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In re Janine M.A.

September 11, 2003

IN RE: JANINE M.A., CHEYENNE M.A., AND DANIEL M.A., MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
JEANETTE ANDERSON, RESPONDENT-APPELLANT, AND WELDON P. ANDERSON, RESPONDENT.



Appeal from Circuit Court of Mason County Nos. 00JA10 00JA8 00JA9 Honorable Thomas L. Brownfield, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

PUBLISHED

Respondent, Jeanette Anderson, appeals the February 2003 order of the circuit court of Mason County finding her to be an unfit parent and terminating her parental rights in Janine A., Daniel A., and Cheyenne A. (born February 15, 1991, August 15, 1989, and January 30, 1996, respectively). Respondent raises two arguments in this appeal.

She argues (1) the trial court's findings of unfitness were erroneous as a matter of law because the State's petitions to terminate parental rights were not sufficiently specific where they did not comply with a statutory notice requirement to apprise respondent she could "permanently" lose her parental rights (705 ILCS 405/2-13(4) (West 2002)); and (2) the trial court's determinations she was unfit and it was in the children's best interests her parental rights be terminated are against the manifest weight of the evidence. We affirm.

I. BACKGROUND

In August 2000, the State filed a petition for adjudication of wardship for each minor, alleging each was neglected because he or she resided in an injurious environment because there was a long history of domestic violence within the home and their father, Weldon P. Anderson, had twisted Daniel A.'s arm behind his back and threatened to burn the house down with Daniel A. inside if he testified against Weldon in a pending court matter.

In September 2000, respondent stipulated to the allegations in the petition. In November 2000, the trial court conducted a dispositional hearing. The parties agreed to the dispositional order of the trial court. Under the order, the children were found to be neglected and were made wards of the court while continuing to live with respondent. Weldon was not to reside with the family and was only to have supervised visits with the children. Respondent was to comply with Illinois Department of Children and Family Services (DCFS) recommendations and complete any counseling requirements. The children were later removed from respondent's care on March 7, 2001, and placed in foster homes.

In May 2002, the State filed three identical petitions to terminate parental rights, one for each minor. A hearing on the State's petitions was begun on September 11, 2002, and completed on November 18, 2002. At the close of evidence, the trial court found the State had proved by clear and convincing evidence respondent had failed to protect the minor children from conditions within their environment that were injurious to their welfare and had failed to make reasonable progress toward the return of the minor children to their home within nine months of the adjudication of neglect.

Having found respondent unfit, the court held a hearing on the best interests of the children on February 5, 2003. On that date, respondent's parental rights were terminated as to all three children. Respondent filed a notice of appeal on February 14, 2003, and on March 12, 2003, the trial court granted her motion to stay adoption of the children pending this appeal. On May 22, 2003, respondent father, Weldon P. Anderson, was dismissed as a party to the appeal after his attorney failed to file a separate brief.

II. ANALYSIS

A. Alleged Pleading Defect Relating to "Permanent" Termination of Parental Rights

Respondent first contends the trial court's finding of unfitness was erroneous because the State's petition to terminate her parental rights was defective on its face in that it failed to apprise her her parental rights could be "permanently" terminated. 705 ILCS 405/2-13(4) (West 2002).

Respondent did not raise this issue at trial. Generally, pleading defects must be raised at trial so they may be remedied; otherwise they are forfeited. In re Dragoo, 96 Ill. App. 3d 1104, 1107, 422 N.E.2d 263, 265 (1981). We choose, however, to address the argument on the merits. The forfeiture rule is a limitation on the parties and not the jurisdiction of the courts. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178, 1183 (1996). Further, a reviewing court may consider an issue not raised in the trial court if the issue is one of law and is fully briefed by the parties. Committee for Educational Rights, 174 Ill. 2d at 11, 672 N.E.2d at 1183.

When the sufficiency of pleadings is challenged, it is an issue of law and is reviewed de novo. U.S. Fire Insurance Co. v. Zurich Insurance Co., 329 Ill. App. 3d 987, 1002, 768 N.E.2d 288, 299 (2002).

Section 2-13(4) of the Juvenile Court Act of 1987 (Act) provides:

"(4) If termination of parental rights and appointment of a guardian of the person with power to consent to adoption of the minor under [s]section 2-29 is sought, the petition shall so state. If the petition includes this request, the prayer for relief shall clearly and obviously state that the parents could permanently lose their rights as a parent at this hearing.

In addition to the foregoing, the petitioner, by motion, may request the termination of parental rights and appointment of a guardian of the person with power to consent to adoption of the minor under [s]section 2-29 at any time after the entry of a dispositional order under [s]section 2-22." 705 ILCS 405/2-13(4) (West 2002).

In each of the State's May 2002 petitions to terminate parental rights, the prayer for relief requested that the parental rights of both Weldon and respondent "be terminated" as to each of the three minors, and that the guardianship administrator of DCFS "be authorized and empowered *** to consent to such adoption of said minor without further notice to or consent by the parents of the minor." The State's May 2002 petitions make no explicit request for "permanent" termination of respondent's parental rights.

Respondent argues the State's failure to comply with the Act's requirement that its petition "clearly and obviously" state respondent could "permanently" lose her rights as a parent renders the pleadings defective. She relies on In re Andrea D., 336 Ill. App. 3d 335, 339, 783 N.E.2d 681, 684-85 (2003), in which the court found the provision of section 2-13(4) of the Act requiring a petition to terminate parental rights must contain clear and obvious notice to parents they could "permanently" lose their parental rights at the hearing on the petition requires the notice necessarily use the word "permanently." However, the Supreme Court of Illinois recently directed the Second District to vacate its judgment and reconsider. In re Andrea D., 204 Ill. 2d 655, 789 N.E.2d 303 (2003) (nonprecedential supervisory order directing Second District to vacate its judgment and reconsider). The Second District has now ...


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