{ "id": 3777580, "name": "In re D.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.M., Respondent-Appellant)", "name_abbreviation": "People v. L.M.", "decision_date": "2003-09-30", "docket_number": "No. 1-02-1606", "first_page": "30", "last_page": "58", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 30" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "789 N.E.2d 1259", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "204 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609701 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/204/0382-01" ] }, { "cite": "775 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "333 Ill. 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App. 3d 175", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183346 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0175-01" ] } ], "analysis": { "cardinality": 1867, "char_count": 70255, "ocr_confidence": 0.75, "pagerank": { "raw": 7.938332412639033e-08, "percentile": 0.46208041472688177 }, "sha256": "338f7dd2aad1d696d38723865441b8505f12f9d539e82313c6ce2d1b3c46f644", "simhash": "1:bb902ca2ec0adfb5", "word_count": 11574 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re D.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.M., Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nRespondent L.M. appeals from an order of the circuit court terminating her parental rights with respect to her minor son, D.W., pursuant to section 2 \u2014 29(2) of the Juvenile Court Act of 1987 (Juvenile Co\u00fart Act) (705 ILCS 405/2 \u2014 29(2) (West 1998)) and section l(D)(q) of the Illinois Adoption Act, as amended in 1998 (750 ILCS 50/ 1(D)(q) (West 1998)). On appeal, respondent argues that: (1) section l(D)(q) of the Illinois Adoption Act violates the due process and equal protection clauses of the United States and Illinois Constitutions; and (2) the trial court abused its discretion in finding that it was in D.W\u2019s best interests to terminate respondent\u2019s parental rights. For the reasons set forth below, we affirm.\nIn 1990, respondent was convicted of the attempted murder of her infant son, D.E. The indictment alleged that respondent poisoned D.E. with Pine Sol by feeding it to him in his bottle. Respondent was sentenced to six years\u2019 imprisonment. At that time, respondent had three children, M.E., Q.E., and D.E. The children were placed in their father\u2019s custody when respondent went to prison.\nFollowing her early release from prison, on March 7, 1994, respondent gave birth to D.W. In 1995, the State filed a petition for adjudication of wardship of D.W. based on respondent\u2019s prior conviction and her history of reports with the Department of Children and Family Services (DCFS) from 1987 to 1990, including reports of neglect, inadequate supervision, and the alleged poisoning of another one of her children. Following a temporary custody hearing, the State removed D.W from respondent\u2019s home, pending an adjudicatory hearing. The adjudicatory hearing began in October 1995, but was continued until February 1996. At the adjudicatory hearing in 1996, the juvenile court found that D.W. was at substantial risk of physical injury and permanently removed D.W from respondent\u2019s custody. On appeal, this court reversed the juvenile court\u2019s decision after finding that the juvenile court violated the time limitation for an adjudicatory hearing provided in section 2 \u2014 14(b) of the Juvenile Court Act (705 ILCS 405/2 \u2014 14(b) (West 1994)). In re D.W., No. 1 \u2014 96\u20141996 (1998) (unpublished order under Supreme Court Rule 23).\nThe State then filed another petition for adjudication of wardship of D.W on April 3, 1998. The State alleged in the petition that D.W was abused and faced substantial risk of physical injury under section 2 \u2014 3(2)(ii) of the Juvenile Court Act (705 ILCS 405/2 \u2014 3(2)(ii) (West 1996)). The petition included respondent\u2019s prior conviction and her previous contacts with DCFS. On August 28, the juvenile court found that D.W was abused or neglected under section 2 \u2014 3(2) (ii) based on respondent\u2019s: (1) criminal conviction for the attempted murder of her child, D.E.; (2) five prior DCFS reports of abuse and neglect; and (3) failure to undergo recommended mental health treatment. At that time, D.W. was placed with his maternal grandmother.\nOn September 16, 1999, the State filed a supplemental petition for appointment of a guardian with the right to consent to D.W\u2019s adoption. The State alleged in the petition, inter alia, that respondent: (1) failed to maintain a reasonable degree of interest, concern or responsibility as to D.W; (2) failed to make reasonable efforts to correct the conditions that were the basis for D.W.\u2019s removal and failed to make reasonable progress toward his return; and (3) had been criminally convicted of the attempted murder of a child. On October 15, respondent signed a specific consent to adoption for her mother to adopt D.W However, in May 2000, D.W. was removed from respondent\u2019s mother\u2019s custody because DCFS discovered that respondent\u2019s mother allowed unsupervised contact between D.W and respondent. D.W was thereafter placed in the custody of a foster mother.\nSubsequently, respondent successfully sought to vacate her specific consent to adoption. As a result, on July 25, 2000, the State\u2019s September 16, 1999, petition for appointment of a guardian with the right to consent to D.W.\u2019s adoption was reinstated. At first, the State sought to terminate respondent\u2019s parental rights based upon the three grounds outlined in its initial petition. However, prior to the fitness hearing, the State withdrew two of the three grounds and proceeded only under section l(D)(q) of the Illinois Adoption Act (750 ILCS 50/ 1(D) (q) (West 1998)) based on respondent\u2019s criminal conviction for the attempted murder of a child. Following both a fitness and a best interests hearing, detailed below, the juvenile court found respondent unfit pursuant to section 1(D)(q) and that it was in D.W.\u2019s best interests to terminate respondent\u2019s parental rights. Accordingly, the trial court entered an order on May 17, 2002, terminating respondent\u2019s parental rights.\nFitness Hearing\nThe record reveals the following regarding the fitness hearing held by the juvenile court on May 17, 2002. As stated above, the State attempted to prove that respondent was an unfit parent only under section 1(D) (q) of the Illinois Adoption Act, as amended (750 ILCS 50/ 1(D)(q) (West 1998)). Under that section, a parent is presumed unfit if the parent \u201chas been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child.\u201d 750 ILCS 50/ l(D)(q) (West 1998).\nThe State first called respondent to testify as an adverse witness. Respondent testified that in 1990, she was convicted of attempting to kill her son, D.E. The State then had a certified copy of respondent\u2019s 1990 conviction admitted into evidence, which stated that respondent was guilty of attempted first degree murder, and respondent\u2019s 1990 indictment, which alleged that respondent was guilty of \u201cintentionally and knowingly\u201d attempting to kill D.E. \u201cby poisoning him by feeding him Pine Sol, in violation of chapter 38, 8 \u2014 4/38\u20149\u20141 of Illinois Revised Statutes, 1985 as amended.\u201d Additionally, the State had a disposition order previously entered by Judge Kawamoto, which named respondent as the mother of D.E., admitted into evidence. The State presented no other evidence at the fitness hearing.\nRespondent\u2019s counsel then called respondent as a witness and attempted to introduce evidence of respondent\u2019s rehabilitation efforts since her conviction. The State objected on relevancy grounds, maintaining that under section l(D)(q), there is no defense of rehabilitation. The State argued that under section l(D)(q), if there is competent evidence of a respondent\u2019s prior conviction for the attempted murder of a child, there is an irrebuttable presumption of unfitness. The trial court initially agreed with the State and sustained the State\u2019s objection.\nRespondent then argued to the court that its application of section l(D)(q), i.e., its refusal to allow rehabilitation evidence at the fitness hearing, violated the due process and equal protection clauses of the United States and Illinois Constitutions. The State and the public guardian responded that the trial court\u2019s application of section 1(D)(q) was not unconstitutional. In support of their argument, the State and the public guardian cited In re J.B., 328 Ill. App. 3d 175, 765 N.E.2d 1093 (2002), which specifically held that barring rehabilitation evidence from a fitness hearing pursuant to section l(D)(q) does not violate a parent\u2019s equal protection or due process rights.\nThe trial court then stated that respondent\u2019s case was conceivably factually distinct from In re J.B. and allowed the rehabilitation evidence at the fitness hearing. Specifically, the trial court stated:\n\u201cI\u2019m going to hear the testimony, regard[ing] rehabilitation. I\u2019m going to hear Miss [L.M.\u2019s] testimony. It is just a matter of am I going to hear it at the unfitness hearing or the best interest hearing.\nIf I were to wait and hear it only at the best interest hearing, it is possible that the Appellate Court might see this case differently than they saw JB and say that is an equal protection problem. Therefore, reverse the finding. If the child were adopted, they would have to undo the adoption. This could all take a couple years, unless it would be an expedited appeal.\nOn the other hand, I could overrule the objection by the State and Guardian, allow natural Mother to present her evidence of rehabilitation at the unfitness hearing and then make a determination as to whether she\u2019s unfit under the statute.\nThe Court believes that, in fact, this would not overly [sic] prejudicial to the State or Guardian, because you must have anticipated she\u2019s going to be presenting evidence of her rehabilitation at either the unfitness or the best interest hearing in any event.\nThe Court, assuming the statute is constitutional, noting depravity is not alleged, has not been alleged in this case, that the only allegation of unfitness that has been acted upon or prosecuted or is being prosecuted by the State in [paragraph] Q [of section 1(D)] is going to, despite the fact that the Appellate Court has in February upheld the constitutionality of Paragraph Q, going to allow the natural mother to offer her evidence of rehabilitation in light of the equal protection argument raised by Mr. Hahn [respondent\u2019s attorney], which is, I think, a little bit different than the equal protection argument made in JB.\u201d\nRespondent then testified at the fitness hearing that following her release from prison, she successfully completed her parole. She also testified that she had individual therapy sessions with a psychiatrist for three years after her release from prison and that she went to parenting classes for approximately 10 weeks in 1994 and received a \u201ccertificate.\u201d Respondent also stated that she was working at a \u201ct\u00e9mp agency\u201d and going to school part-time at \u201cHarold Washington.\u201d\nDespite respondent\u2019s rehabilitation evidence, the trial court found respondent unfit pursuant to section l(D)(q). Specifically, the trial court stated:\n\u201cThe Court will rule as follows: With regard to unfitness, the Court does find that the State has met their [sic] burden of proof in this case, which is clear and convincing evidence with regard to Paragraph Q. The State has proved that [respondent] was criminal[ly] convicted of the attempted murder of a child. There is a certified copy of conviction admitted into evidence.\nAnd [respondent] has herself testified and admitted she was convicted of that crime with regard to her child, [D.E.].\nNow, it\u2019s been argued now that she\u2019s presented testimony sufficient to rebut the presumption of unfitness, that [respondent\u2019s] attorney argued [sic] was raised by the State, proving the attempted murder conviction.\nI allowed [respondent] to \u2014 the opportunity to testify to her rehabilitative efforts, because of the arguments made by Counsel regarding constitutionality of the statute.\nIt appears to me, first of all, under [I]n re JB the statute is constitutional. As applied in this case, I think the Court would have been correct not to allow that testimony. But I\u2019m considering the testimony.\nThe testimony is that [respondent] successfully completed her parole. While she was on parole she was in individual counseling with a Dr. Kapor. That she also completed parenting classes. She\u2019s now working. She would like to have done family counseling. She [did not] do that.\nShe did do a psychiatric evaluation in 1995 that had a recommendation of counseling.\nUnder Paragraph I, the depravity paragraph, the rebuttable presumption is that Counsel has argued states or the Legislature states in five, that presumption that a parent is depraved can be overcome only by clear and convincing evidence.\nThis Court does not believe that there has been clear and convincing evidence presented by [respondent] to overcome the presumption, if this case were brought under Paragraph I, depravity. Had Dr. Kapor come in and testified that he counseled you [respondent] for three years and that based on your progress in counseling he believes that you would not he a risk to your child, that you made sufficient progress, or it wouldn\u2019t necessarily he Dr. Kapor that would have to testify. Perhaps somebody else who witnessed what you have done over the years. But all I know is you attempted to kill one of your children.\nSubsequent to that, you successfully completed parole. The fact that you did do counseling which ended in \u201995 and you haven\u2019t done any counseling since then, to me, I don\u2019t find that you have overcome any presumption of unfitness that\u2019s been made in this case. And that\u2019s assuming that there is a presumption that would be able to be overcome.\nSo, the Court is finding, so the record is clear, [that respondent is] unfit pursuant to Paragraph Q of the Adoption Act.\u201d\nBest Interests Hearing\nAfter finding respondent unfit, the trial court then proceeded with the hearing regarding D.W.\u2019s best interests. The trial court first heard the public guardian\u2019s motion to quash respondent\u2019s notice to produce D.W. to testify. In support of the motion, the public guardian had three exhibits admitted into evidence. Exhibit one was a letter written by D.W.\u2019s therapist, Dr. Kimberly Mula of Mount Sinai Hospital, to the public guardian regarding D.W.\u2019s ability to testify. In the letter, Mula stated that D.W. was first referred to her hospital in September 2000 for \u201ctreatment of sexual and physical abuse and neglect that occurred while [D.W.] was in the care of his mother and maternal grandmother.\u201d Mula further stated that \u201c[r]eports from DCFS and [D.W\u2019s] own statements indicate[d] that his mother, unknown men, and his brothers were involved in the sexual abuse.\u201d According to Mula, D.W. told his foster mother that respondent \u201cput two fingers in his rectum,\u201d that a \u201cman put his penis in D.W\u2019s rectum,\u201d that he witnessed \u201chis mother perform oral sex on a man and watched her being spanked by a man,\u201d and that he watched \u201cpornographic films and television.\u201d Mula further stated in the letter that D.W \u201cattempted to engage in these behaviors with [his foster mother].\u201d\nMula also stated in her letter that D.W. was diagnosed with post-traumatic stress disorder. According to Mula, D.W. exhibited the following symptoms: (1) smearing feces; (2) sexually reactive behaviors; (3) nightmares; and (4) hypervigilance. Mula also stated that D.W. had been working with her and his foster mother to \u201clearn the difference between good touches and bad touches as well as develop personal safety skills.\u201d Mula reported that D.W.\u2019s foster mother indicated that he was \u201cdoing very well learning about good touches and [was] working on maintaining appropriate boundaries.\u201d Mula expressed concerns in the letter about exposing D.W. to his biological mother and his siblings because reports from DCFS indicated that such exposure could \u201cresult in an increase in his symptoms of Post Traumatic Stress Disorder.\u201d She noted that after a recent visit with his siblings, D.W. had urinated in a closet. Also, after respondent had called D.W. at his foster mother\u2019s home, D.W. was crying because respondent had told him \u201che had to go home.\u201d Further, after respondent\u2019s telephone call, D.W\u2019s foster mother reported that D.W. began making statements that he needed a knife in order to \u201ckeep him safe.\u201d\nExhibit two was a \u201cTherapy Progress Report,\u201d also written by Mula. In the report, Mula stated that in August 2000, when D.W was visiting with two of his brothers in their foster home, D.W. \u201ctried to insert his penis in his brother\u2019s rectum.\u201d Also, in September 2000, D.W. reported to his foster mother that respondent had \u201cinserted her fingers into his rectum and fondled his penis on a daily basis.\u201d Mula further stated in the report that D.W. had said that respondent \u201cburn[ed] him with an iron\u201d and \u201ccaused a burn mark on his neck.\u201d\nAdditionally, according to the report, when D.W was first placed in his foster mother\u2019s care, he was masturbating and engaging in sexual behaviors with a stuffed animal. D.W. also had nightmares, walked and talked in his sleep, and was enuretic at night. Since he was placed in his foster mother\u2019s care, however, D.W had exhibited many improvements. His speech improved in clarity and was \u201cmore age appropriate,\u201d he \u201cdeveloped more normal eating behavior,\u201d and he \u201cacquir[ed] more skills in self-care.\u201d Mula further stated in her report that D.W.\u2019s foster mother indicated that she was feeling increasingly confident in her ability to parent D.W through adolescence \u201cnow that his symptoms of Post Traumatic Stress Disorder [were] decreasing and becoming more manageable.\u201d\nMula recommended in her report that D.W continue therapy and medication management services. She also recommended that D.W. remain in his foster mother\u2019s care because he \u201cha[d] made tremendous improvement since his placement with [her] and he ha[d] developed a strong attachment to her.\u201d Mula further stated that D.W.\u2019s removal from his foster mother\u2019s care would likely result in \u201cserious psychological harm\u201d and an \u201cescalation of his Post Traumatic Stress symptoms.\u201d Mula specifically stated in her report that D.W. \u201cshould not be returned to any family member[s] due to their demonstrated inability to protect [him] from harm.\u201d\nExhibit three was a \u201cPsychological Evaluation\u201d of D.W performed by Dr. Ken Fogel at the Center for Personal Development in Chicago. Dr. Fogel noted that D.W. had \u201cmarkedly poor resources for coping with life\u2019s stress,\u201d and that he became \u201ceasily overwhelmed by complex demands.\u201d Fogel further stated that D.W. had \u201cdifficulty handling negative emotions, especially fear and loss,\u201d and that these feelings \u201ccompromise[d] his capacity to integrate information from the world.\u201d According to Fogel, D.W. appeared to be \u201cgradually learning to trust in the world around him, but occasionally experienced] overpowering anxiety about getting his needs met.\u201d Fogel concluded that D.W demonstrated \u201csignificant improvement in many areas as a result of therapeutic care, consistent parenting [from his foster mother], and medication management,\u201d but that he still had not developed \u201ceffective and appropriate mechanisms to manage intense feelings.\u201d\nFogel also noted that D.W appeared to have formed an \u201cadequate and appropriate attachment\u201d to his foster mother in a \u201crelatively brief period of time.\u201d Fogel further stated that D.W.\u2019s emotional and behavioral difficulties could be \u201cexacerbated by uncertainty\u201d regarding the status of his placement. Fogel also noted that in order for D.W. to \u201cmove on\u201d in his development, DW needed to feel secure about his future placement and caregivers.\nThe trial court ruled that it was apparent from the exhibits and from Dr. Mula\u2019s testimony, detailed below, that D.W. \u201cwould be traumatized\u201d if he were required to testify at the hearing. Accordingly, the trial court granted the public guardian\u2019s motion and D.W. did not testify at the best interests hearing.\nThe State\u2019s first witness at the hearing was Jennifer Ashenfelter, an adoption specialist who was assigned to D.W.\u2019s case when he was first placed with his maternal grandmother. Ashenfelter testified that D.W. was removed from his grandmother\u2019s house because DCFS had cause to believe she was allowing D.W. to have unsupervised contact with respondent. After D.W. was removed from his grandmother\u2019s home and placed with a foster mother, DCFS allowed respondent to have supervised visits with D.W. The first visit occurred in May 2000. According to Ashenfelter, respondent was 45 minutes late for this first visit. Another visit occurred in June 2000. Respondent was again late for this visit. In fact, respondent did not arrive for this visit until after the allotted time for which it was scheduled. Another visit was scheduled in July 2000; however, respondent did not show up for this visit. There were also two other visits that were \u201cattempted to be scheduled\u201d after June 2000, but did not occur. After September 2000, the visits with respondent were suspended based on \u201cclinical recommendations\u201d due to D.W.\u2019s \u201csexually acting out\u201d behavior and his disclosures regarding \u201csexual abuse.\u201d Therefore, according to Ashen-felter, between May 2000 and March 2002, only three visits between D.W. and respondent actually occurred.\nAshenfelter further testified that the three visits between D.W. and respondent \u201cwere appropriate.\u201d However, after the first visit, D.W became \u201cextremely aggressive\u201d and was \u201cclinging to the legs of his Mother\u201d as she was attempting to leave on the elevator. After respondent left, D.W became \u201cvery violent\u201d and Ashenfelter and her supervisor had to contain him in a visiting room. D.W then began to \u201cdestroy the room\u201d by knocking things off the shelves, he tried biting Ashenfelter, he kicked Ashenfelter and her supervisor, and he was \u201ctearing things up in the room.\u201d Ashenfelter further testified that after the first visit with respondent, when Ashenfelter was driving D.W back to the foster home, he \u201cunlocked his door and said he was going to jump out and he was going to run.\u201d\nOn cross-examination, Ashenfelter testified that she interpreted D.W\u2019s \u201cacting out\u201d behavior as \u201chis emotions being extremely high,\u201d and that he was \u201cunable to control what he was feeling by seeing [respondent].\u201d Ashenfelter also stated that at the end of D.W\u2019s visits with respondent, \u201cwhen he was throwing himself at [respondent\u2019s] feet and screaming and throwing tantrums,\u201d he would say he wanted to go home with respondent. Ashenfelter further testified on cross-examination that, during respondent\u2019s May 2000 visit with D.W, she recalled that D.W was \u201chappy to see his Mother and cousin,\u201d that the \u201cchildren played while [the] birth mother watched,\u201d and that respondent \u201cbrought a camera and took pictures of [D.W].\u201d According to Ashenfelter, after respondent\u2019s June 2000 visit with D.W., D.W. threw a tantrum and said he \u201cdidn\u2019t want to stay [at the foster home],\u201d and that \u201che needed to go.\u201d\nDr. Mula also testified at the best interests hearing. She stated that she began seeing D.W. because he was exhibiting symptoms of post-traumatic stress disorder, i.e., he was having nightmares, walking in his sleep, smearing feces every tim\u00e9 he went to the bathroom, urinating in a closet, masturbating, and acting out sexual behaviors with teddy bears and his foster mother. Mula further stated that between November and December 2001, D.W revealed to her that an individual he referred to as \u201cNookie\u201d would \u201cdig in his booty\u201d When Mula asked D.W what the phrase \u201cdig in his booty\u201d meant, D.W held up four fingers and stated, \u201c[H]e would put fingers in my butt.\u201d Mula also stated that during a family therapy session with D.W\u2019s foster mother, D.W took a Cabbage Patch Kid, laid it down on the floor and began \u201cgrinding the doll,\u201d and stated, \u201c[T]his is what Nookie and Lisa did, acting sexy.\u201d According to Mula, D.W. moved about the room, changing positions; first, he would put the doll on top of himself and, then, he would put himself on top of the doll. Mula also stated that D.W.\u2019s foster mother told her that D.W once said that he was \u201cfondled\u201d by his natural mother and by Nookie.\nMula further testified that D.W had an IQ of 55, which placed him in the \u201cmild mentally retarded\u201d range. She also stated that D.W had a speech and language deficit and that he was receiving medication for a post-traumatic stress disorder.\nMula also testified regarding D.W.\u2019s foster mother. According to Mula, D.W.\u2019s foster mother worked on helping D.W to develop \u201cappropriate limits and boundaries\u201d and to distinguish between \u201cgood touches [and] bad touches.\u201d D.W\u2019s foster mother also supervised D.W when he went to the bathroom, comforted him when he had nightmares, and was engaged in family therapy sessions with D.W. Mula further stated that D.W.\u2019s home with his foster mother \u201ccontinue[d] to stabilize\u201d and that his foster mother \u201cworked very hard in order to keep him in a stable home.\u201d Mula also stated that D.W. walked with his foster mother and held her hand and that he referred to her as \u201cMama.\u201d When D.W. was in the sessions with Mula, if he did something he wanted his foster mother to see, he would ask if he could \u201cgo get her.\u201d D.W. \u201ccontinue[d] to interact\u201d with his foster mother \u201cin a positive way,\u201d and his foster mother \u201cresponded] to him very appropriately.\u201d Mula further stated that she had \u201cnever seen [D.W.] interact with [respondent],\u201d and that D.W had never mentioned \u201cmissing her or anything.\u201d\nMula concluded that it would not be in D.W.\u2019s best interests to have any contact with respondent because \u201cexposure to someone who potentially was a perpetrator [was] not in anyone\u2019s best interest.\u201d On cross-examination, Mula admitted that there were no actual court proceedings which indicated that respondent ever sexually abused D.W. and that she, personally, did no investigations regarding D.W\u2019s implications of sexual abuse. However, Mula stated that based on D.W.\u2019s \u201cdisclosures of sexual abuse within the therapy sessions, and the potential risk of harm\u201d to him, she believed it was in D.W\u2019s best interests \u201cto remain in [the foster mother\u2019s care] and that [respondent\u2019s] parental rights be terminated.\u201d\nAyanna Sims, D.W\u2019s caseworker, also testified at the hearing. She stated that D.W. was receiving individual therapy to deal with \u201cseparation from family issues\u201d and \u201cissues of sexual abuse.\u201d Once, after a visit with his siblings, D.W.\u2019s foster mother reported to her that D.W had urinated in a closet. However, Sims also stated that D.W\u2019s sibling visit \u201cwas appropriate\u201d in her opinion. Sims further stated that D.W had never expressed to her that he missed his mother or other members of his family. She also stated that she had never talked to D.W. about any sexual abuse issues. According to Sims, D.W. was \u201cbonded to [his] foster parent\u201d and he \u201creferr[ed] to her as Ma on occasion.\u201d Sims further stated that it was in D.W\u2019s best interests that he \u201cbe free for adoption.\u201d However, Sims noted that D.W.\u2019s foster mother indicated that she was not willing to adopt D.W. at that point due to his \u201codd behaviors,\u201d such as urinating in her closet and smearing feces in the bathroom. According to Sims, D.W\u2019s foster mother was \u201cjust a little hesitant and apprehensive to adopt\u201d D.W because she was \u201cfearful of what might happen down the line.\u201d Sims also admitted that she had never seen D.W. and respondent interact and that her decision that it was in D.W.\u2019s best interests to terminate respondent\u2019s parental rights was not based on \u201cobservation between [D.W] \u00e1nd [respondent].\u201d\nRespondent was the final witness to testify at the best interests hearing. She stated that she had never sexually abused D.W, D.W. never \u201cacted out\u201d like Dr. Mula described, i.e., smearing feces, urinating in a closet, etc., prior to his being placed in his foster home, and she \u201cwould like nothing more than to have contact with [her] son.\u201d\nDuring closing argument, respondent\u2019s attorney made the following remarks:\n\u201cIf this Court believes it is in the best interest to terminate this parent\u2019s rights, this Court must believe there was sexual abuse on behalf of the Mother. That is the sole reason this minor was removed, taken to a new home and visitation was stopped.\u201d\nThe trial court disagreed with this argument, stating:\n\u201cThe argument that the Court must accept, if I\u2019m going to find it is in the best interest of the Minor [D.W.] that [respondent\u2019s] parental rights be terminated, the argument that I must accept [respondent] sexually abused the Minor is one the Court does not accept. I don\u2019t have to find that [respondent] sexually abused [D.W] to find it is in his best interest [that] at this time [respondent\u2019s] parental rights be terminated.\nThe Court does find that it is in the best interest of the Minor that [respondent\u2019s] parental rights be terminated, based on the evidence I have heard from the witnesses this afternoon. It is not because of necessarily those allegations of sexual abuse. It is based on the best interest factors the Court is obligated to consider set forth in the statute under Section 405 1 \u2014 3, 4.05.\nI am concerned that, and I have considered that[,] the foster parent has not yet expressed or confirmed she wishes to adopt the Minor [D.W] Nevertheless, the Court does find for this Minor to continue to make progress, this Minor can be free for adoption, so this Minor can have permanency. It is in his best interest parental rights be terminated. That will be on the Court\u2019s order.\u201d\nThe trial court then entered an order terminating respondent\u2019s parental rights. This appeal followed.\nRespondent first contends that section 1(D) (q) of the Illinois Adoption Act (Act), as amended (750 ILCS 50/1 (D)(q) (West 1998)), which, inter alia, creates an irrebuttable presumption that a parent is unfit if she has been convicted of. the attempted murder of a child, violates the due process clauses of the United States and Illinois Constitutions. Specifically, respondent claims that section l(D)(q) violates due process because it does not permit the trial court to consider such things as the passage of time since the conviction and the ability of a parent to change as a result of parenting classes and individual therapy.\nThe State and the public guardian initially argue that respondent lacks standing to challenge the constitutionality of section 1(D) (q) because the trial court granted her the very opportunity which she now claims the statute precludes, i.e., the opportunity to present evidence at the fitness hearing regarding her rehabilitation efforts and her willingness and ability to care for her children. Additionally, the State and the public guardian contend that even if respondent has standing to challenge the statute, the statute does not violate due process.\nUnder section 1(D)(q) of the Act (750 ILCS 50/l(D)(q) (West 1998)), rehabilitation evidence to rebut the presumption of unfitness is not permitted. The section requires a finding of unfitness as a matter of law based only upon a prior conviction of any of the enumerated offenses therein. 750 ILCS 50/1 (D)(q) (West 1998). In the instant case, in contradiction of the statute, the trial court improperly permitted respondent to testify at the fitness hearing regarding her rehabilitation efforts since her release from prison in order to rebut the presumption of unfitness. Respondent testified that following her release from prison, she successfully completed her parole. She also testified that she had individual therapy sessions with a psychiatrist for three years after her release from prison and that she had gone to parenting classes for approximately 10 weeks in 1994 and received a \u201ccertificate.\u201d Respondent also stated that she was working at a \u201ctemp agency\u201d and going to school part-time at \u201cHarold Washington.\u201d The State and the public guardian here contend that because respondent was improperly permitted to present this evidence during the fitness hearing, she now lacks standing to challenge the statute\u2019s constitutionality.\nIn Illinois, standing requires only some injury in fact to a legally cognizable interest. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492, 524 N.E.2d 561 (1988). The injury, whether actual or threatened, must be \u201cdistinct and palpable, fairly traceable to the defendant\u2019s actions, and substantially likely to be prevented or redressed by the grant of the relief requested.\u201d Messenger v. Edgar, 157 Ill. 2d 162, 170, 623 N.E.2d 310 (1993). An individual who challenges the constitutionality of a statute must be within the class of persons as to whom the law is allegedly unconstitutional. Messenger, 157 Ill. 2d at 171. That is, one must have sustained, or be in immediate danger of sustaining, a direct injury as a result of enforcement of the challenged statute. Messenger, 157 Ill. 2d at 171.\nIn the present case, had the trial court properly applied section l(D)(q), there is no question respondent would have standing to challenge the statute\u2019s constitutionality. Respondent was convicted of the attempted murder of her child, D.E., and was, therefore, within the class of persons as to whom the statute is allegedly unconstitutional. Further, had the trial court properly applied the statute, respondent would have sustained a direct injury from the enforcement of the statute, i.e., the inability to present rehabilitation evidence at the fitness hearing. Contrary to the State and the public guardian\u2019s argument, we do not believe that the trial court\u2019s misapplication of the statute deprives respondent of standing to challenge its constitutionality. Because respondent was convicted of the attempted murder of a child, she is still within the class of persons as to whom the statute is allegedly unconstitutional and, as long as respondent has minor children, she is also in danger of sustaining a direct injury as a result of the proper enforcement of the statute. Accordingly, we find that respondent has standing to challenge section l(D)(q)\u2019s constitutionality.\nIn regard to the merits of the controversy, respondent contends that section 1(D) (q) of the Act, as amended (750 ILCS 50/1 (D)(q) (West 1998)), is unconstitutional because it violates the due process clause of both the United States and Illinois Constitutions. Respondent argues that the section is not narrowly drawn to promote a legitimate state interest and, therefore, it cannot withstand strict scrutiny. Specifically, respondent maintains that section 1(D) (q) does not permit the circuit court to consider the passage of time and provides no opportunity for a parent to present evidence regarding changes in her circumstances since she was convicted of the charge of attempted murder of a child or regarding her efforts to rehabilitate herself.\nThe State contends that its interest in protecting minors is \u201csufficiently compelling\u201d to satisfy strict scrutiny and to uphold section l(D)(q), as amended. The State specifically argues that where a parent has demonstrated the intent to kill one of her children, coupled with an act in furtherance of that intent, such that she is guilty of the attempted murder of that child, it \u201cclearly has an interest in protecting the remaining children in her care.\u201d The State further argues that sufficient safeguards exist such that there is little or no risk of an erroneous deprivation of parental rights. Specifically, the State maintains that the termination hearing process \u201ccontemplates and provides [parents] the opportunity to present evidence of the full measure of [their] rehabilitation and conduct at the best interest portion of the hearing.\u201d\nThe public guardian contends that the amendment here does not violate either substantive or procedural due process. With respect to substantive due process, the public guardian argues that the amendment is tailored to express the State\u2019s compelling interest in protecting children from parents who have been convicted of the attempted murder of a child even when the parent has shown a propensity to commit such abuse, but has not yet abused the child who is the subject of the termination proceeding. The public guardian maintains, therefore, that a parent\u2019s actions, both before and after the birth of a child, are relevant to the protection of the child under the Act. With respect to procedural due process, the public guardian argues that the amendment is not unconstitutional because the established procedures protect the parent as a finding of unfitness is not an automatic termination of parental rights, and the parent may contest the termination of rights at the \u201cbest interests\u201d hearing.\n\u201cAll statutes are presumed to be constitutional.\u201d In re R.C., 195 Ill. 2d 291, 296, 745 N.E.2d 1233 (2001). The burden of rebutting this presumption and clearly establishing a constitutional violation is on the party challenging the constitutionality of the statute. R.C., 195 Ill. 2d at 296. It is the duty of the court to construe acts of the legislature so as to affirm their constitutionality and validity if it can reasonably do so. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 163, 692 N.E.2d 306 (1998).\nProceedings used to terminate parental rights must meet the requisites of the due process clause. Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606-07, 102 S. Ct. 1388, 1394-95 (1982); In re M.H., 196 Ill. 2d 356, 363, 751 N.E.2d 1134 (2001). The United States Supreme Court has identified three factors to be considered by courts in determining what the due process clause requires: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government\u2019s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute safeguards would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903 (1976); M.H., 196 Ill. 2d at 363. The Supreme Court has applied these factors to cases involving the termination of parental rights. Lassiter v. Department of Social Services, 452 U.S. 18, 31, 68 L. Ed. 2d 640, 652, 101 S. Ct. 2153, 2161-62 (1981). The State has two interests in a proceeding to terminate parental rights: (1) a parens patriae interest in preserving and promoting a child\u2019s welfare, and (2) a fiscal and administrative interest in reducing the cost and burden of such proceedings. Santosky, 455 U.S. at 766, 71 L. Ed. 2d at 615, 102 S. Ct. at 1401.\nA parent\u2019s interest in having and raising children is considered a fundamental liberty interest which is protected under \u201cheightened protection\u201d by the due process clause. M.H., 196 Ill. 2d at 362-63. Both parties agree that because the issue here involves a fundamental liberty interest, when determining whether section l(D)(q) of the Act, as amended, is unconstitutional as violative of the due process clause, the court must apply a strict scrutiny analysis. The statute, therefore, must be narrowly tailored to promote a compelling state interest.\nRespondent basically argues that section l(D)(q) violates the due process clause because it is not sufficiently narrowly tailored. Specifically, respondent\u2019s brief directs our attention to the absence from section 1(D) (q) of a specific time limit during which a conviction for the attempted murder of a child may be considered in a fitness hearing and the absence of an opportunity to rebut the presumption that a parent is unfit based on the existence of such a conviction.\nIn the extremely few Illinois cases in which a summary determination of unfitness has been upheld, almost all of those cases involved a judgment of unfitness based on the fact that the parent had committed a crime that Serves as a \u201cper se\u201d factor establishing parental unfitness. In In re Ray, 88 Ill. App. 3d 1010, 411 N.E.2d 88 (1980), the respondent was convicted of murder and cruelty to children on evidence of common design and participation in her boyfriend\u2019s torture and abuse of the respondent\u2019s 17-month-old daughter, resulting in her death. Prior to the respondent\u2019s conviction, the State had filed a petition seeking termination of her parental rights as to her three other children. At that time, section 1(D) (i) of the Act provided that a criminal conviction of a parent resulting from the death of any child by physical abuse constituted a ground for finding the parent unfit. Following the respondent\u2019s conviction, the State moved for summary judgment, which the trial court granted.\nOn appeal, the Ray respondent argued that the statute violated her equal protection and due process rights. Ray, 88 Ill. App. 3d at 1010-11. The respondent also argued that a parent who abuses and kills one child will not automatically mistreat her other children, the causes of such abuse can be treated and eliminated, and the statute imposed an \u201cimpermissible \u2018irrebuttable\u2019 or conclusive presumption.\u201d Ray, 88 Ill. App. 3d at 1014. The Ray court rejected this argument, stating that prior Illinois cases had found that the abuse of one child was sufficient to support findings of parental unfitness and termination of parental rights as to the parent\u2019s other children. Ray, 88 Ill. App. 3d at 1013. The Ray court also agreed with the State that the \u201cirrebuttable presumption\u201d challenged by the respondent \u201cis nothing more than the relation between a fact and its legal result,\u201d and stated that it failed to see how the statute constituted a presumption in any sense. Ray, 88 Ill. App. 3d at 1014.\nRespondent contends that Ray is distinguishable from the case at bar because, in Ray, the court assessed the constitutionality of the relevant statute under the rational relationship test and not strict scrutiny. However, the Ray court specifically found that the relevant statute promoted an \u201coverriding state interest\u201d that withstood constitutional attack under any level of scrutiny. Ray, 88 Ill. App. 3d at 1013-14.\nIn In re J.H., 292 Ill. App. 3d 1102 (1997), the respondent, convicted of the first degree murder of an 11-year-old girl to whom she was not related, appealed the trial court\u2019s grant of summary judgment to the State on the State\u2019s petition to terminate the respondent\u2019s parental rights, finding that the respondent was unfit to be a parent under section 1(D) (f) of the Act. On appeal, the respondent argued that the trial court erred in applying section l(D)(f) because the victim of her crime was not her own child. J.H., 292 Ill. App. 3d at 1103. The J.H. court affirmed the trial court\u2019s finding of unfitness, holding that the term \u201cany child\u201d in section l(D)(f) was clear and that the statute did not require that the abused child be related to the parent for the parent to be found unfit, i.e., a parent\u2019s conviction resulting from the death of any child by physical abuse was a ground for finding the parent unfit. J.H., 292 Ill. App. 3d at 1104.\nIn In re A.M.F., 311 Ill. App. 3d 1049, 726 N.E.2d 661 (2000), the respondent mother took her daughter to the hospital where it was determined that the child\u2019s injuries were the result of abuse. The respondent was indicted for aggravated battery of a child, a Class X felony, but she accepted the State\u2019s offer of an open plea to aggravated battery, a Class 3 felony. The State subsequently sought to have the respondent declared unfit pursuant to section 1(D) (q) of the Act, the same section involved in the present case, prior to the amendment of the section. The trial court found the respondent unfit and granted the State\u2019s motion for summary judgment based on the respondent\u2019s conviction for aggravated battery. The respondent had objected, arguing that section 1(D) (q) required a conviction for the specific crime of \u201cAggravated Battery of a Child\u201d as that offense is defined in the Criminal Code of 1961 (720 ILCS 5/12 \u2014 4.3 (West 1996)), as opposed to a conviction for aggravated battery \u201c \u2018of the child who is the subject matter of the proceeding.\u2019 \u201d A.M.F., 311 Ill. App. 3d at 1051.\nOn appeal, the A.M.F. respondent further argued that the phrase \u201caggravated battery of the child,\u201d as used in section l(D)(q), was ambiguous. The A.M.F. court rejected this argument, finding that section l(D)(q) made no reference to the offense of \u201cAggravated Battery of a Child\u201d or to the Criminal Code, and that the legislature intended to find a person unfit when that person is convicted of the \u201caggravated battery \u2018of the child that is the subject matter of the proceedings.\u2019 \u201d (Emphasis added.) A.M.F., 311 Ill. App. 3d at 1052. The court did not consider the State\u2019s alternative argument pursuant to the amendment of section 1(D)(q) at issue in this case, i.e.,. that the respondent was unfit to be a parent per se based on the prior conviction, finding the issue waived because the application of amended section l(D)(q) had not been raised in the trial court even though the finding of unfitness occurred after the effective date of the amendment. A.M.F., 311 Ill. App. 3d at 1053.\nIn the present case, with respect to substantive due process, it is clear from the Illinois cases cited above that \u201cper se\u201d factors for finding unfitness as a matter of law under the Act, such as a conviction for the attempted murder of a child, have been applied in termination of parental rights proceedings and served as grounds for granting summary judgment to the State. Although the interpretation of the relevant statutes was at issue in J.H. and A.M.F. and not the statutes\u2019 constitutionality, the cases make clear that such per se factors are not unconstitutional merely because they require a finding of unfitness as a matter of law. Accordingly, we find no basis supporting an argument that a statute, such as section l(D)(q), violates a party\u2019s due process rights merely because the statute requires a finding of unfitness as a matter of law based on a prior conviction involving the attempted murder of a child.\nThe more difficult issue is whether amended section l(D)(q) of the Act is sufficiently narrowly tailored to express the State\u2019s interest in protecting children from abuse. For example, section l(D)(i), which we set forth below, creates a rebuttable presumption of unfitness even where the parent has a conviction for murder or multiple felony convictions. Section 1(D)(q) does not permit rebuttal evidence from the parent prior to an unfitness finding. Further, certain convictions for murder, as referenced here in section l(D)(i), can only be considered if they are entered within 10 years of the State\u2019s petition seeking termination of parental rights. Again section l(D)(q) contains no similar time limit.\nIn the present case, as argued by the State and public guardian, the State does have a compelling interest in protecting children from persons who have been convicted of the attempted murder of a child, both after and before any such attempt on another child has occurred. The amendment to section l(D)(q) promotes that interest by allowing courts to consider a parent\u2019s conviction for the attempted murder of a child when determining whether the parent is also fit to parent his or her other current or future children. The State does not have to wait for another attempted murder to occur. Additionally, despite a finding of unfitness under section l(D)(q), a court cannot automatically terminate a parent\u2019s parental rights. A trial court, as here, must also conduct a \u201cbest interests\u201d hearing to determine whether it is in the best interests of the child to have a parent\u2019s rights permanently terminated. The procedures established by the Act, therefore, do not automatically result in the termination of parental rights following a conviction for one of the offenses listed in section l(D)(q). Following a finding of unfitness, a parent still possesses the right and opportunity at the \u201cbest interests\u201d hearing to present evidence of her rehabilitation and desire and ability to be a parent to her children. Accordingly, we find that such procedures do not violate a party\u2019s due process rights.\nRespondent maintains, however, citing In re H.G., 197 Ill. 2d 317, 757 N.E.2d 864 (2001), that the fitness hearing and the best interests hearing are two separate proceedings and that it is therefore inappropriate to introduce evidence that serves as \u201crebuttal to the question of fitness\u201d in the best interests portion of the termination proceedings.\nWe find that H.G. is inapposite to the case at bar. In H.G., the court reviewed the constitutionality of section 1(D) (m \u2014 1) of the Act (750 ILCS 50/l(D)(m \u2014 1) (West 1998)). That section provided that a parent may be found unfit if, \u201c[p]ursuant to the Juvenile Court Act of 1987, a child has been in foster care for 15 months out of any 22 month period.\u201d 750 ILCS 50/1 (D)(m \u2014 1) (West 1998). That section also allowed a parent to rebut an allegation of unfitness, during the fitness hearing, by proving \u201cby a preponderance of evidence\u201d that it would be in the child\u2019s best interests to go home within six months of when the petition for termination was filed. 750 ILCS 50/l(D)(m \u2014 1) (West 1998). The H.G. court found that section 1(D)(m \u2014 1) was unconstitutional since it was not \u201cnarrowly tailored to the compelling goal of identifying unfit parents because it fail[ed] to account for the fact that, in many cases, the length of a child\u2019s stay in foster care has nothing to do with the parent\u2019s ability or inability to safely care for the child but, instead, is due to circumstances beyond the parent\u2019s control.\u201d H.G., 197 Ill. 2d at 330-31. The fact that the parent was allowed to rebut an unfitness allegation by showing it was in the best interests of the child to return home did not save the statute because, according to the court, introducing the concept of best interests during a fitness hearing might produce an absurd result, i.e., a court could declare a parent \u201cunfit despite the court\u2019s finding that [the parent] was able to safely care for her child.\u201d (Emphasis in original.) H.G., 197 Ill. 2d at 334-35.\nThe case at bar presents an entirely different scenario than the one in H.G. First, unlike the amount of time a child spends in foster care, it is clear that a parent\u2019s conviction for the attempted murder of a child is directly related to the parent\u2019s ability to safely care for his or her children and is not due to circumstances beyond the parent\u2019s control. Moreover, allowing evidence of a parent\u2019s fitness during a best interests hearing would not produce the absurd result present in H.G. In fact, our supreme court has specifically held that evidence of a parent\u2019s recent circumstances and conduct is appropriate at the best interests phase of the termination proceedings. See, e.g., In re Davonte L., 298 Ill. App. 3d 905, 924, 699 N.E.2d 1062 (1998), affd, In re D.L., 191 Ill. 2d 1, 727 N.E.2d 990 (2000).\nRespondent also argues that this court must give \u201cmeaningful consideration [to] the second Mathews factor and the operation of presumptions.\u201d Under Mathews, as stated above, the second factor that courts must consider when determining whether a statute is unconstitutional is \u201cthe risk of an erroneous deprivation of [an individual\u2019s] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.\u201d Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903. Respondent here claims, citing Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), that this court should more closely consider the second Mathews factor because the \u201crisk from the operation of the presumption in section 1(D) (q) is that the court will automatically find a parent unfitness [sic] upon proof of conviction without considering the present circumstances showing that the person can be a fit parent.\u201d We note that Stanley is distinguishable from the case at bar. In Stanley, the United States Supreme Court held an Illinois statute, which presumed unwed fathers to be unfit parents, unconstitutional because it found that the presumption was unrelated to the father\u2019s actual ability to be a fit parent. Stanley, 405 U.S. at 658, 31 L. Ed. 2d at 562-63, 92 S. Ct. at 1216. In contrast, as we have stated above, the presumption in section l(D)(q) is directly related to the parent\u2019s ability to be a fit parent.\nRespondent also cites numerous cases in which this court reversed decisions of the trial courts to terminate the respondents\u2019 parental rights because the respondents were not afforded a meaningful opportunity to participate in the termination hearing. The cited cases include: In re Vanessa C., 316 Ill. App. 3d 475, 736 N.E.2d 593 (2000); In re D.R., 307 Ill. App. 3d 478, 718 N.E.2d 664 (1999); and In re C.J., 272 Ill. App. 3d 461, 650 N.E.2d 290 (1995). These cases are not applicable to the case at bar. In each case, the respondent was denied the opportunity to testify or to present evidence that she wished to present during the termination proceedings. In the instant case, respondent testified and was permitted to introduce whatever evidence she wished to present regarding her rehabilitation efforts. Moreover, section 1(D) (q) does not deprive individuals of the opportunity to present rehabilitation evidence during termination proceedings because such evidence may be introduced during the best interests portion of the proceedings. Accordingly, we find that respondent has failed to meet her burden of establishing that section 1(D) (q) of the Act is unconstitutional because it violates due process.\nRespondent also contends that section 1(D) (q) of the Act violates the equal protection clause of the United States and Illinois Constitutions because it denies a parent who has been convicted of the attempted murder of a child the opportunity to rebut a presumption of unfitness, while section 1(D)(i) permits parents who have been convicted of offenses such as first degree murder, aggravated criminal sexual assault, and multiple felonies the opportunity to rebut a presumption of unfitness. Respondent argues that a distinction in the punishment given to similarly situated offenders of different but comparable crimes has been found to violate equal protection rights in Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942). Respondent claims that parents should be allowed to present evidence of their rehabilitation and current ability to care for their children before being found unfit.\nThe State contends that section 1(D)(q) and section l(D)(i) of the Act properly make distinctions based on inherent differences in the criminal behavior of individual parents and in the crimes committed by them in order to promote a compelling government interest in protecting children from persons who have been convicted of the attempted murder of a child. The State argues that the offenses listed in section l(D)(q), in which there is no provision allowing the parent the opportunity to rebut a presumption of unfitness, i.e., aggravated battery of a child, heinous battery of a child, or the attempted murder of a child, all inherently focus on the parent\u2019s intentional and knowing abuse of a child. The State contrasts this with the offenses listed in section l(D)(i), where rebuttal evidence is allowed, which do not necessarily focus on a parent\u2019s intention to hurt a child. For example, the State notes that a conviction may be based on the first or second degree murder of a child\u2019s parent where the conviction did not have an actual relationship to the abuse of the child. The State claims that such a distinction is consistent with the purpose of the Act in protecting children from abusers, as opposed to creating punitive measures for criminals. The State concludes, therefore, that respondent is not similarly situated to persons whose felony convictions did not involve the actual abuse of children.\nThe public guardian adds that section 1(D) (q) does not violate equal protection because, under both section l(D)(q) and section l(D)(i), the potential consequences for a parent who is convicted of the attempted murder of a child are the same, i.e., termination of his or her parental rights.\nThe protection provided by the equal protection clauses of the United States and Illinois Constitutions is identical. R.C., 195 Ill. 2d at 309; In re A.A., 181 Ill. 2d 32, 36-37, 690 N.E.2d 980 (1998). The government is required to treat similarly situated individuals in a similar manner. R.C., 195 Ill. 2d at 309. The government, therefore, may not treat differently persons who have been placed by statute into different classes on the basis of criteria wholly unrelated to the purpose of legislation. R.C., 195 Ill. 2d at 309. \u201cHowever, the equal protection clause does not forbid the legislature from drawing proper distinctions in legislation among different categories of people.\u201d R.C., 195 Ill. 2d at 309. Courts apply strict scrutiny to classifications affecting fundamental rights. A.A., 181 Ill. 2d at 37. \u201cTo survive strict scrutiny in the equal protection context, as in due process analysis, the means employed by the legislature must be necessary to advance a compelling state interest, and the statute must be narrowly tailored to the attainment of the legislative goal.\u201d R.C., 195 Ill. 2d at 309. To have standing to raise an equal protection claim, the party raising the claim must be a member of the class against whom the statute allegedly discriminates. Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 460, 687 N.E.2d 1014 (1997).\nSection 1(D)(i) of the Act, as amended, states:\n\u201c(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 9 \u2014 1 of the Criminal Code of 1961 or conviction of second degree murder in violation of subsection (a) of Section 9 \u2014 2 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 12 \u2014 14(b)(1) of the Criminal Code of 1961.\nThere 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.\nThere is a rebuttable presumption that a parent is depraved if that parent has been criminally convicted of either first or second degree murder of any person as defined in the Criminal Code of 1961 within 10 years of the filing date of the petition or motion to terminate parental rights.\u201d 750 ILCS 50/l(D)(i) (West 1998).\nRespondent relies primarily on Skinner in support of her equal protection argument. In Skinner, the Supreme Court reviewed the constitutionality of Oklahoma\u2019s habitual criminal sterilization act (Oklahoma Act), which provided for the sterilization of \u201chabitual criminals.\u201d Those eligible for the punishment pursuant to the Oklahoma Act were criminals who were convicted of at least three felonies amounting to crimes of \u201cmoral turpitude.\u201d The statute, however, specifically excluded offenses arising out of the violation of prohibitory laws, revenue acts, embezzlement, or political offenses. Skinner, 316 U.S. at 536-37, 86 L. Ed. at 1657-58, 62 S. Ct. at 1111. The Skinner petitioner had been convicted of stealing chickens and two subsequent robberies using firearms. The trial and reviewing courts of Oklahoma found that the petitioner should be sterilized pursuant to the Act. The majority of the Skinner Court reversed the lower courts\u2019 judgments, finding that the statute failed to meet the requirements of the equal protection clause. Upon comparing convictions for grand larceny, punishable under the statute, and embezzlement, which was not punishable, the Skinner Court found that the nature of the two crimes was \u201cintrinsically the same\u201d and punishable criminally in the same manner. The Skinner Court then concluded:\n\u201cWhen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. [Citations.] Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination.\u201d Skinner, 316 U.S. at 541, 86 L. Ed. at 1660, 62 S. Ct. at 1113.\nRespondent\u2019s reliance on Skinner is misplaced. Skinner involved a statute in which direct criminal punishments were vastly different for similar crimes. Repeat larcenists might be sterilized while repeat embezzlers were completely exempted from the statute. Skinner, 316 U.S. at 541, 86 L. Ed. at 1660, 62 S. Ct. at 1113. The allegedly differential treatment in the present case is not of the same nature and extent as it was in Skinner.\nHere, the Act did not create extremely different punishments for different classes of people committing similar offenses. The Act created a method for the State to have a parent declared unfit for the protection of children because of a prior conviction. The Act did not create classifications for administering direct punishment for convictions. Section 1(D) (q) created a per se finding of unfitness, while section l(D)(i) created a presumption of unfitness that may be rebutted. The risk in being convicted of the crimes listed under either of the sections is the same, i.e., the person may ultimately have his or her parental rights terminated by the court because he or she is unfit. Although, from respondent\u2019s viewpoint, section 1(D)(q) of the Act is stricter because it requires a finding of unfitness without the opportunity to rebut that finding, the potential consequences Eire the same under either section 1(D)(i) or section l(D)(q) for a conviction of one of the listed offenses. Additionally, as stated above, respondent and other similarly situated parents still possess the opportunity to present evidence of their rehabilitation and ability to be a parent at the required \u201cbest interests\u201d hearing.\nIn summary, we find no authority to support respondent\u2019s argument that because section l(D)(i) creates a rebuttable presumption of unfitness, while section l(D)(q) does not, that there is an equal protection violation. Accordingly, respondent has failed to meet her burden of establishing that section 1(D) (q) of the Act is unconstitutional.\nRespondent further contends that the trial court erred in finding that it was in D.W.\u2019s best interests to terminate respondent\u2019s parental rights because the evidence offered by the State and the public guardian at the termination hearing \u201cdid not present the trial court with a complete picture.\u201d The State and the public guardian respond that the trial court properly considered the best interests factors outlined in section 1 \u2014 3(4.05) of the Juvenile Court Act (705 ILCS 405/1 \u2014 3(4.05) (West 1998)) and correctly concluded that it was in D.W\u2019s best interests to terminate respondent\u2019s parental rights.\nThe decision to terminate parental rights rests within the sound discretion of the trial court. In re Jeffrey S., 329 Ill. App. 3d 1096, 1101, 769 N.E.2d 1114 (2002). Accordingly, a trial court\u2019s best interests finding will not be disturbed on appeal unless there was an abuse of discretion. Jeffrey S., 329 Ill. App. 3d at 1101.\nIn the present case, the trial court was required to consider the following factors in deciding whether to terminate respondent\u2019s parental rights in regard to D.W:\n(1) the physical safety and welfare of D.W, including food, shelter, health, and clothing;\n(2) the development of D.W\u2019s identity;\n(3) D.W\u2019s familial, cultural, and religious background and ties;\n(4) DW\u2019s sense of attachments, including:\n(a) where D.W actually feels love, attachment, and a sense of being valued;\n(b) D.W\u2019s sense of security;\n(c) D.W\u2019s sense of familiarity;\n(d) continuity of affection for D.W;\n(e) the least disruptive placement alternative for D.W;\n(5) D.W\u2019s wishes and long-term goals;\n(6) D.W\u2019s community ties, including church, school, and friends;\n(7) DW\u2019s need for permanence which includes his need for stability and continuity of relationships with parent figures and with siblings and other relatives;\n(8) the uniqueness of every family and child;\n(9) the risks attendant to entering and being in substitute care; and\n(10) the preferences of the persons available to care for the child. 705 ILCS 405/1 \u2014 3(4.05) (West 1998).\nA thorough review of the record indicates that, in fact, the trial court considered the above factors. At the best interests hearing, the trial court reviewed the following evidence: (1) Dr. Mula\u2019s May 14, 2002, letter to the public guardian regarding D.W.\u2019s ability to testify at the termination proceedings; (2) Dr. Mula\u2019s \u201cTherapy Progress Report\u201d on D.W.; (3) Dr. Fogel\u2019s \u201cPsychological Evaluation\u201d of D.W.; (4) Ashenfelter\u2019s testimony; (5) Dr. Mula\u2019s testimony; (6) Sims\u2019 testimony; and (7) respondent\u2019s testimony. The exhibits and the witnesses, with the exception of respondent, suggested that in order for D.W to continue with his progress in overcoming his psychological and developmental problems, including his post-traumatic stress disorder, he should remain in his foster mother\u2019s care and that respondent\u2019s parental rights should be terminated. Although respondent claims that the State and the public guardian\u2019s evidence did not present a \u201ccomplete picture\u201d to the trial court, respondent points to no evidence, offered by any of the parties, that the trial court should have considered, but did not. In fact, in respondent\u2019s brief before this court, she only reiterates the same facts made known to the trial court during the termination proceeding \u2014 facts that were considered by the trial court in rendering its ruling.\nRespondent also contends that the trial court abused its discretion by \u201cdiscounting the allegation^] of sexual abuse\u201d and by not considering \u201chow [the] allegation^] impacted the agency\u2019s handling of the case.\u201d Respondent argues, citing In re H.C., 305 Ill. App. 3d 869, 713 N.E.2d 785 (1999), that because D.W. was taken out of his maternal grandmother\u2019s home due to D.W.\u2019s unsubstantiated disclosures of sexual abuse, the trial court was obligated to give respondent the opportunity to \u201ccorrect the conditions\u201d that caused his removal before terminating respondent\u2019s parental rights.\nRespondent\u2019s argument fails for two reasons. First, the record reveals that D.W. was taken out of his maternal grandmother\u2019s home not only because of disclosures of sexual abuse, but also because his maternal grandmother was allowing unsupervised contact between D.W and respondent. Second, as discussed below, even if D.W. were removed solely due to allegations of sexual abuse, the trial court was not required under H.C. to give respondent the \u201copportunity to correct\u201d the conditions that led to D.W\u2019s removal before terminating respondent\u2019s parental rights.\nThe H.C. court held that before a parent can be declared unfit under section 1(D) (m) of the Illinois Adoption Act (750 ILCS 50/ 1(D)(m) (West 1996)), the parent must be given the opportunity to \u201cmake reasonable efforts to correct the conditions that caused the removal of the [child].\u201d H.C., 305 Ill. App. 3d at 877. Because the record in H.C. clearly showed that the respondent made reasonable progress toward the return of her children, this court reversed the trial court\u2019s finding that the respondent was unfit. H.C., 305 Ill. App. 3d at 877. In the present case, however, the trial court found that respondent was unfit pursuant to section l(D)(q), not section l(D)(m) as in H.C. Section l(D)(q), as stated above, creates an irrebuttable presumption of unfitness if a parent has been convicted of the attempted murder of a child, as was the respondent in the instant case. Once respondent was declared unfit, the trial court was obligated in the best interests hearing to consider the evidence in light of the factors enumerated in section 1 \u2014 3(4.05) of the Juvenile Court Act (705 ILCS 405/1 \u2014 3(4.05) (West 1998)). In re D.H., 323 Ill. App. 3d 1, 13, 751 N.E.2d 54 (2001). As discussed above, the record makes clear that the trial court properly considered all the evidence, including respondent\u2019s testimony regarding her rehabilitation, in light of these factors.\n' Respondent\u2019s final contention is that because D.W\u2019s foster mother indicated that she was not yet willing to permanently adopt D.W, the trial court abused its discretion in terminating respondent\u2019s parental rights. However, it is well settled that the absence of an adoptive home is only one factor to consider in deciding whether to terminate parental rights. See, e.g., In re Tashika F., 333 Ill. App. 3d 165, 170, 775 N.E.2d 304 (2002). Accordingly, we hold that the trial court did not abuse its discretion in finding that it was in DW\u2019s best interests to terminate respondent\u2019s parental rights.\nFor the reasons stated, we affirm the order of the circuit court terminating respondent\u2019s parental rights.\nAffirmed.\nCAHILL and McBRIDE, JJ., concur.\nOur supreme court, in In re J.B., 204 Ill. 2d 382, 789 N.E.2d 1259 (2003), recently dismissed the appeal as moot and vacated this court\u2019s decision in J.B., 328 Ill. App. 3d 175.\nMula later testified that \u201cNookie\u201d was a \u201cfriend of respondent\u2019s,\u201d and that he was \u201cher paramour.\u201d\nMula also stated that D.W often referred to respondent as \u201cLisa\u201d in his therapy sessions.\nIn Vanessa C., the trial court barred a parent from presenting any evidence during the termination proceeding as a discovery sanction (Vanessa C., 316 Ill. App. 3d at 478); in D.R., the trial court barred the parent\u2019s counsel from participating in the proceeding because the parent failed to appear in court (D.R., 307 Ill. App. 3d at 481); and in C.J., an incarcerated parent was precluded from testifying at the termination proceeding (C.J., 272 Ill. App. 3d at 463).", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Rita A. Fry and Edwin A. Burnette, Public Defenders, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Nancy Grauer Kisicki, and Annette Collins, Assistant State\u2019s Attorneys, of counsel), for the People.", "Patrick T. Murphy, Public Guardian, of Chicago (Charles E Golbert and Allison I. Ortlieb, of counsel), guardian ad litem." ], "corrections": "", "head_matter": "In re D.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.M., Respondent-Appellant).\nFirst District (2nd Division)\nNo. 1-02-1606\nOpinion filed September 30, 2003.\nRita A. Fry and Edwin A. Burnette, Public Defenders, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Nancy Grauer Kisicki, and Annette Collins, Assistant State\u2019s Attorneys, of counsel), for the People.\nPatrick T. Murphy, Public Guardian, of Chicago (Charles E Golbert and Allison I. Ortlieb, of counsel), guardian ad litem." }, "file_name": "0030-01", "first_page_order": 48, "last_page_order": 76 }