THIRD DIVISION
March 5, 2003

Following a hearing, the circuit court found respondent,Eddie C. Sr., to be an unfit parent to his children, Eddie C. andDarryl C., based on his repeated incarceration as a result ofcriminal convictions, which prevented the discharge of hisparental duties. 750 ILCS 50/1(D)(s) (West 1998). The court granted the State's motion for summary judgment on this issue. At a subsequent hearing, the court held it was in the bestinterest of the minors to terminate respondent's parental rights.

Respondent contends on appeal: (1) the trial court erred ingranting summary judgment for the State because there was agenuine issue of material fact; (2) the trial court erred inallowing the State to amend its petition to include an allegationthat would apply retroactively to respondent; and (3) the court'sdecision to terminate his parental rights was against themanifest weight of the evidence. We affirm.

FACTS

Eddie was born on March 18, 1988; Darryl was born on June17, 1989.⁽¹⁾ A finding of neglect was entered for both children onSeptember 12, 1990. Respondent and the children's mother, ZinaC., who is not a party to this appeal, were found unable, forsome reason other than financial circumstances alone, andunwilling, to care for, protect, train, or discipline the boys.On December 18, 1990, the children were adjudicated wards of thecourt and placed under the guardianship of the Department ofChildren and Family Services (DCFS).

The State filed petitions on September 18, 1998, fortermination of parental rights and appointment of a guardian withright to consent to adoption. The petitions alleged respondentwas an unfit parent because he abandoned the children; failed tomaintain a reasonable degree of interest, concern orresponsibility as to their welfare; failed to protect them fromconditions in the environment injurious to the children'swelfare; behaved in a depraved manner; failed to make reasonableefforts to correct the conditions which were the basis of removalof the children or to make reasonable progress toward the returnof the children within nine months of the adjudication ofneglect; and evidenced intent to forego his parental rights asmanifested by his failure for 12 months to visit the children,communicate with them or their agency, and to maintain contactwith them or plan for their future, in violation of subsections50/1(D)(a, b, g, i, m, and n) of the Adoption Act and section 2-29 of the Juvenile Court Act. 750 ILCS 50/1(D)(a), (b), (g),(i), (m), (n) (West 1998); 705 ILCS 405/2-29 (West 1998).

The State filed a motion to amend its petition on June 2,2000, seeking to include two additional allegations. Undersubsection 1(D)(r) of the Adoption Act, the State allegedrespondent was incarcerated as a result of criminal conviction atthe time the petition was filed, prior to incarceration he hadlittle or no contact with the children and provided little or nosupport for them, and his incarceration would prevent him fromdischarging his parental responsibilities for more than two yearsafter filing of the petition. 750 ILCS 50/1(D)(r) (West 1998);705 ILCS 405/2-29 (West 1998). The State also alleged undersubsection 1(D)(s), respondent was incarcerated at the time offiling of the petition, has been repeatedly incarcerated as aresult of criminal convictions, and his repeated incarcerationhas prevented him from discharging his parental responsibilitiesfor the children. 750 ILCS 50/1(D)(s) (West 1998); 705 ILCS405/2-29 (West 1998).

The State also filed a motion for summary judgment on June6, 2000, contending no genuine issue of material fact exists,that the court should find respondent unfit as a matter of law. The State attached certified copies of respondent's threecriminal convictions--possessing a stolen motor vehicle in 1994,burglary in 1993, and battery in 1989. Respondent was sentencedto three years, twelve years, and 250 days, respectively, forthese convictions. The three-year and twelve-year sentences wereto be served concurrently. The motion alleged respondent wascurrently incarcerated and was not scheduled for release untilSeptember 9, 2002.

Respondent filed a motion to strike the affidavits attachedto the summary judgment motion, contending they were not based onthe affiants' personal knowledge, but on information and belief. Respondent also filed a motion for involuntary dismissal undersection 2-619(9) of the Illinois Code of Civil Procedure (735ILCS 5/2-619(9) (West 2000)), contending the additional groundsof unfitness alleged by the State under subsections 1(D)(r) and1(D)(s) became effective July 30, 1998,⁽²⁾ and could not be appliedretroactively to respondent.

On July 17, 2000, the court held a hearing on the State'smotion to amend the petition for termination of parental rightsand motion for summary judgment. After hearing testimony fromMary Witherspoon, the children's foster parent, and MoneseDeRamus, the children's caseworker, the court denied respondent'smotion to strike the affidavits.⁽³⁾ The court also allowed theState's motion to amend the petition for termination of parentalrights to include the additional allegations.

On August 7, 2000, respondent filed a response to thesummary judgment motion, contending he repeatedly soughtvisitation with his children, attempted to maintain contact andplan for his children's future, and never had the requisiteintent to abandon his children or forego his parental rights. Respondent also contended the State's motion failed to establishhe had been incarcerated more than once for a criminalconviction. Respondent attached a personal affidavit, contendingsince his incarceration in 1994 he had been unable to visit hischildren except on court dates. He had repeatedly soughtvisitation with the children by asking the foster mother and DCFSworkers and seeking court orders, but he was denied allvisitation. Finally, since his incarceration he had attempted tomaintain contact with and plan for his children's future throughwritten and verbal communication with their mother, fostermother, and DCFS workers. Before his incarceration, he providedfor the support of the children and had frequent contact withthem.

On September 19, 2000, after hearing arguments from allsides, the court granted summary judgment for the State on one ofthe added grounds. The court found by clear and convincingevidence respondent was unfit based on subsection 1(D)(s),because his repeated incarceration as a result of criminalconvictions prevented him from discharging his parentalresponsibilities. 750 ILCS 50/1(D)(s) (West 1998); 705 ILCS405/2-29 (West 1998). The court denied summary judgment on theother grounds in the State's petition.

On December 12, 2000, the State elected not to proceed onany of the additional allegations of unfitness againstrespondent. At the best interest hearing, Thetis Cromie, apsychotherapist, testified she had been counseling the childrensince May of 1997. They were referred to her for anxiety andbehavioral problems as a result of past neglect and abuse. Theboys' problems at the time of referral included bed-wetting,problems focusing and concentrating, and behavioral disturbances. The boys both expressed strong anxiety and fear regardingvisiting respondent. Since her assignment to the case, the boyshad not visited respondent nor requested visits with him. Cromietestified the boys were attached to their foster parents andexpressed a desire to remain with them until adulthood. InCromie's opinion, the children's placement with the fosterparents was a nurturing and protective environment, and it wouldbe traumatic for them to be removed from that placement. Shesaid Darryl supported the idea of terminating his father's rightsbecause he was afraid of him and did not want to visit him. Eddie did not want his father's rights terminated but did notgive a reason.

DeRamus testified she had been assigned as the children'scaseworker since October 1997. To her knowledge, their lastvisit with respondent was in April 1995 at the Cook County Jail. Since then, no visits had taken place because the children didnot wish to visit respondent. Respondent had no contact with thechildren by phone or mail. Respondent had sporadically sentletters to the foster parents but was ordered to stop by thecourt because the letters were inappropriate. The children hadbeen in their current foster home since April 1991. DeRamustestified the home was safe and appropriate.

Beverly Gordon, a DCFS employee, testified she was assignedto the family's case from 1995 until September 1998. On February25, 1998, she conducted a visit between respondent and twosiblings of Eddie and Darryl. Respondent was verbally abusivetoward Gordon and threatened her in front of the children. Gordon testified she and the children were frightened byrespondent.

DCFS employee Chris Cunningham testified he had beenassigned to the family's case since September 1998. He said heoffered respondent services in 1998, but respondent was notinterested. Since that time, respondent had not been offeredservices or provided any verification that he had receivedtherapy.

Witherspoon testified she had been the children's fosterparent since April of 1991. Between 1991 and 1994, beforerespondent was incarcerated, he had infrequent visits with thechildren. Both the children's mother and respondent were presentfor most of the visits. After one visit with respondent alone,Darryl was hysterical and crying. Eddie told her respondent hadslapped Darryl when he would not stop crying. In April 1995, thechildren visited respondent in jail. After that visit,Witherspoon said they were traumatized and started bed-wetting. They were prescribed medication and received counseling.

Witherspoon testified respondent sent her six or sevenletters. The letters made her uncomfortable because they weretoo personal to send to a married person. In one letter,respondent requested that she visit him in prison to see what her"mind set" was toward the children. Witherspoon testified it washer desire to raise Eddie and Darryl to adulthood, and herhusband agreed. She did not want to adopt the boys or becometheir guardian because she did not want to deal with anyhostility from respondent.

Respondent testified he thought the Witherspoons had done anoutstanding job raising the children. He would not object tothem adopting the children. He denied ever slapping Darrylduring a visit. He also denied threatening Gordon during thevisit at the jail. He said he attempted to call Cunninghamseveral times to discuss a service plan but was not able to reachhim. Respondent also attempted to call DeRamus several times toarrange visitation. Respondent said he did not want the boys tobe forced to come to jail for visits. He loves the boys, and hewould want to visit them when he is released if they desire tosee him.

On cross-examination, respondent testified his release datefrom prison had been extended from the beginning of 2001 until2002 because he had received disciplinary tickets. Since hisincarceration, he received an average of two tickets each year. One of the tickets was for contact with an officer when he jumpedout of a chair during a dental visit. Other tickets were forintimidation or delay in going to work. Respondent testified thebattery for which he was convicted in 1989 was against hisdaughter, but he said he was "guilty by association" because ittook place in his house.

The court then found it was in the best interest of thechildren to terminate respondent's parental rights. The judgesaid respondent by his incarceration had absented himself from asignificant portion of his sons' lives. His criminal historyincluded a conviction for battery to a child. By the time of hisscheduled release, his sons would be 13 and 14 years old. Respondent's conduct while in custody had not shown he waswilling to change his behavior in order to have his childrenreturned to him. In addition, there was consistent testimonyregarding the fear the boys felt toward their father and theirunwillingness to visit him.

DECISION

I. SUMMARY JUDGMENT

Respondent first contends the court erred in granting theState's motion for summary judgment because this case presentsgenuine issues of fact. Juvenile court proceedings based onallegations of abuse or neglect are civil in nature; parties insuch juvenile cases may move for summary judgment in their favor. In re S.W., 315 Ill. App. 3d 1153, 1157, 735 N.E.2d 706 (2000). Summary judgment is a drastic measure and should be granted onlywhere the pleadings, depositions, and affidavits show there is nogenuine issue of material fact and the moving party is entitledto judgment as a matter of law. First of America Trust Co. v.First Illini Bancorp., Inc., 289 Ill. App. 3d 276, 283, 685N.E.2d 351 (1997). We conduct a de novo review of the trialcourt's decision to grant summary judgment.

A parent's rights may be terminated only upon proof, byclear and convincing evidence, that the parent is unfit. In reAdoption of Syck, 138 Ill. 2d 255, 274-75, 562 N.E.2d 174 (1990). This determination must be made prior to a consideration of thechild's best interest. Syck, 138 Ill. 2d at 273-74. The Statemust establish the existence of at least one statutory ground ofunfitness, as defined in section 1(D) of the Adoption Act (750ILCS 50/1 (West 1998)). In re D.D., 196 Ill. 2d 405, 417, 752N.E.2d 1112 (2001). A court's determination of parentalunfitness will not be disturbed on review unless it is againstthe manifest weight of the evidence. In re D.D., 196 Ill. 2d at417. A decision is against the manifest weight of the evidencewhere the opposite conclusion is clearly the proper result. Inre D.D., 196 Ill. 2d at 417.

Respondent relies on his affidavit in support of hisresponse to the motion for summary judgment. In his affidavit,respondent contended he had a relationship with his childrenbefore his incarceration. He said he maintained contact anddischarged his parental responsibilities through the children'smother, foster mother, and caseworkers. Respondent contendsthese assertions present genuine issues of fact precludingsummary judgment. He also contends the State failed to establishhis repeated and continuous incarceration prevented him fromdischarging his parental responsibilities.

The court granted summary judgment to the State on theground of unfitness established in subsection 1(D)(s) of theAdoption Act, which provides a parent is unfit where:

"[t]he child is in the temporary custody orguardianship of [DCFS], the parent is incarcerated atthe time the petition or motion for termination ofparental rights is filed, the parent has beenrepeatedly incarcerated as a result of criminalconvictions, and the parent's repeated incarcerationhas prevented the parent from discharging his or herparental responsibilities for the child." 750 ILCS50/1(D)(s) (West 1998).

In support of its summary judgment motion, the Stateattached an affidavit from Witherspoon, the foster mother. Witherspoon said respondent had not visited the children since1993. Specifically within the period of June to September of1998 and within the last 12 months, respondent had no contact orvisits with the children. The State also attached certifiedstatements of respondent's three convictions and the affidavit ofDebra Berry, the record office supervisor at the JolietCorrectional Center. Berry affirmed the correctness of theattached copy of respondent's inmate movement history inquiryprintout from the Offender Tracking System. According to herrecords, respondent was scheduled to be released on September 9,2002. The statements of conviction show respondent had beenincarcerated since 1994 and was incarcerated when the petition toterminate parental rights was filed in 1998.

The trial court found the motion for summary judgment andattachments established grounds for unfitness under subsection1(D)(s). In this case, there was no genuine issue of materialfact as to respondent's unfitness under the statute. Respondent's bald assertions in his affidavit that he maintainedcontact with the children and discharged his parentalresponsibilities through the mother, foster mother, andcaseworkers are factually unsupported and insufficient toovercome summary judgment. Respondent has not articulated anyfacts to show when or how he discharged his responsibilities. Asthe trial judge correctly asserted, respondent had beenincarcerated for the majority of his sons' lives and was unableto provide a stable home or provide them with discipline, love,bonding, or closeness. This shows that respondent's repeatedincarceration prevented him from discharging his parentalresponsibilities.

In In re M.P., 324 Ill. App. 3d 686, 693-94, 755 N.E.2d 1063(2001), the court held repeated incarceration alone is enough foran indication of unfitness pursuant to subsection 1(D)(s). Afinding of unfitness is warranted where the repeatedincarceration has prevented the parent from providing the minorswith the necessary emotional and financial support and stabilityrequired of a parent. In re M.P., 324 Ill. App. 3d at 693. Seealso In re M.M.J., 313 Ill. App. 3d 352, 355, 728 N.E.2d 1237(2000) ("Being a parent involves more than attending a few visitsand sending an occasional gift to the child. The child needs apositive, caring role model present in her life. This ground forunfitness [repeated incarceration] may be utilized regardless ofrespondent father's efforts, compliance with DCFS tasks andsatisfactory attainment of goals, or the amount of interest hehas shown in his daughter's welfare").

In his response to the motion for summary judgment,respondent argued the State had not proven he had beenincarcerated as a result of more than one conviction. Althoughhe has not re-asserted this argument on appeal, we will addressit. Respondent's argument is factually inaccurate. Although hewas sentenced only to time served in his 1989 conviction forbattery, reduced from an aggravated battery, he still wasincarcerated as a result of his conviction. Similarly, hisconcurrent sentences of three years and twelve years were for twoseparate convictions--possession of a stolen motor vehicle andburglary. Nevertheless, only one incarceration is necessary fora finding of unfitness under subsection 1(D)(s) if the courtfinds the parent was prevented from discharging hisresponsibilities. In re D.D., 196 Ill. 2d at 420-22. In In reD.D., the court held by the legislature's use of the term"repeated incarceration," rather than the plural"incarcerations," courts may consider the overall impact of theparent's incarceration, such as the diminished capacity toprovide financial, physical, and emotional support for the child. 196 Ill. 2d at 421.

Here, the evidence established the boys were in thetemporary custody and guardianship of DCFS, respondent wasincarcerated at the time the petition for termination of parentalrights was filed, and respondent had been repeatedly incarceratedas a result of criminal convictions. The finding of parentalunfitness was not against the manifest weight of the evidence.

II. RETROACTIVITY

Respondent next contends the trial court erred in allowingthe State to amend its petition for termination of parentalrights to include an allegation under subsection 1(D)(s) of theAdoption Act. Although respondent in his motion for involuntarydismissal contended the statute was amended on July 30, 1998,subsection 1(D)(s) actually became effective January 1, 1998, byPublic Act 90-28. See In re D.D., 196 Ill. 2d at 418; In reM.P., 324 Ill. App. 3d 692. Respondent contends the State maynot apply this subsection retroactively to him because theState's petition to terminate parental rights was based onactions he took prior to the passage of subsection 1(D)(s). Healso contends the retroactive application of the statute violatesdue process by interfering with his vested right to custody ofhis children.

A reviewing court should apply the law as it exists at thetime of appeal unless doing so would interfere with a vestedright. First of America Trust Co. v. Armstead, 171 Ill. 2d 282,290, 664 N.E.2d 36 (1996). A vested right is a right that isprotected from legislative interference by the due process clauseof the Illinois Constitution. In re S.W., 315 Ill. App. 3d at1156.

This court has made clear that a parent's right or interestin his or her child is not an absolute vested right. In re T.Y.& T.Y., 334 Ill. App. 3d 894, 907-08, 778 N.E.2d 1212 (2002); Inthe Interest of J.B. & T.B., 328 Ill. App. 3d 175, 184, 765N.E.2d 1093 (2002); In re S.W., 315 Ill. App. 3d 1153, 1156, 735N.E.2d 706 (2000); In re Sheltanya S., 309 Ill. App. 3d 941, 950,723 N.E.2d 744 (1999); In re Ladewig, 34 Ill. App. 3d 393, 398,340 N.E.2d 150 (1975).

In In re S.W., the respondent father contended that becausesection 1(D)(i) of the Adoption Act was added to the statuteafter the State filed a petition to terminate parental rights,the section did not apply to him and interfered with his vestedright to a relationship with his child. In re S.W., 315 Ill.App. 3d at 1156. This court held section 1(D) is a list of thestatutory grounds that will support a finding of unfitness; it isnot a list of parental rights. The legislature has an "ongoingright" to amend a statute to include rebuttable presumptionswhich may be applied retroactively. The court applied thestatute, therefore, because a parent's right or interest in hischild does not amount to an absolute, vested right. In re S.W.,315 Ill. App. 3d at 1156-57. See also In re T.Y. & T.Y., 334Ill. App. 3d at 907-08 (trial court was correct in applyingsection 1(D)(m) retroactively to respondents because no vestedright of parents was affected); In the Interest of J.B., 328 Ill.App. 3d at 185-86 (because respondent's interest in raising herchildren was not a vested right, court applied section 1(D)(q)retroactively to respondent).

Respondent's contention that retroactive application ofsection 1(D)(s) interferes with his vested right in his childrenclearly must fail under Illinois law.

III. TERMINATION OF PARENTAL RIGHTS

Finally, respondent appeals from the court's termination ofhis parental rights. Once the trial court finds a parent isunfit, it proceeds to conduct a hearing to determine whethertermination of parental rights is in the best interests of thechild. In re M.A., 325 Ill. App. 3d 387, 390, 757 N.E.2d 613(2001). The decision to terminate parental rights will not bedisturbed absent an abuse of the trial court's discretion. In reSheltanya S., 309 Ill. App. 3d at 955.

In this case, the evidence at the best interest hearingestablished that the children have been living with the samefoster parents since 1991. They are attached to their fosterparents and have expressed a desire to remain with them untiladulthood. The children's counselor, Cromie, testified the homeprovided a nurturing and protective environment for the children,and it would be traumatic for them to be removed from thatplacement. Several witnesses testified the children do not wishto visit their father and are afraid of their father.

Respondent contends the decision to terminate parentalrights was in error because the foster parent does not wish toadopt the children. The foster mother testified she has decidedshe does not want to adopt the children because she fearsrespondent's hostility toward her. However, she would like toraise the children until adulthood. This court held in In reB.S., 317 Ill. App. 3d 650, 665, 740 N.E.2d 404 (2000), that thecurrent availability of an adoptive home is one of theconsiderations when deciding whether termination of a parent'srights is in the best interests of a child, but it is not theonly one. The trial court must decide which is the betteralternative. Here, as in In re B.S., the court found the betteralternative was to "give the children a chance for somepermanency in their lives, even if that meant they were notadopted, but continued to have a secure and stable homeenvironment with the foster family they had been with for someyears." In re B.S., 317 Ill. App. 3d at 665.

Respondent also contends termination was inappropriatebecause he was an important part of the children's lives beforehe was incarcerated and attempted to maintain contact with themduring his incarceration. The evidence at the best interesthearing suggested otherwise. The evidence showed respondentvisited the children only sporadically before his incarceration. He has not visited the children since 1995, and the children arein fear of him and do not wish to visit him.

The court's decision to terminate respondent's parentalrights was not an abuse of discretion.

CONCLUSION

We affirm the trial court's decision. The court did not errin granting summary judgment for the state where theuncontradicted evidence supported a finding of respondent'sunfitness under section 1(D)(s) of the Adoption Act. There wasno improper retroactive application of the statute to respondentbecause his right to custody of his children is not a vestedright. Finally, the court did not abuse its discretion interminating respondent's parental rights because the evidence atthe hearing established termination was in the best interests ofthe children.

Affirmed.

SOUTH, P.J., and HALL, J., concur.

1. Dates of birth are taken from the State's petitions foradjudication of wardship. The minors' birthdays are alternately stated in the record as August 18, 1988 for Eddie, and June 2,1989, for Darryl.

2. A parent's repeated conviction and incarceration was addedto the definition of "unfit person" in section 1(D) of theAdoption Act by Public Act 90-28, effective January 1, 1998. SeeIn re D.D., 196 Ill. 2d 405, 418, 752 N.E.2d 1112 (2001); In reM.P., 324 Ill. App. 3d 686, 692, 755 N.E.2d 1063 (2001).

3. DeRamus' affidavit related to the children's natural motherand is not relevant to respondent's case.