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11/07/96 S.H. v. ALAN B. HEIMAN

November 7, 1996

IN THE INTEREST OF S.H., D.H. & J.H., MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ALAN B. HEIMAN, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Moultrie County. No. 92J22. Honorable Daniel L. Flannell, Judge Presiding.

Released for Publication November 7, 1996. As Corrected January 22, 1997.

Honorable Robert J. Steigmann, J., Honorable Frederick S. Green, J. - Concur, Honorable James A. Knecht, J. - Concur. Justice Steigmann delivered the opinion of the court.

The opinion of the court was delivered by: Steigmann

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 section 1(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 aggravated 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, 217 Ill. Dec. 719, 667 N.E.2d 1112 (1994) (unpublished order under Supreme Court Rule 23).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 2-3 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 aggravated criminal sexual abuse 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 allegations 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 Department 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 continuances 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 conviction in Moultrie County case No. 92-CF-5 of two counts of aggravated 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 remarkable 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, 53 Ill. Dec. 246 (1981), and arguing that "the law is crystal clear [that a] conviction standing 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 [respondent]."

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 respondent'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 ...


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