## Facts

- H.G. was adjudicated neglected and removed from the custody of the mother, E.W., and placed under DCFS guardianship.
- About nine months after removal, the State petitioned to terminate E.W.’s parental rights, alleging unfitness under Illinois Adoption Act § 1(D)(m) (failure to make reasonable efforts or reasonable progress).
- The termination trial was delayed for roughly fifteen months due to continuances, witness-availability issues, and limited court dates.
- During the delay, E.W. petitioned to resume parental rights, and the State amended its termination petition to add § 1(D)(m-1), alleging unfitness because H.G. had been in foster care for 15 months out of any 22-month period.
- E.W. moved to strike the § 1(D)(m-1) allegation as violating substantive due process because it relied on time rather than parental fault, shifted the burden to the parent, and merged best-interests considerations into the unfitness inquiry.
- After an evidentiary hearing, the circuit court found E.W. fit, denied immediate return based on the child’s best interests, and struck § 1(D)(m-1) as unconstitutional.
- The State appealed, and the constitutional question proceeded on direct review in consolidated proceedings.

## Issues

1. Whether Illinois Adoption Act § 1(D)(m-1), which permits a finding of parental unfitness solely because the child has been in foster care 15 months out of any 22-month period, violates substantive due process.
2. Whether using a time-in-care threshold as a stand-alone proxy for unfitness improperly presumes unfitness, shifts the burden from the State to the parent, or collapses the required separation between unfitness and best-interests determinations.

## Decision

- The court affirmed the circuit court’s judgment striking § 1(D)(m-1) as facially unconstitutional.
- The court held that parental rights are a fundamental liberty interest, requiring heightened scrutiny and an individualized, parent-focused unfitness determination.
- The court concluded § 1(D)(m-1) was not narrowly tailored to the State’s interest in child safety and permanency because it made elapsed foster-care time dispositive without tying the delay to parental conduct or current incapacity.
- The court reasoned that the statute risked terminating rights of parents who were fit or who were not responsible for delays attributable to institutional or litigation factors.
- The court found the statute’s time-based mechanism invited burden-shifting and confusion between the unfitness stage and the best-interests stage.

## Legal Principles

- Parents have a fundamental liberty interest in the care, custody, and control of their children protected by due process.
- Termination of parental rights requires a two-step framework: (1) a clear-and-convincing, individualized finding of parental unfitness on a statutory ground; and (2) a separate best-interests determination.
- A statute authorizing termination must be narrowly tailored to a compelling governmental interest when it substantially burdens fundamental parental rights.
- Time in foster care, standing alone, cannot constitutionally serve as a conclusive proxy for parental unfitness; unfitness must be grounded in parental conduct, capacity, or conditions.
- The State bears the burden to prove unfitness by clear and convincing evidence and may not rely on presumptions that effectively force the parent to disprove unfitness.

## Conclusion

The court held that Illinois Adoption Act § 1(D)(m-1) violated substantive due process because it allowed a finding of parental unfitness based solely on a foster-care timeline, without requiring proof linking the child’s time in care to parental fault or current unfitness, and thereby threatened the required separation between unfitness and best-interests inquiries.


In re H.G., 324 Ill. App. 3d 1084, 757 N.E.2d 864 (Ill. App. Ct. 2001)