                                        2014 IL 115424



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 115424)

       In re S.L., a Minor (The People of the State of Illinois, Appellant, v. Julia F.,
                                        Appellee).


                               Opinion filed January 24, 2014.



        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 towards 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 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

        1
            Bruce did not appear or participate in the proceedings below and is not a party to this appeal.

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              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 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 towards 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


         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-
       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.

¶ 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
                                               -4-
       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,
                                                -5-
       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).

¶ 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:


                                                 -6-
               “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. 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
                                                  -7-
       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 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.

                                                  -8-
       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.




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