Intent to Forgo Parental Rights in Illinois: How Courts Evaluate the Evidence

The Statutory Framework: A Presumption of Ability

Under 750 ILCS 50/1(D)(n), a parent’s intent to forgo parental rights can be manifested by clear and convincing evidence of failure, “although able to do so and not prevented by agency or court action,” to visit, communicate, or maintain contact with a child for 12 months or longer, or to plan for the future of the child.

The statute includes a critical presumption: “In the absence of evidence to the contrary, the ability to visit, communicate, maintain contact, pay expenses, and plan for the future shall be presumed” (¶96). This presumption is not a minor procedural detail. It shapes the entire inquiry. It means the parent bears the burden of proving inability or external prevention. It means subjective intent—what the parent says they wanted to do—cannot override objective facts.

In In re Adoption of D.J.E., 2026 IL App (4th) 251115-U, the Fourth District applied this framework and clarified how courts are to evaluate evidence of intent to forgo. The decision provides useful guidance on what the statute requires.

Section 1(D)(n) vs. Section 1(D)(b): Different Standards for Different Grounds

A foundational point: § 1(D)(n) is not § 1(D)(b). The first addresses a parent’s failure to maintain a reasonable degree of interest, care, or responsibility. That ground invites contextual analysis. The second addresses intent to forgo, and it is different.

Under § 1(D)(n), the inquiry is not whether the parent’s conduct was reasonable given the circumstances. The statute does not ask whether the parent tried their best or had good reasons. It asks whether the parent maintained contact. And it presumes the parent had the ability to do so.

This distinction matters because some parents (or their attorneys) attempt to apply the reasonableness framework of § 1(D)(b) to the intent-to-forgo analysis. The trial court in D.J.E. made exactly this error (¶104). On appeal, the Fourth District reversed, applying the correct standard to the § 1(D)(n) inquiry.

The Presumption of Ability and Its Effect

The presumption of ability fundamentally shifts the burden. A parent cannot rely on the court to assume the parent was unable to act. Instead, the parent must affirmatively prove inability or external prevention. In the absence of such proof, ability is presumed.

This presumption is particularly powerful in the modern context. Contact methods are abundant: phone, email, text, social media, mail, third parties. In our practice — where we have represented parties in more than 2,300 adoption and guardianship matters, including DCFS-involved placements and contested termination proceedings — we have seen the presumption of ability become increasingly difficult to rebut as digital communication tools have multiplied. A parent would need to demonstrate that all of these avenues were truly blocked—and subjective belief or preference does not suffice. Objective evidence is required.

In D.J.E., the guardians’ contact information—Facebook, phone, email, Instagram—was publicly available and never blocked (¶¶59-64). Neither parent presented evidence of inability to use any of these methods. Under the presumption, both parents had the ability. The question became: did they exercise it?

The answer was no. And that answer, standing alone under the presumption of ability, manifests intent to forgo.

Why Subjective Intent Is Insufficient Under Section 1(D)(n)

A critical principle stated explicitly in D.J.E.: “Subjective intent alone cannot preclude a finding of intent to forgo” (¶96, 108). This is not incidental language. It is the heart of the statutory framework.

Consider what a parent might argue: “I wanted to maintain contact with my child. I intended to be in that child’s life. My subjective desire was always to be a parent.” None of this matters under § 1(D)(n). The statute is concerned with objective conduct. Did the parent maintain contact? If not, and if the parent had the ability and was not prevented by agency or court action, then the parent has manifested intent to forgo.

This reflects a policy judgment: parental rights are serious, and so is the child’s need for permanency. The statute does not allow parents to preserve parental rights by asserting good intentions while remaining absent for years. The focus is on what the parent did, not what the parent claims to have felt.

In D.J.E., the mother testified about her subjective beliefs and her understanding of a conversation with a guardian. But these beliefs and understandings were subjective. They did not overcome the objective fact that she had not contacted the child or guardians for over 12 months, even by letter or gift (¶107-108). The Fourth District found that no competent evidence rebutted the presumption of ability (¶108).

The Father’s Defense and Why It Failed

The father in D.J.E. offered a different sort of defense. He testified that he did “the best he could” and that it was the guardians’ responsibility to maintain contact with him. But the statute places the obligation on the parent. As the Fourth District noted, the father’s testimony “is not what the law requires” (¶110).

The father made one attempt to call using a phone number that had been out of service since 2020. He had Skype, email, and Facebook available. He made no further attempts. He never testified to any plans for the child’s future. The Fourth District concluded that the evidence demonstrated a lack of intent to maintain contact or to plan for the future (¶110).

Critically, the father’s subjective view of his obligations did not matter. The statute imposes a duty on the parent to maintain contact. The father’s belief that the guardians should initiate contact does not excuse his inaction.

Clear and Convincing Evidence: The Standard Applied

The statutory standard requires “clear and convincing evidence” of intent to forgo (¶94). This is a high standard—higher than preponderance of the evidence. In D.J.E., the evidence met it:

• Both parents’ last contacts were well over 12 months before trial (¶107).
• The guardians’ contact information was publicly available and never blocked (¶¶59-64).
• The trial court found that the guardians did not prevent contact (¶112, 114).
• Neither parent presented competent evidence of objective impediments (¶¶107-110, 122).
• Neither parent had sent any card, gift, letter, or mail (¶¶64-65).
• The father had made only one attempt using an outdated phone number (¶109).
• Both parents had multiple means of communication available and chose not to use them (¶¶118-119).

On this record, the Fourth District found the clear and convincing standard was met. The court stated: “the only conclusion to be drawn from the record is that petitioners proved by clear and convincing evidence respondents manifested an intent to forgo their parental rights” (¶122).

The Contrast with Section 1(D)(b)

The D.J.E. decision is valuable partly because it clarifies the difference. Under § 1(D)(b), the inquiry is contextual. Did the parent maintain a reasonable degree of interest given the circumstances? Under § 1(D)(n), the inquiry is objective. Did the parent maintain contact, absent ability to do so and external prevention?

A parent might fail the § 1(D)(n) test while not failing § 1(D)(b) if, for example, the parent’s circumstances genuinely prevented contact in a way that would be considered unreasonable. But in D.J.E., no such circumstances existed. The guardians did not obstruct contact. Both parents had multiple means available. Both parents chose not to use them. On these facts, both grounds would likely have been established if the trial court had analyzed them separately and correctly.

The trial court’s error—blending the two grounds and applying a reasonableness framework to § 1(D)(n)—is a mistake appellate courts will reverse.

Practical Implications

For practitioners representing guardians seeking adoption, understand that § 1(D)(n) is often the stronger ground. It does not invite the contextual reasonableness analysis that can complicate § 1(D)(b) cases. Focus on establishing the 12-month gap, the parent’s ability to contact, and the absence of objective prevention. Document the publicly available contact information. Show that the guardians facilitated contact (or at least did not obstruct it). The evidence will speak for itself.

For practitioners representing parents, understand that subjective intent will not save you. You must prove objective inability or external prevention. Post-hoc testimony about good intentions, future plans, or what you intended to do will not rebut the presumption of ability. The statute requires proof, not assertion.

The D.J.E. decision provides a clear template. Courts will apply it consistently. The statute, properly understood, presumes a parent’s ability to maintain contact and requires objective evidence to the contrary. Absent such evidence, inaction manifests intent to forgo.

Frequently Asked Questions

What is the presumption of ability in a § 1(D)(n) case?

Under 750 ILCS 50/1(D)(n), the statute presumes that a parent has the ability to visit, communicate, maintain contact, and plan for the future of a child. This presumption is not overcome by a parent’s subjective belief that contact was not possible or not advisable. Instead, the parent bears the burden of proving, with objective evidence, that the parent was unable to maintain contact or was prevented by agency or court action from doing so. In the absence of such proof, the presumption stands, and the parent’s failure to maintain contact is treated as manifesting intent to forgo.

Can a parent use subjective intent to rebut a finding of intent to forgo?

No. Subjective intent alone cannot preclude a finding of intent to forgo under § 1(D)(n). A parent’s assertion that they intended to maintain contact, that they wanted to stay in the child’s life, or that they planned future involvement does not overcome objective evidence of 12 months’ inaction. The statute focuses on objective conduct—what the parent actually did—not on what the parent says they felt or intended. Absent competent evidence of inability or external prevention, the parent’s failure to act speaks for itself.

What is the difference in how courts evaluate § 1(D)(b) and § 1(D)(n)?

Section 1(D)(b) concerns a parent’s failure to maintain a reasonable degree of interest in the child and invites a contextual reasonableness analysis. Courts consider whether the parent’s conduct was reasonable given the circumstances. Section 1(D)(n) concerns intent to forgo parental rights manifested by failure to maintain contact and does not invite the same reasonableness analysis. Instead, § 1(D)(n) presumes the parent’s ability to act and requires objective evidence of inability or external prevention. The trial court’s error in D.J.E. was blending these analyses. Courts must evaluate them separately.

If a parent has been trying to maintain contact but hasn’t succeeded, can that prevent a finding of intent to forgo?

What matters is whether the parent maintained contact, not whether the parent tried or attempted to do so. The statute’s focus is on objective conduct—visits, communication, contact—not on effort. However, if the parent has genuinely attempted to maintain contact through available means and has been prevented by agency or court action, objective evidence of those prevention efforts would rebut the presumption of ability. The key is objective evidence of the impediment, not testimony about trying.

Does the statute consider a parent’s plans for the future in evaluating intent to forgo?

Yes. Section 1(D)(n) includes failure to “plan for the future of the child” as one manifestation of intent to forgo. A parent who makes no effort to maintain contact and offers no testimony or evidence of planning for the child’s future has manifestly abandoned both contact and responsibility. In D.J.E., the father testified to nothing about plans for the child’s future, which strengthened the finding that he manifested intent to forgo parental rights.

What standard of proof is required to establish intent to forgo under § 1(D)(n)?

The statute requires “clear and convincing evidence”—a higher standard than preponderance of the evidence. This is a substantial burden, but it is not insurmountable. In D.J.E., the combination of a 12-month gap, publicly available contact information that was not blocked, absence of objective impediments, and no cards, letters, gifts, or mail satisfied the clear and convincing standard. Courts have consistently found this standard met when the evidence shows prolonged inaction without genuine external barriers.

If you have questions about adoption in Illinois, the Peoria adoption attorneys at Parker & Parker are here to help.

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