In re Adoption of M.A.E.

2022 IL App (5th) 210291-UNOTICE
NOTICE
Decision filed 02/18/22. The
This order was filed under
text of this decision may be NO. 5-21-0291
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re ADOPTION OF M.A.E., a Minor ) Appeal from the
) Circuit Court of
(Michael H. and Savannah H., ) Madison County.
)
Petitioners-Appellees, )
)
v. ) No. 19-AD-32
)
Dean T. Jr., ) Honorable
) Maureen D. Schuette,
Respondent-Appellant). ) Judge, presiding.
______________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court.
Justices Cates and Vaughan concurred in the judgment.
ORDER
¶1 Held: The trial court correctly found that the respondent father never properly served
process of the petition to set aside a judgment of adoption where his only attempts
at service were by email and by leaving a copy of the petition in the mailbox. The
petitioners did not voluntarily submit to the jurisdiction of the court where their
attorney participated in status hearings and filed a motion to strike his petition to
set aside judgment based on the lack of proper service but did not file any pleadings
addressing the merits of his petition. The respondent father was not entitled to
additional time to effectuate proper service where he did not satisfy his burden of
demonstrating that he exercised due diligence in attempting to provide proper
service.
¶2 The respondent, Dean T., is the biological father of M.A.E., the child at issue in this appeal.
The petitioners, Michael H. and Savannah H., are the child’s biological mother and stepfather.
They filed a petition to adopt M.A.E., which was granted by the trial court. The respondent
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subsequently filed a petition for relief from judgment pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2016)). The court dismissed his petition on the basis
that it was not properly served on the petitioners. On appeal, the respondent argues that (1) he was
denied due process during the adoption proceedings because the court held a final hearing in the
matter while he was incarcerated and unable to attend; (2) the court’s findings of unfitness in the
adoption proceedings were against the manifest weight of the evidence; and (3) the court erred in
dismissing his section 2-1401 petition. We note that while the respondent filed a timely appeal
from the order dismissing his section 2-1401 petition, he did not file a timely appeal from the final
order in the adoption proceedings. Therefore, only his third argument is properly before us. We
affirm.
¶3 I. BACKGROUND
¶4 M.A.E. was born to Savannah and the respondent in August 2008. Savannah subsequently
married Michael.
¶5 On April 1, 2019, the petitioners filed a petition to adopt M.A.E. They alleged that the
respondent was an unfit parent because he deserted M.A.E. (750 ILCS 50/1(D)(c) (West 2016));
he abandoned M.A.E. (id. § 1(D)(a)); he failed to maintain a reasonable degree of care, concern,
and interest in the welfare of the child (id. § 1 (D)(b)); he failed to pay court-ordered child support
and otherwise failed to provide financial support for the child for more than a year during which
the stepfather did provide support (id. § 1(D)(n)(2)(ii)); he failed to provide the child with adequate
food, clothing, and shelter (id. § 1(D)(o)); and he failed to maintain contact with both the child and
the child’s mother (id. § 1(D)(n)(1)). In addition, the petitioners alleged that they had the character,
ability, and means to raise, nurture, and educate M.A.E., and that adoption by Michael was in the
child’s best interests.
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¶6 On May 28, 2019, the court received a letter from the respondent. In it, he stated that he
had been incarcerated in Jefferson County, Missouri, “on child support” between April 3 and May
18, 2019. He stated that he received a summons during that time. The respondent further averred
that, at the time of his letter, he was on probation. He indicated that he intended to appear in court
in the adoption proceedings. He explained, however, that he required 15 days’ notice to obtain a
“travel ticket” from the Missouri Probation Department in order to be permitted to leave Missouri
to attend a hearing in Illinois. The respondent provided two phone numbers.
¶7 A June 10, 2019, docket entry states as follows: “Per Judge Mengarelli’s instructions: calls
were made to Dean [T.] at both numbers listed on his letter of 5/28/19. No contact was made at
either number.”
¶8 On June 19, 2019, the court held a case management conference and set a final hearing in
the matter for July 25, 2019. According to the petitioners’ attorney, the respondent’s mother called
the court on June 23, 2019, indicating that her son would not be able to attend the July 25 hearing
because he was incarcerated in St. Louis County, although there is no note of this call in the docket
entries. There is no indication in the record that the respondent requested a continuance or asked
to participate in the hearing remotely.
¶9 At the beginning of the July 25, 2019, hearing, the petitioners’ attorney informed the court
that the respondent was incarcerated in Missouri. She stated, “I know he has not been released, so
he’s not going to be here.” The court therefore allowed the hearing to proceed without waiting for
the respondent to arrive.
¶ 10 Savannah testified that the respondent was M.A.E.’s biological father and that the last time
the respondent had seen his child was in 2016. She acknowledged, however, that the respondent
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asked to see the child in March 2019, after he was incarcerated for failure to pay child support.
She testified that she had never done anything to preclude the respondent from contacting her.
¶ 11 When asked about financial support for the child, Savannah testified that the respondent
paid court-ordered child support in June and July of 2019, but she stated that this was the first time
he had done so in two years. She noted that he made these payments after she and Michael filed
the petition to adopt. Savannah testified that Michael provided for M.A.E. financially and
otherwise acted as a father to him. She further testified that the respondent never actively cared for
his son.
¶ 12 The court found that the petitioners had proven that the respondent was unfit by clear and
convincing evidence. The court then moved on to the best-interests portion of the termination
hearing.
¶ 13 Both petitioners testified that Michael and M.A.E. loved each other and had bonded with
each other, and that M.A.E. had also bonded with Michael’s family. Michael testified that he
considered M.A.E. to be his son. The court-appointed guardian ad litem for the child stated that
she believed it was in the best interests of the child for the respondent’s parental rights to be
terminated and for the child to be freed for adoption. The court found that the petitioners had
proven by a preponderance of the evidence that termination of the respondent’s parental rights was
in the child’s best interests.
¶ 14 The court next considered whether being adopted by Michael was in M.A.E.’s best
interests. During this portion of the hearing, the court also considered a pending petition to adopt
Savannah’s nephew, who had been in the petitioners’ care since Savannah’s sister died. Although
the adoption of Savannah’s nephew is not at issue, the testimony of the petitioners related to both
children. The petitioners each testified that they believed that adoption would be in the best
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interests of both boys. Savannah testified that she understood that she and Michael would have
equal rights regarding the two children, and Michael testified that he understood that he would
bear equal responsibility for their care and support. The guardian ad litem recommended that the
court grant both petitions for adoption. The court ruled that it would grant the petitions.
¶ 15 That same day, the court entered an order terminating the respondent’s parental rights and
another order granting the petition to adopt M.A.E. In the order terminating the respondent’s
parental rights, the court expressly found that the respondent was served with summons and
entered his appearance in the case, but did not file an answer. The court stated that the allegations
in the petitioners’ complaint were therefore “deemed true and confessed” by the respondent. The
court further found that the respondent failed to appear at the hearing despite having notice. The
court found the respondent unfit on seven different grounds. The court also found that termination
of the respondent’s parental rights was in the child’s best interests after consideration of the
petitioners’ testimony and the report of the guardian ad litem.
¶ 16 On September 26, 2019, the respondent, through newly retained counsel, filed the section
2-1401 petition at issue in this appeal. He alleged that he did not receive notice of the final hearing
and that he was unable to attend because he was incarcerated at the time. He further alleged that
he was not represented by counsel during the adoption proceedings. He requested that the court
vacate both the order terminating his rights and the judgment of adoption. The petition was
supported by an affidavit from the respondent. In the proof of service filed by the respondent, his
attorney certified that the complaint was served on the Madison County State’s Attorney’s office.
¶ 17 In late December 2019 and early January 2020, the petitioners’ attorney, Deborah Crouse
Cobb, and the respondent’s attorney, Phillip Baldwin, corresponded about the case by email.
Printouts of their relevant emails are attached to later pleadings as exhibits. In a December 19
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email, Cobb informed Baldwin that the petitioners had never been properly served. She wrote, “If
you opt to fix this, my clients have authorized me to accept service and notice because they would
prefer that no one come to their house to serve anything.” She also informed Baldwin that during
the adoption proceedings, the respondent’s mother called the court clerk’s office to inform the
court that the respondent would be unable to attend the final hearing because he was then
incarcerated in St. Louis County. According to Cobb, this phone call occurred on June 23, 2019,
shortly after the court had set the matter for a final hearing on July 25, 2019. As stated earlier, the
respondent did not request a continuance, and it is not clear on the record whether he attempted to
make arrangements to participate in the hearing remotely.
¶ 18 In a subsequent email, Cobb sent Baldwin an authorization to accept process on behalf of
the petitioners. On January 6, 2020, Baldwin emailed Cobb a copy of the complaint. In the body
of the email, he stated, “Please find the attached documents above. I am sending these to you as
you have agreed to accept service on behalf of [M.A.E.]”
¶ 19 In March 2020, the original trial judge, Judge Mengarelli, recused himself due to a conflict
of interest with Baldwin’s law firm. The case was reassigned to Judge Schuette.
¶ 20 The matter came for a status hearing on June 30, 2020. At that time, Judge Schuette granted
the petitioners’ oral motion to strike pleadings and dismiss the case due to a lack of proper service.
¶ 21 On July 2, 2020, the respondent refiled his section 2-1401 petition. The record contains a
proof of service stating that a copy of the petition was hand-delivered to Cobb at her office and
that a copy was mailed to the guardian ad litem. The proof of service was signed by attorney
Baldwin.
¶ 22 On August 5, 2020, the petitioners filed a written motion to strike the respondent’s
pleading. In it, they alleged that in spite of the statement in the proof of service alleging hand
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delivery, Cobb found the petition loose in her mailbox. It was not in a sealed envelope addressed
to her and did not have postage affixed. The court granted the motion on August 19, 2020.
¶ 23 On September 8, 2020, the respondent filed a motion to reconsider that ruling. In it, he
alleged that as follows:
“On July 2, 2020[,] the Petition for Relief From Judgment was delivered to the Law Office
of Deb Crouse Cobb at 515 West Main Street, Collinsville, Illinois[,] 62234. Current
COVID19 regulations were in place and the office was subsequently locked up. Due to the
unavailability of personal service[,] a copy of the documents were left in the office’s drop
box.”
The respondent further alleged that he also emailed the documents to Cobb on January 6, 2020,
and that the petitioners were aware that he was contesting the adoption.
¶ 24 The matter came for a hearing in April 2021, after numerous delays due to the Covid
pandemic. At that time, the parties agreed to present arguments on the respondent’s motion through
written memoranda.
¶ 25 In the respondent’s written argument, filed in June 2021, he raised the same arguments he
raises in this appeal—that he effectuated proper service in January and July of 2020, that the
petitioners waived proper service by entering a general appearance in the matter, and that the court
should allow him to cure any defect rather than dismissing his section 2-1401 petition with
prejudice on procedural grounds. In the memorandum’s “statement of facts,” he alleged that the
petitioners’ attorney, Cobb, was personally served by special process server John Apperson on
July 2, 2020, an allegation at odds with his previous allegation that Apperson left a copy in Cobb’s
mailbox upon finding her office locked. However, in support of his argument that he should be
given additional time to effectuate proper service, he again asserted that Apperson arrived at
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Cobb’s office only to find the door locked due to Covid restrictions. He further alleged that after
finding the office locked and “ascertaining the presence of individuals inside, Server Apperson
proceeded to serve his documents in accordance with statute.” He did not specify what Apperson
did to serve the documents, however.
¶ 26 In support of the respondent’s contention that the petitioners waived proper service and
voluntarily submitted to the court’s jurisdiction, he alleged that their attorney argued the merits of
the underlying adoption proceedings at an April 2021 status hearing. He did not allege that he
made any other attempts to provide proper service.
¶ 27 Attached to the respondent’s memorandum was a copy of a signed statement by process
server Apperson stating that he hand-delivered the petition to Deborah Crouse Cobb and charging
attorney Baldwin $50 for this service. Also attached were copies of financial records and money
order receipts showing that the respondent had paid $243 per month in child support between
January 2014 and December 2016, and that he paid $365 per month beginning in June 2019. As
we explained earlier, the merits of the underlying adoption proceeding are not before this court.
However, it is worth noting that these records are consistent with the testimony that the respondent
did not pay child support for two years prior to the filing of the adoption petition.
¶ 28 On July 29, 2021, the petitioners filed their memorandum in opposition to the motion to
reconsider. They alleged that during the adoption proceedings, the respondent participated in a
case management conference by telephone. They stated that at that conference, the court offered
to appoint counsel for the respondent, but that he declined the offer, explaining that he preferred
to retain an attorney of his own choice. The petitioners further alleged that they became aware of
the respondent’s section 2-1401 petition when they were told about it by the Madison County
State’s Attorney’s office. They argued that placing documents in a mailbox does not constitute
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proper service, and that they did not waive proper service because they did not present arguments
on the merits at any time during the section 2-1401 proceedings.
¶ 29 On August 27, 2021, the court denied the respondent’s motion to reconsider. The
respondent then filed this timely appeal.
¶ 30 II. ANALYSIS
¶ 31 Before considering the merits of this appeal, we note that the petitioners did not file a brief.
The record in this case is simple, and we find that the issues can be resolved easily without the aid
of an appellee’s brief. We will therefore address the respondent’s claims on their merits. See
Thomas v. Koe, 395 Ill. App. 3d 570, 577 (2009) (citing First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133 (1976)).
¶ 32 As stated previously, the respondent contends that (1) he was denied due process during
the adoption proceedings; (2) the court’s findings of unfitness in the adoption proceedings were
against the manifest weight of the evidence; and (3) the court erred in dismissing his section 2-
1401 petition. As we explained earlier, however, only the third argument is before us because the
respondent did not file a timely appeal in the adoption proceedings.
¶ 33 The respondent argues that the court erred in dismissing his section 2-1401 petition because
(1) he provided proper service at least twice—by email on January 6, 2020, and by personal service
on July 2, 2020; (2) the petitioners waived any objection to improper service by entering a general
appearance in the proceedings; and (3) alternatively, the court should have allowed him to cure
any defects rather than dismissing his petition outright. We reject each of these contentions.
¶ 34 The issues before us involve questions of whether the petitioners were subject to the
personal jurisdiction of the court. Personal jurisdiction over a party may be established either
through service of process that complies with statutory requirements or through the party’s
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voluntary submission to the court’s jurisdiction. BAC Home Loans Servicing, LP v. Mitchell, 2014
IL 116311, ¶ 18. Whether a court has obtained jurisdiction over a party through either of these
avenues is a question of law subject to de novo review. Witcher v. State Farm Fire & Casualty
Co., 2018 IL App (5th) 170001, ¶ 13; see also KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d
593, 594 (2006) (stating that a de novo standard of review applies when a trial court dismisses a
complaint on jurisdictional grounds without a hearing).
¶ 35 Proper service of process in this case is governed by section 2-203 of the Code of Civil
Procedure (735 ILCS 5/2-203 (West 2018)) and Illinois Supreme Court Rules 105 and 106 (Ill. S.
Ct. R. 105 (eff. Jan. 1, 2018); R. 106 (eff. Aug. 1, 1985)). Section 2-203 applies generally to service
of process in civil suits. The statute mandates that, unless “otherwise expressly provided,” process
must be served on an individual either by leaving a copy of the summons with that individual
personally or by leaving a copy with a family member who is at least 13 years old at the residence
of the individual to be served. 735 ILCS 5/2-203(a)(1), (2) (West 2018). If the summons is left
with a family member at the defendant’s residence, the process server must inform the family
member of the contents of the summons and must also mail another copy of the summons to the
defendant in a sealed envelope addressed to the defendant with postage fully paid. Id. § 2-
203(a)(2). Rules 105 and 106 provide an additional method for service of process in proceedings
on section 2-1401 petitions. Pursuant to these rules, the summons may be served by “prepaid
certified or registered mail addressed to the party, return receipt requested.” Ill. S. Ct. R. 105(b)(2)
(eff. Jan. 1, 2018); see also Ill. S. Ct. R. 106 (eff. Aug. 1, 1985) (providing that notice of the filing
of a section 2-1401 petition must be served using the methods set forth in Rule 105 “for the giving
of notice of additional relief to parties in default”). Service by publication is also permitted under
circumstances not relevant here. See 735 ILCS 5/2-206 (West 2018); Ill. S. Ct. R. 105(b)(3) (eff.
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Jan. 1, 2018). With these requirements in mind, we turn our attention to the respondent’s
contention that he provided proper service of process to the petitioners’ attorney, who was
authorized to accept process on their behalf.
¶ 36 The respondent first argues that he properly served his section 2-1401 petition on the
petitioners via their attorney, Cobb, by email on January 6, 2020. He argues that service by email
is authorized under Supreme Court Rule 11. Although Rule 11 does provide that pleadings may
be served by email, the rule explicitly governs only the service of “documents other than process
and complaint.” Ill. S. Ct. R. 11 (eff. July 1, 2017). As we have just discussed, the relevant statutory
provisions and supreme court rules do not authorize service of process by email. Thus, we reject
the respondent’s argument that service on Cobb by email was proper.
¶ 37 He next argues that he properly served the complaint on Cobb at her office on July 2, 2020.
He points out that the record contains a proof of service certifying that a copy of the petition was
served on Cobb “by hand delivery.” He argues that, in the face of this documentary evidence,
Cobb’s allegation to the contrary was inadequate to prove that she was not properly served. See
Orthopedic & Reconstructive Surgery, S.C. v. Kezelis, 146 Ill. App. 3d 227, 231-32 (1986). We
reject this contention.
¶ 38 The certificate or affidavit of a process server constitutes evidence that process was served.
735 ILCS 5/2-203(a) (West 2018); Mayfield v. Smith, 2019 IL App (1st) 181899, ¶ 31; In re J.B.,
2018 IL App (1st) 173096, ¶ 33. Filing a certificate creates a presumption that a party was properly
served. J.B., 2018 IL App (1st) 173096, ¶ 33. This presumption cannot be overcome without
evidence to the contrary in the form of testimony or an affidavit. Mayfield, 2019 IL App (1st)
181899, ¶ 31; J.B., 2018 IL App (1st) 173096, ¶ 34. A mere assertion that a party did not receive
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service is not sufficient to overcome the presumption. See J.B., 2018 IL App (1st) 173096, ¶ 37;
Kezelis, 146 Ill. App. 3d at 231-32.
¶ 39 Ordinarily, a court faced with competing assertions and documentary evidence on the issue
of proper service should hold an evidentiary hearing to resolve this factual question. See Mayfield,
2019 IL App (1st) 181899, ¶ 32. Here, there was a dearth of even documentary evidence available
upon which the court could base its decision. Although the record contains a proof of service
purporting to certify that “the undersigned” served the complaint on Cobb by hand delivery, it was
signed by Baldwin and did not even name the process server. Likewise, while the petitioners
alleged that Cobb was not personally served, they did not provide any affidavits in support of their
allegation. See J.B., 2018 IL App (1st) 173096, ¶ 37 (rejecting a respondent’s claim that she was
not served where she provided no affidavit or testimony in support of her claim). However, the
respondent acknowledged in his motion to reconsider that his process server left a copy of the
complaint in Cobb’s mailbox. This constitutes a judicial admission that is binding on the
respondent.
¶ 40 A statement of fact in a pleading constitutes a judicial admission that is binding on the
party who made it. The party cannot create a disputed question of fact by subsequently
contradicting a judicial admission. Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845,
¶ 23. Judicial admissions operate as concessions or stipulations, with the effect of taking the facts
admitted out of controversy. Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557 (2005). We note that
a factual admission in an unverified pleading, such as the respondent’s motion, can lose its
preclusive effect if the unverified pleading is superseded by an amended pleading. However, the
admission remains binding as a judicial admission unless and until the party files an amended
pleading. Id. at 559. Here, no amended pleading was filed. Thus, the admission is binding on the
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respondent. In the face of the respondent’s admission that his process server left the complaint in
Cobb’s mailbox, we must reject his argument that he provided proper service.
¶ 41 The respondent next argues that the petitioners waived any objections by entering a general
appearance in the matter. As he correctly contends, a party cannot object to the court’s personal
jurisdiction, including on grounds of insufficient service of process, if that party voluntarily
submits to the court’s jurisdiction. As such, participation in the proceedings can waive objections
to personal jurisdiction. See In re Estate of Ahern, 359 Ill. App. 3d 805, 812 (2005). Here, the
respondent asserts that counsel for the petitioners appeared before the court at multiple case
management conferences and at a motion hearing without entering a special and limited
appearance. He further asserts that their attorney addressed the merits of the underlying adoption
proceedings at an April 2021 status hearing. We are not convinced that the petitioners waived their
objection.
¶ 42 Prior to 2000, the only way a party could appear in court to challenge personal jurisdiction
was by filing a special and limited appearance. KSAC Corp., 364 Ill. App. 3d at 594 (citing 735
ILCS 5/2-301(a) (West 1998)). However, a statutory amendment eliminated the distinction
between general and special appearances. See Mitchell, 2014 IL 116311, ¶¶ 30-31; KSAC Corp.,
364 Ill. App. 3d at 596. As amended, the pertinent statute—section 2-301 of the Code of Civil
Procedure—provides that a party may object to personal jurisdiction on the basis of insufficient
service of process by filing a motion to dismiss or a motion to quash service. 735 ILCS 5/2-301(a)
(West 2018). However, a party waives any objection by “filing any other pleading or motion prior
to the filing of a motion objecting to the court’s jurisdiction over the party’s person” with certain
exceptions not relevant here. Id. § 2-301(a-6); see also In re Estate of Mirabella S., 2018 IL App
13
(3d) 180414, ¶ 11; KSAC Corp., 364 Ill. App. 3d at 596 (quoting Larochelle v. Allamian, 361 Ill.
App. 3d 217, 220 (2005)).
¶ 43 Illinois courts, including our supreme court, have held that a party can also waive
objections to personal jurisdiction by filing a written appearance and appearing in court to make
substantive arguments on the merits without first objecting to personal jurisdiction. See Municipal
Trust & Savings Bank v. Moriarty, 2021 IL 126290, ¶¶ 8, 25 (finding waiver where the party
appeared at a hearing and requested relief other than the dismissal of the proceedings on
jurisdictional grounds); King v. Find-a-Way Shipping, LLC, 2020 IL App (1st) 191307, ¶ 20
(finding waiver where the party filed a general appearance and an answer on the same date it filed
a motion objecting to personal jurisdiction); Pro Sapiens, LLC v. Indeck Power Equipment Co.,
2019 IL App (1st) 182019, ¶ 90 (explaining that “[w]aiver of personal jurisdiction occurs when a
party files a general appearance in a case without immediately objecting to personal jurisdiction”
and that appearing in court without objecting to personal jurisdiction is submitting to the court’s
jurisdiction). It is also worth noting that some courts have continued to make a distinction between
general and special appearances in spite of the statutory amendment. See KSAC Corp., 364 Ill.
App. 3d at 595-96 (discussing Ahern, 359 Ill. App. 3d at 812, and Haubner v. Abercrombie & Kent
International, Inc., 351 Ill. App. 3d 112, 117-18 (2004)).
¶ 44 Here, the petitioners never filed a written appearance in the section 2-1401 proceedings,
and the only pleading they filed was a motion to strike the respondent’s petition due to lack of
personal jurisdiction on the grounds of insufficient service of process. That motion, while not
labeled a motion to dismiss, had the effect of requesting dismissal with prejudice. Thus, under the
express terms of the statute, the petitioners did not waive their objection to personal jurisdiction
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because they did not file any motions or responsive pleadings prior to challenging jurisdiction. See
735 ILCS 5/2-301(a-6) (West 2018).
¶ 45 Moreover, because the only matter ever set for argument before the court was the
petitioners’ objection to personal jurisdiction based on inadequate service of process, the
appearance of the petitioners and/or their attorney at case management hearings and the hearing
on that motion cannot be construed as a general appearance or a waiver of their objection. See
Farthing v. Natural Gas Pipeline Co., 74 Ill. App. 3d 958, 964 (1979) (explaining that actions
recognizing a case as being in court constitute general appearances unless they are taken “for the
sole purpose of objecting to the jurisdiction” (citing Lord v. Hubert, 12 Ill. 2d 83, 87 (1957))).
Although the respondent asserts that the petitioners’ attorney addressed the merits of the
underlying adoption case at the April 2021 hearing, the record contains no bystander’s report or
transcript from this hearing. The respondent, as appellant, is responsible for providing us with a
sufficiently complete record to resolve his claims, and any doubts arising from gaps in that record
must be construed against him. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). For these
reasons, we reject the respondent’s contention that the petitioners waived their objection.
¶ 46 Finally, the respondent argues that the court should have allowed him to cure the defect in
his service of process rather than dismissing his complaint with prejudice. We disagree.
¶ 47 Before addressing the respondent’s argument, it is worth reiterating that the court initially
allowed the respondent to refile his case after dismissing it for failure to provide proper service of
process on June 30, 2020. In their subsequent motion to strike the refiled section 2-1401 petition,
the petitioners asserted that the one-year statute of limitations under the Adoption Act (750 ILCS
50/20b (West 2018)) had passed, and that it was therefore “too late” for the respondent to cure the
defects in his service of process. On appeal, the respondent argues that although the petitioners’
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motion did not explicitly cite or refer to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007),
their argument that he should not be given more time to properly serve them appears to be based
on that rule. We agree that the court’s decision should be analyzed under Rule 103(b).
¶ 48 Rule 103(b) provides that a court may dismiss a case if the plaintiff has failed to exercise
reasonable diligence to effectuate service of process. If the lack of due diligence occurs before the
applicable statute of limitations expires, dismissal is without prejudice. After the statute of
limitations has expired, however, “the dismissal shall be with prejudice.” Ill. S. Ct. R. 103(b) (eff.
July 1, 2007). We note that, although we have referred to the parties throughout this case by their
designations in the underlying adoption proceedings, in the section 2-1401 proceedings, the
respondent is the plaintiff, and the petitioners are the defendants.
¶ 49 The purpose of Rule 103(b) is to protect a defendant from unnecessary delay and to prevent
a plaintiff from getting around a statute of limitations by filing suit before the limitations period
expires and then waiting to serve process until the plaintiff is ready to proceed with the litigation.
Christian v. Lincoln Automotive Co., 403 Ill. App. 3d 1038, 1042 (2010). However, public policy
generally favors resolution of disputes on their merits, and dismissal with prejudice pursuant to
the rule “is considered a harsh penalty.” Id.¶ 50 Before the trial court, the plaintiff bears the burden of demonstrating reasonable diligence
in attempting to serve process. The plaintiff “must provide a reasonable explanation for any
apparent lack of diligence.” Kramer v. Ruiz, 2021 IL App (5th) 200026, ¶ 21. In determining
whether a plaintiff has met this burden, courts apply an objective standard. Id. ¶ 22. Relevant
factors include: (1) the length of time that elapsed before process was served; (2) the actions of the
plaintiff in attempting to serve process; (3) the plaintiff’s knowledge of the defendant’s
whereabouts; (4) how easy or difficult it would have been to ascertain the defendant’s
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whereabouts; (5) whether the defendant had actual knowledge of the suit; (6) any special
circumstances that impeded the plaintiff’s efforts to serve process; and (7) actual service. Id. This
is a fact-sensitive inquiry. Id. We review the trial court’s decision for an abuse of discretion. Id.
¶ 20.
¶ 51 Considering the first factor—the time it took to provide proper service of process after the
suit was filed—in this case, more than 10 months elapsed between the date on which the
respondent initially filed his section 2-1401 petition (September 26, 2019) and the date on which
the petitioners filed their written motion asking the court to strike his petition without leave to
refile it (August 5, 2020). At that point, the respondent still had not provided the petitioners with
effective service of process. Although Rule 103(b) does not contain a specific time limit (Kramer,
2021 IL App (5th) 200026, ¶ 25), a delay of five to seven months is generally considered sufficient
“to make a prima facie showing of failure to exercise reasonable diligence” (Verploegh v.
Gagliano, 396 Ill. App. 3d 1041, 1045 (2009)). This factor thus weighs in favor of the court’s
decision to dismiss the case with prejudice.
¶ 52 We turn our attention to the next factor—the actions of the plaintiff. Here, the respondent
made three attempts to serve process during the 10-month period at issue. In his first attempt, he
served process on the Madison County State’s Attorney’s office instead of on the petitioners. In
his second and third attempts, he directed service of process at the petitioners’ attorney, who was
authorized to accept process on their behalf, but he did not comply with the requirements set forth
in the applicable statutes and supreme court rules. The respondent has not alleged, much less
provided any evidence, that he made any other attempts at proper service. This factor likewise
supports the court’s decision.
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¶ 53 The respondent acknowledges that the next two factors—his knowledge of the petitioners’
whereabouts and the ease with which he could have ascertained this information—favor the court’s
decision to dismiss his case. As he acknowledges, he knew the location of their attorney’s office.
¶ 54 We agree with the respondent that the next factor—the defendants’ actual knowledge of
the suit—weighs against dismissal. As the respondent correctly points out, the petitioners were
aware that he had filed a section 2-1401 petition.
¶ 55 The next factor to consider is any special circumstances that impeded the respondent’s
efforts to effectuate proper service of process. He argues that the Covid pandemic frustrated his
efforts. While the pandemic obviously complicated any effort at in-person service beginning in
March 2020, as we have previously discussed, service of process by registered or certified mail is
also proper for a section 2-1401 petition. Ill. S. Ct. R. 105(b)(2) (eff. Jan. 1, 2018); R. 106 (eff.
Aug. 1, 1985). Moreover, the respondent filed his petition in September 2019, six months before
the pandemic began.
¶ 56 The final factor—actual service of process—typically addresses the ease with which
service is eventually effectuated. See, e.g., Womick v. Jackson County Nursing Home, 137 Ill. 2d
371, 381 (1990); Kramer, 2021 IL App (5th) 200026, ¶ 27. Here, proper service was never
effectuated, so this factor is not particularly helpful. Considering all relevant circumstances and
balancing the relevant factors, we can find no abuse of the trial court’s discretion.
¶ 57 III. CONCLUSION
¶ 58 For the foregoing reasons, we affirm the order of the trial court striking the respondent’s
pleadings and dismissing his petition for relief from judgment with prejudice.
¶ 59 Affirmed.
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