offense of predatory criminal sexual assault of a child. See 720 ILCS 5/12-14.1(a)(1) (West 1998). The circuit court further found the respondent to be unfit by his lack of contribution to the financial welfar e of his son (750 I

LCS 50/ 1(D)(n) (2)(ii)(West 2002 )); his fa ilure to c ommunica

te with his son and his failure to plan for the future of his son (750 I LCS 50/1(D)(n)(1)(ii) (West 2002)). The cour t subseque

ntly terminat ed respondent' s parent

al righ ts. Respondent appe als. We af firm. The petit ion filed a

gainst r esponde nt asser ted seve n groun ds upon whi ch the co

urt should find M.A. unfit. The

circuit c ourt foun

d that pet itioners s ustained their bur den on fo ur counts and found respondent unfit under sections 1(D)(i) and 1( D)(n) of the Adoption Act. A finding of parental unfitness warranting termination of pa rental rights will stand if supported by any one of the statutory g

rounds set forth in the Adoption Act. In re Daphnie E. , 368 Ill. App. 3d 1052, 859 N.E.2d 123 (2006).2

1-07-2675 Background The minor at issue in this petition, M.J.A., was born on October 28, 2002. His biological mother, L.M., one of the petitioners here in, and his father M.A., the respondent herein, were not married at the time of his birth. L.M. and M.A. met in an I nternet chat room in November 2001. At the time, L .M. lived in th e easte rn part of the Unit ed St ates an d M.A. lived with his m other in Sk okie, Illino is. M .A.'s living arrangement was nec essitated by a c ondition of his bond on felony charg es that were then pending in the Eig

hteenth Jud

icial Circ uit, Du Pag e County . Approxima tely six weeks after the ir initial meeting, L.M. traveled to I llinois to meet M.A. in person. Shortly thereafter , L.M. leased an apartment in the same building where M.A. lived with his mother. M.A. and L .M. soon began living together. In Februar

y 2002, L .M. learned she was pregnant. L .M. testified that she informed M.A., who was le ss than en

thusiastic , counse ling L .M. to ter minate he r preg nancy . M.A. disp

utes this fact but the trial court found L.M.' s testimony to be more cre dible based upon comments M.A. made in c orrespondence

sent to the

other wo man in M.A. 's life . The par ties conti nued to cohabit in th e apart ment u ntil August or Sep tembe r of 20 02 whe n M.A. retur ned to his m other 's apartment. M.A. returned to L.M.' s apartment shortly bef ore the birth of M.J.A. in order to give the impre ssion that t

hey were a happy couple to L.M.' s mother a

nd sister, who were

coming t o Chicag o to help with the bir th and ea rly child-re aring r

esponsibi lities. Th e r el at io ns hi p o f M .A . a nd L.M . a nd ul ti ma te ly M .J .A . w as gr ea tl y im pa ct ed by a relationship M.A. had with another woman. Approximately 11 years be fore meeting L .M.,3

1-07-2675

M.A. began a relat ionship w ith Frances F. M s. F lived i n a motel wi th her two chi ldren, J. D.F. and A.F . M.A. move d in with Ms. F. and he r childre n and ultima

tely M.A. and M s. F had a

child of the ir own , K.A. It is cle ar from the te stim ony that M .A. ha d a deep affect ion fo r Ms. F 's children and treated them as if he were their father. The family

moved into a townhome. After the birth of K.A., Ms. F. did not return to work and the family was supported solely by

M.A. In la te 2000 or

early 2001, Du Pa

ge Count y sheriff' s deputie s went to the family townhome to investigate an allegation that A.F. ha d been sexually molested by M.A. M.A. agreed to accompany

the deputies to the station to clear up the matter. I n a videotaped interrogation, M.A. initially de nied the allegations were true. Afte r a short period of time and because he had an important project at work, M.A. a greed to get the matter off his chest. M.A. then e xpl ained in a cal m and c lear m anner h ow A.F. had wal ked in whil e he was watch ing a pornographic movie on his computer so he took it upon himself to explain to A.F. the actions of the adults on the pornographic I nternet site. This included viewing pornographic films depicting various forms of heterosexual and same sex-sexual activity . M.A. also explained the functioning of the male sex organ and allowed A.F. to fondle his penis a nd placed it in her mouth. A.F. was approxima

tely nine y ears old at the time

this occu rred. M. A. denie d ever to uching her female sex organ with his finger. M.A. was convicted of two counts of predatory criminal sexual assault of a child (720 IL CS 5/12-14.1(a)(1)(West 1998)) and agg ravated criminal sexual abuse (720 ILCS 5/12-16 (c)(1)(West 1998)) in June 2003. He was sentenced to 23 y ears in the Illinois Department of Correct ions.4

1-07-2675

Discussion Under the Juvenile Court Act of 1987 (705 ILCS 405 1-1 (West 2006)), the involuntary termination of parental rights involves a two-step process. F irst, there must be a showing, based on clear and convincing evidence , that the parent is “unfit,” as that term is defined in section 1(D) of the Adoption Act (750 IL CS 50/1(D) (West 2002)). If the court make s a finding of unfitness, the court then considers whether it is in the best interests of the child that parenta l rights b e termina

ted. See 7 05 IL

CS 405/2-29 (2) (West

2002); In re C.N. , 196 Ill. 2d 181, 209, 752 N.E.2d 1030 (2001). Although section 1(D) of the Adoption Act sets forth numer ous ground s under w

hich a pa rent may be deeme d “unfit, ” any

one gr ound, pro perly proven, is sufficie nt to ente r a findin g of unf itness. Se e 750 I

LCS 50/ 1(D) (We st 2002); In re C. W. , 199 I ll. 2d 198, 210, 766 N.E.2d 1105 (2002). In this case, as previously stated, the trial court found respondent unfit on several g rounds including depravity . We will discuss the depravity issue first. Acc ording to the State, the fact that resp ondent wa s convict ed of the offense of preda tory criminal sexual ass ault of a

child trigg ers a re

buttable presumpt ion of depravity

which ca n only be overc ome if re spondent shows, by clear and convincing evidence, that he is not depra ved. Respondent asserts that the plain language of section 1(D)(i) demonstrates that the offense of predatory

criminal sexual assault of a child does not trigger a re buttable presumption of depravity. I

ndeed, respondent argues that if the leg islature intended for predatory criminal sexual assault of a child to trigger the presumption, it would have listed that offense in the statute.5

1-07-2675

At the time

this petition was file d, Section 1(D)(i) of the Ad

option Ac t provide d in releva nt part: “D. ‘Unfit person’ means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption. The g rounds of unfitness are any

one or more of the following ***:

* * * (i) Depravity . Conviction of any one of the f ollowing crimes shall create a presumption that a parent is depraved which can be ove rcome only by

clear and convincing evidence : (1) first degree murder in violation of par agraph 1 or 2 of subsection (a) of Section 9-1 of the Criminal Code of 1961 or conviction of second degree murder in violation of subsection (a) of Section 9-2 of the Criminal Code of 1961 of a parent of the child to be adopted; (2) first degree murder or second degree murder of any child in violation of the Criminal Code of 1961; (3) attempt or conspiracy to commit first degree murder or second degree murder of

any child in violation of the Criminal Code of 1961; (4) solicitation to commit murder of any child, solicitation to commit murder of any child for hire, or solicitation to commit second degree murder of a ny child in violation of the Criminal Code of 1961; or (5) aggrava ted criminal sexual assault in violation of Section 12-14(b)(1) of the Criminal Code of 1961.” 750 I LCS 50/1(D)(i) (West 2002). The Illinois Supreme Court addressed this issue in In re Donald A.G. , 221 Ill. 2d 234, 850 N.E.2d 172 (2006), where the State acknowledg ed that predatory criminal sexual assault of a child is not an offense enumerated in the statute. However , the State nevertheless maintained that the legislature intended to create a r ebuttable presumption of depravity to be applied to the6

1-07-2675

offense of preda tory criminal sexual ass ault of a

child, but

made a dr

afting error. The I llinois Supre me Cou rt agree d reaso ning: "Reading section 1(D)(i) as a whole, it becomes readily apparent that the legislature intended for the presumption of depravity to apply, in most instances, to those adults who committed crimes against children. I ndeed, the legislature create d a presumption of depravity whe

re a parent committed first or second deg ree murder of any

child; attempted or conspired to commit first or second degree mur der of any child; or solicited someone else to c ommit first

or secon d degr ee murde r of any child. See

750 ILCS 50/ 1(D)(i)

(West 1998). In enacting

this statute, the legislature's paramount conce rn was to protect children from parents who have harmed other childre n. Thus, it stands to reason that the legisla ture wou ld intend to

apply a rebutt able pre sumption of

depravi ty to those adu

lts who have committed a sex offense against a child. Signific antly, the offe nse of predatory criminal sexual assault of a child, by def inition, always involves an unlawful sex act between an adult and a child, whereas the conduct prescribed under the aggravated criminal sexual assault statute would, in most instances, involve an adult defendant and an adult victim. Compare 720 IL CS 5/12.14.1(a)(1), (a)(2), (a)(3) ( West 1998) with 720 IL CS 5/12-14(a), (b), (c) (West 1998). Under on ly one circ

umstance does the o ffense

of agg ravate d crimina

l sexual ass ault exclusively apply

to a child, and that circumstance occurs when the a ccused is under the age of 17. See 720 I

LCS 5/12-14(b)(i), (b)(ii) (West 1998). Howe ver, it would be absurd for us to conclude that the legislature intended to cre ate a presumption of depravity for those indi viduals wh

o fall with

in that sub section o f the aggrava ted crimi nal sexual

assault7

1-07-2675

statute to the exclusion of those individuals who committed the offense of predatory criminal sexual ass ault of a

child. I f that we

re the c ase, the

n the legislature

intended to create a presum ption of de

pravity for a juv enile und

er the a ge of 1 7 who comm

its aggravated cr

iminal sexual assault, i.e. , an act of sexual penetration with a child under the age of 9 or between the a ges of 9 and 12 (720 I

LCS 5/12-14(b)(i), (b)(ii) (West 1998)), but did not intend for that presumption to apply to an adult who is 17 y ears of age or older who commits predatory c riminal sexual assault of a child, i.e., an act of sexual penetration with a child under the age of 13 ( 720 IL CS 5/12-14.1(a)(1) (West 1998)). Under that rationale, a 15-y ear-old who commits an act of sexual penetration with a 12-y ear-ol d would be

subject to

a presum ption of de

pravity under the Adoption A ct, while respondent, who was over 18 y ears old when he committed an act of sexual penetra tion aga inst D.B. , a five-ye ar-old, would esc ape the presumption. It s eems unlik ely that the legislature would exclude the offense of pre datory cr iminal sexual assault of a child from its presumption under the Adoption Act when that statute exclusively applies to accused individuals over the age of 17, who a re more likely to fa

ce termination proceedings th an younger individual s." In re Donald A.G., 221 Ill. 2d at 248-49. The court concluded that the legislature made an inadvertent drafting error in stating that the presumption of depravity applied to the offense of agg ravated criminal sexual assault. The court fo und that th e legis lature si mply cited to a n outdate d version

of the Cri

minal Code

wherein the offense of predatory

criminal sexual assault of a child was included in the statutory definition of aggravated c

riminal sexual assault. In other words, the Court concluded that the le gislature intended the presumption of depravity to apply to the offense

of predatory

criminal sexual8

assault. 1-07-2675

Accordingly , the court concluded that the presumption applied to respondent, as he wa s convicte d of the of

fense of predatory

criminal sexual ass ault of a

child prior to the fi

tness proceeding at issue. In thi s case th en we conclude that respondent her e is subje ct to the r

ebuttabl e presumption of depravity ba sed on his conviction for predatory criminal sexual assault of a child. The ques tion before us, the n, is whether resp ondent pr esented clear a nd convincing ev

idence t o refute the State 's prima facie case of depravi ty. Responde

nt attempt s to refu

te the de pravity allega tion by deny ing that he committ

ed the und

erly ing off ense. Re spondent i

nsists that he did not show A.F. pornographic web sites; rather , he searched the I nternet for high school sex education sites to show A.F. cartoon characte rs performing sex acts. Respondent also points out that A.F. recanted her alleg ations. We think it is important to note that A.F. did not recant the fact that she was sexually a bused. After telling social workers in gr eat detail what respondent had done, A.F. later testified that it was not respondent who had c ommitted the acts but rather a man named "Rob." A.F. also testified that her br other blamed her for breaking up the family. Sh e fu rth er t est ifi ed t hat she fel t t err ib le t hat res pon den t wa s i n j ail bec aus e of wha t s he s aid . It is with this background that the trial judge here conc luded the victim's recantation came after pressure from her mother and her brothe r and the victim's recantation testimony was thus deemed incredible by the c ourt. The trial court also found the respondent's explanation that he conf essed so that he could leave the police station in order to finish a project at work was self-serving. The trial court found the respondent's continued denial of r esponsibility demonstrated a conc ern for only himself and stated that this was a c onsistent pattern.9

1-07-2675

Aside fr om refuti ng the f acts of the crimina

l convict ion, resp ondent ins ists the re cord is replete with evidence that would overcome the de pravity presumption. Respondent points to the letters written by L .M. after M.A. was convicted and had been inc arcerated. These letters ar e filled with statements conveying L.M.'s continued devotion to M.A. L .M. writes about M.J.A. and tells M.A. that he is a wonderful father. She writes of her hope that they will still have a life to ge th er as a f

am il y. These letters do not rebut the presumption of depravity . They ar e disturbing in that they reflect the almost desperate hopes of a woma n whose devotion was repeatedly manipulated by the resp ondent. Whi le L. M. remained devote d to M.A., he wrote t o her only twice. H is correspondence to L .M. consisted of an entreaty for money a

nd a perfunctory

inquiry about M.J.A. followed by

a reque st not to bri

ng him to a

contact visit. I n contra st M.A. wr

ote

numerous letters t o Ms. F. We

agree with the tr

ial cour t that this c orrespondence merely demonstrates M.A.'s efforts to manipulate both women. Thus, we find that the le tters written by L.M. do not demonstrate M.A.'s fitness as a parent; rather, the letters reinforce the finding of M. A. 's mo ra l d ep ra vi ty. Responde nt also poi

nts to his conduct tow ards Ms. F 's child ren and h is intera ction with M.J.A. as demonstrative of his fitness as a parent. However, the rec ord shows scant evidence of any interest in M.J .A. and any evidence of M .A.'s devoti on to Ms. F's ch ildren, J .D.F. and A.F. and his son K.A., is not enough to overcome the presumption of depravity . The evidence indicate s that M.A. showed affectio n for the three children a

nd suppor ted the f amily ye t he still engaged in sexually

molesting A.F. Thus, we find the evidence of M.A.' s affection for K.A. and Ms . F 's ch il dr en to be in su ff ic ie nt to re bu t t he pr es um pt io n o f d ep ra vi ty.10

1-07-2675

We affirm the trial court's finding of unfitness on g rounds of depravity

and find that respondent's parental rights we re properly

terminated. FITZG ERALD SMITH, P.J., and TOOMIN, J., concur.