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 “[hjabitual drunkenness *** for at least one year immediately prior to the commencement of the unfitness proceeding.” (Emphasis added.) 750 ILCS 50/l(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. 201 Ill. 2d at 245. Then, if the State meets that burden, it can introduce evidence of habitual drunkenness before the one-year period. 201 Ill. 2d at 245. 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. 201 Ill. 2d at 244.
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. Tó see this, one only has to count down two statutory subparts from the one at issue. See 750 ILCS 50/l(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/l(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.” 201 Ill. 2d at 244. 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 seriously 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.
II. 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. 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].” 316 Ill. App. 3d at 827 (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.
III. Conclusion
Because the majority has improperly limited the evidence that can be introduced in proceedings to declare a parent unfit because of habitual drunkenness, 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 McMORROW and GARMAN join in this dissent.
Presumably, the majority is adopting this standard when it cites it as controlling authority. 201 Ill. 2d at 247. If we are going to adopt this two-part test as the standard for habitual drunkenness, I would prefer that the opinion include some analysis and an explanation of why we believe this test is appropriate. Instead, the majority seems to treat appellate court law as binding on this court. That said, I have no particular quarrel with the test the majority has adopted.