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12/29/97 A.S.B. v. DEPARTMENT CHILDREN AND FAMILY

December 29, 1997

IN RE A.S.B., A MINOR (YAMAL AICH-SINDINO, PETITIONER-APPELLANT,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES; JOHN DOE AND JANE DOE, RESPONDENTS-APPELLEES (THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF, V. S.B., DEFENDANT)).



Appeal from the Circuit Court of Kane County. Nos. 95--J--93. 96--AD--72. Honorable Thomas E. Mueller, Judge, Presiding.

The Honorable Justice Bowman delivered the opinion of the court. Doyle and Colwell, JJ., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Petitioner, Yamal Aich-Sindino, appeals from the adoption court's order granting the Department of Children and Family Services' (DCFS) motion to strike his petition for leave to intervene in the adoption proceeding of A.S.B. He is opposed by both the State and the adoptive parents (collectively, respondents). We affirm.

This case includes a somewhat detailed factual and procedural history. On February 15, 1995, DCFS took A.S.B. into custody after the child was abandoned by her natural mother, S.B. After the juvenile court held an initial adjudicatory hearing on February 16, 1995, a process server attempted to serve S.B. at her last known address. The summons was returned unserved because the address was vacant. The process server then unsuccessfully attempted to locate S.B. via telephone directory assistance. On February 24, 1995, the process server filed an affidavit of due diligence and stated that she was unable to locate S.B. S.B. was served with notice by publication on March 23, 1995.

On April 18, 1995, a default judgment was entered against S.B. At that time, the State indicated that A.S.B.'s father, Joseph Youkhanna, was currently incarcerated; the record is unclear as to how the State knew of Youkhanna. On April 19, 1995, DCFS filed an affidavit of diligent search detailing its efforts in attempting to locate S.B. For example, DCFS called S.B.'s maternal great grandmother and her cousin, visited all prior addresses listed in her DCFS file, and checked with the Department of Public Aid.

On June 5, 1995, S.B. and A.S.B. submitted to blood testing. On June 22, 1995, Youkhanna agreed to submit to a paternity test. On June 30, 1995, a blood test revealed that Youkhanna was not A.S.B.'s father. On August 31, 1995, a DCFS official informed the juvenile court that she knew "of no other father that mama has named." As a result, the juvenile court again ordered DCFS to attempt to locate S.B.

On October 12, 1995, DCFS filed another affidavit of diligent search. In the affidavit, DCFS stated that it had no contact with S.B. after the June 5 blood test. Moreover, DCFS had sent two certified letters to S.B.'s last known address; DCFS did not receive a response to either letter. The affidavit concluded that, because S.B. could not be located, it would not be possible for DCFS to inquire about the identity of A.S.B.'s natural father.

On November 2, 1995, notice by publication for an adjudicatory hearing for unknown fathers of A.S.B. was effectuated in the Geneva Republican newspaper. On November 14, 1995, the juvenile court entered a default order against all unknown fathers regarding the adjudication of their rights. On November 9, 16, and 23, notice by publication for termination of parental rights of unknown fathers of A.S.B. was effectuated in the Geneva Republican. On December 26, 1995, the juvenile court entered a default order against all unknown fathers regarding the termination of their parental rights. On January 25, February 1, and 8, 1996, S.B. was served with notice by publication regarding the termination of her parental rights. She appeared in court on March 1, 1996, and surrendered her parental rights.

On April 11, 1996, the juvenile court held a hearing and determined that it was in A.S.B.'s best interests to terminate the parental rights of unknown fathers and to grant adoptive rights to interested parties. On July 3, 1996, the adoptive parents filed their petition for adoption. On August 29, 1996, petitioner's name appeared, for the first time in the record, in a DCFS report. The report indicates that S.B. stated petitioner was A.S.B.'s father. The report also indicates that the Putative Father Registry was checked. No one has registered as father of [A.S.B.]" DCFS repeated this exact information in a status report dated September 30, 1996.

On December 2, 1996, petitioner appeared in the adoption court and claimed to be the putative father. At that time, the adoption court noted that (1) the State had initially proceeded with the father as named by S.B. and that blood testing had excluded Youkhanna as the father; (2) DCFS proceeded and published against all unknown fathers because S.B. had not provided any other names; and (3) DCFS had filed an affidavit of diligent search as early as October 1995, wherein it stated that no additional information could be obtained regarding a possible father because S.B. could not be located. Petitioner informed the adoption court that, after two of S.B.'s relatives had told him that Youkhanna was the father, he "just left it alone." Then, late in November 1996, he encountered another individual who told him that "everything was a lie" and that there was a possibility that he was A.S.B.'s father.

On December 19, 1996, A.S.B.'s adoption was finalized without notice to petitioner. DCFS informed the adoption court of this finalization by letter dated December 23, 1996. The letter was file-stamped December 30, 1996.

On December 30, 1996, petitioner filed a petition for leave to intervene in the adoption proceedings. In it, he claimed that S.B. had lied and misled him regarding paternity, so he had not taken any action to preserve his rights prior to November 1996.

On February 14, 1997, the adoption court issued an order granting DCFS' motion to strike the petition for leave to intervene. The adoption court determined that petitioner had not shown a sufficient interest in A.S.B. during the first 30 days after her birth. Additionally, the adoption court found that although petitioner was given notice in November 1995 of the case involving A.S.B., when she was already 1 1/2 years old, he did not pursue his paternity claim until more than one year later. Accordingly, the adoption court granted DCFS' motion to strike his petition for leave to intervene, discharged DCFS, and dismissed the case.

Petitioner thereafter filed this appeal. On appeal, petitioner has three principal contentions: (1) the juvenile court violated his due process rights by terminating his parental rights without notice; (2) the statutory scheme governing the termination of his parental rights and the adoption of A.S.B. violated his equal protection rights; and (3) the adoption court erred in striking his petition for leave to intervene.

I

Petitioner's first contention on appeal is that the juvenile court violated his due process rights when it terminated his parental rights without notice. In support of this contention, petitioner argues that (1) it was error for the juvenile court to terminate his parental rights because DCFS did not exercise due diligence during default proceedings against unknown fathers; and (2) the adoption court improperly granted the judgment of adoption after he first appeared in court. Respondents initially reply that the record belies petitioner's argument that DCFS did not exercise due diligence in attempting to determine the identity of A.S.B.'s father and that any inquiry must be limited to an examination of DCFS' actions before the entry of the default judgment as to parental rights on December ...


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