In re Donald A.G.
Chief Justice Thomas and Justices Freeman, McMorrow, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.
OPINION
The circuit court of Vermilion County found respondent, Tony Gaylord, to be an unfit parent on the ground of depravity under
BACKGROUND
On July 16, 2003, respondent’s paramour, Heather Miller, gave birth to their son, Donald A.G. The record demonstrates that at the time of Donald’s birth, respondent was in custody pending trial for the offense of predatory criminal sexual assault of a child. Respondent was alleged to have committed an act of sexual penetration against D.B., who was five years old at the time the act was committed. Respondent was ultimately convicted and sentenced to 20 years’ imprisonment.
On January 28, 2004, the State filed a petition for adjudication of wardship alleging that Donald was neglected because Miller was not providing adequate food. The record reveals that Donald was hospitalized on December 19, 2003, for dehydration because he was not
Donald was adjudicated neglected, and after a period of several months, petitions to terminate both respondent’s and Miller’s parental rights were filed. Miller’s parental rights were ultimately terminated, and she did not contest the termination.
The petition filed against respondent alleged that he was unfit because: he failed to maintain a reasonable degree of interest, concern and responsibility toward Donald (
Judge DeArmond, who presided over the fitness hearing, had also presided over respondent’s criminal trial. Defense counsel reminded the judge that respondent maintained that he did not commit the offense throughout the criminal trial and that the victim recanted. The trial judge stated: “I heard the case *** [a]nd I know what the testimony was.” Defense counsel then asked the judge “to judicially notice the previous proceedings since—frankly, since we’re fortunate enough to be in front of the Judge that heard that.” The court responded: “I’ll take judicial notice that Mr. Gaylord denied committing the offense; that it was a fairly unique fact situation in that the minor reported the allegations, subsequently
In closing arguments, the State argued that respondent should be found depraved as a result of his conviction for predatory criminal sexual assault of a child. The following colloquy ensued as a result of that argument:
“THE COURT: How does that qualify? The statute says aggravated criminal sexual assault.
MS. RIGGS [Assistant State’s Attorney]: I don’t have the adoption code with me. I thought it was just any sexual conviction. But I could be wrong.
THE COURT: I could be wrong, too. It lists a number of offenses for which a person can be found depraved. And on the next page, the very last offense, is aggravated criminal sexual assault. I mean, I may be missing—maybe there’s some language in there that says any sexual offense. And if so, I’d take that into consideration. It’s just it kind of looks like there’s two classes. There’s those which create—those for which a person can be found depraved, period. And then there’s another group for which there’s a rebuttable presumption that they’re depraved.”
Respondent’s counsel also addressed this issue in closing argument, stating:
“[T]o the extent that we’re dealing with some sort of essentially a conclusive presumption, that the conviction ipso facto makes him depraved, or whether it’s somehow a rebuttable presumption, but we would suggest that Mr. Gaylord at least ought to have an opportunity to contest whether he is depraved and, as best he can, has done so by offering testimony today and by the Court judicially noticing his previous testimony that essentially he did not participate on any assaultive behavior on the victim.”
In rendering its judgment, the trial court did not consider the presumption. Instead, the court considered whether a single conviction could support a finding of depravity as defined by this court: “[D]epravity is ‘ “an inherent deficiency of moral sense and rectitude.” ’ ” In re Abdullah, 85 Ill. 2d 300, 305 (1981), quoting Stalder v. Stone, 412 Ill. 488, 498 (1952). The trial court also looked to this court’s analysis in Abdullah, along with the appellate court’s holdings in In re S.H., 284 Ill. App. 3d 392 (1996), and In re A.H., 215 Ill. App. 3d 522 (1991), and concluded that the case law “does not prohibit a finding of depravity based on a single criminal conviction.” The court added: “[a]nd when you consider the nature of the criminal conviction in relation to the nature of the case we’re here on, I think it does constitute a sufficient basis for a finding of depravity under Subsection (D)(i). And I find that there is clear and convincing evidence based upon the felony conviction.”
Respondent appealed the trial court’s judgment, and the appellate court reversed, with one justice dissenting. The appellate court found that the trial court needed “something more” than the “mere fact” of respondent’s conviction for predatory criminal sexual assault of a child to support a finding of depravity. 357 Ill. App. 3d at 940. The appellate court concluded that the trial court only took judicial notice of respondent’s denials and the victim’s recantation, but did not consider the underlying facts of the criminal case. 357 Ill. App. 3d at 940. Additionally, the appellate court recognized that
Notably, since the filing of the State’s petition, the appellate court has filed a Rule 23 order in respondent’s criminal appeal, People v. Gaylord, No. 4—04—0169 (January 18, 2006) (unpublished order under Supreme Court Rule 23). At oral argument, respondent requested that this court take judicial notice of the Rule 23 order and the facts contained therein.1 The State does not object, as it was the State’s position that the trial court took judicial notice of the underlying facts of respondent’s criminal conviction during the fitness hearing. Accordingly, we take judicial notice of the Rule 23 order.
According to the Rule 23 order, the evidence presented at respondent’s criminal trial demonstrated that DCFS was called to investigate a charge of environmental neglect against Jason and Tabitha Traylor. The DCFS investigator interviewed D.B., Tabitha’s daughter. D.B. was asked if she was afraid of anyone, and she responded that she was afraid of respondent. She stated that respondent’s private part had touched her private part. D.B. added that she was afraid she would get in trouble for telling because it was a secret.
A second DCFS investigator interviewed D.B. later that day. D.B. described the incident, stating that respondent put his private part inside her private part
D.B. recanted her statements when testifying at trial. She averred that the DCFS investigator told her what to say and that respondent never touched her. The Traylors also testified, on respondent’s behalf, that D.B. recanted her statements to them. They added that they had more than 10 adults talk to D.B. about her accusations against respondent, and she recanted to those adults as well. Additionally, they indicated that they considered respondent a “very good” friend.
Respondent testified at the trial. He denied committing the crime for which he was charged. However, in contrast to his testimony at the fitness hearing, he admitted that he had previously been convicted of criminal sexual assault, was placed on probation, and ordered to register as a sex offender for 10 years. He averred that he was 18 years old when he committed that offense and the victim was 16 years old.
The trial court concluded that D.B.’s statements to the DCFS investigators were credible and further found that D.B.’s recantation was the result of pressure from her parents, who were “very supportive” of respondent. The trial court further found that it was “obvious” that D.B.’s parents had “put substantial pressure on this victim.” The court thus found respondent guilty of predatory criminal sexual assault of a child. The appellate court affirmed. People v. Gaylord, No. 4—04—0169 (January 18, 2006) (unpublished order under Supreme Court Rule 23). Respondent has since filed a petition for leave to appeal to this court on the criminal matter. People v. Gaylord, No. 102063 (pet. for leave to appeal pending).
ANALYSIS
Under the
In this case, as previously stated, the trial court found respondent unfit on the ground of depravity. The trial court did not make this finding in reliance on a presumption of depravity. Rather, the trial court concluded, based on the evidence of respondent’s criminal conviction, that the State met its burden of proving by clear and convincing evidence that respondent was depraved, in that he had an “inherent deficiency of moral sense and rectitude.” See In re Abdullah, 85 Ill. 2d at 305. The appellate court reversed the trial court’s judgment, finding that respondent’s conviction for predatory criminal sexual assault of a child was insufficient, by itself, to support a finding of depravity. The State asserts that the appellate court erred in concluding that the State failed to meet its burden. According to the State, the fact that respondent was convicted of the offense of predatory
Respondent asserts that the plain language of
“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
* * *
(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.” (Emphasis added.)
750 ILCS 50/1(D)(i) (West 2002) .
The State acknowledges that predatory criminal sexual assault of a child is not an offense enumerated in the statute. However, the State nevertheless maintains that the legislature intended to create a rebuttable presumption of depravity to be applied to the offense of predatory criminal sexual assault of a child, but made a drafting error. In support of this position, the State points out that the legislature cited to
In 1994,
“(b) The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed; or
(2) the accused was under 17 years of age and (i) commits an act of sexual penetration with a victim who was under 9 years of age when the act was committed; or (ii) commits an act of sexual penetration with a victim who was at least 9 years of age but under 13 years of age when the act was committed and the accused used force or threat of force to commit the act.”
720 ILCS 5/12—14(b)(1) ,(b)(2) (West 1994) .
After 1994, the aggravated criminal sexual assault statute was divided. The conduct proscribed in
“(a) The accused commits predatory criminal sexual assault of a child if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed[.]”
720 ILCS 5/12—14.1(a)(1) (West 1998) .
Language contained in the current predatory criminal sexual assault of a child statute is identical to the language set forth in
The State argues that no other construction of
Under only one circumstance does the offense of aggravated criminal sexual assault exclusively apply to a child, and that circumstance occurs when the accused is under the age of 17. See
Moreover, a comparison of the aggravated criminal sexual assault statute to the predatory criminal sexual assault of a child statute reveals that the legislature, by virtue of the sentencing scheme imposed for these offenses, deems the offense of predatory criminal sexual assault of a child to be more severe and, therefore, worthy of a harsher sentence. While both crimes require sentencing as a Class X offender, the legislature has seen fit to extend the sentence for predatory criminal sexual assault of a child, even for first-time offenders, to “not less than 50 years and not more than 60 years” under certain circumstances. Compare
In sum, our review of the legislative history leads us to conclude that the legislature made an inadvertent drafting error in stating that the presumption of depravity applied to the offense of aggravated criminal sexual assault. The legislature intended for the presumption to apply to the conduct which now comprises the offense of predatory criminal sexual assault of a child.
Our opinion in In re Detention of Lieberman, 201 Ill. 2d 300 (2002), supports this conclusion. In that case, we considered whether the legislature intended to include the repealed offense of rape in a statute which enumerated offenses that were considered “sexually violent offenses,” but did not actually name “rape.” In 1984, the criminal offense of rape was repealed and subsumed within the definitions of several other offenses set forth in the
In Lieberman, the defendant had been convicted of multiple rapes prior to the repeal of the statute. The State moved to classify him as a sexually violent person and increase his period of imprisonment. The defendant argued that his rape convictions could not be construed
We also pointed out that the defendant’s proposed interpretation of the statute would lead to absurd consequences which the legislature did not contemplate in light of the fact that it enacted a statute designed to keep citizens safe from dangerous sex offenders. Lieberman, 201 Ill. 2d at 320. Accordingly, we concluded that:
“[T]he legislature’s omission of the now-repealed offense of rape from this definition was purely inadvertent and constituted a situation ‘where a legislative intention, otherwise clear, was in part mistakenly or inaccurately stated.’ [Citation.] ‘[C]ourts must construe the acts to reflect the obvious intent of the legislature even if the words of a particular section must be read or modified or altered so as to comport with the legislative intent.’ [Citations.]” Lieberman, 201 Ill. 2d at 320.
We find in this case, as we did in Lieberman, that the legislature’s failure to name the offense of predatory criminal sexual assault of a child in the statute was “purely inadvertent.” The legislature simply cited to an outdated version of the Criminal Code wherein the offense of predatory criminal sexual assault of a child was included in the statutory definition of aggravated criminal sexual assault. However, the fact that the legislature referred to a specific section of that statute, rather than the statute as a whole, demonstrates that the legislature intended for that specific conduct to trig
Respondent argues that, even if the presumption applies pursuant to statute, it should not apply to him because his conviction for predatory criminal sexual assault of a child was wrongful. Respondent maintains that the evidence against him was insufficient because the victim recanted, no other evidence linked him to the crime, and he never admitted guilt. Respondent admits that he is asking us to review the propriety of his criminal conviction, even though that cause is not squarely before us. We decline to do so. As it stands, respondent was convicted of the offense of predatory criminal sexual assault of a child in a bench trial. The appellate court affirmed the conviction. Gaylord, No. 4—04—0169 (unpublished order under Supreme Court Rule 23). This court does not, sua sponte, review appellate court judgments, and we will not make an exception in this case. Accordingly, we conclude that respondent is subject to the rebuttable presumption of depravity based on his conviction for predatory criminal sexual assault of a child.
In light of this holding, we are bound to consider whether this matter must be remanded to the trial court for respondent to have the opportunity to rebut the depravity presumption. Based on our review of the record, we conclude that remand is not necessary in this
The question before us, then, is whether the evidence presented by respondent was sufficient to refute the State’s prima facie case of depravity. In considering this question, we are cognizant that the trial court did not apply the depravity presumption when determining whether the evidence presented at the fitness hearing was sufficient to prove that respondent was depraved. Instead, the trial court based its finding on the general definition of depravity and the burden rested on the State to prove, by clear and convincing evidence, that respondent had an “inherent deficiency of moral sense and rectitude.” However, in applying the presumption, respondent now bears the burden of refuting the presumption by clear and convincing evidence.
As previously indicated, respondent attempted to refute the depravity allegation by offering evidence showing that he denied committing the underlying offense. Respondent also maintained that the evidence was insufficient to sustain a conviction because the victim recanted. However, the trial judge, who presided over respondent’s criminal trial, had previously concluded that the victim’s recantation came after great pressure was applied by her parents, and the victim’s recantation testimony was thus deemed incredible by the court. Aside from refuting the facts of the criminal conviction, which respondent had the opportunity to do, respondent cannot present additional evidence that would overcome the depravity presumption. Notably, in this regard, the record already demonstrates that respondent has not engaged
We acknowledge respondent’s argument that the trial judge erred in determining the credibility of the victim’s recantation testimony in the criminal trial, and thus erred on the same grounds in this cause. However, as we previously stated, the trial court’s alleged errors in respondent’s criminal trial are not properly before us in this case and we will not consider them.
We are aware that respondent has filed a petition for leave to appeal the appellate court’s judgment in his criminal case, which is currently pending. People v. Gaylord, No. 102063 (pet. for leave to appeal pending). However, the Adoption Act does not call for courts to reserve ruling on findings of unfitness which are related to criminal matters until the appellate process in the underlying cause has been exhausted. See In re C.M.J., 278 Ill. App. 3d 885, 891 (1996). Accordingly, we conclude that it is unnecessary to remand this matter for further proceedings.
CONCLUSION
We affirm the trial court’s finding of unfitness on grounds of depravity and find that defendant’s parental rights were properly terminated. The judgment of the appellate court is reversed.
Appellate court judgment reversed; circuit court judgment affirmed.