{ "id": 4136763, "name": "In re DONALD A.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Tony Gaylord, Respondent-Appellant)", "name_abbreviation": "People v. Gaylord", "decision_date": "2005-06-10", "docket_number": "No. 4-05-0048", "first_page": "934", "last_page": "946", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 934" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "773 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "201 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477001 ], "year": 2002, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0081-01" ] }, { "cite": "826 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "356 Ill. App. 3d 11", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3749835 ], "year": 2005, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0011-01" ] }, { "cite": "566 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1302" } ], "opinion_index": 0 }, { "cite": "142 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236540 ], "year": 1990, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0054-01" ] }, { "cite": "824 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "214 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450836 ], "year": 2005, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0187-01" ] }, { "cite": "820 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "389-90", "parenthetical": "\"How a statute is interpreted is not a matter left to the trial court's discretion. It presents a question of law ***\"" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448393 ], "year": 2004, "pin_cites": [ { "page": "135-36", "parenthetical": "\"How a statute is interpreted is not a matter left to the trial court's discretion. It presents a question of law ***\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0129-01" ] }, { "cite": "107 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "412 Ill. 488", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665097 ], "year": 1952, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0488-01" ] }, { "cite": "672 N.E.2d 403", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "407" }, { "page": "407-08" }, { "page": "407-08" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 392", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260355 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "398-99" }, { "page": "399" }, { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0392-01" ] }, { "cite": "423 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "917" }, { "page": "918" }, { "page": "918" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469559 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "305" }, { "page": "306-07" }, { "page": "306-07" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0300-01" ] }, { "cite": "732 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1208" } ], "opinion_index": 1 }, { "cite": "314 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140307 ], "year": 2000, "pin_cites": [ { "page": "751" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/314/0739-01" ] }, { "cite": "107 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "pin_cites": [ { "page": "701" } ], "opinion_index": 1 }, { "cite": "412 Ill. 488", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665097 ], "year": 1952, "pin_cites": [ { "page": "498" } ], "opinion_index": 1, "case_paths": [ "/ill/412/0488-01" ] }, { "cite": "672 N.E.2d 403", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "407-08" } ], "opinion_index": 1 }, { "cite": "284 Ill. App. 3d 392", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260355 ], "year": 1996, "pin_cites": [ { "page": "399" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/284/0392-01" ] }, { "cite": "423 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "917" } ], "opinion_index": 1 }, { "cite": "85 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469559 ], "year": 1981, "pin_cites": [ { "page": "305" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/85/0300-01" ] } ], "analysis": { "cardinality": 933, "char_count": 26739, "ocr_confidence": 0.746, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.327858303708054 }, "sha256": "1b9cfb21ba57129e7f337a6c658ae66c8b1674f94ad9120f751e6c98cee0872f", "simhash": "1:21a6343c8d8f5b7a", "word_count": 4421 }, "last_updated": "2023-07-14T22:31:24.775353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re DONALD A.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Tony Gaylord, Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn August 2004, the State filed a petition to terminate the parental rights of respondent, Tony Gaylord, as to his son, Donald A.G. (born July 16, 2003). Following a November 2004 hearing on that petition, the trial court found respondent unfit. Following a December 2004 hearing, the court found that it would be in Donald\u2019s best interest to terminate respondent\u2019s parental rights.\nRespondent appeals, arguing that the trial court\u2019s unfitness and best-interest findings were against the manifest weight of the evidence. Because we agree with respondent\u2019s first argument, we reverse.\nI. BACKGROUND\nIn January 2004, the State filed a petition for adjudication of wardship, alleging that Donald was a neglected minor in that his mother, Heather Miller, did not provide him with the proper or necessary care by giving him inadequate food (705 ILCS 405/2 \u2014 3(l)(a) (West 2002)). (The trial court later terminated Miller\u2019s parental rights; however, she is not a party to this appeal.)\nFollowing a February 2004 adjudicatory hearing, the trial court entered an order adjudicating Donald a neglected and dependent minor. Following a March 2004 dispositional hearing, the court adjudicated Donald a ward of the court and appointed the Illinois Department of Children and Family Services (DCFS) as his guardian.\nIn August 2004, the State filed its petition to terminate respondent\u2019s parental rights as to Donald, which alleged that respondent was unfit in that (1) he failed to maintain a reasonable degree of interest, concern, or responsibility as to Donald\u2019s welfare (750 ILCS 50/l(D)(b) (West 2002)); (2) he was depraved due to a felony conviction in Vermilion County case No. 03 \u2014 CF\u2014247 (750 ILCS 50/l(D)(i) (West 2002)); and (3) (a) Donald was in the guardianship of DCFS, (b) when the termination petition was filed, respondent was incarcerated due to a criminal conviction, (c) respondent had little or no contact and provided little or no support for Donald prior to respondent\u2019s incarceration, and (d) respondent\u2019s incarceration would prevent him from discharging his parental responsibilities for more than two years (750 ILCS 50/l(D)(r) (West 2002)).\nBecause the parties are familiar with the evidence presented at the November 2004 hearing on the State\u2019s termination petition, we discuss it only to the extent necessary to put respondent\u2019s arguments in context.\nJacqui Walters, a DCFS child-welfare specialist, testified that she became Donald\u2019s caseworker in late January 2004. Respondent was incarcerated then and had never visited with Donald. Nor had respondent contacted Walters about seeing Donald. At some point, Walters mailed respondent a copy of his client-service plan; however, her only contact with him had been in court.\nThe transcript of proceedings shows that the trial court admitted in evidence a copy of respondent\u2019s certified conviction for predatory criminal sexual assault of a child (720 ILCS 5/12 \u2014 14.1 (West 2002)). However, that document is not contained in the record on appeal. (Respondent\u2019s criminal conviction is on appeal in case No. 4 \u2014 04\u2014 0169.)\nRespondent testified on his own behalf that he had been incarcerated since May 2003, two months prior to Donald\u2019s birth. If the pending appeal of his criminal conviction was successful and he was released from prison, he would get a job and a place to live so that he could raise Donald. Prior to his incarceration, he had worked at Plastipak in Champaign for about five months. Respondent was currently studying for his high school equivalency diploma.\nWhen respondent\u2019s counsel asked the trial court to take judicial notice of respondent\u2019s criminal proceedings, the court replied as follows:\n\u201cI\u2019ll take judicial notice that [respondent] 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 [her] to recant; but the testimony of [respondent] was that it did not happen.\u201d\nOn cross-examination, respondent acknowledged that (1) he had been convicted of sexual assault against a child and sentenced to 20 years in prison and (2) he was not in a position to support Donald financially. When asked if he had attempted to make contact with Donald, he replied that he did not know where Donald was. Respondent further testified that he did not have Walters\u2019 contact information with him in prison and was unable to speak with her at court appearances because he was not given that opportunity.\nBased on this evidence, the trial court found respondent unfit based on two of the grounds alleged in the State\u2019s termination petition. Specifically, the court found that the State proved its allegation of unfitness based on (1) depravity (750 ILCS 50/l(D)(i) (West 2002)), due to the nature of respondent\u2019s criminal conviction; and (2) respondent\u2019s incarceration at the time of the filing of the termination petition and that his incarceration would prevent him from discharging his parental responsibilities for more than two years (750 ILCS 50/ l(D)(r) (West 2002)).\nAt the December 2004 best-interest hearing, the trial court admitted in evidence a best-interest report prepared by DCFS. The report showed, in pertinent part, the following: (1) Donald had been living with the same foster family (who previously had adopted his brother) since he entered foster care, (2) Donald was happy and \u201cvery bonded\u201d with his foster family, and (3) his foster family was willing to provide him with a permanent home in the event that respondent\u2019s and Miller\u2019s parental rights were terminated. DCFS recommended that respondent\u2019s parental rights be terminated so that Donald could achieve permanency.\nBased on this evidence, the trial court found that it was in Donald\u2019s best interest to terminate respondent\u2019s parental rights. This appeal followed.\nII. THE TRIAL COURT\u2019S UNFITNESS FINDINGS\nA. Depravity\nRespondent first argues that the trial court\u2019s unfitness finding based on depravity (750 ILCS 50/l(D)(i) (West 2002)) was against the manifest weight of the evidence. Specifically, he contends that (1) the only evidence presented of his depravity was the mere fact of his conviction for predatory criminal sexual assault of a child and (2) his conviction alone does not constitute clear and convincing evidence of depravity under the Adoption Act (750 ILCS 50/0.01 through 24 (West 2002)). Relying on In re Abdullah, 85 Ill. 2d 300, 423 N.E.2d 915 (1981), and In re S.H., 284 Ill. App. 3d 392, 672 N.E.2d 403 (1996), the State responds that the evidence of respondent\u2019s conviction of predatory criminal sexual assault of a child constitutes clear and convincing evidence of depravity. We agree with respondent.\nPursuant to section 1(D) (i) of the Adoption Act, a parent can be found unfit based on depravity. 750 ILCS 50/l(D)(i) (West 2002). A presumption of depravity that can be overcome only by clear and convincing evidence exists where the respondent has been convicted of any of the following crimes:\n\u201c(1) first degree murder in violation of paragraph 1 or 2 of subsection (a) of [s]ection 9 \u2014 1 of the Criminal Code of 1961 or conviction of second degree murder in violation of subsection (a) of [s]ection 9 \u2014 2 of the [Code] of a parent of the child to be adopted; (2) first degree murder or second degree murder of any child in violation of the [Code]; (3) attempt or conspiracy to commit first degree murder or second degree murder of any child in violation of the [Code]; (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 [Code]; or (5) aggravated criminal sexual assault in violation of [s]ection 12\u2014 14(b)(1) of the [Code].\u201d 750 ILCS 50/l(D)(i) (West 2002).\nSection l(D)(i) further provides as follows:\n\u201cThere is a rebuttable presumption that a parent is depraved if the parent has been criminally convicted of at least [three] felonies under the laws of this [s]tate 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 [five] years of the filing of the petition *** 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 [Code] within 10 years of the filing date of the petition *** to terminate parental rights.\u201d 750 ILCS 50/l(D)(i) (West 2002).\nIllinois courts define depravity as \u201c \u2018an inherent deficiency of moral sense and rectitude.\u2019 \u201d Abdullah, 85 Ill. 2d at 305, 423 N.E.2d at 917, quoting Stalder v. Stone, 412 Ill. 488, 498, 107 N.E.2d 696, 701 (1952).\nIn Abdullah, the supreme court held that sufficient evidence of depravity existed because (1) the respondent was convicted of murder, \u201cthe most serious criminal offense there is\u201d; (2) the respondent was the father of the child who was the subject of the termination proceedings and the murder victim was the child\u2019s mother; and (3) the respondent\u2019s extended sentence indicated that the murder was accompanied by brutal and heinous behavior. Abdullah, 85 Ill. 2d at 306-07, 423 N.E.2d at 918.\nIn S.H., this court interpreted Abdullah and concluded that sufficient evidence of depravity existed based on the respondent\u2019s convictions on two Class X felony charges of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 14(b)(1)). Before reaching that conclusion, however, we noted that under the narrow definition of depravity as established by Abdullah, \u201cthe commission of most felonies, even very serious ones, will not, without more, support a finding of unfitness based on depravity.\u201d S.H., 284 Ill. App. 3d at 398-99, 672 N.E.2d at 407. We then noted that the trial court took judicial notice of the record from the respondent\u2019s criminal trial, which showed that he pleaded guilty to placing his penis in the vagina and mouth of his five-year-old daughter, who was the subject of the termination proceedings. We held that this information alone was sufficient evidence of depravity under the Act. S.H., 284 Ill. App. 3d at 399, 672 N.E.2d at 407-08.\nWe are not persuaded that Abdullah and S.H. support the State\u2019s argument that respondent\u2019s conviction constitutes clear and convincing evidence of depravity. In both Abdullah and S.H., the trial courts considered \u201csomething more\u201d than the mere fact of the respondents\u2019 convictions. In Abdullah, the court considered (1) the seriousness of the crime of murder; (2) the relationship between the respondent, the victim, and the child; and (3) the brutal and heinous nature of the murder. See Abdullah, 85 Ill. 2d at 306-07, 423 N.E.2d at 918. In S.H., the trial court took judicial notice of the record of the guilty-plea proceedings and considered the specific acts the respondent had committed against his own young child. S.H., 284 Ill. App. 3d at 399, 672 N.E.2d at 407-08.\nIn this case, the record contains nothing more than the mere fact of respondent\u2019s conviction for predatory criminal sexual assault of a child. The State introduced only respondent\u2019s certified conviction, and the trial court did not take judicial notice of anything from respondent\u2019s criminal trial, apart from the following facts: (1) respondent denied committing the offense, (2) the victim reported the offense and then later recanted, and (3) there were \u201cissues with regard to whether\u201d the victim was pressured to recant. Thus, this record lacks anything comparable to the circumstances present in S.H. and Abdullah, which constituted \u201csomething more\u201d than the fact of the respondent\u2019s conviction.\nMoreover, when Abdullah and S.H. were decided, the Act did not contain any of the presumptions of depravity that now exist. Under section 1(D) (i) as it now exists, convictions of several enumerated crimes create a presumption of depravity, shifting the burden to the respondent to show that he is not depraved. Although aggravated criminal sexual assault (720 ILCS 5/12 \u2014 14 (West 2002)) is one such crime, predatory criminal sexual assault of a child (720 ILCS 5/12\u2014 14.1 (West 2002)) is not. Given the specificity with which the legislature set forth the other enumerated crimes in section 1(D) (i), we cannot assume that the legislature intended to include predatory criminal sexual assault of a child but simply neglected to do so. If the legislature had intended to include that crime, it would have done so. Accordingly, we conclude that the burden was squarely on the State to provide evidence of respondent\u2019s depravity beyond the mere fact of his conviction for predatory criminal sexual assault of a child. Because the State failed to do so, we conclude that the trial court\u2019s finding of depravity was against the manifest weight of the evidence.\nB. A Parent\u2019s Incarceration Under Section 1 (D)(R) of the Act\nRespondent also argues that the trial court\u2019s unfitness finding based on section 1(D) (r) of the Act was against the manifest weight of the evidence. Specifically, he contends that the State did not, and could not, prove an essential element of section l(D)(r) \u2014 namely, that prior to respondent\u2019s incarceration, he had little or no contact with Donald or provided little or no support for Donald \u2014 because prior to his incarceration, Donald had not yet been born. We agree.\nSection l(D)(r) of the Act provides, in pertinent part, as follows:\n\u201cThe grounds of unfitness are any *** of the following ***:\n* * *\n(r)[(l)] The child is in the temporary custody or guardianship of [DCFS], [(2)] the parent is incarcerated as a result of criminal conviction at the time the petition or motion for termination of parental rights is filed, [(3)] prior to incarceration the parent had little or no contact with the child or provided little or no support for the child, and [(4)] the parent\u2019s incarceration will prevent the parent from discharging his or her parental responsibilities for the child for a period in excess of [two] years after the filing of the petition or motion for termination of parental rights.\u201d 750 ILCS 50/ l(D)(r) (West 2002).\nInitially, we note that in this case, the trial court acknowledged that evidence did not exist on the third element of section 1(D) (r) (that respondent had little or no contact with Donald or provided little or no support for Donald prior to respondent\u2019s incarceration) because Donald was not born prior to respondent\u2019s incarceration. The court nevertheless found that the State had proved by clear and convincing evidence that respondent was unfit based on this ground.\nWhether the Act requires evidence of each subpart of section 1(D) (r) is a question of statutory interpretation, which we review de novo. See In re Marriage of Rogers, 213 Ill. 2d 129, 135-36, 820 N.E.2d 386, 389-90 (2004) (\u201cHow a statute is interpreted is not a matter left to the trial court\u2019s discretion. It presents a question of law ***\u201d). In People v. Jones, 214 Ill. 2d 187, 193, 824 N.E.2d 239, 242 (2005), our supreme court recently discussed statutory interpretation, as follows:\n\u201cThe primary objective of statutory interpretation is to determine and give effect to the legislature\u2019s intent. [Citation.] This inquiry properly begins by examining the language of the statute at issue. [Citation.] The statute should be read as a whole and construed so that no part of it is rendered meaningless or superfluous. [Citation.] Where the legislature\u2019s intent is not clear from the statute\u2019s plain language, the court may examine the legislative history.\u201d\nOur supreme court has also held that \u201c [legislative intent can be ascertained from a consideration of the entire [a]ct, its nature, its object[,] and the consequences that would result from construing it one way or the other.\u201d Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96, 566 N.E.2d 1283, 1302 (1990). In addition, courts must not construe words and phrases in isolation and, instead, should construe them in light of other relevant portions of the statute so that \u2014 if possible \u2014 no term is rendered superfluous or meaningless. Girard v. White, 356 Ill. App. 3d 11, 17, 826 N.E.2d 517, 523 (2005).\nThis case presents a two-part question of interpretation of section 1(D) (r) of the Act. First, whether the State must prove each element of that section, and second, whether the element regarding the respondent\u2019s relationship to his child prior to incarceration can ever be satisfied when the respondent is incarcerated prior to the child\u2019s birth.\nThe elements set forth in section l(D)(r) are listed in the conjunctive, with the word \u201cand\u201d linking the third and fourth elements set forth. Use of the conjunctive \u201cand\u201d between two or more statutory elements ordinarily indicates that the legislature intended that all of the elements must be satisfied in order to comply with the statute. Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 87, 773 N.E.2d 641, 645 (2002). Accordingly, we conclude that all of the elements contained in section l(D)(r) of the Act must be present to establish a ground for unfitness based on that section.\nOur interpretation of section l(D)(r) is consistent with the legislative debates on House Bill 165 (which added section 1(D) (r) to the Act). In particular, when questioned about the effect subsection (r) would have on an incarcerated parent, Representative Dart, a cosponsor of the bill, explained the proposed section as follows:\n\u201c[Section l(D)(r)] talks about grounds for unfitness[; it] says the child is in the temporary custody or guardianship of DCFS, the parent is incarcerated as a result of criminal conviction at the time of the petition or motion for termination [of] parental rights is filed. Prior to incarceration the parent had little or no contact with the child or provided little or no support for the child. So those things all have to be done before anything\u2019s impacted.\u201d (Emphasis added.) 90th Gen. Assem., House Proceedings, May 22, 1997, at 14 (statements of Representative Dart).\nWe next consider whether, as a matter of law, the third element of section 1(D) (r) can be satisfied when the respondent is incarcerated prior to the child\u2019s birth. In other words, can it be proved that the parent had little or no contact or provided little or no support for the child prior to incarceration when the child did not exist prior to the respondent\u2019s incarceration?\nIn our view, the plain language of subsection (r) presupposes that the child existed before the respondent parent\u2019s incarceration began. In addition, the legislative debates show that the legislature did not add section l(D)(r) to the Act to expedite termination of parental rights in all cases in which the respondent parent was incarcerated. Specifically, when asked \u201cso this is saying that if an individual is incarcerated that their children can be taken away?,\u201d Representative Dart replied as follows:\n\u201cNo, that\u2019s not what the [b]ill says. What the [b]ill is, is in context what that says, is if an individual showed no interest in the child before any conviction occurs, then that individual can not use the fact that now they are in jail to try to get a habeas corpus petition out basing it on the child. Before the conviction there is no interest shown in the child. That\u2019s what that is getting at now and that\u2019s the whole theme of this [bjill. This is going after the parents who don\u2019t care about their kids ***.\u201d 90th Gen. Assem., House Proceedings, May 22, 1997, at 12 (statements of Representative Dart).\nThus, the legislature sought to expedite proceedings when, in addition to the other three elements of subsection (r), the respondent had little or no contact with or provided little or no support for the child before incarceration. If the child was not horn until after the respondent\u2019s incarceration began, the third element of subsection (r) simply cannot apply or be proved.\nAccordingly, we conclude that in this case, the trial court\u2019s unfitness finding based on section l(D)(r) of the Act was against the manifest weight of the evidence.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment.\nReversed.\nAPPLETON, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE MYERSCOUGH,\ndissenting:\nI respectfully but strongly dissent. I would affirm the trial court. In asserting that respondent\u2019s \u201cmere\u201d predatory-criminal-sexual-assault conviction did not create a presumption of depravity, the majority ignores the clear intent of the legislature and the Illinois courts\u2019 interpretation of depravity.\nAs the majority correctly points out, under section l(D)(i) of the Act, a parent is presumed to be depraved if he or she committed aggravated criminal sexual assault in violation of section 12 \u2014 14(b)(1) of the Code. However, under the Code, section 12 \u2014 14(b)(1) no longer exists. To correctly interpret the statute in question and determine what kind of sexual-assault offenses create a presumption of depravity, this court must examine the history and the intent of the legislature behind the statute.\nThe statute for aggravated criminal sexual assault formerly included two crimes, (1) our now predatory criminal sexual assault and (2) our now aggravated criminal sexual assault. See 720 ILCS 5/12 \u2014 14(b) (West 1994). Former section 12 \u2014 14(b)(1) of the Code, as late as 1994, stated as follows:\n\u201c(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.\u201d 720 ILCS 5/12 \u2014 14(b)(1) (West 1994).\nThis language now defines predatory criminal sexual assault (720 ILCS 5/12 \u2014 14.1(a)(1) (West 2002)). Section 12 \u2014 14(b)(2) (720 ILCS 5/12 \u2014 14(b)(2) (West 1994)) was actually what is now our aggravated criminal sexual assault (720 ILCS 5/12 \u2014 14(b) (West 2002)), that is:\n\u201c(2) the accused was under 17 years of age and (i) commits an act of sexual penetration with a victim who 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.\u201d 720 ILCS 5/12 \u2014 14(b)(2) (West 1994).\nThe above statutes clearly establish that the Act\u2019s presumption of depravity in section 12 \u2014 14(b)(1) was based on the 1994 version of the Code and referred to the offense of predatory criminal sexual assault, which was formerly called aggravated criminal sexual assault. Section 12 \u2014 14(b)(1) no longer exists in the Code, only subsection (b) exists, which is now aggravated criminal sexual assault, the former section 12 \u2014 14(b)(2). Clearly, the legislature intended that respondent\u2019s predatory-criminal-sexual-assault conviction create a presumption of depravity under the Act. Moreover, it is difficult to believe that the legislature intended to draw a distinction between these two Class X felonies, particularly where predatory criminal sexual assault carries, in certain circumstances, a mandatory 50-year sentence. 720 ILCS 5/12 \u2014 14.1(b) (West 2002).\nFurther, respondent is depraved regardless of whether the presumption of depravity applies. As the majority stated, Illinois courts define depravity as \u201c \u2018 \u201can inherent deficiency of moral sense and rectitude.\u201d \u2019 \u201d 357 Ill. App. 3d at 939, quoting Abdullah, 85 Ill. 2d at 305, 423 N.E.2d at 917, quoting Stalder, 412 Ill. at 498, 107 N.E.2d at 701. In the instant case, respondent was convicted of a Class X sexual assault of a child and is serving a 20-year sentence. The trial judge took judicial notice of the evidence presented in that case, as the following discussion demonstrates:\n\u201cTHE COURT: I heard the case.\nMR. McINTIRE [(respondent\u2019s attorney)]: Right.\nTHE COURT: And I know what the testimony was. But for record purposes what does it matter what [respondent] testified to?\nMR. McINTIRE: Judge, I\u2019m merely trying to establish as best I can that \u2014 notwithstanding his conviction, that [respondent] is not depraved or not necessarily depraved based on\u2014\nTHE COURT: Well, I guess the problem I\u2019ve got is the conviction is for predatory criminal sexual assault, and the offense for which the rebuttable presumption of depravity exists is aggravated criminal sexual assault. So I don\u2019t think they\u2019ve got it anyway.\nMR. McINTIRE: I understand, Judge. I\u2019m merely trying to establish for the record, and perhaps I can do that by asking the [c]ourt to judicially notice the previous proceedings since \u2014 frankly, since we\u2019re fortunate enough to be in front of the [j]udge that heard that.\nTHE COURT: I\u2019ll take judicial notice that [respondent] 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 [her] to recant; but the testimony of [respondent] was that it did not happen.\u201d\nFurther, in S.H., 284 Ill. App. 3d at 399, 672 N.E.2d at 407-08, sex with the defendant\u2019s own child was enough to establish depravity. Why should not sex with someone else\u2019s child be enough? Curiously, the legislature has long recognized that incest is not as heinous as the act with a neighbor, as criminal sexual assault is probationable only if the defendant is a family member of the victim. See 730 ILCS 5/5\u2014 5 \u2014 3(e) (West 2002). Clearly, the trial court noted the \u201cunique factual situation\u201d that led to respondent\u2019s conviction and later concluded that respondent was depraved due to the nature of his criminal conviction. Such a finding is not erroneous, and this court should therefore affirm on that basis.\nFinally, we can affirm on any ground apparent from the record. In re K.B., 314 Ill. App. 3d 739, 751, 732 N.E.2d 1198, 1208 (2000). Despite the trial court\u2019s comment to the contrary, the record establishes that respondent failed to maintain a reasonable degree of interest (750 ILCS 50/l(D)(b) (West 2002)), a ground raised by the State in its petition, because respondent made no efforts since the birth of the minor.", "type": "dissent", "author": "JUSTICE MYERSCOUGH," } ], "attorneys": [ "Robert E. Mclntire, Public Defender, of Danville, and Kimberly Edwards, of Rossville, for appellant.", "Frank Young, State\u2019s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re DONALD A.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Tony Gaylord, Respondent-Appellant).\nFourth District\nNo. 4-05-0048\nOpinion filed June 10, 2005.\nMYERSCOUGH, J., dissenting.\nRobert E. Mclntire, Public Defender, of Danville, and Kimberly Edwards, of Rossville, for appellant.\nFrank Young, State\u2019s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0934-01", "first_page_order": 950, "last_page_order": 962 }