People v. Anne G. ( 2011 )

FIRST DIVISION
FILED: February 16, 2011
No. 1-10-2893
In re B.G., a minor, ) Appeal from the
) Circuit Court of
Respondent-Appellant, ) Cook County.
)
(THE PEOPLE OF THE STATE OF )
ILLINOIS, )
)
Petitioner, ) No. 05 JA 00344
)
v. )
)
Anne G., ) Honorable
) Mary L. Mikva,
Respondent-Appellee). ) Judge Presiding.
JUSTICE HOFFMAN delivered the judgment of the court, with
opinion.
Justices Lampkin and Rochford concurred in the judgment and
opinion.
OPINION
The office of the Cook County public guardian (Public
Guardian), acting on behalf of B.G., appeals from the circuit
court’s decision to vacate, pursuant to section 2-1401 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)), its
prior judgment terminating the parental rights of Anne G., B.G.’s
natural mother.1 For the reasons that follow, we reverse the
judgment of the circuit court.
Our analysis of the issues presented requires consideration of
the facts and procedural history of the termination proceedings and
1
The State’s motion for leave to adopt the brief filed by
the Public Guardian on behalf of B.G. was granted on January 26,
2011.
No. 1-10-2893
Anne G.’s prior appeal. The record establishes that on April 1,
2005, the State filed a petition for adjudication of wardship,
alleging that B.G. was neglected because he was not receiving the
necessary and proper care as required by law. According to the
petition, Anne G. was currently incarcerated and had left B.G.
without an adequate care plan. Following an adjudicatory hearing,
B.G. was found to be neglected, and a dispositional order was
entered, finding that Anne G. was unable to care for B.G.,
adjudicating him a ward of the court, and placing him in the
guardianship of the Department of Children and Family Services
(DCFS). After conducting a permanency hearing, the court entered
an order setting the goal of returning B.G. home within 12 months.
Following a second permanency hearing in December 2006, the circuit
court found that Anne G. had made no real progress toward the goal
of returning B.G. home, and the permanency goal was changed to
substitute care pending termination of parental rights. The State
filed a petition for termination of parental rights on June 25,
2007.
When the matter came before the court for the termination
hearing on August 11, 2008, Anne G. was not present. Her attorney,
an assistant public defender, requested a continuance and indicated
that he “knew” that she was aware of the hearing date because she
had been in contact “with the agency.” He further indicated that
he had attempted to contact Anne G. but her telephone number was no
longer in use, and he speculated that Anne G. had a new telephone
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No. 1-10-2893
number. The court denied the request for a continuance because
there was no specific reason for Anne G.’s absence.
At the termination hearing, the court heard testimony from
Ebony Bradford, the social worker who was assigned to B.G.’s case,
and from Terria Dunlap, Bradford’s supervisor. The testimony of
these witnesses indicated that in July 2005, Anne G.’s service plan
included referrals for substance abuse treatment, random drug
testing, psychological and psychiatric evaluations, individual
therapy, parent-child therapy, parenting classes, and domestic
violence classes. However, as of March 12, 2006, Anne G. had not
provided the agency with proof that she had completed any of these
services. Though Anne G. acted appropriately and brought food or
gifts during her supervised visits with B.G., the frequency of
those visits was characterized as less than satisfactory because
Anne G. did not attend more than 50% of the scheduled visits. In
addition, Anne G. had been incarcerated on three separate
occasions: from September 2005 to October 2005, from January 2006
to March 2006, and from April 2007 to October 2007. During those
periods of incarceration, Anne G. chose not to request visits with
B.G. because she did not want her son to see her in that
environment.
As of December 2006, Anne G. had completed a 30-day inpatient
substance abuse program and was required to participate in an
outpatient program, obtain a sponsor, attend Narcotics Anonymous
(NA) and Alcoholics Anonymous (AA) meetings, and submit to random
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No. 1-10-2893
drug testing. According to Bradford and Dunlap, Anne G. did not
provide any proof that she had achieved these goals. The testimony
of these witnesses also indicated that Anne G. had complied with
less than 50% of the random drug tests and that at least 90% of the
tests she did complete were positive for either cocaine, opiates,
or a combination of both. As of the date of the termination
hearing, Anne G. still needed to address her substance abuse
issues, attend individual therapy, attend parent-child therapy,
obtain a sponsor, attend NA/AA meetings, complete psychological and
psychiatric evaluations, attend parenting classes, and make herself
available for random drug testing.
Though Dunlap was aware that Anne G. had received treatment
for depression from Dr. Menezes at Riverside Hospital, Dunlap had
been unable to contact the doctor, and Anne G. had not provided
proof that she had been treated by Dr. Menezes during the previous
two or three years. Dunlap testified that Anne G. was required to
address her substance abuse issues before she could participate in
other services, including mental health services. In addition to
the testimony of Dunlap and Bradford, the court admitted into
evidence certified copies of conviction establishing that Anne G.
had one conviction for forgery (720 ILCS 5/17-3(a)(2) (West 2004))
and two separate convictions for possession of a controlled
substance (720 ILCS 570/402(c) (West 2004)).
At the conclusion of the termination hearing, the circuit
court found Anne G. to be unfit based on her failure to make
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No. 1-10-2893
reasonable efforts to correct the conditions which were the basis
for B.G.'s removal or make reasonable progress toward B.G.'s return
(750 ILCS 50/1(D)(m)(i)(ii) (West 2006)); her failure to maintain
a reasonable degree of interest, concern, or responsibility in the
welfare of B.G. (750 ILCS 50/1(D)(b) (West 2006)); and her
inability to discharge her parental responsibilities because of her
repeated incarceration (750 ILCS 50/1(D)(s) (West 2006)).
Following a best interest hearing, the circuit court found that it
was in B.G.'s best interest to terminate Anne G.’s parental rights
and appoint a guardian with the right to consent to adoption.
On September 5, 2008, Anne G. filed a pro se notice of appeal.
Her opening brief, which was filed by an assistant public defender,
did not argue that she had never received notice of the termination
hearing. After the State filed its response brief, Anne G. hired
private counsel to prepare and file her reply brief, which raised
the issue of lack of notice for the first time. On January 29,
2009, this court affirmed the circuit court’s termination of Anne
G.’s parental rights, but declined to address the merits of the
lack-of-notice issue, finding that it had been forfeited by the
failure to raise it in her opening brief. See In re B.G., No. 1-
08-2493 (2009) (unpublished order under Supreme Court Rule 23).
Anne G. thereafter filed a petition for leave to appeal (PLA) to
the supreme court. The PLA was denied on April 3, 2009, and her
request for leave to file a motion to reconsider was denied on May
7, 2009.
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No. 1-10-2893
On June 9, 2009, Anne G. filed a section 2-1401 petition to
vacate the termination of her parental rights, asserting that she
could satisfy the criteria necessary for postjudgment relief,
including a meritorious defense in the original action, due
diligence in presenting that defense, and due diligence in filing
the petition. In particular, Anne G. asserted that because she had
not received notice of the termination hearing that was conducted
on August 11, 2008, her failure to appear and present evidence at
the hearing was excusable. She further asserted that, if she had
been notified of the hearing, she would have been able to introduce
evidence establishing that she was a fit parent for B.G.
In support of her petition, Anne G. filed an affidavit
attesting that her trial attorney did not give her notice of the
termination hearing and that, if he had done so, she would have
appeared and rebutted the charges of unfitness. Anne G.’s
affidavit set forth in detail the nature of the evidence that she
would have presented at the termination hearing.
The State filed a motion to dismiss and a response to the
section 2-1401 petition. The Public Guardian responded to the
petition on behalf of B.G. and contended that the law-of-the-case
doctrine barred Anne G.’s attempt to relitigate the same notice
issue ruled on by the appellate court. The Public Guardian also
asserted that Anne G. had failed to allege evidence of a
meritorious defense. Anne G. filed a reply and submitted a
supplemental affidavit in support thereof.
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No. 1-10-2893
The circuit court bifurcated the postjudgment proceedings and
conducted separate evidentiary hearings on the issues of whether
Anne G. had exercised due diligence and whether she could have
presented evidence of a meritorious defense to the charges of
unfitness. The court found that Anne G. had exercised due
diligence in defending the termination proceeding and in bringing
the section 2-1401 petition and that she had presented sufficient
evidence to establish that she had a meritorious defense to the
termination petition. Accordingly, the court granted Anne G.’s
petition for postjudgment relief. This appeal followed.
The Public Guardian claims that the circuit court erred in
failing to find that, because the termination of Anne G.’s parental
rights had been affirmed on direct appeal, she was precluded from
raising the issues asserted in her section 2-1401 petition. We
must agree.
Under the doctrine of res judicata, a final judgment on the
merits rendered by a court of competent jurisdiction bars any
subsequent actions between the same parties or their privies on the
same cause of action. Hudson v. City of Chicago, 228 Ill. 2d 462,
467, 889 N.E.2d 210 (2008); Rein v. David A. Noyes & Co., 172 Ill.
2d 325, 334, 665 N.E.2d 1199 (1996). Res judicata bars not only
what was actually decided in the first action, but also whatever
could have been decided. Hudson, 228 Ill. 2d at 467. Three
requirements must be satisfied for res judicata to apply: (1) the
rendition of a final judgment on the merits by a court of competent
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No. 1-10-2893
jurisdiction; (2) the existence of an identity of cause of action;
and (3) the parties or their privies are identical in both actions.
Hudson, 228 Ill. 2d at 467.
In this case, the circuit court terminated Anne G.’s parental
rights after conducting a full evidentiary hearing, and this court
affirmed that judgment on the merits in resolving the direct
appeal. See In re B.G., No. 1-08-2493 (2009) (unpublished order
under Supreme Court Rule 23). Thereafter, Anne G. filed a petition
for postjudgment relief, challenging the circuit court’s prior
judgment of unfitness and the best interest of B.G. The
substantive contentions asserted in the section 2-1401 petition are
identical to the issues decided in the termination proceeding, and
the parties to both proceedings are the same. Under these
circumstances, the doctrine of res judicata precluded any further
litigation of Anne G.’s unfitness or the best interest of B.G. See
Hudson, 228 Ill. 2d at 467. Consequently, the circuit court erred
in granting Anne G.’s petition for postjudgment relief.
As a final matter, we observe that the Public Guardian argued
in the circuit court and on appeal that the doctrine of law of the
case barred Anne G. from raising the issues asserted in her section
2-1401 petition. Under the law-of-the-case doctrine, a court’s
unreversed decision on an issue that has been litigated and decided
on appeal settles the question for all subsequent stages of the
action. Miller v. Lockport Realty Group, Inc., 377 Ill. App. 3d
369, 374, 878 N.E.2d 171 (2007). We note, however, that, because
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No. 1-10-2893
a section 2-1401 petition initiates a separate action, (Sarkissian
v. Chicago Board of Education, 201 Ill. 2d 95, 102, 776 N.E.2d 195(2002)), the contentions raised in Anne G.’s petition for
postjudgment relief are barred by res judicata, rather than the
doctrine of law of the case. Though the Public Guardian cited the
doctrine of law of the case in opposing the section 2-1401
petition, its argument on the question of preclusion was
sufficiently preserved and not forfeited for purposes of appeal.
For the foregoing reasons, the judgment of the circuit court
of Cook County is reversed.
Reversed.
9