In re Dar. C. , 2011 IL 111083 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
In re Dar. C., 2011 IL 111083Caption in Supreme In re DAR. C. and DAS. C., Minors (The People of the State of Illinois,
Court: Appellee, v. Daryl Crockett, Appellant).
Docket No. 111083
Filed October 27, 2011
Held A termination of a father’s parental rights by default in juvenile
(Note: This syllabus proceedings was vacated for lack of personal jurisdiction where he had
constitutes no part of been served only by publication and where the filing of a support action
the opinion of the court against him by a different assistant State’s Attorney in the same
but has been prepared prosecutor’s office cast significant doubt on the diligence of the State’s
by the Reporter of inquiry as to his whereabouts.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of McLean County, the Hon.
Kevin P. Fitzgerald, Judge, presiding
Judgment Reversed and remanded.
Counsel on Adele M. Saaf, of Bloomington, for appellant.
Appeal
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Solicitor General, and Mary E. Welsh, Assistant Attorney General, of
Chicago, of counsel), for the People.
Diane L. Redleaf, Melissa L. Staas and Allegra Cira Fischer, of Chicago,
for amici curiae Family Defense Center et al.
Justices 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.
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.
¶3 I. BACKGROUND
¶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.
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¶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, 1998.1 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
1
The parties agree that respondent is not the father of Findley’s other two daughters.
Accordingly, we do not detail the development of their cases.
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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
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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
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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.2 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.”
2
There is no evidence in the record that Seidelman made any inquiry with the agency
dispersing Findley and the minors’ Social Security income to ascertain its source.
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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
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that service by publication in the termination proceeding was improper because the State
knew his actual location. Because service by publication was not permissible under those
circumstances, the trial court lacked personal jurisdiction to enter the termination order.
¶ 39 At a hearing on respondent’s motion, respondent testified that he was the father of Dar.
C. and Das. C. Respondent lived with Findley when his daughters were born and shared a
residence with them for four or five years. Respondent conceded that he had not seen his
daughters for a few years but explained that it was difficult to visit them after Findley moved
and he became ill. Respondent tried to maintain telephone contact with his daughters and
sent them gifts and cards. Respondent also provided Findley with financial assistance.
Respondent denied ever abusing or neglecting his daughters.
¶ 40 Respondent stated that he suffered from bipolar disorder and received Social Security
disability benefits, with the Lake County health department treatment center acting as his
payee. Respondent’s daughters also received dependent benefits. Respondent lived at 3274
Seventh Street, apartment 3, in Park City, Illinois. Prior to living in Park City, respondent
also lived with his sister, Stephanie, at 702 Sutton Court in Lake Villa, Illinois, and with his
parents at 11435 Union Street in Chicago, Illinois. Respondent received mail at his sister’s
address and his parents’ addresses, and they would forward his mail to him. Findley also
knew how to contact respondent and his sister Stephanie. Respondent, however, denied
receiving any correspondence from the Department concerning his daughters Dar. C. and
Das. C. Respondent agreed to an entry of a formal child support order in McLean County
after Assistant State’s Attorney Engelbrecht contacted him. Respondent communicated with
Engelbrecht by telephone and fax machine.
¶ 41 Respondent’s sister Stephanie also testified and denied that she ever received any
correspondence from the Department at her home at 702 Sutton Court in Lake Villa, Illinois.
Stephanie explained that respondent received treatment from the Assertive Community
Treatment team at the Lake County health department, including assistance with his
medications and coordination of his Social Security benefits. Stephanie last saw respondent’s
daughters in 2005 when Findley brought them to her house for a visit with respondent.
Stephanie testified that she and respondent loved his daughters and wanted a relationship
with them. Stephanie did not know whether anyone in her household refused a summons for
respondent in November 2007.
¶ 42 After hearing the testimony, the trial court dismissed respondent’s section 2-1401 motion
without prejudice. Respondent filed a direct appeal, but the appellate court dismissed his
appeal for lack of jurisdiction because the trial court’s order dismissing the complaint
without prejudice was not final. In re Dar. C., No. 4-08-0972 (2009) (unpublished order
under Supreme Court Rule 23).
¶ 43 In January 2009, the trial court entered an order changing the minors’ permanency goal
from adoption to subsidized guardianship.
¶ 44 On May 12, 2009, respondent filed a second petition for relief under section 2-1401,
asserting that service of process was ineffective on both the petition for adjudication of
wardship and the petition for termination of parental rights. This pleading is the subject of
this case.
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¶ 45 In July 2009, the trial court held a hearing on respondent’s second section 2-1401
petition. Assistant State’s Attorney McLauchlan orally moved to dismiss respondent’s
petition, but the court declined to rule on the petition before respondent’s paternity was
established.
¶ 46 In August 2009, genetic testing was performed that established respondent’s paternity of
Dar. C. and Das. C.
¶ 47 In September 2009, the trial court entered an order approving private subsidized
guardianship of the minors and discharging the Department as the minors’ guardian.
¶ 48 In October 2009, the trial court held a hearing on respondent’s second petition.
Respondent’s sister Stephanie testified that respondent lived with Findley and their daughters
until he was diagnosed with a mental illness, specifically schizoaffective disorder. Following
his diagnosis, respondent periodically lived with his parents or Stephanie. Respondent also
spent some time at mental health facilities and hospitals. Stephanie became respondent’s
temporary guardian in 2003 to consent to his medical treatment. Stephanie explained that
respondent suffered from an on-going illness and needed regular treatment and medication.
¶ 49 Stephanie testified that in October 2007 she arranged a conference telephone call between
respondent and Findley. At that time, respondent was a patient at the Elgin State Mental
Facility. Stephanie remained on the line and heard respondent briefly talk to Dar. C. and then
heard Findley swearing. The telephone call soon ended. Stephanie did not have any
additional contact with respondent’s children after that incident. Stephanie denied that she
ever received any information from the Department about the minors. After Stephanie’s
testimony, the court requested additional briefing and arguments on the Department’s efforts
to located respondent and scheduled a second hearing in February 2010.
¶ 50 At the February 2010 hearing, the State presented the testimony of four employees of the
Department. Dawn Spencer, a Department court monitor and private agency monitor,
testified that the federal government prohibited the Department’s diligent search center from
accessing federal Social Security records without a release from the individual being
searched. Spencer also testified that the diligent search center did not search public aid
records.
¶ 51 Shannon Stanfill, the initial Department investigator assigned to Findley’s case, testified
that he was informed that respondent lived in Chicago at an unknown address. Findley
reported to Stanfill that Findley and one of her children received Social Security income
based on their own respective “issues.” Stanfill did not verify this information nor did he ask
Findley to sign a release of Social Security information. Stanfill could not recall whether he
asked Findley for respondent’s telephone number or the names of respondent’s relatives.
¶ 52 Joy Hershberger, a Department placement worker, testified that she worked with Findley
in an earlier case involving the Department in 2005. During Hershberger’s involvement in
that case, Findley reported that respondent lived in Chicago. Findley also told Hershberger
that she and Dar. C. received Social Security benefits but did not mention respondent’s
connection, if any, to the receipt of those benefits.
¶ 53 Nancy Murrah, the Department caseworker in Findley’s case, testified that Findley
reported that respondent lived in the Chicago area but Findley did not provide specific
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information of his location. Murrah heard from someone involved in the case that Findley
and respondent received Social Security benefits, but Findley herself did not offer the
information. Murrah did not seek a release from Findley and did not attempt to verify the
information about the Social Security benefits. Murrah requested two searches from the
Center for respondent, received two potential addresses, and mailed letters to those
addresses. Murrah did not receive a response to the letters.
¶ 54 Respondent presented the testimony of Angela DeVore, program manager at Children’s
Home and Aid. DeVore was assigned to Findley’s case in November 2007, and supervised
Laura Seidelman. DeVore acknowledged that Seidelman signed the complaint for child
support in the minors’ case and explained that Department caseworkers routinely signed
requests for child support. DeVore further explained, however, that the Department of Health
and Family Services (DHFS) assumed responsibility for all child support cases
approximately three years ago. According to DeVore, when the Department has custody or
guardianship of a minor, DHFS conducts all background work in child support actions and
then sends the child support complaint to a Department caseworker for signature. DeVore
had no knowledge of how DHFS obtained respondent’s contact information in the child
support action.
¶ 55 In March 2010, the trial court denied respondent’s second section 2-1401 petition,
finding that service by publication conferred personal jurisdiction over respondent for the
petition for adjudication and the petition for termination because the Department conducted
diligent searches. The court noted that Findley was the Department’s only source of
information about respondent and the Social Security benefits. Findley, however, failed to
reveal any information about respondent. The court concluded that the child support action
was a separate proceeding and the information obtained in that proceeding could not be
attributed to the termination proceeding.
¶ 56 On appeal, the appellate court affirmed, finding that the first service by publication
following a diligent inquiry on the petition for adjudication provided personal jurisdiction
for the entire proceeding. No. 4-10-0267 (unpublished order under Supreme Court Rule 23).
¶ 57 This court allowed respondent’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb.
26, 2010)) and allowed the Family Defense Center to file a brief amicus curiae in support
of respondent (Ill. S. Ct. R. 345 (eff. Sept. 20, 2010)).
¶ 58 II. ANALYSIS
¶ 59 On appeal, respondent argues that the State failed to perform the requisite “diligent
inquiry” to ascertain his location. Specifically, respondent argues that the State’s underlying
service by publication under section 2-16(2) of the Act was ineffective to confer personal
jurisdiction to the trial court when the State did not perform an adequate diligent inquiry and
failed to locate him. Thus, respondent argues that the trial court’s adjudication and
termination orders were void for lack of personal jurisdiction.
¶ 60 We review de novo the legal question of whether a trial court obtained personal
jurisdiction. In re Detention of Hardin, 238 Ill. 2d 33, 39 (2010). As this court has
recognized, “[i]f a court lacks either subject matter jurisdiction over the matter or personal
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jurisdiction over the parties, any order entered in the matter is void ab initio and, thus, may
be attacked at any time.” In re M.W., 232 Ill. 2d 408, 414 (2009); see also Johnston v. City
of Bloomington, 77 Ill. 2d 108, 112 (1979) (when subject matter jurisdiction or personal
jurisdiction is lacking “the proceedings are a nullity and no rights are created by them and
they may be declared void when collaterally attacked”). When a trial court fails to obtain
personal jurisdiction over a litigant, it is deprived of the authority or power to impose
judgment against the litigant. In re M.W., 232 Ill. 2d at 428.
¶ 61 Relevant to this appeal, personal jurisdiction may be imposed on a litigant by effective
service of summons. In re M.W., 232 Ill. 2d at 426. Providing effective service is a means
of protecting an individual’s right to due process by allowing for proper notification of
interested individuals and an opportunity to be heard. Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (1950). Because the termination of parental rights implicates a
fundamental liberty interest, the procedures employed must comply with due process. In re
M.H., 196 Ill. 2d 356, 363 (2001) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
Ultimately, inadequate service of summons or process divests the trial court of personal
jurisdiction. In re Antwan L., 368 Ill. App. 3d 1119, 1128 (2006).
¶ 62 Section 2-15 of the Act governs service of the summons of a petition alleging abuse,
neglect, or dependency of a minor. 705 ILCS 405/2-15 (West 2006). The summons must
include a copy of the petition and be addressed to the minor’s legal guardian or custodian and
to each named respondent in the petition. Personal service may be made by a county sheriff,
coroner, or probation officer and must be made, in pertinent part, by either (1) delivering a
copy of the summons and petition to the person being summoned or (2) delivering a copy to
that person’s usual place of abode and leaving it with a family member who is at least 10
years of age and then mailing a copy to the person being summoned. 705 ILCS 405/2-15(5)
(West 2006). The return of the summons with endorsement of service by the officer is
sufficient proof of service. 705 ILCS 405/2-15(4) (West 2006).
¶ 63 When personal service under section 2-15 cannot be accomplished, the Act provides two
other mechanisms for service of summons. Section 2-16(1) allows for service by certified
mail when personal service under section 2-15 is not made within a reasonable time or it
appears that the respondent resides outside the state. 705 ILCS 405/2-16(1) (West 2006). The
regular return receipt for certified mail is sufficient proof of service by certified mail. 705
ILCS 405/2-16(1) (West 2006).
¶ 64 As a last resort, section 2-16(2) allows for the final type of service authorized by the Act,
service by publication. Section 2-16(2) requires, in pertinent part, that:
“Where a respondent’s usual place of abode is not known, a diligent inquiry shall be
made to ascertain the respondent’s current and last known address. The Department
of Children and Family Services shall adopt rules defining the requirements for
conducting a diligent search to locate parents of minors in the custody of the
Department. If, after diligent inquiry made at any time within the preceding 12
months, the usual place of abode cannot be reasonably ascertained, or if respondent
is concealing his or her whereabouts to avoid service of process, petitioner’s attorney
shall file an affidavit at the office of the clerk of court in which the action is pending
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showing that respondent on due inquiry cannot be found or is concealing his or her
whereabouts so that process cannot be served. The affidavit shall state the last known
address of the respondent. The affidavit shall also state what efforts were made to
effectuate service.” 705 ILCS 405/2-16(2) (West 2006).
Thus, section 2-16(2) contemplates a trial court obtaining personal jurisdiction through
service by publication only when the State has conducted a diligent inquiry to ascertain the
respondent’s location and last known address.
¶ 65 Although section 2-16(2) does not define what constitutes a diligent inquiry or search,
the standard is recognized to be “that kind of search or investigation which a diligent person,
intent on ascertaining a fact, would usually and ordinarily make.” (Internal quotation marks
omitted.) In re Sheltanya S., 309 Ill. App. 3d 941, 956 (1999) (quoting In re A.S.B., 293 Ill.
App. 3d 836 (1997)). In turn, the term “diligent” means “characterized by steady, earnest,
attentive, and energetic application and effort in a pursuit.” Webster’s Third New
International Dictionary 633 (1993).
¶ 66 Here, the record demonstrates that respondent suffers from a mental illness, and that he
moved periodically between his Illinois residence, his relatives’ respective homes in Illinois,
and treatment facilities in Illinois. The termination proceedings, initiated in McLean County
in September 2006, lasted for 18 months, culminating with the March 2008 order terminating
respondent’s parental rights. During this time, the Department and the State consistently
maintained that respondent could not be located in Illinois. In a separate child support action
in McLean County, however, the State successfully located respondent at a treatment center
in Lake County, Illinois, in December 2007, and obtained respondent’s consent to entry of
a child support order using funds from his Social Security disability benefits.
¶ 67 Focusing on the termination proceedings in this case, the efforts of the Department and
the State to locate respondent consisted primarily, if not entirely, of entering respondent’s
name into various computer databases and then mailing letters to potential address matches,
and asking Findley about respondent’s location. The petition for adjudication of wardship,
filed September 7, 2006, identified respondent as the father of two of Findley’s two minor
children and listed his address, albeit incorrectly, as Sheridan Correctional Center.
¶ 68 The State’s affidavit for service by publication on the adjudication petition, filed
September 11, 2006, attested that respondent could not be located in Illinois after diligent
inquiry and therefore could not be served in person or by certified mail. The affidavit listed
respondent’s last known address as “unknown.” The affidavit does not indicate what steps,
if any, were taken by the State to locate respondent. The service by publication was issued
on September 19, 2006.
¶ 69 In October 2006, a month after the State’s initial affidavit for service by publication was
filed, the Department’s Diligent Search Service Center issued a “certificate of comprehensive
diligent search,” indicating that respondent’s name had been entered into 14 address
databases. This initial computer search, however, was conducted with respondent’s first
name misspelled as “Darryl,” rather that its correct spelling as “Daryl.” It revealed a potential
address in Peoria, Illinois, and a letter was mailed to that address but no response was
received.
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¶ 70 Subsequent computerized searches of respondent’s name, using his properly spelled first
name, produced a potential match at 702 Sutton Court in Lake Villa, Illinois, his sister’s
residence. The searches also produced potential matches at various addresses in Chicago,
Illinois, including his parents’ address and his own former addresses. The Department mailed
letters to those addresses, but received no response. There is no evidence in the record that
the State or the Department sent anyone to those addresses to inquire about respondent’s
location.
¶ 71 Shannon Stanfill, the Department caseworker initially assigned to the minors’ case, was
informed that respondent lived in the Chicago area. Findley told Stanfill that she and her
child received Social Security income, but Stanfill did not verify this information or ask
Findley to sign a release of Social Security information. Stanfill could not remember asking
Findley for respondent’s telephone number or the names of respondent’s relatives.
¶ 72 Nancy Murrah, another Department caseworker, was also told that respondent lived in
the Chicago area and that Findley was receiving Social Security benefits. Murrah, however,
did not verify receipt of those benefits or request a release of information from Findley. Joy
Hershberger, a Department placement worker who worked with Findley in a previous case,
testified that Findley told her that respondent lived in the Chicago area. Findley also stated
that she and Dar. C. received Social Security benefits.
¶ 73 In October 2007, Laura Seidelman, the minors’ caseworker from the Children’s
Foundation, was present during a supervised visit between Findley and the minors when
respondent called Findley. When Seidelman instructed Findley to tell respondent that he was
required to contact the Department before talking to his daughters, Findley became angry and
ended the call. Seidelman could not verify respondent was on the telephone and Findley
denied knowing respondent’s contact information. Seidelman also signed the complaint for
child support in the separate action. Seidelman’s supervisor, Angela Devore, did not know
how the State located respondent’s contact information in the child support action.
Ultimately, the Department and the State were unable to locate or contact respondent in the
termination proceedings.
¶ 74 Consequently, when the State filed its affidavit for service of publication on the
termination petition on November 2, 2007, it attested that respondent could not be located
in Illinois after diligent inquiry. The affidavit listed respondent’s last known address as
“unknown.” The service by publication was issued on November 15, 2007.
¶ 75 After carefully reviewing this record, we cannot conclude that the State and the
Department performed the type of search or investigation that an earnest and attentive person
seeking to learn a fact would ordinarily make, namely, the diligent inquiry required by
section 2-16(2). Notably, the State and the Department failed to conduct any search or
investigation into a number of opportunities to acquire respondent’s contact information. See
705 ILCS 405/2-16(2) (West 2006) (providing that “[w]here a respondent’s usual place of
abode is not known, a diligent inquiry shall be made to ascertain the respondent’s current and
last known address”).
¶ 76 The Department was aware that respondent lived in the Chicago area, but its employees
did not visit or inquire at any of the potential address matches in the area, including those
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that eventually proved to be respondent’s sister’s residence in Lake Villa and his parents’
residence in Chicago. Stanfill, the initial caseworker assigned to the case, could not recall if
he asked Findley for respondent’s contact telephone number or the names of respondent’s
relatives. Respondent’s sister, however, denied receiving any contact from the Department
about the minors’ situation, and testified that she and respondent wanted a continued
relationship with the minors. Thus, it is reasonable to presume that if a Department employee
had talked to respondent’s sister or his parents about the minors’ situation, they would have
provided some assistance.
¶ 77 The Department was also informed that Findley and the minors were receiving Social
Security benefits, but no one made any attempt to verify Findley’s source of income or
request her to authorize a release of that information. Arguably, the failure to follow up on
the Social Security information was a missed opportunity to learn if respondent was a source
of that income and to acquire his contact information.
¶ 78 In other words, while the Department was aware that respondent reportedly lived in
Chicago and the various computer searches produced a number of potential address matches
in the Chicago area, the Department did not conduct any inquiry into those addresses.
Instead, the Department simply mailed letters to those addresses. Similarly, although
Department employees were aware that Findley claimed to be receiving Social Security
benefits, the Department did not make any inquiry into this information. There is no
explanation in the record why the Department chose not to pursue further inquiry into the
potential address matches or the Social Security information.
¶ 79 Respondent also reportedly called Findley during a supervised visitation but no effort was
made to obtain respondent’s contact information during that incident. Likewise, although a
caseworker was aware that respondent contacted Findley and Dar. C. by telephone there is
no evidence in the record of any attempt to obtain respondent’s telephone number.
¶ 80 In addition, the complaint in the separate child support action indicated 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. It also 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, but otherwise conducted no followup on respondent’s personal
information contained in that report. Again, the record is silent on why the Department
conducted no further inquiry.
¶ 81 In our view, the diligent inquiry of section 2-16(2) necessarily requires a good-faith
attempt at acquiring the contact information of a parent whose whereabouts are unknown,
including inquiry about potential leads on the parent’s whereabouts. When, as here, the State
and the Department possess information that reasonably could be relied on to discover a
missing parent’s location with further investigation, we believe that a diligent person intent
on locating the parent would perform that investigation. Of course, when the only available
information about a parent is his or her name, a computerized database search and letters
might be sufficient to satisfy the diligent inquiry requirement in section 2-16(2).
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¶ 82 In this case, however, the State and the Department possessed additional knowledge that
may have led them to respondent’s contact information. For example, the State and the
Department possessed information that respondent lived in the Chicago area and had
discovered multiple potential address matches in that area from the computer search. The
Department knew that Findley and minors received Social Security benefits. The Department
also knew that respondent placed a call to Findley during a supervised visit and had
contacted Findley and his daughter by telephone on other occasions as well. It is reasonable
to assume that a diligent inquiry into those matters would have likely resulted in the State
acquiring respondent’s contact information. In fact, the State’s ability to obtain respondent’s
contact information in the separate child support action casts significant doubt on the
diligence of the State’s inquiry into respondent’s location in the termination proceedings
here.
¶ 83 Section 2-16(2) unequivocally requires a diligent inquiry in every instance when service
by publication is used, regardless of whether that inquiry ultimately proves successful in
locating the parent. 705 ILCS 405/2-16(2) (West 2006). Moreover, because service by
publication is meant as a last resort of serving summons, it should be used only after a
genuine diligent inquiry to locate the individual has been completed. Put simply, relying on
a computerized database search of a parent’s name while ignoring, or otherwise not
investigating, other potentially useful information does not constitute a diligent inquiry under
section 2-16(2).
¶ 84 III. CONCLUSION
¶ 85 We conclude that the State and the Department failed to perform the necessary diligent
inquiry under section 2-16(2), the statute authoring service by publication in this case.
Because the requisite diligent inquiry was not performed, the State’s service by publication
was defective and did not confer personal jurisdiction to the trial court, rendering its
judgment void. In re M.W., 232 Ill. 2d at 414; In re Antwan L., 368 Ill. App. 3d at 1128.
Accordingly, we reverse the appellate court’s judgment, vacate the trial court’s order
terminating respondent’s parental rights, and remand to the circuit court for further
proceedings.
¶ 86 Reversed and remanded.
¶ 87 JUSTICE BURKE, specially concurring:
¶ 88 While I agree with the majority that the judgment terminating respondent’s parental
rights must be set aside, I write separately because I disagree with the reasoning used by the
majority to reach that result.
¶ 89 I. Respondent’s Claims
¶ 90 In March of 2008, the circuit court of McLean County entered a default judgment
terminating the parental rights of the respondent, Daryl Crockett. Prior to the entry of the
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judgment, respondent was twice served by publication–first in September of 2006, before the
adjudication phase of the proceedings, and again in November 2007, before the termination
phase.
¶ 91 In May of 2009, respondent filed a petition pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2008)), seeking to have the default judgment set
aside. In his petition, respondent alleged that both publication notices were invalid and that
the circuit court lacked personal jurisdiction over him at the time it entered the default
judgment. Thus, according to respondent, the judgment terminating his parental rights was
void and should be set aside. The circuit court denied respondent’s petition and the appellate
court affirmed. No. 4-10-0267 (unpublished order under Supreme Court Rule 23).
¶ 92 Before this court, respondent repeats his claims that both of the publication notices were
invalid. With respect to the September 2006 notice, respondent’s primary contention is that
the Department of Children and Family Services (Department) failed to conduct a diligent
inquiry to locate him, as required under section 2-16(2) of the Juvenile Court Act (705 ILCS
405/2-16(2) (West 2006)), before serving him by publication. With respect to the November
2007 notice, respondent maintains that the Department and the McLean County State’s
Attorney had actual knowledge of his whereabouts and, for that reason, service by
publication was improper.
¶ 93 The State, in response, initially contends that both of respondent’s principal contentions
regarding the publication notices are impermissible collateral attacks on the default judgment
and, therefore, are not properly before this court. In so arguing, the State does not challenge
the general rule which holds that a judgment entered by a court lacking personal jurisdiction
is void ab initio and may be challenged at any time. See In re M.W., 232 Ill. 2d 408, 414
(2009). Nor does the State dispute that respondent has alleged in his section 2-1401 petition
that the circuit court lacked personal jurisdiction when the court entered the judgment
terminating respondent’s parental rights.
¶ 94 Instead, the State focuses on the nature of the proof that must be offered to establish that
a judgment is void for lack of jurisdiction. Citing to In re Custody of Ayala, 344 Ill. App. 3d
574, 583-84 (2003), In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 200-01 (1993), and
City of Rockford v. Lemar, 157 Ill. App. 3d 350, 353-54 (1987), the State invokes a common
law rule which recognizes that a judgment entered without jurisdiction is void and subject
to collateral challenge at any time, but which holds that, in order to prove the judgment is
void, the jurisdictional defect must appear on the face of the record. See generally 23A Ill.
L. and Prac. Judgments § 158, at 15 (2008) (“Want of jurisdiction to enter the judgment
ordinarily must appear on the face of the record to furnish a basis for collateral attack.”);
Restatement (Second) of Judgments § 77, cmt. a, at 224 (1982) (“It was a rule in common
law courts that a judgment appearing to be valid on its face could not be shown to be invalid
by proof contradicting the record of the action in which the judgment was rendered.”); 47
Am. Jur. 2d Judgments § 760 (2006). Pursuant to this “ ‘absolute verity’ ” rule (United States
v. Bigford, 365 F.3d 859, 867 (10th Cir. 2004)), if the jurisdictional defect does not appear
on the face of the record, the judgment is not void and it may not be attacked at any time.
Instead, according to the State, the judgment is merely voidable and it may only be attacked
within the time limitations established by section 2-1401.
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¶ 95 Applying this rule in the case at bar, the State contends that several of the arguments
raised in respondent’s petition, including both of respondent’s principal contentions
regarding the publication notices, do not rest “on the face of the record alone” but, instead,
are dependent on evidence outside the record that was introduced in the hearings on
respondent’s section 2-1401 petition. Thus, the State maintains that respondent’s contentions
challenge “the judgment as voidable, rather than void,” and those contentions are subject to
the time limits established by section 2-1401. Further, the State asserts that respondent’s
section 2-1401 petition was not filed within the applicable statutory time limit imposed by
section 2-1401. Therefore, according to the State, respondent’s contentions are impermissible
collateral attacks on the default judgment.
¶ 96 The majority does not address or acknowledge the State’s argument that the jurisdictional
defects alleged by respondent do not appear on the face of the record. Given the importance
of the argument in defining the scope of the issues we must consider, I would address it. I
would reject the argument because this court has held that the absolute verity rule is
inapplicable where, as here, the moving party alleges that notice was never received and no
third party has acted in reliance on the judgment:
“If no rights of third parties have intervened, the defendant may have the judgment
set aside even if the record shows affirmatively that he was served or that he
appeared. (Cassidy v. Automatic Time Stamp Co.[,] 185 Ill. 431; Kochman v. O’Neill,
202 Ill. 110; Hilt v. Heimberger, 235 Ill. 235; Owens v. Ramstead, 22 Ill. 161.)”
Janove v. Bacon, 6 Ill. 2d 245, 249 (1955).
See also In re Estate of Young, 414 Ill. 525, 535 (1953) (“The success of a collateral attack
upon a judgment generally depends on a record showing lack of jurisdiction; [citations] an
attack charging want of notice and opportunity to be heard, however, may be based on
evidence dehors the record.”). This exception to the absolute verity rule allowing the
introduction of extrinsic evidence rests on the “inherent power of a court to examine its own
records and to expunge a judgment if satisfied that the judgment was rendered without due
notice to a party” (Restatement (Second) of Judgments § 77, cmt. a, at 224 (1982)), as well
as the unfairness of forbidding a litigant from contesting a judgment for which he or she
never received notice (see Village of Algonquin v. Lowe, 2011 IL App (2d) 100603, ¶ 24
(noting that it is problematic to apply the absolute verity rule when personal jurisdiction is
at issue)).
¶ 97 Respondent’s challenge to the order terminating his parental rights was brought in the
same court which entered that order and no third-party reliance is at issue. In these
circumstances, the absolute verity rule is inapplicable.3 Accordingly, contrary to the State’s
3
The Restatement (Second) of Judgments rejects the absolute verity rule, stating that “the
modern rule is that a judgment may be impeached by evidence that contradicts the record in the
action” and that a litigant’s reliance on such evidence is simply a relevant factor “in determining
whether the forum is appropriate for hearing the attack.” Restatement (Second) of Judgments § 77,
cmts. a, b (1982). Because an exception to the absolute verity rule applies in this case, there is no
need to consider the continuing viability of the absolute verity rule itself in Illinois.
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assertions, all of the contentions raised in respondent’s section 2-1401 petition are properly
before us.
¶ 98 II. Validity of the Services by Publication
¶ 99 When personal jurisdiction is obtained in a proceeding under the Juvenile Court Act of
1987 (705 ILCS 405/1-1 et seq. (West 2006)), that jurisdiction continues until the matter is
resolved. In re M.W., 232 Ill. 2d at 428-29; In re Abner P., 347 Ill. App. 3d 903, 908 (2004).
Thus, when personal jurisdiction is obtained prior to adjudication, it is not necessary to
reestablish that jurisdiction prior to termination. Relying on this rule, the appellate court
below held that the September 2006 service by publication was valid and, therefore, there
was no need to address the validity of the November 2007 publication notice:
“We find the trial court obtained personal jurisdiction over respondent by
publication prior to adjudication. Since service by publication was valid, the court
acquired personal jurisdiction over respondent for the entire proceeding. In re Abner
P., 347 Ill. App. 3d 903, 908, 807 N.E.2d 1145, 1150 (2004). Thus, we need not
address the issue of service by publication at the time of termination.” No. 4-10-
0267, slip op. at 14 (unpublished order under Supreme Court Rule 23).
¶ 100 Before this court, both respondent and the State recognize that respondent was twice
served by publication and that the validity of the November 2007 notice will only be at issue
if respondent can first establish the invalidity of the September 2006 notice. The majority,
however, does not distinguish between the two publication notices. Instead, the majority
conducts its analysis as if respondent was served only once and then, at the conclusion of its
opinion, holds that this single service by publication was invalid because no diligent inquiry
was conducted. Supra ¶ 85 (“Because the requisite diligent inquiry was not performed, the
State’s service by publication was defective and did not confer personal jurisdiction to the
trial court, rendering its judgment void.”).
¶ 101 In so holding, the majority relies on facts that have no relevance to the adequacy of the
September 2006 notice. For example, the majority notes that a separate child support
complaint was filed against respondent in McLean County while the termination action was
proceeding. The majority concludes that the Department failed to follow up on personal
information regarding respondent attached to the complaint and for this reason, as well as
others, that the Department failed to conduct the required diligent inquiry. Supra ¶ 80.
However, the child support complaint was not filed until November 6, 2007, over a year after
the first publication notice was issued. Thus, the complaint can have no bearing on the
validity of the diligent inquiry conducted prior to the issuance of the September 2006 notice.
¶ 102 The validity of the two publication notices should be addressed separately. Like the
appellate court, I would first consider whether the September 2006 notice was valid and then,
if necessary, consider the validity of the November 2007 notice.
¶ 103 A. Validity of Service by Publication in September 2006
¶ 104 Section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008))
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establishes a comprehensive statutory procedure for vacating a final judgment older than 30
days. See People v. Vincent, 226 Ill. 2d 1, 7 (2007). “Relief under section 2-1401 is
predicated upon proof, by a preponderance of evidence, of a defense or claim that would
have precluded entry of the judgment in the original action and diligence in both discovering
the defense or claim and presenting the petition.” Id. at 7-8 (citing Smith v. Airoom, Inc., 114
Ill. 2d 209 (1986)). The State does not dispute that respondent’s contention that the trial court
lacked personal jurisdiction “substitutes for and negates the need to allege a meritorious
defense and due diligence.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104
(2002).
¶ 105 Respondent maintains that the September 2006 service by publication was invalid
because the Department failed to conduct a diligent inquiry prior to issuing that notice, as
required under section 2-16(2) of the Juvenile Court Act. That provision states, in relevant
part:
“(2) Where a respondent’s usual place of abode is not known, a diligent inquiry
shall be made to ascertain the respondent’s current and last known address. The
Department of Children and Family Services shall adopt rules defining the
requirements for conducting a diligent search to locate parents of minors in the
custody of the Department. If, after diligent inquiry made at any time within the
preceding 12 months, the usual place of abode cannot be reasonably ascertained, or
if respondent is concealing his or her whereabouts to avoid service of process,
petitioner’s attorney shall file an affidavit at the office of the clerk of court in which
the action is pending showing that respondent on due inquiry cannot be found or is
concealing his or her whereabouts so that process cannot be served. The affidavit
shall state the last known address of the respondent. The affidavit shall also state
what efforts were made to effectuate service. Within 3 days of receipt of the affidavit,
the clerk shall issue publication service as provided below. The clerk shall also send
a copy thereof by mail addressed to each respondent listed in the affidavit at his or
her last known address. The clerk of the court as soon as possible shall cause
publication to be made once in a newspaper of general circulation in the county
where the action is pending.” 705 ILCS 405/2-16(2) (West 2006).
¶ 106 The circuit court rejected respondent’s contention after holding an evidentiary hearing.
In this posture, the circuit court’s judgment is reviewed to determine whether it is against the
manifest weight of the evidence. See S.I. Securities v. Powless, 403 Ill. App. 3d 426, 440
(2010).4 A decision is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident. In re Cutright, 233 Ill. 2d 474, 488 (2009).
¶ 107 The portion of the record relevant to the first publication notice establishes the following.
4
The majority applies a de novo standard of review. Supra ¶ 60. De novo review would be
appropriate if the circuit court had decided the issue without an evidentiary hearing. See, e.g.,
Commerce Trust Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135, 140 (2006) (“Where, as here, the
circuit court decided the issue of jurisdiction without an evidentiary hearing, we review the court’s
decision de novo.”).
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On September 7, 2006, a petition for adjudication of wardship was filed in the circuit court
of McLean County which identified respondent as the father of two of Tonya Findley’s four
minor daughters. The petition incorrectly listed respondent’s address as “Sheridan
Correctional Center, Sheridan, IL.”
¶ 108 Shannon Stanfill, the Department investigator initially assigned to the case, spoke to
Findley about respondent. Findley told Stanfill that respondent lived in the Chicago area but
that she did not know his address. Findley also gave Stanfill an incorrect date of birth for
respondent. Stanfill made no other efforts to locate respondent. At the shelter care hearing,
no evidence was presented regarding respondent, his location, or efforts made to find him.
¶ 109 On September 11, 2006, an affidavit in support of service by publication, which is
required under section 2-16(2), was filed by McLean County Assistant State’s Attorney
Madeline McLauchlan. In the affidavit, McLauchlan attested that respondent’s address could
not “be ascertained upon diligent inquiry” and, thus, process could not be served upon him
“either personally or by certified mail.” The affidavit did not state what efforts had been
made by the Department to locate respondent.
¶ 110 On September 19, 2006, the McLean County circuit clerk issued a “notice for
publication” to respondent. The notice was published in the Bloomington Pantagraph the
same day.
¶ 111 On October 11, 2006, a “Certification of Comprehensive Diligent Search” was issued by
the Department’s “Diligent Search Service Center.” The certification indicated that a
computer search had been conducted of 14 address databases for respondent’s name.
¶ 112 On October 24, 2006, an adjudication hearing was held. At this hearing, the circuit court
found that it had personal jurisdiction over respondent, through service by publication, and
that respondent had defaulted by not appearing after being served.
¶ 113 Based on the foregoing, it appears that the only inquiry conducted by the Department
prior to the issuance of the September 2006 publication notice was that of the investigator,
Stanfill, asking Findley for respondent’s address. Nothing in the record indicates that any
attempts were made to pursue other readily available areas of inquiry prior to serving
respondent by publication, such as asking Findley for respondent’s telephone number, asking
the minors and Findley for the names of respondent’s relatives, or asking Findley whether
she received support from respondent or had an existing child support case. Further, although
the State stresses that the Department ran a computer search for respondent’s address, that
search was conducted a month after McLauchlan filed the affidavit in support of publication,
and three weeks after the notice was actually published. The computer search thus fell
outside section 2-16(2)’s requirement that the diligent inquiry be undertaken within the 12
months “preceding” the filing of the affidavit supporting publication. In addition, the
computer search was run with respondent’s first name misspelled as “Darryl,” rather than
“Daryl.”
¶ 114 Under these facts, I would hold that the circuit court’s finding that the Department
conducted the diligent inquiry required before issuing publication notice under section 2-
16(2) was against the manifest weight of the evidence. Accordingly, I would conclude that
the September 2006 publication notice was issued in violation of section 2-16(2) and failed
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to confer personal jurisdiction on the trial court. In light of this conclusion, I would also find
that it is necessary to consider the validity of the November 2007 publication.
¶ 115 B. Validity of Service by Publication in November 2007
¶ 116 Respondent acknowledges that he was served by publication a second time, after
adjudication, in November of 2007, and that the Department made additional efforts to locate
him prior to the issuance of that notice. Respondent does not contend that these efforts failed
to satisfy the diligent inquiry requirement under section 2-16(2). Instead, respondent argues
that the November 2007 service by publication was invalid because the McLean County
State’s Attorney and the Department had obtained actual knowledge of his location in a
separate child support case that was being pursued at the same time as the termination action.
Because section 2-16(2) permits publication notice only “[w]here a respondent’s usual place
of abode is not known” (705 ILCS 405/2-16(b) (West 2006)), respondent maintains that the
November 2007 service by publication was invalid. The appellate court did not reach this
issue since, as noted, the court concluded that the September 2006 notice was valid.
¶ 117 Despite the fact that respondent does not raise a diligent inquiry argument with respect
to the second publication notice, the majority analyzes the validity of the notice solely on that
basis. Because this is not the argument respondent is making, I would not address it. Further,
even if it were appropriate to raise the diligent inquiry argument sua sponte, for the following
reasons I cannot agree with the majority’s conclusion that the Department failed to conduct
such an inquiry with respect to the November 2007 notice.
¶ 118 After the adjudication hearing, the Department ran two additional computer searches for
respondent–one in December of 2006 and one in July of 2007. The first search returned a
possible address on Union Street in Chicago, which respondent later identified as his parents’
home. Nancy Murrah, a Department caseworker, sent a letter to that address but no response
was received.
¶ 119 The second search returned, in addition to the address on Union Street, an address on
Blackstone Street in Chicago, which respondent later identified as a former residence, and
an address in Lake Villa, Illinois, which was later identified as the home of respondent’s
sister. Letters were sent to each of these addresses, but no response was received. Laura
Seidelman, a social worker, filed a “Diligent Search” report with the circuit court in
September of 2007 which included the results of the second search.
¶ 120 The majority concludes that these efforts did not satisfy the diligent inquiry requirement
of section 2-16(2). According to the majority, there were at least four additional steps that
the Department could have undertaken to locate respondent and because the Department
failed to take these steps, the inquiry was deficient. However, each of the proposed actions
identified by the majority is problematic.
¶ 121 First, the majority states that “[t]he Department was aware that respondent lived in the
Chicago area, but its employees did not visit or inquire at any of the potential address
matches in the area.” Supra ¶ 76. The majority cites no authority for the proposition that the
Department is required, under section 2-16(2), to physically visit the potential addresses it
uncovers in order to successfully perform a diligent inquiry. In my view, this requirement is
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unduly burdensome and I disagree with its imposition here.
¶ 122 Second, the majority states that the Department was also “informed that Findley and the
minors were receiving Social Security benefits, but no one made any attempt to verify
Findley’s source of income or request her to authorize a release of that information.
Arguably, the failure to follow up on the Social Security information was a missed
opportunity to learn if respondent was a source of that income and to acquire his contact
information.” Supra ¶ 77. According to the majority, “[t]here is no explanation in the record
why the Department chose not to pursue further inquiry into” this information. Supra ¶ 78.
I disagree.
¶ 123 The circuit court addressed the issue of Social Security benefits in its ruling denying
respondent’s section 2-1401 petition, stating:
“There was an issue with respect to the children receiving Social Security benefits
through [respondent] and whether or not there was a diligent effort made to pursue
that information. The evidence that the Court heard was uncontradicted that the
mother said she was getting Social Security benefits for the kids, but there was no
indication from any of the caseworkers involved that the children were receiving
benefits from the father. And even if there had been, the evidence was that the
Department would not have been able to access that information without a release
[from respondent], would not have been able to garner any information regarding his
whereabouts without that release.”
As the State points out, Findley told the Department’s investigator, Stanfill, that she had
bipolar disorder and that she and one of her children received Social Security benefits. Thus,
there was no reason for Stanfill to ask Findley whether she was receiving dependent benefits
through respondent. I disagree, therefore, with the majority’s conclusion that the Department
was required to investigate Findley’s Social Security benefits.
¶ 124 Third, the majority states that respondent “called Findley during a supervised visitation
but no effort was made to obtain respondent’s contact information during that incident” or
thereafter. Supra ¶ 79. However, according to a permanency report prepared by Seidelman,
who was present during the call, Findley denied knowing where respondent was or how to
reach him and stated that she did not have a telephone number for respondent or his sister,
the person who had actually placed the call on respondent’s behalf. Further, Assistant State’s
Attorney McLauchlan testified at a permanency hearing held on October 31, 2007, that
Findley was apparently able to contact respondent but that she chose “not to reveal any
further information about him.” Thus, the majority’s assertion that the Department made no
further inquiries of Findley regarding respondent’s location is incorrect. The Department did
make efforts to contact respondent through Findley, but Findley refused to cooperate.
¶ 125 Finally, the majority concludes that the Department could have taken further action based
on the separate child support action that was filed against respondent. The majority states:
“In addition, the complaint in the separate child support action indicated 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
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date of birth, Social Security number, and physical description. It also 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,
but otherwise conducted no followup on respondent’s personal information contained
in that report. Again, the record is silent on why the Department conducted no further
inquiry.” Supra ¶ 80.
¶ 126 I disagree with the majority’s conclusion that the child support complaint is relevant to
the issue of whether a diligent inquiry was conducted. The complaint in the support action
was not filed until November 6, 2007, four days after the affidavit for service by publication
in the termination case had been filed. There is no basis in section 2-16(2) for requiring
further diligent inquiry on the part of the Department after the affidavit has been filed.5 In re
A.S.B., 293 Ill. App. 3d 836, 843 (1997) (“We know of no precedent that would require the
State to conduct a second diligent inquiry after it had completed its initial diligent inquiry
pursuant to the Act.”).
¶ 127 Further, as the majority itself notes earlier in its opinion, at some point, “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.” Supra ¶ 30.6 Thus, contrary to the majority’s
statement, the Department did follow up on the personal information attached to the child
support complaint.
¶ 128 In light of the foregoing, I disagree with the majority’s conclusion that the Department
failed to conduct a diligent inquiry prior to serving respondent by publication in November
of 2007. However, for the reasons set forth below, I agree that the judgment terminating
respondent’s parental rights must be set aside.
¶ 129 On November 2, 2007, Assistant State’s Attorney McLauchlan filed the affidavit in
support of the second service by publication in the termination case. The affidavit stated that
respondent’s address was unknown.
¶ 130 Four days later, on November 6, 2007, an unidentified McLean County assistant State’s
Attorney filed a complaint for child support against respondent in a separate action in the
circuit court of McLean County. As noted, attached to the complaint was the case detail
report which listed respondent’s mailing address as his sister’s home in Lake Villa, Illinois.
5
With respect to the September 2006 notice, the majority is properly critical of the State for
relying on a computer search conducted by the Department after the affidavit in support of
publication had been filed. Supra ¶ 69. Yet, with respect to the November 2007 notice, the majority
relies on the complaint for child support which, as noted above, was filed after the affidavit for
publication was filed.
6
Seidelman signed and verified the complaint in the child support action on October 9, 2007.
The “case detail report” from the Department of Public Aid, the document which contained
respondent’s personal information and which was attached to the complaint, was dated October 29,
2007. The case detail report was thus attached to the child support complaint, presumably by the
assistant State’s Attorney, after the complaint was signed by Seidelman. It is not clear, therefore,
when Seidelman became aware that the Villa Park address had been used in the child support action.
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¶ 131 On November 15, 2007, notice to respondent of the petition to terminate parental rights
was published.
¶ 132 On December 7, 2007, Assistant State’s Attorney Dean Engelbrecht sent a letter to
respondent in care of a Lake County health department treatment center located in Grayslake,
Illinois. The letter referenced a telephone conversation, held on December 5, 2007, between
respondent, his caseworker and Engelbrecht, and stated that an agreed support order was
enclosed. The letter asked respondent to sign the agreed support order and return it to
Engelbrecht for entry by the circuit court. The record does not indicate how Engelbrecht
acquired the Grayslake address.
¶ 133 On December 19, 2007, the circuit court entered an order in the termination case finding
that respondent was in default and that he was unfit on the grounds alleged in the termination
petition.
¶ 134 On January 3, 2008, the circuit court in the support action entered the agreed child
support order. The order was served on respondent at the Grayslake address.
¶ 135 On March 7, 2008, three months after Englebrecht had contacted respondent, the circuit
court entered a final judgment terminating respondent’s parental rights.
¶ 136 Based on these facts, respondent contends that the November 2007 service by publication
was invalid because the McLean County State’s Attorney not only knew where respondent
was located, but had, in fact, communicated with him three months prior to entry of the
judgment terminating his parental rights.
¶ 137 The State maintains, however, that once the affidavit was filed on November 2, 2007, and
the publication notice issued, neither the Department nor the State’s Attorney had any further
obligation to investigate under section 2-16(2), “regardless of what anyone may have learned
thereafter.” I agree with the State that the obligation to conduct a diligent inquiry ended with
the filing of the affidavit. But that is not the question before us.
¶ 138 The question here is whether service by publication will be considered valid and
sufficient to confer personal jurisdiction on the circuit court under section 2-16(2) where,
after notice is published, but several months prior to the entry of a default judgment
terminating parental rights, the prosecuting State’s Attorney is in actual contact with the
parent. I believe the answer to this question is “no.”
¶ 139 Section 2-16(2) provides that service by publication is only permissible “[w]here a
respondent’s usual place of abode is not known.” 705 ILCS 405/2-16(2) (West 2008).
Further, the interest at stake here, the termination of parental rights, is quite high and
constructive notice is, as a general rule, disfavored. A reviewing court may presume that the
legislature did not intend absurd, inconvenient, or unjust consequences. People v. Marshall,
242 Ill. 2d 285, 293 (2011). The General Assembly could not, in my view, have intended that
publication notice stand as sufficient in these circumstances. Accordingly, I would hold that
where, as here, the prosecuting State’s Attorney is in actual contact with a parent several
months prior to the entry of a default judgment terminating parental rights, a previously
issued publication notice is insufficient, under section 2-16(2), to confer personal jurisdiction
on the circuit court.
¶ 140 The State maintains, however, that even if Engelbrecht was in actual contact with
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respondent, he was not the assistant State’s Attorney of record in the termination proceeding
and, therefore, the McLean County State’s Attorney cannot be charged with knowledge of
respondent’s location in that action. I disagree.
¶ 141 There is no dispute that the McLean County State’s Attorney was the prosecuting officer
of both the termination proceeding and the child support action. There is also no dispute that
Engelbrecht and McLauchlan, the assistant State’s Attorney responsible for the termination
proceeding, were agents of the McLean County State’s Attorney. The “general rule is that
a principal is affected with knowledge of all material facts of which his or her agent receives
notice or acquires knowledge while acting in the course of the agent’s employment and
within the scope of his or her authority.” 1 Ill. L. and Prac. Agency § 54, at 556 (2010). As
the Restatement explains:
“Imputation charges a principal with the legal consequences of having notice of
a material fact, whether or not such fact would be useful and welcome. If an agent
has actual knowledge of a fact, the principal is charged with the legal consequences
of having actual knowledge of the fact.” Restatement (Third) of Agency § 5.03, cmt.
b, at 361 (2006).
The State offers no argument as to why the rules of agency law should be inapplicable here.
Accordingly, under these facts, I would hold that the November 2007 publication notice was
invalid and failed to confer personal jurisdiction on the trial court.
¶ 142 For these reasons, I agree that the order terminating respondent’s parental rights must be
set aside.
¶ 143 JUSTICE FREEMAN joins in this special concurrence.
¶ 144 JUSTICE THEIS, specially concurring:
¶ 145 I concur in the result reached by the majority and agree that the September 2006
publication notice was invalid because the Illinois Department of Children and Family
Services (Department) failed to conduct a diligent inquiry before that notice was issued as
required under section 2-16(2) of the Juvenile Court Act (Act) (705 ILCS 405/2-16(2) (West
2006)). I write separately because I disagree with the majority’s treatment of respondent’s
argument concerning the second publication notice that was issued in November 2007.
¶ 146 The majority concludes that because the State and the Department failed to perform the
requisite diligent inquiry under section 2-16(2), the State’s attempts at service by publication
were defective and did not confer personal jurisdiction on the trial court. Respondent does
not contend, however, that the additional efforts made to locate him prior to the issuance of
the second publication notice in November 2007 failed to satisfy the diligent inquiry
requirement under the Act. Instead, he contends that the publication notice issued prior to the
termination proceeding was not valid because the Department had knowledge of his address
before the notice was published on November 15, 2007. Consequently, respondent argues
that the publication notice was invalid because section 2-16(2) does not authorize service by
publication where a respondent’s address is known. I agree.
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¶ 147 As the majority recognizes, when personal service under section 2-15 (705 ILCS 405/2-
15 (West 2006)) cannot be accomplished, the Act provides for two other mechanisms for
service of summons. Section 2-16(1) allows for service by certified mail when personal
service under section 2-15 is not made within a reasonable time or it appears that the
respondent resides outside of the state. 705 ILCS 405/2-16(1) (West 2006). Section 2-16(2)
allows, as a last resort, for service by publication. 705 ILCS 405/2-16(2) (West 2006).
Specifically, section 2-16(2) authorizes service by publication, in pertinent part, when the
following requirements are met:
“Where a respondent’s usual place of abode is not known, a diligent inquiry shall be
made to ascertain the respondent’s current and last known address. *** If, after
diligent inquiry made at any time within the preceding 12 months, the usual place of
abode cannot be reasonably ascertained, or if respondent is concealing his or her
whereabouts to avoid service of process, petitioner’s attorney shall file an affidavit
at the office of the clerk of court in which the action is pending showing that
respondent on due inquiry cannot be found or is concealing his or her whereabouts
so that process cannot be served. The affidavit shall state the last known address of
the respondent. The affidavit shall also state what efforts were made to effectuate
service.” 705 ILCS 405/2-16(2) (West 2006).
If the notice of the termination proceeding that was published on November 15, 2007, was
valid under section 2-16(2), the trial court would have acquired personal jurisdiction over
respondent for the entire termination proceeding. See In re M.W., 232 Ill. 2d 408, 429 (2009)
(once personal jurisdiction over a parent is obtained, that jurisdiction continues until the
matter is resolved).
¶ 148 In this case, McLean County Assistant State’s Attorney Madeline McLauchlan filed the
affidavit for service by publication regarding the petition to terminate parental rights on
November 2, 2007, which stated that respondent’s address was unknown. On November 6,
2007, an unnamed McLean County assistant State’s Attorney filed the complaint against
respondent in the separate child support action. The complaint included the case detail report
from the Illinois Department of Public Aid, dated October 29, 2007, which identified
respondent’s mailing address in Lake Villa, Illinois. The obligee in the child support action
was “Illinois-Foster Care, DCFS.” The minor’s caseworker in the termination case, Laura
Seidelman, had also signed and verified the complaint, dated October 9, 2007, in the child
support matter. On November 8, 2007, the summons in the child support case was issued for
respondent at the address in Lake Villa. On November 15, 2007, notice to respondent of the
petition to terminate parental rights was published. On November 19, 2007, four days after
the notice to respondent was published in this case, the sheriff attempted service of the issued
summons in the child support case at the Lake Villa address, but returned it as unserved. The
sheriff wrote on the summons that an unidentified relative claimed that respondent did not
live there and did not provide any additional information about respondent.
¶ 149 In my view, the McLean County State’s Attorney’s office and the Department could not
represent in the child support action that it had knowledge of respondent’s address, but in this
action serve him by publication. Although the attempt at service in the child support action
was ultimately unsuccessful, it was not returned as unserved until four days after publication
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notice in the instant case. Section 2-16(2) of the Act does not authorize service by
publication where 1a respondent’s address is known. While I recognize that section 2-16(2)
is silent as to what occurs when the State and the Department acquire knowledge of a
respondent’s address subsequent to the filing of the affidavit, I decline to read into the statute
that they may simply disregard knowledge of a respondent’s address that may be discovered
prior to the date that notice of a proceeding is published. See, e.g., In re D.D., 196 Ill. 2d 405,
418-19 (2001) (the cardinal rule of statutory interpretation is to give effect to the intent of
the legislature, while presuming the legislature did not intend to create absurdity,
inconvenience, or injustice); see also In re A.S.B., 293 Ill. App. 3d 836, 843 (1997) (the
State’s responsibility under section 2-16(2) was complete after it conducted a diligent inquiry
in search of the minor’s father, memorialized that inquiry in an affidavit, requested notice
by publication, and published that notice in the local paper). Consequently, under the unique
circumstances in this case, I would find that because the State and the Department
represented that they had knowledge of respondent’s address in the child support action prior
to the publication notice on November 15, 2007, that notice was invalid and failed to confer
personal jurisdiction on the trial court.
¶ 150 For these reasons, I concur with the result of the majority in reversing the appellate
court’s judgment; vacating the trial court’s order terminating respondent’s parental rights;
and remanding for further proceedings.
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