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In re Brett R.

October 27, 2003

IN RE BRETT R., JAY RODNEY R., AND THOMAS P., MINORS
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. DARLENE T., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Ogle County. No. 98-JA-7 Honorable John E. Payne, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

UNPUBLISHED

Respondent, Darlene T., appeals from the order of the trial court terminating her parental rights to Brett R., Jay Rodney R., and Thomas P. We affirm.

Darlene's only issue on appeal is that the trial court lacked subject matter jurisdiction to terminate her parental rights and that the orders terminating her rights are, therefore, void.

On May 1, 1998, the State filed a petition for adjudication of wardship, alleging that Brett R. and Jay Rodney R. were neglected. Darlene was served with a summons by substitute service. However, the boys' father, Jay R. (Jay), was not served; the summons addressed to him was returned without service and bore the notation, "In Rehab in Aurora." On June 2, 1998, Darlene admitted to the petition. The trial court adjudicated the minors neglected and continued the case under supervision for one year. While the preprinted order stated that "all necessary and indispensable parties" had notice of the case, there is no indication that Jay was served with a summons or appeared in court during any of the proceedings.

Jay was served with a summons regarding a related order of protection on September 14, 1998, and an attorney filed an appearance on his behalf. Jay appeared in court several times for hearings regarding the order of protection during the next several months; however, the record does not indicate that he was ever served with the original neglect petition during this time.

On February 23, 1999, Jay and his attorney were in court and admitted the allegations in the order of protection. On that same date, the State filed a petition to terminate the order of supervision in the neglect case and enter an adjudication of wardship. An amended petition, seeking the same relief, was filed in March and was served on Darlene. There is no indication that Jay was served with this petition. The State also filed a supplemental petition seeking adjudication of wardship of Darlene's child with Steve P., Thomas P., who was born after the initiation of this case. Both Darlene and Steve were served with this petition.

On June 1, 1999, the court found all three minors neglected, adjudicated them wards of the court, and appointed the Department of Children and Family Services (DCFS) as guardian . While the preprinted dispositional order was marked to indicate that the court "accepted the admission of the petition by the parent(s)," there is no indication in the docket entry that either father was present on that date.

On April 18, 2002, the State filed a petition to terminate Darlene's parental rights to all three children. Darlene and Steve were served by substitute service. The State attempted service at Jay's last known address, but the summons was returned marked, "Moved" and "no forward." The State also published notice in the local newspaper in the town of Jay's last known address, but the publication referred to a hearing to have the minors declared wards of the court and did not refer to the petition to terminate Darlene's parental rights.

The hearing on the termination petition began on September 13, 2002. The court noted that the published notice did not refer to the termination proceedings and ordered the State to publish a corrected notice. Without objection, the court proceeded with testimony regarding Darlene's fitness but also ruled that it would make no findings until after the publication of the corrected notice was made.

The State then filed a petition to terminate Jay's parental rights. Publication of notice regarding both termination petitions was made. Jay was also personally served, at a Salvation Army facility in Iowa, with a summons regarding the petition to terminate his parental rights. Jay appeared in court on the next scheduled date. At that time, the court noted that Jay had never been served with the original neglect petition, which had been filed in May 1998. Jay was served a copy of that petition in open court and was admonished regarding both it and the termination petition. The court continued the case for two weeks and invited all the parties "to present whatever arguments that they wish to make" regarding the lack of prior service of the original petition "as it may impact all proceedings before this Court."

On the next date, the court set the issue as follows:

"What I brought to the attention of the parties at the original time that the [Termination] Petition was filed, as I was going through the Court file and preparing my ruling there was a-- an indication that one of the fathers was not served, that he was served on an Order of Protection but never served on the original Petition. And I--and I raise the issue as to either if there's a personal jurisdiction issue or subject matter jurisdiction issue, what the issues are with regard to that before I ruled on the Motion for termination."
The court then continued the case so that Jay's attorney could research the issue.

On the next date, both the State and the children's guardian ad litem argued that the failure of service did not affect the court's ...


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