The Journal of The DuPage County Bar Association

Back Issues > Vol. 15 (2002-03)

Contested Adoption Cases with Underlying Criminal Convictions: The Child’s Right to Waive Appeal
By Jennifer Bleuel Martyn

Adoption cases can be the most heartbreaking of matters to handle, or they can provide the greatest level of satisfaction imaginable. As attorneys, our concern is for our clients in the best of circumstances. The adoption cases, however, are the matters which keep us awake at night and compel us to act in ways we would not otherwise behave, such as freely handing out our home telephone numbers, holding conferences at the homes of clients, and becoming enveloped in literally every aspect of that client’s life.

The privilege of handling an adoption matter is not without pressure. The realization that as an attorney one holds the key to a child’s future is daunting, and as with any other area of the law, there is no such thing as a guaranteed result. The pressure increases tenfold when one is a private attorney facing a contested adoption with underlying issues of abuse, neglect or the murder of a parent. The stress is compounded when the attorney additionally faces the important issue of when to proceed on the adoption, and when to wait for a conviction that may or may not be forthcoming.

This summer the author successfully represented a couple who wished to adopt their granddaughter. The child is beautiful, and at the time was a very precocious age 5, thriving in the attentions of the grandparents with whom she resided. The author visited the home and witnessed this little girl’s excitement over starting kindergarten in the fall, the promise of her future, and the importance to her of having just the right barrette in her hair. There was also the sadness in her eyes, though, as she held a picture of her mother, taken shortly before the child’s father murdered the mother.

Was this a clear cut case for terminating the father’s parental rights? Hardly, given the underlying procedural issues, and quite frankly, there is never a "clear cut case" to terminate rights under any circumstance. The problem inherent in any case involving murder or abuse is the matter of timing due to the progress of the underlying criminal matter. As an attorney, one wants to rush right into the adoption court, while knowing at the same time that the matter will go much smoother following a conviction. Then again, since we know there are no guarantees in life, can one take the chance of awaiting a conviction, risk a "not guilty" verdict, and risk the return of a child to a potentially deviant parent?

When an underlying criminal case exists in an adoption matter, procedural landmines await every party involved. The plaintiffs must decide whether to forge ahead before or after a criminal trial. The defendant must decide whether to remain silent at the adoption trial and risk losing a child, or speak up and risk potential damage to a criminal case or appeal. No one wants to invade Fifth Amendment rights and privileges, but neither does anyone want to see a child in a state of limbo while criminal matters take literally years to resolve.

Legislation and case law have both made great strides in the last ten years with regard to these issues, allowing plaintiffs to proceed with a civil adoption before the conclusion of the criminal process. The key is the best interest of the child, and courts have refused to allow the fate of children to remain undetermined while the underlying criminal process is drawn out and continued.

With regard to murder cases, the adoption code now specifically states that a parent may be found unfit based on depravity, if he or she is convicted of the first degree or second degree murder of either a parent of the child sought to be adopted or of any child. Further, depravity is found in any situation where a parent is convicted of attempted murder of a child, solicitation to murder a child, or aggravated criminal sexual assault.1 The problem, though, is waiting for the criminal conviction. If there are no other grounds upon which to terminate the rights of a criminal defendant, the wait for the conviction alone may take years, and that time may be followed by the even longer appeal process. By the time the criminal defendant is through the process, the child may well be 18 years old.

While a plaintiff may move for termination of rights before an underlying criminal case has been completed, the plaintiff must be prepared for the length and expense of such a procedure, if he or she is literally attempting to prove a wrongful death action in civil court. Keep in mind as well, though, that this may not always be practical, and may actually be counter-active to the efforts of the State’s Attorney’s office in prosecuting the criminal action. Thus, close contact should be maintained between the adoptive parents and the State, to be certain that good intentions do not go awry, and disturb the trial strategy of the prosecution.

The plaintiff, then, may well be left with the wait for the conviction, and the hope that a conviction is entered. Unfortunately, there is no quick solution to this problem, although there is a way to remove at least a few years from the process. If a defendant is found guilty of a criminal offense which would lead to a finding of depravity in a civil action, one should move immediately for the termination of rights. Even if the defendant takes an appeal, a trial date should be sought in the civil court, as one is permitted to do so by law. While this may appear to violate the defendant’s right to exhaust all avenues to exoneration before being erased as a parent, the fact remains that a court will not balance a defendant’s right to criminal process with the child’s rights to a stable future. In 1981, the Illinois Supreme Court addressed this issue in a case of first impression. In In re Abdullah,2 the defendant father murdered his three-year-old son’s mother. Three years after the fact, the defendant was convicted of the murder, and the adopting parents breathed a sigh of relief, believing they could now move to terminate the father’s rights. The defendant objected, though, claiming that he had filed an appeal seeking to overturn the criminal conviction and arguing that his rights could not be terminated until the appeal process was fully exhausted.

The Abdullah court upheld the termination of rights, and stated that it was in the best interest of the six-year-old child for his future to be settled as quickly as possible.3 While the court recognized that a reversal on the murder conviction would negate a finding of depravity, it also held that "the interests of finality and judicial economy require that at some point a line must be drawn, after which it is proper to use the conviction."4 This decision was well before its time, given that in 1981, the adoption code had not yet specified murder as a ground for depravity.5

In addressing this issue in 1996, the Fifth District was even more expansive regarding the rights of the child. In In re C.M.J.,6 a father was convicted of beating his wife to death, leaving three children for whom the State sought placement for adoption. In a scenario similar to that involved in Abdullah, the father’s rights were terminated over his objection that he had not exhausted his state court appeals. By that time, the legislature had amended the adoption statutes, and those statutes now listed a conviction of first degree murder as prima facie depravity. However, the code was then and is now silent as to the appeals process. The court faced this issue head on, though, and upheld the termination of rights while succinctly stating that the best interest of the child is the paramount and overriding consideration, even if the defendant is likely to prevail on appeal.7 In paying homage to the written word of the statute, the court further held that because the adoption statute specifies depravity based on a conviction, as opposed to following the exhaustion of appeals, a trial court is in fact compelled to terminate rights on the conviction alone.8

The above cases not only broke new ground in Illinois law, but provided precedents for other states to follow as well. In 1996, the Supreme Court of Alaska followed Illinois’ lead in a case involving termination of parental rights following a murder conviction, holding that the goal of providing a stable and permanent family for the child at issue outweighed the defendant father’s rights to wait out the appeal process.9 In 2001, the Court of Appeals of Kansas also cited and adopted our case law and further found it "inconceivable" for a child to have to wait out the completion of a criminal appeals process while sitting in foster care, unsure of the future.10

Murder cases, though, are not the only criminal matters which can delay an adoption procedure. Criminal and DCFS proceedings for abuse and neglect are also lengthy processes and can take years to resolve. Illinois courts have set a precedent in this regard as well, in cases involving the termination of parental rights. In the case of In re D.P., the First District held that an adjudication of wardship hearing for an infant child would not be delayed pending the father’s criminal hearing for alleged physical abuse of the baby.11 There, the court cited the importance of proceeding with the functions of government, as opposed to incurring state costs for the delay of adjudicatory hearings. The court also specifically held that the delay was not unreasonable, given the government’s interest in providing a safe haven for the child.12

Of course, arrayed against the rights of a child in limbo are the Fifth Amendment rights of a defendant. The defendant is now being forced to choose whether to testify at the civil hearing, thus risking his strategy at the criminal hearing, or not testifying in the civil matter, thus risking the loss of the right to his or her child. Unfortunately for the defendant, however, courts have held that such risks are ones the defendant must take, and that literally forcing the defendant to make this choice does not violate any Fifth Amendment privileges. In D.P., the court narrowed this issue considerably by stating that whether a defendant chooses to testify at a civil hearing is a matter of trial strategy.13 The key seems to be that a defendant in a civil hearing is not required to confess or deny an alleged crime, and as long as he or she is not ordered to do so, the Fifth Amendment is not violated.14

The bottom line is that proceeding in such a manner may well not be fair to a defendant, and the thought of an innocent defendant’s parental rights being terminated is unspeakable. But as the case law sets forth, courts are simply not willing to play a waiting game with a child’s life, nor should they. This process is fair to an innocent child who has been neglected, abused or has lost a parent to brutal murder. After having such experiences, the child should not be forced to sit in foster care, or any other state of uncertainty, where he or she is summarily prevented at that point from developing any family ties at all, and feelings of loss and unworthiness are compounded. Of particular note is a comment made by the Kansas Appellate Court in a termination of parental rights matter with regard to the length of time a child may remain in foster care while an underlying criminal matter is being battled. There, the court reasoned that reintegration between a parent who has been in prison for a number of years and a child who has had extended out-of-home placement may not even be viable.15

But at the end of the day, with thanks to the courts, a child will go home adopted into a family and will begin to rebuild his or her young life. At the end of the day, that child will have hope for a future. No matter how simple or how complex, any adoption matter is an honor and a privilege to handle. So, is all of this worth staying awake at night? Absolutely.

1 750 ILCS 50/1D(i).

2 In re Abdullah, 85 Ill.2d 300, 423 N.E.2d 915 (1981).

3 Abdullah, 423 N.E.2d at 920.

4 Id. at 919.

5 According to Ill.Rev.Stat.1977, ch. 40, par. 1501(D), an unfit person meant "any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following: Depravity." Depravity was not defined by the Act at that time, but courts had held that depravity was "an inherent deficiency of moral sense and rectitude." Stalder vs. Stone, 412 Ill. 488, 498, 107 N.E.2d 696 (1952).

6 In re C.M.J., 278 Ill.App.3d 885, 663 N.E.2d 498 (5th Dist. 1996).

7 C.M.J, 663 N.E.2d at 503. The court went on to state that "[r]egardless of how painful it may be to a parent, regardless of whether the parent is likely to prevail on appeal, if he is convicted of murdering the children’s other parent, then he is unfit and his parental rights are to be terminated immediately, unless he can overcome the presumption of unfitness by clear and convincing evidence." Id.

8 Id. at 502. The court further clarified its ruling by stating that "[i]f the legislature intended trial courts to reserve ruling on questions of termination until a parent has exhausted all State court appeals, as respondent argues, the statute would say so." Id.

9 In the Matter of the Adoption of R.S., 928 P.2d 1194 (Alaska 1996).

10 In the Interest of M.E.B., 29 P.3d 471 (Kan. Ct. App. 2001).

11 In re D.P., 327 Ill.App.3d 153, 763 N.E.2d 351 (1st Dist. 2001).

12 D.P., 763 N.E.2d at 358.

13 Id. at 357.

14 Id.

15 M.E.B., 29 P.3d at 473.

Jennifer Bleuel Martyn is an associate with Elizabeth L. Krueger, P.C. in Wheaton, Illinois, where her practice is concentrated in family law. Ms. Martyn received her B.A. from Elmhurst College in 1990, and her J.D. from The John Marshall Law School, Chicago, in 1996.

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