In re S.L., a Minor (The People of the State of Illinois, Appellant,
Julia F., Appellee)
Appeal from the Appellate Court for the Fifth District.
Appellate court judgment affirmed in part and reversed in part. Circuit court judgment affirmed in part and reversed in part.
Where parental unfitness is based on lack of progress during any nine-month period, statute calls for that period's specification; but the absence thereof was a mere pleading defect which was forfeited when not raised in the trial court (where it could have been corrected) after the parties proceeded as if all possible nine-month periods were relevant--claim of failure to state a cause of action rejected.
For People State of Illinois, APPELLANT: Ms. Rebecca E. McCormick, State's Attorneys Appellate Prosecutor, Mt. Vernon, IL.; Ms. Ann Catherine Maskaleris, Office of the Attorney General, Chicago, IL.; State's Attorney Marion County, Marion County Courthouse, Salem, IL.
For Julia F., APPELLEE: Mr. Bill J. Milner, Law Offices of Bill J. Milner, Salem, IL.
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.
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, 980 N.E.2d 796, 366 Ill.Dec. 703. 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).
S.L., the daughter of Julia F. and Bruce V., was born on May 3, 2002. 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.
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 ...