Illinois Official Reports

Supreme Court

In re S.L., 2014 IL 115424

Caption in Supreme

Court:

In re S.L., a Minor (The People of the State of Illinois, Appellant, v. 

Julia F., Appellee).

Docket No. 115424

Filed January 24, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

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.

Decision Under 

Review

Appeal from the Appellate Court for the Fifth District; heard in that 

court on appeal from the Circuit Court of Marion County, the Hon. 

Michael D. McHaney, Judge, presiding.

Judgment Appellate court judgment affirmed in part and reversed in part.

Circuit court judgment affirmed in part and reversed in part.
- 2 -

Counsel on

Appeal

Lisa Madigan, Attorney General, of Springfield, and Matt Wilzbach,

State’s Attorney, of Salem (Michael A. Scodro, Solicitor General, and 

Ann C. Maskaleris, Assistant Attorney General, of Chicago, and 

Patrick Delfino, Stephen E. Norris and Rebecca A. McCormick, of the 

Office of the State’s Attorneys Appellate Prosecutor, of Mt. Vernon, 

of counsel), for the People.

Bill J. Milner and Craig W. Griffin, of Salem, for appellee.

Justices 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.

OPINION

¶ 1 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 toward 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. 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).

¶ 2 BACKGROUND

¶ 3 S.L., the daughter of Julia F. and Bruce V., was born on May 3, 2002.1 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 

 1

Bruce did not appear or participate in the proceedings below and is not a party to this appeal.
- 3 -

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.

¶ 4 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 believe that the inability to discharge parental responsibilities 

shall extend beyond a reasonable time period.”

The State concedes that it did not file a separate notice, as specified under section 1(D)(m)(iii) 

of the Adoption Act (750 ILCS 50/1(D)(m)(iii) (West 2010)), identifying which nine-month 

period or periods were the subject of the termination proceeding.

¶ 5 On February 24, 2012, the trial court conducted a fitness hearing. During the hearing, the 

State recognized, consistent with the amended petition to terminate parental rights, that the 

initial nine-month period after the adjudication of neglect began on November 29, 2007, and 

thus would have ended on August 29, 2008.2

¶ 6 Relevant to the allegation contained in paragraph 9(C) of the amended petition, the State 

presented the testimony of Danya McDaniel, Julia’s caseworker from June 2008 until April 

2010. McDaniel testified that when she drafted the permanency report in September 2008, 

Julia’s overall rating was unsatisfactory. McDaniel testified that although Julia had engaged in 

services, she lacked the “ability to internalize and demonstrate the learning of whatever the 

 2

Consequently, there were four consecutive nine-month periods running from the end of the initial 

period to the date of the fitness hearing. These four periods spanned from August 29, 2008 to August 

29, 2011.
- 4 -

services were.” McDaniel explained that there were several incidents throughout the case that 

indicated a lack of stability, including Julia’s choice to move multiple times. According to 

McDaniel, Julia showed a lack of good judgment because she chose boyfriends who were 

physically abusive and she associated with people who were not appropriate due to their 

criminal behavior or sex offender status. McDaniel also rated Julia as unsatisfactory on the 

requirement of obtaining and maintaining appropriate and safe housing because her home was 

unclean, had rodents and cockroaches, and was too small for the number of people living there.

¶ 7 McDaniel further testified that Julia had supervised visits with S.L. every week, which 

McDaniel occasionally observed. She tried to help Julia initiate appropriate interaction with 

S.L. during these visits. Julia’s behavior toward S.L., however, was sometimes not age 

appropriate and she would use inappropriate language. Julia had been allowed unsupervised 

visits with S.L. for a short period of time, but due to the unsanitary condition of her residence 

and Julia’s questionable boyfriends, the unsupervised visits were suspended. In March 2009, 

McDaniel completed another service plan review. She again gave Julia an overall progress 

rating of unsatisfactory because of “poor judgment, lack of stability, [and] situations that 

would put a child [S.L.’s] age at risk, [including] *** bouncing from man to man [and] 

bouncing from home to home.”

¶ 8 During McDaniel’s oversight of Julia’s case, which spanned almost two years, she found 

Julia’s progress unsatisfactory and believed that she had not made sufficient progress toward 

correcting the conditions that led to S.L.’s removal. McDaniel testified that Julia was willing to 

do what was asked of her, but she did not make demonstrable improvement in her 

decision-making regarding her choice of boyfriends and roommates or in the way she 

interacted with S.L.

¶ 9 Rachel Kissner, Julia’s caseworker from March 2011 until the fitness hearing, testified that 

she prepared a service plan review and evaluation of Julia in September 2011. Kissner 

supervised the visits between Julia and S.L. and rated Julia’s interaction with the child as 

unsatisfactory because Julia struggled to engage in age appropriate interactions with S.L. 

Kissner observed a lack of interaction during visits and would have to direct Julia to engage 

S.L. in activities. Kissner testified that Julia was not firm enough in disciplining S.L., that she 

looked to Kissner to tell her what to do, and that S.L. was very confused about her situation. 

Kissner testified that during the period of time she had the case, she could not say that she had 

seen improvement in the way Julia interacted with S.L.

¶ 10 After the State rested, Julia’s attorney moved for a directed verdict on all counts of the 

amended petition except paragraph 9(C). The trial court denied the motion as to paragraph 

9(D) and took the motion under advisement as to the other two counts. During Julia’s 

subsequent testimony, her counsel elicited answers on points that encompassed all four 

nine-month periods following the adjudication of neglect. She testified regarding her service 

plans throughout the time that S.L. had been in the custody of DCFS and since the beginning of 

her case. She testified that throughout the whole time period she maintained contact with 

caseworkers and “completed everything that they [had] wanted [her] to complete” with the 

exception of certain counseling. She further testified regarding specific activities and services 

which encompassed each of the time periods.
- 5 -

¶ 11 Following the fitness hearing, the trial court entered an order finding Julia and Bruce unfit. 

Concerning Julia, the trial court found that the State proved by clear and convincing evidence 

that she met the definition of an unfit parent as alleged in paragraphs 9(C) and 9(D) of the 

amended petition. The trial court granted Julia’s motion for a directed finding on the remaining 

two allegations. On June 11, 2012, after a best interest hearing, the trial court entered an order 

terminating Julia and Bruce’s parental rights to S.L. and authorized DCFS to consent to S.L.’s 

adoption.

¶ 12 On appeal, Julia raised for the first time that the finding of unfitness based upon paragraph 

9(C) of the amended petition must be reversed because the State failed to file a separate 

pleading, pursuant to section 1(D)(m)(iii) of the Adoption Act, notifying her which 

nine-month period or periods it was relying upon. 2012 IL App (5th) 120271, ¶¶ 36, 37. In 

reversing the trial court’s finding of unfitness based upon paragraph 9(C), the appellate court 

rejected the State’s forfeiture argument and concluded that, because the State did not comply 

with the Adoption Act’s notice pleading provision, the trial court could not terminate Julia’s 

parental rights based on an allegation that was not in conformity with the statute. Id. ¶ 44. The 

appellate court found that the portion of the statute requiring the notice pleading is as much a 

part of the allegation of unfitness as the basic provision that the parent had failed to make 

reasonable progress toward the return of the child. Id. ¶ 39. Consequently, the appellate court 

held that the State’s duty to comply with that portion of the statute may not be forfeited by the 

failure of a parent to raise the issue in the trial court. Id. The appellate court also reversed the 

trial court’s finding of unfitness due to mental impairment as alleged in paragraph 9(D) of the 

amended petition after concluding that it was against the manifest weight of the evidence. Id.

¶ 59.

¶ 13 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 

2010).

¶ 14 ANALYSIS

¶ 15 As it did before the appellate court, the State contends that Julia forfeited her claim that it 

failed to comply with the statutory notice requirement contained in section 1(D)(m)(iii) 

because she failed to raise the issue during the trial court proceedings, thereby denying the 

State the opportunity to remedy what was a pleading defect. Julia asserts that the forfeiture rule 

is inapplicable because the State must disclose the specific nine-month period or periods at 

issue in order to state a cause of action under section 1(D)(m)(iii).

¶ 16 In reviewing a statute, our framework is a familiar one. Our objective “is to ascertain and 

give effect to the intent of the legislature.” Gaffney v. Board of Trustees of the Orland Fire 

Protection District, 2012 IL 110012, ¶ 56. The most reliable indicator of legislative intent is 

the statutory language, given its plain and ordinary meaning. Id. We will not depart from the 

plain statutory language by reading into it exceptions, limitations, or conditions that conflict 

with the expressed intent of the legislature. Id. We review de novo questions of statutory 

construction. In re D.D., 196 Ill. 2d 405, 418 (2001). Similarly, when a challenge is raised to 

the sufficiency of a pleading, we apply de novo review. In re Kenneth J., 352 Ill. App. 3d 967, 

973 (2004).
- 6 -

¶ 17 Although termination of parental rights proceedings involve fundamental liberty interests, 

they are civil in nature and governed by the Code of Civil Procedure (Code). See, e.g., In re 

J.R., 342 Ill. App. 3d 310, 315-16 (2003). Section 2-612(c) of the Code provides that “[a]ll 

defects in pleadings, either in form or substance, not objected to in the trial court are waived.” 

735 ILCS 5/2-612(c) (West 2010). The waiver or forfeiture rule does not do away, however, 

with the necessity of stating a cause of action in any case. Adcock v. Brakegate, Ltd., 164 Ill. 2d 

54, 61-62 (1994). Specifically, courts in this state recognize that the forfeiture rule is relaxed 

when the State’s termination petition fails to state a cause of action. See, e.g., Kenneth J., 352 

Ill. App. 3d at 973. In connection with petitions for termination, the requirement of pleading 

with specificity simply requires an allegation that the parent is unfit, and identification of the 

specific statutory grounds on which the charge of unfitness is based. In re D.C., 209 Ill. 2d 287,

295 (2004); accord In re Gwynne P., 215 Ill. 2d 340, 349 (2005). The question then in this case 

is whether the State’s defective notice resulted in the failure to state a cause of action.

¶ 18 Section 1(D)(m)(iii) of the Adoption Act sets forth the following relevant basis for the 

termination of parental rights:

“D. ‘Unfit person’ means any person whom the court shall find to be unfit to have a 

child, without regard to the likelihood that the child will be placed for adoption. The 

grounds of unfitness are any one or more of the following ***.

* * *

(m) Failure by a parent *** (iii) to make reasonable progress toward the return 

of the child to the parent during any 9-month period after the end of the initial 

9-month period following the adjudication of neglected or abused minor under 

Section 2-3 of the Juvenile Court Act ***.” 750 ILCS 50/1(D)(m)(iii) (West 2010).

¶ 19 In 2006, pertinent to the issue before us, the legislature added the following language to the 

above provision:

“Notwithstanding any other provision, when a petition or motion seeks to terminate 

parental rights on the basis of item (iii) of this subsection (m), the petitioner shall file 

with the court and serve on the parties a pleading that specifies the 9-month period or 

periods relied on. The pleading shall be filed and served on the parties no later than 3 

weeks before the date set by the court for closure of discovery, and the allegations in 

the pleading shall be treated as incorporated into the petition or motion. Failure of a 

respondent to file a written denial of the allegations in the pleading shall not be treated 

as an admission that the allegations are true.” Id.

¶ 20 We find the allegations in the amended petition in this case sufficient to state a cause of 

action under section 1(D)(m)(iii) and to inform Julia as to the nature of the neglect charge. The 

amended petition alleged that Julia was unfit because she “failed to make reasonable progress 

toward the return of the minor to her during any 9 month period after the end of the initial nine 

month period [being the period of November 29, 2007 to August 29, 2008] following the 

adjudication of neglect, as defined by 750 ILCS 50/1(D)(m)(iii).” The State thus set forth the 

specific statutory ground upon which it based its allegation of unfitness, and apprised Julia that 

it sought to terminate her parental rights, in part, based on her failure to make reasonable 

progress toward S.L.’s return during any nine-month period from August 29, 2008, forward. 
- 7 -

The amended petition therefore met the criteria previously set forth by this court for a 

sufficient pleading in a termination case. D.C., 209 Ill. 2d at 295; Gwynne P., 215 Ill. 2d at 349; 

see also In re J.R., 342 III. App. 3d 310, 316 (2003) (petition did not fail to state cause of action 

where it sought to terminate parental rights citing section 1(D)(q) of the Adoption Act for 

finding mother unfit, but failed to specify mother could “permanently” lose her parental rights 

as required by statute); cf. In re Rauch, 45 Ill. App. 3d 784, 787-89 (1977) (the State’s 

termination petition failed to state a cause of action when the petition failed to allege that the 

mother was an unfit parent, and did not set forth an alleged ground for unfitness).

¶ 21 The State’s pleading error in not providing notice to Julia under section 1(D)(m)(iii) does 

not change our determination. This provision does not require the State to specify the 

nine-month period or periods at issue in the termination petition itself but, rather, provides that 

the State shall file with the court and serve on the parties a notice pleading stating the time 

period or periods at issue at least three weeks before discovery closes. While this provision 

states that the “allegations in the [notice] pleading shall be treated as incorporated into the 

petition or motion” (750 ILCS 50/1(D)(m)(iii) (West 2010)), we do not interpret this language, 

as Julia suggests, to mean that when the State does not file a notice specifying the period, it 

fails to state a cause action. If we were to interpret the statute as Julia urges, a petition alleging 

unfitness pursuant to section 1(D)(m)(iii) would not state a cause of action when the petition 

itself was filed, but only later if the notice is served on the parties and filed with the court 

before the close of discovery. We find such an interpretation illogical and unworkable.

¶ 22 We are also not persuaded by Julia’s claim that the notice provision is part of the cause of 

action because the legislature specified that a parent’s failure to file a written denial of the 

allegations “shall not be treated as an admission that the allegations are true.” Id. The State is 

not claiming that her failure to file a written denial of the allegations should somehow affect 

the outcome of this case, or be treated as an admission. We fail to see how the relied upon 

language informs our interpretation of the statute, or changes our determination that a 

defective notice does not result in the failure to state a claim.

¶ 23 Additionally, under Julia’s suggested interpretation, there would be no incentive for a 

parent to object to a defective notice in the trial court. On the contrary, a parent who did not 

receive notice, and was ultimately found unfit, could raise the issue for the first time on appeal, 

thereby receiving a second opportunity to defend against the allegations if the State chose to 

proceed on remand. Such a delay would be detrimental to the welfare of the child whose future 

is at stake because it would prevent him or her from obtaining a prompt, just, and final 

resolution of his or her status. As this court has previously emphasized, it is not in a child’s best 

interest for his or her status to remain in limbo for extended periods of time. See In re D.S., 198 

Ill. 2d 309, 328 (2001); see also Ill. S. Ct. R. 311(a)(5) (eff. Feb. 26, 2010).

¶ 24 The parties do not dispute that the legislature added the notice pleading provision to the 

statute, because in a case such as this, where there is more than one possible nine-month period 

from which the State could seek to prove unfitness, such notification of the time period allows 

a parent to better prepare a defense. We recognize in the instant case that while the State did 

not specify in a separate notice, or at the hearing, which period or periods formed the basis for 
- 8 -

its allegation of unfitness, it is apparent from the record that the parties proceeded as though all 

four nine-month periods were relevant.

¶ 25 The two caseworkers, McDaniel and Kissner, provided testimony covering all four periods 

regarding their respective conclusions that Julia’s progress was unsatisfactory. McDaniel was 

Julia’s caseworker during the first three nine-month periods at issue, while Kissner was her 

caseworker during the fourth nine-month period. Similarly, Julia defended against all four time 

periods. Specifically, she testified regarding the service plans during the entire time that S.L. 

had been in the custody of DCFS. She further testified that throughout the whole time period 

she maintained contact with her caseworkers and completed everything that they had wanted 

her to complete with the exception of some counseling.

¶ 26 Julia has not indicated any specific harm or prejudice to her as a result of the State’s error. 

She does not claim the lack of notice caused surprise or hindered the preparation of a proper 

defense. Instead, Julia requests that we find, in essence, an implied harm when the State fails to 

provide proper notice because of the fundamental rights at stake in a termination case and the 

overall importance of the statutory notice provision. Julia’s argument finds no support in our 

caselaw and would be detrimental to the welfare of S.L. by unnecessarily delaying resolution 

of her permanent placement.

¶ 27 For all these reasons, we conclude that the State’s failure to file a separate notice pleading 

identifying the nine-month period or periods at issue constitutes a pleading defect, not a failure 

to state a cause of action, which under section 2-612(c) of the Code was forfeited by Julia 

because she failed to raise the issue in the trial court when it still could be remedied.

¶ 28 CONCLUSION

¶ 29 We reverse the portion of the appellate court’s judgment which reversed the circuit court’s 

order finding Julia unfit under section 1(D)(m)(iii) of the Adoption Act. We do not disturb that 

portion of the appellate court’s holding which reversed the circuit court’s finding of unfitness 

due to mental impairment as alleged in paragraph 9(D) of the amended petition as it was not an 

issue presented by the State for our review.

¶ 30 Appellate court judgment affirmed in part and reversed in part.

¶ 31 Circuit court judgment affirmed in part and reversed in part.