In re N.G.

Digitally signed by

Reporter of

Decisions

Illinois Official Reports Reason: I attest to

the accuracy and

integrity of this

document

Supreme Court Date: 2019.02.04

11:02:55 -06'00'

In re N.G., 2018 IL 121939

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

Court: Appellants, v. Floyd F., Appellee).

Docket Nos. 121939, 121961 cons.

Filed August 9, 2018

Rehearing denied December 17, 2018

Decision Under Appeal from the Appellate Court for the Third District; heard in that

Review court on appeal from the Circuit Court of Will County, the Hon. Paula

Gomora, Judge, presiding.

Judgment Appellate court judgment affirmed.

Circuit court judgment reversed.

Counsel on Lisa Madigan, Attorney General, of Springfield, and James W.

Appeal Glasgow, State’s Attorney, of Joliet (David L. Franklin, Solicitor

General, and Mary C. LaBrec, Assistant Attorney General, of

Chicago, and Patrick Delfino, Lawrence M. Bauer, and Richard T.

Leonard, of the Office of the State’s Attorneys Appellate Prosecutor,

of Ottawa, of counsel), for the People.

Neil J. Adams, of Joliet, for appellee.

Kristen Messamore, of Hammel Law Offices, P.C., of Joliet, guardian

ad litem.

Justices 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, and dissented upon denial of rehearing, 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. R. 315(a) (eff.

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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.

¶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 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.

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¶ 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

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 Adoption 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 section 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 evidence 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.

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¶ 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 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. Thompson (Dennis Thompson),

2015 IL 118151, 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

(Ernest Thompson), 209 Ill. 2d 19 (2004), 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

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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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. (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. 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 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

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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 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);

People v. R.G., 131 Ill. 2d 328, 342 (1989); In re Enis, 121 Ill. 2d 124, 128-29 (1988); see also

In re Vanessa C., 316 Ill. App. 3d 475, 481 (2000); In re D.R., 307 Ill. App. 3d 478, 482

(1999);. 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 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

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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 section

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 section

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).

¶ 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

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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; Burns, 2015 IL

117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th 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 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]

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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.

¶ 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

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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)).

¶ 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 that framework, 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 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.

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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, 577 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 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

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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

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 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

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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] 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

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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.

¶ 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 individuals 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 F. 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 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).

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¶ 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

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, 577 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

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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 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 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

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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. ¶¶ 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 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 the 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 the 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 the 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

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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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. 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 “attaches immediately upon the defendant’s first

conviction” and not, as in Burgett, only after the fact of the second conviction. Id. (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

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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.

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

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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

¶ 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. Marshall, 2015 IL App (1st) 142461-U; People v. Fryer, 2015 IL

App (1st) 141409-U; People v. Speciale, 2015 IL App (1st) 132376-U; People v. Hernandez,

2015 IL App (1st) 131871-U; People v. Sterling, 2015 IL App (1st) 130556-U; People v.

Spivey, 2015 IL App (1st) 123563-U; People v. Moton, 2015 IL App (1st) 123385-U; People v.

Brown, 2015 IL App (1st) 122651-U; People v. Somerville, 2014 IL App (1st) 132202-U;

People v. Carter, 2014 IL App (1st) 123589-U; People v. Smith, 2015 IL App (1st) 123281-U;

People v. Dean, 2015 IL App (1st) 122570-U; People v. White, 2014 IL App (1st) 122371-U;

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.

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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People v. Smith, 2014 IL App (1st) 122370-U; People v. Fields, 2014 IL App (1st) 122012-U;

People v. Lester, 2014 IL App (1st) 121882-U; People v. Crosby, 2014 IL App (1st)

121645-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.

(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 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.

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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.

¶ 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

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not be forced to suffer sanctions for 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

case distinguishable from McFadden, to the extent that this result and controlling United States

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 Adoption Act

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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. 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 (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

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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” 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.

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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 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.

¶ 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

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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.

¶ 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).

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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 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.”

¶ 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

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(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.

¶ 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

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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 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 habeas power. It was unlawful to use the federal

habeas writ “as a mere writ of error.” Siebold, 100 U.S. at 375.

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¶ 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, 577 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)).

¶ 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.”

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¶ 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 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.

¶ 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

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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 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.

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¶ 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 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.

¶ 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

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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 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. 2017 IL App (3d) 160277, ¶ 25.

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¶ 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 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 correct analytical path in McFadden.

There is no reason to abandon our precedent by following the majority’s confused and

conflated analysis.

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¶ 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.

¶ 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

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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.

¶ 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 convictions, a parent retains the right to offer

evidence of parental fitness in rebuttal. 750 ILCS 50/1(D)(i) (West 2014). Here, respondent,

who had counsel, exercised that right when he testified regarding his fitness to parent N.G. The

trial court heard and considered that testimony. And respondent had a

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