People v. J.T. ( 2005 )

JUSTICE McDADE,

specially concurring:

The children A.M. and E.M. are currently nearing 12 and 11 years, respectively. They have been found neglected and have lived apart from both parents for the past three years. Because of serious behavioral problems, they have been placed in a succession of foster homes. They are, according to Lutheran Social Services, in “desperate need” of stable, permanent homes with reliable and nurturing caregivers. No adoptive families have yet been identified. The respondent father in this case is presently incarcerated in the Illinois Department of Corrections and is not scheduled for full release until March 2006. He is plainly unable to physically parent his children for at least another year and his evidence demonstrates that although he has signed up for parenting classes, he has not yet studied parenting skills. In these circumstances, I believe the finding of unfitness and the termination of respondent’s parental rights as being in the children’s best interest are justifiable.

I write separately because I cannot agree with our depravity analysis. In this case, the State initially relied on the rebuttable presumption of depravity created by statute. 750 ILCS 50/l(D)(i) (West 2002). Procedurally, as the opinion explains, the presumption is sufficient, standing alone, to establish depravity and thus unfitness — but only if the respondent produces no evidence opposing the presumption. If opposing evidence is produced, the burden of proof remains on the State.

That burden is to prove, by clear and convincing evidence, that (1) respondent’s acts constituting depravity are of sufficient duration and repetition to establish deficiency in moral sense and (2) either an inability or an unwillingness to conform to accepted morality. In re J.A., 316 Ill. App. 3d 553, 736 N.E.2d 678 (2000). It thus appears to me that once the respondent has produced opposing evidence, the simple recitation of his criminal history is no longer sufficient to prove depravity. The State must also prove inability or unwillingness to conform to accepted morality. If, indeed, all the State must do to meet its burden is simply to reiterate the criminal history which originally triggered the rebuttable presumption, the presumption is in reality an irrebuttable one. It seems to me that the State’s burden is to show that, despite respondent’s counter evidence, he is still unable or unwilling to conform his behavior to accepted morality.

The crimes of which respondent was convicted were burglary (felony 1995), theft (felony 1997), retail theft (misdemeanor 2000), unlawful delivery of a controlled substance (felony 2003), and possession of a controlled substance (misdemeanor 1997). His evidence established that during his current incarceration he had completed an 8- to 10-week “Education to Careers Seminar” with perfect attendance and a six-month “Commercial Custodial Services” class that he had finished with a 3.8 grade point average. Because of his superior grades, he was appointed supervisor for the custodial program. He was also working on a degree in small business management and had recently been approved for work release. In contrast to the securing of his GED in 1995, respondent’s recent achievements demonstrate (1) efforts to position himself for gainful employment — perhaps even starting his own business — upon his release and (2) serious effort to succeed in the classes, as shown by his attendance and his grades. Viewed in terms of the test for depravity, his evidence tends to support a conclusion that he is both willing and developing the ability to conform his behavior to accepted morality — to earn an honest living rather than resorting to crime.

For all of these reasons, I do not believe the State has sustained its burden of proving, by clear and convincing evidence, that respondent is unfit by reason of depravity.