concurring in part and dissenting in part:
I concur with the decision to reverse and remand the judgment of the trial court but would do so for a different reason and with a different mandate.
I interpret the majority to concede that proof that a person committed a sufficiently reprehensible felony in a sufficiently reprehensible manner may be the basis for a finding of depravity constituting parental unfitness. A single transaction whereby parents, in exchange for a substantial sum of money, permitted an adult male to take their 12-year-old daughter from Illinois to South Carolina to marry her has been held to be sufficient to support a finding of depravity. (In re Flynn (1974), 22 Ill. App. 3d 994, 318 N.E.2d 105.) Here, as in that case, the respondent’s wrongful act hit at the basis of the family relationship, murdering the mother. The extended sentence of 60 years’ imprisonment which he received could only have been imposed if (1) he had previously been convicted of murder or (2) “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)). The evidence here indicated he had no prior murder conviction. Because of the 60-year sentence, the respondent could not be paroled for 30 years (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 6—3(a)(2)). Thus his wantonly cruel act was shown to have not only deprived the child of his mother but also placed himself in a position of being unable to perform most of his fatherly functions.
In Smith v. Andrews (1964), 54 Ill. App. 2d 51, 63, 203 N.E.2d 160, 166, cert. denied (1966), 382 U.S. 1029, 15 L. Ed. 2d 543, 86 S. Ct. 655, a trial court’s determination of depravity was upheld on review. The appellate court stated that the evidence of surrounding circumstances of the offenses was skimpy but considered the fact that the defendant had offered nothing in mitigation to be significant. In reference to the rape conviction, the court stated, “We think the trial court could properly find that one convicted of that crime is inherently deficient in moral sense and rectitude.” Here, the defendant presented no mitigating circumstances and his recently cruel murder of the child’s mother would evidence an even much greater “deficiency of moral sense and rectitude.” I can not imagine how further evidence of the circumstances of the murder here could negate the inherently depraved nature of the act. While it is said that proof of depravity must be clear and convincing (In re Rich), it has also been said that we should not set aside such a finding unless it is contrary to the manifest weight of the evidence (In re Flynn). Whatever the intermakeup of the foregoing rules, I consider the totality of the matters properly before the trial court to have justified its judgment.
I am concerned, however, with the possibility that the conviction might be upset in the future after the child had been adopted. The traumatic consequences of such an occurrence would be so great that extraordinary steps should be taken in order to mitigate that danger. Accordingly, I would remand with directions that the trial court vacate its grant of power to consent to adoption given DCFS and withhold that power until all avenues of direct appeal of defendant’s conviction and sentence have been exhausted. If, at that time, the conviction and sentence have been upheld, the court should then grant DCFS the power to consent to adoption. If the conviction or the imposition of the extended sentence is reversed, the trial court should then grant a rehearing on the petition that is the subject matter of the appeal. I consider the trial court’s inherent chancery powers to be sufficient to authorize such an order. People ex rel. Ryan v. Sempek (1958), 12 Ill. 2d 581, 147 N.E.2d 295.
I realize that the conviction might be later upset upon collateral attack, but that possibility would be sufficiently remote to make the need of stability in the life of the child a matter of greater concern. I also realize that generally reversal of a conviction does not require a reversal when that conviction is used against the convict in a subsequent proceeding to impeach his testimony (People v. Rey (1969), 42 Ill. 2d 139, 246 N.E.2d 287). There, however, the reversed conviction is at least somewhat collateral to the main issue in the case. Here the conviction is at the very heart of the case.