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In Re Adoption of Miller

OPINION FILED MAY 18, 1982.

IN RE ADOPTION OF TASHYNA NICOLE MILLER, A MINOR. — (OSIE PERNELL ET AL., APPELLEES,

v.

KEVIN J. MILLER, APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS BARTH, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Appellant, Kevin J. Miller (Miller), the natural father of a minor child, Tashyna Nicole Miller, filed a petition to vacate a judgment of adoption entered in favor of appellees, Francene Pernell, the child's natural mother, and Osie Pernell, Jr., Francene's second husband (the Pernells). Miller's petition alleged that service of process was defective because his last known address listed in the affidavit for service by publication was incorrect. The trial court found that service was defective but sustained the Pernells' motion to dismiss and denied Miller's petition based upon its determination that Miller had not shown due diligence in attacking the judgment of adoption. Miller was granted leave to file a late notice of appeal.

On appeal Miller contends that the trial court erred in dismissing his petition on the ground that he had failed to exercise due diligence. For the reasons hereinafter stated, we affirm the order of the trial court.

On October 31, 1977, appellees, Osie Pernell, Jr., and Francene Pernell, husband and wife, filed a petition to adopt Tashyna Nicole Miller, the daughter of Francene Pernell and her former husband, appellant Kevin Miller. The petition alleged that Miller was an unfit person on grounds of abandonment, desertion and failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare. The petition also alleged that Miller's whereabouts were unknown to the Pernells. Service of process on Miller was by publication. On November 3, 1977, Francene Pernell's affidavit for service by publication was filed. The affidavit stated that on due inquiry Miller could not be found so that process could not be served on him and gave his place of residence as 515 East 64th Street, Chicago, Illinois.

On November 14, 1977, the clerk of the circuit court filed a certificate of mailing which stated that a copy of the adoption publication notice had been mailed to Miller at 515 East 64th Street, Chicago, Illinois. On November 18, 1977, the post office returned the notice to the clerk with the notations "NSN" and "No such number." On November 22, 1977, the Law Bulletin Publishing Company filed its certificate of publication. On December 8, 1977, an order of default was entered against Miller and his parental rights were terminated. On the same date a judgment for adoption was entered for the Pernells.

On November 22, 1978, almost one year after the judgment for adoption was entered, Miller appeared in the circuit court, divorce division, on an emergency motion for visitation with Tashyna. He was represented by the same attorney who represented him in the proceedings below. The Pernells appeared pro se and presented the court with a copy of the judgment for adoption. Miller and his counsel were also handed a copy of the judgment and were advised by the court that, in view of the adoption, Miller had no right to visitation.

On August 15, 1980, approximately 21 months after Miller and his counsel learned of the adoption judgment, Miller filed a petition for leave to examine the file in the adoption case, alleging that as Tashyna's father he was not served with summons at his then residence of 3810 Tidewater, Houston, Texas, that he did not receive a notice of publication and that he had no independent knowledge of the adoption proceedings. The petition asked that his attorney be allowed to examine the file to discover what effort had been made to serve Miller and to ascertain the address to which the summons had been sent. The petition requested that a hearing be held to determine the validity of service and that the judgment for adoption be vacated and the matter be set down for trial on the merits of the petition for adoption in the event that the court found that proper service was not had. On September 14, 1980, Miller's attorney was granted leave to examine the court file in the adoption judgment.

On November 18, 1980, the Pernells filed a motion to dismiss Miller's petition to vacate the adoption judgment. Their motion stated that Miller's petition was legally insufficient in that Miller alleged no facts which would indicate that the Pernells knew his whereabouts while the petition for adoption was pending and that Miller had thus failed to show that service of notice of the adoption petition by publication was improper. The Pernells' motion asserted that even if service by publication had been defective in some respect, Miller's petition should be dismissed on grounds of laches in that Miller and his attorney were informed of the adoption judgment in open court on November 22, 1978, yet did not file a petition to vacate that judgment until almost 21 months later. Finally, the motion to dismiss claimed that allowing Miller's petition to proceed would cause great prejudice not only to Osie and Francene Pernell but also to Tashyna in that she has lived with them in a family unit since 1975, when she was one year old, and that Miller had not seen or communicated with her since January 1975. An affidavit of Francene Pernell was submitted in support of the motion to dismiss. Pernell averred that she did not know the whereabouts of Kevin Miller prior to, during or subsequent to the time the adoption took place. She stated further that the last address she had for Miller was that of his mother who resided at 328 West 60th Place, Chicago, Illinois, which is the address she stated that she furnished to her then attorney, James Seaberry. The affidavit did not explain why Pernell's affidavit for service of publication listed Miller's address at 515 East 64th Street.

On December 2, 1980, Kevin Miller filed a petition to vacate the judgment of adoption. The petition recited that he and Francene Pernell were divorced on July 26, 1974, that Francene was awarded custody of their child, Tashyna, that he was given reasonable visitation rights and that the summons in the divorce action had been issued to Kevin Miller, 328 West 60th Place, Chicago, Illinois, c/o Loretta Miller, his mother. Noting that Francene Pernell's affidavit for publication filed with the petition to adopt gave his last known address as 515 East 64th Street, Chicago, Illinois, Miller's petition stated that at the time Francene Pernell's affidavit was filed he lived at 3810 Tidewater, Houston, Texas. The petition stated further that there is no such address as 515 East 64th Street, Chicago, Illinois and alleged that at the time the adoption petition was filed Francene Pernell knew where respondent resided and that "he [Miller] cannot explain why she gave her then attorney wrong information, unless it was to keep him, the natural father, from learning of the intended adoption." Finally, the petition represented that Miller did not discover until November 22, 1978, that a judgment for adoption had been entered and that Miller consulted an attorney to challenge the judgment but he was not financially able to proceed further at that time.

On December 10, 1980, Miller was granted leave to amend the caption of his petition to vacate, to designate it as a petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). On the same day a hearing was held before the trial court on Miller's petition and on the Pernells' motion to dismiss. Kevin Miller was not present but was represented by his attorney, who answered ready on the motion to dismiss.

During oral argument before the trial court, counsel for the Pernells conceded that Francene Pernell's affidavit for service of publication gave a different last known address for Kevin Miller than she gave her attorney, and counsel stipulated that the address in the publication does not exist. Counsel for Kevin Miller acknowledged that both he and his client had actual knowledge of the judgment for adoption in November 1978. Miller did not attempt to vacate or attack the judgment at that time because, according to his attorney, he "happens to be a traveling man. This is his work. He didn't have the money to start right away and it was inconvenient and one thing or another." No oral testimony was taken.

The trial court found that the concededly defective service was obviated by the fact that Miller did have actual knowledge of the adoption judgment within a year of its entry, at which time he could have attacked the judgment if he so chose. Instead, "he waited some 21 months, * * *." The court held that in a section 72 petition it is "incumbent upon any such petitioner to illustrate diligence," particularly in a case such as this where "the paramount interest of the child * * * requires that these matters be determined at the earliest possible time and not be delayed." The court found that Miller had not shown due diligence:

"It is my determination that such diligence in such an important matter as your child and the child you profess to want and to assert your rights over was not demonstrated here. It's my feeling that such an important interest is not a passing fancy, not something that should occur to a parent almost as an afterthought or wait until circumstances become absolutely ripe or most propitious. It's something that must be attended to immediately; not just for your own concern, but for the concerns of that child."

For these reasons the court granted the Pernells' motion to dismiss and denied Miller's petition for relief, ...


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