In re S.L., 4 N.E.3d 50

Background

S.L., born 2002, was adjudicated neglected on Nov. 29, 2007 and made a ward of the court; DCFS custody continued with repeated permanency plans aimed at return to mother, Julia F.
On Nov. 30, 2011 the State filed an amended petition to terminate parental rights alleging, inter alia, failure to make reasonable progress during any nine-month period after the initial nine-month period post-adjudication (Adoption Act § 1(D)(m)(iii)).
The statute (as amended in 2006) requires the petitioner to file a separate pleading specifying which nine-month period(s) will be relied on, served at least three weeks before discovery closes. The State conceded it did not file that separate notice.
At the February 2012 fitness hearing the State presented caseworker testimony covering all post-initial nine-month periods (Aug. 29, 2008–Aug. 29, 2011), and Julia testified addressing conduct across those periods.
The trial court found Julia unfit under § 1(D)(m)(iii) and terminated parental rights; the appellate court reversed the § 1(D)(m)(iii) finding (holding the State’s failure to file the separate notice was a jurisdictional defect that could be raised for the first time on appeal) but affirmed reversal of a separate mental-impairment finding.
The Illinois Supreme Court granted review and reversed the appellate court as to the notice issue, holding the missing notice was a forfeited pleading defect (not a failure to state a cause of action) because the petition itself alleged the statutory ground and the parties proceeded as if all periods were at issue.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to file the separate § 1(D)(m)(iii) notice pleads no cause of action	State: petition alleging unfitness under § 1(D)(m)(iii) and identifying end of initial period was sufficient; notice requirement is procedural	Julia: absence of statutorily required notice means petition fails to state a cause of action and may be raised anytime	Court: Failure to file the separate notice is a pleading defect (forfeitable). The amended petition stated a cause of action. Forfeiture applies because defendant didn’t object below.
Whether the notice requirement is part of the substantive elements of the cause of action	State: notice is procedural – separate pleading requirement, not an element of the cause of action	Julia: notice requirement is integral and noncompliance defeats the cause of action	Court: Notice provision is procedural and does not convert a petition into a nonactionable pleading when the petition otherwise identifies the statutory ground.
Whether the record showed prejudice from lack of notice sufficient to excuse forfeiture	State: parties and witnesses proceeded as if all four periods were at issue; defendant did not show surprise or hindered preparation	Julia: fundamental liberty interests justify reversal despite lack of claimed prejudice	Court: No specific harm shown; allowing first-time appellate challenge would harm child's interest by delaying permanency; forfeiture applies.
Remedy for failure to file separate notice	State: defect could be cured if raised earlier; trial could proceed on evidence covering periods	Julia: reversal required because statutory procedural requirement was not met	Court: Affirm trial court’s finding of unfitness under § 1(D)(m)(iii); appellate reversal of that finding was reversed.

Key Cases Cited

Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012 (statutory interpretation; give effect to legislature's intent)
In re D.D., 196 Ill. 2d 405 (requirements for pleading sufficiency in termination cases)
In re D.C., 209 Ill. 2d 287 (petition must identify statutory grounds to state cause of action)
In re Gwynne P., 215 Ill. 2d 340 (pleading specificity in termination proceedings)
In re Kenneth J., 352 Ill. App. 3d 967 (forfeiture relaxed when petition fails to state cause of action)
In re J.R., 342 Ill. App. 3d 310 (termination proceedings are civil and governed by Code of Civil Procedure)
In re Rauch, 45 Ill. App. 3d 784 (petition failed to state a cause of action when it did not allege unfitness or grounds)
In re D.S., 198 Ill. 2d 309 (child’s interest in prompt resolution of status)