text:
    IN RE MARRIAGE OF Christine GOESEL, Appellant, and Andrew Goesel (Laura A. Holwell, Appellee).
    Docket No. 122046
    Supreme Court of Illinois.
    Opinion filed November 30, 2017
    Edward R. Jaquays, Martin Rudman, and Mark Ellis, of Joliet, for appellant.
    Gina L. Colaluca, of Chicago, for appellee.
    Russell W. Hartigan and Bailey E. Felts, of Springfield, Michael G. DiDomenico, of Lake Tobak DiDomenico, and Paul L. Feinstein, both of Chicago, for amici curiae Illinois Chapter of the American Academy of Matrimonial Lawyers et al.
   JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 At issue is whether fees that have already been earned by an attorney in a dissolution of marriage proceeding are considered "available funds," such that they may be disgorged under section 501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/501(c-1)(3) (West 2014)). We hold that earned fees are not subject to disgorgement.

¶ 2 BACKGROUND

¶ 3 The facts of this case are set forth fully in the appellate court's opinion. 2017 IL App (3d) 150101, ¶¶ 3-10, 410 Ill.Dec. 797, 71 N.E.3d 793. We set forth here only those facts necessary to an understanding of the specific question of law that we decide today. On January 18, 2013, petitioner, Christine Goesel, filed a petition for dissolution of marriage from respondent, Andrew Goesel. Christine was originally represented by Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. (Goldstine), and Andrew was represented by Janice Boback of Anderson & Boback, LLC. On October 10, 2013, contemnor Laura Holwell filed her appearance as Andrew's counsel, and the trial court granted Boback leave to withdraw. Before withdrawing, Boback had moved to disqualify Goldstine. The disqualification motion alleged that Goldstine had improperly ordered Christine to provide it with Andrew's mail that arrived at the marital home and that Goldstine had opened and viewed the mail. The trial court ultimately disqualified Goldstine, and Holwell billed Andrew $37,094.49 for her work on the disqualification matter.

¶ 4 On March 10, 2014, the Law Offices of Edward R. Jaquays (Jaquays) appeared on behalf of Christine, and on June 6, 2014, Howard LeVine of LeVine, Wittenberg, Shugan, and Schatz, Ltd., appeared on behalf of Andrew. On June 12, 2014, Christine filed a petition for interim attorney fees, which she amended on June 20, 2014. In the amended petition, Christine stated that she had paid Jaquays an initial retainer of $5000 and had an outstanding balance with him of $27,142.60. She argued that she lacked sufficient funds to pay any additional fees beyond the retainer, and she requested that the court, pursuant to the "leveling of the playing field" rules of the Act, order Andrew to pay her fees. Alternatively, if the court determined that Andrew lacked the ability to pay her attorney fees, Christine requested that the court order disgorgement of the necessary amount from the money that Andrew had already paid to Holwell. Andrew also filed a petition for prospective attorney fees, contending that, although he was employed, he did not have sufficient funds to pay his attorney fees. On June 20, 2014, Holwell moved to withdraw as Andrew's counsel. The court granted the motion but retained jurisdiction over Holwell pending resolution of the disgorgement issue.

¶ 5 At the hearing on the petition for interim attorney fees, the parties stipulated to the attorneys' rates and that the work performed by the attorneys was reasonable and necessary. Copies of invoices entered into evidence at the hearing showed that all of the money Holwell had received was for work already performed. Andrew still owed $17,500.38 to Holwell and $26,000 to LeVine. Additionally, Holwell testified that she was holding $13,000 that Andrew had previously paid to Boback and that Boback had then paid to Holwell, as there was a dispute as to who owned the money.

¶ 6 On September 29, 2014, the court entered an order finding that both parties lacked an ability to pay reasonable attorney fees. The court found that the total attorney fees paid by Andrew were $100,022.27, with $66,382.28 going to Holwell, $10,000 to LeVine, and $23,639.99 to Boback. Christine had paid her attorneys $18,117.04, with $5000 going to Jaquays and $13,117.04 going to Goldstine. The court thus found that $118,139.31 had been paid to date, and to "level the playing field," each party should have $59,069.65 for attorney fees. In order to achieve parity, the court found that it was necessary to order Holwell to disgorge $40,952.61. Accordingly, the court ordered Holwell to tender $40,952.61 in fees to Jaquays with 14 days.

¶ 7 After more than 14 days had passed and Holwell had not turned over the funds, Christine moved to have Holwell held in indirect civil contempt. Holwell requested to be held in friendly contempt of court so that she could appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). On December 18, 2014, the court entered an order finding Holwell in friendly contempt of court. Christine later filed a motion to clarify the court's contempt finding. Christine pointed out that, pursuant to Rule 304(b)(5), only contempt orders that impose a penalty are immediately appealable. Accordingly, Christine asked the court to impose a monetary or other penalty on Holwell. At the hearing on Christine's motion, Holwell explained to the court that she was not willfully disobeying its order but that she did not have $40,000 to turn over. The court subsequently vacated its December 18, 2014, finding of friendly contempt, held Holwell in indirect civil contempt, charged her with a $10 per day penalty for each day that she did not pay the disgorgement, and sentenced her to an indeterminate amount of time in the Will County adult detention facility, not to exceed 179 days. The court stayed Holwell's sentence for 30 days to give her time to file an appeal. The court stated that Holwell could purge herself of the contempt order by paying $40,952.61 to Jaquays by January 21, 2015. At a hearing on January 21, 2015, Holwell reiterated to the court that she did not have the money but explained that she was making arrangements to borrow it. The court reaffirmed its contempt finding and penalty, and Holwell appealed to the Appellate Court, Third District.

¶ 8 Holwell raised several issues on appeal. Holwell argued that the trial court erred in (1) ordering disgorgement without making a specific finding that Christine lacked the ability to pay, (2) finding that the disgorgement order was a judgment because disgorgement orders are temporary advances against the marital estate, and (3) holding Holwell in indirect civil contempt without notice and a hearing and without inquiring into Holwell's ability to pay. After the Appellate Court, First District, issued its opinion in In re Marriage of Altman , 2016 IL App (1st) 143076, 406 Ill.Dec. 136, 59 N.E.3d 914, which held that earned fees are not subject to disgorgement, Holwell filed a supplemental brief arguing that the court's disgorgement order was in error because the entirety of the $40,952.61 ordered disgorged was for fees that had already been earned.

¶ 9 The appellate court reversed the disgorgement order. The court first held that, contrary to Holwell's claim, the trial court had made a specific finding that neither party had the ability to pay attorney fees. 2017 IL App (3d) 150101, ¶ 15, 410 Ill.Dec. 797, 71 N.E.3d 793. The court then reviewed the evidence from the hearing on attorney fees and concluded that the court had not abused its discretion in determining that neither party had the ability to pay. Id. ¶¶ 18-21. The court agreed with Holwell, however, that the court had erred in ordering disgorgement of fees that were paid to Holwell for services already rendered. The court determined that the relevant question is what the word "available" means in section 501(c-1)(3), when it states that trial courts may "enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid" ( 750 ILCS 5/501(c-1)(3) (West 2014)). 2017 IL App (3d) 150101, ¶ 25, 410 Ill.Dec. 797, 71 N.E.3d 793. The court noted that there was a split in the appellate court on this issue. Id. ¶ 31. In In re Marriage of Squire , 2015 IL App (2d) 150271, 403 Ill.Dec. 17, 53 N.E.3d 71, the Second District held that retainers or interim payments may be disgorged whether or not they had been earned by the attorney. According to the Second District, "available" in section 501(c-1)(3) simply means that the funds "exist somewhere." Id. ¶ 22. The First District rejected this view in Altman , 2016 IL App (1st) 143076, 406 Ill.Dec. 136, 59 N.E.3d 914. According to the First District, "available" should be construed to mean those funds that have not yet been earned. Id. ¶ 36. In the case before us, the Third District determined that Altman expressed the correct interpretation of section 501(c-1)(3). 2017 IL App (3d) 150101, ¶ 31, 410 Ill.Dec. 797, 71 N.E.3d 793. Accordingly, since the parties had stipulated that Holwell's fees were reasonable and necessary, and there was no question that the fees that the court ordered disgorged had all been earned by Holwell, the appellate court held that the trial court's disgorgement order must be reversed. Id. ¶ 34. Because it held the disgorgement order invalid, the court reversed the contempt finding against Holwell. Id. ¶ 36.

¶ 10 This court allowed Christine's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). This court also allowed the Illinois State Bar Association and the Illinois Chapter of the American Academy of Matrimonial Lawyers to file a joint brief amici curiae in support of Holwell.

¶ 11 ANALYSIS

¶ 12 Christine raises two issues on appeal. First, Christine argues that the appellate court erred in holding that earned fees are not available for disgorgement under the Act. Second, Christine contends that the appellate court erred in vacating the contempt finding against Holwell. According to Christine, Holwell was not engaging in a good-faith attempt to appeal the trial court's contempt finding. The second issue was not raised in Christine's petition for leave to appeal and is thus forfeited. See Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp. , 2011 IL 111611, ¶ 62, 355 Ill.Dec. 400, 959 N.E.2d 1133. Accordingly, we will confine our analysis to whether the disgorgement order was proper.

¶ 13 The issue before us is one of statutory construction, and the principles guiding our review are familiar. The primary goal of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the intention of the legislature. Jackson v. Board of Election Commissioners , 2012 IL 111928, ¶ 48, 363 Ill.Dec. 557, 975 N.E.2d 583. The best indication of legislative intent is the statutory language, which must be given its plain and ordinary meaning. Metropolitan Life Insurance Co. v. Hamer , 2013 IL 114234, ¶ 18, 371 Ill.Dec. 766, 990 N.E.2d 1144. It is improper for a court to depart from the plain statutory language by reading into the statute exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent. Id. Words and phrases should not be viewed in isolation but should be considered in light of other relevant provisions of the statute. Midstate Siding & Window Co. v. Rogers , 204 Ill. 2d 314, 320, 273 Ill.Dec. 816, 789 N.E.2d 1248 (2003). Further, each word, clause, and sentence of a statute must be given a reasonable construction, if possible, and should not be rendered superfluous. Prazen v. Shoop , 2013 IL 115035, ¶ 21, 375 Ill.Dec. 709, 998 N.E.2d 1. Where statutory language is clear and unambiguous, it will be given effect without resort to other aids of construction. Kunkel v. Walton , 179 Ill. 2d 519, 534, 228 Ill.Dec. 626, 689 N.E.2d 1047 (1997). If the meaning of an enactment is unclear from the statutory language, the court may consider the purpose behind the law and the evils the law was designed to remedy. Gruszeczka v. Illinois Workers' Compensation Comm'n , 2013 IL 114212, ¶ 12, 372 Ill.Dec. 833, 992 N.E.2d 1234. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Solon v. Midwest Medical Records Ass'n , 236 Ill. 2d 433, 440, 338 Ill.Dec. 907, 925 N.E.2d 1113 (2010). In determining legislative intent, we may also consider the consequences that would result from construing the statute one way or the other, and in doing so, we presume that the legislature did not intend absurd, inconvenient, or unjust consequences. Id. at 441, 338 Ill.Dec. 907, 925 N.E.2d 1113. Our review is de novo . In re Marriage of Heroy , 2017 IL 120205, ¶ 13, 417 Ill.Dec. 648, 89 N.E.3d 296.

¶ 14 The relevant statute-section 501(c-1)(3) of the Marriage and Dissolution of Marriage Act-was enacted as part of the "leveling of the playing field amendments," which became effective on June 1, 1997. See In re Marriage of Earlywine , 2013 IL 114779, ¶ 21, 374 Ill.Dec. 947, 996 N.E.2d 642. This section provides as follows:

"In any proceeding under this subsection (c-1), the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties." 750 ILCS 5/501(c-1)(3) (West 2014).

The statute does not use the term "disgorgement." The term was adopted by courts to describe the process whereby a court orders an attorney to turn over previously paid interim fees or retainers. As this court explained in Earlywine , the purpose of the "leveling of the playing field" amendments was to " 'equaliz[e] the parties' litigation resources where it is shown that one party can pay and the other cannot.' " Earlywine , 2013 IL 114779, ¶ 26, 374 Ill.Dec. 947, 996 N.E.2d 642 (quoting In re Marriage of Beyer , 324 Ill. App. 3d 305, 315, 257 Ill.Dec. 406, 753 N.E.2d 1032 (2001) ). The legislature was addressing the problem of one party using his or her greater control of assets as a tool, making it more difficult for the disadvantaged spouse to participate equally in the litigation. Id.

¶ 15 We discuss first this court's decision in Earlywine . The Second District in Squire believed that Earlywine settles the question before the court, while the First and Third Districts did not believe that Earlywine spoke to it. Thus, we will first consider whether Earlywine settles this question because, if so, we need go no further. In Earlywine , this court considered whether an advance payment retainer was subject to disgorgement under section 501(c-1)(3). In that case, the petitioner husband had paid his attorney by way of an advance payment retainer. Upon finding that neither party had the ability to pay attorney fees, the trial court ordered that $4000 be disgorged from the husband's attorney, Thomas James. Id. ¶ 5. James then asked to be held in friendly contempt. Id. ¶ 9. The court agreed, held James in friendly contempt, and fined him $50. Id. James appealed, contending that advance payment retainers are not subject to disgorgement because they become the property of the attorney upon payment. The appellate court affirmed, explaining that (1) section 501(c-1)(3) simply used the term "retainers" and did not limit the type of retainers to which it applied and (2) allowing a party to avoid disgorgement through the use of an advance payment retainer would defeat the purpose of the leveling of the playing field amendments. Id. ¶ 10. This court affirmed the appellate court.

¶ 16 This court first discussed the different types of retainers that are allowed in Illinois. The first is the "general" retainer, which is paid to secure a lawyer's availability during a specified time or for a specified matter. It becomes the lawyer's property upon payment. Id. ¶ 15. The second type is the security retainer. A security retainer is held in a client trust account and remains the property of the client until the attorney applies it to charges for services rendered. Id. The third type of retainer is the advance payment retainer, which was first recognized by this court in Dowling v. Chicago Options Associates, Inc. , 226 Ill. 2d 277, 314 Ill.Dec. 725, 875 N.E.2d 1012 (2007). Earlywine , 2013 IL 114779, ¶ 15, 374 Ill.Dec. 947, 996 N.E.2d 642. This type of retainer is a present payment for a commitment to provide legal services in the future. Id. ¶ 16. Unlike a security retainer, the funds become the attorney's property immediately upon payment and must be deposited in the lawyer's general account. Id. As with a security retainer, however, the lawyer has an ethical obligation to refund to the client any portion of the retainer that is neither earned nor required for expenses. Ill. R.

Prof'l Conduct (2010) R. 1.15(c)(4) (eff. Jan. 1, 2010). Earlywine noted that Dowling had explained that advance payment retainers should be used sparingly and only to accomplish a purpose that cannot be accomplished with a security retainer. Earlywine , 2013 IL 114779, ¶ 17, 374 Ill.Dec. 947, 996 N.E.2d 642. Dowling had explained that examples of the appropriate use of an advance payment retainer are those situations in which a client may have trouble hiring counsel unless he can shield the attorney fees from claims by his or her creditors. Id. ¶ 18. A security retainer leaves funds in the client's name, thus subjecting them to claims by creditors. Examples of appropriate situations for an advance payment retainer would be those of "a debtor [who] hired counsel to represent him in proceedings against a judgment creditor; a criminal defendant whose property remains subject to forfeiture; and a debtor in a bankruptcy case." Id. In Earlywine , James argued that similar policy concerns should allow parties in dissolution proceedings to shield attorney fees from being turned over to opposing counsel. Id. ¶ 20. This court disagreed.

¶ 17 First, this court noted that section 501(c-1) used the general word "retainers" and did not place any qualifications on the types of retainers that could be disgorged. Id. ¶ 25. This court then considered the policy underlying the leveling of the playing field amendments. This court explained that allowing advance payment retainers to be used in the manner suggested by James would undermine the purpose of the amendments. Id. ¶ 27. It was obvious that the retainer in Earlywine was set up specifically to circumvent the leveling of the playing field rules. Id. Accepting James's argument would have meant that avoiding the application of the rules was as simple as putting the funds in an advance payment retainer. Id. Thus, the rules would no longer prevent an economically advantaged spouse from gaining an unfair advantage over the other spouse. Id. The policy concerns expressed in Dowling are simply not present in dissolution cases. Id. ¶ 28. Thus, this court held that advance payment retainers must be subject to disgorgement in order to avoid "defeat[ing] the express purpose of the Act and render[ing] the 'leveling of the playing field' provisions powerless." Id. ¶ 29.

¶ 18 As noted, the Second District in Squire believed that Earlywine largely settled the question before the court by holding that advance payment retainers are subject to disgorgement. Squire , 2015 IL App (2d) 150271, ¶ 22, 403 Ill.Dec. 17, 53 N.E.3d 71. Advance payment retainers become the property of the attorney upon payment, and therefore a trial court can order an attorney to disgorge funds that belong to him or her. Id. Earned fees are also the property of the attorney, and therefore, pursuant to Earlywine , they may also be disgorged. Id. We do not believe that the issue is that simple. First, the main takeaway from Earlywine is that advance payment retainers should not be used in dissolution cases when the purpose of the retainer is to block the other spouse's access to funds for attorney fees. As this court explained, advance payment retainers are appropriate only in special circumstances, and circumventing the leveling of the playing field rules and blocking the other spouse's access to funds for attorney fees are not the special circumstances that this court had in mind. Earlywine , 2013 IL 114779, ¶¶ 27-29, 374 Ill.Dec. 947, 996 N.E.2d 642. Second, although Earlywine stands for the general proposition that an advance payment retainer is subject to disgorgement, there was no argument or discussion in that case about what portion of the retainer had been earned. As the appellate court pointed out, although an advance payment retainer becomes the property of the attorney upon payment, the attorney still has to earn the retainer and must refund any unearned portion to the client. 2017 IL App (3d) 150101, ¶¶ 28-30, 410 Ill.Dec. 797, 71 N.E.3d 793. No issue was raised in Earlywine regarding what portion of the advance payment retainer was earned. Rather, Earlywine merely addressed the general question of whether section 501(c-1)(3)'s reference to retainers includes advance payment retainers. Thus, we do not believe that Earlywine answers the question before the court today.

¶ 19 The first court to consider the precise issue of whether earned fees are subject to disgorgement was the Second District in Squire , 2015 IL App (2d) 150271, 403 Ill.Dec. 17, 53 N.E.3d 71. In that case, the petitioner husband filed a petition for dissolution of marriage in 2013 and, in June 2014, petitioned for interim and prospective attorney fees. Id. ¶ 2. The petitioner alleged that he lacked funds to pay his attorney fees, while the respondent had access to significant funds to pay her lawyers. Id. By the time of the hearing on contribution, the petitioner had paid his attorneys $2500, but owed them approximately $53,000. Id. ¶ 3. The respondent was unemployed but had borrowed approximately $130,000 from her mother to pay her attorneys. Approximately $10,000 of this amount went to her previous attorney, and the rest was paid to her current attorneys (the Stogsdill Law Firm (Stogsdill)) as a retainer. Id. ¶ 4. Stogsdill argued that it had already earned the entire retainer and deposited it in its general account and thus it was not subject to disgorgement. Id. ¶ 5. The court granted the interim fee petition. The court ordered Stogsdill to pay petitioner's counsel $60,000 within 14 days. Id. ¶ 6. The court explained that, pursuant to this court's decision in Earlywine , 2013 IL 114779, 374 Ill.Dec. 947, 996 N.E.2d 642, it did not matter that the retainer had already become Stogsdill's property. Squire , 2015 IL App (2d) 150271, ¶ 6, 403 Ill.Dec. 17, 53 N.E.3d 71. The trial court held Stogsdill in friendly contempt of court, ordered it to pay the $60,000 by March 19, 2015, and imposed a fine of $100 per day for each day that Stogsdill refused to pay. Id. ¶ 7.

¶ 20 On appeal, Stogsdill argued that it could not be required to turn over fees that it had already earned. Section 501(c-1)(3) refers to "available" funds being subject to disgorgement, and Stogsdill argued that funds that have been earned by the attorney and have become the attorney's property are no longer "available." Id. ¶ 9. The appellate court rejected Stogsdill's argument. The court's decision was based largely on this court's decision in Earlywine , which held that advance payment retainers are subject to disgorgement. The court noted that an advance payment retainer, in contrast to a security retainer, becomes the attorney's property upon payment and is to be deposited in the attorney's general account. Id. ¶¶ 17, 22. Thus, it could not be correct that funds that are the property of the attorney are not subject to disgorgement. Id. ¶ 22. The court also believed that Stogsdill's position would frustrate the purposes of the statute because an attorney could block the other side's access to fees by filing voluminous pleadings and motions early in the case, thus earning the retainer, while leaving the other spouse with insufficient funds to respond properly. Id. ¶ 21. Accordingly, the Second District concluded that the word "available" in section 501(c-1)(3) must simply mean that the funds "exist somewhere." Id. ¶ 22.

¶ 21 In Altman , the First District rejected the Second District's interpretation. In that case, the wife petitioned for a dissolution of marriage.

Altman , 2016 IL App (1st) 143076, ¶ 2, 406 Ill.Dec. 136, 59 N.E.3d 914. She was represented by Bradford & Gordon, LLC (Bradford). Id. ¶ 3. The respondent husband was initially represented by Scott Tzinberg, who was eventually granted leave to withdraw. Id. Tzinberg was replaced by Stephen Gerage, who also later withdrew from the case. Id. Following Gerage's withdrawal, the respondent proceeded pro se . Id. Nine months into the litigation, the petitioner sought interim attorney fees of $36,864.30 for fees already incurred and $25,000 for prospective fees and costs. Id. ¶ 8. By the time that the petitioner later filed an amended petition for fees, she alleged that she had incurred fees of $63,598.68 and had paid only $9500. Id. Thus, she still owed her attorneys $54,098.68. Id. The petitioner requested that the respondent pay her fees or, in the alternative, that the court order Gerage to disgorge sums that he had been previously paid. Id.

¶ 22 Following a hearing, the trial court determined that neither party had sufficient access to assets or income to pay attorney fees and that the leveling of the playing field provisions of the Act should be applied. Id. ¶ 10. As part of its order allocating funds for attorney fees, the court found that it would be necessary to order Gerage to disgorge $16,000 in fees that he had earned and that this amount needed to be turned over to Bradford within seven days. Id. Gerage failed to turn the money over, was held in contempt of court, and appealed. Id. ¶ 11.

¶ 23 On appeal, Gerage argued, inter alia , that the disgorgement order was improper because he had earned the funds and deposited them into his general operating account. Gerage argued that the legislature's use of the term "available" in section 501(c-1)(3) must mean that some funds are "unavailable" and this should include funds that an attorney has earned. Id. ¶ 27. The First District reviewed the Second District's decision in Squire and stated that, if "leveling the playing field" were the only consideration, it would be inclined to agree with Squire . Id. ¶ 33. Nevertheless, the court held that it could not ignore the legislature's use of the word "available" and that it would be a "tortured reading of the statute to say that even though the firm has earned the fees, paid itself (as it was entitled to do), and used that income to pay salaries, overhead, and litigation expenses for items such as experts and court reporters, it can nonetheless be required to refund those fees, not to its client, but to a third party." Id. The court noted that Squire had not discussed the significant policy concerns in holding that earned fees are subject to disgorgement. Id. ¶ 34. The court believed that small firms and solo practitioners could face significant financial hardships when attempting to comply with disgorgement orders, particularly when the fees have been earned over several months and transferred in and out of their operating accounts. Id. The court noted that such concerns were exacerbated in cases such as the one before it where a party delays filing the fee petition. Id. The court further noted that, logically, the Squire interpretation means that a lawyer who had withdrawn from the case could be called upon months or even years later to write a check to the opposing party's counsel, as the funds still "exist somewhere." Id. ¶ 35. The court stated that it would not construe the statute as allowing such absurd results. Id. The court acknowledged that it was addressing interim fee awards and that accounts may be "trued up" when a final dissolution judgment is entered. Id. ¶ 36. However, the court explained that, because disgorgement is ordered upon a finding that neither party is able to pay attorney fees, it is not realistic to assume that the attorneys will ever be paid. Id. The court did not believe that the legislature intended that the "financial burden of leveling the playing field should be borne, in substantial part, by lawyers who must refund, under pain of contempt, fees they have earned." Id. The court thus reversed both the trial court's order and the contempt order. Id.

¶ 24 In the present case, the Third District considered the interpretations set forth in Squire and Altman and determined that Altman was correct. 2017 IL App (3d) 150101, ¶ 31, 410 Ill.Dec. 797, 71 N.E.3d 793. The court held that "the most reasonable interpretation of the term 'available funds,' as that term relates to previously paid 'retainers or interim payments' to an attorney as used in section 501(c-1)(3) of the Act, are those funds that are currently being held for a client that have not yet been earned by the attorney at the time the attorney is given notice of the petition for interim attorney fees and would be 'available' to be returned to the client if the attorney were to immediately cease services." Id. ¶ 25. The court did not believe that this court's decision in Earlywine , which held that advance payment retainers are subject to disgorgement, answered the question before the court. The court explained that, even though an advance payment retainer becomes the property of the attorney upon receipt, the attorney still has an obligation to refund to the client any unearned portion of the retainer. Id. ¶ 28. The court noted that the Squire court had failed to discuss an attorney's obligation to refund any unearned portion of an advance payment retainer to the client. Id. ¶ 32. As noted in the quoted passage above, however, the Third District added a wrinkle to the test adopted by Altman . Altman held that earned fees were not subject to disgorgement, whereas here the Third District held that only fees that had been earned prior to the filing of the petition for interim fees were exempt from disgorgement. Id. ¶¶ 23, 25, 34. The court adopted this position by analogy to section 510(a) of the Act ( 750 ILCS 5/510(a) (West 2014)), which provides that judgments regarding maintenance or support obligations may be modified only as to "installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." (Internal quotation marks omitted.) 2017 IL App (3d) 150101, ¶ 23, 410 Ill.Dec. 797, 71 N.E.3d 793. The court ultimately determined that, because all of Holwell's fees were earned prior to her receiving notice of the petition for interim fees, there were no funds available to be disgorged. Id. ¶ 34. Accordingly, the court reversed both the trial court's disgorgement order and its contempt order. Id. ¶¶ 34, 36.

¶ 25 We agree with the appellate court that the relevant question is what it means for funds to be "available" under section 501(c-1)(3). The legislature did not merely say that retainers and interim payments were subject to disgorgement. Rather, it stated that those funds must also be "available." As the appellate court has noted, this implies that some funds are "unavailable." Id. ¶ 25 ; Altman , 2016 IL App (1st) 143076, ¶ 33, 406 Ill.Dec. 136, 59 N.E.3d 914. We must give each word in the statute a reasonable construction, if possible, and no word should be rendered superfluous. Prazen , 2013 IL 115035, ¶ 21, 375 Ill.Dec. 709, 998 N.E.2d 1. The legislature could have easily said that all funds that had been paid to an attorney are subject to disgorgement, but the legislature instead chose to use the modifier "available."

¶ 26 "Available" means "such as may be availed of: capable of use for the accomplishment of a purpose: immediately utilizable" or "that is accessible or may be obtained: personally obtainable." Webster's Third New International Dictionary 150 (1993). As used in section 501(c-1)(3), the appellate court has defined "available funds" three different ways. In Squire , the Second District determined that it meant simply that the funds "exist somewhere." Squire , 2015 IL App (2d) 150271, ¶ 22, 403 Ill.Dec. 17, 53 N.E.3d 71. In Altman , the First District concluded that only funds that have not yet been earned by the attorney are "available": "funds earned by and paid to a party's lawyer in the normal course of representation for past services rendered are not 'available funds' within the meaning of section 501(c-1)(3)." Altman , 2016 IL App (1st) 143076, ¶ 36, 406 Ill.Dec. 136, 59 N.E.3d 914. Finally, in the present case, the Third District held that "available funds" are "those funds that are currently being held for a client that have not yet been earned by the attorney at the time the attorney is given notice of the petition for interim attorney fees and would be 'available' to be returned to the client if the attorney were to immediately cease services." 2017 IL App (3d) 150101, ¶ 25, 410 Ill.Dec. 797, 71 N.E.3d 793.

¶ 27 For several reasons, we believe that Altman represents the correct interpretation. For one thing, it is consistent with the plain meaning of the term "available." It is difficult to see how an interim payment or retainer that has been earned by the attorney is nevertheless "available." Once an attorney has used up a retainer, there is clearly no longer an available retainer. Indeed, there is no longer even a retainer. If there is no retainer "available" as between the attorney and the client, it is difficult to see how one can be available to third parties. Christine relies on the statute's inclusion of "interim payments," and Christine contends that a "payment" is the discharge of a debt or liability by the delivery or money or other value. Thus, Christine suggests that an "interim payment" will always be for an amount that the lawyer has already earned. "Payment," however, can also mean more generally "the act of paying or giving compensation." Webster's Third New International Dictionary 1659 (1993). The statute defines "interim attorney's fees and costs" as including "reasonable fees and costs either already incurred or to be incurred ." (Emphasis added.) 750 ILCS 5/501(c-1) (West 2014). Moreover, the phrase "previously paid" in section 501(c-1)(3) also modifies the term "retainers," which means that the legislature is clearly using the term "paid" as including sums that the attorney has not yet earned.

¶ 28 We acknowledge that, when the meaning of a legislative enactment is unclear, the court may consider the purpose behind the law and the evils the law was designed to remedy. Gruszeczka , 2013 IL 114212, ¶ 12, 372 Ill.Dec. 833, 992 N.E.2d 1234. As we set forth above, the purpose of the "leveling of the playing field" amendments was to " 'equaliz[e] the parties' litigation resources where it is shown that one party can pay and the other cannot.' " Earlywine , 2013 IL 114779, ¶ 26, 374 Ill.Dec. 947, 996 N.E.2d 642 (quoting Beyer , 324 Ill. App. 3d at 315, 257 Ill.Dec. 406, 753 N.E.2d 1032 ). If this were the only consideration, we would be inclined to hold that all retainers and interim payments were subject to disgorgement, regardless of whether they had been earned by the attorney. It will obviously be much easier for the trial court to equalize the parties' position if the entire amount of all interim payments and retainers is considered available.

¶ 29 Nevertheless, we must also consider the consequences that would result from construing the statute one way or the other, and in doing so, we presume that the legislature did not intend absurd, inconvenient, or unjust consequences. Solon , 236 Ill. 2d at 441, 338 Ill.Dec. 907, 925 N.E.2d 1113. As the First and Third Districts have noted, the consequences of holding that earned fees are subject to disgorgement can be severe, and such a holding could very easily lead to absurd, inconvenient, and unjust consequences. We must presume that this was not the legislature's intent. As the appellate court explained in Altman :

"It is not speculation to predict that some lawyers, particularly solo practitioners and those in small law firms, may be unable to comply with orders to disgorge funds that they have earned over several months and that have been transferred into (and out of) their operating accounts, at least not without serious financial hardship." Altman , 2016 IL App (1st) 143076, ¶ 34, 406 Ill.Dec. 136, 59 N.E.3d 914.

The court further noted that lawyers who have already been granted leave to withdraw from the case could be called upon months or years later to write a check to opposing party's counsel. Id. ¶ 35. In the present case, the Third District cited with approval Altman 's statement that it was not the legislature's intent that " 'the financial burden of leveling the playing field should be borne, in substantial part, by lawyers who must refund, under pain of contempt, fees they have earned.' " 2017 IL App (3d) 150101, ¶ 33, 410 Ill.Dec. 797, 71 N.E.3d 793 (quoting Altman , 2016 IL App (1st) 143076, ¶ 36, 406 Ill.Dec. 136, 59 N.E.3d 914 ). As Holwell has argued, if this court were to hold that earned fees are subject to disgorgement, then "Illinois attorneys must question whether they should utilize the fees they have rightfully earned to run their businesses, or hoard the funds for fear of disgorgement and place their businesses at risk."

¶ 30 Amici have identified further policy concerns that would arise if earned fees were subject to disgorgement. First, it would mean that Illinois divorce lawyers pay themselves at their own risk. Illinois Rule of Professional Conduct 1.15(c) (eff. July 1, 2015) allows attorneys to withdraw money from a client trust account as fees are earned and expenses incurred. If an attorney used this money as he or she was entitled to do, then he or she would have to have a backup plan-either sufficient cash reserves or a line of credit-if later ordered to comply with a disgorgement order. Attorneys practicing in other areas do not act at their own risk when they pay themselves fees they have rightfully earned. Second, the Act does not state what defenses an attorney has to a disgorgement order. Here, Holwell told the trial court that she did not have the money, and no hearing was held on the matter. Rather, Christine's attorney proceeded immediately with a citation to discover assets and froze Holwell's bank accounts. These concerns are serious, especially given that the Act contemplates that proceedings relating to interim attorney fees and costs be conducted in summary fashion. 750 ILCS 5/501(c-1)(1) (West 2014). Third, most people's wealth is typically concentrated in their homes and retirement accounts. The appellate court held that a party cannot be required to sell real estate to pay attorney fees ( 2017 IL App (3d) 150101, ¶ 20), 410 Ill.Dec. 797, 71 N.E.3d 793, and both the Third District in the present case and the First District in Altman held that retirement accounts cannot be considered when assessing a party's ability to pay fees. Id. ¶ 19 ; Altman , 2016 IL App (1st) 143076, ¶¶ 22-25, 406 Ill.Dec. 136, 59 N.E.3d 914. This would mean that the parties are able to maintain their wealth, while attorneys must forfeit their own property to allow the parties to keep litigating. Fourth, construing section 501(c-1)(3) to mean that lawyers must forfeit their own property raises due process concerns.

¶ 31 We agree with the appellate court, amici , and Holwell that these concerns are substantial. Picture the case of a solo practitioner who earns $60,000 during the first year of representing a party in a contentious dissolution proceeding and applies those funds to overhead and operating expenses in the normal course of business. Holding that such funds are available for disgorgement would mean that the attorney could be ordered to pay all of that money in a lump sum to another party's counsel years later, despite the fact that the funds belonged to the attorney and he or she had used them in a way that he or she had every legal right to do. And if the attorney does not comply, he or she can be held in contempt and jailed. The present case shows that such concerns are not merely theoretical. Holwell represented Andrew for eight months and then was granted leave to withdraw. During this period, Holwell earned over $50,000. The trial court later ordered her to turn over $40,952.61 to Christine's counsel. Holwell did not turn the money over, and she explained to the court that she was not willfully disobeying its order but that she did not have the money. The court held her in indirect civil contempt, fined her, and sentenced her to jail. Moreover, Christine's attorney immediately put a freeze on Holwell's bank accounts and issued a citation to discover assets against her. If this was the way that the legislature intended the statute to work, and if this is the type of result that the legislature intended, then the legislature needs to say so explicitly in the statute. We are not going to construe the statute in a way that leads to absurd, unjust, or inconvenient results. See Solon , 236 Ill. 2d at 441, 338 Ill.Dec. 907, 925 N.E.2d 1113.

¶ 32 Christine points out that construing the statute the other way could also lead to inequities and absurd results. Christine points out that one spouse may engage in a "scorched earth" campaign of liquidating the marital assets and using the money to pay his or her attorney. While this is indeed a concern, Holwell points out that the disadvantaged spouse has some remedies available, including (1) filing the petition for interim attorney fees at the beginning of the case and (2) seeking a preliminary injunction or temporary restraining order under section 501(a)(2)(i) ( 750 ILCS 5/501(a)(2)(i) (West 2014)) (allowing parties to seek a temporary restraining order or preliminary injunction "restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life"). By contrast, the Act provides no remedy for an attorney who is ordered to turn over money that the attorney no longer has.

¶ 33 The other interpretation of "available" was that set forth by the Second District in Squire . The Second District defined "available" as meaning that the funds "exist somewhere." Squire , 2015 IL App (2d) 150271, ¶ 22, 403 Ill.Dec. 17, 53 N.E.3d 71. It is impossible to know what Squire even meant with this definition. Altman assumed that the Second District meant that it does not matter whether the attorney has already spent the funds because, even then, the funds "exist somewhere." See Altman , 2016 IL App (1st) 143076, ¶ 33, 406 Ill.Dec. 136, 59 N.E.3d 914. Amici read Squire the same way and argue that it would be unfair to say that funds that "exist" in the hands of third parties they have been paid to are nevertheless "available" to Holwell to turn over to other attorneys. This is certainly a fair and reasonable reading of Squire , given that the Second District put no limit on the term "somewhere." This definition would seem directly contrary to the plain meaning of "available," as the funds would no longer be accessible, obtainable, or immediately utilizable. In fairness to the Second District, however, it is possible that by "exist somewhere" it meant that the funds existed somewhere within the attorney's control. But this is problematic too, as once the funds are deposited in the lawyer's general account and comingled with fees from other cases, it would not be possible to say which funds are from which fees. The Squire court might also have meant that "exist somewhere" simply means that the lawyer has the financial ability to turn over the amount ordered disgorged, but this would impose a much greater burden on small firms and solo practitioners. Whatever Squire meant by "exist somewhere," the court's interpretation was driven largely by its belief that Earlywine settled this question. We have determined that Earlywine did not speak to the question before the court today, and thus Squire 's analysis is of limited relevance. We disagree with the Squire court's interpretation, and we hereby overrule that decision.

¶ 34 As we noted above, the appellate court in the present case modified Altman 's rule that earned fees are not subject to disgorgement. The Third District held that available funds are those funds that are being held for a client and that have not yet been earned by the attorney at the time the attorney receives notice of the petition for interim fees. 2017 IL App (3d) 150101, ¶ 25, 410 Ill.Dec. 797, 71 N.E.3d 793. The Third District adopted this test by analogy to section 510(a) of the Act ( 750 ILCS 5/510(a) (West 2014)), which provides that judgments for maintenance or support obligations may be modified only as to "installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." (Internal quotation marks omitted.) 2017 IL App (3d) 150101, ¶ 23, 410 Ill.Dec. 797, 71 N.E.3d 793. The policy reasons for the Third District's holding are obvious: once an attorney receives notice of a fee petition, the attorney will have an incentive to earn his or her fees as quickly as possible, thus rendering them unavailable to be disgorged. Nevertheless, we must keep in mind that the primary goal of statutory construction is to ascertain and give effect to the intention of the legislature. Jackson , 2012 IL 111928, ¶ 48, 363 Ill.Dec. 557, 975 N.E.2d 583. It is impossible to believe that, if the legislature meant something as technical and specific as that "available funds" means "fees that have not been earned by an attorney prior to receiving due notice of a petition for interim attorney fees," it would not have said this in the statute. Moreover, section 510(a) shows that when the legislature means something like this, it says so explicitly. We stated above that we believe that the legislature needs to take another look at this statute. If the Third District's interpretation was the legislature's intent, then the legislature should amend the statute to make its intention clear.

¶ 35 For all of the above reasons, we believe that Altman 's interpretation is correct. "[F]unds earned by and paid to a party's lawyer in the normal course of representation for past services rendered are not 'available funds' within the meaning of section 501(c-1)(3)."

Altman , 2016 IL App (1st) 143076, ¶ 36, 406 Ill.Dec. 136, 59 N.E.3d 914. This is a difficult question, and the policy concerns on both sides are substantial. It is not possible to construe the statute in such a way that will not lead to unfairness and inequitable results in some situations. We therefore proceed today with an abundance of caution. We believe that the legislature needs to take another look at section 501(c-1)(3) and make its intentions absolutely clear. Specifically, the legislature should define what it means by "available funds" and explain whether this includes fees that the attorney has already earned, whether attorneys who are no longer in the case may also be ordered to disgorge fees, and whether it is a defense to disgorgement that the attorney no longer has the money. Absent such an explanation from the legislature, we hold that fees that have been earned by an attorney are not subject to disgorgement. Here, there is no dispute that the amount that the trial court ordered disgorged from Holwell represented earned fees, and the parties stipulated that Holwell's fees were reasonable and necessary. Accordingly, we affirm the appellate court's judgment, which reversed both the disgorgement order and the finding of contempt. We likewise agree with the appellate court that there is not sufficient certainty and clarity in the record regarding the $13,000 in fees that had been paid to Boback but were being held by Holwell. 2017 IL App (3d) 150101, ¶ 34 n.1, 410 Ill.Dec. 797, 71 N.E.3d 793. The ownership of these funds was disputed, and we do not address them here.

¶ 36 Affirmed.

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

      As an alternative basis for affirming the appellate court's judgment, Holwell argues that the trial court abused its discretion in finding that neither party had the ability to pay attorney fees. However, given that we allowed the petition for leave to appeal to resolve the conflict in the appellate court over whether earned fees are subject to disgorgement, and we agree with Holwell that her earned fees were not subject to disgorgement, we see no need to address this issue.

      The parties disagreed over whether a disgorgement order is an enforceable judgment, and the trial court ruled that it was.

      Although this court has not had occasion to address the due process implications of section 501(c-1)(3)'s disgorgement provisions, the appellate court upheld this section under facial substantive and procedural due process challenges in Kaufman, Litwin & Feinstein v. Edgar , 301 Ill. App. 3d 826, 835-37, 235 Ill.Dec. 183, 704 N.E.2d 756 (1998). That court cautioned, however, that its rejection of a facial challenge did not preclude a finding that, in certain circumstances, the statute was being unconstitutionally applied. Id. at 836, 235 Ill.Dec. 183, 704 N.E.2d 756.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE A.F., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Gabriel F., Respondent-Appellant).
    Appeal No. 3-17-0826
    Appellate Court of Illinois, Third District.
    Opinion filed May 3, 2018
    James D. Bradshaw, of Pekin, for appellant.
    Stewart J. Umholtz, State's Attorney, of Pekin (Patrick Delfino, David J. Robinson, and Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Aimee E. Dluski, of Pekin, guardian ad litem.
   JUSTICE WRIGHT delivered the judgment of the court, with opinion.

¶ 1 The trial court entered orders finding respondent, Gabriel F. (father), to be an unfit parent and terminating father's parental rights concerning the minor, A.F. On appeal, father argues that the trial court's fitness determination was erroneous. We affirm.

¶ 2 FACTS

¶ 3 On October 19, 2012, the State filed a neglect petition alleging that father neglected A.F., born July 9, 2012, by subjecting the minor to an environment injurious to her welfare pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 ( 705 ILCS 405/2-3(1)(b) (West 2012) ). Specifically, the neglect petition alleged that on or about September 9, 2012, A.F. suffered a fracture to her right femur and a fracture to her left tibia by means other than accidental while in the care of father. On December 6, 2012, the State filed a supplemental petition adding the allegation that, "During the time that the minor was hospitalized in August of 2012, multiple problems with the father were noted by hospital staff which included but were not limited to the father having disregard for the minor's pain or risks of moving the minor's fractured limb."

¶ 4 On February 28, 2013, father stipulated that the allegations of the original petition could be proven by a preponderance of the State's evidence. On that same date, the trial court entered an adjudicatory order finding A.F. neglected. On April 19, 2013, the trial court entered a dispositional order finding father unfit based on the physical abuse of A.F.

¶ 5 The injuries A.F. suffered in 2012 gave rise to criminal proceedings in Tazewell County case No. 13-CF-36 against father. The State initially charged father with the Class X felony of aggravated battery to a child. 720 ILCS 5/12-3.05(b)(1) (West 2012). However, pursuant to a plea agreement, father plead guilty to the Class 2 felony of aggravated domestic battery pursuant to section 12-3.3(a) of the Criminal Code of 2012 in that he "knowingly caused great bodily harm to A.F. (F/W DOB 7/9/12), a family member, in that he performed the acts which resulted in fractures to A.F.'s left tibia and right femur." See id. § 12-3.3(a). In exchange for father's guilty plea to aggravated domestic battery, the State dismissed the Class X felony of aggravated battery to a child. The trial court sentenced father to a term of seven years in the Illinois Department of Corrections. Father remained incarcerated when this appeal was filed.

¶ 6 The juvenile case proceeded over the next three years and the trial court conducted several permanency review hearings. On December 30, 2016, the State filed a petition to terminate father's parental rights. The termination petition alleged that father was depraved, pursuant to section 1(I) of the Adoption Act ( 750 ILCS 50/1(I) (West 2016) ), because father had been "convicted of Aggravated Domestic Battery to a Minor, in Tazewell County case No. 13CF-36." On January 26, 2017, father filed an answer to the State's termination petition, which admitted to his prior conviction of aggravated domestic battery but claimed he was rehabilitated and denied that it was in A.F.'s best interests to terminate his parental rights.

¶ 7 On June 9, 2017, the trial court began a hearing on the State's termination petition. The parties agreed that the statutory provision under which the termination petition was brought should be amended to correct a scrivener's error and amend the statutory basis for the petition to section 1(D)(i) of the Adoption Act (id. § 1(D)(i) ) instead of section 1(I). The trial court continued the hearing to August 24, 2017. On that date, the State admitted State's exhibit No. 1, a certified copy of father's conviction for aggravated domestic battery in Tazewell County case No. 13-CF-36, over father's objection, as evidence of father's depravity. Additionally, the court took judicial notice of the entire court file in Tazewell County case No. 13-CF-36 without objection from father.

¶ 8 After the State's evidence, father testified before the court and explained that he was 19 years of age at the time of his arrest in Tazewell County case No. 13-CF-36. In August 2012, around the time of the incident in this case, father lived with his infant child, A.F., and A.F.'s biological mother.

¶ 9 Father testified that he grew up with two brothers and an adopted sister, had a good relationship with his parents, had a good upbringing, was never abused, and graduated from high school in 2011. Father advised the court that, prior to his arrest in Tazewell County case No. 13CF-36, he had been employed and his prior record included convictions of misdemeanor possession of cannabis, failure to signal, and a prior adjudication for retail theft when he was a minor. Father reported that he had previously used marijuana, mushrooms, and MDMA but stopped using drugs when his girlfriend became pregnant with A.F. Father was engaged in some DCFS services prior to his arrest in January 2013 but did not complete services, such as a drug-alcohol assessment, a psychological evaluation, or a parenting class. Father completed no additional services in prison because he was on the back of the waitlists. Father enjoys fishing, building things, playing guitar, and aquariums.

¶ 10 Father provided an explanation to the court concerning the 2012 injuries to A.F. that resulted in criminal charges against father. According to father's testimony, he accidentally fell on A.F. and broke her leg while changing her diaper in August 2012. Father admitted that his testimony was inconsistent with the agreed factual basis presented to the court as part of father's guilty plea in Tazewell County case No. 13-CF-36. Father conceded that the agreed factual basis for his guilty plea in Tazewell County case No. 13-CF-36, as recited to the trial court, established A.F.'s injuries occurred when father burped A.F. In addition, father admitted that he had given law enforcement different versions of how A.F.'s injury had occurred on prior occasions but had to tell the truth now because he did not "feel comfortable sticking to a lie." Father expected to be released from prison in January 2018, due to good behavior, with his mandatory sentence actually running to January 2021.

¶ 11 The court found father's version of events incredible and found father unfit on depravity grounds by clear and convincing evidence. The matter proceeded to a best interest hearing, and the court entered a dispositional order terminating father's parental rights on November 7, 2017. Father filed a timely notice of appeal on December 6, 2017.

¶ 12 ANALYSIS

¶ 13 On appeal, father argues that his prior conviction for aggravated domestic battery does not create a presumption of depravity under section 1(D)(i) of the Adoption Act ( 750 ILCS 50/1(D)(i) (West 2016) ). Additionally, father argues that even if his aggravated domestic battery conviction created a presumption of depravity, father adequately rebutted the presumption with his testimony. Consequently, father requests this court to set aside the trial court's order finding him unfit.

¶ 14 The standard of proof applied by a trial court when determining parental fitness is clear and convincing evidence. In re D.D. , 196 Ill. 2d 405, 422, 256 Ill.Dec. 870, 752 N.E.2d 1112 (2001). Clear and convincing evidence is said to be something more than a preponderance of the evidence but less than proof beyond a reasonable doubt. In re D.T. , 212 Ill. 2d 347, 362, 289 Ill.Dec. 11, 818 N.E.2d 1214 (2004). A trial court's fitness finding will not be reversed unless it is contrary to the manifest weight of the evidence. In re D.D. , 196 Ill. 2d at 417, 256 Ill.Dec. 870, 752 N.E.2d 1112. A finding is contrary to the manifest weight of the evidence where the opposite result is clearly evident from the review of the evidence. Id.

¶ 15 Section 1(D)(i)(7) of the Adoption Act creates a presumption of depravity as a statutory ground for parental unfitness if a parent has committed aggravated battery to any child. 750 ILCS 50/1(D)(i)(7) (West 2016). Once a presumption of depravity is established, the burden shifts from the State to the parent and requires the parent to show by clear and convincing evidence that the parent is not depraved. Id. § 1(D)(i).

¶ 16 On appeal, the State acknowledges that father's conviction for aggravated domestic battery is not one of the grounds listed in section 1(D)(i)(7) of the Adoption Act that would create a presumption of depravity. In spite of the trial court's lengthy and thoughtfully written order addressing a different approach of first impression, we accept the State's concession. Based on the position of the State for purposes of this appeal, we conclude father's conviction for aggravated domestic battery did not establish a presumption of depravity during father's fitness hearing.

¶ 17 Nonetheless, the State can establish that a parent is depraved following a conviction for aggravated domestic battery, even without the benefit of any presumption listed in section 1(D)(i)(7) of the Adoption Act. In re Adoption of K.B.D. , 2012 IL App (1st) 121558, ¶ 207, 367 Ill.Dec. 722, 982 N.E.2d 872. In such situations, absent the statutory presumption, it is more difficult, but not impossible, for the State to prove depravity based on the evidence presented to the court.

¶ 18 Our supreme court has defined depravity as "an inherent deficiency of moral sense and rectitude." (Internal quotation marks omitted.) In re Abdullah , 85 Ill. 2d 300, 305, 53 Ill.Dec. 246, 423 N.E.2d 915 (1981). We may affirm the trial court's fitness determination on any grounds appropriate in the record. People v. Novak , 163 Ill. 2d 93, 101, 205 Ill.Dec. 471, 643 N.E.2d 762 (1994).

¶ 19 Here, the State's exhibit No. 1 served to memorialize father's aggravated domestic battery conviction in which father "knowingly caused great bodily harm to A.F. (F/W DOB 7/9/12), a family member, in that he performed the acts which resulted in fractures to A.F.'s left tibia and right femur." Further, the court took judicial notice of the entire court file in Tazewell County case No. 13-CF-36, which established that A.F. was around six weeks old at the time of the crime and was, in other words, an infant. Frankly, after considering the State's evidence, it would be a struggle to imagine another factual scenario that describes a depraved parent more fittingly. Father's intentional actions caused horrific injuries to A.F. and necessitated father's extended absence from A.F.'s life while father served his prison sentence. Father clearly exhibits an "inherent deficiency of moral sense and rectitude." Therefore, we conclude the certified copy of father's conviction in Tazewell County case No. 13-CF-36, together with the contents of the record subject to the circuit court's judicial review, fulfilled the State's burden of proof and established depravity for purposes of the State's termination petition.

¶ 20 Father argues that his testimony rebutted the State's evidence and established that A.F.'s injuries were the result of an accident. However, the trial court did not find father's version of events credible. Further, father's guilty plea in Tazewell County case No. 13-CF-36, was based on the factual basis recited to the court indicating that father "knowingly" inflicted the serious injuries to A.F. Father agreed to the factual basis and admitted his guilt by entering a voluntary plea. The agreed facts supporting his guilty plea were in direct contradiction to father's sworn testimony during the hearing on the State's petition to terminate his parental rights. We recognize that the trial court is in a superior position to evaluate father's credibility. We see no reason to disturb the trial court's credibility determinations, and we conclude that father's testimony did little to combat the evidence of depravity presented by the State.

¶ 21 For these reasons, we affirm the trial court's orders finding father unfit based on depravity and terminating father's parental rights.

¶ 22 CONCLUSION

¶ 23 The judgment of the circuit court of Tazewell County is affirmed.

¶ 24 Affirmed.

Justices McDade and Schmidt concurred in the judgment and opinion.

      The record indicates that A.F. was hospitalized due to the incident in August of 2012, though the State's neglect petition states that the incident occurred in September of 2012.

      Father's conviction in Tazewell County case No. 13-CF-36 was for aggravated domestic battery, not aggravated domestic battery to a minor.


text:
    IN RE J.S., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Jonathon S., Respondent-Appellant).
    In re T.S., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Jonathon S., Respondent-Appellant).
    No. 2-18-0001
    Appellate Court of Illinois, Second District.
    Opinion filed May 11, 2018
    Azhar J. Minhas, of Belvidere, for appellant.
    Joseph P. Bruscato, State's Attorney, of Rockford (Patrick Delfino, David J. Robinson, and Sally A. Swiss, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Respondent, Jonathon S., appeals the Winnebago County circuit court's finding that he was an unfit parent and its order terminating his parental rights. Respondent argues that the trial court violated his statutory rights under the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/1-5 (West 2016) ) and his due process rights under the United States Constitution when it conducted the proceedings in his absence. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On the afternoon of February 19, 2014, Rockford police responded to a report of a child calling out for help at the home of J.S. and T.S. Police found seven-year-old J.S. at home alone. He stated that he had been alone in the house since coming home from school. J.S. lived in the house with his mother, his mother's paramour, and his three-year-old brother, T.S. He was unable to state where his mother worked, and he did not know a telephone number where she could be contacted. J.S. shared that he sometimes babysat T.S. and the one-year-old son of his mother's paramour. Police also found marijuana, scales, and a BB pistol on a dresser. Later that evening, the Department of Children and Family Services (DCFS) took protective custody of J.S. and T.S.

¶ 4 When the boys were taken into protective custody, their father, respondent, was incarcerated at a federal correctional facility in Wisconsin, where he remained throughout the entirety of these proceedings . Respondent had been named in a 20-count federal indictment in Iowa alleging a conspiracy to manufacture and distribute large quantities of illicit drugs from 2008 to 2011. That indictment resulted in his conviction in 2012 of drug trafficking crimes and possession of a firearm in furtherance of drug trafficking crimes. 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C) (2012) ; 21 U.S.C. § 846 (2012) ; 18 U.S.C. § 924(c)(1)(A)(i) (2012). Respondent also had prior felony convictions in Illinois. In 2007, he was convicted of unlawful delivery of a controlled substance within 1000 feet of public housing, a Class X felony, when he twice sold crack cocaine to a cooperating witness. 720 ILCS 570/401(c)(2), 407(b)(1) (West 2006). In 2005, respondent was convicted of conspiracy to commit armed robbery, a Class 4 felony, when he and his coconspirators robbed a convenience store clerk in Boone County of $575 while using a handgun. 720 ILCS 5/8-2(a) (West 2002).

¶ 5 On February 21, 2014, the State filed neglect petitions as to J.S. and T.S. On that day, the trial court was informed that respondent was incarcerated at a federal correctional facility in Wisconsin. The mother waived her right to a shelter-care hearing, and the trial court found that there was probable cause to believe that the children were neglected. It granted temporary guardianship of J.S. and T.S. to DCFS. On April 22, 2014, DCFS conducted an integrated assessment of respondent by phone, and he indicated that he had started parenting classes and was very interested in the outcome of this case. On April 28, 2014, after being informed that respondent wished to be represented, the trial court appointed counsel. On May 22, 2014, respondent's attorney informed the trial court that a writ of habeas corpus had been issued directing the federal correctional facility to deliver respondent to the court but that the writ had not been honored. The trial court had previously noted that it did not believe that the federal government would honor a state writ.

¶ 6 On June 26, 2014, respondent's attorney notified the trial court that she had spoken with respondent and that he would be forwarding documentation of various services he was engaging in while incarcerated. Respondent, through counsel, waived his right to an adjudicatory hearing. The mother stipulated to one count of the neglect petition, which alleged that the minors had been left unsupervised for an unreasonable period of time. The trial court found that J.S. and T.S. were neglected minors, appointed DCFS as their legal guardian and custodian, and ordered both parents to cooperate with DCFS as to all recommended treatments and services.

¶ 7 On December 8, 2014, the trial court conducted the first permanency hearing, which covered the period beginning on June 26, 2014, and ending on December 8, 2014. The assigned caseworker for J.S. and T.S. was employed by Children's Home + Aid (CHASI), which contracts with DCFS to provide case management services. He testified that respondent had participated in an integrated assessment and had been assigned a service plan but that respondent had not maintained contact with CHASI since that time. Respondent also had not responded to several letters sent by the caseworker, the latest of which was sent in September 2014. The court directed CHASI to make more vigorous attempts to contact respondent and found that respondent and the minors' mother had both made reasonable efforts and progress toward their service plans during this review period.

¶ 8 On May 4, 2015, at the second permanency hearing, covering the period from December 9, 2014, to May 4, 2015, the CHASI caseworker submitted a report indicating that he had established regular contact with respondent via e-mail. The caseworker also reported that he had received no documentation as to any services completed by respondent or a signed copy of respondent's service plan as requested. Additionally, the caseworker testified that staff at the federal correctional facility declined to provide any information as to services completed by respondent, stating that they could not do so without respondent's consent. The trial court found that the mother had made reasonable efforts and progress, but that respondent had not made reasonable efforts or progress toward his plan during that period. The court made the same findings at several subsequent permanency hearings until July 25, 2017, when it found that the mother had also failed to make reasonable efforts or progress. At that time, the court changed the goal from returning the children home within 12 months to "substitute care pending court determination of termination of parental rights."

¶ 9 On July 28, 2017, the State filed a petition to terminate the parental rights of both respondent and the mother. The State alleged that respondent was unfit on five grounds: (1) he failed to make reasonable efforts to correct the conditions that were the basis of the removal of the children during five periods of review ( 750 ILCS 50/1(D)(m)(i) (West 2016) ); (2) he failed to make reasonable progress toward the return of the children during six periods of review ( 750 ILCS 50/1(D)(m)(ii) (West 2016) ); (3) he failed to maintain a reasonable degree of interest, concern, or responsibility as to the children's welfare ( 750 ILCS 50/1(D)(b) (West 2016) ); (4) he was depraved ( 750 ILCS 50/1(D)(i) (West 2016) ); and (5) he failed to protect the children from conditions within his environment injurious to the children's welfare ( 750 ILCS 50/1(D)(g) (West 2016) ).

¶ 10 On September 12, 2017, at the arraignment on the State's petition, respondent's attorney informed the court that she had been sending correspondence via regular mail and e-mail to respondent but that she had not received anything back from him in several months. During that same hearing, respondent's brother indicated to the court that he was in regular communication with respondent and that he would pass on the court's concern that respondent contact his attorney. Sometime before a status date on November 3, 2017, respondent sent a letter directly to the court. At that status date, the court announced that it had opened the letter, unaware of the contents, and passed it to respondent's attorney upon realizing its contents. In the letter, the contents of which were then presented to the court by respondent's attorney, respondent asserted that he was to be released to a halfway house in the spring of 2018 and that he had secured employment upon his release. He requested that the court delay proceedings until he had "a chance to get out and prove himself." The court expressed its understanding of respondent's position but opined that the permanency needs of the children demanded that it not delay the proceedings any longer. On that same date, the mother indicated through her attorney that she was prepared to consent to adoption by a specified person. With the expectation that the mother would sign the consent, the court scheduled respondent's unfitness and best-interest hearings for December 22, 2017. It encouraged respondent's attorney to gather any documentary evidence that respondent might have. The court again noted that federal authorities might not honor a state writ to have him appear personally. However, if respondent's attorney could arrange it with the federal facility, the court would allow respondent to participate telephonically. The court stated: "I'm just trying to afford him the opportunity to participate as much as he can."

¶ 11 On December 22, 2017, at the unfitness hearing, the trial court started by announcing that respondent's attorney, after extensive effort, had been unable to arrange telephonic participation for respondent. The court announced that it would be proceeding in respondent's absence but with his attorney present.

¶ 12 The State submitted documentary evidence of respondent's felony convictions, along with the charging instruments that led to the convictions. The State's first witness was the caseworker for CHASI who was assigned to the case from August 2014 to April 2017. He testified that, during that period, he regularly sent respondent copies of his service plans, court orders, consent forms, and self-addressed stamped envelopes. All correspondence was sent via registered mail with return receipt requested, and the caseworker believed that all correspondence was received at the prison. He explained that the self-addressed stamped envelopes were included to give respondent an opportunity to communicate and send back documents, such as signed copies of his service plans, consent forms, or documents supporting his completion of required programs. He further testified that respondent never signed the consent forms, which prevented the caseworker from obtaining any information from the prison about respondent or the particular services available to him. The caseworker testified that he received a letter from respondent in October 2015, in which he stated that he would not sign anything, because he was not the reason the children were taken into care. The caseworker noted that respondent sent him certificates for coursework that respondent purported to have completed in prison. These included a parenting program, a drug abuse education course, an auto sales and marketing program, a public speaking program, and a commercial driver's license familiarization class. The caseworker described his efforts to arrange visitation between respondent and his children but testified that respondent's failure to sign consent forms and his insistence that the children be accompanied by specific family members prevented any visits from ever occurring. A second caseworker, who had been assigned to the case for the eight months preceding the hearing, testified that respondent communicated only sparingly with her by e-mail and went several months without answering inquiries. Following this testimony, the State rested and asked that the trial court dismiss the fifth count in its petition to terminate parental rights-that respondent failed to protect the children from conditions within his environment injurious to the children's welfare-which the court did.

¶ 13 Respondent's attorney asked the court to take judicial notice of the certificates respondent had provided to the CHASI caseworker. The court did so over the State's objection, indicating that it would likely give them little weight, considering that respondent refused to give consent to the caseworker that would have permitted him to verify these and other records with prison officials. Respondent rested without presenting any other evidence. During her closing argument, respondent's attorney argued that the evidence of respondent's felony convictions entered by the State had not raised the statutory presumption of depravity and that the court did not have enough information to find that respondent had not made reasonable progress toward completing his service plan.

¶ 14 The trial court found that the State's submission of three felony convictions, one of which was within five years of the State's petition to terminate parental rights, raised a rebuttable presumption that respondent was depraved, that the presumption had not been rebutted, and that there had been no evidence of rehabilitation. The court further opined that it would have found depravity even without the presumption, as the charging instruments offered by the State provided sufficient details to prove depravity by clear and convincing evidence. Additionally, the court found that respondent had failed to show a reasonable degree of interest, concern, or responsibility and had failed to make reasonable progress or efforts toward his plan during the relevant periods. The court noted that respondent's refusal to sign consent forms was self-defeating and prevented CHASI caseworkers from accessing his prison records. The court found respondent unfit as to all remaining counts and then moved to the best-interest hearing.

¶ 15 The State presented one witness at the best-interest hearing, who testified that the children had been doing exceedingly well in their foster home and that the foster family wished to adopt them. The court expressed the need to provide a permanent solution for these children. Moreover, the court concluded, respondent had not shown an ability to abide by his service plans and he still had a lengthy federal sentence to complete. Consequently, the court found that the State had proved by a preponderance of the evidence that it was in the best interests of the children to terminate respondent's parental rights. Respondent timely appealed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, respondent contends that the trial court violated both his statutory and constitutional rights when it denied his motion for a continuance and proceeded with the unfitness and best-interest hearings in his absence. In response, the State argues that incarcerated parents do not have an absolute statutory right to be present. Moreover, the State argues that respondent's due process rights were not violated, because (1) the trial court offered alternative means for respondent to participate, (2) he was represented by counsel throughout the proceedings, and (3) the permanency interests of the children weighed heavily in favor of conducting the hearings.

¶ 18 The right of natural parents to the care and custody of their children is a fundamental liberty interest protected by the due process clause of the fourteenth amendment to the United States Constitution. U.S. Const., amend. XIV, § 1 ; Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Due process is not a fixed, hypertechnical mold, but a flexible concept that affords procedural protections as demanded by specific situations. Mathews v. Eldridge , 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We analyze due process claims arising out of parental termination cases by balancing the three factors outlined in Mathews by the Supreme Court of the United States: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used; and (3) the government's interest, which includes the function involved as well as the fiscal and administrative costs of any additional or substitute procedures. Mathews , 424 U.S. at 335, 96 S.Ct. 893 ; In re C.J. , 272 Ill. App. 3d 461, 465, 208 Ill.Dec. 833, 650 N.E.2d 290 (1995).

¶ 19 In Illinois, proceedings to terminate parental rights are conducted in a two-step process. In re Keyon R. , 2017 IL App (2d) 160657, ¶ 16, 411 Ill.Dec. 532, 73 N.E.3d 616. First, the State must prove by clear and convincing evidence at least one ground for parental unfitness under section 1(D) of the Adoption Act ( 750 ILCS 50/1(D) (West 2016) ). In re Keyon R. , 2017 IL App (2d) 160657, ¶ 16, 411 Ill.Dec. 532, 73 N.E.3d 616. If unfitness is found, the court moves to the second hearing, where the court must determine by a preponderance of the evidence the best interests of the child. In re D.T. , 212 Ill. 2d 347, 367, 289 Ill.Dec. 11, 818 N.E.2d 1214 (2004). A parent has a statutory right to be present during these hearings: "[T]he minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, [and] to cross-examine witnesses * * *." 705 ILCS 405/1-5 (West 2016). Parental presence, however, is not mandatory. In re M.R. , 316 Ill. App. 3d 399, 402, 249 Ill.Dec. 325, 736 N.E.2d 167 (2000). For example, trial courts may conduct these hearings even though an incarcerated parent is absent. See In re A.M. , 402 Ill. App. 3d 720, 725-26, 342 Ill.Dec. 191, 932 N.E.2d 82 (2010). "[I]t is well established that lawful incarceration necessarily makes unavailable many rights and privileges of the ordinary citizen." In re C.J. , 272 Ill. App. 3d at 464, 208 Ill.Dec. 833, 650 N.E.2d 290 (citing Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ).

¶ 20 Here, respondent asserts that the trial court violated his statutory right to be present by holding the hearings in his absence. However, the record does not support respondent's contention. Respondent was lawfully incarcerated in a federal correctional facility in another state, which rendered him unable to exercise his statutory right. As noted above, the Act does not require that parents be present, nor is the trial court obliged to delay hearings until an incarcerated individual is free to appear in person. In re C.J. , 272 Ill. App. 3d at 466, 208 Ill.Dec. 833, 650 N.E.2d 290. Additionally, the trial court made efforts to afford respondent opportunities to participate. It appointed counsel as soon as it became aware that respondent desired to participate. It issued a writ of habeas corpus to have respondent brought before the court. It directed respondent's attorney to inquire with prison officials as to whether respondent might be allowed to participate telephonically. These were all reasonable efforts by the trial court to accommodate respondent.

¶ 21 Apart from his right under state law, respondent retained rights to due process under the United States Constitution. U.S. Const., amend. XIV, § 1. Therefore, we apply the balancing factors in Mathews to the facts of this case to determine whether respondent was denied due process.

¶ 22 Applying these factors, the first favors respondent. He clearly had an important, deep-seated interest in the outcome of the termination proceedings, specifically, his interest in maintaining a parental relationship with J.S. and T.S. In re D.R. , 307 Ill. App. 3d 478, 483, 241 Ill.Dec. 93, 718 N.E.2d 664 (1999).

¶ 23 The second factor requires that we look to the procedures employed by the trial court and assess the potential that they erroneously deprived respondent of his parental relationship with J.S. and T.S. While respondent was not physically present in court, he was represented by his attorney, who cross-examined each of the State's witnesses and argued vigorously on his behalf. In light of the strength of the evidence presented against respondent, it is highly unlikely that his presence would have made any difference in the outcome. The State offered evidence of his felony convictions, which gave rise to a statutory rebuttable presumption of depravity. But, even had respondent been present and able to rebut the presumption, the trial court indicated that the facts and circumstances underlying the felony convictions revealed a pattern of behavior that would have led it to conclude that respondent was depraved. (Respondent does not challenge the trial court's factual findings from the best-interest hearing.)

¶ 24 Additionally, the trial court took judicial notice of the documents provided by respondent and found them insufficient to establish that he had made reasonable progress or efforts toward his plan. The sole reason that the court did not have more detailed information was respondent's failure to grant consent to CHASI caseworkers to access his prison records, which in itself supported a finding that respondent failed to make reasonable progress or efforts. His presence in the courtroom could not have excused this obstructive behavior. The parameters of due process do not provide an absolute right to be present, nor do they require continued delays until an incarcerated person is released. "All that is necessary is that the procedures be tailored, in light of the decision to be made, to 'the capacities and circumstances of those who are to be heard,' to insure that they are given a meaningful opportunity to present their case." Mathews , 424 U.S. at 349, 96 S.Ct. 893 (quoting Goldberg v. Kelly , 397 U.S. 254, 268-69, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ). The trial court made reasonable efforts to tailor respondent's participation in light of his circumstances, and he had ample opportunity to present his case. It is clear that the procedures used by the trial court created little to no risk of erroneously depriving respondent of his rights.

¶ 25 As to the third factor, as parens patriae for the removed children, the government's interest is to adjudicate the matter as expeditiously as possible. In re C.J. , 272 Ill. App. 3d at 466, 208 Ill.Dec. 833, 650 N.E.2d 290. A delay in these types of proceedings "imposes a serious cost on the functions of government, as well as an intangible cost to the lives of the children involved." In re M.R. , 316 Ill. App. 3d at 403, 249 Ill.Dec. 325, 736 N.E.2d 167 (citing In re D.L. , 191 Ill. 2d 1, 245 Ill.Dec. 256, 727 N.E.2d 990 (2000) ). J.S. and T.S. were only four years and one year old respectively when respondent was incarcerated. Their bond with him was reported as either weak or nonexistent, and they had had no personal contact with him in the four years since their removal. On the other hand, testimony indicated that they were thriving with their foster family. DCFS reported that their homecare and educational needs were being met, that the foster family was willing to adopt them both, and that the biological mother had signed specific consents for them to be adopted by this family. Without doubt, the government's interest weighed against further delay, particularly when the delay would be for an undetermined period of time.

¶ 26 Respondent cites In re C.J. in support of his contention that he should have been granted a continuance in this matter. In In re C.J. , the appellate court determined that a violation of due process occurred when the trial court denied the incarcerated respondent's request to participate in the termination proceedings by means other than actual presence. In re C.J. , 272 Ill. App. 3d at 466, 208 Ill.Dec. 833, 650 N.E.2d 290. The respondent first asked the trial court to continue the case for approximately a year until her release. In re C.J. , 272 Ill. App. 3d at 463, 208 Ill.Dec. 833, 650 N.E.2d 290. Anticipating a denial of that motion, the respondent alternatively asked the trial court for a continuance of the unfitness hearing at the end of the State's evidence "so she could review the transcripts from the proceeding and respond accordingly." In re C.J. , 272 Ill. App. 3d at 463, 208 Ill.Dec. 833, 650 N.E.2d 290. The trial court also denied that motion. The appellate court determined that, although it was unnecessary for the trial court to grant the continuance until the respondent was released, it should have considered alternative methods to allow her participation. In re C.J. , 272 Ill. App. 3d at 466, 208 Ill.Dec. 833, 650 N.E.2d 290. The appellate court reversed and remanded, directing the trial court to use its discretion in offering the respondent a better chance to participate. In re C.J. , 272 Ill. App. 3d at 466, 208 Ill.Dec. 833, 650 N.E.2d 290.

¶ 27 In re C.J. is distinguishable from the present case. The respondent there was requesting a continuance until after her release at a date certain from an Ohio prison. Here, respondent requested a continuance until after he was released, but although he indicated to the court in his letter that he would be released in the spring of 2018, the official release date on the Bureau of Prisons website was February 28, 2019. So, unlike in In re C.J. , the information was conflicting. Moreover, the respondent in In re C.J. offered an alternative means of participating in the hearing, whereas respondent in this case proposed no such alternative. Instead, it was the trial court here that suggested that respondent's attorney should attempt to set up a telephonic link for the hearing. The trial court also indicated that it would accept "certificates or whatever documentary evidence [respondent] wishes" at the unfitness hearing, explaining: "I'm just trying to afford him the opportunity to participate as much as he can. If it can't be done, I understand. I certainly would like to offer him the ability." Unlike in In re C.J. , where the trial court specifically denied the respondent's request to participate through alternative means, the trial court here went out of its way to suggest and accommodate alternative methods of participation for the incarcerated respondent.

¶ 28 For all of the foregoing reasons, the trial court did not deny respondent's statutory right to be present or violate his due process rights under the United States Constitution.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the judgment of the circuit court.

¶ 31 Affirmed.

Justices Burke and Schostok concurred in the judgment and opinion.

      On November 8, 2017, the mother appeared before the court. She signed a final and irrevocable consent to adoption by a specified person and was admonished by the court to ensure that she understood her rights and was acting of her own free will.

      "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 2016).

      Respondent indicated in his letter to the court and to his caseworker that he expected to be released to a halfway house in May 2018, but this could not be confirmed with prison officials due to respondent's failure to sign consent forms. The trial court heard testimony from the same caseworker that she had accessed the prison's public website and learned that respondent was due to be released on February 28, 2019.