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SECOND DIVISION
September 30, 2003

No. 1-02-1606

JUSTICE BURKE delivered the opinion of the court:

Respondent L.M. appeals from an order of the circuit court terminating herparental rights with respect to her minor son, D.W., pursuant to section 2-29(2)of the Juvenile Court Act (705 ILCS 405/2-29(2) (West 1998)) and section 1(D)(q)of the Illinois Adoption Act, as amended in 1998 (750 ILCS 50/1(D)(q) (West1998)). On appeal, respondent argues that: (1) section 1(D)(q) of the IllinoisAdoption Act violates the due process and equal protection clauses of the UnitedStates and Illinois Constitutions; and (2) the trial court abused its discretionin finding that it was in D.W.'s best interests to terminate respondent'sparental rights. For the reasons set forth below, we affirm.

In 1990, respondent was convicted of the attempted murder of her infantson, D.E. The indictment alleged that respondent poisoned D.E. with Pine Sol byfeeding it to him in his bottle. 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 toprison.

Following her early release from prison, on March 7, 1994, respondent gavebirth to D.W. In 1995, the State filed a petition for adjudication of wardshipof D.W. based on respondent's prior conviction and her history of reports withthe Department of Children and Family Services (DCFS) from 1987 to 1990,including reports of neglect, inadequate supervision, and the alleged poisoningof another one of her children. Following a temporary custody hearing, the Stateremoved D.W. from respondent's home, pending an adjudicatory hearing. Theadjudicatory hearing began in October 1995, but was continued until February1996. 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. fromrespondent's custody. On appeal, this court reversed the juvenile court'sdecision after finding that the juvenile court violated the time limitation foran adjudicatory hearing provided in section 2-14(b) of the Juvenile Court Act(705 ILCS 405/2-14(b) (West 1994)). In the Interest of D.W., No. 1-96-1996(1998) (unpublished order under Supreme Court Rule 23).

The 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 andfaced substantial risk of physical injury under section 2-3(2)(ii) of theJuvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 1996)). The petition includedrespondent's prior conviction and her previous contacts with DCFS. On August 28,the juvenile court found that D.W. was abused or neglected under section 2-3(2)(ii) based on respondent's: (1) criminal conviction for the attempted murderof 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. wasplaced with his maternal grandmother.

On September 16, 1999, the State filed a supplemental petition forappointment of a guardian with the right to consent to D.W.'s adoption. TheState alleged in the petition, inter alia, that respondent: (1) failed tomaintain a reasonable degree of interest, concern or responsibility as to D.W.;(2) failed to make reasonable efforts to correct the conditions which were thebasis for D.W.'s removal and failed to make reasonable progress toward hisreturn; 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 motherto adopt D.W. However, in May 2000, D.W. was removed from respondent's mother'scustody because DCFS discovered that respondent's mother allowed unsupervisedcontact between D.W. and respondent. D.W. was thereafter placed in the custodyof a foster mother.

Subsequently, respondent successfully sought to vacate her specific consentto adoption. As a result, on July 25, 2000, the State's September 16, 1999,petition for appointment of a guardian with the right to consent to D.W.'sadoption was reinstated. At first, the State sought to terminate respondent'sparental rights based upon the three grounds outlined in its initial petition. However, prior to the fitness hearing, the State withdrew two of the threegrounds and proceeded only under section 1(D)(q) of the Illinois Adoption Act(750 ILCS 50/1(D)(q) (West 1998)) based on respondent's criminal conviction forthe attempted murder of a child. Following both a fitness and a best interestshearing, detailed below, the juvenile court found respondent unfit pursuant tosection 1(D)(q) and that it was in D.W.'s best interests to terminaterespondent's parental rights. Accordingly, the trial court entered an order onMay 17, 2002, terminating respondent's parental rights.

Fitness Hearing

The record reveals the following regarding the fitness hearing held by thejuvenile court on May 17, 2002. As stated above, the State attempted to provethat respondent was an unfit parent only under section 1(D)(q) of the IllinoisAdoption Act, as amended (750 ILCS 50/1(D)(q) (West 1998). Under that section,a parent is presumed unfit if the parent "has been criminally convicted ofaggravated battery, heinous battery, or attempted murder of any child." 750 ILCS50/1(D)(q).

The State first called respondent to testify as an adverse witness. Respondent testified that in 1990, she was convicted of attempting to kill herson, D.E. The State then had a certified copy of respondent's 1990 convictionadmitted into evidence, which stated that respondent was guilty of attemptedfirst degree murder and respondent's 1990 indictment which alleged thatrespondent was guilty of "intentionally and knowingly" attempting to kill D.E."by poisoning him by feeding him Pine Sol, in violation of chapter 38, 8-4/38-9-1of Illinois Revised Statutes, 1985 as amended." Additionally, the State had adisposition order previously entered by Judge Kawamoto, which named respondentas the mother of D.E., admitted into evidence. The State presented no otherevidence at the fitness hearing.

Respondent's counsel then called respondent as a witness and attempted tointroduce evidence of respondent's rehabilitation efforts since her conviction. The State objected on relevancy grounds, maintaining that under section 1(D)(q),there is no defense of rehabilitation. The State argued that under section1(D)(q), if there is competent evidence of a respondent's prior conviction forthe attempted murder of a child, there is an irrebuttable presumption ofunfitness. The trial court initially agreed with the State and sustained theState's objection.

Respondent then argued to the court that its application of section1(D)(q), i.e., its refusal to allow rehabilitation evidence at the fitnesshearing, violated the due process and equal protection clauses of the UnitedStates and Illinois Constitutions. The State and the public guardian respondedthat the trial court's 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 thatbarring rehabilitation evidence from a fitness hearing pursuant to section1(D)(q) does not violate a parent's equal protection or due process rights.⁽¹⁾

The trial court then stated that respondent's case was conceivablyfactually distinct from In re J.B. and allowed the rehabilitation evidence at thefitness hearing. Specifically, the trial court stated:

"I'm going to hear the testimony, regard[ing]rehabilitation. I'm going to hear Miss [L.M.'s]testimony. It is just a matter of am I going to hear itat the unfitness hearing or the best interest hearing.

If I were to wait and hear it only at the bestinterest hearing, it is possible that the AppellateCourt might see this case differently than they saw JBand say that is an equal protection problem. Therefore,reverse the finding. If the child were adopted, theywould have to undo the adoption. This could all take acouple years, unless it would be an expedited appeal.

On the other hand, I could overrule the objectionby the State and Guardian, allow natural Mother topresent her evidence of rehabilitation at the unfitnesshearing and then make a determination as to whethershe's unfit under the statute.

The Court believes that, in fact, this would notoverly [sic] prejudicial to the State or Guardian,because you must have anticipated she's going to bepresenting evidence of her rehabilitation at either theunfitness or the best interest hearing in any event.

The Court, assuming the statute is constitutional,noting depravity is not alleged, has not been alleged inthis case, that the only allegation of unfitness thathas been acted upon or prosecuted or is being prosecutedby the State in [paragraph] Q [of section 1(D)] is goingto, despite the fact that the Appellate Court has inFebruary upheld the constitutionality of Paragraph Q,going to allow the natural mother to offer her evidenceof rehabilitation in light of the equal protectionargument raised by Mr. Hahn [respondent's attorney],which is, I think, a little bit different than the equalprotection argument made in JB."

Respondent then testified at the fitness hearing that following her releasefrom prison, she successfully completed her parole. She also testified that shehad individual therapy sessions with a psychiatrist for three years after herrelease from prison and that she went to parenting classes for approximately 10weeks in 1994 and received a "certificate." Respondent also stated that she wasworking at a "temp agency" and going to school part-time at "Harold Washington." Despite respondent's rehabilitation evidence, the trial court foundrespondent unfit pursuant to section 1(D)(q). Specifically, the trial courtstated:

"The Court will rule as follows: With regard tounfitness, the Court does find that the State has mettheir [sic] burden of proof in this case, which is clearand convincing evidence with regard to Paragraph Q. TheState has proved that [respondent] was criminal[ly]convicted of the attempted murder of a child. There isa certified copy of conviction admitted into evidence.

And [respondent] has herself testified andadmitted she was convicted of that crime with regard toher child, [D.E.].

Now, it's been argued now that she's presentedtestimony sufficient to rebut the presumption ofunfitness, that [respondent's] attorney argued [sic] wasraised by the State, proving the attempted murderconviction.

I allowed [respondent] to -- the opportunity totestify to her rehabilitative efforts, because of thearguments made by Counsel regarding constitutionality ofthe statute.

It appears to me, first of all, under [I]n re JBthe statute is constitutional. As applied in this case,I think the Court would have been correct not to allowthat testimony. But I'm considering the testimony.

The testimony is that [respondent] successfullycompleted her parole. While she was on parole she wasin individual counseling with a Dr. Kapor. That shealso completed parenting classes. She's now working. She would like to have done family counseling. She [didnot] do that.

She did do a psychiatric evaluation in 1995 thathad a recommendation of counseling.

Under Paragraph I, the depravity paragraph, therebuttable presumption is that Counsel has argued statesor the Legislature states in five, that presumption thata parent is depraved can be overcome only by clear andconvincing evidence.

This Court does not believe that there has beenclear and convincing evidence presented by [respondent]to overcome the presumption, if this case were broughtunder Paragraph I, depravity. Had Dr. Kapor come in andtestified that he counseled you [respondent] for threeyears and that based on your progress in counseling hebelieves that you would not be a risk to your child,that you made sufficient progress, or it wouldn'tnecessarily be Dr. Kapor that would have to testify. Perhaps somebody else who witnessed what you have doneover the years. But all I know is you attempted to killone of your children.

Subsequent to that, you successfully completedparole. The fact that you did do counseling which endedin '95 and you haven't done any counseling since then,to me, I don't find that you have overcome anypresumption of unfitness that's been made in this case. And that's assuming that there is a presumption thatwould be able to be overcome.

So, the Court is finding, so the record is clear,[that respondent is] unfit pursuant to Paragraph Q ofthe Adoption Act."

Best Interests Hearing

After finding respondent unfit, the trial court then proceeded with thehearing regarding D.W.'s best interests. The trial court first heard the publicguardian's motion to quash respondent's notice to produce D.W. to testify. Insupport of the motion, the public guardian had three exhibits admitted intoevidence. Exhibit one was a letter written by D.W.'s therapist, Dr. KimberlyMula of Mount Sinai Hospital, to the public guardian regarding D.W.'s ability totestify. In the letter, Mula stated that D.W. was first referred to her hospitalin September 2000 for "treatment of sexual and physical abuse and neglect thatoccurred while [D.W.] was in the care of his mother and maternal grandmother." Mula further stated that "[r]eports from DCFS and [D.W.'s] own statementsindicate[d] that his mother, unknown men, and his brothers were involved in thesexual abuse." According to Mula, D.W. told his foster mother that respondent"put two fingers in his rectum," that a "man put his penis in D.W.'s rectum,"that he witnessed "his mother perform oral sex on a man and watched her beingspanked by a man," and that he watched "pornographic films and television." Mulafurther stated in the letter that D.W. "attempted to engage in these behaviorswith [his foster mother]."

Mula also stated in her letter that D.W. was diagnosed with post-traumaticstress 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 hisfoster mother to "learn the difference between good touches and bad touches aswell as develop personal safety skills." Mula reported that D.W.'s foster motherindicated that he was "doing very well learning about good touches and [was]working on maintaining appropriate boundaries." Mula expressed concerns in theletter about exposing D.W. to his biological mother and his siblings becausereports from DCFS indicated that such exposure could "result in an increase inhis symptoms of Post Traumatic Stress Disorder." She noted that after a recentvisit with his siblings, D.W. had urinated in a closet. Also, after respondenthad called D.W. at his foster mother's home, D.W. was crying because respondenthad told him "he had to go home." Further, after respondent's telephone call,D.W.'s foster mother reported that D.W. began making statements that he neededa knife in order to "keep him safe."

Exhibit two was a "Therapy Progress Report," also written by Mula. In thereport, Mula stated that in August 2000, when D.W. was visiting with two of hisbrothers in their foster home, D.W. "tried to insert his penis in his brother'srectum." Also, in September 2000, D.W. reported to his foster mother thatrespondent had "inserted her fingers into his rectum and fondled his penis on adaily basis." Mula further stated in the report that D.W. had said thatrespondent "burn[ed] him with an iron" and "caused a burn mark on his neck."

Additionally, according to the report, when D.W. was first placed in hisfoster mother's care, he was masturbating and engaging in sexual behaviors witha stuffed animal. D.W. also had nightmares, walked and talked in his sleep, andwas enuretic at night. Since he was placed in his foster mother's care, however,D.W. had exhibited many improvements. His speech improved in clarity and was"more age appropriate," he "developed more normal eating behavior," and he"acquir[ed] more skills in self-care." Mula further stated in her report thatD.W.'s foster mother indicated that she was feeling increasingly confident in herability to parent D.W. through adolescence "now that his symptoms of PostTraumatic Stress Disorder [were] decreasing and becoming more manageable."

Mula recommended in her report that D.W. continue therapy and medicationmanagement services. She also recommended that D.W. remain in his fostermother's care because he "ha[d] made tremendous improvement since his placementwith [her] and he ha[d] developed a strong attachment to her." Mula furtherstated that D.W.'s removal from his foster mother's care would likely result in"serious psychological harm" and an "escalation of his Post Traumatic Stresssymptoms." Mula specifically stated in her report that D.W. "should not bereturned to any family member[s] due to their demonstrated inability to protect[him] from harm."

Exhibit three was a "Psychological Evaluation" of D.W. performed by Dr. KenFogel at the Center for Personal Development in Chicago. Dr. Fogel noted thatD.W. had "markedly poor resources for coping with life's stress," and that hebecame "easily overwhelmed by complex demands." Fogel further stated that D.W.had "difficulty handling negative emotions, especially fear and loss," and thatthese feelings "compromise[d] his capacity to integrate information from theworld." According to Fogel, D.W. appeared to be "gradually learning to trust inthe world around him, but occasionally experience[d] overpowering anxiety aboutgetting his needs met." Fogel concluded that D.W. demonstrated "significantimprovement in many areas as a result of therapeutic care, consistent parenting[from his foster mother], and medication management," but that he still had notdeveloped "effective and appropriate mechanisms to manage intense feelings."

Fogel also noted that D.W. appeared to have formed an "adequate andappropriate attachment" to his foster mother in a "relatively brief period oftime." Fogel further stated that D.W.'s emotional and behavioral difficultiescould be "exacerbated by uncertainty" regarding the status of his placement. Fogel also noted that in order for D.W. to "move on" in his development, D.W.needed to feel secure about his future placement and caregivers.

The trial court ruled that it was apparent from the exhibits and from Dr.Mula's testimony, detailed below, that D.W. "would be traumatized" if he wererequired to testify at the hearing. Accordingly, the trial court granted thepublic guardian's motion and D.W. did not testify at the best interests hearing. The State's first witness at the hearing was Jennifer Ashenfelter, anadoption specialist who was assigned to D.W.'s case when he was first placed withhis maternal grandmother. Ashenfelter testified that D.W. was removed from hisgrandmother's house because DCFS had cause to believe she was allowing D.W. tohave unsupervised contact with respondent. After D.W. was removed from hisgrandmother's home and placed with a foster mother, DCFS allowed respondent tohave 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 timefor 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 thatwere "attempted to be scheduled" after June 2000, but did not occur. AfterSeptember 2000, the visits with respondent were suspended based on "clinicalrecommendations" due to D.W.'s "sexually acting out" behavior and his disclosuresregarding "sexual abuse." Therefore, according to Ashenfelter, between May 2000and March 2002, only three visits between D.W. and respondent actually occurred. Ashenfelter further testified that the three visits between D.W. andrespondent "were appropriate." However, after the first visit, D.W. became"extremely aggressive" and was "clinging to the legs of his Mother" as she wasattempting to leave on the elevator. After respondent left, D.W. became "veryviolent" and Ashenfelter and her supervisor had to contain him in a visitingroom. D.W. then began to "destroy the room" by knocking things off the shelves,he tried biting Ashenfelter, he kicked Ashenfelter and her supervisor, and he was"tearing things up in the room." Ashenfelter further testified that after thefirst visit with respondent, when Ashenfelter was driving D.W. back to the fosterhome, he "unlocked his door and said he was going to jump out and he was goingto run."

On cross-examination, Ashenfelter testified that she interpreted D.W.'s"acting out" behavior as "his emotions being extremely high," and that he was"unable to control what he was feeling by seeing [respondent]." Ashenfelter alsostated that at the end of D.W.'s visits with respondent, "when he was throwinghimself at [respondent's] feet and screaming and throwing tantrums," he would sayhe wanted to go home with respondent. Ashenfelter further testified on cross-examination that, during respondent's May 2000 visit with D.W., she recalled thatD.W. was "happy to see his Mother and cousin," that the "children played while[the] birth mother watched," and that respondent "brought a camera and tookpictures of [D.W]." According to Ashenfelter, after respondent's June 2000 visitwith D.W., D.W. threw a tantrum and said he "didn't want to stay [at the fosterhome]," and that "he needed to go."

Dr. Mula also testified at the best interests hearing. She stated that shebegan seeing D.W. because he was exhibiting symptoms of post-traumatic stressdisorder, i.e, he was having nightmares, walking in his sleep, smearing fecesevery time he went to the bathroom, urinating in a closet, masturbating, andacting out sexual behaviors with teddy bears and his foster mother. Mula furtherstated that between November and December 2001, D.W. revealed to her that anindividual he referred to as "Nookie" would "dig in his booty."⁽²⁾ When Mula askedD.W. what the phrase "dig in his booty" meant, D.W. held up four fingers andstated, "[H]e would put fingers in my butt." Mula also stated that during afamily therapy session with D.W.'s foster mother, D.W. took a Cabbage Patch Kid,laid it down on the floor and began "grinding the doll," and stated, "[T]his iswhat Nookie and Lisa did, acting sexy."⁽³⁾ According to Mula, D.W. moved about theroom, 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.'sfoster mother told her that D.W. once said that he was "fondled" by his naturalmother and by Nookie.

Mula further testified that D.W. had an IQ of 55, which placed him in the"mild mentally retarded" range. She also stated that D.W. had a speech andlanguage deficit and that he was receiving medication for a post-traumatic stressdisorder.

Mula also testified regarding D.W.'s foster mother. According to Mula,D.W.'s foster mother worked on helping D.W. to develop "appropriate limits andboundaries" and to distinguish between "good touches [and] bad touches." D.W.'sfoster mother also supervised D.W. when he went to the bathroom, comforted himwhen he had nightmares, and was engaged in family therapy sessions with D.W. Mula further stated that D.W.'s home with his foster mother "continue[d] tostabilize" and that his foster mother "worked very hard in order to keep him ina stable home." Mula also stated that D.W. walked with his foster mother andheld her hand and that he referred to her as "Mama." When D.W. was in thesessions with Mula, if he did something he wanted his foster mother to see, hewould ask if he could "go get her." D.W. "continue[d] to interact" with hisfoster mother "in a positive way," and his foster mother "respond[ed] to him veryappropriately." Mula further stated that she had "never seen [D.W.] interactwith [respondent]," and that D.W. had never mentioned "missing her or anything." Mula concluded that it would not be in D.W.'s best interests to have anycontact with respondent because "exposure to someone who potentially was aperpetrator [was] not in anyone's best interest." On cross-examination, Mulaadmitted that there were no actual court proceedings which indicated thatrespondent ever sexually abused D.W. and that she, personally, did noinvestigations regarding D.W.'s implications of sexual abuse. However, Mulastated that based on D.W.'s "disclosures of sexual abuse within the therapysessions, and the potential risk of harm" to him, she believed it was in D.W.'sbest interests "to remain in [the foster mother's care] and that [respondent's]parental rights be terminated."

Ayanna Sims, D.W.'s caseworker, also testified at the hearing. She statedthat D.W. was receiving individual therapy to deal with "separation from familyissues" and "issues of sexual abuse." Once, after a visit with his siblings,D.W.'s foster mother reported to her that D.W. had urinated in a closet. However, Sims also stated that D.W.'s sibling visit "was appropriate" in heropinion. Sims further stated that D.W. had never expressed to her that he missedhis mother or other members of his family. She also stated that she had nevertalked to D.W. about any sexual abuse issues. According to Sims, D.W. was"bonded to [his] foster parent" and he "referr[ed] to her as Ma on occasion." Sims further stated that it was in D.W.'s best interests that he "be free foradoption." However, Sims noted that D.W.'s foster mother indicated that she wasnot willing to adopt D.W. at that point due to his "odd behaviors," such asurinating in her closet and smearing feces in the bathroom. According to Sims,D.W.'s foster mother was "just a little hesitant and apprehensive to adopt" D.W.because she was "fearful of what might happen down the line." Sims also admittedthat she had never seen D.W. and respondent interact and that her decision thatit was in D.W.'s best interests to terminate respondent's parental rights was notbased on "observation between [D.W.] and [respondent]."

Respondent was the final witness to testify at the best interests hearing. She stated that she had never sexually abused D.W., D.W. never "acted out" likeDr. Mula described, i.e., smearing feces, urinating in a closet, etc., prior tohis being placed in his foster home, and she "would like nothing more than tohave contact with [her] son."

During closing argument, respondent's attorney made the following remarks:

"If this Court believes it is in the best interestto terminate this parent's rights, this Court mustbelieve there was sexual abuse on behalf of the Mother. That is the sole reason this minor was removed, taken toa new home and visitation was stopped."

The trial court disagreed with this argument, stating:

"The argument that the Court must accept, if I'mgoing to find it is in the best interest of the Minor[D.W.] that [respondent's] parental rights beterminated, the argument that I must accept [respondent]sexually abused the Minor is one the Court does notaccept. I don't have to find that [respondent] sexuallyabused [D.W.] to find it is in his best interest [that]at this time [respondent's] parental rights beterminated.

The Court does find that it is in the bestinterest of the Minor that [respondent's] parentalrights be terminated, based on the evidence I have heardfrom the witnesses this afternoon. It is not because ofnecessarily those allegations of sexual abuse. It isbased on the best interest factors the Court isobligated to consider set forth in the statute underSection 405 1-3, 4.05.

I am concerned that, and I have considered that[,]the foster parent has not yet expressed or confirmed shewishes to adopt the Minor [D.W.]. Nevertheless, theCourt does find for this Minor to continue to makeprogress, this Minor can be free for adoption, so thisMinor can have permanency. It is in his best interestparental rights be terminated. That will be on theCourt's order."

The trial court then entered an order terminating respondent's parental rights. This appeal followed.

Respondent 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, createsan irrebuttable presumption that a parent is unfit if she has been convicted ofthe attempted murder of a child, violates the due process clauses of the UnitedStates and Illinois Constitutions. Specifically, respondent claims that section1(D)(q) violates due process because it does not permit the trial court toconsider such things as the passage of time since the conviction and the abilityof a parent to change as a result of parenting classes and individual therapy.

The State and the public guardian initially argue that respondent lacksstanding to challenge the constitutionality of section 1(D)(q) because the trialcourt granted her the very opportunity which she now claims the statuteprecludes, i.e., the opportunity to present evidence at the fitness hearingregarding her rehabilitation efforts and her willingness and ability to care forher children. Additionally, the State and the public guardian contend that evenif respondent has standing to challenge the statute, the statute does not violatedue process.

Under section 1(D)(q) of the Act (750 ILCS 50/1(D)(q)), rehabilitationevidence to rebut the presumption of unfitness is not permitted. The sectionrequires a finding of unfitness as a matter of law based only upon a priorconviction of any of the enumerated offenses therein. 750 ILCS 50/1(D)(q). Inthe instant case, in contradiction of the statute, the trial court improperlypermitted respondent to testify at the fitness hearing regarding herrehabilitation efforts since her release from prison in order to rebut thepresumption of unfitness. Respondent testified that following her release fromprison, she successfully completed her parole. She also testified that she hadindividual therapy sessions with a psychiatrist for three years after her releasefrom prison and that she had gone to parenting classes for approximately 10 weeksin 1994 and received a "certificate." Respondent also stated that she wasworking at a "temp agency" and going to school part-time at "Harold Washington." The State and the public guardian here contend that because respondent wasimproperly permitted to present this evidence during the fitness hearing, she nowlacks standing to challenge the statute's constitutionality.

In Illinois, standing requires only some injury in fact to a legallycognizable 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 "distinct and palpable, fairly traceable to the defendant's actions, andsubstantially likely to be prevented or redressed by the grant of the reliefrequested." 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 withinthe 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 inimmediate danger of sustaining, a direct injury as a result of enforcement of thechallenged statute. Messenger, 157 Ill. 2d at 171.

In the present case, had the trial court properly applied section 1(D)(q),there is no question respondent would have standing to challenge the statute'sconstitutionality. Respondent was convicted of the attempted murder of herchild, D.E., and was, therefore, within the class of persons as to whom thestatute is allegedly unconstitutional. Further, had the trial court properlyapplied the statute, respondent would have sustained a direct injury from theenforcement of the statute, i.e., the inability to present rehabilitationevidence at the fitness hearing. Contrary to the State and the public guardian'sargument, we do not believe that the trial court's misapplication of the statutedeprives respondent of standing to challenge its constitutionality. Becauserespondent was convicted of the attempted murder of a child, she is still withinthe 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 adirect injury as a result of the proper enforcement of the statute. Accordingly,we find that respondent has standing to challenge section 1(D)(q)'sconstitutionality.

In regard to the merits of the controversy, respondent contends thatsection 1(D)(q) of the Act, as amended (750 ILCS 50/1 (D)(q) (West 1998)), isunconstitutional because it violates the due process clause of both the UnitedStates and Illinois Constitutions. Respondent argues that the section is notnarrowly drawn to promote a legitimate state interest and, therefore, it cannotwithstand strict scrutiny. Specifically, respondent maintains that section1(D)(q) does not permit the circuit court to consider the passage of time andprovides no opportunity for a parent to present evidence regarding changes in hercircumstances since she was convicted of the charge of attempted murder of achild or regarding her efforts to rehabilitate herself.

The State contends that its interest in protecting minors is "sufficientlycompelling" to satisfy strict scrutiny and to uphold section 1(D)(q), as amended. The State specifically argues that where a parent has demonstrated the intent tokill one of her children, coupled with an act in furtherance of that intent, suchthat she is guilty of the attempted murder of that child, it "clearly has aninterest in protecting the remaining children in her care." The State furtherargues that sufficient safeguards exist such that there is little or no risk ofan erroneous deprivation of parental rights. Specifically, the State maintainsthat the termination hearing process "contemplates and provides [parents] theopportunity to present evidence of the full measure of [their] rehabilitation andconduct at the best interest portion of the hearing."

The public guardian contends that the amendment here does not violateeither substantive or procedural due process. With respect to substantive dueprocess, the public guardian argues that the amendment is tailored to express theState's compelling interest in protecting children from parents who have beenconvicted of the attempted murder of a child even when the parent has shown apropensity to commit such abuse, but has not yet abused the child who is thesubject of the termination proceeding. The public guardian maintains, therefore,that a parent's actions, both before and after the birth of a child, are relevantto the protection of the child under the Act. With respect to procedural dueprocess, the public guardian argues that the amendment is not unconstitutionalbecause the established procedures protect the parent as a finding of unfitnessis not an automatic termination of parental rights, and the parent may contestthe termination of rights at the "best interests" hearing.

"All statutes are presumed to be constitutional." In re R.C., 195 Ill. 2d291, 296, 745 N.E.2d 1233 (2001). The burden of rebutting this presumption andclearly establishing a constitutional violation is on the party challenging theconstitutionality of the statute. R.C., 195 Ill. 2d at 296. It is the duty ofthe court to construe acts of the legislature so as to affirm theirconstitutionality 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).

Proceedings used to terminate parental rights must meet the requisites ofthe due process clause. Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d599, 606-07, 102 S. Ct. 1388, 1394-95 (1982); In re M.H., 196 Ill. 2d 356, 356,751 N.E.2d 1134 (2001). The United States Supreme Court has identified threefactors to be considered by courts in determining what the due process clauserequires: (1) the private interest affected by the official action; (2) the riskof an erroneous deprivation of the interest through the procedures used, and theprobable value, if any, of additional or substitute procedural safeguards; and(3) the government's interest, including the function involved and the fiscal andadministrative 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 356. The Supreme Court has applied these factorsto cases involving the termination of parental rights. Lassiter v. Departmentof 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 terminateparental rights: (1) a parens patriae interest in preserving and promoting achild's welfare, and (2) a fiscal and administrative interest in reducing thecost and burden of such proceedings. Santosky, 455 U.S. at 766, 71 L. Ed. 2d at615-16, 102 S. Ct. at 1401-02.

A parent's interest in having and raising children is considered afundamental liberty interest which is protected under "heightened protection" bythe due process clause. M.H. 196 Ill. 2d at 356. Both parties agree thatbecause the issue here involves a fundamental liberty interest, when determiningwhether section 1(D)(q) of the Act, as amended, is unconstitutional as violativeof the due process clause, the court must apply a strict scrutiny analysis. Thestatute, therefore, must be narrowly tailored to promote a compelling stateinterest.

Respondent basically argues that section 1(D)(q) violates the due processclause because it is not sufficiently narrowly tailored. Specifically,respondent's brief directs our attention to the absence from section 1(D)(q) ofa specific time limit during which a conviction for the attempted murder of achild may be considered in a fitness hearing and the absence of an opportunityto rebut the presumption that a parent is unfit based on the existence of sucha conviction.

In the extremely few Illinois cases in which a summary determination ofunfitness has been upheld, almost all of those cases involved a judgment ofunfitness based on the fact that the parent had committed a crime that serves asa "per se" 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 crueltyto children on evidence of common design and participation in her boyfriend'storture and abuse of the respondent's 17-month-old daughter, resulting in herdeath. Prior to the respondent's conviction, the State had filed a petitionseeking termination of her parental rights as to her three other children. Atthat time, section 1(D)(i) of the Act provided that a criminal conviction of aparent resulting from the death of any child by physical abuse constituted aground for finding the parent unfit. Following the respondent's conviction, theState moved for summary judgment, which the trial court granted.

On appeal, the Ray respondent argued that the statute violated her equalprotection and due process rights. Ray, 88 Ill. App. 3d at 1010. The respondentalso argued that a parent who abuses and kills one child will not automaticallymistreat her other children, the causes of such abuse can be treated andeliminated, and the statute imposed an "impermissible 'rebuttable' or conclusivepresumption." Ray, 88 Ill. App. 3d at 1013-14. The Ray court rejected thisargument, stating that prior Illinois cases had found that the abuse of one childwas sufficient to support findings of parental unfitness and termination ofparental rights as to the parent's other children. Ray, 88 Ill. App. 3d at 1013. The Ray court also agreed with the State that the "irrebuttable presumption"challenged by the respondent "is nothing more than the relation between a factand its legal result," and stated that it failed to see how the statuteconstituted a presumption in any sense. Ray, 88 Ill. App. 3d at 1014.

Respondent contends that Ray is distinguishable from the case at barbecause, in Ray, the court assessed the constitutionality of the relevant statuteunder the rational relationship test and not strict scrutiny. However, the Raycourt specifically found that the relevant statute promoted an "overriding stateinterest" that withstood constitutional attack under any level of scrutiny. Ray,88 Ill. App. 3d at 1013-14.

In J.H., the respondent, convicted of the first degree murder of an11-year-old girl to whom she was not related, appealed the trial court's grantof summary judgment to the State on the State's petition to terminate therespondent's parental rights, finding that the respondent was unfit to be aparent under section 1(D)(f) of the Act. On appeal, the respondent argued thatthe trial court erred in applying section 1 (D)(f) because the victim of hercrime was not her own child. J.H., 292 Ill. App. 3d at 1103. The J.H. courtaffirmed the trial court's finding of unfitness, holding that the term "anychild" in section 1(D)(f) was clear and that the statute did not require that theabused child be related to the parent for the parent to be found unfit, i.e., aparent's conviction resulting from the death of any child by physical abuse wasa ground for finding the parent unfit. J.H., 292 Ill. App. 3d at 1104.

In In re A.M.F., 311 Ill. App. 3d 1049, 726 N.E.2d 661 (2000), therespondent mother took her daughter to the hospital where it was determined thatthe child's injuries were the result of abuse. The respondent was indicted foraggravated battery of a child, a class X felony, but she accepted the State'soffer of an open plea to aggravated battery, a class 3 felony. The Statesubsequently sought to have the respondent declared unfit pursuant to section1(D)(q) of the Act, the same section involved in the present case, prior to theamendment of the section. The trial court found the respondent unfit and grantedthe State's motion for summary judgment based on the respondent's conviction foraggravated battery. The respondent had objected, arguing that section 1(D)(q)required a conviction for the specific crime of "Aggravated Battery of a Child"as that offense is defined in the Criminal Code of 1961, as opposed to aconviction for aggravated battery "of the child who is the subject matter of theproceeding." A.M.F., 311 Ill. App. 3d at 1050-51.

On appeal, the A.M.F. respondent further argued that the phrase "aggravatedbattery of the child," as used in section 1(D)(q), was ambiguous. The A.M.F.court rejected this argument, finding that section 1(D)(q) made no reference tothe offense of "Aggravated Battery of a Child" or to the Criminal Code, and thatthe legislature intended to find a person unfit when that person is convicted ofthe "aggravated battery of the child that is the subject matter of theproceedings." (Emphasis in original.) A.M.F., 311 Ill. App. 3d at 1051-52. Thecourt did not consider the State's alternative argument pursuant to the amendmentof section 1(D)(q) at issue in this case, i.e., that the respondent was unfit tobe a parent per se based on the prior conviction, finding the issue waivedbecause the application of amended section 1(D)(q) had not been raised in thetrial court even though the finding of unfitness occurred after the effectivedate of the amendment. A.M.F., 311 Ill. App. 3d at 1053.

In the present case, with respect to substantive due process, it is clearfrom the Illinois cases cited above that "per se" factors for finding unfitnessas a matter of law under the Act, such as a conviction for the attempted murderof a child, have been applied in termination of parental rights proceedings andserved as grounds for granting summary judgment to the State. Although theinterpretation of the relevant statutes were at issue in J.H. and A.M.F. and notthe statutes' constitutionality, the cases make clear that such per se factorsare not unconstitutional merely because they require a finding of unfitness asa matter of law. Accordingly, we find no basis supporting an argument that astatute, such as section 1(D)(q), violates a party's due process rights merelybecause the statute requires a finding of unfitness as a matter of law based ona prior conviction involving the attempted murder of a child.

The more difficult issue is whether amended section 1(D)(q) of the Act issufficiently narrowly tailored to express the State's interest in protectingchildren from abuse. For example, section 1(D)(i), which we set forth below,creates a rebuttable presumption of unfitness even where the parent has aconviction for murder or multiple felony convictions. Section 1(D)(q) does notpermit rebuttal evidence from the parent prior to an unfitness finding. Further,certain convictions for murder, as referenced here in section 1(D)(i), can onlybe considered if they are entered within 10 years of the State's petition seekingtermination of parental rights. Again section 1(D)(q) contains no similar timelimit.

In the present case, as argued by the State and public guardian, the Statedoes have a compelling interest in protecting children from persons who have beenconvicted of the attempted murder of a child, both after and before any suchattempt on another child has occurred. The amendment to section 1(D)(q) promotesthat interest by allowing courts to consider a parent's conviction for theattempted murder of a child when determining whether the parent is also fit toparent his or her other current or future children. The State does not have towait for another attempted murder to occur. Additionally, despite a finding ofunfitness under section 1(D)(q), a court cannot automatically terminate aparent's parental rights. A trial court, as here, must also conduct a "bestinterests" hearing to determine whether it is in the best interests of the childto have a parent's rights permanently terminated. The procedures established bythe Act, therefore, do not automatically result in the termination of parentalrights following a conviction for one of the offenses listed in section 1(D)(q). Following a finding of unfitness, a parent still possesses the right andopportunity at the "best interests" hearing to present evidence of herrehabilitation and desire and ability to be a parent to her children. Accordingly, we find that such procedures do not violate a party's due processrights.

Respondent maintains, however, citing In re H.G., 197 Ill. 2d 317, 757N.E.2d 864 (2001), that the fitness hearing and the best interests hearing aretwo separate proceedings and that it is therefore inappropriate to introduceevidence that serves as "rebuttal to the question of fitness" in the bestinterests portion of the termination proceedings.

We find that H.G. is inapposite to the case at bar. In H.G., the courtreviewed the constitutionality of section 1(D)(m-1) of the Act (750 ILCS50/1(D)(m-1) (West 1998)). That section provided that a parent may be foundunfit if, "[p]ursuant to the Juvenile Court Act of 1987, a child has been infoster care for 15 months out of any 22 month period." 750 ILCS 50/1(D)(m-1). That section also allowed a parent to rebut an allegation of unfitness, duringthe fitness hearing, by proving "by a preponderance of evidence" that it wouldbe in the child's best interests to go home within six months of when thepetition for termination was filed. 750 ILCS 50/1(D)(m-1). The H.G. court foundthat section 1(D)(m-1) was unconstitutional since it was not "narrowly tailoredto the compelling goal of identifying unfit parents because it fail[ed] toaccount for the fact that, in many cases, the length of a child's stay in fostercare has nothing to do with the parent's ability or inability to safely care forthe child but, instead, is due to circumstances beyond the parent's control." H.G., 197 Ill. 2d at 330-31. The fact that the parent was allowed to rebut anunfitness allegation by showing it was in the best interests of the child toreturn home did not save the statute because, according to the court, introducingthe concept of best interests during a fitness hearing might produce an absurdresult, i.e., a court could declare a parent "unfit despite the court's findingthat the parent was able to safely care for her child." (Emphasis in original.) H.G., 197 Ill. 2d at 334-35.

The case at bar presents an entirely different scenario than the one inH.G. First, unlike the amount of time a child spends in foster care, it is clearthat a parent's conviction for the attempted murder of a child is directlyrelated to the parent's ability to safely care for his or her children and is notdue to circumstances beyond the parent's control. Moreover, allowing evidenceof a parent's fitness during a best interests hearing would not produce theabsurd result present in H.G. In fact, our supreme court has specifically heldthat evidence of a parent's recent circumstances and conduct is appropriate atthe best interests phase of the termination proceedings. See, e.g., In reDavonte L., 298 Ill. App. 3d 905, 924, 699 N.E.2d 1062 (1998), aff'd, In re D.L.,191 Ill. 2d 1, 727 N.E.2d 990 (2000).

Respondent also argues that this court must give "meaningful consideration[to] the second Mathews factor and the operation of presumptions." UnderMathews, as stated above, the second factor that courts must consider whendetermining whether a statute is unconstitutional is "the risk of an erroneousdeprivation of [an individual's] interest through the procedures used, and theprobable value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903. Respondent hereclaims, 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 Mathewsfactor because the "risk from the operation of the presumption in section 1(D)(q)is that the court will automatically find a parent unfitness [sic] upon proof ofconviction without considering the present circumstances showing that the personcan be a fit parent." We note that Stanley is distinguishable from the case atbar. In Stanley, the United States Supreme Court held an Illinois statute, whichpresumed unwed fathers to be unfit parents, unconstitutional because it foundthat the presumption was unrelated to the father's actual ability to be a fitparent. 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 1(D)(q) isdirectly related to the parent's ability to be a fit parent.

Respondent also cites numerous cases in which this court reversed decisionsof the trial courts to terminate the respondents' parental rights because therespondents were not afforded a meaningful opportunity to participate in thetermination 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 casesare not applicable to the case at bar. In each case, the respondent was deniedthe opportunity to testify or to present evidence that she wished to presentduring the termination proceedings.⁽⁴⁾ In the instant case, respondent testifiedand was permitted to introduce whatever evidence she wished to present regardingher rehabilitation efforts. Moreover, section 1(D)(q) does not depriveindividuals of the opportunity to present rehabilitation evidence duringtermination proceedings because such evidence may be introduced during the bestinterests portion of the proceedings. Accordingly, we find that respondent hasfailed to meet her burden of establishing that section 1(D)(q) of the Act isunconstitutional because it violates due process.

Respondent also contends that section 1(D)(q) of the Act violates theequal protection clause of the United States and Illinois Constitutions becauseit 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 torebut a presumption of unfitness. Respondent argues that a distinction in thepunishment given to similarly situated offenders of different, but comparablecrimes, has been found to violate equal protection rights in Skinner v. Oklahoma,316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942). Respondent claims thatparents should be allowed to present evidence of their rehabilitation and currentability to care for their children before being found unfit.

The State contends that section 1(D)(q) and section 1(D)(i) of the Actproperly make distinctions based on inherent differences in the criminal behaviorof individual parents and in the crimes committed by them in order to promote acompelling government interest in protecting children from persons who have beenconvicted of the attempted murder of a child. The State argues that the offenseslisted in section 1(D)(q), in which there is no provision allowing the parent theopportunity to rebut a presumption of unfitness, i.e., aggravated battery of achild, heinous battery of a child, or the attempted murder of a child, allinherently focus on the parent's intentional and knowing abuse of a child. TheState contrasts this with the offenses listed in section 1(D)(i), where rebuttalevidence is allowed, which do not necessarily focus on a parent's intention tohurt a child. For example, the State notes that a conviction may be based on thefirst or second degree murder of a child's parent where the conviction did nothave an actual relationship to the abuse of the child. The State claims thatsuch a distinction is consistent with the purpose of the Act in protectingchildren from abusers, as opposed to creating punitive measures for criminals. The State concludes, therefore, that respondent is not similarly situated topersons whose felony convictions did not involve the actual abuse of children.

The public guardian adds that section 1(D)(q) does not violate equalprotection because, under both section 1(D)(q) and section 1(D)(i), the potentialconsequences for a parent who is convicted of the attempted murder of a child arethe same, i.e., termination of his or her parental rights.

The protection provided by the equal protection clauses of the UnitedStates and Illinois Constitutions is identical. R.C., 195 Ill. 2d at 309; Inre A.A., 181 Ill. 2d 32, 36-37, 690 N.E.2d 980 (1998). The government isrequired to treat similarly situated individuals in a similar manner. R.C., 195Ill. 2d at 309. The government, therefore, may not treat differently persons whohave been placed by statute into different classes on the basis of criteriawholly unrelated to the purpose of legislation. R.C., 195 Ill. 2d at 309. "However, the equal protection clause does not forbid the legislature fromdrawing proper distinctions in legislation among different categories of people." R.C., 195 Ill. 2d at 309. Courts apply strict scrutiny to classificationsaffecting fundamental rights. A.A., 181 Ill. 2d at 37. "To survive strictscrutiny in the equal protection context, as in due process analysis, the meansemployed by the legislature must be necessary to advance a compelling stateinterest, and the statute must be narrowly tailored to the attainment of thelegislative goal." R.C., 195 Ill. 2d at 309. To have standing to raise an equalprotection claim, the party raising the claim must be a member of the classagainst whom the statute allegedly discriminates. Bruso v. Alexian BrothersHospital, 178 Ill. 2d 445, 460, 687 N.E.2d 1014 (1997).

Section 1(D)(i) of the Act, as amended, states:

"(i) Depravity. Conviction of any one of thefollowing crimes shall create a presumption that aparent is depraved which can be overcome only by clearand convincing evidence: (1) first degree murder inviolation of paragraph 1 or 2 of subsection (a) ofSection 9-1 of the Criminal Code of 1961 or convictionof second degree murder in violation of subsection (a)of Section 9-2 of the Criminal Code of 1961 of a parentof the child to be adopted; (2) first degree murder orsecond degree murder of any child in violation of theCriminal Code of 1961; (3) attempt or conspiracy tocommit first degree murder or second degree murder ofany child in violation of the Criminal Code of 1961; (4)solicitation to commit murder of any child, solicitationto commit murder of any child for hire, or solicitationto commit second degree murder of any child in violationof the Criminal Code of 1961; or (5) aggravated criminalsexual assault in violation of Section 12-14(b)(1) ofthe Criminal Code of 1961.

There is a rebuttable presumption that a parent isdepraved if the parent has been criminally convicted ofat least 3 felonies under the laws of this State or anyother state, or under federal law, or the criminal lawsof any United States territory; and at least one ofthese convictions took place within 5 years of thefiling of the petition or motion seeking termination ofparental rights.

There is a rebuttable presumption that a parent isdepraved if that parent has been criminally convicted ofeither first or second degree murder of any person asdefined in the Criminal Code of 1961 within 10 years ofthe filing date of the petition or motion to terminateparental rights." 750 ILCS 50/1(D)(i)(West 1998).

Respondent relies primarily on Skinner in support of her equal protectionargument. In Skinner, the Supreme Court reviewed the constitutionality ofOklahoma's Habitual Criminal Sterilization Act (Oklahoma Act), which provided forthe sterilization of "habitual criminals." Those eligible for the punishmentpursuant to the Oklahoma Act were criminals who were convicted of at least threefelonies amounting to crimes of "moral turpitude." 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 beenconvicted of stealing chickens and two subsequent robberies using firearms. Thetrial and reviewing courts of Oklahoma found that the petitioner should besterilized pursuant to the Act. The majority of the Skinner court reversed thelower courts' judgments, finding that the statute failed to meet the requirementsof the equal protection clause. Upon comparing convictions for grand larceny,punishable under the statute, and embezzlement, which was not punishable, theSkinner court found that the nature of the two crimes was "intrinsically thesame" and punishable criminally in the same manner. The Skinner court thenconcluded:

"When the law lays an unequal hand on those who havecommitted intrinsically the same quality of offense andsterilizes one and not the other, it has made as aninvidious a discrimination as if it had selected aparticular race or nationality for oppressive treatment. [Citations.] Sterilization of those who have thricecommitted grand larceny with immunity for those who areembezzlers is a clear, pointed, unmistakablediscrimination." Skinner, 316 U.S. at 541, 86 L. Ed. at1660, 62 S. Ct. at 1113.

Respondent's reliance on Skinner is misplaced. Skinner involved a statutein which direct criminal punishments were vastly different for similar crimes. Repeat larcenists might be sterilized while repeat embezzlers were completelyexempted 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 ofthe same nature and extent as it was in Skinner.

Here, the Act did not create extremely different punishments for differentclasses of people committing similar offenses. The Act created a method for theState to have a parent declared unfit for the protection of children because ofa prior conviction. The Act did not create classifications for administeringdirect punishment for convictions. Section 1(D)(q) created a per se finding ofunfitness, while section 1(D)(i) created a presumption of unfitness that may berebutted. The risk in being convicted of the crimes listed under either of thesections is the same, i.e., the person may ultimately have his or her parentalrights terminated by the court because he or she is unfit. Although, fromrespondent's viewpoint, section 1(D)(q) of the Act is stricter because itrequires a finding of unfitness without the opportunity to rebut that finding,the potential consequences are the same under either section 1(D)(i) or section1(D)(q) for a conviction of one of the listed offenses. Additionally, as statedabove, respondent and other similarly situated parents still possess theopportunity to present evidence of their rehabilitation and ability to be aparent at the required "best interests" hearing.

In summary, we find no authority to support respondent's argument thatbecause section 1(D)(i) creates a rebuttable presumption of unfitness, whilesection 1(D)(q) does not, that there is an equal protection violation. Accordingly, respondent has failed to meet her burden of establishing thatsection 1(D)(q) of the Act is unconstitutional.

Respondent further contends that the trial court erred in finding that itwas in D.W.'s best interests to terminate respondent's parental rights because the evidence offered by the State and the public guardian at the terminationhearing "did not present the trial court with a complete picture." The State andthe public guardian respond that the trial court properly considered the bestinterests factors outlined in section 1-3(4.05) of the Juvenile Court Act (705ILCS 405/1-3(4.05) (West 1998)) and correctly concluded that it was in D.W's bestinterests to terminate respondent's parental rights.

The decision to terminate parental rights rests within the sound discretionof the trial court. In re Jeffrey S., 329 Ill. App. 3d 1096, 1101, 769 N.E.2d1114 (2002). Accordingly, a trial court's best interests finding will not bedisturbed on appeal unless there was an abuse of discretion. Jeffrey S., 329Ill. App. 3d at 1101.

In the present case, the trial court was required to consider the followingfactors in deciding whether to terminate respondent's parental rights in regardto D.W.:

(1) the physical safety and welfare of D.W., including food,shelter, health, and clothing;

(2) the development of D.W.'s identity;

(3) D.W.'s familial, cultural, and religious background andties;

(4) D.W.'s sense of attachments, including:

(a) where D.W. actually feels love, attachment, and asense of being valued;

(b) D.W.'s sense of security;

(c) D.W.'s sense of familiarity;

(d) continuity of affection for D.W.;

(e) the least disruptive placement alternative forD.W.;

(5) D.W.'s wishes and long-term goals;

(6) D.W.'s community ties, including church, school, andfriends;

(7) D.W.'s need for permanence which includes his need forstability and continuity of relationships with parentfigures and with siblings and other relatives;

(8) the uniqueness of every family and child;

(9) the risks attendant to entering and being in substitutecare; and

(10) the preferences of the persons available to care for thechild. 705 ILCS 405/1-3(4.05) (West 1998).

A thorough review of the record indicates that, in fact, the trial courtconsidered the above factors. At the best interests hearing, the trial courtreviewed the following evidence: (1) Dr. Mula's May 14, 2002, letter to thepublic guardian regarding D.W.'s ability to testify at the terminationproceedings; (2) Dr. Mula's "Therapy Progress Report" on D.W.; (3) Dr. Fogel's"Psychological Evaluation" of D.W.; (4) Ashenfelter's testimony; (5) Dr. Mula'stestimony; (6) Sims' testimony; and (7) respondent's testimony. The exhibits andthe witnesses, with the exception of respondent, suggested that in order for D.W.to continue with his progress in overcoming his psychological and developmentalproblems, including his post-traumatic stress disorder, he should remain in hisfoster mother's care and that respondent's parental rights should be terminated. Although respondent claims that the State and the public guardian's evidence didnot present a "complete picture" to the trial court, respondent points to noevidence, offered by any of the parties, which the trial court should haveconsidered, but did not. In fact, in respondent's brief before this court, sheonly reiterates the same facts made known to the trial court during thetermination proceeding--facts that were considered by the trial court inrendering its ruling.

Respondent also contends that the trial court abused its discretion by"discounting the allegation[s] of sexual abuse" and by not considering "how [the]allegation[s] impacted the agency's handling of the case." 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's home due to D.W.'s unsubstantiateddisclosures of sexual abuse, the trial court was obligated to give respondent theopportunity to "correct the conditions" that caused his removal beforeterminating respondent's parental rights.

Respondent's argument fails for two reasons. First, the record revealsthat D.W. was taken out of his maternal grandmother's home not only because ofdisclosures of sexual abuse, but also because his maternal grandmother wasallowing unsupervised contact between D.W. and respondent. Second, as discussedbelow, even if D.W. were removed solely due to allegations of sexual abuse, thetrial court was not required under H.C. to give respondent the "opportunity tocorrect" the conditions that led to D.W.'s removal before terminatingrespondent's parental rights.

The H.C. court held that before a parent can be declared unfit undersection 1(D)(m) of the Illinois Adoption Act (750 ILCS 50/1(D)(m) (West 1996)),the parent must be given the opportunity to "make reasonable efforts to correctthe conditions that caused the removal of the [child]." H.C., 305 Ill. App. 3dat 877. Because the record in H.C. clearly showed that the respondent madereasonable progress toward the return of her children, this court reversed thetrial court's finding that the respondent was unfit. H.C., 305 Ill. App. 3d at877. In the present case, however, the trial court found that respondent wasunfit pursuant to section 1(D)(q), not section 1(D)(m) as in H.C. Section1(D)(q), as stated above, creates an irrebuttable presumption of unfitness if aparent has been convicted of the attempted murder of a child, as was therespondent in the instant case. Once respondent was declared unfit, the trialcourt was obligated in the best interests hearing to consider the evidence inlight of the factors enumerated in section 1-3(4.05) of the Juvenile Court Act(705 ILCS 405/1-3(4.05) (West 1998)). In re D.H., 323 Ill. App. 3d 1, 13, 751N.E.2d 54 (2001). As discussed above, the record makes clear that the trialcourt properly considered all the evidence, including respondent's testimonyregarding her rehabilitation, in light of these factors.

Respondent's final contention is that because D.W.'s foster motherindicated that she was not yet willing to permanently adopt D.W., the trial courtabused its discretion in terminating respondent's parental rights. However, itis well-settled that the absence of an adoptive home is only one factor toconsider in deciding whether to terminate parental rights. See, e.g., In reTashika F., 333 Ill. App. 3d 165, 170, 775 N.E.2d 304 (2002). Accordingly, wehold that the trial court did not abuse its discretion in finding that it was inD.W.'s best interests to terminate respondent's parental rights.

For the reasons stated, we affirm the order of the circuit courtterminating respondent's parental rights.

Affirmed.

CAHILL and McBRIDE, JJ., concur.

1. Our 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's decision in J.B.,328 Ill. App. 3d 175.

2. Mula later testified that "Nookie" was a "friend of respondent's," andthat he was "her paramour."

3. Mula also stated that D.W. often referred to respondent as "Lisa" in histherapy sessions.

4. In Vanessa C., the trial court barred a parent from presenting anyevidence 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's counselfrom 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 wasprecluded from testifying at the termination proceeding (C.J., 272 Ill. App. 3dat 463).