APPEAL from the Circuit Court of Will County; the Hon. THOMAS
W. VINSON, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This case is a consolidation of two civil cases originating in the Circuit Court of Will County. The subject matter of both cases is the welfare of Anthony Lenza and Zachery Lenza, who are minors. Appellate case No. 78-471 is an appeal by prospective adoptive parents of the Lenza children, Jerry Bryant and Marianna Bryant, from the dismissal of their petition to adopt these minor children. Appellate case No. 79-261 is an appeal by the natural father of the Lenza children, Michael Lenza, from a finding in a separate and subsequent proceeding from the attempted adoption, that his two minor children were dependent within the meaning of section 2-5 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-5). Although some of the relevant facts are common to both appellate cases, it would unduly complicate this opinion to recite the facts of each case together. Therefore, we will proceed with the first case chronologically to a decision before proceeding with the second case.
APPELLATE CASE NO. 78-471
On March 29, 1977, Jerry and Marianna Bryant, who are husband and wife, filed a petition in the Circuit Court of Will County seeking to adopt the two Lenza children. At the time of the filing of the petition to adopt, Anthony Lenza was six years old and his brother Zachery Lenza was two years old. The two children had been in the custody of the Bryants since December 21, 1975, continuously up to the date of the adoption petition. The children's natural father, Michael Lenza, was incarcerated in the State of Missouri serving a life imprisonment sentence for his conviction of second degree murder (not premeditated) of Christina Lenza, the natural mother of the children who are the subject matter of this adoption proceeding. In May of 1979, the Missouri Court of Appeals, Eastern District, affirmed the conviction and sentence of Michael Lenza. State v. Lenza (Mo. App. 1979), 582 S.W.2d 703, cert. denied sub nom. Lenza v. Missouri (1980), 444 U.S. 1021, 62 L.Ed.2d 652, 100 S.Ct. 678.
The petition to adopt and an amendment thereto filed by the Bryants alleged:
1. that the natural father of the children was unfit as a parent because he was convicted of the second degree (not premeditated) murder of Christina Lenza, the natural mother of the children;
2. that the natural father was incarcerated for a life sentence and has failed to maintain reasonable degree of interest, concern or responsibility as to the children's welfare; and
3. that the natural father deserted his children for a period in excess of three months;
4. that Michael had a violent temper as evidenced by his kicking in a door, removing his wife and child from their home and boasting about not having to pay income taxes.
Following the presentation of evidence in support of the Bryants' petition to adopt, the trial court granted the motion of the father, Michael Lenza, for judgment holding that the Bryants had not proved their petition. The Bryants have appealed from that adverse judgment.
On appeal it is argued that the entry of judgment against the Bryants on their adoption petition is against the manifest weight of the evidence. The first and strongest theory of Michael Lenza's unfitness as a parent was his criminal conviction in Missouri for the murder of his children's natural mother. It is argued that the natural father is unfit because of depravity. Depravity is one of the statutory grounds for a finding of parental unfitness. It has been defined as "`an inherent deficiency of moral sense and rectitude.'" (Stalder v. Stone (1952), 412 Ill. 488, 498, 107 N.E.2d 696, 701.) As we observed in In re Buttram (1978), 56 Ill. App.3d 950, 372 N.E.2d 1135, "[d]epravity may be established by a series of acts or a course of conduct indicating a deficiency in a moral sense and showing either an inability or an unwillingness to conform to accepted morality." (56 Ill. App.3d 950, 954, 372 N.E.2d 1135, 1138.) However, one prior felony conviction alone has been held to be insufficient to automatically constitute depravity. (In re Adoption of Kleba (1976), 37 Ill. App.3d 163, 345 N.E.2d 714; Townsend v. Curtis (1973), 15 Ill. App.3d 209, 303 N.E.2d 566; Young v. Prather (1970), 120 Ill. App.2d 395, 256 N.E.2d 670; and Smith v. Andrews (1964), 54 Ill. App.2d 51, 203 N.E.2d 160.) Even a conviction of murdering the child's mother has been held to be insufficient to establish depravity. In re Abdullah (1980), 80 Ill. App.3d 1144, 400 N.E.2d 1063.
• 1 In the proceeding below the trial court was informed merely of the fact that Michael Lenza had been convicted of second degree murder in Missouri. Quite correctly, the trial court pointed out that the mere fact of a conviction is insufficient to establish depravity in an adoption case. "In my opinion of the law, my finding of the law that one fact isolated by itself [i.e., a murder conviction] does not establish depravity under the definition in our Adoption Statute. There must be other matters coupled with it or there must be a factual showing as to what the defendant did, non [sic] of which we have."
Although there was no error by the trial court in deciding this issue on the evidence (or rather lack of evidence) before it (Abdullah), on appeal the court has been provided with a certified copy of the decision of the Eastern District, Missouri Court of Appeals, affirming Lenza's conviction (State v. Lenza (Mo. App. 1979), 582 S.W.2d 703, cert. denied sub nom. Lenza v. Missouri (1980), 444 U.S. 1021, 62 L.Ed.2d 652, 100 S.Ct. 678). This opinion contains the details surrounding Mrs. Lenza's death. Consequently, unlike Abdullah, where the factual basis of the defendant's conviction was not brought to the attention of either the trial or appellate courts>, this court is now informed of the underlying facts of Mr. Lenza's conviction.
• 2 The question now arises as to whether, by taking judicial notice of the Missouri appellate decision ourselves, this court is to determine whether Mr. Lenza is depraved within the meaning of the Adoption Act (Ill. Rev. Stat. 1979, ch. 40, par. 1501(D)(i)), or whether we are to remand to the trial court for the purpose of making this determination. Certainly we would be justified in taking judicial notice of the underlying facts of Lenza's conviction contained in State v. Lenza. "Judicially noticeable facts may be noticed initially by the appellate court on review, * * * for the purpose of supplying gaps in the evidentiary record, either to save the case from reversal or to support a reversal of the trial court." (S. Gard, Illinois Evidence Manual Rule 2:22 (2d ed. 1979).) However, we are hesitant to take any action which could conceivably result in a reversal of a trial court when, on the evidence before it, no error was committed in reaching its decision. We therefore choose to remand this issue to the trial court with instructions that it take judicial notice of the underlying facts of Lenza's ...