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In Re Haley D. v. Ralph L

December 1, 2011


The opinion of the court was delivered by: Justice Karmeier

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, and Burke concurred in the judgment and opinion.

Justice Theis specially concurred, with opinion, joined by Justice Garman.


¶ 1 The central issue in this case is whether the circuit court of Du Page County erred when it denied Ralph L.'s motion to set aside a finding that he had defaulted on a petition by the State to terminate his parental rights to his daughter, Haley D., and entered a default judgment terminating Ralph's parental rights over the child. The appellate court held that the proceedings did not comport with due process requirements because the State had made no attempt to serve Ralph with the termination petition and the court ruled against him on that petition despite the absence of proof that an attempt at service had been made. Condemning the entry of default judgment against Ralph as "unfair, unjust and unconscionable," the appellate court reversed the circuit court's order denying Ralph's motion to set aside the default, vacated the default judgment, and remanded the cause to the circuit court for further proceedings. 403 Ill. App. 3d 370. One justice dissented. We subsequently granted the State's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). We also allowed the Cook County public guardian to file a friend of the court brief supporting the State's position. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). We now affirm the appellate court's judgment, though for reasons different from those on which the appellate court relied.


¶ 3 Haley D. is the youngest of six children born to Ralph L. and Patricia D.*fn1 At the time of her birth in April of 2007, Haley exhibited symptoms of drug withdrawal and was discovered to have been exposed to cocaine in utero. A drug test administered to her mother, Patricia D., confirmed the presence of cocaine in Patricia's system.

¶ 4 Because she was undergoing withdrawal, Haley was kept in the hospital for six days. When she was set to be released, the State took her into protective custody and placed her in a foster home. It also filed a petition in the circuit court of Du Page County pursuant to section 2-13 of the Juvenile Court Act of 1987 (705 ILCS 405/2-13 (West 2008)) alleging that she was a neglected minor and asking that she be made a ward of the court. The basis for the charge of neglect was that, at the time of her birth, her blood, urine or meconium contained a controlled substance (cocaine) which was not the result of medical treatment administered to her or her mother. See 705 ILCS 405/2-3(1)(c) (West 2008).

¶ 5 When it filed its petition, the State did not ask the court to terminate the parental rights of either Ralph or Patricia. Had termination of parental rights been its objective, the State would have been required to say so "clearly and obviously" in its prayer for relief. 705 ILCS 405/2-13(4) (West 2008). No such declaration was made. Instead, the State elected to make a general prayer for relief without specifying any proposed disposition following adjudication of wardship. See 705 ILCS 405/2-13(3) (West 2008).

¶ 6 Patricia and Ralph did not live together. Patricia was personally served with the petition. Abode service was made on Ralph by leaving the summons and a copy of the petition with his mother at the house they shared. There is no dispute that service on both Patricia and Ralph complied with the requirements of section 2-15 of the Juvenile Court Act of 1987 (705 ILCS 405/2-15 (West 2008)), which governed service of summons with respect to the State's petition.

¶ 7 Once service was accomplished and separate public defenders were appointed to represent Ralph and Patricia, the court held an adjudicatory hearing. Following that hearing, the court entered a finding that Haley was neglected within the meaning of section 2-3(1)(c) of the Juvenile Court Act (705 ILCS 405/2-3(1)(c) (West 2006)) as the State had alleged. The order containing the court's finding was filed July 31, 2007.*fn2

¶ 8 A dispositional hearing was conducted by the court two weeks later, on August 14, 2007. See 705 ILCS 405/2-22 (West 2008). Based on the evidence presented at that hearing, the circuit court entered an order making Haley a ward of the court and setting as the permanency goal the return of Haley to her parents within 12 months. The court also approved a service plan formulated by the Department of Children and Family Services (DCFS) and scheduled a permanency hearing for February 12, 2008. That date was subsequently reset for February 19, 2008.

¶ 9 By the time of the February 19, 2008, hearing, Patricia's whereabouts were unknown and the court determined that she had not made substantial progress toward having Haley return home. Although reports submitted to the court indicated that Ralph had not been complying with the service plan which had been established for him and a recommendation had been made that the permanency goal be changed, the court rejected that recommendation. Based on the evidence presented to it, the court concluded that Ralph had been making substantial progress toward Haley's return home and continued to set as the permanency goal Haley's return home within 12 months.

¶ 10 An assessment prepared by DCFS in August of 2008 stated that Ralph's progress was "less than ideal" because he was tardy for or had cancelled visits with Haley, but also noted that he had participated in "parent coaching" throughout the previous quarter and made significant improvements. According to the assessment, Ralph's family was stable "due to good money management by [Ralph, who] has continued with the same employer for twelve years," and the family home appeared "clean, safe and appropriate for the children living there." Ralph was also described as "invested in the lives of his 5 oldest children and provides support and nuturance [sic] to them."

¶ 11 A report prepared by the parenting coach to whom Ralph had been referred stated that during the period between June 16, 2008, and August 15, 2008, Ralph had attended 9 of 13 scheduled parent coaching sessions. The report stated that he "continues to be prepared and eager for the sessions to occur," but occasionally arrives late. At the time the report was drafted, Ralph had not yet developed "a clear understanding of all the techniques that have been introduced to him," and the report complained of inconsistencies with the coaching sessions. At the same time, however, the report noted that "[h]e has been very cooperative, open, willing to grow and try new techniques to become a better parent" and that "[r]ecently, since Haley and [he] have grown comfortable with one another, he has started working with this coach to further develop his skills by including the other children in the sessions."

¶ 12 According to DCFS, there were only two areas in which Ralph's progress was deemed unsatisfactory. First, due to prior incidents involving Patricia, he was supposed to complete a domestic violence assessment and undergo a mental health assessment. Second, because of a history of drug-related problems in the household, he was also supposed to complete a substance abuse evaluation and submit to random drug tests. The reports show that he was not in compliance with those requirements. He had also been remiss in obtaining developmental evaluations from the local school district for two of his other children. Overall, however, DCFS reported that Ralph's progress was satisfactory and that the previously established outcome should be maintained.

¶ 13 The Evangelical Child & Family Agency (ECFA), which had become involved in the case under DCFS's auspices, also made a report around this time. In detailing the family's status and history, it noted that Ralph had filed for divorce from Patricia and that, according to Ralph, the divorce was now finalized. The report contained observations consistent with the other reports filed with the court, including the need for Ralph to comply with the random drug screening requirement in order to confirm that he was abstaining from substance abuse, as he claimed; the desirability of his obtaining a domestic violence assessment and participating in mental health counseling; and the need for him to improve his parenting skills and be more consistent in attending his scheduled visits with Haley. It did not, however, recommend a change in the permanency goal. It opined that return of Haley to the home within 12 months should remain the goal "in order to allow Ralph L[.] and/or Patricia L[.] adequate time to complete reunification services."

¶ 14 The record is clear that, by the end of August 2008, Patricia had no involvement with Haley and was making no effort to comply with the permanency goal set by the court. Accordingly, in an interim order entered in September of 2008, the court found that Patricia was no longer making substantial progress toward Haley's return home. Notwithstanding the positive developments contained in the reports just described, the court made the same determination with respect to Ralph. It did not, however, alter the permanency goal, which remained for Haley to return home within 12 months.

¶ 15 The following month, the foster parents who had been caring for Haley sought leave to intervene in the proceedings pursuant to section 1-5(2)(d) of the Juvenile Court Act (705 ILCS 405/1-5(2)(d) (West 2006)). In addition, ECFA filed a report with the court which indicated that Ralph had failed to follow through with a domestic violence program and had still not cooperated with drug screens. Based on these two problems, the report opined that Ralph had "not made it a priority for Hailey [sic] to be returned to his care, as demonstrated by his lack of participation in services," and recommended that the permanency goal be changed to substitute care pending termination of parental rights.

¶ 16 A hearing was convened by the court on October 14, 2008, at which Ralph was present. He was not represented by counsel. The previous month he had indicated to the court that he wished to obtain private counsel to replace his appointed public defender. The court promptly granted the public defender leave to withdraw from the case, but Ralph had not yet found replacement counsel by the time of this hearing.

¶ 17 Although Ralph did not dispute that he had not followed through with the domestic violence program or appeared for the drug screenings as set forth in ECFA's report, he objected to that agency's recommendation that the permanency goal be substitute care until a determination could be made as to whether his parental rights should be terminated. Speaking on his own behalf, Ralph argued to the court that his inability to comply with the requirements of the service plan, including requirements that he undergo random drug tests, was due to the fact that he was extremely busy at work and had other children at home for whose care he was responsible.

¶ 18 After listening to Ralph, the court advised him in open court that it was granting leave to the State to file a petition to terminate his parental rights and that he would risk termination of his parental rights if he failed to comply with the terms of the service plan and correct the conditions which had necessitated Haley's placement with foster parents. The court then entered a written order allowing the foster parents to intervene in the proceedings, changing the permanency goal to substitute care pending termination of parental rights, and granting the State leave to file a petition to terminate those parental rights.

¶ 19 Approximately four months later, on February 5, 2009, the State filed a formal petition to terminate Ralph's and Patricia's parental rights and to grant Haley's guardian the power to consent to her adoption. Such proceedings are governed by section 2-29 of the Juvenile Court Act (705 ILCS 405/2-29 (West 2008)). Petitions brought under section 2-29 must contain an allegation that the parent is an "unfit person" as defined by section 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2008)) and include the specific statutory grounds on which the charge of unfitness is based. In re Gwynne P., 215 Ill. 2d 340, 349 (2005). Numerous grounds were alleged by the State with respect to Patricia. As for Ralph, the State averred that he was unfit for just two reasons: (1) because he had "failed to make reasonable efforts to correct the conditions that were the basis for the removal of the child from the parent within nine (9) months after an adjudication of NEGLECTED MINOR under the Juvenile Court Act of 1987 [see 705 ILCS 405/2-3 (West 2008)] (750 ILCS 50/1(D)(m)) from 8-14-07 through 5-14-08," and (2) because he had failed "to make reasonable progress toward the return of the child to the parent within 9 months after [the child had been adjudicated a] NEGLECTED MINOR, under the Juvenile Court Act of 1987 [see 705 ILCS 405/2-3 (West 2008)] (750 ILCS 50/1(D)(m)) from 8-14-07 through 5-14-08."

¶ 20 When the State filed its initial petition under section 2-13 of the Juvenile Court Act of 1987 (705 ILCS 405/2-13 (West 2008)) alleging that Haley was a neglected minor and asking that she be made a ward of the court, the summons served on Patricia and Ralph had contained a notice, required by section 2-15(3) of the Juvenile Court Act (705 ILCS 405/2--15(3) (West 2008)), that the "parties will not be entitled to receive further written notices [or] publication *** notices of proceedings in this case, including the filing of an amended petition or a motion to terminate parental rights, except as required by Supreme Court Rule 11."

¶ 21 Supreme Court Rule 11 addresses the "Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts." Ill. S. Ct. R. 11 (eff. Dec. 29, 2009). Paragraph (a) of Rule 11 identifies on whom service must be made (a party's attorney of record, otherwise, the party); paragraph (b) identifies methods of service (personal delivery, use of the postal service or a third-party commercial carrier, or via facsimile transmission); and paragraph (c) sets forth service requirements where a case involves multiple parties or attorneys. Ill. S. Ct. R. 11 (eff. Dec. 29, 2009).

¶ 22 When the State subsequently filed its formal petition to terminate Ralph's and Patricia's parental rights and to grant Haley's guardian the power to consent to her adoption, it did not comply with the provisions of Rule 11. The petition was not delivered to any of the persons identified in the rule by any of the methods the rule permits. In addition, the State filed nothing to indicate when it intended to seek a hearing on the petition.

¶ 23 On February 17, 2009, the court conducted another hearing on the parents' progress toward meeting the permanency goal. Various attorneys were present, including Patricia's attorney. Ralph was not in attendance and had not yet retained a new attorney to represent him.

¶ 24 At the conclusion of that hearing, the court entered a written order changing the permanency goal to termination. The order also continued the case to April 14, 2009. The order specified that this was to be a permanency hearing in connection with the underlying neglect proceeding. There was no indication that the petition to terminate and to authorize the guardian to consent to adoption would also be taken up. To the contrary, the box on the order form which referenced the termination petition was left unchecked.

¶ 25 Following entry of the February 17 order, the State made its first and only attempt to personally serve Patricia with the petition to terminate and to authorize the guardian to consent to adoption. The summons, dated February 20, set the hearing date on the petition for April 14, the same day as the previously scheduled permanency hearing. The record shows that the paperwork was received by the sheriff on February 26 and that a sheriff's deputy attempted to serve Patricia with the summons and petition to terminate on the morning of February 28. The attempt was unsuccessful, and the summons was returned unserved with the explanation that Patricia's mother had told the deputy that Patricia had moved to Chicago and was in "rehab."

¶ 26 In the meantime, Patricia's appointed attorney moved for leave to withdraw from the case. The basis for that motion was that Patricia had never responded to any of the attorney's communications, repeatedly failed to appear at court hearings, and otherwise refused to cooperate with counsel, thus preventing the attorney from properly representing her.

¶ 27 After the State's attempt to serve Patricia personally failed, it resorted to serving her by publication. Specifically, it arranged for notice of the April 14 setting on the petition to terminate and to authorize the guardian to consent to adoption to be published in the Daily Herald newspaper on March 3, 10, and 17, 2009. Pursuant to section 2-16(2) of the Juvenile Court Act (705 ILCS 405/2-16(2) (West 2008)), the State supported its use of service by publication with an affidavit, which it filed with the court, addressing the steps which had been taken to locate Patricia and the reasons why process could not be served on her either personally or by mail.*fn3

¶ 28 Patricia was the only respondent identified in the State's affidavit.

No mention was made of Ralph, directly or indirectly. There was also no evidence in the record that the State ever filed an affidavit specifically directed to Ralph pursuant to section 2-16 of the Juvenile Court Act (705 ILCS 405/2-16 (West 2008)). Such an affidavit could not, in fact, have been prepared with respect to Ralph, for there was never any uncertainty as to his place of residence, nor was there any evidence of any other legally cognizable impediment to serving him personally. Indeed, there is no evidence that personal service on Ralph was even attempted.

¶ 29 The April 14 hearing proceeded as scheduled. Because Patricia appeared, her attorney sought and was granted leave to withdraw her motion to withdraw from the case. At counsel's request, the court gave Patricia additional time, to May 12, to answer the State's petition to terminate. With respect to Ralph, matters proceeded differently. When the court observed that Ralph was not present, he asked the assistant State's Attorney where the case stood "vis-a-vis the natural father." The assistant State's Attorney replied:

"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.

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--[.]"

¶ 30 The reason the assistant State's Attorney could find no documentation in the record regarding service on Ralph is that, as we have just indicated, there was none. At this juncture, however, the court pointed out that "[t]here has been publication concerning the petition to terminate parental rights." The assistant State's Attorney responded by asking that Ralph "be defaulted" and that the "prove up" of the default be set for hearing on the same date, four weeks hence, when Patricia's answer was due on the petition for termination and for authorization for the guardian to consent to adoption. The request by the assistant State's Attorney was granted. The same day, April 14, 2009, the court filed a written order noting that "natural father failed to appear and is defaulted" and continuing the case until May 12 "for answer and setting."

ΒΆ 31 In relying on the service by publication regarding Patricia as being sufficient to achieve service on Ralph and support entry of a finding of default against him, the trial judge overlooked the affidavit requirements described above. He also failed to heed one of his circuit's own local rules. Under Eighteenth Judicial Circuit Local Rule 21.09(a) (18th Judicial Cir. Ct. R. 21.09(a) (July 16, 2008)), counsel seeking an order of default terminating a person's parental rights must file a supporting affidavit "establishing factually the action taken that demonstrates honest and well directed efforts ...

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