In re Donald A.G. ( 2006 )

Docket No. 100965.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re DONALD A.G., a Minor (The People of the State of
Illinois, Appellant, v. Tony Gaylord, Appellee).
Opinion filed May 18, 2006.
JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.
OPINION
The circuit court of Vermilion County found respondent,
Tony Gaylord, to be an unfit parent on the ground of depravity
under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i)
(West 2002)). Respondent was found to be depraved because
he was convicted of the offense of predatory criminal sexual
assault of a child, in that he committed an act of sexual
penetration with a child under the age of 13. See 720 ILCS
5/12B14.1(a)(1) (West 1998). The court subsequently
terminated respondent=s parental rights. Respondent appealed,
and the appellate court reversed the finding of unfitness. 357
Ill. App. 3d 934. We granted the State=s petition for leave to
appeal, and now reverse the judgment of the appellate court.
BACKGROUND
On July 16, 2003, respondent=s paramour, Heather Miller,
gave birth to their son, Donald A.G. The record demonstrates
that at the time of Donald=s birth, respondent was in custody
pending trial for the offense of predatory criminal sexual
assault of a child. Respondent was alleged to have committed
an act of sexual penetration against D.B., who was five years
old at the time the act was committed. Respondent was
ultimately convicted and sentenced to 20 years= imprisonment.
On January 28, 2004, the State filed a petition for
adjudication of wardship alleging that Donald was neglected
because Miller was not providing adequate food. The record
reveals that Donald was hospitalized on December 19, 2003,
for dehydration because he was not being fed. On January 20,
2004, a caseworker went to visit Miller and Donald to check on
Donald=s well-being. The caseworker found Donald lying in a
playpen, looking ill, and suffering from cold-like symptoms.
Donald=s T-shirt had come off, and it was wrapped around his
neck. His mother was asleep, and when awakened, revealed
that she had not fed Donald for 18 hours. The caseworker
arranged for Donald to be taken into protective custody.
Donald was placed in foster care and adjudication proceedings
were initiated. Notably, the record reveals that Donald=s foster
parents previously served as foster parents to Donald=s older
brother, also the child of respondent and Miller. The foster
parents subsequently adopted Donald=s older brother and
intend to adopt Donald.
Donald was adjudicated neglected, and after a period of
several months, petitions to terminate both respondent=s and
Miller=s parental rights were filed. Miller=s parental rights were
ultimately terminated, and she did not contest the termination.
The petition filed against respondent alleged that he was
unfit because: he failed to maintain a reasonable degree of
interest, concern and responsibility toward Donald (750 ILCS
50/1(D)(b) (West 2002)); he is depraved due to a felony
conviction for predatory criminal sexual assault of a child (750
ILCS 50/1(D)(i) (West 2002)); and he is incarcerated, provided
little or no support for Donald prior to incarceration, and his
incarceration will prevent him from parenting for more than two
years (750 ILCS 50/1(D)(r) (West 2002)). Respondent was
found unfit under sections 1(D)(i) and 1(D)(r) of the Adoption
Act. Both findings of unfitness were reversed by the appellate
court. The State, however, only contests the appellate court=s
finding with respect to the allegation of depravity. Accordingly,
the facts set forth primarily relate to that allegation.
At the fitness hearing, caseworker Jacqui Walters from the
Department of Children and Family Services (DCFS) testified
that respondent never contacted DCFS to arrange visitation
with Donald and never attempted to contact Donald through
cards, letters, or gifts. She added that she sent respondent a
copy of the DCFS service plan, which included
recommendations for services such as parenting classes and
sex offender treatment, but respondent never made contact
with her to discuss the plan or inquire about contacting his son.
Respondent testified that he has been incarcerated since May
19, 2003, and at the time of his testimony, he was housed in
the Danville Correctional Center. A certified copy of his
conviction for predatory criminal sexual assault of a child was
admitted into evidence. Respondent stated that he was
appealing his criminal conviction and hoped to get out of
prison, obtain employment and a place to live, and raise
Donald. He added that he was enrolled in GED classes at
Danville, but was not participating in parenting classes because
none were offered. There was no indication that he had
initiated sex offender treatment. Respondent maintained that
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he did not commit the crime for which he was convicted and
asserted that he did not have any other felony convictions.
Judge DeArmond, who presided over the fitness hearing,
had also presided over respondent=s criminal trial. Defense
counsel reminded the judge that respondent maintained that he
did not commit the offense throughout the criminal trial and that
the victim recanted. The trial judge stated: AI heard the case ***
[a]nd I know what the testimony was.@ Defense counsel then
asked the judge Ato judicially notice the previous proceedings
sinceBfrankly, since we=re fortunate enough to be in front of the
Judge that heard that.@ The court responded:
AI=ll take judicial notice that Mr. Gaylord denied
committing the offense; that it was a fairly unique fact
situation in that the minor reported the allegations,
subsequently recanted the allegations, and that there
were issues with regard to whether there was pressure
applied to the minor to get them to recant; but the
testimony of Mr. Gaylord was that it did not happen.@
In closing arguments, the State argued that respondent
should be found depraved as a result of his conviction for
predatory criminal sexual assault of a child. The following
colloquy ensued as a result of that argument:
ATHE COURT: How does that qualify? The statute
says aggravated criminal sexual assault.
MS. RIGGS [Assistant State=s Attorney]: I don=t have
the adoption code with me. I thought it was just any
sexual conviction. But I could be wrong.
THE COURT: I could be wrong, too. It lists a number
of offenses for which a person can be found depraved.
And on the next page, the very last offense, is
aggravated criminal sexual assault. I mean, I may be
missingBmaybe there=s some language in there that
says any sexual offense. And if so, I=d take that into
consideration. It=s just it kind of looks like there=s two
classes. There=s those which createBthose for which a
person can be found depraved, period. And then there=s
another group for which there=s a rebuttable
presumption that they=re depraved.@
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Respondent=s counsel also addressed this issue in closing
argument, stating:
A[T]o the extent that we=re dealing with some sort of
essentially a conclusive presumption, that the conviction
ipso facto makes him depraved, or whether it=s
somehow a rebuttable presumption, but we would
suggest that Mr. Gaylord at least ought to have an
opportunity to contest whether he is depraved and, as
best he can, has done so by offering testimony today
and by the Court judicially noticing his previous
testimony that essentially he did not participate on any
assaultive behavior on the victim.@
In rendering its judgment, the trial court did not consider the
presumption. Instead, the court considered whether a single
conviction could support a finding of depravity as defined by
this court: A[D]epravity is > Aan inherent deficiency of moral
sense and rectitude.@ = @ In re Abdullah, 85 Ill. 2d 300, 305
(1981), quoting Stalder v. Stone, 412 Ill. 488, 498 (1952). The
trial court also looked to this court=s analysis in Abdullah, along
with the appellate court=s holdings in In re S.H., 284 Ill. App. 3d
392 (1996), and In re A.H., 215 Ill. App. 3d 522 (1991), and
concluded that the case law Adoes not prohibit a finding of
depravity based on a single criminal conviction.@ The court
added: A[a]nd when you consider the nature of the criminal
conviction in relation to the nature of the case we=re here on, I
think it does constitute a sufficient basis for a finding of
depravity under Subsection (D)(i). And I find that there is clear
and convincing evidence based upon the felony conviction.@
Respondent appealed the trial court=s judgment, and the
appellate court reversed, with one justice dissenting. The
appellate court found that the trial court needed Asomething
more@ than the Amere fact@ of respondent=s conviction for
predatory criminal sexual assault of a child to support a finding
of depravity. 357 Ill. App. 3d at 940. The appellate court
concluded that the trial court only took judicial notice of
respondent=s denials and the victim=s recantation, but did not
consider the underlying facts of the criminal case. 357 Ill. App.
3d at 940. Additionally, the appellate court recognized that
section 1(D)(i) of the Adoption Act had been amended to
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include specific offenses which triggered a presumption of
depravity. 357 Ill. App. 3d at 940. The appellate court noted
that predatory criminal sexual assault of a child was not
enumerated in the statute, and thus declined to Aassume that
the legislature intended to include predatory criminal sexual
assault of a child but simply neglected to do so.@ 357 Ill. App.
3d at 940. The appellate court ultimately concluded Athat the
burden was squarely on the State to provide evidence of
respondent=s depravity beyond the mere fact of his conviction
for predatory criminal sexual assault of a child,@ and its failure
to do so rendered the trial court=s finding of depravity against
the manifest weight of the evidence. 357 Ill. App. 3d at 940-41.
We granted the State=s petition for leave to appeal. 177 Ill. 2d
R. 315(a).
Notably, since the filing of the State=s petition, the appellate
court has issued a Rule 23 order in respondent=s criminal
appeal, People v. Gaylord, No. 4B04B0169 (January 18, 2006)
(unpublished order under Supreme Court Rule 23). At oral
argument, respondent requested that this court take judicial
notice of the Rule 23 order and the facts contained therein. 1
The State does not object, as it was the State=s position that
the trial court took judicial notice of the underlying facts of
respondent=s criminal conviction during the fitness hearing.
Accordingly, we take judicial notice of the Rule 23 order.
According to the Rule 23 order, the evidence presented at
respondent=s criminal trial demonstrated that DCFS was called
to investigate a charge of environmental neglect against Jason
and Tabitha Traylor. The DCFS investigator interviewed D.B.,
Tabitha=s daughter. D.B. was asked if she was afraid of
1
Respondent previously filed a motion to strike portions of the State=s
brief and appendix which contained transcripts from the underlying criminal
proceeding, the trial court=s judgment and a copy of the sentencing order.
Respondent maintained that this information was not properly introduced at
trial and should not be considered here. We took the motion with the case.
However, since the filing of the motion, respondent has asked this court to
judicially notice the Rule 23 order which contains this information.
Accordingly, respondent=s motion to strike is rendered moot and is thus
denied.
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anyone, and she responded that she was afraid of respondent.
She stated that respondent=s private part had touched her
private part. D.B. added that she was afraid she would get in
trouble for telling because it was a secret.
A second DCFS investigator interviewed D.B. later that day.
D.B. described the incident, stating that respondent put his
private part inside her private part after giving her a bath. She
stated that it hurt, but she did not cry. D.B. described the way
respondent=s private part looked and where it was located. She
also stated that respondent placed his finger and a spoon in
her vagina. When asked what she thought should happen to
respondent, she replied that he should go to jail.
D.B. recanted her statements when testifying at trial. She
averred that the DCFS investigator told her what to say and
that respondent never touched her. The Traylors also testified,
on respondent=s behalf, that D.B. recanted her statements to
them. They added that they had more than 10 adults talk to
D.B. about her accusations against respondent, and she
recanted to those adults as well. Additionally, they indicated
that they considered respondent a Avery good@ friend.
Respondent testified at the trial. He denied committing the
crime for which he was charged. However, in contrast to his
testimony at the fitness hearing, he admitted that he had
previously been convicted of criminal sexual assault, was
placed on probation, and ordered to register as a sex offender
for 10 years. He averred that he was 18 years old when he
committed that offense and the victim was 16 years old.
The trial court concluded that D.B.=s statements to the
DCFS investigators were credible and further found that D.B.=s
recantation was the result of pressure from her parents, who
were Avery supportive@ of respondent. The trial court further
found that it was Aobvious@ that D.B.=s parents had Aput
substantial pressure on this victim.@ The court thus found
respondent guilty of predatory criminal sexual assault of a
child. The appellate court affirmed. People v. Gaylord, No.
4B04B0169 (January 18, 2006) (unpublished order under
Supreme Court Rule 23). Respondent has since filed a petition
for leave to appeal to this court on the criminal matter. People
v. Gaylord, No. 102063 (pet. for leave to appeal pending).
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With these background facts, we now consider whether the
appellate court properly reversed the trial court=s finding of
unfitness and its ultimate termination of respondent=s parental
rights.
ANALYSIS
Under the Juvenile Court Act of 1987, the involuntary
termination of parental rights involves a two-step process. First,
there must be a showing, based on clear and convincing
evidence, that the parent is Aunfit,@ as that term is defined in
section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West
2002)). If the court makes a finding of unfitness, the court then
considers whether it is in the best interests of the child that
parental rights be terminated. See 705 ILCS 405/2B29(2) (West
2002); In re C.N., 196 Ill. 2d 181, 209 (2001). Although section
1(D) of the Adoption Act sets forth numerous grounds under
which a parent may be deemed Aunfit,@ any one ground,
properly proven, is sufficient to enter a finding of unfitness. See
750 ILCS 50/1(D) (West 2002); In re C.W., 199 Ill. 2d 198, 210
(2002).
In this case, as previously stated, the trial court found
respondent unfit on the ground of depravity. The trial court did
not make this finding in reliance on a presumption of depravity.
Rather, the trial court concluded, based on the evidence of
respondent=s criminal conviction, that the State met its burden
of proving by clear and convincing evidence that respondent
was depraved, in that he had an Ainherent deficiency of moral
sense and rectitude.@ See In re Abdullah, 85 Ill. 2d at 305. The
appellate court reversed the trial court=s judgment, finding that
respondent=s conviction for predatory criminal sexual assault of
a child was insufficient, by itself, to support a finding of
depravity. The State asserts that the appellate court erred in
concluding that the State failed to meet its burden. According
to the State, the fact that respondent was convicted of the
offense of predatory criminal sexual assault of a child triggers a
rebuttable presumption of depravity which can only be
overcome if respondent shows, by clear and convincing
evidence, that he is not depraved.
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Respondent asserts that the plain language of section
1(D)(i) demonstrates that the offense of predatory criminal
sexual assault of a child does not trigger a rebuttable
presumption of depravity. Indeed, respondent argues that if the
legislature intended for predatory criminal sexual assault of a
child to trigger the presumption, it would have listed that
offense in the statute.
Section 1(D)(i) of the Adoption Act provides in relevant part:
AD. >Unfit person= means any person whom the court
shall find to be unfit to have a child, without regard to
the likelihood that the child will be placed for adoption.
The grounds of unfitness are any one or more of the
following ***
***
(i) Depravity. Conviction of any one of the
following crimes shall create a presumption that a
parent is depraved which can be overcome only by
clear and convincing evidence: (1) first degree
murder in violation of paragraph 1 or 2 of subsection
(a) of Section 9B1 of the Criminal Code of 1961 or
conviction of second degree murder in violation of
subsection (a) of Section 9B2 of the Criminal Code
of 1961 of a parent of the child to be adopted; (2)
first degree murder or second degree murder of any
child in violation of the Criminal Code of 1961; (3)
attempt or conspiracy to commit first degree murder
or second degree murder of any child in violation of
the Criminal Code of 1961; (4) solicitation to commit
murder of any child, solicitation to commit murder of
any child for hire, or solicitation to commit second
degree murder of any child in violation of the
Criminal Code of 1961; or (5) aggravated criminal
sexual assault in violation of Section 12B14(b)(1) of
the Criminal Code of 1961.@ (Emphasis added.) 750
ILCS 50/1(D)(i) (West 2002).
The issue before us is one of statutory construction. The
cardinal rule of statutory construction is to ascertain and give
effect to the intent of the legislature. People v. Ward, 215 Ill. 2d
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317, 324 (2005). The best evidence of legislative intent is the
language of the statute, and when possible, the court should
interpret the language of a statute according to its plain and
ordinary meaning. In re D.F., 208 Ill. 2d 223, 229 (2003). We
do not construe words and phrases of a statute in isolation;
instead, all provisions of a statute are viewed as a whole. In re
Detention of Lieberman, 201 Ill. 2d 300, 308 (2002).
ALegislative intent can be ascertained from a consideration of
the entire Act, its nature, its object and the consequences that
would result from construing it one way or the other.@ Fumarolo
v. Chicago Board of Education, 142 Ill. 2d 54, 96 (1990). Thus,
we are not bound by the literal language of a statute if that
language produces absurd or unjust results not contemplated
by the legislature. D.F., 208 Ill. 2d at 230. Issues of statutory
construction are questions of law that we review de novo.
Ward, 215 Ill. 2d at 324.
The State acknowledges that predatory criminal sexual
assault of a child is not an offense enumerated in the statute.
However, the State nevertheless maintains that the legislature
intended to create a rebuttable presumption of depravity to be
applied to the offense of predatory criminal sexual assault of a
child, but made a drafting error. In support of this position, the
State points out that the legislature cited to section 12B14(b)(1)
of the Criminal Code. As the State correctly notes, in 1998, at
the time of the enactment of section 1(D)(i) of the Adoption Act,
section 12B14(b)(1) of the Criminal Code did not exist. In fact,
the last time section 12B14(b)(1) appeared in the Criminal
Code was 1994.
In 1994, section 12B14(b) of the Criminal Code stated, in
relevant part:
A(b) The accused commits aggravated criminal
sexual assault if:
(1) the accused was 17 years of age or over and
commits an act of sexual penetration with a victim who
was under 13 years of age when the act was
committed; or
(2) the accused was under 17 years of age and (i)
commits an act of sexual penetration with a victim who
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was under 9 years of age when the act was committed;
or (ii) commits an act of sexual penetration with a victim
who was at least 9 years of age but under 13 years of
age when the act was committed and the accused used
force or threat of force to commit the act.@ 720 ILCS
5/12B14(b)(1), (b)(2) (West 1994).
After 1994, the aggravated criminal sexual assault statute
was divided. The conduct proscribed in section 12B14(b)(2),
quoted above, became part of a new aggravated criminal
sexual assault statute which was codified under sections
12B14(a), (b) and (c) of the Criminal Code. See 720 ILCS
5/12B14(a), (b), (c) (West 1998). The conduct set forth in
section 12B14(b)(1) was named Apredatory criminal sexual
assault of a child@ and became section 12B14.1(a)(1) of the
Criminal Code (720 ILCS 5/12B14.1(a)(1) (West 1998)).
Section 12B14.1 now provides in relevant part:
A(a) The accused commits predatory criminal sexual
assault of a child if:
(1) the accused was 17 years of age or over and
commits an act of sexual penetration with a victim
who was under 13 years of age when the act was
committed[.]@ 720 ILCS 5/12B14.1(a)(1) (West
1998).
Language contained in the current predatory criminal sexual
assault of a child statute is identical to the language set forth in
section 12B14(b)(1) of the outdated aggravated criminal sexual
assault statute cited by the legislature in amending the
Adoption Act. The specificity of the citation suggests that the
legislature intended to create a rebuttable presumption with
respect to the conduct defined therein, i.e., where Athe accused
was 17 years of age or over and commits an act of sexual
penetration with a victim who was under 13 years of age when
the act was committed.@
The State argues that no other construction of section
1(D)(i)(5) of the Adoption Act is sensible, and we agree.
Reading section 1(D)(i) as a whole, it becomes readily
apparent that the legislature intended for the presumption of
depravity to apply, in most instances, to those adults who
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committed crimes against children. Indeed, the legislature
created a presumption of depravity where a parent committed
first or second degree murder of any child; attempted or
conspired to commit first or second degree murder of any child;
or solicited someone else to commit first or second degree
murder of any child. See 750 ILCS 50/1(D)(i) (West 1998). In
enacting this statute, the legislature=s paramount concern was
to protect children from parents who have harmed other
children. Thus, it stands to reason that the legislature would
intend to apply a rebuttable presumption of depravity to those
adults who have committed a sex offense against a child.
Significantly, the offense of predatory criminal sexual assault of
a child, by definition, always involves an unlawful sex act
between an adult and a child, whereas the conduct prescribed
under the aggravated criminal sexual assault statute would, in
most instances, involve an adult defendant and an adult victim.
Compare 720 ILCS 5/12.14.1(a)(1), (a)(2), (a)(3) (West 1998)
with 720 ILCS 5/12B14(a), (b), (c) (West 1998).
Under only one circumstance does the offense of
aggravated criminal sexual assault exclusively apply to a child,
and that circumstance occurs when the accused is under the
age of 17. See 720 ILCS 5/12B14(b)(i), (b)(ii) (West 1998).
However, it would be absurd for us to conclude that the
legislature intended to create a presumption of depravity for
those individuals who fall within that subsection of the
aggravated criminal sexual assault statute to the exclusion of
those individuals who committed the offense of predatory
criminal sexual assault of a child. If that were the case, then
the legislature intended to create a presumption of depravity for
a juvenile under the age of 17 who commits aggravated
criminal sexual assault, i.e., an act of sexual penetration with a
child under the age of 9 or between the ages of 9 and 12 (720
ILCS 5/12B14(b)(i), (b)(ii) (West 1998)), but did not intend for
that presumption to apply to an adult who is 17 years of age or
older who commits predatory criminal sexual assault of a child,
i.e., an act of sexual penetration with a child under the age of
13 (720 ILCS 5/12B14.1(a)(1) (West 1998)). Under that
rationale, a 15-year-old who commits an act of sexual
penetration with a 12-year-old would be subject to a
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presumption of depravity under the Adoption Act, while
respondent, who was over 18 years old when he committed an
act of sexual penetration against D.B., a five-year-old, would
escape the presumption. It seems unlikely that the legislature
would exclude the offense of predatory criminal sexual assault
of a child from its presumption under the Adoption Act when
that statute exclusively applies to accused individuals over the
age of 17, who are more likely to face termination proceedings
than younger individuals.
Moreover, a comparison of the aggravated criminal sexual
assault statute to the predatory criminal sexual assault of a
child statute reveals that the legislature, by virtue of the
sentencing scheme imposed for these offenses, deems the
offense of predatory criminal sexual assault of a child to be
more severe and, therefore, worthy of a harsher sentence.
While both crimes require sentencing as a Class X offender,
the legislature has seen fit to extend the sentence for predatory
criminal sexual assault of a child, even for first-time offenders,
to Anot less than 50 years and not more than 60 years@ under
certain circumstances. Compare 720 ILCS 5/12B14.1(b)(1)
(West 1998) with 720 ILCS 5/12B14(d)(1) (West 1998).
In sum, our review of the legislative history leads us to
conclude that the legislature made an inadvertent drafting error
in stating that the presumption of depravity applied to the
offense of aggravated criminal sexual assault. The legislature
intended for the presumption to apply to the conduct which now
comprises the offense of predatory criminal sexual assault of a
child.
Our opinion in In re Detention of Lieberman, 201 Ill. 2d 300
(2002), supports this conclusion. In that case, we considered
whether the legislature intended to include the repealed
offense of rape in a statute which enumerated offenses that
were considered Asexually violent offenses,@ but did not
actually name Arape.@ In 1984, the criminal offense of rape was
repealed and subsumed within the definitions of several other
offenses set forth in the Criminal Sexual Assault Act. Several
years later, in 1998, the legislature passed the Sexually Violent
Persons Commitment Act (Commitment Act) (725 ILCS 207/1
et seq. (West 1998)), which allows the State to petition the
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court for the civil detention of sex offenders beyond the
imposed period of imprisonment if the State can demonstrate
that the defendant is a Asexually violent person.@ 725 ILCS
207/15 (West 1998); Lieberman, 201 Ill. 2d at 309. Certain
offenses were considered Asexually violent offenses,@ and
those offenses were enumerated by the legislature through
reference to a statutory citation. Because the offense of rape
had been repealed and was no longer in the Criminal Code, it
was not enumerated as a qualifying Asexually violent offense.@
In Lieberman, the defendant had been convicted of multiple
rapes prior to the repeal of the statute. The State moved to
classify him as a sexually violent person and increase his
period of imprisonment. The defendant argued that his rape
convictions could not be construed as sexually violent offenses
under the Commitment Act because the offense of rape was
not enumerated in the statute. The State, in turn, argued that
the offense of rape was subsumed within the newly enacted
sex offenses that were enumerated in the statute, and
therefore, the defendant was subject to the Commitment Act. In
construing the statute, we agreed with the State=s position and
found that the offense of rape was subsumed in the offenses
enumerated in the Commitment Act, and thus concluded that
the legislature intended for the crime of rape to constitute a
sexually violent offense. Lieberman, 201 Ill. 2d at 317-18.
We also pointed out that the defendant=s proposed
interpretation of the statute would lead to absurd
consequences which the legislature did not contemplate in light
of the fact that it enacted a statute designed to keep citizens
safe from dangerous sex offenders. Lieberman, 201 Ill. 2d at
320. Accordingly, we concluded that:
A[T]he legislature=s omission of the now-repealed
offense of rape from this definition was purely
inadvertent and constituted a situation >where a
legislative intention, otherwise clear, was in part
mistakenly or inaccurately stated.= [Citation.] >[C]ourts
must construe the acts to reflect the obvious intent of
the legislature even if the words of a particular section
must be read or modified or altered so as to comport
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with the legislative intent.= [Citations.]@ Lieberman, 201
Ill. 2d at 320.
We find in this case, as we did in Lieberman, that the
legislature=s failure to name the offense of predatory criminal
sexual assault of a child in the statute was Apurely inadvertent.@
The legislature simply cited to an outdated version of the
Criminal Code wherein the offense of predatory criminal sexual
assault of a child was included in the statutory definition of
aggravated criminal sexual assault. However, the fact that the
legislature referred to a specific section of that statute, rather
than the statute as a whole, demonstrates that the legislature
intended for that specific conduct to trigger the depravity
presumption. As in Lieberman, the current situation involves
A >a legislative intention, otherwise clear= @ that was A >in part
mistakenly or inaccurately stated.= @ Lieberman, 201 Ill. 2d at
320, quoting Gill v. Miller, 94 Ill. 2d 52, 58 (1983). Accordingly,
we construe the statute to reflect the A >obvious intent of the
legislature= @ (Lieberman, 201 Ill. 2d at 320, quoting People ex
rel. Cason v. Ring, 41 Ill. 2d 305, 313 (1968)) and conclude
that the presumption applies to respondent, as he was
convicted of the offense of predatory criminal sexual assault of
a child prior to the fitness proceeding at issue.
Respondent argues that, even if the presumption applies
pursuant to statute, it should not apply to him because his
conviction for predatory criminal sexual assault of a child was
wrongful. Respondent maintains that the evidence against him
was insufficient because the victim recanted, no other evidence
linked him to the crime, and he never admitted guilt.
Respondent admits that he is asking us to review the propriety
of his criminal conviction, even though that cause is not
squarely before us. We decline to do so. As it stands,
respondent was convicted of the offense of predatory criminal
sexual assault of a child in a bench trial. The appellate court
affirmed the conviction. People v. Gaylord, No. 4B04B0169.
This court does not, sua sponte, review appellate court
judgments, and we will not make an exception in this case.
Accordingly, we conclude that respondent is subject to the
rebuttable presumption of depravity based on his conviction for
predatory criminal sexual assault of a child.
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In light of this holding, we are bound to consider whether
this matter must be remanded to the trial court for respondent
to have the opportunity to rebut the depravity presumption.
Based on our review of the record, we conclude that remand is
not necessary in this case. The record plainly establishes that
respondent=s counsel acknowledged that respondent was
given the opportunity to offer rebuttal evidence, and he did so
by requesting that the trial court take judicial notice of his
previous denials and the victim=s recantation in his criminal
case.
The question before us, then, is whether the evidence
presented by respondent was sufficient to refute the State=s
prima facie case of depravity. In considering this question, we
are cognizant that the trial court did not apply the depravity
presumption when determining whether the evidence
presented at the fitness hearing was sufficient to prove that
respondent was depraved. Instead, the trial court based its
finding on the general definition of depravity and the burden
rested on the State to prove, by clear and convincing evidence,
that respondent had an Ainherent deficiency of moral sense and
rectitude.@ However, in applying the presumption, respondent
now bears the burden of refuting the presumption by clear and
convincing evidence. 750 ILCS 50/1(D)(i) (West 2002).
As previously indicated, respondent attempted to refute the
depravity allegation by offering evidence showing that he
denied committing the underlying offense. Respondent also
maintained that the evidence was insufficient to sustain a
conviction because the victim recanted. However, the trial
judge, who presided over respondent=s criminal trial, had
previously concluded that the victim=s recantation came after
great pressure was applied by her parents, and the victim=s
recantation testimony was thus deemed incredible by the court.
Aside from refuting the facts of the criminal conviction, which
respondent had the opportunity to do, respondent cannot
present additional evidence that would overcome the depravity
presumption. Notably, in this regard, the record already
demonstrates that respondent has not engaged in sex offender
treatment or any other counseling. The record likewise
demonstrates that respondent, despite his testimony to the
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contrary at the fitness hearing, is a repeat sex offender.
Respondent himself admitted in his criminal trial that he was
previously convicted for a sex offense, placed on probation,
and ordered to register as a sex offender for 10 years.
We acknowledge respondent=s argument that the trial judge
erred in determining the credibility of the victim=s recantation
testimony in the criminal trial, and thus erred on the same
grounds in this cause. However, as we previously stated, the
trial court=s alleged errors in respondent=s criminal trial are not
properly before us in this case and we will not consider them.
We are aware that respondent has filed a petition for leave
to appeal the appellate court=s judgment in his criminal case,
which is currently pending. People v. Gaylord, No. 102063 (pet.
for leave to appeal pending). However, the Adoption Act does
not call for courts to reserve ruling on findings of unfitness
which are related to criminal matters until the appellate process
in the underlying cause has been exhausted. See In re C.M.J.,
278 Ill. App. 3d 885, 891 (1996). Accordingly, we conclude that
it is unnecessary to remand this matter for further proceedings.
CONCLUSION
We affirm the trial court=s finding of unfitness on grounds of
depravity and find that defendant=s parental rights were
properly terminated. The judgment of the appellate court is
reversed.
Appellate court judgment reversed;
circuit court judgment affirmed.
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