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In re A.F.

Court of Appeals of Illinois, Third District

May 3, 2018

In re A.F., a Minor
Gabriel F., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Circuit No. 12-JA-73 Honorable Kirk D. Schoenbein, Judge, Presiding.

          JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion.



         ¶ 1 The trial court entered orders finding respondent, Gabriel F. (father), to be an unfit parent and terminating father's parental rights concerning the minor, A.F. On appeal, father argues that the trial court's fitness determination was erroneous. We affirm.

         ¶ 2 FACTS

         ¶ 3 On October 19, 2012, the State filed a neglect petition alleging that father neglected A.F., born July 9, 2012, by subjecting the minor to an environment injurious to her welfare pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b) (West 2012)). Specifically, the neglect petition alleged that on or about September 9, 2012, [1] A.F. suffered a fracture to her right femur and a fracture to her left tibia by means other than accidental while in the care of father. On December 6, 2012, the State filed a supplemental petition adding the allegation that, "During the time that the minor was hospitalized in August of 2012, multiple problems with the father were noted by hospital staff which included but were not limited to the father having disregard for the minor's pain or risks of moving the minor's fractured limb."

         ¶ 4 On February 28, 2013, father stipulated that the allegations of the original petition could be proven by a preponderance of the State's evidence. On that same date, the trial court entered an adjudicatory order finding A.F. neglected. On April 19, 2013, the trial court entered a dispositional order finding father unfit based on the physical abuse of A.F.

         ¶ 5 The injuries A.F. suffered in 2012 gave rise to criminal proceedings in Tazewell County case No. 13-CF-36 against father. The State initially charged father with the Class X felony of aggravated battery to a child. 720 ILCS 5/12-3.05(b)(1) (West 2012). However, pursuant to a plea agreement, father plead guilty to the Class 2 felony of aggravated domestic battery pursuant to section 12-3.3(a) of the Criminal Code of 2012 in that he "knowingly caused great bodily harm to A.F. (F/W DOB 7/9/12), a family member, in that he performed the acts which resulted in fractures to A.F.'s left tibia and right femur." See id. § 12-3.3(a). In exchange for father's guilty plea to aggravated domestic battery, the State dismissed the Class X felony of aggravated battery to a child. The trial court sentenced father to a term of seven years in the Illinois Department of Corrections. Father remained incarcerated when this appeal was filed.

         ¶ 6 The juvenile case proceeded over the next three years and the trial court conducted several permanency review hearings. On December 30, 2016, the State filed a petition to terminate father's parental rights. The termination petition alleged that father was depraved, pursuant to section 1(I) of the Adoption Act (750 ILCS 50/1(I) (West 2016)), because father had been "convicted of Aggravated Domestic Battery to a Minor, [2] in Tazewell County case No. 13-CF-36." On January 26, 2017, father filed an answer to the State's termination petition, which admitted to his prior conviction of aggravated domestic battery but claimed he was rehabilitated and denied that it was in A.F.'s best interests to terminate his parental rights.

         ¶ 7 On June 9, 2017, the trial court began a hearing on the State's termination petition. The parties agreed that the statutory provision under which the termination petition was brought should be amended to correct a scrivener's error and amend the statutory basis for the petition to section 1(D)(i) of the Adoption Act (id. § 1(D)(i)) instead of section 1(I). The trial court continued the hearing to August 24, 2017. On that date, the State admitted State's exhibit No. 1, a certified copy of father's conviction for aggravated domestic battery in Tazewell County case No. 13-CF-36, over father's objection, as evidence of father's depravity. Additionally, the court took judicial notice of the entire court file in Tazewell County case No. 13-CF-36 without objection from father.

         ¶ 8 After the State's evidence, father testified before the court and explained that he was 19 years of age at the time of his arrest in Tazewell County case No. 13-CF-36. In August 2012, around the time of the incident in this case, father lived with his infant child, A.F., and A.F.'s biological mother.

         ¶ 9 Father testified that he grew up with two brothers and an adopted sister, had a good relationship with his parents, had a good upbringing, was never abused, and graduated from high school in 2011. Father advised the court that, prior to his arrest in Tazewell County case No. 13-CF-36, he had been employed and his prior record included convictions of misdemeanor possession of cannabis, failure to signal, and a prior adjudication for retail theft when he was a minor. Father reported that he had previously used marijuana, mushrooms, and MDMA but stopped using drugs when his girlfriend became pregnant with A.F. Father was engaged in some DCFS services prior to his arrest in January 2013 but did not complete services, such as a drug-alcohol assessment, a psychological evaluation, or a parenting class. Father completed no additional services in prison because he was on the back of the waitlists. Father enjoys fishing, building things, playing guitar, and aquariums.

         ¶ 10 Father provided an explanation to the court concerning the 2012 injuries to A.F. that resulted in criminal charges against father. According to father's testimony, he accidentally fell on A.F. and broke her leg while changing her diaper in August 2012. Father admitted that his testimony was inconsistent with the agreed factual basis presented to the court as part of father's guilty plea in Tazewell County case No. 13-CF-36. Father conceded that the agreed factual basis for his guilty plea in Tazewell County case No. 13-CF-36, as recited to the trial court, established A.F.'s injuries occurred when father burped A.F. In addition, father admitted that he had given law enforcement different versions of how A.F.'s injury had occurred on prior occasions but had to tell the truth now because he did not "feel comfortable sticking to a lie." Father expected to be released from prison in January 2018, due to good behavior, with his mandatory sentence actually running to January 2021.

         ¶ 11 The court found father's version of events incredible and found father unfit on depravity grounds by clear and convincing evidence. The matter proceeded to a best interest hearing, and the court entered a dispositional order terminating father's parental ...

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