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 deliver ed the judgment of the court, with opinion.

Chief Justice Thomas and Ju stices Freeman, McMorrow, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.

OPINIONThe 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 A doption 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 5/12

B 14.1(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, Donal d 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 agains t 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 St ate filed a petition for adjudication of wardship allegi ng that Donald was neglected because Miller was not providing adequate food. The record reveals that Donald was hospi talized on December 19, 2003, for dehydration because he was not being fed. On January 20, 2004, a caseworker went to visi t Miller and Donald to check on Donald = s well-being. The caseworkerfound Donald lying in a playpen, looking ill, and sufferi ng 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 fo r 18 hours. The caseworker arranged for Donald to be taken into protective custody. Donald was placed in foster ca re and adjudication proceedings were initiated. Notably, t he record reveals that Donald = s foster parents previously served as foster parents to Donald = s older brother, also the child of re spondent and Miller. The foster parents subsequently adopted Donald = s older brother and intend to adopt Donald.- 3 - Donald was adjudicated neglect ed, and after a period of several months, petitions to terminate both respondent = s and Miller = s parental rights we re filed. Miller = s parental rights were ultimately terminated, and she di d not contest the termination. The petition filed against re spondent 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 se xual assault of a child (750 ILCS 50/1(D)(i) (West 2002)); and he is incarcerated, provided little or no support for Donald pr ior 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 allegat ion of depravity. Accordingly, the facts set forth primarily relate to that allegation. At the fitness hearing, casework er Jacqui Walters from the Department of Children and FamilyServices (DCFS) testified that respondent never contact ed 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 servic e 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 i nquire 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. Re spondent 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 participati ng in parenting classes because none were offered. There wa s no indication that he had initiated sex offender treatm ent. Respondent maintained that- 4 - he did not commit the crime fo r 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 thr oughout the criminal trial and that the victim recanted. The trial judge stated: A I heard the case *** [a]nd I know what the testimony was. @ Defense counsel then asked the judge A to judicially notice t he previous proceedings since

B frankly, since we = re fortunate enough to be in front of the Judge that heard that. @ The court responded:

A I = ll take judicial notice that Mr. Gaylord denied committing the offense; that it was a fairly unique fact situation in that the minorreported the allegations, subsequently recanted the a llegations, 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 resu lt of his conviction for predatory criminal sexual ass ault of a child. The following colloquy ensued as a result of that argument:

A THE 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 ve ry last offense, is aggravated criminal sexual assault. I mean, I may be missing

B maybe 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 create

B those 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. @- 5 - 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 pres umption, but we would suggest that Mr. Gaylord at least ought to have an opportunity to contest whet her he is depraved and, as best he can, has done so by offering testimony today and by the Court judiciallynoticing his previous testimony that essentially he did not participate on any assaultive behavior on the victim. @ In rendering its judgment, the tria l court did not consider the presumption. Instead, the cour t considered whether a single conviction could support a findi ng of depravity as defined by this court: A [D]epravity is > A an 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 A does not prohibit a finding of depravity based on a single criminal conviction. @ The court added: A [a]nd when you consider t he nature of the criminal conviction in relation to the nature of the case we = re here on, I think it does constitute a su fficient basis for a finding of depravity under Subsection (D)(i). A nd 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 A something

more @ than the A mere 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 t he criminal case. 357 Ill. App. 3d at 940. Additionally, the appe llate court recognized that section 1(D)(i) of the Adoption Act had been amended to- 6 - include specific offenses whic h triggered a presumption of depravity. 357 Ill. A pp. 3d at 940. The appellate court noted that predatory criminal sexual assault of a child was not enumerated in the statut e, and thus declined to A assume that the legislature intended to incl ude predatory criminal sexual assault of a child but simply neglected to do so. @ 357 Ill. App. 3d at 940. The appellate court ultimately concluded A that the burden was squarely on the Stat e to provide evidence of respondent = s depravity beyond the mere fa ct 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 evi dence. 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. 4

B 04

B 0169 (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 not ice of the underlying facts of respondent = s criminal conviction dur ing the fitness hearing. Accordingly, we take judicial notice of the Rule 23 order. According to the Rule 23 or der, the evidence presented at respondent = s criminal trial demonstr ated that DCFS was called to investigate a charge of env ironmental neglect against Jason and Tabitha Traylor. The DCFS in vestigator interviewed D.B., Tabitha = s daughter. D.B. was asked if she was afraid of

1 Respondent 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 info rmation was not properly introduced at trial and should not be considered he re. 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.- 7 - 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 inte rviewed D.B. later that day. D.B. described the incident, st ating that respondent put his private part inside her private par t 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 plac ed 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 st atements when testifying at trial. She averred that the DCFS investigat or told her what to say and that respondent never touched her. T he Traylors also testified, on respondent = s behalf, that D.B. rec anted 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 A very good @ friend. Respondent testified at the tr ial. He denied committing the crime for which he was charged. Ho wever, in contrast to his testimony at the fitness heari ng, he admitted that he had previously been convicted of cr iminal 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 credibl e and further found that D.B. = s recantation was the result of pressure from her parents, who

were A very supportive @ of respondent. The trial court further found that it was A obvious @ that D.B. = s parents had A put substantial pressure on this victim. @ The court thus found respondent guilty of pr edatory criminal sexual assault of a child. The appellate court affirmed. People v. Gaylord , No. 4

B 04

B 0169 (January 18, 2006) ( unpublished order under Supreme Court Rule 23). Respondent has since filed a petition for leave to appeal to this cour t on the criminal matter. People v. Gaylord, No. 102063 (pet. for leave to appeal pending).- 8 - With these background facts, we now consider whether the appellate court properly re versed the trial court = s finding of unfitness and its ultimate termination of respondent = s parental rights.

ANALYSIS

Under the Juvenile Court Ac t of 1987, the involuntary termination of parental rights invo lves a two-step process. First, there must be a showing, based on clear and convincing evidence, that the parent is A unfit, @ 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 405/2

B 29(2) (West 2002); In re C.N. , 196 Ill. 2d 181, 209 ( 2001). Although section 1(D) of the Adoption Act se ts forth numerous grounds under which a parent may be deemed A unfit, @ any one ground, properly proven, is suffi cient 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 depr avity. The trial court did not make this finding in reliance on a presumption of depravity. Rather, the trial court conc luded, based on the evidence of respondent = s criminal conviction, that the State met its burden of proving by clear and conv incing evidence that respondent was depraved, in that he had an A inherent 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 crim inal sexual assault of a child was insufficient, by it self, to support a finding of depravity. The State a sserts that the appellate court erred in concluding that the State failed to meet its burden. According to the State, the fa ct that respondent was convicted of the offense of predatory cr iminal sexual assault of a child triggers a rebuttable presumption of depr avity which can only be overcome if respondent shows, by clear and convincing evidence, that he is not depraved.- 9 - Respondent asserts that t he 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 cr iminal sexual assault of a child to trigger the presumpti on, it would have listed that offense in the statute. Section 1(D)(i) of the Adoption Act provides in relevant part:

A D. > Unfit person = means any person whom the court shall find to be unfit to hav e 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. Convic tion of any one of the following crimes shall creat e a presumption that a parent is depraved which can be overcome only by clear and convincing evidence: (1) first degree murder in violation of par agraph 1 or 2 of subsection (a) of Section 9

B 1 of the Criminal Code of 1961 or conviction of second degree mu rder in violation of subsection (a) of Section 9

B 2 of the Criminal Code of 1961 of a parent of the child to be adopted; (2) first degree murder or se cond 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, solicit ation to commit murder of any child for hire, or solic itation 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 12

B 14(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 constr uction is to ascertain and give effect to the intent of the legislature. People v. Ward , 215 Ill. 2d- 10 - 317, 324 (2005). The best evidence of legislative intent is the language of the statut e, and when possible, the court should interpret the language of a statut e 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 st atute are viewed as a whole. In re Detention of Lieberman , 201 Ill. 2d 300, 308 (2002).

A Legislative intent can be ascert ained from a consideration of the entire Act, its nature, its object and the consequences that would result from construi ng 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 stat ute if that language produces absurd or unjust results not contemplated by the legislature. D.F. , 208 Ill. 2d at 230. I ssues 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 off ense enumerated in the statute. However, the State nevertheless maintains that the legislature intended to create a rebuttable pr esumption 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 legi slature cited to section 12

B 14(b)(1) of the Criminal Code. As the St ate correctly notes, in 1998, at the time of the enactment of sect ion 1(D)(i) of the Adoption Act, section 12

B 14(b)(1) of the Criminal C ode did not exist. In fact, the last time section 12

B 14(b)(1) appeared in the Criminal Code was 1994. In 1994, section 12

B 14(b) of the Crimi nal Code stated, in relevant part:

A (b) The accused commits aggravated criminal sexual assault if: (1) the accused was 17 y ears 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 under17 years of age and (i) commits an act of sexual penetration with a victim who- 11 - was under 9 years of age w hen the act was committed; or (ii) commits an act of se xual 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 5/12

B 14(b)(1), (b)(2) (West 1994). After 1994, the aggravated crimi nal sexual assault statute was divided. The conduct pr oscribed in section 12

B 14(b)(2), quoted above, became part of a new aggravated criminal sexual assault statute whic h was codified under sections 12

B 14(a), (b) and (c) of the Cr iminal Code. See 720 ILCS 5/12

B 14(a), (b), (c) (West 1998). The conduct set forth in section 12

B 14(b)(1) was named A predatory criminal sexual assault of a child @ and became section 12

B 14.1(a)(1) of the Criminal Code (720 ILCS 5/12

B 14.1(a)(1) (West 1998)). Section 12

B 14.1 now provides in relevant part:

A (a) The accused commits predatory criminal sexual assault of a child if: (1) the accused was 17 y ears 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 5/12

B 14.1(a)(1) (West 1998). Language contained in the current predatory criminal sexual assault of a child statute is i dentical to the language set forth in section 12

B 14(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 A the accused was 17 years of age or over and commits an act of sexual penetration with a victim who wa s under 13 years of age when the act was committed. @ The State argues t hat no other construction of section 1(D)(i)(5) of the Adoption Ac t is sensible, and we agree. Reading section 1(D)(i) as a whole, it becomes readily apparent that the legislature in tended for the presumption of depravity to apply, in most in stances, to those adults who- 12 - committed crimes against childr en. Indeed, the legislature created a presumption of deprav ity 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 IL CS 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 r eason that the legislature would intend to apply a rebuttable pres umption of depravity to those adults who have committed a sex offense against a child. Significantly, the offense of predat ory 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 adul t defendant and an adult victim. Compare 720 ILCS 5/12.14.1(a)(1 ), (a)(2), (a)(3) (West 1998) with 720 ILCS 5/12

B 14(a), (b), (c) (West 1998). Under only one circumstanc e does the offense of aggravated criminal sexual assaul t exclusively apply to a child, and that circumstance occurs when the accused is under the age of 17. See 720 ILCS 5/12

B 14(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 withi n that subsection of the aggravated criminal sexual assaul t statute to the exclusion of those individuals who committ ed the offense of predatory criminal sexual assault of a ch ild. 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 betw een the ages of 9 and 12 (720 ILCS 5/12

B 14(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 crimi nal sexual assault of a child, i.e. , an act of sexual penetration with a child under the age of 13 (720 ILCS 5/12

B 14.1(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- 13 - presumption of depravity underthe 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 predat ory criminal sexual assault of a child from its presumpt ion 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 t he 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 sex ual assault of a child to be more severe and, therefore, wo rthy of a harsher sentence. While both crimes require s entencing 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 A not less than 50 years and not more than 60 years @ under certain circumstances. Compare 720 ILCS 5/12

B 14.1(b)(1) (West 1998) with 720 ILCS 5/12

B 14(d)(1) (West 1998). In sum, our review of the l egislative history leads us to conclude that the legislature m ade an inadvertent drafting error in stating that the presumpt ion of depravity applied to the offense of aggravated criminal se xual 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 in tended to include the repealed offense of rape in a statute which enumerat ed offenses that were considered A sexually violent offenses, @ but did not actually name A rape. @ In 1984, the criminal offense of rape was repealed and subsumed within the def initions of several other offenses set forth in the Crimi nal 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- 14 - court for the civil detenti on of sex offenders beyond the imposed period of imprisonment if the State can demonstrate that the defendant is a A sexually violent person. @ 725 ILCS 207/15 (West 1998); Lieberman , 201 Ill. 2d at 309. Certain offenses were considered A sexually 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 A sexually violent offense. @

In Lieberman , the defendant had been convicted of multiple rapes prior to the repeal of t he statute. The State moved to classify him as a sexually violent person and increase his period of imprisonment. The def endant argued that his rape convictions could not be construed as sexually violent offenses under the Commitment Act becaus e the offense of rape was not enumerated in the st atute. The State, in turn, argued that the offense of rape was subs umed within the newly enacted sex offenses that were enum erated in the statute, and therefore, the defendant was subj ect 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 cr ime 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 stat ute would lead to absurd consequences which the legislature did not contemplate in light of the fact that it enacted a statute desig ned 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 th is definition was purely inadvertent and constituted a situation > where a legislative intention, ot herwise clear, was in part mistakenly or inaccurately stated. = [Citation.] > [C]ourts must construe the acts to re flect the obvious intent of the legislature even if the wo rds of a particular section must be read or modified or altered so as to comport- 15 - 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 off ense of predatory criminal sexual assault of a ch ild in the statute was A purely inadvertent. @ The legislature simply cited to an outdated version of the Criminal Code wherein the offens e of predatory criminal sexual assault of a child was included in the statutory definition of aggravated criminal sexual assaul t. However, the fact that the legislature referred to a specific section of that statute, rather than the statute as a whole, demonstrates t hat the legislature intended for that specific c onduct 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 applie s to respondent, as he was convicted of the offense of predat ory 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 shoul d not apply to him because his conviction for predatory criminal sexual assault of a child was wrongful. Respondent maintains t hat 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 decli ne to do so. As it stands, respondent was convicted of the o ffense of predatory criminal sexual assault of a child in a bench trial. The appellate court affirmed the conviction. People v. Gaylord , No. 4

B 04

B 0169. 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.- 16 - 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 r ebuttal evidence, and he did so by requesting that the trial cour t 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 suffi cient 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 determini ng whether the evidence presented at the fit ness 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, byclear and convincing evidence, that respondent had an A inherent deficiency of moral sense and rectitude. @ However, in applying t he presumption, respondent now bears the burden of refuting t he presumption by clear and convincing evidence. 750 ILCS 50/1(D)(i) (West 2002). As previously indicated, res pondent attempted to refute the depravity allegation by offering evidence showing that he denied committing the underlying offense. Respondent also maintained that the evidence wa s insufficient to sustain a conviction because the victim re canted. However, the trial judge, who presided over respondent = s criminal trial, had previously concl uded that the victim = s recantation came after great pressure was applied byher 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 couns eling. The record likewise demonstrates that respondent, des pite his testimony to the- 17 - contrary at the fitness heari ng, is a repeat sex offender. Respondent himself admitted in hi s 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 tria l, 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. Peopl e v. Gaylord, No. 102063 (pet. for leave to appeal pending). However, the Adoption Act does not call for courts to reserv e 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). A ccordingly, 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.