The Two-Step Adoption Process in Illinois: Fitness First, Then Best Interest

A recent Fourth District opinion shows why the order matters. When a trial court skips the legal framework, families and children pay the price.

Why the Order Matters

Illinois adoption law doesn’t let courts shortcut to the outcome they prefer. The law imposes a strict sequence: first, determine whether a parent is unfit. Only if unfitness is found can the court move to the second step—whether termination of parental rights (TPR) serves the child’s best interest. In our firm’s adoption practice — spanning more than 2,300 matters including contested terminations, DCFS-involved placements, and private adoptions — the two-step framework is the procedural backbone of every case that goes to hearing.

This order is not arbitrary. It reflects a fundamental principle: parental rights are fundamental, and a child cannot be removed from a parent’s custody solely because a different home might be better. Unfitness must be established first by clear and convincing evidence. Only then does best-interest evidence become relevant.

A recent case, In re Adoption of D.J.E., 2026 IL App (4th) 251115-U, illustrates what happens when a trial court blurs these lines.

Step One: The Fitness Determination

Fitness is a legal determination, not a judgment call. Under 750 ILCS 50/1(D), a parent is unfit if:

• The parent is incapable of caring for the child due to physical or mental condition (750 ILCS 50/1(D)(b));
• The parent has abandoned the child (750 ILCS 50/1(D)(n)); or
• Other statutory grounds exist under 750 ILCS 50/1(D).

Unfitness must be proved by clear and convincing evidence—a high bar. As the Fourth District explained in N.G., 2018 IL 121939, ¶28, this standard demands proof that produces in the mind of the trier of fact a firm belief as to the truth of the allegations.

Critically, during this first step, a court cannot consider evidence of best interest. This is the most common mistake courts make. The trial court in D.J.E. did exactly that—it improperly blended the two grounds, giving weight to best-interest factors when it should have focused solely on unfitness (¶104).

Why does this matter? Because a child who has bonded deeply with prospective adoptive parents over years is a powerful best-interest argument. But that very fact—the years of care and bonding—must be excluded during the fitness analysis. Otherwise, every long-term placement would be protected by best-interest evidence, and unfitness would become nearly impossible to prove.

In D.J.E., the child had lived with the guardians/prospective adoptive parents since he was 6 months old. That nearly eight-year bond is potent evidence of best interest. But it cannot enter the first-step analysis. The court must ask: Is this parent unfit? Not: Would this child be better off with someone else?

Step Two: The Best-Interest Determination

Only after a finding of unfitness is made can the court consider whether TPR serves the child’s best interest. At this point, the standard shifts to preponderance of the evidence—a lower threshold than clear and convincing. See D.T., 212 Ill. 2d 347.

Now, a court can and must consider:

• The child’s emotional and physical needs;
• Existing bonds with the prospective parents;
• The prospective parents’ ability to meet the child’s needs;
• The length and quality of the existing relationship;
• The stability offered by adoption versus other arrangements.

These are precisely the factors that must be excluded from step one. The best-interest hearing considers a different set of factors. The years of caregiving, the emotional attachment, the child’s expressed wishes (if age-appropriate)—all belong here, not in the fitness determination.

In D.J.E., the trial court never reached step two because it denied the petition at step one. The Fourth District reversed, finding unfitness proved by clear and convincing evidence (¶122), and remanded the case for the trial court to conduct a proper best-interest hearing (¶¶123, 131-132).

The D.J.E. Example: What Went Wrong and How the Appeal Fixed It

The trial court in D.J.E. received evidence on two separate grounds of unfitness: statutory abandonment (750 ILCS 50/1(D)(n)) and incapacity (750 ILCS 50/1(D)(b)). The mother had not had contact with the child since September 2022. The father’s last contact was at the end of 2021 or beginning of 2022. The child had been in the guardians’ care continuously since October 2018.

The trial court, however, conflated the two unfitness grounds, analyzing them together rather than distinctly. This allowed best-interest considerations to creep into the fitness analysis. The court may have thought, “The child has been so well cared for and is so bonded to these people—maybe the parents aren’t really unfit.”

But that reasoning reverses the legal order. Unfitness and best interest are separate inquiries with separate standards. A parent can be unfit even if the child is thriving elsewhere, and a child in prospective parents’ care may not be so bonded that the biological parent’s unfitness disappears.

On appeal, the Fourth District applied the correct legal standard. It reviewed the fitness findings under the manifest-weight-of-the-evidence standard (¶89), which means the appellate court asks whether the opposite conclusion is clearly apparent. It also reviewed the legal framework—the requirement to analyze the two grounds separately—de novo, giving no deference to the trial court (¶89).

The appellate court found that both grounds were clearly proved by clear and convincing evidence. The parents manifested an intent to forgo parental rights through years of non-contact and silence (¶¶107-110, 122). There were no objective impediments to contact, such as incarceration or hospitalization. The parents simply did not maintain their relationship with the child (¶¶112-119).

Why Courts Slip Up on This

The two-step framework feels restrictive to judges who want to do what they perceive as right for the child. Excluding best-interest evidence during the fitness phase seems to ignore the child’s obvious welfare. But that discomfort is precisely why the rule exists.

Parental rights are fundamental. They cannot be stripped away merely because someone else might do a better job. Unfitness is a necessary gate. Once that gate is unlocked—once the parent’s conduct or condition truly justifies removal of parental rights—then best interest provides a second lens to ensure the remedy (TPR) is appropriate.

Courts that blur these steps risk either (1) failing to protect children whose parents are unfit but emotionally present, or (2) wrongly terminating parental rights when the biological parent is fit and the real issue is custody preference.

The Standards of Review Matter Too

Trial courts’ fitness findings are reviewed only for manifest weight of the evidence. Appellate courts defer significantly to trial judges who see witnesses and assess credibility. But when the legal framework itself is wrong—when a trial court applies the wrong legal test—appellate courts review that de novo and will reverse. Kenneth F., 332 Ill. App. 3d 674, 677.

In D.J.E., the Fourth District’s de novo review of the legal error (the improper blending of the two grounds) was critical. Without it, the family’s case would have been lost to the appellate deference standard.

Frequently Asked Questions

Can a trial court consider best-interest evidence when deciding if a parent is unfit?

No. Best-interest evidence must be excluded from the unfitness analysis. The trial court must first determine, by clear and convincing evidence, whether statutory grounds for unfitness exist. Only after that finding can the court consider best-interest factors. D.F., 201 Ill. 2d 476.

What is the standard of proof for unfitness?

Clear and convincing evidence—a high standard that means the evidence produces in the mind of the trier of fact a firm belief as to the truth of the allegations. N.G., 2018 IL 121939, ¶28. This is more stringent than the preponderance standard used in the second step (best interest).

If I’ve been caring for a child for many years, does that automatically mean the biological parent is unfit?

No. Years of bonding and care are powerful best-interest evidence, but they do not establish unfitness in the legal sense. A parent may be unfit, or a parent may simply have lost contact or failed to pursue parental rights despite being capable. The two determinations are separate. The years of care belong in step two, not step one.

What happens if the trial court gets the two-step framework wrong?

The appellate court reviews the legal error de novo (without deference) and may reverse. If the trial court improperly mixed the two steps or applied the wrong standard, a reversal and remand are possible, as happened in D.J.E..

If a trial court finds unfitness, is TPR automatic?

No. Unfitness is necessary but not sufficient. After finding unfitness, the court must still hold a best-interest hearing and determine whether TPR actually serves the child’s best interest. In some cases, alternative arrangements (guardianship, for example) might be preferable, though in practice adoption is usually in the child’s interest once unfitness is established.

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

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