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In Re Abdullah

OPINION FILED JUNE 26, 1981.

IN RE HANNIBAL ABDULLAH, MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

LONNIE ABDULLAH, A/K/A YUMBA LASUMBA, APPELLEE).



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Robert J. Steigmann, Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The circuit court of Champaign County found the defendant to be an unfit father under the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 et seq.). The finding was based on depravity. As a result, the defendant's consent to the adoption of his son, Hannibal Abdullah, was not required. The Department of Children and Family Services was appointed guardian with authority to consent to adoption. The sole issue to be determined is whether the evidence supports the finding of parental unfitness by reason of depravity.

Defendant has been found guilty in a jury trial of murdering his ex-wife, Anna Abdullah, the mother of Hannibal. In order to prove in this proceeding that defendant was depraved and therefore unfit, the State introduced the testimony of an assistant State's Attorney, one of the prosecutors at his murder trial. The 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. He also said Hannibal was 3 years old at the time of his mother's death. The State offered no other evidence.

Defendant testified that his conviction was pending on appeal, that his only prior conviction had been in 1963 or 1964 for battery, and that he did not kill his ex-wife.

At the close of the testimony the State asked the court to take judicial notice of the court file and docket sheet in the murder prosecution. The circuit court did so and, based upon the evidence presented, found that the State had proved defendant depraved and unfit.

A divided appellate court reversed. (80 Ill. App.3d 1144.) The court's opinion stated that while the factual evidence that formed the basis of the murder conviction might show depravity, the mere fact of conviction did not. Since only the mere fact of conviction was before the trial court, the finding of depravity could not stand. (80 Ill. App.3d 1144, 1146.) A specially concurring opinion emphasized the need to flesh out the factual record in the case to clearly show depravity. The third judge argued that the sentence of 60 years could only be interpreted as an extended term under section 5-5-3.2 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.2), and that this was sufficient to establish that the child's mother had been killed by exceptionally brutal or heinous behavior indicating wanton cruelty. That judge suggested that the act of killing Anna Abdullah was inherently depraved and that the evidence before the court justified the judgment. 80 Ill. App.3d 1144, 1148.

This court granted leave to appeal under Rule 315 (73 Ill.2d R. 315). After oral argument and consideration, a decision was announced on December 1, 1980, with four justices holding that the State had failed to meet its burden of proof because the factual underpinnings for the extended term were not before the court. Because the best interests of the child were at stake, the majority remanded the cause to the circuit court for a new trial. The dissent, like the third judge in the appellate court, expressed the view that when the State brought forward the defendant's extended prison term the burden shifted to the defendant. The dissent reasoned that the defendant had not satisfied this burden and that he was therefore shown to be unfit. But to delay the child's placement until after the criminal appeal was resolved, the dissent suggested staying the mandate of this court.

On December 30, 1980, the appellate court affirmed the defendant's conviction in the murder prosecution (People v. LaSumba (1980), 92 Ill. App.3d 621), and defendant's petition for leave to appeal his conviction to this court was denied on March 31, 1981.

We allowed the State's petition for rehearing in this case, and additional argument was heard on March 11, 1981. We now reverse the decision of the appellate court and affirm the judgment of the circuit court that defendant is an unfit parent whose consent to adoption is not required.

Section 8 of the Adoption Act provides:

"[C]onsents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court to be an unfit person as defined in Section 1 of this Act * * *." (Ill. Rev. Stat. 1977, ch. 40, par. 1510.)

Section 1(D) of the Act states:

"`Unfit person' means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such ...


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