A recent ruling in the Illinois Appellate Court decided the controversial issue if a father was an unfit parent and should have his parental rights terminated.
The minor child A.F., allegedly suffered a fracture to her right femur and her left tibia by means other than accidental while in the care of her father. The State of Illinois filed charges against her father for subjecting A.F. to an environment injurious to her welfare due to the fractures the child suffered. Then, the State filed supplemental charges against A.F.’s father based on the allegations that “…the father having disregard for the minor’s pain or risks of moving the minor’s fractured limb.”
A.F.’s father stipulated to the allegations of the original petition, and that they could be proved by the preponderance of the evidence. That same day, the trial court entered an order finding that A.F. was neglected. Soon thereafter, the trial court entered an order finding the father unfit based on the physical abuse of A.F.
Also, these injuries that A.F. suffered gave rise to criminal proceedings against A.F.’s father. Initially, the father was charged with a Class X Felony of aggravated battery to a child, but based on a plea agreement, the father plead guilty to a Class 2 Felony of aggravated domestic battery. Based on the plea agreement, the Class X felony charge was dismissed, and the father was sentenced to a term of seven years in the Illinois Department of Corrections.
Then the State petitioned the court to have the father’s paternal rights terminated. The father’s paternal rights were petitioned to be terminated under 750 ILCS 50/1(D)(i), because the father was convicted of Aggravated Domestic Battery to a Minor. The father filed an answer to these claims and admitted to his conviction but claimed that he was rehabilitated and denied that it was in the best interest of the child to have his parental rights terminated.
The trial court conducted a trial on the underlying issues. During the trial the father admitted that he did some drug use in his past, but stopped when A.F.’s mother became pregnant and that he was only 19 years old during the injuries to A.F. Also, the father testified that the injuries to A.F. that resulted in his criminal charges, were from him accidentally falling on A.F. and during the fall he broke her leg, this all happened while he was changing her diaper. The father’s in court testimony was inconsistent with his agreed-upon factual basis in his guilty plea that the injuries to A.F. happened while he was burping her. The trial court found the father’s version of the events incredible and found the father unfit on depravity grounds by clear and convincing evidence. Subsequently, a best interest hearing was conducted, and the court entered an order terminating the father’s parental rights.
On appeal the father argued that his prior conviction for domestic battery did not create a presumption of depravity under the statute. Also, he argued that if his conviction created a presumption of depravity, he properly rebutted the presumption with his in-court testimony.
The appellate court analyzed if Section 1(D)(i)(7) of the Adoption Act creates a presumption of depravity as a ground for parental unfitness if a parent has committed aggravated battery to a child. When a presumption of depravity is established, the burden is on the parents and no longer on the State to show by clear and convincing evidence that the parent is not depraved. Here, the appellate court reasoned that aggravated domestic battery is not one of the grounds listed in Section 1(D)(i)(7), but nonetheless the State can and did establish that a parent is depraved following a conviction for aggravated domestic battery without the presumption being listed in the statute.
The appellate court affirmed the trial court’s order finding the father unfit based on depravity and terminated the father’s paternal rights.
The case is In re A.F., 2018 IL App (3d) 170826.Super Lawyers named DuPage County Illinois family law and commercial law trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers and Illinois business dispute attorneys Patrick Austermuehle and Andrew Murphy Rising Stars in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. DiTommaso Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex family law, child support, child custody, class action, copyright, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes. Our Wheaton and Carol Stream family law, child custody, business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0000 or our toll-free number (877) 990-4990. You can also contact us online here.