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SECOND DIVISION

February 26, 2002

No. 1--99--3075

PRESIDING JUSTICE BURKE delivered the opinion of the court:

Respondent W.B. appeals from an order of the circuit courtgranting the State summary judgment on its petition to declare thatshe is an unfit parent under section 1(D)(q) of the IllinoisAdoption Act (Act) as amended in 1998. 750 ILCS 50/1(D)(q)(West1998). On appeal, respondent contends that the 1998 amendment ofsection 1(D)(q) of the Act could not be applied retroactively toher case and the amendment is unconstitutional in violation of thedue process and equal protection clauses of the United States andIllinois Constitutions. For the reasons set forth below, weaffirm.

In 1992, respondent pled guilty to the aggravated battery ofone of her children. The indictment against respondent allegedthat she struck her son S.J. with an extension cord. Respondentwas sentenced to 70 days' imprisonment, which she had alreadyserved while incarcerated, and probation. Respondent's son, J.B.,was born on March 4, 1993. The Department of Children and FamilyServices (DCFS) subsequently took custody of him.

On September 4, 1994, an "adjudication hearing" was held withregard to J.B. during which a stipulation was read into the recordthat respondent had been experiencing psychiatric problems and hadfailed at times to "follow through" with "any and all"recommendations she received through counseling and DCFS. IvettRiley, a caseworker at the Bensonville Home Society, also testifiedat the hearing. She stated that she had been assigned torespondent's case since July 1992 and that respondent had beenhaving supervised visits with J.B., who was currently in atraditional, "nonrelative" foster home. Respondent wasparticipating in the services provided and was starting individualpsychotherapy. Riley stated that respondent had also completed aparenting class. According to Riley, respondent did not currentlyneed other services. The trial court informed respondent that shewould have one year in which to work for the possible return ofJ.B. to her custody.

On February 1, 1995, a "disposition hearing" was held onJ.B.'s case. Kevin Connolly, a DCFS case manager assigned toJ.B.'s case, testified that respondent was having regular visitswith J.B. once a week. According to Connolly, respondent had beenordered to take psychiatric medicine for her mental health problem,but she was not taking the medication. Although he was aware thatrespondent was currently pregnant, he did not know if the pregnancywas the reason respondent was not taking her medication. He alsoreported that respondent was attending group therapy and parentingclasses. Connolly stated that it was also recently recommendedthat respondent receive individual therapy.

Following Connolly's testimony, the State recommended thatrespondent be found unfit due to her mental health concerns and thefact that she had not been taking her medication. The State alsooffered evidence of respondent's 1992 conviction for aggravatedbattery of a child. The trial court found that it was in the "bestinterests" of J.B. that he be made a ward of the court and thatrespondent was "unable and unfit" based on her criminal conviction,her mental health, and her failure to take her medication for"whatever reason."

Connolly then offered additional testimony that the currentgoal for J.B. was "return home" and that there was no reason tobelieve the "minors" would be abused or neglected in the home. Respondent's counsel then asked the trial court to reconsider itsfinding of unfitness based on Connolly's and DCFS's goal ofreturning J.B. to his home. The trial court stated that it wouldreconsider its finding, but again determined that respondent wasunfit.

On March 6, 1995, respondent's son, T.B., was born and DCFStook custody of him on March 7. On August 14, 1995, an adjudication hearing was held on T.B.'s case. Kevin Connolly fromDCFS again testified, stating that the case was brought withrespect to T.B. because of a "risk of harm" to him based onrespondent's failure to comply with prior recommended services andher mental health history. He reported that respondent wascurrently required to participate in counseling and take medicationfor schizophrenia, but that respondent had told him that she hadnot been taking her medication between September 1994 and March1995. Connolly also stated that respondent had a history of abuseagainst her oldest child, S.J., on whom she had left permanentmarks with an electrical cord. She also had prior psychiatrichospitalizations. According to Connolly, despite respondent'sguilty plea to aggravated battery in 1992, she continued to insistthat she did not abuse her son. He further stated that respondentalso told him that she had been taken off of her medication duringher pregnancy, but he also was told that she was "weaned" off ofthe drugs. Connolly did not have medical records to support eitherof these statements. He further stated that T.B. was healthy anddid not have drugs in his system when he was born. He also statedthat respondent was in the hospital from May 3, 1994 to May 9,1994, with symptoms of suicidal tendencies, and she was diagnosedthere with major depression and psychosis.

Based on this testimony and supporting records, the trialcourt found that there was a "substantial risk" of abuse to T.B.

On February 26, 1996, a dispositional hearing was held onT.B.'s case. Darryl Powell, a caseworker from Reaching the MarkFamily Services, testified that respondent had been havingsupervised visits with T.B. and exhibited appropriate behavior. Jacqueline Chester, a caseworker at Bensonville Home Society,testified that respondent had been given random urine "drops" forthe last three months. Respondent's first two drops were negative,and Chester did not have the results from the third drop. According to Chester, on February 16, 1996, respondent received apsychological examination with a subsequent recommendation for herto participate in psychotherapy and receive behavior modificationtechniques for possible family therapy with her children. Respondent was seeing a psychiatrist and receiving medication fordepression. She was cooperating with services, but she did notattend individual psychotherapy. After a recent psychotherapyexamination, respondent was diagnosed with an early onset ofdysthymic disorder and personality disorder. According to herinformation, Chester believed that respondent was not takingmedication for schizophrenia at that time. Chester stated thatrespondent's symptoms were being well controlled with themedication. Chester also stated that according to a letter fromDr. Rebecca Lewis Falluf, respondent had been seeing Falluf formore than a year for individual psychotherapy. Falluf recommendedin the letter that respondent participate in family therapy, if andwhen, her children returned home. There was no recommendation inthe letter for continued individual psychotherapy.

Following the hearing, the trial court found respondent"unable and unwilling" to care for T.B., declared him a ward of thecourt and appointed a guardian.

On December 21, 1998, the State filed supplemental petitionsto terminate respondent's parental rights to both J.B. and T.B.based, in part, on her prior aggravated battery conviction andamended section 1(D)(q) of the Act. On July 15, 1999, the Statefiled a motion for summary judgment on its supplemental petitions,arguing that section 1(D)(q) of the Act, as amended in 1998, statedas a matter of law that respondent was unfit under the Act becauseof her 1992 conviction for aggravated battery of her oldest child,S.J. Respondent filed a response to the motion, arguing that the1998 amendment to the Act could not be applied retroactively to hercase because the amendment would affect her "vested right" inraising her children. According to respondent, because a vestedright would be affected, the amendment could only be appliedprospectively.

On August 8, 1999, a hearing was held on the State's motionfor summary judgment. The State based its entire argument onsection 1(D)(q), as amended, arguing that as a matter of law theAct deemed respondent unfit because of her 1992 conviction andthat, because raising one's own child was not a "vested right,"there was no improper application of the amended statute to thecase. Respondent argued that her 1992 conviction should not beconsidered because both J.B. and T.B. were born after theconviction and her vested right in raising them would be affectedthrough application of the amendment. The trial court granted theState's motion, finding that a parent's right or interest inraising a child did not constitute an absolute vested propertyright and that respondent was unfit as a matter of law. Thefathers of both J.B. and T.B. were also found unfit based uponclear and convincing evidence of their abandonment of the children.

The parties then conducted a "best interests" hearing withrespect to both J.B. and T.B. Adrea Brown, a case supervisor atLifelink, testified that she had worked as a supervisor on J.B.'scase for over two years. J.B. had been in a foster home since July1993. Respondent had not visited J.B. for one and one-half years,and Brown believed that it was in J.B.'s best interests thatrespondent's parental rights be terminated. Eva Holland-Switchett,a caseworker from Reaching the Mark Family Services, testified thatshe was working on T.B.'s case. Respondent's last visit with T.B.was on July 6, 1999. She also stated that respondent had showninconsistencies in her desire to visit T.B. Switchett alsobelieved that based on the length of time that T.B. had been withhis foster parents and his need for stability, respondent'sparental rights to T.B. should also be terminated.

Respondent, who was 36 years old, testified that she loved herchildren and still wished to care for them. She bought themChristmas and birthday gifts, but T.B.'s foster parents wouldreject the gifts. She blamed her inability to visit J.B. on hiscaseworker whom she claimed often cancelled visits. She admittedthat she might have cancelled one visit herself. Respondent alsostated that she had been participating in services for five or sixyears with the hope that she would regain custody of her children. The services had helped her to control her anger and frustration. She stated that she would like to continue her visits and that,although she believed that she was currently a fit parent, shewould continue to work to become a better parent. She also statedthat she had not been convicted of a crime since either J.B. orT.B. had been born.

Following the testimony, the trial court found that it was inthe best interests of the children to terminate respondent'sparental rights to both children as requested by the State in itssupplemental petition. This appeal followed.

Respondent first contends that the trial court erred inapplying the 1998 amendment to the Act "retroactively" to terminateher parental rights. She argues that the former version of section1(D)(q) of the Act should have been applied and that her criminalconviction for aggravated battery of a child should not have beena basis for the court's determination that she was "unfit" becausethat conviction occurred prior to the births of J.B. and T.B. Respondent claims that the 1998 amendment affected her "fundamentalliberty interest" in having and raising her own children,"chang[ing] substantive law," and that the amendment thereforeshould not have been applied retroactively. She requests that thismatter be remanded for a new termination hearing.

The State contends that the trial court's application of the1998 amendment to the Act was proper because respondent failed toshow that she had an "absolute vested property right in beating herchildren." Because respondent did not have such a vested propertyright, the State argues that the "subsequent legislative enactment[of amended section 1(D)(q)] is valid within the ambits of the expost facto laws of the United States and Illinois Constitutions." The State also notes that the supplemental petitions for"Appointment of a Guardian with Right to Consent to the Adoption"of J.B. and T.B., thereby terminating respondent's parental rights,were filed after the effective date of the 1998 amendment of theAct. Although the State admits that respondent has a fundamentalinterest in controlling the upbringing of her children, it claimsthat the application of the amendment here is not improper becausethe amendment "in reality" does not "reach back and interfere withrespondent's absolute vested rights." The State maintains thatrespondent's interest in raising her sons is not "absolute."

The public guardian has adopted the State's argument as tothis issue. The public guardian also contends, however, that theamendment to section 1(D)(q) was merely "a clarification ofexisting law." He further argues that applying the "legislativeapproach" to the issue of whether the section should be appliedretroactively, the court must ask whether the amended statuteattaches new legal consequences to events completed before itsenactment. Under this approach, the public guardian claims thatthe Act, prior to the amendment, permitted the termination ofparental rights for depravity and that aggravated battery wasindicative of such depravity. The public guardian maintains,therefore, that the amendment of section 1(D)(q) was merely aclarification of this potential basis for an unfitness finding.

The Illinois Supreme Court has held that a reviewing courtshould apply the law as it exists at the time of an appeal unlessthe change in the law would affect a vested right. First ofAmerica Trust Co. v. Armstead, 171 Ill. 2d 282, 289, 664 N.E.2d 36(1996). "Vested rights are interests that are protected fromlegislative interference by our due process clause." Armstead, 171Ill. 2d at 289. If an amendment does not "reach back" andinterfere with a vested right, there is no true retroactive impact. Armstead, 171 Ill. 2d at 289. A statute is not retroactive merelybecause it relates to antecedent events or because it draws uponantecedent facts for its operation. Armstead, 171 Ill. 2d at 289. A retroactive change in the law is one that takes away or impairsvested rights under existing laws, or creates a new obligation,imposes a new duty, or attaches a new disability in respect oftransactions or considerations that have already passed. Armstead,171 Ill. 2d at 290, citing United States Steel Credit Union v.Knight, 32 Ill. 2d 138, 142, 204 N.E.2d 4 (1965). If vested rightsare not involved because an amendment is procedural in nature orthe rights are not yet perfected, the amendment can be appliedwithout any retroactive impact. Armstead, 171 Ill. 2d at 290.

The supreme court has also recognized that the question ofwhether a particular expectation rises to the level of a vestedright is not capable of a precise definition. Armstead, 171 Ill.2d at 290. It has therefore defined a vested right as an"expectation so far perfected that it cannot be taken away bylegislation." Armstead, 171 Ill. 2d at 291. Additionally, avested right is a complete and unconditional demand or exemptionthat may be equated with a property interest. Armstead, 171 Ill.2d at 291.

The due process clause of the fourteenth amendment to theUnited States Constitution provides that no state shall "depriveany person of life, liberty, or property, without due process oflaw." U.S. Const., amend. XIV,