dissenting:
I respectfully but strongly dissent. I would affirm the trial court. In asserting that respondent’s “mere” predatory-criminal-sexual-assault conviction did not create a presumption of depravity, the majority ignores the clear intent of the legislature and the Illinois courts’ interpretation of depravity.
As the majority correctly points out, under section l(D)(i) of the Act, a parent is presumed to be depraved if he or she committed aggravated criminal sexual assault in violation of section 12 — 14(b)(1) of the Code. However, under the Code, section 12 — 14(b)(1) no longer exists. To correctly interpret the statute in question and determine what kind of sexual-assault offenses create a presumption of depravity, this court must examine the history and the intent of the legislature behind the statute.
The statute for aggravated criminal sexual assault formerly included two crimes, (1) our now predatory criminal sexual assault and (2) our now aggravated criminal sexual assault. See 720 ILCS 5/12 — 14(b) (West 1994). Former section 12 — 14(b)(1) of the Code, as late as 1994, stated as follows:
“(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 5/12 — 14(b)(1) (West 1994).
This language now defines predatory criminal sexual assault (720 ILCS 5/12 — 14.1(a)(1) (West 2002)). Section 12 — 14(b)(2) (720 ILCS 5/12 — 14(b)(2) (West 1994)) was actually what is now our aggravated criminal sexual assault (720 ILCS 5/12 — 14(b) (West 2002)), that is:
“(2) the accused was under 17 years of age and (i) commits an act of sexual penetration with a victim who 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 5/12 — 14(b)(2) (West 1994).
The above statutes clearly establish that the Act’s presumption of depravity in section 12 — 14(b)(1) was based on the 1994 version of the Code and referred to the offense of predatory criminal sexual assault, which was formerly called aggravated criminal sexual assault. Section 12 — 14(b)(1) no longer exists in the Code, only subsection (b) exists, which is now aggravated criminal sexual assault, the former section 12 — 14(b)(2). Clearly, the legislature intended that respondent’s predatory-criminal-sexual-assault conviction create a presumption of depravity under the Act. Moreover, it is difficult to believe that the legislature intended to draw a distinction between these two Class X felonies, particularly where predatory criminal sexual assault carries, in certain circumstances, a mandatory 50-year sentence. 720 ILCS 5/12 — 14.1(b) (West 2002).
Further, respondent is depraved regardless of whether the presumption of depravity applies. As the majority stated, Illinois courts define depravity as “ ‘ “an inherent deficiency of moral sense and rectitude.” ’ ” 357 Ill. App. 3d at 939, quoting Abdullah, 85 Ill. 2d at 305, 423 N.E.2d at 917, quoting Stalder, 412 Ill. at 498, 107 N.E.2d at 701. In the instant case, respondent was convicted of a Class X sexual assault of a child and is serving a 20-year sentence. The trial judge took judicial notice of the evidence presented in that case, as the following discussion demonstrates:
“THE COURT: I heard the case.
MR. McINTIRE [(respondent’s attorney)]: Right.
THE COURT: And I know what the testimony was. But for record purposes what does it matter what [respondent] testified to?
MR. McINTIRE: Judge, I’m merely trying to establish as best I can that — notwithstanding his conviction, that [respondent] is not depraved or not necessarily depraved based on—
THE COURT: Well, I guess the problem I’ve got is the conviction is for predatory criminal sexual assault, and the offense for which the rebuttable presumption of depravity exists is aggravated criminal sexual assault. So I don’t think they’ve got it anyway.
MR. McINTIRE: I understand, Judge. I’m merely trying to establish for the record, and perhaps I can do that by asking the [c]ourt to judicially notice the previous proceedings since — frankly, since we’re fortunate enough to be in front of the [j]udge that heard that.
THE COURT: I’ll take judicial notice that [respondent] 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 [her] to recant; but the testimony of [respondent] was that it did not happen.”
Further, in S.H., 284 Ill. App. 3d at 399, 672 N.E.2d at 407-08, sex with the defendant’s own child was enough to establish depravity. Why should not sex with someone else’s child be enough? Curiously, the legislature has long recognized that incest is not as heinous as the act with a neighbor, as criminal sexual assault is probationable only if the defendant is a family member of the victim. See 730 ILCS 5/5— 5 — 3(e) (West 2002). Clearly, the trial court noted the “unique factual situation” that led to respondent’s conviction and later concluded that respondent was depraved due to the nature of his criminal conviction. Such a finding is not erroneous, and this court should therefore affirm on that basis.
Finally, we can affirm on any ground apparent from the record. In re K.B., 314 Ill. App. 3d 739, 751, 732 N.E.2d 1198, 1208 (2000). Despite the trial court’s comment to the contrary, the record establishes that respondent failed to maintain a reasonable degree of interest (750 ILCS 50/l(D)(b) (West 2002)), a ground raised by the State in its petition, because respondent made no efforts since the birth of the minor.