In re N.G., 2018 IL 121939

Background

N.G. born 2011; DCFS petitioned and child became a ward. DCFS sought termination of Floyd F.’s parental rights so maternal grandmother could adopt.
DCFS ultimately relied on Adoption Act §1(D)(i) — a rebuttable presumption of “depravity” if a parent has at least three felony convictions, one within five years of the termination petition.
DCFS introduced three felony convictions for Floyd (2008 AUUW; 2009 unlawful use of a weapon by a felon; 2011 armed habitual criminal); the trial court found Floyd depraved and terminated his parental rights.
One predicate conviction (2008 AUUW) rested on a statutory subsection later held facially unconstitutional in People v. Aguilar (invalid under the Second Amendment).
The appellate court took judicial notice of the 2008 criminal record, concluded the AUUW conviction was void under Aguilar, vacated it, reversed the unfitness/best-interest findings, and remanded. The Illinois Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument (DCFS / State)	Defendant's Argument (Floyd)	Held
May a conviction based on a statute later declared facially unconstitutional be used to establish the §1(D)(i) depravity presumption in a parental-termination proceeding?	The conviction remains admissible unless formally vacated; McFadden permits use of an undisturbed prior felony to establish a disqualifying status.	A conviction under a statute found facially unconstitutional is void ab initio and cannot be used in any subsequent proceeding to deprive fundamental parental rights.	A conviction based on a facially unconstitutional statute is void and cannot be used to trigger the depravity presumption; Floyd’s 2008 AUUW conviction could not support termination.
Is an appeal from a parental-termination judgment a permissible forum to challenge and obtain vacatur of a prior criminal conviction that is void ab initio?	Challenge should be raised in a proper collateral proceeding; appellate vacatur here was procedurally improper.	A void judgment may be attacked at any time in any proceeding affecting rights asserted; courts have a duty to ignore/ vacate void convictions.	A collateral challenge in the termination case was permissible; courts must treat convictions under facially invalid statutes as nonexistent and may vacate them when the issue is properly raised.
Does People v. McFadden control, allowing use of an undisturbed unconstitutional prior conviction to establish predicate status for later offenses?	McFadden allows recognition of an extant undisturbed felony conviction to establish status for subsequent offenses.	McFadden is distinguishable and conflicted with U.S. Supreme Court precedent (Montgomery, etc.); it cannot justify terminating parental rights based on a void conviction.	McFadden is overruled to the extent it conflicts with Supreme Court authority; it does not permit using void convictions to terminate parental rights.
Were procedural forfeiture and finality objections sufficient to bar Floyd’s challenge to the 2008 conviction on appeal?	Forfeiture and finality bar relief because Floyd did not seek vacatur earlier.	Forfeiture inapplicable to void judgments; the supremacy clause and precedent require courts to give full retroactive effect to substantive constitutional rulings.	Forfeiture and finality do not prevent collateral attack on a conviction that is void ab initio; such challenges are not subject to ordinary procedural bars.

Key Cases Cited

People v. Aguilar, 2013 IL 112116 (Ill. 2013) (held portions of the AUUW statute facially unconstitutional under the Second Amendment)
People v. McFadden, 2016 IL 117424 (Ill. 2016) (addressed use of an undisturbed prior firearms conviction as predicate for subsequent UUWF charge; court’s reasoning limited by this opinion)
Montgomery v. Louisiana, 577 U.S. _, 136 S. Ct. 718 (U.S. 2016) (federal rule that a statute declared facially unconstitutional must be given full retroactive effect; convictions under such statutes are void)
Ex parte Siebold, 100 U.S. 371 (U.S. 1880) (longstanding principle that convictions under a facially invalid statute are void and as if the law never existed)
Lewis v. United States, 445 U.S. 55 (U.S. 1980) (held for the federal felon-in-possession statute that an extant undisturbed prior conviction can satisfy a statutory predicate; distinguished in this case)
Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (recognizes parental rights as a fundamental liberty interest protected by Due Process)