In re S.H.

NO. 4-96-0412

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In the Interest of S.H., D.H. & J.H., ) Appeal from
Minors, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Moultrie County
Petitioner-Appellee, ) No. 92J22
v. )
ALAN B. HEIMAN, ) Honorable
Respondent-Appellant. ) Daniel L. Flannell,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:
In July 1992, the State filed a petition to terminate
the parental rights of respondent (the termination petition),
Alan B. Heiman, regarding his three children: S.H., a female
born in October 1984; J.H., a male born in June 1983; and D.H., a
male born in May 1986. The State alleged that respondent was
unfit due to depravity, pursuant to paragraph 1501(D)(i) of the
Adoption Act (Ill. Rev. Stat. 1991, ch. 40, par. 1501(D)(i) (now
750 ILCS 50/1(D)(i) (West 1994)). The State based this claim
upon respondent's July 1992 conviction of two counts of aggravat-
ed criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par.
12-14(b)(1)), in which he was charged with sexual penetration of
his daughter, S.H., by placing his penis in her vagina and her
mouth. In February 1994, this court affirmed his conviction
(People v. Heiman, 254 Ill. App. 3d 1121 (1994) (unpublished
order under Supreme Court Rule 23).
In February 1996, the trial court conducted a hearing
on the termination petition and found respondent to be unfit.
The court later determined that it would be in the children's
best interests to terminate respondent's parental rights.
Respondent appeals, arguing that (1) the State failed
to prove he was unfit based upon depravity; and (2) the trial
court's finding that terminating his parental rights was in the
children's best interests was against the manifest weight of the
evidence. We affirm.
I. BACKGROUND
In July 1992, the State filed the termination petition,
and in September 1992, the State also filed a petition for
adjudication of wardship (hereafter the abuse petition), pursuant
to section 802-3 of the Juvenile Court Act of 1987 (Ill. Rev.
Stat. 1991, ch. 37, par. 802-3(2)(iii) (now 705 ILCS 405/2-
3(2)(iii) (West 1994)). The abuse petition alleged in part, that
S.H., D.H., and J.H. were abused minors because
"[respondent] committed on several, separate
occasions, the offense of [a]ggravated
[c]riminal [s]exual [a]buse on the minor
child [S.H.], in that he, being a person over
the age of 17 years, knowingly committed acts
of sexual penetration with [S.H.], who was
under the age of 13 years, in that he placed
his penis in the vagina of [S.H.], and placed
his penis in the mouth of [S.H.]."
In January 1993, the trial court conducted a joint hearing on
both petitions, at which respondent agreed to admit the allega-
tions in the abuse petition. In accordance with this agreement,
respondent would not be allowed to see the children during the
time he was serving his eight-year prison sentence in the Depart-
ment of Corrections (DOC). Further, he would attend prison
counseling sessions, and the reports of those sessions would be
submitted to the court and counsel.
The trial court accepted respondent's admission to the
abuse petition and addressed respondent's projected "out date"
from DOC. The court then continued the hearing on the still-
pending termination petition until December 1995--a delay
of 35 months--for "status review." The court took this action
over the objections of the children's guardian ad litem, as well
as counsel for the respondent mother (who had long since been
separated from respondent). The record does not reveal why the
court believed a delay of this magnitude was appropriate. Given
the young age of the children involved, a prompt hearing on the
termination petition would have been in the children's best
interests. Trial courts should be reluctant to grant continu-
ances in such cases, and when a continuance is necessary, it
normally should be for the shortest time possible. Lengthy
continuances should be granted only under the most extraordinary
circumstances.
In December 1995, the trial court reallotted the
hearing on the termination petition until January 1996, and later
continued that hearing to February 1996. When the court finally
conducted the hearing in February 1996, the State presented its
case, the entirety of which consisted of the State's request that
the court take judicial notice of respondent's July 1992 convic-
tion in Moultrie County case No. 92-CF-5 of two counts of aggra-
vated criminal sexual assault committed upon S.H. When the court
granted the State's request, the State rested. (We note in
passing that the State's supposed need to continue the hearing on
the termination petition for 35 months seems all the more remark-
able when the case the State actually presented to the court
could not have been more simple.)
After the State rested, respondent moved for dismissal,
citing In re Abdullah, 85 Ill. 2d 300, 423 N.E.2d 915 (1981), and
arguing that "the law is crystal clear [that a] conviction stand-
ing alone is insufficient for termination of parental rights."
The trial court took the matter under advisement and later denied
respondent's motion to dismiss. The court found that the State
had presented a prima facie case of respondent's depravity as
alleged in the termination petition. In so ruling, the court
stated that it had reviewed the report of proceedings in Moultrie
County case No. 92-CF-5 of which it had taken judicial notice.
The court also noted that the State made a prima facie case of
depravity not only as to S.H., but also as to her two siblings,
who were not named victims in Moultrie County case No. 92-CF-5.
The court specifically found that "the proof of depravity in
actions directed toward one minor child stands as sufficient
proof of depravity with respect to all minor children of [respon-
dent]."
In March 1996, the trial court reconvened the hearing
on the termination petition and heard additional evidence.
Respondent's father testified that respondent expressed remorse
for what he had done, that he misses his children and loves them,
and that he is attending a sex offender counseling program in
Shelbyville. Respondent's father conceded that prior to respon-
dent's committing these offenses, he had also indicated to his
father that he loved his children. Respondent's father also
revealed on cross-examination that he did not believe respondent
ever committed the offenses in the first place. According to
respondent's father, respondent said he pleaded guilty to the
charges only because he did not want to see S.H. "drug through
all that."
Respondent did not testify at the hearing. After
listening to arguments of counsel, the trial court concluded that
the evidence demonstrated that respondent "is totally devoid of
any moral sense or rectitude with respect to these children, and
the court finds the State has sustained its burden of proof of
clear and convincing evidence of the depravity of the respon-
dent." The court then set the matter for a dispositional hearing
to determine whether terminating respondent's parental rights
would be in the children's best interests.
At that May 1996 hearing, a mental health worker who
counseled the children testified that S.H., who was then 11, was
still afraid of her father. The mental health worker saw no
benefit to S.H.'s resuming a relationship with respondent.
A social worker with the Illinois Department of Chil-
dren and Family Services (DCFS) also testified that she had been
working with S.H. for two years and that S.H. still feared her
father. J.H. similarly told the DCFS worker that he was afraid
of respondent. Last, the DCFS worker opined that it would be in
the best interests of the children to terminate respondent's
parental rights. Again, respondent did not testify. At the
conclusion of this hearing, the trial court held that it was in
the best interests of the children that respondent's parental
rights be terminated, and the court so ordered.
II. ANALYSIS
A. Proof of Depravity
On appeal, respondent repeats the argument he made at
the trial level: Abdullah stands for the proposition that "a
single criminal conviction, without more, will not support a
finding of unfitness based on depravity." Abdullah, 85 Ill. 2d
at 306, 423 N.E.2d at 918. We note that some appellate court
decisions support this argument. In In re R.G., 165 Ill. App. 3d
112, 134, 518 N.E.2d 691, 705 (1988), the Second District Appel-
late Court wrote that "the certified copy of respondent's convic-
tion for aggravated criminal sexual assault against [the minor
child in question], by itself, would not support a finding of
unfitness based on depravity." In addition, the First District
Appellate Court recently wrote that while
"[d]epravity of a parent may be shown by a
series of acts or a course of conduct that
indicates a moral deficiency and an inability
to conform to accepted morality. [Citation.]
*** [A] single felony conviction is not suf-
ficient in and of itself to establish the de-
pravity of a parent[.]" In re Dawn H., 281
Ill. App. 3d 746, 757, 667 N.E.2d 485, 493
(1996).
In so holding, the first district cited this court's decision in
In re Sanders, 77 Ill. App. 3d 78, 395 N.E.2d 1228 (1979), as
support for its holding. In Sanders, this court held that to
prove depravity, the State "was required to establish--by clear
and convincing evidence--repetitious acts of sufficient duration
to establish a deficiency in a moral sense and either an inabili-
ty or an unwillingness to conform to accepted moral standards."
Sanders, 77 Ill. App. 3d at 81, 395 N.E.2d at 1231; see also In
re Marriage of T.H., 255 Ill. App. 3d 247, 255, 626 N.E.2d 403,
409 (1993) ("[d]epravity may be established by a series of acts
*** indicating a deficiency in a moral sense *** [but] the mere
fact of a felony criminal conviction is not sufficient to justify
a finding of depravity" (emphasis added)).
Both parties (and all courts) agree that the supreme
court's Abdullah decision should be the primary basis for analyz-
ing the sufficiency of the State's evidence of depravity based
upon a respondent's conviction. Because we conclude that the
analyses of respondent--and the appellate courts (including this
one)--that respondent cites in support of his argument are
inconsistent with the supreme court's holding in Abdullah, we
decline to follow those decisions, and we reject respondent's
argument.
In Abdullah, the trial court found the respondent
father to be unfit based upon depravity because he murdered his
ex-wife, the mother of the three-year-old child regarding whom
the respondent's parental rights were terminated. Abdullah, 85 Ill. 2d at 303, 423 N.E.2d at 916. The State's sole witness at
the hearing on the State's petition to terminate respondent's
parental rights was the assistant State's Attorney who had
prosecuted respondent. As the Adbullah court noted, that
"witness identified defendant as the accused
in the murder trial, stated what the jury
verdict was, and said that the post-trial
motion had been denied. He testified that
the defendant had been sentenced to a prison
term of 60 years, though the basis for the
extended term was not explained." Abdullah,
85 Ill. 2d at 303, 423 N.E.2d at 916.
The respondent in Abdullah testified that his conviction was
pending on appeal, that his only prior conviction had been many
years earlier, and that he did not kill his ex-wife. After
hearing this testimony, the trial court took judicial notice of
the court file and docket sheet in the respondent's murder prose-
cution and found the State had proved the respondent an unfit
parent because of depravity. Abdullah, 85 Ill. 2d at 303-04, 423 N.E.2d at 916.
On appeal, the Fourth District Appellate Court re-
versed, holding that "while the factual evidence that formed the
basis of the murder conviction might show depravity, the mere
fact of conviction did not." Abdullah, 85 Ill. 2d at 304, 423 N.E.2d at 916-17.
The supreme court reversed the appellate court, citing
three separate factors in the evidence which showed the respon-
dent's depravity: (1) he was convicted of murder; (2) the murder
victim was the mother of respondent's child; and (3) the trial
court's imposition of an extended term of imprisonment indicated
that the murder was accompanied by exceptionally brutal and
heinous behavior demonstrating wanton cruelty. The supreme court
concluded that "[t]aken together, these three factors establish
that defendant suffered from an inherent deficiency of moral
sense and rectitude. They show depravity." Abdullah, 85 Ill. 2d
at 306-07, 423 N.E.2d at 918.
The Abdullah court also wrote the following (which we
note has created much confusion, as later appellate court deci-
sions show):
"Several decisions in the appellate
court, none involving murder, have held that
a single criminal conviction, without more,
will not support a finding of unfitness based
on depravity. [Citations.] The State con-
ceded this point, but argues that here there
was other evidence which, taken in conjunc-
tion with the evidence of murder, sufficient-
ly proved depravity." (Emphasis added.)
Abdullah, 85 Ill. 2d at 306, 423 N.E.2d at
918.
We disagree that this quote supports respondent's
claim--or the appellate court decisions that respondent cites--
that "a single criminal conviction, without more, will not
support a finding of unfitness based on depravity." After all,
the supreme court went to some pains to explain that the State
conceded this point and argued the presence of other evidence.
Thus, in the context of the case before it and the issues the
supreme court needed to decide, the sufficiency of a single
criminal conviction, without more, was not properly before the
court. As a result, the above quotation regarding prior appel-
late court decisions does not denote supreme court approval of
those decisions; at best, it constitutes dicta. We find support
for this conclusion in the specially concurring opinion of
Justice Clark, which reads in part as follows:
"This case stands for the proposition that a
showing that a person has been convicted of
the murder of his wife, the mother of his
child, and sentenced to an extended term of
60 years in prison clearly and convincingly
establishes depravity sufficient to dispense
with the person's consent to his child's
placement for adoption. In the first opinion
issued by this court, the majority held that
facts underlying the conviction were needed
before depravity would be established. Mr.
Justices Underwood and Ryan joined me in dis-
senting from that decision, and the court
subsequently granted a rehearing to reconsid-
er the decision. Upon further reflection[,]
we have decided that the underlying facts are
not needed in a case of this sort before
depravity is clearly and convincingly estab-
lished.
*** We have announced the rule that
depravity is sufficiently shown here by the
murder conviction, the identity of the vic-
tim, and the extended sentence. No need is
presented and no purpose is served by re-
counting the facts underlying the convic-
tion." Abdullah, 85 Ill. 2d at 311-12, 423 N.E.2d at 920 (Clark, J., specially concur-
ring).
In our judgment, the key holding from Abdullah is the
following: "[Section 1(D)(i) of t]he Adoption Act does not
define 'depravity,' but this court has held that depravity is
'"an inherent deficiency of moral sense and rectitude."'" Abdul-
lah, 85 Ill. 2d at 305, 423 N.E.2d at 917, quoting Stalder v.
Stone, 412 Ill. 488, 498, 107 N.E.2d 696, 701 (1952). This
narrow definition means that the commission of most felonies,
even very serious ones, will not, without more, support a finding
of unfitness based on depravity. Thus, the appellate court deci-
sions we earlier referred to correctly state that in most cases,
a single criminal conviction, without more, will not support a
finding of unfitness based on depravity. They are not correct,
however, insofar as they conclude that a single criminal convic-
tion, without more, can never support a finding of unfitness
based on depravity. Indeed, this very case provides the best
illustration of why respondent's argument here--and the prior
decisions he cites--cannot possibly be correct.
The court records of Moultrie County case No. 92-CF-5,
the case of which the trial court took judicial notice, contained
the evidence before the court on the issue of whether respondent
was unfit. In that case, respondent was convicted of two sepa-
rate Class X felonies of aggravated criminal sexual assault
because (1) he placed his penis in the vagina of S.H., his five-
year-old daughter, and (2) he placed his penis in her mouth. The
State argues that this record contained other information that
allegedly aggravates the circumstances of respondent's despicable
criminal conduct, but we explicitly decline to consider this
argument because our doing so might somehow suggest that the
criminal conduct already before the court as a result of respon-
dent's guilty pleas was insufficient to prove his depravity--a
proposition we emphatically reject.
Stripped of its legal niceties, respondent's argument
on appeal is essentially the following: "Sure, I sexually
assaulted my five-year-old daughter in the most vile ways, but
hey, everyone has a bad day. Surely, judge, you can't find me to
be an unfit parent until you learn more about the true me and how
I've behaved on other days." We view this argument as unper-
suasive. By committing the acts to which he pleaded guilty,
respondent has told us all about his true self that we ever want
--or need--to know. We hold that respondent's vicious and per-
verted conduct toward his young daughter constitutes by itself
overwhelming evidence that respondent is unfit within the meaning
of the Adoption Act because he possesses "'an inherent deficiency
of moral sense and rectitude.'" Abdullah, 85 Ill. 2d at 305, 423 N.E.2d at 917, quoting Stalder, 412 Ill. at 498, 107 N.E.2d at
701.
To demonstrate that this assessment of respondent's
posture before this court is not overstated, we quote the follow-
ing from the argument respondent's counsel made in February 1996,
in support of his motion that the trial court should dismiss the
State's petition after the State rested:
"In order to terminate his parental rights[,]
[the State has] to show by clear and convinc-
ing evidence he is a depraved person. ***
No showing here of anything other than a
single conviction. In fact, [respondent] has
no prior convictions of any [kind]. No pat-
tern of misconduct here. Simply one inci-
dent. And one incident[,] without more,
[does not] constitute[] anything approaching
an inherent deficiency of moral sense and
rectitude."
We recognize that the murder committed in Abdullah
might have been one of those regrettable crimes of passion
between adults whose preexisting relationship had gone sour. In
contrast, this case presents no crime of passion, but the worst
kind of perverted behavior a parent can exhibit toward his child,
breaching the oldest--and most important--position of trust in
human society. On this point, we agree with the following argu-
ment the State made at the termination hearing:
"[M]urder is a very serious crime, [and] I am
not saying it's not as serious as a sexual
assault would be. But it is possible to
commit the act of murder without total de-
pravity. *** [W]hile [murder] would be rep-
rehensible, *** it's conceivable a murder
could be committed without [classic depravity
being present]. *** [But] [t]here is no way
a person who puts a penis in a five-year-old
girl's *** mouth is not depraved."
The trial court agreed with these sentiments, explain-
ing its determination that respondent is unfit as follows:
"I agree with [the State] that I can think of
methods by which murder would not constitute
depravity. *** There are no circumstances
that I can formulate, and at least there are
no circumstances in this case ***, to indi-
cate [anything] but that the conduct admitted
to [by respondent] constitutes a clear find-
ing that this respondent father is totally
devoid of any moral sense of rectitude with
respect to these children."
In sum, we hold that a parent who commits acts like
these upon his or her own child is subject to being found unfit
due to depravity based solely upon that conduct, and that parent
thereby forever forfeits any claim to any further contact with
that child or his or her siblings.
We add the latter point because the trial court termi-
nated respondent's parental rights not only regarding S.H., the
victim of his perverted sexual conduct, but also regarding her
brothers, D.H. and J.H. Although respondent did not raise this
issue on appeal, we nonetheless reaffirm this court's earlier
decision that evidence supporting a parent's unfitness regarding
one child may serve as a basis for terminating parental rights
regarding each of that party's children, even where that evidence
relates to events occurring prior to the birth of some of the
children. See In re D.L.W., 226 Ill. App. 3d 805, 811, 589 N.E.2d 970, 974 (1992). When faced with evidence of prior abuse
by parents, the juvenile court should not have to refrain from
acting until each child suffers an injury. We agree with the
views of the First District Appellate Court that "'[a parent]
does not have the privilege of inflicting brutal treatment upon
each of his children in succession before they may individually
obtain the protection of the state.'" In re Brooks, 63 Ill. App.
3d 328, 339, 379 N.E.2d 872, 881 (1978), quoting In re Miller, 40 Wash. 2d 319, 323, 242 P.2d 1016, 1018 (1952).
B. Best Interests of the Children
On appeal, respondent also challenges the trial court's
conclusion that terminating his parental rights was in the
children's best interests. Once a court finds a parent unfit
within the meaning of section 1 of the Adoption Act, then paren-
tal rights can be terminated only if the court additionally finds
that it is in the best interests of the minors for that to occur.
A trial court's finding that termination is in the children's
best interests will not be reversed unless it is contrary to the
manifest weight of the evidence. In re C.R., 221 Ill. App. 3d
373, 382, 581 N.E.2d 1202, 1207 (1991). Given our earlier
discussion regarding respondent's perverted and deviant behavior,
we have no difficulty concluding that the trial court's decision
was not contrary to the manifest weight of the evidence.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
GREEN and KNECHT, JJ., concur.