Sufficiency of Evidence for Unfitness Under Grounds (m)(iii) and (p)

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

            State filed a petition for termination of parental rights of both parents of minor.  The father did not partake in trial proceedings or appeal. 

[This summary does not include testimony of issues not addressed in the appellate court’s ruling.]  The State filed a petition for termination of parental rights alleging unfitness against mother for the following grounds:  1) failure to make reasonable efforts to correct conditions that were the basis of the child’s removal, 705 ILCS 50/1D(m)(i); 2) failure to make reasonable progress towards return home of the child within 9 months after adjudication,  705 ILCS 50/1D(m)(ii); 3) failure to make reasonable progress for any 9 month period following adjudication, 705 ILCS 50/1D(m)(iii); and 4) inability to discharge parental responsibilities based on mental impairment that will extend beyond reasonable time period, 705 ILCS 50/1D(p). 

At the hearing on State’s termination of parental rights, a clinical psychologist testified to mother’s own past history of abuse and that she had another child that was in her custody at time of termination hearing.  The psychologist diagnosed her with PTSD, borderline intellectual functioning and a personality disorder not otherwise specified.  He testified that mother was not able to discharge her parental responsibilities at the time her interviewed her and that mother should get long-term intensive therapy before being reunited with her child.  The psychologist estimated that mother would need 6 months to one year of maintaining a stable life; i.e., stable housing, no arrest,  not domestic violence, no drug use, before being able to regain custody of her son. 

The appellate court first looked at the9-month pleading requirement under , 705 ILCS 50/1D(m)(iii). The State conceded that it failed to file the notice specifying the 9-month period as required by statute.  A plain reading of the statute mandates the State to give notice of the specific 9-month period(s) at issue no later than 3 weeks before close of discovery, “the petitioner shall file with the court and serve on the parties a pleading that specifies the 9-month period or periods relied on.  Additionally, “the allegations in the pleading shall be treated as incorporated into the petition or motion…”  .”  705 ILCS 50/1D(m)(iii). 

In underscoring the significance of notice the court stated, “The portion of the statute requiring this notice pleading is as much a part of the allegation of unfitness as the basic provision that the parent has failed to make reasonable progress toward the return of her child.”  at ¶39.  Failure to identify the 9-month period impairs the parent’s ability to defend her/himself.  This is all the more important given the fundamental constitutional right to parent.  Moreover, the State’s duty to give notice cannot be waived by the parent’s failure to object.  Because the allegation was not in conformity with the statute, the circuit court erred in finding unfitness under ground (m). 

The State may not terminate on grounds not alleged in the petition.  Because the 9-month periods were not alleged in the petition via being incorporated by the pleading requirement, the circuit court could not find mother unfit under ground (m)(iii).  Finally, the appellate court noted that the State’s evidence did not clarify which 9-month period was at issue and the circuit court failed to identify any such period when finding mother unfit under ground (m)(iii). 

Note:  The allegation of unfitness based on reasonable progress within 9 months after adjudication was not sufficient notice under this court’s interpretation of the statute. 

As to the finding of unfitness based on mental impairment, ground (p), the appellate court also found that the State failed to meet its burden of proof.  Ground (p) has two components which the State must prove:  1) parent suffers from a mental impairment rendering him/her unfit to parent, and 2) this impairment will extend beyond a reasonable time.  As to the first component, the psychologist’s testimony established only that mother was not capable of discharging her parental responsibilities based on past history, but not on her current mental impairment, which is required by statute.  The appellate court also found noteworthy that mother was successfully parenting another child during the time of the termination hearing and that DCFS had not found it necessary to remove that child from mother’s care.  The court found it “illogical” that mother had such severe mental impairment that rendered her unfit to parent one child but not another. 

As to the second element of ground (p), that the impairment will extend beyond a reasonable time, the appellate court again found the State failed to meet its burden of proof.  The psychologist testified that mother needed up to one year of stability before being reunited with her child, the caseworker testified that mother had stable housing for the past 9 months, had utilities, not arrest, no domestic violence and no substance abuse.  Additionally, the caseworker testified that mother cooperated with the services requested of her.  The only problem was her lacking the appropriate level interaction with her child.  The appellate court held that mother had shown at the hearing that she had met all the requirements identified by the psychologist for logistical stability to allow her to be reunited with her child. 

The mater was reversed and remanded for further proceedings consistent with opinion.