In re N.G.
2017 IL App (3d) 160277
Ill. App. Ct.2017Background
- Minor N.G. adjudicated neglected in 2012; DCFS given guardianship and respondent father (Floyd F.) found unfit.
- In 2016 the State sought termination of Floyd’s parental rights based on a presumption of depravity under the Adoption Act predicated on three Illinois felony convictions (2008, 2009, 2011).
- At the termination hearing the State introduced certified copies of the three convictions; defense objected to admission of the 2008 conviction because the statute under which it was prosecuted was later held facially unconstitutional (People v. Aguilar).
- The trial court admitted the 2008 conviction over objection and found Floyd depraved; best-interest hearing followed and parental rights were terminated.
- On appeal the record was supplemented with Will County criminal-court documents showing Floyd pled guilty in 2008 under the specific statutory subsection later invalidated in Aguilar.
- The appellate court concluded the 2008 conviction was void ab initio, vacated it for purposes of the civil proceeding, reversed the unfitness and best-interest findings, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2008 aggravated-unlawful-use conviction can be counted to establish the Adoption Act depravity presumption | State: All three convictions on the record satisfy 750 ILCS 50/1(D)(i) so depravity presumption stands | Floyd: The 2008 conviction is a nullity because it was obtained under a statutory subsection later declared facially unconstitutional (Aguilar) and therefore cannot be used | Court: 2008 conviction is void ab initio and cannot be used to establish depravity; unfitness and termination reversed and remanded |
| Whether an appellate court in a collateral civil proceeding may recognize and vacate a prior criminal conviction that is void ab initio without the criminal vacatur having occurred | State: Forfeiture and procedural limits bar collateral attack here; convictions must be vacated by direct appeal or collateral attack in criminal case | Floyd: Void-ab-initio convictions may be challenged at any time and in any court; appellate court can act to prevent fundamental liberty deprivation | Court: Following Illinois precedent, a conviction based on a statute declared facially unconstitutional is void ab initio and may be treated as null in this collateral proceeding; appellate court may vacate for purposes of the case |
| Whether the State forfeited reliance on the 2008 conviction because defendant did not raise the Aguilar argument earlier | State: Claim forfeited by failure to raise in trial court and on initial appeal | Floyd: Void-ab-initio challenges are not subject to forfeiture and may be raised at any time | Court: Forfeiture argument rejected — void-ab-initio doctrine permits challenge at any time; court exercised authority to vacate conviction in interest of avoiding unjust deprivation of parental rights |
Key Cases Cited
- People v. Aguilar, 2013 IL 112116 (Illinois Supreme Court decision holding specified subsections of the aggravated unlawful use of a weapon statute facially unconstitutional)
- People v. McFadden, 2016 IL 117424 (discusses limits on treating prior convictions predicated on subsequently-invalidated statutes and scope of collateral relief)
- People v. Castleberry, 2015 IL 116916 (abrogating the ‘‘void sentence’’ rule and clarifying voidness doctrines)
- People v. Thompson (Ernest Thompson), 209 Ill. 2d 19 (recognizes that void judgments may be attacked at any time and courts have duty to declare void orders unenforceable)
- People v. Thompson (Dennis Thompson), 2015 IL 118151 (summarizes categories of voidness and procedural consequences)