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In re Haley D.

July 27, 2010

IN RE HALEY D., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
RALPH L., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 07--JA—14, Honorable Thomas J. Riggs, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Respondent, Ralph L., appeals from the orders of the trial court denying his petition to vacate a default judgment and his motion to amend his petition. We reverse and remand.

On April 11, 2007, the State filed a petition alleging that Haley D. was a neglected minor pursuant to section 2--3(1)(c) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--3(1)(c) (West 2006)). Haley was placed in shelter care that day. Natural father Ralph L. received abode service of the summons, which was left with his mother at the home they shared.*fn1 The trial court subsequently found Haley to be a neglected minor and, on August 14, 2007, adjudicated her a ward of the court. The court granted the Department of Children and Family Services (DCFS) custody and guardianship of Haley and set the permanency goal of return home in 12 months. The case was continued to February 12, 2008.

On February 19, 2008, the trial court continued guardianship and custody with DCFS and again set the permanency goal as return home in 12 months. On October 8, 2008, Haley's foster parents filed a motion to be granted intervenor status. The trial court granted the motion on October 14. On that same day, the court changed the permanency goal (over Ralph's objection) to substitute care pending termination of parental rights and granted the State leave to file a petition to terminate those rights. The State then said:

"We have a permanency review date of February 17, 2009. And now, we have leave to file a petition to terminate, which we'll be doing, your Honor. And that will generate a new date." The State filed a petition to terminate parental rights on February 5, 2009. The record contains no notice of motion or any other notice of when the petition was to be brought before the court. An order from the February 17 permanency hearing showed that Ralph was not present on that date. The order also showed that the case was continued to April 14, 2009, for a permanency hearing.

On February 20, the State filed an affidavit for service by publication, stating that Patricia could not be located and could not be served personally or by certified mail with the termination petition. The State attempted to serve a summons on Patricia for the April 14 court date, but it was returned unserved with the explanation that Patricia's mother had told the deputy that Patricia had moved to Chicago and was in "rehab." No mention was made of an attempt to serve a summons on Ralph or of an inability to locate him. The record contains nothing regarding service on Ralph. A notice, which stated that the case was set for April 14, was subsequently published in the Daily Herald newspaper on March 3, 10, and 17, 2009.

On February 24, 2009, the office of the public defender filed a motion to withdraw as counsel for Patricia and set the case for April 14. On that date, Patricia appeared in court; however, Ralph did not appear. The following colloquy took place:

"THE COURT: Now, where do we stand vis-a-vis natural father, Mr. Ogan [assistant State's Attorney]?

MR. OGAN: Your Honor, I believe we have service on him. I'm looking for it, though. I know we've attempted service, your Honor. I'm just looking for proof of that.

THE COURT: Okay.

MR. OGAN: I have found proof, obviously, of the natural mother's service. If not--I don't see a receipt, your Honor, although I do see numerous--

THE COURT: Okay. There has been publication concerning the petition to terminate parental rights.

MR. OGAN: I ask, then, that the natural father be defaulted.

THE COURT: Okay.

MR. OGAN: And that we set *** May 12th as a prove-up date for him.

THE COURT: Okay. So the natural father on the State's motion will be defaulted, he having failed to appear, answer or otherwise plead to the petition to terminate parental rights. We will set it for prove-up as to natural mother on that same date."

On May 12, 2009, Ralph appeared with an attorney, Diana Vizcaino, who filed her appearance that day. Ralph was granted time to file a motion to vacate the default judgment, and the case was continued to June 2. Ralph filed a motion to vacate pursuant to section 2--1301(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2--1301(e) (West 2008)). The State subsequently moved to strike Ralph's motion, arguing that it was not timely filed. On October 16, Ralph was granted leave to file a petition to vacate under section 2--1401 of the Code (735 ILCS 5/2--1401 (West 2008)). ...


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