Find Legal Information

Docket Nos. 97292, 98896 cons.-Agenda 1-January 2005.
In re D.W., a Minor (The People of the State of Illinois, Appellee, v.
Lisa M., Appellant).-In re Amanda D., a Minor (The People of the
State of Illinois, Appellant, v. Lisa Z., Appellee).

Opinion filed March 24, 2005.

JUSTICE KARMEIER delivered the opinion of the court:

At issue in these consolidated appeals is the constitutionality ofsection 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West2000)). Under that section, a parent is irrefutably presumed unfit if theparent "has been criminally convicted of aggravated battery, heinousbattery, or attempted murder of any child" (750 ILCS 50/1(D)(q)(West 2000)) whether or not the parent is capable of adequatelycaring for his or her child. In each case before us, the State sought afinding that the respondent mother was an unfit parent, proceedingsolely under section 1(D)(q) of the Adoption Act; and the circuit courtfound the respondent unfit, based solely upon her conviction of anoffense listed in that provision. In each case, parental rights weresubsequently terminated after a best-interests hearing. In separateappeals, respondents challenged the constitutionality of section1(D)(q). The First District of the appellate court, upheld theconstitutionality of the statute in L.M.'s appeal (In re D.W., 344 Ill.App. 3d 30); in Lisa Z.'s case, the Second District of the appellatecourt held the statute unconstitutional on due process grounds (In reAmanda D., 349 Ill. App. 3d 941). We granted leave to appeal (177Ill. 2d R. 315) and consolidated the two cases, docketing the formeras cause No. 97292 and the latter as cause No. 98896. Because wefind that section 1(D)(q) violates the equal protection rights of thoseto whom it is applied, we affirm the judgment of the appellate courtin cause No. 98896 and reverse the judgments of the appellate andcircuit courts in cause No. 97292, remanding the cause to the circuitcourt for proceedings consistent with this opinion.

The controversy in this case involves what are really twosubsections of section 1(D) of the Adoption Act which providealternative grounds (among many) for finding a parent unfit. 750 ILCS50/1(D)(i), (D)(q) (West 2002). These subsections are set forth belowin context:

"D. 'Unfit person' means any person whom the court shallfind to be unfit to have a child, without regard to thelikelihood that the child will be placed for adoption. Thegrounds of unfitness are any one or more of the following,except that a person shall not be considered an unfit personfor the sole reason that the person has relinquished a child inaccordance with the Abandoned Newborn Infant ProtectionAct:

* * *

(i) Depravity. Conviction of any one of the followingcrimes shall create a presumption that a parent is depravedwhich can be overcome only by clear and convincingevidence: (1) first degree murder in violation of paragraph 1or 2 of subsection (a) of Section 9-1 of the Criminal Code of1961 or conviction of second degree murder in violation ofsubsection (a) of Section 9-2 of the Criminal Code of 1961of a parent of the child to be adopted; (2) first degree murderor second degree murder of any child in violation of theCriminal Code of 1961; (3) attempt or conspiracy to commitfirst degree murder or second degree murder of any child inviolation of the Criminal Code of 1961; (4) solicitation tocommit murder of any child, solicitation to commit murder ofany child for hire, or solicitation to commit second degreemurder of any child in violation of the Criminal Code of1961; or (5) aggravated criminal sexual assault in violation ofSection 12-14(b)(1) of the Criminal Code of 1961.

There is a rebuttable presumption that a parent is depravedif the parent has been criminally convicted of at least 3felonies under the laws of this State or any other state, orunder federal law, or the criminal laws of any United Statesterritory; and at least one of these convictions took placewithin 5 years of the filing of the petition or motion seekingtermination of parental rights.

There is a rebuttable presumption that a parent is depravedif that parent has been criminally convicted of either first orsecond degree murder of any person as defined in theCriminal Code of 1961 within 10 years of the filing date ofthe petition or motion to terminate parental rights.

* * *

(q) The parent has been criminally convicted of aggravatedbattery, heinous battery, or attempted murder of any child."750 ILCS 50/1(D)(i), (D)(q) (West 2002).

The constitutional issues in this case concern the omission of anyopportunity for rebuttal in section 1(D)(q), an opportunity affordedthose whom the State alleges are unfit under section 1(D)(i).

The details of the proceedings below have been set forth withspecificity in the appellate court's opinions. We reiterate only thosefacts necessary to provide a framework for our disposition. Becauseof the standing issue raised in cause No. 97292, our recitation of factsin that case is necessarily more comprehensive.

BACKGROUND

Cause No. 97292

In 1990, respondent, Lisa M., was convicted of the attemptedmurder of her infant son, D.E. 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 custodywhen respondent went to prison.

After her release from prison, respondent gave birth to D.W. onMarch 7, 1994. Court records indicate that the State filed a petitionfor adjudication of wardship of D.W. on April 3, 1995, based onrespondent's prior conviction and her history of reports with theDepartment of Children and Family Services (DCFS) from 1987 to1990. Following a temporary custody hearing, the State removedD.W. from respondent's home, pending an adjudicatory hearing. Atthe conclusion of the adjudicatory hearing, on February 16, 1996, thecircuit court of Cook County found that D.W. was at substantial riskof physical injury and ordered D.W. permanently removed fromrespondent's custody. However, the judgment of the circuit court wasreversed on appeal due to the circuit court's failure to conclude theadjudicatory hearing within the time constraints set forth in section2-14(b) of the Juvenile Court Act of 1987 (705 ILCS 405/2-14(b)(West 1994)). In re D.W., No. 1-96-1996 (unpublished order underSupreme Court Rule 23).

Thereafter, the State filed another petition for adjudication ofwardship of D.W. on April 3, 1998, alleging, under section 2-3(2)(ii)of the Juvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 1996)),that D.W. was abused and faced substantial risk of physical injury.The petition referenced respondent's prior conviction and her previouscontacts with DCFS. On August 28, 1998, the circuit court found thatD.W. was abused or neglected under section 2-3(2)(ii) based onrespondent's: (1) criminal conviction for the attempted murder of herchild, D.E.; (2) five prior DCFS reports of abuse and neglect; and (3)failure to undergo recommended mental health treatment.

On September 16, 1999, the State filed a supplemental petitionfor appointment of a guardian with the right to consent to D.W.'sadoption. The State alleged in the petition, inter alia, that respondent:(1) failed to maintain a reasonable degree of interest, concern orresponsibility as to D.W. (750 ILCS 50/1(D)(b) (West 1998)); (2)failed to make reasonable efforts to correct the conditions which werethe basis for D.W.'s removal and failed to make reasonable progresstoward his return (750 ILCS 50/1(D)(m) (West 1998)); and (3) hadbeen criminally convicted of the attempted murder of a child (750ILCS 50/1(D)(q) (West 1998)).

After an abortive attempt to arrange a related adoption, thematter proceeded to a fitness hearing on May 17, 2002. Prior tocommencement of the hearing, the State requested leave "to withdrawall grounds except for Ground Q," electing to proceed only undersection 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West1998)). The court acknowledged that the State would thus "withdraw[from consideration as grounds for a finding of unfitness, statutorybases stated in subsections] B [(750 ILCS 50/1(D)(b) (West 1998))]and M [(750 ILCS 50/1(D)(m) (West 1998))]," and proceed onlyunder section 1(D)(q). The court so advised respondent's counsel.Based upon that representation, respondent's counsel withdrew anotice to compel the minor's appearance at the fitness portion oftermination proceedings. Prior to hearing testimony, the circuit courtspecifically stated: "The Court grants the State leave to withdrawother grounds that they have alleged in the petition and we'll goforward now with the State putting forth their evidence as to GroundQ."

The State first called respondent to testify as an adverse witness.Respondent testified that, in 1990, she had been convicted ofattempting to kill her son, D.E. The State introduced both a certifiedcopy of respondent's 1990 conviction, which stated that respondentwas guilty of attempted first degree murder, and the 1990 indictment,in that case, which alleged that respondent was guilty of "intentionallyand knowingly" attempting to kill D.E. Finally, the State had a priordisposition order admitted into evidence, which named respondent asthe mother of D.E. The State presented no other evidence at thefitness hearing.

Respondent's counsel then called respondent as a witness andattempted to introduce evidence of respondent's rehabilitation effortssubsequent to her conviction. The State interposed repeatedobjections on relevancy grounds, maintaining that, under section1(D)(q), there is no defense of rehabilitation. The State argued that,under section 1(D)(q), if there is competent evidence of arespondent's prior conviction for the attempted murder of a child,respondent is shown conclusively unfit. The trial court agreed with theState, and allowed respondent's counsel to proceed with a brieftestimonial offer of proof.

Thereafter, respondent's counsel argued that the circuit court'sapplication of section 1(D)(q) violated the due process and equalprotection clauses of the United States and Illinois Constitutions.Counsel noted that a conviction for attempted murder of a child is aground for a finding of unfitness under either section 1(D)(q) orsection 1(D)(i) of the Adoption Act. Proof of the prior conviction isconclusive evidence of parental unfitness under the former provision,but creates only a rebuttable presumption of unfitness under the latter.Thus, counsel observed, "By putting a specific letter on a case, [theState] can change the parents' rights. *** That violates [respondent'srights to] due process and equal protection."

The State and the public guardian argued that the court'sapplication of section 1(D)(q) was constitutional. The State cited insupport of its position an appellate court decision which has sincebeen vacated by this court. In re J.B., 328 Ill. App. 3d 175 (2002),judgment vacated & appeal dismissed, 204 Ill. 2d 382 (2003). Theappellate court in J.B. held section 1(D)(q) constitutional, affirmingthe circuit court's application of the statute's conclusive presumptionof unfitness to a respondent who had been convicted of theaggravated battery of her child. In re J.B., 328 Ill. App. 3d at 195.The public guardian argued that the statute does not preclude a parentfrom presenting evidence as to parental rehabilitation, noting the J.B.court's observation that the parent who is conclusively deemed unfitunder section 1(D)(q) can still present evidence of his or her"rehabilitation and desire and ability to be a parent" at the "bestinterests" hearing. In re J.B., 328 Ill. App. 3d at 191.

After hearing the parties' arguments, the circuit court found thatrespondent's case was "factually different" from J.B. in that the instantcase involves a conviction (attempted murder of a child) which isaddressed in two statutory sections: one containing a rebuttablepresumption (section 1(D)(i)); the other omitting any opportunity forrebuttal (section 1(D)(q)). Thus, the court decided to allowrehabilitation evidence at respondent's fitness hearing, stating:

"I'm going to hear the testimony, regardless [sic] ofrehabilitation. I'm going to hear [respondent's] testimony. Itis just a matter of am I going to hear it at the unfitnesshearing or the best interest hearing.

If I were to wait and hear it only at the best interesthearing, it is possible that the Appellate Court might see thiscase differently than they saw J.B. and say that is an equalprotection problem. Therefore, reverse the finding. ***

* * *

The Court, assuming the statute is constitutional, notingdepravity is not alleged, has not been alleged in this case, thatthe only allegation of unfitness that has been acted upon orprosecuted or is being prosecuted by the State in Q is goingto, despite the fact that the Appellate Court has in Februaryupheld the constitutionality of Paragraph Q, going to allowthe natural mother to offer her evidence of rehabilitation***."

Thus, the circuit court allowed the testimony over the relevancyobjections of the State and the public guardian.

Respondent's evidence of rehabilitation consisted only of herabbreviated testimony. Respondent testified that, upon her releasefrom prison, she "went into therapy on [her] own to seek help." Forapproximately three years-from 1992 to 1995-she attended therapysessions at West Side Family Health Center with Dr. DeePak Kapoor.Her therapy was "successfully terminated." Respondent also statedthat she successfully completed her parole in 1995. Moreover,respondent testified that she attended parenting classes in 1994 at Mt.Sinai Hospital and received a certificate at the end of the 10-weekprogram. Respondent stated she got a court-ordered psychologicalevaluation and a drug and alcohol assessment. She was not requiredto pursue any other services as a result of the drug and alcoholassessment. She claimed she wanted to participate in family counselingwith her children, but she was not afforded the opportunity.Respondent stated she was working at a "temp agency" and going toschool part-time.

At the conclusion of respondent's testimony, the State arguedthat, in order to establish unfitness under section 1(D)(q), the Statewas only required to prove respondent's conviction for attemptedmurder of a child, which was done by means of a certified copy ofconviction and the respondent's own testimony. In response,respondent's counsel noted respondent's testimony and concluded: "Idon't believe, Judge, they have come back with sufficient evidence toshow why she should be declared unfit, just because of thatconviction."

The circuit court then stated:

"The Court will rule as follows: With regard to unfitness,the Court does find that the State has met their burden ofproof in this case, which is clear and convincing evidencewith regard to Paragraph Q. The State has proved that[respondent] was criminal [sic] convicted of the attemptedmurder of a child. There is a certified copy of convictionadmitted into evidence.

And [respondent] has herself testified and admitted shewas convicted of that crime with regard to her child ***."

* * *

I allowed [respondent] *** the opportunity to testify toher rehabilitative efforts, because of the arguments made bycounsel regarding the constitutionality of the statute.

It appears to me, first of all, under In re J.B. the statute isconstitutional. As applied in this case, I think the Courtwould have been correct not to allow the testimony. But I'mconsidering it."

The court briefly summarized respondent's testimony and noted, evenunder section 1(D)(i) of the statute, the presumption of unfitness canbe overcome only by clear and convincing evidence. The courtcontinued:

"This Court does not believe that there has been clear andconvincing evidence presented by [respondent] to overcomethe presumption, if this case were brought under ParagraphI, depravity. Had Dr. [Kapoor] come in and testified that hecounseled you for three years and that based on yourprogress in counseling he believes that you would not be arisk to your child, that you made sufficient progress, or itwouldn't necessarily be Dr. [Kapoor] that would have totestify. Perhaps somebody else who witnessed what you havedone over the years. But all I know is you attempted to killone of your children.

*** I don't find that you have overcome any presumptionof unfitness that's been made in this case. And that'sassuming that there is a presumption that would be able to beovercome.

So, the Court is finding, so the record is clear,[respondent] unfit pursuant to Paragraph Q of the AdoptionAct." (Emphases added.)

The evidence adduced by the State at the best-interests hearingis not pertinent to the issue before us. That evidence is recounted atlength in the appellate court's opinion. In re D.W., 344 Ill. App. 3d30. For present purposes, suffice it to say that the State presentedsubstantial evidence suggesting that D.W. may have been sexuallyabused, that he suffered from psychological problems, and thatsocially unacceptable behavior he exhibited gradually improved afterhe was in foster care for a time. Respondent took the stand andtestified that she had never sexually abused D.W., that D.W. had never"acted out" prior to being placed in a foster home, and that she"would like nothing more than to have contact with [her] son."

Based on the evidence presented at the fitness and best-interestshearings, the circuit court found respondent unfit pursuant to section1(D)(q) and determined it was in D.W.'s best interests to terminaterespondent's parental rights. Accordingly, the trial court entered anorder on May 17, 2002, terminating respondent's parental rights.

On appeal, respondent argued that section 1(D)(q) of theAdoption Act (750 ILCS 50/1(D)(q) (West 1998)) creates an"irrebuttable presumption" that a parent is unfit if he or she has beenconvicted of the attempted murder of a child, and thus the statuteviolates the due process clauses of the United States and IllinoisConstitutions. Specifically, respondent contended that section 1(D)(q)violates due process because it does not permit the trial court toconsider such things as the passage of time since the conviction andthe ability of a parent to change as a result of parenting classes andindividual therapy. Respondent also argued that section 1(D)(q) of theAdoption Act violates the equal protection clause of the United Statesand Illinois Constitutions because it denies a parent who has beenconvicted of the attempted murder of a child the opportunity to rebuta presumption of unfitness, while section 1(D)(i) permits parents whohave been convicted of offenses such as first degree murder,aggravated criminal sexual assault, and multiple felonies theopportunity to rebut a presumption of unfitness.

Initially, the appellate court rejected the argument of the Stateand the public guardian that respondent lacked standing to challengethe constitutionality of section 1(D)(q) "because the trial courtgranted her the very opportunity which she now claims the statuteprecludes, i.e., the opportunity to present evidence at the fitnesshearing regarding her rehabilitation efforts and her willingness andability to care for her children." In re D.W., 344 Ill. App. 3d at 44.The appellate court found respondent clearly would have had standing"had the trial court properly applied section 1(D)(q)," as she wouldhave been precluded from presenting evidence of parentalrehabilitation at the fitness hearing. In re D.W., 344 Ill. App. 3d at 44-45. The appellate court reasoned, "Because respondent was convictedof the attempted murder of a child, she is still within the class ofpersons as to whom the statute is allegedly unconstitutional and, aslong as respondent has minor children, she is also in danger ofsustaining a direct injury as a result of the proper enforcement of thestatute." In re D.W., 344 Ill. App. 3d at 45. Thus, in the appellatecourt's view, the circuit court's "misapplication" of the statute did notdeprive respondent of standing.

On the merits, the appellate court held section 1(D)(q) violatedneither principles of due process nor equal protection. After discussingthree appellate court decisions that addressed the use of " 'per se'factors for finding unfitness as a matter of law under the Act" (In reD.W., 344 Ill. App. 3d at 47-49), the court found that section 1(D)(q)does not violate a party's due process rights "merely because thestatute requires a finding of unfitness as a matter of law based on aprior conviction." In re D.W., 344 Ill. App. 3d at 49. The court thenwent on to confront "[t]he more difficult issue [of] whether amendedsection 1(D)(q) of the Act is sufficiently narrowly tailored to expressthe State's interest in protecting children from abuse," an issue mademore problematic-as the appellate court recognized-by the existenceof another subsection of the same statute that creates a rebuttablepresumption of unfitness for those convicted of the same orcomparable offenses. In re D.W., 344 Ill. App. 3d at 49.

The appellate court ultimately rejected respondent's due processand equal protection challenges on two bases urged by the State andthe public guardian. First, with respect to due process and equalprotection, the court noted that those to whom section 1(D)(q) isapplied are not totally deprived of an opportunity to presentrehabilitation evidence during termination proceedings, since they maydo so during the best-interests portion of the proceedings. In re D.W.,344 Ill. App. 3d at 52, 55. Second, with respect to equal protection,the court observed that the potential consequences for a personconvicted of one of the listed offenses are the same under eithersection 1(D)(i) or section 1(D)(q), i.e., termination of parental rightsbecause he or she is unfit. In re D.W., 344 Ill. App. 3d at 55."Although, from respondent's viewpoint, section 1(D)(q) of the Actis stricter because it requires a finding of unfitness without theopportunity to rebut that finding, the potential consequences are thesame under either section *** ." In re D.W., 344 Ill. App. 3d at 55.Employing this reasoning, the appellate court upheld theconstitutionality of the statute and affirmed the judgment of the circuitcourt.

Cause No. 98896

On March 17, 1997, respondent Lisa Z. pled guilty to a chargeof aggravated battery (720 ILCS 5/12-4(a) (West 1996)). The victimof the battery was one of respondent's daughters, who is not involvedin the instant case.

On December 3, 2000, Amanda D. was born. The State filed apetition for adjudication of wardship on September 3, 2002, alleging,inter alia, that Amanda D. was abused and neglected becauserespondent left the child with respondent's paramour for two dayswhile she went to Chicago to use drugs; she used crack cocaine infront of Amanda D.; she suffered from depression and was not takingher prescribed medications on a regular basis; and she had yet tocomplete a recommended substance abuse program. On December 26,2002, the circuit court of McHenry County found that the State hadproven the allegations set forth in the petition.

On January 30, 2003, the State filed a petition for termination ofparental rights. The sole allegation regarding respondent's unfitnessto be a parent was that respondent previously had been convicted of aggravated battery of a child. On the same date, the State moved forsummary judgment and attached to the motion a certified copy ofrespondent's conviction. The trial court ultimately granted the motionon February 25, 2003. Thereafter, a best-interests hearing was held,and, on November 25, 2003, the trial court terminated respondent'sparental rights.

Respondent appealed, arguing, inter alia, that section 1(D)(q) ofthe Adoption Act violates due process and equal protectionguarantees of both the state and federal constitutions. The appellatecourt agreed that the statute denied respondent due process, and thusreversed the trial court's determination that respondent is an unfitparent, vacated the subsequent order terminating her parental rights,and remanded the cause with directions for further proceedings. In reAmanda D., 349 Ill. App. 3d at 955.

The appellate court noted that governmental action that impairsa fundamental right-such as the right to raise one's children-must benarrowly tailored to advance a compelling state interest. In re AmandaD., 349 Ill. App. 3d at 946. The court observed that a statute is" 'narrowly tailored if it targets and eliminates no more than the exactsource of the "evil" it seeks to remedy.' " In re Amanda D., 349 Ill.App. 3d at 946, quoting Frisby v. Schultz, 487 U.S. 474, 485, 101 L.Ed. 2d 420, 432, 108 S. Ct. 2495, 2503 (1988), citing Members of theCity Council v. Taxpayers for Vincent, 466 U.S. 789, 808-10, 80 L.Ed. 2d 772, 789-90, 104 S. Ct. 2118, 2130-32 (1984). The statutemust utilize the least restrictive means consistent with the attainmentof its goal. In re Amanda D., 349 Ill. App. 3d at 947, quoting In reH.G., 197 Ill. 2d 317, 330 (2001), quoting In re R.C., 195 Ill. 2d 291,303 (2001).

The appellate court ultimately determined that the statute's"proxy class" (people convicted of section 1(D)(q) offenses and thusdeemed per se unfit) is "broader than the class of unfit parents."Therefore, the court concluded the statute is not narrowly tailored toadvance the state's "undeniably compelling" interest in the safety andwelfare of children. In re Amanda D., 349 Ill. App. 3d at 946, 948.The court, however, noted it "is not difficult to divine" what morewould be required "before section 1(D)(q) could pass constitutionalmuster." One need only look to another subsection of the samestatute. The "rebuttable presumption" provisions of section 1(D)(i)would allow a trial court to hear additional evidence that mightexclude an otherwise fit parent from section 1(D)(q)'s class of parentsdeemed per se unfit. The appellate court noted:

"A parent could attempt to rebut the presumption, forexample, through evidence of rehabilitation, evidence that theoffense occurred under unique circumstances, or the showingof the passage of time during which the parent has led anupstanding life. However, section 1(D)(q) includes no suchprovisions." In re Amanda D., 349 Ill. App. 3d at 949.

The appellate court disagreed with the reasoning of In re D.W.,344 Ill. App. 3d 30, noting that the court in D.W. had applied thewrong standard in its due process analysis:

"Although the [D.W.] court began its analysis by stating thatthe statute was subject to strict scrutiny and wasconstitutional only if narrowly tailored to promote acompelling interest (D.W., 344 Ill. App. 3d at 47), its analysisof the issue reads as if it utilized the deferential rational-basisstandard, under which a statute is required only to bear arational relationship to the legislature's purpose in enactingthe statute (see In re D.P., 319 Ill. App. 3d 554, 557 (2001)).Specifically, the court concluded that section 1(D)(q)survived constitutional attack because 'section 1(D)(q)promotes [the state's compelling interest in protectingchildren] by allowing courts to consider a parent's convictionfor the attempted murder of a child when determiningwhether the parent is also fit to parent his or her other currentor future children.' D.W., 344 Ill. App. 3d at 49. That thestatute promotes a state interest is not enough. Any statutethat bears a rational relationship to its goal does so. What isrequired when a fundamental right is at issue, however, isthat the statute promote the State's interest in a way that isnarrowly tailored to achieving that end." In re Amanda D.,349 Ill. App. 3d at 951.

The appellate panel in Lisa Z.'s case concluded that section 1(D)(q)was not narrowly tailored in that the statute did not utilize the leastrestrictive means consistent with the attainment of its goal. Thus, thecourt found section 1(D)(q) unconstitutional in that it violatedprinciples of due process. Given that holding, the court found itunnecessary to address Lisa Z.'s other issues.

Consequently, we are confronted with conflicting appellate courtdecisions regarding the constitutionality of section 1(D)(q), theprovision upon which a finding of unfitness was premised in each case,and arguments that section 1(D)(q) violates constitutional guaranteesof due process and equal protection.

ANALYSIS

As a threshold matter, the State argues that Lisa M. lacksstanding to challenge the constitutionality of section 1(D)(q) becauseshe was allowed to testify regarding her efforts to achieve parentalrehabilitation. As previously stated, section1(D)(q)-the provisionunder which the State elected to proceed-contains a mandatoryconclusive presumption of parental unfitness upon clear andconvincing proof of conviction. No rehabilitative evidence is permittedunder the statutory procedure. A confluence of rather unusualcircumstances compels us to reject the State's standing argument.

First, we are not convinced that the hearing which took place wasof the caliber respondent would have received but for the trial court'svacillation. The State's election to proceed only under section 1(D)(q)obviously narrowed the focus of the hearing to, essentially, proof ofrespondent's prior conviction. In view of the State's representation,respondent's counsel withdrew a notice to compel the minor'sappearance at the fitness portion of termination proceedings, and,when the circuit court reversed itself and decided to hear evidence ofrehabilitation, counsel called only respondent as a witness. While thiswas, of course, counsel's decision, it is not clear from the record theextent to which the procedure was affected by the uncertaintyexhibited by the trial court.

Second, the words and actions of the circuit court inspire littleconfidence that respondent actually received due consideration of thetestimony that was presented. The circuit court's decision to reverseits initial ruling and hear evidence of rehabilitation seems to have beenprompted, in part, by a fear that the appellate court might see thingsdifferently, and by a belief that the court could simply ignore theprocedural aspects of section 1(D)(q) and hedge its rulings. We notethe following statements:

"It is just a matter of am I going to hear [evidence ofrehabilitative efforts] at the unfitness hearing or the bestinterest hearing.

If I were to wait and hear it only at the best interesthearing, it is possible that the Appellate Court might see thiscase differently than they saw J.B. and say that is an equalprotection problem. Therefore, reverse the finding. ***

* * *

The Court, assuming the statute is constitutional, notingdepravity is not alleged, has not been alleged in this case, thatthe only allegation of unfitness that has been acted upon orprosecuted or is being prosecuted by the State in Q is goingto, despite the fact that the Appellate Court has in Februaryupheld the constitutionality of Paragraph Q, going to allowthe natural mother to offer her evidence of rehabilitation***."

The court obviously recognized only section 1(D)(i) (depravity)would have provided the statutory authority to hear evidence ofrehabilitation during the fitness phase of termination proceedings, andthat section 1(D)(q) clearly did not; yet, though the court foundsection 1(D)(q) to be constitutional, the court chose to proceed in amanner contravening one key procedural aspect of the statute. Thecourt could not do so, logically or procedurally, without findingsection 1(D)(q) unconstitutional.

Though the court permitted and purportedly consideredrespondent's evidence, the court repeatedly and unequivocally statedthat its ruling, finding respondent unfit, was based solely on section1(D)(q):

"The Court will rule as follows: With regard to unfitness,the Court does find that the State has met their burden ofproof in this case, which is clear and convincing evidencewith regard to Paragraph Q. The State has proved that[respondent] was criminal [sic] convicted of the attemptedmurder of a child. There is a certified copy of convictionadmitted into evidence.

And [respondent] has herself testified and admitted shewas convicted of that crime with regard to her child ***."

The court recounted respondent's testimony in a rather cursorymanner and concluded, speaking to respondent, "[A]ll I know is youattempted to kill one of your children." Lest there be any doubt aboutthe basis of its finding, the court added, yet again: "So, the Court isfinding, so the record is clear, [respondent] unfit pursuant toParagraph Q of the Adoption Act."

By enacting section 1(D)(q), the legislature obviously did notintend to provide for or allow the introduction of evidence to rebut thestatute's conclusive presumption of unfitness. Indeed, if there wereany lingering doubts, they would be put to rest by a comparison of theclear language of section 1(D)(i) (specifically providing for rebuttal)and section 1(D)(q) (omitting any such reference), and by applicationof the familiar maxim expressio unius est exclusio alterius, meaning,"to express or include one thing implies the exclusion of the other, orof the alternative." Black's Law Dictionary 620 (8th ed. 2004). Thiscourt recently employed that maxim in an analogous situation,holding, where the legislature has expressly provided a private rightof action in a specific section of a statute, the legislature did not intendto imply private rights of action to enforce other sections of the samestatute. Metzger v. DaRosa, 209 Ill. 2d 30, 44 (2004). By specificallyproviding an opportunity for rebuttal evidence in section 1(D)(i), thelegislature did not intend to imply a right of rebuttal in section1(D)(q). The circuit court's actions and words indicate the court waswell aware of the differing procedural aspects of the two sections, oneof which (section 1(D)(i)) was not even alleged as a ground forunfitness in the State's petition.

As this court has previously stated, it is improper to terminate aparent's rights on grounds not alleged in a petition to terminate. In reD.C., 209 Ill. 2d 287, 296 (2004). It has been held that adetermination of unfitness may be made only upon consideration ofevidence relevant to the grounds alleged in the petition before thecourt. In re V.S., 285 Ill. App. 3d 372, 375 (1996), citing In reAdoption of Syck, 138 Ill. 2d 255, 277 (1990) (trial court is todetermine parental unfitness based on evidence relevant to the"particular grounds of unfitness alleged"). Evidence of parentalrehabilitation was not relevant to the statutory ground before thecourt.

The constitutional source of a circuit court's jurisdiction does notcarry with it a license to act in ways inconsistent with controllingstatutory law. In re Lawrence M., 172 Ill. 2d 523, 529 (1996), citingIn re M.M., 156 Ill. 2d 53, 75 (1993) (Miller, C.J., concurring, joinedby Bilandic, J.). For example, in People v. Thompson, 209 Ill. 2d 19,23 (2004), this court held that a circuit court disposition notauthorized by statute is void. See also In re Austin W., Nos. 97531,97580, slip op. at 19, 22 (January 21, 2005) (this court noted thecircuit court's "serious error," where the circuit court knew it had "noauthority"to review an administrative law judge's determination, butdid so anyway). In this case, the circuit court lacked the statutoryauthorization to consider respondent's evidence of rehabilitation, andthus could not have rendered a valid judgment on her behalf based onthat evidence. The circuit court had the authority to make a finding,and render judgment, based solely on the sufficiency of proof that theparent had been convicted of one of the offenses listed in section1(D)(q). It simply had no authority to choose a statutory ground forunfitness not alleged in the petition and proceed under that section.

Given the coalescence of the aforementioned circumstances, webelieve Lisa M. has standing to challenge the constitutionality ofsection 1(D)(q) of the Adoption Act. We now turn to the standardsthat govern our review.

An issue concerning the constitutionality of a statute presents aquestion of law that we review de novo. In re Parentage of John M.,212 Ill. 2d 253, 265 (2004); Village of Lake Villa v. Stokovich, 211Ill. 2d 106, 121-22 (2004). We begin with the presumption that thestatute is constitutional. John M., 212 Ill. 2d at 265. If reasonablypossible, this court must construe the statute so as to affirm itsconstitutionality and validity. In re R.C., 195 Ill. 2d at 296.

When confronted with a claim that a statute violatesconstitutional guarantees of due process or equal protection, a courtmust first determine the nature of the right purportedly infringed bythe statute. People v. Cornelius, 213 Ill. 2d 178, 203 (2004); In reR.C., 195 Ill. 2d at 302. Classification of the right affected is criticalbecause the nature of the right dictates the level of scrutiny courtsemploy in determining whether the statute in question passesconstitutional muster. Unless a fundamental constitutional right isimplicated, the rational basis test applies, and the statute will beupheld so long as it bears a rational relationship to a legitimate stateinterest. John M., 212 Ill. 2d at 266, quoting In re R.C., 195 Ill. 2d at302. However, where the constitutional right at issue is oneconsidered "fundamental," the presumption of constitutionality isweaker, and courts must subject the statute to the more rigorousrequirements of strict scrutiny analysis. Cornelius, 213 Ill. 2d at 204;Stokovich, 211 Ill. 2d at 122. In order to survive strict scrutiny, themeasures employed by the legislature must be necessary to serve acompelling state interest, and must be narrowly tailored thereto, i.e.,the legislature must use the least restrictive means consistent with theattainment of its goal. In re H.G., 197 Ill. 2d at 330; In re R.C., 195Ill. 2d at 303.

There is no doubt that the right of parents to control theupbringing of their children is a fundamental constitutional right. In reR.C., 195 Ill. 2d at 303. Indeed, the rights to conceive and raise one'schildren have been described as among the most " 'basic civil rights ofman.' " Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558,92 S. Ct. 1208, 1212 (1972), quoting Skinner v. Oklahoma ex rel.Williamson, 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct.1110, 1113 (1942). As the Supreme Court observed in Troxel v.Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 56, 120 S. Ct. 2054,2060 (2000), "[t]he liberty interest at issue in this case--the interestof parents in the care, custody, and control of their children--isperhaps the oldest of the fundamental liberty interests" recognized bythe Court. " '[T]he Constitution protects the sanctity of the familyprecisely because the institution of the family is deeply rooted in thisNation's history and tradition.' " Michael H. v. Gerald D., 491 U.S.110, 123-24, 105 L. Ed. 2d 91, 106, 109 S. Ct. 2333, 2342 (1989),quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 52 L.Ed. 2d 531, 540, 97 S. Ct. 1932, 1938 (1977). The liberty interest ofparents in the care, custody and management of their child " 'does notevaporate simply because they have not been model parents or havelost temporary custody of their child to the State.' " In re D.T., 212Ill. 2d 347, 359 (2004), quoting Santosky v. Kramer, 455 U.S. 745,753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95 (1982).Clearly, strict scrutiny analysis applies to statutes-like the one atissue-that are employed as part of a procedure to terminate parentalrights and dissolve the bonds between parent and child. Thus, thestatute at issue must be necessary to serve a compelling state interestand must be narrowly tailored so as to use the least restrictive meansconsistent with the attainment of the government's goal. In re H.G.,197 Ill. 2d at 330; In re R.C., 195 Ill. 2d at 303.

With these precepts in mind, we consider the means thelegislature has chosen in pursuit of what is undeniably the state'scompelling interest in the safety and welfare of children. See AmericanFederation of State, County & Municipal Employees v. Departmentof Central Management Services, 173 Ill. 2d 299, 312 (1996).

While section 1(D)(q) of the Adoption Act denies respondentslike Lisa M. and Lisa Z. an opportunity to rebut its presumption ofparental unfitness, based upon conviction of one of the offenses listedtherein, section 1(D)(i) of the Act allows for rebuttal, though severalof the criminal offenses set forth therein are at least as serious assection 1(D)(q) offenses, and in some instances more serious. Forexample, section 1(D)(q) lists "aggravated battery, heinous battery, orattempted murder of any child." 750 ILCS 50/1(D)(q) (West 2002).Among the offenses against children listed in section 1(D)(i) are "firstdegree murder or second degree murder of any child ***[,] attemptor conspiracy to commit first degree murder or second degree murderof any child ***[,] solicitation to commit murder of any child,solicitation to commit murder of any child for hire, or solicitation tocommit second degree murder of any child ***[,] aggravated criminalsexual assault." 750 ILCS 50/1(D)(i) (West 2000).

So, there is a rebuttable presumption that a person who murdersa child is an unfit parent; however, there is a mandatory conclusive(irrebuttable) presumption that a parent convicted of aggravatedbattery or attempted murder of a child-offenses no more serious thanmurder-is an unfit parent. Had the State alleged conviction ofattempted murder of a child under section 1(D)(i), Lisa M. wouldhave had an opportunity to rebut the presumption of unfitness;however, because the State alleged conviction of attempted murder ofa child under section 1(D)(q), Lisa M. was statutorily denied the rightto offer evidence in rebuttal. Lisa Z. would have had an opportunityto offer rebuttal evidence of parental fitness at the fitness hearing hadshe been convicted of killing one of her children, because the Statewould have been forced to file under section 1(D)(i); however, sinceshe had been convicted of aggravated battery, she had no statutoryright of rebuttal. There is no logic to this statutory scheme, much lessthe use of "narrowly tailored *** '*** least restrictive meansconsistent with the attainment of [the State's] goal.' " In re H.G., 197Ill. 2d at 330, quoting In re R.C., 195 Ill. 2d at 303.

As this court has observed, statutory classifications that affect afundamental right violate the equal protection clause unless they arenarrowly tailored to serve a compelling state interest. In re Adoptionof L.T.M., Nos. 95746, 97947, slip op. at 10 (January 21, 2005); Inre R.C., 195 Ill. 2d at 309. The constitutional guarantee of equalprotection requires that the government treat similarly situatedindividuals in a similar manner. L.T.M., slip op. at 9, quoting In reR.C., 195 Ill. 2d 291, 309 (2001). In L.T.M., this court held it was aviolation of equal protection not to provide appellate counsel to anindigent parent whose parental rights had been terminated under theAdoption Act, "when he certainly would have had [a right to counselon appeal had his rights been terminated] under the Juvenile CourtAct." L.T.M., slip op. at 10. Thus, this court held it was an equalprotection violation to accord a procedural right under one act, but towithhold it under the other. As this court noted, the consequencesunder either act were the same:

"[A] parent who stands to lose his rights under the AdoptionAct if he is found unfit is in a very similar situation to aparent who stands to lose the very same constitutional right,based on the very same finding, in proceedings under theJuvenile Court Act." L.T.M., slip op. at 11.

In L.T.M., this court defined the pertinent classification forpurposes of equal protection analysis as follows:

"In this case, the classification is the distinction betweenparents who must answer a petition to terminate theirparental rights under the Juvenile Court Act and those, likeJohn, who must answer under the Adoption Act." L.T.M.,slip op. at 10.

The right to counsel is a procedural safeguard (In re D.T., 212 Ill. 2dat 365; see In re Evelyn S., 337 Ill. App. 3d 1096, 1107 (2003)) thatthis court held should be afforded to similarly situated parents, facingthe prospect of termination, regardless of the provision under whichthe State proceeded. L.T.M., slip op. at 9-12.

The applicability of L.T.M.'s holding to the case at bar isunmistakable; the reasoning of L.T.M. is even more compelling whenapplied to the circumstances of this case. This court has stated that arebuttable presumption is a rule of procedure. First National Bank ofChicago v. King, 165 Ill. 2d 533, 542 (1995). Thus, a respondent, likeLisa M., who is the subject of a petition alleging unfitness undersection 1(D)(q) is denied the procedural right of rebuttal that isafforded to a person convicted of the same offense, but alleged to beunfit under section 1(D)(i). The offense is the same. The potentialconsequences are the same. The procedural safeguards provided bythe statutes are different, for no apparent reason. To deny thissafeguard to Lisa M. and Lisa Z., while providing it to others similarlysituated is to deny them equal protection of the law.

It is no answer to suggest that there is a unique "moral" elementto section 1(D)(i) simply because that provision is entitled"depravity." There is no difference between the two sections, muchless a meaningful one. Sections 1(D)(i) and 1(D)(q) both base theirpresumptions of parental unfitness on prior convictions of the same orsimilar, specified offenses. Section 1(D)(i) contains the error-reducingsafeguard of rebuttal; section 1(D)(q) does not.

Moreover, notwithstanding any previous statements to thecontrary, we believe, after our decision in In re D.T., there is littleforce left in the argument that a respondent who has been deprived ofthe opportunity to present evidence of parental fitness at a hearingpurporting to address that very issue is no worse off for having topresent such evidence at the best-interests hearing, after having beenfound unfit.

Recently, in In re D.T., this court held that parents are notentitled to all of the same procedural safeguards at the best-interestshearing that they enjoy at the fitness hearing. Specifically, this courtfound that the clear and convincing standard of proof that applies atthe fitness hearing gives way to a lesser, preponderance, standard ofproof at the best-interests phase of termination proceedings. In reD.T., 212 Ill. 2d at 361, 366. The basis for the change in standards ofproof, this court noted, is a different focus at the best-interestshearing:

"Following a finding of unfitness *** the focus shifts tothe child. The issue is no longer whether parental rights canbe terminated; the issue is whether, in light of the child'sneeds, parental rights should be terminated. Accordingly, ata best-interests hearing, the parent's interest in maintainingthe parent-child relationship must yield to the child's interestin a stable, loving home life." (Emphases in original.) In reD.T., 212 Ill. 2d at 364.

This court explained why a higher standard of proof is required at thefitness hearing and a lesser standard of proof is permissible at the best-interests phase:

"At the unfitness stage, the interests of the parent and thechild coincide to the extent that they both 'share a vitalinterest in preventing erroneous termination of their naturalrelationship.' Santosky, 455 U.S. at 760-61, 71 L. Ed. 2d at611, 102 S. Ct. at 1398. The alignment of these interests atthe unfitness hearing favors the use of error-reducingprocedures, i.e., use of a more stringent burden of proof thana preponderance. See Santosky, 455 U.S. at 760-61, 71 L.Ed. 2d at 611, 102 S. Ct. at 1398. The same, however, is nottrue at the best-interests hearing. Once the State provesparental unfitness, the interests of the parent and the childdiverge. Santosky, 455 U.S. at 760, 71 L. Ed. 2d at 611, 102S. Ct. at 1398. Thus, at a best-interests hearing, the parentand the child may become adversaries, as the child's interestin a loving, stable and safe home environment becomes morealigned with the State's interest in terminating parental rightsand freeing the child for adoption. Although the parent stillpossesses an interest in maintaining the parent-childrelationship, the force of that interest is lessened by thecourt's finding that the parent is unfit to raise his or herchild." In re D.T., 212 Ill. 2d at 363-64.

Clearly, a parent found unfit at the first phase of terminationproceedings enters the second phase at a disadvantage from aprocedural and evidentiary standpoint. See In re C.W., 199 Ill. 2d198, 217 (2002) (at the best-interests hearing, the "full range of theparent's conduct" must be considered, including the grounds forfinding the parent unfit); In re D.L., 326 Ill. App. 3d 262, 271 (2001)(such evidence is a "crucial consideration" at the best-interestshearing).

A parent who is denied the opportunity to adduce evidence offitness at the hearing where a fitness determination will be made isclearly at a disadvantage by the time of the best-interests hearing-adisadvantage not faced by those who are allowed to present evidenceof their fitness at the first phase of termination proceedings. The latterare accorded an "error-reducing" procedure that is inexplicably deniedthe former. To suggest that this inequity does not exist is to ignore thereality of results, and a fundamental requirement of due process, i.e.,that a respondent be afforded the opportunity to be heard at ameaningful time and in a meaningful manner. See Mathews v.Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32, 96 S .Ct. 893, 902(1976); In re Robert S., 213 Ill. 2d 30, 49 (2004). The operative termhere is "meaningful."

As the Supreme Court stated in Stanley, addressing anothermandatory conclusive (irrebuttable) presumption, that also impactedthe fundamental family relationship between parent and child:

"Procedure by presumption is always cheaper and easierthan individualized determination. But when, as here, theprocedure forecloses the determinative issues of competenceand care *** it needlessly risks running roughshod over theimportant interests of both parent and child. It thereforecannot stand." Stanley, 405 U.S. at 656-57, 31 L. Ed. 2d at562, 92 S. Ct. at 1215.

In L.T.M., we rejected any suggestion that controllingexpenditures was a valid basis for denying equal protection to theclass affected by the deprivation. L.T.M., slip op. at 11-12. We do sohere as well. If the argument is that the respondents can present theirevidence of fitness in any event at the best-interests hearing, it makesno difference from the standpoint of cost if they are allowed to do soat the first stage of termination proceedings; however, it may wellmake a significant difference as to outcome.

In short, there is no rational basis for treating persons subject tofitness proceedings under section 1(D)(q) differently from those facingthe same proceedings under section 1(D)(i), much less a justificationthat would survive strict scrutiny. We need not speculate as to howsection 1(D)(q) could be more narrowly tailored; the legislature hasprovided us the model in section 1(D)(i). Therefore, we hold section1(D)(q) unconstitutional as violative of equal protection. Given ourdisposition, we need not address the parties' due process arguments.

It remains for us to decide whether the remedy for thisconstitutional violation is to require the state to extend the benefit oftimely and meaningful rebuttal to those who have been denied it undersection 1(D)(q), or to withdraw the benefit from those who have beenfavored under section 1(D)(i). See L.T.M., slip op. at 12. Given thatthe legislature has seen fit to extend the benefit of rebuttal to thoseparents who have been convicted of murdering a child, we see noreason to withhold that benefit from those convicted of the lesseroffenses listed in section 1(D)(q). We believe a full and fair hearing,and an informed decision, benefits all concerned, and works to thedisadvantage of no one.

For the reasons stated, we affirm the judgment of the appellatecourt in cause No. 98896. We reverse the judgments of the appellateand circuit courts in cause No. 97292 and remand to the circuit curtfor further proceedings.

No. 98896-Appellate court judgment affirmed.

No. 97292-Judgments reversed;

cause remanded.