fitness did julia object to raise the lack of statutory notice this year and should be clear of the right to notice a particular nine month period as statutory only there is no constitutional right to notice of a particular nine month period juliet proceeded to the fitness hearing and probably defended the allegations of unfitness if notice of the time periods was material to the preparation of her defense and she would have asked about it at some point during the trial court proceedings but she didn't if she was confused or could not prepare her case and that would have been apparent to her during the trial court proceedings and she could have asked about the lack of notice than but she did and it was not until julia appeal from the orders finding her unfit and terminating her punch all rights to she first raised the lack of notice issue but on appeal to the appellate court and even in her briefing before this court she has never identified and he specifically edges to her resulting from the lack of notice perhaps that is because there is no way there could be any confusion that this allegation went to all the potential nine month period because julia did not make reasonable progress and really made no improvement during the entire three year well it took to the section one d m three charge the consequences of invalidating the fitness and terminations orders when the statute provides no consequences for failure to issue the notice are severe julia's failure to timely object to the lack of notice and to look peel has now delayed resolution of the child's permanent placements and it encourages gamesmanship providing respondent parents an incentive not to object to the lack of noticed during the trial court proceedings in order to reserve a winning argument erkki all the legislature could not have intended that  timely raise during the trial court proceedings all the facts and pleadings either in form or substance including a purported lack of notice as to the time periods that issue and unfitness charge under section one d m three or else waive it as an appellate court stated that respectfully we believe the appellate court is wrong the notice provision is a consequence of making the one d m three allegation of unfitness it's not required in the petition that solve it's required at some later time three weeks before the close of discovery and prior to the hearing at the time it added the notice provision the legislature is presumed to have known this chorus established us that adds but in order to rule that a petition for termination need allegation of unfitness or cause of action under one d m three would be stated and still the notice was issued but it didn't do that or it could have detail the consequence for the failure to issue the notice but it didn't do that either it would be a exactly right your honor if it was if there was a problem in preparing her defense giulio would have known that and preparing her defense through the lack of notice but obviously there wasn't and you're correct there was a minutes during the entire three year period that she really failed to make any improvement at all so there could not have been any confusion in this case there was no prejudice no there was no prejudice in this case and she has never specifically identified even in the briefing  court to this date any prejudice that another to her as a result of the lack of notice and this is a consequence of course when we talk about whether the statute is a directory or mandatory this court as recently as that  case looked at the facts of the case before it gets to determine whether the right protected would be generally enjoyed under a directory reading and there is no prejudice here for the reasons that your honor alluded to and know their rights which is statutory only clearly would not be prejudiced generally entered under a directory reading and yes the consequences of the mandatory reading would be severe it could it has delayed placements of the minor child the permanent placement for the minor child and again as i alluded to in my opening if it could really encourage gamesmanship or respond to parents could know that the notice was issued and not need it but never raise it during the trial court proceedings and reason to change the rationale of that case you know and  statute in this case is clear and i think had the legislature intended that there be a consequence for the failure to specify a notice that it would have provided line in the statute when it amende failure to deny the allegations and the notice pleading the state has never argued and doesn't argue now that the failure to object to the lack of notice created in the mission and that the facts in it or in the petition are finally make it i think the state makes arguments that really don't apply in this case number one i don't think we have to fear that parents are going to keep in their back pocket this argument that everything's over because they didn't provide notice to case of first impression once this court makes a ruling that you have to do this state's attorneys are going to do it if we look at the legislative history in this case it was after the case that the state cites in their brief and the legislature then took action and if you look at that legislative history which we've provided to the court it's clear that they were concerned that when the state relies on that from clues a restatement that we can terminate you for any nine month period they wanted to make sure that rights were not infringe understand that you know i didn't try this case said the trial court level i was appointed for the appeal but i would say about that there is much confusion in this case if you actually book and at what happened even the trial judge in this case did not specify which periods he was finding her unfit under at the appellate court level the state argued the bed there were four periods but they terminated her under any of the four month periods and they were analyzing different periods if you review that the trial were to order he basically says she's unfairly under this allegation he never specifies and i believe that that's what the legislative intent consent or they wanted the judges to break this up into the various nine month periods so that the the defendant mother in this case was able to predict exactly what was coming forth there were several allegations against her two of those i'm directed verdict were dismissed by the court and i think it's difficult your honor to argue but there is no prejudice and i'm not sure that's the issue with all due respect i think the issue is as the appellate court fifth district found is whether or not a cause of action was actually stated and in this case it wasn't and i  think the key to that is you know you are though you know the result though is it is difficult for the child and if this were a criminal indictment reversals would not be required in criminal cases the prosecution can and when you talk about the child on a dress that first the child has continued as it is in the record to have a relationship with mother part of the reason this case has taken so long is not because of this argument but it's simply the way these work the state even says in its brief that this is not something that would would harm normally or generally the rights of a parent because many of them can be finished within the first nine month period well as a trial practitioner and as many of your runners probably were involved in these cases that's the exception not the rule and what's significant here is that the cause of action was not even stated by the legislature indicating that the defendant did not have to answer this but it was a part of the pleading it it appears that the legislature wanted to do exactly what we're here arguing and other words to protect the parents rights by we're buying this allegation inputs not a meeting a proper pleading you don't waive that she can argue there was no cause of action stated because if they were going to use that specific section the requirement of a proper pleading is they can write down a fight each one of those so that you can be prepared does it prejudice the mother i would argue it does because of these nine month periods it would choir's them to pick and choose which ones they believe you can succeed on and when the evidence is presented down in the manner in which it was in this case it was like a shotgun nobody said to anybody that we're taking these periods and then moving to these periods and so nobody ever really identified it other than saying here's the service plan but as this court and other courts have ruled the service plan willy is not evidence at all it's an opinion of a d c fs worker but does it if we take your argument as to when there's a defective pleading and no objection to that pleading doesn't that somewhat substantiate with opposing counsel said about gamesmanship you know something's missing in the pleading you go through the entire trial tell your client well you know we might prevail a trial we might not if not we've got this in our backlog well you know i don't believe there's any evidence i'm not saying there's evidence of it who it doesn't lend itself to that your honor as i said when i began i believe once this court makes a ruling that says this is the way it is it's not going to be something you can put in your back pocket at the appling time states attorneys are not going to simply sit back and ignore this statute it's been ignored and there's a clear legislative intent that they're trying to protect mothers and fathers so they are good paired this is an argument that that apparently occurred after this other case and they were concerned mother basically didn't even object that decades if you look at the facts that she was not receiving proper notice or that the pleading was improper but in effect the legislature then came about and said we want this as a part of the pleading in your cause of action and as a part of the pleading it's  procedural matter where they're saying we just want you to give notice if somebody asks for it as we do and in in more cases in other cases you have to send out your requests for information this is a big  the time here is a later period at a later time how does that fit in with the or your honor does say at a later time however if you read the entire statute it does in fact say it shall be considered a part of the petition or motion in other words it becomes a part of the pleading however you don't have to answer it if you're the parent so it actually should but if it's not for example state can mean that any time this is a parliament that the state amended beforehand were added to in other words i understand that motions could have been filed saying it's an adequate however this nine months so she would know which nine you know all the nine months that she participated in service plans and when the state filed the petition it would she could be not i mean generally speaking she knows that the entire time that she did does she know that as far as that board is concerned that she hasn't complied in those no to the opinion of the c f s as to whether or not she's met her service plan so in fact a parent who is not familiar with the law most of these cases people that can afford attorneys are appointed the public defender not that he did a bad job in this case i'm not suggesting that at all but they're going in the wrong and they're doing everything they believe they should do this is not a woman who had no this it wasn't rob to see her child if you look at the record she showed up to visit she was taking medication that she was supposed to in fact there's a lot of that events that she had raised another child who is the same age now basically are older now but she had that child at the age that the other child that the c f s left with her was at that time so she was a parent apparently a good parent with regard to the other child she could have and i think most of parents would think i'm doing everything they want me to do but they're tell me i'm the problem with this is and i i think i go back to the that word or of the trial court if you read that word or nothing's ever identified as to which period of time either it's difficult then to come to the court and say this period this period this period this period you know we can argue that but we don't know what the judge ruled the rule on that first period which period the rule on there is much confusion in this case as i pointed out we have to briefs from the state which you've reviewed that identifies or different periods and different dates then in the other brief  a grain that in the third period that they couldn't prove in their allegations here they say they could have proved all four so what did the judge do did he will only have a third and if he did was here an admission that this is a bad for it we don't known as the court since you are today all we know is that the judge must have thought i guess in some nine month period but she didn't make it but that's not really proper at all how can she come to you and say i was prejudiced here here here and here by evidence going in when she doesn't even know we don't know today which period the judge ruled on and that's the problem it's not fair it's a denial of due process and i think the judge was confused as well with all due respect how could he have broken it up if you look at the way this evidence was presented it truly was through everything and let's see what sticks and if you consider all humility to be looted fully as you are not supposed to i mean you're supposed to look at each period that's exactly why the legislature said you've got to specify it which means the trial judge should specify which period he will go on as well and i believe that's why it's important to realize that the key factor here is the legislature said this is going to be a part of the petition its will motion whichever is in front of this court much different than same as simply this is something you've got to do it's an actual statement that is a part of their pleading especially when you consider they said but you know mother doesn't have to answer it her father doesn't have to answer it so would send necessary part of the allegation under d m three in the other words just state the initial part but later after the case develops because many times he's drag on for a long time after even filed these don't get hurt immediately in other words i filed a petition it could go on another nine month period or another to nine months periods before the court ever gets it heard him so much they did they said before that happens you've got to put them on notice because we may originally filed the petition there may have only been one nine month period now we have four in fact i understand how the court is concerned about how long this is taken this case the child was adjudicated exactly six years ago today however she still has a relationship with her mother visits regularly so i don't think looking at harm to the child is really where we ought to be in this case the question is was it a part of their pleading first was a statute mandatory yes it because it generally affect the parents who are going to terminations proceedings yes it does to just put our head in the sand and believe that the majority of these cases end in nine months is not the correct thing to do the require it of the legislature by saying this is a part of the petition or motion means it's a necessary allegation for protected in other words by not stating a cause of action you know does this generally affect constitutional rights and i would suggest in this case the majority of these cases take much longer than nine months as this court is well aware from reviewing juvenile cases in this court so it does generally affect the constitutional rights of the person sought to be protected another is or is his only obligation on the respond and to move to straight the pleading of it does not state a cause of action at the outset not if it is a affects a substantial right or it is a necessary allegation and my argument here your honor we don't waver that under the rules of this court even or of the rules of civil procedure if it is one that is necessary to state a proper cause of action we can raise it at any time and by making the argument i have early or by the legislature saying this is a part of the actual beginning if you're using that particular part then it does affect it's a requirement it's mandatory that you file that and plead it is following up on justice garments question this was a proper cause i'm properly state of the cause of action at the outset that later became effective or statute if you're going to go and only if you're going to go on several nine month periods then it is a necessary requirement but they don't have to file bad before twenty one days prior to the actual hearing the reason for that is as i said earlier basically these cases go on and on the state can't specify which nine would period it's going on until approximately twenty one days before trial in other words a file  eighteen months goes by they have to tell you then here's here's what we're going to do now there's much more there's more time than explain to me i don't think you're arguing that there was insufficient evidence are you you because you haven't really mentioned the evidence presented against her in terms of so you're not challenging that there was sufficient evidence we are challenging we did challenge that in period there was not sufficient evidence and i don't agree your honor that there was sufficient evidence to terminate her if you were viewing entire record in this case it's obvious that she had made progress then we argued that extensively in the lower court at the appellate court and when in fact her failed on that issue and it wasn't raised here my time is up but i births the termination and the fitness orders if that were to stand i guess the circuit court would have to vacate its orders but then it could i think proceedings could go forth st further proceedings so certainly for the proceedings the state could refile with these dates in place and proceed to another hearing i think that is possible yes three points in reply i'll first address the issue about the notice not being a part of the cause of action and i'll quote the statue as it reads which counsel alluded the allegations and the pleadings shall be treated as it were paraded into the petition or motion the state need not specify the periods and the terminations petition itself but only at this much later time it is not logical to think that there unfitness it may narrow the focus of the allegation but it is not part of the allegation of an of that allegation of unfitness for that cause of action again the legislature is presumed to have known this or its president that a petition for trauma nation needs state that a parent is unfit and identify the statutory ground under section one d which this petition did when adding the notice provision it could have specified that no allegation of unfairness or cause of action under this particular section would be stated until the notice was issued but it didn't or it could have do you detail the consequence or the failure to issue the notice but it did so in addressing briefly regarding prejudice i don't believe that julia still has shown or articulated any prejudice to her resulting from the lack of notice if there was a problem with a lack of notice in this case or any confusion on her part it would have been apparent to her either in preparation for the fitness hearing or at some point during the trial court proceedings she had counsel to move for a directed verdict on the other three allegations of the petition but not on this one she presented evidence when her counsel question time regarding quote the entire time period throughout the time i've dealt with d c i fast she clearly defended against as if all for nine months periods or at issue the entire three year period at issue with regard to the one d m three proceedings clearly there was no reasonable progress there no improvement from her joining that entire three year period and just briefly there was no confusion as to the time periods counsel loaded  julia admitted that the state's statement of facts was sufficient to frame the issues on appeal and never contested the facts is supported by the record of it and and again it's clear that julia made no improvement and no reasonable progress at any time during that three year specify the period he relied on but julian never asked for clarification from the trial judge either after the order was entered so because there was evidence presented for the entire