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In re M.W.

Court of Appeals of Illinois, First District, Fourth Division

October 31, 2019

In re M.W., a Minor
v.
Justin W., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of Cook County. No. 15 JA 742 The Honorable Patrick Murphy, Judge Presiding.

          Attorneys for Appellant: Thomas M. O'Connell, of Schaumburg, for appellant.

          Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Ashlee Cuza, Assistant State's Attorneys, of counsel), for the People.

          Charles P. Golbert, Kass A. Plain, Christopher Williams, of the Office of the Cook County Public Guardian, of Chicago, for the Minor.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE.

         ¶ 1 The instant appeal arises from orders finding that respondent, Justin W., was unfit to parent 4-year-old minor M.W. and that it was in the minor's best interest to terminate his parental rights. On appeal, respondent challenges both the finding of unfitness and the best-interest finding and claims that he was not afforded the opportunity to demonstrate his fitness to parent the minor because he was not served with notice of the proceedings until the termination proceedings were imminent. For the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Minor M.W. was born on July 17, 2015, to mother Lezli O.; the mother is not a party to the instant appeal. On July 28, 2015, the State filed a petition for adjudication of wardship, asking for the minor to be adjudicated a ward of the court; the State also filed a motion for temporary custody on the same day. In the adjudication petition, the minor's father was listed as one of three men: Robert H., Melvin W., [1] or "Justin Unknown." The adjudication petition claimed that the minor was neglected due to an injurious environment under section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2014)) and was abused due to a substantial risk of physical injury under section 2-3(2)(ii) of the Juvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 2014)). The facts underlying both claims were the same. According to the petition, the minor's mother and Melvin W. had a prior indicated report for substance misuse and substantial risk of harm. They also had two minors who were not in their care or custody and another minor who was in the temporary custody of the Department of Children and Family Services (DCFS); the mother also had two other minors in DCFS custody in Will and Du Page Counties, with findings[2] having been entered in those cases.

         ¶ 4 The petition alleged that on February 16, 2015, the minor's sibling presented with an altered mental status and was hospitalized, testing positive for illegal substances. The mother stated that Robert H. used illegal substances and that she had last used them in October 2014; Robert H. tested positive for illegal substances on March 2, 2015. The petition further alleged that Melvin W. had threatened Robert H. with a handgun and had attempted to shoot him in January 2015, with "back and forth threats of violence with a handgun" between the two. The petition also alleged that there was "an extensive on-going issue of domestic violence" between the mother and Melvin W. The mother had not cooperated with being assessed for services, but Melvin W. had been assessed for services, and recommendations were pending. The petition alleged that on July 20, 2015, a temporary guardian was appointed for the minor in Kane County, with the temporary guardian and the mother attempting to complete guardianship for the minor in order to avoid DCFS involvement. Finally, the petition alleged that there were multiple putative fathers for the minor and that paternity had not been established. ¶ 5 On the same day, based on the allegations contained in the petition for adjudication of wardship, the juvenile court found probable cause that the minor was neglected and that immediate and urgent necessity existed to support her removal from the home. The court granted temporary custody of the minor to the DCFS guardianship administrator.

         ¶ 6 On December 9, 2015, Melvin W. was ruled out as the minor's father based on a DNA test, and the juvenile court entered a finding regarding paternity to that effect. On the same day, the court entered an order ordering service by publication to "Justin Unknown."

         ¶ 7 On April 26, 2016, the State filed an affidavit for service by publication indicating that each named respondent could not be found within the state or left the state and could not be located. The State also filed a notice of publication for "Justin 'unknown last name' (Father), Unknown (Father), respondents, and to All Whom It May Concern," giving notice of the proceedings, as well as a certificate of publication showing publication in the Chicago Tribune on June 14, 2016.

         ¶ 8 On July 5, 2016, the juvenile court again entered an order ordering service by publication, this time to "Justin White."[3] On July 13, 2016, the State filed an affidavit for service by publication, as well as a notice of publication for "Justin White (Father), AKA Justin Unknown, AKA [respondent's surname], respondents, and to All Whom It May Concern." On September 16, 2016, the State also filed a certificate of publication showing publication in the Chicago Tribune on September 7, 2016.

         ¶ 9 On September 20, 2016, the State filed an affidavit of service from the sheriffs office, which provided that respondent (under his accurate name) was served by substitute service on September 15, 2016; the affidavit of service provided that the summons and petition were served on Nicholas W., [4] a 22-year old male, at a residence on South Richmond Street in Chicago.

         ¶ 10 On September 27, 2016, the juvenile court entered an order finding respondent in default for want of an appearance or answer; the order provided that there had been service "by publication & [substitute] service." The court then entered an adjudication order finding the minor neglected due to an injurious environment. On the same day, the juvenile court entered a disposition order making the minor a ward of the court and finding both parents unable for some reason other than financial circumstances alone to care for, protect, train, or discipline the minor; the order also found that respondent was unwilling to care for, protect, train, or discipline the minor. The court further found that reasonable efforts had been made to prevent or eliminate the need for removal of the minor from her home but that appropriate services aimed at family preservation and family reunification had been unsuccessful. The court placed the minor in the custody of the DCFS guardianship administrator with the right to place her.

         ¶ 11 Also on September 27, 2016, the juvenile court entered a permanency order with a goal to return home within 12 months; the initial permanency order stated that the minor was a year old and had lived in her current nonrelative foster home since July 2015. The order also provided that "[h]er father is not involved."

         ¶ 12 On March 23, 2017, the State filed an "affidavit of identification," signed by the mother on January 11, 2017, in which the mother identified respondent as the minor's biological father; the affidavit did not contain any contact information for respondent. On the same day, the State filed a final and irrevocable consent to adoption executed by the mother, in which she consented to the minor's adoption by her foster parents. A service plan also filed the same day, which was dated October 7, 2016, indicated that the mother "named putative father for [the minor] October 2015. [Respondent] has refused to be involved with the case and establish paternity. A diligent search was completed July 2016." Finally, on the same day, the juvenile court entered a permanency order modifying the permanency goal to substitute care pending a court determination on termination of parental rights. The reasons for selecting the goal were listed as that (1) the minor was a year and a half old and had been residing in her foster home since her case came into the system in July 2015, (2) the mother had signed consents for the foster parents to adopt the minor, and (3) "[t]he father is not involved."

         ¶ 13 On July 11, 2017, the State filed a supplemental petition for the appointment of a guardian with the right to consent to adoption (termination petition) with respect to the minor. In its petition, the minor's father was listed as respondent, with an address on South Richmond Street in Chicago. The petition alleged that the mother wished to be relieved of all parental rights and desired the appointment of a guardian with the right to consent to adoption, pursuant to section 2-29 of the Juvenile Court Act (705 ILCS 405/2-29 (West 2016)) and sections 8 and 10 of the Adoption Act (750 ILCS 50/8, 10 (West 2016)). With respect to respondent, the petition alleged that respondent was unfit under sections 1(D) of the Adoption Act (750 ILCS 50/1(D) (West 2016)) and 2-29 of the Juvenile Court Act (705 ILCS 405/2-29 (West 2016)).

         ¶ 14 Specifically, the petition alleged that respondent was unfit under (1) section 1(D)(a) of the Adoption Act for abandoning the minor (ground a); (2) section 1(D)(b) of the Adoption Act for failure to maintain a reasonable degree of interest, concern, or responsibility as to the minor's welfare (ground b); (3) section 1(D)(c) of the Adoption Act for deserting the minor for more than three months preceding the commencement of the termination proceedings (ground c); (4) section 1(D)(/) of the Adoption Act for failing to maintain a reasonable degree of interest, concern, or responsibility as to the minor's welfare in the first 30 days of her life (ground /); (5) section 1(D)(m) of the Adoption Act for failing to make reasonable efforts to correct the conditions that were the basis for the removal of the minor and/or failing to make reasonable progress toward the return of the minor to him (ground m);[5] and (6) section 1(D)(n) of the Adoption Act for evidencing intent to forgo parental rights as manifested by a failure for a period of 12 months to visit the minor, communicate with the minor or agency although able to do so, and/or maintain contact with or plan for the future of the minor although physically able to do so (ground n).

         ¶ 15 Additionally, the petition alleged that it would be in the minor's best interest to appoint a guardian with the right to consent to her adoption because she had resided with her foster parents since July 27, 2015, the foster parents desired to adopt her, and adoption by the foster parents would be in the minor's best interest.

         ¶ 16 On January 11, 2018, the juvenile court entered an order in which it ordered service by publication to respondent. The State filed an affidavit of service by publication, dated January 12, 2018, which stated that a summons had been issued on August 17, 2017, listing an address on South Richmond Street in Chicago, and that service was "Unsuccessful." The affidavit also stated that a summons had been issued on October 4, 2017, [6] listing an address on South Springfield Avenue in Evergreen Park, and that "Substitute Service [was] Successful." The State also filed a notice of publication, which gave notice of the proceedings to "[Respondent] (Father), AKA Justin Unknown, AKA [respondent's surname], AKA Justin White, Unknown (Father), respondents, and to All Whom It May Concern." The State also subsequently filed a similar affidavit of service by publication and notice of publication, both dated February 21, 2018.

         ¶ 17 On April 3, 2018, the trial court entered an order for parentage testing "upon the motion of putative father."

         ¶ 18 On June 7, 2018, the State filed a DNA report establishing respondent's paternity, and the juvenile court entered an order finding that respondent was the minor's father. On the same day, respondent filed an appearance.

         ¶ 19 On November 27, 2018, the juvenile court entered a visitation order permitting respondent to have at least two, two-hour supervised visits with respondent per month. The order provided that "father came to court long after [the minor's] case came into the system. Father must comply with all recommended services-including individual therapy. There is disagreement about whether the father received notice to come to court."

         ¶ 20 On January 10, 2019, respondent filed a motion to amend the visitation order to allow for increased supervised visits and/or unsupervised day visits. On January 15, 2019, the juvenile court entered an order increasing respondent's supervised day visits to three, two-hour visits per month and permitted respondent at least one unsupervised two-hour day visit per month. At the hearing on respondent's motion, respondent's counsel informed the juvenile court that respondent would be challenging service during the termination trial, and the court encouraged respondent and the foster parents to work together to resolve their issues. The court noted that "I think the foster parent has to understand that there's a legal issue here, which [respondent and his counsel] have argued, which on appeal could cause you to lose custody of the child entirely, and that's why I'm encouraging you to try to work with him so we can work this out. I don't know what would happen if they appealed me to a different judge. Right now my point of view is the kid has been with you, I'm not going to take the child out, but they have an arguable case that he never got proper service. I'll hear all of that out again."

         ¶ 21 On March 13, 2019, respondent again filed a motion for increased visitation. On March 15, 2019, the juvenile court entered an order permitting respondent unsupervised day visits at least every Saturday for six hours. At the hearing on the motion, the court noted that "[t]he problem with this case is [respondent] didn't get involved until a year ago, and it appears, through no fault of his own, appears he was never really notified. But, you know, I'll hear all that on the termination proceeding." The court further noted that "[t]he case cries out for, kind of, like, a compromise; maybe guardianship or something. I think that the more the foster parents can communicate with the father and vice versa the better it is."

         ¶ 22 The parties came before the juvenile court for a hearing on the termination petition on April 15, 2019. The State first called David Walker, who was the minor's case manager beginning in July 2015. Walker testified that on September 30, 2015, at approximately 6 p.m., he received a telephone call from respondent, which lasted for approximately 20 minutes; Walker believed that respondent was given Walker's phone number by the minor's mother. Respondent identified himself as "Justin" and informed Walker that he was calling about the minor, "who was possibly his child." Respondent had many questions about the case and what was occurring with the case and with the mother. Walker updated respondent as to the case's status and informed him of an upcoming court date. Walker also encouraged respondent to attend the court date in order to provide a DNA sample. Walker asked respondent for his last name and address, but respondent would not provide that information; Walker did not ask respondent why he would not provide the information. Walker informed respondent that it was important to determine whether he was actually the minor's father, and respondent told Walker that he had just finished a case involving his son "and that it was difficult for him to be caring for him, let alone a second kid at this time." Walker informed respondent that he could be assessed for services and that DCFS would be able to assist him. Walker testified that respondent was "not interested" in the minor and Walker concluded the conversation by providing his contact information and reminding respondent of the next court date.

         ¶ 23 Walker testified that he performed diligent searches, as well as searching the putative father registry in order to attempt to locate respondent, and also communicated with respondent via phone and text messages four to five times between September 2015 and July 2016. Walker testified that respondent contacted him, seeking information about the progress of the case and, on each occasion, Walker reminded him of the next court date. Respondent never asked about the minor's well-being, and never sent any cards, gifts, or letters to the minor. Walker testified that, during these communications, respondent did not provide him with his last name or address.

         ¶ 24 Walker testified that the mother first identified respondent as the minor's father in court on July 5, 2016. Within two days of receiving respondent's full name, Walker performed a diligent search through the DCFS diligent search service center; Walker explained that caseworkers would provide as much information as they could to the DCFS diligent search service center, and the center would perform searches to locate the parent within the state. Once Walker received an address for respondent, he sent out letters via both regular and certified mail. The letter sent certified mail was returned as unclaimed. After Walker sent the letters, respondent continued communicating with him periodically. During one conversation, in October 2016, respondent told Walker "something along the lines of he wanted to wait until the case was proceeding to adoption before stepping in." Walker informed respondent that this would be harmful to the minor, as she was already attached to her caregivers and likely would not recognize him by that point.

         ¶ 25 Walker testified that, in March 2017, the permanency goal in the case changed to termination of parental rights. At that point, the minor had been in DCFS custody for nearly two years, and respondent was not involved in the case. At the time of the goal change, Walker again submitted respondent's name to the diligent search service center, because he had lost contact with respondent and wanted to inform him of the progress of the case. This time, the search resulted in a different address, on South Springfield Avenue in Evergreen Park, and Walker sent a certified letter to that address informing respondent that he had a possible child in DCFS care and including Walker's contact information; the letter was returned unclaimed. In the summer of 2017, Walker submitted a third ...


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