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People v. Deanthony B.

March 15, 2001

IN THE INTEREST OF D.P., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE
v.
DEANTHONY B., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois No. 99--JA--45 Honorable Barbara J. Badger Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge

The respondent, Deanthony B., was found to be an unfit parent, for among other reasons, his repeated incarceration which prevented him from performing his parental responsibilities. After a best interest hearing, his parental rights to the minor, D.P., were terminated. On appeal, the respondent urges this court to declare section 1(D)(s) of the Adoption Act (Adoption Act) (750 ILCS 50/1(D)(s) (West 1998)) unconstitutional and reverse the trial court's decision. We affirm.

FACTS

D.P. was born on October 2, 1996. The State filed a petition on June 3, 1999, alleging neglect by D.P.'s mother. The respondent was served with the petition. A hearing was held on August 11, 1999. The respondent was present. At the conclusion of the neglect hearing, the trial court found that D.P. was abandoned and that her environment was injurious to her welfare and adjudicated her neglected.

On September 29, the State filed a motion to terminate parental rights claiming that D.P.'s mother and the respondent failed to maintain a reasonable degree of interest, concern, and responsibility for D.P., or to make reasonable efforts to correct the conditions for the removal of D.P., or to make reasonable progress toward her return within nine months of adjudication. Four months later, the State amended the motion to include an allegation that the respondent's parental rights should be terminated due to his repeated incarceration. The respondent was served with notice of both motions and was present at the fitness hearing.

At the hearing, the State presented certified copies of the respondent's convictions. The convictions showed that the respondent had served two terms of imprisonment since D.P.'s birth. The respondent admitted that he pled guilty to possession of a firearm in November 1996, and sentenced to 30 months' probation. In March 1997, he pled guilty to possession of a stolen motor vehicle and sentenced to a term of three years' imprisonment. He was released in February of 1998. At the time of the hearing, the respondent was serving a 12-year sentence in the Department of Corrections for armed robbery. His projected parole date was November 28, 2010. The respondent testified that if he received credit for good behavior, he might be eligible for early parole in 2004.

The respondent further testified that he did not know he was D.P.'s father until August of 1999. After the respondent realized he was D.P.'s father, he wrote to her four or five times, and spoke with her on the telephone. On one occasion, D.P.'s foster mother took D.P. to visit the respondent in prison. The respondent also wrote to D.P.'s caseworker inquiring about D.P.'s well-being. As of the hearing, the respondent had not sent D.P. child support. He admitted that his effort to financially support D.P. was limited because of his incarceration.

The trial court found that the respondent failed to make reasonable efforts to correct the conditions which were the basis for the removal of the child, or to make reasonable progress towards the return of the child within nine months after the adjudication of neglect (750 ILCS 50/1(D)(m) (West 1998)). It also concluded that the respondent was unfit because he was incarcerated at the time the motion to terminate was filed and had been repeatedly incarcerated as a result of criminal convictions (750 ILCS 50/1(D)(s) (West 1998)). A best interest hearing was held, and the respondent's parental rights were terminated. The respondent appeals.

ANALYSIS

Among other factors, the defendant was found to be unfit pursuant to section 1(D)(s) of the Adoption Act because he had been continually incarcerated. On appeal, the respondent does not argue that the evidence failed to establish that he had been repeatedly incarcerated or that such incarceration prevented him from completing his parental responsibilities. Rather, he maintains that section 1(D)(s) is unconstitutional.

Section 1(D)(s) of the Adoption Act provides that the State may prove a parent unfit if:

"the parent is incarcerated at the time the petition or motion for termination of parental rights is filed, the parent has been repeatedly incarcerated as a result of criminal convictions, and the parent's repeated incarceration has prevented the parent from discharging his or her parental responsibilities for the child." 750 ILCS 50/1(D)(s) (West 1998).

Generally, statutes are presumed to be constitutional, and any doubts are resolved in favor of the legislation's validity. In re A.S.B., 293 Ill. App. 3d 836, 688 N.E.2d 1215 (1997). A statute is unconstitutional if it violates a person's substantive and procedural rights to due process. Kelley v. Johnson, 425 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). To determine if a law violates substantive due process, we must first consider whether the statute impedes upon a fundamental right or discriminates against a suspect class. A.S.B., 293 Ill. App. 3d 836, 688 N.E.2d 1215. If the statute does not affect a fundamental right, we apply the rational basis test to determine its constitutionality. People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 703 N.E.2d 1 (1998). To withstand such a test, the statute "need only be rationally related to a legitimate state goal." Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 37, 672 N.E.2d 1178, 1195 (1996). If any set of facts can reasonably be conceived to justify the relationship, the law must be upheld. A.S.B., 293 Ill. App. 3d 836, 688 N.E.2d 1215.

In the context of the Adoption Act, whether a fundamental right is at issue depends upon the facts of the particular case. When a parent has never established "a custodial, personal, or financial relationship" with a child or merely abandons the child, the constitution does not bestow upon him the fundamental right of parenthood. A.S.B., 293 Ill. App. 3d 836, 847, 688 N.E.2d 1215, 1224. A determination of unfitness may be made regardless of the respondent's efforts or ...


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