## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re S.L. , 2012 IL App (5th) 120271

Appellate Court Caption In re S.L
., a Minor (The People of the State of I ll i n o i s , PetitionerAppellee , v. J UL IA F., Re spondent-Appe llant).

District & N o. Fifth District Docke t No. 5-12-0271

Filed November 28, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) An order finding responde nt to be an unfit pare nt und er s ec t i ons 1(D)( m)(iii) and 1(D)(p) of the Adoption Act was reve rsed and the cause

was rema nded, since the State failed to comply with section 1(D)( m)(iii) by failing to specify the nine-month period or periods in which it claimed responde nt did not make rea sonable progress toward the return of her child and the finding that she was unfit due t o m en tal impairment pursuant t o s ection 1(D)(p) was contra ry to the manifest weight of the evidenc e.

Dec ision Under
Review Appea l from the Circuit Court of Marion County
, No. 07-JA-40; the Hon. Michae l D. McHa

ney , Judg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Bill J

. Milner, Craig W. Griff in (L aw Gra duate, Certified under Supreme Court Rule 711), of L aw Offic e of Bill J

. Milner, of Salem, for appellant.

Matt Wil zbach, State’s Attorney
, of Salem (Patrick Delfino, Stephen E. Norris, and Rebec ca E. McCormick, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE STEWAR T delivere d the judgme nt of the court, with opinion.
J ustice s G o ld e nh e r s h and Spomer concur red in the judgme nt and opinion.

OP INION

¶ 1 On J anuar

y 18, 2011, the S tate filed a p et i t i o n for termination of t he parental rights of Br uce V. and J ulia F., the pare nts of S.L
., a minor child. The fathe r did not participate in the
proce eding s below and has not f iled a brief in this court. On November 30, 2011, the State filed an amende d p et i t ion for termination of pare ntal rights, alleg ing four g rounds for unfitness against J ulia: (1) failure to make reasona ble efforts t o corr ect the conditions that

wer e the basis for the child’s remova l (750 I L CS 50/1(D)( m)(i) (West 2010)); (2) failure to make rea sonable progress toward the return of her child within nine months afte r the adjudication of neg lect, being the period of Novembe r 2 9
, 2007, to August 29, 2008 (750 I L CS 50/1(D)( m)(ii) (West 2010)); (3) failure to make rea sonable progress toward the return of the child during any nine-month period afte r the end of the i n i t i al n i n e-month period fo llowing the adjudication of neg lect (750 I L CS 50/1(D)( m)(iii) (West 2010)); an d (4 ) inability to dis ch arge pare ntal responsibilities as supported by competent evidenc e from a licensed clinical psycholog i s t of m ental impairment with sufficie nt justification to believe that the inability to discharg e pare ntal responsibilities shall extend beyond a rea sonable time period (7 5 0 I L CS 50/1(D)(p) (West 2010)). After an evidentiar y hearing, the trial court enter ed an order

findingthat the State had not prove d the first two g rounds but ha d proved J ulia to be unfit under the final two grounds alleg ed in the ame nded petition. ¶ 2 J ulia appea ls from the ord er of t he circuit court of Marion C ounty finding her to be an unfit pare nt under sections 1(D)( m)(iii) and 1(D)(p) of the Ad o p t i o n Act (750 I L CS 50/1(D)( m)(iii), (D) (p) ( West 2010)). We reve rse a nd rema nd.

¶ 3 BA CKGROUND ¶ 4 S.L

. was born to J ulia on May 3, 2002. On September 11, 2007, the State filed a petition fo r ad j u d ication of wardship, alleg ing that S.L

. was neg lected in that she was i n an environment injurious to her welfa re be cause J ulia was not pr otecting her phy sical welfa re (750 I L CS 50/1(D)( g ) (West 2006)). On the same date, the co u rt enter ed an order for temporar y custody
, finding probable cause exis ted t o believe tha t S

. L

. had been abused or

-2-neg lected due to be ing dirty and having bites and bruising on her body

. The Depa rtment of Children and F amily

Service s (DCFS) wa s g rante d temporar y custody of S.L

. ¶ 5 On J anuar

y 3, 2008, the court enter ed a dispositi onal order finding S.L

. to be neg lected, makingher a

war d of the c ourt, and a

war ding D CFS custody

and guardia

nship. At eac h of the perma nency hearings afte r entry of the dispositi onal order
, the g oal for the family was for S.L

. to return to J ulia within 12 months. On July 21, 2010, the g oal was chang ed to substitut e

car e pending court deter

mination of termination of pare ntal rights. On J anuar y 18, 2011, the State filed the initial petition to terminate pare ntal rights, and it filed an amende d petition on November

30, 2011. ¶ 6 On Fe b ru ary 2 4
, 2 0 1 2
, t h e court conducte d an evidentiar y hearing on the amende d petition to terminate pare ntal rights. Although the pare ntal ri gh t s of S.L .’s fathe r wer e ad dre ssed at this hearing, we will not relate t hose facts since he is not participating in t h i s appea l. The State called Fr ank Kosmicki, a licens ed cli nical psycholog ist, to testify

. Kosmicki testified that he interviewe d J ulia for 50 to 60 minutes on April 18, 2011. As part of his evaluation, he also revie wed a psycholog ical evaluation repor t drafte d by

Fr ed Klug in 2008, an integ rate d assessment prepa red by DCFS on August 26, 2010, an administrative

cas e re v i ew dated September 10, 2010, and a DCFS family service plan dated Marc h 28, 2011. ¶ 7 Kosmicki testified that J ulia informed him ab o u t h er p as t h i s t o ry o f abuse, which included being beate n, rape d, and thr ea t en ed t o be killed at ag e eight by her mother’s boy friend. She was placed in foster car e at a g e 12. She said that she had been hospitaliz ed nine times betwee n the ag es of 10 and 14 for running aw ay an d b ei ng defia nt. She was in specia l education in g rade school and was expel l ed fr o m s chool in the tenth g rade

. She
repor ted using drug s from ag e 13 until she was 17 year s old. She told Kosmicki that she had
not drunk any alcohol sin ce she was 23 year s old. When she was 17 year s old, she beg an dating a 30-year -old man, whom she marrie d when she was 18 year s old. She told Kosmicki that her first husband was phy sically abusive and beat her so badly once that he knocked out her teeth, ca u sing her to be hospitaliz ed and to need denture s. She said that her second marria g e was to a man who was an alcoholic and phy sically abusive, and her third marria g e was to an a lcoholic. ¶ 8 Kosmicki n o t ed t hat, befor e S.L

. was born, J ulia had a son, M.P., who was born on Marc h 17, 1996, when J ulia was 18 year s old. She e x plained to Kosmicki that she g ave up custody of M.P. to her mother whe n he wa s youngbeca use she was trying to g et out of her marria g e, and her husband had threa tened M.P. J ulia reg ained custody of M.P. in 2008 beca use her mother beca

me incompetent and beg an living in a nursing home. DCFS has not intervene d or tried to r emove M.P. fr om Julia’s custody
, and he rema ined in he r custody at the time of the ter

mination hearing

. ¶ 9 At the time of the interview, Julia was not in a relationship wit h an y o n e. Ko s m i ck i testified that J ulia “said she was single and planned on staying single
, that she wasn’t looking

-3-for a relationship.” Kosmicki testified that J ulia was unemployed when he interviewe d her. 1

She was not on any medication at the time of the interview, but at times had been presc ribed

sever al diffe rent a

ntidepressa

nts and antipsychotic medications. J ulia told him s he had not taken any of these medications for two year s beca use they made her fee l like a zombi e. She
repor ted having sever al sy

mptoms of posttr au m at i c stress disorder (PTSD), such as flashbac ks, nightmar es, and rea ctivity to c ues that reminded her of past traumas. Howeve r, at t he ti me of the i nterview, she felt that she was doing much better and that her judgment had improved. ¶ 10 Kosmicki testified that he conducte d sever al diagnostic tests on Julia. Fr om those tests, he deter mined that her I Q was 74, which put her in the borderline rang e just above those who

are mentally reta

rded. On the Minnesota Multiphasic Personality Inventory –2–Restructure d For m test, he testified that J ulia’s answe rs indicated that she wa s t ry ing to “fa ke g ood” or show herse lf in a false positive light. Kosmicki also said that the “only clinical eleva tion of
note was an elevation on a scale assessing antisocial behavior s,” which was consistent with her early history

. Kosmicki administered a pare ntin g re lationship questionnaire, but he assig ned ver

y littl e significanc e to the finding s from that test bec ause the test had not be en “standa rdized empirica lly” and it measure d J ulia’s interac tion wi th S. L

. , wh ich h ad been very limit ed since S.L .’s re moval from Jul ia’s custody

. ¶ 11 Ko s m i ck i t es t i fi ed t h at J ulia met the criteria for PTSD, borderl i n e i n t el l ec tu al functioning
, and “a persona lity disorder, not other wise spec ified with some depe ndent and b o rd erline personality features.” He did not believe she was able to discharg e her pare nt al responsibilities at the time he i n t er v i ew ed her. He based that conclusion partly on his diagnoses of PTSD and per sonality disorder a

nd partly on her past history “of having very dang erous men in her household and exposi ng her daughter to dang erous things.” Kosmicki

rec ommended that, befor e she could be reunited with S.L
., she should “g et some long- term intensive thera

py .” He acknow ledg ed that she w as in counselingwhen he saw he r and that he could not “dete rmine whether or not the counseling that she had was in fac t helping her.” He r ecommende d that she “be in long -term psychother apy” and consult with a psychiatrist about the nec essity

of psychotropic me dication for sy mptom manag ement. ¶ 12 When ask ed h o w l ong he thought J ulia would need to demonstrate that she had made sufficie nt chang es to enable her to reg ain custody of S.L
., he estimated that she would need “six months to a year of logistica l stability
, being in one place
, utilit ies, h av i n g a h o m e, having no arr ests, having no instance of domestic violence, no substance abuse, those kinds of things.” On cross-e x amination by Julia ’s attorney , Kosmicki ag ain stated, “[A]t a bare minimum
, I would rec ommend six months to a year maintaining [a] stable life” befor e S.L

. could safe ly

return home

. ¶ 13 Tiffa

ny Short, J ulia’s case worke r from September 2007 through June 2008, testified that she conducte d an administrative case revie w on Marc h 24, 2008, and discussed that service plan with J ulia. Short testified that J ulia’s service plan require d her to complete sever al tasks

J uli a te st if

ie d tha t she re cei ves sup ple m ent al sec uri ty dis abi li ty inc om e, tha t M.P

. re cei ves 1

sur viv or bene fi ts , and that her tot al in come fr om bot h so urc es is app rox imatel y $1,5 00 per m ont h.

-4-to corr ect the conditions that had led to S.L .’s re moval. Short testified that, as of Marc h

2008, J ulia had satisfac torily completed five of the tasks assig ned to her. First, Short said that J ulia had completed her p s y chiatric assessment, was being treated by Dr. Katz, and was taking her presc ribed medications. Second, J ulia had been fi n ancia lly responsible for S.L

. beca use she had worke d through the Depa rtment of Rehabilitative Service s taking car e of her mother, and when her mother had to be place d in a nursing home, she was not employed, but she was rec eiving “SSI as well as food stamps.” Third, she had obtained and maintained safe and appropriate housing. Short said that, in Marc h 2008, Julia was in the proce ss of moving into her own residenc e in Centralia. Visits with S.L

. had not begun at that house yet beca use J ulia was still trying to finish moving in. Four th, Julia was in the proce ss of co mp l et i n g a substance abuse assessment, and she had tested neg ative when scre ened for drug s. Fifth, she had satisfa ctorily

completed the psycholog ical eva luation by Dr. Klugon Marc h 14, 2008. ¶ 14 Short testified t hat J ulia was assigne d four additional tasks. Short stated t hat J ulia was rate d unsatisfac tory in the cate g ories of individual mental health counseling
, completing
pare nting classes, obtaining a bo n d i n g assessment, and completing domestic violence counseling
, but Short acknow ledg ed that the failure to complete those tasks was not J ulia’s fault. Short testified t hat J ulia “see med open to completingservice s.” Howe ver, in Short’s opinion, Julia “didn’t t ake rea lly any responsibility for why [S .L .] came into car e.” When asked for t h e basis of her opinion that J ulia was not taking responsibility for S.L
., Short

answe red, “ J ust kind of her attitude and, you know, things that she would say .” ¶ 15 Day

na Har ris McDa niel testified that she was employed by Catholic Social Service s as Ju li a ’s case worke r from J une 2008 until April 2010. When McDa niel draf te d th e p e r ma n e n c y repor t in September 2008, J ulia’s overa ll rating was unsatisfac tory

. McDa niel testified that althoug h J ulia had eng ag ed in the service s, she lacke d the “ability to internalize and dem o n s t ra t e the lear

ning of whateve r the service s wer e.” McDa niel explained that J ulia showed a lack of stability beca use she moved multipl e times. She believed that J ulia showed

a lack of g ood judgme nt beca use she ch o s e b o y friends who wer e abusive and she hung around with people who wer e not appropriate. Julia had completed a subst an ce abuse evaluation and no follow-up service s wer e rec omm ended, and she had begun taking
pare nting c lasses. ¶ 16 McD an i el testified that, although J ulia had completed a psy cholog ical evaluation with Dr. Klug and was following up with mental health counseling
, McDa niel rate d h er as unsatisfac tory

on this criteria be cause her attendance had been sporadic and she lacke d the ab i lity to apply what she had lear ned. She was seeing Dr. Katz at the Ang ela C en t er an d taking the medication he presc ribed her for bipolar disorder and ob s essive-c ompulsive disorder. Howeve r, around September or October 2008, J ulia stopped taking her medication,
saying it made her fee l like a zombi e. J ulia was also attending individual counseling sessions with Pearc e Konold, and her attendanc e at these sessions was better. McDa niel testified that her counselor thought she was making progress, but her ability to understand and apply what

2 she wa s learningwas a

challeng e.

She didnotspe ci fy the name of th is cou nse lor

. 2

-5-¶ 17 McDa niel rate d J ulia as unsatisfac tory on the require ment of obtaining and maintaining
appropriate and safe housing beca use her residenc e was un cl ea n , had rodents and cockr o ac h es , an d was too small for the number of people living there

. During this time, h o wever, J ulia had no difficulty with substance abuse and had completed her pare n t i n g

c la s s e s

. Sh e h a d not completed domestic violence counseling but had initiated PAVE (Peo p le Ag ainst Violent Environments) ser vices to addr ess those issues. ¶ 18 McDa

niel also prepa

red a perma

nency repor

t in Marc h 2009. At t h at t i m e, J ulia had moved out of the residenc e she was sharing with her husband Billy due to domestic violence, and she had obtained a

n order of protec tion ag ainst him. S he wa s workingat Gil ster-Ma ry L ee. She was not taking the medications Katz had previously presc ribed to her. Katz was no longe r available to trea

t her, and she had not yet switched to a differ ent doctor for psychiatric revie w. S he was still attendingmental hea lth counseling , but her attendance was sporadic. McDa niel acknow ledg ed that J ulia did not have any trouble with substance abuse at any time since S.L . came into care

. ¶ 19 J ulia had supervised visits with S.L

. ever y wee k. McDa

niel testified that she occa sionally monitored those visits. She develope d a chec k l i s t s y s t em to help J ulia initiate appropr iate interac tio n with S.L

. during these visits. McDa niel explained that sometimes she did not consider J ulia’s behavior to be appropriate, such as the tim e that J ulia called S.L

. a “sexy mama.” J ulia had been g rante d unsupervised visits with S.L

. for a short period of time, but due to the unsanitary condit ion of the home and J ulia’s questionable boy friends, the unsupervised visits wer e suspended

. I n M arch 2009, J ulia was attending individual counseling
, but her counselor did not believe she was making substantial progress. Howeve r, she had completed an ang er manag ement class, and she did n o t re quire any follow-up service s. ¶ 20 As of Marc h 2009, McDa niel rate d J ulia’s overa ll progress as unsatisfac tory on the basis of “poor judgme nt, lack of stability
, the situations that would put a child [S .L .’s] ag e at risk. The bouncing from man to man, the b o u n ci n g fr o m home to home. Not being medicate d when that’ s been r ecommende d.” ¶ 21 In September 2009
, J u l ia’s visitation with S.L

. was decr ease d from twice per wee k to once per week, and DCFS chan ged it s rec ommended goal from return home in 12 months
to substitut e car e pending court determ ination of termination of pare ntal rights. During M cD an i el ’s oversight of J ulia’s case , from J une 2008 through April 2010, McDa niel believed that J ulia’s progress was unsatisfac to ry and that she had not made sufficie nt progress toward corr ecting the conditions that l ed to S.L .’s remova l. McDa niel acknow ledg ed that J ulia was willing to do what was asked of her but said that J ulia did not make demonstrable improvement in her decision-making reg arding her choice of p a r amours, who she lived with, or her interac tions with S.L

. McDa niel testified that J ulia’s eff orts wer e

rea sonable, but she did not lear n from her mistakes, even when McDa niel explained both the problem and the solution. ¶ 22 Rache l Kissner testified that she was Julia’s foster car e case manag er, and she prepa red

a service plan revie w on September 6, 201 1

. At t hat time, J ulia was living with her boy friend, David Schroete r, who was employed, had children of his own, an d h ad no

-6-problems that conce rned Kissner. Kissner acknow ledg ed that she did not have any conce rns

about J ulia’s interac tions with Schroete r’s two minor daughters or about J ulia’s minor son, M.P., conti n u i n g t o l i v e with J ulia and Schroete r. She stated that J ulia had an appropr iate bedroom for S.L

. at her curr ent residenc e. Kissner knew of nothing on the service plan that J ulia still neede d to complete. The only task rema ining was for J ulia to g et her medications

corr ecte d beca

use the medication presc ribed for her had cause d an allerg ic rea ction, and she had not yet bee n presc ribed a ny differ ent medica

tion. ¶ 23 Although J ulia had completed all tasks assig ned to her, Kissner rate d J ulia’s interac tion with S.L

. during her twice- monthly visits as unsatisfac tory beca use J ulia “strug g led with [S .L .] some as far as *** ag e appropriate interac tions.” Kissner testified about examples of what she considere d inappropriate interac tions. At S.L .’s birthday party , J ulia g ot some icing from S .L .’s bi rthday cake on her han d and “thought it would be funny to put it on [S .L .’s] fac e,” but instead, it upset S.L

. Kissner said that S.L

. “just kind of calmed herse lf down,” and J ulia explained that it wa s a joke and that she did not mean to upset S.L

. Kissner testified about another incident that occur red in the summer. She said it was h ot outside and J ulia wanted to use a barr ette to keep S.L .’s bang s out of her fac e. S.L

. g ot mad, J ulia clipped up the bang s any

way , and S.L

. went to the bathroom cry ing about it. J ulia tried to comfort S.L
., but S.L

. went to Kissner instead, hug g ing her and asking her to make J ulia stop. Finally
, S.L

. calmed down, and Jul ia started pla ying w ith her. ¶ 24 Kissner also said that there was “a lack of interac tion during visits” beca use S.L

. usually had homework but never wanted to do her homework. Kissner said that J ulia would help S.L

. with her homework, but then “would kind of start talking about her own things.” Kissner also thought that J ulia was not firm enough in disciplining S.L
., that she looked to Kissner to tell her what to do, but that when prompted on what to do she “wa s fine.” Kissner acknow ledg ed that S.L . tried to manipulate Juli a and w as ver y confuse d about her

situation. ¶ 25 The State rested its case afte r prese nting the above evidenc e. J ulia’s attorney moved for

a direc ted finding on three of the State’s alleg ations of unfitness an d as k ed t o rese rve argument on the fourth, that J ulia had failed to make rea sonable progress toward S.L .’s return during any nine-month period afte r the initial nine-month period following the adjudication of neg lect. The trial court denied J ulia’s motion as to the State’s alleg ation that s h e was unable to dis charg e parental re sponsibili ties ext endingbeyond a re asonable time period as supported by competent evidenc e from a licens e d c li n ic a l p s y c h o lo g is t o f mental impairment. The trial court took under advisement its ruling on J ulia’s motion that t h e S t at e fa iled to prove that J ulia had failed to make rea sonable eff orts to corr ect the conditions that wer e the basis for S.L .’s remova l and that she failed to make rea sonable progress toward S.L .’s return within nine months after the a djudication of neg lect. ¶ 26 J ulia prese nted seve ral witnesse s. ¶ 27 David Schroete r testified that he was 33 year s old an d wo rk ed fu l l time at Charter Communi cations as a broadba nd technicia

n. Julia was his g irlfriend, and they lived toge ther. They had been friends for about a y ear befor e movi ng in toge ther i n a four-bedr oom, twobath home that they share d with M.P. S.L .’s visits wer e at this house. He had two daughters who wer e 12 and 13 y ear s old and who stayed with him ever y other we ekend. I f S.L . wer e

-7-returne d to J ulia’s custody
, she would have a bedroom of her own. He testified that J u lia

interac ted well with his daughters and to o k car e of them by herse lf on Sunday s when they

wer e visiti ng and he was at work. He said he did not have any conce rns ab o u t l ea v ing his daughters with J ulia, and he would not leave them with he r if he had any conce rns about it. He said that J ulia interac t ed we l l with M.P. and that their relationship seeme d to be improving be cause M.P. was openingup and talkingto her more

. ¶ 28 Connie Hoover testified that she is a friend of J ulia’s, that one of her sons, Christopher, is c lose in a g e to M.P., and that Christopher and M.P. spend time tog ether at Julia’s home. She was not conce rned about Christopher staying overnight at J ulia’s house. She described J ulia’s hous e as “[v] ery , very clea n.” C hristoph er testified t hat M .P. is his best friend and, when he is at M.P.’s house, they usually watch TV or play car d g ames in the living room. He said J ulia was usually cooking or clea ning, “basic ally any

thing a mother does,” and when she was finished w ith her work, she would sit down and relax

. ¶ 29 M.P. testified that he was 15 year s old at the time of the hearing. He said that their house is alway s spotless, that there is alway s enough food for him to eat, and that his mom takes the “best car e” of him. He testified that if S .L

. wer e allowed to come live with them, they would be “able to interac t more as a family and that [t hey] would all be able to fee l rea lly safe knowing that she’s finally home.” He said he would love to g et to know his “l i t t l e sister.” ¶ 30 The hearing was rec essed until Marc h 16, 2012. When t h e h ea ri n g re s u m ed
, J ulia testified that since August 2007, when S.L

. was remove d from her custody
, she had multipl e

case wo rk ers. She stated that she did not tell her case worke rs that she ref used to take the
psychotropic medication presc ribed to her but that she pref err ed not to take any medications if at all possible. She said that if medication was rec omme n d ed for her, she would take it beca use g etting S.L

. back was all that mattere d to her. At the time of this hearing, S.L

. was almost 10 year s old, and M.P .’s s ix teenth birthday was the day after t he hearing

. J ulia and Schroete r had split up the wee k befor e the Marc h 16, 2012, hearing. Julia explained that she
was too focuse d on and concer ned about g ettin g h er d au gh ter back t o be in a relationship. She said that she and Schroete r wer e still friends but no longe r living to get h er

. She was continuing to pay the bills for the house s h e p re v iously share d with Schroete r, and she testified that if she could not pay for that house on her own, she would find less expensive housing. ¶ 31 J ulia testified that she had been require d to attend PAVE counseling since the beg inning of the case

. She described PAVE counseling as lear ning about the war

ning signs of domestic violence and developing techniques to protec t herse lf and her children from “people who are not so nice, so to say

. ” S h e h ad re ce ived a cer tificate stating that she had participated in individual and g roup counseling through PAVE for the past two year s. The cer tificate stated
t h at t h e PAVE staff had provided enough information that J ulia had the knowledge t o provide a safe environment for herse lf and her children but that she could continue to attend counseling sessions “for emotional support and further information.” J ulia testified that she felt she be nefitted fr om the PAVE counselingand that she w as continuingto attend. ¶ 32 J ulia said that she had completed pare nting classes twice. Throughout the case , she had

-8-alway s maintained co n t ac t with her case worke rs and allowed them to inspect her home

an y time they asked. At the time of this hearing, she was still attending mental h ea l t h counseling through CRC with Dr. Kee ven, and no doctor had presc ribed any medications for her. She said that she did not believe in taking medications, but when she was in pain, such

as when she had sinus/nasal surg ery , she took pain medication as neede d. She testified that, afte r S.L

. was remove d from her , she had be en pre scribed Klonopin, Zoloft, Ser oquel, and Geodon, “and with all those combined it wa s making [her] like a zombi e.” She said that,

more rec ently , a doctor

had pre scribed medicine for her, but she had an allerg ic rea ction to it and had to stop takingit. ¶ 33 The trial court took the case under advisement and on Apri l 5
, 2 0 1 2
, en tere d a docke t sheet order g ranting J ulia’s motion for a direc ted finding on the Stat e’s alleg ations in
para g raphs 9 (A) and 9(B ) of the amende d petition for termination of pare ntal rights. The
court noted that it f

ound Kosmicki’s testimony cre dible and per suasive and that it ha d also relied on Klug ’s 2008 repor t. The court stated that it had car efully assessed the demea nor of all of the witnesses, including J ulia, and had car efully considere d all of the rele vant evidenc e. The court found that the State had met its burden to prove by clea r and convincing evidenc e that J ulia met the definiti on of an unfit pare nt pursuant to para g raphs 9( C) and 9(D ) of the State’s amende d p et ition for termination of pare ntal rights. On June 11, 2012, the court enter ed an o rder terminating J ulia’s pare ntal rights to S.L

. J ulia filed a timely notice of
appea l.

¶ 34 ANALYSI S ¶ 35 I . PleadingRequirements of Sec tion 1(D)(m)( iii) ¶ 36 We first consider J ulia’s argument that the trial court’s finding that the State proved the alleg ation that she had failed to make reason ab l e progr ess t owar d S.L .’s return during any nine-month period should be reve rsed beca use the State failed to comply with the statutory duty that it notify J ulia of the specific nine-month periods that wer e the subject of the termination hearing. This is a purely leg al question for which our revie w i s de novo

. In re D.F.
, 201 I ll. 2d 476, 495, 777 N.E.2d 930, 941 (2002) ( wher e the issue is one of statutory construction, revie w is de novo ). The statute that controls this issue provides, in rele vant part, as follows:
“ ‘Unfit person’ means any person whom the court shall find to be unfit to have a child, without r eg ard to the likelihood that the child will be place d for adoption. The g rounds of unfitness ar e any

one or more of the following***:

* * * (m) Failure by a parent *** (iii) to make reasona ble progre ss toward the return of the child to the pare nt duri ng any 9-month period afte r the end of the initial 9- month period following the adjudication of neg lected or abused minor ***. *** Notwithstanding any other provision, when a petition or motion seeks to terminate
pare ntal rights on the basis of item (iii) of this subsection (m), the petitioner shall file with the court a

nd serve on the par

ties a plea ding that specifies the 9-month period

or periods relied on. The pleading shall be filed and serve d on the parties no later

-9-t h an 3 wee ks befor e the date set by the court for closure of discovery
, and th e alleg ations in the pleading shall be treated as incorporated into the petition or motion. Fa ilure of a responde nt to file a written denial of the alleg ations in the pleading shall
not be treated as an admission that the alleg ations are true.” 750 I L CS 50/1(D)( m)(iii) (West 2010). ¶ 37 Whether a statutory command is ma ndatory is a question of statutory construction, and the answe r i s a matter of leg islative intent for which the statute’s languag e is the best evidenc e. People v. Robinson
, 217 I ll. 2d 43, 54, 838 N.E.2d 930, 936 (2005). The provision adding the require ment that the State file a p l eading to disclose the nine-month period or periods it intends to rely on was added by Public Act 94-563, eff ective J anuar

y 1, 2006, well befor e the State filed its amende d petition in November 2011. The State has conce ded in its brief that it did not file the require d pleading to specify which nine-month period or periods it would rely on to prove Julia unfit. The State seeks to avoid the eff ect of its err or by having us find that J ulia waived this issue by not raising it in the trial cour t. The State’s a

rgument is not persuasive in lig ht of the languag e and pur pose of the sta

tute. ¶ 38 We first note that the statute uses the term “shall” in relation to the State’s obligation to file the notice pleading

. Such languag e indicates that the State is require d to comply rathe r than use its discretion to decide whether or not to comply

. See Read v. Sheahan
, 359 I ll. App. 3d 89, 93, 833 N.E.2d 887
, 8 91 (2005) (use of the term “shall” in a statutory provision
g ener ally indicates a

mandatory

leg islative intention). ¶ 39 The core purpose of this s ub s ec t i o n i s t o all ow the State to prove a pare nt unfit and there by involuntarily terminate his or her pare ntal rights if it proves by clea r and convincing evidenc e that the pare nt failed t o m ak e rea sonable progress to corr ect the conditions that

wer e the basis of the child’s remova l during “any 9-month period afte r the end of the initial 9-month period following the adjudication of neg lect[ ] .” 750 I L CS 50/1(D)( m)(iii) (West 2010). In 2006, the leg islature amende d the statute to require th e S t at e t o file a pleading which specifie s the particula r nine-month period or p er i o d s i t intends to rely on to prove unfitness. Moreove r, the statute now provides that “the alleg ations in the pleadingshall be
treated as incorpora

ted into the petition or motion” by which the State seeks termination of the pare nt’s rights. 750 I L CS 50/1(D)( m)(iii) (West 2010). There fore
, when the State seeks
to terminate pare ntal rights under this statutory provision, its alleg ation of unfitness must include written notice specify ing the nine-month period or periods it is rely ing on, and this notice pleading must be serve d on the parties and filed with the court no later than three

wee ks befor e the discove ry cutoff. T he portion of the statute requiring this notice pleading is as much a part of the alleg ation of unfitness as the basic provision that the pare nt has failed to make re asonable progress towa rd the re turn of her

child. ¶ 40 In a case such as this, wher e there wer e sever al possible nine-month periods from which the State could seek to prove unfitness, the advanc e notification is cruc ial. Unless the pare nt knows befor e the hearing which nine-month periods the State intends to rely on, the pare nt’s ability to defe nd himself or her self is seriously impaired. In this case , the S tate’s failure to comply with the notice pleading req u i re m en t was compounded at the hearing beca use the State did not specify which period was the basis for its a lleg ation of unfitness, its e vidence did not clea

r up the confusion, and the trial court did not specify which of sever al nine-month

-10-periods for med the basis of its findingof unfitness on this g round. ¶ 41 A pare nt’s right to raise his or her biologica l child is a fundame ntal liberty interest, which is protec ted by due proce ss. In re M.H.
, 196 I ll. 2d 356, 362, 751 N.E.2d 1134, 1139 (2001). Be cause the pare nt’s interest is fundame ntal, the State’s burden of proof is high; it must prove the alleg ation o f u nfitness by clea r and convincing evidenc e. Id. at 365, 751 N.E.2d
at 1141 (the State’s burden of proof by clea r and convincing evidenc e undersc ores t h e importance of pare nts’ fundame ntal right to the control, custody
, and car e of their children)

. The statutory duty to file the notic e p l ea ding in advanc e of the hearing incre ases the likelihood that the State will have the nece ssary evidenc e to meet its burden of proof on this issue, that the pare nt will have an adequate opportunity to defe nd the alleg ation, and that the trial court will be able to make a fair decision as to whether or not the pare nt is unfit on that statutory g round. ¶ 42 Another pr ovision of t he st atute also compels our conc lusion that the St ate c annot re ly

on the pare nt’s waiver of the issue to rec tify i t s error. The leg islature specifie d that the
pare nt’s failure to file a written denial of the alleg ations “shall not be trea ted as an admission that the alleg ations are true.” 750 I L CS 50/1(D)( m)(iii) (West 2010). We believe that languag e supports our deter mination that the State’s pleading require ment cannot be waived. We hold that the State’s duty to comply with the statute’s notice pleading require ment is mandatory and that the require ment is not waived by the failure of a p ar en t t o object. A
contra ry rul i n g wo u l d eff

ectively place the burden of compliance with the statute on the
pare nt, rather

than on the State. ¶ 43 J ulia arg

ues that the State’s f

ailure to abide by the notice plea ding pr ovision of section 1(D)( m)(iii) requir es us to reve rse the trial court’s finding of unfitness on that g round. We
agree

. The trial court’s finding of unfitness on this al l egation mus t be vacated beca use t he trial court may not terminate a pare nt’s rights on g rounds not charg ed in the petition. In re Gwynne P.
, 215 I ll. 2d 340, 349, 830 N.E.2d 508, 514 (2005). “The permissible g rounds for fi nding a parent unfit are set forth in section 1(D) of t he Adoption Act [ citation]

. ” Id

. T h e court’s statutory authority to terminate a pare nt’s right s i n voluntarily “is delineate d by the languag e of the J uvenile Court Act (705 I L CS 405/1-1 et seq. (West 2002)) and the Adoption Act (750 I L CS 50/ 0.01 et s eq. (West 2002)).” Id. at 354, 830 N.E.2d at 516. When a court exercises its authority to terminate pare ntal rights, it must proce ed within the confine s of the law and ha s no authority

to proce ed except as the law provide s. In re E.B. , 231 I ll. 2d 459, 464, 899 N.E.2d 218, 221 (2008) (quoting People v. Brown
, 225 I ll. 2d 188, 199, 866 N.E.2d 1163, 1169 (2007))

. The court is not free to reje ct or expand its statutory authority despite its desire or pe rce ived nee d to do so. Id. ¶ 44 I n the case at bar, the State did not comply with the notice pleading require m en t o f section 1(D)( m)(iii) b ecause it did not specify the particula r nine-month period or periods duri n g wh i ch it claimed J ulia failed to make rea sonable progress toward S.L .’s return. As noted, s ection 1(D)(m)( iii) requires t h e S t at e to file, i n writing and three weeks before the closure of discovery
, a pleading
, which is t o b e s er v ed on the pare nt and other parties, specify ing the nine-month period or periods it relies on to prove the pare nt’s unfitness under this section. Since the State did not comply with the statute’s notice pleading provision, the trial court could not terminate Julia’s pare ntal rights based on an a lleg ation that was not in

-11-confor mity with the statute. Acc ording ly
, the trial court’s finding of unfitness on the State’s alleg ation in para g raph 9( C) of the amended pe tition m ust be reve rsed. ¶ 45 Howeve r, the State is not require d to prove ever y g round of unfitness alleg ed. “A pare nt’s rights ma y be terminated if even a single alleg ed g round for unfitness is suppor ted by clea

r and convincing evidenc e.” In re Gwynne P.
, 215 I ll. 2d at 349, 830 N.E.2d at 514. There fore
, we next consider whether th e t ri al court’s finding of unfitness on the final g round alleg ed
may be sustained.

¶ 46 I I . Inability

to Discharg e Pare ntal Responsibili ties Due to Mental Impairment ¶ 47 J ulia arg

ues t h at t h e fi n d i n g o f unfitness due to mental impairment is contra ry to the manifest we ight of

the evidenc e. “A trial court’s deter

mination that a pare nt’s unfitness has been established by clea r and convincing evidenc e will not be disturbed on revie w unless it is contra ry to the manifest weight of the evidenc e. A court’s decision re gar ding a pare nt’s fitness is ag ainst the manifest weight of the evidenc e only wher e the opposite conclusion is clea rly appar ent. [C itation.] In assessing wh et her the court’s decision is contra ry to the m anife st weight of the evidenc e, a revie wing court must rema in mindful that ever y matter conce rning
pare ntal fitness is sui generis

. [C itati o n

. ] E ac h case must there fore be decide d on the particula r fa cts and c ircumstance s prese nted.” Id. at 354, 830 N.E.2d at 516-17. ¶ 48 The statute c ontrolling this issue provides that a pa rent may be found unf

it due to an “[i] nability to discharg e pare ntal responsibilities supported by competent evidenc e from

a psychiatrist, licensed clinical social worke r, or clinical psycholog i s t o f m ental impairment, mental illness or an intellectual disability as define d in Section 1-116 of the Mental He al t h and Deve lopmental Disabilities Code, or developmenta l disability as define d in Section 1-106 of that Code, and there is sufficie nt justification to believe that the inability to discharg e pare ntal responsibilities shall extend beyond a rea sonable time period.” 750 I L CS 50/ 1(D)(p) (West Supp. 2011). ¶ 49 “It is well settled that, in order to find a pare nt unfit u n d er s ec t i o n 1 (D )(p) of the [Adopti on] Ac t, the State must (1) prese nt competent evidenc e that the pare nt suf fer s from

a mental impairment, mental illness, or ment al re t ar d ation sufficie nt to preve nt her from discharg ing a

pare nt’s normal re sponsibili ties; and (2) there must be sufficie nt evidence to conclude that the inability will extend beyond a rea sonable time period.” In re M.M.
, 303 I ll. App. 3d 559, 566, 709 N.E.2d 259, 264 (1999). Therefo re , a mere showing of mental impairment does not sat i s fy the statute. The State must show that the mental impairment rende rs the pare nt unable to discharg e her pare ntal responsibilities and that the inability will extend beyond a rea sonable period of time. See In re R.C.
, 195 I ll. 2d 291, 305, 745 N.E.2d 1233, 1242 (2001) (sec tion 1(D)(p) does not all o w a finding of unfitness based on a mere showing of mental impairment but also require s proof that t h e p are nt’s mental condition rende rs her unable to discharg e her pare ntal responsibilities and that the inability will extend beyond a re asonable time period). ¶ 50 The court based its finding of un fi t n es s u n der section 1(D)(p) on the 2008 evaluation
repor t of Klug and the testimony of Kosmicki reg arding his 2011 evaluation. Both Klug and

-12-Kosmicki are licensed clinical psycholog ists. Bo th d iagn o s e d Ju li a w it h PT SD a n d border line intellectual fu nctioning, and Kosmicki also diagnosed her with border line persona lity disorder not otherwise specifie d. Howeve r, Klug did not testify

. In Marc h and April of 2008, when Klug evalua

ted J ulia and prepa

red his repor

t, the g oal was to return S.L

. to J ulia within 12 months. Klug found that J ulia’s attention was g ood, that she was not easily distracted, that she was cooper ative, and that she was oriented to time, place
, and persons

. He fo u n d her intellectual functioning to be low and her a bility to learn limited, but he did not express an opinion that J ulia suffe red from a mental impairment that rende red her unable to disc harg e her pa renta l responsibiliti es. ¶ 51 Kosmicki testified in Fe bruar y of 2012 that he did not bel i ev e t hat J ulia was able to discharg e pare ntal responsibility at the time of his interview on April 18, 2011. He had not interviewe d J ulia or evalua ted any additional repor

ts or evidenc e since April 2011. Kosmicki testified that, when he intervi ew ed J ulia, she was oriented in all sphere s and exhibi ted no evidenc e of any formal thought disorders. He said that she “bec ame quite emotional” when she talked about the abuse she suffe red in the past, but that did not seem unusual to him. He found her to be “mostly

cooper ative and ple asant to dea l with.” ¶ 52 Ko s m i ck i explained that his testing showed J ulia to be in the rang e of borderline or mildly mentally reta

rded. When asked his opinion reg arding her prognosis, he testified, “My primary rec ommendation was at the time I saw her I didn’t believe that she had the logistica l stability in her life, home , work, those kinds of thing s or the emotional stability to ma nag e the demands of caring for a child.” He testified that he did not believe she would be able to discharg e her pare ntal resp o n s i b i l i t i es if S.L

. had been returne d to her the day afte r he interviewe d her. When asked if his opinion was based on J ulia’s mental im p airment, he testified that was part of the basis of his opinion, but that the larg er fac tor in his conclusion was he r past history

beca use “the single best predic tor of future behavior is history .” ¶ 53 The only evidenc e conce rning the issue of whether J ulia’s mental impairment rende red her incapa

ble of discharg ing her pare ntal responsibilities toward S.L

. came from Kosmicki’s written repor

t and testimony

. The essenc e of Kosmicki’s testimony is that J ulia suffe red from

a mental impairment and that he believed s h e could not discharg e her pare ntal responsibilities f

or S.L

. at the time of the interview. Howeve r, he did not testify that it wa s her mental impairment that rende red her incap ab l e o f pare nting S.L

. Instead, he based his opinion that she was not capa ble of discharg ing her pare ntal responsibilities primarily on her past history

. Evidence of an inability to discharg e pare ntal responsibility based on a pare nt’s past history is not equivalent to evidenc e of an inability to discharg e pare ntal responsibility based on the pare nt’s curr ent mental impairment. ¶ 54 During this time period, it is also rele vant that J ulia was adequa tely caring for M.P., that DCFS had found no rea son to intervene to remo v e M.P. from Julia’s custody
, and that Kosmicki did not find any mental i mpairment sufficient to preve nt J ulia fr o m discharg ing her pare ntal responsibilities toward M.P. In fac t, the trial court asked Kosmicki, “I f she can adequately pare nt [M.P .], why can’ t she adequately pare nt [S .L .]? ” When he replied, Kosmicki did not state that J ulia’s mental impairment rende red her incapa ble of discharg ing her pa renta l responsibiliti es for either M.P. or S.L ., but he only pointed out the differ ence s in g ender and ag e betwee n the children. Under t h e fa cts of this case , we note that it is

-13-illogica l to believe that J ulia suffe red from a mental impairment sever e enough to rende r her

incapa ble of discharg ing her pare ntal responsibilities for S.L
., but that, at the same time, she

was c apable of discharg ing he r par ental re sponsibili ties for M.P. ¶ 55 Since there is no other evidenc e of the first element of this statutory ground for unf itness, the trial cour

t’s findingthat the S tate proved the first element of section 1(D)(p) is aga inst the manifest weight of the evidenc e. The State’s failure to prove the first element of the
statute is fata l to a finding of unfitness on this g round beca use proof by clea

r and convincing evidenc e of both elements is nece ssary

. In re M .M. , 303 I ll. App. 3d at 566, 709 N.E.2d at 264. Neve rtheless, we will briefly discuss the evidenc e prese nted on the second element of the statute, which w e also find lac king. ¶ 56 As t o t h e s ec o nd element of the statute, the State also failed to prove that there was

s u ff i ci ent justification to believe that J ulia’s inability to discharg e her pare ntal responsibilities would extend beyond a rea sonable time. Kosmicki testified that befor e J ulia could be reunited with S.L
., she neede d long- term intensive thera py

. He acknow ledg ed that she was in counseling and had been rec eiving mental health treatment when he met with her, but he did not know if the thera py was he lping he r. When asked how long he thought J ulia would need to show that she was able to pare nt S.L
., he testified that he believed she neede d “six months to a year of logistica l stability
, being in one p l ac e, u t i l i ties, having a home, having no arr ests, having no instance of domestic violence, [and] no substance abuse.” J ulia moved into a four- bedroom house with M.P. and Schroete r on J uly 22, 2011. The evidentiar y hearing was conducte d on Fe bruar y 24 and Marc h 16, 201 2

. T h e trial court’s order was enter ed on June 11, 2012. ¶ 57 At the time of the second day of the hearing, the evidenc e is undisputed that J ulia had lived in the same residenc e, which DCFS deeme d appropriate, for almost nine months. J ulia

was visiti ng with S.L

. in this home, living there unsupervised with he r son M.P., a nd for at least part of the time, also taking car e of Schroete r’s two daughters unsupervised on Sunday s when Schroeter worked. During that time period, she had uti lities, no arre sts, no inst ance s of domestic violence , and no substance abuse. ¶ 58 Additionally
, the o t h er ev i d ence prese nted does not support a finding that the State proved the second element of section 1 ( D ) (p )

. E very case worke r who testified acknow ledg ed that J uli a co o p er at ed with their service reque sts throughout the case and afte r Kosmicki’s evaluation. Kissner, the case worke r from the end of Marc h 2011 through the date of the hearing, testified that Julia was meeting all o f DCFS’s require ments and that the only

rema ining pr oblem was that, during visits, J ulia lacke d the appr opriate le vel of intera ction with S

. L

. Ho we ver, Kosmicki did not base his opinion about J ulia’s i nability to discharg e pare ntal responsibilities on her interac tion with S.L
., and he testified that he place d very littl e weight on the pare nting assessment he c onducted be cause Julia’s interac tion with S.L

. had been limit ed. Kissner expressed conce rn about J ulia’s ref usal to take medicine as presc ribed, but by the time of the hearing, it wa s undisputed that she had voluntarily begun to take her
presc riptions a g ain until they cause d an allerg ic rea ction. The rec ord also indicates that the medications that made J ulia fee l “like a zombie” and stop taking them wer e pre scribed f or bipolar disorder and obsessive-c ompulsive disorders, conditions that Kosmicki did not find when he evaluated J ulia.

-14-¶ 59 The only basis for the trial court’s finding of unfitness on the second element of section

1(D)(p) is Kosmicki’s t es t i m o n y that J ulia would need six months to a year of “log istical stability ” to demonstrate that she had made sufficie nt chang es to enable her to reg ain custody of S.L

. However, at the time of the hearing, J ulia had demonstrated ever y element of the “l o g istical stability ” that Kosmicki found essential. Thus, the trial court’s finding that th e State proved the alleg ation of unfitness pursuant to section 1(D)(p) of the Adoption Act is
ag ainst the manifest we ight of the evidenc e and must be r ever sed.

¶ 60 CONCLUSI ON ¶ 61 For all of t he reasons st ated, the tri al court’s orders finding J ulia unfit and ter minating her pare ntal rights are reve rsed, and this cause is rema n d ed to the circ uit court for further
proce eding s consistent with this opi nion.

¶ 62 Reverse d and re manded.

-15-