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In re K.A.

January 02, 2003

IN RE: K.A. AND C.MCD., MINORS,
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
MELISSA ADKINS, RESPONDENT-APPELLANT. (NO. 4-02-0461)
IN RE K.A. AND C.MCD., MINORS,
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
WALTER MCDONALD, RESPONDENT-APPELLANT. (NO. 4-02-0488)



Appeal from Circuit Court of Livingston County Nos. 96J65 96J68 Honorable Charles H. Frank, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

In December 1998, the State sought to terminate the parental rights of respondent, Walter (Bert) McDonald, to his children, K.A. and C.McD. In November 1999, the trial court granted the motion. In December 1999, Bert filed a posttrial motion seeking to vacate the November judgment. After the hearing, the court took the motion under advisement, stating it would bring the parties back into court to orally announce its ruling. Instead, the court entered a written order in March 2000 but the parties were not advised of the entry of the order.

In June 2000, the trial court conducted a permanency review hearing on the progress of respondent mother, Melissa Adkins, in the same case numbers. The parties then learned of the March 2000 order and the court purported to toll the time limitation for filing an appeal of its termination of Bert's parental rights until that date, June 8, 2000. Respondent parents appealed; but in November 2000, we dismissed the appeal on appellee's motion, which argued the trial court was without jurisdiction to toll the time for filing the notices of appeal. In re K.A., Nos. 4-00-0617, 4-00-0618 cons. (November 15, 2000) (dismissed on appellee's motion), appeal denied, 194 Ill. 2d 568, 747 N.E.2d 352 (2001) (denied on April 4, 2001).

In March 2002, respondent parents filed a petition under section 2-1401 of the Civil Practice Law (735 ILCS 5/2-1401 (West 2000)) to vacate the March 2000 termination of Bert's parental rights. In May 2002, the trial court granted the petition, vacated the March 2000 order, and reentered the same order. Respondent parents appeal, challenging the trial court's unfitness and best interests findings as against the manifest weight of the evidence and claiming the trial court violated Melissa's due process rights. We dismiss the appeal.

I. BACKGROUND

On October 15, 1996, the trial court adjudicated K.A. (born August 30, 1995), the minor child of respondents, Melissa and Bert, neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 1996)). On November 26, 1996, the court adjudicated K.A. a ward of the court and appointed the Department of Children and Family Services (DCFS) as her guardian with the power to place her. K.A. was initially placed in relative foster care and then returned to Melissa's care on November 25, 1998.

On January 28, 1998, C.McD. (born December 10, 1997), another minor child of Melissa and Bert, was adjudicated neglected also pursuant to section 2-3(1)(b) of the Act (705 ILCS 405/2-3(1)(b) (West 1996)). That same date, C.McD. was made a ward of the court with DCFS appointed as his guardian with the power to place him. DCFS left C.McD. in the custody of Melissa and never removed him.

On December 12, 1998, the State filed a petition to terminate Bert's parental rights, alleging he was unfit because he failed to make reasonable progress toward the return of K.A. and C.McD. within 12 months of the adjudication of neglect pursuant to section 1(D)(m) of the Adoption Act. 750 ILCS 50/1(D)(m) (West 1998). On January 4, 1999, Bert filed a petition for substitution of judge. A new judge was assigned to hear the petition for termination of parental rights on January 5, 1999. On November 10, 1999, the trial court found Bert unfit on the grounds alleged and granted the State's petition.

On December 9, 1999, Bert filed a posttrial motion to vacate the order of termination previously entered. On February 2, 2000, the trial court heard the motion, took the motion under advisement, and stated it would notify all parties and bring them back to court to announce its ruling orally. The court did not do so. Instead, on March 24, 2000, the court issued a written order denying the posttrial motion. No notice was given to any of the parties the order had been entered, nor was a copy of the order sent to any of the parties.

Melissa's parental rights had not been terminated, and DCFS still held guardianship of K.A. and C.McD. On June 8, 2000, a review hearing was held before the original judge assigned to this case, regarding her progress in caring for the children. The parties then discovered an order denying Bert's posttrial motion had been entered on March 24, 2000. At the review hearing, in an attempt to provide appeal rights for Bert, the judge entered the following order:

"The court hereby finds that custom and practice of this [c]county that the [c]circuit [c]lerk would provide copies of orders entered to all parties was not followed in regards to the [o]rder [d]enying [the] [posttrial] [m]otion filed on March 24, 2000. The [c]court hereby orders that the time limitations for filing an appeal begin to toll on June 8, 2000[,] as the order was not final until June 8, 2000[,] when all parties became aware of said order."

On July 6, 2000, Melissa appealed (No. 4-00-0617) and on July 10, 2000, Bert appealed (No. 4-00-0618). The appeals were consolidated. Upon appellee's motion, which argued respondents' notices of appeal were untimely, because the trial court was without jurisdiction to toll the period for filing the notice of appeal, this court dismissed the appeal. In re K.A., Nos. 4-00-0617, 4-00-0618 cons. (November 15, 2000) (dismissed on appellee's motion).

On March 5, 2002, over 16 months after the appeal was dismissed, Melissa, later joined by Bert, filed a petition pursuant to section 2-1401 of the Civil Practice Law (735 ILCS 5/2-1401 (West 2000)) to vacate the order of March 24, 2000, because the trial court was to have entered the order orally in the parties' presence and no notice of the written order was ever given to the parties until they discovered the entry of the order. This discovery occurred after the 30-day period for filing a notice of appeal had expired, and the additional 30-day period for filing a late notice of appeal had also expired. A hearing was held on this motion on May 15, 2002, at which time the petition was allowed. The trial court vacated its order of March 24, 2000, and then reentered the same order denying the posttrial motion to vacate its order terminating Bert's parental rights.

On June 5, 2002, Melissa filed a notice of appeal with the trial court and on June 12, 2002, Bert did so (No. 4-02-0488). Their appeals have been ...


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