Petition for Writ of Certiorari — Deerwester v. Illinois
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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998
IN THE INTEREST OF
JEREMY , JOSEPH, JOSHUA AND KRYSTAL
BALDRIDGE
AND
DAVID AND LOREN ANDREW DEERWESTER
ALLEGED TO BE NEGLECTED MINORS
ON PETITION FOR WRIT OF CERTIORARI
TOTHE
APPELLATE COURT OF ILLINOIS,
FOURTH JUDICIAL DISTRICT
PETITION FOR WRIT OF CERTIORARI
Joseph L. Deerwester
PRO-SE Petitioner
No. B 33706
Joliet Correctional Center
P.O. Box 515
1125 Collins Street
Joliet, Illinois 60434-0515
Phone: (815) 727-6141
‘ie
QUESTIONS PRESENTED
me
When a state seeks to terminate parental nghts of a
United States citizen based upon the criminal
conviction of a parent: Does the final and irrevocable
nature of terminating parental rights require
additional Due Process safeguards with a rule that no
criminal conviction shall be conclusive as to proof of
the facts upon which it is based but rather shall be
admitted only as prima facie evidence of the facts
that shall not be rebutted even though the rebuttal
evidence may contradict the criminal court findings
and the doctrine of collateral estoppel should not be
applied? The basis for such rule being the final and
irrevocable nature of termination of parental rights
while a criminal conviction jis always subject to
Judicial or executive reversal long after parental
rights have been terminated, additional safeguards
would prevent possible erroneous termination of
odie
parental nghts 1s warranted.
ott.
In a proceeding to terminate parental rights based
upon a prior proceeding where the children were
adjudicated neglected and abused using a
preponderance of the evidence standard: Doe the state
violate Due Process of law required by the Fourteenth
Amendment and this court's decision in Santosky v.
Kramer, 455 U.S. 745 (1982) which requires proof of
unfitness by clear and convincing evidence when the
state court has held the parents are collaterally estopped
from challenging the findings in the prior adjudication
at the unfitness phase of the termination proceeding?
-III-
If the highest court of a state has determined that
proof of criminal convictions are admissible in
subsequent civil cases as prima facie evidence of the
facts upon which they are based but not conclusive
—— OO
-ill-
proof and therefore may be rebutted and with such
decision binding upon all inferior state courts: Doe
the Fourteenth Amendment's Due Process of Law
provision require the state's highest court to permit a
presentation of rebuttal evidence by a parent in
proceedings to fins parental unfitness. Leading to the
termination of parental rights which are federally
protected?
-jV-
LIST OF PARTIES
All parties do not appear in the caption of the case on
the cover page. The following are parties to the
proceedings.
Petitioner, Joseph L. Deerwester (Respondent
below), appears Pro-Se:
Joseph L. Deerwester
No.: B 33706
Joliet Correctional Center
1125 Collins Street
Post Office Box 515
Joliet, Illinois 60434-0515
Respondent, Sherry Lynn Hasty-Deerwester
(Respondent mother below):
Sherry Lynn Hasty-Deerwester
201 South Walnut |
Arrowsmith, Illinois 61722
Respondent minors, named in the caption on the
cover, (Respondent's below) are represented by the
minor's guardian ad litem's below:
Bnan Goldnck
Attorney at Law
111 West Front St.
Bloomington, Illinois 61701
and
Art Feldman
Attorney at Law
111 West Front St.
Bloomington, Illinois 61701
Respondent, the People of the State of Illinois,
(Petitioner below) is represented by the following
counsel:
Charles G. Reynard
McLean County State's Attorney
104 West Front St. Room 605
Post Office Box 2400
Bloomington, Illinois 61702-2400
and
Robert J. Biderman
State's Attorney's Appellate Prosecutor
Fourth District Office
725 South Second St.
Springfield, Illinois 62701
and
James E. Ryan
Attomey General of Illinois
100 West Randolph
Chicago, Illinois 60601
-Vi-
TABLE OF CONTENTS
OPINIONS BELOW
JURISDICTION
CONSTITUTIONAL
AND STATUTORY
PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING
WRIT
Reason |
Reason I]
Reason II]
CONCLUSION
PAGES
tl
-Vii-
INDEX TO APPENDICES
(All pages are consecutively numbered)
DOCUMENT PAGE
Opinion of Appellate Court
of Illinois, Fourth A.001-A.018
Judicial District, No. 4-97-0916
Order of Circuit Court
dismissing Petition B.019-B.023
to Terminate Parental Rights,
No.'s 91-J-2 and 91-J-64
Order of Supreme Court of IIlinois,
No. 86312, C.024
(denying Leave to Appeal)
Petition for Rehearing,
No. 4-97-0916 D.025-D.041
Order of Appellate Court of Illinois,
Fourth E.042
Judicial District, No. 4-97-0916
(denying Petition for Rehearing)
705 ILCS 405/2-18. F.043-G.0.51
705 ILCS 405/2-29. G.051-G.054
-Vill-
Appeliee Bnef and Argument,
No. 4-97-0916
High court forms death
penalty panel
The Pantagraph, Apnil 7, 1999,
Bloomington, III
Report of Dr. Kathleen Alison
Clarke-Stewart
USA Today Newspaper article:
DNA Test Saves Men
of April 16, 1998
U.S. News article:
The Wrong Men on Death Row
Dated November 9, 1998
H.055-H.088
1.089-1.093
J.094-J.163
K.164
L.165-L.178
«8X~
TABLE OF AUTHORITIES
CASES PAGES
Charles v. Siegfried, (Ill. 1995)
165 Ill. 2d 482, 651 N.E. 2d 154 25
Gilbert v. Homer, (1997) 14
247 Ill. App. 3d 803, 117 S. Ct. 1807,
1812 (1997)
In re Boolman, (4th Dist. 1986) 21-23
141 Ill. App. 3d 508, 491N.E.2d 1
In re Clarence T.B., (2nd Dist. 1991) 22-23
215 Ill. App. 3d 85, 574 N.E. 2d 878
In re J.B., (4th Dist. 1998) 27
298 Ill. App 3d 250, 698 N.E. 2d 550
Johnson v. Chicago, 17
712 F. Supp 1311 (N.D. III. 1989)
Lassiter v. Department of Social 12
Services, (1981)452 U.S. 18
-X-
People v. Bull, (Ill. 1998) 13
185 Ill. 2d 179, N.E. 2d
Santosky v. Kramer, (1982) 12, 24
455 U.S. 745
Schiffer v. Motorola, Inc., (ist Dist. 1998) 25
297 Ill. App. 3d 1099, 697 N.E. 2d 868
Smith v. Andrews, (2nd Dist. 1965) 15
54 Ill. App. 2d 51, 203 N.E. 2d 160
State Farm Fire & Casualty Co. v. Shelton, 16
(1988)
176 Ill. App. 3d 858, 531 N.E. 2d 913
Thornton v. Paul, (Ili. 1978) 15-16,
74 Ill. 2d 132, 384 N.E. 2d 335 26
STATUTES: PAGES
705 ILCS 405/2-18 4, 20
705 ILCS 405/2-29 4
TREATISE:
47 American Jurisprudence Second 1S
Judgments § 732
-X\-
OTHER:
Report of Dr. Kathleen Alison
Clarke-Stewart
U.S. Code Cong & Admin News, (1978)
Pages 7530, 7545
H.R. Rep. No. 95-1386, (1978)
Page 22
High court forms death penaltv panel
The Pantagraph, Bloomington, Illinois,
Apni 7, 1999
15
13
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998
IN THE INTEREST OF
JEREMY, JOSEPH, JOSHUA AND KRYSTAL
BALDRIDGE
AND
DA VIDANDLOREN ANDREW DEERWESTER
ALLEGED TO BE NEGLECTED MINORS
PETITION FOR WRIT OF CERTIORARI
TOTHE
APPELLATE COURT OF ILLINOIS,
FOURTH JUDICIAL DISTRICT
NOW COMES your Petitioner, Joseph L.
Deerwester, Pro-Se, and respectfully moves this
Honorable Court to issue a Writ of Certioran to
review the judgment of the Appellate Court of
[linois, Fourth Judicial Distnct and in support
Slates:
2
OPINIONS BELOW
The opinion of the Appellate Court of Illinots,
Fourth Judicial District, which last reviewed the
merits of the case, appears at Appendix A.0O1 and 1s
published at 298 Ill. App. 3d 250, 698 N.E. 2d 550
(4th Dist. 1998).
The decision of the Circuit Court appears as
Appendix B.019 and is unpublished.
The order of the Supreme Court of Illinois,
denying leave to appeal from the decision of the
Appellate Court of Illinois, appears as Appendix
C.024 and is published at 181 Ill. 2d 571, 706 N.E.
2d 497 (Nov.. Term 1998).
JURISDICTION
On December 2, 1998 the Supreme Court of
Illinois demed Petitioner's Petition for Leave to
Appeal from the decision of the Appellate Court of
I}linois, Fourth Judicial District.
~,
On March 2, 1999 Justice John Paul Stevens
pursuant to application A 723 granted an
enlargement of time to, and including May 1, 1999,
in which to file a Petiton for Wnt of Certiorari.
Jurisdiction of Court is invoked under 28 U.S.C. §
12S7 (a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U. S. CONSTITUTIONAL, AMENDMENT IX
The enumeration in the Constitution, of certain
nights, shall not be construed to deny or disparage
other retained by the people.
U.S. CONSTITUTION, AMENDMENT XIV, § |
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
ciuzens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
4
deprive any person of life, liberty, or property,
without due process of law; nor deny any person
within its jurisdiction the equal protection of laws.
705 ILCS 405/2-18. Due to it's length,
Statute presented in Appendix F,043
705 ILCS 405/2-29. Due to it's length, Statute
presented in Appendix G.051
&
STATEMENT OF CASE
On January 11, 1991 Petitioner's children and
step-children were taken into protective custody by
DCFS. (R Vol. I, C 29) On April 24, 1991 the
minors were made wards of the Court and placed in
DCFS custody. (R. Vol. I, C 185). On September
5, 1991 an after born child was made a ward of the
Court. (R Vol. X, C44).
On May 24, 1994 Illinois filed a Petition to
Terminate the Parental Rights of Petitioner. (R, Vol.
IV, C 644; Vol. X, C 93). Illinois filed an Amended
Petition to Terminate Parental Rights. (R. Vol. V.,C
823-824; Vol. X, C 225-226).There are no
allegations Petitioner has abused his biological
children.
The tral court took judicial notice of Petitioner's
criminal convicuions in case No. 91-CF-22, the
Appellate Court opinion in the criminal case and of
-6-
the files in the juvenile cases. (R. Vol. XV, R. 199
and Vol. XVI, R. 3, 16-17).
Petitioner sought to rebut Illinois' case by
presenting evidence to rebut the factual basis of the
criminal conviction. This evidence included, but was
not limited to expert testimony by Dr. Alison Clarke-
Stewart. The tnal court barred such evidence on the
grounds that it was an attempt to relitigate or attack
the tesumony and evidence, presented in the cnminal
trial and prior juvenile adjudication. (R. Vol. XVI,
R. 28). |
Following arguments (R. Vol. XVIII) the trial
court dismissed the Petition stating, in part:
"There remains three allegations
relating to Mr. Deerwester's actions
towards step-children, and the Court
believes that under the law in the
RK, 3
State of Illinois there is distnction
between acts committed upon
children which the State seeks to
terminate and find--have a finding
of unfitness to parent and children
upon whom those acts were not
committed. The Court finds that the
State failed to meet its burden in
proving by clear and convincing
evidence that as to Mr. Deerwester's
two children, Loren and David, .. .
that he is depraved as to his
parenthood of his biological children,
and the court will find that the State
has failed to meet its burden as to
paragraph six A,B & C. The
petition is dismissed." (R. Vol.
XVIII, R. 29-31)
-8-
Illinois then appealed. (R. Vol. IX,
C. 1729; Vol. XIII, C. 786).
On appeal the Appellate Court reversed finding
Petitioner's criminal conviction standing alone, was
sufficient proof of depravity and proof of his
unfitness to parent David and Loren, and remanded.
Opinion at 6-11.
Petitioner argued on appeal the court erred in
barring evidence to rebut the Illinois’ pnma facie
case Of depravity and, if remanded Petitioner should
be permited to present whatever evidence he feels
may rebut Illinois’ pnma facie case, even though
such may contradict facts in the cnminal case.
(Appellate Brief at 5-9). The Appellate Court
reyected this argument. Opinion at 9-11.
Petuoner then filed for Rehearing arguing two
points: 1) the Court's decision was contrary to prior
-9-
decisions of the Supreme Court of Illinois holding
that proof of criminal convictions 1s not admissible
as conclusive proof of the facts on which it 1s based
in a subsequent civil proceeding and specifically —
preserved for defendants the opportunity to rebut the
factual basis of the conviction, and pointed out that
other Appellate Courts have followed the Supreme
Court decisions admitting evidence to rebut the
prima facie case of the criminal court findings and,
2), the Appellate Court misapplied the doctrine of
collateral estoppel. Petiuon for Rehearing at 2-8.
Rehearing was denied on September 3, 1998.
Petitioner filed a Petition for Leave to Appeal. The
Peution raised the following questions: |) whether
the decisions below, barnng any rebuttal evidence,
conceming depravity based on criminal convictions,
is contrary to Illinois law; 2) whether the decision
-10-
collaterally estopping respondent parent from
challenging the neglect and abuse findings in the
termination proceeding conflicts with existing case
law; and 3) whether the Appellate Court decision
holding criminal convictions for conduct against
children conclusively establishes depravity to one's
biological children, deprives the parent's of
fundamental faimess when it does not allow an
Opportunity to rebut facts underlying the conviction.
Petition for Leave to Appeal, (herein after PLTA), at
7-19.
The third question of the PLTA, was couched in
the context of the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution. (PLTA at 16) The Supreme Court of
Illinois denied leave to appeal on December 2, 1998.
This Petition followed.
anes
REASONS FOR GRANTING WRIT
ols
In a termination of parental nights proceedings,
does due process require an additional safeguard to
permit collateral evidence to be used by a respondent
parent to rebut a prior criminal conviction, being
used by the State to prove parental unfitness?
At the tral court level in this matter, the Petitioner
was found unfit to parent his children for the reason
of depravity. The basis for this was in part, that
Petitioner had been convicted of criminal sexual
assault of his step-children, as demonstrated by
certified copies of his criminal convictions. (R. Vol.
XV, R119)
In determining due process requirements in a
given case, the Court must determined what is
fundamentally fair, considering relevant precedent
and balance the interests at stake in a
particular situation. Lassiter v. Dept. of Social
Services, 452 U.S. 18, 27 (1981). Parental nghts
are fundamental and are far more precious than any
property nght. Lassiter at 27. In a termination
proceeding, the State seeks not merely to infringe
upon a fundamental nght, but to end it. Thus, the
parents interest in accuracy and justice is
commanding. Lassiter at 27, Santosky v. Kramer,
455 U.S. 745, 758-759 (1982).
The The United States Congress has recognized
that termination of parental nghts 1s a penalty greater
than acnminal convicuon. H.R. Rep. No. 95-
1386, page 22 (1978); U.S. Code Cong. & Admin.
News, 1978, pages 7530, 7545.
Termination of parental nghts becomes irrevocable
as soon as the appeal is final and can never be
reversed. Santosky, 455 U.S. at 759. On
allen clin ATS tees 5
3.
the other hand, a criminal conviction is subject to
reversal by judicial or executive action, even many
years later,for a variety of reasons, including
innocence.
Justice Moses Harmison of the Supreme Court of
Illinois, in a dissenting opinion in People v. Bull,
185 Ill. 2d 179, 226-227___-N.E. 2d (1998),
outlined some IIlinois cases where innocent persons
have been sentenced to death, only to be exonerated
as many as 22 years after convictions. See "High
Court from Death Penalty Panel", The Pantagraph,
Wednesday, April 7, 1999 (App 1.089);USA Today
Newspaper, "DNA Testig Free Men" (App. K-164;
and U.S. News article " The wrong men on Death
Row" (App. L-165). With DNA testing, persons
convicted of rape decades ago are being found
innocent. A review of cases in Illinois and other
jurisdictions show examples, where those
-14
convicted of cnminal offenses are later found to be
innocent. The Due Process Clause requires that
- safeguards to protect the nghts of parents who have
been wrongfully convicted at termination
proceedings. This Court has ruled that "[dJue
process 1s flexible and calls for such procedural
protections as the particular situation demands."
Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807,
1812 (1997). A termination of parental rights
proceeding, based solely upon a criminal
convicuion, should warrant additional safeguards.
In the instant case, Illinois sought to terminate
Peuuioner's parental rights based on depravity
premised upon his conviction for acts against his
step-children. The trial court found Illinois failed to
prove parental unfitness and dismissed the Petition.
(R. Vol. XVIII, R 29031). The Appellate Court
reversed, finding that proof of cnminal conduct
5S
based by certified copies of the convictions and the
indictment, was, alone, sufficient proof of
depravity.
At tral, Petitioner sought to challenge the factual
basis of the convictions with tesumony of Dr.
Alison Clarke-Stewart, Frank M. Picl, and others.
The trial court found Petitioner was attempting to
impermissibly relitigate or attack the earlier evidence,
presented at both the criminal tnal and the juvenile
adjudication. (R. Vol. XVI, 28; 82-85). Petiuoner
argued he was not barred from challenging the
factual basis of the cnminal conviction ina
subsequent civil proceeding. Pettuoner argued on
appeal that Illinois law, held that proot of a cnmuinal
conviction 1s not conclusive, as to the underlying
facts, but is only to be admitted as pnma facie
evidence. Smith v. Andrews, 54 Ill. App. 3d 51
(2nd Dist. 1965) 203 N.E. 2d 160; Thornton vy.
Paul, 74 Ill. 2d 132, 384 N.E. 2d 335 (1978)
-16-
and State Farm Fire & Casualty Co. v. Shelton,
176 Ill. App. 3d 858 (1988)531 N.E. 2d 913
Petiuoner further argued that collateral estoppel did
not apply. The Appellate Court rejected these
arguments.
In his Petution for Rehearing, Petitioner argued
the Appellate Court issued an opinion which 1s
contrary to Illinois law. Specifically, Petitioner
argued that the Supreme Court of Illinois has held
that proof of a cnminal conviction ts admissible in a
subsequent civil proceeding but is not conclusive as
to proof of underlying facts. Thornton v. Paul, 74
Ill. 2d 132, 384 N.E. 2d 335, 343 (1979).
Petuuoner further argued that other Appellate Court
decisions have held that a defendant may defend an
acuon by presenting any evidence he believes may
rebut the prima facie evidence of his liability (i.e.
prool of cnminal conviction), even though such
it.
evidence contradicts the cnminal court findings.
In addition, the United States District Court for the
Northern District of Illinois has concluded that under
Illinois law, a criminal conviction is only pnma facie
evidence of the facts on which it 1s based. Johnson
v. Chicago, 712 F. Supp. 1311 (N.D. Ill. 1989).
In termination proceedings, due process requires
that a respondent parent be able to challenge the
factual basis of a criminal conviction. As previously
noted, termination of parental nghts which ts
protected by the Ninth and Fourteenth Amendments
to the Constitution ( U.S. Const. Amend. IX and
X V1) and from the abridgement under the Privileges
and Immunities Clause (U.S. Const. Amend. XIV),
IS as great, if nota greater penalty than a criminal
conviction. Moreover, while termination of parental
rights is irreversible, a criminal conviction may
-18-
always be reversed. Therefore a substantial
difference between the two penalties exist.
Protections of parental nghts, requires greater
safeguards.
While the national trend 1s to give criminal
convictions collateral estoppel effect in subsequent
civil proceedings, some jurisdictions still refuse to
allow admission of a cnminal conviction into
evidence in a subsequent civil action or as in Ihinois,
allow admission of the evidence, but permit
reliugation of the facts. (47 Am. Jur. 2d Judgments
§732). The varying treatment of this evidence
among sister states, allows some parents to
challenge facts underlying cnminal convictions,
while barnng others from challenging these facts. In
other jurisdictions the uses of cnminal judgments
are not allowed. Since parental nghts are federally
|
M
i
-19-
protected by the due process and the privileges and
immunities clauses of the Fourteenth Amendment,
there should uniform treatment of the effect of
criminal convictions in civil proceedings.
Since Illinois has adopted the position that it has,
Petitioner was denied his nght to due process by the
trial court's refusal to allow him to introduce rebuttal
evidence challenging the facts underlying the
criminal conviction. The proposed rebuttal evidence
including the report of Dr. Clarke-Stewart
(Appendix J.094 ), would rebut, and call into
question underlying facts of the State's case, relating
to parental fitness, thereby rendering it impossible
for the State to meet their burden of clear and
convincing evidence.
WHEREFORE, Petitioner prays for this
Honorable Court to grant certioran as to this
question.
Nabe 6» 20964
-20-
oli.
In a proceeding to terminate parental nghts, does
due process require that the respondent parent be
allowed to collaterally attack evidence onginally
used to find the minors abused and neglected, where
that prior finding was reached by the preponderance
of the evidence standard and the burden of proof in
the termination proceeding 1s by clear and
convincing evidence?
In Illinois the staandard of proof is the
preponderance of the evidence in child abuse and
neglect proceedings. (Ill. Rev. State. (1989), Ch.
37, § 802-18(1) (now codified 705 ILCS 405/2-18))
The children were found to be abused and neglected
by a preponderance of the evidence in 1992. In
1994, the State sought to terminate Petitioner's
parental nghts.
i.
Petitioner attempted to offer evidence to challenge
the finding of abuse and neglect and its reliability.
The tral court refused to allow this challenge on the
basis of collateral estoppel. The Appellate Court of
Illinois affirmed citing, In re Boolman, 141 III. App.
3d 508, 512 (4th Dist. 1986),. . ." [t]his court
reasoned [in a proceeding to terminate parental
rights] the respondents were collaterally estopped
from denying a previous court's determination
adjudicating the minor neglected."
In his Petition for Rehearing, Petitioner argued
that the tnal court's reliance upon Boolman was
misplaced.
First, Boolman ts factually distinct from the case
at bar in that Boolman had the respondent father
attempting to rebut the earlier findings of neglect and
abuse in the juvenile proceeding. Here,
2.
the issue surrounding the initial juvenile proceeding
did not relate to the subject matter of the criminal
conviction which the respondent father was seeking
to challenge.
Secondly, while the decision in Boolman was
decided on the basis of collateral estoppel, there was
no discussion as to why collateral estoppel applied
and no authority cited for its ruling.
In In re Clarence T.B., 215 Ill. App. 3d 85, 574
N.E. 2d 878, 889 (2nd Dist. 1991), discusses why
estoppel principles do not apply in situations like
Boolman , and notes Boolman cited no authority for
this proposition. Further in Clarence T.B., the
court specifically noted that the Boolman case did
not consider the differing in burdens of proof in an
abuse and neglect proceeding and a termination
proceeding.
23.
Since the burden of proof in the former
proceeding is lower than the latter,a Court's ruling
in the abuse and neglect proceeding should not be
binding on a court in a subsequent proceeding.
Thus, considering the Second District's reasoned
Opinion as opposed to this Court's bald assertion in
Boolman, Respondent father respectfully asserts this
Court misapprehended the estoppel doctrine and
should grant a rehearing and explicitly overrule
Boolman and/or determine Boolman ts not applicable
to the case at bar.
In re Clarence T.B. holds that you may challenge a
factual issues determined by preponderance of the
evidence standard in a subsequent proceeding where
the standard of the proof is by clear and convincing
evidence.
-24-
Therefore, the application of collateral estoppel in
this case is wrong and violates Due Process. The
decision of the Appellate Court also violates this
Court's decision in Santosky v. Kramer, 455 U.S.
745 (1982).
A factual issue determined by preponderance
standard does not insure the same facts will meet the
clear and convincing evidence standard, especially if
controverted with additional evidence required by
Santosky. Thus, Petitioner asserts the Appellate
Court violates his Due Process rights and Santosky
by applying collateral estoppel to prevent a challenge
to the former proceedings factual assessment and
preclusion of prsentation of additional evidence
bearing on the factual assessments previously made.
WHEREFORE, Petitioner prays for this
Honorable Court to grant certiorarias to this issue.
-25-
-III-
Does the failure of the Illinois State Courts to
follow their own precedent, as it relates to the use of
a criminal conviction as proof in a subsequent civil
case, deprive the respondent parent of his due
process nights?
In Illinois, Stare Decisis is a policy of the Courts
to stand by precedent and leave settled points of law
undisturbed. Decisions that have been established
should, in the orderly administration of justice, be
deemed controlling unless and until the General
Assembly provides otherwise. Charles V.
Seigfried, 165 Ill. 2d 482, 651 N.E. 2d 154, 159
(111. 1995).
Further, the doctrine does not require courts to
follow decisions of equal or infenor courts.
Schiffner v. Motorola, Inc., 296 Ill. App. 3d 1099,
697 N.E. 2d 868, 871 (1st Dist. 1998). Thus, a
-26-
decision of the Supreme Court of Illinois, or a
federal issue determined by this Honorable Court, is
binding upon the Appellate and trial courts of this
State.
The Supreme Court of Illinois has held proof of a
cnminal conviction 1s admissible in a civil case as
prima facie evidence of the facts upon which it is
based. Thornton vy. Paul, 74 Ill. 2d 132, 384 N.E.
2d 335, 343 (1979). The Supreme Court of Illinois
stated in Thornton this preferred rule preserves the
Opportunity to rebut the factual basis of the
conviction insofar as those facts are applicable to the
civil proceeding. Id.
The opinion of the Appellate Court of Illinois
does not follow the decision of the Supreme Court
of Illinois, as is required, and the Trial and Appellate
Court has refused to permit Petitioner to rebut the
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factual basis of the conviction. The Appellate Court
of Illinois has, in fact, established a rule for
admission of a criminal conviction as conclusive
proof of the facts on which it is based. _In re J.B.,
298 Ill. App. 3d 250, 255-257. (4th Dist. 1998).
In the instant case Parental Rights are protected by
the Ninth and Fourteenth Amendments to the
Constitution of the United States (U. S. Const.
Amend's [X and XIV) from abridgment and from
depravation without Due Process of Law.
Due Process requires all infenor State Courts
follow the decision of the State's highest Court
when State rules and failur to do so herein has
resulted in a fundamental unfairness involving
Federally protected nghts, i.e., a parent child
relationship.
Petitioner has not located any case law directly
-28-
addressing the issue, thus, it appears this may be
one of first impression for this Honorable Court.
Petitioner believes that fundamental fairness does
require inferior State Court's to follow decision of
the highest State Courts, especially when failure to
do so, as here, deprives a party from presenting a
defense.
WHEREFORE, Petitioner prays for this
Honorable Court to grant certiorari and address this
issue.
-29-
CONCLUSION
WHEREFORE, Petitioner prays for this
Honorable Court to grant a Wnit of Certiorani to the
Appellate Court of Illinois, Fourth Judicial District
as to each question presented herein.
Pro-Se Petitioner
No. B 33706
Joliet Correctional Center
1125 Collins St.
Post Office Box 515
Joliet, Illinois 60434-0515
Telephone: (815) 727-6141
APPENDIX
-App. 1-
INDEX TO APPENDICES
(All pages are consecutively numbered)
DOCUMENT
Opinion of Appellate Court
of Illinois, Fourth
Judicial District, No. 4-97-0916
Order of Circuit Court
dismissing Petition
to Terminate Parental Rights,
No.'s 91-J-2 and 91-J-64
Order of Supreme Court of IIlinois,
No. 86312,
(denying Leave to Appeal )
Petition for Rehearing,
No. 4-97-0916
Order of Appellate Court of Illinois,
Fourth
Judicial District, No. 4-97-0916
(denying Petition for Rehearing)
705 ILCS 405/2-18.
705 ILCS 405/2-29.
PAGE
A.001-A.018
B.019-B.023
C.024
D.025-D.041
E.042
F.043-G.05]1
G.051-G.054
-App.1i-
Appellate Brief and Argument
No. 4-97-0916
High court forms death
penalty panel
The Pantagraph, April 7, 1999,
Bloomington, Ill
Report of Dr. Kathleen Alison
Clarke-Stewart
USA Today Newspaper article:
DNA Test Saves Men
of April 16, 1998
U.S. News article:
The Wrong Men on Death Row
Dated November 9, 1998
H.055-H.088
1.089-1.093
J.094-J.163
K.164
L.165-L.178
“pent ct oc Rtas STi, Si te ERE EI at Sa LN LAPEER PS Cate Bi na ls
:
3
4
:
i
-App. A.001-
NO. 4-97-0916
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of J.B., J.B.,J.B., |) Appeal from
K.B., D.D. and L.A.D., ) Circuit Court
Alleged to be Abused and Neglected ) McLean
Minors, ) County
)
THE PEOPLE OF THE STATE )
OF ILLINOIS, ) Nos. 91 J 2
Petitioner-Appellant, ) 92J 64
)
)
v. )
) Honorable
JOSEPH DEERWESTER, ) Elizabeth A.
Respondent-Appellee ) Robb, Judge
) Presiding.
)
)
JUSTICE GREEN delivered the opinion of the court:
The State appeals from an order entered by the
circuit court of McLean County on September 18,
-App.A. 002-
1997, dismissing its petition to terminate the parental
rights of respondent, Joseph Deerwester, to D.D.
(born October 5, 1989) and L.D. (born April 16,
1991) in McLean County case Nos. 91-J-2 and 92-J-
64, respectively. On appeal, the State contends that
evidence of respondent's criminal convictions for
offenses against his stepchildren in McLean County
case No. 91-CF-22 was sufficient for the trial court to
have found that respondent was an unfit parent based
on depravity (750 ILCS 50/1 (D) (1) (West 1996)).
We agree with the State and reverse and remand to the
tnal court.
Respondent had four minor stepchildren with
whom he lived in a one-room trailer and raised as his
own children with their mother, his wife, Sherry
Deerwester. Those children are Je. B. (born
December 21, 1983), Jo. B (born December 28,
1984), Ja. B. (born March 17, 1986), and K.B.
(born May 28, 1988). Respondent and Sherry had
ee ee Cee oe eee ee
-App. A.003-
two children of their own, D.D. and L.D., who are
the subjects of the termination proceedings against
respondent. L.D. never lived with the respondent as
she was born after respondent was incarcerated.
Sherry is not a respondent to the instant termination
proceedings.
On January 22, 1991, the four stepchildren
and D.D. were taken into protective custody due to
allegations of neglect and abuse. An investigation
ensued by the Bloomington police department and, on
February 14, 1991, respondent was criminally
charged with seven counts of aggravated criminal
sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-
14 (b) (1)), two counts of aggravated criminal sexual
abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12-16 (c)
(1)), unlawful restraint (Ill. Rev. Stat. 1989, ch. 38,
par. 10-3)), and cruelty to children (Ill. Rev. Stat.
1989, ch. 23, par. 2368), based upon acts respondent
committed against his four stepchildren. On Apmil 24,
1991, the four stepchildren and D.D. were
-App.A. 004-
adjudicated wards of the court based upon a finding
that the children were neglected and abused, the
Department of Children and Family Services (DCFS)
was appointed guardian, and a protective order was
entered prohibiting respondent from having any
contact with the children. On September 5, 1991,
L.D. was adjudicated a ward of the court based on a
finding that she was a neglected minor.
On March 13, 1992, following a jury tnal,
respondent was found guilty of each of the 11 counts.
The tnal court imposed three consecutive terms of 40
years' Imprisonment with concurrent sentences of 45,
30, 10, 5, and 5 years' imprisonment. On direct
appeal, this court upheld all convictions, except count
VIII alleging aggravated criminal sexual assault. This
court reversed the conviction and sentence as to that
count and upheld the other sentences, with certain
reductions, in all other counts. People v. Deerwester,
249 Ill. App. 3 d 1109, 660 N.E. 2d 569 (1993)
(unpublished order under Supreme Court Rule 23).
-App. A.005-
On May 23, 1994, the State filed an amended
petition to terminate respondent's parental rights to
D.D. and L.D. The petition alleged respondent was
an unfit parent as defined by section 1(D) of the
Adoption Act (ACT) (750 ILCS
5-/1(D) (West 1996)), as follows:
"A. The minor's father was convicted of
inflicting sexual abuse and other acts of physical
violence on four half-siblings of [D.D.] and [L.D.] in
McLean County case No. 91-CF-22, such acts were
of a depraved nature and demonstrate
[respondent's] unfitness to have a child. [750 ILCS
50/1(D)(i) (West 1994). ]
B. The minor's father was convicted of
inflicting sexual abuse and other acts of physical
violence on four half-siblings of [D.D.] and [L.D.] in
McLean County case No. 91-CF-22, such acts being
other [than] neglect of, or misconduct toward the
children. [750 ILCS 50/1(D)(h) (West 1994). ]
-App. A.006-
Se The minor's father was convicted of
inflicting sexual abuse and other acts of physical
violence on four half-siblings of [D.D.] and [L.D.] in
McLean County case No. 91-CF-22, such acts
constitute extreme or repeated cruelty to
the children. [750 ILCS 50/1(D)(e) (West 1994). ]
D. The minor's father failed to make
reasonable efforts to correct the conditions which
were the basis for the removal of the children.
(750 ILCS 50/1(D)(m) (West 1994). ]
=. The minor's father failed to make
reasonable progress toward the return of the [children
to] him within 12 months of the adjudication of the
child under the Juvenile Court Act [of 1987 (705
ILCS 405/2-3 (West 1994)).[750 ILCS 50/1(D)(m)
(West 1994).]."
Subsequently, adjudicatory hearings were held on
the petition. The court took judicial notice of the 11-
count indictment of which respondent was convicted
‘
¢
j
=
MRE CA ‘
-App. A.007-
in case No. 91-CF-22. The 11-count indictment,
excluding Count VIII (which this court held on direct
review was not sufficiently proved at trial) charged
respondent with placing his penis in Jo. B.'s mouth
(count I), placing Jo. B.'s penis in respondent's
mouth (count II), and placing respondent's penis in
Jo. B.'s anus (count VII). Respondent was further
charged with placing his penis in K.B.'s mouth
(count III), placing respondent's penis in the hand of
Ja. B. (count V1), placing respondent's penis in Ja.
B.'s anus (count IX), placing respondent's penis in
Ja. B.'s mouth (count X), and placing respondent's
penis in the hand of Je. .B. (count XI). The
indictment further alleged respondent tied Ja. B. up
with a rope (count IV) and committed cruelty to
children against Ja. B. by throwing Ja. B. against a
board, causing a large cut on Ja. B.'s chin (count V).
At the time of the indictment, Je. B. was seven years
old, Jo. B. was six years old, Ja. B. was four years
-App. A.008-
old, and K.B. was two years old.
At the termination hearing, the trial court allowed
the State's motion to withdraw its request that the
court review the transcripts of the criminal
proceedings. Thus, the only evidence of
respondent's cnminal conduct was in the form of
certified copies of his convictions, the indictment, and
this court's order on direct appeal. Other evidence
was presented by the State relating to respondent's
compliance with DCFS caseworkers and his service
plan goals.
Section 1(D) of the Act sets forth the statutory
grounds for parental unfitness, including "depravity."
750 ILCS 50/1(D)(1) (West 1996). The Supreme
Court of Illinois has defined depravity in this context
nen,
as "'"an inherent deficiency of moral sense and
rectitude.""" In re Abdullah, 85 Ill. 2d 300,305, 423
N.E. 2d 915, 917 (1981), quoting Stalder v. Stone,
412 Ill. 488, 498, 107 N.E. 2d 696, 701 (1952),
shaun ie ea
Su RAD See SL
-App. A.009-
quoting 26 C.J.S. 975; Young v. Prather, 120 IIl.
App. 2d 395, 397, 256 N.E. 2d 670, 671 (1970).
The trial court here found the State failed to prove that
respondent was an unfit parent because the "heinous
and unspeakable acts" of which he was found guilty
of committing against his stepchildren did not
establish he was depraved as to his biological
children, D.D. and L.D., who are the subjects of the
termination petition.
We disagree with the trial court and reject
respondent's argument that proof of his criminal
convictions in case No. 91-CF-22, standing alone,
did not serve as a basis for a finding of depravity
relating to D.D. and L.D. solely because his victums
were stepchildren rather than biological children. We
also reject respondent's argument that the State was
required to present evidence, presumably the trial
transcript, of the underlying facts of the criminal
conduct because somehow respondent's sexual
-App. A.010-
misconduct with his stepchildren, as compare to his
biological children, could conceivably be found to be
not depraved if all the underlying facts were known.
Respondent does not dispute that evidence of parental
unfitness regarding one child may serve as the basis
for terminating parental nghts to that child's siblings,
even if the siblings were not directly abused or had
not been born at the time the abuse occurred. In re
S.H., 284 Ill. App. 3d 393, 400, 672 N.E. 2d 403,
408-09 (1996). As we will discuss, we hold that
proof of the respondent's cnminal conduct against his
stepchildren, as known to the court by certified copies
of his convictions and the indictment, was, alone,
sufficient proof of his depravity and “inherent
deficiency of moral sense and rectitude" to prove his
unfitness to parent D.D. and L.D.
The instant case 1s similar to this court's recent
decision in S.H.. There, the respondent father
pleaded guilty in criminal proceedings of placing his
PSSA ot nck Sa eb SaaS S
-App. A.011-
penis in his five-year-old daughter's vagina and
mouth on several occasions and was sentenced to an
eight-year term of imprisonment. Based solely on the
evidence of these convictions, the State sought to
terminate respondent's parent rights to the daughter
and her two siblings based on depravity. At an
adjudicatory hearing, the respondent admitted the
allegations of sexual misconduct against the daughter.
At the termination hearing, the State merely requested
the trail court to take judicial notice of respondent's
criminal convictions. The trial court concluded the
State presented a prima facie case of parental
unfitness based on depravity and noted that it had
reviewed the report of proceedings in the criminal
case. This court affirmed the tral court's termination
order.
In affirming, this court discussed the Abdullah
decision, where the Supreme Court considered
whether evidence of the respondent's conviction for
-App. A.012-
murdering his ex-wife, the mother of the child to
whom the State sought to terminate the respondent's
parental rights, in itself, was sufficient to establish
depravity. The Supreme Court held that, there,
evidence of the conviction, the fact that the murder
victim was the child's mother, and the tnal court's
imposition of extended-term sentences due to the
heinous circumstances sufficiently proved depravity.
This court in S.H. refused to interpret Abdullah to
hold that in all cases a single criminal conviction,
without more, will not support a finding of unfitness
due to depravity. This court held that the facts in
S.H. were distinguishable from murder cases because
no set of circumstances could conceivably establish
that the respondent's perverted sexual conduct toward
his five-year-old daughter would not amount to
depravity. Accordingly, this court held:
"{A] parent who commits acts like these upon
his or her own child[ren] is subject to being
ee ee, ae ee a
-App. A.013-
found unfit due to depravity based solely
upon that conduct, and that parent thereby
forever forfeits any claim to any further
contact with that child or his or her siblings."
(emphasis in original.) S.H., 284 Ill. App.
3d at 400, 672 N.E. 2d at 408.
We conclude the holding in S.H. is equally
applicable to the instant case where the sexually
abused stepchildren have been raised as respondent;s
own biological children. The fact that respondent
here was convicted following a trial and the
respondent in S.H. pleaded guilty to the criminal
offense does not alter this conclusion. Accordingly,
proof of the respondent's criminal convictions, based
on the allegations set forth in the indictment, in itself
establishes respondent;s depravity and unfitness to
parent D.D. and L.D. The trial court abused its
discretion in failing to so find.
Respondent also contends the trial court erred in not
-App. A.014-
allowing respondent's proffered testimony of
Professor Kathleen Alison Clarke-Stewart. The
record indicates the court allowed respondent's offer
of proof of the professor's testimony, but denied
admission of the evidence on the ground it was an
attempt to relitigate the criminal tnal and juvenile
adjudications.
On appeal, the State contends this court should not
consider this issue because respondent failed to file a
cross-appeal. On November 4, 1998, this court
denied respondent's motion for leave to file a late pro
se notice of cross-appeal of interlocutory orders as
being unnecessary. In a motion to strike this portion
of the State's argument because the State failed to cite
to any supporting authority, respondent refers to
Solimini v. Thomas, 293 Ill. App. 3d 430, 434-35,
688 N.E. 2d 356, 359 (1997). There, the second
District Appellate Court noted that "[t]trial court
findings adverse to an appellee do not require the
saat Saale
ee ee ee ee ee
Liha
-App. A.015-
appellee's cross-appeal if the trial court judgment was
not at least in part against the appellee." Solimini ,
293 Ill. App. 3d at 434, 688 N.E. 2d at 359. We
agree.
However, we do not believe the trial court abused its
discretion in refusing to admit the testimony of
Professor Clarke-Stewart. The record indicates
Professor Clarke-Stewart developed a written report
based on an evaluation of the police interviews with
the respondent;'s stepchildren and those children's
trial testimony, concluding that all the children's
accusations were not credible. Professor Clarke-
Stewart also testified generally, without ever meeting
respondent, that she believed respondent could
change his behavior.
In In re Boolman, 141 Ill. App. 3d 508, 512, 491
N.E. 2d 1, 3 (1986), this court, ina termination
-App. A.016-
proceedings, rejected the respondent's argument that
the trial court should have granted them summary
judgment on the termination petition where they filed
an affidavit stating the minor children had not been
abused and they had cooperated with their
counselors. The State failed to file a counter
affidavit. This court reasoned the respondents were
collaterally estopped from denying a previous court's
determination adjudicating the minor neglected.
Here, Professor Clarke-Stewart's testimony
regarding her report was an attempt by respondent to
deny the criminal conduct he performed against his
stepchildren, upon which judgments of convictions
have already been entered. This evidence is
distinguishable from evidence that the court in
Abdullah considered as admissible when the State had
made a prima facie case of depravity and the burden
shifted to the respondent to "explain away the
-App.A. 017-
damning evidence of the conviction, the relationship
Pe a a Te een
of the victim to the child, and the sentence. If there
were exonerating circumstances that would rebut the
initial showing of depravity, defendant was free to
present them." Abdullah, 85 Ill. 2d at 307, 423 N.E.
2d at 918. Professor Clarke-Stewart's testimony on
her report, attacking the credibility of the
stepchildren, cannot be considered exonerating
st ie tent A ate ie a ost alts saleaehahe.
circumstances. Moreover, as already discussed, this
case 1s very similar to S.H. where this court
ee ee ne?
distinguishes these kind of circumstances from the
circumstances of murder, as in Abdullah, on the basis
that no set of exonerating circumstances can really
exist when a parent is guilty of committing a number
of sexual assaults on his children or, as here,
stepchildren. The trial court here did not abuse its
discretion in refusing to admit the testimony of
Professor Clarke-Stewart.
)
-App. A.018-
Because of our determination that the trial court
abused its discretion in not finding respondent was
depraved and an unfit parent based on the evidence
before it, we need not discuss the State's alternative
arguments that it had sufficiently proved the other
allegations of the termination petition.
Accordingly, for the reasons we have discussed, we
reverse the trial court's dismissal of the State's
termination petition and remand for further
proceedings.
Reversed and remanded.
GARMAN, P.J., and STEIGMANN, J., concur.
Rn Seine ReaD pt AR Sap an ed, Ue
a EME mA Re nl ee
Whee
De See Re an OP
-App B.019 -
MR. TONER: The criminal trial, that's correct.
THE COURT: Yes, the court is denying that.
The court would indicate first that unfortunately
this matter has been tried over an extraordinarily long
period of time which the court regrets and
unfortunately has been beyond the control of any of
these parties in the court's opinion.
The court would further indicate that the
court has reviewed the transcripts of the previous
hearings on -- of the testimony of the witnesses in
these -- in this petition.
The allegations of the amended petitions as to the
two Deerwester children consist of three allegations
which relate to conduct of the respondent father
towards stepchildren, children who are not his
biological children, which resulted in criminal
convictions. And the State has alleged that by virtue
of those convictions for those acts against those
children that those acts by the respondent father
constitute or make him a depraved individual and
unfit to parent a child. Allegations D and E of the
amended petition relate to the respondent father's
failure to make reasonable efforts to correct
-App B.020 -
conditions which were the basis for the removal of
the children and failure to make reasonable progress
toward the return of the children within 12 months.
The standard of proof in these matters is proof by
clear and convincing evidence, a higher standard than
that in the petition for adjudication of wardship in an
abuse or neglect case. The court would
acknowledge, as I'm sure the parties can observe,
that the court has struggled with the determination of
whether this petition has been proved, and the court
would further state that the acts for which the
respondent father was convicted were not acts
committed upon his own biological children whom
the State 1s seeking to have the court find he is unfit
to be a parent of. The court finds that with respect to
paragraphs D and E that the State has failed to meet
its burden of proving that he has made -- failed to
make reasonable efforts or failed to make reasonable
progress.
The Department of Children and Family
Services is mandated when there has been
adjudication of abuse and neglect to afford services
to a respondent parent. It is certainly | think
9 een, ane a
-App B.021 -
understood based upon the factual situation of this
case that Mr. Deerwester, facing a long commitment
to the Department of Corrections,would be
an unlikely candidate to ever parent his biological
children. But nonetheless, the law is very clear in
the State of Illinois that some attempt must be made
to afford him services.
A review of the transcripts discloses that except
for one instance when Mr. Jaspers met with him in
the jail, was told that further communication should
be through Mr. Deerwester's attorney, no further
efforts were made by the department to afford him
SETVICES.
The court suspects that further efforts might have
been futile, however the need to make those offers
never was forthcoming and needed to have been
made in order for the State to prevail in those two
allegations.
There remains three allegations relating to Mr.
Deerwester's actions towards stepchildren, and the
court believes that under the law in the State of
Illinois there
-App B.022 -
is a distinction between acts committed upon children
which the State seeks to terminate and find -- having
a finding of
unfitness to parent and children upon whom those
acts were not committed.
The court finds thai the State has failed to meet its
burden in proving by clear and convincing evidence
that as to Mr. Deerwester's two children, Loren and
David,that the acts for which he was found guilty of
for committing heinous and unspeakable acts against
his stepchildren constitute and establish a basis to
find that he 1s depraved as to his parenthood of his
biological children, and the court will find that the
State has failed to meet its burden as to paragraph Six
A, B, and C. The Petition 1s dismissed.
MR. TONER: Thank you.
THE COURT: The court -- there 1s still an
underlying wardship and the State needs to know
whether--the court needs to know whether the State
intends to ask the court to retain wardship or ask the
court to discharge wardship’?
MS. GRIFFIN: At this point we'd be asking to
retain wardship.
sess A BSE: hs ANAS SON ERG SERS NN AER At
0 am ED i et Oe
-App B.023 -
THE COURT: All nght. Then there will be a further
permanency hearing set May 5, 10:30, 1998.
Mr. Deerwester, do you wish to be present?
THE RESPONDENT FATHER: Yes, ma'am.
THE COURT: All parties have notice.
MR. TONER: Thank you.
(Which were all the proceedings had in the
hearing of the above cause on said date.)
-App C.024 -
ILLINOIS SUPREME COURT
JULEANN HORNYAK, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILLINOIS 62701
(217) 782-2035
863 12
December 2, 1998
Mr. Joseph L. Deerwester
Reg. No. B-33706
P.O. Box 515
Joliet, IL 60434-0515
No. 86312 -
In the interest of J.B., et al., etc., Minors
(People State of Illinois, respondent, v. Joseph
Deerwester, petitioner). Leave to appeal,
Appellate Court, Fourth District.
The Supreme Court today DENIED the petition for
leave to appeal in the above entitled cause.
The mandate of this Court will issue to the Appellate
Court
on December 24, 1998.
——
-App. D.025-
NO. 4-97-0916
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of J.B., J.B.,J.B., |) Appeal from
K.B., D.D. and L.A.D., ) Circuit Court
Alleged to be Abused and Neglected ) McLean
Minors, ) County
)
THE PEOPLE OF THE STATE )
OF ILLINOIS, ) Nos. 91 J 2
Petitioner-Appellant, ) 92J 64
)
)
Vv. )
) Honorable
JOSEPH DEERWESTER, ) Elizabeth A.
Respondent-Appellee ) Robb, Judge
) Presiding.
PETITION FOR REHEARING
MAY IT PLEASE THE COURT:
NOW COMES Respondent father - appellee, Joseph
L. Deerwester, Pro-Se,and in accordance with
Illinois Supreme Court Rule 367 moves the Hon.
Court grant a rehearing in this cause and modify the
opinion filed June 10, 1998 and in support states:
-App. D.026-
NO. 4-97-0916
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of J.B., J.B., J.B., |) Appeal from
K.B., D.D. and L.A.D., ) Circuit Court
Alleged to be Abused and Neglected ) McLean
Minors, ) County
)
THE PEOPLE OF THE STATE )
OF ILLINOIS, ) Nos. 91 J 2
Peutioner-Appellant, ) 92J 64
)
)
Vv. )
) Honorable
JOSEPH DEERWESTER, ) Elizabeth A.
Respondent-Appellee ) Robb, Judge
) Presiding.
PETITION FOR REHEARING
Joseph L. Deerwester
PRO-SE Respondent/A ppellee
No. B 33706
Joliet Correctional Center
P.O. Box 515
1125 Collins Street
Joliet, Illinois 60434-0515
Phone: (815) 727-6141
\' THORITIES
'
he
{ER'S
\. WHICH
‘ISIONS
oO 2
3.6
3,4,5
are | 3
} S58. 531 N.E. 2d 913
Appeal denied
125 Ill. 2d 574
In re Owens (1988) 5.6
125 Ill. 2d 390
Talanco vy. Dunlap (1997) 5,6
177 Ill. 2d 185, 685 N.E. 2d 325
Charles v. Siegfried (1995) 6
165 Ill. 2d 482
-App. D.028-
offe
THIS COURT OVERLOOKED THAT IN RE
BOOLMAN, 141 ILL. APP. 3D 508 IS NOT
CONTROLLING OVER RESPONDENT
FATHER'S ATTEMPT TO REBUT THE
FACTUAL BASIS OF THE CRIMINAL
CONVICTION AND FURTHER
MISAPPREHENDED THE ESTOPPEL
DOCTRINE.
In re Boolman (4th Dist. 1986) 7,8
141 Ill. App. 3d 508
In re Clarence T.B. (2nd Dist. 1991) 7
215 Ill. App. 3d 85
ARGUMENT _!
THIS COURT MISAPPREHENDED OR
OVERLOOKED RESPONDENT FATHER'S
POSITION AND ISSUED AN OPINION WHICH
IS CONTRARY TO CLEAR DECISIONS OF OUR
SUPREME COURT.
As this Court determined, the evidence
presented by the People to establish depravity based
upon Respondent father's cnminal convictions was
in the form of certified copies of the cnminal
-App. D.029-
convictions, the indictment, and this Court's order
on direct appeal from the criminal conviction Opinion
at 5. In reversing the trial court's dismissal of the
Petition to Terminate Parental Rights this Court relied
upon the decision in In re. S.H., 284 Ill. App. 3d
392, 400, 672 N.E. 2d 403, 408-09 (4th Dist. 1996)
in which this court held that a conviction of the nature
involved in the instant case is sufficient to
[conclusively] establish depravity Opinion at 8-9.
Respondent father has difficulty with this Court's
opinion both in S.H. and this case. It appears to be
Implicit in the opinions in this case and S.H. that this
Court is of the impression that proof of a criminal
conviction for this criminal conduct conclusively
established depravity. This holding is squarely
contradictory to Illinois law as determined by our
Supreme Court and, thus, rehearing should be
granted. This Court either misapprehended or
overlooked our Supreme Court's decision holding
-App. D.030-
proof of cnminal conviction 1s admissible in a
subsequent civil proceeding but is not conclusive
proof of the facts upon which it is based and
therefore may be rebutted.
This Court is bound to follow decisions of
our Supreme Court Wade v. Byles, 295 Ill. App. 3d
545, 547 (1st Dist. 1998) and precedental effect must
be given to implications contained in decisions of the
Court and premis implicit in the holding are as
authontative as the holding itself and binding in
absence of a contrary decision of the Court Cates v.
Cates, 156 Ill. 2d 76, 80, 619 N.E. 2d 715, 717
(1993). In Thornton v. Paul, 74 Ill. 2d 132, 384
N.E. 2d 335 (1979) our Supreme Court refused to
allow admission of cnminal convictions as
conclusive proot of the facts upon which it 1s based
inacivil proceeding N.E. 2d at 343. Instead our
Supreme Court held that a cnminal conviction ts only
to be admitted as prima facie evidence. The Court
—————— KS
-App. D.031-
further specifically preserved for civil defendants the
Opportunity to rebut the factual basis of the
conviction insofar as those facts are applicable to the
civil proceeding id. This Court's first district sister
relying upon the authority of Thornton concluded in
State Farm Fire & Casualty Co. v. Shelton, 176 III.
App. 3d 858, 531 N.E. 2d 913, 920 (Ist Dist. 1988)
Appeal denied 125 Ill. 2d 574, 537 N.E. 2d 818 that
Shelton was entitled to defend against the wrongful
death action by offering whatever testimony or
evidence he believed would rebut the prima facie
evidence of his liability even though such evidence
contradicts the criminal court's findings. The fact
that Thornton and State Farm involved an insurers
duty to defend and this case involves proving
depravity based upon criminal convictions does not
alter Thornton's applicability here. In an insurance
situation proof of a cnminal conviction is admissible
as prima facie evidence that could take an insured's
-App. D.032-
conduct outside a policy's coverage State Farm at
531 N.E. 2d 916 but the factual basis of which may
be rebutted Thornton at 384 N.E. 2d 343; State Farm
at 531 N.E. 2d 920. Similarly, proof of a cnminal
conviction 1s admissible as pnima facie evidence of
depravity but which could be rebutted. Here, it 1s
clear this Court either misapprehended or overlooked
this point argued by Respondent father (Appellee's
bnet at 6-7) as this Court clearly stated:
"here, Professor Clarke-Stewart's testimony
regarding her report was an attempt by
respondent to deny the cnminal
conduct...upon which judgments of
convictions had already been entered."
Opinion at 10
Dr. Stewart's testumony was intended to rebut the
prima facie evidence of the factual basis of the
conviction as Respondent father is entitled under the
authority of our Supreme Court in Thornton.
ba aeeacesinenenensanemnnintentil
-App. D.033-
Moreover, this attempt to rebut was not to be
limited to Dr. Stewart's testimony but was to include
others as well including but not limited to, Frank M.
Picle, Esq., who would have testified as an expert
witness Respondent father received ineffective
assistance of tnal counsel. See generally, Motion in
Limine No. 1 (R. Vol. VII, C 1363-1366) and
Motion to Continue (R. Vol. VIII, C 1516-1517).
These motions were denied on April 16, 1996. (R.
Vol. I, C 20). However, the trial court did not allow
an offer of proof on these other witnesses (R. Vol.
XVI, 82-85) or they were not called due to the trial
court's pnior orders. This Court, in the opinion,
clearly indicated that no exonerating circumstances
can really exist. Opinion at 11. This Court appears
to misapprehended respondent father's position.
Respondent was not attempting to prove exonerating
circumstances (although ineffective assistance of
-App. D.034-
counsel could be exonerating as an explanation for
the conviction). What Respondent father was
attempting to do, under the authority of Thornton,
was attack the very foundation of the conviction
which would have included not only an attack on the
credibility of the witnesses but also provide expert
evidence, not available during criminal appeals,
indicating respondent father received ineffective
assistance of tnal and appellate counsel in the
criminal case. While this Court may not like the fact
that under the decisions of our Supreme Court
Respondent father is entitled in a civil proceeding to
rebut the factual basis of the cnminal conviction even
though such evidence contradicts the criminal courts
findings. The tnal court abused its discretion in not
allowing this and this Court, with respect, is wrong
in determining the Court did not abuse its discretion
and that Dr. Stewart's testimony would not rebut the
factual basis of the conviction.
Pe
-App. D.035-
Furthermore, Respondent father was not
collaterally estopped from attacking the cnminal
convictions. As argued before Appellee's brief at 7-9
under the principles developed by our Supreme
Court, circuit court's must ensure that application of
offensive use of collateral estopple is not
fundamentally unfair to the defendant even though
the threshold requirements for collateral estoppel are
otherwise satisfied. In re Owens, 125 II]. 2d 390,
399 (1988). While it is true that in Talarico v.
Dunlap, 177 Ill. 2d 185, 685 N.E. 2d 325, 328-329
(1997) our Supreme Court stated it is generally
accepted that a cnminal conviction collaterally estops
a defendant from contesting in a subsequent civil
proceeding, the Talarnico Court did not rely upon
Illinois law but referred to treatise upon the subject
from other junsdictions. In Illinois, Stare Decisis is
a policy of the Courts to stand by precedent and leave
-App. D.036-
settled points of law undisturbed. Decisions that
have been established for a long period of years
should, in the orderly administration of justice, be
deemed controlling unless, and until, the general
assembly provides otherwise. Charles v. Siegfried,
165 Ill. 2d 482, 492, 651 N.E. 2d 154, 159 (1995).
The controlling precedent which this Court is bound
to follow is: (1) admission of a criminal conviction 1s
prima facie, not conclusive, proof of the underlying
facts which may be rebutted Thornton v. Paul, 74 III.
2d 132, 384 N.E. 2d 335, 343 (1979); and (2) the
court;s must ensure that application of offensive use
of collateral estoppel is not fundamentally unfair toa
defendant even though the threshold requirements for
collateral estoppel are otherwise satisfied. In re
Owens, 125 III. 2d 390, 399 (1988). Talanco, did
not address or consider these precedents and
therefore is dicta which is not binding due to contrary
decisions of our Supreme Court. Cates v. Cates,
-App. D.037-
156 Ill. 2d 76, 80, 619 N.E. 2d 715 (1993).
For the above reasons this Court should grant
a rehearing and modify the opinion and remand order
to allow Respondent father to rebut the pnma facie
case and factual basis of the conviction with whatever
evidence or testimony he believes will do so.
ARGUMENT Il
THIS COURT OVERLOOKED THAT IN RE
BOOLMAN, 141 ILL. APP. 3D 5081S NOT
CONTROLLING OVER RESPONDENT
FATHER'S ATTEMPT TO REBUT THE
FACTUAL BASIS OF THE CRIMINAL
CONVICTION AND FURTHER
MISAPPREHENDED THE ESTOPPEL.
DOCTRINE.
This Court citing In re Boolman, 14] III.
App. 3d 508, 512, 491 N.E. 2d 1, 3 (4th Dist. 1986)
stated Respondent father was collaterally estopped
from denying any previous determination
adjudicating a minor neglected. Opinion at 10. Fi rst,
Boolman does not control as respondent father was
attempting to rebut the prima facie case based upon
-App. D.038-
respondent father's cnminal convicuon (see
argument |, supra). The issues for which
Respondent father was convicted were never
adjudicated in the juvenile proceeding. Second, even
if they were adjudicated 1n the juvenile case,
Boolman 1s a decision which this Court failed to cite
any authority in support nor did the Court discuss the
principles of estoppel before reaching its conclusion
and 1s therefore wrong. Indeed, Respondent father
has found no other Court which relied upon Boolman
for this principle. In fact, the only case to directly
consider Boolman tor this proposition was the
Second District in_tIn re Clarence T.B., 215 Ill. App.
3d 85, 574 N.E. 2d 878, 889 (2nd Dist. 1991). In
Clarence T.B., the people relied upon Boolman to
support their argument the respondents were
estopped to deny in a termination proceeding a prior
adjudication the children were abused minors. In
reyecung the people's argument the Second District
-App. D.039-
reasoned:
"We agree with respondents that
estoppel principles do not apply in
this situation. Boolman cited no
authonty for that proposition of
law and did not consider the difference in the
burdens of proof between the proceedings.
The burden of proof in a proceeding to
determine whether a minor is abused 1s the
preponderance of the evidence standard (see
Ill. Rev. State., 1989, ch. 37, par. 802-
18(1))[now codified 70S ILCS 405/2- 18]
whereas in a proceeding seeking to
declare parents unfit, the State must prove the
allegations by clear and convincing evidence
(see Ill. Rev. Stat., 1989, ch. 37, par. 802-
29(3)) [now codified 70S ILCS 405/2-29].
It is axiomatic that, because the burden of
proof in the former proceeding 1s lower than
-App. D.040-
in the latter proceeding, a court's ruling ona
factual issue when determining whether a
child is an abused or neglected minor 1s not
binding in the proceeding to determine the
fitness of the parents (see People v. Golden
(1983), 117 Ill. App. 3d 150, 155, 72 Ill.
Dec. 710, 453 N.E. 2d 15; see also People v.
Zeravich (1965), 64 Ill. App. 2d 150, 157,
212 N.E. 26 282.)"
574 N.E. 2d at 889
Emphasis original
Thus, considering the Second District's reasoned
opinion as opposed to this Court's bald assertion in
Boolman. Respondent father respectfully asserts this
Court misapprehended the estoppel doctrine and
should grant a rehearing and explicitly overrule
Boolman and/or determine Boolman 1s not applicable
to the case at bar.
-App. D.041-
CONCLUSION
WHEREFORE, Respondent father-A ppellee
prays for this Honorable Court to affirm the Circuit
Court grant a rehearing and modify the opinion of
June 10, 1998 and require the trial court on remand
to allow Respondent father to present whatever
tesumony or evidence he believes will rebut the pnma
facie evidence of the criminal conviction and
underlying conduct.
Respectfully submitted,
Joseph L. Deerwester
PRO-SE Respondent father-
Appellee
No. B 33706
JOLIET CORRECTIONAL
CENTER
1125 Collins St.
Post Office Box 515
Joliet, Illinois 60434-0515
Phone: (815) 727-614]
-App E.042 -
Clerk of the Court Research Director
(217) 782-2586 (217) 782-3528
DATE: 09/03/1998
RE: Int. of J.B., J.B., J.B. K.B., D.D. &
L.A.D.; Peo.v.Deerwester
General No.: 4-97-0916
McLean 91J2, 92364
TOCOUNSEL:
The court today denied the petition for rehearing filed
in the above entitled cause.
It is noted that the mandate has been stayed in this
cause by the htrfig of an affidavit of intent to file
petition for leave to appeal to the Illinois Supreme
Court.
DARRY L PRATSCHER, CLERK
Appellate Court Fourth Distnct
TO: Charles G. Reynard,State's Attorney
Robert J. Biderman, Dep. Dir., State's
Attorneys Aplt. Prosecutor
Linda Susan McClain,Staff Attorney, State's
Attorneys Aplt. Prosecutor
Joseph Deerwester, B-33706 Joliet
Correctional Center
P.O. Box 515
Johet, IL 60434-0515
-App. F.043-
705 ILCS 405/2-18. EVIDENCE
Zest of section effective January 1, 1998.
§ 2-18. Evidence
(1) At the adjudicatory hearing, the court
shall first consider only the question whether the
minor 1s abused, neglected or dependent. The
standard of proof and the rules of evidence in the
nature of civil proceedings in this State are applicable
to proceedings under this Article. If the petition also
secks the appointment of a guardian of the person
with power to consent to adoption of the minor under
Section 2-29, the court may also consider legally
admissible evidence at the adj udicatory hearing that
one Or more grounds of unfitness exists under
subdivision D of Section | of the Adoption Act.!
(2) In any hearing under this Act, the
following shall constitute prima facie evidence of
abuse or neglect, as the case may be:
(a) Proof that a minor has a medical
-App. F.044-
diagnosis of battered child syndrome ts prima facie
evidence of abuse;
(b) Proof that a minor has a medical
diagnosis of failure to thnve syndrome is a prima
facie evidence of neglect; .
(c) Proof that a minor has a medical
diagnosis of fetal alcohol syndrome ts prima facie
evidence of neglect;
(d) Proof that a minor has a medical
diagnosis at birth of withdrawal symptoms from
narcoucs or barbiturates 1s pnma facie evidence of
neglect;
(e¢) Proof of injunes sustained by a
minor or of the condition of a minor of such a nature
as would ordinarily not be sustained or exist except
by reason of the acts or omissions of the parent,
custodian or guardian of such minor shall be prima
facie evidence of abuse or neglect, as the case
may be;
App. F.045-
(f) Proof that a parent, custodian or
guardian of a minor repeatedly used a drug, to the
extent that it has or would ordinarily have the effect of
producing in the user a substantial state of stupor,
unconsciousness, intoxication, hallucination,
disonentation or incompetence, or a substantial
impairment of judgment, or a substantial
manifestation of irrationality, shall be prima facie
evidence of neglect;
(g) Proof that a parent, custodian, or
guardian of a minor repeatedly used a controlled
substance, as defined in subsection (f) of Section 102
of the Illinois Controlled Substances Act.2 in the
presence of the minor or a sibling of the minor is
prima facie evidence of neglect. "Repeated use", for
the purpose of this subsection, means more than one
use of a controlled substance as defined In subsection
. (f) of Section 102 of the Illinois Controlled
-App. F.046-
Substances Act;
(h) Proof that a newborn infant's
blood, urine, or meconium contains any amount of a
controlled substance as defined in subsection (f)
of Section 102 of the Illinois Controlled Substances
Act, or a metabolite of a controlled substance, with
the exception of controlled substances or
metabolites of those substances, the presence of
which ts the result of medica! treatment administered
to the mother or the newborn, 1s prima facie
evidence of neglect.
(3) In any heanng under this Act, proof of
the abuse, neglect or dependency of one minor shall
be admissible evidence on the issue of the abuse,
neglect or dependency of any other minor for whom
the respondent 1s responsible.
(4)(a) Any writing, record, photograph or x-
ray of any hospital or public or private agency,
whether in the form of an entry in a book or
-App. F.047-
otherwise, made as a memorandum or record of any
condition, act, transaction, occurrence or event
relating to a minor in an abuse, neglect or dependency
proceeding, shall be admissible in evidence as proof
of that condition, act, transaction, occurrence or
event, if the court finds that the document was made
in the regular course of the business of the hospital or
agency and that it was in the regular course of such
business to make it, at the time of the act, transaction,
occurrence or event, or within a reasonable time
thereafter. A certification by the head or responsible
employee of the hospital or agency that the writing,
record, photograph or x-ray is the full and complete
record of the condition, act, transaction, occurrence or
event and thai it satisfies the conditions of this
paragraph shall be prima facie evidence of the facts
contained in such certification. A certification by
someone other than the head of the hospital or agency |
Shall be accompanied by a photocopy of a delegation
-App. F.048-
of authority signed by both the head of the hospital or
agency and by such other employee. All other
circumstances of the making of the memorandum,
record, photograph or x-ray, including lack of
personal knowledge of the maker, may be proved to
affect the right to be accorded such evidence, but shall
not affect its admissibility.
(b) Any indicated report filed pursuant to
the Abused and Neglected Child Reporting Act> shall
be admissible in evidence.
(c) Previous statements made by the minor
relating to any allegations of abuse or neglect shall be
admissible in evidence. However, no such statement,
if uncorroborated and not subject to cross-
examination, shall be sufficient in itself to support a
finding of abuse or neglect.
(d) There shall be a rebuttable presumption
that a minor is competent to testify in abuse or neglect
proceedings. The court shall determine how much
oe
-App. F.049-
weight to give to the minor's testimony, and may
allow the minor to testify in chambers with only the
court, the court reporter and attorneys for the parties
present.
(e) The privileged character of
communication between any professional person and
patient or client, except privileges between attorney
and client, shall not apply to proceedings subject to
this Article.
(f) Proof of the impairment of emotional
health or impairment of mental or emotional condition
as a result of the failure of the respondent to exercise a
minimum degree of care toward a minor may include
competent opinion or expert testimony, and may
include proof that such impairment lessened during a
period when the minor was in the care, custody or
supervision of a person or agency other than the
respondent.
(5) In any hearing under this Act alleging
-App. F.050-
neglect for failure to provide education as required by
law under subsection (1) of Section 2-3, proof that a
minor under 13 years of age who ts subject to
compulsory school attendance under The School
Code 1s a chronic truant as defined under The School
Code shall be prima facie evidence of neglect by the
parent or guardian in any hearing under this Act and
proof that a minor 1s 13 years of age or older who ts
subject to compulsory school attendance under The
School Code ts a chronic truant shall raise a rebuttable
presumption of neglect by the parent or guardian.
This subsection (5) shall not apply in counties with
2,000,000 or more inhabitants.
P.A. 85-601, Art. IT, § 2-18, eff. Jan. 1, 1988.
Amended by P.A. 85-1209, Art. II, § 2-22, eff. Aug.
30, 1988; P.A. 86-883, § 1, eff. Jan. 1, 1990; P.A.
88-343, § 5, eff. Aug. 13, 1993; P.A. 89-704, § 5S,
eff. Jan. 1, 1998.
Formerly [Il.Rev.Stat. 1991, ch. 37, 9 802-18.
-App. G.051-
1750 ILCS 50/1.
2720 ILCS 570/102.
4325 ILCS 5/1 et. seq.
4105 ILCS 5/12-1 et. seq.
For text of section effective until January 1, 1998,
see 705 ILCS 405/2-18, ante..
705 _ILCS 405/2-29. Adoption of Guardian
with power to consent
Test of section effective January 1, 1998.
§ 2-29. Adoption; appointment of guardian with
power to consent. (1) A ward of the court under this
Act, with the consent of the court. may be the subject
Of a petiuon for adoption under "An Act In relation to
the adoption of persons, and to repeal an Act therein
named", approved July 17, 1959, as now or hereafter
amended,! or with like consent his or her parents
may, in the manner required by such Act, surrender
him or her for adoption to an agency legally
authonzed or licensed to place children for adoption.
-App. G.052-
(2) If the petition prays and the court finds that it
is in the best interest of the minor that a guardian of
the person be appointed and authorized to consent to
the adoption of the minor, the court with the consent
of the parents, if living, or after finding, based upon
clear and convincing evidence, that a non-consenting
parent 1s an unfit person as defined in Section | of "an
Actin relation to the adoption of persons and to repeal
an Act therein named", approved July 17, 1959, as
amended,* may empower the guardian of the person
of the minor, in the order appointing him or her as
such guardian, to appear in court where any
proceedings for the adoption of the minor may at any
time be pending and to consent to the adoption. Such
consent 1s sufficient to authorize the court in the
adoption proceedings to enter a proper order or
judgment of adoption without further notice to, or
consent by, the parents of the minor. An order so
-App. G.053-
empowering the guardian to consent to adoption
terminates parental rights, deprives the parents of the
minor of all legal rights as respects the minor and
relieves them of all parental responsibility for him or
her, and frees the minor from all obligations of
maintenance and obediences to his or her natural
parents.
If the minor is over 14 years of age, the court
may, in its discretion, consider the wishes of the
minor in determining whether the best interests of the
minor would be promoted by the finding of the
unfitness of a non-consenting parent.
(3) Parental consent to the order authorizing the
guardian of the person to consent to adoption of the
minor shall be given in open court whenever possible
and otherwise must be given in writing and signed in
the form provided in "An Act in relation to the
adoption of persons, and to repeal an Act therein
named," approved July 17, 1959, as now or hereafter
-App. G.054-
amended, but no names of petitioners for adoption
need be included. A finding of the unfitness of a
nonconsenting parent must be made in compliance
with that Act and be based upon clear and convincing
evidence. Provisions of that Act relating to minors
parents and to mentally ill or mentally deficient
parents apply to proceedings under this Section and
any findings with respect to such parents shall be
based upon clear and convincing evidence.
P.A. 85-601, Art. II], § 2-29, eff. Jan. 1, 1988.
Formerly I[Il.Rev.Stat. 1991, ch. 37, 9 802-29.
1750 ILCS 50/1.et. seq.
2750) ILCS 50/1.
For text of section effective until January 1, 1998,
SCC
705 ILCS 405/2-29, post.
ae laa n
-App H.0S5S -
4-97-0916
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
IN the interest of Jeremy, Joseph,
Joshua and Krystal Baldridge and
David and Loren Andrew
Deerwester,
alleged to be neglected minors,
VS.
THE PEOPLE OF THE STATE OF
ILLINOIS,
Petitioner-A ppellant,
VS.
JOSEPH L. DEERWESTER,
Respondent-A ppellee.
Appeal from
the Circuit
Court of the
11th Judicial
Circuit McLean
County,
Illinois
No.: 91-J-2
91 J-64
Honorable
Elizabeth
Robb,
Judge
Presiding
APPELLEE'S BRIEF AND ARGUMENT
Joseph L. Deerwester
PRO-SE Respondent-
Appellee
No. B 33706
Joliet Correctional Center
P.O. Box 515
Johet, Illinois 60434-0515
Phone: (815) 727-6141
ORAL ARGUMENT REQUESTED
-App H.056 -
I
POINT AND AUTHORITIES
THE TRIAL COURT CORRECTLY FOUND THE
STATE FAILED TO MEET IT'S BURDEN OF
PROVING RESPONDENT FATHER'S
UNFITNESS BY CLEAR AND CONVINCING
EVIDENCE. HOWEVER, THE TRIAL COURT
DID MAKE ERROR;'S WHICH DEPRIVED
RESPONDENT FATHER OF A
FUNDAMENTALLY FAIR PROCEEDING
-App H.0S57 -
In re A.P. (4TH DIST. 1996)
277 Ill. App. 3d 592, 660 N.E. 2d 1006
In re B.C. & W.C., minors (3rd Dist. 1993)
247 Ill. App. 3d 803
1, 10
Joel R. v. Board of Education (1st Dist. 1997) 1,2
292 Ill. App. 3d 607
Usselmann v. Jansen
257 Ill. App. 3d 978
Pullman - Standard, Swint ( 1982)
456 U.S. 273
Roubik v. Merrlll Lynch, et. al
285 Ill. App. 3d 217
Inre Abdullah (1981)
85 Ill. 2d 300, 423 N.E. 2d 915
In re S.H. (4th Dist. 1996)
284 Ill. App. 3d 392, 672 N.E. 2d 403
Leonardi v. Lovola University of Chicago
(1995) 168 Ill. 2d 83, 658 N.E. 2d 450
i)
to
3,4,8,9
-App H.0S58 -
Holston v. Sisters of Third
Order of St. Francis (1995) 6
165 Ill. 2d 150, 650 N.E. 2d 450
Smith v. Andrews (2nd Dist. 1965) 6,8
54 Ill. App. 2d 51, 203 N.E. 2d 160
Thornton v. Paul (1978) 8
74 Ill. 2d 132, 384 N.E. 2d 335
State Farm v. Shelton (1st Dist. 1988) 6,7,8
176 Ill. App. 3d 858, 531 N.E. 2d 913
Talanco v. Dunlap (1997) 7
177 Ill. 2d 185, 685 N.E. 2d 325
In re Owens (1988) &
125 Ill. 2d 390
Coronet Insurance Co. v. Travers &
(Ist Dist. 1996) 282 Ill. App. 3d 920
In re Clarence T.B. 9
215 Ill. App. 3d 85, 574 N.E. 2d 878
In re A.S.B. (2nd Dist. 1997) 10
Ill. App. 3d , 688 N.E. 2d 1215
People v. Winsett 1]
153 Ill. 2d 335, 606 N.E. 2d 1186
In re S.D. 12,14
213 Ill. App. 3d 284, 571 N.E. 2d 1162
-App H.0S9 -
I
ARGUMENT
THE TRIAL COURT CORRECTLY FOUND THE
STATE FAILED TO MEET IT'S BURDEN OF
PROVING RESPONDENT FATHER'S
UNFITNESS BY CLEAR AND CONVINCING
EVIDENCE. HOWEVER, THE TRIAL COURT
DID MAKE ERROR'S WHICH DEPRIVED
RESPONDENT FATHER OF A
FUNDAMENTALLY FAIR PROCEEDING
ONE
The People initially argue the tnal court was
Operating under a misconception of the law when
finding the People failed to meet its burden of proof.
(Appellant's Brief at 24-28).
STANDARD OF REVIEW
In cases dealing with parental unfitness, the standard
of proof is clear and convincing evidence In re A.P.,
277 Ill. App. 3d 592, 660 N.E. 2d 1006, 1010 (4th
Dist. 1996). It is well settled that a finding of
___ -App H.060 -
unfitness will not be disturbed unless it is against the
manifest weight o the evidence In re B.C. & W.C.,
minors, 247 Ill. App. 3d 803, 804-05 (3rd Dist.
1993). A finding of fact or verdict is against the
manifest weight of the evidence where, upon review
of all the
evidence in the light most favorable to the prevailing
party, an opposite conclusion 1s clearly apparent or
the fact finder's finding is palpably erroneous and
wholly unwarranted, is clearly the result of passion or
prejudice, or appears to be arbitrary and
unsubstantiated by the evidence Joel R. v. Board of
Education, 292 Ill. App. 3d 607, 613 (1st Dist.
1997); Usselmann v. Jansen, 257 Ill. App. 3d 978,
981. The determination of fitness is a finding of fact.
The case at bar presents mixed questions of law and
fact. The Supreme Court of the United States has
defined mixed questions as those in which the
historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether the facts
me
-App H.061 -
satisfy the [relevant legal] standard, or to put it
another way, whether the rule of law as applied to the
established facts is or is not violated Joel R. v. Board
of Education, 292 Ill. App. 3d at 612 citing Pullman-
Standard., Swint, 456 U.S. 273, 289 note 19
(1982).
The review of mixed question of law and fact
necessitates three steps be taken by this Court. First
step in the process is establishment of basic,
primary or historical facts: facts in the sense of a
recital or external events and the credibility of their
narrators. The second step is selection of the
applicable legal rule. The third step (and the most
troublesome for purposes of standard review) is
application of the law to fact or, in other words, the
determination of whether the rule as applied to law are
reviewed under nondifferential, de novo standard Joel
R. v. Board of Education, 292 Ill. App. 3d at 613
citing Roubik v. Merrill Lynch, et. al., 285 III. App.
3d 217, 219 (1996).
-App H.062 -
The People having failed to cite the proper standard of
review for the first issue raised in their brief,
specifically, that Respondent Father is depraved
where the issue centers on the tnal court's
determination of the applicable law as required by
Supreme Court Rule 341 (Appellant's Brief at 24-
29), Respondent Father petitions the Court to stike
the affecting argument from Appellants Bnef as a
sanction.
As Respondent Father will raised the issue
conceming evidence barred from presentation in the
tnal court and the overall issue may be decided in
favor of Respondent Father initially without
discussing the barred evidence, Respondent Father
will present his response to People's Argument A 1n
two stages. For purposes of the first stage, and
solely arguendo, Respondent Father will concede that
if the trial court misapplied the applicable law, the '
evidence as presented in the tnal court would be
-App H.063 -
sufficient to establish depravity. The question thus is;
did the tnal court select the applicable legal rule?
STAGE ONE
It has been established that a single criminal
conviction without more, will not support a finding of
unfitness based upon depravity, a point which our
Supreme Court has never rejected. In re Abdullah,
85 Ill. 2d 300, 4223 N.E. 2d 915 (1981). This
Court, however, established an exception to this rule
in In re S.H., 284 Ill. App. 3d 392, 672 N.E. 2d
403, 408 (4th Dist. 1996) (a parent who commits acts
like these on his own child is subject to being found
unfit due to
depravity based solely upon that conduct). Under
these decisions the rule of law is clear. The People
were required to present the evidence underlying the
conviction rather than standing on a certified copy of
the conviction except when the criminal conviction is
against the Respondent Father's own i.e., biological
child. In such case, a certified copy of the conviction
i
os eeneeteieintieianialdae
-App H.064 -
is sufficient. That is the rule of law as established.
Having established the facts and the rule of law, we
turn to the third step in of the review process applying
the law to the facts whether the rule of law as applied
to the facts is or is not violated. The facts consisting
of certified copies of Respondent Father's cnminal
- convictions for conduct perpetrated upon persons
other than David Lee or Loren Andrew Deerwester
without a presentation of the underlying facts fail to —
provide enough evidence to prove depravity under the
applicable rule of law.
The People assert, however, that it enters the realm
of the ridiculous to require that a Respondent's
depraved acts be committed against his or her own
children rather than step-children in order to establish
depravity, a point to which Respondent agrees. That
is not what Abdullah and S.H. stand for. By their
plain language (which the tnal court correctly applied)
they require the People to offer factual proof
underlying the conviction except when the depraved
-App H.065 -
conduct is perpetrated directly against biological
children. They do not require depraved acts be
committed against a Respondent's own children
rather than step-children. The rule simply requires
the People to present underlying facts of conduct
committed against step-children rather than Justa
certified copy of a criminal conviction. Such
requirement is not entering the realm of the ridiculous
either. For example: Actor Woody Allen has engaged
In sexual relations and ultimately married, his his
adopted step-daughter whom he had raised as his
own. Does that fact establish depravity? What about
a case where a couple separate and beginning at the
time of divorce the step father begins having sexual
relations with his 17 year old step-daughter who is
now living with her mother. Does this establish per
se depravity and indicate the father will engage in
sexual relations with his 13 year old daughter? There
are many different factual situations which may arise
that would warrant against S.H.'s per se depravity
i
-App H.066 -
standard where step-children are involved. Thus, it
would be reasonable to limit S.H.'s exception, as the
trial court did, to biological children.
Since the People failed to introduce evidence other
than a certified copy of criminal convictions sufficient
to establish depravity 1n this case, (a situation
opposite to the evidence presented in the cases relied
upon the People in their brief) the tnal court's
decision was not against the manifest weight of
evidence of contrary to the established rule of law.
Therefore this Court should affirm the trial court.
STAGE TWO
In the event this Court agrees with the People and
remands this cause to the tnal court, Respondent
Father asserts the tnal court erred in refusing to allow
introduction of evidence to rebut the People's case
and moves this Court to direct the tnal court to permit
Respondent Father to introduce rebuttal evidence.
Respondent sought to challenge the People's prima
facie case and Petitioner and Respondent minors and
-App H.067 -
mother objected. After arguments the trial court
barred Respondent from rebutting the People's initial
showing of depravity. (R. Vol. XVI, at 28).
Respondent also moved the trial court to reconsider.
(R, Vol. IX, C 1'709-1718)-Argument (R. Vol.
XVII, 13-22), additional argument (R, Vol. XVIII,
4-7). The trial court denied the Motion to Reconsider.
(R. Vol. XVIII, 8).
The basis for the trial court's refusal to allow
Respondent Father to present witness's was that the
Court found Respondent Father's witness's to be an
attempt to Re litigate or attack the testimony and
evidence presented at both the criminal trail and the
Juvenile adjudication. (Dr.Stewart, R. Vol. XVI, 28:
Michael Fazio, R. Vol. X VI, 82-85).
STANDARD OF REVIEW
Admissibility of evidence at trial is committed to the
sound discretion of
the trial court and its determination will not be
overturned absent a showing of clear abuse or that
-App H.068 -
discretion resulting in substantial prejudice affecting
the outcome of the tnal. Leonardi v. Loyola
University of Chicago, 168 Ill. 2d 83, 658 N.E,. 2d
450, (1995), Holston v. Sisters of the Third Order of
St. Francis, 165 Ill. 2d 150, 650 N.E. 2d 450,
(1995).
Initially, this Court should be made aware of what
weight a criminal conviction is to be given. In Smith
v. Andrews, 54 Ill. App. 2d 51, 203 N.E. 2d 160
(2nd Dist. 1965) (a proceeding to terminate parental
rights based on depravity), the defendant argued that
proof of prior criminal convictions were inadmissible
to prove that he actually committed the crimes of
which he was convicted. The Andrews Court
disagreed and held defendant's criminal convictions
of rape was admissible as prima facie evidence
defendant had in fact committed a rape but refused to
go so far as to hold that a judgment of conviction
should be conclusive in a later civil proceeding. The
Court also held that to insure no inequity will result,
-App H.069 -
that the opportunity for rebuttal should be left open.
Smith, 203 N.E. 2d 335, 342-43 (1978) adopted the
holding in Smith and declared proof of a criminal
conviction is admissible but as conclusive proof of
the factual basis of a conviction but only as prima
facie evidence. The Court strictly stated that this
approach preserves the opportunity to rebut the
factual basis of the conviction insofar as those facts
are applicable to the civil, proceeding. id This rule
holds true to this day and as the Ist District stated in
State Farm Fire & Casualty Co. v. Shelton, 176 IIl.
App. 3d 858, 531 N.E. 2d 913, 920 (1st Dist. 1988)
"In our opinion, the cases require us to hold that
Shelton is entitled to defendant against the wrongful
death action by offering whatever testimony or
evidence he believes will rebut the prima facie
evidence of his liability, even though such evidence
contradicts the criminal court's findings-*** while the
cnminal conviction is certainly strong evidence, the
Supreme Court holds that it is not conclusive." Thus
-App H.070 -
Respondent Father is entitled to present testimony or
evidence in subsequent civil proceedings to rebut the
prima facie case. The trial court refused to allow
Respondent Father an opportunity to rebut the
evidence and this has deprived Respondent Father of
a fundamentally fair proceeding.
COLLATERAL ESTOPPEL
The tnal court further erred in finding Respondent
Father was collaterally estopped from rebutting the
People's prima facie case. Collateral estoppel is an
equitable doctrine. Application of the doctrine
precluded a party from relitigating an issue decided in
a prior proceeding offensive use of collateral estoppel
occurs when a plaintiff seeks to foreclose a defendant
from litigating an issue the defendant has previously
litigated unsuccessfully in another action. Talarico v.
Dunlap, 177 Ill. 2d 185, 685 N.E. 2d 325, 328
(1997). The minimum threshold requirements for the
application of collateral estoppel are: (1) the issue
decided in the prior adjudication is identical with the
ens Sie wire Nant e
-App H.071 -
one presented in the suit in question;(2) there was a
final judgment on the merits in the prior adjudication:
and (3) the party against whom estoppel is asserted
was a party or in privity with a party to the prior
adjudication. id
For collateral estoppel to apply, a decision on the
issue must have been necessary for the judgment in
the first liti gation, and the person to be bound must
have actually litigated the issue in the first suit. Even
where the threshold elements of the doctrine are
satisfied and an identical common issue is found to
exist between a former and current lawsuit, collateral
estoppel must not be applied to preclude parties from
presenting their claims or defenses unless it is clear
that no unfairness results to the party being estopped.
id In ordinary civil cases, Circuit Court's must have
broad discretion to ensure that application of
offensive collateral estoppel is not f undamentally
unfair to the defendant, even though the threshold
requirements for collateral estoppel are otherwise
-App H.072 -
’ satisfied. In re Owens, 125 Ill. 2d 390, 399 (1988).
Further, courts must be cautious in allowing the
doctrine for collateral estoppel to be used offensively
than allowing it to be used defensively. Coronet.
Insurance Co., v. Travers, 282 Ill.App.3d 920,(1st
Dist. 1996).
In the case at bar, the tnal court allowing offensive
use of collateral estoppel to bar Respondent Father
from rebutting the People's prima facie case with
witness's and whatever evidence he felt would rebut
the People's case as permitted by the previously cited
rule of Smith, Thornton and Shelton is fundamentally
unfair. Moreover, in Inre Abdullah, 85 Iil. 2d 300,
4223 N.E. 2d 915 (1981). The People sought to
terminate parental rights based on criminal
convictions as proof of depravity. Although collateral
estoppel may have been applicable, our Supreme
Court clearly stated in Abdullah "the evidence
presented by the State made out a prima facie case of
depravity. The burden of going forward then shifted
-App H.073 -
to the defendant to explain away the damning
evidence of the conviction, the relationship of the
victim to the child, and the sentence. If there were
exonerating circumstances that would rebut the initial
showing of depravity, defendant was free to present
them". Abdullah, 423 N.E. 2d at 918. Under these
rules and decisions, Respondent Father was entitled
to rebut the People's case and the trail court's denial
was fundamentally unfair and prejudicial in light of
the excluded evidence which included, but was not
limited to testimony of Dr. Alison Clarke-Stewart ((
R. Vol. XVI, 28-77 and 86-125)(R. Vol. XIX,
Respondent Father's exhibit 1 an 2)). Thus, the trial
court abused it discretion in barring Respondent
Father from rebutting the People's prima facie case.
As a final note, Respondent Father was not
collaterally estopped to rebut the People's case based
on the prior juvenile proceedings. See In re Clarence
T.B., 215 Ill. App. 3d 85, 101-103, 574 N.E. 2d
878, 889 (2nd Dist. 1991).
-App H.074 -
WHEREFORE, Respondent Father prays for this
Honorable Court to direct the trial court to permit
Respondent Father to present whatever testimony or
evidence he feels will rebut the People's prima facie
showing of evidence supporting depravity.
II
The People next argue Respondent Father has failed
to make any progress, let alone reasonable progress
toward the return of David and Loren
Deerwester.
STANDARD OF REVIEW
The standard of proof is by clear and convincing
evidence In re A.P., 277 Ill. App. 3d 592, 660 N.E.
2d 1006, 1010 (4th Dist. 1996) and the trial court's
finding will not be disturbed unless it is against the
manifest weight of the evidence. In re B.C. & W.C.,
minors, 247 Ill. App. 3d 803, 804-05 (3rd Dist.
1993). However, because each case involving
parental fitness is Sui Generis, court's generally do
not make factual comparisons to other cases. In re
-App H.075 -
A.S.B., Ill.App. 3d _, 688 N.E. 2d 1215,
1221 (2nd Dist. 1997).
ARGUMENT
The People argue that no dispute exist that
Respondent Father failed to comply with tasks set
forth for him in the client service plans. Caseworker
Jaspers contacted Respondent Father's attorney but
he never returned the caseworkers call. Couple this
with Respondent Father;'s testimony that he was
advised not to do anything that may interfere with or
jeopardize his criminal proceedings according to the
People, supports that Respondent Father has made no
progress toward the return of David and Loren
(Appellant's Brief at 33-34). The trial court found the
People failed to meet their burden of proving that the
Respondent Father has failed to make reasonable
efforts or reasonable progress. The trial court's
finding is not against the manifest weight of evidence.
Initially, Respondent Fathers position is the
requirement that he make reasonable progress in this
-App H.076 -
case, applying the Sui Generis principle, would
require an admission to criminal acts to which
innocence is maintained and would violate his Fifth
Amendment Right against self-incrimination (U.S.
Const. Amend. V). The Fifth Amendment provides,
in part:
"No person...shall be compelled in any
criminal case to be witness against himself."
U.S. Const.Amend V
and the Supreme Court of I|linois has stated that the
Fifth Amendment against self incrimination applies,
not simply in criminal proceedings, but in all settings
where persons feel compelled to incriminate
themselves. People v. Winsett, 153 Ill. 2d 335, 606
N.E. 2d 1196, 1994. In this case, making reasonable
progress and reasonable efforts requires Respondent
Father to admit to cnminal conduct.(see Client
Service Plan Par. 7 (R. Vol XIX, Petitioner's Exhibit
1) as originally filed on April 16, 19911 (R. Vol. 1, C
-App H.077 -
101 and C 116-117). To admit to such allegations
would clearly be used against Respondent Father in
the event of a retrial in McLean County Case No. 91-
CF-22. The trial court agreed Respondent Father still
has Fifth Amendment protections.(R. Vol. XV, 86).
Thus to compel Respondent Father to make
reasonable progress is to punish him for exercising
his Fifth Amendment Rights.
Moreover, Respondent Father has previously
denied these allegations under oath in testimony in
cause 9]-J-2. If Respondent Father was to admit to
those allegations now, he would be subject to a
perjury prosecution and/or contempt of court. Such
out of court statements admitting to such allegations
would be admissible under various exceptions to the
hearsay rule including as declarations against penal
interest. It is, thus, clear that in order to make
reasonable progress and reasonable efforts,
Respondent Father would certainly be compelled to
-App H.078 -
incriminate himself. Under the Fifth Amendment
principles, considering Respondent Father has
invoked the protections, to find him unfit on the basis
of f ailing to make reasonable progress or efforts is to
punish him for invoking the Fifth Amendment. No
exception exist in this case where the children are in
the custody and guardianship of their natural mother,
where if they were in foster care with no hope of
returning home, an exception may very well be
warranted.
REASONABLE PROGRESS HAS BEEN
MADE
The answer to the question of what reasonable
progress 1s, requires an objective determination and
requirement of a parent to make at a minimum,
measurable or demonstrateable movement toward the
return of a child. In re S.D., 213 Ill. App. 3d 284,
571 N.E. 2d 1162, 1166. In this case the situation
that lead to the initial removal has been corrected.
-App H.079 -
Respondent Father has been incarcerated
continuously since January 19, 1991. At present,
Respondent Father's outdate is well after the date the
children reach 21 years of age. The incarceration
makes contact with the children for purposes of
providing living quarters and discipline impossible.
Therefore, improvement in correcting conditions has
been made. As Dr. Stewart reported: "It is my
opinion...even if [Respondent Father] were guilty of
all the charges he was convicted of, I do not believe
this would justify termination of his parental nights.
There is no possibility that during supervised visits
(in prison) he could exhibit the inappropriate
behaviors toward the children of which he has been
convicted." (Res. Fathers exhibit 2, p. 17 (R. Vol.
XIX)(R. Vol. XVI, 34-77 and 86-125). Thus, the
conditions have been reasonably corrected under the
circumstances of this case. Furthermore, DCFS
caseworker Dawn Weber testified:
-App H.080 -
"{T]he whole mission of the department
besides protecting the children is to find
permanenacy for them. The point in
time that I received this case we were doing
that with [Respondent Mother]. So in that
regard as the caseworker there was no need
for me to contact [Respondent Father] as
we were returning the children home toa
parent." R. Vol. XV, 65
The goal of both reasonable progress and reasonable
efforts is toward the goal of returning the children to
the home of the parent. In the case at bar, the
children can never be returned to the home of
Respondent Father as his home is the I]linois
Department of Corrections until after the children's
21st birthday. Thus, under the circumstances of this
case, the goal of returning home to Respondent
Father is meaningless. No progress could ever be
made toward such a goal in any circumstance.
-App H.081 -
Alternatively, the trial court was correct in finding
DCFS failed to make some effort offer to Respondent
Father a Client Service Plan, but this plan was not
discussed with Respondent Father as Mr. Jaspers
was directed to go through Respondent's counsel.
(R. Vol. XV, 34-35; 38-44). This testimony makes
clear Respondent Father would not discuss the issue
without Mr. Jaspers going through Respondent
Fathers attorney (see R. Vol. XV, 100-101,
testimony of Respondent Father). Mr. Jaspers failed
to do so. He further showed he had no desire to
pursue an offer of services to Respondent Father.
Mr. Jaspers testified:
[Mr. Toner] Q. "Is it the departments policy
that a person has to request services of you or
are you to go out and offer
services to that person?"
[Mr. Jaspers] A. "In some cases we will have
to follow a Court Order. One of the things
-App H.082 -
that I seem to recall is that all contact with the
children was terminated by Order of the
Judge in this case."
[Mr. Toner] Q. "Okay."
[Mr. Jaspers] A. "It would serve and I speak
only from my personal opinion--it would
serve no purpose to offer services for
reuniting a family when a Judge has ordered
us not to."
[Mr. Toner] Q. "Now were getting
somewhere, so based upon that, would it be a
fair assessment as to that being the reason
why no services were offered to Mr.
Deerwester?"
[Mr. Jaspers] A. "I would not be able to
speak for anyone in the Bloomington office
past the time I was in the case, sir."
[Mr. Toner] Q. "At your--at the time that it
was on your watch, so to speak, was that
-App H.083 -
your reason for not offering any services
beyond--strike that. Was that your reason for
not offering a Client Service Plan after his
conviction?"
[Mr. Jaspers] A. "Yes."
R. Vol. XV, 43-44
This testimony makes it clear that Mr. Jaspers did
not make much effort to communicate with
Respondent Father's counsel. The reason being Mr.
Jaspers personally felt, due to the Court's protective
Order, it would serve no purpose to offer services to
the Respondent Father. The trial court's finding was
not against the manifest weight of the evidence
considering Mr. Jaspers actions. Moreover, the
answer to the question of what reasonable progress
and requires a parent to make at a minimum,
measurable or demonstrateable movement toward
return of a child, In re S.D., 213 Ill. App. 3d 284,
-App H.084 -
571 N.E. 2d 1162, 1166 (4th Dist. 1991).
However, Caseworker Dawn Weber testified that the
children were being returned home to Sherry
Deerwester and in her professional estimation there
was no point in offering services. (R. Vol. XV, 66).
Ms. Weber clarified that the whole point of the
Service Plan would be to correct the problem so the
children can be returned home, and that it was done in
the case of Mrs. Deerwester, so, therefore to include
[Respondent Father] in the Service Plan would have
been basically moot because the children were already
returned home to a parent. (R. Vol. XV, 67-68)
Thus, in the opinion of DCFS caseworkers, there
was no point in having Respondent Father participate
in services. Therefore, DCFS did not make, as the
trial court found, attempts to afford services, except
for one attempt by Mr. Jaspers when he was directed
by Respondent Father that any communication should
be through the Respondent Father's attorney, no
-App H.085 -
offers of services were forth coming. (R. Vol. XVIII
29-31)
Wherefore, the trial court's finding was not against
the manifest weight of the evidence and this
Honorable Court should affirm the trial court.
THREE
The People next argue that Respondent Father has
not made reasonable effort to correct the conditions
which led to the removal of the children where he
failed to take the first step toward dealing with the
abuse by assuming responsibility.
First, the trial courts finding on this issue is not
against the manifest weight of the evidence.
Respondent Father clearly has acknowledged the need
to go through counseling regarding the excessive
corporal punishment, but that on advise of counsel,
he was not to deal with DCFS until the criminal
matters were resolved. (R. Vol. XV, 86-87).
In addition, Respondent Father obtained some
counseling while incarcerated. (R. Vol. XV, 88-89).
:
Dice laa ea
-App H.086 -
Then after a transfer to the Illinois Department of
Corrections due to the particular circumstances,
Respondent Father was in, he could not receive
services. (R. Vol. XV, 89) Respondent Father
indicated he would have considered services had they
been offered. (R. Vol. XX V, 90-91), see cross-
examination at (R. Vol. XV, 93; 96; 107-111).
The evidence clearly establishes Respondent Father
took some steps to acknowledge abuse and had not
totally rejected counseling, but would have indeed
considered it, had Mr. Jaspers made more effort then
he did. (refer to Reasonable Progress Argument,
supra). In addition, in the expert opinion of
Dr.Alison Clarke-Stewart, Respondent Father should
not be required to publicly admit responsibility. (R.
Vol. XVI, 95-97). Thus, the trial courts finding the
People failed to meet their burden of proof is not
against the manifest weight of the evidence.
Moreover, the effect required is that it is necessary
-App H.087 --
toward regaining physical custody. As Respondent
Father will be incarcerated until after the
children's 21st birthday, he can never regain the
physical custody. Under the facts of this case and
considering then Sui Generis, reasonable efforts have
been made and the tral court's findings were not
against the manifest weight of the evidence and
should be affirmed.
Alternatively, as greed under reasonable progress,
supra, the requirement that Respondent Father make
reasonable progress violates his Fifth Amendment
Rights and thus, this allegation should be dismissed
on that basis.
-App H.088 -
CONCLUSION
WHEREFORE, Respondent father-A ppellee prays
for this Honorable Court to affirm the Circuit Court's
dismissal of the Petition to Terminate Parental Rights
or in the alternative, on remand require the Circuit
Court to consider evidence previously excluded even
though such evidence tends to contradict the findings
of the criminal copurt in McLean County case number
91-CF-22.
Respectfully submitted,
Joseph L. Deerwester
PRO-SE Respondent father-
Appellee
No. B 33706
Joliet Correctional Center
1125 Collins St.
Post Office Box 515
Joliet, Illinois 60434-0515
Phone: (815) 727-6141
-App 1.089 -
Wednesday, April 7, 1999 The Pantagraph,
Bloomington, Illinois
High Court Forms Death Penalty Panel
By, Kurt Erickson, Springfield bureau chief
SPRINGFIELD--In a move that drew a scathing
dissent from one of its own members, the Illinois
Supreme Court on Tuesday created a special
committee to study the death penalty system.
The panel, comprised of 17 trial court judges from
throughout Illinois, is charged with assessing the
death penalty process and passing along suggestions
to the high court "so that the highest level of justice is
attained in these cases," said Illinois Supreme Court
Chief Justice Charles Freeman.
Supreme Court Justice James Heiple, however,
blasted his colleagues, saying the creation of the
panel was nothing more than a public-relations
gambit aimed at showing that the high court is
-App 1.090 -
concerned about a system that has come under fire in
recent months.
The committee is the third such group to be formed
in recent months. The Illinois Attorney General's
office and a task force of lawmakers recently
announced the creation of separate panels to
investigate the state's death penalty system.
"A bandwagon psychology has developed
and the Supreme Court doesn't want to be left off the
wagon," Heiple said. "In short, the creation of this
committee is a public-relations gesture, pure and
simple."
The fact-finding rush comes in the wake of two
high-profile cases in which condemned inmates have
been released from death row. In February, Anthony
Porter became the 10th man freed since the state
reinstated the death penalty 22 years ago. A second
man, Steven Smith-convicted of killing a Pontiac
prison official in 1986-was recently released after the
-App 1.091 -
Illinois Supreme Court ruled that prosecutors hadn't
found him guilty beyond a reasonable doubt.
Both incidents-as well as the fact that a total of
none other death-row prisoners have been set free
since 1977-have given death penalty opponents
ammunition to call for a moratorium on executions to
give officials time to study problems within the
capital punishment system.
Heiple, in a sharply worded two-page dissent, said
the court's action is unwarranted. He said his
colleagues have become too concerned about their
image and should stick to reviewing individual cases
on their merits.
He noted that a common topic of discussion among
fellow justices is "how they can be made to look
good in the press." "The question of image is ever-
present and from time to time is, as in the case at
hand, the motivating reason and justification for court
action," Heiple noted."Judges should do the job that
-App 1.092 -
they were hired to do." Heiple wrote. "That is, to
decide cases on the basis of the law and the facts and
to promulgate procedures that will efficaciously
promote the administration of justice. That being
done, the matter of public image will resolve itself."
said Heiple.
According to Freeman, however, the panel is
merely being formed to provide the high court with
information that might be used to improve the death
penalty process. "Even the best system can be
improved upon,: Freeman noted. "But improvements
cannot be made without the dissemination of
constructive and critical comment."
The panel, which will be chaired by Cook County
Circuit Judge Thomas Fitzgerald, consists of eight
Cook County judges, five suburban Chicago judges
and four other judges from central and southern
Illinois. None are Pantagraph-area jurists. The panel
is under no deadline to report its findings, other than
-App 1.093 -
that they should make their recommendations "at the
earliest opportunity," Freeman said.
-App J.094 -
REPORT CONCERNING CASE OF JOE
DEERWESTER
Prepared by Alison Clarke-Stewart
July 27, 1996
Report based on the following documents:
Reports by the Bloomington Police Department (Det.
Fazio)
Reports by Child Protective Services (Mel Devall)
Testmony at 91-J-2 hearing, grand jury hearing,
115-10 hearing, and jury tnal (by Joe Deerwester,
Sherry Deerwester, Jeremy, Joseph, and Joshua
Deerwester, foster parents (Steadman, Barr, Brady,
Hopper), Susan Bellas (counselor), Det. Fazio, Mel
Devall, relatives (Dorothy Mock, Winnie Harris,
Randy Deerwester), physicians (Neal, Sobolewski).
The purpose of my review if these documents was to
search for evidence demonstrating questionable
investigatory methods that might have lead to errors
or exaggerations in the charges of physical and
-App J.095 -
sexual abuse of which Mr. Deerwester was
convicted.
The charges of physical abuse were that Mr.
Deerwester.
Beat his stepsons Joshua and Jeremy (leading to
observed injures).
Hit Joshua's penis with a board. |
Blocked his stepchildren in their room at night.
Threw Joshua across the room so that he hit and cut
his chin on the floor.
Tied the children's hand and feet together for
punishment.
Hung Joshua upside down by his feet (and beat him)
for punishment.
Forced the children to bite and beat each other for
punishment.
The charges of sexual abuse were that Mr.
Deerwester.
Pulled on the children's penises
-App J.096 -
Forced stepsons Jeremy and Joseph to hit, pull, bite,
and suck Josh's penis
Masturbated in front of the children
Forced the children to watch him and his wife have
sex, including oral sex
Had the children touch his penis (with their hands)
Sucked the children's penises/private parts
Put his penis in children's mouths/ made them suck
i/masturbated on them
Penetrated the children anally with his penis
The issue of how to investigate child abuse cases,
and more specifically how to interrogate child
witnesses, is one that has received considerable
attention from legal and mental health professionals
and from research psychologists in the past decade or
so. A new book by Stephen Ceci and Maggie Bruck,
Jeopardy in the Courtroom: A scientific Analysis of
Children's Testimony (American Psychological
-App J.097 -
Association, 1995) gives a comprehensive review of
research on this issue. I myself have conducted
several studies, including one described in the book,
investigating children's suggestibility and the effects
of biased and suggestive interviews on children's
ability to accurately report events and experiences.
Extrapolating to "What the expert witness on
children's suggestibility should tell the court" (p.
271), Ceci and Bruck conclude that the following are
well-supported and reliable findings:
- Preschool-aged children are more vulnerable
than older children (or adults) to a vanety of factors
that contnbute to unreliable reports.
- Although young children are often accurate
reporters, some do make mistakes, particularly when
they undergo suggestive interviews, and these errors
are not limited to peripheral details, but may include
salient events that involve children's own bodies.
3. Children are most susceptible to
-App J.098 -
suggestibility when they are interviewed more than
once, in interviews containing specific, leading, or
suggestive questions, by interviewers who are
judgmental or biased, who create "demand
characteristics" in the interview (e.g., by subtly
rewarding certain responses), who inculcate a
negative stereotype about the defendant, who
repeat close-ended yes/no questions either within or
across interviews, and who pursue only a one-sided
hypothesis (e.g., that the alleged perpetrator is
guilty, or that abuse occurred). If suggestive
techniques are used by a neutral unbiased interviewer
In a single interview, this is unlikely to result in
a false report. Suggestive questioning is most
damaging when the interviewer has a strong
confirmatory bias. If the interviewer avoids
confirmatory biases by posing and testing alternative
hypotheses, suggestive techniques do not seem to
result in serious problems. It should also be noted
-App J.099 -
that suggestive techniques are effective in eliciting
reports of actual, real events, too.
Other points raised in the book include the following:
Suggesu bility is greater when interviews occur long
after the alleged events.
Suggestibility is greater when the interviewer has
high status (e.g., a police officer), when he/she
exerts his/her authonty over the child, and when
children feel threatened (because the interviewer has
not established rapport and creates an atmosphere of
accusation).
Children may be induced to make a false disclosure
through the use of peer pressure (1.e., if the
interviewer says, other children have already told).
It is impossible to tell whether children's testimony
in court is accurate or not based solely on their
behavior in the courtroom; even trained adults
cannot detect false reports (unless children are
deliberately lying). Itis not proof that children are
-App J.100 -
giving false reports if they mechanically parrot the
interviewer's words, use adult-like language, exhibit
inappropnate affect, or include few perceptual details
in their accounts. Children's whose testimony has
been "tainted" by suggestive interviewing may be
convinced that the false events actually did occur and
so their behavior does indicate deliberate deception.
There 1s no specific behavioral syndrome that
characterizes vicums of sexual abuse (the presence of
sexualized behavior does not conclusively
demonstrate that sexual abuse occurred).
With these research findings in mind, | examined the
records for evidence relating to:
l. The age of children
y & The number of interviews
the length of time between alleged abusive
evenus and the interviews
4. The status of the interviewers
Whether the interview contained leading
-App J.101 -
suggestive questions, repeated close-ended
yes/no questions, evidence that the
interviewer was judgmental or biased, created
"demand characteristics," fostered a negative
stereotype about the defendant, exhibited a
“confirmatory bias" (pursuing only a single
hypothesis), attempted to exert authority over
the child, created an atmosphere of
accusation, used "peer pressure."
| also looked for consistency (or inconsistency)
between reports of different people and at different
umes.
Findings
Age of children
At the time the abuse was reported, the four children
interviewed ranged in age from 2-7 years. All these
children are young enough that suggestibility would
be a major concer, particularly for the three
youngest children (ages 2, 4, and 6). Krystal was
-App J.102 -
only two years old and as her interviewers noted
it was very difficult for her to verbalize at all. The
oldest child suffered from a learning disability that
would have made it difficult for him to
express himself verbally.
Number of interviews
Jeremy (age 7), Joseph (age 6), and Joshua (age 4)
were interviewed a number of times; by a teacher
(Jeremy), school social worker (Jeremy), a nurse and
doctor at the ER (Joshua), and a CPS worker (all of
the children) on 1/9/91; twice by a police detective
(all of the children except Krystal) on 1/17/91 and
1/31/91. Foster parents also talked to the children
about the alleged sexual abuse (see Devall notes and
foster parent's notes). Although foster parent Kathy
Barr says in her testimony she just asked Joseph if he
wanted to talk about what had happened, she never
questioned him about it, at least initially, | infer, she
was asking direct questions. For example, in a
-App J.103 -
phone call on 1/18/91 she reports "Joseph is denying
any sexual abuse at this time," which indicates that
she has been questioning the child. Then on 1/23/91
she talked to Gloria Cowdry (social worker?) who
instructed her not to pump Joe but just let him know
they are there to listen. Later the boys also talked
weekly to a therapist, who also questioned them
about what had occurred. In her testimony at tnal,
Susan Bellas says, | was trying to have the boys
disclose what happened to them as far as any of the
abuses and was asking them specific questions about
what happened. Thus, although the number of
interviews was not excessive or unusual, it should be
noted that the children did experience repeated
interviews, and most weight should perhaps be given
to the earliest one.
Length of time between evenvUs and interviews
The time between the incidents of physical abuse
that precipitated the report to CPS and the first
-App J.104 -
interviews was less than a day. For the other alleged
incidents of physical and sexual abuse, the time was
unclear. These events occurred sometime after Mr.
Deerwester began living with the stepchildren
in 5/89, so they were within a year and a half. Given
the young age of the children, all but the most recent
event would have been subject to forgetung. This
would have led to some vulnerability to suggestion.
Status of the interviewers
The pnmary interviews of the children were
conducted by a police detective (Michael Fazid) at the
police station. There 1s no indication as to whether
he was in uniform at the time of the interviews. There
were two other adults present at the interview: Mr.
Devall (social worker) and Dawn Wright (CPS
intern). The interviews took place at the police
station in a small room used for interviews, not a
room designed specifically to be "child-fnendly".
The children were not accompanied by a familiar
-App J.105 -
adult and, by his own testimony, De. Fazio did not
spend any time establishing rapport with the
children before asking them questions about abuse.
It seems quite likely that the police interviewer would
have come across as an authonty figure to
the children, and also Mr. Devall may have been seen
as an authority figure, as he was the one responsible
for removing the children from their home.
The status of the interviewers, thus, would have
contn buted to greater suggestbility.
Bias of interviewers (toward sexual abuse)
We know from devall's note that he was already
biased toward sexual abuse because on 1/10/91
Detective Mike Essig told him that he has some
information that sexual abuse might be going on.
Note that in Devall's first interviews with Jeremy and
with the three boys together on 1/9/91 there was
no mention about sexual abuse, just physical abuse
(Josh's penis was hit). Following Devall's
-App J.106 -
interviews and conversation with Essig, he gave his
notes to Fazio, so whatever bias Devall had was
carried over to Fazio, and Fazio's interviews,
questions about sexual abuse were asked.
Bias of foster parents (toward sexual abuse)
We also see that the foster parents were biased
toward believing that the children has been sexually
abused. Debbie Brady (phone call 1/16/91 and
notes for 115-10 in 1/92) says that Jeremy doesn't
say anything about sexual abuse that happened to
him, which clearly implies that she believes
that something did happen to him. Kathy Barr
(phone call 1/18/91) says "Joseph is denying any
sexual abuse at this time," which clearly implies she
thinks he has been abused. She also says in her
handwritten notes that on 1/23/91 she talked to Gloria
Cowdry about the "hornble sexual and physical
abuse to Joseph, how he still defends mom and says
Joe didn't mean to do it."
-App J.107 -
Bias of counselor Susan Bellas
Susan Bellas started therapy with the boys "because
Jeremy's foster mother wanted him to have
counseling to help him talk about sexual abuse."
Thus she held the assumption from the beginning that
the children were abused. She did not see her role as
investigator; her role was to provide therapy for
abused children. Bellas reads books, talked,and
listened to songs about sexual abuse with the children
(in fact she gave Joseph the comic book on
sexual abuse). In her testimony at trial, she hays I
Was trying to have the boys disclose that happened to
them as afar as any of the abuses and was
asking them specific questions about what happened.
Josh indicated some sexual abuse, fondling, oral
intercourse. I asked him about anal intercourse
and he denied that. Did you question any further on
it at the time? Not at that time. When Josh denied it,
-App J.108 -
did that say in your mind that it didn't
happen? Not at all.
Content and style of interviews
The only way to determine the content of the
interviews would be to examine verbatim transcripts
or audiotapes of the actual interviews. This is
not possible in this case. All we have available is the
handwritten notes from Mr. Devall and the police
reports filed by Detective Fazio. I have scrutinized
the reports from Mr. Devall and detective Fazio for
any suggestion that the interviews contained any of
the problems mentioned above. And I have
examined Devall and Fazio's testimony in court for
clues as to the style in which the interviews were
conducted. According to Devall and Fazio's
tesumony, they knew what questions they asked and
just wrote down the children's answers. This is
unfortunate because the questions )and their
immediate responses) are critical. The following are
-App J.109 -
my inferences about problems in the interviews.
The interviewers' biases were exhibited in their
interviews and in their reporting of the interviews
An example illustrating how Fazio's bias may have
influenced his questions and his reporting of the
children's responses is the following: "I asked
Joseph if Big Joe potties in their mouths. Joseph
would just hang his head and not answer." The
wording of this response indicated that the
interviewer, pursuing a hypothesis of sexual abuse,
expected Joseph to confirm this allegation. Later, to
the Grand Jury, Fazio erroneously went from the
response to a claim that Joseph said Big Joe pottied
in all their mouths. So here is evidence that the
interviewer's bias influenced his recollection of the
child's response. This could have occurred other
times to, because his report of the interview was
written after the interview without the benefit of tape
recording. Another example of misrepresentation
-App J.110 -
in line with bias by interviewers in their reports to the
court: At the 115-10 testimony, Devall says Josh
said Joe tned to pull his tallywacker off, but
this statement does not appear in Devall's onginal
notes.
The interviewers used "peer pressure" to elicit
responses from the children
The way in which peer pressure was used was
perhaps unintentional: Devall's interview on 1/9/91]
at the children's home (the first interview of
Joseph and Joshua) was done with the children all
together. The children should have been interviewed
individually to prevent contamination by and
conformity to one child's story. According to
Devall's tesumony at 115-10: Initially in the
Interview the conversation was with Josh, then
Jeremy and Joseph confirmed. "I stared questioning
them initially about the physical abuse. Josh said Joe
his his tallywacker with a board, then I asked the
-App J.111 -
other children is that true, is that what happened and
they said yes, that's what happened." Clearly, the
children's accounts were influenced by each
other.
There is further evidence of the (deliberate) use of
peer pressure in the interview with Det. Fazio, when
he "told Jeremy that I know that Big Joe said that all
the kids hit and bite Joshua and asked why he would
not say that he did it" and when he "asked Joshua
why he wouldn't tell me that it occurred to him
(putung Joe's penis in his mouth) because the other
kids are telling me that it's happening to everybody."
The interviewers used direct specific leading
questions to get information from the children
When Devall was asked at 115-10 heanng, How
were the questions being asked? He replied, They
were just general questions--like What happened’?
Has anyone ever touched you in a bad way? And
then we related from there. I'm not sure what "and
-App J.112 -
then we related from there means, but! think what
happened was that they started with these open-
ended, general questions and then used more specific
direct--and leading questions.
We can infer the use of direct the use of direct
questions by Fazio's indication that children "denied"
certain things. There are numerous examples of
this in the reports:
e.g., Fazio's report of his first interview
with Jeremy: "Jeremy said when q
Joshua is tied up Big Joe hit's his
dick and also pulls on it. Then Big
Joe makes the other kids do it to
Josh. Jeremy denied that he did it to
Josh".
e.g., In second Fazio interview, "Jeremy
denied all sexual contact’ except for
one thing" (that Joe makes him touch
his penis with his hand). Jeremy
-App J.113 -
"denied" that Big Joe ever put his
mouth on Jeremy's private or that Big
Joe put his private in Jeremy's.
We can also infer that direct questions were asked of
the interviewers say the child confirmed, or agreed or
verified an allegation. There are examples of this in
the report:
e.g., Devall at 115-10 says Josh was
second interviewee with Fazio and he
"venfied almost everything Jeremy
had said, plus more."
e.g., Devall at the 91-J-2 hearing, "they
each ventied the tying of hands and
feet."
e.g., Devall at tnal: "Jeremy ventied that
Joe made them beat up Josh and bite
him."
We can infer that direct questions were asked if the
reporter points out that certain--other--responses
-App J.114 -
were spontaneous.
C.8..
Fazio to Grand Jury: Josh says that
Big Joe hits his tallywacker and
makes the other kids hit it. Makes the
kids play with Big Joe's tallywacker.
And then he started spontaneously
into a statement on how Big Joe rubs
his tallywacker real fast and then stuff
comes out.
There are statements in the reports that sound like
they must be responses to direct questions:
cC.Zg.,
Jeremy "said that Big Joe puts his
penis in Joshua's mouth and on his
butt. He said Big Joe puts his penis
on Krystal's butt." (These responses
sound like they are in response to
direct questions: Who else does Joe
do this do? or What does Big Joe do
-App J.115 -
to Josh, to Krystal?
e.g., "Then Joseph said that he bites
Krystal on the place that she
goes potty.” (This mention of biting
Krystal sounds like it was in response
to a direct, leading question, because
the preceding response "quoted" in
the report was not about Krystal or
biuing.)
There are examples of leading questions quoted in
: the reports:
e.g., "Lasked Joseph who else Big Joe
goes potty on." (Although this ts a
logical question, it is a leading
question because it implies that there
was someone else.) “Joseph said that
it was Krystal. ...
e.g., "I asked Joseph to tell me what else
e.g.,
€.B..
e.8..
-App J.116 -
Big Joe does with his tallywacker."
(rather than asking Does Big Joe do
anything else? this question is leading
because it suggests that Big Joe does
do something else.)
"| asked Joseph to tell whose
tallywacker Big Joe sucks.
Joseph said Big Hoe only sucks his
[Josh's] but Big Joe makes them suck
each others.
"Then asked Joseph to tell me what
Big Joe does to the other kids with
his penis." (Leading question--could
have asked does Big Joe do anything
to the other kids with his penis.)
Jeremy said Joe hangs Josh upside
down in their room on a piece of
wood. "] asked Jeremy what he
hangs him with and Jeremy said a
A Bek te ee, ee oe ee) Be Be ve —/_
-App J.117 -
piece of rope. I asked Jeremy how
many times. He said two time." But
maybe Joe didn't hang Josh with
anything--this is an example of a
leading/suggestive question.
We can also infer that direct, leading questions were
asked from the fact that other interviewers noted that
the children were not very forthcoming in their
Stories.
e.g., Dr. Sobolewski (1/9/91) at 115-10:
Josh was fairly quiet and submissive
and had a very flat affect and was not
very vocal about things that happened
to him unless specifically questioned.
When the interviewers used open-ended questions
the children were less likely to allege abuse
Sometimes the interviewer indicates clearly or
specifies that a question was open-ended (i.c., not
-App J.118 -
direct, leading). The answers to these questions are
critical because they are not subject to suggestbility.
The following are all the examples of open-ended
questions idenufied in the reports:
l.
tJ
Det. Fazio at beginning of first interview on
1/17/91 asks Jeremy to tell him what Big Joe
does to him: Jeremy says he ties them up
with wire (usually because Joshua stole
food). Jeremy does not spontaneously
mention sexual abuse in response to this
open-ended question.
In response to open-ended questions at
beginning of his first interview with Fazio,
Joseph described the beating.
Det. Fazio asked Joshua if he knew why he
had come to the station. He said it was
because Big Joe beats him and hurts his
tallywacker. (This sounds like it was a
spontaneous response, not suggested, but
-App J.119 -
it indicates physical abuse rather than sexual
abuse.) At the second interview, Det. Fazio
first asks Joshua to tell him what Big Joe
does to him. Joshua said that he hangs him
upside down when he is bad. (Despite fact he
has already seen the anatomical drawings,
Joshua still tells about hanging upside down
first.)
Det. Fazio asked Krystal to tell him about Big
Joe (open-ended questions). All she would
say 1s Big Joe beats me.
Dr. Sobolewski (1/9/91) at 115-10: notes
specifically that he tned to ask Josh open-
ended questions and that what Josh said was
that Joe pulled on his penis and tried to pull it
off and demonstrated repeated stroking
mouon.
Dr. Neal at 115-10: also notes he used very
open-ended questions and that what Josh said
-App J.120 -
was that Big Joe pulled on his penis, tned to
pull his penis off.
Over successive interviews, the children's stones
"pile up" sexual allegations
In his first interview with Fazio, Jeremy says only
that Big Joe hung Josh upside down, tied them up,
locked them tn their room, hit Josh's penis with
a board and pulled it, and made the other kids follow
suit; he does not mention any sexual acts. In his
second Fazio interview, "jeremy denied all
seXual contact except for one thing. He said Big Joe
makes him touch his penis with his hand." [one
sexual act has been mentioned] After several
months of therapy, (Glenda Hopper notes, 10/27/91)
Jeremy says Joe touched us in our private parts. He
tried to pull our penis off. He made us watch him
touch Josh's. He made white snot come out of his.
Sometimes he made us kiss his. Later, after more
therapy, Jeremy says Joe put his penis in his butt
-App J.121 -
(this had been explicitly denied at Fazio interview).
Here we see how Jeremy's allegations became more
sexual over ume. One possibility (held by therapists)
is that the child 1s finally able to talk about the sexua!
abuse he has experienced. The other possibility
(according to memory researchers) is that his story
has been colored by repeated exposure to sexual
accusations (by his brothers, implicit in interviewer's
questions, in conversations with foster parents and
therapists. )
A similar shift toward more sexual allegations 1s
evident in Susan Bellas's notes: After 6 months of
therapy, on 1/8/92, when she asked Jeremy what
he was going to say in court, he said he would say
Joe hanged him on the wall, spanked him with a belt,
whipped him with wire, didn't feed them, and his
mom should've told the cops. He mentions nothing
about sexual abuse. But 2 weeks later, just before
court, Jeremy said he will tell about Joe putting his
-App J.122 -
penis in brother;s caboose, making brother;s touch
his penis, wanting to pull his brother's penis off, and
putting his private in his brother's mouths. What
was the difference between the two sessions? Had
Jeremy met with lawyer to prepare for court or was
therapist asking more pointed questions about sexual
abuse’?
The interviewers used repeated questions
This 1s apparent in Fazio's report of his second
interview with Jeremy, when he "asked Jeremy again
if Big Joe did anything to him.” This ts the
only explicit mention of a repeated question--but
there were likely others as well.
The interviewers may have used a forceful style of
questioning
There is some indication that the interview by Fazio
might have been perceived by the children (at least
Jeremy) as somewhat forceful:
e.g., When Fazio asked Jeremy again 1!
-App J.123 -
Big Joe did anything to him, "Jeremy
would only put his head down on the
desk and refuse to talk." (Either
Jeremy is very upset and embarrassed
or Det. Fazio is intumidating, or
both. )
e.g., When asked if anything comes out of
Big Joe's penis, Jeremy again refused
to talk about it.
e.g., Fazioat 115-10: Did jeremy indicate
he knew what he was there for? (in
1/17 interview) Yes. What did he
indicate? That he had to tell me about
what Joe has done to them.
The interviews included subtle (implicit) suggestions
as well as explicit leading questions
The anatomical drawings, in particular, were
themselves suggestive. Use of anatomical drawings
at beginning of Fazio's interviews, starts the
-App J.124 -
children's interview off on a sexual theme. For the
boys, this occurred at the beginning of the second
interview; for Krystal, the anatomical drawings
were presented at the first interview. Fazio (at trial):
"Krystal was not really too willing to talk tome. In
reference to all the physical abuse and sexual abuse
she didn't disclose too much, so! went directly to the
anatomically correct drawings. | pointed to the penis
and said what ts this and she called it a wacker and
she identified three spots (vagina, buttocks, mouth)--
by drawing on them on a picture." Given the young
age of this child and her verbal immaturity, it 1s
unreasonable to think that she could withstand the
suggestion implicit in the drawings or that she has the
cognitive ability to respond to the task.
The interviewers did not create negative stereotypes
There is no evidence that the interviewers were
judgmental, created "demand characteristics,"
fostered a negative stereotype of the stepfather, or
-App J.125 -
created an atmosphere of accusation.
Information from transcnpts of the children's
tesumony
It is valuable to examine the children's responses in
the only transcnpts we have available--at tral. Their
ability to answer the |;lawyers' questions about
abusive behavior is probably a good clue to how they
answered the interviewers' questions. In fact,
inadequacies in their accounts would have been even
greater in the original interview, because they were
14 months younger at the time.
Jeremy at tnal (now age 8)
Jeremy 1s vague about what happened:
Did you ever see Big Joe's penis? | don't
remember.
Did you see Big Joe touch Joseph with his
penis? Y eah.
Where did you see him touch Joseph at? |
don't know that.
-App J.126 -
Did Big Joe ever make you touch him on his
privates? | don't remember.
Did you ever see Big Joe touch Krystal with
his privates? I don't know.
Joseph's tesumony at tnal (now age 7)
Joseph gives a completely unlikely sequence of
events, which indicates confabulation is occurnng--
i.e., he is putting things together that don't go
together:
What happened when he saw you sneaking
food? He made me suck his private.
He shows a lack of understanding of the question (or
the adult shows a lack of understanding of the
response)
Joseph, do you know how many times Big
Joe would touch you with his private parts?
Once.
For each time that he touched you? Yes.
-App J.127 -
[This is an unclear (and leading questions)--
what else could he say but yes?]
He shows the effect of repeating a question:
Joe, you said that you saw Big Joe put his
penis in Krystal's mouth.
Where did that happen? I don't remember.
Y ou don't remember what room that
happened in? No.
Did it occur at the trailer? No.
Where did it occur? Um behind Grandma's
house. [ He says he doesn't remember but
then answers anyway after the question is
asked again. ]
Josh at tnal (now age 5)
He shows confusion:
He doesn't recognize Joe in the courtroom.
He claims Paul lived in t he trailer.
He denies he got into trouble because of
food:
-App J.128 -
Did you ever get into trouble because of
food? No. (question should have been,
perhaps, for stealing food)
He shows that he is ready to answer any question
that 1s posed, even if the answer if fanciful:
How many times did he tie you up? Seven.
How many times did he hang you upside
down by your feet like that? Um, two.
Did [putting his pnvate part in your mouth]
happen more than one time? Um, he done it
three umes.
Here are answers that clearly demonstrate how the
children's estimate of numbers of occurrences of the
alleged acts should be distrusted completely.
When he hung you up, what happened? |,
um, fell on my head.
Where would he hit you when he hit you
with the paddle and the belt? On my foot.
-App J.129 -
How would he do that? Um, when Mom
wasn't there.
Okay. Where would your feet be? He was
stepping on them, and I couldn't get them up.
Here are some examples of Josh's glib-preposterous-
-answers.
Did he ever make you do like jumping jacks
and things like that to punish you? Um, no.
Do you know what a jumping jack is? Um,
no.
Here Josh demonstrates his willingness to answer
questions even if he doesn't understand the question.
He also shows his willingness to go along with the
questions even if he doesn't know the answer:
Josh, didn't you just tell Teena a few minutes
ago that you didn't remember or know if Big
Joe put his penis in your bottom? Um,
yes.
~-
-App J. 130 -
Y ou couldn't remember it then, but you can
remember it now when she asked you about
it? Yeah.
He denies previously alleged abuse:
Did he do anything while you were hanging
there upside down? No.
Did Big Joe do anything else to hurt you?
Um, no.
Did he ever make them (his brothers) bite
you? [leading\ Y eah.
How would he do that? He would bite--he
would make them bite me on the leg.
Did he make them bite you anywhere else?
No.
Did Big Joe ever make anybody else hurt
you? He, um, he ted my hands to my back,
and then he stands me in the corner, and he
made my brothers throw a hard ball at my
-App J.131 -
back. Did that hurt you? Yes.
The only sexual abuse he testifies to is Joe touched
his penis and made him touch his penis:
Joshua, did Big Joe ever touch your private
parts? Yes.
And what did he touch them with? Um, his
hand.
What would he do with his hand? He would
pull on it, my private.
Did he touch you anywhere else on you
privates? No.
With his hands? On my butt.
How did he touch your butt? With his hand.
What would he do there? He wouldn't do
anything except touch it.
What about his private part, he he touch you
with that? Um, no.
He never put that on you? No.
Okay, what did he do with his private part?
-App J.132 -
He, um, made me touch it.
And how would he make you touch it? With
my hand.
What did he make you do with your hand?
He would make me pull on it.
Conclusions about children's reports
Jeremy: In the first interview with Fazio,
Jeremy indicates only that his
stepfather is physically abusive. In
the the second interview with Fazio
(which ts at least the fifth interview--
formal or informal--that we know
about and which occurs 3
weeks after the initia! report and after
the stress of being removed from the
home and placed in foster care),
Jeremy also indicates that Big Joe puts his
penis on Joseph's mouth and butt. There is
evidence of leading questions, repeated
-App J.133 -
questions, pursuit of a single hypothesis (of
abuse), and use of peer pressure in the
interviews with Jeremy. At the tral, Jeremy
testifies that Joe touched the children's
penises and bottoms and that he touched
Josh's bottom and mouth with his penis. He
does not remember any other sexual
allegations. Several people indicate Jeremy
was reluctant to talk. The assumption is that
he was covering up and that it took time for
him to "disclose" abuse. There is also a
possibility that he had nothing to say early on
because the alleged acts had not occurred and
that later he had incorporated the direct or
indirect suggestions of the interviewers and
counselor.
- Joseph:There 1s clear evidence that Joseph was asked
direct, leading questions in the first interview
with Det. Fazio, and there is a suggestion in
-App J.134 -
this testimony that he could have been
influenced by such questions. This may have
lead to elaboration and increased allegations
of sexual abuse. However, there is also
evidence suggesting that on two issues
Joseph answered spontaneously: Specifically
he volunteers that Big Joe made the boys bite
Joshua's penis ("tallywacker") and that he
ejaculated ("goes potty") on Joshua.
Joseph's statement that Big Joe made the
children put his penis in their mouths also
appears not to be the result of any direct,
immediate preceding suggestions. I would
not place much weight in the other allegations
in this or the subsequent interview because of
the possibility that many suggestions had
been made by the time that interview was
conducted.
-App J.135 -
Joshua:It is difficult to know whether what Joshua
is describing early on (to the nurse, Mr.
Devall, the foster mother, and Det. Fazio) is
sexual abuse or simply physical abuse. He
talks about Big Joe hitting his penis, pulling
on it, and having the other kids bite and hit it.
Only if the observers accurately interpret the
"pulling" Joshua is descnbing or
demonstrating as sexual nature, does Joshua
indicate sexual abuse before any leading or
suggestive questions. It is also not clear
whether leading or suggestive questions were
asked to get Joshua to say that Big Joe makes
all the children masturbate him (Big Joe) or
perform oral sex on him. One can infer that
leading questions and some pressure were
used in the interviews with Fazio, and
Joshua's trial testimony clearly demonstrates
-App J.136 -
his willingness to go along with direct
questions, even to the point of giving
preposterous responses.
Krystal:This child is very young. In the interview
lasing 30-40 minutes, all she spontaneously
offers is that her stepfather beats her. |
would not place much weight in the fact that
she pointed to the private parts on the
drawings. The drawings are themselves
"suggestive."
Observed problem behavior of children
Despite the fact that questions can be raised about the
children's verbal testimony, there is evidence that the
children's behavior is disturbed. Several of these
disturbed behaviors are related to the allegations of
physical behavior:
9/5/91 Jeremy's foster dad concerned
because he steals candy and is not fazed by
consequences. So there rally is a problem
-App J.137 -
with stealing food.
3/1/91 Joseph's foster mom notes he looked
terrified when she came in and he was getting
chips out of the bag. So it looks like the kids
really were punished for taking food.
6/14/91 observed that when she reached up to
push hair out of his face, Joseph jerked back,
though she was going to hit him. This
supports the charge that the children were
used to being hit.
There are also a number of disturbing behavioral
observations that demonstrate that the children are
highly sexualized, have been exposed to sexual acts:
Children use "baby language" to describe sexual acts
(indicating they have not just been told about these
things(or influenced by suggestive questioning):
e.g., Fazio interview "I asked
Joseph to tell me what else
happens when Big Joe's
-App J.138 -
tallywacker. Joseph said
that Big Joe plays with it and
then it sticks up. Then after it
sticks up he goes potty on
Joshua." ("going potty” is not
the way an adult would
describe ejaculation.)
e.g., semen is described as looking
like white snot, snow, the sky
Joseph was a chronic bed wetter (this is not
proof of sexual abuse, but it is not inconsistent with
it.)
Joseph and Josh acted out sex scenes in the
bathroom, played with themselves in front of foster
parents, acted out sex scenes with
stuffed animals.
Joseph pulled on the other little boys'
privates at school, touched other boys' penises and
butts at school. Joshua "demonstrated" for the ER
-App J.139 -
staff what Big Joe did: tried to pull his penis off:
pulled back and forth on his penis as to ejaculate.
Krystal masturbated, danced provocatively:
you put your butt by my butt (crotch).
Motivation
There is ample evidence in testimony by Bellas and
Devail that the children were angry at Joe, even hated
him. They also indicate that they with they
were with their real dad (who, according to Bellas
notes 8/6/91, was back together with Sherry--or is
this wishful thinking by Jeremy?) Itis common
reaction for children to dislike a stepparent. They
resent the intrusion and reduced contact with the
biological parent. Thus there is good motivation
for the children to go along with or make negative
statements about Joe. Nevertheless, it 1s also
common for stepparents to abuse their children.
Recent research reveals that the rate of physical abuse
by stepparents is 7 times higher than genetic parents,
-App J.140 -
and rate of fatal abuse is 100 times greater. (82% of
the murdered stepchildren were beaten to death Daly
& Wilson 1996).
Alternative explanations for sexual abuse
It is possible that sexual abuse started earlier with
Paul.
It is possible that suggestions about sexual abuse has
been planted in the children's minds before the case
came to light. Sherry, at trial, testified that Jeremy
told her that (uncle) Johnny wanted him to tell his
teacher that Big Joe was sucking on his tallywacker.
It is possible that the children were sexually abusing
each other. Josh and Joseph were together in foster
care after 10/27 and this preceded their sexual
acting out. One year after placement and therapy,
Krystal returned form a visit with mother,
grandmother, grandfather, and brothers with a red
vagina.
-App J.141 --
CONCLUSION ABOUT PHYSICAL
ABUSE
The following are my conclusions about the
likelihood of each of the physical abuse charges
based on close examination of Devall/Fazio reports
and testimony and testimony by Joe , Sherry, and the
children.
Beating the children
It seems clear that Joe punished the boys by hitting
them with a belt anda 2x4 "paddle" (as well as with
his hand and perhaps with a TV wire). The bruises
on the children were probably from the belt. But
there 1s no indication that Joe deliberately hit the
children with the belt buckle. That he hit the children
too much Is suggested by Sherry's testimony and
how own belief that "excessive corporal punishment"
means "beating the kids to the point where you won't
stop or they get severely injured." The children may
-App J.142 -
overuse the word "beat", but Joe undoubtedly
overused the belt. Jeremy may not know what has
caused the bruise on his back; it could be that he
was hit with a belt but also sustained injury when he
fell down the stairs (as Joe claims).
Hitting Josh's penis with a board
I suspect that Joe may really have hit Josh's penis
with the paddle. This is the first thing Josh says at
Devall's interview with the three boys; it precedes
any biased interviewing about sexual abuse. But it
may have happened only on one occasion (the night
before the first interview), and it may have been an
accident. The reports by Fazio and Devall make it
sound as if the behavior is habitual, but | see no
evidence of that in the children's stories.
Throwing Josh across the room
When the throwing incident occurred, Joe was
angry: it had been a bad day; Josh was
"disobedient" and then he peed all over Joe and Joe
-App J.143 --
and Sherry's bed. Joe swore at Josh (Get the fuck
out...) and told him to get out of the room. He
removed him from his wet lap and bed--undoubtedly
with some force. Did Joe "pick Josh up and throw
him across the room" like a football? This is unlikely.
Joseph says he threw him on the floor. Jeremy
just says he threw him--and that he was immediately
sorry and attended to Josh's cut chin. But Jeremy
also mentions that Joe and Sherry untied Josh's
hands and untied feet after he fell--so if he had his
hand and feet tied no wander he fell. Josh himself
might not know exactly what had happened to him; it
might have felt as if he was "thrown" even if he just
slipped or tnpped and flew forward onto his face
(especially if he got a push to begin with and had his
hands and feet tied). | suspect Joe probably did
give him a push, even if it was unintentional. Joe
was a full-grown man, Josh was just a little child,
and Joe was pissed (on). If Joe was in the habit
_ -App J.144 -
of picking the kids up and heaving them across the
room, there should have been physical evidence of
other scars or fractures.
Tying the children up
I think Joe did tie the kids’ hands together--again,
perhaps as a way of controlling them. He may also
have tied their feet together. He likely tied
hands behind their backs. He may have tied them up
when Sherry was out of the house and he was
having trouble controlling the passel of young
kids. Consistent with what Jeremy said at trial, he
probably did not tie them up in order to spank them--
it would have not have been necessary; they
were just little kids. Joe claims he did not tie the
children's hands for punishment. I doubt that he tied
their hands and feet together behind their backs and
hung them up and beat them. The tying up was
inappropriate, but it may not have been part of a
sadistic torture routine as seems to be suggested (by
-App J.145 -
Nurse Station, Fazio and Devall).
Hanging upside down
In the trial, Jeremy corroborates Sherry's claim that
hanging Josh from the rafter was done in fun.
Unfortunately it was not fun for Josh-- but Joe was
being playful. Fazio's description of the children as
naked and hung up by their feet with rope while they
were interrogated is ill founded. He has put
together a scenario from fragments: Jeremy (in
Fazio's report of interview) did say (possibly in
response to leading questions) that (a) the children
were tied up and (b) Josh was hung up, but there is
no indication that these were at the same time. His
mention of rope was in response to a leading
question. In Fazio's report of his interviews with
Josh and Joseph, it looks as if Joe threw Josh across
the room cutting his chin, and then he stripped Josh
and then he hung him upside down, and then he had
the other kids beat him. This sequence of events is
-App J.146 -
unlikely; all the other accounts says that Joe and
Sherry attended to Josh's cut as soon as it happened.
Josh's testimony at the trial indicated how he
exaggerates or makes things up:
e.g., Joe hung him up and fell on his
head! (Note Dr. Sobolewski's
comment about Josh that "The child
was not very vocal about things that
happened to him unless specifically
questioned.") I don;t think Josh can
give a coherent account of sequence
of events as Fazio's use of the word
"then" implies (and Joseph was
questioned after Fazio already had
interviewed Josh).
At the trial, when Joseph says Joe hung Josh up "to
torture him"--he does not mean it literally. He mean
(I think ) that Joe was teasing Josh (cruelty,perhaps).
-App J.147 -
"Peer pressure"
Joe admits that he used the children to punish each
other (Navy style). Josh had child-mouth-sized bite
marks on his stomach. So even though Jeremy
and Joseph both deny making the marks themselves,
one can only infer that one or both of them did bite
Josh. And although Joseph was inconsistent
about whether it was Josh or Jeremy that Joe made
bite him, he did not deny that biting happened.
Whether Joe ordered them to do so or merely
allowed them to do so is not important. Either way,
this constitutes inappropniate and abusive discipline.
In general, evidence that Joe disciplined the children
inappropriately is clear. The children were hit so
hard (with a belt or a board) they had bruises.
They were punished by being kept in their rooms,
lying on the floor, for hours (Sherry, 91-J-2). They
were encouraged to hit and hurt the other.
Nevertheless, the portrait of Joe as a sadistic torturer
-App J.148 -
does not ring true. This man was undoubtedly
overwhelmed and out of control. He was ill-
prepared for his role as father of five young children
under 8 years, children who, except for the baby,
were not his. The children resented his presence
and authority (e.g., in first interview with devall, all
the children stated that they wished they were with
their real dad. Later, Josh claimed that Joe
didn't feed him because he hates him). The family
was living in a cramped and inadequate quarters. His
wife was pregnant and both parents were
working all the time to try to make ends meet. The
task of managing the children often fell on Joe,
whose experience in discipline came from the
Navy, and whose ideas about how to control
children were simply misguided, as evident in his
belief that "excessive punishment" is beating
the kid to the point where you won't stop or they get
severely injured.
-App J.149 -
Given the inadequacy of the environment and Joe's
competence as a parent, it may have been in the
children's best interest to spend some time in foster
care until Joe could learn more effective and humane
disciplinary strategies and until the physical
environment of the home was improved.
It is my opinion that the overall description of
sadistic abuse that was gleaned from the children's
answers to questions in Devall's and Fazio's
interviews is inaccurate. | believe that the
investigators took the children's answers to their
questions at face value and pasted them together into
a worse-than-reality picture.
The children--especially Josh-- were very young.
Their view of the world was probably somewhat
distorted by their life experiences. Their lives were
chaotic and crowded and in many ways unpleasant.
They undoubtedly were punished severely and
-App J.150 -
inappropriately (in fact, there were other people, like
Uncle John, who also apparently punished them). In
their view they were "beaten"-- even if Joe and
Sherry prefer to call it "spanking" But I doubt that
Joe deliberately threw the children across the room or
that he bound and hung them from the ceiling,
unclothed, while he beat them witha _ belt, a wire, or
a stick. This is a scenano created by adults on the
basis of the children's responses to questioning.
Unfortunately we do not have verbatim transcripts of
the children's interviews. All we have is a verbatim
account of the children's testimony at tnal. In the
trial transcripts we see Josh's lack of maturity and
lack of understanding--and this is when he is a year
older than he was at the time of the initial interviews.
Josh claims 1on the trial that Joe just tied him up and
left him, that it happened seven tmes,m that he fell
on his head when he was hung up, that Joe hit with
the paddle and belt on his foot, when he was
-App J.151 -
stepping on them. These are new)and ludicrous)
claims. Josh's lack of understanding is illustrated in
his response to the question--"Did you ever
get into trouble because of food? No." He doesn't
understand the question--which should hav
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