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In re Jamari R.

Court of Appeals of Illinois, First District, Fourth Division

September 30, 2016

In re Jamari R., a Minor
Keith B., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County. 07 JA 386 Honorable Demetrios G. Kottaras, Judge Presiding.

          JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Burke concurred in the judgment and opinion.


          HOWSE JUSTICE.

         ¶ 1 Following the trial court's entry of an order terminating the parental rights of the father of Jamari R., the father appealed that decision arguing that he had not been properly served prior to appearing in the proceedings where the State's service by publication listed the incorrect last name of Jamari and his mother and where the Department of Children and Family Services (DCFS) and the State did not conduct a diligent inquiry in locating him. For the reasons that follow, we reverse the trial court's order terminating the father's parental rights and remand this matter to the trial court for further proceedings consistent with this order.

         ¶ 2 BACKGROUND

         ¶ 3 Jamari was born on May 21, 2007. On June 1, 2007, the State filed a petition for adjudication of wardship of Jamari. In that petition, the State incorrectly spelled the minor's name as "Jabari [Spelling 1], "[1] and incorrectly spelled the mother's name as "Shavelle [Spelling 1]" when it should have been spelled "Shavelle [Spelling 2]." The petition further stated that the father was unknown.

         ¶ 4 On June 1, 2007, the court conducted a temporary custody hearing. At that hearing, the mother's attorney informed the court and the parties that the mother's last name was "[Spelling 2]" not "[Spelling 1]." The attorney also informed the court and the parties that the child's last name was the same as the mother's last name, "[Spelling 2]." Later on during that hearing, the mother corrected the parties and the court that her son's first name was "Jamari" and not "Jabari." The parties, including the State, the mother and the guardian ad litem (GAL), entered into a stipulation at that hearing stating that Jamari's father's identity and whereabouts were unknown. The stipulation also indicated that Jamari and a child that the mother gave birth to two years prior to Jamari had both been born drug exposed, and the mother had seven other minors who were or are in DCFS custody with findings of abuse or neglect. This stipulation was signed by the mother and her attorney.

         ¶ 5 On the same day, the court entered an order amending the petition for adjudication of wardship to show the correct spelling of Jamari's first and last names.

         ¶ 6 On June 14, 2007, an affidavit for service by publication was filed stating that the fathers of Jamari and his sibling were still unknown, so they could not be found. The caption of this affidavit had the incorrect spelling of Jamari's first and last names. On August 10, 2007, notice of the pending proceedings was printed in the Chicago Sun-Times; Jamari's name was misspelled as "Jabari [Spelling 1]" and his mother's name was misspelled as "Shavelle [Spelling 1]." This notice indicated that the adjudication hearing was set for August 24, 2007, or as soon thereafter as the case could be heard.

         ¶ 7 On August 24, 2007, the court held a status hearing on service by publication. The caseworker for the minor, Ms. Fries, stated that no one had come forth claiming to be the father. Fries also stated that she had done a Putative Father Registry search on August 17, 2014, but there were no names of fathers in the results she received on August 21, 2014. Fries stated that when she had discussed the father with the mother, "she tends to tell me unknown."

         ¶ 8 When the State requested a default on the unknown fathers, one of the attorneys pointed out that there was a discrepancy in the minor's name, that the correct spelling was "Jamari [Spelling 2]" but the publication wrote "Jabari [Spelling 1]." The State then asked for the correct spelling of the minor's name, was informed that it was "Jamari [Spelling 2], " and the court thereafter allowed the State leave to republish the notice.

         ¶ 9 A second affidavit for service by publication was filed on August 29, 2007. This affidavit included the names "Jabari" and "Jamari" in the caption, with the correct spelling of "Jamari" as an "AKA." Jamari's last name and his mother's last name were both spelled as "[Spelling 1]." Publication with those spellings ran in the Chicago Sun-Times on October 19, 2007.

         ¶ 10 At the adjudication hearing on November 2, 2007, Fries testified that she had done a Putative Father Registry search in August of that year under Jamari's name, and there were no results. An affidavit of her due diligence concerning the Putative Father Registry search was admitted into evidence without objection. Jamari's first and last names were spelled correctly in the caption of the affidavit. On the State's motion, the unknown father of Jamari was defaulted. The adjudication hearing then proceeded by stipulation. It was stipulated that Jamari's father's identity and whereabouts were unknown, Jamari had been born exposed to illegal drugs, and the mother admitted to using illegal substances while pregnant. Based on the stipulated record, the court found that Jamari had been neglected due to his exposure to a controlled substance and due to an injurious environment. The court also found that Jamari had been abused due to a substantial risk of physical injury based on the mother's history of noncompliance with services, lack of prenatal care and prior findings of neglect and abuse as relating to other siblings.

         ¶ 11 Dispositional and permanency hearings took place on March 20, 2008, and September 18, 2008. On September 18, 2008, the court entered an order finding the mother and unknown father of Jamari were unable to care for him. The court made Jamari a ward of the court and placed him in the guardianship of the DCFS Guardianship Administrator.

         ¶ 12 After several hearings on the parents' progress towards permanency goals, the court entered a permanency goal of termination of parental rights (TPR) for Jamari, and this permanency goal was entered numerous times thereafter.

         ¶ 13 On February 19, 2014, the State filed a "Supplemental Petition for the Appointment of a Guardian with the Right to Consent to Adoption" (TPR petition). The caption for this petition named Jamari as "Jabari [Spelling 1] AKA Jamari [Spelling 1] AKA Jamari Jamiel [Spelling 2]." The mother's name was listed as "Shavelle [Spelling 2], " and the father was listed as unknown. The petition alleged that it was in Jamari's best interest for his parents' parental rights to be terminated because he has been with his foster parents since December 13, 2012, and they desired to adopt him.

         ¶ 14 On April 4, 2014, a hearing on the TPR petition was held. At this hearing, the mother testified in response to the State's questioning that there was no one she wanted to name as Jamari's father. The court then inquired further, and the mother stated that the father could be James S. or "probably" Keith B. The mother then stated that Jamari's father could not be anyone else: "Nobody else. It's going to be one or the other." The court then granted the State leave to serve Keith B. The permanency hearing continued and the court recommended a goal of termination of parental rights, noting that Jamari was in an appropriate pre-adoptive home that could meet his long-term needs.

         ¶ 15 On June 19, 2014, the court entered an order for parentage testing on Keith B., and an attorney was appointed on his behalf.

         ¶ 16 On September 24, 2014, the court entered a finding that Keith B. was Jamari's father based on DNA testing. As a result, the court ordered that the TPR petition be amended to reflect Keith B. as the father.

         ¶ 17 On April 2, 2015, the State filed "Requests for Admissions of Facts" directed to the mother requesting that she admit that in addition to her name of "Shavelle [Spelling 2], " she used several other aliases at one time or another, including an alias with the last name "[Spelling 1]." The State also requested that the mother admit that she had convictions for four felonies, one under each of her aliases dating back to 1996.

         ¶ 18 On September 18, 2015, the court granted the State's motion to amend the TPR petition to add the ground of depravity for the father of Jamari. This motion also alleged that the mother had been convicted of her fourth felony on June 29, 2015.

         ¶ 19 On October 8, 2015, the first hearing on the TPR petition was held. The mother was not present at this hearing, but the father was present. The father testified that he was currently housed at Danville Correctional Center. He had been incarcerated on May 10, 2013, sentenced on September 21, 2013, and was sentenced to six years at 85%. At this hearing, the State requested that the court take judicial notice of the adjudication order for Jamari entered on November 2, 2007, and the dispositional order entered on September 18, 2008. Further, the State's requests to admit to the mother were deemed admitted as she did not file a response.

         ¶ 20 Rakaia Johnson, Jamari's caseworker from March 2008 to August 2012, testified at the hearing, in relevant part, that she could not do a diligent search for Jamari's father because she did not know his name. She did perform Putative Father Registry searches, though, every six months, and no father ever popped up. No one claiming to be Jamari's father ever came forward, and Jamari's father was still unknown to her when she ceased being Jamari's caseworker in March 2012. Johnson stated that while she was assigned to the case, the mother was in jail on several occasions, and she had a difficult time keeping up with the mother because she used different aliases. With respect to the father, she testified that he had not made any progress towards reunifying with Jamari in four different nine-month periods beginning on August 13, 2009, and ending on August 16, 2012.

         ¶ 21 Jennifer Costello, Jamari's caseworker from August 2013 to September 2015, testified at the hearing, in relevant part, that when she was assigned the case, Jamari's father was unknown. She could not do a diligent search for the father because his name was unknown and nothing came up when she conducted a Putative Father Registry search. When Costello was assigned the case, the mother was incarcerated for retail ...

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