# Petition for Writ of Certiorari — Deerwester v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0773%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 528 U.S. 811 ## Text 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 ’ | ‘ 4 q ' | j ] ) Se eaten, eee Oe TF. 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 1/10/9 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0773%3A1. Public record. Not legal advice.