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Nos. 2--03--0018 & 2--03--0030 cons.

In this consolidated appeal, respondent mother, Teresa N.-S., and respondent father, Jason B., appeal from the January 3, 2003,order of the circuit court of Winnebago County terminating theirparental rights to their daughter, Jacien B. In appeal No. 2--03--0018, Teresa argues that (1) the trial court's finding of unfitnesswas against the manifest weight of the evidence and (2) the trialcourt abused its discretion in finding that it was in the minor'sbest interests to terminate her parental rights. In appeal No. 2--03--0030, Jason argues that the trial court abused its discretionin finding that it was in the minor's best interest to terminatehis parental rights. With respect to appeal No. 2--03--0018, wereverse the judgment of the trial court and remand the cause forfurther proceedings. With respect to appeal No, 2--03--0030, weaffirm the judgment of the trial court.

I. BACKGROUND

On March 12, 1999, Teresa gave birth to Jacien. Paternitytests revealed that Jason is Jacien's biological father. At thetime of Jacien's birth, Teresa tested positive for the presence ofcocaine. Jacien tested negative for the presence of drugs. OnMarch 17, 1999, the State filed a four-count petition alleging thatJacien was a neglected minor pursuant to section 2--3 of theJuvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2--3(West 1998)). Respondents waived their right to a hearing onwhether probable cause existed that Jacien was neglected. Thetrial court then placed Jacien in the temporary custody of theDepartment of Children and Family Services (DCFS).

On August 4, 1999, the trial court conducted an adjudicatoryhearing at which Teresa stipulated to two counts of the neglectpetition. Specifically, Teresa stipulated to count I, whichalleged that she tested positive for cocaine at Jacien's birth, andto count III, which alleged that one of Jacien's siblings wasadjudicated a neglected minor because he was born cocaine-exposed. The State dismissed the remaining counts. Following adispositional hearing on November 1, 1999, Jacien was made a wardof the court and placed in the custody and guardianship of DCFS. The dispositional order directed respondents to cooperate with alldrug, alcohol, and domestic violence services required by DCFS.

On February 24, 2000, the State filed a motion seeking thetermination of the parental rights of Teresa and Jason to Jacienand the appointment of a guardian with the power to consent to theminor's adoption. The State subsequently moved to dismiss thismotion. However, on August 25, 2000, the State filed the motion atissue in this appeal. The motion contained three counts ofunfitness with respect to Teresa, including an allegation that sheviolated section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m)(West 2000)) in that she "failed to make reasonable efforts tocorrect the conditions that were the basis for the removal of thechild from her, or to make reasonable progress toward the return ofthe child to her within nine (9) months after an adjudication ofneglect[]." The motion also alleged that Jason was unfit to havea child on three grounds, including a violation of section 1(D)(m).

The unfitness phase of the hearing was held over several datesbetween June 5, 2002, and December 18, 2002. Among those witnesseswho testified at the hearing were Teresa, Jason, the DCFScaseworker assigned to Jacien's case, and Teresa's substance-abusecounselor. At the hearing, the court learned that both Teresa andJason were convicted of drug-related offenses arising from anincident occurring in June 2000. Apparently, the arrests occurredwithin 24 hours of the date that Teresa completed substance-abusetreatment. At the time of the hearing, Teresa was stillincarcerated but was expected to be released in March 2003. Jasonwas released from prison in April 2002. At the conclusion of theunfitness phase of the hearing, the trial court found Teresa to bean unfit parent. Specifically, the court remarked:

"[T]he Court finds *** that the State has met its burdenof proof and has demonstrated by clear and convincing evidencethat *** Teresa *** [is] an unfit person to have this child*** in that [she has] failed to make reasonable efforts tocorrect the conditions that were the basis for the removal ofthe child from [her] or to make reasonable progress towardsthe return of the child to [her] within nine months after theadjudication of the child as a neglected minor.

The disposition/adjudication date was November the 1st ofthe year 1999. The nine-month period ran August the 1st ofthe year 2000. Clearly within that period of time [Teresawas] actively selling and manufacturing drugs, except for theperiod of time when [she was] in jail; and clearly that doesnot constitute reasonable efforts. [She] was living acharade, trying to pull one over on everyone."

The court also found Jason to be an unfit parent on the basis thathe "failed to make reasonable efforts to correct the conditionsthat were the basis for the removal of the child from him or tomake reasonable progress towards the return of the child to himwithin nine months after the adjudication of the child as aneglected minor." The matter then proceeded to the best-interestphase of the hearing.

During the best-interest phase, the State first called ReneeSmall, the DCFS adoption worker assigned to Jacien's case. Smalltestified that since Jacien was discharged from the hospital afterher birth, she has resided with Pat E. in a DCFS foster home. According to Small, Jacien is doing well. The minor relates to Patas a parent, refers to Pat as "mom," and seeks Pat to meet herneeds and provide affection. Small stated that Pat is veryinvolved in therapy sessions Jacien attends. In fact, Smallreceived a letter from one of Jacien's doctors detailing how activePat was and how her participation has helped Jacien progress.

Small noted that Jacien has been in the system for more thanthree years and that it is important for her to have permanency. Small pointed out that Jacien has resided with Pat since birth, shehas made "incredible progress" in her placement, and there is astrong attachment between Pat and Jacien. Small offered that Patappears to be financially secure and that Jacien will qualify foran adoption subsidy through DCFS if she is adopted. Small opinedthat Jacien will continue to thrive in this environment and thatallowing Jacien to remain in her current environment is the bestway for the minor to achieve permanency. Small concluded that itis in Jacien's best interest to be freed for adoption. On cross-examination, Small acknowledged that Pat is 66 years old. However,she offered that Pat is healthy, that she has been able to meetJacien's needs, and that Pat and Jacien have a very strongattachment.

Teresa testified that she loves Jacien and that she wouldrefrain from engaging in criminal activity once she is releasedfrom prison. Teresa testified that upon her release from prison,she plans to reside with her mom and look for work. Eventually sheintends to find her own place. Teresa testified that she has beendiagnosed with a bipolar disorder. However, she believed that shewill be able to care for Jacien when she is released from prison. She expects to seek substance-abuse treatment and mental healthcounseling upon her release. She also plans to continue herrelationship with Jason as long as he follows the recommendationsof DCFS and his parole officer.

Following closing arguments by the parties, the courtdetermined that it would be in Jacien's best interest thatrespondents' parental rights be terminated. The trial court foundthat Jacien was physically safe and well cared for by Pat. Thecourt pointed out that Jacien had been residing with Pat sinceJacien had been released from the hospital, that the minor hadestablished a bond with Pat, and that Pat has satisfied Jacien'semotional and physical needs. The court noted that Jacien hasnever had a close, loving relationship with Teresa or Jason andthat the minor does not recognize Teresa and Jason as her parentsor her family. The court observed that Jacien was approaching fouryears of age and deserved permanency. The court concluded thatJacien deserved to remain in Pat's home where she is loved, caredfor, and nurtured, and can achieve permanency. Respondentsappealed.

II. ANALYSIS

The Juvenile Court Act of 1987 provides a bifurcated procedureto determine whether a parent's rights should be terminated. 705ILCS 405/2--29(2) (West 2000). First, the court must find by clearand convincing evidence that the parent is "unfit" as that term isdefined in section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West2000)). In re Adoption of Syck, 138 Ill. 2d 255, 277 (1990); In reJeffrey S., 329 Ill. App. 3d 1096, 1101 (2002). If the parent isfound unfit, the court must then determine whether the terminationof parental rights would serve the child's best interests. Syck,138 Ill. 2d at 277; Jeffrey S., 329 Ill. App. 3d at 1101. In thiscase, Teresa challenges the trial court's findings with respect toboth phases of the termination proceeding while Jason challengesonly the trial court's finding regarding the best-interest phase. We address Teresa's arguments first.

A. Appeal No. 2--03--0018

The trial court determined that Teresa was unfit on thegrounds that she failed to make reasonable efforts to correct theconditions that were the basis for Jacien's removal from Teresa andthat she failed to make reasonable progress toward the return ofthe child within nine months after the adjudication of neglect. 750 ILCS 50/1(D)(m) (West 2000). According to Teresa, the trialcourt's finding was against the manifest weight of the evidence. Teresa asserts that the nine-month period from which "reasonableefforts" and "reasonable progress" are to be measured begins on thedate of the dispositional order, in this case November 1, 1999. Teresa acknowledges that, during this time period, she wasconvicted of a drug-related offense. However, she offers that shealso completed substance-abuse treatment, attended alcoholicsanonymous/narcotics anonymous meetings, and participated indomestic violence classes. The State simply argues that based onTeresa's pattern of conduct during the nine-month period followingthe trial court's dispositional order (November 1, 1999, through August 1, 2000), the trial court's decision was not against themanifest weight of the evidence.

Section 1(D) of the Adoption Act defines the term "unfitperson" and lists various grounds upon which a person may be foundto be unfit to have a child. 750 ILCS 50/1(D) (West 2000). Relevant here is section 1(D)(m) (750 ILCS 50/1(D)(m) (West 2000)),the provision under which the trial court found Teresa unfit tohave a child. That provision lists the following bases upon whicha finding of unfitness may rest:

"(m) Failure by a parent (i) to make reasonable effortsto correct the conditions that were the basis for the removalof the child from the parent, or (ii) to make reasonableprogress toward the return of the child to the parent within9 months after an adjudication of neglected or abused minorunder Section 2-3 of the Juvenile Court Act of 1987 ordependent minor under Section 2-4 of that Act, or (iii) tomake reasonable progress toward the return of the child to theparent during any 9-month period after the end of the initial9-month period following the adjudication of neglected orabused minor under Section 2-3 of the Juvenile Court Act of1987 or dependent minor under Section 2-4 of that Act." 750ILCS 50/1(D)(m) (West 2000).

The nine-month period identified in section 1(D)(m)(ii) alsoapplies to the "reasonable efforts" ground in section 1(D)(m)(i) ofthe statute. In re D.L., 191 Ill. 2d 1, 10 (2000) (holding thatthe then 12-month limitations period in section 1(D)(m) applied toboth the "reasonable efforts" and "reasonable progress" grounds);In re D.F., 332 Ill. App. 3d 112, 118-20 (1st Dist. 2002), appealallowed, 203 Ill. 2d 547 (2003) (concluding that the 2000 amendmentto section 1(D)(m) did not render uncertain the supreme court'sinterpretation of the statute in D.L.; amendment did notsubstantively change language interpreted by the supreme court butmerely added lower case roman numerals and an additional ground ofunfitness); see also In re Brianna B., 334 Ill. App. 3d 651, 658(4th Dist. 2002) (adopting First District's reasoning in D.F.). Identifying the appropriate time frame is critical because, as oursupreme court observed in D.L., section 1(D)(m) limits the evidencethat may be considered in measuring "reasonable efforts" and"reasonable progress" to those matters concerning the parent'sconduct during the relevant time span outlined in the statute. D.L., 191 Ill. 2d at 10.

We find that the parties, as well as the trial court below,incorrectly used the date of the dispositional order (November 1,1999) as the starting date for calculating the nine-month periodduring which "reasonable efforts" and "reasonable progress" are tobe measured. We conclude that it is the date of adjudication ofneglect, in this case August 4, 1999, that commences the applicablenine-month period. As a result, we reverse and remand this causefor further proceedings.

In In re Christopher J., 338 Ill. App. 3d 1057 (2003), we wereasked to determine when the nine-month period referred to insection 1(D)(m) (750 ILCS 50/1(D)(m) (West 2000)) begins to run. At that time, we declined to address the issue on the basis ofwaiver. Christopher J., 338 Ill. App. 3d at 1058. However, theFirst and Fourth Districts of this appellate court have recentlyexamined this issue, albeit with differing results. In In re D.S.,313 Ill. App. 3d 1020 (2000), the Fourth District concluded thatthe statutory time period referred to in section 1(D)(m) begins torun on the date the court files its dispositional order on theState's petition of neglect, abuse, or dependency. The courtreasoned that the filing of the dispositional order "completes theadjudication, renders it final, and gives rise to the right toappeal the adjudication of neglect, abuse, or dependency." D.S.,313 Ill. App. 3d at 1028. The court also stated that had thelegislature intended the time period to begin on the date of thetrial court's finding of neglect, abuse, or dependency at theadjudicatory hearing, it would have so specified as it did insection 1(D)(m--1) of the Adoption Act (750 ILCS 50/1(D)(m--1)(West 2000) ("the date of entering foster care is the earlier of:(i) the date of a judicial finding at an adjudicatory hearing thatthe child is an abused, neglected, or dependent minor; or (ii)***")). D.S., 313 Ill. App. 3d at 1028-29.

The Fourth District acknowledged that in D.L., 191 Ill. 2d at4, 13, the supreme court used the date of the adjudication ofneglect as commencing the relevant time period. D.S., 313 Ill.App. 3d at 1026. However, the Fourth District declined to use thedate of adjudication, suggesting that the supreme court's referencein D.L. to the date of adjudication of neglect was dicta becausethe supreme court was not expressly asked to determine the datefrom which the nine-month time period begins to run. D.S., 313Ill. App. 3d at 1027.

In contrast, in In re D.F., 332 Ill. App. 3d 112, the FirstDistrict interpreted the plain language of section 1(D)(m) torequire the relevant time period for measuring "reasonable efforts"or "reasonable progress" to commence on the date the courtadjudicates the minor neglected, abused, or dependent. D.F., 332Ill. App. 3d at 122. Specifically, the court pointed out that thestatute expressly provides that the nine-month period begins afterthe " 'adjudication of neglected or abused minor under Section 2-3of the Juvenile Court Act of 1987 or dependent minor under Section2-4 of that Act.' " D.F., 332 Ill. App. 3d at 122, quoting 750ILCS 50/1(D)(m) (West 2000). The court found additional supportfor its position by examining various provisions of the JuvenileCourt Act. D.F., 332 Ill. App. 3d at 122-23. For instance, thecourt pointed out that, by definition, it is at the adjudicatoryhearing, not the dispositional hearing, that the trial courtdetermines whether a minor is abused, neglected, or dependent. See705 ILCS 405/1--3(1) (West 2000) (defining "adjudicatory hearing");705 ILCS 405/1--3(6) (West 2000) (defining "dispositionalhearing"); 705 ILCS 405/2--22(1) (West 2000) ("At the dispositionalhearing, the court shall determine whether it is in the bestinterests of the minor and the public that he be made a ward of thecourt ***"). The court reasoned that had the legislature intendedthe nine-month period to commence on the date of the dispositionalhearing, it would have stated that the time period begins after theadjudication of the minor as a ward of the court. D.F., 332 Ill.App. 3d at 123.

The D.F. court disagreed with the Fourth District's suggestionthat the supreme court's reference in D.L. to the date ofadjudication was dicta. The court pointed out that while thesupreme court was not expressly asked to determine the proper startdate of the relevant time period, such information was necessary tothe resolution of the issue presented in D.L. D.F., 332 Ill. App.3d at 124. The First District also observed that the use of thedate of adjudication, as opposed to the date of the dispositionalorder, furthers one of the primary purposes of the statutoryscheme: it expedites issues relating to the custody of minors. D.F., 332 Ill. App. 3d at 124.

We find the reasoning of the D.F. court more persuasive thanthe reasoning in D.S. Section 1(D)(m) defines a parent as unfitif, among other things, he or she fails to make within the relevanttime period either (1) reasonable efforts to correct the conditionsthat were the basis for the removal of the child from the parent or(2) reasonable progress toward the return of the child. 750 ILCS50/1(D)(m) (West 2000). The relevant time period in the statute is"9 months after an adjudication of neglected or abused minor *** ordependent minor." 750 ILCS 50/1(D)(m) (West 2000). Thus, theplain language of the statute clearly requires the court to assessthe parent's progress for the nine-month period beginning on thedate a minor is adjudicated neglected, abused, or dependent, thatis, the date of the adjudicatory hearing. Moreover, we agree withthe court in D.F. that this interpretation serves an importantpurpose by expediting issues relating to the custody of minors. Further, as the D.F. court observed, our supreme court implicitlyadopted the date of adjudication of neglect as the starting pointto measure the nine-month period in section 1(D)(m). Because thetrial court in this case used the date of disposition, rather thanthe date of adjudication of neglect, we must reverse the trialcourt's finding of unfitness with respect to Teresa and remand thecause to the trial court to reassess whether Teresa was unfit forfailure to make "reasonable efforts" or "reasonable progress"during the nine-month time period commencing on the date thatJacien was adjudicated a neglected minor.

We are cognizant that neither Teresa nor the State has raisedthis issue in their briefs. However, we are not required to ignoreerrors of law which the parties on appeal either overlook ordecline to address. In re Marriage of Plymale, 172 Ill. App. 3d455, 460 (1988) (supplemental opinion on denial of rehearing). Thetermination of parental rights is an extraordinary measure, giventhe superior rights of parents against the rights of others toraise their children. In re T.D., 268 Ill. App. 3d 239, 245(1994). Given the importance of the decision involved herein and the fact that there is a conflict among the districts of this courton this issue, we conclude that it is appropriate to render ourdecision on a basis not identified by the parties. See Hux v.Raben, 38 Ill. 2d 223, 224-25 (1967).B. Appeal No. 2--03--0030

Jason argues only that it is not in Jacien's best interestthat his parental rights be terminated. As noted above, once aparent has been proved unfit to have a child by clear andconvincing evidence, the proceeding moves to the best-interestphase. During this phase, the parent's rights must yield to thechild's best interest. In re Tashika F., 333 Ill. App. 3d 165, 170(2002). The termination of parental rights based on a child's bestinterest rests within the sound discretion of the trial court andwill not be disturbed on appeal absent an abuse of the trialcourt's discretion. In re Precious W., 333 Ill. App. 3d 893, 902(2002); Jeffrey S., 329 Ill. App. 3d at 1101.

In this case, the evidence at the best-interest phase of thehearing established that Jacien and Jason never had a closerelationship. In contrast, Jacien has developed a close, lovingrelationship with Pat, the foster mother with whom Jacien wasplaced when she was discharged from the hospital after her birth. Jacien relates to Pat as a parent, refers to her as "mom," andseeks Pat to meet her needs and provide affection. Jacien'sadoption worker, Small, testified that Jacien has made "incredibleprogress" in her placement, there is a strong attachment betweenPat and Jacien, and Pat appears to be financially secure. Smallopined that Jacien will continue to thrive in this environment andthat allowing Jacien to remain with Pat is the best way for theminor to achieve permanency. Small concluded that it is inJacien's best interest to be freed for adoption. The trial courtconcluded that Jacien deserved permanency. Based on this evidence,we cannot say that the trial court abused its discretion.

Nevertheless, Jason asserts that "nothing was gained bysevering [his] ties to Jacien and a loving relationship was lost." We disagree. Up to this point in her life, Jacien has lacked apermanent home. The trial court's decision considers Jacien'sinterests and allows her to gain a stable and permanent place tolive. Jason also suggests that he could provide Jacien with a malerole model, which Jacien's life would lack if she were adopted byPat E. However, even assuming that Pat E. is unmarried, as Jasonsuggests, there is no reason to believe that Pat E.'s malerelatives or friends have not, will not, or cannot provide Jacienwith the type of support Jason assumes is missing from Jacien'slife. Accordingly, we reject Jason's assertion.

III. CONCLUSION 

For the reasons stated above, we reverse the judgment of thecircuit court of Winnebago County and remand the cause in case No.2--03--0018 and affirm the judgment of the circuit court ofWinnebago County in case No. 2--03--0030.

No. 2--03--0018, Reversed and remanded.

No. 2--03--0030, Affirmed.

BYRNE, J., concurs.

JUSTICE GILLERAN JOHNSON, dissenting:

I respectfully dissent. I disagree with the majority'sinterpretation of section 1(D)(m) of the Adoption Act to the extent that they interpret the nine-month time period as applicable to the"reasonable efforts" ground of parental unfitness. In interpretingthe statute otherwise, I believe that the record supports the trialcourt's finding that Teresa was an unfit parent.

This dissent is guided by the cardinal rule of statutoryconstruction, which is to give effect to the true intent andmeaning of the legislature. See In re D.D., 196 Ill. 2d 405, 418(2001). When determining legislative intent, the starting point isalways the language of the statute because the language is the mostreliable indicator of the legislature's objectives in enacting theparticular law. D.D., 196 Ill. 2d at 419. With that in mind,section 1(D)(m) of the Adoption Act, which was amended effectiveJanuary 1, 2000, states that the following are grounds for parentalunfitness:

"(m) Failure by a parent (i) to make reasonable effortsto correct the conditions that were the basis for the removalof the child from the parent, or (ii) to make reasonableprogress toward the return of the child to the parent within9 months after an adjudication of neglected or abused minor***, or (iii) to make reasonable progress toward the return ofthe child to the parent during any 9-month period after theend of the initial 9-month period following the adjudicationof neglected or abused minor ***." 750 ILCS 50/1(D)(m) (West2000).

Clearly, this current version of the statute sets forth threeseparate and distinct grounds upon which parental rights may beterminated. The second and the third grounds specify a timeperiod. Notably, the first ground, the reasonable efforts ground,does not. It follows then that there is no set time limitationthat is applicable to this ground. Rather, the time period for thereasonable efforts ground is that which is reasonable to correctthe conditions that were the basis for the minor's removal.

In this case, the record reveals that Teresa did not makereasonable efforts within a reasonable time to correct theconditions that were the basis of Jacien's removal. Indeed, afterJacien was removed from her custody, Teresa continued to use, sell,and manufacture drugs for over six months until she was finallyincarcerated. Accordingly, I do not believe that the trial courterred in finding Teresa an unfit parent.

The majority's reliance on In re D.L., 191 Ill. 2d 1 (2000), is unpersuasive. As the majority points out, in D.L., the supremecourt interpreted the 1994 version of section 1(D)(m) of theAdoption Act (750 ILCS 50/1(D)(m) (West 1994)). In doing so, theD.L. court held that the time limitation period in section 1(D)(m)was applicable to both the reasonable efforts and reasonableprogress grounds. D.L., 191 Ill. 2d at 10. However, thelegislature's recent amendment substantively changed the languageinterpreted by the supreme court. Specifically, the legislaturechanged the time limitation from 12 months to 9, added a thirdground of unfitness with its own time limitation period, and addedroman numerals to separate each ground. See 750 ILCS 50/1(D)(m)(West 2000).

Additionally, the majority's interpretation runs afoul ofseveral well-established rules of statutory construction. Particularly, the majority's interpretation seemingly ignores theroman numerals that the legislature added to separate each groundof unfitness. Statutes should be read so as to yield logical andmeaningful results and to avoid constructions that render specificlanguage meaningless surplusage. McNamee v. Federated Equipment &Supply Co., 181 Ill. 2d 415, 423 (1998). The majority'sinterpretation also stands in contravention of the last antecedentrule. The last antecedent rule of statutory construction requiresthat relative or qualifying words, phrases, or clauses are to beapplied to the words immediately preceding and do not modify wordswhich are more remote. Swank v. Department of Revenue, 336 Ill.App. 3d 851, 857 (2003). Under this rule, the phrase "within 9months after an adjudication of neglected or abused minor" isapplicable to the immediately preceding reasonable progress groundand not the more remote reasonable efforts ground.

Accordingly, for the above reasons, I believe that the trialcourt properly found Teresa an unfit parent. I therefore wouldaffirm the trial court's order terminating her parental rights to Jacien.