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D.Y. v. L.W.

November 02, 2000


Appeal from the Circuit Court of Kane County. No. 99--AD--0042 Honorable Judith M. Brawka, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

The respondent, L.W., appeals the trial court's orders finding the respondent in default, terminating his parental rights to D., and denying his motion to vacate these orders and the judgment of adoption. We vacate the trial court's order denying the respondent's motion to vacate and remand the case for further proceedings.

On April 1, 1999, D.Y., the natural mother of D., and E.Y., D.Y.'s husband, filed a petition to adopt D., a boy, born December 21, 1995. The petition stated that the respondent was presumed to be the boy's father, explaining that "[P]arentage was established administratively at the hospital where the child was born, but [the respondent] denies any parentage." The petition also alleged that the respondent would consent to the adoption if he could be located and that, if he could not be located, the respondent's parental rights should be terminated for wilful desertion and/or abandonment of D. On May 13, 1999, the petitioners mailed the notice of the petition to adopt to the respondent's home.

On May 18, 1999, the petitioners filed a motion for the entry of an interim order seeking the appointment of a guardian ad litem for D. At the May 20, 1999, hearing on the petition to appoint a guardian, the respondent appeared pro se. The trial court granted the petitioners' motion to appoint a guardian and ordered the matter taken off the call, stating that the respondent represented to the court that blood testing to determine paternity had been performed but that the respondent had not been able to pay for the service. The order stated that the respondent intended to locate the service provider and pay for the services.

On May 27, 1999, a summons was issued directing the respondent to file an answer or to appear. The summons and a copy of the petition to adopt were served by abode on June 1, 1999, and left with the respondent's mother.

On June 24, 1999, the guardian ad litem filed her report, recommending that the petition for adoption be granted "in the event that all other statutory requirements are satisfied."

On July 15, 1999, the petitioners filed a petition to terminate the parental rights of the respondent to D. The petition was set for hearing that same day. The petition alleged that the respondent's parentage had been established administratively at the hospital but that the respondent later denied being D.'s father in a court case and failed to pay for blood tests despite three court orders. The petition further alleged that visitation and child support had already been suspended on May 26, 1996. Further, the respondent had little or no contact with D, had deserted the child, and did not send gifts or cards. The record shows that one week earlier, on July 8, 1999, the respondent was served with the petition to terminate and notice of the hearing on the petition.

On July 15, 1999, the respondent failed to appear at the hearing or file an answer or any other pleading. The trial court found the respondent in default. After hearing testimony from D.'s mother, petitioner D.Y., the trial court found that the respondent failed to maintain a reasonable degree of interest, concern, care, and responsibility for D. and "failed to provide any financial support from the birth of the child through the present." The trial court granted the petitioners' motion to amend the petition to conform with the proofs. The trial court then found that it was in D.'s best interest to terminate the respondent's parental rights. The trial court then terminated the respondent's parental rights and entered an interim order placing the child in the temporary custody of the petitioners. The trial court explained in its order that agency appointment was not necessary because it was a related adoption.

A bystander's report indicates that on August 19, 1999, the respondent appeared pro se and presented the court with a "Motion to Suspend All Motions of Adoption By the Petitioners and Reinstate Visitation and Child Support." The respondent told the court that he had not received notice of the July 15, 1999, hearing until four days after the hearing, on July 19. The trial court denied the motion, explaining that it was filed more than 30 days after the entry of the default and termination order. According to the bystander's report, the trial court explained that it was divested of jurisdiction to vacate the order. The trial court then entered the judgment of adoption.

On September 1, 1999, the respondent filed a motion, pro se, to "vacate all judgments enter [sic] on July 15 and August 19, 1999." During the hearing on the motion, the respondent explained that he had not received notice of the July 15, 1999, hearing, he had made some child support payments, the child's mother prevented the respondent from having contact with D. and did not provide any photographs of D., and the respondent's gifts to D. had been returned. The petitioners' counsel argued that the respondent's motion was improper and that, under section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 1998)), the respondent had failed to exercise due diligence. The trial court ruled that the respondent "failed to take any action after being served and received notice for more than two and a half months and failed to exercise due diligence." The trial court denied the respondent's motion.

After the trial court granted the respondent's motions to have the court file unsealed on November 4, 1999, this court granted the respondent's motion for leave to file a late notice of appeal. On November 24, 1999, the respondent filed his late notice of appeal, specifying the orders of July 15, August 19, and September 16, 1999.

On appeal, the respondent argues that the trial court erred by denying his motions attacking the default and termination order, filed both prior to the entry of final judgment and within 30 days after the entry of final judgment. The respondent asserts that the trial court improperly applied the standard applicable to section 2--1401 of the Code rather than the less stringent standard applicable to section 2--1301(e) of the Code. 735 ILCS 5/2--1401, 2--1301(e) (West 1998). The respondent claims, in part, that the July 15, 1999, order terminating the respondent's parental rights was not a final order.

Two different sections in the Code address setting aside default judgments: section 2--1301(e) and section 2--1401(a). 735 ILCS 5/2--1301(e), 2--1401(a) (West 1998). Section 2--1301(e) addresses motions to set aside default judgments either before a final judgment or order has been entered or within 30 days after the entry of a final judgment of order. Section 2--1301(e) of the Code provides:

"The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that ...

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