Supreme Court Summaries

Opinions filed December 1, 2011

In re Haley D., 2011 IL 110886

Appellate citation: 403 Ill. App. 3d 370.

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.

This Du Page County father has five living children by a woman from whom he is now divorced. Four of them are cared for by his mother, who lives with the family. The child at issue here was born in April of 2007 with cocaine in her system and was taken into protective custody. A petition to have her declared neglected and made a ward of the court was filed and both parents were served, although they were no longer residing together. The father appeared in the adjudicatory proceeding. On July 31, 2007, the child was found neglected.

By 2008, foster parents wishing to adopt had intervened in the case, and, in 2009, the State filed a petition to terminate parental rights. This termination petition was never served on the father.

At an April 14, 2009, hearing in the case, which had not been announced in advance as dealing with termination, the father was absent and was found to be in default. He was not present because, he later explained, he had a flat tire. Counsel for the State told the court that he had been served with the termination petition, but documentation of this was not produced and never has been. Impressed with the fact that the mother had been served by publication concerning termination, the court declared the father defaulted and set the case for a "prove-up" hearing. Within the time allowed by the court, the father moved under section 2-1301(e) of the Code of Civil Procedure to have the default set aside, and subsequently sought relief under other provisions as well, but the court ultimately denied his requests and his parental rights were terminated on December 1, 2009. The refusal to vacate the default order is the focus of this appeal.

In this decision, the Illinois Supreme Court held that section 2-15(3) of the Juvenile Court Act and Supreme Court Rule 11 are properly construed together to require that, when the formal petition to terminate was filed, it should have been served on the father, who was not then in default and whose residence address was known.

The supreme court further held that the statutory provision initially utilized by the father was the only one properly invoked by him at that point in time because the April 14, 2009, default order was not a final judgment. A ruling on his motion was discretionary, using the standard of whether substantial justice is being done and whether it is reasonable to compel the other party to go to trial. The supreme court found that the father met this standard. His motion to vacate the default should have been granted. The judgment terminating parental rights must, therefore, be vacated.

The appellate court had reached the same result, but for different reasons. It had found a due process violation based on failure to serve the father. The supreme court said that such a constitutional issue should not be reached in a case such as this in which, because of errors in the proceeding, the matter could be resolved on other grounds.