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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 orneglected. It subsequently filed a petition in the circuit court ofFulton County to terminate the mother's parental rights under theAdoption Act (750 ILCS 50/1 et seq. (West 1998)). In part, thepetition alleged that the mother exhibited habitual drunkenness forat least one year immediately prior to the commencement of theunfitness proceedings (see 750 ILCS 50/1(D)(k) (West 1998)).The circuit court found that the State proved the mother unfit byclear and convincing evidence. The mother appealed, and theappellate court reversed, holding that the finding of unfitness wasagainst the manifest weight of the evidence. 316 Ill. App. 3d 817,823.

This court is asked to clarify the proper time period foradmitting evidence of habitual drunkenness and to determinewhether the State met its burden of showing unfitness in this caseby clear and convincing evidence. We find that the circuit courtfailed to apply the proper test for considering evidence of habitualdrunkenness; moreover, that if the proper test is applied, the Statefailed to satisfy its burden of proof. Thus, we conclude that thecritical time period for presenting evidence of habitualdrunkenness is the one year just prior to the filing of the State'stermination petition and that the State failed to support itsallegation of habitual drunkenness in this case by clear andconvincing evidence.

BACKGROUND

In April 1996, the State filed a neglect petition against themother and her husband, alleging that their minor children wereabused or neglected.⁽¹⁾ At the adjudicatory hearing held in June1996, the mother admitted she had endangered the minors by theexcessive use of alcohol and by engaging in physical altercationswhile under the influence of alcohol, as alleged in the State'ssupplemental petition. The circuit court found the minors abusedor neglected and dismissed the other counts of the supplementalpetition. At the dispositional hearing, the circuit court noted thatthe mother had made significant progress in improving herhousing conditions and in acknowledging her alcohol problem, buttransferred guardianship of the minors to the Department ofChildren and Family Services (DCFS). This order was filed onOctober 23, 1996.

Permanency review hearings were held on October 22, 1996,and again in April 1997. During the latter hearing, the circuit courtagreed with the social worker assigned to the case, the guardian adlitem, and the mother's attorney that the mother was "makingsubstantial progress."

At the next permanency hearing in September 1997, the socialworker recommended that the children be returned home withclose monitoring for six months because the mother hadmaintained an orderly house, dealt with her financial problems,taken part in an aftercare alcohol treatment program, attendedparenting classes, and abstained from alcohol for eight months.The circuit court adopted this recommendation and returnedphysical custody of the children to the mother. In January 1998,the children were again removed from the home after anunidentified police officer reportedly found the mother intoxicatedwhile caring for them. At permanency review hearings in Marchand November 1998, the mother was ordered to cooperate withDCFS or risk losing her parental rights.

On March 19, 1999, the State filed a petition to terminate themother's parental rights on three grounds: (1) habitualdrunkenness for at least one year immediately prior to thecommencement of the unfitness proceedings (750 ILCS50/1(D)(k) (West 1998)); (2) failure to make reasonable efforts tocorrect the conditions that resulted in the removal of the children(750 ILCS 50/1(D)(m) (West 1998)); and (3) failure to makereasonable progress toward the return of the children within ninemonths of an adjudication of abuse or neglect (750 ILCS50/1(D)(m) (West 1998)). The only ground raised in this appeal isthe mother's alleged habitual drunkenness (750 ILCS 50/1(D)(k)(West 1998)).

At the fitness hearing begun in August 1999, the Statepresented the testimony of Kelly Rockwell, a Catholic SocialServices (CSS) worker recently assigned to the family. Her onlydirect knowledge of the mother's alcohol use was the mother'sadmission that she had consumed some unspecified amount ofalcohol the night before a court hearing in May 1999. Rockwelloffered no other specific evidence concerning that drinkingincident. Nonetheless, the State had suspected the mother ofintoxication and requested that she submit to a breath alcohol test.At the fitness hearing, the State stipulated that the Breathalyzertest given to the mother at that time resulted in a reading of zero.

Rockwell also testified about the contents of the case file andthe mother's service plans, although the plans were never admittedinto evidence. She testified that one of the mother's visits with thechildren was cancelled in July 1996, due to the mother'sintoxication, and that CSS records indicated the mother wasdiagnosed as alcohol dependent in February 1997. Accordingly,the mother was instructed to abstain from alcohol and to attendAlcoholics Anonymous (AA) meetings, counseling at theCommunity Mental Health Center (CMHC), and parenting classes.The mother's file indicated that she did not completely satisfy anyof these requirements.

The State also presented testimony from Terry Boughan, themother's counselor at CMHC. He indicated that the mother hadcompleted an inpatient treatment program in February 1997, andhad been assigned to an outpatient aftercare program at CMHCmeeting once a week. She stopped attending the outpatientsessions in November 1997, claiming first that she was ill and thenthat she had no transportation. Due to her failure to participate inthe program, her treatment file was closed in February 1998.Boughan stated that he did not believe she was ready for dischargeat that time. Boughan also testified that he believed the mother'sreasons for failing to attend the sessions were credible and that shesincerely wanted treatment.

The mother testified on her own behalf, acknowledging thatshe drank some unspecified quantity of alcohol and missed weeklyalcohol treatment sessions between October 1998 and March 19,1999, even though her service plans required her to abstain fromalcohol and to comply with the recommended treatment program.She stated that due to transportation problems she had attendedonly four or five AA meetings. She also testified that she did notcompletely abstain from alcohol until three or four weeks beforeher fitness hearing on September 23, 1999, but she did not specifyhow often or how much she drank.

The circuit court found the State proved habitual drunkennessby clear and convincing evidence because it showed she "has hadan alcohol dependency and *** she still consumes alcohol or atleast until three weeks ago, and that addiction occurred for at leastone year prior to the commencement of this termination petition."The court later concluded that it was in the best interests of thechildren to terminate her parental rights.

The mother appealed the unfitness finding, and the appellatecourt reversed, with one judge dissenting. The majority of theappellate court held that there was insufficient proof of thefrequency and extent of the mother's drinking between March 19,1998, and March 19, 1999, to show habitual drunkenness by clearand convincing evidence. 316 Ill. App. 3d at 823-24. The dissentargued that there was a sufficient showing to support the circuitcourt's finding because the mother continued to drink even afterbeing told that abstinence was "a prerequisite to regaining custodyof 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 framefor evidence of habitual drunkenness as well as whether theappellate court erred by reversing as against the manifest weightof the evidence the circuit court's finding that the mother wasproven unfit by clear and convincing evidence (316 Ill. App. 3d at823). Simply stated, the key to the resolution of this case is the useof the proper test, not the application of that test.

I. Proper Evidentiary Time Frame

The parties disagree on the proper evidentiary time frameconsidered in determining whether a parent is unfit due to habitualdrunkenness. Under the Adoption Act, parental "unfitness"includes"[h]abitual drunkenness *** for at least one yearimmediately prior to the commencement of the unfitnessproceeding." 750 ILCS 50/1(D)(k) (West 1998). The State arguesthat the statute permits the circuit court to consider evidence fromboth before and after this one-year period. The mother argues thatonly evidence within one year immediately prior to the filing ofthe State's petition may be considered.

The resolution of this issue requires us to construe section1(D)(k) of the Adoption Act (750 ILCS 50/1(D)(k) (West 1998)).Since statutory construction is a question of law, we will reviewthis issue de novo. In re C.N., 196 Ill. 2d 181, 208 (2001).

An unfitness proceeding begins when the State files a petitionseeking the termination of parental rights. In re D.D., 196 Ill. 2d 405, 417 (2001). The statute requires proof of habitualdrunkenness for "at least one year immediately prior to" the filing.(Emphases added.) 750 ILCS 50/1(D)(k) (West 1998). Thislanguage permits consideration of evidence preceding the filingdate by more than one year. It does not, however, preclude theconsideration of evidence after the filing date in all cases.Evidence of habitual drunkenness arising after the filing of theinitial petition may be considered if the State files an amended orsubsequent petition. An additional filing is necessary because thetermination of parental rights affects a fundamental liberty interestand, thus, must comport with the requirements of due process. SeeIn re M.H., 196 Ill. 2d 356, 362-63 (2001). The notice required injuvenile proceedings is the same as that constitutionally mandatedin criminal or civil cases. People v. R.D.S., 94 Ill. 2d 77, 81(1983). "Notice, to comply with due process requirements, mustbe given sufficiently in advance of scheduled court proceedings sothat reasonable opportunity to prepare will be afforded, and it must'set forth the alleged misconduct with particularity.' " In reApplication 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 terminationproceedings, it would be improper to raise additional allegationsagainst a parent for the first time at the hearing. See Board ofRegents 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 isfundamental that except in emergency situations *** due processrequires that when a State seeks to terminate [a protected] interest..., it must afford "notice and opportunity for hearing appropriateto the nature of the case" before the termination becomeseffective' " (emphasis in original)), quoting Bell v. Burson, 402U.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 bythe State would provide the parent with proper notice and allowthe preparation of an appropriate defense.

We emphasize that while evidence of habitual drunkennessoutside the one year before the filing of the State's petition may beconsidered, this option does not obviate the necessity of presentingclear and convincing evidence of the parent's habitualdrunkenness during the one year immediately prior to that filing.In other words, if the evidence is insufficient to support a findingof habitual drunkenness during the critical one-year time periodimmediately prior to the filing of the termination petition, noamount of antecedent or subsequent evidence will sustain afinding of unfitness. While this requirement may initially seemonerous, it must be remembered that the State unilaterallypossesses 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 clearand convincing evidence that the mother in this case washabitually drunk between March 19, 1998, and March 19, 1999,when the petition was filed, without any reference to evidenceeither before or after that period. If this initial burden is met, theState may also present evidence showing that the parent washabitually 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 ofunfitness is supported by sufficient evidence in the record. Tosupport this contention, the State relies on the following facts: (1)the mother was diagnosed as alcohol dependent in 1996; (2) sheknew that abstaining from alcohol and completing treatment wereprerequisites for regaining custody of her children; (3) despite thisknowledge, she drank alcohol as recently as three or four weeksprior to the fitness hearing and failed to complete the requiredtreatment program; and (4) she lost custody of her children for thesecond time in January 1998, after an unidentified police officerreportedly found her intoxicated while supervising them.

On its face, the State's factual allegations may seempersuasive. Nevertheless, termination may only be justified whenthere is factual certainty. Santosky v. Kramer, 455 U.S. 745, 768,71 L. Ed. 2d 599, 616, 102 S. Ct. 1388, 1402 (1982). Afterreviewing the record in this case, we find that only two pointsarguably pertain to the critical time period in this case, March 19,1998, to March 19, 1999: (1) the mother's admission that shecontinued to drink some unknown quantity of alcohol at someunspecified times; and (2) her failure to continue her treatmentprogram. Nonetheless, the State argues that, viewed together, theevidence shows that the mother had an uncontrollable problemwith alcohol abuse for the requisite period of time. The State alsoclaims that it did not need to establish the precise frequency of themother's drinking because frequency is merely an indicator of herinability to control her craving for alcohol.

Conversely, the mother argues the appellate court properlyconcluded that the circuit court's finding of unfitness was againstthe manifest weight of the evidence because there was no evidenceof how often or how much the mother drank during the relevanttime period. Without any evidence showing that she was unable tocontrol her drinking, the State failed to meet its burden of provinghabitual drunkenness by clear and convincing evidence.

To determine the propriety of the circuit court's finding ofunfitness in this case, we must construe section 1(D)(k) of theAdoption Act (750 ILCS 50/1(D)(k) (West 1998)). Theconstruction of a statute involves a question of law and isreviewed de novo. In re C.N., 196 Ill. 2d 181, 208 (2001).

The involuntary termination of a parent's rights is a drasticstep that permanently severs the parent-child relationship.Santosky, 455 U.S. at 758-59, 71 L. Ed. 2d at 610, 102 S. Ct. at1397; 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 choicein family matters affects a fundamental liberty interest protectedby 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 thoseparents 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. Thestandard of proof is crucial since a parent's fundamental libertyinterest cannot be protected if undue uncertainty is permitted indetermining 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 certaintywhen terminating a parent's rights. Santosky, 455 U.S. at 768, 71L. Ed. 2d at 616, 102 S. Ct. at 1402. For this reason, clear andconvincing evidence of unfitness is required before a court mayinvoluntarily terminate parental rights. In re C.N., 196 Ill. 2d at208.

In Illinois, unfitness may be proved by establishing a parent'shabitual drunkenness for the requisite period. 750 ILCS 50/1(D)(k)(West 1998). To prove habitual drunkenness, the State mustpresent evidence that the individual (1) had a fixed habit ofdrinking to excess, and (2) used alcohol so frequently as to showan inability to control the need or craving for it. In re D.M., 298Ill. App. 3d 574, 580 (1998). Our review of the evidence in thiscase during the critical period between March 19, 1998, andMarch 19, 1999, reveals a complete dearth of evidence supportingthe first prong of this test and minimal support for the secondprong.

Only two witnesses offered evidence regarding the criticalone-year period in this case. One was the mother herself. Sheadmitted that she drank alcohol during the five months prior to thefiling of the termination petition, but she provided no specificevidence of her alcohol consumption during this period. She alsoindicated that she did not attend alcohol treatment sessions asrequired by her service plans due to a lack of transportation. She testified that she requested help from CSS with transportation, butnone was offered.

The only other witness who presented testimony relevant tothis period was CSS worker Kelly Rockwell. Rockwell, onlyassigned to the family's case since May 1999, possessed nofirsthand knowledge of the period between March 19, 1998, andMarch 19, 1999. She testified that she did not even meet themother until April 1999. Due to her lack of direct knowledge,Rockwell deferred to the contents of agency records authored byother CSS workers. In relevant part, she testified that CSS was incontact with the mother"[a]t least monthly" and that the motherreceived two unsatisfactory service plan ratings during the criticalone-year period due to her failure to abstain from alcohol and tocontinue her treatment program. The State offered no otherevidence of the mother's habitual drunkenness during this period.

Before this court, the mother argues that the State offered nocompetent evidence concerning the relevant time period. Shecontends that Rockwell's testimony was inadmissible hearsaybecause Rockwell had no firsthand knowledge of the service plansor case file during this period and that none of these records wereever 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 wasno objection to Rockwell's testimony at trial. Thus, the issue wasfirst raised on appeal and, as such, it is waived. See Wagner v. Cityof Chicago, 166 Ill. 2d 144, 147 (1995).

Next, we note that the State requested the circuit court takejudicial notice of the service plans. The judge declined, noting thatonly one plan was in the court file. Since the plans were neveradmitted into evidence, Rockwell's testimony provided the onlyevidence of the contents of the agency's case file or service plans.

The record clearly shows, however, that the circuit court didnot rely on this testimony. Rather, the circuit court relied on themother's unspecified "alcohol dependency," her admitted failureto continue alcohol treatment sessions, and her admission that shedrank some amount of alcohol as recently as three weeks prior tothe fitness hearing.

Moreover, Rockwell's testimony concerning the relevantperiod offered no evidence that the mother was ever under theinfluence of alcohol during the year prior to the filing of theState's termination petition. Rockwell merely indicated that CSSwas in monthly contact with the mother and rated two of herservice plans unsatisfactory because she continued to drink and didnot complete her treatment plans. We do not believe the formerstatement could have had an adverse impact on the mother's casebecause, if anything, it demonstrates her ongoing interest inworking with the agency to regain custody of her children. Wealso believe that the latter statement, labeling the mother's lack ofcompliance with CSS requirements "unsatisfactory," was notunduly prejudicial. The basis for the unsatisfactory rating was themother's admitted lack of compliance with CSS requirements. Itwas this lack of compliance, not the "unsatisfactory" label appliedto it, that formed the basis of the State's allegation of unfitness.Under these circumstances, Rockwell's testimony did not affectthe outcome of the hearing and does not provide grounds forreversing 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 circuitcourt's finding of unfitness in this case was supported by clear andconvincing evidence. When reviewing a finding of unfitness, wemust consider whether it is against the manifest weight of theevidence. A decision concerning a parent's fitness is against themanifest weight of the evidence if the opposite conclusion isclearly apparent. In re D.D., 196 Ill. 2d 405, 417 (2001).

Here, the circuit court's finding of unfitness was based on themother's history of "alcohol dependency," her failure to continuein the recommended aftercare program, and her acknowledgmentthat she drank some unspecified amount of alcohol prior to a fewweeks before the fitness hearing. The circuit court failed to specifythe time period it employed in considering the mother's alcoholdependency. Moreover, the record reveals that the last time themother was found to be "alcohol dependent" was 1997. Shortlythereafter, the mother's condition improved significantly enoughfor the case worker to recommend, and the circuit court to order,that she regain custody of her children in September 1997. A stalediagnosis of alcohol dependency such as this one cannot supporta termination petition.

After reviewing the factors relied on by the circuit court inthis case, we find that vague references to a parent's alcoholdependence during some unidentified period, particularly whenfollowed by a period of significant improvement, and a parent'sconsumption of some unidentified amount of alcohol sometime prior to the fitness hearing constitute mere speculation.Speculation is insufficient to support a finding of unfitness. Afinding of unfitness must be premised on clear and convincingevidence proving that, at a minimum, the parent whose rights areat issue was habitually drunk during the critical one-year timeperiod immediately prior to the filing of the State's terminationpetition. That standard was not met in this case. The factors reliedon by the circuit court do not approach the degree of factualcertainty 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 aparent's drinking need not be established to demonstrate habitualdrunkenness (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" (emphasesadded) and that the individual used alcohol so frequently as toshow an inability to control the need or craving for it (see In reD.M., 298 Ill. App. 3d at 580).

Here, the record shows only that the mother admitted drinkingsome unspecified amount of alcohol during the review period eventhough she knew her service plan required abstinence. While thisadmission may be relevant to an analysis of the second prong ofthe test, requiring proof of the mother's inability to control hercraving for alcohol, it provides weak evidence of that prong andno evidence of the first prong. The mother did not admit that shehabitually drank to excess.

To prove the first prong of the test, the State must first showthat the mother drank alcohol "to excess." While the exact amountof alcohol consumed in any specific instance need not beestablished, there must be clear and convincing evidence showingthat she suffered significant impairment in her ability to superviseand parent her children due to the consumption of alcohol. Nosuch showing was made in this case. In fact, the State's caseincludes nothing showing how the mother's fitness to parent herchildren was impaired by her drinking during the critical year.

Moreover, we note that any evidence of even one incidentwhen the mother was observed to be under the influence of alcoholduring the entire year in question is conspicuously absent. Theonly instance when the State suspected that the mother had usedalcohol and subjected her to testing was in May 1999. Althoughthis test was done after the critical period, it is noteworthy that thetesting resulted in a reading of zero.

Even if the State had met its burden of proving by clear andconvincing evidence that the mother drank alcohol to excessduring the critical year, to prove the first prong of the test it wasalso required to present enough evidence to show that the motherdrank 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 themother drank frequently enough to demonstrate an inability tocontrol her craving for alcohol. While it is impossible to state therequisite frequency with precision, it is clear that in this case theState failed to meet its burden. The State did not present anyevidence of how often the mother drank any amount of alcoholbetween March 19, 1998, and March 19, 1999. Her testimonyindicated that she drank some alcohol during the relevant period,but it did not indicate that she drank frequently enough toconstitute a "fixed habit" or to exhibit an uncontrollable cravingfor alcohol.

Generally, a finding of unfitness is entitled to deference andgenerally should be upheld. See In re T.B., 215 Ill. App. 3d 1059,1062 (1991). Here, however, the utter absence of any evidenceduring the critical one-year period showing both a pattern ofdrinking sufficient to establish a "fixed habit" of alcoholconsumption and an inability to control the need or craving foralcohol, combined with instances of the mother drinking to excessprecludes a finding of habitual drunkenness. Since the State failedto meet its burden of proving habitual drunkenness by clear andconvincing evidence, the appellate court properly reversed thejudgment of the circuit court terminating the mother's parentalrights.

CONCLUSION

We hold that to prove an allegation of unfitness due tohabitual drunkenness under section 1(D)(k) of the Adoption Act(750 ILCS 50/1(D)(k) (West 1998)), the State must, at aminimum, present clear and convincing evidence of habitualdrunkenness during the critical one-year period immediatelypreceding the filing of its termination petition. In this case, theState failed to support its allegation of habitual drunkenness byclear 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 notprove respondent unfit by clear and convincing evidence. Further,I strongly disagree with the majority's construction of section1(D)(k) of the Adoption Act-a construction that unnecessarilyhinders the State's ability to present relevant evidence of parentalunfitness.

I. Evidentiary Time Frame

Section 1(D)(k) of the Adoption Act provides as a ground forparental unfitness "[h]abitual drunkenness *** for at least oneyear immediately prior to the commencement of the unfitnessproceeding." (Emphasis added.) 750 ILCS 50/1(D)(k) (West2000). I agree with the State's construction of this provision. Thatis, the State can introduce all relevant evidence of habitualdrunkenness, but to meet its burden it must show that the problemhas been occurring for at least one year.

The majority instead reads the one-year period in the statuteas a distinct "critical" evidentiary period rather than as a minimumperiod. The majority makes several references to the "critical one-year time period" and requires the State to first present evidencerelating only to this one-year period. Thus, the interpretation themajority settles on is that the State must first prove by clear andconvincing evidence that the parent was habitually drunk duringthe one year immediately prior to the filing of the petition. Slip op.at 6. Then, if the State meets that burden, it can introduce evidenceof habitual drunkenness before the one-year period. Slip op. at 6.However, the State can introduce evidence of habitualdrunkenness occurring after the State filed its petition only if itfiles a second petition for termination alleging habitualdrunkenness during a different time period. Slip op. at 5.

I disagree with the majority on both points. First, if, as themajority concedes, the statute allows "consideration of evidencepreceding the filing date by more than one year," why do wearbitrarily restrict the State's ability to present that evidence untilafter it has proved what happened during the year immediatelyprior to the filing of the petition? Indeed, the majority holds thatthis evidence cannot be presented until after the State has provenby clear and convincing evidence that the parent was habituallydrunk during the year prior to the filing of the petition. But, if theState had met that burden, why would it present additionalevidence? At that point, it would have proved the parent unfit byclear and convincing evidence. The majority has effectively turnedthe one-year minimum time period into an absolute one-yearperiod. The statute does not, however, refer to habitualdrunkenness within a one-year period; it refers to habitualdrunkenness for at least one year. These terms are notsynonymous. When the legislature means "within" or "during" ituses those terms. To see this, one only has to count down twostatutory subparts from the one at issue. See 750 ILCS50/1(D)(m)(ii) (West 2000) ("to make reasonable progress towardthe return of the child to the parent within 9 months after anadjudication of neglected or abused minor" (emphasis added));750 ILCS 50/1(D)(m)(iii) (West 2000) ("to make reasonableprogress toward the return of the child to the parent during any 9-month period" (emphasis added)). The daunting task now facingthe legislature is how to fix the statute in light of the majority'sinterpretation. The statute's meaning is already clear, and I cannotimagine how the legislature can fix it if this court persists indefining 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 aminimum time period, we should not restrict the State's ability topresent its evidence in the manner it sees fit. In the normal case,the most logical way for the State to present its evidence would bechronologically, beginning with the earliest episodes ofdrunkenness and any diagnosis of alcohol dependence. It mightoften be the case (as it is here) that the episodes occurring duringthe year immediately prior to the filing of the petition do not seemas significant unless they are considered in the context of theperson's entire struggle with alcohol abuse.

In my opinion, the one-year period is a safeguard forrespondents facing termination on this basis. It guarantees thatthey will not lose their parental rights over a few isolatedincidents. Before the State may file its petition, it must haveevidence that the problem with habitual drunkenness has beenoccurring for at least one year. It is not, however, a limitation onthe evidence that the State can introduce, and the majority errs bycharacterizing it as such.

Second, I also disagree with the majority's assertion that, ifthe State wants to introduce evidence of the respondent'sdrunkenness occurring after it files its petition to terminate, it mustfile a new petition containing additional allegations. The majorityclaims that a respondent's due process rights would be violated byintroduction of these "additional allegations." Slip op. at 6. Butthese are not additional allegations. The phrase "habitualdrunkenness *** for at least one year immediately prior to thecommencement of the unfitness proceeding" has two distinctcomponents. The first is the alleged parental problem: habitualdrunkenness; the second is the minimum time the State must showthe problem has been occurring: at least one year immediatelyprior to the commencement of the unfitness proceeding. Thus, allevidence the State has of the person's habitual drunkenness isrelevant. If the State files a petition to terminate someone'sparental rights because of habitual drunkenness, that person is onnotice that any relevant evidence of his or her drinking problem isgoing to be introduced. Does the majority seriously believe that aperson facing termination of his or her parental rights because ofhabitual drunkenness is not on notice to stop drinking and, indeed,would be unfairly surprised by the introduction of evidence ofdrunkenness between the filing of the termination petition and thehearing?

In this case, the majority defines the "critical one-year period"as March 19, 1998, to March 19, 1999. Under the majority'sanalysis, if the State had evidence that the respondent was drunkon March 20, 1999, the State could not introduce this evidenceunless it filed a new or amended petition alleging a new "criticalone-year time period." I see no reason to make the State meet thisadditional procedural burden. If the State has a pending petition toterminate someone's parental rights because that person has beenhabitually drunk for at least one year, it should be able to introduceall available evidence of the person's drinking problem so that thetrial court can make an informed decision.

Again, the above problems arise because the majority hastaken a legislative requirement that the State have sufficientevidence of habitual drunkenness before proceeding with atermination petition and transformed it into an arbitrary limitationon the amount of evidence the State can introduce. The majorityhas turned the legislature's floor into a ceiling. I would hold thatthe meaning of the statute is simply that the State can introduce allrelevant evidence of habitual drunkenness, but, to meet its burden,it must show that the problem has been going on for at least oneyear.

II. Propriety of the Unfitness Finding

The majority's erroneous interpretation of section 1(D)(k) hasled it to conclude that the State failed to meet its burden of provingthat respondent was unfit because of habitual drunkenness. Bothparties approve of the two-part test for habitual drunkennessadopted by the appellate court in In re D.M., 298 Ill. App. 3d 574,580 (1998): there must be clear and convincing evidence that "theindividual had a fixed habit of drinking to excess and [that] hisusage was so frequent as to show an inability to control his needor craving for alcohol."⁽²⁾ When all of the relevant evidence isconsidered, it is clear that the State established that respondent hada fixed habit of drinking to excess and used alcohol so frequentlyas to show an inability to control the need or craving for it.

In 1996, respondent admitted at the adjudicatory hearing thatshe had endangered her children by her excessive use of alcoholand by engaging in physical altercations while under the influenceof alcohol. In August 1996, she was diagnosed as alcoholdependent. The basis for the diagnosis was that she met five of theseven DSM-IV factors for symptomatology of alcohol dependence.Specifically: (1) she used alcohol in larger amounts and for alonger period of time than intended; (2) she showed a persistentdesire for alcohol and was unsuccessful in controlling her alcoholuse; (3) she spent a significant amount of time and activity eitherto use alcohol or to recover from its effects; (4) alcohol use hadnegatively affected her major role obligations as a spouse and aparent; and (5) she had developed a marked increase in toleranceto the effects of alcohol. In September 1996, she wasrecommended for inpatient treatment because she had been unableto maintain abstinence in an outpatient setting. She successfullycompleted an inpatient program at Riverside Robert Young Centerin Rock Island and then began group meetings at the CommunityMental Health Center of Fulton and McDonough Counties inFebruary 1997. Respondent abstained from alcohol and went totreatment for eight months, following which her children werereturned to her in late 1997.

In January 1998, the children were once again removed fromrespondent's custody when a police officer observed thatrespondent was intoxicated while caring for them. In February1998, respondent was discharged from the mental health centerbecause she had withdrawn from treatment. The last group sessionshe attended was in November 1997. Significantly, whenrespondent testified, she admitted that she did not abstain fromalcohol from October 1998 to April 1999, and, in fact, had onlyquit drinking three to four weeks before the hearing that tookplace on September 23, 1999. Further, in May 1999, she admittedto Kelly Rockwell that she had been drinking the night before acourt hearing.

When all of this evidence is considered, the majority's claimthat the State did not meet its burden must fail. Again, the majorityreaches this erroneous conclusion because it improperly limitsitself to considering only what happened between March 19, 1998,and March 19, 1999. When the evidence of what happened in thatyear is considered in light of respondent's entire history andstruggle with alcohol addiction, as it should be, it is clear thatrespondent had been habitually drunk for at least one year.

Indeed, any drinking that respondent engaged in after herdiagnosis of alcohol dependence is significant because she wasordered to abstain from alcohol and to continue treatment asrequirements for keeping her children. As the dissenting justice inthe appellate court correctly pointed out,"[t]he refusal to abstainfrom alcohol consumption and to attend required treatment-eventhough such refusal would prevent respondent from regainingcustody of her children-supports a finding that respondent usedalcohol so frequently as to show an inability to control the need orcraving for it [citation]." 316 Ill. App. 3d at 827 (Homer, J.,dissenting). The majority downplays the significance of therespondent's admission that she had stopped drinking only a fewweeks before the hearing because respondent did not admit thatshe habitually drank to excess. Again, the majority is refusing tolook at this evidence in the proper context. Respondent had beendiagnosed as alcohol dependent and had not been able to abstainfrom alcohol even when it meant losing custody of her children.Thus, the trial court was justified in placing significance onrespondent's admission and could fairly conclude that it did notrefer to an occasional glass of wine with dinner.

III. Conclusion

Because the majority has improperly limited the evidence thatcan be introduced in proceedings to declare a parent unfit becauseof habitual drunkenness, and has erroneously concluded that theState failed to show by clear and convincing evidence thatrespondent had been habitually drunk for at least one year, I mustdissent.

JUSTICES McMORROW and GARMAN join in this dissent.

1. ¹The respondent's husband is not a party to this appeal.

2. ²Presumably, the majority is adopting this standard when it cites itas controlling authority. Slip op. at 8. If we are going to adopt this two-part test as the standard for habitual drunkenness, I would prefer that theopinion include some analysis and an explanation of why we believethis test is appropriate. Instead, the majority seems to treat appellatecourt law as binding on this court. That said, I have no particular quarrelwith the test the majority has adopted.