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State tries to use AUUW conviction to terminate parental rights, gets schooled (In re N.G.)


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#1 skinnyb82

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Posted 22 January 2017 - 11:31 AM

State is at it again and it's abundantly clear that they just do not get it. And Aguilar strikes again. The Third District made it abundantly clear that pre-Aguilar AUUW convictions are null and void from the second they were entered, thus cannot be used as a depravity (in this instance) when determine parental fitness. The circuit court refused to vacate his convictions. This is repugnant. He had to appeal his AUUW conviction as a collateral issue since the circuit wouldn't play ball nor would anyone else and, of course, the State fought it tooth-and-nail (to keep a man from his child, how noble).

Admonishing the circuit court for refusing to vacate the null AUUW conviction, thus depriving the respondent of liberty. The liberty interest being his parental rights.

"As previously indicated, we have, sua sponte, supplemented the record in this case. We have done so because we believe that a refusal to vacate the 2008 conviction at this juncture would elevate form over substance, constitute an affront to judicial economy, and, perhaps most importantly, result in an unfounded deprivation of a fundamental liberty interest (see, e.g., Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct.2584, 2600 (2015) (recognizing, while analyzing the right to marry, the great importance of parental rights and quoting Zablocki v. Redhail, 434 U.S. 374, 384 (1978) for the statement that 'the right to marry, establish a home and bring up children is a central part of the liberty protected by the Due Process Clause [citation]'))."

Felony conviction is nullity from inception, but not vacated, still MAY NOT be used as an aggravating factor when determining parental fitness. Seems the Third District just adopted the reasoning applied in the First District's reversing an AUUW conviction stemming from a Terry Stop for a (now) lawful activity. Cannot punish someone under the "Krull good faith exception" when a statute has been declared void ab initio. The courts need to get that through their heads. No amount of "if, then..." legal gymnastics will make a pre-Aguilar AUUW/UUW conviction "kosher."

"Under Aguilar, the respondent’s 2008 conviction for aggravated unlawful use of a weapon was a nullity from the moment it was entered. It is a nullity now; one that has not yet been officially vacated. In this case, the State chose to pursue the termination of the respondents parental rights based only on depravity premised on three felony convictions. Without the 2008 conviction, the State cannot establish that the respondent was depraved pursuant to section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2014)), and therefore the respondent’s parental rights could not have been terminated on that basis."

Full opinion below

http://www.illinoisc...ict/3160277.pdf

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#2 Bitter Clinger

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Posted 27 January 2017 - 11:44 AM

So is the nullity of the conviction due to the old Illinois law against carry being declared unconstitutional? Based on the dates, I'm assuming that might be the case? An I reading that correctly?

#3 skinnyb82

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Posted 28 January 2017 - 11:21 AM

Correct. Any conviction under the portions of AUUW/UUW declared void ab initio are a nullity from the second they were entered but the conviction isn't automatically vacated because it's null, a court must vacate the conviction. That's basically what the appellate court stated. I'm not...this guy is far from parent of the year but at least he's trying, unlike the majority of felons (and other scum) who don't care about their children. Way I see it, he's making an attempt at being a father and the State is trying to remove a child's father from his/her life. The State is the bad guy here. Sent from my VS987 using Tapatalk
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#4 skinnyb82

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Posted 28 January 2017 - 11:22 AM

Correct. Any conviction under the portions of AUUW/UUW declared void ab initio are a nullity from the second they were entered but the conviction isn't automatically vacated because it's null, a court must vacate the conviction. That's basically what the appellate court stated. I'm not...this guy is far from parent of the year but at least he's trying, unlike the majority of felons (and other scum) who don't care about their children. Way I see it, he's making an attempt at being a father and the State is trying to remove a child's father from his/her life. The State is the bad guy here. Sent from my VS987 using Tapatalk
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#5 Tango7

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Posted 28 January 2017 - 02:25 PM

Hey, Lil' Lisa and her ilk fought the ISP to publicly release FOID info, and Chicago spent untold millions of dollars of taxpayer money to keep those same taxpayers ready victims.

Par for the course. Glad the District slapped 'em back into place.
You will not 'rise to the occasion', you will default to your level of training - plan accordingly.

Despite their rallying around us at election time, honoring only 8 hours of Illinois' 40+ hour law enforcement class towards a 16 hour requirement shows the contempt that our elected officials hold us in.

#6 BigJim

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Posted 31 January 2017 - 01:12 PM

The state should be made to pick up the guy's legal expenses since this should have never had to go to court.


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And I will not let my future go on,
without the help of my soul

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#7 skinnyb82

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Posted 17 February 2017 - 12:54 PM

No, he did need to file a Section 2-1401 petition for post-conviction relief as an AUUW conviction isn't automatically vacated. Must be vacated by the circuit (or, in this case, the appellate court). Aguilar may have voided the statute, but it's the responsibility of the Defendant(s) to notify the court. Another case involving a tangential issue was just addressed by the Illinois Supreme Court after the State tried to reinstate nol-prossed counts of AUUW approximately eight years after the Defendant's plea of guilty. Defendant properly petitioned for post-conviction relief, which was granted. I'll likely start another thread on that case when I get some free time. Golly, I remember how much free time I had before my daughter was born. Kids these days heh. Sent from my VS987 using Tapatalk
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