FIRST DIVISION

							May 14, 2001			 				

No. 1-99-0144

IN RE T.T., a Minor,				)	Appeal from the

								)	Circuit Court of

		Respondent-Appellee       	)	Cook County

								)

(The People of the State of Illinois,	)

								)

		Petitioner-Appellee,		)

								)

	v.							)	

								)

T.T., Sr.,							)	Honorable

								)	Donna L. Cervini,

		Respondent-Appellant).		)	Judge Presiding.

	PRESIDING JUSTICEustice McNULTYulty delivered the opinion of the

court:

	In this case we must decide whether an amendment to the

Adoption Act (750 ILCS 50/0.01 et seq. (West 1998)) applies retroactively.  The amendment, effective June 30, 1998, provides

that if a parent has three felony convictions, including one

within five years of the filing of a petition to terminate

parental rights, a rebuttable presumption of parental unfitness

arises.  750 ILCS 50/1(D)(i) (West 1998).  T.T., Sr., committed

three felonies before 1997.  The trial court terminated his

parental rights over T.T. based on the three convictions.  T.T.,

Sr., now appeals.

	The Department of Children and Family Services (DCFS) took

temporary custody of T.T. in December 1994 and placed him in the

home of a relative. DCFS filed a petition for termination of the rights of both parents, in April 1998, after years of working

with T.T.'s mother.  The trial court terminated the parental

rights of T.T.'s mother, and that ruling is not at issue in this

appeal.

	DCFS moved for summary judgment against T.T., Sr., on one

count of the petition for termination of his parental rights.  In

support DCFS presented certified records showing that in 1992

T.T., Sr., committed burglary, and twice in 1996 he possessed

motor vehicles that he knew had been stolen.

	When T.T., Sr., committed the felonies, the Juvenile Court

Act (705 ILCS 405/2-29 (West 1992)) and the Adoption Act (750

ILCS 50/1(D)(i) (West 1992)) established that a court could

terminate parental rights upon finding clear and convincing

evidence of the parent's depravity.  The statutes did not define

or further explain the facts needed to show depravity.  The 1998

amendment to the Adoption Act provided:

		"There is a rebuttable presumption that a parent

is depraved if the parent has been criminally convicted

of at least 3 felonies under the laws of this State or

any other state, or under federal law, or the criminal

laws of any United States territory;  and at least one

of these convictions took place within 5 years of the

filing of the petition or motion seeking termination of

parental rights."  750 ILCS 50/1(D)(i) (West 1998).

DCFS relied on the amendment as grounds for the summary judgment motion.

	T.T., Sr., moved to strike the motion for summary judgment,

arguing that the due process clauses of the United States and

Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const.

1970, art. I, §2) prohibited retroactive application of the

amendment in the case against him.  He also answered that the

specific convictions did not show depravity, and he was working

towards rehabilitating himself in prison.

	At a hearing in December 1998, the trial court held that the

constitutions permitted application of the amendment to the case

against T.T., Sr.  The court then took testimony from T.T., Sr.,

concerning his rehabilitation efforts.  The court expressly found

much of his testimony incredible and held that he failed to rebut

the presumption of depravity.  Therefore the court terminated his

parental rights with respect to T.T.

	On appeal T.T., Sr., contends only that application of the

amended statute in this case violates his right to due process. 

When an amendment impairs rights a party possessed when he acted, 

the constitutions permit only prospective application of the

amendment.  Commonwealth Edison Co. v. Will County Collector, No. 88110, slip op. at 9, (Ill. May 3, 2001).  If the amendment would have

no such retroactive impact, the court may apply the amended law. 

If an amendment only clarifies existing law, courts should apply

it to pending cases.  County of Hamilton v. Department of Revenue, 279 Ill. App. 3d 639, 644, 665 N.E.2d 567 (1996).

	Before the legislature enacted the amendment at issue here,

the Adoption Act gave courts the power to declare unfit any

parent the courts found depraved.  The statute did not further

define the term or restrict the evidence on which the court could

base such a finding.  Courts readily concluded that felony

convictions counted as admissible evidence of depravity.  Smith v. Andrews, 54 Ill. App. 2d 51, 62, 203 N.E.2d 160 (1964).  But courts concluded that they needed to consider other evidence as

well, so that felonies alone did not constitute conclusive proof

of depravity.  In re Sanders, 77 Ill. App. 3d 78, 82, 395 N.E.2d 1228 (1979); In re M.B.C., 125 Ill. App. 3d 512, 466 N.E.2d 273 (1984).  The court in Sanders explained:

	"While a criminal record reveals a rejection of

societal mores in the past, it is not conclusive. 

There must be some allowance for an individual to

become rehabilitated ***."  In re Sanders, 77 Ill. App. 3d at 82.

Thus, in M.B.C., the court recited the father's history of felonies and observed that he offered no significant evidence of

rehabilitation before approving termination of his parental

rights.

	Our supreme court clarified applicable standards with In re Abdullah, 85 Ill. 2d 300, 423 N.E.2d 915 (1981).  In that case the child's father murdered the mother, and the trial court found

the murder conviction alone sufficient to show the father's depravity.  On appeal, the State supported the trial court's

decision with a transcript of the murder trial.  Our supreme

court first defined depravity as '"an inherent deficiency of

moral sense and rectitude."' [Citations.]  In re Abdullah, 85 Ill. 2d at 305.  The court noted the rule from earlier decisions

that a single criminal conviction, without more, did not suffice

to prove depravity.  But the court recounted the circumstances of

the murder and found the nature of that single act showed

depravity.  Despite the opportunity to present contrary evidence,

the father failed to rebut the inference of depravity.  In re Abdullah, 85 Ill. 2d at 307.  The court affirmed the decision to terminate the father's parental rights.

	In Sanders the father committed at least two felonies and three other crimes, and he spent three years in prison.  The

trial court found the evidence insufficient to prove depravity. 

The appellate court deferred to the trier of fact, holding that

the decision was not contrary to the manifest weight of the

evidence.  The appellate court also affirmed the trial court's

decision not to terminate the rights of the father in the case of

In re Perez, 173 Ill. App. 3d 922, 937-38, 528 N.E.2d 238 (1988), although the father committed two felonies in Illinois and

attempted a robbery in New York.  The appellate court especially

noted the evidence of the father's rehabilitation and consistent

concern for his children.

	The trial court that heard In re Buttram, 56 Ill. App. 3d 950, 372 N.E.2d 1135 (1978), held that the father's 6 felonies in

11 years showed depravity. Again, the appellate court affirmed. 

And in Smith, 54 Ill. App. 2d at 62-63, the appellate court affirmed the decision to terminate the rights of a parent

convicted of two felonies, emphasizing the lack of evidence of

mitigating circumstances.

	Although the results of the cases appear reconcilable, the

trial and appellate courts applied varying standards and

rationales.  Some courts required evidence beyond the certified

proof of convictions, while other courts found the number of

convictions alone sufficient to show depravity.  Compare In re Sanders, 77 Ill. App. 3d at 82, with In re Dawn H., 281 Ill. App. 3d 746, 757, 667 N.E.2d 485 (1996).  The amendment to the

Adoption Act approved the use of felony convictions to prove

depravity.  Under the amendment, any three felonies suffice to

present a prima facie case of depravity, as long as one of the convictions occurred within five years of the filing of the

petition to terminate parental rights.  Of course, as under the

prior case law, the parent retains the right to rebut the

evidence of depravity with proof of rehabilitation or with

evidence that the circumstances surrounding the crimes show the

crimes did not result from depravity.

	Here, as in County of Hamilton, 279 Ill. App. 3d at 644-45, an undefined statutory phrase left much room for speculation

concerning the application of the statute before amendment.  And, as in Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc., 240 Ill. App. 3d 360, 365, 608 N.E.2d 178 (1992), cases relying on apparently conflicting reasonings showed a need for

legislative clarification.  We hold that the amendment to the

Adoption Act only clarified existing law concerning proof of

depravity.  Accordingly, the trial court here correctly applied

the amendment to the facts of this case.

	T.T., Sr., committed three felonies, all within five years

of the filing of the petition to terminate his parental rights. 

Under the Adoption Act as clarified by amendment, the convictions

raised a rebuttable presumption of depravity.  T.T., Sr., does

not contest the trial court's finding that his testimony failed

to rebut the presumption.  He does not suggest that the trial

court precluded him from presenting any evidence concerning his

rehabilitation or any other matter that could show he is not

depraved.  Therefore, the decision to terminate his parental

rights is affirmed.

	Affirmed.

	FROSSARD and COHEN, JJ., concur.