Opinion
5-23-1240
05-17-2024
In re ADOPTION OF SCHOLES J.R., a Minor v. Brian Scholes, Respondent-Appellee. Emily Vespie, Petitioner-Appellant,
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Fayette County. No. 20-AD-8 Honorable Martin W. Siemer, Judge, presiding.
JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Vaughan and Justice McHaney concurred in the judgment.
ORDER
BARBERIS JUSTICE
¶ 1 Held: We affirm the circuit court's judgment denying Emily's petition for adoption, where the court's determination that Emily failed to establish Brian's unfitness was not against the manifest weight of the evidence.
¶ 2 Petitioner, Emily Vespie, appeals from the judgment of the circuit court of Fayette County finding respondent, Brian Scholes, fit to parent their minor child, J.R.S.
¶ 3 This is an accelerated appeal under Illinois Supreme Court Rule 311(a) (eff. July 1, 2018). Under Rule 311(a)(5), this court is required to issue a decision within 150 days after the filing of the notice of appeal, except for good cause shown. Ill. S.Ct. R. 311(a)(5) (eff. July 1, 2018). Here, Emily filed a timely notice of appeal on November 28, 2023. Following multiple motions for extensions of time by Emily, Emily filed her opening brief on March 20, 2024. This court then granted Brian's motion for extension of time, allowing Brian to file his responsive brief on or before April 24, 2024, with Emily's reply brief due on or before May 1, 2024. Brian filed his responsive brief on April 23, 2024. Emily then filed a motion for extension of time, requesting a due date of May 8, 2024, which this court allowed. Emily did not file a reply brief on or before May 8, 2024. Our decision was due on or before April 26, 2024. We, however, find good cause exists to issue our disposition after the 150 days. Accordingly, we issue our disposition as follows.
¶ 4 I. Background
¶ 5 The parties never married. On September 12, 2017, their son, J.R.S., was born.
¶ 6 On November 2, 2020, Emily, along with her mother and J.R.S.' s grandmother, Anita Belle Vespie, filed a petition for adoption of J.R.S. The petition requested that the circuit court find Brian an unfit person to parent J.R.S., terminate Brian's parental rights to J.R.S., and enter an order of adoption in favor of Emily and Anita. The petition alleged that Brian (1) had not seen the minor child since January 2020; (2) deserted the minor child for a period of time since March 2017 to present day; (3) failed to maintain a reasonable degree of interest in the minor child; (4) failed to show concern or responsibility as to the minor child's welfare; (5) failed to pay child support; and (6) was depraved with 15 felony convictions and numerous periods of incarceration. Shortly thereafter in December 2020, Brian filed a petition to establish parentage and request visitation.
¶ 7 On March 11, 2021, Emily and Anita served Brian with a request to admit facts pertaining to Brian's felony convictions. Brian failed to respond. Shortly thereafter, in April 2021, Emily secured an order of protection against Brian in Sangamon County, Illinois.
¶ 8 On July 16, 2021, Emily and Anita filed a motion for summary judgment. The circuit court scheduled a hearing on the motion for July 19, 2021, at which time the court denied the motion.
¶ 9 On May 3, 2022, the circuit court held a hearing on the petition to adopt J.R.S. Emily appeared with counsel, and Brian appeared pro se. Judge Allan Lolie presided over the hearing. Prior to testimony, the court indicated that the hearing focused on Brian's fitness. The following testimony was adduced.
On February 7, 2022, Brian's attorney filed a motion for leave to withdraw, claiming Brian failed to cooperate and maintain contact with counsel. Following a hearing, the circuit court granted the motion.
¶ 10 Emily testified to the following. Emily, the biological mother and sole and exclusive custodian of J.R.S., held a position as a caseworker for the Illinois Department of Human Services. Emily lived in the same residence with her mother, Anita, whom she desired to share custody of J.R.S. In February 2020, Emily facilitated a visit between Brian and J.R.S. while Brian was incarcerated in prison. Brian was released from prison in June or July 2021; however, Brian last saw J.R.S. in February 2020. According to Emily, Brian paid less than $300 total in child support since J.R.S.'s birth.
¶ 11 Emily testified that Brian requested visitation with J.R.S. on weekends in Vandalia, Illinois. Emily, however, expressed concern about Brian's drug use and his social circle in Vandalia. Emily testified that the State charged Brian with possession of methamphetamine in Fayette County, Illinois, after Emily filed the petition for adoption. Emily also testified that Brian interacted with J.R.S. a total of 20 to 30 times from September 2017 to March 2020. Following Emily's testimony, the circuit court noted that Emily had an order of protection in Sangamon County, prohibiting Brian from contacting the minor child.
¶ 12 Brian testified to the following. Brian lived with his aunt in Vandalia. Brian admitted that he had a pending charge for possession of a controlled substance and acknowledged that he had approximately 15 felonies in three counties. Brian admitted that he spent 15 years of his life incarcerated in the Illinois Department of Corrections (IDOC). Brian also acknowledged that he spent two years of J.R.S.'s life in prison. Brian admitted that he last saw J.R.S. in February or March 2020 but "not by choice." Brian testified that he provided Emily with "probably a thousand" dollars in child support over the course of J.R.S.'s life.
¶ 13 Following direct examination by Emily's counsel, the circuit court questioned Brian. Brian testified that he met Emily during a prior incarceration in IDOC. Brian claimed that Emily allowed him and the minor child to engage in "video chats and stuff like that" until Brian ended the relationship with Emily. Shortly after this, Brian received an order of protection for reasons unknown to him. Following Brian's testimony, counsel for Emily recalled Emily on rebuttal.
¶ 14 On rebuttal, Emily clarified that, although Brian was released from prison in June 2020, she sought an order of protection in May 2021, following an incident in April 2021 involving Emily's vehicle. The following colloquy took place regarding the April incident:
"THE COURT: What happened in April?
THE WITNESS: [Brian] sent a text-and there was nothing threatening in the text, but he wasn't happy. I'd have to pull up the text to see exactly what it entailed. But two days later I'm driving to work my usual route; I'd already dropped my son off at daycare, and the back window-something was either shot, thrown at it, but it completely shattered. It was a horrific boom and the window completely shattered in the back passenger window. I have some reason to believe-I couldn't prove it, but given his history and things he said to me in the past when he's been angry, high on drugs, I had reason to believe that could very potentially be from him.
* * *
THE COURT: So[,] a judge gave you an order of protection because you thought he might have broken out your window?
THE WITNESS: It wasn't based on that. It was based on threats in the past. He threatened to kill me and my family.
THE COURT: Wow. Sangamon County must have a different standard[ ] than we do in the Fourth Circuit."
¶ 15 According to Emily, locating Brian was difficult, thus, Brian did not receive notice of the order of protection until September 2021. After hearing the testimony, the circuit court took the matter under advisement.
The record does not include a written order or docket entry from this hearing. In July 2022, the circuit court reassigned the case to Judge Martin Siemer.
¶ 16 On October 10, 2023, the circuit court held a fitness hearing on the original petition for adoption of J.R.S. Both parties were present and represented by counsel. Judge Martin Siemer presided over the hearing. The following evidence was adduced.
¶ 17 Emily testified to the following. Emily, the sole provider and custodian of the minor child, testified that Brian visited with J.R.S. on the weekends 15 to 20 times from September 2017 until October 2018. According to Emily, she wanted her son to have a father, so she drove J.R.S. from Buffalo, Illinois, to Vandalia to visit Brian. On one occasion, Brian received a ride to meet Emily and J.R.S. for a visit. In October 2018, Brian returned to prison. Emily had "some" contact with Brian during his incarceration from October 2018 to June or July 2020. She spoke to Brian on the phone a few times and also brought J.R.S. to see Brian in prison on two occasions. Brian did not provide Emily regular child support, although he reimbursed her approximately $1000 over the course of J.R.S.'s life.
¶ 18 After Brian's release from prison in June or July 2020, Emily "tried [to keep the relationship going] because I had a son, but no, it was not a good relationship; it was volatile, he wasn't reliable, there was no support provided. He would be gone for a week and then he'd pop back up." Emily, however, had additional concerns with Brian spending time with J.R.S. in Vandalia because of "[t]he friends he has and the company he keeps, the drugs." Shortly after Brian's release, Emily talked to Brian a few times over Skype, realizing that "things weren't going to be great. He was going to be hateful and wanting to take [J.R.S.] to Vandalia." In April 2021, Emily secured an order of protection against Brian, prohibiting any contact between Brian and J.R.S.
¶ 19 On cross-examination, Emily testified that Brian maintained contact with her about J.R.S. while incarcerated. Brian asked about the minor child, and Emily visited Brian two times in prison with the minor child. The last visit in prison took place in January 2020. While incarcerated, Brian sent Emily some money for child support. After his release in June 2020, Brian requested contact with J.R.S. Brian had contact with J.R.S. via Skype on two occasions during the summer of 2020. Although Brian requested to see J.R.S., Emily testified that Brian "was getting hateful *** about spending time with the child, and he didn't want me there, he wanted [J.R.S.] dropped off at the hotel, things I didn't feel comfortable with for good reasons." Emily decided to terminate all contact by requesting an order of protection because Brian "decided he was not going to go forth with anger management, any counseling as previously] discussed."
Emily testified that she supervised visits at a nearby hotel, per her prior attorney's recommendation.
¶ 20 Brian's attorney called Timothy Davis, a probation officer for drug court in Fayette County, who testified to the following. Davis oversaw Brian's involvement in drug court since February 2023. At the time of the hearing, Brian had obtained employment in Effingham, Illinois, secured a residence in Fayette County, and was "doing pretty well" in Fayette County's five-phase drug court program, noting that Brian likely had 15 months left before he would successfully complete the program. According to Davis, Brian did not have any positive tests since starting the program, "had minimal issues with requirements, he's had minimal sanctions. He's completed various groups and *** shown a major change in attitude ***." Brian also completed a parenting class and did not lash out when Davis imposed sanctions on Brian during the program. Davis believed Brian made good progress in the program to date.
¶ 21 On cross-examination, Davis testified that the State charged Brian with several felonies after Emily filed the petition for adoption. Specifically, a 2021 controlled substance felony charge, a 2022 burglary and theft charge, and a 2023 criminal felony charge for possession of methamphetamine. Brian's attorney objected, arguing that the charges were not convictions, thus, the circuit court should not consider these charges for depravity purposes. After hearing argument by the parties, the court overruled Brian's attorney's objection, finding the 2021, 2022, and 2023 charges relevant to the proceedings because "[t]he focus of the testimony is drug court participation." The court further stated: "As far as additional use of those offenses on allegations of depravity, I'll determine what weight to give that when I review the case as a whole." Davis testified that Brian's 2023 criminal felony charge triggered Brian's participation in drug court. Davis clarified that Brian did not hold a valid driver's license but had been employed for the past three months, attended weekly or bi-weekly substance abuse counseling, completed anger management classes, and participated in therapy.
¶ 22 Next, Brian's attorney called Wyatt Carter, a mental health treatment provider for drug court in Fayette County, who testified to the following. Carter provided substance abuse counseling to Brian since February 2023. According to Carter, Brian's overall attitude improved since he started the program. On cross-examination, Carter testified that Brian provided three "dilutes" from February to April 2023. Carter explained that a diluted drug test indicated too much water content to provide an accurate drug test sample. On redirect examination, Carter clarified that he was unaware of the cause of the diluted test, which could have been the result of drinking too much coffee in a day. On recross-examination, Carter clarified that because he could not determine intent to dilute the drug tests. Carter indicated that he sanctioned Brian three times and on the third sanction, Brian spent the weekend in jail.
¶ 23 Lastly, Brian's attorney called Brian to testify. Brian testified that he maintained contact with J.R.S. while incarcerated from 2018 to 2020. After his release, Brian maintained contact with J.R.S. and engaged with him through video until August 2020 when Emily abruptly stopped answering his calls and text messages. Brian confirmed that he completed a parenting class, attended anger management, and obtained employment. Brian expressed a desire to have contact with his son. Brian felt committed to staying sober. On cross-examination, Brian admitted that he failed to pay Emily child support since his release from prison in 2020. Brian admitted that his last in-person visit with J.R.S. took place in 2018, but "not by choice." Following Brian's testimony, the circuit court continued the fitness hearing to October 30, 2023.
¶ 24 On October 30, 2023, the circuit court continued the fitness hearing on the petition for adoption of J.R.S. Emily testified similarly to her October 10, 2023, testimony. On cross-examination, Emily admitted that she did not file a petition requesting child support from Brian. The parties presented closing arguments.
¶ 25 Emily's counsel argued that the evidence supported a finding of unfitness. Counsel argued that Brian had multiple felony convictions in multiple counties spanning most of his adult life, failed to pay Emily child support, and "had on the high end 16 visits" with the child, none of which occurred recently. Counsel asked that the circuit court find Brian unfit.
¶ 26 Next, Brian's counsel argued that, although the evidence demonstrated Brian's depravity, Brian rebutted that presumption by showing rehabilitation evidence. Specifically, counsel argued that the testimonies of Davis and Carter demonstrated that Brian "is being rehabilitated and has been rehabilitated and is doing a good job in drug court ***. He is also showing that he's taking this seriously and he's having a good attitude about it[,] and he is actually trying." Counsel highlighted that Brian secured employment and a stable home, attended parenting classes, and had negative drug tests. Counsel also argued that Brian maintained contact with Emily and J.R.S. and also sent Emily some child support payments while incarcerated. Emily, however, abruptly ended video visitation between Brian and J.R.S., despite Brian's attempt to connect with his son. As a result, Brian hired an attorney, demonstrating his desire to have a relationship with J.R.S. Counsel argued that Emily failed to establish by clear and convincing evidence that Brian was unfit.
¶ 27 Following closing arguments, the circuit court determined Brian fit and denied the petition to adopt. The court determined Brian willing and able to care for J.R.S. Although Emily facilitated the visits between Brian and J.R.S., Brian made efforts to visit the minor child and maintain a relationship with his son until Emily abruptly stopped visitation and filed for an order of protection. Emily, not Brian, took steps to prevent Brian from forming and maintaining a relationship with J.R.S. The court also found substantial impediments existed for Brian to pay child support, including Brian's incarceration for part of the child's life. Despite this, the court noted that Emily failed to file a petition for support and the evidence demonstrated that Brian paid "at least some expenses" to Emily during his incarcerations. The court rejected Emily's arguments, finding Emily did not present clear and convincing evidence that Brian abandoned, deserted, or failed to maintain a reasonable degree of interest in, and support for, J.R.S.
¶ 28 Next, the circuit court addressed Brian's depravity. The court noted that Emily filed the petition for adoption in 2020, and Brian's last conviction was in 2017. As such, the court presumed Brian depraved under the law, given one of Brian's numerous convictions took place within five years of Emily filing her petition for adoption. The court determined that Brian rebutted the presumption of his depravity through evidence of his rehabilitation. In so ruling, the court stated that "[t]here was evidence presented by the counselor and probation officer as to the efforts being taken, and all indications are that at this point [Brian] is doing well in drug court, has been testing negative, has made substantial steps toward some rehabilitation through that." The court noted that, although there were a "multitude of convictions, many of those go back 15 plus years, many of them predate the birth of the child." As such, the court determined that Emily failed to prove by clear and convincing evidence that Brian was depraved, where Brian presented evidence rebutting the presumption of depravity. The court denied Emily's petition for adoption, and Emily filed a timely notice of appeal.
¶ 29 II. Analysis
¶ 30 The sole issue on appeal is whether the circuit court erred by finding Emily failed to prove by clear and convincing evidence that Brian was depraved and thus unfit to parent J.R.S. Brian argues on appeal that he successfully rebutted the presumption of his depravity. We agree with Brian.
¶ 31 Section 1(D) of the Adoption Act provides the grounds on which the circuit court may find a parent unfit. 750 ILCS 50/1(D) (West 2020). One ground is that the parent is depraved under section 1(D)(i) of the Adoption Act, which states:
"There is a rebuttable presumption that a parent is depraved if the parent has been criminally convicted of at least 3 felonies under the laws of this State or any other state, or under federal law, or the criminal laws of any United States territory; and at least one of these convictions took place within 5 years of the filing of the petition or motion seeking termination of parental rights." 750 ILCS 50/1(D)(i) (West 2020).
In Illinois, the term "depravity" means" 'an inherent deficiency of moral sense and rectitude.'" In re A.M., 358 Ill.App.3d 247, 253 (2005) (quoting Stalder v. Stone, 412 Ill. 488, 498 (1952)). The State shows depravity by establishing that respondent has a" 'deficiency' in moral sense and either an inability or an unwillingness to conform to accepted mortality." (Internal quotation marks omitted.) Id. (quoting In re J.A., 316 Ill.App.3d 553, 561 (2000)). "Where the presumption of depravity is rebuttable, the 'parent is still able to present evidence that, despite his convictions, he is not depraved.'" Id. (quoting J.A., 316 Ill.App.3d at 562). If a strong presumption arises, the weight of the evidence brought in to rebut it must be great. J.A., 316 Ill.App.3d at 563. If the respondent presents evidence contradicting the presumption, the presumption is removed, and the issue is determined based on the evidence presented. Id. at 562. The statutory ground of depravity requires the trier of fact to closely scrutinize the character credibility of the parent and the reviewing court will give such a determination deferential treatment. In re A.L., 301 Ill.App.3d 198, 202 (1998). The circuit court's determination that a parent is unfit will not be reversed unless it is against the manifest weight of the evidence. In re Gwynne P., 215 Ill.2d 340, 354 (2005).
¶ 32 The parties do not dispute that Brian had at least three felony convictions and at least one of these convictions took place within five years of Emily filing the petition. There is no dispute that Emily successfully raised the statutory rebuttable presumption that Brian was depraved. However, the law states that a respondent need only provide some contrary evidence to rebut the presumption. See In re P.J., 2018 IL App (3d) 170539, ¶ 14 ("Respondent need not rebut the presumption by clear and convincing evidence; rather, he only had to provide evidence opposing the presumption."). The circuit court concluded that Brian presented some rehabilitation evidence through the testimonies of Davis and Carter, rebutting the presumption and requiring Emily to prove depravity by clear and convincing evidence. In finding that Brian rebutted the presumption of depravity, the court noted that the evidence demonstrated that Brian continued to do well in drug court, had continued to test negative for drugs, and made substantial steps towards rehabilitation. As stated above, this court must give great deference to the circuit court's determinations as to the character and credibility of witnesses. The court could have reasonably found that Brian was not depraved based on the evidence presented.
¶ 33 Based on the aforementioned evidence, upon which the circuit court based its determination, this court cannot say that it is clearly apparent that Brian is depraved and an unfit parent. Thus, we uphold the finding of the circuit court that Emily failed to prove by clear and convincing evidence that Brian was depraved under section 1(D)(i) of the Adoption Act.
¶ 34 III. Conclusion
¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Fayette County finding Brian a fit parent and denying Emily's petition for adoption.
¶ 36 Affirmed.