Docket Nos. 88891, 89018 cons.–Agenda 22–September 2000.

   In re R.C., a Minor (R.W. et al., Appellants, v. D.C., Appellee).

Opinion filed Marvch ch 32, 20012.

	JUSTICE FREEMAN delivered the opinion of the court:

	In this direct appeal, we are asked to review the circuit court’s

determination that section 1(D)(p) of the Adoption Act (750 ILCS

50/1(D)(p) (West 1998)) is unconstitutional. We find the statute

constitutional, and accordingly reverse and remand for further

proceedings.

BACKGROUND

	The parties do not dispute some basic background facts. D.C.

became pregnant in 1994. In January 1995, as her due date

approached, D.C. contacted Lutheran Child and Family Services

(Lutheran) regarding adoption placement for her soon-to-be-born

child. Lutheran began to consider placement options for the child

and eventually narrowed the choice to two couples, one of which

was R.W. and C.W., the petitioners in this case. On February 4,

1995, D.C. gave birth to R.C. at Ottawa Community Hospital. At

that time, D.C. signed an agreement giving Lutheran temporary

custody of R.C. for placement purposes. She also indicated that, of

the two families being considered by Lutheran, she would prefer

that R.C. be placed with petitioners. Two days after the birth, D.C.

was transferred to the hospital’s psychiatric ward. On February 7,

1995, three days after R.C.’s birth, Lutheran placed the child with

petitioners. So far as the record reveals, R.C. has lived with them

ever since. D.C. was discharged from the hospital within two

weeks, but entered and departed psychiatric institutions on multiple

occasions during the next several months, and never signed a

surrender of parental rights. The alleged birth father surrendered

his parental rights soon after the child’s birth and is not a party to

this action.

	On April 7, 1995, R.W. and C.W. filed the instant petition for

adoption. Petitioners contend that D.C.’s consent to the adoption

is not required because she is an unfit parent as defined in section

1(D)(p) of the Adoption Act (750 ILCS 50/1(D)(p) (West 1998)). That section provides that one ground upon which an individual

may be found unfit is

			“(p) Inability to discharge parental responsibilities

supported by competent evidence from a psychiatrist,

licensed clinical social worker, or clinical psychologist of

mental impairment, mental illness or mental retardation as

defined in Section 1–116 of the Mental Health and

Developmental Disabilities Code, or developmental

disability as defined in Section 1–106 of that Code, and

there is sufficient justification to believe that the inability

to discharge parental responsibilities shall extend beyond

a reasonable time period. However, this subdivision (p)

shall not be construed so as to permit a licensed clinical

social worker to conduct any medical diagnosis to

determine mental illness or mental impairment.” 750 ILCS

50/1(D)(p) (West 1998).

	On the same day that R.W. and C.W. filed their petition, the

trial court entered an interim order terminating the father’s parental

rights and awarding temporary custody to the foster parents until

further order. The case encountered numerous procedural delays,

including changes of counsel, stays, and an interlocutory appeal. In

August 1998, counsel for D.C. filed a motion to dismiss the

complaint on the grounds that section 1(D)(p) was unconstitutional

and was preempted by the Americans with Disabilities Act of 1990

(ADA) (42 U.S.C. §12101 et seq. (1994)). In January 2000 the circuit court entered an order rejecting D.C.’s contention regarding

the ADA but finding section 1(D)(p) unconstitutional on its face.

The court found that the provision was “facially vague and violates

due process[,] facially violates substantive due process[,] facially

violates procedural due process[,] and facially violates equal

protection.”

	Petitioners and R.C., through her guardian ad litem, filed a notice of appeal. The circuit court allowed the Illinois Attorney

General to intervene in the case, and the Attorney General filed a

separate notice of appeal. We have consolidated the appeals, which

lie directly to this court because the circuit court declared an

Illinois statute invalid. 134 Ill. 2d R. 302(a)(1). Additionally, we permitted the Cook County State’s Attorney to file a brief as

amicus curiae in support of petitioners.

ANALYSIS

	All statutes are presumed to be constitutional. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351 (1999). The party challenging the constitutionality of a statute bears the burden of rebutting this

presumption and clearly establishing a constitutional violation.

Arangold, 187 Ill. 2d at 351. As the issue is one of law, we review de novo any decision finding a statute unconstitutional. People v. Jung, 192 Ill. 2d 1 (2000); People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117 (1998). It is our duty to construe acts of the legislature

so as to affirm their constitutionality and validity if we can

reasonably do so. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 163 (1998).

	In this case the circuit court declared that section 1(D)(p) was

unconstitutional on its face. It is well settled that a facial challenge

		“must overcome considerable hurdles:

				‘A facial challenge to a legislative Act is, of course,

the most difficult challenge to mount successfully, since

the challenger must establish that no set of

circumstances exists under which the Act would be

valid. The fact that the [statute] might operate

unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid,

since we have not recognized an “overbreadth” doctrine

outside the limited context of the First Amendment.’ ”

In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).

	Initially, we note that our appellate court has consistently

upheld section 1(D)(p) against these constitutional challenges. See In re B.S., No. 1–98–3855 (November 8, 2000), slip op. at 21-24 (statute not vague or in violation of equal protection or due

process); In re J.S., 213 Ill. App. 3d 126 (1991) (statute not vague); In re I.D., 205 Ill. App. 3d 543, 548-50 (1990) (upholding statute against general due process and equal protection challenges). No panel of the appellate court has ruled to the

contrary. The circuit court noted J.S. and I.D. in its memorandum order but refused to follow this authority. As we have repeatedly

held, this is error. “It is the absolute duty of the circuit court to

follow the decisions of the appellate court.” In re A.A., 181 Ill. 2d 32, 36 (1998); see also People v. Harris, 123 Ill. 2d 113, 128 (1988) (“[i]t is fundamental in Illinois that the decisions of an

appellate court are binding precedent on all circuit courts

regardless of locale”). If a circuit court “entertains genuine doubt

about the continued vitality of a reviewing court decision,” the

proper manner in which to proceed in a complex or protracted case

is to rule in accordance with existing law and to enter a Rule

304(a) (155 Ill. 2d R. 304(a)) finding or certify the question for

interlocutory appeal under Rule 308 (134 Ill. 2d R. 308). Because

of our system of precedent the circuit court is not, however, free

to disregard binding authority. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539-40 (1992).

	However, we note that the decisions in B.S. and I.D. were based on the premise that the appropriate standard of scrutiny for

evaluating due process and equal protection challenges to section

1(D)(p) was the “rational basis” test. B.S., slip op. at 22; I.D., 205 Ill. App. 3d at 549. The decision in J.S. merely quoted the analysis of the I.D. court. See J.S., 213 Ill. App. 3d at 131. As we shall later discuss, the fundamental nature of the rights inherent in the

parent-child relationship compel the conclusion that the statute

must instead withstand strict constitutional scrutiny. This matter is

deserving of clarification, and accordingly we shall review the

circuit court’s decision, addressing in turn each of the

constitutional infirmities D.C. raises.

I. Due Process

A. Vagueness

	First, D.C. contends that section 1(D)(p) is unconstitutionally

vague in that it fails to define the term “parental responsibilities.”

A vagueness challenge is actually a contention that the statute

violates the due process clause, because due process requires that

a statute “ ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act

accordingly.’ ” Russell v. Department of Natural Resources, 183 Ill. 2d 434, 442 (1998), quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99

(1972). A legislative act which is so vague, indefinite and uncertain

that the courts are unable, by accepted rules of construction, to

determine with any reasonable degree of certainty what the

legislature intended will be declared to be void. R.W. Dunteman, 181 Ill. 2d at 163. However, an act is not unconstitutionally vague

merely because one can conjure up a hypothetical which brings the

meaning of some terms into question. Gem Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill. 2d 470, 481 (1998). When considering a vagueness challenge to a statute, a

court considers not only the language used, but also the legislative

objective and the evil the statute is designed to remedy. R.W. Dunteman, 181 Ill. 2d at 163.

	It is an established rule that “ ‘ “[v]agueness challenges to

statutes which do not involve First Amendment freedoms must be

examined in the light of the facts of the case at hand.” ’ ” Russell, 183 Ill. 2d at 442, quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 71 L. Ed. 2d 362, 369 n.7, 102 S. Ct. 1186, 1191 n.7 (1982), quoting United States v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714 (1975). The first amendment is not implicated in this case.

Thus, D.C. cannot contend that section 1(D)(p) is vague on its face

if it clearly applies to her. Russell, 183 Ill. 2d at 442; see People v. Jihan, 127 Ill. 2d 379, 386 (1989). The question is thus whether D.C. clearly falls within the scope of the statute.

	One might wonder how we will determine whether the statute

is unconstitutionally vague as applied to D.C., when there has been

no fact-finding in the case. The question answers itself–we cannot.

Nor could the circuit court have done so. Thus it was inappropriate

for the circuit court to declare the statute vague. As this was a civil

case, not involving the first amendment, the vagueness challenge

could not properly have been resolved except by application to the

facts of the case. The circuit court’s determination that the statute

was unconstitutionally vague was premature and must be reversed.

“ ‘Although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be

time enough to consider any such problems when they arise.’ ”

Flipside, 455 U.S. at 504, 71 L. Ed. 2d at 375, 102 S. Ct. at 1196, quoting Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52, 16 L. Ed. 2d 336, 348, 86 S. Ct. 1254, 1265 (1966).1

B. Procedural Due Process–Burden of Proof

	D.C. raises additional due process challenges to section

1(D)(p). She contends that, as the circuit court held, the statute

violates procedural due process because it alters the burden of

proof for termination of parental rights to something less than

“clear and convincing evidence.” On this issue D.C. finds fault with

the statutory language which requires “competent evidence” of

mental disability and “sufficient justification” to believe that the

disability will extend beyond a reasonable time period.

	The parties agree that a decision to terminate parental rights

must be supported by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); In re Adoption of Syck, 138 Ill. 2d 255, 275 (1990) (“because of the devastating effect produced by a termination of

parental rights, the evidence of a parent’s unfitness has to be clear

and convincing”). However, nothing in section 1(D)(p) purports to

alter this requirement. Section 1 of the Adoption Act is merely a

definitional section. Section 1(D) defines an “unfit person” and

enumerates, in its various subsections, the possible grounds of

unfitness. None of the various subsections of section 1(D) dictate

the burden of proving unfitness.2 Rather, the burden of proof in adoption proceedings is set forth in section 8 of the Adoption Act

(750 ILCS 50/8 (West 1998)). That section clearly states that to

obviate the requirement of a consent or surrender to adoption, on

the grounds that the person is unfit as defined in section 1 of the

Adoption Act, the person must be proven to be unfit “by clear and convincing evidence.” 750 ILCS 50/8(a)(1) (West 1998).3 We see no evidence of legislative intent that this requirement not apply to

the particular definition of unfitness set out in section 1(D)(p). The

requirement that the evidence of mental unfitness be “competent”

refers to the type of evidence, not the quantum, nor does the word “sufficient” connote any particular burden of proof. Accordingly,

we reject D.C.’s procedural due process challenge.

C. Substantive Due Process

	D.C. also asserts that section 1(D)(p) violates substantive due

process, because it allows a parent to be declared unfit without any

showing that the parent has neglected or harmed his or her child or

that harm is imminent; and because it does not require the court to

consider “lesser alternatives to terminating parental rights.” We

find no merit to either contention.

	Before addressing the specifics of either challenge, we must

determine the type of review in which we are to engage. The

analysis courts use when confronted with a claim that a statute

violates the due process guarantees of the United States and Illinois

Constitutions depends on the nature of the right upon which the

statute supposedly infringes. Ordinarily, courts will employ a

relaxed scrutiny of statutes, looking only to see whether the statute

bears a rational relationship to a legitimate state interest. Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). However, in cases where the right infringed upon is among those considered a “fundamental”

constitutional right, courts subject the statute to “strict” scrutiny.

To survive strict scrutiny the means employed by the legislature

must be “necessary” to a “compelling” state interest, and the

statute must be narrowly tailored thereto, i.e., the legislature must use the least restrictive means consistent with the attainment of its

goal. Tully, 171 Ill. 2d at 304-05.

	Thus, in order to analyze D.C.’s due process challenge, we

must first determine whether section 1(D)(p) impinges on a

fundamental constitutional right. The United States Supreme Court

has recently addressed this issue, in Troxel v. Granville, 530 U.S. ___, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). There, the Court

reiterated that a parent’s right to control the upbringing of his or

her children is a fundamental constitutional right. See Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 56, 120 S. Ct. at 2060 (plurality

opinion) (“the interest of parents in the care, custody, and control

of their children–is perhaps the oldest of the fundamental liberty

interests recognized by this Court”); 530 U.S. at ___, 147 L. Ed.

2d at 63, 120 S. Ct. at 2066 (Souter, J., concurring) (“a parent’s

interests in the nurture, upbringing, companionship, care, and

custody of children are generally protected by the Due Process

Clause of the Fourteenth Amendment”); 530 U.S. at ___, 147 L.

Ed. 2d at 65, 120 S. Ct. at 2068 (Thomas, J., concurring)

(recognizing that the Court’s prior case law establishes that

“parents have a fundamental constitutional right to rear their

children”); 530 U.S. at ___, 147 L. Ed. 2d at 69, 120 S. Ct. at

2071 (Stevens, J., dissenting) (“[o]ur cases leave no doubt that

parents have a fundamental liberty interest in caring for and guiding

their children”); 530 U.S. at ___, 147 L. Ed. 2d at 74, 120 S. Ct.

at 2076 (Kennedy, J., dissenting) (“there is a beginning point that

commands general, perhaps unanimous, agreement in our separate

opinions: As our case law has developed, the custodial parent has

a constitutional right to determine, without undue interference by

the state, how best to raise, nurture, and educate the child[, which]

stems from the liberty protected by the Due Process Clause of the

Fourteenth Amendment”). Accordingly, we must employ strict

scrutiny, and determine whether section 1(D)(p) is necessary to a

compelling state interest and narrowly tailored thereto. To the

extent that the appellate court decisions in B.S., I.D., and J.S. hold or suggest that the statute must merely survive rational relation

scrutiny, they are overruled.

1. Finding of Harm

	We first consider D.C.’s argument that the statute is

constitutionally infirm for allowing a parent to be declared unfit without proving that the parent has, or is about to, neglect or harm

the child. We have upheld article III of the Juvenile Court Act, the

minors requiring authoritative intervention (MRAI) statute (705

ILCS 405/3–1 et seq. (West 1998)), against an identical argument. In People v. R.G.,131 Ill. 2d 328 (1989), we reviewed a ruling by the circuit court that a portion of the MRAI statute was

unconstitutional. The provision in question concerned what should

be done with a child who had run away from home and been taken

into limited custody by the state for interim crisis intervention

services. The statute required the state, for a limited time, to keep

the child in custody and refuse any demands by parents to return

the child to them if the child refused to return home. See 705 ILCS

405/3–3 (West 1998). The circuit court held that the state’s

general interest in the welfare of minors was not sufficiently

compelling to satisfy strict scrutiny, because some runaways,

specifically those who went to the “safe and secure family home”

of a friend or relative, would not be in danger of harm. The circuit

court concluded that the state could not assert a compelling

interest sufficient to satisfy the MRAI statute without conducting

an individualized assessment of risk for each minor sought to be

protected under the MRAI statute.

	We rejected the circuit court’s reasoning, holding that a child’s

safety and welfare were always jeopardized by running away from

home. We noted that “[e]ven if the minor finds refuge with a

relative or friend, the minor’s welfare could still be in jeopardy

because the minor may not be receiving proper care there.” R.G., 131 Ill. 2d at 346. Thus, no individualized assessment of risk was

required.

	Our analysis in R.G. supports a similar conclusion in this case. Section 1(D)(p) does not, of course, allow a finding of unfitness

based on a mere showing of mental impairment, illness, or

retardation. Rather, the person’s mental condition must render him

unable to discharge his parental responsibilities and the inability to

discharge parental responsibilities must “extend beyond a

reasonable time period.” 750 ILCS 50/1(D)(p) (West 1994). By

definition, a child who is being raised by a person who is unable to

discharge his parental responsibilities might not “receiv[e] proper

care.” It was precisely this possibility which was found sufficiently compelling to uphold the MRAI statute in R.G. See R.G., 131 Ill. 2d at 346. The parties in this case do not dispute that the state, as parens patriae, has a compelling interest in protecting the welfare of children in general, nor would we accept such an argument. See R.G.,131 Ill. 2d at 344, citing Ginsberg v. New York, 390 U.S. 629, 638-41, 20 L. Ed. 2d 195, 203-04, 88 S. Ct. 1274, 1279-81

(1968); Stanley v. Illinois, 405 U.S. 645, 652, 31 L. Ed. 2d 551, 559,  92 S. Ct. 1208, 1213 (1972); Santosky v. Kramer, 455 U.S. 745, 766, 71 L. Ed. 2d 599, 615, 102 S. Ct. 1388, 1401 (1982);

Parham v. J.R., 442 U.S. 584, 603, 61 L. Ed. 2d 101, 119, 99 S. Ct. 2493, 2504-05 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 652-53, 64 S. Ct. 438, 442 (1944). We find

that the state’s interest in protecting minors is sufficiently

compelling to satisfy strict due process scrutiny when a child is

being raised by a parent who is, and will remain, for an

unreasonable time, mentally unable to give the child proper care.

2. Less Restrictive Alternatives and Related Arguments

	D.C. also contends that section 1(D)(p) violates due process

because it does not require the court to consider less restrictive

alternatives to termination of parental rights. In two related

arguments, D.C. contends that the statute is infirm because it does

not require proof that the inability to discharge parental

responsibilities be related to the parent’s mental condition or proof

that the mental condition cannot be treated. We reject this group

of arguments as well.

	First, we find no merit to the contention that the statute

violates due process because it does not require that the inability to

discharge parental responsibilities be related to the mental

condition. The statute requires proof of inability to discharge

parental responsibilities “supported by” competent evidence of the

mental condition. 750 ILCS 50/1(D)(p) (West 1998). It is clear

from the statutory language that the mental condition must be the

cause of the inability to discharge parental responsibilities which

forms the basis for the finding of unfitness. We see no basis for

confusion on the face of the statute and D.C. brings to our

attention no authority indicating that there has been the slightest

uncertainty on this point.

	Nor does the statute require the court to ignore evidence that

the mental condition may be treated. Clearly, the likelihood of

successful treatment of the mental condition should inform the

determination of whether the inability to discharge parental

responsibilities will continue “beyond a reasonable time.” Again,

we are unaware of any confusion on this point after a review of the

authority interpreting the statute. D.C. has not brought to our

attention any court having refused to consider evidence of

treatment options. However, the existence of a treatment for the

mental condition will not uniformly preclude a finding of unfitness

under section 1(D)(p). It may be, for example, that although a

treatment exists, the likelihood of the patient successfully

undergoing the treatment are extremely dim; or the treatment might

take such a long time that the trial court could justifiably find that

the inability to discharge responsibilities would continue beyond a

reasonable time notwithstanding the treatment. See In re R.M., 219 Ill. App. 3d 747, 751 (1991) (upholding trial court’s finding of

unfitness despite testimony that condition might be treatable, where

treatment would last four to seven “or more” years and prognosis

was “not good”). Clearly this is not an exhaustive list of the factors

which might influence the trial court’s determination. We merely

wish to indicate that although section 1(D)(p) does not explicitly

mention treatment, the possibility of treatment can and should be

taken into account under the statute as written, although it might

not by itself be determinative of the outcome in all cases.

	The same is true of evidence that, notwithstanding the

persistence of the parent’s mental condition, the parent might

become able to discharge his parental responsibilities with proper

training or other services. The future focus of the statute is not the

persistence of the parent’s mental condition, but his inability to

discharge his parental responsibilities. Thus evidence demonstrating

that the parent could become able to discharge his responsibilities

should be considered, even in the absence of evidence that the

germinal mental condition could itself be cured or eradicated.

	We reject D.C.’s larger “less restrictive alternatives” argument

as well. The legislature has provided that the Adoption Act and the

Juvenile Court Act are to be construed in concert with each other.

750 ILCS 50/2.1 (West 1998). Section 20a of the Adoption Act provides that in construction and interpretation of that act the “best

interests and welfare of the person to be adopted shall be of

paramount consideration.” 750 ILCS 50/20a (West 1998). The

Juvenile Court Act is more specific in this regard; the purpose of

that enactment is to

			“secure for each minor subject hereto such care and

guidance, preferably in his or her own home, as will serve

the safety and moral, emotional, mental, and physical

welfare of the minor and the best interests of the

community; to preserve and strengthen the minor’s family

ties whenever possible, removing him or her from the

custody of his or her parents only when his or her safety or

welfare or the protection of the public cannot be

adequately safeguarded without removal ***.” 705 ILCS

405/1–2(1) (West 1998).

	It is apparent that the preferred result under the Juvenile Court

Act is that a child remain in his or her home, in the custody of his

or her parents. This is a clarification of the child’s best interests. As

the Adoption Act and the Juvenile Court Act are to be construed

in concert with each other, it is apparent that termination of

parental rights should not be the default option in proceedings

under the Adoption Act in which a parent contests an allegation of

unfitness. We believe the courts of Illinois are already sensitive to

this concern. See, e.g., In re A.J., 269 Ill. App. 3d 824, 828 (1994) (“[c]ourts do not, and indeed should not, lightly terminate parental

rights or summarily dismiss a mentally ill person’s rights”).

Nevertheless, once a court has found by clear and convincing

evidence that a parent is unfit, the state’s interest in protecting the

child is sufficiently compelling to allow the termination of parental

rights.

II. Equal Protection

	D.C.’s final argument is that section 1(D)(p) violates the

constitutional guarantee of equal protection under the law in two

respects. First, she contends that the statute impermissibly

distinguishes between parents who are unable to discharge parental

responsibilities because of mental conditions and parents who are unable to discharge their responsibilities for other reasons. Second,

she contends that the legislature has violated equal protection by

failing to provide parents whose rights are sought to be terminated

under the Adoption Act with the benefits afforded to “identically

situated” parents under the Juvenile Court Act.

	The protection provided by the equal protection clauses of the

United States and the Illinois Constitutions is identical. A.A., 181 Ill. 2d at 36-37. The guarantee of equal protection requires that the

government treat similarly situated individuals in a similar manner.

Thus, the government may not accord different treatment to

persons who have been placed by statute into different classes on

the basis of criteria wholly unrelated to the purpose of legislation.

However, the equal protection clause does not forbid the

legislature from drawing proper distinctions in legislation among

different categories of people. The level of scrutiny applied in

reviewing legislative classifications under the equal protection

guarantee depends on the nature of the classification; for purposes

of this case it suffices to note that courts apply strict scrutiny to

classifications affecting fundamental rights. A.A., 181 Ill. 2d at 37. To survive strict scrutiny in the equal protection context, as in due

process analysis, the means employed by the legislature must be

necessary to advance a compelling state interest, and the statute

must be narrowly tailored to the attainment of the legislative goal. In re Estate of Hicks, 174 Ill. 2d 433, 438 (1996). An equal protection violation is remediable by equal treatment, which may

be accomplished by extension of benefits to the excluded class or

withdrawal of benefits from the favored class. Heckler v. Mathews, 465 U.S. 728, 79 L. Ed. 2d 646, 104 S. Ct. 1387 (1984).

	The first equal protection challenge raised by D.C. is that

section 1(D)(p) impermissibly distinguishes between parents who

are unable to discharge parental responsibilities because of mental

conditions and parents who are unable to discharge their

responsibilities for other reasons. D.C. contends that only parents

with a mental impairment may have their rights terminated based

on their inability to discharge parental responsibilities, whereas

parents without a mental impairment cannot have their parental

rights terminated because of their inability to discharge their

parental responsibility. D.C. contends that persons who are unable to discharge their parental responsibilities form an identically

situated group and that there is no sound basis for dividing this

group based on the “status” of having a mental impairment.

	D.C. bases this argument on the premise that section 1(D)(p)

does not require that the mental impairment cause the inability to

discharge parental responsibilities. As we have previously

discussed, however, the statute does require a causational link.

Accordingly, the statute does not treat identically situated persons

differently. One set of persons who may be found unfit are persons

who, because of a mental condition, are unable to discharge

parental responsibilities and will remain unable to do so for more

than a reasonable time. This group is not similarly situated to

persons who are not mentally unable to discharge their parental responsibilities. We find no fault with the legislative determination

that persons who are and will remain mentally unable to discharge

parental responsibilities may be declared unfit.

	D.C.’s other equal protection challenge is that parents facing

the loss of their parental rights are treated differently depending on

whether their fitness is challenged under the Juvenile Court Act or

the Adoption Act. D.C. contends that the statutory scheme cannot

survive strict scrutiny because identically situated parents are

entitled to services from the state in Juvenile Court Act

proceedings but not in Adoption Act proceedings. Specifically,

D.C. notes that section 2–10 of the Juvenile Court Act requires the

Department of Children and Family Services (DCFS) to make

“reasonable efforts” to eliminate the necessity of removing a minor

from the parents’ home, efforts which are to include the “provision

of services” to the minor or his family to ameliorate the situation

requiring the minor’s removal. See 705 ILCS 405/2–10 (West

1998). D.C. contends that parents whose parental rights are

questioned in an Adoption Act proceeding are entitled to no such

benefits, and accordingly they are treated differently despite being

identically situated.

	D.C. has not carried her burden (see Arangold, 187 Ill. 2d at 351) of clearly establishing a constitutional violation. As previously

noted, the guarantee of equal protection only requires that the

legislature treat similarly situated individuals in a similar manner. A.A., 181 Ill. 2d at 37. An examination of the statutory provision upon which D.C. relies reveals that D.C. is not similarly situated to

persons receiving the services which that statute provides. Section

2–10 of the Juvenile Court Act governs temporary shelter care hearings, not hearings regarding termination of parental rights. The

state services mandated therein are provided in the context of the

state removing a minor from his or her home based merely on a

finding of probable cause to believe that the minor is abused,

neglected or dependent. 705 ILCS 405/2–10(2) (West 1998). Such

a procedure is not even contemplated under the Adoption Act.

Accordingly, section 2–10 cannot be said to grant services which

similarly situated persons would not receive under the Adoption

Act, because no persons will be similarly situated under the

Adoption Act. In the instant case the State did not take R.C. from

D.C.’s custody against her will; D.C. voluntarily surrendered temporary custody of her child to Lutheran for adoption placement purposes. The situation in this case is not analogous to the state

placing a child in shelter care, and D.C. lacks standing to raise an

equal protection argument based on facts other than those present

in her case. Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 460 (1997) (to have standing to raise an equal protection claim, the

party must be a member of the class against whom the statute

allegedly discriminates); People v. Jaudon, 307 Ill. App. 3d 427, 435-36 (1999) (a party has no standing to assert the constitutional

rights of others not before the court).

CONCLUSION

	For the reasons above stated, the order of the circuit court

declaring section 1(D)(p) of the Adoption Act (750 ILCS

50/1(D)(p) (West 1998)) unconstitutional is reversed, and this

cause is remanded to the circuit court for further proceedings.

Reversed and remanded.

	JUSTICE GARMAN took no part in the consideration or

decision of this case.