People v. Floyd F. (In Re N.G.)

2018 IL 121939

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 121939, 121961, cons.)

In re N.G., a Minor (The People of the State of Illinois et al.,

Appellants, v. Floyd F., Appellee).

Opinion filed August 9, 2018.

CHIEF JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Justice Burke concurred in the judgment and opinion.

Justice Kilbride specially concurred, with opinion.

Justice Neville specially concurred, with opinion.

Justice Theis dissented, with opinion, joined by Justices Thomas and Garman.

OPINION

¶1 At issue in this appeal is whether the circuit court of Will County erred when it

terminated Floyd F.’s parental rights to his minor child, N.G., on the grounds that

he was an unfit person within the meaning of section 1(D) of the Adoption Act (750

ILCS 50/1(D) (West 2010)) because, prior to N.G.’s birth, he had been convicted of

at least three felonies under the laws of this state and was therefore “depraved” (id.

§ 1(D)(i)).

¶2 The appellate court held that because one of the three felonies on which the

circuit court had relied in making its finding of depravity—a 2008 conviction for

aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1),

(a)(3)(A), (d) (West 2008))—was based on the same statute we found to be facially

unconstitutional under the second amendment to the United States Constitution

(U.S. Const., amend. II) in People v. Aguilar, 2013 IL 112116, the conviction had

no legal force or effect and therefore should not have been considered by the circuit

court in making its fitness determination. Consistent with that holding, the

appellate court vacated Floyd F.’s AUUW conviction and reversed the trial court’s

finding that he was an unfit parent. Without such a finding, there was no basis for

holding that termination of Floyd F.’s parental rights was in N.G.’s best interests.

The appellate court therefore reversed the trial court’s best interest determination as

well and remanded for further proceedings. 2017 IL App (3d) 160277.

¶3 One member of the appellate court dissented in part. She agreed that the

judgment terminating Floyd F.’s parental rights should be set aside and the cause

remanded for further proceedings. Unlike the other members of the panel, however,

she would have refrained from vacating the 2008 AUUW conviction, leaving that

instead to the circuit court. She would also have ordered that further consideration

of the petition to terminate be postponed until after the circuit court had addressed

the viability of Floyd F.’s 2008 AUUW conviction. 2017 IL App (3d) 160277, ¶ 37

(Wright, J., concurring in part and dissenting in part).

¶4 The Department of Children and Family Services (DCFS) and the minor,

through her guardian ad litem, separately petitioned this court for leave to appeal.

Ill. S. Ct. Rule 315(a) (eff. Nov. 1, 2017). We allowed both petitions and

consolidated them for argument and disposition. For the reasons that follow, we

affirm the judgment of the appellate court.

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¶5 BACKGROUND

¶6 Floyd F. is the natural father of N.G., who was born on July 27, 2011. On

December 19, 2011, while Floyd F. was incarcerated in the Department of

Corrections and N.G. was living with her mother, DCFS petitioned the circuit court

of Will County to adjudicate N.G. a ward of the court on the grounds that she was

neglected within the meaning of section 2-3(1)(b) of the Juvenile Court Act of 1987

(705 ILCS 405/2-3(1)(b) (West 2010)) because her environment was injurious to

her welfare. A guardian ad litem was appointed to represent N.G.’s best interests,

and a temporary custody hearing was held the same day (see id. § 2-10). At the

conclusion of the hearing, the trial court found probable cause to believe that N.G.

was neglected, determined that no efforts could reasonably be made to prevent or

eliminate her removal from the home, and held that it was in her best interest to be

placed in shelter care.

¶7 During the ensuing months, Floyd F.’s mother was given care of N.G., but N.G.

was subsequently placed with her maternal grandmother so that she could be

together with a half-sibling. The record shows that N.G.’s mother took N.G. to visit

Floyd F. in the Department of Corrections. Floyd F.’s grandmother (N.G.’s

paternal great grandmother) also took her, at least monthly, to visit Floyd F. where

he was incarcerated. During those visits, Floyd F. and N.G. practiced counting

numbers, reciting the ABCs, and writing N.G.’s name.

¶8 While N.G. was briefly returned to her mother’s custody, her mother proved

unable to properly care for her or to remedy the problems that had led to filing of

the initial petition for adjudication of wardship. N.G. was once again placed with

her maternal grandmother. Eventually, N.G.’s mother admitted the allegations of

the petition, and the minor was adjudicated neglected on September 19, 2012. After

a dispositional hearing, the trial court made N.G a ward of the court, granted

guardianship to DCFS with the right to place, and found Floyd F. to be an unfit

parent.

¶9 Originally, the goal of DCFS was to keep N.G. safe while it provided services

to her mother so that N.G. could be returned to her. However, 2½ years later, N.G.’s

mother was still unable to maintain a safe and stable environment, and it was not

foreseeable that she would be able to do so in the near future. Accordingly, DCFS

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sought termination of both parents’ rights so that N.G. could be adopted by her

maternal grandmother.

¶ 10 In August 2014, DCFS filed a motion pursuant to section 2-29(2) of the

Juvenile Court Act (id. § 2-29(2)) to terminate the mother’s and Floyd F.’s parental

rights and to appoint a guardian for N.G. with the authority to consent to her

adoption. DCFS sought termination on the grounds that the parents were “unfit

person[s]” within the meaning of section 1(D) of the Adoption Act because they

had failed “to maintain a reasonable degree of interest, concern or responsibility as

to the [minor’s] welfare” (750 ILCS 50/1(D)(b) (West 2010)), failed “to make

reasonable efforts to correct the conditions that were the basis for the removal of

the [minor]” from them (id. § 1(D)(m)(i)), and failed “to make reasonable progress

toward the return of the [minor]” to them during any nine-month period after the

end of the initial nine months following the adjudication of neglect (id.

§ 1(D)(m)(ii)). DCFS asked the court to give its guardian administrator

guardianship of N.G. with the power to consent to her adoption.

¶ 11 The trial court continued the hearing on this motion twice: initially so Floyd F.

could take a paternity test in order to confirm that he was N.G.’s biological father,

as indicated on her unsigned birth certificate, and again because the court was

concerned that Floyd F. might not have received either proper notice that his

parental rights were at risk or a sufficient opportunity to participate in DCFS’s

services. In September 2015, the court found N.G.’s mother unfit but ruled that

DCFS had failed to prove its case against Floyd F. The trial court was unwilling to

find Floyd F. unfit until he had the opportunity to engage in services for at least

another nine months.

¶ 12 In February 2016, DCFS filed a second motion to terminate Floyd F.’s parental

rights. This time, however, it relied on an entirely new theory. Instead of citing

Floyd F.’s actions or failure to act with respect to N.G.’s welfare, the conditions

that were the basis for DCFS’s original motion, the new motion charged unfitness

based on totally different circumstances, all of which occurred before N.G. was

born. Specifically, it asserted that Floyd F. had been criminally convicted of at least

three felonies under the laws of this state and at least one of those convictions had

taken place within five years of the filing of its motion. The three convictions on

which DCFS relied were a 2008 AUUW conviction, a Class 4 felony; a 2009

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conviction for unlawful use of a weapon by a felon, a Class 2 felony; and a 2011

conviction for being an armed habitual criminal, a Class X felony arising from an

arrest months before N.G.’s birth. DCFS’s new theory was that because of these

three prior felony convictions, Floyd F. was “depraved” or presumptively

“depraved,” within the meaning of section 1(D)(i) of the Adoption Act (id.

§ 1(D)(i)), and therefore unfit to retain his parental rights with respect to N.G., who

appears to be his only child.

¶ 13 DCFS’s decision to proceed under section 1(D)(i) and abandon its claims of

unfitness under the provisions of the Act asserted in its original termination motion

was timely. We note, however, that DCFS made no mention of section 1(D)(i) until

the five-year time limit set forth in that provision was nearing its end. Floyd F.’s

most recent conviction was entered August 22, 2011. DCFS’s motion seeking

termination under 1(D)(i) was not filed until February 11, 2016, more than 4½

years later, and the order terminating Floyd F.’s parental rights was entered May

12, 2016. The record offers no explanation for DCFS’s decision to wait so long to

invoke the provision. Under the circumstances, however, it seems likely that DCFS

resorted to section 1(D)(i) only because it thought the provision offered a potential

last-minute expedient for sidestepping the circuit court’s rejection of its efforts to

establish that Floyd F. was unfit on other grounds.

¶ 14 In any case, when the new termination hearing was held, DCFS moved to admit

into evidence certified copies of all three convictions. Floyd F. objected to the

admission of evidence of his 2008 AUUW conviction. He noted that there was a

pending appeal that could potentially affect the validity of that conviction. The

court indicated that it did not believe the appeal had any effect on the judgment of

conviction and admitted all three convictions into evidence. Other admitted

evidenced established that respondent was currently incarcerated on his 2011

armed habitual criminal conviction and is projected to be paroled in 2019. Based on

this evidence, the trial court found that respondent was depraved and, thus, unfit.

As a result, the trial court found that it was in the minor’s best interest to terminate

Floyd F.’s parental rights.

¶ 15 Floyd F. appealed to the appellate court. In that appeal, he argued that the trial

court erred in finding him depraved and therefore unfit under section 1(D)(i) of the

Adoption Act because the 2008 conviction on which that determination depended

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was based on the specific statutory provision struck down by this court as facially

unconstitutional in Aguilar, 2013 IL 122116, and was therefore a nullity. 1 While

Floyd F. acknowledged that he had not explicitly raised this issue before the trial

court, he argued that the appellate court should exercise its authority to put aside

any considerations of waiver or forfeiture due to the novelty of the issue and the

liberty interest at stake.

¶ 16 DCFS and N.G. responded with three arguments: (1) that respondent had

forfeited the issue and failed to ask for consideration of his claim under the plain

error doctrine, (2) that under our decision in People v. McFadden, 2016 IL 117424,

the invalidity of the underlying statute did not render a conviction void but only

made it subject to vacatur, and respondent had not obtained vacatur of his 2008

conviction, and (3) that the record contained no evidence that respondent was

convicted under the provision found unconstitutional in Aguilar.

¶ 17 The appellate court reversed and remanded. It first observed that, under

McFadden, 2016 IL 117424, ¶ 31, invalidation of respondent’s 2008 conviction for

AUUW did not occur automatically; rather, it had to be invalidated through a direct

appeal or a collateral attack. 2017 IL App (3d) 160277, ¶ 18. The appellate court

then explained that the case at hand is a civil action to determine respondent’s

fitness to maintain a role in the minor’s life and that the continued existence of the

2008 conviction was pivotal to that determination on the basis asserted by DCFS.

Id. ¶ 20. Accordingly, the appellate court held that the action qualified as a

collateral attack and was a permissible vehicle for challenging the validity of Floyd

F.’s 2008 criminal conviction. Id.

¶ 18 The appellate court found that its authority to vacate respondent’s 2008

conviction was grounded in our precedent. Id. ¶ 21. It noted that in People v.

1

In Aguilar, we held that the provision of the AUUW statute under which Floyd F. was

convicted was facially invalid because it violated the right to keep and bear arms, as guaranteed by

the second amendment. Aguilar, 2013 IL 112116. That determination was based on the United

States Supreme Court’s reasoning in District of Columbia v. Heller, 554 U.S. 570 (2008) (holding

that individuals have a right to keep and bear arms for the purposes of self-defense), and McDonald

v. City of Chicago, 561 U.S. 742 (2010) (holding a right to bear arms implies a right to carry a

loaded gun outside of the home), as well as the Seventh Circuit’s expansion of those cases in Moore

v. Madigan, 702 F.3d 933 (7th Cir. 2012) (holding Illinois’s unlawful use of weapons statute and the

AUUW statute, which generally prohibit the carrying of guns in public, violate second amendment

right to bear arms for self-defense outside the home).

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Thompson, 2015 IL 118151 (Dennis Thompson), we described three forms of

voidness challenges recognized in Illinois: (1) challenges to judgments entered by a

court without jurisdiction, (2) challenges to judgments based on a facially

unconstitutional statute that is void ab initio, and (3) challenges to judgments that

do not conform to the applicable sentencing statute. 2017 IL App (3d) 160277,

¶ 21. The third type of challenge was based on the “void sentence rule,” which was

recently abolished by People v. Castleberry, 2015 IL 116916. 2017 IL App (3d)

160277, ¶ 21. The appellate court then noted that in a pre-Castleberry case, this

court, in People v. Thompson, 209 Ill. 2d 19 (2004) (Ernest Thompson), considered

a claim raised for the first time in a postconviction proceeding that the

extended-term portion of a sentence was void and could be attacked at any time.

2017 IL App (3d) 160277, ¶ 22. As indicated by the appellate court, the Ernest

Thompson court explained:

“ ‘A void order may be attacked at any time or in any court, either directly or

collaterally. An argument that an order or judgment is void is not subject to

waiver. Defendant’s argument that the extended-term portion of his sentence is

void does not depend for its viability on his post conviction petition. In fact,

courts have an independent duty to vacate void orders and may sua sponte

declare an order void.’ ” (Emphasis omitted.) Id. ¶ 22, (quoting Ernest

Thompson, 209 Ill. 2d at 27).

The appellate court concluded that, even though the basis for voidness in Dennis

Thompson was invalidated in Castleberry, the decision in that case made it clear

that the voidness principles articulated in Ernest Thompson still apply to the two

remaining valid bases for voidness (lack of jurisdiction and judgment based on a

facially unconstitutional statute that is void ab initio). Id. ¶ 22. The appellate court

therefore held that Floyd F.’s claim “may be raised at any time in any court.” Id.

¶ 23.

¶ 19 The appellate court then clarified that Floyd F. was not claiming, as the

defendant in McFadden had, that his void conviction served as the predicate for a

second conviction, both of which occurred prior to the invalidation of the statute

and only the second of which he sought to vacate. Id. ¶ 25. It explained, while that

may be the posture of the postconviction petition in respondent’s 2011 habitual

criminal case, it was not his argument here. Id. Rather, Floyd F.’s contention was

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that (1) his 2008 conviction had been rendered a nullity in 2013, when Aguilar was

decided, (2) that conviction should be recognized as null and void, and vacated, and

(3) this void conviction could not serve in 2016 as a basis for the imposition of a

civil penalty—the loss of his parental rights. Id. The appellate court found these

differences distinguished Floyd F.’s case from McFadden and, therefore, did not

preclude Floyd F.’s challenge here. Id.

¶ 20 Consistent with this reasoning, the appellate court subsequently found that,

under Aguilar, Floyd F.’s 2008 conviction for AUUW was void and could not serve

as a basis for finding him depraved under section 1(D)(i) of the Adoption Act. Id.

¶ 31. It therefore vacated respondent’s 2008 conviction, reversed the trial court’s

unfitness finding, set aside the trial court’s related conclusion that termination of

Floyd F.’s parental rights was in N.G.’s best interest, and remanded the case to the

trial court for further proceedings. Id.

¶ 21 Both DCFS and N.G., through her guardian ad litem, petitioned this court for

leave to appeal. We allowed both petitions and consolidated the proceedings for

argument and disposition. For the following reasons, we affirm the appellate

court’s judgment.

¶ 22 ANALYSIS

¶ 23 We begin our review of this case by recognizing the gravity of the interests at

stake. When the State secured Floyd F.’s conviction under the portion of the

AUUW statute held unconstitutional in Aguilar, 2013 IL 112116, it violated his

second amendment rights. Through this proceeding, the State seeks to use that

unconstitutional conviction to secure an additional sanction: termination of Floyd

F.’s parental rights. Those parental rights are fundamental.

¶ 24 The United States Constitution provides that no state shall “deprive any person

of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV,

§ 1. The clause “guarantees more than fair process”; it offers “heightened

protection against government interference with certain fundamental rights and

liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). “These

liberty interests include the right to contract, engage in an occupation, acquire

knowledge, marry, establish a home and raise children, and worship God.” In re

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M.H., 196 Ill. 2d 356, 362 (2001) (citing Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 572 (1972), citing Meyer v. Nebraska, 262 U.S. 390, 399

(1923)). Parental rights, such as the right to rear one’s children or control their

education, are included in the parental rights protected by the due process clause.

Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). A natural parent’s right to

the care of his or her child is, in fact, an interest far more precious than any property

right protected by that provision. Santosky v. Kramer, 455 U.S. 745 (1982).

¶ 25 The United States Supreme Court has stated that, “ ‘[i]t is cardinal with us that

the custody, care and nurture of the child reside first in the parents, whose primary

function and freedom include preparation for obligations the state can neither

supply nor hinder.’ ” Troxel v. Granville, 530 U.S. 57, 65-66 (2000), (quoting

Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Further, “the interest of

parents in the care, custody, and control of their children—is perhaps the oldest of

the fundamental liberty interests recognized by [the United States Supreme

Court].” Troxel, 530 U.S. at 65. In light of this precedent, “it cannot now be

doubted that the Due Process Clause of the Fourteenth Amendment protects the

fundamental right of parents to make decisions concerning the care, custody, and

control of their children.” Id. at 66. Indeed, such rights are a “central part” of the

liberty protected by that clause (Obergefell v. Hodges, 576 U.S. ___, ___, 135 S.

Ct. 2584, 2600 (2015)), as the appellate court in this case correctly observed (2017

IL App (3d) 160277, ¶ 27).

¶ 26 Our court has likewise recognized parents’ fundamental liberty interest in

raising their children. See In re M.H., 196 Ill. 2d at 362; Lulay v. Lulay, 193 Ill. 2d

455, 470-71 (2000); In re Vanessa C., 316 Ill. App. 3d 475, 481 (2000); In re D.R.,

307 Ill. App. 3d 478, 482 (1999); People v. R.G., 131 Ill. 2d 328, 342 (1989); In re

Enis, 121 Ill. 2d 124, 128-29 (1988). Because a natural parent’s right to raise his or

her child is a fundamental liberty interest, involuntary termination of parental rights

is a drastic measure. Where a parent has not consented to relinquishment of his or

her parental rights, a court has no power to terminate the parent’s rights

involuntarily except as authorized by statute. In re Gwynne P., 215 Ill. 2d 340, 354

(2005).

¶ 27 A court’s statutory authority to terminate a parent’s rights involuntarily and to

appoint a guardian with the right to consent to the child’s adoption is delineated by

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the language of the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2010)) and

the Adoption Act (750 ILCS 50/0.01 et seq. (West 2010)). These acts contain strict

requirements that embody Illinois’s policy favoring parents’ superior right to the

custody of their children. 705 ILCS 405/1-1 et seq. (West 2010); 750 ILCS 50/0.01

et seq. (West 2010). When a court exercises its authority, it must proceed within the

confines of those laws. In re E.B., 231 Ill. 2d 459, 464 (2008).

¶ 28 Under the Juvenile Court Act, parental rights cannot be terminated absent the

parent’s consent unless the court first determines, by clear and convincing

evidence, that the parent is an “unfit person” as defined by section 1(D) of the

Adoption Act (750 ILCS 50/1(D) (West 2010)). 705 ILCS 405/2-29(2) (West

2010). “Involuntary termination of a parent’s rights without a prior showing of

unfitness would, in fact, be unconstitutional.” In re Gwynne P., 215 Ill. 2d at 354;

In re Petition of Kirchner, 164 Ill. 2d 468, 501 (1995).

¶ 29 Each case concerning parental fitness is sui generis, unique unto itself. In re

M.I., 2016 IL 120232, ¶ 21. As a general rule, a trial court’s finding that a parent is

unfit under section 1(D) of the Adoption Act will not be reversed on appeal unless

that finding is against the manifest weight of the evidence. Id. A trial court’s

decision regarding a parent’s fitness is against the manifest weight of the evidence

only where the opposite conclusion is clearly apparent. Id.

¶ 30 The circuit court’s finding of unfitness in this case was premised exclusively on

subsection 1(D)(i) of the Adoption Act, under which a parent is presumptively

deemed “depraved” and therefore unfit, if it has been established by clear and

convincing evidence that the parent has committed certain crimes or a combination

of crimes. See In re Gwynne P., 215 Ill. 2d at 249. More specifically, the circuit

court found Floyd F. “depraved” based on the portion of subsection 1(D)(i) that

provides:

“There is a rebuttable presumption that a parent is depraved if the parent has

been criminally convicted of at least 3 felonies under the laws of this State or

any other state, or under federal law, or the criminal laws of any United States

territory; and at least one of these convictions took place within 5 years of the

filing of the petition or motion seeking termination of parental rights.” 750

ILCS 50/1(D)(i) (West 2010).

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¶ 31 The problem, as Floyd F.’s trial counsel suggested and the appellate court

recognized, is that one of the three felony convictions on which DCFS’s claim of

depravity depended, the conviction from 2008 for aggravated unlawful use of a

weapon, was based on the very statute we struck down as unconstitutional in

Aguilar. The dispositive question in this appeal, and the one we must therefore now

address, is whether the trial court could rely on such a constitutionally invalid

conviction in determining whether DCFS had met its burden of establishing that

Floyd F. was unfit within the meaning of the depravity provisions of section 1(D)(i)

of the Adoption Act and, on that basis, terminate his constitutionally protected

parental rights. The answer to that question, as the appellate court correctly

concluded, is that it could not.

¶ 32 In Aguilar, we held that section 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal

Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)), specifically

the offense of aggravated unlawful use of a weapon, was unconstitutional on its

face under the second amendment to the United States Constitution. 2013 IL

112116, ¶ 22; see also People v. Burns, 2015 IL 117387. There is no question that

Floyd F.’s 2008 conviction was based on that facially unconstitutional statute.

Although the certified copies of Floyd F.’s criminal convictions included in the

original record in this case did not reflect the specific provision of the statute under

which he was convicted, the appellate court recognized the importance of

determining whether Floyd F.’s conviction was, in fact, based on the particular

subsection of the statute found to be facially unconstitutional in Aguilar. The

appellate court therefore, sua sponte, took judicial notice of court records from

Floyd F.’s 2008 prosecution in the Circuit Court of Will County. 2017 IL App (3d)

160277, ¶ 17. Doing so was well within the appellate court’s authority. See

Metropolitan Life Insurance Co. v. American National Bank & Trust Co., 288 Ill.

App. 3d 760, 764 (1997); NBD Highland Park Bank, N.A. v. Wien, 251 Ill. App. 3d

512 (1993); State Farm Fire & Casualty Co. v. Watts Regulator Co., 2016 IL App

(2d) 160275, ¶ 40. Those records confirmed that Floyd F.’s 2008 conviction was

based on section 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal Code of 1961 (720

ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)).

¶ 33 Because section 24-1.6(a)(1), (a)(3)(A), (d) is facially unconstitutional under

the second amendment to the United States Constitution (Aguilar, 2013 IL 112116,

¶ 22; People v. Burns, 2015 IL 117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th

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Cir. 2012)) and the existence of Floyd F.’s conviction under that facially

unconstitutional statute was necessary to the trial court’s determination that he was

depraved within the meaning of the Adoption Act, Floyd F.’s conviction under the

statute must be vacated, and the circuit court’s finding of depravity must be

reversed. The reason for that is grounded in both federal constitutional law, which

we are required to follow, and the law of this state.

¶ 34 The United States Supreme Court has identified two basic paths for analyzing

the consequences of a constitutionally deficient criminal conviction. Which path a

court must follow depends, in the first instance, on the reason the conviction is

unconstitutional. Where the conviction is found to have resulted from

constitutionally deficient procedures, that determination does not negate the

possibility that the defendant is actually culpable for the underlying offense and

could have been convicted of that offense had the constitutionally mandated

standards been followed.

¶ 35 In such cases, the conviction may still be used for some purposes, though not

for others. The general rule is that new rules of procedure do not apply retroactively

and therefore have no effect on prior convictions. Retroactive effect is given only in

a small set of cases where the decision by which the conviction was rendered

unconstitutional announced a watershed rule of criminal procedure implicating the

fundamental fairness and accuracy of the proceeding. See Schriro v. Summerlin,

542 U.S. 348, 351-52 (2004). Even in cases where such a watershed rule is

involved, however, there are circumstances in which the conviction obtained in

violation of that rule may still be given recognition and effect in later criminal

prosecutions. Lewis v. United States, 445 U.S. 55 (1980), discussed more fully later

in this opinion, elucidates this principle.

¶ 36 The second basic path identified by the United States Supreme Court,

exemplified by cases such as Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct.

718 (2016), and Class v. United States, 583 U.S. ___, 138 S. Ct. 798 (2018), applies

where a conviction is invalid because it was based on a statute found to be

unconstitutional on its face. To hold that a statute is facially unconstitutional means

that the conduct it proscribed was beyond the power of the state to punish.

Montgomery, 577 U.S. ___, 136 S. Ct. 718. It was not, is not, and could never be a

crime. Ex parte Siebold, 100 U.S. 371, 376 (1879). That being the case, the

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conviction must be treated by the courts as if it did not exist, and it cannot be used

for any purpose under any circumstances. Id. This is the line of authority by which

the present case is governed.

¶ 37 The principles underlying this second path are not new. They are deeply

embedded in our jurisprudence. See 16A Am. Jur. 2d Constitutional Law § 195

(1998). More than a century ago, the United States Supreme Court held that where,

as here, the statute on which a criminal conviction is based has been declared

facially invalid under the United States Constitution, the conviction must be

vacated and cannot be given any force or effect. Ex parte Siebold, 100 U.S. at

376-77. “An unconstitutional law is void, and is as no law.” Id. at 376. Thus, “[a]n

offence created by it is not a crime,” and “[a] conviction under it is not merely

erroneous, but is illegal and void.” Id.; Ex parte Royall, 117 U.S. 241, 248 (1886)

(“it is clear that if the [Virginia] statute under which [the defendant] was indicted be

repugnant to the constitution, the prosecution against him has nothing upon which

to rest, and the entire proceeding against him is a nullity”).

¶ 38 The United States Supreme Court recently reaffirmed these principles in

Montgomery, 577 U.S. ___, 136 S. Ct. 718. In accordance with long-established

precedent, the court held in Montgomery that where, as here, a conviction is based

on an unconstitutional law, that conviction is not only erroneous but is illegal and

void and cannot be the legal cause of punishment. Id. at ___, 136 S. Ct. at 730.

Indeed, for a state to enforce a proscription or penalty barred by the Constitution

would itself be unlawful. Id. at ___, 136 S. Ct. at 730. Accordingly, not only must

the State stop charging defendants under the invalidated law in future prosecutions,

it is precluded from using past convictions under the facially unconstitutional law

in any subsequent proceedings “ ‘to support guilt or enhance punishment for

another offense,’ ” for doing so would be tantamount to forcing the defendant to

suffer anew the deprivation of his constitutional rights. United States v. Bryant, 579

U.S. ___, ___, 136 S. Ct. 1954, 1956-57 (2016) (quoting Burgett v. Texas, 389 U.S.

109, 115 (1967), and holding that convictions obtained in violation of the Sixth

Amendment are deemed void and may not be used in subsequent prosecutions).

Undeniably, the state is barred from giving any legal recognition to a conviction

based on a facially unconstitutional statute. That is so even if the underlying statute

is not invalidated until after the conviction becomes final. Montgomery, 577 U.S. at

___, 136 S. Ct. at 730.

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¶ 39 The explanation for this inheres in the nature of what it means for a statute to be

declared facially unconstitutional. While legislative repeal of a statute may not

invalidate convictions based on conduct occurring prior to the repeal (5 ILCS 70/4

(West 2010); People v. Glisson, 202 Ill. 2d 499, 507-08 (2002)), that is not the case

where a statute is declared unconstitutional by the courts. As a matter of federal

constitutional law, a judicial declaration that a criminal statute is facially invalid

under the United States Constitution means that the statute was fatally infirm from

the moment of its enactment and that the conduct it sanctioned was never a crime at

all. Ex parte Siebold, 100 U.S. at 376. Accordingly, in contrast to situations where a

conviction was obtained through a constitutionally deficient procedure, there is no

possibility of guilt or criminal culpability. The underlying conduct was

constitutionally immune from punishment. United States v. United States Coin &

Currency, 401 U.S. 715, 724 (1971). While the text of the law may remain in the

statute books, it is “ ‘in legal contemplation, as inoperative as though it had never

been passed.’ ” United States ex rel. Williams v. Preiser, 497 F.2d 337, 339 (2d Cir.

1974) (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886)).

¶ 40 Put in other words, a judicial determination that a law is facially invalid under

the Constitution of the United States means, as a matter of federal constitutional

law, that the state had no authority and the courts never acquired jurisdiction to

impose punishment under that law. Montgomery, 577 U.S. at ___, 136 S. Ct. at

730-31. And because there was never authority or jurisdiction to impose the

punishment in the first place, the United States Supreme Court has further held that

“a court has no authority to leave in place a conviction or sentence that violates a

substantive rule, regardless of whether the conviction or sentence became final

before the rule was announced.” Id. at ___, 136 S. Ct. at 731. “There is no

grandfather clause that permits States to enforce punishments the Constitution

forbids,” the Court has explained. Id. at ___, 136 S. Ct. at 731. “To conclude

otherwise would undercut the Constitution’s substantive guarantees.” Id. at ___,

136 S. Ct. at 731. When a court is confronted with a law repugnant to the

constitution, what it must do “is simply to ignore it” and “decide[ ] the case

‘disregarding the [unconstitutional] law.’ ” (Emphasis omitted and in original.)

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 760 (1995) (Scalia, J., concurring,

joined by Thomas, J.) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178

(1803)).

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¶ 41 State courts are under a mandatory obligation to adhere to this federal

constitutional command. Under the supremacy clause of the federal constitution

(U.S. Const., art. VI, cl. 2):

“ ‘[w]e are bound to follow the United States Supreme Court’s interpretation of

the Constitution of the United States.’ People v. Wagener, 196 Ill. 2d 269, 287

(2001). This means that when the Supreme Court adopts a particular framework

for applying a federal constitutional provision, we are required to follow

thatframework, regardless of how other courts, including this one, may have

approached the issue in other decisions. People v. Hale, 2013 IL 113140, ¶ 20.”

People v. Hood, 2016 IL 118581, ¶ 22.

Accordingly, because the United States Supreme Court has held that a statute that is

facially invalid under the constitution is void and unenforceable and “is as no law,”

the supremacy clause requires this court to reach the same conclusion. As the

highest court of one of our sister states has observed, “[i]t is fundamental that by

virtue of the Supremacy Clause, the State courts are bound by the decisions of the

Supreme Court with respect to the federal Constitution and federal law, and must

adhere to extant Supreme Court jurisprudence. U.S. Const. art. VI, cl. 2;

Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 221, 51 S.Ct. 453, 75 L.Ed. 983

(1931).” Council 13, American Federation of State, County & Municipal

Employees v. Rendell, 986 A.2d 63, 77 (Pa. 2009); see also People v. Hope, 184 Ill.

2d 39, 44 (1998) (“state courts are required to follow United States Supreme Court

precedent where the result therein is mandated by the Constitution of the United

States” (citing People v. Gillespie, 136 Ill. 2d 496, 502 (1990))). “States may not

disregard a controlling, constitutional command in their own courts.” Montgomery,

577 U.S. at ___, 136 S. Ct. at 727; see also Reynoldsville Casket Co., 514 U.S. at

760 (Scalia, J., concurring, joined by Thomas, J.) (where Ohio statute violated

federal constitution, Ohio courts were bound to ignore it).

¶ 42 We thus have an affirmative duty to invalidate Floyd F.’s AUUW conviction

and to treat the statute on which it was based as having never existed. Because the

finding of depravity depended on a void conviction based on a constitutionally

nonexistent statute, we must, in turn, reverse that finding, for without that

conviction the State would have failed to meet its burden of showing by clear and

convincing evidence that Floyd F. was depraved and therefore unfit under section

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1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). Absent that

conviction, the statutory presumption of depravity under section 1(D)(i) would not

even have been triggered.

¶ 43 There is no merit to the argument that this proceeding is not an appropriate

forum for Floyd F. to invoke Aguilar to establish that his 2008 AUUW conviction

was invalid because it was based on a statute that is facially invalid under the

second amendment. Our court has held that a judgment based on a statute that is

facially unconstitutional is void. People v. Price, 2016 IL 118613, ¶ 31. Illinois law

permits void judgments to be “ ‘impeached at any time in any proceeding whenever

a right is asserted by reason of that judgment, and it is immaterial *** whether or

not the time for review by appeal has expired.’ ” People v. Meyerowitz, 61 Ill. 2d

200, 206 (1975) (quoting Reynolds v. Burns, 20 Ill. 2d 179, 192 (1960)); R.W.

Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986) (a void

judgment, order, or decree “may be attacked at any time or in any court, either

directly or collaterally” (emphasis omitted)). Further, challenges to void judgments

are not subject to forfeiture or other procedural restraints. Price, 2016 IL 118613,

¶ 30. Because Illinois state courts would thus afford the opportunity for a collateral

challenge to the validity of a judgment in cases such as this, we cannot refuse to

give retroactive effect to a substantive federal constitutional right that is dispositive

of the challenge advanced by Floyd F. here. The supremacy clause of the United

States Constitution prohibits it. Montgomery, 377 U.S. at ___, 136 S. Ct. at 731-32.

¶ 44 Following the same established principles applied in Montgomery, other state

courts have reached the same conclusion under similar circumstances. See, e.g.,

People v. Germany, 674 P.2d 345, 349 (Colo. 1983) (en banc), where the Supreme

Court of Colorado invalidated a provision of state law that imposed a time bar on

challenges to unconstitutional convictions, including convictions based on statutes

declared unconstitutional after the conviction was imposed. Id. at 352. In reaching

this result, the court reasoned that a contrary conclusion would contravene “the

long-standing rule that a conviction under an unconstitutional law is void.” Id. “[I]t

is axiomatic,” held the court, “that a conviction imposed in violation of a basic

constitutional right may not be used to support guilt or to enhance punishment,” a

precept that emanates from “the principle that unconstitutional convictions, in

addition to being of suspect reliability, abridge the very charter from which the

government draws its authority to prosecute anyone.” Id. at 349. “[T]he

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implementation of an accused’s right to challenge governmental use of an

unconstitutional conviction is no more than one aspect of the duty of the judiciary

to uphold the constitution in all judicial proceedings.” Id. at 350. And while “the

state has a legitimate interest in preserving the finality of criminal convictions,”

“the state’s interest in finality is not a justification for permitting unconstitutional

convictions to stand.” Id.

¶ 45 To similar effect is Keeny v. Fitch, 458 S.W.3d 838 (Mo. Ct. App. 2015). In that

case, the defendant was required by state law to register as a sex offender after

pleading guilty more than 25 years earlier to a sexual offense based on consensual

conduct that was subsequently found by the United States Supreme Court in

Lawrence v. Texas, 539 U.S. 558 (2003), to be constitutionally protected. Keeny,

458 S.W.3d 838. The defendant claimed that he should no longer be required to

register as a sex offender. Id. By the time the United States Supreme Court declared

that his conduct could not be made a crime, however, there was no longer any

mechanism under Missouri state law for him to withdraw his plea. Id. The Missouri

Court of Appeals nevertheless granted him relief. Id. It held that he was entitled to a

declaratory judgment that he was no longer required to register as a sex offender

and ordered the state to remove his name and all other registration information

about him from the state’s sex offender registry. Id.

¶ 46 State v. Smith, 2016-Ohio-3521, 68 N.E.2d 114 (Ct. App.), a recent Ohio case

decided after Montgomery, is also in accord. Similar to Keeny, 458 S.W.3d 838, the

case involved a defendant who was under an ongoing duty to register as a

child-victim-oriented offender following his release from confinement for

convictions for child-enticement offenses under Ohio law. Smith, 2016-Ohio-3521,

68 N.E.2d 114. The convictions were imposed in 2004, no appeal was taken, and

defendant was released from confinement in 2007. Id. Seven years later, in an

unrelated case, the Ohio Supreme Court determined that the statute under which the

defendant had been convicted was facially unconstitutional under the first

amendment to the United States Constitution. Id. Based on that ruling, the

defendant filed motions to vacate his 2004 conviction. Id. The trial court rejected

defendant’s claims, but the Ohio Court of Appeals reversed. Id. After recognizing

that the effect of the 2014 ruling was to leave defendant convicted under an

unconstitutional statute, the court turned to the question of its jurisdiction to grant

relief. Id. It noted that the defendant had not specified a particular statute or rule on

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which relief could be granted and concluded that none of the normal procedural

avenues under Ohio law for appeal or collateral attack remained available to him.

Id. ¶ 15. The court held, however, that under the United States Supreme Court’s

decisions in Siebold and Montgomery, as well as under Ohio law, the effect of the

Ohio Supreme Court’s 2014 declaration that the statute under which defendant had

been convicted was facially unconstitutional under the first amendment of the

United States Constitution was to render defendant’s convictions void. Id. ¶ 29.

Under Montgomery and related Supreme Court precedent, the court was obligated

to give the 2014 state court ruling full retroactive effect. Id. ¶¶ 22-29. Because in

Ohio, as in Illinois, “a court always has jurisdiction to correct a void judgment” (id.

¶ 20), it reversed the trial court’s judgment and remanded with instructions to

vacate defendant’s conviction and ordered “that he be discharged from further

prosecution for those offenses,” a command that would relieve defendant from any

ongoing obligation to register as a child-victim-oriented offender under Ohio law.

Id. ¶ 30.

¶ 47 Application of these principles by federal courts has likewise afforded

individuals relief when they have found no recourse in state courts. In United States

ex rel. Williams, 497 F.2d 337, for example, the United States Court of Appeals for

the Second Circuit affirmed the grant of habeas corpus relief to a licensed

physician who had been convicted of manslaughter under state law and sentenced

to prison for performing a nonnegligent, consensual medical procedure eight years

before the United States Supreme Court ruled that physicians had a constitutional

right to perform the procedure without fear of prosecution. The court held that

because the states were forbidden by the constitution from regulating such

procedures, the state law for which the physician had been prosecuted was “ ‘in

legal contemplation, as inoperative as though it had never been passed.’

[Citation.].” Id. at 339. It necessarily followed that the physician could no longer

remain deprived of liberty based on that law. “This declaration of retroactive

invalidity,” concluded the court, “assures the supremacy of the newly recognized

substantive right over a state’s power to punish.” Id.

¶ 48 Moreover, while the United States Supreme Court has refused to consider

claims on habeas corpus that an indictment did not state an offense (Ex parte

Parks, 93 U.S. 18 (1876)), that an individual had been placed in double jeopardy

for the same offense (Ex parte Bigelow, 113 U.S. 328 (1885)), or that an individual

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had been compelled to incriminate himself (In re Moran, 203 U.S. 105 (1906)), the

Court has consistently and without exception recognized an obligation to afford

relief to a person convicted under an unconstitutional (void) statute (Ex parte

Siebold, 100 U.S. 371), and it continues to do so, as Montgomery illustrates.

¶ 49 Indeed, the United States Supreme Court reaffirmed the foregoing principles

just this year in Class, 583 U.S. ___, 138 S. Ct. 798. There, a defendant who had

been convicted of unlawful possession of a firearm on the grounds of the United

States Capitol sought to challenge the constitutionality of the statute under which

he was charged on the theory that it violated the second amendment and the due

process clause. Class, 583 U.S. ___, 138 S. Ct. 798. The government objected,

arguing that the defendant should be barred from raising his constitutional

challenge because he had pled guilty to the offense and because he had not

followed procedures set forth in the Federal Rules of Criminal Procedure. Id. The

Supreme Court rejected these arguments. Id. Following its prior precedent, it held

that because defendant’s constitutional challenge, like the challenge asserted by

Floyd F. here, went to the power of the government to criminalize the conduct at

issue and, if successful, would have meant that the offense in question was one that

the government had no constitutional authority to prosecute, defendant had the

right to raise that challenge on direct appeal. Id. Although Class involves a guilty

plea, the same underlying principle applies. Defendants convicted under a facially

unconstitutional statute may challenge the conviction at any time, even after a

guilty plea, because the State or Government had no power to impose the

conviction to begin with.

¶ 50 Likewise, Illinois law mandates Floyd F.’s 2008 conviction be vacated and the

finding of depravity reversed. Although the terminology may differ in certain

respects, Illinois follows the same basic approach as the United States Supreme

Court when dealing with the consequences of a facially unconstitutional statute.

When a statute is found to be facially unconstitutional in Illinois, it is said to be

void ab initio; that is, it is as if the law had never been passed (McFadden, 2016 IL

117424, ¶ 17; People v. Holmes, 2017 IL 120407, ¶¶ 12-13; Dennis Thompson,

2015 IL 118151, ¶ 32; People v. Carrera, 203 Ill. 2d 1, 14 (2002); Hill v. Cowan,

202 Ill. 2d 151, 156 (2002); People v. Gersch, 135 Ill. 2d 384, 399 (1990)) and

never existed (People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999)). Such laws

are “infirm from the moment of [their] enactment and, therefore, [are]

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unenforceable.” McFadden, 2016 IL 117424, ¶ 17; Holmes, 2017 IL 120407, ¶ 12;

Dennis Thompson, 2015 IL 118151, ¶ 32.

¶ 51 We apply these principles strictly where a defendant’s constitutional rights are

in need of vindication. Perlstein v. Wolk, 218 Ill. 2d 448, 466 (2006). “[W]here a

statute is violative of constitutional guarantees, we have a duty not only to declare

such a legislative act void, but also to correct the wrongs wrought through such an

act ***.” Gersch, 135 Ill. 2d at 399. As we recently noted in McFadden, to refuse to

give a decision declaring a statute facially unconstitutional full retroactive effect

would forever prevent those injured under the unconstitutional legislative act from

receiving a remedy for deprivation of a guaranteed right, a result that “ ‘would

clearly offend all sense of due process.’ ” McFadden, 2016 IL 117424, ¶ 18

(quoting Gersch, 135 Ill. 2d at 397).

¶ 52 While a conviction and sentence based on a facially unconstitutional statute

have no legal force or effect, and can be given none, their nullification is not

self-executing. Id. Judicial action is necessary. As we recently said in McFadden,

“[i]t is axiomatic that no judgment, including a judgment of conviction, is deemed

vacated until a court with reviewing authority has so declared.” Id. ¶ 31. The

voidness of a conviction and sentence based on a facially unconstitutional statute

may be addressed either on direct review of the conviction and sentence or in a

collateral proceeding. Id.

¶ 53 Floyd F. did not challenge the validity of his 2008 AUUW conviction through

direct appeal. The time for pursuing such a direct appeal had expired five years

before we declared the statutory basis for that conviction invalid under the second

amendment in Aguilar, 2013 IL 112116. A collateral challenge was therefore his

only option. Illinois law provides two statutory options for collaterally attacking an

invalid judgment in a criminal case. The first is a postconviction petition filed

pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

2014)), and the second is a petition filed pursuant to section 2-1401 of the Code of

Civil Procedure (735 ILCS 5/2-1401 (West 2014)). While Floyd F. has pursued a

postconviction petition in his 2011 criminal case claiming that his 2008 conviction

was a nullity and could not serve as a basis for an armed habitual criminal charge,

that petition is not before us, nor was it before the appellate court.

- 20 -

¶ 54 That, however, is of no consequence. Despite DCFS’s contentions to the

contrary, the foregoing options are not and have never been held to be the sole

means for collaterally attacking the validity of a conviction premised on a facially

invalid, and indisputably unenforceable, statute. Malone v. Cosentino, 99 Ill. 2d 29

(1983), cited by DCFS as support for a contrary conclusion, is inapposite. Malone

was a class action in which the lead plaintiff sought to recover modest monetary

penalties and fees he paid after pleading guilty to two traffic violations. Id. at 31. In

contrast to Floyd F., the plaintiff in Malone did not take issue with the validity of

his convictions. Id. His contention centered exclusively on the constitutionality of

the statutes authorizing the penalties and fees he had been required to pay following

those convictions. Id.

¶ 55 In rejecting the plaintiff’s challenge in Malone, our court held that he was

barred from collaterally challenging the penalties and fees in what it described as an

“ad hoc” proceeding because he had neither appealed the underlying judgment nor

sought collateral review in one of the “established forms of collateral proceedings,”

and the modest fees and assessments involved did not involve a substantial denial

of constitutional rights. Id. at 33-35. We took care, however, to contrast the

situation with People v. Warr, 54 Ill. 2d 487, 491-93 (1973), where defendants,

who had been convicted of misdemeanors, brought suit to challenge their

convictions on the grounds that the convictions had been obtained in violation of

constitutional protections mandated by controlling United States Supreme Court

precedent, and with McCabe v. Burgess, 75 Ill. 2d 457 (1979), where defendant

sought to use a civil action to expunge constitutionally infirm convictions from his

criminal record and the criminal records of other indivuals and to recover fines paid

in connection with those unconstitutional convictions, and Meyerowitz, 61 Ill. 2d

200 (1975), discussed more fully below. Malone, 99 Ill. 2d at 34-35. In such

circumstances, where there was a substantial denial of constitutional rights, we held

that allowing nonstatutory remedies would be justified. Id. at 35. This, of course, is

just such a case. Here, there is an unconstitutional conviction on Floyd F.’s record.

Further, Floyd has alleged a substantial denial of not only his second amendment

rights but also his right to rear his child, a fundamental liberty interest. Malone thus

refutes rather than supports DCFS’s position.

¶ 56 Meyerowitz, 61 Ill. 2d 200, cited by this court in Malone, underscores the lack

of merit in DCFS’s position. In Meyerowitz, we considered whether defendants

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may properly attack the judgments of conviction in their motions to terminate

probation. Id. In holding that they may, we reiterated “that considerations of justice

and fairness require that an accused who asserts a substantial denial of his

constitutional rights in the proceedings in which he was convicted be afforded a

procedure by which the challenged proceedings may be reviewed.” Id. at 205.

Accordingly, where a person has been convicted under an unconstitutional statute,

he or she may obtain relief from any court that otherwise has jurisdiction. The

person is not restricted to specific statutory methods for collaterally attacking a

judgment. Id. at 206. And it does not matter that the time for direct appeal may have

passed. “ ‘A void judgment can be impeached at any time in any proceeding

whenever a right is asserted by reason of that judgment, and it is immaterial, in a

consideration of the validity of the judgment, whether or not the time for review by

appeal has expired.’ ” Id. (quoting Reynolds, 20 Ill. 2d at 192).

¶ 57 Simply put, under Illinois law, there is no fixed procedural mechanism or

forum, nor is there any temporal limitation governing when a void ab initio

challenge may be asserted. See Ernest Thompson, 209 Ill. 2d at 25. Under our

precedent, it is sufficient if a person subject to a conviction premised on a facially

invalid statute raises his or her challenge through an appropriate pleading in a court

possessing jurisdiction over the parties and the case. See McFadden, 2016 IL

117424, ¶ 21. Indeed, if the constitutional infirmity is put in issue during a

proceeding that is pending before a court, the court has an independent duty to

vacate the void judgment and may do so sua sponte. Ernest Thompson, 209 Ill. 2d

at 27; Meyerowitz, 61 Ill. 2d 200. A void order may be attacked at any time in any

court. Ernest Thompson, 209 Ill. 2d at 27. Such challenges are not subject to

forfeiture (People v. Relerford, 2017 IL 121094, ¶ 29 n.2) or any other ordinary

procedural bar (Dennis Thompson, 2015 IL 118151, ¶¶ 30-33).

¶ 58 Moreover, it is not a valid objection that permitting parents such as Floyd F. to

challenge their constitutionally invalid convictions in termination proceedings will

adversely impact administration of the criminal justice system. Establishing that a

prior conviction is invalid because it was based on a facially unconstitutional

statute requires no elaborate fact-finding or hearing. The statutory basis for the

conviction can be readily ascertained by retrieval and review of official court

records, of which a subsequent court can take judicial notice (see People v.

Williams, 149 Ill. 2d 467, 492 (1992)), as happened in this case, and the fact that the

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statute has been found unconstitutional can be confirmed by the case law. As for

concerns over the finality of judgments, these are of little consequence as a

practical matter because penal statutes are rarely found facially invalid and, when

they are, defendants have every incentive to raise the defect at the earliest possible,

practical moment. Moreover, the particular statute on which Floyd F.’s challenged

2008 conviction was based was declared unconstitutional five years ago, ending

further prosecutions under that statute and limiting the number of convictions that

will have to be set aside going forward.

¶ 59 In any event, to the extent that the administration of justice may be

inconvenienced by the need to take corrective action, such concerns cannot justify

leaving in place and giving further effect to a criminal conviction based on a

facially unconstitutional statute. While the State has a weighty interest in the

finality of convictions and sentences, the United States Supreme Court has made it

clear that whatever administrative, penal, or other policy concerns might be taken

into account in other circumstances, if the state were required to revisit convictions

that had been obtained in conformity to then-existing constitutional standards, such

concerns have absolutely no application where, as here, a statute has been declared

facially invalid under a substantive rule of constitutional law, “for no resources

marshaled by a State could preserve a conviction or sentence that the Constitution

deprives the State of power to impose.” Montgomery, 377 U.S. at ___, 136 S. Ct. at

732 (“ ‘There is little societal interest in permitting the criminal process to rest at a

point where it ought properly never to repose’ ” (quoting United States v. Mackey,

401 U.S. 667, 693 (1971) (Harlan, J., concurring in part and dissenting in part))).

The procedural objections raised by DCFS and N.G. to Floyd F.’s challenge to his

void 2008 AUUW conviction were therefore meritless and properly rejected by the

appellate court.

¶ 60 The appellate court was likewise correct to reject the contention by DCFS that

under this court’s decision in McFadden, 2016 IL 117424, Floyd F.’s

constitutionally invalid (and therefore legally nonexistent) firearms conviction

could still be used by the State to meet its burden of establishing that Floyd F. was

“depraved” within the meaning of the Adoption Act so that his parental rights could

be extinguished. In making that argument, DCFS was asking the court to hold, in

effect, that a person’s fundamental rights to parenthood may be terminated based

on conduct protected by the second amendment and therefore beyond the power of

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the state to punish. That such is not the case should be self-evident. It can certainly

find no support in McFadden.

¶ 61 McFadden was a criminal proceeding involving the validity of a defendant’s

conviction for unlawful use of a weapon by a felon (UUWF). Id. The state’s

contention was that under the governing provisions of Illinois’s criminal code, the

defendant in that case was eligible to be convicted for UUWF based on a prior

conviction for aggravated unlawful use of a weapon (AUUW). Id. The defendant,

however, argued that because the AUUW statute had been declared facially

unconstitutional in Aguilar, his conviction under that statute should not have been

be taken into account for purposes of determining whether his subsequent offense

constituted UUWF. Id. ¶ 16.

¶ 62 The appellate court agreed, but this court reversed and reinstated the UUWF

conviction. Id. ¶ 27. Although we reaffirmed long-standing principles that a

facially unconstitutional statute is void from the moment of its enactment and

unenforceable, that a declaration that a statute is facially invalid must be given full

retroactive effect, and that a conviction based on such a statute cannot stand, we

held, based on the language of the UUWF statute, that where a defendant has not

taken affirmative action to have a court set aside the initial conviction and therefore

still has an extant, undisturbed felony conviction on his record at the time he

engaged in the conduct on which the subsequent UUWF prosecution was

predicated, the elements of the UUWF statute are satisfied and the UUWF

conviction may stand, regardless of whether the initial conviction might be subject

to vacatur later on the grounds that it was unconstitutional. Id. Underlying this

conclusion was a concern that unless felons who had previously been convicted of a

firearms offense were required to formally clear their prior records before obtaining

firearms, they might resort to self-help and acquire firearms again in the hope that,

after the fact, they could defend against any subsequent firearms charges by having

their earlier conviction set aside. Id. ¶ 30. Such an outcome, in our view, would

undermine the UUWF statute’s purpose of protecting the public from dangerous

persons who are seeking to obtain firearms. Id. ¶¶ 29-30.

¶ 63 Because Floyd F. did not move to nullify his 2008 AUUW conviction prior to

initiation of the parental rights termination proceedings at issue in this case, DCFS

contends that while the conviction is constitutionally infirm, it may likewise be

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used, under the same reasoning we employed in McFadden, to establish that he was

a three-time felon and thus “depraved” within the meaning of the Adoption Act.

We agree with the appellate court that DCFS’s argument is not well taken.

¶ 64 As a preliminary matter, a careful reading of McFadden reveals evidentiary and

procedural differences that separate that case from this one. While our decision in

Aguilar was raised in both cases, Aguilar did not invalidate the entire AUUW

statute, only part of it, namely, 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)). In contrast to the

matter before us here, there was no indication in the record in McFadden as to

either the particular provision of the AUUW statute to which the defendant had

pled guilty or the factual basis for the plea. McFadden, 2016 IL 117424, ¶¶ 4,

32-33. 2 We therefore had no basis for concluding that the defendant’s prior

conviction was, in fact, premised on section 24-1.6(A)(1), (a)(3)(A) (720 ILCS

5/24-1.6(a)(1), (a)(3)(A) (West 2008)), and we took care to specifically point out

that we were not doing that. McFadden, 2016 IL 117424, ¶ 41. Without evidence

that defendant had actually been convicted for violating that particular subsection,

any claim that defendant’s subsequent UUWF conviction was premised on a void

prior conviction was, of course, completely untenable.

¶ 65 No such problem is present in this case. In contrast to McFadden, it is clear

from the supplemented appellate record that Floyd F.’s AUUW conviction was

based on exactly the same section of the statute we found facially unconstitutional

in Aguilar. Id. at ¶¶ 25, 28. We can therefore say with certainty that the trial court’s

finding of unfitness here was premised on a conviction that has no legal force or

effect.

¶ 66 We note, moreover, that while the defendant in McFadden sought to set aside

his subsequent UUWF conviction on the grounds that his prior AUUW conviction

should not be given legal recognition under Aguilar, he never filed any pleadings to

2

In McFadden, we stated that “[a]lthough for purposes of this appeal, the State does not dispute

that defendant’s 2002 conviction is premised on an unconstitutional statute, the record does not

confirm defendant’s assertion. The indictment for the 2008 UUW by a felon offense does not

identify the specific nature of the 2002 predicate AUUW offense under which defendant pleaded

guilty. Rather, it alleges that defendant had a felony conviction for ‘[AUUW] under case number

02CR-30903.’ ” McFadden, 2016 IL 117424, ¶ 32. We went on to make clear that “the record does

not affirmatively reflect that defendant pleaded guilty under section 24-1.6(a)(1), (a)(3)(A), the only

section held unconstitutional in Aguilar.” Id. ¶ 33.

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actually vacate that prior AUUW conviction and did not request that the prior

conviction be vacated in the case then under review. Id. ¶ 21. That was not true of

Floyd F. Unlike the defendant in McFadden, he not only challenged the use of the

prior AUUW conviction in this subsequent proceeding, he sought to have the prior

conviction itself nullified and vacated. 2017 IL App (3d) 160277, ¶ 25. As our

previous discussion makes clear, using a collateral proceeding to attack a

conviction based on a facially unconstitutional statute, as Floyd F. has done here, is

clearly permissible.

¶ 67 McFadden is also problematic because of the line of United States Supreme

Court authority on which it is based. In upholding the use of defendant’s prior

firearms conviction to establish an element of the subsequent firearms offense for

which he had been convicted, our opinion in McFadden neither considered nor

addressed Montgomery or the numerous earlier United States Supreme Court cases

which have consistently held that convictions based on facially unconstitutional

statutes are void, can be given no effect, and must be treated by the courts as if they

do not exist. No mention of Montgomery is made in the dissent either. While the

decision was referenced in a motion filed by defendant for leave to file additional

authority and was argued in his petition for rehearing, it triggered no analysis by the

majority or the dissenters in our court, and defendant’s petition for rehearing was

ultimately denied without comment. Because a judicial opinion, like a judgment, is

authority only for what is actually decided in the case (Board of Governors of State

Colleges & Universities for Chicago State University v. Illinois Fair Employment

Practices Comm’n, 78 Ill. 2d 143, 149 (1979); Spring Hill Cemetery of Danville v.

Ryan, 20 Ill. 2d 608, 619 (1960)), McFadden cannot be read as expressing any view

by this court as to the implications of Montgomery for the circumstances present in

that case. Suggestions to the contrary by our appellate court (see, e.g., People v.

Smith, 2017 IL App (1st) 151643, ¶ 18; People v. Spivey, 2017 IL App (1st)

123563, ¶ 14) are incorrect and have no basis in our case law regarding the

interpretation of judicial precedent.

¶ 68 What is clear from the discussion in McFadden is that our decision was based,

instead, squarely on the United States Supreme Court’s decision in Lewis, 445 U.S.

55 (1980). At issue in Lewis was whether a defendant’s extant prior felony

conviction, which was subject to collateral attack on the grounds that the defendant

had been denied his right to counsel pursuant to Gideon v. Wainwright, 372 U.S.

- 26 -

335 (1963), could be used as the predicate for a subsequent conviction under

section 1202(a)(1), as amended, of Title VII of the Omnibus Crime Control and

Safe Streets Act of 1968 (18 U.S.C.A. § 1202(a)(1) (1976)), which barred

possession of firearms by any person who “has been convicted by a court of the

United States or of a State *** of a felony.” (Internal quotation marks omitted.)

Lewis, 445 U.S. at 60.

¶ 69 In answering this question in the affirmative, the Supreme Court examined the

legislative history of section 1202(a)(1) as well as the overall statutory framework

of which it was a part and concluded that its prohibitions were triggered by any

felony conviction, not merely “valid” convictions. Id. Accordingly, for purposes of

that statute, it did not matter that the predicate felony might be subject to collateral

attack on the grounds that it was obtained in violation of a defendant’s right to

counsel. Id. So long as the defendant’s conviction for that felony remained

undisturbed through court challenge or pardon at the time of the conduct giving rise

to the subsequent felony (possession of a firearm), it could be used to establish an

element of the second offense. Id. at 62-65. A contrary conclusion, in the court’s

view, would be at odds with the statutory scheme enacted by Congress “in response

to the precipitous rise in political assassinations, riots, and other violent crimes

involving firearms, that occurred in this country in the 1960’s,” under which even

mere indictment was a disabling circumstance, and which was designed to be “a

sweeping prophylaxis *** against misuse of firearms.” Id. at 63.

¶ 70 While the Court acknowledged its precedent holding that uncounseled

convictions obtained in violation of the sixth amendment under Gideon could not

be used to enhance punishment under a state’s recidivist statute (Burgett, 389 U.S.

109) or considered by a court in sentencing a defendant after a subsequent

conviction (United States v. Tucker, 404 U.S. 443 (1972)) or to impeach the general

credibility of the defendant in a subsequent prosecution (Loper v. Beto, 405 U.S.

473 (1972); Lewis, 445 U.S. at 60), it distinguished those situations on the grounds

that in each instance, the constitutional defect affected the reliability of the prior

conviction. In Lewis, by contrast, the focus of the federal gun laws was “not on

reliability, but on the mere fact of conviction, or even indictment, in order to keep

firearms away from potentially dangerous persons.” Lewis, 445 U.S. at 67. The

court also found it significant that the sanction imposed by the federal statute could

not be said to “ ‘support guilt or enhance punishment’ ” because that sanction

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“attaches immediately upon the defendant’s first conviction” and not, as in Burgett,

only after the fact of the second conviction. Lewis, 445 U.S. at 67 (quoting Burgett,

389 U.S. at 115); see Deborah S. Prutzman, Prior Convictions and the Gun Control

Act of 1968, 76 Colum. L. Rev. 326, 339 (1976).

¶ 71 In McFadden, we found that Illinois’s UUWF statute was similar in purpose,

structure, and operation to the federal firearms statute at issue in Lewis and that it

was therefore appropriate to follow the same reasoning in construing and applying

the Illinois law. In focusing on the similarity of the statutory schemes, however, we

failed to take into account a fundamental distinction between the constitutional

flaws afflicting the two predicate offenses. In contrast to McFadden, Lewis did not

present a situation where the prior offense was based on a facially unconstitutional

statute that penalized conduct the state had no power to punish, and no second

amendment concerns were at play (see District of Columbia v. Heller, 554 U.S.

570, 625 n.25 (2008)). The problem with the predicate conviction in Lewis, felony

breaking and entering with intent to commit a misdemeanor imposed under Florida

law by a Florida state court, was that it was subject to attack on the grounds that it

was obtained through a constitutionally deficient procedure, specifically, a trial in

which the defendant had been denied the right to counsel, a defect the defendant

had failed to raise in any Florida state proceeding prior to being prosecuted for the

federal offense then before the court.

¶ 72 The distinction is a critical one, as the United States Supreme Court’s prior case

law demonstrates and its decision in Montgomery confirms.

“Procedural rules, in contrast, are designed to enhance the accuracy of a

conviction or sentence by regulating ‘the manner of determining the

defendant’s culpability.’ [Citations.] Those rules ‘merely raise the possibility

that someone convicted with use of the invalidated procedure might have been

acquitted otherwise.’ [Citation.] Even where procedural error has infected a

trial, the resulting conviction or sentence may still be accurate; and, by

extension, the defendant’s continued confinement may still be lawful. For this

reason, a trial conducted under a procedure found to be unconstitutional in a

later case does not, as a general matter, have the automatic consequence of

invalidating a defendant’s conviction or sentence.” Montgomery, 577 U.S.

at___, 136 S. Ct. at 730.

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Correspondingly, a conviction resulting from a trial in which the defendant was not

afforded his or her right to counsel may be used for some purposes but not for

others. Lewis, 445 U.S. at 66-67.

¶ 73 What our decision in McFadden did not take into account is that “[t]he same

possibility of a valid result does not exist where a substantive rule has eliminated a

State’s power to proscribe the defendant’s conduct or impose a given punishment,”

for “ ‘[e]ven the use of impeccable factfinding procedures could not legitimate a

verdict’ where ‘the conduct being penalized is constitutionally immune from

punishment.’ ” Montgomery, 577 U.S. at ___, 136 S. Ct. at 718 (quoting United

States Coin & Currency, 401 U.S. at 724). Convictions resulting from a facially

unconstitutional statute fall directly within this category. As discussed in detail

earlier in this opinion, under Montgomery and the long line of cases on which

Montgomery is based, such convictions are illegal and void, a nullity to which no

court may give adverse effect in any proceeding against the defendant. They can

give rise to no criminal status nor create any legal impediment, for the state had no

authority, and the courts never acquired jurisdiction, to impose punishment under

such laws to begin with. Id. at ___, 136 S. Ct. at 730-31.

¶ 74 Because of this, as we have explained, a facially unconstitutional statute and

any conviction based on the statute must be treated as if they never existed. Because

they are nonexistent, as a matter of federal constitutional law, and must therefore be

ignored by the courts, using them against a defendant in any subsequent

proceeding, civil or criminal, is not only conceptually impossible (if something has

no legal existence how can it be given any legal recognition?) but would subvert the

very constitutional protections that resulted in the statute being found facially

invalid to begin with and is incompatible with the United States Supreme Court’s

command that when, as under Aguilar and here, the conduct penalized by a statute

is constitutionally immune from punishment, that determination must be given

complete retroactive effect. Id. at ___, 136 S. Ct. at 731. Nothing in Lewis or any

other United States Supreme Court decision of which we are aware supports a

different conclusion. 3

3

The fact that this is the only reasonable conclusion is emphasized by the number of defendants

that have petitioned for certiorari following the denial of their petition for leave to appeal by this

court. See People v. McGee, 2017 IL App (1st) 141013-B, leave to appeal denied, No. 122419 (Ill.

- 29 -

¶ 75 Our appellate court has struggled to reconcile McFadden with the line of

United States Supreme Court authority culminating in Montgomery, often calling

for a legislative solution in the absence of direction from our court. See Smith, 2017

IL App (1st) 151643, ¶ 15; Spivey, 2017 IL App (1st) 123563, ¶¶ 25-26 (Hyman, J.,

specially concurring); People v. McGee, 2017 IL App (1st) 141013-B, ¶ 33

(Hyman, J., specially concurring). The appellate court’s unease is unsurprising and

justified, especially given that the appellate court’s findings took the proper

analytical approach. See People v. McGee, 2016 IL App (1st) 141013; People v.

Cowart, 2015 IL App (1st) 113085; People v. Richardson, 2015 IL App (1st)

130203; People v. Ramsey, 2015 IL App (1st) 131878; People v. Faulkner, 2015 IL

App (1st) 132884; People v. Claxton, 2014 IL App (1st) 132681; People v. Soto,

2014 IL App (1st) 121937; People v. Fields, 2014 IL App (1st) 110311; People v.

Dunmore, 2013 IL App (1st) 121170. Numerous unpublished orders follow the

same analysis, indicating the appellate court no longer considered this analysis to

be a new or conflict-ridden area of law. See Ill. S. Ct. R. 23(a)-(b) (eff. July 1,

2011); see also People v. Brown, 2015 IL App (1st) 122651-U; People v. Sterling,

2015 IL App (1st) 130556-U; People v. Fields, 2014 IL App (1st) 122012-U;

People v. Hernandez, 2015 IL App (1st) 131871-U; People v. Somerville, 2014 IL

App (1st) 132202-U; People v. Spivey, 2015 IL App (1st) 123563-U; People v.

White, 2014 IL App (1st) 122371-U; People v. Fryer, 2015 IL App (1st) 141409-U;

People v. Smith, 2015 IL App (1st) 123281-U; People v. Smith, 2014 IL App (1st)

Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 935 (2018); People v. Faulkner, 2017 IL App

(1st) 132884, leave to appeal denied, No. 122204 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___,

138 S. Ct. 1023 (2018); People v. Perkins, 2016 IL App (1st) 150889, leave to appeal denied, No.

121407 (Ill. Nov. 23, 2016), cert. denied, ___ U.S. ___, 137 S. Ct. 2294 (2017); People v. Williams,

2016 IL App (3d) 120840, leave to appeal denied, No. 121329 (Ill. Nov. 23, 2016), cert. denied, ___

U.S. ___, 137 S. Ct. 2294 (2017); People v. Brown, 2017 IL App (1st) 122651-U, leave to appeal

denied, No. 122309 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 936 (2018); People v.

White, 2017 IL App (1st) 122371-UB, leave to appeal denied, No. 122423 (Ill. Sept. 27, 2017), cert.

denied, ___ U.S. ___, 138 S. Ct. 935 (2018); People v. Fryer, 2017 IL App (1st) 141409-U, leave to

appeal denied, No. 122273 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 1029 (2018);

People v. Carter, 2017 IL App (1st) 123589-UB, leave to appeal denied, No. 121929 (Ill. May 24,

2017), cert. denied, ___ U.S. ___, 138 S. Ct. 199 (2017); People v. Williams, 2016 IL App (1st)

143453-U, leave to appeal denied, No. 121482 (Ill. Jan. 25, 2017), cert. denied, ___ U.S. ___, 138

S. Ct. 67 (2017); People v. Powell, 2015 IL App (1st) 140837-U, leave to appeal denied, No.

121758 (Ill. Mar. 29, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 172 (2017). This is clearly

becoming a pressurized issue. The further we extend McFadden’s reach, the less justification we

have for following Lewis down the wrong analytical path.

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122370-U; People v. Dean, 2015 IL App (1st) 122570-U; People v. Carter, 2014 IL

App (1st) 123589-U; People v. Crosby, 2014 IL App (1st) 121645-U; People v.

Moton, 2015 IL App (1st) 123385-U; People v. Lester, 2014 IL App (1st)

121882-U; People v. Speciale, 2015 IL App (1st) 132376-U; People v. Marshall,

2015 IL App (1st) 142461-U; People v. Foster, 2014 IL App (1st) 101376-U.

Simply put, the analysis in McFadden not only took the wrong analytical path, it

failed to recognize that the other path existed.

¶ 76 Had our analysis in McFadden taken into account the distinction between a

prior conviction resulting from a constitutionally deficient procedure and one based

on a facially unconstitutional statute, the approach we took in that case would have

been different. It is important that we acknowledge that now. “Our most important

duty as justices of the Illinois Supreme Court, to which all other considerations are

subordinate, is to reach the correct decision under the law.” People v. Mitchell, 189

Ill. 2d 312, 339 (2000). Courts are and should be reluctant to abandon their

precedent in most circumstances, but considerations of “[s]tare decisis should not

preclude us from admitting our mistake” when we have made one and interpreting

the law correctly, for as Justice Frankfurter once observed, “ ‘Wisdom too often

never comes, and so one ought not to reject it merely because it comes late.’ ” Id. at

339 (quoting Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595,

600 (1949) (per curiam) (Frankfurter, J., dissenting)). “[S]tare decisis is not so

static a concept that it binds our hands to do justice when we have made a mistake.”

Vitro v. Mihelcic, 209 Ill. 2d 76, 93 (2004) (Fitzgerald, J., dissenting, joined by

Kilbride and Rarick, JJ.) (“Here, there are not only compelling reasons, but also the

best cause to abandon Dralle v. Ruder, 124 Ill. 2d 61 (1988): it was incorrectly

decided.”). Justice Calvo, a former member of this court, put the matter more

bluntly: “When a thing is wrong, it is wrong. The longer we wait to right this

wrong, *** the more difficult it will be to rectify the error, embedded in the case

law through usage.” Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450,

495-96 (1990) (Calvo, J., dissenting, joined by Ward and Clark, JJ.).

¶ 77 Even if Lewis could somehow be construed to justify the result in McFadden,

notwithstanding the fundamental qualitative difference in the predicate

convictions, we would decline to extend it to the matter before us here. At least one

state court has rejected Lewis outright. See State v. Portsche, 606 N.W.2d 794

(Neb. 2000) (limiting the reach of Lewis to the federal statute in that case and

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holding that defendant’s prior uncounseled conviction could not be used to

establish that he was a convicted felon for purposes of Nebraska’s

felon-in-possession statute). And numerous subsequent decisions by the federal

courts, including the United States Supreme Court, have declined to extend the

decision to cases which do not involve felon-in-possession statutes. See Baldasar v.

Illinois, 446 U.S. 222 (1980) (holding that a defendant can collaterally attack an

uncounseled misdemeanor conviction used to convert a subsequent misdemeanor

into a felony); United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987) (“Lewis

is inapplicable where prior convictions are used to determine the punishment,

rather than to define the offense.”); United States v. Paleo, 9 F.3d 988 (1st Cir.

1992) (despite Lewis the sentence enhancement statute does not require a court to

consider unconstitutionally obtained—but not yet set aside—convictions as

sentencing predicates); United States v. Nicholas-Armenta, 763 F.2d 1089 (9th Cir.

1985) (allowing collateral attacks on deportation orders that form the basis of a

subsequent criminal conviction).

¶ 78 If Lewis’s effect is thus limited even within the context of criminal cases, it is

difficult to see any sound justification for extending it—or McFadden—to a civil

case such as this one. Those decisions are simply inapposite. Both involved

criminal prosecutions, both involved the interpretation and application of specific

felon-in-possession statutes, and both were premised on concerns over effectuating

the purposes of those statutes, namely, protecting the public from dangerous

persons who are seeking to obtain firearms. McFadden, 2016 IL 117424, ¶¶ 29-30;

Lewis, 445 U.S. at 67. None of those factors is present here. This is not a criminal

proceeding, and we are not being called upon to construe and apply either Illinois’s

UUWF statute or the federal felon-in-possession statute. Rather, this is a parental

rights termination proceeding involving section 1(D)(i) of the Adoption Act (750

ILCS 50/1(D)(i) (West 2010). The issue here is whether Floyd F. is fit to be a

parent. Insisting that Floyd F.’s prior AUUW conviction be given effect in this

proceeding would not advance any firearms-related public safety concerns. It

would have no impact on firearms policy or public safety at all. Instead, all it would

do is place the courts in the constitutionally untenable position of permanently

depriving an individual of his fundamental parental rights based on conduct that the

state had no power to punish.

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¶ 79 We note, moreover, that in Lewis, on which McFadden relied, the United States

Supreme Court justified use of the constitutionally deficient firearms conviction

because, in that case, the sanction imposed by the federal felon-in-possession

statutory scheme “attache[d] immediately upon the defendant’s first conviction”

and, unlike its earlier decisions in Burgett, Tucker, and Loper, the subsequent

conviction did not depend on reliability of that first conviction. Lewis, 445 U.S. at

67. Those considerations are not present here either. Under section 1(D)(i) of the

Adoption Act (750 ILCS 50/1(D)(i) (West 2010)), the provision that controls this

case, the sanction—being deemed “depraved” and thus unfit—does not attach

immediately upon the first offense. Three convictions of certain specified types are

required, and they must fall within a certain time frame. And whether one meets the

definition of “depravity” depends not just on the fact of those three prior

convictions but on what they tell us about a person’s fitness to continue to be a

parent. Reliability of the convictions thus matters a great deal.

¶ 80 This is apparent from the terms of section 1(D)(i) of the Adoption Act. Under

the plain and unambiguous language of the statute, the existence of a prior felony

conviction is not dispositive for purposes of establishing that a parent is “depraved”

and therefore unfit and subject to having his or her rights terminated. Id. Rather, the

conviction merely goes to creation of a rebuttable presumption of “depravity,” a

presumption that a parent is given the chance to refute. Indeed, the statutory

opportunity afforded parents under section 1(D)(i) to show why the presumption is

inapplicable is the very thing that differentiates this subsection from a related

provision struck down by this court in In re D.W., 214 Ill. 2d 289 (2005).

¶ 81 It is difficult to envision a more compelling reason for rejecting the

presumption of depravity than that one of the predicate convictions on which the

state’s claim of depravity depends is actually a legal nullity and must therefore be

ignored, as Floyd F. clearly established in this case with regard to his

constitutionally invalid 2008 AUUW conviction. If a parent were barred from

making such a showing and the circuit court were barred from taking that evidence

into account, the protections afforded to parents by the statute would be reduced to

an empty promise. The presumption of depravity would not be rebuttable at all. In

reality, it would be conclusive. Such a conclusion cannot be squared with the plain

language of the Adoption Act and would place Illinois in direct opposition to the

core constitutional principle that one may not be forced to suffer sanctions for

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conduct the federal constitution places beyond the power of the state to punish. We

must therefore reject it.

¶ 82 We note, moreover, that if Lewis and McFadden applied to parental rights cases

in the same way that they applied to prosecutions for firearms violations, it would

mean that a person would have to set aside the unconstitutional weapons offense

before exercising his or her fundamental constitutional right to procreate and raise a

child. Parents who failed to do so and thus stood convicted of three felonies, as

Floyd F. was here, would be unable to escape the categorization of “depravity”

within the meaning of the Adoption Act and therefore be categorically barred from

parenthood. Such a result would place Illinois law uncomfortably close to the

Oklahoma statute struck down on equal protection grounds in Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535 (1942), under which defendants who had

committed two or more felonies of certain types could be deemed “habitual

criminals” and subject to forced sterilization.

¶ 83 It would also raise serious due process concerns particularly where, as here, the

rule announced in McFadden requiring vacatur of the unconstitutional conviction

prior to engaging in the subsequent constitutionally protected conduct—in this case

procreation of a child—had no antecedent in Illinois law and was not announced by

our court until five years after the child was already born, by which time it was too

late for the father to take the action the new rule requires. Notice and “fair

warning,” touchstones of due process (Rogers v. Tennessee, 532 U.S. 451, 461-62

(2001)), and changes in judicial interpretation of the law making the law less

favorable to defendants can only be applied prospectively (People v. Patton, 57 Ill.

2d 43, 47-48 (1974)). Extending McFadden to this case could not be squared with

these well-established principles.

¶ 84 In sum, Floyd F.’s unconstitutional AUUW conviction is null and void, thus it

cannot serve as a basis for finding him depraved under section 1(D)(i) of the

Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). With this conviction removed

from consideration, DCFS cannot establish that Floyd F. met the statutory

definition of depravity. Id. It follows that respondent’s parental rights cannot be

terminated on that basis. The trial court’s termination of Floyd F.’s parental rights

under the presumption of depravity was therefore contrary to the manifest weight

of the evidence and was properly set aside by the appellate court. While we find this

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case distinguishable from McFadden, to the extent that this result and controlling

United State’s Supreme Court precedent conflict with McFadden, McFadden is

hereby overruled.

¶ 85 In reaching this conclusion, we in no way seek to excuse Floyd F.’s

shortcomings as a parent. Based on the record before us, it seems unlikely that he

will ever succeed in maintaining a relationship with N.G. that comports with

conventional norms. Such concerns, however, cannot excuse us from our

obligation to follow the law. As our precedent makes clear, “[t]he liberty interest of

parents in the care, custody and management of their child ‘ “does not evaporate

simply because they have not been model parents or have lost temporary custody of

their child to the State.” ’ In re D.T., 212 Ill. 2d 347, 359 (2004), quoting Santosky

v. Kramer, 455 U.S. 745, 753, 71 L.Ed.2d 599, 606, 102 S. Ct. 1388, 1394-95

(1982).” In re D.W., 214 Ill. 2d at 311.

¶ 86 On remand, DCFS will have the opportunity to attempt to prove that Floyd F.

meets the definition of unfitness under some other provision of the Adoption Act.

Today, we hold simply that he cannot be found depraved and therefore unfit under

section 1(D)(i) of the Act based on his legally nonexistent and now-vacated 2008

AUUW conviction.

¶ 87 CONCLUSION

¶ 88 For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 89 Appellate court judgment affirmed.

¶ 90 Circuit court judgment reversed.

¶ 91 JUSTICE KILBRIDE, specially concurring:

¶ 92 I agree with and join the court’s opinion. I also agree with the part of Justice

Neville’s special concurrence emphasizing that the primary burden of vacating a

void conviction based on a facially unconstitutional statute should not be placed on

the defendant who has already suffered the violation of his constitutional rights.

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The special concurrence correctly explains that the dissent’s approach unjustly

places the entire burden for vacating a void conviction on the defendant. As this

court has held, “courts have an independent duty to vacate void orders and may

sua sponte declare an order void.” People v. Thompson, 209 Ill. 2d 19, 27 (2004).

¶ 93 A facially unconstitutional statute is void ab initio. The statute was, therefore,

constitutionally infirm from the moment it was enacted and must be treated as if it

were never enacted. People v. McFadden, 2016 IL 117424, ¶ 58 (Kilbride, J.,

concurring in part and dissenting in part, joined by Burke, J.). Given those

circumstances, it is fundamentally unfair to use a void conviction based on a

facially unconstitutional statute against a defendant in a subsequent proceeding

when he or she has not taken affirmative action to vacate the void conviction.

McFadden, 2016 IL 117424, ¶¶ 62-63 (Kilbride, J., concurring in part and

dissenting in part, joined by Burke, J.) (requiring a defendant to obtain official

vacatur of a void conviction before engaging in constitutionally protected conduct

offends all sense of due process). “ ‘[W]here a statute is violative of constitutional

guarantees, we have a duty not only to declare such a legislative act void, but also to

correct the wrongs wrought through such an act by holding our decision

retroactive.’ ” McFadden, 2016 IL 117424, ¶ 73 (Kilbride, J., concurring in part

and dissenting in part, joined by Burke, J.) (quoting People v. Gersch, 135 Ill. 2d

384, 399 (1990)). In my view, recognizing the ability of our courts to vacate void

convictions sua sponte is consistent with our duty to “correct the wrongs wrought”

by a facially unconstitutional statute. See Gersch, 135 Ill. 2d at 399. Accordingly, I

specially concur.

¶ 94 JUSTICE NEVILLE, specially concurring:

¶ 95 I agree with the court’s opinion. I write separately to highlight important

concerns that are not necessary to the resolution of this appeal but that weigh

heavily on this court’s duty to ensure the fair administration of justice for all

citizens in Illinois.

¶ 96 There is no dispute that a statute that has been declared to be facially

unconstitutional is void ab initio and is unenforceable from the time it was enacted.

Supra ¶ 50. Like my colleagues in the majority, I agree that a criminal conviction

based on a facially unconstitutional statute is “ ‘illegal and void.’ ” Supra ¶ 37

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(quoting Ex parte Siebold, 100 U.S. 371, 376 (1879)). Consequently, such a

conviction is a nullity and “cannot be used for any purpose under any

circumstances.” Supra ¶ 37 (citing Siebold, 100 U.S. at 376). As the court’s opinion

correctly observes, the State is prohibited from giving any efficacy to a prior

conviction based on a facially unconstitutional statute (supra ¶ 38 (citing

Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 730 (2016))) because

to do so “would be tantamount to forcing the defendant to suffer anew the

deprivation of his constitutional rights” (supra ¶ 38 (citing United States v. Bryant,

579 U.S. ___, ___, 136 S. Ct. 1954, 1956-57 (2016))).

¶ 97 The appellate court vacated defendant’s 2008 conviction for aggravated

unlawful use of a weapon, and our agreement with that decision settles the question

for this appeal. But the pervasive problem of properly allocating the responsibility

for correcting a void conviction endures.

¶ 98 The dissent expresses the view that each defendant whose constitutional rights

have been violated by an illegal conviction must undertake the task of having that

conviction vacated and must do so in an “appropriate proceeding.” See infra

¶¶ 133-36, 158, 171. The upshot of this position is that if a defendant fails to do so,

the illegal conviction stands and can be used against that defendant in later

proceedings where his or her criminal history is at issue. This approach nullifies the

void ab initio rule and places additional restrictions and burdens on defendants who

have been convicted under a facially unconstitutional statute. I strongly disagree

with the dissent’s approach.

¶ 99 According to the dissent, the defendant bears the responsibility for vacating his

illegal conviction premised on a facially unconstitutional statute. See infra

¶¶ 149-53, 158. But it is manifestly unfair to hold defendants exclusively

responsible for vacating a void conviction. This approach places an onerous burden

on lay defendants who are the least equipped to undertake that burden because they

lack legal skills and do not know how to navigate the legal system. The dissent’s

approach would allow a void conviction to remain on the record of this defendant

and all other similarly situated defendants. That result cannot be tolerated in a

well-ordered system of justice.

¶ 100 Vacatur is the procedural means used to correct the entry of a void judgment of

conviction. See Black’s Law Dictionary 1782 (10th ed. 2014) (defining “vacatur”

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as “[t]he act of annulling or setting aside” or “[a] rule or order by which a

proceeding is vacated”). However, vacatur alone is inadequate to remedy the wrong

occasioned by an illegal conviction. The rights and interests of the defendant can

only be restored if the record of that conviction is expunged from his or her criminal

record. Expungement is the procedure used to remove the conviction from the

defendant’s record after a conviction has been vacated. See 20 ILCS 2630/5.2(b)(6)

(West 2016); 730 ILCS 5/5-5-4(b) (West 2016). Thus, it is the necessary capstone

in providing a remedy to those who were prosecuted under a facially

unconstitutional statute.

¶ 101 In my view, the burden of correcting an illegal conviction must be borne by all

of the participants in the criminal justice system. It is axiomatic that “courts have an

independent duty to vacate void orders and may sua sponte declare an order void.”

People v. Thompson, 209 Ill. 2d 19, 27 (2004). Therefore, our circuit and appellate

courts must take action to vacate and expunge a conviction that was based on a

facially unconstitutional statute.

¶ 102 Prosecutors also share the responsibility of ensuring that void convictions are

vacated and expunged. In fact, I believe the standards adopted by the American Bar

Association indicate that prosecutors have a duty to initiate proceedings of their

own accord to vacate any convictions that are premised on a statute that has been

declared to be facially unconstitutional. Section 3-1.2(f) of the American Bar

Association (ABA) Standards for Criminal Justice, titled “Functions and Duties of

the Prosecutor,” states:

“The prosecutor is not merely a case-processor but also a problem-solver

responsible for considering broad goals of the criminal justice system. The

prosecutor should seek to reform and improve the administration of criminal

justice, and when inadequacies or injustices in the substantive or procedural

law come to the prosecutor’s attention, the prosecutor should stimulate and

support efforts for remedial action.” ABA Standards for Criminal Justice,

Standard 3-1.2(f) (4th ed. 2015).

The “[p]revailing norms of practice as reflected in American Bar Association

standards *** are guides to determining what is reasonable.” Strickland v.

Washington, 466 U.S. 668, 688 (1984). While the imperatives set forth in section

3-1.2(f) are “only guides” (id.), they highlight the fact that prosecutors are often in

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the best position to address inadequacies or injustices in the criminal justice system

by initiating remedial action to improve the administration of justice.

¶ 103 Therefore, contrary to the views expressed by the dissent, I reject the notion that

the burden of correcting a void conviction falls exclusively on the defendant.

Rather, the State should be required to undertake that responsibility. Where a

court—at any level—has notice that a defendant’s conviction is void, that court has

an independent obligation to vacate and expunge the void conviction. In addition,

the state’s attorney in each county should commence proceedings to vacate and

expunge all void convictions that were predicated on a statute that has been

declared to be facially unconstitutional. In my view, the aforementioned remedies

can be used by criminal justice participants to return illegally convicted defendants

to their preconviction status.

¶ 104 I also disagree with the dissent’s conclusion that the vacatur of a void

conviction can only be accomplished by the filing of a petition in a collateral

proceeding under (i) the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.

(West 2016)) or (ii) section 2-1401 of the Code of Civil Procedure (735 ILCS

5/2-1401 (West 2016)) or (iii) the Habeas Corpus Act (id. § 10-124). See infra

¶ 133. As this court’s opinion observes, such petitions are not the only avenues

available to mount a collateral attack on a conviction under a statute that has been

declared to be facially unconstitutional. Supra ¶ 54. Rather, void judgments are not

subject to forfeiture and may be attacked at any time or in any court (supra ¶ 43.

¶ 105 To preclude a defendant from challenging a void conviction in a proceeding in

which that conviction is being used against him or her is unjust. Indeed, that seems

to be the most appropriate time for doing so. The position adopted by the dissent

would leave in place a conviction premised on a facially unconstitutional statute

merely because the defendant failed to commence a collateral attack prior to the

State’s attempt to use the illegal conviction against him—a circumstance that the

defendant may not be able to anticipate. The facts of this case illustrate the point.

All three of Floyd F.’s felony convictions were entered before N.G. was born. The

fact that the void conviction for aggravated unlawful use of a weapon was being

used against him to terminate his right to parent N.G. is precisely why the

termination proceeding was an appropriate proceeding to raise the constitutional

challenge.

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¶ 106 In conclusion, I concur that the judgment of the appellate court in this case must

be affirmed. I remind our circuit and appellate courts of their duty to sua sponte

vacate and expunge void convictions. I also encourage the state’s attorney in each

county to commence proceedings to vacate and expunge any illegal convictions

based on a facially unconstitutional statute. Finally, I note that the expungement of

void convictions from the criminal record is necessary for all defendants who have

been wrongfully convicted to receive complete justice.

¶ 107 JUSTICE THEIS, dissenting:

¶ 108 The issue brought before the appellate court was whether a criminal conviction,

which had not been collaterally attacked, was admissible as evidence of depravity

in a subsequent termination of parental rights proceeding. The appellate court

contorted the issue to decide whether the appellate court had the authority to vacate

the criminal conviction on appeal from the termination of parental rights

proceeding. The majority takes the bait and follows suit. In doing so, the majority

tramples on the facts, judicial restraint, party presentation, appellate jurisdiction,

proper procedure, precedent, and the role of courts in our adversarial system to

achieve its desired result.

¶ 109 Facts matter. In proceedings before a reviewing court, the record is vital to our

understanding of the procedural posture of the case and to our analysis. The

majority insists that (1) “it is clear from the supplemented appellate record” (supra

¶ 65) that respondent’s conviction was based on the unconstitutional statutory

provision addressed in Aguilar and (2) that respondent “sought to have the prior

conviction itself nullified and vacated” (supra ¶ 66). Both points are egregiously

inaccurate.

¶ 110 First, the record as presented to this court contains no “supplemented appellate

record” from which this court could verify the documents of which the appellate

court took judicial notice. The appellate court indicated that it “sought and obtained

documents from the Will County circuit court” (2017 IL App (3d) 160277, ¶ 8), but

there is no indication that any order was entered to obtain those documents, and no

supplement to the record was actually made. Appellate courts are courts of review,

not fact-finding tribunals, and their role is to decide the merits of cases based on the

record of proceedings.

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¶ 111 Second, the record contains absolutely no pleading filed by respondent in

which he sought to have his 2008 judgment of conviction vacated. Furthermore, at

no point in the termination of parental rights hearing before the circuit court did

respondent seek to vacate that conviction, nor did he even seek to do so for the first

time on appeal from the termination proceeding. At most, respondent testified at

the unfitness hearing, to rebut the presumption of depravity, that there was a

pending appeal, or perhaps a postconviction petition attacking his 2011 conviction,

and that if successful it would impact his release date. The majority’s

misstatements and mischaracterizations of the record not only undermine

confidence in its decision but skew the result, making it outcome determinative.

¶ 112 Judicial restraint matters. As recognized by the appellate court, there was a

factually unresolved question on appeal as to whether our decision in Aguilar was

even applicable to respondent’s 2008 conviction. That matter was outside the

record of these proceedings. At the termination hearing, the State submitted into

evidence certified copies of respondent’s convictions. The certified copies,

however, did not indicate that the 2008 conviction was based on the provision

declared unconstitutional in Aguilar. No other documents were made part of the

record by respondent before the circuit court with respect to the 2008 criminal

proceeding.

¶ 113 At the time of the offense, the AUUW statute required the State to prove the

elements found in subsections (a)(1) or (a)(2), as well as one of the elements found

in subsection (a)(3). See 720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3) (West 2008). Only

subsection (a)(1), (a)(3)(A) (id. § 24-1.6(a)(1), (a)(3)(A)) was found to be

unconstitutional in Aguilar due to a recent intervening change in constitutional

interpretation. People v. Aguilar, 2013 IL 112116. There is simply no indication in

the record that respondent’s conviction was under that subsection.

¶ 114 Although Illinois Supreme Court Rule 366(a)(3) (eff. Feb. 1, 1994) permits this

court to order or permit amendments to the record by correcting errors in the record

or by adding matters that should have been included from the record, “it is

axiomatic that where evidence was not offered during the trial of a matter, it cannot

be introduced for the first time on appeal.” H.J. Tobler Trucking Co. v. Industrial

Comm’n, 37 Ill. 2d 341, 344 (1967). Instead, the appellate court took it upon itself

to investigate the 2008 criminal proceeding, which was not squarely before the

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court. It also took it upon itself to investigate respondent’s pending postconviction

petition related to his 2011 judgment of conviction. As the majority recognizes, that

petition was also not squarely before the appellate court. Supra ¶ 53.

¶ 115 After taking judicial notice of certain facts from the 2008 criminal proceeding

to establish evidentiary proof regarding the nature of the conviction, the appellate

court used those facts to not only fill evidentiary gaps in the record but as a basis to

vacate the judgment of conviction in the 2008 criminal proceeding. Despite the fact

that the majority finds the investigation was “well within the appellate court’s

authority” (supra ¶ 32), none of the majority’s cited precedent, nor the Illinois

Rules of Evidence (Ill. R. Evid. 201 (eff. Jan. 1, 2011)) regarding judicial notice,

countenances the use of judicially noticed facts from outside the record on appeal to

fill gaps in the evidentiary record and to sua sponte vacate a judgment of conviction

in a separate criminal proceeding. The majority ignores any proper limitations on

the use of judicially noticed facts. Now, going forward, appellate courts have the

green light to undo final judgments in a completely different proceeding.

¶ 116 Party presentation of the issues matters. The appellate court’s sua sponte

actions were especially problematic where respondent did not seek to have his 2008

judgment of conviction vacated in this termination proceeding. Instead, he raised

an entirely different issue for the first time on appeal, seeking to bar the admission

of his 2008 conviction as evidence in his termination proceeding because that

conviction was based on an unconstitutional statute.

¶ 117 By sua sponte reaching a totally different issue here the appellate court no

longer functioned as neutral arbiter. Instead, the court became an advocate for

respondent and denied the State and the minor the opportunity to address the newly

reframed issue regarding the court’s authority to vacate the 2008 conviction.

Indeed, the minor specifically argued before this court that the appellate court

circumvented her right to a full hearing on that matter. She asserted that “the

appellate court overreached in its authority and discretion by sua sponte

supplementing the original appellate record [which it actually did not even

supplement], and by vacating respondent’s [2008] conviction in a Juvenile matter

where respondent did not request a vacatur, nor filed a notice of appeal or any other

post conviction motions in his [2008] case.”

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¶ 118 As we have repeatedly explained, our precedent counsels adherence to the

principle of judicial restraint. The parties are responsible for advancing the facts

and arguments entitling them to relief. “ ‘[Courts] do not, or should not, sally forth

each day looking for wrongs to right. We wait for cases to come to us, and when

they do we normally decide only questions presented by the parties. ***’

[Citation.]” Greenlaw v. United States, 554 U.S. 237, 244 (2008); see also People

v. Boeckmann, 238 Ill. 2d 1, 13 (2010) (it is not appropriate to address issues in a

case where the parties have not raised or argued it); accord Roberts v. Northland

Insurance Co., 185 Ill. 2d 262, 270 (1998).

¶ 119 The doctrine of judicial restraint is especially compelling here where the

appellate court had to first sua sponte fill in an evidentiary gap and then sua sponte

reframe the issue without any briefing on the issue of vacatur by the State or the

minor. This process is antithetical to our pledge, audi alteram partem—hear the

other side—which is prominently displayed in our courtroom. Despite the myriad

problems with the appellate court’s approach, the majority barrels on without

pause.

¶ 120 Nevertheless, the majority fails to break down the analysis of the entirely

separate and distinct questions now before this court. Seen clearly, the issues before

this court are as follows: (1) whether the reviewing court had jurisdiction to vacate

the 2008 criminal conviction on appeal from the termination of parental rights

proceeding and, if not, (2) whether the 2008 criminal conviction could be admitted

as evidence in the termination of parental rights proceeding to establish the

rebuttable presumption of depravity.

¶ 121 Jurisdiction to Vacate the 2008 Conviction

¶ 122 The appellate court lacked jurisdiction to vacate the 2008 criminal conviction in

these proceedings. The circuit court’s jurisdiction over the 2008 judgment of

conviction had long since lapsed. No appeal had been taken from that judgment.

Thus, at the time the State alleged respondent was depraved, respondent had a

judgment of conviction that was final and had not been vacated. The only matter

before the circuit court was the State’s pleading in the termination proceeding. The

circuit court entered a judgment in that proceeding, and respondent appealed from

that judgment.

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¶ 123 As we explained in Flowers, “the appellate court is not vested with authority to

consider the merits of a case merely because the dispute involves an order or

judgment that is, or is alleged to be, void.” People v. Flowers, 208 Ill. 2d 291, 308

(2003). Thus, as applied here, the appellate court was not vested with jurisdiction to

enter any orders with respect to the 2008 judgment merely because the termination

dispute involved a judgment in another proceeding that is alleged for the first time

on appeal to be void. Respondent correctly recognized this problem where he stated

in his supplemental brief to the appellate court that declaring the 2008 conviction as

“inadmissible for evidentiary purposes in a hearing on a petition to terminate

parental rights is not necessarily tantamount to declaring the conviction void and

vacating it. This may well reconcile any jurisdictional concerns.” The appeal from

the judgment in the termination proceeding was simply not a vehicle for obtaining

relief from a final judgment in a separate criminal proceeding.

¶ 124 The majority buys into the appellate court’s judicial sleight of hand and

proceeds to case discussion. The majority insists that Montgomery v. Louisiana,

577 U.S. ___, 136 S. Ct. 718 (2016), Ex Parte Siebold, 100 U.S. 371 (1879), and

our own precedent mandate that the court has an affirmative duty to vacate

respondent’s 2008 conviction in these proceedings and that this is an appropriate

forum to seek that relief. Supra ¶¶ 34-36. These cases say nothing of the kind.

¶ 125 Montgomery merely stands for the proposition that, under the supremacy

clause, new substantive constitutional rules must be made retroactively applicable

to cases on state collateral review. In Montgomery, the United States Supreme

Court held that the rule announced in Miller v. Alabama, 567 U.S. 460 (2012),

which held that mandatory life sentences without parole for juvenile offenders

violated the eighth amendment, was a new substantive constitutional rule that must

be given retroactive effect in state collateral proceedings regardless of when the

conviction became final. Montgomery, 577 U.S. at ___, 136 S. Ct. at 733-34.

Montgomery was relying on the retroactivity jurisprudence announced in Teague v.

Lane, 489 U.S. 288, 300 (1989), which clarified and limited the circumstances

under which a defendant whose conviction was final could claim the benefit of a

new rule. As we recently reiterated, “[i]f a new rule qualifies as a ‘substantive rule’

under Teague, then defendants whose convictions are final may seek the benefit of

that rule through appropriate collateral proceedings.” People v. Price, 2016 IL

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118613, ¶ 31. In contrast, new rules of criminal procedure, other than a watershed

rule of procedure, will not be applied on collateral review. Teague, 489 U.S. at 310.

¶ 126 Finality of judgments matters. The majority makes the extraordinary claim that

“[a]s for concerns over the finality of judgments, these are of little consequence as a

practical matter.” Supra ¶ 58. As the Supreme Court explained in Lockhart v.

Fretwell, 506 U.S. 364, 372 (1993), retroactivity jurisprudence “was motivated by

a respect for the States’ strong interest in the finality of criminal convictions.” In

recognizing that finality of judgments mattered, the Supreme Court in Montgomery

reiterated that when a state court “adjudicate[es] claims under its collateral review

procedures,” the claim must be “properly presented in the case.” Montgomery, 577

U.S. at ___, 136 S. Ct. at 732. The Court explained that “this Court is careful to

limit the scope of any attendant procedural requirement to avoid intruding more

than necessary upon the States’ sovereign administration of their criminal justice

systems.” Id. at ___, 136 S. Ct. at 735.

¶ 127 To state the corollary, the supremacy clause does not impose upon state courts a

constitutional obligation to grant relief from a final judgment where the claim is not

properly presented in the state court proceedings. Nor does the supremacy clause

mandate the procedural mechanisms by which state courts afford collateral review.

The Court was well aware that the proper mode of collaterally attacking a criminal

conviction in a state court depends on state law, not federal law. See Danforth v.

Minnesota, 552 U.S. 264, 288 (2008) (“the remedy a state court chooses to provide

its citizens for violations of the Federal Constitution is primarily a question of state

law”).

¶ 128 To the extent the majority hangs its analytical hat on Siebold for the proposition

that we have a duty to vacate respondent’s criminal conviction in these

proceedings, the majority is again off base. Siebold mandates that there be a remedy

for a challenge to a conviction obtained under an unconstitutional law. It does not

mandate that we create a new method of collateral attack.

¶ 129 In Siebold, petitioners were convicted of violating federal election laws. They

filed a petition for a writ of habeas corpus in the Supreme Court attacking the

validity of the judgment on the ground that the federal statutes under which they

were convicted were unconstitutional. The Supreme Court addressed whether

habeas relief was an available remedy because a federal court had no inherent

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habeas power. It was unlawful to use the federal habeas writ “as a mere writ of

error.” Siebold, 100 U.S. at 375.

¶ 130 The Court held that a conviction obtained under an unconstitutional law

warranted expansion of habeas relief because, if the law was unconstitutional and

void, it placed the conduct beyond the power of the Congress to proscribe and

“cannot be a legal cause of imprisonment.” Id. at 377. If the federal habeas statute

did not expand to allow for challenges to a conviction obtained under an

unconstitutional law, then prisoners would have no remedy. Id. Therefore, the

claim was subject to collateral attack in federal habeas corpus proceedings. Id.

¶ 131 Montgomery holds that the conclusion in Siebold applies to state collateral

review proceedings, “assuming the claim is properly presented in the case.”

Montgomery, 377 U.S. at ___, 136 S. Ct. at 732. This limitation is an important one.

Illinois applies the principle of finality of judgments rigorously in both civil and

criminal cases. We recognize only those remedies clearly embedded in our statutes

and common law.

¶ 132 Under the specific facts in Montgomery, the defendant had a state law collateral

remedy, which was properly presented. Id. at ___, 136 S. Ct. at 726. As the

Montgomery court explained, in Louisiana, there are two principal mechanisms for

collateral challenge to the lawfulness of imprisonment. Indeed, the defendant had a

state remedy and followed the proper procedure to obtain that remedy by bringing a

collateral attack on his sentence by filing a motion to correct an illegal sentence in

the district court. Id. at ___, 136 S. Ct. at 726. Thus, Montgomery requires that, in a

properly presented state court collateral proceeding, the Louisiana Supreme Court

was required to give Miller retroactive effect.

¶ 133 Illinois has several procedural methods by which a defendant could collaterally

attack a final judgment. A prisoner may seek habeas corpus relief on the grounds

enumerated in section 10-124 of the Habeas Corpus Act. See 735 ILCS 5/10-124

(2014); People v. Gosier, 205 Ill. 2d 198, 205 (2001). Additionally, a defendant

whose conviction is final and who claims his conviction is premised on an

unconstitutional statute may seek relief under the Post-Conviction Hearing Act

(725 ILCS 5/122-1 et seq. (West 2014)) or by filing a petition pursuant to section

2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)).

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¶ 134 Section 2-1401 establishes a comprehensive, statutory procedure that allows for

final orders and judgments to be challenged more than 30 days after their entry. See

People v. Vincent, 226 Ill. 2d 1, 7 (2007). A defendant seeking to vacate a void

judgment is not subject to the usual time limitations or due diligence requirements

of section 2-1401. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104-05

(2002); People v. Harvey, 196 Ill. 2d 444, 452-53 (2001) (McMorrow, J., specially

concurring, joined by Freeman, J.). Thus, in this case, section 2-1401 is an available

mechanism to collaterally attack respondent’s 2008 conviction where respondent

could present evidence before the circuit court to support his claim and where the

State would have the opportunity to respond accordingly. See, e.g., People v.

Shinaul, 2017 IL 120162, ¶ 14 (the defendant properly understood that the way to

vacate his void conviction after a final judgment had been entered on his guilty plea

was to collaterally attack it through the filing of a section 2-1401 petition).

Respondent did nothing like that.

¶ 135 Until now, we have never held that an appeal from a termination of parental

rights proceeding is a proper vehicle under Illinois law to seek relief from a final

judgment of conviction in a criminal proceeding. To put this proceeding in the

framework of Montgomery, the termination proceeding is not a state

“collateral-review proceeding” and does not involve a claim that is “properly

presented.”

¶ 136 Instead, the majority perverts and distorts the concept of collateral attack.

Under the majority’s novel and unprecedented view, despite there being a remedy

available to respondent, after today, Illinois courts are now compelled to sua sponte

revisit settled convictions in any proceeding that is pending before a court where

defendant contends his conviction is based on a facially unconstitutional statute.

“[I]f the constitutional infirmity is put in issue during a proceeding that is pending

before a court, the court has an independent duty to vacate the void judgment and

may do so sua sponte.” Supra ¶ 57. The breadth of this holding is stunning.

¶ 137 Additionally, the majority’s application of retroactivity jurisprudence in the

context of collateral review is misplaced here. The matter at issue here is a direct

review of whether the circuit court erred in the termination proceeding. The Aguilar

decision was rendered before the termination proceeding. Therefore, to say that we

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must apply Aguilar “retroactively” to this matter, on direct review from a

termination proceeding that did not predate Aguilar, makes no sense.

¶ 138 More importantly, this is not a case where we are asked to decide whether a new

substantive constitutional rule applies to a criminal case pending on collateral

review. Montgomery would be relevant if respondent sought to have his prior 2008

judgment of conviction vacated in a proper collateral proceeding attacking that

judgment, which did precede Aguilar. That is not by any stretch of the imagination

the procedural posture of this case.

¶ 139 Not only is Montgomery inapt here, none of the Illinois cases cited by the

majority remotely support the majority’s newly articulated view. For example,

People v. Meyerowitz, 61 Ill. 2d 200 (1975), involved the defendants’ motion to

vacate their guilty pleas and to terminate probation based on an unconstitutional

statute. This court allowed that motion to serve as an appropriate mechanism to

collaterally attack their judgments of conviction where there was no other statutory

remedy available to them. In doing so, this court “recognized that considerations of

justice and fairness require that an accused who asserts a substantial denial of his

constitutional rights in the proceedings in which he was convicted be afforded a

procedure by which the challenged proceedings may be reviewed.” Id. at 205. The

court also emphasized that the circuit court had continuing jurisdiction over the

defendants in that case because they were still under probation when they initiated

the postconviction proceedings. Id.

¶ 140 People v. Warr, 54 Ill. 2d 487 (1973), involved certain defendants who pleaded

guilty to certain offenses without the assistance of counsel. A year later, they filed

pleadings in the trial court purporting to be either a habeas petition or a

postconviction petition in which they contended that the plea violated their

constitutional rights. The circuit court dismissed the pleadings because they did not

fall within the scope of the remedies that had been sought. Id. at 490-91. This court

recognized the familiar statutory methods of collateral attack upon a judgment;

however, these remedies were not available to these defendants. Id. at 491-92. This

court found it was imperative that a remedy be provided for the substantial

violations of constitutional rights. Thus, in the court’s exercise of its supervisory

authority, it held that, where there was no other remedy, these defendants could

institute a proceeding in the nature of a postconviction proceeding. Id. at 493.

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¶ 141 Finally, in People v. Thompson, 209 Ill. 2d 19, 25-27 (2004), this court allowed

a challenge to a sentence as void to be raised for the first time in an appeal from the

denial of a postconviction petition. Under the void sentence rule, which has now

been abolished, defendants could, at any time, challenge their sentence as void

because they were not authorized by statute, thereby bypassing the normal rules of

forfeiture. See 725 ILCS 5/122-3 (West 2014) (any claim of substantial denial of

constitutional right not raised in the original or an amended petition is forfeited);

Price, 2016 IL 118613, ¶ 16 (“the void sentence rule functioned as a judicially

created exception to the forfeiture doctrine”).

¶ 142 The takeaway from these Illinois cases is not the extremely broad holding

articulated by the majority. The majority insists that these cases stand for the broad

principle that “there is no fixed procedural mechanism or forum, nor is there any

temporal limitation governing when a void ab initio challenge may be asserted.”

Supra ¶ 57. The majority again misses the mark. These cases merely represent

examples of the unremarkable proposition that we provide a mechanism by which

to remedy the substantial denial of a constitutional right and that, where a

conviction is alleged to be void, the normal rules of forfeiture and statutory

limitation periods are simply inapplicable. Here, to be sure, respondent has not

forfeited his right to a remedy. He has a procedural mechanism by which to remedy

the deprivation of his constitutional right. He just never used that mechanism.

¶ 143 The majority’s novel and expansive holding has serious implications. After

today, a final judgment of conviction is apparently now open to a new,

unprecedented form of collateral attack.The appellate court now has a sua sponte

duty to engage in a minitrial on the underlying conviction to determine whether the

underlying conviction is void and, if so, then would have a sua sponte duty to

vacate that conviction. Indeed, Justice Wright sounded the alarm. 2017 IL App (3d)

160277, ¶ 39 (Wright, J., dissenting) (“I respectfully disagree that this court should

vacate the 2008 criminal conviction in order to resolve the serious issues in this

appeal. I have concerns that the precedent flowing from this decision to vacate a

criminal conviction in a juvenile case would have far reaching, but unintended

consequences we have yet to consider.”).

¶ 144 Using this new ad hoc method to vacate a judgment creates real life problems

and consequences. It is important to note that the appellate court’s ruling vacating

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the 2008 judgment appears in the body of the opinion: “Accordingly, we vacate the

2008 conviction, reverse the circuit court’s unfitness finding and, reverse, by

necessity, the court’s best interest determination, and remand the case for further

proceedings consistent with this decision.” Id. ¶ 31 (majority opinion). The vacatur

appears nowhere in the actual judgment line. Id. ¶¶ 33-34. Nor could it. The

judgment line is telling.

¶ 145 After today, anyone relying on the status of a conviction, including the circuit

court clerk, the Department of Corrections, law enforcement, probation officers,

prosecutors, and counsel, will have to scour our opinions to determine if a judgment

in another proceeding has been vacated. The majority fails to address any of these

real concerns and, indeed, perpetuates the problem by agreeing that the 2008

conviction must be vacated but then affirming the judgment of the appellate court,

which merely reversed and remanded the judgment in the termination proceeding.

Supra ¶ 88.

¶ 146 To recap, the appellate court lacked jurisdiction to vacate the 2008 judgment of

conviction in these proceedings, and the majority should not have followed that

court’s errant lead and vacated that conviction.

¶ 147 Whether the 2008 Conviction Was Admissible in This Proceeding

¶ 148 The majority’s error does not stop with the improper vacatur. Assuming the

2008 judgment could be vacated in this proceeding, then there were only two

convictions from which to seek a finding of depravity and, thus, a failure of proof

under section 1(D)(i) of the Adoption Act. 750 ILCS 50/1(D)(i) (West 2014).

Under the majority’s analysis then, there is no need to address whether the 2008

conviction, which has not yet been vacated, could be admissible in this proceeding.

Accordingly, based on the majority’s analysis, there is no need for it to address

People v. McFadden, 2016 IL 117424; the majority’s entire discussion is mere

dicta.

¶ 149 Nevertheless, because I would find that this is not a proper forum to vacate

respondent’s conviction, I will address whether the 2008 conviction was admissible

as evidence in the termination of parental rights proceeding to establish the

rebuttable presumption of depravity. The State and the minor maintain that

respondent could not be relieved of the presumption of depravity predicated on the

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certified statements of conviction before that conviction was properly vacated in an

appropriate collateral proceeding. They rely for support on our decision in

McFadden.

¶ 150 In McFadden, this court was asked whether a prior conviction, which was

vulnerable to collateral attack based on an unconstitutional statute, could properly

serve as proof of the predicate felony conviction in a separate criminal prosecution

for UUW by a felon. Id. ¶ 21. Noting that our existing precedent had not addressed

this issue as presented in this framework, we turned to federal court precedent for

illustration and guidance. Id. ¶ 22. In Lewis v. United States, 445 U.S. 55 (1980),

the United States Supreme Court addressed the issue of whether a state felony

conviction, which was subject to collateral attack under Gideon v. Wainwright, 372

U.S. 335 (1963), but had not been vacated, could serve as a predicate offense to a

subsequent prosecution for a felon in possession of a firearm. Lewis held that the

defendant’s prior criminal conviction could properly be used as a predicate in his

subsequent conviction for possession of a firearm regardless of the fact that the

prior conviction might otherwise be subject to collateral attack on constitutional

grounds. Lewis, 445 U.S. at 65.

¶ 151 The Court had before it a statute under which the federal crime of being a felon

in possession of a firearm depended on the defendant being a person who “has been

convicted *** of a felony.” (Internal quotation marks omitted.) Id. at 60. The Court

characterized the language of the statute, “convicted by a court,” as

“unambiguous[ ]” and “sweeping.” Id. The Court held that the statute’s “plain

meaning is that the fact of a felony conviction imposes a firearm disability until the

conviction is vacated or the felon is relieved of his disability by some affirmative

action” Id. at 60-61. The Court viewed the statutory language as being consistent

“with the common-sense notion that a disability based upon one’s status as a

convicted felon should cease only when the conviction upon which that status

depends has been vacated.” Id. at 61 n.5. That the disabling conviction was

unconstitutionally obtained did not alter the fact that the defendant had been

convicted of a felony at the time he possessed the firearm. Id. at 60-61. The Court

found it immaterial whether the predicate conviction “ultimately might turn out to

be invalid for any reason.” Id. at 62. The Court emphasized that “a convicted felon

may challenge the validity of a prior conviction, or otherwise remove his disability,

before obtaining a firearm.” Id. at 67.

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¶ 152 We viewed our own statute in concert with the federal statute, agreeing that,

like the federal statute, our own legislation is concerned with the role of that

conviction as a disqualifying condition for the purpose of obtaining firearms.

McFadden, 2016 IL 117424, ¶ 29. The UUW by a felon statute requires the State to

prove only the defendant’s felon status. Id. We found that the policy and purpose of

the statute “are served by requiring an individual to clear his felony record before

possessing a firearm, ‘no matter what infirmity infects his conviction.’ [Citation.]”

Id. ¶ 30. We also explained that

“[i]t is axiomatic that no judgment, including a judgment of conviction, is

deemed vacated until a court with reviewing authority has so declared. As with

any conviction, a conviction is treated as valid until the judicial process has

declared otherwise by direct appeal or collateral attack. Although Aguilar may

provide a basis for vacating defendant’s prior *** conviction, Aguilar did not

automatically overturn that judgment of conviction. Thus, at the time defendant

committed the UUW by a felon offense, defendant had a judgment of

conviction that had not been vacated ***.” Id. ¶ 31.

¶ 153 We further found that nothing prevented a defendant from seeking a remedy for

the deprivation of his constitutionally guaranteed right. The remedy was to

challenge the judgment and have the conviction set aside before deciding to possess

a firearm. Id. ¶ 34. We rejected the defendant’s undeveloped assertion that this

construction of the statute violated either due process or second amendment rights,

as UUW by a felon was a presumptively lawful “ ‘longstanding prohibition[ ] on

the possession of firearms.’ ” Id. ¶ 34-35 (quoting District of Columbia v. Heller,

554 U.S. 570, 626 (2008)).

¶ 154 The majority’s feeble attempts to distinguish this case from the procedural

posture of McFadden are meritless and mystifying. The majority posits that, unlike

the present case, in the case presented in McFadden, there was no indication in the

record as to either the particular provision of the AUUW statute to which the

defendant had pled guilty or the factual basis for the plea. Without the requisite

evidence, his claim was untenable. Supra ¶ 64.

¶ 155 That fact had no bearing on our holding in McFadden. We explained that, even

assuming the defendant could successfully vacate his conviction on the basis of

Aguilar, “that remedy would neither alter nor extinguish the requirement under

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section 24-1.1(a) that defendant clear his felon status before obtaining a firearm.”

McFadden, 2016 IL 117424, ¶ 37. Nevertheless, we did note that “had defendant

properly sought to vacate his 2002 guilty plea before possessing a firearm, these

issues could have been adequately considered and resolved in an appropriate

proceeding.” Id. ¶ 33.

¶ 156 Remarkably, this case, like McFadden, also suffers from an evidentiary

deficiency in that there was nothing presented to the trial court in the termination

proceeding that would establish proof that respondent’s conviction was based on an

unconstitutional statute. There was no indication in the trial court as to either the

provision of the AUUW statute to which respondent had pleaded guilty or the

factual basis for the plea. As I already established, there is also no “supplemented

appellate record” from which “we can therefore say with certainty” that the

conviction was based on an unconstitutional statute.

¶ 157 Next, the majority inexplicably posits that, unlike the defendant in McFadden,

who never filed any pleading to vacate his prior felony conviction and did not seek

to vacate the prior conviction on appeal from the prosecution for UUW by a felon,

respondent “not only challenged the use of the prior AUUW conviction in this

subsequent proceeding, he sought to have the prior conviction itself nullified and

vacated.” Supra ¶ 66. For that proposition, the majority relies on paragraph 25 of

the appellate court opinion.

¶ 158 In reality, just like the defendant in McFadden, respondent has not filed a

pleading seeking to vacate his prior conviction on the basis of an unconstitutional

statute and did not seek to vacate it on appeal. Rather, exactly like McFadden,

respondent is seeking to challenge the admissibility of his conviction on the basis of

Aguilar for the first time on appeal, as respondent indeed acknowledged in his

appellate brief. To the extent he objected before the trial court in the termination

proceeding to the admissibility of the 2008 conviction, that objection was “based

on the fact that there [was] an ongoing appeal having been filed challenging the

constitutionality of the arrest.” Notably, the circuit court’s ruling overruling that

objection was correct. As we have explained, “the Adoption Act does not call for

courts to reserve ruling on findings of unfitness which are related to criminal

matters until the appellate process in the underlying cause has been exhausted.”

In re Donald A.G., 221 Ill. 2d 234, 254 (2006). Moreover, respondent could not

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have sought to vacate the 2008 conviction on review from the termination

proceeding.

¶ 159 Next, the majority critiques our analysis in McFadden by stating that this court

failed to take into consideration a critical distinction between Lewis and

McFadden, which is purportedly confirmed by Montgomery. Supra ¶¶ 71-72. Of

course, at the outset, Lewis and McFadden are not cases with the same procedural

posture as Montgomery, which addressed retroactivity jurisprudence and state

collateral review.

¶ 160 To be sure, Lewis involved a constitutionally infirm conviction predicated on a

violation of the defendant’s sixth amendment right to counsel. In McFadden and in

this case, the constitutional infirmity was based on second amendment rights. The

majority emphasizes that the constitutional infirmity in Lewis was procedural,

while the infirmity in McFadden and this case is substantive. The majority finds

this to be a “fundamental distinction,” relying on Montgomery. Supra ¶¶ 71-72.

¶ 161 Even assuming that Teague’s procedural vs. substantive distinction is relevant

here, the majority overlooks that the constitutional infirmity in Lewis was a

watershed rule of criminal procedure, which pursuant to Teague is treated the same

way for retroactivity purposes as a new substantive constitutional rule. A Gideon

violation was such a watershed rule of procedure, which would be applied

retroactively. See Beard v. Banks, 542 U.S. 406, 417 (2004) (“[i]n providing

guidance as to what might fall within this exception, we have repeatedly referred to

the rule of Gideon [citation] and only to this rule”). In other words, Teague treats

substantive rules and watershed rules of criminal procedure the same.

¶ 162 Furthermore, the nature of the constitutional infirmity, the sixth amendment

violation, was not ultimately dispositive of the holding in Lewis. All that mattered

in Lewis was the fact of defendant’s conviction as a disqualifying condition for the

purpose of obtaining firearms. The defendant’s status as a felon at the time he

possessed a firearm imposed upon him a civil disability prohibiting him from

possessing firearms before vacating the disability. Similarly, in McFadden, the fact

of defendant’s status as a felon remained, not because we refused to give

retroactive effect to Aguilar in a collateral review proceeding, but because the

defendant had a disability and had not properly vacated his prior conviction before

obtaining a firearm. Thus, contrary to the majority’s assertion, this court took the

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correct analytical path in McFadden. There is no reason to abandon our precedent

by following the majority’s confused and conflated analysis.

¶ 163 Our rationale for our decision in McFadden has not been undermined by any

controlling precedent. The dissent in McFadden relied on essentially the same line

of reasoning as the majority here, and it was rejected by this court. The defendant’s

certiorari petition was denied by the United States Supreme Court. McFadden,

2016 IL 117424, cert. denied, ___ U.S. ___, 137 S. Ct. 2291 (2017).

¶ 164 As we explained in McFadden, lower federal courts have consistently applied

the federal statute in this way, regardless of the nature of the constitutional

infirmity. See, e.g., United States v. Mayfield, 810 F.2d 943, 945-46 (10th Cir.

1987) (affirming conviction where predicate felony conviction may have been void

under state law for lack of jurisdiction); United States v. Chambers, 922 F.2d 228,

238-40 (5th Cir. 1991) (upholding conviction where predicate felony was subject to

nullification on collateral attack); United States v. Wallace, 280 F.3d 781, 784 n.1

(7th Cir. 2002) (affirming conviction where predicate conviction was pursuant to a

statute declared void ab initio by Illinois court under single subject rule); United

States v. Padilla, 387 F.3d 1087, 1092 (9th Cir. 2004) (upholding conviction where

predicate felony was subsequently vacated nunc pro tunc but was not yet

invalidated when defendant possessed firearm); United States v. Leuschen, 395 F.

3d 155, 157-59 (3d Cir. 2005) (upholding conviction where predicate felony

conviction was based on a statute that had been amended prior to trial).

¶ 165 There is no merit to the majority’s implication that this court’s decision in

McFadden was somehow erroneous based on the number of certiorari petitions

filed and denied. Supra ¶ 74 n.3. It is illogical to conclude that the Supreme Court’s

denial of certiorari in McFadden and its repeated denial in cases relying on

McFadden meant the case was wrongly decided. Rather, as the Supreme Court has

explained, “[t]he denial of a writ of certiorari imports no expression of opinion

upon the merits of the case” and has no precedential value. United States v. Carver,

260 U.S. 482, 490 (1923).

¶ 166 Furthermore, any suggestion by the majority that applying McFadden to the

present case would implicate procreative rights and would somehow be akin to

forced sterilization is simply ludicrous and merely displays the majority’s lack of

discipline and outcome-determinative decision-making.

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¶ 167 Of course, the proceeding squarely before us is not a criminal proceeding, and

we are not being called upon to construe a felon-in-possession statute. Rather, we

are being called upon to construe the Adoption Act. I agree there are different

statutes at play here that should be individually addressed. Under section 1(D)(i) of

the Adoption Act, a parent can be found unfit based on a finding of depravity. 750

ILCS 50/1(D)(i) (West 2014). Although the statute does not define depravity, this

court has defined it as “ ‘ “an inherent deficiency of moral sense and rectitude.” ’ ”

In re Abdullah, 85 Ill. 2d 300, 305 (1981) (quoting Stalder v. Stone, 412 Ill. 488,

498 (1952)). It has been similarly described as a course of conduct that indicates a

deficiency in a moral sense and shows either an inability or an unwillingness to

conform to accepted moral standards. In re Keyon R., 2017 IL App (2d) 160657,

¶ 22. Under this section, there is a rebuttable presumption that a parent is depraved

if he “has been criminally convicted” of at least three felonies and at least one of

these convictions occurred within five years of the filing of the petition seeking to

terminate parental rights. 750 ILCS 50/1(D)(i) (West 2014).

¶ 168 Under the plain language of the statute, the legislature has determined that the

fact of having had three felony convictions within a certain time period is enough to

create a rebuttable presumption of depravity. Id. The statute evidences a

presumptive correlation between repeated felony convictions, which frequently

result in incarceration, and the ability to carry out parental responsibilities. The

whole focus of the statute is and must be on the operative facts existing at the time

of the termination proceedings. When the fundamental parental relationship with a

child is at stake, historical facts must matter.

¶ 169 Here, the majority would like us to just simply ignore the fact that respondent

has been imprisoned based on the choices respondent has made for nearly this

child’s entire life. The historical facts, which cannot simply be erased, are that

respondent was convicted in 2008 of a felony and was sentenced to 18 months in

prison. Approximately one year later, in 2009 he was again convicted of a felony

and had other charges dismissed in a plea agreement. Respondent was sentenced to

another five years in prison. Just two years later, in 2011, while N.G.’s mother was

pregnant with N.G, respondent was charged with additional felonies. One month

after N.G. was born, respondent was convicted of his third felony after a plea

agreement to dismiss another felony charge. He was sentenced to over nine years in

prison. Those three convictions have not been overturned.

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¶ 170 The hard facts of the matter are that respondent has spent most of his child’s

seven years of life, from 2011 to the present, incarcerated and unable to carry out

parental responsibilities. His pattern of choices at the time negatively affected his

ability to provide for N.G. physically, emotionally, and financially. That history

cannot be swept away or ignored. See People v. Holmes, 2017 IL 120407, ¶ 32

(“ ‘[t]he past cannot always be erased by a new judicial declaration’ ” (quoting

People v. Blair, 2013 IL 114122, ¶¶ 29-30)).

¶ 171 Under the statute, despite three felony conv

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