In re S.D.

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re S.D., 2011 IL App (3d) 110184
Appellate Court In re S.D., L.D. and E.T., Minors (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Clarence T., Respondent-Appellant).
District & No. Third District
Docket No. 3-11-0184
Filed August 5, 2011
Held In proceedings seeking to terminate respondent’s parental rights arising
(Note: This syllabus from the stabbing death of the biological mother of his children, the trial
constitutes no part of judge properly denied an oral motion for recusal based on his presence in
the opinion of the court the courtroom prior to the unfitness hearing while other persons were
but has been prepared discussing evidence presented by the State in respondent’s murder trial,
by the Reporter of since there was no indication the judge found respondent unfit based on
Decisions for the anything other than his prior criminal convictions.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Peoria County, Nos. 10-JA-30, 10-JA-
Review 31, 10-JA-32, the Hon. Mark E. Gilles, Judge, presiding.
Judgment Affirmed.
Counsel on Louis P. Milot, of Peoria, for appellant.
Appeal
Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel and Nadia
L. Chaudhry, both of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Presiding Justice Carter and Justice Lytton concurred in the judgment and
opinion.
OPINION
¶1 The court found the State proved the allegations of a neglect petition alleging the minors’
environment was injurious to their welfare because their biological father, appellant Clarence
T., stabbed their biological “mother 30 times while in the presence of [E.T.] and a five year
old girl, killing the mother,” and because father had several prior criminal convictions.
Subsequently, the State filed a petition to terminate father’s parental rights.
¶2 On the morning of the unfitness hearing, the record reveals that individuals, who were
not involved in the termination proceedings, were engaged in conversation in the courtroom
while the judge was seated on the bench. According to the prosecutor, this conversation
included a discussion of photographs of blood-splatter evidence presented by the State during
father’s murder trial.
¶3 The judge denied father’s motion for recusal noting that anything the court overheard
would not affect his decision and he would rely on only the evidence presented to him at the
termination hearing. At the close of the termination hearing evidence, the court found father
unfit. Then, following a best interest hearing, the court also found it was in the minors’ best
interests to terminate father’s parental rights and allow the Department of Children and
Family Services (DCFS) to consent to their adoption.
¶4 Father appeals the court’s ruling denying his oral motion for recusal of the judge and the
court’s finding that it was in the best interests of the minors to terminate his parental rights
and place the minors for adoption. We affirm.
¶5 BACKGROUND
¶6 Respondent-appellant Clarence T. is the father of the minor children, S.D., L.D. and E.T.,
born October 17, 2002, June 15, 2006, and August 21, 2008, respectively. The mother of the
minors, Martha T., was deceased. On February 4, 2010, the State filed a neglect petition
alleging the minors’ environment was injurious to their welfare because father stabbed his
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estranged wife and the mother of the minors “30 times while in the presence of [E.T.] and
a five year old girl, killing the mother,” and that father had several criminal convictions in
his history. The court entered a temporary shelter care order placing the minors with DCFS
on February 5, 2010.
¶7 On June 29, 2010, after the adjudicatory hearing, the court found that the minors were
neglected due to an injurious environment. At the dispositional hearing on August 3, 2010,
the court found father dispositionally unfit to care for the minors, made the minors wards of
the court, and placed them under the guardianship of DCFS. At that time, father was still
incarcerated in the Peoria County jail pending trial on the murder charges involving the
minors’ mother’s death.
¶8 Subsequently, on August 11, 2010, the State filed a petition for termination of parental
rights on behalf of each of the minors alleging that respondent father was an unfit parent due
to depravity, under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)),
in that he had been convicted of several crimes from 1992 through 2006.1 Specifically, the
petition alleged father was convicted of the following offenses:
“92-CR-1300301 Aggravated Battery Cook County
93-C-22073401 Robbery and Aggravated Battery
Of Senior Citizen Cook County
95-CF-826 Theft (Misdemeanor) Sangamon County
98-CM-142 Battery Morgan County
98-CR-1822101 Aggravated Battery Cook County
03-CM-2397 Resisting a Peace Officer Peoria County
04-CM-2717 Retail Theft Peoria County
04-CM-2763 Domestic Battery (2 counts) Peoria County
06-CF-364 Violation of Order of Protection
Subsequent [O]ffenses Tazewell County.”
¶9 On February 3, 2011, prior to the termination hearing, the prosecutor disclosed on the
record that, as she entered the courtroom, she overheard general remarks made by other
persons in the courtroom, not involved in the termination proceedings, concerning details
about the photographic evidence depicting the blood-splattered murder scene which was
admitted during father’s separate murder trial. She stated that the judge was on the bench in
the courtroom, but was not participating in this discussion. According to the prosecutor, she
immediately interrupted and stopped the conversation.
¶ 10 Based on these circumstances, the State and guardian ad litem orally moved to have the
court recuse itself from the termination hearing arguing that, although the court did nothing
wrong, the court may have overheard some unsolicited details of photographic evidence that
would not be presented to the court for consideration during the termination hearing. Father
1
We note that S.D.’s petition to terminate parental rights listed respondent father as a
“putative father” under count I, and included a count II, which listed S.D.’s father as “unknown.”
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joined in that motion.
¶ 11 Before ruling on the motion to recuse, the trial judge noted that he had a general
knowledge that father’s felony trial had been completed and was aware of the outcome of
that trial. He said their circuit was a small circuit and he did not know of another judge who
would not be aware of father’s other case. Additionally, the judge stressed that he had not
viewed any photographic evidence and was not familiar with any evidence introduced by the
State during father’s felony trial. The court stated that any remarks that occurred in his
courtroom would have “no bearing on [his] mind and the matters that will be before [him],”
and stated that he would not consider any evidence beyond what the parties introduced
during the termination hearing. Consequently, the court denied the oral motion for the court
to recuse itself.
¶ 12 The court then conducted the unfitness hearing regarding the State’s petition for
termination of parental rights. The State produced certified copies of father’s convictions,
as alleged in the termination petition, to prove that father was depraved as defined by the
Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). The court found that the State proved its
case by clear and convincing evidence and found father unfit based on father’s previous
criminal history, which did not include the murder conviction. Following this finding, the
court set the case for a “best interests” hearing.
¶ 13 The family’s caseworker, Jenna Ricker, prepared a written report for the best interests
hearing revealing that, on January 19, 2011, father was convicted of murdering the minors’
mother and, at the time the report was prepared, father had not been sentenced. Additionally,
the report included Ricker’s opinion that it was in the best interests of the minors to
terminate father’s parental rights.
¶ 14 Ms. Ricker’s report further provided that the minors had initially been placed together
in temporary foster care at the home of their godmother until August 2010, when father
objected to that placement based upon the godmother’s extensive criminal history. The court
agreed with father and ordered that the minors be placed in a more suitable foster home. At
that time, S.D. was placed in a separate foster home, where he continued to reside. The two
younger minors were placed in a temporary foster home for two days until finding a more
permanent foster home, where they remained in placement, together, at the time of the
unfitness hearing. According to the report, the minors had adjusted well to their current foster
homes, which provided the minors with a safe and healthy environment, and all three minors
had strong bonds with their foster parents. Additionally, their current foster parents were
willing to adopt the minors if father’s rights were terminated. The report stated that the
minors had not seen their father since the stabbing on January 19, 2010, nor did they have
a bond with their father.
¶ 15 On February 16, 2011, the court held the best interests hearing and admitted Ricker’s
written report. During the best interests hearing, father testified that he disagreed with the
report. Father stated that he had a close bond with the minors and that it was not in their best
interests to terminate his parental rights. He explained that, when he resided with the minors
and their mother, he saw the minors consistently on a daily basis. Father said the minors
show their affection for him by hugging and kissing him. Father stated that he played games
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with the minors, read books to them, and attended school events with the oldest child. He
said he also cooked for the minors, washed their clothing, and made sure they were properly
bathed and dressed. Father testified that he disciplined the minors by giving them “timeouts”
if they did not obey him. Father stated that he wanted the minors placed with family members
rather than in a foster home.
¶ 16 Father then read a prepared statement to the court. Father said that he married the minors’
mother in 2005 and they remained a family until October 9, 2009, when father and mother
separated. They had been living in Miami, Florida, for a while. In October 2009, mother was
diagnosed with schizophrenia and bipolar disorder and, according to father, mother’s attitude
toward father changed. Father testified that mother started threatening father and used his
criminal history and her own mental illness to manipulate the court system to get father in
trouble.
¶ 17 Father stated that he was tried and convicted by the court system before his murder case
actually went to trial. He shared similar concerns that the outcome of the juvenile proceeding
was affected by statements made in the courtroom before his unfitness hearing began and
when the juvenile judge was present. Father said he was wrongfully determined to be a
depraved parent based on some outdated paperwork.2 Father stated he was innocent of first
degree murder and, because of the current proceedings, if the court terminates his rights, the
minors will have lost two parents instead of one, as well as all of their other family members.
Father asked the court not to terminate his parental rights and to place the minors with his
family members in Chicago.
¶ 18 Father testified that he, mother, and the minors all lived together in Miami from February
29, 2009, through fall of 2009. After mother’s death, father said the minors were originally
placed with the minors’ godmother, Karen, in the instant case and father did not agree with
that placement because she had several criminal felony convictions.
¶ 19 At the close of the evidence and arguments at the best interests hearing, the court found
that it was in the best interests of all three minors to terminate father’s parental rights, as well
as any possible unknown father of S.D. The court then awarded DCFS the guardianship of
the minors with the power to consent to adoption. Father filed a timely appeal.
¶ 20 ANALYSIS
¶ 21 On appeal, father claims that the trial court erred in denying the oral motion for recusal
on February 3, 2011. Additionally, father argues that it was not in the best interests of the
minors to terminate his parental rights. The State contends that the trial judge did not abuse
his discretion when deciding not to recuse himself from the juvenile case and, further, that
the court’s finding that it was in the best interests of the minors to terminate father’s parental
rights was not against the manifest weight of the evidence.
2
Father does not challenge this finding on appeal.
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¶ 22 I. Recusal By the Court
¶ 23 Supreme Court Rule 63(C)(1)(a) imposes an ethical obligation on every judge to
disqualify himself or herself in a proceeding when the court’s impartiality may be in
question. Ill. S. Ct. R. 63(C) (eff. Apr. 16, 2007). The rule provides:
“(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” Ill. S. Ct. R. 63(C) (eff. Apr. 16, 2007).
¶ 24 The record reveals that father joined the prosecutor’s and the guardian ad litem’s motion
for the court to recuse itself due the serious nature of termination of parental rights
proceedings. We review a trial judge’s recusal decision using an abuse of discretion standard
of review. Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 175 (2008); People v.
Kliner, 185 Ill. 2d 81, 169 (1998).
¶ 25 Neither an oral nor a written motion to recuse is required to trigger a judge’s personal
obligation to consider recusal as required by the Code of Judicial Conduct (Ill. S. Ct. R.
63(A) (eff. Apr. 16, 2007)). Although attorneys may make the court aware of certain factors
that could potentially require the trial judge to contemplate recusal, a party cannot compel
a judge to step aside by “moving” for recusal.
¶ 26 If the parties are not satisfied with the court’s ruling on an informal request for recusal,
the parties may then file a motion for substitution under section 2-1001(a)(3) of the Code of
Civil Procedure with the required affidavits in order to compel substitution in certain
situations. 735 ILCS 5/2-1001(a)(3) (West 2010); In re D.F., 201 Ill. 2d 476, 506 (2002).
Here, the parties did not file a written motion for substitution following the court’s decision
to deny the request to recuse; thus, the considerations applicable to a ruling on written
motion to substitute are not applicable to the analysis in this case.
¶ 27 In the case at bar, the prosecutor stressed that, although the judge was on the bench
during the conversation concerning father’s murder trial, the judge was not participating in
this discussion that occurred off the record. After the parties brought this circumstance to the
court’s attention, the trial judge carefully considered the concerns as raised by the parties.
The judge assured both sides that the discussion between other individuals in his courtroom
would have “no bearing on [his] mind and the matters that will be before [him].”
Consequently, the court elected to conduct the hearing as scheduled.
¶ 28 The case law establishes that a trial judge is presumed to be impartial. Eychaner v. Gross,
202 Ill. 2d 228, 280 (2002); In re Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991). The
case law also provides that a judge, when he is the trier of fact, is presumed to have
considered only admissible evidence before reaching a decision. People v. Naylor, 229 Ill.
2d 584, 603 (2008).
¶ 29 On appeal, father does not challenge the court’s finding of unfitness as improper or state
how the conversation, if overheard, affected the outcome of the best interests hearing.
Instead, father summarily contends the court should have recused itself based on the judicial
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canons.
¶ 30 After carefully reviewing this record, we conclude there is no indication that the judge
determined father was unfit based on any information other than the certified copies of
father’s previous criminal convictions offered for the court’s consideration. Based on this
record, we conclude that the trial judge did not abuse his discretion by denying the oral
motion to recuse himself from the proceedings.
¶ 31 II. Best Interests Hearing
¶ 32 Proceeding on a petition for termination of parental rights involves a two-step, bifurcated
approach where the court first holds an “unfitness hearing” (705 ILCS 405/2-29 (West 2010);
750 ILCS 50/1(D) (West 2010)) and, if the parent is found unfit, conducts a subsequent “best
interests hearing” (705 ILCS 405/2-29(2) (West 2010)). In re D.T., 212 Ill. 2d 347, 352-53
(2004). In the instant case, father does not challenge the court’s finding of unfitness at the
termination hearing. Instead, father contends that the court erroneously found that it was in
the best interests of the minors to terminate his parental rights and allow DCFS to place the
minors for adoption.
¶ 33 After a finding of unfitness, the State must prove by a preponderance of the evidence that
it is in the child’s best interests to terminate the parental rights. D.T., 212 Ill. 2d at 365. When
reviewing a trial court’s best interests determination, this court applies the manifest weight
of the evidence standard of review. In re R.L., 352 Ill. App. 3d 985, 1001 (2004); In re B.B.,
386 Ill. App. 3d 686, 697 (2008). A trial court’s decision is against the manifest weight of
the evidence if the facts clearly demonstrate that the court should have reached the opposite
result. In re D.F., 201 Ill. 2d at 498; B.B., 386 Ill. App. 3d at 697-98.
¶ 34 During the best interests hearing, the parent’s interest in maintaining the parent-child
relationship must yield to the child’s interest to live in a stable, permanent, loving home.
D.T., 212 Ill. 2d at 364. When determining the best interests of a child for purposes of a
termination petition, the court is required to consider a number of statutory factors “in the
context of the child’s age and developmental needs.” 705 ILCS 405/1-3(4.05) (West 2010).
These statutory factors include: (a) the physical safety and welfare of the child, including
food, shelter, health, and clothing; (b) the development of the child’s identity; (c) the child’s
background and ties, including familial, cultural, and religious; (d) the child’s sense of
attachments including (i) where the child actually feels love, attachment, and a sense of being
valued; (ii) the child’s sense of security; (iii) the child’s sense of familiarity; (iv) continuity
of affection for the child; and (v) the least disruptive placement alternative for the child; (e)
the child’s wishes and long-term goals; (f) the child’s community ties, including church,
school, and friends; (g) the child’s need for permanence, which includes the child’s need for
stability and continuity of relationships with parent figures and with siblings and other
relatives; (h) the uniqueness of every family and child; (i) the risks attendant to entering and
being in substitute care; and (j) the preferences of the persons available to care for the child.
705 ILCS 405/1-3(4.05) (West 2010); B.B., 386 Ill. App. 3d at 698-99.
¶ 35 In the case at bar, the evidence showed that father’s unfitness finding of depravity was
based upon several earlier convictions charging violent acts. Father does not challenge this
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depravity finding, and many of these convictions show father’s propensity for violence
relative to the minors’ safety and sense of security, which are factors in determining the
minors’ bests interests. In addition, prior to the best interests hearing, father had also been
convicted of the first degree murder charge which alleged that father killed the minors’
mother by stabbing her several times in the presence of E.T. and others.
¶ 36 By the time the court held the best interests hearing on February 3, 2011, the minors had
not seen father since their mother died on January 19, 2010. In spite of father’s testimony that
he had a close bond with his children, the best interests report stated that the minors did not
mention their father or have a bond with him. Instead, the report verified that all three minors
had adjusted well to their current foster care placements and had strong bonds with their
foster parents, and that the foster parents were willing to provide safe, healthy, and
permanent homes for the minors if they were released for adoption.
¶ 37 Based on this information, the trial judge found that the State had established, by a
preponderance of the evidence, that it was in the best interests of the minors to terminate
father’s parental rights. After our careful review of the record, in light of the factors to be
considered during a best interests hearing, we conclude the trial court’s finding regarding the
children’s best interests was not against the manifest weight of the evidence.
¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, we affirm the decision of the trial court terminating father’s
parental rights.
¶ 40 Affirmed.
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