No. 2--03--1360

Respondent, Lisa Z., appeals a series of orders of the circuit court of McHenry Countydeclaring her an unfit parent and determining that it was in the best interests of her child, Amanda D., that her parental rights be terminated. The sole basis of the finding of unfitness was that respondentwas previously convicted of aggravated battery of a child, as specified in section 1(D)(q) of theAdoption Act (Act) (750 ILCS 50/1(D)(q) (West 2002)). Because we hold section 1(D)(q) of theAct unconstitutional, we reverse the finding of unfitness and vacate the trial court's order terminatingrespondent's parental rights, as it was not preceded by a valid finding of unfitness (see In re J.W., 187Ill. App. 3d 988, 999 (1989) ("A finding of unfitness is a prerequisite to addressing the question ofthe child's best interest")). We remand this cause for further proceedings consistent with the viewsexpressed herein.

BACKGROUND

On March 17, 1997, respondent pleaded guilty to a charge of aggravated battery (720 ILCS5/12--4(a) (West 1996)). The victim of the battery was one of respondent's daughters, who is notinvolved in the instant case. According to the indictment in that case, respondent "knowingly causedgreat bodily harm to [her daughter], in that she fractured her arm."

On December 3, 2000, Amanda was born. The State filed a petition for adjudication ofwardship on September 3, 2002, alleging, inter alia, that Amanda was abused and neglected becauserespondent left the child with respondent's paramour for two days while she went to Chicago to usedrugs; she used crack cocaine in front of Amanda; she suffered from depression and was not takingher prescribed medications on a regular basis; and she had yet to complete a recommended substanceabuse program. On December 26, 2002, the trial court found that the State had proven theallegations set forth in the petition.

On January 30, 2003, the State filed a petition for termination of parental rights. The soleallegation regarding respondent's unfitness to be a parent was that respondent previously had beenconvicted of aggravated battery to a child. On the same date, the State moved for summary judgmentand attached to the motion a certified copy of respondent's conviction. The trial court granted themotion on February 25, 2003. Subsequently, a best-interests hearing was held, and, on November25, 2003, the trial court terminated respondent's parental rights. Respondent now appeals.

ANALYSIS

Respondent raises a number of issues on appeal, attacking section 1(D)(q) of the Act (750ILCS 50/1(D)(q) (West 2002)), as well as certain aspects of the proceedings and the trial court'sultimate decision. As to section 1(D)(q), she argues that it violates the due process and equalprotection guarantees of both the state and federal constitutions. U.S. Const., amend. XIV; Ill.Const. 1970, art. I,