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In re Abner P.

March 31, 2004

[5] IN RE ABNER P.; ELIZABETH P.; NATHANIEL P.; AARON P.; JACOB P.; STEPHANIE P.; AND SARA P.; MINORS, RESPONDENTS-APPELLEES,
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
PAVEL P., RESPONDENT-APPELLANT.)



[6] Appeal From the Circuit Court of Cook County. No. 99 JA 1279/1280/1281/1282 No. 99 JA 1283/1285/1386 Honorable Rena Van Tine, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Theis

[8]  Respondent Pavel P.'s parental rights as to seven of his children, Abner P., Elizabeth P., Nathaniel P., Aaron P., Jacob P., Stephanie P., and Sara P. (collectively, the children), were terminated pursuant to the Juvenile Court Act of 1987 (Act) *fn1 ( 705 ILCS 405/1-1 et. seq. (West 2002)). Respondent filed a motion to quash service by publication and vacate void judgment, which the trial court denied after a hearing. On appeal, respondent contends that the order terminating his parental rights is void because the service by publication effectuated by the State was defective and therefore the trial court did not have jurisdiction over him. Specifically, respondent argues that: (1) the State's affidavit for service by publication did not comply with the requirements of the Act; (2) the clerk did not mail notice to respondent's last known address; (3) the trial court erred in striking respondent's Rule 237(b) (166 Ill. 2d R. 237 (b)) notice to appear; (4) diligent efforts were not used to serve process either personally or by certified mail; and (5) it was error for the trial court to find that laches applied. We affirm.

[9]  On May 24, 1999, the State filed petitions for adjudication of wardship on behalf of the children. Respondent was personally served with summons and the adjudication petitions on June 30, 1999. The summons contained language informing respondent that he would not be entitled to further notice or publication of proceedings in the case, including the filing of an amended petition or a motion to terminate parental rights. Respondent filed his appearance on March 14, 2000, and was present personally and through counsel at the adjudication hearing, which commenced on February 6, 2001. On February 7, the trial court found that the children were neglected and physically abused.

[10]   On April 15, 2001, the State filed a petition to appoint a guardian with right to consent to adoption on behalf of the children. Respondent filed an answer denying the allegations in that petition. On November 14, 2001, the State filed a Rule 237(b) notice for respondent to appear at the termination of parental rights trial. Respondent filed a motion to advance and reset the trial date of December 10, 2001. On February 26, 2002, the State was granted leave to withdraw its motion to appoint a guardian with right to consent to adoption. On April 16, 2002, respondent's counsel filed a motion for leave to withdraw, which the trial court granted. Respondent did not request to be appointed another attorney. On June 4, 2002, the trial court entered dispositional orders finding that respondent was unwilling and unfit to parent his children and adjudicating them wards of the court and appointing the Department of Children and Family Services (DCFS) as guardian.

[11]   On November 14, 2002, the State filed supplemental petitions for appointment of a guardian with the right to consent to adoption on behalf of the children. These petitions were filed under the same case numbers listed on the summons that was personally served to respondent on June 30, 1999. On November 15, 2002, the State issued a summons advising respondent of the termination proceeding. A sheriff attempted to serve respondent at 4933 West Cuyler on December 3, 2002, at 7:47 p.m. and December 5, 2002, at 11:25 a.m. The summons return forms indicated that respondent was "not listed" as a resident.

[12]   On December 24, 2002, the State filed an affidavit for service by publication and notice by publication was subsequently printed in the Chicago Sun-Times on January 16, 2003, advising respondent of the January 30, 2003, hearing date, as well as the time and location. The notice also warned respondent that his parental rights could be terminated and that a guardian could be appointed with power to consent to the adoption of his children.

[13]   Respondent did not appear at the January 30, 2003, hearing, and the trial court entered an order defaulting him for want of appearance. Thereafter, on March 4, 2003, the trial court entered an order involuntarily terminating respondent's parental rights with respect to the children on the basis that he was unfit. The order also provided for appointment of a guardian with authority to consent to the adoption of the children.

[14]   On April 4, 2003, respondent filed a pro se notice of appeal from the March 4, 2003 termination orders. The children, through the public guardian, filed a motion to dismiss the appeal for lack of jurisdiction on the grounds that the notice of appeal was filed more than 30 days after the entry of the contested order. On May 20, 2003, this court granted the children's motion. Prior to entry of the dismissal order, respondent filed a pro se motion seeking appointment of counsel, which the trial court granted. On May 20, 2003, respondent's counsel filed a "Motion to Quash Service By Publication and Vacate Void Judgment" in the trial court. On June 20, 2003, the State filed its response to respondent's motion and attached the affidavit of Kimberly Seymore, chief deputy clerk of the Cook County juvenile court child protection division.

[15]   Respondent filed a notice to appear under Supreme Court Rule 237(b) (166 Ill. 2d R. 237(b)) requiring Mesha G. Miller, who signed the affidavit in support of service by publication, to appear at the hearing. The State filed a motion to strike that motion. The trial court ruled in the State's favor, finding that a Rule 237(b) notice was not appropriate for a posttrial motion. Respondent then sought to strike Seymore's affidavit, arguing that it did not comport with the requirements of Supreme Court Rule 191 (145 Ill. 2d R. 191). The trial court denied respondent's motion.

[16]   A hearing on the motion to quash service by publication and vacate void judgment was held on July 7, 2003. On July 11, prior to ruling on the motion, the trial court stated that it was treating respondent's motion as a section 2-1401 motion pursuant to the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)) because it was filed after 30 days but within 2 years of the order terminating his parental rights. The trial court then denied the motion, finding that service by publication was proper. The trial court further found that respondent's procedural attack on the order terminating his parental rights was barred by the doctrine of laches and that respondent had actual knowledge of the termination proceedings. Respondent then filed this timely appeal.

[17]   On appeal, respondent first argues that the trial court's order terminating his parental rights is void because the service by publication effectuated by the State was defective and therefore the trial court did not have jurisdiction over him.

[18]   An order rendered by a court is void "'only where there is a total want of jurisdiction in the court which entered the judgment, either as to the subject matter or as to the parties. [citation.]'" In re Marriage of Mitchell, 181 Ill. 2d 169, 174, 692 N.E.2d 281, 284 (1998). Proper service of summons is required to establish in personam jurisdiction. In re D.J.S., 308 Ill. App. 3d 291, 294, 719 N.E.2d 1168, 1171 (1999). The manner in which summons was to be served in this case is governed by the Act, which provides, in pertinent part, as follows:

[19]   "(3) *** The summons shall contain a notice that the parties will not be entitled to further written notices or publication notices of proceedings in this case, including the filing of an amended petition or a motion to ...


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