motion to dismiss — Ray v. Illinois

Y. NO.

‘ih 80-6607 [as

YUL 1981

Ott iC’ : OF LHe CLi uK

SUPREME COURT OF THE UNITED STA SUPREME COU IT US,

IN THE

OCTOBER TERM, 1980

PAMELA RAY, Rea 1S COPY

THE PEOPLE OF ‘THE STATE OF ILLINOIS,

Appellee.

On Appeal From The Appellate _

Court Of Illinois,

Fifth District

APPELLEE'S MOTION TO DISMISS OR AFFIRM

TYRONE.C. FAHNER,

Attorney General,

State of Illinois,

iy aes LEE CAPLAN,

MELBOURNE A. NOEL, JR.,

Assistant Attorneys General,

188 W. Randolph St., Suite 2200,

Chicago, Illinois 60601,

(312) 793-2570,

COUNSEL FOR APPELLEE.

JACK DONATELLI,

Assistant Attorney General,

OF COUNSEL.

QUESTIONS PRESENTED

1. Whether a parent is denied due process of law where”

her parental rights are terminated because she has a criminal

conviction resulting from the death of her child by physical

abuse?

2. Whether a parent is denied equal protection of the

law where her parental rights are terminated because she has

a criminal conviction resulting from the death of her child

by physical abuse?

INDEX

Page-

6 i ee lee os ce erates ame wales i

I Ne ake a Senet iii

ST a re i a ha db hecmath woo 4 we aes 1

I OE, o's Seats. a kung ls oalele de.w Bde a salk da we 1

ARGUMENT :

PARENTAL RIGHTS MAY BE TERMINATED WHERE

A PARENT HAS A CRIMINAL CONVICTION RESULT-

ING FROM THE DEATH OF A CHILD BY

ee cai call ae oo. eo kb oe 4 ae «oe a ee ee 3

A.

The Statute Does Not Violate A Parent's

Fame co Cee Feecesé OF Lae... . soc sccts aadaus 3

B.

The Statute Does Not Violate A Parent's

Right To Equal Protection Of Law............. 2

ENDER ee a eee 2 Se ea Oe Sao RM eS Ch Am Se 7

ii

TABLE OF AUTHORITIES

Estelle v. Dewwugh, 420 U.S. 534, 95 S.Ct. 1173, 43 a

L.Ed.2d 377 (1875) Lb hhig-e bn ap huivine awe we h.6 dds DEP ede cab ee'es 6

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101 (1961)... 6

San Antonia Independent School District v. Rodriguez,

BE wees (hb Se Sees SAFCy SO tec Me. BO CAPT ODs cc ccnceces 5

Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322 (1969)... 5

iii

NO.

IN THE ae

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

PAMELA RAY,

Appellant,

v.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

On Appeal From The Appellate

Court Of Illinois,

Fifth District

APPELLEE'S MOTION TO DISMISS OR AFFIRM

The appellee moves this Court to dismiss the appeal

herein or, in the alternative, to affirm the judgment of the

Appellate Court of Illinois, Fifth District, on the ground

that the questions on which the decision of the cause depends

*/

are so unsubstantial as not to need further argument.

OPINION BELOW

The opinion below is cited in People v. Ray, 88 Ill.

App. 3d 1010, 411 N.E.2d 88 (5th Dist. 1980) and is attached

to this motion.

NATURE OF THE CASE

A petition was filed in the Circuit Court of Illinois,

asking that the respondent's parental rights be terminated.

| Subsequently, the respondent was convicted of murder

and cruelty to children and sentenced to concurrent terms of

twenty and two years. The victim was the respondent's

oe

4

seventeen month old daughter. “i

i

' The Appellate Court of Illinois affirmed the conviction

in People v. Ray, 80 Ill. App. 3d 151, 399 N.E.2d 977 (5th af

Dist. 1979). The Illinois Supreme Court denied leave to appeal

on May 29, 1980.

On March 16, 1979, following the conviction, the State

filed a motion for summary judgment, requesting that the

respondent be found unfit pursuant to the Illinois Adoption Act,

Ill. Rev. Stat. 1979, ch. 40, § 1501(D)(f). Om May 9, 1979,

the Circuit Court granted this motion. The Appellate Court

affirmed this decision in People v. Ray, 88 Ill. App. 3d 1010,

411 N.E.2d 88 (5th Dist. 1980). The Supreme Court denied the

petition for leave to appeal on January 30, 1981.

The respondent now petitions this Court to review the

termination of her parental rights.

ARGUMENT

PARENTAL RIGHTS MAY BE TERMINATED WHERE

A PARENT HAS A CRIMINAL CONVICTION RESULTING

FROM THE DEATH OF A CHILD BY PHYSICAL !

ABUSE.

The decision below should not be reviewed or altered.

The respondent was found to be an unfit parent after she was

convicted of the murder of her seventeen month old daughter.

In Illinois, a parent can be declared unfit on the following

ground:

* * *

a criminal conviction resulting from the

death of any child by physical child

abuse.

* * *

Ill. Rev. Stat. 1979, ch. 40 § 1501 D(f). This Illinois law

is constitutional and does not deny a parent due process nor

equal protection. The decision is a correct one and does

not warrant review by this Court.

A.

The Statute Does Not Violate A Parent's

Right To Due Process Of Law.

The respondent urges that she was denied due process

because no evidence was introduced as to her treatment of the

remaining children before her parental rights were terminated.

Hower it has been proved beyond a reasonable doubt that the

respondent was guilty of the murder of one of her children

and was convicted of murder and cruelty to children. Such

convictions, the legislature has deemed, demonstrate parental

unfitness. The statute intends that where a parent has engaged

in prior child abuse of such a serious nature, a court need

not await injury to each child of that parent before terminating

parental rights as to those other children. This legisla-

tion, for the protection of the children, is an overriding

State interest that withstands constitutional attack.

A parent's rights are terminated under § 1501 D(f)

only after there has been a full hearing on all relevant

factual issues. The section applies only when it has been

resolved that physical child abuse caused a death and this -

death formed the basis of a conviction. The rules of criminal

procedure, the rules of evidence, and the reasonable doubt

Oe eee eee or . SR. : ; Sr ed eke

standard safeguard all due process rights at this determina-

tion.

Once it is shown that the parent has killed a child | i

by means of physical abuse, the legislature has provided

that the other minors be removed from that parent's custody

for the welfare and safety of the children. This is clearly

a legislative end permitted by the Fourteenth Amendment.

Stanley v. Illinois, 405 U.S. 645, 653, 92 S.Ct. 1208, 1213.

Moreover, the laws of other states making child abuse a ground

for termination of parental rights have been upheld against

constitutional attack and applied to terminate rights to more

than one child based on a finding of abuse of a single child.

See Annot., 53 A.L.R.3d 605 (1973). z

Under the Illinois Statute, mere criminal conviction

alone does not demonstrate unfitness. Rather, specification

of the victim (a child) and the circumstance (physical abuse

as the cause of death) show that the section is rationally

related to the goal of protecting children from abuse. A

determination that homicide by child abuse is so dangerous

to children who come under the care of the offender that it

_ Should be made a ground of unfitness is both a rational and

a legitimate state interest.

The respondent hes bein convicted of murder and cruelty

to children. This fact led to the legal result that her

parental rights were terminated. This legal result promotes a

“legitimate State interest in protecting children who cannot

protect themselves. Respondent's claim is without merit and

unworthy of review.

———— ——~---— - -—_---—- --— ——_--—--—- + --

B.

The Statute Does Not Violate A Parent's a?

Right To Equal Protection Of Law. “i

A strict scntiny analysis in terms of whether the

classification is necessary to promote a tompelling govern-

ment interest is clearly not called for. See Shapiro v.

Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331 (1969).

This is because strict scrutiny is warranted "only when the

classification impermissibly interferes with the exercise of

a fundamental right or operates to the peculiar disadvantage

of a suspect class." Massachusetts Board of Retirement v.

“Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d

520 (1976).

The class defined in § 1501 D(f) is not a "suspect class"

because it is not a group historically disadvantaged on the

basis of race or some similarly immutable quality by virtue

of which one is born into the class. Rather, it is proved

personal misconduct which brings one within the class defined

by that section. San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed. 2d

16 (1973).

| Neither is respondent's interest in retaining her

parental rights a fundamental right for purposes of equal

protection analysis. Fundamental rights are those which are

explicitly or implicitly guaranteed by the Constitution and

lie at the heart of the relationship between the individual

and the republican form of nationally integrated government.

Included are such interests as the expression of ideas,

participation in the political process, travel among the

States, and privacy regarding only ,the most intimate aspects

of personal life. Rodriguez, 411 U.S. at 32-34, 93 S.Ct. at .

1296-7. Respondent's interest here, however strong and important

it may be, is not one among these fundamental rights.

Therefore, the State has wide discretion in enacting

. *.

Pts

legislation which affects some classes differently than others,

provided the classification is relevant to the State's

objective, and the legislation tends to promote some interest

of the State. McGowan v. Maryland, 366 U.S. 420, 425-6,

81 S.Ct. 1101, 1105 (1961). "[L]egislation may impose special

burdens upon defined classes in order to achieve permissible

ends." Estelle v. Dorrough, 420 U.S. 534, 539, 95 S.Ct. 1173,

1176, 43 L.Ed.2d 377 (1975).

The legislative purpose here involved, protecting the

physical welfare of minors and providing for their removal

from the custody of their parents when their welfare or safety

cannot otherwise reasonably be secured, is clearly among

legislative ends permitted by the Fourteenth Amendment. Stanley,

supra, 405 U.S. at 653, 92 S.Ct. at 1213. The question,

then, is whether the grounds for a finding of parental unfitness

provided in section 1501 D(f) rests upon a classification

which tends reasonably to promote this end. | That is, is this

end promoted by permitting the courts to find a person unfit

on the ground of membership in a class of persons convicted

of killing a child by means of physical abuse? The question

almost answers itself. Making proof of fatal child abuse a

statutory ground of parental unfitness obviously promotes the

State's interest in protecting the welfare and safety of

_ minors.

. Therefore, the Illinois statute does not violate any

equal protection standard, and the claim is unworthy of review.

&

ane

=

CONCLUSION

ad

For the foregoing reasons, the appellee asks that this . "

Court dismiss the appeal. from the. Appellate Court of Illinois

or, in the alternative, affirm the judgment, since the

questions presented are not deserving of further review.

Respectfully submitted,

- TYRONE C. FAHNER,

Attorney General,.

State of Illinois,

HERBERT LEE CAPLAN,

MELBOURNE A. NOEL, JR.,

Assistant Attorneys General,

188 W. Randolph St., Suite 2200,

Chicago, Illinois 60601,

(312) 793-2570,

COUNSEL FOR APPELLEE.

JACK DONATELLI,

Assistant Attorney General,

OF COUNSEL.

\>n

Cok

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*

APPENDIX

88 . Til. 411 NORTH EASTERN REPORTER, 2d SERIES

‘1 to negotiate the porchase price, of

the land, ney sa tise ' 44 MLDec. 1820 |

- 2. to discuss pete design and HUD. The PEOPLE of the State of Llincis, _

requirements, and . “2 pdm F.- recat agen ;

3. to schedule the 1 remaining agent? ae piote ese. a. ie os hays ae

the Turnkey program. >-" =a ~ Pamela RAY, “Defendant-Appellant.

If the drawings, Specifications,” and*

price are satisfactory, they will be sub- |

mitted to the Government with a request

for an annual contributions contract un-

der which the acquisition of the property

will be financed. The Authority will

promptly execute such contract when it is

tendered by the Government.

Promptly upon the execution of an An-

nual Contributions Contract between the

Government and the Authority, the Av-

thority will issue to you a firm letter of

Intent setting forth the conditions under

which you will prepare working drawings

and specifications and unger which you

and the Authority will enter into a Con-

tract of Sale of the property. * °* °

If this letter represents your under-

standing, please sign and return four cop-

ies.”

The copies were signed and returned by

Rutledge dated May 25, 1972. No letter of

intent was ever issued and no contract of

sale was ever agreed upon. But, the serv-

ices extended before and after the above-

quoted letter were offered with the under-

standing embodied in it and the Turnkey

Handbook...

Accordingly, we find no reason to disturb

the holding of the court under the stan-

dards established by the Pedrick rule.

Affirmed.

JONES, P. J., and KASSERMAN, J., con-

cur.

st a:

“88 MLApp.3d 1010 tet

te the Interest ‘of pnts RAY, Tosabdy

Agnew, LaTresha Ray a/k/a LaTresha

Agnew, Minors. .

No. 79-465.

Appellate Court of Illinois,

Fifth District. Sj

Sept. 18, 1980.

Mother appealed from judgment of the

Cireuit Court, St. Clair County, C. Glennon

Stevens, J., terminating her parental rights

to her three children. The Appellate Court,

Karns, J., held that: (1) applicable equal

protection standard, in determining wheth-

er statute providing that criminal convic-

tion resulting from death of any child by

physical abuse constituted ground for find-

ing of parental unfitness, was whether stat-

utory classification was rationally related to

legitimate governmental purpose; (2) stat-

ute was not unconstitutional as applied to

mother who had been convicted of murder

and cruelty to children on evidence of com-

mon design and participation in her boy-

friend's course of torture and abuse that

resulted in death of her child; (8) statute

properly promoted overriding state interest

and thus withstood constitutional] attack on

its face, whether viewed as rationally relat-

ed to legitimate state purpose or necessary

: to promote compelling state interest; (4)

statute did not impose impermissible “irre-

buttable” or conclusive presumption; and

(5) mother, who had criminal conviction re-

sulting from death of her child by physical

child abuse, was unfit parent and parental

rights were correctly terminated.

Affirmed.

1. Constitutional Law 242.1(4)

Termination of parental rights based

on mere finding of mental retardation

Mb. abe a be

ee d

a eee

Saaiebei 21 0e

———

would be

ditional €

Const. Am

2. Const

in determ

that. crim

death of ;

constitute

unfitness

er statuto

lated to }

S.H.A. ch.

3. Constit

One

stitutione

himself «

stitutione

4. Consti

Infan

Stat

tion resu

physical

ing of pi

tutional

applied

‘PEOPLE v. RAY:- - > *

I. g9

Cite as, MILApp.. 411 N.E.2d 88

would be arbitrary and irrational under tra-

ditional equal protection test. U.S.C.A.

Const. Amend. 14. ,

2. Constitutional Law ¢=>242.1(4) vy

Applicable equal protection - standard,

in determining whether statute providing

that criminal conviction resulting from

death of any child by physical abuse will

constitute ground for finding of parental

unfitness was unconstitutional, was wheth-

er statutory classification was rationally re-

lated to legitimate governmental purpose.

§.H.A. ch. 40, § 1501, subd. D(f).

3. Constitutional Law @=42(2)

One who would attack allegedly uncon-

stitutional feature of statute must bring

himself within class to whom Jaw is uncon-

stitutional. U.S.C.A.Const. Amend. 14.

4. Constitutional Law @242.1(4)

Infants e132

Statute providing that criminal convic-

tion resulting from death of any child by

physical abuse constitutes ground for find-

ing of parental unfitness was not unconsti-

tutional under equal protection clause as

applied to mother in determination that

mother was unfit parent where mother had

been convicted of murder and cruelty to

children on evidence of common design and

participation in her boyfriend’s course of

torture and abuse that resulted-in death of

her child. S.H.A. ch. 40, § 1501, subd. D(f);

U.S.C.A.Const. Amend. 14.

5. Infants e132

Statute providing that criminal convic-

tion resulting from death of any child by

physical abuse constituted ground for find-

ing of parental unfitness properly promotes

overriding state interest and thus with-

stands constitutiona] attack on its face,

whether viewed as rationally related to le-

gitimate state purpose or necessary to pro-

mote compelling state interest. S.H.A. ch.

40, § 1601, subd. D(f); U-.S.C.A.Const.

Amend. 14.

6. Constitutional Law @=255(4)

Infants 132

Statute providing that criminal convic-

tion resulting from death of any child by

physical abuse constituted ground for find-

ing of parental unfitness did not impose

impermissible “‘irrebuttable” or conclusive

presumption of unfitness, contrary to due

~ process’ clause, of mother who had been

convicted of murder for abuse that resulted

in death of her child where no presump.ion

was employed in determination that mother

was unfit parent, but rather, State had

burden of proving and did prove mother’s

unfitness on ground held proper; “irrebutt-

able presumption” challenged by mother

was nothing more than relation between

fact and its legal result. S.H.A. ch. 40,

§ 1501, subd. D(f); U.S.C.A.Const. Amend.

14.

7. Infants 181

Mother, who had criminal conviction

resulting from death of her child by physi-

cal child abuse, was unfit parent anc her

parental rights were correctly terminated

under statute providing that criminal con-

viction resulting from death of any child by

physical abuse would constitute ground for

finding of parental unfitness. S.H.A. ch.

40, § 1501, subd. D(f).

George R. Ripplinger, Jr., Belleville, for

defendant—appellant.

Clyde L. Kuehn, State’s Atty., Belleville,

Martin N. Ashley, Deputy Director, Stephen

E. Norris, Staff Atty., State's Attys. Appel-

late Service Commission, Mount Vernon, for

plaintiff-appellee.

KARNS, Justice:

Respondent Pamela Ray appeals from the

judgment of the Circuit Court of St. Clair

County terminating her parental rights to

her three children, Gregory Ray, age 6,

Tamidj Agnew, age 5, and Latresha Ray

a/k/a Latresha Agnew, age 2. Specifically,

respondent attacks the constitutionality of

section 1D(f) of the Adoption Act (Ill.Rev.

Stat.1979, Ch. 40, par. 1501D(f)), insofar as

it provides that “* ° ° a criminal con-

viction resulting from the death of any

child by physical abuse ° ° °" consti-

tutes a ground for a finding of parental

unfitness.

Wa state ae

ed

aby = HEE: soa 3

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pre ras tas

. sO fue tee ek Put She

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Sat

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90 I.

The Department of Children and Family

Services filed a petition in the trial court

alleging that the children were neglected

and the respondent was an unfit parent,

and requesting that the children be adjudi-

cated \..rds of the court, that the respon-

dent be adjudicated unfit and her parental

rights terminated, and that a guardian be

appointed with power to consent to

adoption. Subsequently, the respondent

was convicted of murder and cruelty to

children and sentenced to concurrent terms

of 20 and 2 years. The victim was respon-

dent's daughter, Sheritta Agnew, who was

17 months of age at the time of her death.

We affirmed the respondent’s conviction,

and the supreme court denied leave to ap-

peal People v. Ray (5th Dist. 1979), 80 Til.”

App.3d 151, 35 Ill.Dec. 688, 399 N.E.2d 977,

leave to appeal denied (May 29, 1980).

Following defendant’s conviction, the

State filed a motion for summary judgment

in the instant ptoceeding alleging that no

material issue of fact existed concerning

the respondent's unfitness under section

1D(f) of the Adoption Act, and requesting

that the respondent be found unfit and her

parental rights terminated. Subsequently,

the court granted this motion. Also, in

proceedings not challenged here, the court

found the children neglected as alleged in

the petition, adjudicated them wards of the

court, and entered guardianship orders.

Respondent contends that the statute vio-

lates equa! protection and due process. The

State asserts that the applicable equal pro-

tection standard is whether the statutory

classification is rationally related to a legiti-

mate governmental purpose, rather than

the “strict scrutiny” analysis of whether the

classification is necessary to promote a com-

pelling governmental interest. The respon-

dent apparently concedes that the rational!

relationship test applies, for in her brief it

is said that the “determining question” is

whether “* ° ° the classification is

reasonable in light of its purpose * ° °.”

The parties have not cited nor are we

aware of any case in which our own su-

pees te Dee anes

has squarely decided the appropriate

411 NORTH EASTERN REPORTER, 2d SERIES

test for an equal protection challenge to a

statutory ground for a finding of parental

unfitness. However, in Regenold v. Baby

Fold, Ine., (1977), 68 M).2d 419, 12 Ill.Dec.

151, 369 N.E.2d 858, appea! dismissed (1978)

435 U.S. 968, 98 S.Ct. 1598, 56 L.Ed.2d 54,

our supreme court did review a mother's

claim that her consent to adoption was pro-

cured by fraud and duress and her constitu-

tional attack on the law concerning termi-

nation of parental rights by consensual

adoption. In considering the constitutional-

ity of the legislative restriction on revoca-

bility of parental consent, the court bal-

anced the state’s parens patriae authority

to legislate for the protection of children

against the right to maintain parental! ties

with one’s natura! child. The court quoted

the test stated in Meyer v. Nebraska (1923),

262 U.S. 390, 399-400, 48 S.Ct. 625, 627, 67

L.Ed. 1042, 1045, that parental rights

“* © © may not be interfered with, un-

der the guise of protecting the public inter-

est, by legislative-action which is arbitrary

or without reasonable relation to some pur-

pose within the competency of the state to

effect.” (68 Ill.2d at 438, 12 Ill.Dec. at 159,

369 N.E.2d at 866.) The court then applied

this test, holding that the legislative restric-

tion on the revocability of consent to

adoption was reasonably related to the

State’s authority to legislate with regard to

_ the adoption of children and for their gen-

era) welfare.

Although Regenold involved consensual

adoption, it constitutes some authority for

the application of the rationa] relationship

test here, where legislation for the termina-

tion of parental rights and protection of

children is again called into question. How-

ever, the application of “strict scrutiny”

PEOPLE v. RAY °

i 91

Cite as, IILApp., 411 N.E.24 88

Ch. 40, par. 1510(e).) We cited Meyer v.

Nebraska and other more recent Supreme

Court cases concerning contraceptives (Gris-

wold v. Connecticut (1965), 881 U.S. 479, 85

S.Ct. 1678, 14 L.Ed.2d 510; Carey v. Popu-

lation Services Internationa) (1977), 431

U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675),

abortion (Roe v. Wade (1973), 410 U.S. 118,

93 S.Ct. 705, 35 L.Ed.2d 147), and interstate

travel (Memoria! Hospital v. Maricopa

County (1974), 415 U.S. 250, 94 S.Ct. 1076,

89 L.Ed.2d 306) to support the conclusion

that parental rights are “fundamental” and

may not be terminated by State law unless

the law advances a compelling state inter-

est. The compelling nature of the State's

interest in protecting the welfare of a child

was duly noted. However, it was reasoned

that not every retarded parent could be

found unfit under grounds enumerated in

section 1D of the Adoption Act, and that

retarded parents, like others, were entitled

to a judicia) determination of their fitness

prior to termination of their parental

rights.

[1,2] This last conclusion ‘is certainly

correct, and it might appropriately have

been reached by simply holding that termi-

nation of parental rights based on a mere

finding of mental retardation would be ar-

bitrary and irrationa] under the traditional

equal protection test. As in Helvey, the

various generalized pronouncements of the

Supreme Court relating to parental rights

have been interpreted to establish the fun-

damenta!] nature of those rights in the con-

text of a substantive due process analysis of

Iowa parental rights’ termination statutes.

(Alsager v. District Court of Polk County,

Towa (S.D.lowa 1975) 406 F.Supp. 10, af-

firmed (8th Cir. 1976), 545 F.2d 1187.) No

doubt, the pronouncements of the Supreme

Court are entitled to careful consideration,

perhaps even when their relevance to the

issue at hand is rather oblique at best.

Nevertheless, without clear authority, we

do not feel compelled to depart from the

conventiona) analysis of whether legislation

*

is arbitrary and irrational.

The respondent acknowledges the State's

legitimate interest in protecting children

who cannot protect themselves. She none-

theless argues that a parent who abuses and

kills one child will not automatically mis-

treat her other children and that the causes

of abuse can be treated and eliminated.

Laws of other states making child abuse

a ground for termination of parental rights

have been upheld against constitutional at-

tack and applied to terminate rights to

more than one child based on a finding of

abuse of a single child. (Annot., 58 A.L.

R.3d 605 (1973).) In Illinois, a finding of

parental unfitness on the ground of “de-

pravity” and termination of parental rights

to a son and two daughters was affirmed

solely upon evidence that the parents had

sold one of the daughters into marriage.

(In Interest of Flynn (8d Dist. 1974), 22

Ill.App.8d 994, 318 N.E.2d 105.) In the

context of neglect proceedings based on

child abuse, it has been held that all the

children of abusing parents may be found

neglected even though all have not yet been

abused. (Jn Interest of Brooks (lst Dist.

1978), 63 Ill.App.8d 328, 20 Ill.Dec. 39, 379

N.E.2d 872); although, a neglect finding in

a similar case was reversed based on af-

firmative evidence of the mother's care and

concern for the unabused child. Jn Interest

of Baby Boy Butt (2d Dist. 1979), 75 Ill.

App.3d 587, 32 Ill.Dec. 54, 395 N.E2d 1.

[3-5] We have affirmed the respon-

dent's conviction of murder and cruelty to

children on evidence of common design and

participation in her boyfriend's course of

torture and abuse that resulted in the death

of her child. (People v. Ray.) The conflict

inherent in parental fitness legislation be-

tween the State's interest in legislation for

the protection of children and the continua-

tion of parental rights must be resolved in

favor of the former in this case. One who

would attack an allegedly unconstitutional

feature of a statute must bring himself

within the class to whom the law is uncon-

stitutional. (City of Chicago v. Lawrence

(1969), 42 Ill.2d 461, 248 N.E.2d 71, appeal

dismissed (1969), 396 U.S. 39, 90 S.Ct 268,

24 L.Ed.2d 208.) To speak hopefully of the

possibility of tregtment and rehabilitation

or to hypothesize circumstances where a

7 “

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7 * « :

7

92 I.

parent may abuse one child but not another

would be pure speculation on the record

before us. Furthermore, apart from the

specific facts before us, we believe that the

statute properly promotes an overriding

state interest and thus withstands constitu-

tional attack, whether viewed as rationally

related to a legitimate state purpose or

necessary to promote a compelling ‘state

interest.

Yet to be discussed is the respondent's

reliance on Stanley v. Illinois (1972), 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

Stanley held that to presume an illegitimate

father unfit as a parent is contrary to the

Due Process Clause of the Fourteenth

Amendment, and that the parental rights of

an illegitimate father, like those of any

other parent, could not be terminated with-

out a judicial determination of unfitness.

[6] The respondent argues that the stat-

ute before us also imposes an impermissible

“jrrebuttable” or conclusive presumption.

We fail to see that the statute constitutes a

conclusive presumption or a presumption in

any sense.

{7} In Stanley, the father was presumed

unfit in the sense that, because of illegiti-

macy, he was required to institute a pro-

ceeding and to bear the burden of establish-

ing parental authority for custody of his

children. No such presumption was em-

ployed in the instant case. Rather, the

State bore the burden of proving and did

prove the respondent's unfitness on a

ground we have held proper. As argued by

the State, the “irrebuttable presumption”

challenged by the respondent, is nothing

more than the relation between a fact and

its legal result. In light of the undisputed

facts that the defendant had a criminal

conviction resulting from the death of any

child by physical child abuse, the court cor-

rectly determined that there was no materi-

al issue of fact and granted summary judg-

ment finding her unfit and terminating her

parental rights.

The judgment of the Circuit Court of St.

Clair County is affirmed.

AFFIRMED.

JONES, P. J., and SPOMER, J., concur.

411 NORTH EASTERN REPORTER, 2d SERIES

88 Ill.App.3d 968

44 Ill.Dec. 186

Alan ROTHENBUECHER,

Plaintiff-Appellee,

Vv.

Margaret A. TOCKSTEIN and Hazel

B. Jones.

Margaret A. Tockstein,

Defendant-Appellant.

No. 79-535.

Appellate Court of Illinois,

Fifth District.

Sept. 18, 1980.

Offeree brought action against offeror

for specific performance of a sale contract

to purchase a duplex. The Circuit Court,

St. Clair County, Patrick J. Fleming, J.,

entered judgment for offeree, and offeror

appealed. The Appellate Court, Harrison,

J., held that no valid contract of sale exist-

ed between the parties where acceptance of

the offer was not communicated to offeror

within a 24—hour period as required by the

offer.

Reversed.

1. Specific Performance @28(1)

Where a contract is in doubt so that an

obligation to fulfill the alleged promise may

never have arisen, equity will decline to

enforce performance.

2. Vendor and Purchaser 17

Mutual assent necessary to formation

of a bilatera) contract requires the commu-

nicated expression of a promise to purchase

and an acceptance in form of a promise to

sell.

3. Contracts o=19

An offeree’s power to accept is termi-

nated by either revocation of the offer or

nonoceurrence of a!.y condition of accept-

ance under terms of the offer.