In re DW

• Decision Date: 24 March 2005
• Docket Number: No. 97292, No. 98896.
• Citation: 214 Ill.2d 289,292 Ill.Dec. 937,827 N.E.2d 466
• Parties: In re D.W., a Minor (The People of the State of Illinois, Appellee, v. Lisa M., Appellant). In re Amanda D., a Minor (The People of the State of Illinois, Appellant, v. Lisa Z., Appellee).
• Court: Illinois Supreme Court

827 N.E.2d 466

214 Ill.2d 289

292 Ill.Dec. 937

In re D.W., a Minor (The People of the State of Illinois, Appellee, v. Lisa M., Appellant).

In re Amanda D., a Minor (The People of the State of Illinois, Appellant, v. Lisa Z., Appellee).

Nos. 97292, 98896.

Supreme Court of Illinois.

March 24, 2005.

Edwin A. Burnette, Public Defender, Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant in No. 97292.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda Woloshin, Assistant

Attorney General, Chicago, Renee Goldfarb, Nancy Grauer Kisicki, Annette Collins, Assistant State's Attorneys, of counsel), for the People in No. 97292.

Patrick T. Murphy, Charles P. Golbert, Janet L. Barnes, Office of the Cook County Public Guardian, Chicago, for the minor in No. 97292.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, John P. Schmidt, Assistant Attorney General, Chicago, of counsel), for the People in 98896.

Samuel S. Melei, of Coonen & Roth, Ltd., Crystal Lake, for appellee in 98896.

Justice KARMEIER delivered the opinion of the court:

At issue in these consolidated appeals is the constitutionality of section 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West 2000)). Under that section, a parent is irrefutably presumed unfit if the parent "has been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child" (750 ILCS 50/1(D)(q) (West 2000)) whether or not the parent is capable of adequately caring for his or her child. In each case before us, the State sought a finding that the respondent mother was an unfit parent, proceeding solely under section 1(D)(q) of the Adoption Act; and the circuit court found the respondent unfit, based solely upon her conviction of an offense listed in that provision. In each case, parental rights were subsequently terminated after a best-interests hearing. In separate appeals, respondents challenged the constitutionality of section 1(D)(q). The First District of the appellate court upheld the constitutionality of the statute in L.M.'s appeal (In re D.W., 344 Ill.App.3d 30, 278 Ill.Dec. 692, 799 N.E.2d 410); in Lisa Z.'s case, the Second District of the appellate court held the statute unconstitutional on due process grounds (In re Amanda D., 349 Ill.App.3d 941, 285 Ill.Dec. 358, 811 N.E.2d 1237). We granted leave to appeal (177 Ill.2d R. 315) and consolidated the two cases, docketing the former as cause No. 97292 and the latter as cause No. 98896. Because we find that section 1(D)(q) violates the equal protection rights of those to whom it is applied, we affirm the judgment of the appellate court in cause No. 98896 and reverse the judgments of the appellate and circuit courts in cause No. 97292, remanding the cause to the circuit court for proceedings consistent with this opinion.

The controversy in this case involves what are really two subsections of section 1(D) of the Adoption Act which provide alternative grounds (among many) for finding a parent unfit. 750 ILCS 50/1(D)(i), (D)(q) (West 2002). These subsections are set forth below in context:

"D. `Unfit person' means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption. The grounds of unfitness are any one or more of the following, except that a person shall not be considered an unfit person for the sole reason that the person has relinquished a child in accordance with the Abandoned Newborn Infant Protection Act:

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(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 9-1 of the Criminal Code of 1961 or conviction of second degree murder in violation of subsection (a) of Section 9-2 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 12-14(b)(1) of the Criminal Code of 1961.

There is a rebuttable presumption that a parent is depraved if the parent has been criminally convicted of at least 3 felonies under the laws of this State or any other state, or under federal law, or the criminal laws of any United States territory; and at least one of these convictions took place within 5 years of the filing of the petition or motion seeking termination of parental rights.

There 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.

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(q) The parent has been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child." 750 ILCS 50/1(D)(i), (D)(q) (West 2002).

The constitutional issues in this case concern the omission of any opportunity for rebuttal in section 1(D)(q), an opportunity afforded those whom the State alleges are unfit under section 1(D)(i).

The details of the proceedings below have been set forth with specificity in the appellate court's opinions. We reiterate only those facts necessary to provide a framework for our disposition. Because of the standing issue raised in cause No. 97292, our recitation of facts in that case is necessarily more comprehensive.

BACKGROUND

Cause No. 97292

In 1990, respondent, Lisa M., was convicted of the attempted murder of her infant son, D.E. Respondent was sentenced to six years' imprisonment. At that time, respondent had three children: M.E., Q.E., and D.E. The children were placed in their father's custody when respondent went to prison.

After her release from prison, respondent gave birth to D.W. on March 7, 1994. Court records indicate that the State filed a petition for adjudication of wardship of D.W. on April 3, 1995, based on respondent's prior conviction and her history of reports with the Department of Children and Family Services (DCFS) from 1987 to 1990. Following a temporary custody hearing, the State removed D.W. from respondent's home, pending an adjudicatory hearing. At the conclusion of the adjudicatory hearing, on February 16, 1996, the circuit court of Cook County found that D.W. was at substantial risk of physical injury and ordered D.W. permanently removed from respondent's custody. However, the judgment of the circuit court was reversed on appeal due to the circuit court's failure to conclude the adjudicatory hearing within the time constraints set forth in section 2-14(b) of the Juvenile Court Act of 1987 (705 ILCS 405/2-14(b) (West 1994)). In re D.W., No. 1-96-1996, 294 Ill.App.3d 1089, 242 Ill.Dec. 568, 721 N.E.2d 847 (unpublished order under Supreme Court Rule 23). Thereafter, the State filed another petition for adjudication of wardship of D.W. on April 3, 1998, alleging, under section 2-3(2)(ii) of the Juvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 1996)), that D.W. was abused and faced substantial risk of physical injury. The petition referenced respondent's prior conviction and her previous contacts with DCFS. On August 28, 1998, the circuit court found that D.W. was abused or neglected under section 2-3(2)(ii) based on respondent's: (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.

On September 16, 1999, the State filed a supplemental petition for appointment of a guardian with the right to consent to D.W.'s 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. (750 ILCS 50/1(D)(b) (West 1998)); (2) failed to make reasonable efforts to correct the conditions which were the basis for D.W.'s removal and failed to make reasonable progress toward his return (750 ILCS 50/1(D)(m) (West 1998)); and (3) had been criminally convicted of the attempted murder of a child (750 ILCS 50/1(D)(q) (West 1998)).

After an abortive attempt to arrange a related adoption, the matter proceeded to a fitness hearing on May 17, 2002. Prior to commencement of the hearing, the State requested leave "to withdraw all grounds except for Ground Q," electing to proceed only under section 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West 1998)). The court acknowledged that the State would thus "withdraw [from consideration as grounds for a finding of unfitness, statutory bases stated in subsections] B [(750 ILCS 50/1(D)(b) (West 1998))] and M [(750 ILCS 50/1(D)(m) (West 1998))]," and proceed only under section 1(D)(q). The court so advised respondent's counsel. Based upon that representation, respondent's counsel withdrew a notice to compel the minor's appearance at the fitness portion of termination proceedings. Prior to hearing testimony, the circuit court specifically stated: "The Court grants the State leave to withdraw other grounds that they have alleged in the petition and we'll go forward now with the State putting forth their evidence as to Ground Q."

The State first called respondent to testify as an adverse witness. Respondent testified that, in 1990, she had been convicted of attempting to kill her son, D.E. The State introduced both a certified copy of respondent's 1990 conviction, which stated that respondent...