The opinion of the court was delivered by: Chief Justice Kilbride
CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justice Freeman.
Justice Theis specially concurred, with opinion.
¶ 1 This appeal asks us to determine whether the State performed a "diligent inquiry" to ascertain respondent's current and last known address, as required for service by publication under section 2-16(2) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/2-16(2) (West 2006)), and necessary for the trial court to obtain personal jurisdiction in this case. The circuit court of McLean County terminated respondent's parental rights to his two minor children, Dar. C. and Das. C. Respondent later filed a postjudgment motion for relief under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), arguing that the State failed to perform a diligent inquiry to ascertain his location when it served him notice by publication. Respondent therefore argued that the State's service by publication was ineffective to confer personal jurisdiction on the trial court.
¶ 2 The trial court denied respondent's petition, and the appellate court affirmed. No. 4-10-0267 (unpublished order under Supreme Court Rule 23). For the following reasons, we reverse the appellate court's judgment, vacate the trial court's order terminating respondent's parental rights, and remand for further proceedings.
¶ 4 The complicated series of events underlying this case require us to detail extensively its development, focusing on the State's attempts to locate respondent. To provide context, we also summarize relevant background information.
¶ 5 On August 15, 2006, the Illinois Department of Children and
Family Services received a hotline call reporting that Tonya Findley's four minor daughters were neglected and periodically left unsupervised. The reporter claimed that Findley was using drugs. Ultimately, the Department removed the children from Findley and placed them in temporary protective custody.
¶ 6 On September 7, 2006, McLean County Assistant State's
Attorney Madeline McLauchlan filed a petition for adjudication of wardship. The petition identified respondent as the putative father of two of Findley's four daughters, Dar. C., born October 24, 1996, and Das. C., born May 13, 1998.*fn1 The petition alleged neglect against Findley but made no allegations against respondent. The petition listed respondent's address as Sheridan Correctional Center.
¶ 7 On September 8, 2006, the trial court held a shelter care hearing.
The shelter care report, filed by Department investigator Shannon Stanfill, listed respondent's address as "Street address unknown, Chicago, Illinois." Following the hearing, the trial court entered an agreed temporary custody order.
¶ 8 On September 11, 2006, Assistant State's Attorney McLauchlan filed an affidavit for service by publication on respondent, averring that respondent could not be found within Illinois and could therefore not be served in person or by certified mail. McLauchlan further averred that respondent's address "cannot be ascertained upon diligent inquiry" and his last known address was "unknown."
¶ 9 On September 19, 2006, the clerk's office issued a notice of publication to respondent and "any known or unknown fathers" of the children. The notice was published the same day and provided, inter alia, that a juvenile court proceeding had commenced and a hearing would be held on October 24.
¶ 10 On October 11, 2006, the Department's Diligent Search
Service Center issued a "certification of comprehensive diligent search." The certification indicated that a computer search of 14 databases had been performed. Although respondent's first name is spelled "Daryl," the search was conducted with his first name spelled as "Darryl." The computer search located one potential address in Peoria, Illinois. Two letters mailed to that address were returned.
¶ 11 On October 24, 2006, the trial court entered an adjudicatory order finding, in pertinent part, that it had personal jurisdiction over respondent through service by publication and that he had defaulted by failing to appear after service by publication. The court adjudicated the minors neglected based on Findley's admission of substance abuse.
¶ 12 On December 18, 2006, Department caseworker Nancy Murrah filed a service plan and dispositional report. The report indicated that respondent's location was unknown and a diligent search on October 11 revealed one possible address. The report stated that two letters mailed to that address were returned "attempted--not known." The report further stated that the diligent search would be "periodically updated."
¶ 13 Following a hearing on December 20, 2006, the trial court entered a dispositional order finding that Findley and respondent were unfit parents. The order noted that respondent's "whereabouts [were] unknown." The court entered a permanency goal of returning the children home within 12 months, made them wards of the court, and gave custody to the Department's Guardianship Administrator with the right to place the children.
¶ 14 That same day, Murrah requested a second computerized diligent search from the Center. The search revealed a potential address of 11435 South Union Street in Chicago, Illinois. A letter addressed to respondent was mailed to that address, indicating that respondent was the potential missing parent of two children in the Department's custody in McLean County, Illinois. The letter provided Murrah's telephone number and requested further communication from respondent. The letter was not returned, but Murrah received no response from respondent.
¶ 15 In May 2007, Murrah filed a permanency report and service plan, indicating that Dar. C. and Das. C. had been placed in relative foster care and were adjusting very well. Respondent's address was listed as "unknown." Findley's progress was unsatisfactory because she continued to use illegal drugs and alcohol, was noncompliant with her prescribed medication, and lacked stable housing. Murrah recommended a permanency goal of return home within 12 months and a continued finding of parental unfitness. The Children's Foundation, a private social-services organization, was assuming responsibility of the minors' case.
¶ 16 On July 16, 2007, Jeannie Higdon, a caseworker at the Children's
Foundation, filed a permanency report. Respondent's address was listed as "unknown." Higdon requested another diligent search on July 6, but did not have the results of her search when she completed her report. Higdon also asked Findley about respondent, but Findley denied knowledge of respondent's location or how respondent could be contacted. Higdon indicated that Dar. C. and Das. C. were moved to a new foster home after their original foster mother requested their removal. The minors were adjusting to their new foster home but were struggling with emotional and behavioral issues. Findley was making slow progress with addressing her substance abuse and obtaining stable housing. Higdon recommended a permanency goal of returning the minors home within 12 months and a continued finding of parental unfitness.
¶ 17 At a status hearing on July 31, 2007, Assistant State's Attorney
McLauchlan informed the court that Findley's drug screen from June 2007 returned positive for cocaine. McLauchlan told the court that she believed there was no reason to continue the permanency goal of returning the children home, and explained that she would file a petition to terminate parental rights "unless there is something dramatic that convinces me to do something otherwise."
¶ 18 On September 27, 2007, Laura Seidelman, a social worker with the Children's Foundation, filed a service plan. Seidelman recommended that the permanency goal be changed to "substitute care pending court determination on termination of parental rights." Seidelman found that Findley's progress was unsatisfactory because she continued to use alcohol, cocaine, and marijuana. Seidelman also filed a diligent search report for respondent and included the results of Higdon's search from July 2007. The searches revealed several potential addresses for respondent in Chicago, including 5018 Blackstone Avenue, apartment 302, 11422 Union Avenue, and 11435 Union Avenue. The search also located a potential address at 702 Sutton Court in Lake Villa, Illinois. Letters were sent to all of those addresses explaining the minors' situation and requesting a response. No response was received. The record does not indicate whether any letters were returned.
¶ 19 On October 17, 2007, Seidelman filed a permanency report.
Seidelman reported, inter alia, that respondent made a telephone call to Findley during an October 10 supervised visitation with Dar. C. and Das. C. The girls reportedly "became very excited and seemed shocked" that respondent called. When Seidelman told Findley that respondent was required to report to the Department before contacting his daughters, Findley became agitated and swore at Seidelman. Findley's behavior upset her daughters, and Seidelman instructed Findley to end the visitation and telephone call. Seidelman did not speak to the individual on the telephone and could not confirm that it was respondent.
¶ 20 When asked, Findley denied knowing respondent's telephone number. Findley explained that respondent's sister had placed the telephone call and Findley did not know her telephone number. Findley told Seidelman that respondent was "a paranoid schizophrenic" and would not talk to Seidelman.
¶ 21 On October 19, 2007, Assistant State's Attorney McLauchlan filed a petition to terminate Findley and respondent's parental rights. The petition alleged that respondent had abandoned his two daughters, failed to maintain a reasonable degree of interest, concern, or responsibility as to the minors' welfare, and deserted the minors for more than three preceding months.
¶ 22 On October 31, 2007, the trial court held a permanency hearing.
At the hearing, Assistant State's Attorney McLauchlan asked that the children's permanency goal be changed to substitute care pending determination of the termination petition, explaining that "[t]here is just really a whole lot of nothing going on as far as [Findley] is concerned." McLauchlan added that Findley was apparently able to contact respondent but chose not to provide them with any further information about respondent's location. After the hearing, the court changed the permanency goal to substitute care pending determination of parental rights and found that Findley and respondent remained unfit.
¶ 23 On November 2, 2007, Assistant State's Attorney McLauchlan filed an affidavit for service by publication for respondent on the termination petition, attesting that respondent could not be found within Illinois, his address could not be determined upon diligent inquiry, and his last known address was "unknown."
¶ 24 In the meantime, on November 6, 2007, another assistant State's
Attorney from the McLean County State's Attorney's office filed a complaint in a separate action (No. 07-F-401 (McLean County)) seeking child support from respondent. The complaint noted that respondent had voluntarily acknowledged his paternity of Dar. C. under section 12 of the Vital Records Act (410 ILCS 535/12 (West 2006)). The complaint included a case detail report from the Illinois Department of Public Aid, listing respondent's date of birth, Social Security number, and physical description. The report identified respondent's mailing address as 702 Sutton Court, Lake Villa, Illinois. Seidelman, the minors' caseworker in the termination case, signed and verified the complaint, dated October 9.
¶ 25 On November 8, 2007, a summons in the child support case was issued for respondent at the Lake Villa address, but the sheriff returned it unserved. The sheriff noted that an unidentified relative claimed that respondent did not live at the Lake Villa address. The unidentified relative was "uncooperative" and refused to provide the sheriff any other information about respondent.
¶ 26 On November 15, 2007, the court clerk published service to respondent on the petition to terminate his parental rights.
¶ 27 On December 7, 2007, Assistant State's Attorney Dean
Engelbrecht, pursuing the child support case, mailed respondent a letter proposing a child support order, making Illinois Foster Care the obligee of dependent payments on behalf of the minors from respondent's Social Security disability income. The letter was addressed to respondent at an address in Grayslake, Illinois, in care of a Lake County health department treatment center. The letter referenced a December 5, 2007, telephone conversation between respondent, Assistant State's Attorney Engelbrecht, and respondent's unnamed caseworker.
¶ 28 On December 19, 2007, the trial court in the termination proceeding entered an order finding respondent defaulted by publication and unfit on all three grounds alleged in the petition. The court also scheduled a best interest hearing for March 2008.
¶ 29 On February 22, 2008, the trial court entered an order terminating
Findley's parental rights after she executed a voluntary surrender of those rights.
¶ 30 On March 7, 2008, the trial court held a best interests hearing for respondent's two minor children. The State's only witness was Seidelman, who testified that respondent never came forward to claim paternity of the two minors. Seidelman performed a diligent search for respondent. Seidelman located a number of addresses for respondent and mailed letters to those addresses but never received a response from respondent. When the child support program provided Seidelman with a Lake Villa address for respondent, she mailed a letter to that address, but there was no response. The record does not indicate whether that letter was returned.
¶ 31 Seidelman explained that respondent received Social Security income, and the Department received some of that income for the children.*fn2 Seidelman reported that none of respondent's relatives had made any attempt to communicate with the minors. Seidelman recommended terminating respondent's parental rights to allow his daughters to be adopted.
¶ 32 After Seidelman recommended terminating respondent's parental rights, the court asked whether respondent was ever involved in the minors' lives. Seidelman explained that there was "some involvement" when the girls were younger but when Findley moved them to Bloomington respondent was no longer involved "other than occasional phone contact." Seidelman stated that Dar. C., as the older child, retained some memory of respondent. According to Seidelman, Dar. C. claimed to talk occasionally to respondent on the telephone and was upset when Findley would not let Dar. C. talk to respondent at the supervised visit in October 2007.
¶ 33 Following Seidelman's testimony, Assistant State's Attorney
McLauchlan argued that it was in the minors' best interests to terminate respondent's parental rights because respondent never came forward in the case and Findley had already surrendered her rights.
McLauchlan noted that if respondent's rights were not terminated "these children will languish in foster case."
¶ 34 Brian Goldrick, the guardian ad litem for the minors, agreed, noting that the minors' case had been open for 18 months and respondent had never become involved. Goldrick argued that respondent is "probably aware that his children are in care, and he's done nothing to provide for these children over the last 18 months."
¶ 35 Following the hearing, the trial court commented that Seidelman properly conducted a diligent search and mailed letters to respondent's potential addresses. The court stated that respondent's failure to remain involved with the minors after they moved to Bloomington "probably" reflected respondent's lack of interest and also noted that respondent was absent for the entire 18-month custody period. The court then entered an order terminating respondent's parental rights. The court found that respondent was defaulted and found unfit at the December 19 hearing and that the best interests of Dar. C. and Das. C. required appointment of a guardian with the right to consent to adoption. The court also changed the minors' permanency goal to adoption.
¶ 36 In July 2008, Angela DeVore, Seidelman's supervisor, filed a permanency report. The report explained, inter alia, that the minors' foster parents preferred subsidized guardianship over adoption.
¶ 37 In August 2008, respondent filed a pro se motion seeking to vacate the trial court's order terminating his parental rights. Respondent asserted that he did not learn his parental rights had been terminated until July 2008 when he contacted the Department to request visitation with his daughters. Respondent stated that he was disabled and provided financial support to his two daughters through his Social Security disability income. Respondent denied that he was provided proper notice and argued that "he was disenfranchised and denied his due process right[s]" by the Department's service by publication. Respondent provided two mailing addresses, one in Park City, Illinois, and the second in Lake Villa, Illinois. The trial court struck respondent's pro se motion as untimely and not within the pleading requirements of section 2-1401 of the Code. The court also noted that respondent was never declared the minors' father and had not submitted himself to a paternity test.
¶ 38 In September 2008, respondent, through his attorney, filed a section 2-1401 motion seeking to vacate the trial court's termination order. Respondent argued that the Department's attempts to locate him in the underlying termination proceedings were not sufficiently diligent under section 2-16(2) of the Act. Respondent further asserted that the McLean County State's Attorney's office acquired his mailing address in the separate child support action before the trial court entered the termination order. Thus, respondent argued that service by publication in the termination proceeding was improper because the State knew his actual ...