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No. 3--99--0423

(Consolidated with Nos. 3--99--0424 and 3--99--0425)

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

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JUSTICE LYTTON delivered the opinion of the court:

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The trial court found the respondent mother, Sherry L.S.,unfit because she had been convicted of a crime resulting from thedeath of a child by physical child abuse (750 ILCS 50/1(D)(f) (West1998)). The respondent had been convicted of aggravated battery ofa child and felony murder. The victim of these two offenses wasthe same child. The trial court then terminated the parentalrights of the respondent mother regarding her children, A.L.C.,B.S.C., and K.L.C. Her murder conviction has since been reversed(People v. Smith, No. 3--99--0405 (2002)(unpublished order underSupreme Court Rule 23)). On appeal, the respondent argues that theunfitness finding and termination orders should be reversed becauseher murder conviction was reversed and her aggravated batteryconviction did not result from the death of a child. We affirm.

FACTS

The respondent was charged with aggravated battery of a child(720 ILCS 5/12--4.3 (West 1998)) and felony murder (720 ILCS 5/9--1(a)(3) (West 1998)) based on the felony of aggravated battery ofa child. The indictment states that both offenses resulted fromthe same incident on April 30, 1998, when the defendant "struckKyle M.D. Smith about the body." The murder charge indicates thatKyle died as a result of this beating. The aggravated battery ofa child charge states that Kyle was "a child under the age of 13." The presentence investigation notes that Kyle was the defendant'sstepson.

This court reversed the respondent's murder conviction, butaffirmed her conviction for aggravated battery (People v. Smith,No. 3--99--0405 (2002) (unpublished order under Supreme Court Rule23)). In that order, we also vacated her aggravated batterysentence and remanded for resentencing.

The State's petition for leave to appeal from our reversal ofthe murder conviction was denied (People v. Smith, 201 Ill. 2d 606,786 N.E.2d 197 (2002)). On remand, the trial court resentenced therespondent for aggravated battery. The respondent is currentlyappealing that sentence to this court.

On April 7, 1999, the State filed separate petitions toterminate the respondent's parental rights to each of her threechildren: A.L.C. (case No. 99--JA--1), B.S.C. (case No. 99--JA--2), and K.L.C. (case No. 98--JA--4). In each of the threepetitions, the State alleged that the respondent was unfit undersection 1(D)(f) of the Adoption Act (Act) (750 ILCS 50/0.01 et seq.(West 1998)) because the respondent "was convicted of the offensesof First Degree Murder and Aggravated Battery of a Child."

The trial court held a hearing on the three petitions. Thecourt's three written orders terminating the respondent's parentalrights each say that "[t]he [State] present[ed] a certified copy ofthe jury verdict *** in which the mother of the minor was foundguilty of the offenses of First Degree Murder and AggravatedBattery (Of A Child) ***." The court took judicial notice of "thecommon law record of the proceedings" in the criminal case. Theorders say the court found that "the State [had] met its burden ofproving the allegations within the Petition To Terminate ParentalRights." The orders state that the court found the respondentunfit and terminated her parental rights.

The respondent appealed the three termination ordersseparately. This court consolidated the three cases on appeal.

ANALYSIS

The respondent contends that the termination of her parentalrights should be reversed because the basis of the trial court'sunfitness finding is no longer valid. She argues that because ofthe reversal of her murder conviction, she no longer standsconvicted of a crime that falls within the ambit of section 1(D)(f)of the Act. Specifically, the respondent contends that herconviction for aggravated battery of a child was not based on thechild's death.

A trial court's finding of unfitness will not be reversed onappeal unless it is against the manifest weight of the evidence. In re J.J., 201 Ill. 2d 236, 776 N.E.2d 138 (2002). Thetermination of a parent's rights will not be reversed absent anabuse of the trial court's discretion. In re V.O., 284 Ill. App.3d 686, 673 N.E.2d 439 (1996).

The cardinal rule of statutory construction is to determineand give effect to the intent of the legislature. The bestindication of the legislature's intent is the language of thestatute. Such language should be given its plain or ordinary andpopularly understood meaning. People v. Hamalainen, 341 Ill. App.3d 205, 792 N.E.2d 511 (2003).

Under section 1(D)(f), a parent can be found unfit because of"a criminal conviction *** resulting from the death of any child byphysical child abuse." 750 ILCS 50/1(D)(f) (West 1998). In thiscase, the respondent was convicted of the aggravated battery of achild. She contends that this conviction was not based on thechild's death. The statute, however, does not require death to bean element of the offense for which a respondent is convicted. Theplain language of the statute only requires the conviction to"result" from a death by physical child abuse.

The common law record of the defendant's criminal case showedthat the defendant struck her stepson about the body and that thestepson was a child. The common law record also indicated that thestepson died as a result of the defendant's child abuse. Under theordinary and popularly understood meaning of the language ofsection 1(D)(f), the respondent's conviction for aggravated batteryof a child resulted from the death of the child by physical childabuse. We hold, therefore, that it was not against the manifestweight of the evidence for the trial court to find the respondentunfit under section 1(D)(f) of the Act. The trial court did notabuse its discretion by terminating her parental rights.

For the foregoing reasons, we affirm the judgment of the StarkCounty circuit court.

Affirmed.

HOLDRIDGE, PJ., and SLATER, J., concurring.