Justia.com Opinion Summary: The baby was exposed to cocaine in utero; the state took the child into protective custody and filed a petition pursuant to 705 ILCS 405/2-13. The petition did not seek termination of parental rights. Mother was personally served; abode service was made on father by leaving the summons and petition with his mother at the house they shared. The circuit court made the baby a ward of the court. By the time of the permanency hearing, mother's whereabouts were unknown. Although father did not comply with all aspects of the service plan, the court continued to set return to the family as the permanency goal. When the baby was about 18 months old, the court allowed foster parents to intervene and the state to begin termination proceedings and subsequently entered a default judgment against father. The appellate court reversed because the state had made no attempt to serve father. The Illinois Supreme Court affirmed. The court noted many procedural defects and that father had made progress in meeting goals during nine months following the adjudication of neglect. Because he was not found to be deficient until after that period, the petition for termination was untenable as a matter of law.
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2011 IL 110886
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 110886)
In re HALEY D. (The People of the State of Illinois, Appellant, v.
Ralph L., Appellee).
Opinion filed December 1, 2011.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, and Burke
concurred in the judgment and opinion.
Justice Theis specially concurred, with opinion, joined by Justice
Garman.
OPINION
¶1
The central issue in this case is whether the circuit court of
Du Page County erred when it denied Ralph L.’s motion to set aside
a finding that he had defaulted on a petition by the State to terminate
his parental rights to his daughter, Haley D., and entered a default
judgment terminating Ralph’s parental rights over the child. The
appellate court held that the proceedings did not comport with due
process requirements because the State had made no attempt to serve
Ralph with the termination petition and the court ruled against him on
that petition despite the absence of proof that an attempt at service
had been made. Condemning the entry of default judgment against
Ralph as “unfair, unjust and unconscionable,” the appellate court
reversed the circuit court’s order denying Ralph’s motion to set aside
the default, vacated the default judgment, and remanded the cause to
the circuit court for further proceedings. 403 Ill. App. 3d 370. One
justice dissented. We subsequently granted the State’s petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). We also
allowed the Cook County public guardian to file a friend of the court
brief supporting the State’s position. See Ill. S. Ct. R. 345 (eff. Sept.
20, 2010). We now affirm the appellate court’s judgment, though for
reasons different from those on which the appellate court relied.
¶2
¶3
¶4
¶5
BACKGROUND
Haley D. is the youngest of six children born to Ralph L. and
Patricia D.1 At the time of her birth in April of 2007, Haley exhibited
symptoms of drug withdrawal and was discovered to have been
exposed to cocaine in utero. A drug test administered to her mother,
Patricia D., confirmed the presence of cocaine in Patricia’s system.
Because she was undergoing withdrawal, Haley was kept in the
hospital for six days. When she was set to be released, the State took
her into protective custody and placed her in a foster home. It also
filed a petition in the circuit court of Du Page County pursuant to
section 2-13 of the Juvenile Court Act of 1987 (705 ILCS 405/2-13
(West 2008)) alleging that she was a neglected minor and asking that
she be made a ward of the court. The basis for the charge of neglect
was that, at the time of her birth, her blood, urine or meconium
contained a controlled substance (cocaine) which was not the result
of medical treatment administered to her or her mother. See 705 ILCS
405/2-3(1)(c) (West 2008).
When it filed its petition, the State did not ask the court to
terminate the parental rights of either Ralph or Patricia. Had
termination of parental rights been its objective, the State would have
been required to say so “clearly and obviously” in its prayer for relief.
705 ILCS 405/2-13(4) (West 2008). No such declaration was made.
Instead, the State elected to make a general prayer for relief without
specifying any proposed disposition following adjudication of
wardship. See 705 ILCS 405/2-13(3) (West 2008).
1
Four of the children reside with Ralph, who has maintained
physical custody of them throughout these proceedings. The youngest is
approximately 4, the oldest around 13. The couple’s fifth child died in
infancy as the result of complications related to pneumonia. Ralph also has
a son from a previous relationship, who is now approximately 16 years of
age. Ralph works full time. His mother, who lives with Ralph and the
children, assists him with child care.
-2-
¶6
¶7
¶8
¶9
Patricia and Ralph did not live together. Patricia was personally
served with the petition. Abode service was made on Ralph by
leaving the summons and a copy of the petition with his mother at the
house they shared. There is no dispute that service on both Patricia
and Ralph complied with the requirements of section 2-15 of the
Juvenile Court Act of 1987 (705 ILCS 405/2-15 (West 2008)), which
governed service of summons with respect to the State’s petition.
Once service was accomplished and separate public defenders
were appointed to represent Ralph and Patricia, the court held an
adjudicatory hearing. Following that hearing, the court entered a
finding that Haley was neglected within the meaning of section 23(1)(c) of the Juvenile Court Act (705 ILCS 405/2-3(1)(c) (West
2006)) as the State had alleged. The order containing the court’s
finding was filed July 31, 2007.2
A dispositional hearing was conducted by the court two weeks
later, on August 14, 2007. See 705 ILCS 405/2-22 (West 2008).
Based on the evidence presented at that hearing, the circuit court
entered an order making Haley a ward of the court and setting as the
permanency goal the return of Haley to her parents within 12 months.
The court also approved a service plan formulated by the Department
of Children and Family Services (DCFS) and scheduled a
permanency hearing for February 12, 2008. That date was
subsequently reset for February 19, 2008.
By the time of the February 19, 2008, hearing, Patricia’s
whereabouts were unknown and the court determined that she had not
made substantial progress toward having Haley return home.
Although reports submitted to the court indicated that Ralph had not
been complying with the service plan which had been established for
him and a recommendation had been made that the permanency goal
be changed, the court rejected that recommendation. Based on the
evidence presented to it, the court concluded that Ralph had been
making substantial progress toward Haley’s return home and
2
The court had issued a similar order three weeks earlier, entering
a default against Ralph when he failed to appear for the hearing. That order
was set aside, however, after Ralph’s attorney promptly moved to vacate
the order, explaining that Ralph had been absent only because his car had
a flat tire while he was on his way to the courthouse, a problem which he
immediately telephoned his caseworker to report.
-3-
¶ 10
¶ 11
¶ 12
continued to set as the permanency goal Haley’s return home within
12 months.
An assessment prepared by DCFS in August of 2008 stated that
Ralph’s progress was “less than ideal” because he was tardy for or
had cancelled visits with Haley, but also noted that he had
participated in “parent coaching” throughout the previous quarter and
made significant improvements. According to the assessment,
Ralph’s family was stable “due to good money management by
[Ralph, who] has continued with the same employer for twelve
years,” and the family home appeared “clean, safe and appropriate for
the children living there.” Ralph was also described as “invested in
the lives of his 5 oldest children and provides support and nuturance
[sic] to them.”
A report prepared by the parenting coach to whom Ralph had
been referred stated that during the period between June 16, 2008,
and August 15, 2008, Ralph had attended 9 of 13 scheduled parent
coaching sessions. The report stated that he “continues to be prepared
and eager for the sessions to occur,” but occasionally arrives late. At
the time the report was drafted, Ralph had not yet developed “a clear
understanding of all the techniques that have been introduced to him,”
and the report complained of inconsistencies with the coaching
sessions. At the same time, however, the report noted that “[h]e has
been very cooperative, open, willing to grow and try new techniques
to become a better parent” and that “[r]ecently, since Haley and [he]
have grown comfortable with one another, he has started working
with this coach to further develop his skills by including the other
children in the sessions.”
According to DCFS, there were only two areas in which Ralph’s
progress was deemed unsatisfactory. First, due to prior incidents
involving Patricia, he was supposed to complete a domestic violence
assessment and undergo a mental health assessment. Second, because
of a history of drug-related problems in the household, he was also
supposed to complete a substance abuse evaluation and submit to
random drug tests. The reports show that he was not in compliance
with those requirements. He had also been remiss in obtaining
developmental evaluations from the local school district for two of
his other children. Overall, however, DCFS reported that Ralph’s
progress was satisfactory and that the previously established outcome
should be maintained.
-4-
¶ 13
¶ 14
¶ 15
¶ 16
The Evangelical Child & Family Agency (ECFA), which had
become involved in the case under DCFS’s auspices, also made a
report around this time. In detailing the family’s status and history, it
noted that Ralph had filed for divorce from Patricia and that,
according to Ralph, the divorce was now finalized. The report
contained observations consistent with the other reports filed with the
court, including the need for Ralph to comply with the random drug
screening requirement in order to confirm that he was abstaining from
substance abuse, as he claimed; the desirability of his obtaining a
domestic violence assessment and participating in mental health
counseling; and the need for him to improve his parenting skills and
be more consistent in attending his scheduled visits with Haley. It did
not, however, recommend a change in the permanency goal. It opined
that return of Haley to the home within 12 months should remain the
goal “in order to allow Ralph L[.] and/or Patricia L[.] adequate time
to complete reunification services.”
The record is clear that, by the end of August 2008, Patricia had
no involvement with Haley and was making no effort to comply with
the permanency goal set by the court. Accordingly, in an interim order
entered in September of 2008, the court found that Patricia was no
longer making substantial progress toward Haley’s return home.
Notwithstanding the positive developments contained in the reports
just described, the court made the same determination with respect to
Ralph. It did not, however, alter the permanency goal, which
remained for Haley to return home within 12 months.
The following month, the foster parents who had been caring for
Haley sought leave to intervene in the proceedings pursuant to section
1-5(2)(d) of the Juvenile Court Act (705 ILCS 405/1-5(2)(d) (West
2006)). In addition, ECFA filed a report with the court which
indicated that Ralph had failed to follow through with a domestic
violence program and had still not cooperated with drug screens.
Based on these two problems, the report opined that Ralph had “not
made it a priority for Hailey [sic] to be returned to his care, as
demonstrated by his lack of participation in services,” and
recommended that the permanency goal be changed to substitute care
pending termination of parental rights.
A hearing was convened by the court on October 14, 2008, at
which Ralph was present. He was not represented by counsel. The
previous month he had indicated to the court that he wished to obtain
private counsel to replace his appointed public defender. The court
-5-
¶ 17
¶ 18
¶ 19
promptly granted the public defender leave to withdraw from the
case, but Ralph had not yet found replacement counsel by the time of
this hearing.
Although Ralph did not dispute that he had not followed through
with the domestic violence program or appeared for the drug
screenings as set forth in ECFA’s report, he objected to that agency’s
recommendation that the permanency goal be substitute care until a
determination could be made as to whether his parental rights should
be terminated. Speaking on his own behalf, Ralph argued to the court
that his inability to comply with the requirements of the service plan,
including requirements that he undergo random drug tests, was due
to the fact that he was extremely busy at work and had other children
at home for whose care he was responsible.
After listening to Ralph, the court advised him in open court that
it was granting leave to the State to file a petition to terminate his
parental rights and that he would risk termination of his parental
rights if he failed to comply with the terms of the service plan and
correct the conditions which had necessitated Haley’s placement with
foster parents. The court then entered a written order allowing the
foster parents to intervene in the proceedings, changing the
permanency goal to substitute care pending termination of parental
rights, and granting the State leave to file a petition to terminate those
parental rights.
Approximately four months later, on February 5, 2009, the State
filed a formal petition to terminate Ralph’s and Patricia’s parental
rights and to grant Haley’s guardian the power to consent to her
adoption. Such proceedings are governed by section 2-29 of the
Juvenile Court Act (705 ILCS 405/2-29 (West 2008)). Petitions
brought under section 2-29 must contain an allegation that the parent
is an “unfit person” as defined by section 1(D) of the Adoption Act
(750 ILCS 50/1(D) (West 2008)) and include the specific statutory
grounds on which the charge of unfitness is based. In re Gwynne P.,
215 Ill. 2d 340, 349 (2005). Numerous grounds were alleged by the
State with respect to Patricia. As for Ralph, the State averred that he
was unfit for just two reasons: (1) because he had “failed to make
reasonable efforts to correct the conditions that were the basis for the
removal of the child from the parent within nine (9) months after an
adjudication of NEGLECTED MINOR under the Juvenile Court Act
of 1987 [see 705 ILCS 405/2-3 (West 2008)] (750 ILCS 50/1(D)(m))
from 8-14-07 through 5-14-08,” and (2) because he had failed “to
-6-
¶ 20
¶ 21
¶ 22
¶ 23
¶ 24
make reasonable progress toward the return of the child to the parent
within 9 months after [the child had been adjudicated a]
NEGLECTED MINOR, under the Juvenile Court Act of 1987 [see
705 ILCS 405/2-3 (West 2008)] (750 ILCS 50/1(D)(m)) from 8-14-07
through 5-14-08.”
When the State filed its initial petition under section 2-13 of the
Juvenile Court Act of 1987 (705 ILCS 405/2-13 (West 2008))
alleging that Haley was a neglected minor and asking that she be
made a ward of the court, the summons served on Patricia and Ralph
had contained a notice, required by section 2-15(3) of the Juvenile
Court Act (705 ILCS 405/2–15(3) (West 2008)), that the “parties will
not be entitled to receive further written notices [or] publication ***
notices of proceedings in this case, including the filing of an amended
petition or a motion to terminate parental rights, except as required by
Supreme Court Rule 11.”
Supreme Court Rule 11 addresses the “Manner of Serving Papers
Other Than Process and Complaint on Parties Not in Default in the
Trial and Reviewing Courts.” Ill. S. Ct. R. 11 (eff. Dec. 29, 2009).
Paragraph (a) of Rule 11 identifies on whom service must be made (a
party’s attorney of record, otherwise, the party); paragraph (b)
identifies methods of service (personal delivery, use of the postal
service or a third-party commercial carrier, or via facsimile
transmission); and paragraph (c) sets forth service requirements
where a case involves multiple parties or attorneys. Ill. S. Ct. R. 11
(eff. Dec. 29, 2009).
When the State subsequently filed its formal petition to terminate
Ralph’s and Patricia’s parental rights and to grant Haley’s guardian
the power to consent to her adoption, it did not comply with the
provisions of Rule 11. The petition was not delivered to any of the
persons identified in the rule by any of the methods the rule permits.
In addition, the State filed nothing to indicate when it intended to
seek a hearing on the petition.
On February 17, 2009, the court conducted another hearing on the
parents’ progress toward meeting the permanency goal. Various
attorneys were present, including Patricia’s attorney. Ralph was not
in attendance and had not yet retained a new attorney to represent
him.
At the conclusion of that hearing, the court entered a written order
changing the permanency goal to termination. The order also
continued the case to April 14, 2009. The order specified that this was
-7-
¶ 25
¶ 26
¶ 27
to be a permanency hearing in connection with the underlying neglect
proceeding. There was no indication that the petition to terminate and
to authorize the guardian to consent to adoption would also be taken
up. To the contrary, the box on the order form which referenced the
termination petition was left unchecked.
Following entry of the February 17 order, the State made its first
and only attempt to personally serve Patricia with the petition to
terminate and to authorize the guardian to consent to adoption. The
summons, dated February 20, set the hearing date on the petition for
April 14, the same day as the previously scheduled permanency
hearing. The record shows that the paperwork was received by the
sheriff on February 26 and that a sheriff’s deputy attempted to serve
Patricia with the summons and petition to terminate on the morning
of February 28. The attempt was unsuccessful, and the summons was
returned unserved with the explanation that Patricia’s mother had told
the deputy that Patricia had moved to Chicago and was in “rehab.”
In the meantime, Patricia’s appointed attorney moved for leave
to withdraw from the case. The basis for that motion was that Patricia
had never responded to any of the attorney’s communications,
repeatedly failed to appear at court hearings, and otherwise refused to
cooperate with counsel, thus preventing the attorney from properly
representing her.
After the State’s attempt to serve Patricia personally failed, it
resorted to serving her by publication. Specifically, it arranged for
notice of the April 14 setting on the petition to terminate and to
authorize the guardian to consent to adoption to be published in the
Daily Herald newspaper on March 3, 10, and 17, 2009. Pursuant to
section 2-16(2) of the Juvenile Court Act (705 ILCS 405/2-16(2)
(West 2008)), the State supported its use of service by publication
with an affidavit, which it filed with the court, addressing the steps
which had been taken to locate Patricia and the reasons why process
could not be served on her either personally or by mail.3
3
Service by publication is not permissible under section 2-16 absent
a diligent search to locate the parents first. In this case, the assistant State’s
Attorney who submitted the affidavit did swear that Patricia could not be
located despite diligent efforts to find her. He so attested, however, on
February 19. That was five days before Patricia’s lawyer filed her motion
to withdraw from the case outlining the problems she had experienced in
communicating with Patricia, a full week before the summons was even
-8-
¶ 28
¶ 29
¶ 30
Patricia was the only respondent identified in the State’s affidavit.
No mention was made of Ralph, directly or indirectly. There was also
no evidence in the record that the State ever filed an affidavit
specifically directed to Ralph pursuant to section 2-16 of the Juvenile
Court Act (705 ILCS 405/2-16 (West 2008)). Such an affidavit could
not, in fact, have been prepared with respect to Ralph, for there was
never any uncertainty as to his place of residence, nor was there any
evidence of any other legally cognizable impediment to serving him
personally. Indeed, there is no evidence that personal service on
Ralph was even attempted.
The April 14 hearing proceeded as scheduled. Because Patricia
appeared, her attorney sought and was granted leave to withdraw her
motion to withdraw from the case. At counsel’s request, the court
gave Patricia additional time, to May 12, to answer the State’s
petition to terminate. With respect to Ralph, matters proceeded
differently. When the court observed that Ralph was not present, he
asked the assistant State’s Attorney where the case stood “vis-a-vis
the natural father.” The assistant State’s Attorney replied:
“Your Honor, I believe we have service on him. I’m
looking for it, though. I know we’ve attempted service, your
Honor. I’m just looking for proof of that.
***
I have found proof, obviously, of the natural mother’s
service. If not–I don’t see a receipt, your Honor, although I do
see numerous–[.]”
The reason the assistant State’s Attorney could find no
documentation in the record regarding service on Ralph is that, as we
have just indicated, there was none. At this juncture, however, the
court pointed out that “[t]here has been publication concerning the
petition to terminate parental rights.” The assistant State’s Attorney
responded by asking that Ralph “be defaulted” and that the “prove
up” of the default be set for hearing on the same date, four weeks
hence, when Patricia’s answer was due on the petition for termination
and for authorization for the guardian to consent to adoption. The
request by the assistant State’s Attorney was granted. The same day,
April 14, 2009, the court filed a written order noting that “natural
received by the sheriff’s office and nine days before the summons was
returned by the sheriff with the notation that Patricia had moved.
-9-
¶ 31
¶ 32
¶ 33
father failed to appear and is defaulted” and continuing the case until
May 12 “for answer and setting.”
In relying on the service by publication regarding Patricia as being
sufficient to achieve service on Ralph and support entry of a finding
of default against him, the trial judge overlooked the affidavit
requirements described above. He also failed to heed one of his
circuit’s own local rules. Under Eighteenth Judicial Circuit Local
Rule 21.09(a) (18th Judicial Cir. Ct. R. 21.09(a) (July 16, 2008)),
counsel seeking an order of default terminating a person’s parental
rights must file a supporting affidavit “establishing factually the
action taken that demonstrates honest and well directed efforts to
ascertain the whereabouts of the person sought to be defaulted by
such service.” (Emphasis added.) No such affidavit was on file with
respect to Ralph.
At the May 12 hearing, Patricia appeared through counsel and was
granted additional time, to June 2, to answer the State’s petition.
Ralph appeared in person and with a new attorney, Diana Vizcaino,
who filed her appearance that day. Ralph’s new attorney advised the
court of her intention to file a motion to have the default set aside,
and the court granted her additional time to do so. The court did so
over the objection of the State, which had also objected,
unsuccessfully, to giving Patricia additional time to answer the
petition.4 The court set the hearing on Ralph’s motion to vacate the
default for the same time as the June 2 hearing on Patricia’s answer.
On June 1, within the time allowed by the court, Ralph, through
counsel, duly filed a motion to have the default set aside pursuant to
section 2-1301(e) of the Code of Civil Procedure (Code) (735 ILCS
5/2-1301(e) (West 2008)). At the previously scheduled June 2
hearing, the court deferred consideration of Ralph’s motion until June
30. It did, however, proceed to the merits of the State’s request to
terminate Patricia’s parental rights. After hearing testimony and
argument, the court found that Patricia was an unfit parent as alleged
by the State in its petition for termination of her parental rights.
Without objection, the court then proceeded to the question of
4
The State predicated its objection to both requests for additional
time on a desire to obtain permanent placement for Haley as quickly as
possible. It did not question the circuit court’s authority to grant the parents
more time.
-10-
¶ 34
¶ 35
¶ 36
¶ 37
¶ 38
whether it was in Haley’s best interests that Patricia’s parental rights
be terminated. It answered that question in the affirmative.
The record does not include a transcript of the next hearing, which
took place as scheduled on June 30. The record shows only that a
written order was entered at the conclusion of the hearing. The order
granted the State 10 days to file a motion to strike Ralph’s motion to
vacate the court’s default order and established a schedule for Ralph
to respond and for the State to reply to Ralph’s response. The court
also granted a request by the public defender’s office for leave to
withdraw from the case as counsel for Patricia, and set the next
hearing date for September 1, 2009.
More than two weeks after the 10-day deadline specified in the
court’s order of June 30, the State filed a written motion asking the
court to strike Ralph’s motion to vacate. As grounds for that motion,
the State argued that Ralph’s motion did not comply with the time
requirements set forth in section 2-1301(e) of the Code and that, for
this reason, the circuit court no longer had jurisdiction to consider it.
By order dated September 1, 2009, the court granted a request by
Ralph’s attorney for additional time to respond to the State’s motion
to strike. When Ralph’s attorney suffered a relapse of a serious
neurological condition, she made a second request for additional
response time. A hearing was then held on October 6, 2009, at the
conclusion of which the court ruled that it would permit Ralph to
challenge the default by filing a motion pursuant to section 2-1401 of
the Code (735 ILCS 5/2-1401 (West 2008)), continued the matter for
hearing until the following December, and denied Ralph visitation
with Haley during the interim.
On October 14, within the time set forth by the court in its order
of October 6, Ralph filed a new motion to set aside the default
entered against him by the court on April 14. The motion cited
various provisions of the Code of Civil Procedure (735 ILCS 5/1-101
et seq. (West 2008)), including sections 2-608 (counterclaims), 2-613
(separate counts and defenses), and 2-1401 (relief from judgments).
It also invoked section 20b of the Adoption Act (750 ILCS 50/20b
(West 2008) (one-year time limit on requests for relief from final
judgments or orders in Adoption Act cases where such requests are
made more than 30 days following entry of the final judgment or
order)).
The substantive basis for Ralph’s motion was straightforward. It
explained that Ralph’s absence from the April 14 hearing was not
-11-
¶ 39
¶ 40
¶ 41
¶ 42
deliberate.5 Rather, he failed to appear for two separate reasons: (1)
he was responsible for his four other living children and had difficulty
finding help to care for them on the date in question and (2) his
automobile had a flat tire. Both claims were supported by Ralph’s
affidavit.
Ralph’s motion further asserted that he had been diligent in
attending previous court hearings. It also explained that Ralph’s
counsel of record suffered from episodic symptoms of multiple
sclerosis. According to the motion, which was substantiated by
counsel’s own affidavit, the illness had prevented her from
challenging the default more expeditiously and had, in fact, required
her to contract with another attorney to draft legal documents,
including this motion to vacate.
The State filed a written response to Ralph’s motion. In that
response, it did not dispute the factual claims made by Ralph or his
attorney regarding the circumstances surrounding Ralph’s failure to
appear at the April 14 hearing. Rather, it argued that the motion
should be denied because Ralph had failed to offer a meritorious
defense to the substantive claims made by the State in its petition to
terminate.
The State’s response also addressed the issue of whether Ralph
had been served with the petition to terminate which culminated in
the challenged finding of default. The response, which was prepared
by the same assistant State’s Attorney who had addressed the service
issues earlier in the case, now claimed that on March 9, 2009, the
State had attempted to personally serve Ralph, but was unsuccessful.
As noted earlier in this opinion, this was untrue. The record contains
no evidence to substantiate that anyone ever attempted to serve Ralph
with the petition to terminate, and the assistant State’s Attorney was
unable to proffer anything to support his representation even after it
was directly challenged by Ralph’s attorney.
Finally, the State’s response concluded with the assertion that
Ralph had not shown due diligence in challenging the entry of default
because “he waited more than 45 days before taking any action in
response to [the court’s action] on April 14, 2009,” finding him in
default. This was also incorrect. As detailed earlier in this opinion,
5
In the documents submitted to the court, the hearing date was
mistakenly listed as April 15, rather than April 14. It is apparent from the
record that this was an inadvertent error.
-12-
¶ 43
¶ 44
Ralph and his new attorney appeared at the very next hearing date in
the case, which was on May 12, 2009, only 28 days after the court’s
April 14 order. At that time, Ralph’s counsel expressly advised the
court of her desire to have the default finding set aside, and the court
granted her additional time to file her formal motion requesting such
relief. The motion was subsequently filed within the time frame set
by the court.
A hearing on Ralph’s motion to vacate was held on December 1,
2009. After listening to counsel’s arguments and permitting Ralph to
make a statement, the court denied Ralph’s request to set aside its
April 14 order finding him in default. In explaining the basis for its
decision, the court noted, inter alia, that on “February 17, 2009, the
State asked for and was granted leave to publish upon natural father
concerning the petition to terminate parental rights as personal service
had not been accomplished.” The court then went on to state that on
April 14, Ralph “was defaulted on the petition to terminate parental
rights, and the matter was set for prove-up on May 12 of ’09 and
prove up did in fact take place.”
While the court was correct that it “defaulted” Ralph on April 14,
the record contains neither a written motion nor a transcript showing
a verbal motion by the State requesting leave to serve Ralph with the
petition to terminate and to authorize the guardian to consent to
adoption on February 17 or at any other time.6 The record shows only
6
As discussed earlier in this opinion, February 17, 2009, was the
date on which one of the permanency review hearings was conducted. In
terms of documentation relevant to that hearing, the record contains little
more than a report prepared for the hearing by ECFA and dated February
3, 2009. Handwritten notes on the report indicate that the report’s
recommendations were approved, but the author of the notes is not
indicated, they do not contain the trial judge’s signature, and, in any case,
they have nothing to do with service of process. The written order entered
by the court at the conclusion of the hearing was also silent on the question
of service of process. We note, moreover, that court approval for service by
publication is not required by either the local rules of the 18th Judicial
Circuit or by section 2-16 of the Juvenile Court Act (705 ILCS 405/2-16
(West 2008)) before publication service may be undertaken, so it is unclear
why such a request would even have been made. Though handwritten
minute entries for February 17 do make reference to “leave to publish” with
respect to the “N/f [presumably, natural father],” such entries “do not form
any part of the official records of the court” even when made by the trial
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¶ 45
¶ 46
that the State filed an affidavit for service by publication, the affidavit
was filed on February 20, 2009, and, by its terms, it pertained solely
to Patricia. Moreover, while a “prove-up” was subsequently
conducted, it took place on June 2, 2009, not May 12, and, once
again, related exclusively to Patricia.
In any event, the court went on to opine that because Ralph’s
motion to vacate failed “to set forth any facts to establish a
meritorious defense to the underlying petition to terminate parental
rights” and did not “allege any facts whatsoever establishing due
diligence in pursuing the defense, if any, to the petition to terminate
parental rights,” it was going to deny Ralph’s motion to have the
default set aside and that the default would be allowed to stand.
Ralph’s attorney moved for leave to file an amended motion. The
court denied that request and ordered Ralph from the courtroom on
the grounds that he was no longer a party and had no right to be
present.7 Discussion was then held regarding (1) the steps necessary
to formally change the permanency goal for Haley to adoption and (2)
the absence of a written order in the record formally terminating
Patricia’s parental rights. At the conclusion of the hearing, the court
entered a written order memorializing its denial of Ralph’s motion to
vacate the default and denying his motion for leave to file an
amended motion to vacate. The order further declared that Ralph’s
parental rights were terminated and that the court then considered the
order to be final and appealable. Simultaneously, the court entered a
separate order, dated December 1, 2009, stating:
“(1) natural father’s 735 ILCS 5/2-1401 motion to vacate
default judgment is denied. Oral findings are made of record.
judge upon his own docket (see People v. Kamrowski, 412 Ill. 383, 387
(1952)). Such entries may be helpful to the clerk in preparing the record
(see Kamrowski, 412 Ill. at 387), but they cannot trump what the actual
record shows (see, e.g., People v. Land, 178 Ill. App. 3d 251, 256 (1988)).
Given what is shown by the record here and by what later transpired, it
appears that if there were in fact some discussion of service by publication
on February 17, it concerned the natural mother, not Ralph, and the
reference to the “N/f” was an error.
7
The trial court offered no legal basis for this action and it was
improper. Ralph remained a “party respondent” in this proceeding and had
the right to be present. 705 ILCS 405/1-5(1) (West 2008).
-14-
¶ 47
(2) the entry of default against the Natural Father of 4-1409 shall stand over objection of attorneys for natural father.
(3) Per the record of 6-2-09, both the natural father Ralph
L[.] and natural mother Patricia *** are unfit parents,
furthermore the court finds that it is in the best interest of the
minor that both parents’ rights are permanently terminated
nunc pro tunc to 6-02-09.”8
Ralph promptly filed his notice of appeal, arguing that the circuit
court erred in denying his motion to vacate the finding of default
entered against him on the State’s petition to terminate his parental
rights, that the circuit court’s judgment terminating his parental rights
should be reversed and that the cause should be remanded to the
circuit court for further proceedings.9 In support of his position, Ralph
asserted, inter alia, that the State’s failure to serve him with the
petition to terminate deprived the circuit court of personal
jurisdiction. Because the court lacked personal jurisdiction, Ralph
contended that its subsequent order terminating his parental rights
was void ab initio.
8
This aspect of the court’s order was also improper. Use of nunc
pro tunc orders or judgments is limited to incorporating into the record
something which was actually previously done by the court but
inadvertently omitted by clerical error. People v. Melchor, 226 Ill. 2d 24,
32-33 (2007). In this case, as we have just noted, the hearing on June 2
reached the merits of the State’s claims only with respect to Patricia. The
evidence presented pertained to Patricia, not Ralph, and the State’s request
was that Patricia be declared unfit and that Patricia’s parental rights be
terminated. There was no discussion of the ultimate resolution of Ralph’s
fitness or rights because, at that time, his motion to vacate the finding of
default remained pending. Since the merits of the State’s claim against
Ralph were not, in fact, addressed or resolved by the court at the June 2,
2009, hearing, the circuit court could not use a nunc pro tunc order to hold
otherwise.
9
The circuit court’s December 1 order did not address the other
relief sought by the State in its petition, namely, that Haley’s guardian be
authorized to consent to her adoption. The pendency of that issue, however,
was not a bar to Ralph’s appeal. Once the circuit court entered its
December 1 order terminating Ralph’s and Patricia’s parental rights, Ralph
was entitled to bring an interlocutory appeal as matter of right to challenge
the termination. Ill. S. Ct. R. 307(a)(6) (eff. Feb. 26, 2010).
-15-
¶ 48
¶ 49
The appellate court rejected that argument, reasoning that once
Ralph was served with process in the initial neglect proceeding, the
court retained personal jurisdiction over him throughout the
remainder of the case. 403 Ill. App. 3d at 374-75. It held, however,
that under section 15-3 of the Juvenile Court Act (705 ILCS 405/215(3) (West 2008)), the State had a continuing obligation to notify
him of subsequent filings in the case as provided by Supreme Court
Rule 11, which, as described earlier in this opinion, governs the
“Manner of Serving Papers Other Than Process and Complaint on
Parties Not in Default in the Trial and Reviewing Courts.” Ill. S. Ct.
R. 11 (eff. Dec. 29, 2009).
The appellate court held that the State had failed to meet that
obligation. Indeed, noted the court, the State had made no attempt to
give Ralph any notice of the filing of the petition to terminate his
parental rights. While this lack of notice did not deprive the trial court
of jurisdiction over him, the appellate court opined that the
procedures (or lack of procedures) followed in this case offended due
process. “The principle that parents possess the fundamental right to
make decisions about the care, custody, and control of their children
without unwarranted state intrusion” was, the court observed,
“ ‘embedded in our jurisprudence.’ In re Sophia G.L., 229 Ill. 2d 143,
171 (2008).” 403 Ill. App. 3d at 376. Noting that the interest of
parents in the care, custody, and control of their children is one of the
oldest of the fundamental liberty interests recognized, the court held
that this interest is protected by the due process clause, and that the
procedures involved in terminating parental rights must comply with
the requirement of procedural due process. “Fairness is the core
meaning of due process,” the court held, but in its view the
procedures here were anything but fair. 403 Ill. App. 3d at 376. Wrote
the court,
“These termination proceedings started improperly when
the State never even attempted to serve Ralph with notice of
the petition. Things only got worse when, on April 14, 2009,
the court granted the default judgment even as the State dug
through its records and could not find any proof of an attempt
to serve Ralph. The default judgment entered against Ralph
was unfair, unjust, and unconscionable [citation] and cannot
be allowed to stand. Due process does not allow parental
rights to be terminated via such slipshod and unfair
proceedings.” 403 Ill. App. 3d at 377-78.
-16-
¶ 50
¶ 51
¶ 52
¶ 53
¶ 54
¶ 55
¶ 56
The court therefore concluded that Ralph’s motion to set aside the
finding of default should not have been denied, that the circuit court’s
judgment terminating his parental rights must be vacated, and that the
cause should be remanded to the circuit court for further proceedings.
403 Ill. App. 3d at 378.
One justice dissented. In her view, the lack of notice did not
render the circuit court’s judgment void, and because it was not void,
it should not be set aside without an additional showing by Ralph that
he had a meritorious defense and had exercised due diligence in
asserting that defense. 403 Ill. App. 3d at 381-82 (Zenoff, P.J.,
dissenting).
The State subsequently petitioned our court for leave to appeal
(Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), which we allowed.
ANALYSIS
As indicated at the outset of our opinion, and as recognized by the
appellate court, the threshold question in this case is whether the
circuit court erred when it denied Ralph’s motion to set aside a
finding that he had defaulted on a petition by the State to terminate
his parental rights to his daughter Haley. In concluding that the circuit
court did err, the appellate court relied on constitutional due process
principles. For reasons we shall now undertake to explain, we agree
with the appellate court’s ultimate disposition of the case. In our
view, however, that result does not depend on constitutional
protections. Because the case can be decided on nonconstitutional
grounds, our analysis shall be confined to those grounds, for it is well
established that constitutional principles should be addressed only as
a last resort, when a case cannot be resolved any other way. People v.
Hampton, 225 Ill. 2d 238, 243-44 (2007); Beahringer v. Page, 204 Ill.
2d 363, 370 (2003).
The Code of Civil Procedure contains two different provisions
which pertain to the right of litigants to challenge orders and
judgments entered against them by default: section 2-1301(e) (735
ILCS 5/2-1301(e) (West 2008)) and section 2-1401(a) (735 ILCS 5/21401(a) (West 2008)). Both provision were employed by Ralph in this
case.
Section 2-1301(e) states:
“The court may in its discretion, before final order or
judgment, set aside any default, and may on motion filed
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¶ 57
¶ 58
¶ 59
within 30 days after entry thereof set aside any final order or
judgment upon any terms and conditions that shall be
reasonable.” 735 ILCS 5/2-1301(e) (West 2008).
Under section 2-1401(a),
“Relief from final orders and judgments, after 30 days from
the entry thereof, may be had upon petition as provided in this
Section.” 735 ILCS 5/2-1401(a) (West 2008).
The substantive standards applicable to these two statutes are
different. Where a litigant seeks to set aside a default under section
2-1301(e), which governs before final judgment has been entered or
within 30 days thereafter, the litigant need not necessarily show the
existence of a meritorious defense and a reasonable excuse for not
having timely asserted such defense. See Stotlar Drug Co. v. Marlow,
239 Ill. App. 3d 726, 728 (1993). Rather, the overriding consideration
is simply whether or not substantial justice is being done between the
litigants and whether it is reasonable, under the circumstances, to
compel the other party to go to trial on the merits. See In re Marriage
of Jackson, 259 Ill. App. 3d 538, 542 (1994); People ex rel. Reid v.
Adkins, 48 Ill. 2d 402, 406 (1971) (applying predecessor provision).
By contrast, where a litigant seeks relief from a final order or
judgment more than 30 days after its entry pursuant to section 21401(a), the burden he or she faces is substantially greater. A party
seeking to set aside a final order or judgment under section 2-1401(a)
is required to show by a preponderance of the evidence not only the
existence of a meritorious claim or defense in the original action, but
also due diligence in pursuing the claim or defense in the circuit court
as well as due diligence in presenting the petition for relief under
section 2-1401(a). People v. Vincent, 226 Ill. 2d 1, 7 (2007); see In re
Adoption of D., 317 Ill. App. 3d 155, 159 (2000). The only time a
meritorious claim or defense or due diligence need not be established
in a proceeding under section 2-1401(a) is when the order or
judgment at issue is attacked as void. People v. Vincent, 226 Ill. 2d at
7 n.2; Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104
(2002).
When Ralph sought to set aside the finding of default in this case,
he initially framed his request as a motion brought pursuant to section
2-1301(e) (735 ILCS 5/2-1301(e) (West 2008)). He subsequently
recast the request in the form of a petition under section 2-1401(a)
(735 ILCS 5/2-1401(a) (West 2008)) in response to the State’s
contention that Ralph’s original motion was untimely and that the
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¶ 60
¶ 61
¶ 62
¶ 63
circuit court no longer had jurisdiction to consider. The assumption
that section 2-1301(e) was no longer available and that section 21401(a) was the only procedural mechanism left to Ralph for
challenging the entry of default against him subsequently took hold.
It was accepted uncritically by both the circuit and appellate courts in
this case and served as the predicate for the rulings which followed.
In fact, the State and the lower courts had things reversed. As a
matter of law, the only statutory provision which could have been
properly invoked by Ralph under the circumstances present here was
the one he did invoke in his initial motion, section 2-1301(e). Relief
under section 2-1401(a) was premature.
The reason for this is clear, though it went unrecognized in the
proceedings below: the circuit court’s April 14, 2009, ruling that
Ralph had defaulted on the petition to terminate was not a final
judgment or order. To be final, an order or judgment must terminate
the litigation between the parties on the merits or dispose of the rights
of the parties, either on the entire controversy or a separate part
thereof. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008). The
April 14 order did not meet this test.
It is well established that once there has been a finding of neglect
and a child has been adjudged a ward of the court pursuant to the
Juvenile Court Act, as occurred here, the proceedings by which
parental rights are terminated are governed by the Adoption Act (750
ILCS 50/0.01 et seq. (West 2008). See 705 ILCS 405/2-29 (West
2008); In re Tolbert, 62 Ill. App. 3d 927, 929 (1978)). Under the
Adoption Act, orders terminating parental rights are nonfinal and
interlocutory. See In re Adoption of D., 317 Ill. App. 3d at 160-61; In
re Estate of Griffin, 160 Ill. App. 3d 670, 675 (1987).
That this is so has been expressly recognized by the rules of this
court since 1969, when subsections (a)(5) through (a)(7) were added
to Rule 307. See Ill. S. Ct. R. 307, Committee Comments, ¶ (a).
Subsection (a)(6) of Rule 307 (Ill. S. Ct. R. 307(a)(6) (eff. Feb. 26,
2010)), which is the predicate for Ralph’s appeal in this case,
specifically characterizes orders terminating parental rights as
interlocutory in nature. Under the rule, such orders “may” be appealed
immediately to the appellate court as a matter of right, and when a
party elects to pursue such an appeal, the appeal must be perfected
within 30 days from the entry of the interlocutory order. A party who
wishes to challenge such an order is not, however, required to bring
an immediate interlocutory appeal under Rule 307. Rather, he or she
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¶ 64
¶ 65
¶ 66
may wait until final judgment has been entered in the case and
challenge the termination order at that time. See Salsitz v. Kreiss, 198
Ill. 2d 1, 11-12 (2001); In re Adoption of D., 317 Ill. App. 3d at 161;
In re Estate of Griffin, 160 Ill. App. 3d at 674.
Furthermore, the circuit court’s ruling on April 14, 2009, did not
even purport to rise to the level of an order actually terminating
Ralph’s parental rights. It merely found Ralph to be in default and set
the matter for further proceedings the following month. A default
order is not the same as a default judgment. A default order precedes
a default judgment, and additional steps must normally be taken
before judgment is actually entered. American Service Insurance Co.
v. City of Chicago, 404 Ill. App. 3d 769, 778-79 (2010). Not only is
a mere finding of default not final, it does not even qualify as the type
of interlocutory order immediately appealable as of right under
Supreme Court Rule 307(a). Burton v. Autumn Grain Transport, Inc.,
222 Ill. App. 3d 755, 756 (1991).
Ralph’s parental rights were not terminated until the court entered
its order of December 1, 2009, more than seven months after the
April 14 determination that he was in default. When the April 14
finding of default was entered, the State and the court both
contemplated that a “prove up” would still be necessary. In this
respect, the situation is analogous to civil cases seeking damages
where a default is entered on the question of liability following a
defendant’s failure to answer and appear, but proof of damages has
yet to be presented. Where that occurs, the entry of default is
considered a nonfinal order for purposes of section 2-1301. See
Stotlar Drug Co. v. Marlow, 239 Ill. App. 3d at 728; accord Johnson
v. Cape Industries, Ltd., 91 Ill. App. 3d 192, 196 (1980) (default not
a final order where subsequent proceedings were contemplated for
proof of damages). No principle of law supports a contrary conclusion
under the circumstances present here.
Because the circuit court’s April 14 default ruling was not a final
order or judgment, the 30-day postjudgment deadline specified in
section 2-1301(e) of the Code of Civil Procedure (735 ILCS 5/21301(e) (West 2008)) had not yet even begun to run when Ralph
moved to have the default set aside. That being so, it necessarily
follows that Ralph was not required to resort to relief under section
2-1401(a), which applies, by its terms, only in those instances when
the 30-day postjudgment period has expired. Because a petition for
relief under section 2-1401 was neither necessary nor proper (see
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¶ 67
¶ 68
Bruno Benedetti & Sons, Inc. v. O’Malley, 124 Ill. App. 3d 500, 503
(1984)), the circuit court should have considered Ralph’s request to
set aside the default using the standards applicable to motions under
section 2-1301(e), as Ralph originally requested, rather than those
relevant to petitions under section 2-1401(a), as the State insisted. Its
failure to do so is reversible error. See Jackson v. Hooker, 397 Ill.
App. 3d 614, 621 (2010).
It is true that in response to the State’s motion to strike his
original motion to vacate, Ralph’s amended request for relief invoked
section 2-1401 of the Code of Civil Procedure (as well as various
other provisions) rather than section 2-1301(e). The substance of
Ralph’s request, however, remained the same. In analogous
circumstances, we have emphasized that the character of the pleading
should be determined from its content, not its label. Accordingly,
when analyzing a party’s request for relief, courts should look to what
the pleading contains, not what it is called. Sarkissian v. Chicago
Board of Education, 201 Ill. 2d 95, 102 (2002). That is particularly
appropriate here, where it is apparent, as a matter of law, that a
motion should have been considered under section 2-1301(e) rather
than section 2-1401(a), insistence by this court on evaluating the
lower court’s judgments in terms of the standards governing section
2-1401(a) petitions would only “sow confusion” in an area of the law
where practitioners and trial courts are already confused enough. See
Washington Mutual Bank, F.A. v. Archer Bank, 385 Ill. App. 3d 427,
431 (2008).
Having concluded that Ralph’s motion to vacate the default was
timely and should have been evaluated under section 2-1301(e), we
must now determine how to proceed. Normally where a circuit court
is found to have applied the wrong standard, we reverse and remand
to give it the opportunity to apply the correct standard. As we shall
explain presently, however, the undisputed facts and the governing
legal principles permit only one conclusion in this case: Ralph’s
request to vacate the finding of default should have been granted. A
remand would therefore serve no purpose. It would merely delay the
ultimate resolution of these proceedings, which have already been
protracted, unnecessarily, for too long. Such an outcome would be
directly contrary to this court’s express policy of resolving, as
expeditiously as possible, appeals involving questions of child
custody, adoption, termination of parental rights or other matter
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¶ 69
¶ 70
¶ 71
affecting the best interests of a child. See Ill. S. Ct. R. 311 (eff. Feb.
26, 2010).
Where, as here, a request to set aside a default has been made
before final order or judgment has been entered in a case, section 21301(e) provides that the decision as to whether the default should be
set aside is discretionary. 735 ILCS 5/2-1301(e) (West 2008). In
exercising that discretion, courts must be mindful that entry of default
is a drastic remedy that should be used only as a last resort. See Bank
& Trust Co. v. Line Pilot Bungee, Inc., 323 Ill. App. 3d 412, 414
(2001). The law prefers that controversies be determined according
to the substantive rights of the parties. See Lynch v. Illinois Hospital
Services, Inc., 38 Ill. App. 2d 470, 475 (1963). The provisions of the
Code of Civil Procedure governing relief from defaults are to be
liberally construed toward that end. See Bank & Trust Co., 323 Ill.
App. 3d at 414-15. When a court is presented with a request to set
aside a default under section 2-1301(e), the overriding consideration,
as we have already observed, is simply whether or not substantial
justice is being done between the litigants and whether it is
reasonable, under the circumstances, to compel the other party to go
to trial on the merits. See In re Marriage of Jackson, 259 Ill. App. 3d
538, 542 (1994); People ex rel. Reid v. Adkins, 48 Ill. 2d 402, 406
(1971) (applying predecessor provision to section 2-1301). In making
this assessment, a court should consider all events leading up to the
judgment. “What is just and proper must be determined by the facts
of each case, not by a hard and fast rule applicable to all situations
regardless of the outcome. [Citation.]” (Internal quotation marks
omitted.) Mann v. The Upjohn Co., 324 Ill. App. 3d 367, 377 (2001).
Given all of the circumstances present in this case, we believe that
substantial justice requires that the default here be set aside. This is
not a situation where a litigant received specific notice of impending
action and simply chose to ignore it. As we have described, the record
shows that the petition for termination on which Ralph was found to
have defaulted was not served on Ralph or furnished to any attorney
acting on his behalf. Service on Ralph was, in fact, never attempted.
Ralph likewise had no notice that the petition would be called for
hearing on April 14, the same day as the previously scheduled
permanency hearing.
In an attempt to justify its failure to comply with the service
provisions of Supreme Court Rule 11, the State argues on appeal that,
notwithstanding the express reference to that rule in section 2-15(3)
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¶ 72
¶ 73
¶ 74
of the Juvenile Court Act (705 ILCS 405/2-15(3) (West 2008)),
compliance with Rule 11 was not required. This argument is
untenable for three reasons. First, it is contrary to the position taken
by the State in the trial court. At no time during those proceedings did
the State suggest in any way that it had no obligation to serve Ralph
with the termination petition. To the contrary, at the hearing where it
moved for entry of default against Ralph, the attorney for the State
represented to the trial court, incorrectly, that measures necessary to
serve him had been taken.
Second, even if the State’s reading of the statute were valid, it
would not be determinative of whether the default should be set aside
under section 2-1301(e). Notice is but one factor. All events leading
up to the judgment must be assessed in considering whether
substantial justice is being done.
Third, the State’s argument is incorrect as a matter of law. The
plain language of section 2-15(3) of the Juvenile Court Act (705 ILCS
405/2-15(3) (West 2008)) unambiguously requires that Supreme
Court Rule 11 be followed. It is well settled that courts cannot depart
from the plain language of a statute by reading into it exceptions,
limitation, or conditions not expressed by the legislature. See
Krautsack v. Anderson, 223 Ill. 2d 541, 567-68 (2006) (Karmeier, J.,
dissenting).
Mindful of this impediment to its position, the State asserts that
section 2-15(3) may not be as unambiguous as it seems. The State
contends that the legislature incorporated Rule 11 into the statute
simply to specify how and to whom service must be carried out when
service is otherwise required. In the State’s view, Rule 11 does not,
itself, dictate which papers must be served. Under the State’s theory,
earlier language in section 2-15(3) means that only the initial petition
and summons must be served and that if the legislature had intended
to mandate further notice to the litigants, it would have incorporated
the service provisions of Supreme Court Rule 104(b), which
provides:
“Pleadings subsequent to the complaint, written motions, and
other papers required to be filed shall be filed with the clerk
with a certificate of counsel or other proof that copies have
been served on all parties who have appeared and have not
theretofore been found by the court to be in default for failure
to plead.” Ill. S. Ct. R. 104(b) (eff. Jan. 1, 1970).
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¶ 75
¶ 76
¶ 77
The State’s argument is unpersuasive. If the legislature’s intent
was that a respondent would not be entitled to receive any further
notice of proceedings beyond initial service of process, there would
have been no need for it to have added the qualifying phrase, “except
as required by Supreme Court Rule 11.” 705 ILCS 405/2-15(3) (West
2008). The legislature included this language for a reason and we
must give it effect if at all possible.10
The State argues that the Rule 11 language is given effect where
the State voluntarily serves a respondent with notice of additional
proceedings or filings. Under this view, however, whether a parent
received notice of subsequent proceedings and filings, including the
filing of a petition to terminate parental rights, could be decided by
the whim of the particular assistant State’s Attorney handling the
juvenile court matter. Some respondents could receive notice of all
subsequent proceedings and filings; others might receive none; and
still others might receive notice only sporadically. A court will
presume, however, that the legislature did not intend to produce
absurd or unjust results. Brucker v. Mercola, 227 Ill. 2d 502, 514
(2007).
We note, moreover, that it is a basic tenet of statutory
construction that a statute should be considered as a whole and
interpreted in light of other relevant provisions. Ultsch v. Illinois
Municipal Retirement Fund, 226 Ill. 2d 169, 184 (2007). The notice
provision set forth in section 2-15(3) is not the only such provision in
the Juvenile Court Act. Section 2-16(2) also contains a notice
provision. 705 ILCS 405/2-16(2) (West 2008). Whereas section 215(3) sets forth the required notice where a parent is served with
summons, section 2-16(2) sets forth the required notice where a
parent cannot be served with process other than by publication. In
relevant part, section 2-16(2) states that notice by publication must
contain language substantially as follows:
10
The Rule 11 language was added to section 2-15(3) in 1997 by
House Bill 66–a trailer bill to House Bill 165, adopted the same day, which
had added the no-further-notice provision. See Pub. Act 90-27, § 30 (eff.
Jan. 1, 1998); Pub. Act 90-28, § 10-20 (eff. Jan. 1, 1998). The purpose of
House Bill 66 was to clean up the language in House Bill 165. See 90th Ill.
Gen. Assem., Senate Proceedings, May 15, 1997, at 25-26 (statements of
Senator Karpiel); 90th Ill. Gen. Assem., Senate Proceedings, May 16, 1997,
at 3-4 (statements of Senator Karpiel); 90th Ill. Gen. Assem., House
Proceedings, May 22, 1997, at 31-32 (statements of Representative Dart).
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¶ 79
“Unless you appear [at the adjudicatory hearing] you will not
be entitled to further written notices or publication notices of
the proceedings in this case, including the filing of an
amended petition or a motion to terminate parental rights.”
(Emphasis added.) 705 ILCS 405/2-16(2) (West 2008).
The clear implication of this provision is that if the respondent does
appear at the adjudicatory hearing, i.e., is not in default, he or she will
be entitled to further notices, including the filing of a petition to
terminate parental rights.
No reason exists to provide less notice to a respondent who was
served with summons and appears at the adjudicatory hearing than a
respondent who is notified by publication and appears at the
adjudicatory hearing. Section 2-15(3) should therefore be read, in
concert with section 2-16(2), as entitling a respondent who appears
at the adjudicatory hearing and is not in default to further notice of
proceedings and filings, including the filing of a petition to terminate
parental rights. Correspondingly, we reject the notion that because the
statute does not expressly incorporate Rule 104(b), it must have
intended that service of pleadings was not required after the initial
service of summons.
Construing section 2-15(3) as requiring notice of all subsequent
proceedings and filings to parties not in default is also consistent with
the appointment of counsel provisions contained in the Juvenile Court
Act. See 705 ILCS 405/1-5(1), 2-15(2) (West 2008). After all, the
General Assembly would not provide a respondent with appointed
counsel, and then permit the State to keep counsel in the dark as to
subsequent proceedings and filings. See In re R.G., 165 Ill. App. 3d
112, 127 (1988) (“It would seem a useless gesture on the one hand to
recognize the importance of counsel in proceedings to terminate
parental rights–as evidenced by our statutory right for same–and, on
the other hand, not require that counsel perform effectively.”). The
State’s suggestion–that counsel must simply monitor the case–is
unrealistic. Without notice by the State of subsequent proceedings
and filings, counsel would be required to keep a continuous daily
vigil over the court docket to determine if any pleadings were filed
and, if so, obtain a copy. This is no small task, especially here, where
the State filed its petition to terminate parental rights almost four
months after it obtained leave to do so. For all of these reasons,
section 2-15(3) must be read to require the State to serve respondents
who have appeared and are not in default on the adjudicatory petition
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¶ 81
¶ 82
¶ 83
with notice of subsequent proceedings and filings, in the manner set
forth in Rule 11.
As we have pointed out several times now, Ralph received no
such notice here. But this is not the only factor militating in favor of
setting aside the default. In considering the other background
circumstances which led to the default being entered, we further
observe that this is not a situation where a litigant was remiss in
following the progress of his case or dilatory in asserting his rights.
Though no one had ever notified Ralph that a petition for termination
was on file and would be heard on April 14, he was fully aware of the
permanency hearing set for that day and intended to be there.
According to the evidence on file, which the State has never
contested, he failed to appear because he was responsible for four
other children and had difficulty finding help to care for them on the
date in question and because his automobile had a flat tire.
Further supporting our conclusion that the default should be set
aside is that it resulted from misrepresentations and
misunderstandings regarding the posture of the case. When Ralph
failed to appear at the April 14 hearing and the circuit court found
him in default, it did so based on the erroneous impression, supported
by incorrect representations made by counsel for the State, that the
State had satisfied the legally required steps for serving Ralph with
the petition to terminate his parental rights and notifying of when that
petition would be heard. In fact, as to Ralph, the notice and service
requirements imposed by local rule, the rules of this court and the
Juvenile Court Act were ignored.
We also find it significant that, following entry of the default,
Ralph promptly secured counsel who appeared at the very next
hearing, which was less than 30 days later, and advised the court of
her intention to move to have the default set aside. According to an
affidavit from Ralph’s attorney, which the State has not challenged,
she would have appeared even sooner than that but for chronic and
serious medical problems which necessitated that she retain
additional counsel to assist her in drafting the appropriate legal
documents.
The circuit court granted Ralph’s lawyer additional time to file
her motion to set aside the default, and the lawyer had the appropriate
motion on file within the time allowed by the court and permitted
under the law. If anyone was dilatory with respect to the issue of
whether the default should be set aside, it was the State, which did not
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¶ 84
¶ 85
¶ 86
¶ 87
file its motion to strike Ralph’s motion to set aside the default until
two weeks after the deadline set for it by the circuit court. Moreover,
there is nothing in the record to suggest any delay attributable to
Ralph’s inability to appear at the April 14 hearing in any way
compromised the State’s ability to present or prosecute any of the
claims it had asserted in its petition for termination of parental rights
and authorization for the guardian to consent to adoption.
We note, in particular, that the delay did not and could not have
affected Haley’s ultimate placement. Even if the April 14 finding of
default on the petition could somehow be construed as an actual
default termination judgment, which it cannot, the State could still
have taken no further action toward Haley’s adoption prior to the time
Ralph’s lawyer appeared in court on May 12 to announce Ralph’s
desire to have the default set aside or even before her filing of a
formal written motion to vacate the default on June 1. That is so
because, under the express provisions of Supreme Court Rule
305(e)(1) (Ill. S. Ct. R. 305(e)(1) (eff. July 1, 2004)), the termination
order would have been automatically stayed for 60 days following its
entry, a period which would not have expired until Monday, June 15.
While Ralph was not required to establish the existence of a
meritorious defense in order to obtain relief from the default entered
against him on the State’s petition to terminate, we further note that
it is clear from the record that he had such a defense. To understand
why this is so, it is important to recall the basis for the State’s
termination petition.
As set forth previously in this opinion, the State alleged that
Ralph’s parental rights should be terminated on the grounds that he
was unfit within the meaning of section 1(D)(m) of the Adoption Act
(750 ILCS 50/1(D)(m) (West 2008)) for two specific reasons: (1)
because he had “failed to make reasonable efforts to correct the
conditions that were the basis for the removal of the child from the
parent within nine (9) months after an adjudication of NEGLECTED
MINOR under the Juvenile Court Act of 1987 [705 ILCS 405/2-3
(West 2008)]from 8-14-07 through 5-14-08,” and (2) because he had
failed “to make reasonable progress toward the return of the child to
the parent within 9 months after [the child had been adjudicated a]
NEGLECTED MINOR, under the Juvenile Court Act of 1987 [705
ILCS 405/2-3 (West 2008)] from 8-14-07 through 5-14-08.”
With regard to the first of these contentions, the basis for the
initial removal of Haley from Ralph related to his failure to take
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¶ 88
¶ 89
¶ 90
measures that would have prevented the child from being exposed to
cocaine in utero through Patricia, whom he knew to suffer from a
cocaine addiction. It would seem, however, that this particular
problem no longer existed once Haley was born and removed from
Patricia’s custody and care.
There is a separate obstacle to the State’s first contention which
also dooms its second, alternative claim of unfitness. It pertains to the
time frame invoked by the State. Our court has held that the ninemonth period specified in section 1(D)(m) of the Adoption Act (750
ILCS 50/1(D)(m) (West 2008)) begins on the date the minor is
adjudged to be neglected, not on the date the court enters the
dispositional order. In re D.F., 208 Ill. 2d 223, 239-42 (2003). But the
beginning date cited by the State’s petition here, August 14, 2007, is
the date the circuit court entered the dispositional order. It is not the
date Haley was found to be neglected. The date on which Haley was
adjudicated a neglected minor, and the day on which the relevant
nine-month period specified in section 1(D)(m) of the Adoption Act
actually commenced, was July 31, 2007, two weeks earlier.
Correspondingly, the statutory nine-month period expired at the end
of April 2008, not the following May. Our court has specifically held
that where, as here, the State charges lack of parental fitness under
section 1(D)(m), a parent’s conduct must be assessed based solely on
the efforts made by the parent within the nine-month period following
the adjudication of neglect. Evidence of the parent’s efforts outside
that period may not be considered. Id.; see In re D.L., 191 Ill. 2d 1, 10
(2000).
The record before us shows that Ralph’s progress in meeting his
goals was reviewed regularly and was not found deficient by the court
until September of 2008.That was over four months after the relevant
nine-month period had ended. Had the circuit court checked its prior
rulings in the case in light of the specific allegations made by the
State, it would have discovered this discrepancy and realized that the
State’s petition, as drafted, was untenable as a matter of law.
Finally, the interests at stake in this litigation are significant.
While courts must always remain mindful of the best interests of
minor children in cases such as this, the focus of the Juvenile Court
and Adoption Acts is not solely on the child. A parent’s right to raise
his or her biological child is a fundamental liberty interest (In re E.B.,
231 Ill. 2d 459, 463 (2008)), and Illinois law favors natural parents
having custody of their children (id. at 473).
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¶ 91
¶ 92
¶ 93
¶ 94
¶ 95
All of the foregoing considerations militate strongly in favor of
granting relief to Ralph from the entry of default against him on the
State’s petition to terminate his parental rights. We have been unable
to identify any valid countervailing considerations that would justify
allowing the default to remain in effect under the circumstances
present here. Setting aside the default is therefore necessary to insure
that justice is done between the parties. Correspondingly, the order
terminating Ralph’s parental rights must be vacated and the cause
remanded to the circuit court for further proceedings.
Because we are remanding the cause and because of the numerous
errors which have plagued this proceeding to date, we think it
appropriate to reiterate what we said at the outset of our analysis in In
re E.B., 231 Ill. 2d 459, 463-64 (2008):
“[A] proceeding to involuntarily terminate a parent’s rights is
a ‘drastic measure.’ [Citation.] In Illinois, the authority to
involuntarily terminate parental rights is purely statutory and
the scope of the court’s authority is defined by the Juvenile
Court Act and the Adoption Act. [Citation.] These acts
contain strict procedural requirements that embody Illinois’
policy that favors parents’ superior right to the custody of
their own children. [Citation.] When a court exercises its
authority, it ‘must proceed within the confines of that law and
has no authority to act except as that law provides.’ [Citation.]
A court ‘is not free to reject or expand its statutory authority
despite the desirability or need for such action.’ [Citation.]
Any action the trial court takes that is outside the statute’s
stricture is void.”
We are confident that, on remand, that the circuit court and
counsel for the State will be mindful of these principles and that they
will fully comply with all applicable statutes and rules of court should
the State elect to proceed with termination of Ralph’s parental rights.
Given this, and in light of the basis for our holding today, we do not
reach and we express no view on whether the notice previously
provided to Ralph was sufficient to meet federal due process
requirements.
CONCLUSION
For the foregoing reasons, we agree with the appellate court’s
conclusion that the circuit court erred when it denied Ralph’s motion
to set aside the default order, that the judgment terminating Ralph’s
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parental rights based on the default order must be vacated and that the
cause should be remanded to the circuit for further proceedings. The
judgment of the appellate court is therefore affirmed.
¶ 96
¶ 97
¶ 98
¶ 99
Affirmed.
JUSTICE THEIS, specially concurring:
The majority affirms the appellate court judgment vacating the
order that terminated Ralph’s parental rights (403 Ill. App. 3d 370),
and remands the cause to the circuit court for further proceedings.
Supra ¶ 95. I agree with this result. I write separately, however,
because the majority blurs the line between the Juvenile Court Act of
1987 (705 ILCS 405/1-1 et seq. (West 2008)) and the Adoption Act
(750 ILCS 50/0.01 et seq. (West 2008)), creating unnecessary
uncertainty in the law. To illustrate:
The majority states, in the background section of the opinion, that
the trial judge failed to heed the affidavit requirements set forth in
Eighteenth Judicial Circuit Local Rule 21.09(a), which the majority
indicates are applicable where counsel seeks a default order
terminating a person’s parental rights. Supra ¶ 31. Later, in the
analysis section, the majority again states that the notice and service
requirements imposed by local rule were ignored. Supra ¶ 81. Rule
21.09(a), however, is one rule in a series of local rules governing
“Adoptions.” See 18th Judicial Cir. Ct. Rs. Art. 21, Adoptions (July
16, 2008). Although a petition to terminate parental rights filed in an
abused, neglected or dependent minor proceeding under the Juvenile
Court Act looks to the Adoption Act for the grounds of parental
unfitness (705 ILCS 405/2-29 (West 2008)), this interplay between
the two statutes does not transform an abuse, neglect and dependency
proceeding into an adoption proceeding. Indeed, Eighteenth Judicial
Circuit Local Rule 21.10(a) recognizes as much when it makes
provision for “adoption cases where the parental rights of a biological
or legal parent have been terminated in a Juvenile Court proceeding.”
(Emphasis added.) 18th Judicial Cir. Ct. R. 21.10(a) (July 16, 2008).
In such cases, a judgment of adoption will not be entered “until the
appeal rights of each such parent have been exhausted.” Id. See also
Ill. S. Ct. Rs. 305(e)(1), (e)(3) (eff. July 1, 2004) (reflecting different
treatment of termination orders in Juvenile Court Act proceedings and
Adoption Act proceedings).
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¶ 100
¶ 101
¶ 102
¶ 103
The present case proceeded under the Juvenile Court Act, not the
Adoption Act. Thus, the requirements for service and notice set forth
in the Juvenile Court Act govern (705 ILCS 405/2-16 (West 2008)).
The majority’s recourse to a local rule applicable to adoption
proceedings is unnecessary and ill-advised.
I am also troubled by the majority’s discussion of whether the
April 14, 2009, default order was a final order. The majority’s
analysis proceeds along the following lines: Once there has been a
finding of neglect and the child is made a ward of the court, the
proceedings by which parental rights are terminated are governed by
the Adoption Act; under the Adoption Act, orders terminating
parental rights are nonfinal and interlocutory; thus all orders
terminating parental rights are nonfinal and interlocutory. Supra ¶ 62.
Preliminarily, I note that the opinion makes plain that the April
14, 2009, default order did not purport to terminate Ralph’s parental
rights. Supra ¶ 64. Thus, the entire discussion of the supposed
interlocutory nature of termination orders is not necessary to the
opinion.
Moreover, the discussion adds uncertainty to an already complex
area of law by confusing orders terminating parental rights entered in
proceedings under the Juvenile Court Act with orders terminating
parental rights entered in proceedings under the Adoption Act. As
explained in In re Adoption of D., 317 Ill. App. 3d 155 (2000), and In
re Estate of Griffin, 160 Ill. App. 3d 670 (1987), which the majority
cites (supra ¶ 63), an order terminating parental rights entered in an
adoption proceeding is interlocutory and does not become final until
the judgment of adoption is entered. Thus, dismissal of the adoption
has the effect of setting aside the interlocutory termination order.
Adoption of D., 317 Ill. App. 3d at 160-61; Estate of Griffin, 160 Ill.
App. 3d at 675-76. The same cannot be said of an order terminating
parental rights pursuant to a proceeding under the Juvenile Court Act;
its finality does not depend upon whether the child is adopted. As this
court has explained:
“An order terminating parental rights and appointing a
guardian to consent to adoption is a final order because the
specific permanency goal is achieved and there is no need for
the issue of termination to be reevaluated under the [Juvenile
Court] Act. Indeed, under the Act, ‘[a]n order so empowering
the guardian to consent to adoption deprives the parents of the
minor of all legal rights as respects the minor and relieves
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¶ 104
¶ 105
¶ 106
¶ 107
them of all parental responsibility for him or her, and frees the
minor from all obligations of maintenance and obedience to
his or her natural parents.’ 705 ILCS 405/2-29(2) (West
2002). It therefore sets the rights of the parents, who may then
appeal.” In re A.H., 207 Ill. 2d 590, 595 (2003).
Contrary to the majority opinion, orders terminating parental rights
in Juvenile Court proceedings are typically final orders.
The majority also relies on this court’s own rules, stating that
Rule 307 expressly recognizes that orders terminating parental rights
are nonfinal and interlocutory. Supra ¶ 63. This is simply not true.
Rule 307 provides that an appeal may be taken to the appellate court
from certain interlocutory orders, including an interlocutory order
terminating parental rights. Ill. S. Ct. R. 307 (eff. Feb. 26, 2010). Rule
307 does not make an order interlocutory; it merely provides for
appeal where the order is, as a matter of law, interlocutory in nature.
To add to the confusion, the majority states that the December 1,
2009, default judgment which terminated Ralph’s parental rights was
a nonfinal order, not because it was entered in a termination
proceeding subject to the Adoption Act or because it is a nonfinal
order under Rule 307–as the majority’s analysis would seem to
indicate–but because it did not enter all of the relief requested by the
State in its petition, namely, appointment of a guardian with the
power to consent to adoption. See supra ¶ 47 n.9. Though I agree that
the December 1, 2009, default judgment was a nonfinal order because
it left open the State’s request for the appointment of a guardian, the
majority’s explanation in the background section as to why the
default judgment is interlocutory does not mesh with its later
discussion in the analysis section. Thus, the majority opinion is
internally inconsistent.
Because the majority opinion creates uncertainty in this area of
the law by unnecessarily blurring the line between proceedings under
the Juvenile Court Act and the Adoption Act, I cannot join in the
foregoing portions of the majority’s background discussion and
analysis.
JUSTICE GARMAN joins in this special concurrence.
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