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In re J.J.

June 20, 2002

IN RE J.J. ET AL., MINORS (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
PHYLLIS J., APPELLEE).



The opinion of the court was delivered by: Justice Kilbride

UNPUBLISHED

Docket No. 90539-Agenda 11-November 2001.

The State filed a petition against the respondent, Phyllis J. (mother), alleging that her minor children were abused or neglected. It subsequently filed a petition in the circuit court of Fulton County to terminate the mother's parental rights under the Adoption Act (750 ILCS 50/1 et seq. (West 1998)). In part, the petition alleged that the mother exhibited habitual drunkenness for at least one year immediately prior to the commencement of the unfitness proceedings (see 750 ILCS 50/1(D)(k) (West 1998)). The circuit court found that the State proved the mother unfit by clear and convincing evidence. The mother appealed, and the appellate court reversed, holding that the finding of unfitness was against the manifest weight of the evidence. 316 Ill. App. 3d 817, 823.

This court is asked to clarify the proper time period for admitting evidence of habitual drunkenness and to determine whether the State met its burden of showing unfitness in this case by clear and convincing evidence. We find that the circuit court failed to apply the proper test for considering evidence of habitual drunkenness; moreover, that if the proper test is applied, the State failed to satisfy its burden of proof. Thus, we conclude that the critical time period for presenting evidence of habitual drunkenness is the one year just prior to the filing of the State's termination petition and that the State failed to support its allegation of habitual drunkenness in this case by clear and convincing evidence.

BACKGROUND

In April 1996, the State filed a neglect petition against the mother and her husband, alleging that their minor children were abused or neglected. *fn1 At the adjudicatory hearing held in June 1996, the mother admitted she had endangered the minors by the excessive use of alcohol and by engaging in physical altercations while under the influence of alcohol, as alleged in the State's supplemental petition. The circuit court found the minors abused or neglected and dismissed the other counts of the supplemental petition. At the dispositional hearing, the circuit court noted that the mother had made significant progress in improving her housing conditions and in acknowledging her alcohol problem, but transferred guardianship of the minors to the Department of Children and Family Services (DCFS). This order was filed on October 23, 1996.

Permanency review hearings were held on October 22, 1996, and again in April 1997. During the latter hearing, the circuit court agreed with the social worker assigned to the case, the guardian ad litem, and the mother's attorney that the mother was "making substantial progress."

At the next permanency hearing in September 1997, the social worker recommended that the children be returned home with close monitoring for six months because the mother had maintained an orderly house, dealt with her financial problems, taken part in an aftercare alcohol treatment program, attended parenting classes, and abstained from alcohol for eight months. The circuit court adopted this recommendation and returned physical custody of the children to the mother. In January 1998, the children were again removed from the home after an unidentified police officer reportedly found the mother intoxicated while caring for them. At permanency review hearings in March and November 1998, the mother was ordered to cooperate with DCFS or risk losing her parental rights.

On March 19, 1999, the State filed a petition to terminate the mother's parental rights on three grounds: (1) habitual drunkenness for at least one year immediately prior to the commencement of the unfitness proceedings (750 ILCS 50/1(D)(k) (West 1998)); (2) failure to make reasonable efforts to correct the conditions that resulted in the removal of the children (750 ILCS 50/1(D)(m) (West 1998)); and (3) failure to make reasonable progress toward the return of the children within nine months of an adjudication of abuse or neglect (750 ILCS 50/1(D)(m) (West 1998)). The only ground raised in this appeal is the mother's alleged habitual drunkenness (750 ILCS 50/1(D)(k) (West 1998)).

At the fitness hearing begun in August 1999, the State presented the testimony of Kelly Rockwell, a Catholic Social Services (CSS) worker recently assigned to the family. Her only direct knowledge of the mother's alcohol use was the mother's admission that she had consumed some unspecified amount of alcohol the night before a court hearing in May 1999. Rockwell offered no other specific evidence concerning that drinking incident. Nonetheless, the State had suspected the mother of intoxication and requested that she submit to a breath alcohol test. At the fitness hearing, the State stipulated that the Breathalyzer test given to the mother at that time resulted in a reading of zero.

Rockwell also testified about the contents of the case file and the mother's service plans, although the plans were never admitted into evidence. She testified that one of the mother's visits with the children was cancelled in July 1996, due to the mother's intoxication, and that CSS records indicated the mother was diagnosed as alcohol dependent in February 1997. Accordingly, the mother was instructed to abstain from alcohol and to attend Alcoholics Anonymous (AA) meetings, counseling at the Community Mental Health Center (CMHC), and parenting classes. The mother's file indicated that she did not completely satisfy any of these requirements.

The State also presented testimony from Terry Boughan, the mother's counselor at CMHC. He indicated that the mother had completed an inpatient treatment program in February 1997, and had been assigned to an outpatient aftercare program at CMHC meeting once a week. She stopped attending the outpatient sessions in November 1997, claiming first that she was ill and then that she had no transportation. Due to her failure to participate in the program, her treatment file was closed in February 1998. Boughan stated that he did not believe she was ready for discharge at that time. Boughan also testified that he believed the mother's reasons for failing to attend the sessions were credible and that she sincerely wanted treatment.

The mother testified on her own behalf, acknowledging that she drank some unspecified quantity of alcohol and missed weekly alcohol treatment sessions between October 1998 and March 19, 1999, even though her service plans required her to abstain from alcohol and to comply with the recommended treatment program. She stated that due to transportation problems she had attended only four or five AA meetings. She also testified that she did not completely abstain from alcohol until three or four weeks before her fitness hearing on September 23, 1999, but she did not specify how often or how much she drank.

The circuit court found the State proved habitual drunkenness by clear and convincing evidence because it showed she "has had an alcohol dependency and *** she still consumes alcohol or at least until three weeks ago, and that addiction occurred for at least one year prior to the commencement of this termination petition." The court later concluded that it was in the best interests of the children to terminate her parental rights.

The mother appealed the unfitness finding, and the appellate court reversed, with one judge dissenting. The majority of the appellate court held that there was insufficient proof of the frequency and extent of the mother's drinking between March 19, 1998, and March 19, 1999, to show habitual drunkenness by clear and convincing evidence. 316 Ill. App. 3d at 823-24. The dissent argued that there was a sufficient showing to support the circuit court's finding because the mother continued to drink even after being told that abstinence was "a prerequisite to regaining custody of her children." 316 Ill. App. 3d at 827 (Homer, J., dissenting). We granted the State's petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

In this case, we are asked to consider the proper time frame for evidence of habitual drunkenness as well as whether the appellate court erred by reversing as against the manifest weight of the evidence the circuit court's finding that the mother was proven unfit by clear and convincing evidence (316 Ill. App. 3d at 823). Simply stated, the key to the resolution of this case is the use of the proper test, not the application of that test.

I. Proper Evidentiary Time Frame

The parties disagree on the proper evidentiary time frame considered in determining whether a parent is unfit due to habitual drunkenness. Under the Adoption Act, parental "unfitness" includes"[h]abitual drunkenness *** for at least one year immediately prior to the commencement of the unfitness proceeding." 750 ILCS 50/1(D)(k) (West 1998). The State argues that the statute permits the circuit court to consider evidence from both before and after this one-year period. The mother argues that only evidence within one year immediately prior to the filing of the State's petition may be considered.

The resolution of this issue requires us to construe section 1(D)(k) of the Adoption Act (750 ILCS 50/1(D)(k) (West 1998)). Since statutory construction is a question of law, we will review this issue de novo. In re C.N., 196 Ill. 2d 181, 208 (2001).

An unfitness proceeding begins when the State files a petition seeking the termination of parental rights. In re D.D., 196 Ill. 2d 405, 417 (2001). The statute requires proof of habitual drunkenness for "at least one year immediately prior to" the filing. (Emphases added.) 750 ILCS 50/1(D)(k) (West 1998). This language permits consideration of evidence preceding the filing date by more than one year. It does not, however, preclude the consideration of evidence after the filing date in all cases. Evidence of habitual drunkenness arising after the filing of the initial petition may be considered if the State files an amended or subsequent petition. An additional filing is necessary because the termination of parental rights affects a fundamental liberty interest and, thus, must comport with the requirements of due process. See In re M.H., 196 Ill. 2d 356, 362-63 (2001). The notice required in juvenile proceedings is the same as that constitutionally mandated in criminal or civil cases. People v. R.D.S., 94 Ill. 2d 77, 81 (1983). "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must `set forth the alleged misconduct with particularity.' " In re Application of Gault, 387 U.S. 1, 33, 18 L. Ed. 2d 527, 549, 87 S. Ct. 1428, 1446 (1967). Due to the serious nature of termination proceedings, it would be improper to raise additional allegations against a parent for the first time at the hearing. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570 n.7, 33 L. Ed. 2d 548, 556 n.7, 92 S. Ct. 2701, 2705 n.7 (1972) (" `it is fundamental that except in emergency situations *** due process requires that when a State seeks to terminate [a protected] interest ..., it must afford "notice and opportunity for hearing appropriate to the ...


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