People v. Ralph L.

No. 2-10-0044 Filed: 7-27-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re HALEY D., a Minor ) Appeal from the Circuit Court
) of Du Page County.
)
) No. 07--JA--14
)
) Honorable
(The People of the State of Illinois, Petitioner- ) Thomas J. Riggs,
Appellee, v. Ralph L., Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
Respondent, Ralph L., appeals from the orders of the trial court denying his petition to vacate
a default judgment and his motion to amend his petition. We reverse and remand.
On April 11, 2007, the State filed a petition alleging that Haley D. was a neglected minor
pursuant to section 2--3(1)(c) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--3(1)(c)
(West 2006)). Haley was placed in shelter care that day. Natural father Ralph L. received abode
service of the summons, which was left with his mother at the home they shared.1 The trial court
subsequently found Haley to be a neglected minor and, on August 14, 2007, adjudicated her a ward
of the court. The court granted the Department of Children and Family Services (DCFS) custody and
guardianship of Haley and set the permanency goal of return home in 12 months. The case was
continued to February 12, 2008.
1
Natural mother Patricia D. is not part of this appeal.
No. 2--10--0044
On February 19, 2008, the trial court continued guardianship and custody with DCFS and
again set the permanency goal as return home in 12 months. On October 8, 2008, Haley383 Ill. App. 3d 191, 194 (2008). This can be so even where an issue addressed by the trial
court is a question of law. See Engel, 383 Ill. App. 3d at 194. The granting of the petition must be
supported by a preponderance of the evidence. Smith v. Airoom, Inc., 114 Ill. 2d 209, 223 (1986).
In general, to be entitled to relief under section 2--1401, a petitioner must affirmatively set forth
specific factual allegations supporting: (1) the existence of a meritorious defense or claim; (2) due
diligence in presenting that defense or claim to the trial court in the original action; and (3) due
diligence in filing the section 2--1401 petition. Smith, 114 Ill. 2d at 220-21. However, a petition
brought pursuant to section 2--1401(f) to vacate a void order is not amenable to the due diligence,
meritorious defense, and two-year time requirements. Cook v. Burnette, 341 Ill. App. 3d 652, 660
(2003). In addition, equitable powers may require that a judgment be set aside even in the absence
of due diligence by the petitioner. See Salazar v. Wiley Sanders Trucking Co., 216 Ill. App. 3d 863,
871 (1991). One of the guiding principles in the administration of section 2--1401 relief is that the
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petition invokes the equitable powers of the court, which should prevent the enforcement of a
judgment when it would be unfair, unjust, or unconscionable. Smith, 114 Ill. 2d at 225.
Our supreme court held in People v. Vincent, 226 Ill. 2d 1 (2007), that a trial court's sua
sponte dismissal of a criminal defendant's section 2--1401 petition was "the functional equivalent of
a dismissal for failure to state a cause of action" such that, as with any dismissal or judgment on the
pleadings, the dismissal of the petition was subject to de novo review. Vincent, 226 Ill. 2d at 14.
Vincent stated that it is "inaccurate" to continue to view the relief offered by section 2--1401 in
"strictly equitable terms." Vincent, 226 Ill. 2d at 16. Since the relief is no longer "purely
discretionary," it makes little sense to apply the abuse-of-discretion standard of review. Vincent, 226
Ill. 2d at 16. However, while the court said that the relief afforded by a section 2--1401 petition is
not "strictly" equitable or "purely" discretionary, we conclude that this language does not strictly
preclude equitable or discretionary elements of relief.
In his petition, Ralph stated that he was unable to appear in court on April 15, 2009, because
"his car had mechanical problems and had broken down because he had incurred a flat." In addition,
he had four other children "and was unable to obtain the care and assistance for their care on the date
in question." Ralph also alleged that his attorney, Vizcaino, had multiple sclerosis such that she had
to employ another attorney, Michael Rivas, to draft legal documents. Her symptoms were "episodic,"
and "each day [was] unpredictable." As a result, Vizcaino "was not physically capable to prepare the
proper documents to have the default judgment vacated" within 30 days.
Both Ralph and Vizcaino attached to the petition affidavits along those lines. Both referred
to the court date as scheduled for April 15, 2009, instead of April 14. Vizcaino also stated that she
arrived late for court on April 15. In arguing the petition to the court, both Vizcaino and Rivas
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argued that the State had failed to provide evidence that it had attempted to serve Ralph with a copy
of the termination petition.
In denying the petition, the trial court noted the improper date alleged in the petition and the
affidavits. The court then found that the petition "fails utterly to set forth any facts to establish a
meritorious defense to the underlying petition to terminate parental rights." Likewise, the court found
no allegations establishing due diligence "in pursuing the defense, if any," to the termination petition.
The court denied the petition and Ralph's oral motion to amend it.
Ralph first argues that the trial court lacked personal jurisdiction over him because of
improper service. According to Ralph, a petition to change a permanency goal "is a new proceeding
which demands notice to all parties. 750 ILCS 50/1." Thus, the State's failure to serve him with the
petition to terminate parental rights resulted in the trial court's lack of personal jurisdiction over him
such that, as a matter of law, the default judgment against him was void ab initio. We disagree.
We first note that Ralph's citation to section 1 of the Adoption Act (750 ILCS 50/1 (West
2008)) is inapt. Nowhere in that rather lengthy section did the legislature make such a provision. In
addition, Ralph received proper service of summons upon the filing of the neglect petition.
Jurisdiction over a respondent need not be reestablished once it has been properly established in an
existing juvenile case. In re D.J., 361 Ill. App. 3d 116, 124 (2005). The trial court did not lose
personal jurisdiction over Ralph.
However, the fact that the trial court still had jurisdiction over Ralph does not end the inquiry.
Much confusion arises from section 2--15(3) of the Act, which provides in part that the summons
issued in a case involving an abused, neglected, or dependent minor:
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"shall contain a notice that the parties will not be entitled to further written notices or
publication notices of proceedings in this case, including the filing of an amended petition or
a motion to terminate parental rights, except as required by Supreme Court Rule 11."
(Emphasis added.) 705 ILCS 405/2--15(3) (West 2008).
The summons served on Ralph contained a notice, in substantially the same words, printed in bold
type. However, the State's position in this case, and the opinions of the appellate court in two cases,
neglect the Supreme Court Rule 11 (Official Reports Advance Sheet No. 1 (January 13, 2010), R.
11, eff. December 29, 2009) portion of the warning required by section 2--15(3). In reaching its
conclusion that jurisdiction over a respondent need not be reestablished once it has been properly
established in an existing juvenile case, the court in In re D.J. relied extensively on the analysis in In
re Abner P., 347 Ill. App. 3d 903 (2004). Both courts concluded that, since prior service on the
respondents contained the required section 2--15(3) language, the respondents were not entitled to
notice of the filing of petitions to terminate parental rights. See In re D.J., 361 Ill. App. 3d at 124;
In re Abner P., 347 Ill. App. 3d at 908. However, no analysis was made of the service "required by
Supreme Court Rule 11."
Supreme Court Rule 11 addresses the "Manner of Serving Papers Other Than Process and
Complaint on Parties Not in Default in the Trial and Reviewing Courts." Official Reports Advance
Sheet No. 1 (January 13, 2010), R. 11, eff. December 29, 2009. Rule 11 lays out on whom service
shall be made and the acceptable methods of service, depending on whether a party is represented by
counsel or not. Supreme court rules are not suggestions; they have the force of law, and the
presumption must be that they will be obeyed and enforced as written. Village of Lake Villa v.
Stokovich, 211 Ill. 2d 106, 116 (2004). Section 2--15(3) does not in any way exempt the State from
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notifying a party about anything it might file in a case after it has served that party with process. To
the extent that In re D.J. and In re Abner P. hold otherwise, we reject their holdings and analyses.
The State was required to provide Ralph with notice of the petition to terminate his parental rights.
Our review of the record in this case reveals that, contrary to the State's assertions and the
trial court's findings, the State made no attempt to give Ralph any notice of the filing of the petition
to terminate his parental rights. While this lack of notice did not deprive the trial court of jurisdiction
over Ralph, we conclude that it violated Ralph's right to due process. The principle that parents
possess the fundamental right to make decisions about the care, custody, and control of their children
without unwarranted state intrusion is "embedded in our jurisprudence." In re Sophia G.L., 229 Ill.
2d 143, 171 (2008). The interest of parents in the care, custody, and control of their children is one
of the oldest of the fundamental liberty interests recognized, and this interest is protected by the due
process clause. In re K.S., 365 Ill. App. 3d 566, 577 (2006). The procedures involved in terminating
parental rights must comply with the requirement of procedural due process. In re A.W., 397 Ill.
App. 3d 868, 872 (2010). Fairness is the core meaning of due process. People v. Collins, 333 Ill.
App. 3d 20, 26 (2002). We conclude that we must reverse the trial court's denial of Ralph's section
2--1401 petition, vacate its default judgment terminating Ralph's parental rights, and remand the
cause for further proceedings.2
We find an analogous situation in the realm of civil law. When a party in a civil case seeking
damages is defaulted:
2
Rule 366 grants this court broad discretionary powers, including "the powers of amendment
of the trial court" and to "enter any judgment and make any order that ought to have been given or
made." (155 Ill. 2d Rs. 366 (a)(1), (a)(5)).
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"[I]f relief is sought, whether by amendment, counterclaim, or otherwise, beyond that prayed
in the pleading to which the party is in default, notice shall be given the defaulted party as
provided by rule." 735 ILCS 5/2--604 (West 2008).
The content of the required notice, along with the acceptable methods of service, is included in
Supreme Court Rule 105 (134 Ill. 2d R. 105). In a case of default, a court that grants an award in
excess of the ad damnum without prior notice to the defendant exceeds its authority, and that portion
of the decree in excess of the ad damnum is void. Cook, 341 Ill. App. 3d at 663.
While the dissent cannot subscribe to this analogy, we find it particularly apt. The relief that
the State initially sought was that of an adjudication of neglect. The State then sought termination
of parental rights, additional relief ("excess damages") that was not inherent in the original neglect
petition. This additional relief was not merely money damages; the State sought to interfere with a
fundamental liberty interest that is protected by the due process clause. The State cannot seek
without notice whatever additional relief it wants, merely because the trial court has personal
jurisdiction over the respondent. A trial court is not allowed to award damages greater than those
originally requested in the absence of required notice; we cannot allow the termination of parental
rights in the absence of required notice.
The State attempted to personally serve Patricia with a summons on February 20. The record
contains proof of the attempt made by a Du Page County sheriff's deputy. However, there is nothing
of record to show a similar attempt to serve Ralph. The State's affidavit for service by publication
stated that Patricia's address could not "be ascertained upon diligent inquiry" such that "process
cannot be served upon his [sic] either personally or by certified mail." However, there is no such
affidavit attesting to a diligent inquiry into and an inability to ascertain Ralph's address. In any event,
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such an affidavit would, upon review, be suspect, as the record shows that Ralph still resided at the
address that the State listed for him on the termination petition itself. In its brief, the State asserts
that it unsuccessfully attempted to serve Ralph, and it disingenuously follows the assertion with a
citation, not to evidence of record showing an attempt at service, but to another of the State's filings
in which the State asserts, without citation to evidence of record, that it attempted service.
The State's brief is replete with such incorrect references to the record. The State asserts that
Ralph was present on October 14, 2008, when the State was granted leave to file the petition to
terminate and that "the next court date on this matter was set for February 17, 2009." The State fails
to acknowledge that the February 17 date for permanency review had already been set and that Mr.
Ogan, the assistant State's Attorney, stated in Ralph's presence that the filing of the petition to
terminate "will generate a new date." The State then waited almost four months to file its petition
and set no new date. How Ralph was to know when, if ever, the State would file the petition to
terminate, and what the new date was to be, is left unsaid. The State goes on to argue that, at the
February 17 hearing, "the April 14, 2009, hearing to consider the petition to permanently terminate
[Ralph's] parental rights as to Haley D. was set." However, the order to which the State cites shows
that the matter was set on April 14, 2009, for a "Permanency Hearing" and that the box for
"Termination of Parental Rights Hearing" was not checked.
These termination proceedings started improperly when the State never even attempted to
serve Ralph with notice of the petition. Things only got worse when, on April 14, 2009, the court
granted the default judgment even as the State dug through its records and could not find any proof
of an attempt to serve Ralph. The default judgment entered against Ralph was unfair, unjust, and
unconscionable (see Smith, 114 Ill. 2d at 225) and cannot be allowed to stand. Due process does not
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allow parental rights to be terminated via such slipshod and unfair proceedings. We conclude that
the trial court erred in denying Ralph's section 2--1401 petition to vacate the default judgment, and
we reverse that judgment, vacate the default judgment, and remand the cause for further proceedings
on the petition to terminate parental rights.
For these reasons, the judgment of the circuit court of Du Page County is reversed, and the
cause is remanded for further proceedings.
Reversed and remanded; default judgment vacated.
HUTCHINSON, J., concurs.
PRESIDING JUSTICE ZENOFF, dissenting:
While I agree with the majority that the trial court did not lose personal jurisdiction over
Ralph, I disagree with the majority's analysis and the ultimate result it reaches. Accordingly, I
respectfully dissent.
While the majority cites to People v. Vincent, 226 Ill. 2d 1 (2007), and the supreme court's
admonition that under the procedural circumstances here a de novo standard of review applies, it
reaches a result based on equitable principles rather than the applicable statutory requirements. This
approach is, in my view, inconsistent with the analysis in Vincent and this court's recent opinion in
Mills v. McDuffa, 393 Ill. App. 3d 940 (2009). It is well settled that an appellate court must follow
the law as set forth by the supreme court. Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036,
1038 (2009).
Vincent explicitly states that it is incorrect for courts to continue to view section 2--1401
petitions as a matter of judicial discretion, subject to an abuse-of-discretion review on appeal.
Vincent, 226 Ill. 2d at 15. The application of the abuse-of-discretion standard is a result of appellate
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courts maintaining the belief that section 2--1401 petitions remain rooted in equitable principles. As
the Vincent court stated:
"[T]he operation of the abuse of discretion standard is the result of an erroneous belief
that a section 2--1401 petition 'invokes the equitable powers of the court ***.' [Citation.]
*** When the legislature abolished the writs in favor of today's statutory remedy, it became
inaccurate to continue to view the relief in strictly equitable terms. *** Because relief is no
longer purely discretionary, it makes little sense to continue to apply an abuse of discretion
standard on review." Vincent, 226 Ill. 2d at 15-16.
Following Vincent, in Mills, we also emphasized the change in section 2--1401 relief from equitable
to statutory. Mills, 393 Ill. App. 3d at 947, 949 ("When the legislature abolished the common-law
writs in favor of the statutory remedy [of section 2--1401], it became inaccurate to continue to view
the relief in strictly equitable terms" and "it is not appropriate to view section 2--1401 relief in strictly
equitable terms").
The Vincent court essentially held that the standard by which we should review the trial
court's disposition of a section 2--1401 petition depends upon the manner in which it was disposed.
See Vincent, 226 Ill. 2d at 15-17. Five types of final dispositions are possible in section 2--1401
litigation: "the trial judge may dismiss the petition; the trial judge may grant or deny the petition on
the pleadings alone (summary judgment); or the trial judge may grant or deny relief after holding a
hearing at which factual disputes are resolved." Vincent, 226 Ill. 2d at 9, relying on D. Simko,
Updating the Standard of Review for Petitions to Vacate Final Judgments, 86 Ill. B.J. 34 (1998)
(listing the five possible dispositions as dismissing, granting relief without an evidentiary hearing,
denying relief without an evidentiary hearing, granting relief after an evidentiary hearing, and denying
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relief after an evidentiary hearing). Vincent mandates that, where a trial court enters a judgment on
the pleadings or a summary judgment in a section 2--1401 proceeding, that judgment will be reviewed
de novo on appeal. Vincent, 226 Ill. 2d at 18. Although Vincent dealt with the dismissal of a section
2--1401 petition (possibility number one), the court stated that future analyses regarding the standard
of review for a grant or denial of a section 2--1401 petition should be "grounded in the notion that
each of the dispositions available in a section 2--1401 action is borrowed from our civil practice and
pleadings." Vincent, 226 Ill. 2d at 17.
In this case, the trial court denied Ralph's section 2--1401 petition based on the pleadings and
affidavits; there was no evidentiary hearing. Therefore, just as we would review de novo the trial
court's grant of a motion for summary judgment, we should review de novo the trial court's denial
of Ralph's section 2--1401 petition.
Ralph contends that his section 2--1401 petition should have been granted because the trial
court lacked personal jurisdiction over him due to the State's failure to serve him with the petition to
terminate his parental rights. According to Ralph, because the trial court lacked jurisdiction over him,
the default judgment terminating his parental rights was void.
Generally, to succeed on a section 2--1401 petition, a party must demonstrate, by a
preponderance of the evidence, the existence 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." Vincent, 226 Ill. 2d at 7-8. In addition, the section 2--1401 petition must
be brought within two years of the entry of judgment, excluding any time during which the party is
under legal disability or duress or during which the ground for relief is fraudulently concealed. 735
ILCS 5/2--1401(c) (West 2008).
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Where, however, a defendant brings a section 2--1401 petition based on voidness grounds,
he or she needs to neither allege a meritorious defense, demonstrate due diligence, nor file the petition
within two years of the entry of judgment. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,
104 (2002). " 'Judgments entered in a civil proceeding may be collaterally attacked as void only
where there is a total want of jurisdiction in the court which entered the judgment, either as to the
subject matter or as to the parties.' " In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998), quoting
Johnston v. City of Bloomington, 77 Ill. 2d 108, 112 (1979).
As previously mentioned, I agree with the majority's analysis of whether the trial court had
personal jurisdiction over Ralph and concur in the conclusion that the failure to serve Ralph did not
deprive the trial court of personal jurisdiction over Ralph. This, I believe, is where the analysis should
end, however. Having failed to establish that the default order was void for lack of personal
jurisdiction, Ralph makes no argument that the default order was void for any other reason. He also
makes no argument that his section 2--1401 petition presented a meritorious defense and
demonstrated due diligence in discovering and presenting the meritorious defense. Accordingly, in
my opinion, Ralph has failed to establish any error in the trial court's denial of his petition.3
3
Ralph also contends (in a footnote) that the trial court erred by not allowing him to amend
his section 2--1401 petition. According to Ralph, this was error because the trial court did not deny
his section 2--1401 petition "with prejudice." The authority Ralph cites for this proposition merely
states that where a trial court dismisses a section 2--1401 petition "without prejudice," the trial court
invites a refiling. See Romo v. Allin Express Service, Inc., 219 Ill. App. 3d 418, 419 (1991). It does
not necessarily follow that a trial court errs where it does not permit the filing of an amended petition
anytime it fails to include the language "with prejudice" in its denial of the original petition.
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Nevertheless, the majority concludes that the failure to serve Ralph with the petition to
terminate his parental rights violated due process and requires the reversal of the trial court's decision.
Any due process violation that Ralph may have suffered as a result of not being served with the
petition to terminate would render the default order merely voidable, not void, as the due process
violation would not deprive the trial court of jurisdiction. A void order is one entered where there
is a "total want of jurisdiction," while a voidable order is one erroneously entered by a court with
jurisdiction. Mitchell, 181 Ill. 2d at 174. "Once a court has acquired jurisdiction, an order will not
be rendered void merely because of an error or impropriety in the issuing court's determination of the
law." Mitchell, 181 Ill. 2d at 174, quoting Vulcan Materials Co. v. Bee Construction, 96 Ill. 2d 159,
165 (1983). Here, the majority determines, and I agree, that the trial court had jurisdiction; thus, any
due process violation would have rendered the default order only voidable, not void.
Because the default order was not void, to succeed on his section 2--1401 petition, Ralph was
required to present a meritorious defense and demonstrate due diligence. Vincent, 226 Ill. 2d at 7-8.
The majority does not explain how the due process violation constitutes either a meritorious defense
or due diligence on Ralph's part. Instead, the majority declares that the alleged due process violation
requires reversal of the trial court's decision because a liberty interest is involved and the default
judgment against Ralph is "unfair" and "unconscionable." Slip op. at 10. Even under pre-Vincent
case authority, to which the majority subscribes, a section 2--1401 petitioner was required to show
a meritorious defense or claim and due diligence in presenting that defense or claim. Smith v.
Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). Yet, in reversing the trial court, the majority makes
no mention of these requirements and whether they were met.
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The majority attempts to bolster its conclusion by analogizing the situation here to one where
section 2--604 of the Code of Civil Procedure (735 ILCS 5/2--604 (West 2008)) requires that notice
shall be given as provided by rule when additional relief (other than that pleaded) is sought against
a defaulting party. Supreme Court Rule 105 provides that "[i]f new or additional relief *** is sought
*** notice shall be given *** as herein provided." 134 Ill. 2d R. 105. Rule 105 goes on to establish
the manner in which such service shall be provided. Thus, section 2--604 provides that, where
additional relief is sought against a defaulting party, notice is required and, further, notice shall be as
provided by Rule 105 (which itself mandates that notice be given where additional relief is sought
against a defaulting party).
This scheme is not analogous to the relationship between section 2--15(3) of the Act and
Supreme Court Rule 11. Indeed, rather than requiring that notice be given to a respondent to a
petition to terminate parental rights, section 2--15(3) provides that the initial summons in an abuse,
neglect, or dependency proceeding shall include a notice that the respondent is not entitled to further
notice of proceedings in the case, "including the filing of *** a motion to terminate parental rights,
except as required by Supreme Court Rule 11." (Emphasis added.) 705 ILCS 405/2--15(3) (West
2008). The majority asserts that "[s]ection 2--15(3) does not in any way exempt the State from
notifying a party about anything it might file in a case after it has served that party with process." Slip
op. at 7-8. I respectfully disagree, as the plain language of section 2--15(3), though admittedly not
an express exemption to the State, does require that parties be notified that they are not entitled to
additional notice.
The majority discusses Rule 11 as laying out "on whom service shall be made and the
acceptable methods of service" and notes that supreme court rules have the force of law and must be
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followed. Slip op. at 7. With that I do not disagree. However, Rule 11 does not require service;
rather, it simply provides for the manner in which service shall be effected beyond the service of the
complaint. In other words, if the State were to voluntarily serve notice of additional filings or
proceedings, it would need to comply with Rule 11. Moreover, the majority cites no authority for
the proposition that failure to comply with Rule 11 renders an order void. In contrast, in the section
2--604/Rule 105 scheme, the majority cites Cook v. Burnette, 341 Ill. App. 3d 652 (2003), for the
proposition that failure to provide notice to a defaulting defendant that additional relief was sought
renders void an award in excess of the ad damnum clause. As compelling as the majority's argument
might be, I cannot subscribe to its analogy, given the difference in the law under section 2--15(3) of
the Act, where notice is expressly not required.
Accordingly, I would affirm the trial court's denial of Ralph's section 2--1401 petition and
his motion to amend his section 2--1401 petition.
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