1								Docket No. 90539–Agenda 11–November 2001.

In re J.J. et al., Minors (The People of the State of Illinois,

								Appellant, v. Phyllis J., Appellee).

Opinion filed June 20, 2002.

	JUSTICE KILBRIDE delivered the opinion of the court:

	The State filed a petition against the respondent, Phyllis J.

(mother), alleging that her minor children were abused or

neglected. It subsequently filed a petition in the circuit court of

Fulton County to terminate the mother’s parental rights under the

Adoption Act (750 ILCS 50/1 et seq. (West 1998)). In part, the petition alleged that the mother exhibited habitual drunkenness for

at least one year immediately prior to the commencement of the

unfitness proceedings (see 750 ILCS 50/1(D)(k) (West 1998)).

The circuit court found that the State proved the mother unfit by

clear and convincing evidence. The mother appealed, and the

appellate court reversed, holding that the finding of unfitness was

against the manifest weight of the evidence. 316 Ill. App. 3d 817,

823.

	This court is asked to clarify the proper time period for

admitting evidence of habitual drunkenness and to determine

whether the State met its burden of showing unfitness in this case

by clear and convincing evidence. We find that the circuit court

failed to apply the proper test for considering evidence of habitual

drunkenness; moreover, that if the proper test is applied, the State

failed to satisfy its burden of proof. Thus, we conclude that the

critical time period for presenting evidence of habitual drunkenness

is the one year just prior to the filing of the State’s termination

petition and that  hearsay testimony concerning unadmitted records of social service agencies may not be considered in a fitness hearing; and the State failed to support its allegation of habitual

drunkenness in this case by clear and convincing evidence.

BACKGROUND

	In April 1996, the State filed a neglect petition against the

mother and her husband, alleging that their minor children were abused or neglected.1 At the adjudicatory hearing held in June 1996, the mother admitted she had endangered the minors by the

excessive use of alcohol and by engaging in physical altercations

while under the influence of alcohol, as alleged in the State’s

supplemental petition. The circuit court found the minors abused

or neglected and dismissed the other counts of the supplemental

petition. At the dispositional hearing, the circuit court noted that

the mother had made significant progress in improving her housing

conditions and in acknowledging her alcohol problem, but

transferred guardianship of the minors to the Department of

Children and Family Services (DCFS). This order was filed on

October 23, 1996.

	Permanency review hearings were held on October 22, 1996,

and again in April 1997. During the latter hearing, the circuit court

agreed with the social worker assigned to the case, the guardian ad litem, and the mother’s attorney that the mother was “making substantial progress.”

	At the next permanency hearing in September 1997, the social

worker recommended that the children be returned home with

close monitoring for six months because the mother had maintained

an orderly house, dealt with her financial problems, taken part in an

aftercare alcohol treatment program, attended parenting classes,

and abstained from alcohol for eight months. The circuit court

adopted this recommendation and returned physical custody of the

children to the mother. In January 1998, the children were again

removed from the home after an unidentified police officer

reportedly found the mother intoxicated while caring for them. At

permanency review hearings in March and November 1998, the

mother was ordered to cooperate with DCFS or risk losing her

parental rights.

	On March 19, 1999, the State filed a petition to terminate the

mother’s parental rights on three grounds: (1) habitual drunkenness

for at least one year immediately prior to the commencement of the

unfitness proceedings (750 ILCS 50/1(D)(k) (West 1998)); (2)

failure to make reasonable efforts to correct the conditions that resulted in the removal of the children (750 ILCS 50/1(D)(m)

(West 1998)); and (3) failure to make reasonable progress toward

the return of the children within nine months of an adjudication of

abuse or neglect (750 ILCS 50/1(D)(m) (West 1998)). The only

ground raised in this appeal is the mother’s alleged habitual

drunkenness (750 ILCS 50/1(D)(k) (West 1998)).

	At the fitness hearing begun in August 1999, the State

presented the testimony of Kelly Rockwell, a Catholic Social

Services (CSS) worker recently assigned to the family. Her only

direct knowledge of the mother’s alcohol use was the mother’s

admission that she had consumed some unspecified amount of

alcohol the night before a court hearing in May 1999. Rockwell

offered no other specific evidence concerning that drinking

incident. Nonetheless, the State had suspected the mother of

intoxication and requested that she submit to a breath alcohol test.

At the fitness hearing, the State stipulated that the Breathalyzer test

given to the mother at that time resulted in a reading of zero.

	Rockwell also testified about the contents of the case file and

the mother’s service plans, although the plans were never admitted

into evidence. She testified that one of the mother’s visits with the

children was cancelled in July 1996, due to the mother’s

intoxication, and that CSS records indicated the mother was

diagnosed as alcohol dependent in February 1997. Accordingly, the

mother was instructed to abstain from alcohol and to attend

Alcoholics Anonymous (AA) meetings, counseling at the

Community Mental Health Center (CMHC), and parenting classes.

The mother’s file indicated that she did not completely satisfy any

of these requirements.

	The State also presented testimony from Terry Boughan, the

mother’s counselor at CMHC. He indicated that the mother had

completed an inpatient treatment program in February 1997, and

had been assigned to an outpatient aftercare program at CMHC

meeting once a week. She stopped attending the outpatient

sessions in November 1997, claiming first that she was ill and then

that she had no transportation. Due to her failure to participate in

the program, her treatment file was closed in February 1998.

Boughan stated that he did not believe she was ready for discharge

at that time. Boughan also testified that he believed the mother’s reasons for failing to attend the sessions were credible and that she

sincerely wanted treatment.

	The mother testified on her own behalf, acknowledging that

she drank some unspecified quantity of alcohol and missed weekly

alcohol treatment sessions between October 1998 and March 19,

1999, even though her service plans required her to abstain from

alcohol and to comply with the recommended treatment program.

She stated that due to transportation problems she had attended

only four or five AA meetings. She also testified that she did not

completely abstain from alcohol until three or four weeks before

her fitness hearing on September 23, 1999, but she did not specify

how often or how much she drank.

	The circuit court found the State proved habitual drunkenness

by clear and convincing evidence because it showed she “has had

an alcohol dependency and *** she still consumes alcohol or at

least until three weeks ago, and that addiction occurred for at least

one year prior to the commencement of this termination petition.”

The court later concluded that it was in the best interests of the

children to terminate her parental rights.

	The mother appealed the unfitness finding, and the appellate

court reversed, with one judge dissenting. The majority of the

appellate court held that there was insufficient proof of the

frequency and extent of the mother’s drinking between March 19,

1998, and March 19, 1999, to show habitual drunkenness by clear

and convincing evidence. 316 Ill. App. 3d at 823-24. The dissent

argued that there was a sufficient showing to support the circuit

court’s finding because the mother continued to drink even after

being told that abstinence was “a prerequisite to regaining custody

of her children.” 316 Ill. App. 3d at 827 (Homer, J., dissenting).

We granted the State’s petition for leave to appeal. 177 Ill. 2d R.

315.

ANALYSIS

	In this case, we are asked to consider the proper time frame

for evidence of habitual drunkenness as well as whether the

appellate court erred by reversing as against the manifest weight of

the evidence the circuit court’s finding that the mother was proven unfit by clear and convincing evidence (316 Ill. App. 3d at 823).

Simply stated, the key to the resolution of this case is the use of the

proper test, not the application of that test.

I. Proper Evidentiary Time Frame

	The parties disagree on the proper evidentiary time frame

considered in determining whether a parent is unfit due to habitual

drunkenness. Under the Adoption Act, parental “unfitness”

includes“[h]abitual drunkenness *** for at least one year

immediately prior to the commencement of the unfitness

proceeding.” 750 ILCS 50/1(D)(k) (West 1998). The State argues

that the statute permits the circuit court to consider evidence from

both before and after this one-year period. The mother argues that

only evidence within one year immediately prior to the filing of the

State’s petition may be considered.

	The resolution of this issue requires us to construe section

1(D)(k) of the Adoption Act (750 ILCS 50/1(D)(k) (West 1998)).

Since statutory construction is a question of law, we will review

this issue de novo. In re C.N., 196 Ill. 2d 181, 208 (2001).

	An unfitness proceeding begins when the State files a petition

seeking the termination of parental rights. In re D.D., 196 Ill. 2d  405, 417 (2001). The statute requires proof of habitual

drunkenness for “at least one year immediately prior to” the filing. (Emphases added.) 750 ILCS 50/1(D)(k) (West 1998). This

language permits consideration of evidence preceding the filing

date by more than one year. It does not, however, preclude the

consideration of evidence after the filing date in all cases. Evidence of habitual drunkenness arising after the filing of the initial petition

may be considered if the State files an amended or subsequent

petition. An additional filing is necessary because the termination

of parental rights affects a fundamental liberty interest and, thus,

must comport with the requirements of due process. See In re M.H., 196 Ill. 2d 356, 362-63 (2001). The notice required in juvenile proceedings is the same as that constitutionally mandated

in criminal or civil cases. People v. R.D.S., 94 Ill. 2d 77, 81 (1983). “Notice, to comply with due process requirements, must be given

sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set

forth the alleged misconduct with particularity.’ ” In re Application of Gault, 387 U.S. 1, 33, 18 L. Ed. 2d 527, 549, 87 S. Ct. 1428, 1446 (1967). Due to the serious nature of termination proceedings,

it would be improper to raise additional allegations against a parent

for the first time at the hearing. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570 n.7, 33 L. Ed. 2d 548, 556 n.7, 92 S. Ct. 2701, 2705 n.7 (1972) (“ ‘it is fundamental that

except in emergency situations *** due process requires that when

a State seeks to terminate [a protected] interest ..., it must afford

“notice and opportunity for hearing appropriate to the nature of the

case” before the termination becomes effective’ ” (emphasis in original)), quoting Bell v. Burson, 402 U.S. 535, 542, 29 L. Ed. 2d 90, 96, 91 S. Ct. 1586, 1591 (1971), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 94 L. Ed. 865, 873, 70 S. Ct. 652, 656 (1950). Thus, another filing alleging the

additional factual claims being made by the State would provide

the parent with proper notice and allow the preparation of an

appropriate defense.

	We emphasize that while evidence of habitual drunkenness

outside the one year before the filing of the State’s petition may be

considered, this option does not obviate the necessity of presenting

clear and convincing evidence of the parent’s habitual drunkenness during the one year immediately prior to that filing. In other words, if the evidence is insufficient to support a finding of habitual

drunkenness during the critical one-year time period immediately

prior to the filing of the termination petition, no amount of

antecedent or subsequent evidence will sustain a finding of

unfitness. While this requirement may initially seem onerous, it

must be remembered that the State unilaterally possesses the power

to choose when to file its petition and, thus, ultimately controls the

critical evidentiary time frame.

	Hence, at a minimum, the State must have proven by clear and

convincing evidence that the mother in this case was habitually

drunk between March 19, 1998, and March 19, 1999, when the

petition was filed, without any reference to evidence either before

or after that period. If this initial burden is met, the State may also present evidence showing that the parent was habitually drunk

prior to or after that period as well.

II. Evidentiary Basis for the Finding of Unfitness

	Next, the State contends that the circuit court’s finding of

unfitness is supported by sufficient evidence in the record. To

support this contention, the State relies on the following facts: (1)

the mother was diagnosed as alcohol dependent in 1996; (2) she

knew that abstaining from alcohol and completing treatment were

prerequisites for regaining custody of her children; (3) despite this

knowledge, she drank alcohol as recently as three or four weeks

prior to the fitness hearing and failed to complete the required

treatment program; and (4) she lost custody of her children for the

second time in January 1998, after an unidentified police officer

reportedly found her intoxicated while supervising them.

	On its face, the State’s factual allegations may seem

persuasive. Nevertheless, termination may only be justified when

there is factual certainty. Santosky v. Kramer, 455 U.S. 745, 768, 71 L. Ed. 2d 599, 616, 102 S. Ct. 1388, 1402 (1982). After

reviewing the record in this case, we find that only two points

arguably pertain to the critical time period in this case, March 19,

1998, to March 19, 1999: (1) the mother’s admission that she

continued to drink some unknown quantity of alcohol at some

unspecified times; and (2) her failure to continue her treatment

program. Nonetheless, the State argues that, viewed together, the

evidence shows that the mother had an uncontrollable problem

with alcohol abuse for the requisite period of time. The State also

claims that it did not need to establish the precise frequency of the

mother’s drinking because frequency is merely an indicator of her

inability to control her craving for alcohol.

	Conversely, the mother argues the appellate court properly

concluded that the circuit court’s finding of unfitness was against

the manifest weight of the evidence because there was no evidence

of how often or how much the mother drank during the relevant

time period. Without any evidence showing that she was unable to

control her drinking, the State failed to meet its burden of proving

habitual drunkenness by clear and convincing evidence.

	To determine the propriety of the circuit court’s finding of

unfitness in this case, we must construe section 1(D)(k) of the

Adoption Act (750 ILCS 50/1(D)(k) (West 1998)). The

construction of a statute involves a question of law and is reviewed

de novo. In re C.N., 196 Ill. 2d 181, 208 (2001).

	The involuntary termination of a parent’s rights is a drastic

step that permanently severs the parent-child relationship.

Santosky, 455 U.S. at 758-59, 71 L. Ed. 2d at 610, 102 S. Ct. at 1397; In re C.N., 196 Ill. 2d at 208; In re Adoption of Syck, 138 Ill. 2d 255, 274 (1990); 750 ILCS 50/17 (West 1998). Personal choice

in family matters affects a fundamental liberty interest protected by

the fourteenth amendment of the United States Constitution.

Santosky, 455 U.S. at 753, 71 L. Ed. 2d at 606, 102 S. Ct. at 1394. Fundamentally fair judicial procedures are critical for those parents

facing the involuntary dissolution of their rights. Santosky, 455 U.S. at 753-54, 71 L. Ed. 2d at 606, 102 S. Ct. at 1395. The

standard of proof is crucial since a parent’s fundamental liberty

interest cannot be protected if undue uncertainty is permitted in

determining the facts supporting a termination of parental rights. Santosky, 455 U.S. at 757 n.9, 71 L. Ed. 2d at 609 n.9, 102 S. Ct. at 1397 n.9. Thus, the State must demonstrate factual certainty

when terminating a parent’s rights. Santosky, 455 U.S. at 768, 71 L. Ed. 2d at 616, 102 S. Ct. at 1402. For this reason, clear and

convincing evidence of unfitness is required before a court may

involuntarily terminate parental rights. In re C.N., 196 Ill. 2d at 208.

	In Illinois, unfitness may be proved by establishing a parent’s

habitual drunkenness for the requisite period. 750 ILCS 50/1(D)(k)

(West 1998). To prove habitual drunkenness, the State must

present evidence that the individual (1) had a fixed habit of

drinking to excess, and (2) used alcohol so frequently as to show

an inability to control the need or craving for it. In re D.M., 298 Ill. App. 3d 574, 580 (1998). Our review of the evidence in this case

during the critical period between March 19, 1998, and March 19,

1999, reveals a complete dearth of evidence supporting the first

prong of this test and minimal support for the second prong.

	Only two witnesses offered evidence regarding the critical

one-year period in this case. One was the mother herself. She admitted that she drank alcohol during the five months prior to the

filing of the termination petition, but she provided no specific

evidence of her alcohol consumption during this period. She also

indicated that she did not attend alcohol treatment sessions as

required by her service plans due to a lack of transportation. She 

testified that she requested help from CSS with transportation, but

none was offered.

	The only other witness who presented testimony relevant to

this period was CSS worker Kelly Rockwell. Rockwell, only

assigned to the family’s case since May 1999, possessed no

firsthand knowledge of the period between March 19, 1998, and

March 19, 1999. She testified that she did not even meet the

mother until April 1999. Due to her lack of direct knowledge,

Rockwell deferred to the contents of agency records authored by

other CSS workers. In relevant part, she testified that CSS was in

contact with the mother“[a]t least monthly” and that the mother

received two unsatisfactory service plan ratings during the critical

one-year period due to her failure to abstain from alcohol and to

continue her treatment program. The State offered no other

evidence of the mother’s habitual drunkenness during this period.

	Before this court, the mother argues that the State offered no

competent evidence concerning the relevant time period. She

contends that Rockwell’s testimony was inadmissible hearsay

because Rockwell had no firsthand knowledge of the service plans

or case file during this period and that none of these records were

ever admitted into evidence. See In re A.B., 308 Ill. App. 3d 227, 236-37 (1999).

	We reject the mother’s hearsay argument because there was

no objection to Rockwell’s testimony at trial. Thus, the issue was

first raised on appeal and, as such, it is waived. See Wagner v. City of Chicago, 166 Ill. 2d 144, 147 (1995).

	Next, we note that the State requested the circuit court take

judicial notice of the service plans. The judge declined, noting that

only one plan was in the court file. Since the plans were never

admitted into evidence, Rockwell’s testimony provided the only

evidence of the contents of the agency’s case file or service plans.

	The record clearly shows, however, that the circuit court did

not rely on this testimony. Rather, the circuit court relied on the

mother’s unspecified “alcohol dependency,” her admitted failure to

continue alcohol treatment sessions, and her admission that she

drank some amount of alcohol as recently as three weeks prior to

the fitness hearing.

	Moreover, Rockwell’s testimony concerning the relevant

period offered no evidence that the mother was ever under the

influence of alcohol during the year prior to the filing of the State’s

termination petition. Rockwell merely indicated that CSS was in

monthly contact with the mother and rated two of her service plans

unsatisfactory because she continued to drink and did not complete

her treatment plans. We do not believe the former statement could

have had an adverse impact on the mother’s case because, if

anything, it demonstrates her ongoing interest in working with the

agency to regain custody of her children. We also believe that the

latter statement, labeling the mother’s lack of compliance with CSS

requirements “unsatisfactory,” was not unduly prejudicial. The

basis for the unsatisfactory rating was the mother’s admitted lack

of compliance with CSS requirements. It was this lack of

compliance, not the “unsatisfactory” label applied to it, that formed

the basis of the State’s allegation of unfitness. Under these

circumstances, Rockwell’s testimony did not affect the outcome of

the hearing and does not provide grounds for reversing the circuit

court’s finding of unfitness. See People v. Sims, 192 Ill. 2d 592, 629 (2000).

III. Propriety of the Unfitness Finding

	Next, we turn to the merits of the State’s claim that the circuit

court’s finding of unfitness in this case was supported by clear and

convincing evidence. When reviewing a finding of unfitness, we

must consider whether it is against the manifest weight of the

evidence. A decision concerning a parent’s fitness is against the

manifest weight of the evidence if the opposite conclusion is clearly

apparent. In re D.D., 196 Ill. 2d 405, 417 (2001).

	Here, the circuit court’s finding of unfitness was based on the

mother’s history of “alcohol dependency,” her failure to continue in the recommended aftercare program, and her acknowledgment

that she drank some unspecified amount of alcohol prior to a few

weeks before the fitness hearing. The circuit court failed to specify

the time period it employed in considering the mother’s alcohol

dependency. Moreover, the record reveals that the last time the

mother was found to be “alcohol dependent” was 1997. Shortly

thereafter, the mother’s condition improved significantly enough

for the case worker to recommend, and the circuit court to order,

that she regain custody of her children in September 1997. A stale

diagnosis of alcohol dependency such as this one cannot support

a termination petition.

	After reviewing the factors relied on by the circuit court in this

case, we find that vague references to a parent’s alcohol

dependence during some unidentified period, particularly when

followed by a period of significant improvement, and a parent’s

consumption of some unidentified amount of alcohol sometime 

prior to the fitness hearing constitute mere speculation. Speculation

is insufficient to support a finding of unfitness. A finding of

unfitness must be premised on clear and convincing evidence

proving that, at a minimum, the parent whose rights are at issue

was habitually drunk during the critical one-year time period

immediately prior to the filing of the State’s termination petition.

That standard was not met in this case. The factors relied on by the

circuit court do not approach the degree of factual certainty

required to support a finding of unfitness. See Santosky, 455 U.S. at 768, 71 L. Ed. 2d at 616, 102 S. Ct. at 1402.

	 While it is true that the precise amount and frequency of a

parent’s drinking need not be established to demonstrate habitual

drunkenness (see 316 Ill. App. 3d at 827 (Homer, J., dissenting)),

there must be clear and convincing evidence showing both that “the

individual had a fixed habit of drinking to excess” (emphases added) and that the individual used alcohol so frequently as to show an inability to control the need or craving for it (see In re D.M., 298 Ill. App. 3d at 580).

	Here, the record shows only that the mother admitted drinking

some unspecified amount of alcohol during the review period even

though she knew her service plan required abstinence. While this

admission may be relevant to an analysis of the second prong of the test, requiring proof of the mother’s inability to control her craving

for alcohol, it provides weak evidence of that prong and no

evidence of the first prong. The mother did not admit that she

habitually drank to excess.

	To prove the first prong of the test, the State must first show

that the mother drank alcohol “to excess.” While the exact amount

of alcohol consumed in any specific instance need not be

established, there must be clear and convincing evidence showing

that she suffered significant impairment in her ability to supervise

and parent her children due to the consumption of alcohol. No such

showing was made in this case. In fact, the State’s case includes

nothing showing how the mother’s fitness to parent her children

was impaired by her drinking during the critical year.

	Moreover, we note that any evidence of even one incident

when the mother was observed to be under the influence of alcohol

during the entire year in question is conspicuously absent. The only

instance when the State suspected that the mother had used alcohol

and subjected her to testing was in May 1999. Although this test

was done after the critical period, it is noteworthy that the testing

resulted in a reading of zero.

	Even if the State had met its burden of proving by clear and

convincing evidence that the mother drank alcohol to excess during

the critical year, to prove the first prong of the test it was also

required to present enough evidence to show that the mother drank

to excess frequently enough for her drinking to be deemed “a fixed

habit.” Similarly, to prove the second prong of the test, the State

had to present clear and convincing evidence that the mother drank

frequently enough to demonstrate an inability to control her

craving for alcohol. While it is impossible to state the requisite

frequency with precision, it is clear that in this case the State failed

to meet its burden. The State did not present any evidence of how

often the mother drank any amount of alcohol between March 19,

1998, and March 19, 1999. Her testimony indicated that she drank

some alcohol during the relevant period, but it did not indicate that

she drank frequently enough to constitute a “fixed habit” or to

exhibit an uncontrollable craving for alcohol.

	Generally, a finding of unfitness is entitled to deference and

generally should be upheld. See In re T.B., 215 Ill. App. 3d 1059, 1062 (1991). Here, however, the utter absence of any evidence

during the critical one-year period showing both a pattern of

drinking sufficient to establish a “fixed habit” of alcohol

consumption and an inability to control the need or craving for

alcohol, combined with instances of the mother drinking to excess

precludes a finding of habitual drunkenness. Since the State failed

to meet its burden of proving habitual drunkenness by clear and

convincing evidence, the appellate court properly reversed the

judgment of the circuit court terminating the mother’s parental

rights.

CONCLUSION

	We hold that to prove an allegation of unfitness due to

habitual drunkenness under section 1(D)(k) of the Adoption Act

(750 ILCS 50/1(D)(k) (West 1998)), the State must, at a

minimum, present clear and convincing evidence of habitual

drunkenness during the critical one-year period immediately

preceding the filing of its termination petition.  In this case, the

State failed to support its allegation of habitual drunkenness by

clear and convincing evidence.

	Accordingly, the judgment of the appellate court is affirmed.

Affirmed.

	JUSTICE THOMAS, dissenting:

	I disagree with the majority'’s conclusion that the State did not

prove respondent unfit by clear and convincing evidence. Further,

I strongly disagree with the majority’s construction of section

1(D)(k) of the Adoption Act–a construction that unnecessarily

hinders the State’s ability to present relevant evidence of parental

unfitness.

I. Evidentiary Time Frame

	Section 1(D)(k) of the Adoption Act provides as a ground for

parental unfitness “[h]abitual drunkenness *** for at least one year immediately prior to the commencement of the unfitness proceeding.” (Emphasis added.) 750 ILCS 50/1(D)(k) (West

2000). I agree with the State’s construction of this provision. That

is, the State can introduce all relevant evidence of habitual

drunkenness, but to meet its burden it must show that the problem

has been occurring for at least one year.

	The majority instead reads the one-year period in the statute

as a distinct “critical” evidentiary period rather than as a minimum

period. The majority makes several references to the “critical one-

year time period” and requires the State to first present evidence

relating only to this one-year period. Thus, the interpretation the

majority settles on is that the State must first prove by clear and

convincing evidence that the parent was habitually drunk during the

one year immediately prior to the filing of the petition. Slip op. at

6. Then, if the State meets that burden, it can introduce evidence

of habitual drunkenness before the one-year period. Slip op. at 6.

However, the State can introduce evidence of habitual drunkenness

occurring after the State filed its petition only if it files a second petition for termination alleging habitual drunkenness during a

different time period. Slip op. at 5.

	I disagree with the majority on both points. First, if, as the

majority concedes, the statute allows “consideration of evidence

preceding the filing date by more than one year,” why do we

arbitrarily restrict the State’s ability to present that evidence until after it has proved what happened during the year immediately prior to the filing of the petition? Indeed, the majority holds that

this evidence cannot be presented until after the State has proven by clear and convincing evidence that the parent was habitually drunk during the year prior to the filing of the petition. But, if the

State had met that burden, why would it present additional

evidence? At that point, it would have proved the parent unfit by

clear and convincing evidence. The majority has effectively turned

the one-year minimum time period into an absolute one-year

period. The statute does not, however, refer to habitual

drunkenness within a one-year period; it refers to habitual drunkenness for at least one year. These terms are not synonymous. When the legislature means “within” or “during” it

uses those terms. To see this, one only has to count down two

statutory subparts from the one at issue. See 750 ILCS 50/1(D)(m)(ii) (West 2000) (“to make reasonable progress toward

the return of the child to the parent within 9 months after an adjudication of neglected or abused minor” (emphasis added)); 750

ILCS 50/1(D)(m)(iii) (West 2000) (“to make reasonable progress

toward the return of the child to the parent during any 9-month period” (emphasis added)). The daunting task now facing the

legislature is how to fix the statute in light of the majority'’s

interpretation. The statute'’s meaning is already clear, and I cannot

imagine how the legislature can fix it if this court persists in

defining the phrase “for at least one year” as synonymous with

“during a discrete one-year period.”

	Because the one-year period in the statute is merely a

minimum time period, we should not restrict the State’s ability to

present its evidence in the manner it sees fit. In the normal case, the

most logical way for the State to present its evidence would be

chronologically, beginning with the earliest episodes of

drunkenness and any diagnosis of alcohol dependence. It might

often be the case (as it is here) that the episodes occurring during

the year immediately prior to the filing of the petition do not seem

as significant unless they are considered in the context of the

person’s entire struggle with alcohol abuse.

	In my opinion, the one-year period is a safeguard for

respondents facing termination on this basis. It guarantees that they

will not lose their parental rights over a few isolated incidents.

Before the State may file its petition, it must have evidence that the

problem with habitual drunkenness has been occurring for at least

one year. It is not, however, a limitation on the evidence that the State can introduce, and the majority errs by characterizing it as

such.

	Second, I also disagree with the majority’s assertion that, if the

State wants to introduce evidence of the respondent’s drunkenness

occurring after it files its petition to terminate, it must file a new

petition containing additional allegations. The majority claims that

a respondent'’s due process rights would be violated by

introduction of these “additional allegations.” Slip op. at 6. But

these are not additional allegations. The phrase “habitual

drunkenness *** for at least one year immediately prior to the

commencement of the unfitness proceeding” has two distinct components. The first is the alleged parental problem: habitual

drunkenness; the second is the minimum time the State must show the problem has been occurring: at least one year immediately prior

to the commencement of the unfitness proceeding. Thus, all

evidence the State has of the person'’s habitual drunkenness is

relevant. If the State files a petition to terminate someone'’s

parental rights because of habitual drunkenness, that person is on

notice that any relevant evidence of his or her drinking problem is

going to be introduced. Does the majority serouslyseriously believe that a

person facing termination of his or her parental rights because of

habitual drunkenness is not on notice to stop drinking and, indeed,

would be unfairly surprised by the introduction of evidence of

drunkenness between the filing of the termination petition and the

hearing?

	In this case, the majority defines the “critical one-year period”

as March 19, 1998, to March 19, 1999. Under the majority’s

analysis, if the State had evidence that the respondent was drunk

on March 20, 1999, the State could not introduce this evidence

unless it filed a new or amended petition alleging a new “critical

one-year time period.” I see no reason to make the State meet this

additional procedural burden. If the State has a pending petition to

terminate someone’s parental rights because that person has been

habitually drunk for at least one year, it should be able to introduce

all available evidence of the person’s drinking problem so that the

trial court can make an informed decision.

	Again, the above problems arise because the majority has

taken a legislative requirement that the State have sufficient evidence of habitual drunkenness before proceeding with a

termination petition and transformed it into an arbitrary limitation on the amount of evidence the State can introduce. The majority

has turned the legislature’s floor into a ceiling. I would hold that

the meaning of the statute is simply that the State can introduce all

relevant evidence of habitual drunkenness, but, to meet its burden,

it must show that the problem has been going on for at least one year.

g to is a suggestion on page 7 of respondent’s response brief that

Kelly Rockwell’s testimony about the DCFS service plans should

not have been allowed because she did not author them. What the

majority never discloses is that respondent never objected to Rockwell’s testimony on this basis and is raising this concern for

the first time on appeal.

	The majority never discusses respondent’s clear waiver of this

issue and instead offers an attempt at a definitive ruling on the admissibility of testimony

about DCFS service plans. Nevertheless, the majority’s holding on

this issue is unclear. Initially, the majority holds that only the

service plan can be admitted into evidence, not any accompanying testimony about the contents of the plan. Slip op. at 9. A mere

three sentences later, however, the majority states that, “[s]ince the

plans were never admitted into evidence, Rockwell’s testimony

was hearsay and should not have been admitted.” Slip op. at 9. This sentence suggests that

Rockwell’s testimony would have been admissible if the plans had been admitted into evidence, but the majority just finished saying that only the plans are admissible, not any accompanying

testimony.

	Additionally, the majority errs in holding that Rockwell’s

testimony about the service plans should have been excluded on

hearsay grounds. Because respondent did not object to the testimony, the trier of fact was

free to consider it. As we recently explained in People v. Ramsey, No. 92214, slip op. at 4 (February 7, 2001), “the failure to object

to hearsay not only waives the issue on appeal, but allows the evidence to be considered by the trier of fact and to be given its

natural probative effect.” See also People v. Williams, 139 Ill. 2d 1, 15 (1990); People v. Collins, 106 Ill. 2d 237, 263 (1985). Thus, the circuit court could have properly relied on Rockwell’s testimony, and this court can

consider her testimony in determining if sufficient evidence

supported the finding of unfitness. I express no opinion on the

majority’s general conclusion on the admissibility of testimony about DCFS service plans, as that issue is not properly before this

court.

III. Propriety of the Unfitness Finding

	The majority’s erroneous interpretation of section 1(D)(k) has

led it to conclude that the State failed to meet its burden of proving

that respondent was unfit because of habitual drunkenness. Both

parties approve of the two-part test for habitual drunkenness

adopted by the appellate court in In re D.M., 298 Ill. App. 3d 574, 580 (1998): there must be clear and convincing evidence that “the

individual had a fixed habit of drinking to excess and [that] his

usage was so frequent as to show an inability to control his need or

craving for alcohol.”2 When all of the relevant evidence is considered, it is clear that the State established that respondent had

a fixed habit of drinking to excess and used alcohol so frequently

as to show an inability to control the need or craving for it.

	In 1996, respondent admitted at the adjudicatory hearing that

she had endangered her children by her excessive use of alcohol

and by engaging in physical altercations while under the influence

of alcohol. In August 1996, she was diagnosed as alcohol

dependent. The basis for the diagnosis was that she met five of the

seven DSM-IV factors for symptomatology of alcohol dependence.

Specifically: (1) she used alcohol in larger amounts and for a longer

period of time than intended; (2) she showed a persistent desire for

alcohol and was unsuccessful in controlling her alcohol use; (3) she

spent a significant amount of time and activity either to use alcohol

or to recover from its effects; (4) alcohol use had negatively

affected her major role obligations as a spouse and a parent; and

(5) she had developed a marked increase in tolerance to the effects

of alcohol. In September 1996, she was recommended for inpatient

treatment because she had been unable to maintain abstinence in an

outpatient setting. She successfully completed an inpatient program

at Riverside Robert Young Center in Rock Island and then began group meetings at the Community Mental Health Center of Fulton

and McDonough Counties in February 1997. Respondent abstained

from alcohol and went to treatment for eight months, following

which her children were returned to her in late 1997.

	In January 1998, the children were once again removed from

respondent’s custody when a police officer observed that

respondent was intoxicated while caring for them. In February

1998, respondent was discharged from the mental health center

because she had withdrawn from treatment. The last group session

she attended was in November 1997. Significantly, when

respondent testified, she admitted that she did not abstain from

alcohol from October 1998 to April 1999, and, in fact, had only quit drinking three to four weeks before the hearing that took

place on September 23, 1999. Further, in May 1999, she admitted to Kelly Rockwell that she had been drinking the night before a

court hearing.

	When all of this evidence is considered, the majority’s claim

that the State did not meet its burden must fail borders on the absurd. Again, the majority

reaches this erroneous conclusion because it improperly limits itself

to considering only what happened between March 19, 1998, and

March 19, 1999. When the evidence of what happened in that year

is considered in light of respondent’s entire history and struggle

with alcohol addiction, as it should be, it is clear that respondent

had been habitually drunk for at least one year.

	Indeed, any drinking that respondent engaged in after her

diagnosis of alcohol dependence is significant because she was

ordered to abstain from alcohol and to continue treatment as

requirements for keeping her children. As the dissenting justice in

the appellate court correctly pointed out,“[t]he refusal to abstain

from alcohol consumption and to attend required treatment–even

though such refusal would prevent respondent from regaining

custody of her children–supports a finding that respondent used

alcohol so frequently as to show an inability to control the need or

craving for it [citation].” In re J.J.,  316 Ill. App. 3d at 817, 827 (2000)  (Homer, J.,

dissenting). The majority downplays the significance of the

respondent’s admission that she had stopped drinking only a few

weeks before the hearing because respondent did not admit that

she habitually drank to excess. Again, the majority is refusing to look at this evidence in the proper context. Respondent had been

diagnosed as alcohol dependent and had not been able to abstain

from alcohol even when it meant losing custody of her children.

Thus, the trial court was justified in placing significance on

respondent’s admission and could fairly conclude that it did not

refer to an occasional glass of wine with dinner.

IVIII. Conclusion

	Because the majority has improperly limited the evidence that

can be introduced in proceedings to declare a parent unfit because

of habitual drunkenness,  has addressed an issue not properly before the court, and has erroneously concluded that the

State failed to show by clear and convincing evidence that

respondent had been habitually drunk for at least one year, I must

dissent.

	JUSTICES McmMORROW and GARMAN joins in this dissent.