Justia.com Opinion Summary: Termination proceedings began with 2006 charges that children, living with their mother, were neglected. The mother received Social Security benefits, but no effort was made to determine their source or to obtain a release of Social Security information. Later that year, a proceeding to collect child support from the father was initiated in the same prosecutor's office, with a complaint signed by a caseworker in the termination proceeding. In the collection matter, the father's birth date, Social Security number and description were listed The state located the father at a treatment center and obtained consent to a support order using funds from his disability benefits.The father challenged the termination of parental rights for lack of personal jurisdiction, claiming that, under the Juvenile Court Act, it was improper to serve him only by publication after attempts at personal service or service by certified mail were unsuccessful. The appellate court upheld the order. The Illinois Supreme Court reversed, stating that the state’s ability to obtain information in the child support action cast significant doubt on the diligence of inquiry in the termination proceedings and that relying on a computerized database search of a parent's name while ignoring, or not investigating, other potentially useful information, does not constitute a diligent inquiry.
Receive FREE Daily Opinion Summaries by Email Court description: In this McLean County case, a father whose parental rights had been terminated
on March 7, 2008, challenged that result for lack of personal jurisdiction. Under the
Code of Civil Procedure, he filed a petition for relief from that judgment, claiming
that, under the Juvenile Court Act of 1987, it was improper to serve him only by
publication in Bloomington after attempts at personal service or service by certified
mail were unsuccessful. Statute requires a “diligent inquiry” before a parent may be
served by publication. The failed attempts had been based on potential addresses
obtained through the use of computerized database searches. The State simply mailed
letters but made no visits to the addresses to seek further information. The appellate
court affirmed the termination order.
The termination took place in proceedings that began pursuant to 2006 charges
that the respondent father’s two minor children, who were living with their mother,
were neglected. It was known that the mother was receiving Social Security benefits,
but no effort was made to determine their source or to obtain a release of Social
Security information. Later that same year, a separate proceeding to collect child
support from the father was initiated by a different attorney in the same prosecutor’s
office, with the complaint being signed by a caseworker in the termination
proceeding. In the collection matter, the father’s birth date, Social Security number
and physical description were listed. The State indicated that it had located the
respondent at a treatment center in Lake County and obtained his consent for entry
of a child support order using the funds from his social security disability benefits.
In this decision, the supreme court said that “the State’s ability to obtain
respondent’s contact information in the separate child support action casts significant
doubt on the diligence of the State’s inquiry into respondent’s location in the
termination proceedings” and that “relying on a computerized database search of a
parent’s name while ignoring, or otherwise not investigating, other potentially useful
information, does not constitute a diligent inquiry.” These circumstances indicate that
there was a lack of personal jurisdiction over the father in attempting to serve him by
publication on these facts. The appellate court was reversed and the termination of
the father’s rights concerning his children was vacated as void. The cause was
remanded to the circuit court for further proceedings.
Download as PDF
Loading PDF...
<![CDATA[
2011 IL 111083
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 111083)
In re DAR. C. and DAS. C., Minors (The People of the State of
Illinois, Appellee, v. Daryl Crockett, Appellant).
Opinion filed October 27, 2011.
CHIEF JUSTICE KILBRIDE delivered the judgment of the court,
with opinion.
Justices Thomas, Garman, and Karmeier concurred in the
judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justice
Freeman.
Justice Theis specially concurred, with opinion.
OPINION
¶1
This appeal asks us to determine whether the State performed a
“diligent inquiry” to ascertain respondent’s current and last known
address, as required for service by publication under section 2-16(2)
of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/2-16(2)
(West 2006)), and necessary for the trial court to obtain personal
jurisdiction in this case. The circuit court of McLean County
terminated respondent’s parental rights to his two minor children,
Dar. C. and Das. C. Respondent later filed a postjudgment motion for
relief under section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2008)), arguing that the State failed to perform a
diligent inquiry to ascertain his location when it served him notice by
publication. Respondent therefore argued that the State’s service by
¶2
¶3
¶4
¶5
¶6
¶7
¶8
publication was ineffective to confer personal jurisdiction on the trial
court.
The trial court denied respondent’s petition, and the appellate
court affirmed. No. 4-10-0267 (unpublished order under Supreme
Court Rule 23). For the following reasons, we reverse the appellate
court’s judgment, vacate the trial court’s order terminating
respondent’s parental rights, and remand for further proceedings.
I. BACKGROUND
The complicated series of events underlying this case require us
to detail extensively its development, focusing on the State’s attempts
to locate respondent. To provide context, we also summarize relevant
background information.
On August 15, 2006, the Illinois Department of Children and
Family Services received a hotline call reporting that Tonya Findley’s
four minor daughters were neglected and periodically left
unsupervised. The reporter claimed that Findley was using drugs.
Ultimately, the Department removed the children from Findley and
placed them in temporary protective custody.
On September 7, 2006, McLean County Assistant State’s
Attorney Madeline McLauchlan filed a petition for adjudication of
wardship. The petition identified respondent as the putative father of
two of Findley’s four daughters, Dar. C., born October 24, 1996, and
Das. C., born May 13, 1998.1 The petition alleged neglect against
Findley but made no allegations against respondent. The petition
listed respondent’s address as Sheridan Correctional Center.
On September 8, 2006, the trial court held a shelter care hearing.
The shelter care report, filed by Department investigator Shannon
Stanfill, listed respondent’s address as “Street address unknown,
Chicago, Illinois.” Following the hearing, the trial court entered an
agreed temporary custody order.
On September 11, 2006, Assistant State’s Attorney McLauchlan
filed an affidavit for service by publication on respondent, averring
that respondent could not be found within Illinois and could therefore
not be served in person or by certified mail. McLauchlan further
1
The parties agree that respondent is not the father of Findley’s
other two daughters. Accordingly, we do not detail the development of their
cases.
-2-
¶9
¶ 10
¶ 11
¶ 12
¶ 13
¶ 14
averred that respondent’s address “cannot be ascertained upon
diligent inquiry” and his last known address was “unknown.”
On September 19, 2006, the clerk’s office issued a notice of
publication to respondent and “any known or unknown fathers” of the
children. The notice was published the same day and provided, inter
alia, that a juvenile court proceeding had commenced and a hearing
would be held on October 24.
On October 11, 2006, the Department’s Diligent Search
Service Center issued a “certification of comprehensive diligent
search.” The certification indicated that a computer search of 14
databases had been performed. Although respondent’s first name is
spelled “Daryl,” the search was conducted with his first name spelled
as “Darryl.” The computer search located one potential address in
Peoria, Illinois. Two letters mailed to that address were returned.
On October 24, 2006, the trial court entered an adjudicatory order
finding, in pertinent part, that it had personal jurisdiction over
respondent through service by publication and that he had defaulted
by failing to appear after service by publication. The court
adjudicated the minors neglected based on Findley’s admission of
substance abuse.
On December 18, 2006, Department caseworker Nancy Murrah
filed a service plan and dispositional report. The report indicated that
respondent’s location was unknown and a diligent search on October
11 revealed one possible address. The report stated that two letters
mailed to that address were returned “attempted–not known.” The
report further stated that the diligent search would be “periodically
updated.”
Following a hearing on December 20, 2006, the trial court entered
a dispositional order finding that Findley and respondent were unfit
parents. The order noted that respondent’s “whereabouts [were]
unknown.” The court entered a permanency goal of returning the
children home within 12 months, made them wards of the court, and
gave custody to the Department’s Guardianship Administrator with
the right to place the children.
That same day, Murrah requested a second computerized diligent
search from the Center. The search revealed a potential address of
11435 South Union Street in Chicago, Illinois. A letter addressed to
respondent was mailed to that address, indicating that respondent was
the potential missing parent of two children in the Department’s
custody in McLean County, Illinois. The letter provided Murrah’s
-3-
¶ 15
¶ 16
¶ 17
¶ 18
telephone number and requested further communication from
respondent. The letter was not returned, but Murrah received no
response from respondent.
In May 2007, Murrah filed a permanency report and service plan,
indicating that Dar. C. and Das. C. had been placed in relative foster
care and were adjusting very well. Respondent’s address was listed
as “unknown.” Findley’s progress was unsatisfactory because she
continued to use illegal drugs and alcohol, was noncompliant with her
prescribed medication, and lacked stable housing. Murrah
recommended a permanency goal of return home within 12 months
and a continued finding of parental unfitness. The Children’s
Foundation, a private social-services organization, was assuming
responsibility of the minors’ case.
On July 16, 2007, Jeannie Higdon, a caseworker at the Children’s
Foundation, filed a permanency report. Respondent’s address was
listed as “unknown.” Higdon requested another diligent search on
July 6, but did not have the results of her search when she completed
her report. Higdon also asked Findley about respondent, but Findley
denied knowledge of respondent’s location or how respondent could
be contacted. Higdon indicated that Dar. C. and Das. C. were moved
to a new foster home after their original foster mother requested their
removal. The minors were adjusting to their new foster home but
were struggling with emotional and behavioral issues. Findley was
making slow progress with addressing her substance abuse and
obtaining stable housing. Higdon recommended a permanency goal
of returning the minors home within 12 months and a continued
finding of parental unfitness.
At a status hearing on July 31, 2007, Assistant State’s Attorney
McLauchlan informed the court that Findley’s drug screen from June
2007 returned positive for cocaine. McLauchlan told the court that
she believed there was no reason to continue the permanency goal of
returning the children home, and explained that she would file a
petition to terminate parental rights “unless there is something
dramatic that convinces me to do something otherwise.”
On September 27, 2007, Laura Seidelman, a social worker with
the Children’s Foundation, filed a service plan. Seidelman
recommended that the permanency goal be changed to “substitute
care pending court determination on termination of parental rights.”
Seidelman found that Findley’s progress was unsatisfactory because
she continued to use alcohol, cocaine, and marijuana. Seidelman also
-4-
¶ 19
¶ 20
¶ 21
¶ 22
filed a diligent search report for respondent and included the results
of Higdon’s search from July 2007. The searches revealed several
potential addresses for respondent in Chicago, including 5018
Blackstone Avenue, apartment 302, 11422 Union Avenue, and 11435
Union Avenue. The search also located a potential address at 702
Sutton Court in Lake Villa, Illinois. Letters were sent to all of those
addresses explaining the minors’ situation and requesting a response.
No response was received. The record does not indicate whether any
letters were returned.
On October 17, 2007, Seidelman filed a permanency report.
Seidelman reported, inter alia, that respondent made a telephone call
to Findley during an October 10 supervised visitation with Dar. C.
and Das. C. The girls reportedly “became very excited and seemed
shocked” that respondent called. When Seidelman told Findley that
respondent was required to report to the Department before
contacting his daughters, Findley became agitated and swore at
Seidelman. Findley’s behavior upset her daughters, and Seidelman
instructed Findley to end the visitation and telephone call. Seidelman
did not speak to the individual on the telephone and could not
confirm that it was respondent.
When asked, Findley denied knowing respondent’s telephone
number. Findley explained that respondent’s sister had placed the
telephone call and Findley did not know her telephone number.
Findley told Seidelman that respondent was “a paranoid
schizophrenic” and would not talk to Seidelman.
On October 19, 2007, Assistant State’s Attorney McLauchlan
filed a petition to terminate Findley and respondent’s parental rights.
The petition alleged that respondent had abandoned his two
daughters, failed to maintain a reasonable degree of interest, concern,
or responsibility as to the minors’ welfare, and deserted the minors
for more than three preceding months.
On October 31, 2007, the trial court held a permanency hearing.
At the hearing, Assistant State’s Attorney McLauchlan asked that the
children’s permanency goal be changed to substitute care pending
determination of the termination petition, explaining that “[t]here is
just really a whole lot of nothing going on as far as [Findley] is
concerned.” McLauchlan added that Findley was apparently able to
contact respondent but chose not to provide them with any further
information about respondent’s location. After the hearing, the court
changed the permanency goal to substitute care pending
-5-
¶ 23
¶ 24
¶ 25
¶ 26
¶ 27
¶ 28
determination of parental rights and found that Findley and
respondent remained unfit.
On November 2, 2007, Assistant State’s Attorney McLauchlan
filed an affidavit for service by publication for respondent on the
termination petition, attesting that respondent could not be found
within Illinois, his address could not be determined upon diligent
inquiry, and his last known address was “unknown.”
In the meantime, on November 6, 2007, another assistant State’s
Attorney from the McLean County State’s Attorney’s office filed a
complaint in a separate action (No. 07-F-401 (McLean County))
seeking child support from respondent. The complaint noted that
respondent had voluntarily acknowledged his paternity of Dar. C.
under section 12 of the Vital Records Act (410 ILCS 535/12 (West
2006)). The complaint included a case detail report from the Illinois
Department of Public Aid, listing respondent’s date of birth, Social
Security number, and physical description. The report identified
respondent’s mailing address as 702 Sutton Court, Lake Villa,
Illinois. Seidelman, the minors’ caseworker in the termination case,
signed and verified the complaint, dated October 9.
On November 8, 2007, a summons in the child support case was
issued for respondent at the Lake Villa address, but the sheriff
returned it unserved. The sheriff noted that an unidentified relative
claimed that respondent did not live at the Lake Villa address. The
unidentified relative was “uncooperative” and refused to provide the
sheriff any other information about respondent.
On November 15, 2007, the court clerk published service to
respondent on the petition to terminate his parental rights.
On December 7, 2007, Assistant State’s Attorney Dean
Engelbrecht, pursuing the child support case, mailed respondent a
letter proposing a child support order, making Illinois Foster Care the
obligee of dependent payments on behalf of the minors from
respondent’s Social Security disability income. The letter was
addressed to respondent at an address in Grayslake, Illinois, in care
of a Lake County health department treatment center. The letter
referenced a December 5, 2007, telephone conversation between
respondent, Assistant State’s Attorney Engelbrecht, and respondent’s
unnamed caseworker.
On December 19, 2007, the trial court in the termination
proceeding entered an order finding respondent defaulted by
-6-
¶ 29
¶ 30
¶ 31
¶ 32
¶ 33
publication and unfit on all three grounds alleged in the petition. The
court also scheduled a best interest hearing for March 2008.
On February 22, 2008, the trial court entered an order terminating
Findley’s parental rights after she executed a voluntary surrender of
those rights.
On March 7, 2008, the trial court held a best interests hearing for
respondent’s two minor children. The State’s only witness was
Seidelman, who testified that respondent never came forward to claim
paternity of the two minors. Seidelman performed a diligent search
for respondent. Seidelman located a number of addresses for
respondent and mailed letters to those addresses but never received
a response from respondent. When the child support program
provided Seidelman with a Lake Villa address for respondent, she
mailed a letter to that address, but there was no response. The record
does not indicate whether that letter was returned.
Seidelman explained that respondent received Social Security
income, and the Department received some of that income for the
children.2 Seidelman reported that none of respondent’s relatives had
made any attempt to communicate with the minors. Seidelman
recommended terminating respondent’s parental rights to allow his
daughters to be adopted.
After Seidelman recommended terminating respondent’s parental
rights, the court asked whether respondent was ever involved in the
minors’ lives. Seidelman explained that there was “some
involvement” when the girls were younger but when Findley moved
them to Bloomington respondent was no longer involved “other than
occasional phone contact.” Seidelman stated that Dar. C., as the older
child, retained some memory of respondent. According to Seidelman,
Dar. C. claimed to talk occasionally to respondent on the telephone
and was upset when Findley would not let Dar. C. talk to respondent
at the supervised visit in October 2007.
Following Seidelman’s testimony, Assistant State’s Attorney
McLauchlan argued that it was in the minors’ best interests to
terminate respondent’s parental rights because respondent never came
forward in the case and Findley had already surrendered her rights.
2
There is no evidence in the record that Seidelman made any
inquiry with the agency dispersing Findley and the minors’ Social Security
income to ascertain its source.
-7-
¶ 34
¶ 35
¶ 36
¶ 37
¶ 38
McLauchlan noted that if respondent’s rights were not terminated
“these children will languish in foster case.”
Brian Goldrick, the guardian ad litem for the minors, agreed,
noting that the minors’ case had been open for 18 months and
respondent had never become involved. Goldrick argued that
respondent is “probably aware that his children are in care, and he’s
done nothing to provide for these children over the last 18 months.”
Following the hearing, the trial court commented that Seidelman
properly conducted a diligent search and mailed letters to
respondent’s potential addresses. The court stated that respondent’s
failure to remain involved with the minors after they moved to
Bloomington “probably” reflected respondent’s lack of interest and
also noted that respondent was absent for the entire 18-month custody
period. The court then entered an order terminating respondent’s
parental rights. The court found that respondent was defaulted and
found unfit at the December 19 hearing and that the best interests of
Dar. C. and Das. C. required appointment of a guardian with the right
to consent to adoption. The court also changed the minors’
permanency goal to adoption.
In July 2008, Angela DeVore, Seidelman’s supervisor, filed a
permanency report. The report explained, inter alia, that the minors’
foster parents preferred subsidized guardianship over adoption.
In August 2008, respondent filed a pro se motion seeking to
vacate the trial court’s order terminating his parental rights.
Respondent asserted that he did not learn his parental rights had been
terminated until July 2008 when he contacted the Department to
request visitation with his daughters. Respondent stated that he was
disabled and provided financial support to his two daughters through
his Social Security disability income. Respondent denied that he was
provided proper notice and argued that “he was disenfranchised and
denied his due process right[s]” by the Department’s service by
publication. Respondent provided two mailing addresses, one in Park
City, Illinois, and the second in Lake Villa, Illinois. The trial court
struck respondent’s pro se motion as untimely and not within the
pleading requirements of section 2-1401 of the Code. The court also
noted that respondent was never declared the minors’ father and had
not submitted himself to a paternity test.
In September 2008, respondent, through his attorney, filed a
section 2-1401 motion seeking to vacate the trial court’s termination
order. Respondent argued that the Department’s attempts to locate
-8-
¶ 39
¶ 40
¶ 41
him in the underlying termination proceedings were not sufficiently
diligent under section 2-16(2) of the Act. Respondent further asserted
that the McLean County State’s Attorney’s office acquired his
mailing address in the separate child support action before the trial
court entered the termination order. Thus, respondent argued that
service by publication in the termination proceeding was improper
because the State knew his actual location. Because service by
publication was not permissible under those circumstances, the trial
court lacked personal jurisdiction to enter the termination order.
At a hearing on respondent’s motion, respondent testified that he
was the father of Dar. C. and Das. C. Respondent lived with Findley
when his daughters were born and shared a residence with them for
four or five years. Respondent conceded that he had not seen his
daughters for a few years but explained that it was difficult to visit
them after Findley moved and he became ill. Respondent tried to
maintain telephone contact with his daughters and sent them gifts and
cards. Respondent also provided Findley with financial assistance.
Respondent denied ever abusing or neglecting his daughters.
Respondent stated that he suffered from bipolar disorder and
received Social Security disability benefits, with the Lake County
health department treatment center acting as his payee. Respondent’s
daughters also received dependent benefits. Respondent lived at 3274
Seventh Street, apartment 3, in Park City, Illinois. Prior to living in
Park City, respondent also lived with his sister, Stephanie Crockett
McLean, at 702 Sutton Court in Lake Villa, Illinois, and with his
parents at 11435 Union Street in Chicago, Illinois. Respondent
received mail at his sister’s address and his parents’ addresses, and
they would forward his mail to him. Findley also knew how to contact
respondent and his sister Stephanie. Respondent, however, denied
receiving any correspondence from the Department concerning his
daughters Dar. C. and Das. C. Respondent agreed to an entry of a
formal child support order in McLean County after Assistant State’s
Attorney Engelbrecht contacted him. Respondent communicated with
Engelbrecht by telephone and fax machine.
Respondent’s sister Stephanie also testified and denied that she
ever received any correspondence from the Department at her home
at 702 Sutton Court in Lake Villa, Illinois. Stephanie explained that
respondent received treatment from the Assertive Community
Treatment team at the Lake County health department, including
assistance with his medications and coordination of his Social
-9-
¶ 42
¶ 43
¶ 44
¶ 45
¶ 46
¶ 47
¶ 48
Security benefits. Stephanie last saw respondent’s daughters in 2005
when Findley brought them to her house for a visit with respondent.
Stephanie testified that she and respondent loved his daughters and
wanted a relationship with them. Stephanie did not know whether
anyone in her household refused a summons for respondent in
November 2007.
After hearing the testimony, the trial court dismissed respondent’s
section 2-1401 motion without prejudice. Respondent filed a direct
appeal, but the appellate court dismissed his appeal for lack of
jurisdiction because the trial court’s order dismissing the complaint
without prejudice was not final. In re Dar. C., No. 4-08-0972 (2009)
(unpublished order under Supreme Court Rule 23).
In January 2009, the trial court entered an order changing the
minors’ permanency goal from adoption to subsidized guardianship.
On May 12, 2009, respondent filed a second petition for relief
under section 2-1401, asserting that service of process was ineffective
on both the petition for adjudication of wardship and the petition for
termination of parental rights. This pleading is the subject of this
case.
In July 2009, the trial court held a hearing on respondent’s second
section 2-1401 petition. Assistant State’s Attorney McLauchlan orally
moved to dismiss respondent’s petition, but the court declined to rule
on the petition before respondent’s paternity was established.
In August 2009, genetic testing was performed that established
respondent’s paternity of Dar. C. and Das. C.
In September 2009, the trial court entered an order approving
private subsidized guardianship of the minors and discharging the
Department as the minors’ guardian.
In October 2009, the trial court held a hearing on respondent’s
second petition. Respondent’s sister Stephanie testified that
respondent lived with Findley and their daughters until he was
diagnosed with a mental illness, specifically schizoaffective disorder.
Following his diagnosis, respondent periodically lived with his
parents or Stephanie. Respondent also spent some time at mental
health facilities and hospitals. Stephanie became respondent’s
temporary guardian in 2003 to consent to his medical treatment.
Stephanie explained that respondent suffered from an on-going illness
and needed regular treatment and medication.
-10-
¶ 49
¶ 50
¶ 51
¶ 52
¶ 53
Stephanie testified that in October 2007 she arranged a conference
telephone call between respondent and Findley. At that time,
respondent was a patient at the Elgin State Mental Facility. Stephanie
remained on the line and heard respondent briefly talk to Dar. C. and
then heard Findley swearing. The telephone call soon ended.
Stephanie did not have any additional contact with respondent’s
children after that incident. Stephanie denied that she ever received
any information from the Department about the minors. After
Stephanie’s testimony, the court requested additional briefing and
arguments on the Department’s efforts to located respondent and
scheduled a second hearing in February 2010.
At the February 2010 hearing, the State presented the testimony
of four employees of the Department. Dawn Spencer, a Department
court monitor and private agency monitor, testified that the federal
government prohibited the Department’s diligent search center from
accessing federal Social Security records without a release from the
individual being searched. Spencer also testified that the diligent
search center did not search public aid records.
Shannon Stanfill, the initial Department investigator assigned to
Findley’s case, testified that he was informed that respondent lived in
Chicago at an unknown address. Findley reported to Stanfill that
Findley and one of her children received Social Security income
based on their own respective “issues.” Stanfill did not verify this
information nor did he ask Findley to sign a release of Social Security
information. Stanfill could not recall whether he asked Findley for
respondent’s telephone number or the names of respondent’s
relatives.
Joy Hershberger, a Department placement worker, testified that
she worked with Findley in an earlier case involving the Department
in 2005. During Hershberger’s involvement in that case, Findley
reported that respondent lived in Chicago. Findley also told
Hershberger that she and Dar. C. received Social Security benefits but
did not mention respondent’s connection, if any, to the receipt of
those benefits.
Nancy Murrah, the Department caseworker in Findley’s case,
testified that Findley reported that respondent lived in the Chicago
area but Findley did not provide specific information of his location.
Murrah heard from someone involved in the case that Findley and
respondent received Social Security benefits, but Findley herself did
not offer the information. Murrah did not seek a release from Findley
-11-
¶ 54
¶ 55
¶ 56
¶ 57
and did not attempt to verify the information about the Social
Security benefits. Murrah requested two searches from the Center for
respondent, received two potential addresses, and mailed letters to
those addresses. Murrah did not receive a response to the letters.
Respondent presented the testimony of Angela DeVore, program
manager at Children’s Home and Aid. DeVore was assigned to
Findley’s case in November 2007, and supervised Laura Seidelman.
DeVore acknowledged that Seidelman signed the complaint for child
support in the minors’ case and explained that Department
caseworkers routinely signed requests for child support. DeVore
further explained, however, that the Department of Health and Family
Services (DHFS) assumed responsibility for all child support cases
approximately three years ago. According to DeVore, when the
Department has custody or guardianship of a minor, DHFS conducts
all background work in child support actions and then sends the child
support complaint to a Department caseworker for signature. DeVore
had no knowledge of how DHFS obtained respondent’s contact
information in the child support action.
In March 2010, the trial court denied respondent’s second section
2-1401 petition, finding that service by publication conferred personal
jurisdiction over respondent for the petition for adjudication and the
petition for termination because the Department conducted diligent
searches. The court noted that Findley was the Department’s only
source of information about respondent and the Social Security
benefits. Findley, however, failed to reveal any information about
respondent. The court concluded that the child support action was a
separate proceeding and the information obtained in that proceeding
could not be attributed to the termination proceeding.
On appeal, the appellate court affirmed, finding that the first
service by publication following a diligent inquiry on the petition for
adjudication provided personal jurisdiction for the entire proceeding.
No. 4-10-0267 (unpublished order under Supreme Court Rule 23).
This court allowed respondent’s petition for leave to appeal (Ill.
S. Ct. R. 315 (eff. Feb. 26, 2010)) and allowed the Family Defense
Center to file a brief amicus curiae in support of respondent (Ill. S. Ct
R. 345 (eff. Sept. 20, 2010)).
-12-
¶ 58
¶ 59
¶ 60
¶ 61
¶ 62
II. ANALYSIS
On appeal, respondent argues that the State failed to perform the
requisite “diligent inquiry” to ascertain his location. Specifically,
respondent argues that the State’s underlying service by publication
under section 2-16(2) of the Act was ineffective to confer personal
jurisdiction to the trial court when the State did not perform an
adequate diligent inquiry and failed to locate him. Thus, respondent
argues that the trial court’s adjudication and termination orders were
void for lack of personal jurisdiction.
We review de novo the legal question of whether a trial court
obtained personal jurisdiction. In re Detention of Hardin, 238 Ill. 2d
33, 39 (2010). As this court has recognized, “[i]f a court lacks either
subject matter jurisdiction over the matter or personal jurisdiction
over the parties, any order entered in the matter is void ab initio and,
thus, may be attacked at any time.” In re M.W., 232 Ill. 2d 408, 414
(2009); see also Johnston v. City of Bloomington, 77 Ill. 2d 108, 112
(1979) (when subject matter jurisdiction or personal jurisdiction is
lacking “the proceedings are a nullity and no rights are created by
them and they may be declared void when collaterally attacked”).
When a trial court fails to obtain personal jurisdiction over a litigant,
it is deprived of the authority or power to impose judgment against
the litigant. In re M.W., 232 Ill. 2d at 428.
Relevant to this appeal, personal jurisdiction may be imposed on
a litigant by effective service of summons. In re M.W., 232 Ill. 2d at
426. Providing effective service is a means of protecting an
individual’s right to due process by allowing for proper notification
of interested individuals and an opportunity to be heard. Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Because
the termination of parental rights implicates a fundamental liberty
interest, the procedures employed must comply with due process. In
re M.H., 196 Ill. 2d 356, 363 (2001) (citing Santosky v. Kramer, 455
U.S. 745, 753 (1982)). Ultimately, inadequate service of summons or
process divests the trial court of personal jurisdiction. In re Antwan
L., 368 Ill. App. 3d 1119, 1128 (2006).
Section 2-15 of the Act governs service of the summons of a
petition alleging abuse, neglect, or dependency of a minor. 705 ILCS
405/2-15 (West 2006). The summons must include a copy of the
petition and be addressed to the minor’s legal guardian or custodian
and to each named respondent in the petition. Personal service may
be made by a county sheriff, coroner, or probation officer and must
-13-
¶ 63
¶ 64
be made, in pertinent part, by either (1) delivering a copy of the
summons and petition to the person being summoned or (2)
delivering a copy to that person’s usual place of abode and leaving it
with a family member who is at least 10 years of age and then mailing
a copy to the person being summoned. 705 ILCS 405/2-15(5) (West
2006). The return of the summons with endorsement of service by the
officer is sufficient proof of service. 705 ILCS 405/2-15(4) (West
2006).
When personal service under section 2-15 cannot be
accomplished, the Act provides two other mechanisms for service of
summons. Section 2-16(1) allows for service by certified mail when
personal service under section 2-15 is not made within a reasonable
time or it appears that the respondent resides outside the state. 705
ILCS 405/2-16(1) (West 2006). The regular return receipt for certified
mail is sufficient proof of service by certified mail. 705 ILCS 405/216(1) (West 2006).
As a last resort, section 2-16(2) allows for the final type of service
authorized by the Act, service by publication. Section 2-16(2)
requires, in pertinent part, that:
“Where a respondent’s usual place of abode is not known, a
diligent inquiry shall be made to ascertain the respondent’s
current and last known address. The Department of Children
and Family Services shall adopt rules defining the
requirements for conducting a diligent search to locate parents
of minors in the custody of the Department. If, after diligent
inquiry made at any time within the preceding 12 months, the
usual place of abode cannot be reasonably ascertained, or if
respondent is concealing his or her whereabouts to avoid
service of process, petitioner’s attorney shall file an affidavit
at the office of the clerk of court in which the action is
pending showing that respondent on due inquiry cannot be
found or is concealing his or her whereabouts so that process
cannot be served. The affidavit shall state the last known
address of the respondent. The affidavit shall also state what
efforts were made to effectuate service.” 705 ILCS 405/216(2) (West 2006).
Thus, section 2-16(2) contemplates a trial court obtaining personal
jurisdiction through service by publication only when the State has
conducted a diligent inquiry to ascertain the respondent’s location and
last known address.
-14-
¶ 65
¶ 66
¶ 67
¶ 68
¶ 69
Although section 2-16(2) does not define what constitutes a
diligent inquiry or search, the standard is recognized to be “that kind
of search or investigation which a diligent person, intent on
ascertaining a fact, would usually and ordinarily make.” (Internal
quotation marks omitted.) In re Sheltanya S., 309 Ill. App. 3d 941,
956 (1999) (quoting In re A.S.B., 293 Ill. App. 3d 836 (1997)). In
turn, the term “diligent” means “characterized by steady, earnest,
attentive, and energetic application and effort in a pursuit.” Webster’s
Third New International Dictionary 633 (1993).
Here, the record demonstrates that respondent suffers from a
mental illness, and that he moved periodically between his Illinois
residence, his relatives’ respective homes in Illinois, and treatment
facilities in Illinois. The termination proceedings, initiated in McLean
County in September 2006, lasted for 18 months, culminating with
the March 2008 order terminating respondent’s parental rights.
During this time, the Department and the State consistently
maintained that respondent could not be located in Illinois. In a
separate child support action in McLean County, however, the State
successfully located respondent at a treatment center in Lake County,
Illinois, in December 2007, and obtained respondent’s consent to
entry of a child support order using funds from his Social Security
disability benefits.
Focusing on the termination proceedings in this case, the efforts
of the Department and the State to locate respondent consisted
primarily, if not entirely, of entering respondent’s name into various
computer databases and then mailing letters to potential address
matches, and asking Findley about respondent’s location. The petition
for adjudication of wardship, filed September 7, 2006, identified
respondent as the father of two of Findley’s two minor children and
listed his address, albeit incorrectly, as Sheridan Correctional Center.
The State’s affidavit for service by publication on the adjudication
petition, filed September 11, 2006, attested that respondent could not
be located in Illinois after diligent inquiry and therefore could not be
served in person or by certified mail. The affidavit listed respondent’s
last known address as “unknown.” The affidavit does not indicate
what steps, if any, were taken by the State to locate respondent. The
service by publication was issued on September 19, 2006.
In October 2006, a month after the State’s initial affidavit for
service by publication was filed, the Department’s Diligent Search
Service Center issued a “certificate of comprehensive diligent
-15-
¶ 70
¶ 71
¶ 72
¶ 73
search,” indicating that respondent’s name had been entered into 14
address databases. This initial computer search, however, was
conducted with respondent’s first name misspelled as “Darryl,” rather
that its correct spelling as “Daryl.” It revealed a potential address in
Peoria, Illinois, and a letter was mailed to that address but no
response was received.
Subsequent computerized searches of respondent’s name, using
his properly spelled first name, produced a potential match at 702
Sutton Court in Lake Villa, Illinois, his sister’s residence. The
searches also produced potential matches at various addresses in
Chicago, Illinois, including his parents’ address and his own former
addresses. The Department mailed letters to those addresses, but
received no response. There is no evidence in the record that the State
or the Department sent anyone to those addresses to inquire about
respondent’s location.
Shannon Stanfill, the Department caseworker initially assigned to
the minors’ case, was informed that respondent lived in the Chicago
area. Findley told Stanfill that she and her child received Social
Security income, but Stanfill did not verify this information or ask
Findley to sign a release of Social Security information. Stanfill could
not remember asking Findley for respondent’s telephone number or
the names of respondent’s relatives.
Nancy Murrah, another Department caseworker, was also told that
respondent lived in the Chicago area and that Findley was receiving
Social Security benefits. Murrah, however, did not verify receipt of
those benefits or request a release of information from Findley. Joy
Hershberger, a Department placement worker who worked with
Findley in a previous case, testified that Findley told her that
respondent lived in the Chicago area. Findley also stated that she and
Dar. C. received Social Security benefits.
In October 2007, Laura Seidelman, the minors’ caseworker from
the Children’s Foundation, was present during a supervised visit
between Findley and the minors when respondent called Findley.
When Seidelman instructed Findley to tell respondent that he was
required to contact the Department before talking to his daughters,
Findley became angry and ended the call. Seidelman could not verify
respondent was on the telephone and Findley denied knowing
respondent’s contact information. Seidelman also signed the
complaint for child support in the separate action. Seidelman’s
supervisor, Angela Devore, did not know how the State located
-16-
¶ 74
¶ 75
¶ 76
¶ 77
respondent’s contact information in the child support action.
Ultimately, the Department and the State were unable to locate or
contact respondent in the termination proceedings.
Consequently, when the State filed its affidavit for service of
publication on the termination petition on November 2, 2007, it
attested that respondent could not be located in Illinois after diligent
inquiry. The affidavit listed respondent’s last known address as
“unknown.” The service by publication was issued on November 15,
2007.
After carefully reviewing this record, we cannot conclude that
State and the Department performed the type of search or
investigation that an earnest and attentive person seeking to learn a
fact would ordinarily make, namely, the diligent inquiry required by
section 2-16(2). Notably, the State and the Department failed to
conduct any search or investigation into a number of opportunities to
acquire respondent’s contact information. See 705 ILCS 405/2-16(2)
(West 2006) (providing that “[w]here a respondent’s usual place of
abode is not known, a diligent inquiry shall be made to ascertain the
respondent’s current and last known address”).
The Department was aware that respondent lived in the Chicago
area, but its employees did not visit or inquire at any of the potential
address matches in the area, including those that eventually proved to
be respondent’s sister’s residence in Lake Villa and his parents’
residence in Chicago. Stanfill, the initial caseworker assigned to the
case, could not recall if he asked Findley for respondent’s contact
telephone number or the names of respondent’s relatives.
Respondent’s sister, however, denied receiving any contact from the
Department about the minors’ situation, and testified that she and
respondent wanted a continued relationship with the minors. Thus, it
is reasonable to presume that if a Department employee had talked to
respondent’s sister or his parents about the minors’ situation, they
would have provided some assistance.
The Department was also informed that Findley and the minors
were receiving Social Security benefits, but no one made any attempt
to verify Findley’s source of income or request her to authorize a
release of that information. Arguably, the failure to follow up on the
Social Security information was a missed opportunity to learn if
respondent was a source of that income and to acquire his contact
information.
-17-
¶ 78
¶ 79
¶ 80
¶ 81
In other words, while the Department was aware that respondent
reportedly lived in Chicago and the various computer searches
produced a number of potential address matches in the Chicago area,
the Department did not conduct any inquiry into those addresses.
Instead, the Department simply mailed letters to those addresses.
Similarly, although Department employees were aware that Findley
claimed to be receiving Social Security benefits, the Department did
not make any inquiry into this information. There is no explanation
in the record why the Department chose not to pursue further inquiry
into the potential address matches or the Social Security information.
Respondent also reportedly called Findley during a supervised
visitation but no effort was made to obtain respondent’s contact
information during that incident. Likewise, although a caseworker
was aware that respondent contacted Findley and Dar. C. by
telephone there is no evidence in the record of any attempt to obtain
respondent’s telephone number.
In addition, the complaint in the separate child support action
indicated that respondent had voluntarily acknowledged his paternity
of Dar. C. under section 12 of the Vital Records Act (410 ILCS
535/12 (West 2006)). The complaint included a case detail report
from the Illinois Department of Public Aid, listing respondent’s date
of birth, Social Security number, and physical description. It also
identified respondent’s mailing address as 702 Sutton Court, Lake
Villa, Illinois. Seidelman, the minors’ caseworker in the termination
case, signed and verified the complaint, but otherwise conducted no
followup on respondent’s personal information contained in that
report. Again, the record is silent on why the Department conducted
no further inquiry.
In our view, the diligent inquiry of section 2-16(2) necessarily
requires a good-faith attempt at acquiring the contact information of
a parent whose whereabouts are unknown, including inquiry about
potential leads on the parent’s whereabouts. When, as here, the State
and the Department possess information that reasonably could be
relied on to discover a missing parent’s location with further
investigation, we believe that a diligent person intent on locating the
parent would perform that investigation. Of course, when the only
available information about a parent is his or her name, a
computerized database search and letters might be sufficient to satisfy
the diligent inquiry requirement in section 2-16(2).
-18-
¶ 82
¶ 83
¶ 84
¶ 85
¶ 86
In this case, however, the State and the Department possessed
additional knowledge that may have led them to respondent’s contact
information. For example, the State and the Department possessed
information that respondent lived in the Chicago area and had
discovered multiple potential address matches in that area from the
computer search. The Department knew that Findley and minors
received Social Security benefits. The Department also knew that
respondent placed a call to Findley during a supervised visit and had
contacted Findley and his daughter by telephone on other occasions
as well. It is reasonable to assume that a diligent inquiry into those
matters would have likely resulted in the State acquiring respondent’s
contact information. In fact, the State’s ability to obtain respondent’s
contact information in the separate child support action casts
significant doubt on the diligence of the State’s inquiry into
respondent’s location in the termination proceedings here.
Section 2-16(2) unequivocally requires a diligent inquiry in every
instance when service by publication is used, regardless of whether
that inquiry ultimately proves successful in locating the parent. 705
ILCS 405/2-16(2) (West 2006). Moreover, because service by
publication is meant as a last resort of serving summons, it should be
used only after a genuine diligent inquiry to locate the individual has
been completed. Put simply, relying on a computerized database
search of a parent’s name while ignoring, or otherwise not
investigating, other potentially useful information does not constitute
a diligent inquiry under section 2-16(2).
III. CONCLUSION
We conclude that the State and the Department failed to perform
the necessary diligent inquiry under section 2-16(2), the statute
authoring service by publication in this case. Because the requisite
diligent inquiry was not performed, the State’s service by publication
was defective and did not confer personal jurisdiction to the trial
court, rendering its judgment void. In re M.W., 232 Ill. 2d at 414; In
re Antwan L., 368 Ill. App. 3d at 1128. Accordingly, we reverse the
appellate court’s judgment, vacate the trial court’s order terminating
respondent’s parental rights, and remand to the circuit court for
further proceedings.
Reversed and remanded.
-19-
¶ 87
¶ 88
JUSTICE BURKE, specially concurring:
While I agree with the majority that the judgment terminating
respondent’s parental rights must be set aside, I write separately
because I disagree with the reasoning used by the majority to reach
that result.
¶ 89
¶ 90
I. Respondent’s Claims
In March of 2008, the circuit court of McLean County entered a
default judgment terminating the parental rights of the respondent,
Daryl Crockett. Prior to the entry of the judgment, respondent was
twice served by publication–first in September of 2006, before the
adjudication phase of the proceedings, and again in November 2007,
before the termination phase.
In May of 2009, respondent filed a petition pursuant to section 21401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
2008)), seeking to have the default judgment set aside. In his petition,
respondent alleged that both publication notices were invalid and that
the circuit court lacked personal jurisdiction over him at the time it
entered the default judgment. Thus, according to respondent, the
judgment terminating his parental rights was void and should be set
aside. The circuit court denied respondent’s petition and the appellate
court affirmed. No. 4-10-0267 (unpublished order under Supreme
Court Rule 23).
Before this court, respondent repeats his claims that both of the
publication notices were invalid. With respect to the September 2006
notice, respondent’s primary contention is that the Department of
Children and Family Services (Department) failed to conduct a
diligent inquiry to locate him, as required under section 2-16(2) of the
Juvenile Court Act (705 ILCS 405/2-16(2) (West 2006)), before
serving him by publication. With respect to the November 2007
notice, respondent maintains that the Department and the McLean
County State’s Attorney had actual knowledge of his whereabouts
and, for that reason, service by publication was improper.
The State, in response, initially contends that both of respondent’s
principal contentions regarding the publication notices are
impermissible collateral attacks on the default judgment and,
therefore, are not properly before this court. In so arguing, the State
does not challenge the general rule which holds that a judgment
entered by a court lacking personal jurisdiction is void ab initio and
¶ 91
¶ 92
¶ 93
-20-
¶ 94
¶ 95
may be challenged at any time. See In re M.W., 232 Ill. 2d 408, 414
(2009). Nor does the State dispute that respondent has alleged in his
section 2-1401 petition that the circuit court lacked personal
jurisdiction when the court entered the judgment terminating
respondent’s parental rights.
Instead, the State focuses on the nature of the proof that must be
offered to establish that a judgment is void for lack of jurisdiction.
Citing to In re Custody of Ayala, 344 Ill. App. 3d 574, 583-84 (2003),
In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 200-01 (1993), and
City of Rockford v. Lemar, 157 Ill. App. 3d 350, 353-54 (1987), the
State invokes a common law rule which recognizes that a judgment
entered without jurisdiction is void and subject to collateral challenge
at any time, but which holds that, in order to prove the judgment is
void, the jurisdictional defect must appear on the face of the record.
See generally 23A Ill. L. and Prac. Judgments § 158, at 15 (2008)
(“Want of jurisdiction to enter the judgment ordinarily must appear
on the face of the record to furnish a basis for collateral attack.”);
Restatement (Second) of Judgments § 77, cmt. a, at 224 (1982) (“It
was a rule in common law courts that a judgment appearing to be
valid on its face could not be shown to be invalid by proof
contradicting the record of the action in which the judgment was
rendered.”); 47 Am. Jur. 2d Judgments § 760 (2006). Pursuant to this
“ ‘absolute verity’ ” rule (United States v. Bigford, 365 F.3d 859, 867
(10th Cir. 2004)), if the jurisdictional defect does not appear on the
face of the record, the judgment is not void and it may not be attacked
at any time. Instead, according to the State, the judgment is merely
voidable and it may only be attacked within the time limitations
established by section 2-1401.
Applying this rule in the case at bar, the State contends that
several of the arguments raised in respondent’s petition, including
both of respondent’s principal contentions regarding the publication
notices, do not rest “on the face of the record alone” but, instead, are
dependent on evidence outside the record that was introduced in the
hearings on respondent’s section 2-1401 petition. Thus, the State
maintains that respondent’s contentions challenge “the judgment as
voidable, rather than void,” and those contentions are subject to the
time limits established by section 2-1401. Further, the State asserts
that respondent’s section 2-1401 petition was not filed within the
applicable statutory time limit imposed by section 2-1401. Therefore,
-21-
¶ 96
¶ 97
according to the State, respondent’s contentions are impermissible
collateral attacks on the default judgment.
The majority does not address or acknowledge the State’s
argument that the jurisdictional defects alleged by respondent do not
appear on the face of the record. Given the importance of the
argument in defining the scope of the issues we must consider, I
would address it. I would reject the argument because this court has
held that the absolute verity rule is inapplicable where, as here, the
moving party alleges that notice was never received and no third party
has acted in reliance on the judgment:
“If no rights of third parties have intervened, the defendant
may have the judgment set aside even if the record shows
affirmatively that he was served or that he appeared. (Cassidy
v. Automatic Time Stamp Co.[,] 185 Ill. 431; Kochman v.
O’Neill, 202 Ill. 110; Hilt v. Heimberger, 235 Ill. 235; Owens
v. Ramstead, 22 Ill. 161.)” Janove v. Bacon, 6 Ill. 2d 245, 249
(1955).
See also In re Estate of Young, 414 Ill. 525, 535 (1953) (“The success
of a collateral attack upon a judgment generally depends on a record
showing lack of jurisdiction; [citations] an attack charging want of
notice and opportunity to be heard, however, may be based on
evidence dehors the record.”). This exception to the absolute verity
rule allowing the introduction of extrinsic evidence rests on the
“inherent power of a court to examine its own records and to expunge
a judgment if satisfied that the judgment was rendered without due
notice to a party” (Restatement (Second) of Judgments § 77, cmt. a,
at 224 (1982)), as well the unfairness of forbidding a litigant from
contesting a judgment for which he or she never received notice (see
Village of Algonquin v. Lowe, 2011 IL App (2d) 100603, ¶ 24 (noting
that it is problematic to apply the absolute verity rule when personal
jurisdiction is at issue)).
Respondent’s challenge to the order terminating his parental
rights was brought in the same court which entered that order and no
third-party reliance is at issue. In these circumstances, the absolute
verity rule is inapplicable.3 Accordingly, contrary to the State’s
3
The Restatement (Second) of Judgments rejects the absolute verity
rule, stating that “the modern rule is that a judgment may be impeached by
evidence that contradicts the record in the action” and that a litigant’s
reliance on such evidence is simply a relevant factor “in determining
-22-
assertions, all of the contentions raised in respondent’s section 2-1401
petition are properly before us.
¶ 98
¶ 99
¶ 100
II. Validity of the Services by Publication
When personal jurisdiction is obtained in a proceeding under the
Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2006)),
that jurisdiction continues until the matter is resolved. In re M.W.,
232 Ill. 2d at 428-29; In re Abner P., 347 Ill. App. 3d 903, 908
(2004). Thus, when personal jurisdiction is obtained prior to
adjudication, it is not necessary to reestablish that jurisdiction prior
to termination. Relying on this rule, the appellate court below held
that the September 2006 service by publication was valid and,
therefore, there was no need to address the validity of the November
2007 publication notice:
“We find the trial court obtained personal jurisdiction
over respondent by publication prior to adjudication. Since
service by publication was valid, the court acquired personal
jurisdiction over respondent for the entire proceeding. In re
Abner P., 347 Ill. App. 3d 903, 908, 807 N.E.2d 1145, 1150
(2004). Thus, we need not address the issue of service by
publication at the time of termination.” No. 4-10-0267, slip
op. at 14 (unpublished order under Supreme Court Rule 23).
Before this court, both respondent and the State recognize that
respondent was twice served by publication and that the validity of
the November 2007 notice will only be at issue if respondent can first
establish the invalidity of the September 2006 notice. The majority,
however, does not distinguish between the two publication notices.
Instead, the majority conducts its analysis as if respondent was served
only once and then, at the conclusion of its opinion, holds that this
single service by publication was invalid because no diligent inquiry
was conducted. Supra ¶ 85 (“Because the requisite diligent inquiry
was not performed, the State’s service by publication was defective
and did not confer personal jurisdiction to the trial court, rendering its
judgment void.”).
whether the forum is appropriate for hearing the attack.” Restatement
(Second) of Judgments § 77, cmts. a, b (1982). Because an exception to the
absolute verity rule applies in this case, there is no need to consider the
continuing viability of the absolute verity rule itself in Illinois.
-23-
¶ 101
¶ 102
¶ 103
¶ 104
¶ 105
In so holding, the majority relies on facts that have no relevance
to the adequacy of the September 2006 notice. For example, the
majority notes that a separate child support complaint was filed
against respondent in McLean County while the termination action
was proceeding. The majority concludes that the Department failed
to follow up on personal information regarding respondent attached
to the complaint and for this reason, as well as others, that the
Department failed to conduct the required diligent inquiry. Supra
¶ 80. However, the child support complaint was not filed until
November 6, 2007, over a year after the first publication notice was
issued. Thus, the complaint can have no bearing on the validity of the
diligent inquiry conducted prior to the issuance of the September
2006 notice.
The validity of the two publication notices should be addressed
separately. Like the appellate court, I would first consider whether the
September 2006 notice was valid and then, if necessary, consider the
validity of the November 2007 notice.
A. Validity of Service by Publication in September 2006
Section 2-1401 of the Code of Civil Procedure (735 ILCS 5/21401 (West 2008)) establishes a comprehensive statutory procedure
for vacating a final judgment older than 30 days. See People v.
Vincent, 226 Ill. 2d 1, 7 (2007). “Relief under section 2-1401 is
predicated upon proof, by a preponderance of evidence, of a defense
or claim that would have precluded entry of the judgment in the
original action and diligence in both discovering the defense or claim
and presenting the petition.” Id. at 7-8 (citing Smith v. Airoom, Inc.,
114 Ill. 2d 209 (1986)). The State does not dispute that respondent’s
contention that the trial court lacked personal jurisdiction “substitutes
for and negates the need to allege a meritorious defense and due
diligence.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,
104 (2002).
Respondent maintains that the September 2006 service by
publication was invalid because the Department failed to conduct a
diligent inquiry prior to issuing that notice, as required under section
2-16(2) of the Juvenile Court Act. That provision states, in relevant
part:
“(2) Where a respondent’s usual place of abode is not
known, a diligent inquiry shall be made to ascertain the
respondent’s current and last known address. The Department
-24-
¶ 106
¶ 107
of Children and Family Services shall adopt rules defining the
requirements for conducting a diligent search to locate parents
of minors in the custody of the Department. If, after diligent
inquiry made at any time within the preceding 12 months, the
usual place of abode cannot be reasonably ascertained, or if
respondent is concealing his or her whereabouts to avoid
service of process, petitioner’s attorney shall file an affidavit
at the office of the clerk of court in which the action is
pending showing that respondent on due inquiry cannot be
found or is concealing his or her whereabouts so that process
cannot be served. The affidavit shall state the last known
address of the respondent. The affidavit shall also state what
efforts were made to effectuate service. Within 3 days of
receipt of the affidavit, the clerk shall issue publication
service as provided below. The clerk shall also send a copy
thereof by mail addressed to each respondent listed in the
affidavit at his or her last known address. The clerk of the
court as soon as possible shall cause publication to be made
once in a newspaper of general circulation in the county
where the action is pending.” 705 ILCS 405/2-16(2) (West
2006).
The circuit court rejected respondent’s contention after holding an
evidentiary hearing. In this posture, the circuit court’s judgment is
reviewed to determine whether it is against the manifest weight of the
evidence. See S.I. Securities v. Powless, 403 Ill. App. 3d 426, 440
(2010).4 A decision is against the manifest weight of the evidence
only if the opposite conclusion is clearly evident. In re Cutright, 233
Ill. 2d 474, 488 (2009).
The portion of the record relevant to the first publication notice
establishes the following. On September 7, 2006, a petition for
adjudication of wardship was filed in the circuit court of McLean
County which identified respondent as the father of two of Tonya
4
The majority applies a de novo standard of review. Supra ¶ 60. De
novo review would be appropriate if the circuit court had decided the issue
without an evidentiary hearing. See, e.g., Commerce Trust Co. v. Air 1st
Aviation Cos., 366 Ill. App. 3d 135, 140 (2006) (“Where, as here, the
circuit court decided the issue of jurisdiction without an evidentiary
hearing, we review the court’s decision de novo.”).
-25-
¶ 108
¶ 109
¶ 110
¶ 111
¶ 112
¶ 113
Findley’s four minor daughters. The petition incorrectly listed
respondent’s address as “Sheridan Correctional Center, Sheridan, IL.”
Shannon Stanfill, the Department investigator initially assigned
to the case, spoke to Findley about respondent. Findley told Stanfill
that respondent lived in the Chicago area but that she did not know
his address. Findley also gave Stanfill an incorrect date of birth for
respondent. Stanfill made no other efforts to locate respondent. At the
shelter care hearing, no evidence was presented regarding respondent,
his location, or efforts made to find him.
On September 11, 2006, an affidavit in support of service by
publication, which is required under section 2-16(2), was filed by
McLean County Assistant State’s Attorney Madeline McLauchlan. In
the affidavit, McLauchlan attested that respondent’s address could not
“be ascertained upon diligent inquiry” and, thus, process could not be
served upon him “either personally or by certified mail.” The affidavit
did not state what efforts had been made by the Department to locate
respondent.
On September 19, 2006, the McLean County circuit clerk issued
a “notice for publication” to respondent. The notice was published in
the Bloomington Pantagraph the same day.
On October 11, 2006, a “Certification of Comprehensive Diligent
Search” was issued by the Department’s “Diligent Search Service
Center.” The certification indicated that a computer search had been
conducted of 14 address databases for respondent’s name.
On October 24, 2006, an adjudication hearing was held. At this
hearing, the circuit court found that it had personal jurisdiction over
respondent, through service by publication, and that respondent had
defaulted by not appearing after being served.
Based on the foregoing, it appears that the only inquiry conducted
by the Department prior to the issuance of the September 2006
publication notice was that of the investigator, Stanfill, asking
Findley for respondent’s address. Nothing in the record indicates that
any attempts were made to pursue other readily available areas of
inquiry prior to serving respondent by publication, such as asking
Findley for respondent’s telephone number, asking the minors and
Findley for the names of respondent’s relatives, or asking Findley
whether she received support from respondent or had an existing
child support case. Further, although the State stresses that the
Department ran a computer search for respondent’s address, that
search was conducted a month after McLauchlan filed the affidavit in
-26-
¶ 114
¶ 115
¶ 116
¶ 117
support of publication, and three weeks after the notice was actually
published. The computer search thus fell outside section 2-16(2)’s
requirement that the diligent inquiry be undertaken within the 12
months “preceding” the filing of the affidavit supporting publication.
In addition, the computer search was run with respondent’s first name
misspelled as “Darryl,” rather than “Daryl.”
Under these facts, I would hold that the circuit court’s finding that
the Department conducted the diligent inquiry required before issuing
publication notice under section 2-16(2) was against the manifest
weight of the evidence. Accordingly, I would conclude that the
September 2006 publication notice was issued in violation of section
2-16(2) and failed to confer personal jurisdiction on the trial court. In
light of this conclusion, I would also find that it is necessary to
consider the validity of the November 2007 publication.
B. Validity of Service by Publication in November 2007
Respondent acknowledges that he was served by publication a
second time, after adjudication, in November of 2007, and that the
Department made additional efforts to locate him prior to the issuance
of that notice. Respondent does not contend that these efforts failed
to satisfy the diligent inquiry requirement under section 2-16(2).
Instead, respondent argues that the November 2007 service by
publication was invalid because the McLean County State’s Attorney
and the Department had obtained actual knowledge of his location in
a separate child support case that was being pursued at the same time
as the termination action. Because section 2-16(2) permits publication
notice only “[w]here a respondent’s usual place of abode is not
known” (705 ILCS 405/2-16(b) (West 2006)), respondent maintains
that the November 2007 service by publication was invalid. The
appellate court did not reach this issue since, as noted, the court
concluded that the September 2006 notice was valid.
Despite the fact that respondent does not raise a diligent inquiry
argument with respect to the second publication notice, the majority
analyzes the validity of the notice solely on that basis. Because this
is not the argument respondent is making, I would not address it.
Further, even if it were appropriate to raise the diligent inquiry
argument sua sponte, for the following reasons I cannot agree with
the majority’s conclusion that the Department failed to conduct such
an inquiry with respect to the November 2007 notice.
-27-
¶ 118
¶ 119
¶ 120
¶ 121
¶ 122
After the adjudication hearing, the Department ran two additional
computer searches for respondent–one in December of 2006 and one
in July of 2007. The first search returned a possible address on Union
Street in Chicago, which respondent later identified as his parents’
home. Nancy Murrah, a Department caseworker, sent a letter to that
address but no response was received.
The second search returned, in addition to the address on Union
Street, an address on Blackstone Street in Chicago, which respondent
later identified as a former residence, and an address in Lake Villa,
Illinois, which was later identified as the home of respondent’s sister.
Letters were sent to each of these addresses, but no response was
received. Laura Seidelman, a social worker, filed a “Diligent Search”
report with the circuit court in September of 2007 which included the
results of the second search.
The majority concludes that these efforts did not satisfy the
diligent inquiry requirement of section 2-16(2). According to the
majority, there were at least four additional steps that the Department
could have undertaken to locate respondent and because the
Department failed to take these steps, the inquiry was deficient.
However, each of the proposed actions identified by the majority is
problematic.
First, the majority states that “[t]he Department was aware that
respondent lived in the Chicago area, but its employees did not visit
or inquire at any of the potential address matches in the area.” Supra
¶ 76. The majority cites no authority for the proposition that the
Department is required, under section 2-16(2), to physically visit the
potential addresses it uncovers in order to successfully perform a
diligent inquiry. In my view, this requirement is unduly burdensome
and I disagree with its imposition here.
Second, the majority states that the Department was also
“informed that Findley and the minors were receiving Social Security
benefits, but no one made any attempt to verify Findley’s source of
income or request her to authorize a release of that information.
Arguably, the failure to follow up on the Social Security information
was a missed opportunity to learn if respondent was a source of that
income and to acquire his contact information.” Supra ¶ 77.
According to the majority, “[t]here is no explanation in the record
why the Department chose not to pursue further inquiry into” this
information. Supra ¶ 78. I disagree.
-28-
¶ 123
¶ 124
¶ 125
The circuit court addressed the issue of Social Security benefits
in its ruling denying respondent’s section 2-1401 petition, stating:
“There was an issue with respect to the children receiving
Social Security benefits through [respondent] and whether or
not there was a diligent effort made to pursue that
information. The evidence that the Court heard was
uncontradicted that the mother said she was getting Social
Security benefits for the kids, but there was no indication
from any of the caseworkers involved that the children were
receiving benefits from the father. And even if there had been,
the evidence was that the Department would not have been
able to access that information without a release [from
respondent], would not have been able to garner any
information regarding his whereabouts without that release.”
As the State points out, Findley told the Department’s investigator,
Stanfill, that she had bipolar disorder and that she and one of her
children received Social Security benefits. Thus, there was no reason
for Stanfill to ask Findley whether she was receiving dependent
benefits through respondent. I disagree, therefore, with the majority’s
conclusion that the Department was required to investigate Findley’s
Social Security benefits.
Third, the majority states that respondent “called Findley during
a supervised visitation but no effort was made to obtain respondent’s
contact information during that incident” or thereafter. Supra ¶ 79.
However, according to a permanency report prepared by Seidelman,
who was present during the call, Findley denied knowing where
respondent was or how to reach him and stated that she did not have
a telephone number for respondent or his sister, the person who had
actually placed the call on respondent’s behalf. Further, Assistant
State’s Attorney McLauchlan testified at a permanency hearing held
on October 31, 2007, that Findley was apparently able to contact
respondent but that she chose “not to reveal any further information
about him.” Thus, the majority’s assertion that the Department made
no further inquiries of Findley regarding respondent’s location is
incorrect. The Department did make efforts to contact respondent
through Findley, but Findley refused to cooperate.
Finally, the majority concludes that the Department could have
taken further action based on the separate child support action that
was filed against respondent. The majority states:
-29-
¶ 126
¶ 127
“In addition, the complaint in the separate child support
action indicated that respondent had voluntarily
acknowledged his paternity of Dar. C. under section 12 of the
Vital Records Act (410 ILCS 535/12 (West 2006)). The
complaint included a case detail report from the Illinois
Department of Public Aid, listing respondent’s date of birth,
Social Security number, and physical description. It also
identified respondent’s mailing address as 702 Sutton Court,
Lake Villa, Illinois. Seidelman, the minors’ caseworker in the
termination case, signed and verified the complaint, but
otherwise conducted no followup on respondent’s personal
information contained in that report. Again, the record is
silent on why the Department conducted no further inquiry.”
Supra ¶ 80.
I disagree with the majority’s conclusion that the child support
complaint is relevant to the issue of whether a diligent inquiry was
conducted. The complaint in the support action was not filed until
November 6, 2007, four days after the affidavit for service by
publication in the termination case had been filed. There is no basis
in section 2-16(2) for requiring further diligent inquiry on the part of
the Department after the affidavit has been filed.5 In re A.S.B., 293 Ill.
App. 3d 836, 843 (1997) (“We know of no precedent that would
require the State to conduct a second diligent inquiry after it had
completed its initial diligent inquiry pursuant to the Act.”).
Further, as the majority itself notes earlier in its opinion, at some
point, “the child support program provided Seidelman with a Lake
Villa address for respondent, she mailed a letter to that address, but
there was no response.” Supra ¶ 30.6 Thus, contrary to the majority’s
5
With respect to the September 2006 notice, the majority is
properly critical of the State for relying on a computer search conducted by
the Department after the affidavit in support of publication had been filed.
Supra ¶ 69. Yet, with respect to the November 2007 notice, the majority
relies on the complaint for child support which, as noted above, was filed
after the affidavit for publication was filed.
6
Seidelman signed and verified the complaint in the child support
action on October 9, 2007. The “case detail report” from the Department
of Public Aid, the document which contained respondent’s personal
information and which was attached to the complaint, was dated October
29, 2007. The case detail report was thus attached to the child support
-30-
¶ 128
¶ 129
¶ 130
¶ 131
¶ 132
¶ 133
¶ 134
statement, the Department did follow up on the personal information
attached to the child support complaint.
In light of the foregoing, I disagree with the majority’s conclusion
that the Department failed to conduct a diligent inquiry prior to
serving respondent by publication in November of 2007. However,
for the reasons set forth below, I agree that the judgment terminating
respondent’s parental rights must be set aside.
On November 2, 2007, Assistant State’s Attorney McLauchlan
filed the affidavit in support of the second service by publication in
the termination case. The affidavit stated that respondent’s address
was unknown.
Four days later, on November 6, 2007, an unidentified McLean
County assistant State’s Attorney filed a complaint for child support
against respondent in a separate action in the circuit court of McLean
County. As noted, attached to the complaint was the case detail report
which listed respondent’s mailing address as his sister’s home in Lake
Villa, Illinois.
On November 15, 2007, notice to respondent of the petition to
terminate parental rights was published.
On December 7, 2007, Assistant State’s Attorney Dean
Engelbrecht sent a letter to respondent in care of a Lake County
health department treatment center located in Grayslake, Illinois. The
letter referenced a telephone conversation, held on December 5, 2007,
between respondent, his caseworker and Engelbrecht, and stated that
an agreed support order was enclosed. The letter asked respondent to
sign the agreed support order and return it to Engelbrecht for entry by
the circuit court. The record does not indicate how Engelbrecht
acquired the Grayslake address.
On December 19, 2007, the circuit court entered an order in the
termination case finding that respondent was in default and that he
was unfit on the grounds alleged in the termination petition.
On January 3, 2008, the circuit court in the support action entered
the agreed child support order. The order was served on respondent
at the Grayslake address.
complaint, presumably by the assistant State’s Attorney, after the complaint
was signed by Seidelman. It is not clear, therefore, when Seidelman became
aware that the Villa Park address had been used in the child support action.
-31-
¶ 135
¶ 136
¶ 137
¶ 138
¶ 139
¶ 140
On March 7, 2008, three months after Englebrecht had contacted
respondent, the circuit court entered a final judgment terminating
respondent’s parental rights.
Based on these facts, respondent contends that the November
2007 service by publication was invalid because the McLean County
State’s Attorney not only knew where respondent was located, but
had, in fact, communicated with him three months prior to entry of
the judgment terminating his parental rights.
The State maintains, however, that once the affidavit was filed on
November 2, 2007, and the publication notice issued, neither the
Department nor the State’s Attorney had any further obligation to
investigate under section 2-16(2), “regardless of what anyone may
have learned thereafter.” I agree with the State that the obligation to
conduct a diligent inquiry ended with the filing of the affidavit. But
that is not the question before us.
The question here is whether service by publication will be
considered valid and sufficient to confer personal jurisdiction on the
circuit court under section 2-16(2) where, after notice is published,
but several months prior to the entry of a default judgment
terminating parental rights, the prosecuting State’s Attorney is in
actual contact with the parent. I believe the answer to this question is
“no.”
Section 2-16(2) provides that service by publication is only
permissible “[w]here a respondent’s usual place of abode is not
known.” 705 ILCS 405/2-16(2) (West 2008). Further, the interest at
stake here, the termination of parental rights, is quite high and
constructive notice is, as a general rule, disfavored. A reviewing court
may presume that the legislature did not intend absurd, inconvenient,
or unjust consequences. People v. Marshall, 242 Ill. 2d 285, 293
(2011). The General Assembly could not, in my view, have intended
that publication notice stand as sufficient in these circumstances.
Accordingly, I would hold that where, as here, the prosecuting State’s
Attorney is in actual contact with a parent several months prior to the
entry of a default judgment terminating parental rights, a previously
issued publication notice is insufficient, under section 2-16(2), to
confer personal jurisdiction on the circuit court.
The State maintains, however, that even if Engelbrecht was in
actual contact with respondent, he was not the assistant State’s
Attorney of record in the termination proceeding and, therefore, the
-32-
¶ 141
¶ 142
¶ 143
¶ 144
¶ 145
¶ 146
McLean County State’s Attorney cannot be charged with knowledge
of respondent’s location in that action. I disagree.
There is no dispute that the McLean County State’s Attorney was
the prosecuting officer of both the termination proceeding and the
child support action. There is also no dispute that Engelbrecht and
McLauchlan, the assistant State’s Attorney responsible for the
termination proceeding, were agents of the McLean County State’s
Attorney. The “general rule is that a principal is affected with
knowledge of all material facts of which his or her agent receives
notice or acquires knowledge while acting in the course of the agent’s
employment and within the scope of his or her authority.” 1 Ill. L. and
Prac. Agency § 54, at 556 (2010). As the Restatement explains:
“Imputation charges a principal with the legal
consequences of having notice of a material fact, whether or
not such fact would be useful and welcome. If an agent has
actual knowledge of a fact, the principal is charged with the
legal consequences of having actual knowledge of the fact.”
Restatement (Third) of Agency § 5.03, cmt. b, at 361 (2006).
The State offers no argument as to why the rules of agency law
should be inapplicable here. Accordingly, under these facts, I would
hold that the November 2007 publication notice was invalid and
failed to confer personal jurisdiction on the trial court.
For these reasons, I agree that the order terminating respondent’s
parental rights must be set aside.
JUSTICE FREEMAN joins in this special concurrence.
JUSTICE THEIS, specially concurring:
I concur in the result reached by the majority and agree that the
September 2006 publication notice was invalid because the Illinois
Department of Children and Family Services (Department) failed to
conduct a diligent inquiry before that notice was issued as required
under section 2-16(2) of the Juvenile Court Act (Act) (705 ILCS
405/2-16(2) (West 2006)). I write separately because I disagree with
the majority’s treatment of respondent’s argument concerning the
second publication notice that was issued in November 2007.
The majority concludes that because the State and the Department
failed to perform the requisite diligent inquiry under section 2-16(2),
-33-
¶ 147
the State’s attempts at service by publication were defective and did
not confer personal jurisdiction on the trial court. Respondent does
not contend, however, that the additional efforts made to locate him
prior to the issuance of the second publication notice in November
2007 failed to satisfy the diligent inquiry requirement under the Act.
Instead, he contends that the publication notice issued prior to the
termination proceeding was not valid because the Department had
knowledge of his address before the notice was published on
November 15, 2007. Consequently, respondent argues that the
publication notice was invalid because section 2-16(2) does not
authorize service by publication where a respondent’s address is
known. I agree.
As the majority recognizes, when personal service under section
2-15 (705 ILCS 405/2-15 (West 2006)) cannot be accomplished, the
Act provides for two other mechanisms for service of summons.
Section 2-16(1) allows for service by certified mail when personal
service under section 2-15 is not made within a reasonable time or it
appears that the respondent resides outside of the state. 705 ILCS
405/2-16(1) (West 2006). Section 2-16(2) allows, as a last resort, for
service by publication. 705 ILCS 405/2-16(2) (West 2006).
Specifically, section 2-16(2) authorizes service by publication, in
pertinent part, when the following requirements are met:
“Where a respondent’s usual place of abode is not known, a
diligent inquiry shall be made to ascertain the respondent’s
current and last known address. *** If, after diligent inquiry
made at any time within the preceding 12 months, the usual
place of abode cannot be reasonably ascertained, or if
respondent is concealing his or her whereabouts to avoid
service of process, petitioner’s attorney shall file an affidavit
at the office of the clerk of court in which the action is
pending showing that respondent on due inquiry cannot be
found or is concealing his or her whereabouts so that process
cannot be served. The affidavit shall state the last known
address of the respondent. The affidavit shall also state what
efforts were made to effectuate service.” 705 ILCS 405/216(2) (West 2006).
If the notice of the termination proceeding that was published on
November 15, 2007, was valid under section 2-16(2), the trial court
would have acquired personal jurisdiction over respondent for the
entire termination proceeding. See In re M.W., 232 Ill. 2d 408, 429
-34-
¶ 148
¶ 149
(2009) (once personal jurisdiction over a parent is obtained, that
jurisdiction continues until the matter is resolved).
In this case, McLean County Assistant State’s Attorney Madeline
McLauchlan filed the affidavit for service by publication regarding
the petition to terminate parental rights on November 2, 2007, which
stated that respondent’s address was unknown. On November 6,
2007, an unnamed McLean County assistant State’s Attorney filed the
complaint against respondent in the separate child support action. The
complaint included the case detail report from the Illinois Department
of Public Aid, dated October 29, 2007, which identified respondent’s
mailing address in Lake Villa, Illinois. The obligee in the child
support action was “Illinois-Foster Care, DCFS.” The minor’s
caseworker in the termination case, Laura Seidelman, had also signed
and verified the complaint, dated October 9, 2007, in the child
support matter. On November 8, 2007, the summons in the child
support case was issued for respondent at the address in Lake Villa.
On November 15, 2007, notice to respondent of the petition to
terminate parental rights was published. On November 19, 2007, four
days after the notice to respondent was published in this case, the
sheriff attempted service of the issued summons in the child support
case at the Lake Villa address, but returned it as unserved. The sheriff
wrote on the summons that an unidentified relative claimed that
respondent did not live there and did not provide any additional
information about respondent.
In my view, the McLean County State’s Attorney’s office and the
Department could not represent in the child support action that it had
knowledge of respondent’s address, but in this action serve him by
publication. Although the attempt at service in the child support
action was ultimately unsuccessful, it was not returned as unserved
until four days after publication notice in the instant case. Section 216(2) of the Act does not authorize service by publication where a
respondent’s address is known. While I recognize that section 2-16(2)
is silent as to what occurs when the State and the Department acquire
knowledge of a respondent’s address subsequent to the filing of the
affidavit, I decline to read into the statute that they may simply
disregard knowledge of a respondent’s address that may be
discovered prior to the date that notice of a proceeding is published.
See, e.g., In re D.D., 196 Ill. 2d 405, 418-19 (2001) (the cardinal rule
of statutory interpretation is to give effect to the intent of the
legislature, while presuming the legislature did not intend to create
-35-
¶ 150
absurdity, inconvenience, or injustice); see also In re A.S.B., 293 Ill.
App. 3d 836, 843 (1997) (the State’s responsibility under section 216(2) was complete after it conducted a diligent inquiry in search of
the minor’s father, memorialized that inquiry in an affidavit,
requested notice by publication, and published that notice in the local
paper). Consequently, under the unique circumstances in this case, I
would find that because the State and the Department represented that
they had knowledge of respondent’s address in the child support
action prior to the publication notice on November 15, 2007, that
notice was invalid and failed to confer personal jurisdiction on the
trial court.
For these reasons, I concur with the result of the majority in
reversing the appellate court’s judgment; vacating the trial court’s
order terminating respondent’s parental rights; and remanding for
further proceedings.
-36-
]]>
