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In re J.B.

June 12, 1998

IN THE INTEREST OF J.B., J.B., J.B., K.B., D.D. AND L.A.D., ALLEGED TO BE ABUSED AND NEGLECTED MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,
v.
JOSEPH DEERWESTER, RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Justice Green delivered the opinion of the court:

Appeal from Circuit Court of McLean County Nos. 91J2 92J64

Honorable Elizabeth A. Robb, Judge Presiding.

The State appeals from an order entered by the circuit court of McLean County on September 18, 1997, dismissing its petition to terminate the parental rights of respondent, Joseph Deerwester, to D.D. (born October 5, 1989) and L.D. (born April 16, 1991) in McLean County case Nos. 91-J-2 and 92-J-64, respectively. On appeal, the State contends that evidence of respondent's criminal convictions for offenses against his stepchildren in McLean County case No. 91-CF-22 was sufficient for the trial court to have found that respondent was an unfit parent based on depravity (750 ILCS 50/1(D)(i) (West 1996)). We agree with the State and reverse and remand to the trial court.

Respondent had four minor stepchildren with whom he lived in a one-room trailer and raised as his own children with their mother, his wife, Sherry Deerwester. Those children are Je.B. (born December 21, 1983), Jo.B. (born December 28, 1984), Ja.B. (born March 17, 1986), and K.B. (born May 28, 1988). Respondent and Sherry had two children of their own, D.D. and L.D., who are the subjects of the termination proceedings against respondent. L.D. never lived with respondent as she was born after respondent was incarcerated. Sherry is not a respondent to the instant termination proceedings.

On January 11, 1991, the four stepchildren and D.D. were taken into protective custody due to allegations of neglect and abuse. An investigation ensued by the Bloomington police department and, on February 14, 1991, respondent was criminally charged with seven counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)), two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12-16(c)(1)), unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10-3)), and cruelty to children (Ill. Rev. Stat. 1989, ch. 23, par. 2368), based upon acts respondent committed against his four stepchildren. On April 24, 1991, the four stepchildren and D.D. were adjudicated wards of the court based upon a finding that the children were neglected and abused, the Department of Children and Family Services (DCFS) was appointed guardian, and a protective order was entered prohibiting respondent from having any contact with the children. On September 5, 1991, L.D. was adjudicated a ward of the court based on a finding that she was a neglected minor.

On March 13, 1992, following a jury trial, respondent was found guilty of each of the 11 counts. The trial court imposed three consecutive terms of 40 years' imprisonment with concurrent sentences of 45, 30, 10, 5, and 5 years' imprisonment. On direct appeal, this court upheld all convictions, except count VIII alleging aggravated criminal sexual assault. This court reversed the conviction and sentence as to that count and upheld the other sentences, with certain reductions, in all other counts. People v. Deerwester, 249 Ill. App. 3d 1109, 660 N.E.2d 569 (1993) (unpublished order under Supreme Court Rule 23).

On May 23, 1994, the State filed an amended petition to terminate respondent's parental rights to D.D. and L.D. The petition alleged respondent was an unfit parent as defined by section 1(D) of the Adoption Act (Act) (750 ILCS 50/1(D) (West 1996)), as follows:

"A. The minor's father was convicted of inflicting sexual abuse and other acts of physical violence on four half-siblings of [D.D.] and [L.D.] in McLean County case No. 91-CF-22, such acts were of a depraved nature and demonstrate [respondent's] unfitness to have a child. [750 ILCS 50/1(D)(i) (West 1994).]

B. The minor's father was convicted of inflicting sexual abuse and other acts of physical violence on four half-siblings of [D.D.] and [L.D.] in McLean County case No. 91-CF-22, such acts being other [than] neglect of, or misconduct toward the children. [750 ILCS 50/1(D)(h) (West 1994).]

C. The minor's father was convicted of inflicting sexual abuse and other acts of physical violence on four half-siblings of [D.D.] and [L.D.] in McLean County case No. 91-CF-22, such acts constitute extreme or repeated cruelty to the children. [750 ILCS 50/1(D)(e) (West 1994).]

D. The minor's father failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children. [750 ILCS 50/1(D)(m) (West 1994).]

E. The minor's father failed to make reasonable progress toward the return of the [children to] him within 12 months of the adjudication of the child under the Juvenile Court Act [of 1987 (705 ILCS 405/2-3 (West 1994)). 750 ILCS 50/1(D)(m) (West 1994)]."

Subsequently, adjudicatory hearings were held on the petition. The court took judicial notice of the 11-count indictment of which respondent was convicted in case No. 91-CF-22. That 11-count indictment, excluding count VIII (which this court held on direct review was not sufficiently proved at trial) charged respondent with placing his penis in Jo.B.'s mouth (count I), placing Jo.B.'s penis in respondent's mouth (count II), and placing respondent's penis in Jo.B.'s anus (count VII). Respondent was further charged with placing his penis in K.B.'s mouth (count III), placing respondent's penis in the hand of Ja.B. (count VI), placing respondent's penis in Ja.B.'s anus (count IX), placing respondent's penis in Ja.B.'s mouth (count X), and placing respondent's penis in the hand of Je.B. (count XI). The indictment further alleged respondent committed unlawful restraint against Ja.B. in that respondent tied Ja.B. up with a rope (count IV) and committed cruelty to children against Ja.B. by throwing Ja.B. against a board, causing a large cut on Ja.B.'s chin (count V). At the time of the indictment, Je.B. was seven years old, Jo.B. was six years old, Ja.B. was four years old, and K.B. was two years old.

At the termination hearing, the trial court allowed the State's motion to withdraw its request that the court review the transcripts of the criminal proceedings. Thus, the only evidence of respondent's criminal conduct was in the form of certified copies of his convictions, the indictment, and this court's order on direct appeal. Other evidence was presented by ...


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