In re S.L. , 2012 IL App (5th) 120271 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re S.L., 2012 IL App (5th) 120271Appellate Court In re S.L., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellee, v. JULIA F., Respondent-Appellant).
District & No. Fifth District
Docket No. 5-12-0271
Filed November 28, 2012
Held An order finding respondent to be an unfit parent under sections
(Note: This syllabus 1(D)(m)(iii) and 1(D)(p) of the Adoption Act was reversed and the cause
constitutes no part of was remanded, since the State failed to comply with section 1(D)(m)(iii)
the opinion of the court by failing to specify the nine-month period or periods in which it claimed
but has been prepared respondent did not make reasonable progress toward the return of her
by the Reporter of child and the finding that she was unfit due to mental impairment
Decisions for the pursuant to section 1(D)(p) was contrary to the manifest weight of the
convenience of the evidence.
reader.)
Decision Under Appeal from the Circuit Court of Marion County, No. 07-JA-40; the Hon.
Review Michael D. McHaney, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Bill J. Milner, Craig W. Griffin (Law Graduate, Certified under Supreme
Appeal Court Rule 711), of Law Office of Bill J. Milner, of Salem, for appellant.
Matt Wilzbach, State’s Attorney, of Salem (Patrick Delfino, Stephen E.
Norris, and Rebecca E. McCormick, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEWART delivered the judgment of the court, with opinion.
Justices Goldenhersh and Spomer concurred in the judgment and opinion.
OPINION
¶1 On January 18, 2011, the State filed a petition for termination of the parental rights of
Bruce V. and Julia F., the parents of S.L., a minor child. The father did not participate in the
proceedings below and has not filed a brief in this court. On November 30, 2011, the State
filed an amended petition for termination of parental rights, alleging four grounds for
unfitness against Julia: (1) failure to make reasonable efforts to correct the conditions that
were the basis for the child’s removal (750 ILCS 50/1(D)(m)(i) (West 2010)); (2) failure to
make reasonable progress toward the return of her child within nine months after the
adjudication of neglect, being the period of November 29, 2007, to August 29, 2008 (750
ILCS 50/1(D)(m)(ii) (West 2010)); (3) failure to make reasonable progress toward the return
of the child during any nine-month period after the end of the initial nine-month period
following the adjudication of neglect (750 ILCS 50/1(D)(m)(iii) (West 2010)); and (4)
inability to discharge parental responsibilities as supported by competent evidence from a
licensed clinical psychologist of mental impairment with sufficient justification to believe
that the inability to discharge parental responsibilities shall extend beyond a reasonable time
period (750 ILCS 50/1(D)(p) (West 2010)). After an evidentiary hearing, the trial court
entered an order finding that the State had not proved the first two grounds but had proved
Julia to be unfit under the final two grounds alleged in the amended petition.
¶2 Julia appeals from the order of the circuit court of Marion County finding her to be an
unfit parent under sections 1(D)(m)(iii) and 1(D)(p) of the Adoption Act (750 ILCS
50/1(D)(m)(iii), (D)(p) (West 2010)). We reverse and remand.
¶3 BACKGROUND
¶4 S.L. was born to Julia on May 3, 2002. On September 11, 2007, the State filed a petition
for adjudication of wardship, alleging that S.L. was neglected in that she was in an
environment injurious to her welfare because Julia was not protecting her physical welfare
(750 ILCS 50/1(D)(g) (West 2006)). On the same date, the court entered an order for
temporary custody, finding probable cause existed to believe that S.L. had been abused or
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neglected due to being dirty and having bites and bruising on her body. The Department of
Children and Family Services (DCFS) was granted temporary custody of S.L.
¶5 On January 3, 2008, the court entered a dispositional order finding S.L. to be neglected,
making her a ward of the court, and awarding DCFS custody and guardianship. At each of
the permanency hearings after entry of the dispositional order, the goal for the family was for
S.L. to return to Julia within 12 months. On July 21, 2010, the goal was changed to substitute
care pending court determination of termination of parental rights. On January 18, 2011, the
State filed the initial petition to terminate parental rights, and it filed an amended petition on
November 30, 2011.
¶6 On February 24, 2012, the court conducted an evidentiary hearing on the amended
petition to terminate parental rights. Although the parental rights of S.L.’s father were
addressed at this hearing, we will not relate those facts since he is not participating in this
appeal. The State called Frank Kosmicki, a licensed clinical psychologist, to testify.
Kosmicki testified that he interviewed Julia for 50 to 60 minutes on April 18, 2011. As part
of his evaluation, he also reviewed a psychological evaluation report drafted by Fred Klug
in 2008, an integrated assessment prepared by DCFS on August 26, 2010, an administrative
case review dated September 10, 2010, and a DCFS family service plan dated March 28,
2011.
¶7 Kosmicki testified that Julia informed him about her past history of abuse, which
included being beaten, raped, and threatened to be killed at age eight by her mother’s
boyfriend. She was placed in foster care at age 12. She said that she had been hospitalized
nine times between the ages of 10 and 14 for running away and being defiant. She was in
special education in grade school and was expelled from school in the tenth grade. She
reported using drugs from age 13 until she was 17 years old. She told Kosmicki that she had
not drunk any alcohol since she was 23 years old. When she was 17 years old, she began
dating a 30-year-old man, whom she married when she was 18 years old. She told Kosmicki
that her first husband was physically abusive and beat her so badly once that he knocked out
her teeth, causing her to be hospitalized and to need dentures. She said that her second
marriage was to a man who was an alcoholic and physically abusive, and her third marriage
was to an alcoholic.
¶8 Kosmicki noted that, before S.L. was born, Julia had a son, M.P., who was born on
March 17, 1996, when Julia was 18 years old. She explained to Kosmicki that she gave up
custody of M.P. to her mother when he was young because she was trying to get out of her
marriage, and her husband had threatened M.P. Julia regained custody of M.P. in 2008
because her mother became incompetent and began living in a nursing home. DCFS has not
intervened or tried to remove M.P. from Julia’s custody, and he remained in her custody at
the time of the termination hearing.
¶9 At the time of the interview, Julia was not in a relationship with anyone. Kosmicki
testified that Julia “said she was single and planned on staying single, that she wasn’t looking
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for a relationship.” Kosmicki testified that Julia was unemployed when he interviewed her.1
She was not on any medication at the time of the interview, but at times had been prescribed
several different antidepressants and antipsychotic medications. Julia told him she had not
taken any of these medications for two years because they made her feel like a zombie. She
reported having several symptoms of posttraumatic stress disorder (PTSD), such as
flashbacks, nightmares, and reactivity to cues that reminded her of past traumas. However,
at the time of the interview, she felt that she was doing much better and that her judgment
had improved.
¶ 10 Kosmicki testified that he conducted several diagnostic tests on Julia. From those tests,
he determined that her IQ was 74, which put her in the borderline range just above those who
are mentally retarded. On the Minnesota Multiphasic Personality Inventory–2–Restructured
Form test, he testified that Julia’s answers indicated that she was trying to “fake good” or
show herself in a false positive light. Kosmicki also said that the “only clinical elevation of
note was an elevation on a scale assessing antisocial behaviors,” which was consistent with
her early history. Kosmicki administered a parenting relationship questionnaire, but he
assigned very little significance to the findings from that test because the test had not been
“standardized empirically” and it measured Julia’s interaction with S.L., which had been very
limited since S.L.’s removal from Julia’s custody.
¶ 11 Kosmicki testified that Julia met the criteria for PTSD, borderline intellectual
functioning, and “a personality disorder, not otherwise specified with some dependent and
borderline personality features.” He did not believe she was able to discharge her parental
responsibilities at the time he interviewed her. He based that conclusion partly on his
diagnoses of PTSD and personality disorder and partly on her past history “of having very
dangerous men in her household and exposing her daughter to dangerous things.” Kosmicki
recommended that, before she could be reunited with S.L., she should “get some long-term
intensive therapy.” He acknowledged that she was in counseling when he saw her and that
he could not “determine whether or not the counseling that she had was in fact helping her.”
He recommended that she “be in long-term psychotherapy” and consult with a psychiatrist
about the necessity of psychotropic medication for symptom management.
¶ 12 When asked how long he thought Julia would need to demonstrate that she had made
sufficient changes to enable her to regain custody of S.L., he estimated that she would need
“six months to a year of logistical stability, being in one place, utilities, having a home,
having no arrests, having no instance of domestic violence, no substance abuse, those kinds
of things.” On cross-examination by Julia’s attorney, Kosmicki again stated, “[A]t a bare
minimum, I would recommend six months to a year maintaining [a] stable life” before S.L.
could safely return home.
¶ 13 Tiffany Short, Julia’s caseworker from September 2007 through June 2008, testified that
she conducted an administrative case review on March 24, 2008, and discussed that service
plan with Julia. Short testified that Julia’s service plan required her to complete several tasks
1
Julia testified that she receives supplemental security disability income, that M.P. receives
survivor benefits, and that her total income from both sources is approximately $1,500 per month.
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to correct the conditions that had led to S.L.’s removal. Short testified that, as of March
2008, Julia had satisfactorily completed five of the tasks assigned to her. First, Short said that
Julia had completed her psychiatric assessment, was being treated by Dr. Katz, and was
taking her prescribed medications. Second, Julia had been financially responsible for S.L.
because she had worked through the Department of Rehabilitative Services taking care of her
mother, and when her mother had to be placed in a nursing home, she was not employed, but
she was receiving “SSI as well as food stamps.” Third, she had obtained and maintained safe
and appropriate housing. Short said that, in March 2008, Julia was in the process of moving
into her own residence in Centralia. Visits with S.L. had not begun at that house yet because
Julia was still trying to finish moving in. Fourth, Julia was in the process of completing a
substance abuse assessment, and she had tested negative when screened for drugs. Fifth, she
had satisfactorily completed the psychological evaluation by Dr. Klug on March 14, 2008.
¶ 14 Short testified that Julia was assigned four additional tasks. Short stated that Julia was
rated unsatisfactory in the categories of individual mental health counseling, completing
parenting classes, obtaining a bonding assessment, and completing domestic violence
counseling, but Short acknowledged that the failure to complete those tasks was not Julia’s
fault. Short testified that Julia “seemed open to completing services.” However, in Short’s
opinion, Julia “didn’t take really any responsibility for why [S.L.] came into care.” When
asked for the basis of her opinion that Julia was not taking responsibility for S.L., Short
answered, “Just kind of her attitude and, you know, things that she would say.”
¶ 15 Dayna Harris McDaniel testified that she was employed by Catholic Social Services as
Julia’s caseworker from June 2008 until April 2010. When McDaniel drafted the permanency
report in September 2008, Julia’s overall rating was unsatisfactory. McDaniel testified that
although Julia had engaged in the services, she lacked the “ability to internalize and
demonstrate the learning of whatever the services were.” McDaniel explained that Julia
showed a lack of stability because she moved multiple times. She believed that Julia showed
a lack of good judgment because she chose boyfriends who were abusive and she hung
around with people who were not appropriate. Julia had completed a substance abuse
evaluation and no follow-up services were recommended, and she had begun taking
parenting classes.
¶ 16 McDaniel testified that, although Julia had completed a psychological evaluation with
Dr. Klug and was following up with mental health counseling, McDaniel rated her as
unsatisfactory on this criteria because her attendance had been sporadic and she lacked the
ability to apply what she had learned. She was seeing Dr. Katz at the Angela Center and
taking the medication he prescribed her for bipolar disorder and obsessive-compulsive
disorder. However, around September or October 2008, Julia stopped taking her medication,
saying it made her feel like a zombie. Julia was also attending individual counseling sessions
with Pearce Konold, and her attendance at these sessions was better. McDaniel testified that
her counselor2 thought she was making progress, but her ability to understand and apply what
she was learning was a challenge.
2
She did not specify the name of this counselor.
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¶ 17 McDaniel rated Julia as unsatisfactory on the requirement of obtaining and maintaining
appropriate and safe housing because her residence was unclean, had rodents and
cockroaches, and was too small for the number of people living there. During this time,
however, Julia had no difficulty with substance abuse and had completed her parenting
classes. She had not completed domestic violence counseling but had initiated PAVE (People
Against Violent Environments) services to address those issues.
¶ 18 McDaniel also prepared a permanency report in March 2009. At that time, Julia had
moved out of the residence she was sharing with her husband Billy due to domestic violence,
and she had obtained an order of protection against him. She was working at Gilster-Mary
Lee. She was not taking the medications Katz had previously prescribed to her. Katz was no
longer available to treat her, and she had not yet switched to a different doctor for psychiatric
review. She was still attending mental health counseling, but her attendance was sporadic.
McDaniel acknowledged that Julia did not have any trouble with substance abuse at any time
since S.L. came into care.
¶ 19 Julia had supervised visits with S.L. every week. McDaniel testified that she occasionally
monitored those visits. She developed a checklist system to help Julia initiate appropriate
interaction with S.L. during these visits. McDaniel explained that sometimes she did not
consider Julia’s behavior to be appropriate, such as the time that Julia called S.L. a “sexy
mama.” Julia had been granted unsupervised visits with S.L. for a short period of time, but
due to the unsanitary condition of the home and Julia’s questionable boyfriends, the
unsupervised visits were suspended. In March 2009, Julia was attending individual
counseling, but her counselor did not believe she was making substantial progress. However,
she had completed an anger management class, and she did not require any follow-up
services.
¶ 20 As of March 2009, McDaniel rated Julia’s overall progress as unsatisfactory on the basis
of “poor judgment, lack of stability, the situations that would put a child [S.L.’s] age at risk.
The bouncing from man to man, the bouncing from home to home. Not being medicated
when that’s been recommended.”
¶ 21 In September 2009, Julia’s visitation with S.L. was decreased from twice per week to
once per week, and DCFS changed its recommended goal from return home in 12 months
to substitute care pending court determination of termination of parental rights. During
McDaniel’s oversight of Julia’s case, from June 2008 through April 2010, McDaniel
believed that Julia’s progress was unsatisfactory and that she had not made sufficient
progress toward correcting the conditions that led to S.L.’s removal. McDaniel
acknowledged that Julia was willing to do what was asked of her but said that Julia did not
make demonstrable improvement in her decision-making regarding her choice of paramours,
who she lived with, or her interactions with S.L. McDaniel testified that Julia’s efforts were
reasonable, but she did not learn from her mistakes, even when McDaniel explained both the
problem and the solution.
¶ 22 Rachel Kissner testified that she was Julia’s foster care case manager, and she prepared
a service plan review on September 6, 2011. At that time, Julia was living with her
boyfriend, David Schroeter, who was employed, had children of his own, and had no
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problems that concerned Kissner. Kissner acknowledged that she did not have any concerns
about Julia’s interactions with Schroeter’s two minor daughters or about Julia’s minor son,
M.P., continuing to live with Julia and Schroeter. She stated that Julia had an appropriate
bedroom for S.L. at her current residence. Kissner knew of nothing on the service plan that
Julia still needed to complete. The only task remaining was for Julia to get her medications
corrected because the medication prescribed for her had caused an allergic reaction, and she
had not yet been prescribed any different medication.
¶ 23 Although Julia had completed all tasks assigned to her, Kissner rated Julia’s interaction
with S.L. during her twice-monthly visits as unsatisfactory because Julia “struggled with
[S.L.] some as far as *** age appropriate interactions.” Kissner testified about examples of
what she considered inappropriate interactions. At S.L.’s birthday party, Julia got some icing
from S.L.’s birthday cake on her hand and “thought it would be funny to put it on [S.L.’s]
face,” but instead, it upset S.L. Kissner said that S.L. “just kind of calmed herself down,” and
Julia explained that it was a joke and that she did not mean to upset S.L. Kissner testified
about another incident that occurred in the summer. She said it was hot outside and Julia
wanted to use a barrette to keep S.L.’s bangs out of her face. S.L. got mad, Julia clipped up
the bangs anyway, and S.L. went to the bathroom crying about it. Julia tried to comfort S.L.,
but S.L. went to Kissner instead, hugging her and asking her to make Julia stop. Finally, S.L.
calmed down, and Julia started playing with her.
¶ 24 Kissner also said that there was “a lack of interaction during visits” because S.L. usually
had homework but never wanted to do her homework. Kissner said that Julia would help S.L.
with her homework, but then “would kind of start talking about her own things.” Kissner also
thought that Julia was not firm enough in disciplining S.L., that she looked to Kissner to tell
her what to do, but that when prompted on what to do she “was fine.” Kissner acknowledged
that S.L. tried to manipulate Julia and was very confused about her situation.
¶ 25 The State rested its case after presenting the above evidence. Julia’s attorney moved for
a directed finding on three of the State’s allegations of unfitness and asked to reserve
argument on the fourth, that Julia had failed to make reasonable progress toward S.L.’s return
during any nine-month period after the initial nine-month period following the adjudication
of neglect. The trial court denied Julia’s motion as to the State’s allegation that she was
unable to discharge parental responsibilities extending beyond a reasonable time period as
supported by competent evidence from a licensed clinical psychologist of mental impairment.
The trial court took under advisement its ruling on Julia’s motion that the State failed to
prove that Julia had failed to make reasonable efforts to correct the conditions that were the
basis for S.L.’s removal and that she failed to make reasonable progress toward S.L.’s return
within nine months after the adjudication of neglect.
¶ 26 Julia presented several witnesses.
¶ 27 David Schroeter testified that he was 33 years old and worked full time at Charter
Communications as a broadband technician. Julia was his girlfriend, and they lived together.
They had been friends for about a year before moving in together in a four-bedroom, two-
bath home that they shared with M.P. S.L.’s visits were at this house. He had two daughters
who were 12 and 13 years old and who stayed with him every other weekend. If S.L. were
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returned to Julia’s custody, she would have a bedroom of her own. He testified that Julia
interacted well with his daughters and took care of them by herself on Sundays when they
were visiting and he was at work. He said he did not have any concerns about leaving his
daughters with Julia, and he would not leave them with her if he had any concerns about it.
He said that Julia interacted well with M.P. and that their relationship seemed to be
improving because M.P. was opening up and talking to her more.
¶ 28 Connie Hoover testified that she is a friend of Julia’s, that one of her sons, Christopher,
is close in age to M.P., and that Christopher and M.P. spend time together at Julia’s home.
She was not concerned about Christopher staying overnight at Julia’s house. She described
Julia’s house as “[v]ery, very clean.” Christopher testified that M.P. is his best friend and,
when he is at M.P.’s house, they usually watch TV or play card games in the living room. He
said Julia was usually cooking or cleaning, “basically anything a mother does,” and when she
was finished with her work, she would sit down and relax.
¶ 29 M.P. testified that he was 15 years old at the time of the hearing. He said that their house
is always spotless, that there is always enough food for him to eat, and that his mom takes
the “best care” of him. He testified that if S.L. were allowed to come live with them, they
would be “able to interact more as a family and that [they] would all be able to feel really
safe knowing that she’s finally home.” He said he would love to get to know his “little
sister.”
¶ 30 The hearing was recessed until March 16, 2012. When the hearing resumed, Julia
testified that since August 2007, when S.L. was removed from her custody, she had multiple
caseworkers. She stated that she did not tell her caseworkers that she refused to take the
psychotropic medication prescribed to her but that she preferred not to take any medications
if at all possible. She said that if medication was recommended for her, she would take it
because getting S.L. back was all that mattered to her. At the time of this hearing, S.L. was
almost 10 years old, and M.P.’s sixteenth birthday was the day after the hearing. Julia and
Schroeter had split up the week before the March 16, 2012, hearing. Julia explained that she
was too focused on and concerned about getting her daughter back to be in a relationship.
She said that she and Schroeter were still friends but no longer living together. She was
continuing to pay the bills for the house she previously shared with Schroeter, and she
testified that if she could not pay for that house on her own, she would find less expensive
housing.
¶ 31 Julia testified that she had been required to attend PAVE counseling since the beginning
of the case. She described PAVE counseling as learning about the warning signs of domestic
violence and developing techniques to protect herself and her children from “people who are
not so nice, so to say.” She had received a certificate stating that she had participated in
individual and group counseling through PAVE for the past two years. The certificate stated
that the PAVE staff had provided enough information that Julia had the knowledge to
provide a safe environment for herself and her children but that she could continue to attend
counseling sessions “for emotional support and further information.” Julia testified that she
felt she benefitted from the PAVE counseling and that she was continuing to attend.
¶ 32 Julia said that she had completed parenting classes twice. Throughout the case, she had
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always maintained contact with her caseworkers and allowed them to inspect her home
anytime they asked. At the time of this hearing, she was still attending mental health
counseling through CRC with Dr. Keeven, and no doctor had prescribed any medications for
her. She said that she did not believe in taking medications, but when she was in pain, such
as when she had sinus/nasal surgery, she took pain medication as needed. She testified that,
after S.L. was removed from her, she had been prescribed Klonopin, Zoloft, Seroquel, and
Geodon, “and with all those combined it was making [her] like a zombie.” She said that,
more recently, a doctor had prescribed medicine for her, but she had an allergic reaction to
it and had to stop taking it.
¶ 33 The trial court took the case under advisement and on April 5, 2012, entered a docket
sheet order granting Julia’s motion for a directed finding on the State’s allegations in
paragraphs 9(A) and 9(B) of the amended petition for termination of parental rights. The
court noted that it found Kosmicki’s testimony credible and persuasive and that it had also
relied on Klug’s 2008 report. The court stated that it had carefully assessed the demeanor of
all of the witnesses, including Julia, and had carefully considered all of the relevant evidence.
The court found that the State had met its burden to prove by clear and convincing evidence
that Julia met the definition of an unfit parent pursuant to paragraphs 9(C) and 9(D) of the
State’s amended petition for termination of parental rights. On June 11, 2012, the court
entered an order terminating Julia’s parental rights to S.L. Julia filed a timely notice of
appeal.
¶ 34 ANALYSIS
¶ 35 I. Pleading Requirements of Section 1(D)(m)(iii)
¶ 36 We first consider Julia’s argument that the trial court’s finding that the State proved the
allegation that she had failed to make reasonable progress toward S.L.’s return during any
nine-month period should be reversed because the State failed to comply with the statutory
duty that it notify Julia of the specific nine-month periods that were the subject of the
termination hearing. This is a purely legal question for which our review is de novo. In re
D.F., 201 Ill. 2d 476, 495, 777 N.E.2d 930, 941 (2002) (where the issue is one of statutory
construction, review is de novo). The statute that controls this issue provides, in relevant part,
as follows:
“ ‘Unfit person’ means any person whom the court shall find to be unfit to have a child,
without regard to the likelihood that the child will be placed for adoption. The grounds
of unfitness are any one or more of the following ***:
***
(m) Failure by a parent *** (iii) to make reasonable progress toward the return
of the child to the parent during any 9-month period after the end of the initial 9-
month period following the adjudication of neglected or abused minor ***. ***
Notwithstanding any other provision, when a petition or motion seeks to terminate
parental rights on the basis of item (iii) of this subsection (m), the petitioner shall file
with the court and serve on the parties a pleading that specifies the 9-month period
or periods relied on. The pleading shall be filed and served on the parties no later
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than 3 weeks before the date set by the court for closure of discovery, and the
allegations in the pleading shall be treated as incorporated into the petition or motion.
Failure of a respondent to file a written denial of the allegations in the pleading shall
not be treated as an admission that the allegations are true.” 750 ILCS 50/1(D)(m)(iii)
(West 2010).
¶ 37 Whether a statutory command is mandatory is a question of statutory construction, and
the answer is a matter of legislative intent for which the statute’s language is the best
evidence. People v. Robinson, 217 Ill. 2d 43, 54, 838 N.E.2d 930, 936 (2005). The provision
adding the requirement that the State file a pleading to disclose the nine-month period or
periods it intends to rely on was added by Public Act 94-563, effective January 1, 2006, well
before the State filed its amended petition in November 2011. The State has conceded in its
brief that it did not file the required pleading to specify which nine-month period or periods
it would rely on to prove Julia unfit. The State seeks to avoid the effect of its error by having
us find that Julia waived this issue by not raising it in the trial court. The State’s argument
is not persuasive in light of the language and purpose of the statute.
¶ 38 We first note that the statute uses the term “shall” in relation to the State’s obligation to
file the notice pleading. Such language indicates that the State is required to comply rather
than use its discretion to decide whether or not to comply. See Read v. Sheahan, 359 Ill. App.
3d 89, 93, 833 N.E.2d 887, 891 (2005) (use of the term “shall” in a statutory provision
generally indicates a mandatory legislative intention).
¶ 39 The core purpose of this subsection is to allow the State to prove a parent unfit and
thereby involuntarily terminate his or her parental rights if it proves by clear and convincing
evidence that the parent failed to make reasonable progress to correct the conditions that
were the basis of the child’s removal during “any 9-month period after the end of the initial
9-month period following the adjudication of neglect[ ].” 750 ILCS 50/1(D)(m)(iii) (West
2010). In 2006, the legislature amended the statute to require the State to file a pleading
which specifies the particular nine-month period or periods it intends to rely on to prove
unfitness. Moreover, the statute now provides that “the allegations in the pleading shall be
treated as incorporated into the petition or motion” by which the State seeks termination of
the parent’s rights. 750 ILCS 50/1(D)(m)(iii) (West 2010). Therefore, when the State seeks
to terminate parental rights under this statutory provision, its allegation of unfitness must
include written notice specifying the nine-month period or periods it is relying on, and this
notice pleading must be served on the parties and filed with the court no later than three
weeks before the discovery cutoff. The portion of the statute requiring this notice pleading
is as much a part of the allegation of unfitness as the basic provision that the parent has failed
to make reasonable progress toward the return of her child.
¶ 40 In a case such as this, where there were several possible nine-month periods from which
the State could seek to prove unfitness, the advance notification is crucial. Unless the parent
knows before the hearing which nine-month periods the State intends to rely on, the parent’s
ability to defend himself or herself is seriously impaired. In this case, the State’s failure to
comply with the notice pleading requirement was compounded at the hearing because the
State did not specify which period was the basis for its allegation of unfitness, its evidence
did not clear up the confusion, and the trial court did not specify which of several nine-month
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periods formed the basis of its finding of unfitness on this ground.
¶ 41 A parent’s right to raise his or her biological child is a fundamental liberty interest, which
is protected by due process. In re M.H., 196 Ill. 2d 356, 362, 751 N.E.2d 1134, 1139 (2001).
Because the parent’s interest is fundamental, the State’s burden of proof is high; it must
prove the allegation of unfitness by clear and convincing evidence. Id. at 365, 751 N.E.2d
at 1141 (the State’s burden of proof by clear and convincing evidence underscores the
importance of parents’ fundamental right to the control, custody, and care of their children).
The statutory duty to file the notice pleading in advance of the hearing increases the
likelihood that the State will have the necessary evidence to meet its burden of proof on this
issue, that the parent will have an adequate opportunity to defend the allegation, and that the
trial court will be able to make a fair decision as to whether or not the parent is unfit on that
statutory ground.
¶ 42 Another provision of the statute also compels our conclusion that the State cannot rely
on the parent’s waiver of the issue to rectify its error. The legislature specified that the
parent’s failure to file a written denial of the allegations “shall not be treated as an admission
that the allegations are true.” 750 ILCS 50/1(D)(m)(iii) (West 2010). We believe that
language supports our determination that the State’s pleading requirement cannot be waived.
We hold that the State’s duty to comply with the statute’s notice pleading requirement is
mandatory and that the requirement is not waived by the failure of a parent to object. A
contrary ruling would effectively place the burden of compliance with the statute on the
parent, rather than on the State.
¶ 43 Julia argues that the State’s failure to abide by the notice pleading provision of section
1(D)(m)(iii) requires us to reverse the trial court’s finding of unfitness on that ground. We
agree. The trial court’s finding of unfitness on this allegation must be vacated because the
trial court may not terminate a parent’s rights on grounds not charged in the petition. In re
Gwynne P., 215 Ill. 2d 340, 349, 830 N.E.2d 508, 514 (2005). “The permissible grounds for
finding a parent unfit are set forth in section 1(D) of the Adoption Act [citation].” Id. The
court’s statutory authority to terminate a parent’s rights involuntarily “is delineated by the
language of the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2002)) and the Adoption
Act (750 ILCS 50/0.01 et seq. (West 2002)).” Id. at 354, 830 N.E.2d at 516. When a court
exercises its authority to terminate parental rights, it must proceed within the confines of the
law and has no authority to proceed except as the law provides. In re E.B., 231 Ill. 2d 459,
464, 899 N.E.2d 218, 221 (2008) (quoting People v. Brown, 225 Ill. 2d 188, 199, 866 N.E.2d
1163, 1169 (2007)). The court is not free to reject or expand its statutory authority despite
its desire or perceived need to do so. Id.¶ 44 In the case at bar, the State did not comply with the notice pleading requirement of
section 1(D)(m)(iii) because it did not specify the particular nine-month period or periods
during which it claimed Julia failed to make reasonable progress toward S.L.’s return. As
noted, section 1(D)(m)(iii) requires the State to file, in writing and three weeks before the
closure of discovery, a pleading, which is to be served on the parent and other parties,
specifying the nine-month period or periods it relies on to prove the parent’s unfitness under
this section. Since the State did not comply with the statute’s notice pleading provision, the
trial court could not terminate Julia’s parental rights based on an allegation that was not in
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conformity with the statute. Accordingly, the trial court’s finding of unfitness on the State’s
allegation in paragraph 9(C) of the amended petition must be reversed.
¶ 45 However, the State is not required to prove every ground of unfitness alleged. “A parent’s
rights may be terminated if even a single alleged ground for unfitness is supported by clear
and convincing evidence.” In re Gwynne P., 215 Ill. 2d at 349, 830 N.E.2d at 514. Therefore,
we next consider whether the trial court’s finding of unfitness on the final ground alleged
may be sustained.
¶ 46 II. Inability to Discharge Parental Responsibilities Due to Mental Impairment
¶ 47 Julia argues that the finding of unfitness due to mental impairment is contrary to the
manifest weight of the evidence.
“A trial court’s determination that a parent’s unfitness has been established by clear and
convincing evidence will not be disturbed on review unless it is contrary to the manifest
weight of the evidence. A court’s decision regarding a parent’s fitness is against the
manifest weight of the evidence only where the opposite conclusion is clearly apparent.
[Citation.] In assessing whether the court’s decision is contrary to the manifest weight
of the evidence, a reviewing court must remain mindful that every matter concerning
parental fitness is sui generis. [Citation.] Each case must therefore be decided on the
particular facts and circumstances presented.” Id. at 354, 830 N.E.2d at 516-17.
¶ 48 The statute controlling this issue provides that a parent may be found unfit due to an
“[i]nability to discharge parental responsibilities supported by competent evidence from
a psychiatrist, licensed clinical social worker, or clinical psychologist of mental
impairment, mental illness or an intellectual disability as defined in Section 1-116 of the
Mental Health and Developmental Disabilities Code, or developmental disability as
defined in Section 1-106 of that Code, and there is sufficient justification to believe that
the inability to discharge parental responsibilities shall extend beyond a reasonable time
period.” 750 ILCS 50/1(D)(p) (West Supp. 2011).
¶ 49 “It is well settled that, in order to find a parent unfit under section 1(D)(p) of the
[Adoption] Act, the State must (1) present competent evidence that the parent suffers from
a mental impairment, mental illness, or mental retardation sufficient to prevent her from
discharging a parent’s normal responsibilities; and (2) there must be sufficient evidence to
conclude that the inability will extend beyond a reasonable time period.” In re M.M., 303 Ill.
App. 3d 559, 566, 709 N.E.2d 259, 264 (1999). Therefore, a mere showing of mental
impairment does not satisfy the statute. The State must show that the mental impairment
renders the parent unable to discharge her parental responsibilities and that the inability will
extend beyond a reasonable period of time. See In re R.C., 195 Ill. 2d 291, 305, 745 N.E.2d
1233, 1242 (2001) (section 1(D)(p) does not allow a finding of unfitness based on a mere
showing of mental impairment but also requires proof that the parent’s mental condition
renders her unable to discharge her parental responsibilities and that the inability will extend
beyond a reasonable time period).
¶ 50 The court based its finding of unfitness under section 1(D)(p) on the 2008 evaluation
report of Klug and the testimony of Kosmicki regarding his 2011 evaluation. Both Klug and
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Kosmicki are licensed clinical psychologists. Both diagnosed Julia with PTSD and borderline
intellectual functioning, and Kosmicki also diagnosed her with borderline personality
disorder not otherwise specified. However, Klug did not testify. In March and April of 2008,
when Klug evaluated Julia and prepared his report, the goal was to return S.L. to Julia within
12 months. Klug found that Julia’s attention was good, that she was not easily distracted, that
she was cooperative, and that she was oriented to time, place, and persons. He found her
intellectual functioning to be low and her ability to learn limited, but he did not express an
opinion that Julia suffered from a mental impairment that rendered her unable to discharge
her parental responsibilities.
¶ 51 Kosmicki testified in February of 2012 that he did not believe that Julia was able to
discharge parental responsibility at the time of his interview on April 18, 2011. He had not
interviewed Julia or evaluated any additional reports or evidence since April 2011. Kosmicki
testified that, when he interviewed Julia, she was oriented in all spheres and exhibited no
evidence of any formal thought disorders. He said that she “became quite emotional” when
she talked about the abuse she suffered in the past, but that did not seem unusual to him. He
found her to be “mostly cooperative and pleasant to deal with.”
¶ 52 Kosmicki explained that his testing showed Julia to be in the range of borderline or
mildly mentally retarded. When asked his opinion regarding her prognosis, he testified, “My
primary recommendation was at the time I saw her I didn’t believe that she had the logistical
stability in her life, home, work, those kinds of things or the emotional stability to manage
the demands of caring for a child.” He testified that he did not believe she would be able to
discharge her parental responsibilities if S.L. had been returned to her the day after he
interviewed her. When asked if his opinion was based on Julia’s mental impairment, he
testified that was part of the basis of his opinion, but that the larger factor in his conclusion
was her past history because “the single best predictor of future behavior is history.”
¶ 53 The only evidence concerning the issue of whether Julia’s mental impairment rendered
her incapable of discharging her parental responsibilities toward S.L. came from Kosmicki’s
written report and testimony. The essence of Kosmicki’s testimony is that Julia suffered from
a mental impairment and that he believed she could not discharge her parental
responsibilities for S.L. at the time of the interview. However, he did not testify that it was
her mental impairment that rendered her incapable of parenting S.L. Instead, he based his
opinion that she was not capable of discharging her parental responsibilities primarily on her
past history. Evidence of an inability to discharge parental responsibility based on a parent’s
past history is not equivalent to evidence of an inability to discharge parental responsibility
based on the parent’s current mental impairment.
¶ 54 During this time period, it is also relevant that Julia was adequately caring for M.P., that
DCFS had found no reason to intervene to remove M.P. from Julia’s custody, and that
Kosmicki did not find any mental impairment sufficient to prevent Julia from discharging
her parental responsibilities toward M.P. In fact, the trial court asked Kosmicki, “If she can
adequately parent [M.P.], why can’t she adequately parent [S.L.]?” When he replied,
Kosmicki did not state that Julia’s mental impairment rendered her incapable of discharging
her parental responsibilities for either M.P. or S.L., but he only pointed out the differences
in gender and age between the children. Under the facts of this case, we note that it is
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illogical to believe that Julia suffered from a mental impairment severe enough to render her
incapable of discharging her parental responsibilities for S.L., but that, at the same time, she
was capable of discharging her parental responsibilities for M.P.
¶ 55 Since there is no other evidence of the first element of this statutory ground for unfitness,
the trial court’s finding that the State proved the first element of section 1(D)(p) is against
the manifest weight of the evidence. The State’s failure to prove the first element of the
statute is fatal to a finding of unfitness on this ground because proof by clear and convincing
evidence of both elements is necessary. In re M.M., 303 Ill. App. 3d at 566, 709 N.E.2d at
264. Nevertheless, we will briefly discuss the evidence presented on the second element of
the statute, which we also find lacking.
¶ 56 As to the second element of the statute, the State also failed to prove that there was
sufficient justification to believe that Julia’s inability to discharge her parental
responsibilities would extend beyond a reasonable time. Kosmicki testified that before Julia
could be reunited with S.L., she needed long-term intensive therapy. He acknowledged that
she was in counseling and had been receiving mental health treatment when he met with her,
but he did not know if the therapy was helping her. When asked how long he thought Julia
would need to show that she was able to parent S.L., he testified that he believed she needed
“six months to a year of logistical stability, being in one place, utilities, having a home,
having no arrests, having no instance of domestic violence, [and] no substance abuse.” Julia
moved into a four-bedroom house with M.P. and Schroeter on July 22, 2011. The evidentiary
hearing was conducted on February 24 and March 16, 2012. The trial court’s order was
entered on June 11, 2012.
¶ 57 At the time of the second day of the hearing, the evidence is undisputed that Julia had
lived in the same residence, which DCFS deemed appropriate, for almost nine months. Julia
was visiting with S.L. in this home, living there unsupervised with her son M.P., and for at
least part of the time, also taking care of Schroeter’s two daughters unsupervised on Sundays
when Schroeter worked. During that time period, she had utilities, no arrests, no instances
of domestic violence, and no substance abuse.
¶ 58 Additionally, the other evidence presented does not support a finding that the State
proved the second element of section 1(D)(p). Every caseworker who testified acknowledged
that Julia cooperated with their service requests throughout the case and after Kosmicki’s
evaluation. Kissner, the caseworker from the end of March 2011 through the date of the
hearing, testified that Julia was meeting all of DCFS’s requirements and that the only
remaining problem was that, during visits, Julia lacked the appropriate level of interaction
with S.L. However, Kosmicki did not base his opinion about Julia’s inability to discharge
parental responsibilities on her interaction with S.L., and he testified that he placed very little
weight on the parenting assessment he conducted because Julia’s interaction with S.L. had
been limited. Kissner expressed concern about Julia’s refusal to take medicine as prescribed,
but by the time of the hearing, it was undisputed that she had voluntarily begun to take her
prescriptions again until they caused an allergic reaction. The record also indicates that the
medications that made Julia feel “like a zombie” and stop taking them were prescribed for
bipolar disorder and obsessive-compulsive disorders, conditions that Kosmicki did not find
when he evaluated Julia.
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¶ 59 The only basis for the trial court’s finding of unfitness on the second element of section
1(D)(p) is Kosmicki’s testimony that Julia would need six months to a year of “logistical
stability” to demonstrate that she had made sufficient changes to enable her to regain custody
of S.L. However, at the time of the hearing, Julia had demonstrated every element of the
“logistical stability” that Kosmicki found essential. Thus, the trial court’s finding that the
State proved the allegation of unfitness pursuant to section 1(D)(p) of the Adoption Act is
against the manifest weight of the evidence and must be reversed.
¶ 60 CONCLUSION
¶ 61 For all of the reasons stated, the trial court’s orders finding Julia unfit and terminating
her parental rights are reversed, and this cause is remanded to the circuit court for further
proceedings consistent with this opinion.
¶ 62 Reversed and remanded.
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