Docket No. 100965. 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS

In re DONALD A.G., a Minor (The People of the State of 

Illinois, Appellant, v. Tony Gaylord, Appellee). 

Opinion filed May 18, 2006.

JUSTICE FITZGERALD delivered the judgment of the 

court, with opinion. 

Chief Justice Thomas and Justices Freeman, McMorrow, 

Kilbride, Garman, and Karmeier concurred in the judgment and 

opinion. 

OPINION
The circuit court of Vermilion County found respondent, 

Tony Gaylord, to be an unfit parent on the ground of depravity 

under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) 

(West 2002)). Respondent was found to be depraved because 

he was convicted of the offense of predatory criminal sexual 

assault of a child, in that he committed an act of sexual 

penetration with a child under the age of 13. See 720 ILCS 

5/12B14.1(a)(1) (West 1998). The court subsequently 

terminated respondent=s parental rights. Respondent appealed, 

and the appellate court reversed the finding of unfitness. 357 

Ill. App. 3d 934. We granted the State=s petition for leave to 

appeal, and now reverse the judgment of the appellate court. 

BACKGROUND 

On July 16, 2003, respondent=s paramour, Heather Miller, 

gave birth to their son, Donald A.G. The record demonstrates 

that at the time of Donald=s birth, respondent was in custody 

pending trial for the offense of predatory criminal sexual 

assault of a child. Respondent was alleged to have committed 

an act of sexual penetration against D.B., who was five years 

old at the time the act was committed. Respondent was 

ultimately convicted and sentenced to 20 years= imprisonment. 

On January 28, 2004, the State filed a petition for 

adjudication of wardship alleging that Donald was neglected 

because Miller was not providing adequate food. The record 

reveals that Donald was hospitalized on December 19, 2003, 

for dehydration because he was not being fed. On January 20, 

2004, a caseworker went to visit Miller and Donald to check on 

Donald=s well-being. The caseworker found Donald lying in a 

playpen, looking ill, and suffering from cold-like symptoms. 

Donald=s T-shirt had come off, and it was wrapped around his 

neck. His mother was asleep, and when awakened, revealed 

that she had not fed Donald for 18 hours. The caseworker 

arranged for Donald to be taken into protective custody. 

Donald was placed in foster care and adjudication proceedings 

were initiated. Notably, the record reveals that Donald=s foster 

parents previously served as foster parents to Donald=s older 

brother, also the child of respondent and Miller. The foster 

parents subsequently adopted Donald=s older brother and 

intend to adopt Donald. 
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Donald was adjudicated neglected, and after a period of 

several months, petitions to terminate both respondent=s and 

Miller=s parental rights were filed. Miller=s parental rights were 

ultimately terminated, and she did not contest the termination. 

The petition filed against respondent alleged that he was 

unfit because: he failed to maintain a reasonable degree of 

interest, concern and responsibility toward Donald (750 ILCS 

50/1(D)(b) (West 2002)); he is depraved due to a felony 

conviction for predatory criminal sexual assault of a child (750 

ILCS 50/1(D)(i) (West 2002)); and he is incarcerated, provided 

little or no support for Donald prior to incarceration, and his 

incarceration will prevent him from parenting for more than two 

years (750 ILCS 50/1(D)(r) (West 2002)). Respondent was 

found unfit under sections 1(D)(i) and 1(D)(r) of the Adoption 

Act. Both findings of unfitness were reversed by the appellate 

court. The State, however, only contests the appellate court=s 

finding with respect to the allegation of depravity. Accordingly, 

the facts set forth primarily relate to that allegation. 

At the fitness hearing, caseworker Jacqui Walters from the 

Department of Children and Family Services (DCFS) testified 

that respondent never contacted DCFS to arrange visitation 

with Donald and never attempted to contact Donald through 

cards, letters, or gifts. She added that she sent respondent a 

copy of the DCFS service plan, which included 

recommendations for services such as parenting classes and 

sex offender treatment, but respondent never made contact 

with her to discuss the plan or inquire about contacting his son. 

Respondent testified that he has been incarcerated since May 

19, 2003, and at the time of his testimony, he was housed in 

the Danville Correctional Center. A certified copy of his 

conviction for predatory criminal sexual assault of a child was 

admitted into evidence. Respondent stated that he was 

appealing his criminal conviction and hoped to get out of 

prison, obtain employment and a place to live, and raise 

Donald. He added that he was enrolled in GED classes at 

Danville, but was not participating in parenting classes because 

none were offered. There was no indication that he had 

initiated sex offender treatment. Respondent maintained that 
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he did not commit the crime for which he was convicted and 

asserted that he did not have any other felony convictions. 

Judge DeArmond, who presided over the fitness hearing, 

had also presided over respondent=s criminal trial. Defense 

counsel reminded the judge that respondent maintained that he 

did not commit the offense throughout the criminal trial and that 

the victim recanted. The trial judge stated: AI heard the case *** 

[a]nd I know what the testimony was.@ Defense counsel then 

asked the judge Ato judicially notice the previous proceedings 

sinceBfrankly, since we=re fortunate enough to be in front of the 

Judge that heard that.@ The court responded: 

AI=ll take judicial notice that Mr. Gaylord denied 

committing the offense; that it was a fairly unique fact 

situation in that the minor reported the allegations, 

subsequently recanted the allegations, and that there 

were issues with regard to whether there was pressure 

applied to the minor to get them to recant; but the 

testimony of Mr. Gaylord was that it did not happen.@

In closing arguments, the State argued that respondent 

should be found depraved as a result of his conviction for 

predatory criminal sexual assault of a child. The following 

colloquy ensued as a result of that argument: 

ATHE COURT: How does that qualify? The statute 

says aggravated criminal sexual assault. 

MS. RIGGS [Assistant State=s Attorney]: I don=t have 

the adoption code with me. I thought it was just any 

sexual conviction. But I could be wrong. 

THE COURT: I could be wrong, too. It lists a number 

of offenses for which a person can be found depraved. 

And on the next page, the very last offense, is 

aggravated criminal sexual assault. I mean, I may be 

missingBmaybe there=s some language in there that 

says any sexual offense. And if so, I=d take that into 

consideration. It=s just it kind of looks like there=s two 

classes. There=s those which createBthose for which a 

person can be found depraved, period. And then there=s 

another group for which there=s a rebuttable 

presumption that they=re depraved.@
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Respondent=s counsel also addressed this issue in closing 

argument, stating: 

A[T]o the extent that we=re dealing with some sort of 

essentially a conclusive presumption, that the conviction 

ipso facto makes him depraved, or whether it=s 

somehow a rebuttable presumption, but we would 

suggest that Mr. Gaylord at least ought to have an 

opportunity to contest whether he is depraved and, as 

best he can, has done so by offering testimony today 

and by the Court judicially noticing his previous 

testimony that essentially he did not participate on any 

assaultive behavior on the victim.@

In rendering its judgment, the trial court did not consider the 

presumption. Instead, the court considered whether a single 

conviction could support a finding of depravity as defined by 

this court: A[D]epravity is > Aan inherent deficiency of moral 

sense and rectitude.@ = @ In re Abdullah, 85 Ill. 2d 300, 305 

(1981), quoting Stalder v. Stone, 412 Ill. 488, 498 (1952). The 

trial court also looked to this court=s analysis in Abdullah, along 

with the appellate court=s holdings in In re S.H., 284 Ill. App. 3d 

392 (1996), and In re A.H., 215 Ill. App. 3d 522 (1991), and 

concluded that the case law Adoes not prohibit a finding of 

depravity based on a single criminal conviction.@ The court 

added: A[a]nd when you consider the nature of the criminal 

conviction in relation to the nature of the case we=re here on, I 

think it does constitute a sufficient basis for a finding of 

depravity under Subsection (D)(i). And I find that there is clear 

and convincing evidence based upon the felony conviction.@

Respondent appealed the trial court=s judgment, and the 

appellate court reversed, with one justice dissenting. The 

appellate court found that the trial court needed Asomething 

more@ than the Amere fact@ of respondent=s conviction for 

predatory criminal sexual assault of a child to support a finding 

of depravity. 357 Ill. App. 3d at 940. The appellate court 

concluded that the trial court only took judicial notice of 

respondent=s denials and the victim=s recantation, but did not 

consider the underlying facts of the criminal case. 357 Ill. App. 

3d at 940. Additionally, the appellate court recognized that 

section 1(D)(i) of the Adoption Act had been amended to 
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include specific offenses which triggered a presumption of 

depravity. 357 Ill. App. 3d at 940. The appellate court noted 

that predatory criminal sexual assault of a child was not 

enumerated in the statute, and thus declined to Aassume that 

the legislature intended to include predatory criminal sexual 

assault of a child but simply neglected to do so.@ 357 Ill. App. 

3d at 940. The appellate court ultimately concluded Athat the 

burden was squarely on the State to provide evidence of 

respondent=s depravity beyond the mere fact of his conviction 

for predatory criminal sexual assault of a child,@ and its failure 

to do so rendered the trial court=s finding of depravity against 

the manifest weight of the evidence. 357 Ill. App. 3d at 940-41. 

We granted the State=s petition for leave to appeal. 177 Ill. 2d 

R. 315(a). 

Notably, since the filing of the State=s petition, the appellate 

court has issued a Rule 23 order in respondent=s criminal 

appeal, People v. Gaylord, No. 4B04B0169 (January 18, 2006) 

(unpublished order under Supreme Court Rule 23). At oral 

argument, respondent requested that this court take judicial 

notice of the Rule 23 order and the facts contained therein.1

The State does not object, as it was the State=s position that 

the trial court took judicial notice of the underlying facts of 

respondent=s criminal conviction during the fitness hearing. 

Accordingly, we take judicial notice of the Rule 23 order. 

According to the Rule 23 order, the evidence presented at 

respondent=s criminal trial demonstrated that DCFS was called 

to investigate a charge of environmental neglect against Jason 

and Tabitha Traylor. The DCFS investigator interviewed D.B., 

Tabitha=s daughter. D.B. was asked if she was afraid of 

 

 1Respondent previously filed a motion to strike portions of the State=s 

brief and appendix which contained transcripts from the underlying criminal 

proceeding, the trial court=s judgment and a copy of the sentencing order. 

Respondent maintained that this information was not properly introduced at 

trial and should not be considered here. We took the motion with the case. 

However, since the filing of the motion, respondent has asked this court to 

judicially notice the Rule 23 order which contains this information. 

Accordingly, respondent=s motion to strike is rendered moot and is thus 

denied. 
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anyone, and she responded that she was afraid of respondent. 

She stated that respondent=s private part had touched her 

private part. D.B. added that she was afraid she would get in 

trouble for telling because it was a secret. 

A second DCFS investigator interviewed D.B. later that day. 

D.B. described the incident, stating that respondent put his 

private part inside her private part after giving her a bath. She 

stated that it hurt, but she did not cry. D.B. described the way 

respondent=s private part looked and where it was located. She 

also stated that respondent placed his finger and a spoon in 

her vagina. When asked what she thought should happen to 

respondent, she replied that he should go to jail. 

D.B. recanted her statements when testifying at trial. She 

averred that the DCFS investigator told her what to say and 

that respondent never touched her. The Traylors also testified, 

on respondent=s behalf, that D.B. recanted her statements to 

them. They added that they had more than 10 adults talk to 

D.B. about her accusations against respondent, and she 

recanted to those adults as well. Additionally, they indicated 

that they considered respondent a Avery good@ friend. 

Respondent testified at the trial. He denied committing the 

crime for which he was charged. However, in contrast to his 

testimony at the fitness hearing, he admitted that he had 

previously been convicted of criminal sexual assault, was 

placed on probation, and ordered to register as a sex offender 

for 10 years. He averred that he was 18 years old when he 

committed that offense and the victim was 16 years old. 

The trial court concluded that D.B.=s statements to the 

DCFS investigators were credible and further found that D.B.=s 

recantation was the result of pressure from her parents, who 

were Avery supportive@ of respondent. The trial court further 

found that it was Aobvious@ that D.B.=s parents had Aput 

substantial pressure on this victim.@ The court thus found 

respondent guilty of predatory criminal sexual assault of a 

child. The appellate court affirmed. People v. Gaylord, No. 

4B04B0169 (January 18, 2006) (unpublished order under 

Supreme Court Rule 23). Respondent has since filed a petition 

for leave to appeal to this court on the criminal matter. People 

v. Gaylord, No. 102063 (pet. for leave to appeal pending). 
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With these background facts, we now consider whether the 

appellate court properly reversed the trial court=s finding of 

unfitness and its ultimate termination of respondent=s parental 

rights. 

ANALYSIS 

Under the Juvenile Court Act of 1987, the involuntary 

termination of parental rights involves a two-step process. First, 

there must be a showing, based on clear and convincing 

evidence, that the parent is Aunfit,@ as that term is defined in 

section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 

2002)). If the court makes a finding of unfitness, the court then 

considers whether it is in the best interests of the child that 

parental rights be terminated. See 705 ILCS 405/2B29(2) (West 

2002); In re C.N., 196 Ill. 2d 181, 209 (2001). Although section 

1(D) of the Adoption Act sets forth numerous grounds under 

which a parent may be deemed Aunfit,@ any one ground, 

properly proven, is sufficient to enter a finding of unfitness. See 

750 ILCS 50/1(D) (West 2002); In re C.W., 199 Ill. 2d 198, 210 

(2002). 

In this case, as previously stated, the trial court found 

respondent unfit on the ground of depravity. The trial court did 

not make this finding in reliance on a presumption of depravity. 

Rather, the trial court concluded, based on the evidence of 

respondent=s criminal conviction, that the State met its burden 

of proving by clear and convincing evidence that respondent 

was depraved, in that he had an Ainherent deficiency of moral 

sense and rectitude.@ See In re Abdullah, 85 Ill. 2d at 305. The 

appellate court reversed the trial court=s judgment, finding that 

respondent=s conviction for predatory criminal sexual assault of 

a child was insufficient, by itself, to support a finding of 

depravity. The State asserts that the appellate court erred in 

concluding that the State failed to meet its burden. According 

to the State, the fact that respondent was convicted of the 

offense of predatory criminal sexual assault of a child triggers a 

rebuttable presumption of depravity which can only be 

overcome if respondent shows, by clear and convincing 

evidence, that he is not depraved. 
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Respondent asserts that the plain language of section 

1(D)(i) demonstrates that the offense of predatory criminal 

sexual assault of a child does not trigger a rebuttable 

presumption of depravity. Indeed, respondent argues that if the 

legislature intended for predatory criminal sexual assault of a 

child to trigger the presumption, it would have listed that 

offense in the statute. 

Section 1(D)(i) of the Adoption Act provides in relevant part: 

AD. >Unfit person= means any person whom the court 

shall find to be unfit to have a child, without regard to 

the likelihood that the child will be placed for adoption. 

The grounds of unfitness are any one or more of the 

following *** 

* * * 

(i) Depravity. Conviction of any one of the 

following crimes shall create a presumption that a 

parent is depraved which can be overcome only by 

clear and convincing evidence: (1) first degree 

murder in violation of paragraph 1 or 2 of subsection 

(a) of Section 9B1 of the Criminal Code of 1961 or 

conviction of second degree murder in violation of 

subsection (a) of Section 9B2 of the Criminal Code 

of 1961 of a parent of the child to be adopted; (2) 

first degree murder or second degree murder of any 

child in violation of the Criminal Code of 1961; (3) 

attempt or conspiracy to commit first degree murder 

or second degree murder of any child in violation of 

the Criminal Code of 1961; (4) solicitation to commit 

murder of any child, solicitation to commit murder of 

any child for hire, or solicitation to commit second 

degree murder of any child in violation of the 

Criminal Code of 1961; or (5) aggravated criminal 

sexual assault in violation of Section 12B14(b)(1) of 

the Criminal Code of 1961.@ (Emphasis added.) 750 

ILCS 50/1(D)(i) (West 2002). 

The issue before us is one of statutory construction. The 

cardinal rule of statutory construction is to ascertain and give 

effect to the intent of the legislature. People v. Ward, 215 Ill. 2d 
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317, 324 (2005). The best evidence of legislative intent is the 

language of the statute, and when possible, the court should 

interpret the language of a statute according to its plain and 

ordinary meaning. In re D.F., 208 Ill. 2d 223, 229 (2003). We 

do not construe words and phrases of a statute in isolation; 

instead, all provisions of a statute are viewed as a whole. In re 

Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). 

ALegislative intent can be ascertained from a consideration of 

the entire Act, its nature, its object and the consequences that 

would result from construing it one way or the other.@ Fumarolo 

v. Chicago Board of Education, 142 Ill. 2d 54, 96 (1990). Thus, 

we are not bound by the literal language of a statute if that 

language produces absurd or unjust results not contemplated 

by the legislature. D.F., 208 Ill. 2d at 230. Issues of statutory 

construction are questions of law that we review de novo. 

Ward, 215 Ill. 2d at 324. 

The State acknowledges that predatory criminal sexual 

assault of a child is not an offense enumerated in the statute. 

However, the State nevertheless maintains that the legislature 

intended to create a rebuttable presumption of depravity to be 

applied to the offense of predatory criminal sexual assault of a 

child, but made a drafting error. In support of this position, the 

State points out that the legislature cited to section 12B14(b)(1) 

of the Criminal Code. As the State correctly notes, in 1998, at 

the time of the enactment of section 1(D)(i) of the Adoption Act, 

section 12B14(b)(1) of the Criminal Code did not exist. In fact, 

the last time section 12B14(b)(1) appeared in the Criminal 

Code was 1994. 

In 1994, section 12B14(b) of the Criminal Code stated, in 

relevant part: 

A(b) The accused commits aggravated criminal 

sexual assault if: 

(1) the accused was 17 years of age or over and 

commits an act of sexual penetration with a victim who 

was under 13 years of age when the act was 

committed; or 

(2) the accused was under 17 years of age and (i) 

commits an act of sexual penetration with a victim who 
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was under 9 years of age when the act was committed; 

or (ii) commits an act of sexual penetration with a victim 

who was at least 9 years of age but under 13 years of 

age when the act was committed and the accused used 

force or threat of force to commit the act.@ 720 ILCS 

5/12B14(b)(1), (b)(2) (West 1994). 

After 1994, the aggravated criminal sexual assault statute 

was divided. The conduct proscribed in section 12B14(b)(2), 

quoted above, became part of a new aggravated criminal 

sexual assault statute which was codified under sections 

12B14(a), (b) and (c) of the Criminal Code. See 720 ILCS 

5/12B14(a), (b), (c) (West 1998). The conduct set forth in 

section 12B14(b)(1) was named Apredatory criminal sexual 

assault of a child@ and became section 12B14.1(a)(1) of the 

Criminal Code (720 ILCS 5/12B14.1(a)(1) (West 1998)). 

Section 12B14.1 now provides in relevant part: 

A(a) The accused commits predatory criminal sexual 

assault of a child if: 

(1) the accused was 17 years of age or over and 

commits an act of sexual penetration with a victim 

who was under 13 years of age when the act was 

committed[.]@ 720 ILCS 5/12B14.1(a)(1) (West 

1998). 

Language contained in the current predatory criminal sexual 

assault of a child statute is identical to the language set forth in 

section 12B14(b)(1) of the outdated aggravated criminal sexual 

assault statute cited by the legislature in amending the 

Adoption Act. The specificity of the citation suggests that the 

legislature intended to create a rebuttable presumption with 

respect to the conduct defined therein, i.e., where Athe accused 

was 17 years of age or over and commits an act of sexual 

penetration with a victim who was under 13 years of age when 

the act was committed.@

The State argues that no other construction of section 

1(D)(i)(5) of the Adoption Act is sensible, and we agree. 

Reading section 1(D)(i) as a whole, it becomes readily 

apparent that the legislature intended for the presumption of 

depravity to apply, in most instances, to those adults who 
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committed crimes against children. Indeed, the legislature 

created a presumption of depravity where a parent committed 

first or second degree murder of any child; attempted or 

conspired to commit first or second degree murder of any child; 

or solicited someone else to commit first or second degree 

murder of any child. See 750 ILCS 50/1(D)(i) (West 1998). In 

enacting this statute, the legislature=s paramount concern was 

to protect children from parents who have harmed other 

children. Thus, it stands to reason that the legislature would 

intend to apply a rebuttable presumption of depravity to those 

adults who have committed a sex offense against a child. 

Significantly, the offense of predatory criminal sexual assault of 

a child, by definition, always involves an unlawful sex act 

between an adult and a child, whereas the conduct prescribed 

under the aggravated criminal sexual assault statute would, in 

most instances, involve an adult defendant and an adult victim. 

Compare 720 ILCS 5/12.14.1(a)(1), (a)(2), (a)(3) (West 1998) 

with 720 ILCS 5/12B14(a), (b), (c) (West 1998). 

Under only one circumstance does the offense of 

aggravated criminal sexual assault exclusively apply to a child, 

and that circumstance occurs when the accused is under the 

age of 17. See 720 ILCS 5/12B14(b)(i), (b)(ii) (West 1998). 

However, it would be absurd for us to conclude that the 

legislature intended to create a presumption of depravity for 

those individuals who fall within that subsection of the 

aggravated criminal sexual assault statute to the exclusion of 

those individuals who committed the offense of predatory 

criminal sexual assault of a child. If that were the case, then 

the legislature intended to create a presumption of depravity for 

a juvenile under the age of 17 who commits aggravated 

criminal sexual assault, i.e., an act of sexual penetration with a 

child under the age of 9 or between the ages of 9 and 12 (720 

ILCS 5/12B14(b)(i), (b)(ii) (West 1998)), but did not intend for 

that presumption to apply to an adult who is 17 years of age or 

older who commits predatory criminal sexual assault of a child,

i.e., an act of sexual penetration with a child under the age of 

13 (720 ILCS 5/12B14.1(a)(1) (West 1998)). Under that 

rationale, a 15-year-old who commits an act of sexual 

penetration with a 12-year-old would be subject to a 
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presumption of depravity under the Adoption Act, while 

respondent, who was over 18 years old when he committed an 

act of sexual penetration against D.B., a five-year-old, would 

escape the presumption. It seems unlikely that the legislature 

would exclude the offense of predatory criminal sexual assault 

of a child from its presumption under the Adoption Act when 

that statute exclusively applies to accused individuals over the 

age of 17, who are more likely to face termination proceedings 

than younger individuals. 

Moreover, a comparison of the aggravated criminal sexual 

assault statute to the predatory criminal sexual assault of a 

child statute reveals that the legislature, by virtue of the 

sentencing scheme imposed for these offenses, deems the 

offense of predatory criminal sexual assault of a child to be 

more severe and, therefore, worthy of a harsher sentence. 

While both crimes require sentencing as a Class X offender, 

the legislature has seen fit to extend the sentence for predatory 

criminal sexual assault of a child, even for first-time offenders, 

to Anot less than 50 years and not more than 60 years@ under 

certain circumstances. Compare 720 ILCS 5/12B14.1(b)(1) 

(West 1998) with 720 ILCS 5/12B14(d)(1) (West 1998). 

In sum, our review of the legislative history leads us to 

conclude that the legislature made an inadvertent drafting error 

in stating that the presumption of depravity applied to the 

offense of aggravated criminal sexual assault. The legislature 

intended for the presumption to apply to the conduct which now 

comprises the offense of predatory criminal sexual assault of a 

child. 

Our opinion in In re Detention of Lieberman, 201 Ill. 2d 300 

(2002), supports this conclusion. In that case, we considered 

whether the legislature intended to include the repealed 

offense of rape in a statute which enumerated offenses that 

were considered Asexually violent offenses,@ but did not 

actually name Arape.@ In 1984, the criminal offense of rape was 

repealed and subsumed within the definitions of several other 

offenses set forth in the Criminal Sexual Assault Act. Several 

years later, in 1998, the legislature passed the Sexually Violent 

Persons Commitment Act (Commitment Act) (725 ILCS 207/1 

et seq. (West 1998)), which allows the State to petition the 
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court for the civil detention of sex offenders beyond the 

imposed period of imprisonment if the State can demonstrate 

that the defendant is a Asexually violent person.@ 725 ILCS 

207/15 (West 1998); Lieberman, 201 Ill. 2d at 309. Certain 

offenses were considered Asexually violent offenses,@ and 

those offenses were enumerated by the legislature through 

reference to a statutory citation. Because the offense of rape 

had been repealed and was no longer in the Criminal Code, it 

was not enumerated as a qualifying Asexually violent offense.@

In Lieberman, the defendant had been convicted of multiple 

rapes prior to the repeal of the statute. The State moved to 

classify him as a sexually violent person and increase his 

period of imprisonment. The defendant argued that his rape 

convictions could not be construed as sexually violent offenses 

under the Commitment Act because the offense of rape was 

not enumerated in the statute. The State, in turn, argued that 

the offense of rape was subsumed within the newly enacted 

sex offenses that were enumerated in the statute, and 

therefore, the defendant was subject to the Commitment Act. In 

construing the statute, we agreed with the State=s position and 

found that the offense of rape was subsumed in the offenses 

enumerated in the Commitment Act, and thus concluded that 

the legislature intended for the crime of rape to constitute a 

sexually violent offense. Lieberman, 201 Ill. 2d at 317-18. 

We also pointed out that the defendant=s proposed 

interpretation of the statute would lead to absurd 

consequences which the legislature did not contemplate in light 

of the fact that it enacted a statute designed to keep citizens 

safe from dangerous sex offenders. Lieberman, 201 Ill. 2d at 

320. Accordingly, we concluded that: 

A[T]he legislature=s omission of the now-repealed 

offense of rape from this definition was purely 

inadvertent and constituted a situation >where a 

legislative intention, otherwise clear, was in part 

mistakenly or inaccurately stated.= [Citation.] >[C]ourts 

must construe the acts to reflect the obvious intent of 

the legislature even if the words of a particular section 

must be read or modified or altered so as to comport 
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with the legislative intent.= [Citations.]@ Lieberman, 201 

Ill. 2d at 320. 

We find in this case, as we did in Lieberman, that the 

legislature=s failure to name the offense of predatory criminal 

sexual assault of a child in the statute was Apurely inadvertent.@

The legislature simply cited to an outdated version of the 

Criminal Code wherein the offense of predatory criminal sexual 

assault of a child was included in the statutory definition of 

aggravated criminal sexual assault. However, the fact that the 

legislature referred to a specific section of that statute, rather 

than the statute as a whole, demonstrates that the legislature 

intended for that specific conduct to trigger the depravity 

presumption. As in Lieberman, the current situation involves 

A >a legislative intention, otherwise clear= @ that was A >in part 

mistakenly or inaccurately stated.= @ Lieberman, 201 Ill. 2d at 

320, quoting Gill v. Miller, 94 Ill. 2d 52, 58 (1983). Accordingly, 

we construe the statute to reflect the A >obvious intent of the 

legislature= @ (Lieberman, 201 Ill. 2d at 320, quoting People ex 

rel. Cason v. Ring, 41 Ill. 2d 305, 313 (1968)) and conclude 

that the presumption applies to respondent, as he was 

convicted of the offense of predatory criminal sexual assault of 

a child prior to the fitness proceeding at issue. 

Respondent argues that, even if the presumption applies 

pursuant to statute, it should not apply to him because his 

conviction for predatory criminal sexual assault of a child was 

wrongful. Respondent maintains that the evidence against him 

was insufficient because the victim recanted, no other evidence 

linked him to the crime, and he never admitted guilt. 

Respondent admits that he is asking us to review the propriety 

of his criminal conviction, even though that cause is not 

squarely before us. We decline to do so. As it stands, 

respondent was convicted of the offense of predatory criminal 

sexual assault of a child in a bench trial. The appellate court 

affirmed the conviction. People v. Gaylord, No. 4B04B0169. 

This court does not, sua sponte, review appellate court 

judgments, and we will not make an exception in this case. 

Accordingly, we conclude that respondent is subject to the 

rebuttable presumption of depravity based on his conviction for 

predatory criminal sexual assault of a child. 
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In light of this holding, we are bound to consider whether 

this matter must be remanded to the trial court for respondent 

to have the opportunity to rebut the depravity presumption. 

Based on our review of the record, we conclude that remand is 

not necessary in this case. The record plainly establishes that 

respondent=s counsel acknowledged that respondent was 

given the opportunity to offer rebuttal evidence, and he did so 

by requesting that the trial court take judicial notice of his 

previous denials and the victim=s recantation in his criminal 

case. 

The question before us, then, is whether the evidence 

presented by respondent was sufficient to refute the State=s 

prima facie case of depravity. In considering this question, we 

are cognizant that the trial court did not apply the depravity 

presumption when determining whether the evidence 

presented at the fitness hearing was sufficient to prove that 

respondent was depraved. Instead, the trial court based its 

finding on the general definition of depravity and the burden 

rested on the State to prove, by clear and convincing evidence, 

that respondent had an Ainherent deficiency of moral sense and 

rectitude.@ However, in applying the presumption, respondent 

now bears the burden of refuting the presumption by clear and 

convincing evidence. 750 ILCS 50/1(D)(i) (West 2002). 

As previously indicated, respondent attempted to refute the 

depravity allegation by offering evidence showing that he 

denied committing the underlying offense. Respondent also 

maintained that the evidence was insufficient to sustain a 

conviction because the victim recanted. However, the trial 

judge, who presided over respondent=s criminal trial, had 

previously concluded that the victim=s recantation came after 

great pressure was applied by her parents, and the victim=s 

recantation testimony was thus deemed incredible by the court. 

Aside from refuting the facts of the criminal conviction, which 

respondent had the opportunity to do, respondent cannot 

present additional evidence that would overcome the depravity 

presumption. Notably, in this regard, the record already 

demonstrates that respondent has not engaged in sex offender 

treatment or any other counseling. The record likewise 

demonstrates that respondent, despite his testimony to the 
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contrary at the fitness hearing, is a repeat sex offender. 

Respondent himself admitted in his criminal trial that he was 

previously convicted for a sex offense, placed on probation, 

and ordered to register as a sex offender for 10 years. 

We acknowledge respondent=s argument that the trial judge 

erred in determining the credibility of the victim=s recantation 

testimony in the criminal trial, and thus erred on the same 

grounds in this cause. However, as we previously stated, the 

trial court=s alleged errors in respondent=s criminal trial are not 

properly before us in this case and we will not consider them. 

We are aware that respondent has filed a petition for leave 

to appeal the appellate court=s judgment in his criminal case, 

which is currently pending. People v. Gaylord, No. 102063 (pet. 

for leave to appeal pending). However, the Adoption Act does 

not call for courts to reserve ruling on findings of unfitness 

which are related to criminal matters until the appellate process 

in the underlying cause has been exhausted. See In re C.M.J., 

278 Ill. App. 3d 885, 891 (1996). Accordingly, we conclude that 

it is unnecessary to remand this matter for further proceedings. 

CONCLUSION 

We affirm the trial court=s finding of unfitness on grounds of 

depravity and find that defendant=s parental rights were 

properly terminated. The judgment of the appellate court is 

reversed. 

Appellate court judgment reversed; 

circuit court judgment affirmed.