In re S.L.

Illinois Official Reports
Supreme Court
In re S.L., 2014 IL 115424Caption in Supreme In re S.L., a Minor (The People of the State of Illinois, Appellant, v.
Court: Julia F., Appellee).
Docket No. 115424
Filed January 24, 2014
Held Where parental unfitness is based on lack of progress during any
(Note: This syllabus nine-month period, statute calls for that period’s specification; but the
constitutes no part of the absence thereof was a mere pleading defect which was forfeited when
opinion of the court but not raised in the trial court (where it could have been corrected) after
has been prepared by the the parties proceeded as if all possible nine-month periods were
Reporter of Decisions relevant—claim of failure to state a cause of action rejected.
for the convenience of
the reader.)
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of Marion County, the Hon.
Michael D. McHaney, Judge, presiding.
Judgment Appellate court judgment affirmed in part and reversed in part.
Circuit court judgment affirmed in part and reversed in part.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Matt Wilzbach,
Appeal State’s Attorney, of Salem (Michael A. Scodro, Solicitor General, and
Ann C. Maskaleris, Assistant Attorney General, of Chicago, and
Patrick Delfino, Stephen E. Norris and Rebecca A. McCormick, of the
Office of the State’s Attorneys Appellate Prosecutor, of Mt. Vernon,
of counsel), for the People.
Bill J. Milner and Craig W. Griffin, of Salem, for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
¶1 This case comes to us from an order of the circuit court of Marion County finding, in
pertinent part, respondent, Julia F., unfit under section 1(D)(m)(iii) of the Adoption Act (750
ILCS 50/1(D)(m)(iii) (West 2010)) and terminating her parental rights to S.L., a minor child,
because she failed to make reasonable progress toward the return of S.L. during any
nine-month period after the end of the initial nine-month period following the adjudication of
neglect. The appellate court reversed this finding of unfitness after agreeing with Julia’s
contention, raised for the first time on appeal, that the State did not comply with section
1(D)(m)(iii) in that it did not file a separate notice specifying the particular nine-month period
or periods upon which it was relying. 2012 IL App (5th) 120271, ¶ 44. For the reasons that
follow, we reverse that portion of the appellate court’s judgment and affirm the circuit’s court
finding of unfitness under section 1(D)(m)(iii).
¶2 BACKGROUND
¶3 S.L., the daughter of Julia F. and Bruce V., was born on May 3, 2002. 1 She was adjudicated
abused or neglected on November 29, 2007, and was made a ward of the court on January 3,
2008. The State alleged in its petition for the adjudication of wardship that S.L. was a
neglected minor pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (705 ILCS
405/2-3(1)(b) (West 2006)) in that she was in an environment injurious to her welfare because
Julia was not safeguarding her physical welfare. The conditions that gave rise to the removal of
S.L. were insect bites, apparent dog bites, substantial bruising to her shoulder and groin, and
1
Bruce did not appear or participate in the proceedings below and is not a party to this appeal.
-2-
unclean living conditions. At each of the five subsequent permanency hearings, the goal was
for S.L. to return to Julia within 12 months, while custody and guardianship of the minor
remained with the Department of Children and Family Services (DCFS). On July 21, 2010, the
goal was changed to one of substitute care pending court determination of termination of
parental rights. Julia was continuously represented by counsel throughout the proceedings.
¶4 On November 30, 2011, the State filed an amended petition for the termination of parental
rights. Paragraph 9 alleged that Julia was unfit to have a child based on one or more of the
following grounds:
“A. She has failed to make reasonable efforts to correct the conditions that were the
basis for the removal of the minor from her care, as defined by 750 ILCS
50/1(D)(m)(i).
B. She has failed to make reasonable progress toward the return of the child to her
within nine months after an adjudication of neglect under Section 2-3 of the Juvenile
Court Act of 1987, being the period of November 29, 2007 to August 29, 2008, as
defined by 750 ILCS 50/1(D)(m)(ii).
C. She has failed to make reasonable progress toward the return of the minor to her
during any nine month period after the end of the initial nine month period following
the adjudication of neglect, as defined by 750 ILCS 50/1(D)(m)(iii).
D. She is unable to discharge parental responsibilities as supported by competent
evidence from a licensed clinical psychologist of mental impairment, and there is
sufficient justification to believe that the inability to discharge parental responsibilities
shall extend beyond a reasonable time period.”
The State concedes that it did not file a separate notice, as specified under section 1(D)(m)(iii)
of the Adoption Act (750 ILCS 50/1(D)(m)(iii) (West 2010)), identifying which nine-month
period or periods were the subject of the termination proceeding.
¶5 On February 24, 2012, the trial court conducted a fitness hearing. During the hearing, the
State recognized, consistent with the amended petition to terminate parental rights, that the
initial nine-month period after the adjudication of neglect began on November 29, 2007, and
thus would have ended on August 29, 2008. 2
¶6 Relevant to the allegation contained in paragraph 9(C) of the amended petition, the State
presented the testimony of Danya McDaniel, Julia’s caseworker from June 2008 until April
2010. McDaniel testified that when she drafted the permanency report in September 2008,
Julia’s overall rating was unsatisfactory. McDaniel testified that although Julia had engaged in
services, she lacked the “ability to internalize and demonstrate the learning of whatever the
2
Consequently, there were four consecutive nine-month periods running from the end of the initial
period to the date of the fitness hearing. These four periods spanned from August 29, 2008 to August
29, 2011.
-3-
services were.” McDaniel explained that there were several incidents throughout the case that
indicated a lack of stability, including Julia’s choice to move multiple times. According to
McDaniel, Julia showed a lack of good judgment because she chose boyfriends who were
physically abusive and she associated with people who were not appropriate due to their
criminal behavior or sex offender status. McDaniel also rated Julia as unsatisfactory on the
requirement of obtaining and maintaining appropriate and safe housing because her home was
unclean, had rodents and cockroaches, and was too small for the number of people living there.
¶7 McDaniel further testified that Julia had supervised visits with S.L. every week, which
McDaniel occasionally observed. She tried to help Julia initiate appropriate interaction with
S.L. during these visits. Julia’s behavior toward S.L., however, was sometimes not age
appropriate and she would use inappropriate language. Julia had been allowed unsupervised
visits with S.L. for a short period of time, but due to the unsanitary condition of her residence
and Julia’s questionable boyfriends, the unsupervised visits were suspended. In March 2009,
McDaniel completed another service plan review. She again gave Julia an overall progress
rating of unsatisfactory because of “poor judgment, lack of stability, [and] situations that
would put a child [S.L.’s] age at risk, [including] *** bouncing from man to man [and]
bouncing from home to home.”
¶8 During McDaniel’s oversight of Julia’s case, which spanned almost two years, she found
Julia’s progress unsatisfactory and believed that she had not made sufficient progress toward
correcting the conditions that led to S.L.’s removal. McDaniel testified that Julia was willing to
do what was asked of her, but she did not make demonstrable improvement in her
decision-making regarding her choice of boyfriends and roommates or in the way she
interacted with S.L.
¶9 Rachel Kissner, Julia’s caseworker from March 2011 until the fitness hearing, testified that
she prepared a service plan review and evaluation of Julia in September 2011. Kissner
supervised the visits between Julia and S.L. and rated Julia’s interaction with the child as
unsatisfactory because Julia struggled to engage in age appropriate interactions with S.L.
Kissner observed a lack of interaction during visits and would have to direct Julia to engage
S.L. in activities. Kissner testified that Julia was not firm enough in disciplining S.L., that she
looked to Kissner to tell her what to do, and that S.L. was very confused about her situation.
Kissner testified that during the period of time she had the case, she could not say that she had
seen improvement in the way Julia interacted with S.L.
¶ 10 After the State rested, Julia’s attorney moved for a directed verdict on all counts of the
amended petition except paragraph 9(C). The trial court denied the motion as to paragraph
9(D) and took the motion under advisement as to the other two counts. During Julia’s
subsequent testimony, her counsel elicited answers on points that encompassed all four
nine-month periods following the adjudication of neglect. She testified regarding her service
plans throughout the time that S.L. had been in the custody of DCFS and since the beginning of
her case. She testified that throughout the whole time period she maintained contact with
caseworkers and “completed everything that they [had] wanted [her] to complete” with the
exception of certain counseling. She further testified regarding specific activities and services
which encompassed each of the time periods.
-4-
¶ 11 Following the fitness hearing, the trial court entered an order finding Julia and Bruce unfit.
Concerning Julia, the trial court found that the State proved by clear and convincing evidence
that she met the definition of an unfit parent as alleged in paragraphs 9(C) and 9(D) of the
amended petition. The trial court granted Julia’s motion for a directed finding on the remaining
two allegations. On June 11, 2012, after a best interest hearing, the trial court entered an order
terminating Julia and Bruce’s parental rights to S.L. and authorized DCFS to consent to S.L.’s
adoption.
¶ 12 On appeal, Julia raised for the first time that the finding of unfitness based upon paragraph
9(C) of the amended petition must be reversed because the State failed to file a separate
pleading, pursuant to section 1(D)(m)(iii) of the Adoption Act, notifying her which
nine-month period or periods it was relying upon. 2012 IL App (5th) 120271, ¶¶ 36, 37. In
reversing the trial court’s finding of unfitness based upon paragraph 9(C), the appellate court
rejected the State’s forfeiture argument and concluded that, because the State did not comply
with the Adoption Act’s notice pleading provision, the trial court could not terminate Julia’s
parental rights based on an allegation that was not in conformity with the statute. Id. ¶ 44. The
appellate court found that the portion of the statute requiring the notice pleading is as much a
part of the allegation of unfitness as the basic provision that the parent had failed to make
reasonable progress toward the return of the child. Id. ¶ 39. Consequently, the appellate court
held that the State’s duty to comply with that portion of the statute may not be forfeited by the
failure of a parent to raise the issue in the trial court. Id. The appellate court also reversed the
trial court’s finding of unfitness due to mental impairment as alleged in paragraph 9(D) of the
amended petition after concluding that it was against the manifest weight of the evidence. Id.
¶ 59.
¶ 13 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
2010).
¶ 14 ANALYSIS
¶ 15 As it did before the appellate court, the State contends that Julia forfeited her claim that it
failed to comply with the statutory notice requirement contained in section 1(D)(m)(iii)
because she failed to raise the issue during the trial court proceedings, thereby denying the
State the opportunity to remedy what was a pleading defect. Julia asserts that the forfeiture rule
is inapplicable because the State must disclose the specific nine-month period or periods at
issue in order to state a cause of action under section 1(D)(m)(iii).
¶ 16 In reviewing a statute, our framework is a familiar one. Our objective “is to ascertain and
give effect to the intent of the legislature.” Gaffney v. Board of Trustees of the Orland Fire
Protection District, 2012 IL 110012, ¶ 56. The most reliable indicator of legislative intent is
the statutory language, given its plain and ordinary meaning. Id. We will not depart from the
plain statutory language by reading into it exceptions, limitations, or conditions that conflict
with the expressed intent of the legislature. Id. We review de novo questions of statutory
construction. In re D.D., 196 Ill. 2d 405, 418 (2001). Similarly, when a challenge is raised to
the sufficiency of a pleading, we apply de novo review. In re Kenneth J., 352 Ill. App. 3d 967,
973 (2004).
-5-
¶ 17 Although termination of parental rights proceedings involve fundamental liberty interests,
they are civil in nature and governed by the Code of Civil Procedure (Code). See, e.g., In re
J.R., 342 Ill. App. 3d 310, 315-16 (2003). Section 2-612(c) of the Code provides that “[a]ll
defects in pleadings, either in form or substance, not objected to in the trial court are waived.”
735 ILCS 5/2-612(c) (West 2010). The waiver or forfeiture rule does not do away, however,
with the necessity of stating a cause of action in any case. Adcock v. Brakegate, Ltd., 164 Ill. 2d
54, 61-62 (1994). Specifically, courts in this state recognize that the forfeiture rule is relaxed
when the State’s termination petition fails to state a cause of action. See, e.g., Kenneth J., 352
Ill. App. 3d at 973. In connection with petitions for termination, the requirement of pleading
with specificity simply requires an allegation that the parent is unfit, and identification of the
specific statutory grounds on which the charge of unfitness is based. In re D.C., 209 Ill. 2d 287,
295 (2004); accord In re Gwynne P., 215 Ill. 2d 340, 349 (2005). The question then in this case
is whether the State’s defective notice resulted in the failure to state a cause of action.
¶ 18 Section 1(D)(m)(iii) of the Adoption Act sets forth the following relevant basis for the
termination of parental rights:
“D. ‘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 under
Section 2-3 of the Juvenile Court Act ***.” 750 ILCS 50/1(D)(m)(iii) (West 2010).
¶ 19 In 2006, pertinent to the issue before us, the legislature added the following language to the
above provision:
“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 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.” Id.¶ 20 We find the allegations in the amended petition in this case sufficient to state a cause of
action under section 1(D)(m)(iii) and to inform Julia as to the nature of the neglect charge. The
amended petition alleged that Julia was unfit because she “failed to make reasonable progress
toward the return of the minor to her during any 9 month period after the end of the initial nine
month period [being the period of November 29, 2007 to August 29, 2008] following the
adjudication of neglect, as defined by 750 ILCS 50/1(D)(m)(iii).” The State thus set forth the
specific statutory ground upon which it based its allegation of unfitness, and apprised Julia that
it sought to terminate her parental rights, in part, based on her failure to make reasonable
progress toward S.L.’s return during any nine-month period from August 29, 2008, forward.
-6-
The amended petition therefore met the criteria previously set forth by this court for a
sufficient pleading in a termination case. D.C., 209 Ill. 2d at 295; Gwynne P., 215 Ill. 2d at 349;
see also In re J.R., 342 III. App. 3d 310, 316 (2003) (petition did not fail to state cause of action
where it sought to terminate parental rights citing section 1(D)(q) of the Adoption Act for
finding mother unfit, but failed to specify mother could “permanently” lose her parental rights
as required by statute); cf. In re Rauch, 45 Ill. App. 3d 784, 787-89 (1977) (the State’s
termination petition failed to state a cause of action when the petition failed to allege that the
mother was an unfit parent, and did not set forth an alleged ground for unfitness).
¶ 21 The State’s pleading error in not providing notice to Julia under section 1(D)(m)(iii) does
not change our determination. This provision does not require the State to specify the
nine-month period or periods at issue in the termination petition itself but, rather, provides that
the State shall file with the court and serve on the parties a notice pleading stating the time
period or periods at issue at least three weeks before discovery closes. While this provision
states that the “allegations in the [notice] pleading shall be treated as incorporated into the
petition or motion” (750 ILCS 50/1(D)(m)(iii) (West 2010)), we do not interpret this language,
as Julia suggests, to mean that when the State does not file a notice specifying the period, it
fails to state a cause action. If we were to interpret the statute as Julia urges, a petition alleging
unfitness pursuant to section 1(D)(m)(iii) would not state a cause of action when the petition
itself was filed, but only later if the notice is served on the parties and filed with the court
before the close of discovery. We find such an interpretation illogical and unworkable.
¶ 22 We are also not persuaded by Julia’s claim that the notice provision is part of the cause of
action because the legislature specified that a parent’s failure to file a written denial of the
allegations “shall not be treated as an admission that the allegations are true.” Id. The State is
not claiming that her failure to file a written denial of the allegations should somehow affect
the outcome of this case, or be treated as an admission. We fail to see how the relied upon
language informs our interpretation of the statute, or changes our determination that a
defective notice does not result in the failure to state a claim.
¶ 23 Additionally, under Julia’s suggested interpretation, there would be no incentive for a
parent to object to a defective notice in the trial court. On the contrary, a parent who did not
receive notice, and was ultimately found unfit, could raise the issue for the first time on appeal,
thereby receiving a second opportunity to defend against the allegations if the State chose to
proceed on remand. Such a delay would be detrimental to the welfare of the child whose future
is at stake because it would prevent him or her from obtaining a prompt, just, and final
resolution of his or her status. As this court has previously emphasized, it is not in a child’s best
interest for his or her status to remain in limbo for extended periods of time. See In re D.S., 198
Ill. 2d 309, 328 (2001); see also Ill. S. Ct. R. 311(a)(5) (eff. Feb. 26, 2010).
¶ 24 The parties do not dispute that the legislature added the notice pleading provision to the
statute, because in a case such as this, where there is more than one possible nine-month period
from which the State could seek to prove unfitness, such notification of the time period allows
a parent to better prepare a defense. We recognize in the instant case that while the State did
not specify in a separate notice, or at the hearing, which period or periods formed the basis for
-7-
its allegation of unfitness, it is apparent from the record that the parties proceeded as though all
four nine-month periods were relevant.
¶ 25 The two caseworkers, McDaniel and Kissner, provided testimony covering all four periods
regarding their respective conclusions that Julia’s progress was unsatisfactory. McDaniel was
Julia’s caseworker during the first three nine-month periods at issue, while Kissner was her
caseworker during the fourth nine-month period. Similarly, Julia defended against all four time
periods. Specifically, she testified regarding the service plans during the entire time that S.L.
had been in the custody of DCFS. She further testified that throughout the whole time period
she maintained contact with her caseworkers and completed everything that they had wanted
her to complete with the exception of some counseling.
¶ 26 Julia has not indicated any specific harm or prejudice to her as a result of the State’s error.
She does not claim the lack of notice caused surprise or hindered the preparation of a proper
defense. Instead, Julia requests that we find, in essence, an implied harm when the State fails to
provide proper notice because of the fundamental rights at stake in a termination case and the
overall importance of the statutory notice provision. Julia’s argument finds no support in our
caselaw and would be detrimental to the welfare of S.L. by unnecessarily delaying resolution
of her permanent placement.
¶ 27 For all these reasons, we conclude that the State’s failure to file a separate notice pleading
identifying the nine-month period or periods at issue constitutes a pleading defect, not a failure
to state a cause of action, which under section 2-612(c) of the Code was forfeited by Julia
because she failed to raise the issue in the trial court when it still could be remedied.
¶ 28 CONCLUSION
¶ 29 We reverse the portion of the appellate court’s judgment which reversed the circuit court’s
order finding Julia unfit under section 1(D)(m)(iii) of the Adoption Act. We do not disturb that
portion of the appellate court’s holding which reversed the circuit court’s finding of unfitness
due to mental impairment as alleged in paragraph 9(D) of the amended petition as it was not an
issue presented by the State for our review.
¶ 30 Appellate court judgment affirmed in part and reversed in part.
¶ 31 Circuit court judgment affirmed in part and reversed in part.
-8-