from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois. Circuit No. 11-JA-152 The Honorable Paula
Gomora, Judge, presiding.
JUSTICE McDADE delivered the judgment of the court, with
opinion. Justice O'Brien concurred in the judgment and
opinion. Justice Wright dissented, with opinion.
1 The circuit court entered orders finding the respondent,
Floyd F., to be an unfit parent and terminating his parental
rights to the minor, N.G. On appeal, the respondent argues
that the circuit court's finding of unfitness based on
depravity was error because his 2008 felony conviction was
based on a statute that was declared unconstitutional by the
supreme court and it must be vacated. We reverse and remand
the case for further proceedings.
3 On December 19, 2011, a juvenile petition was filed that
alleged the minor was neglected due to an injurious
environment. The minor's mother admitted the allegations
of the petition and the minor was adjudicated neglected on
September 19, 2012. After a dispositional hearing, the
circuit court made the minor a ward of the court, granted
guardianship to the Department of Children and Family
Services with the right to place, and found, inter
alia, the respondent to be an unfit parent.
4 In February 2016, the State sought to terminate the
respondent's parental rights to the minor, alleging he
was depraved based on his three felony convictions: (1) a
Class 4 felony conviction for aggravated unlawful use of a
weapon (circuit court case No. 08-CF-910); (2) a Class 2
felony conviction for unlawful use of a weapon by a felon
(circuit court case No. 09-CF-10); and (3) a Class X felony
conviction for armed habitual criminal (circuit court case
5 At the termination hearing in May 2016, the State presented
certified copies of the respondent's three felony
convictions. Counsel for the respondent informed the court
that there was an appeal pending regarding the
respondent's 2008 conviction and objected to the
introduction of the certified copy of that conviction. The
court overruled the objection, stating, "I don't
believe the appeal has any effect on the judgment of
conviction." The transcript of that hearing reflects the
"MR. PAVUR: Your Honor, my client tells me that on the
third exhibit, that there is a pending appeal going on. And I
am not exactly sure how that would effect [sic] it. But I
just couldn't let it go by.
So I do have an objection to that one based on the fact there
is an ongoing appeal having been filed challenging the
constitutionality of the arrest.
MS. RIPPY: Judge, I have no information, nor has this
conviction been reversed. If there is an appeal pending, this
conviction still stands until the Appellate Court states
otherwise. So I ask to admit People's Exhibit 3.
THE COURT: I don't believe the appeal has any effect on
the judgment of conviction. Over your objection, People's
3 is admitted."
6 Other evidence presented at the termination hearing
established that the respondent was currently incarcerated on
his armed habitual criminal conviction, for which he received
a sentence of 9½ years of imprisonment, and he was
projected to be paroled in 2019. At the close of the hearing,
the circuit court found that the respondent was depraved and,
therefore, unfit. After a best interest hearing on the same
date, the court found that it was in the minor's best
interest to terminate the respondent's parental rights.
The respondent appealed.
7 Supplemental Briefing
8 We sought and obtained documents from the Will County
circuit court regarding the respondent's 2008 conviction
for aggravated unlawful use of a weapon and 2011 conviction
for armed habitual criminal. Those documents indicated that
the respondent pled guilty to aggravated unlawful use of a
weapon in the 2008 case pursuant to section 24-1.6(a)(1),
(a)(3)(A) of the Criminal Code of 1961 (720 ILCS
5/24-1.6(a)(1), (a)(3)(A) (West 2008)) and that there was no
appeal or other matter pending regarding that case at any
time after October 2008. However, there is a pending
postconviction petition in the 2011 case, which alleges that
the respondent's armed habitual criminal conviction
cannot stand because it was predicated in part on his 2008
conviction, which has been rendered a nullity by People
v. Aguilar, 2013 IL 112116.
9 Upon receipt of these documents, we asked the parties to
provide additional briefing pursuant to the following minute
"The panel assigned to the above-captioned case has
secured, sua sponte, (1) the indictment in case
number 08-CF-910, reciting that the respondent in the instant
case was charged with two counts of aggravated unlawful use
of a weapon in violation of 720 ILCS 5/24-1.6(a)(1)(3)(A)
(West 2008), the section of the statute found
unconstitutional by the Illinois Supreme Court in People
v. Aguilar, 2013 IL 112116, (2) the amended
judgment-sentence showing he was found guilty of violating
720 ILCS 5/24-1.6(a)(1)(3), a Class 4 felony, and (3) the
circuit court's docket entry that states the court
accepted the defendant's guilty plea to aggravated
unlawful use of a weapon (Class 4 felony) as charged in Count
II of the indictment.
The parties are asked to answer the following question and to
submit additional documents pertinent to supporting your
answer: ARE THE PARTIES AWARE OF ANY REASON WHY THIS COURT
COULD NOT TAKE JUDICIAL NOTICE OF THE IDENTIFIED DOCUMENTS AS
A FACTUAL BASIS FOR ...