In re HALEY D.

• Decision Date: 27 July 2010
• Docket Number: No. 2-10-0044.,2-10-0044.
• Citation: 933 N.E.2d 421,342 Ill.Dec. 835,403 Ill.App.3d 370
• Parties: In re HALEY D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Ralph L., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

403 Ill.App.3d 370

933 N.E.2d 421

342 Ill.Dec. 835

In re HALEY D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Ralph L., Respondent-Appellant).

No. 2-10-0044.

Appellate Court of Illinois,Second District.

July 27, 2010.

Forrest L. Ingram, Michael V. Ohlman, E. Philip Groben, Forrest L. Ingram, P.C., Chicago, for Ralph L.

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, Lawrence M. Bauer, Deputy Director, State's

Attorneys Appellate Prosecutor, Andrew J. Sosnowski, Elgin, for the People.

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.

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, Haley's foster parents filed a motion to be granted intervenor status. The trial court granted the motion on October 14. On that same day, the court changed the permanency goal (over Ralph's objection) to substitute care pending termination of parental rights and granted the State leave to file a petition to terminate those rights. The State then said:

“We have a permanency review date of February 17, 2009. And now, we have leave to file a petition to terminate, which we'll be doing, your Honor. And that will generate a new date.”

The State filed a petition to terminate parental rights on February 5, 2009. The record contains no notice of motion or any other notice of when the petition was to be brought before the court. An order from the February 17 permanency hearing showed that Ralph was not present on that date. The order also showed that the case was continued to April 14, 2009, for a permanency hearing.

On February 20, the State filed an affidavit for service by publication, stating that Patricia could not be located and could not be served personally or by certified mail with the termination petition. The State attempted to serve a summons on Patricia for the April 14 court date, but it was returned unserved with the explanation that Patricia's mother had told the deputy that Patricia had moved to Chicago and was in “rehab.” No mention was made of an attempt to serve a summons on Ralph or of an inability to locate him. The record contains nothing regarding service on Ralph. A notice, which stated that the case was set for April 14, was subsequently published in the Daily Herald newspaper on March 3, 10, and 17, 2009.

On February 24, 2009, the office of the public defender filed a motion to withdraw as counsel for Patricia and set the case for April 14. On that date, Patricia appeared in court; however, Ralph did not appear. The following colloquy took place:

“THE COURT: Now, where do we stand vis-a-vis natural father, Mr. Ogan [assistant State's Attorney]?

MR. OGAN: Your Honor, I believe we have service on him. I'm looking for it, though. I know we've attempted service, your Honor. I'm just looking for proof of that.

THE COURT: Okay.

MR. OGAN: I have found proof, obviously, of the natural mother's service. If not-I don't see a receipt, your Honor, although I do see numerous-

THE COURT: Okay. There has been publication concerning the petition to terminate parental rights.

MR. OGAN: I ask, then, that the natural father be defaulted.

THE COURT: Okay.

MR. OGAN: And that we set * * * May 12th as a prove-up date for him.

THE COURT: Okay. So the natural father on the State's motion will be defaulted, he having failed to appear, answer or otherwise plead to the petition to terminate parental rights. We will set it for prove-up as to natural mother on that same date.”

On May 12, 2009, Ralph appeared with an attorney, Diana Vizcaino, who filed her appearance that day. Ralph was granted time to file a motion to vacate the default judgment, and the case was continued to June 2. Ralph filed a motion to vacate pursuant to section 2-1301(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1301(e) (West 2008)). The State subsequently moved to strike Ralph's motion, arguing that it was not timely filed. On October 16, Ralph was granted leave to file a petition to vacate under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2008)). The trial court denied the subsequent section 2-1401 petition and Ralph's oral motion for leave to file an amended petition. This appeal followed.

Ralph first contends that the trial court erred in denying his petition to vacate the default judgment. Ralph brought his petition under section 2-1401 of the Code, which provides for relief from final orders and judgments after 30 days but before 2 years from entry. See 735 ILCS 5/2-1401 (West 2008). Generally, such a petition is directed to the sound discretion of the trial court, and the court's decision will not be disturbed on review unless the court has abused its discretion. Engel v. Loyfman, 383 Ill.App.3d 191, 194, 321 Ill.Dec. 911, 890 N.E.2d 633 (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, 321 Ill.Dec. 911, 890 N.E.2d 633. The granting of the petition must be supported by a preponderance of the evidence. Smith v. Airoom, Inc., 114 Ill.2d 209, 223, 102 Ill.Dec. 368, 499 N.E.2d 1381 (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, 102 Ill.Dec. 368, 499 N.E.2d 1381. 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, 275 Ill.Dec. 680, 793 N.E.2d 160 (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, 159 Ill.Dec. 883, 576 N.E.2d 552 (1991). One of the guiding principles in the administration of section 2-1401 relief is that the 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, 102 Ill.Dec. 368, 499 N.E.2d 1381.

Our supreme court held in People v. Vincent, 226 Ill.2d 1, 312 Ill.Dec. 617, 871 N.E.2d 17 (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, 312 Ill.Dec. 617, 871 N.E.2d 17. 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, 312 Ill.Dec. 617, 871 N.E.2d 17. 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, 312 Ill.Dec. 617, 871 N.E.2d 17. 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 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...