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FIFTH DIVISION
August 18, 2000

No. 1-99-2541

This is an appeal from the decision of the circuit court ofCook County granting the State's motion for summary judgment andfinding respondent, Rashon W., to be an unfit parent on the basisof depravity and thereby terminating his parental rights pursuantto section 1(D)(i) of the Adoption Act (the Act) (750 ILCS50/1(D)(i) (West 1998)). The finding of depravity was based onrespondent's conviction for first degree murder which took placewithin 10 years of the filing of the petition to terminate his parental rights. 750 ILCS 50/1(D)(i) (West 1998). Respondentcontends on appeal that the trial court erred in granting theState's motion for summary judgment where the court retroactivelyapplied newly amended section 1(D)(i) of the Act. For the reasonsthat follow, we affirm.

The following facts are relevant to this appeal. On December17, 1993, S.W., born March 8, 1992, was taken into custody due toenvironmental neglect on the part of her mother. The parentalrights of the mother are not at issue in this appeal. On December21, 1993, the State filed a petition to adjudicate S.W. a ward ofthe court. On May 15, 1995, S.W. was adjudicated neglected andmade a ward of the court. S.W. was placed with her current fosterparents in February 1996.

On December 10, 1997, the State filed a petition to terminaterespondent's parental rights. Respondent filed an answer to thepetition on June 22, 1998. On October 30, 1998, the State filed amotion for leave to amend the petition to terminate parental rightsto include newly amended section 1(D)(i) of the Act. The trialcourt granted the State's motion. The State then filed a motionfor summary judgment on November 30, 1998. The State argued thatthere was no genuine issue of material fact contained in thepetition. The State specifically asserted that because respondentwas convicted of first degree murder on September 15, 1992, thisconviction was within 10 years of the filing of the petition toterminate his parental rights and, as a result, creates arebuttable presumption that respondent is depraved under section1(D)(i) of the Act.

In response, respondent argued that he was 15 when theincident leading to his conviction and subsequent incarcerationoccurred. Respondent also argued that his efforts to rehabilitatehimself while incarcerated created doubt that he was depraved. Asevidence of his rehabilitation efforts, respondent submitted anunsigned and unsworn affidavit in which he averred that he hadobtained a General Equivalency Diploma while incarcerated and thathe was working toward an associate degree in science. Respondentfurther averred that his family maintained contact with S.W.

At the hearing on the State's motion for summary judgment andpetition to terminate respondent's parental rights, the solewitness, Robert Jakel, a case manager assigned to the case,testified that respondent began writing letters to S.W. in November1998 and sent the last letter in March 1999. The last contactrespondent had with S.W. prior to sending letters was in 1993 whenS.W. still resided with her mother.

Following arguments of counsel, the trial court found thatthere was no issue of material fact and that respondent is an unfitparent based on depravity. The trial court said that it consideredthe evidence presented by respondent but that it also consideredthe fact that respondent had committed the murder after theconception of the child. The court found that respondent's actionsled to his sentence of 27 years and this resulted in his inabilityto parent S.W. After a subsequent hearing, the trial court foundthat it was in S.W.'s best interest to terminate respondent'sparental rights and appointed a guardian with the right to consentto S.W.'s adoption. Respondent appeals only the finding ofunfitness.

Respondent contends that the trial court erred in applyingnewly amended section 1(D)(i) to his case. Respondent argues thatthe retroactive application of this amendment violates his dueprocess rights.

Section 1(D)(i) of the Act formerly provided that when aparent was convicted of the murder of any child or of the murder ofa parent of the child to be adopted, that conviction created apresumption that the parent was depraved which could only beovercome by clear and convincing evidence. 750 ILCS 50/1(D)(i)(West 1996).

Effective June 30, 1998, the legislature amended section1(D)(i) to include the following:

"There is a rebuttable presumption that a parent is depraved if that parent has been criminallyconvicted of either first or second degree murder of anyperson as defined in the Criminal Code of 1961 within 10years of the filing date of the petition or motion toterminate parental rights." 750 ILCS 50/1(D)(i) (West1998).

Respondent specifically argues that because the statute wasamended in June 1998, which was subsequent to the State filing apetition to terminate his parental rights, the amended section1(D)(i) is inapplicable to him and interferes with his vested rightto a relationship with his child. The State responds that theamended statutory language was properly applied to respondent anddoes not impair his vested rights.

In general, a reviewing court applies the law as it exists atthe time of the appeal unless doing so would interfere with avested right. In re K.P., 305 Ill. App. 3d 175, 178, 711 N.E.2d478 (1999). Although not capable of a precise definition, a vestedright is an interest that is protected from legislativeinterference by our due process clause (Ill. Const. 1970, art. I,