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In re Adoption of A.W.

September 04, 2003

IN RE ADOPTION OF A.W., J.W., AND M.W., MINORS
(R.H., PETITIONER-APPELLANT; E.W., PETITIONER-APPELLEE).



Appeal from the Circuit Court of Lake County. No. 99--AD--141 Honorable Victoria L. Martin, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

PUBLISHED

Appellant, R.H., appeals from an order of the circuit court of Lake County denying her petition under section 2--1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 2002)) to vacate the trial court's order of April 5, 2002, which dismissed the adoption petition filed by her and her domestic partner, E.W., to adopt A.W., J.W., and M.W., E.W.'s biological children. R.H. also appeals from the denial of her motion for visitation, a mediation referral, and other relief. For the reasons that follow, we affirm in part and vacate in part.

FACTS

The facts are uncomplicated. E.W. is the biological mother of three minor children conceived through artificial insemination during the period of time when R.H. and E.W. cohabited as female domestic partners who had never been married in another jurisdiction to each other. On September 22, 1999, they jointly filed a verified petition for the related adoption (750 ILCS 50/1 et seq. (West 1998)) of the minor children born during their cohabitation. On October 8, 1999, the trial court appointed a guardian ad litem. On November 5, 2001, E.W. and R.H. filed their amended verified petition for adoption. The amended petition alleged that E.W. "[c]onsents to the adoption of the minor [sic] by [p]etitioners herein, and her consent is evidenced in writing by the mother signing her name to this [p]etition for [a]doption."

The next entry in the record is an order dated April 5, 2002, written by the trial court, which recited:

"This matter coming on for hearing on motion of [E.W.], who is present in open court and the court being fully advised in the premises: IT IS HEREBY ORDERED: This matter is dismissed due to [E.W.'s] refusing to consent to the adoption by [R.H.], and the [sic] there being no consent by the biological mother, the petition for adoption is withdrawn and the case closed."

On October 30, 2002, R.H. filed a section 2--1401 petition to vacate the dismissal of the adoption petition. In it, she averred that, at the time each child was born, she and E.W. were domestic partners and co-parents of the three children and together had cared for the children since each child's birth. She further alleged that on November 5, 2001, she, E.W., their attorney, and the children appeared in open court "for the presentation of the [v]erified [p]etition and entry of appropriate [o]rders." At the same court appearance, R.H. averred, she, E.W., and the children were taken into the trial court's chambers where the trial judge brought out toys for the children "and waved a 'magic wand' for the children, indicating verbally that the adoption was final." R.H. stated her belief that the adoption was final at that time. The record, however, contains no final order of adoption for that or any other date.

In approximately August 2002, E.W. informed R.H. that the adoption had never been made final. On October 30, 2002, R.H. filed a section 2--1401 petition seeking to vacate the order dismissing the cause. In her petition she alleged she did not receive notice that E.W. was going to appear in court ex parte and withdraw her consent to the adoption. R.H. also prayed for reinstatement of the adoption petition. On December 13, 2002, R.H. filed a motion for visitation and other relief. On January 28, 2003, the trial court denied all relief. The trial court in its order specifically stated that R.H. lacked standing to bring the motion for visitation and that, as E.W.'s right to withdraw her consent to the adoption was absolute, no notice of the dismissal of the proceedings was necessary. R.H. timely filed this appeal.

DISCUSSION

R.H.'s first contention is that the trial court abused its discretion when it denied her section 2--1401 petition to vacate the dismissal of the adoption petition and for reinstatement. The trial court found that, since E.W. had the absolute right to withdraw consent, no notice was necessary. We disagree. R.H. was a party and was entitled to notice. Rule 2.01(g) of the Nineteenth Judicial Circuit requires that written notice of the hearing of all motions shall be given by the party requesting the hearing to all parties who have appeared and who have not been defaulted. 19th Jud. Cir. Ct. R. 2.01(g) (eff. January 2, 1997). Supreme Court Rule 104(b) provides that papers required to be filed with the clerk shall be filed with a certificate of service with proof that copies have been served on all parties who have appeared and are not in default. 134 Ill. 2d. R. 104(b).

E.W. contends that she gave notice of her intent to withdraw her consent to the parties' attorney, who failed to convey this information to R.H. She does not indicate whether she advised her attorney orally or in writing. Nevertheless, E.W. argues, her statement of intent to her attorney constituted notice to R.H. E.W. cites no authority for this proposition, and we find no basis to conclude that legally sufficient notice was given. A mere statement of her intent is not notice of court action.

In any event, E.W. did not give written notice as contemplated by the local rule, nor did she file a certificate of service as required by Rule 104(b). We have combed the record and find no notice of motion or other document that could be construed to have given R.H. legally sufficient notice that the adoption petition would be dismissed. Therefore, we agree with R.H. that she did not receive notice.

The effect of the lack of notice was to render the order dismissing the petition void. See In re Estate of Gustafson, 268 Ill. App. 3d 404, 409 (1994). Prior to entry of a new order, a party must give notice that a motion will be presented to the court. Maras v. Bertholdt, 126 Ill. App. 3d 876, 881 (1984). An order entered without notice is void. Maras, 126 Ill. App. 3d at 881. See also Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App. 3d 584, 589 (1989). "At a minimum, procedural due process requires notice, an opportunity to respond, and a meaningful opportunity to be heard." Gustafson, 268 Ill. App. 3d at 409. While R.H. does not challenge this order on precisely this basis, "courts have an independent duty to vacate and expunge void orders and thus may sua sponte declare an order void." Daniels v. Industrial Comm'n, 201 Ill. 2d 160, 166 (2002). A void order or judgment may be attacked at any time or in any court either directly or collaterally and without ...


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