No. 3--09--0863

_________________________________________________________________ Filed June 29, 2010 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2010 In re A.M., ) Appeal from the Circuit Court ) of the 9th

Judicial Cir

cuit, a Minor ) Fulton Cou nty , Illi nois, ) (The People of the State of ) Illinois, ) ) Petitioner-Appellee, ) No. 06--JA--21 ) v. ) ) Richard W., ) Honorab le ) Patricia A. Walton, Respondent-Appellant). ) Judge , Pres idin g.

______________________________________________________________________________ PRESID ING

JUSTICE

O’BRI EN delive

red the o pinion of t

he court :

______________________________________________________________________________ The trial court granted the State' s petition to terminate the parental rights of the respondent, Richard W., as to his daughter, A.M. The respondent a ppeals, arguing that the trial court viol ated h is du e proce ss righ ts by fin ding h im in defaul t desp ite t he St ate and the co urt's awareness that he was incarce rated in Colorado at the time. We affirm.

FACTS A.M. was b orn on May

26, 2005. On Novembe

r 1, 2006, the State

filed a ju venile petition alleging neglect due to a n injurious environment against A.M.'s mother (count I ) and2

A.M.'s putative father, Eric M. (count I I). On July

3, 2007, the State amended the petition to add count III, which allege d that the respondent was A.M.'s father and she was a dependent minor without proper care due to his incarcera tion. The court appointed an attorney to represent the respondent. On Augu st 9, 2007, the resp ondent wa s no long er inca rcera ted and a ppeare d in court

with his attorney. The c ourt ordered a deoxy ribonucleic acid (DNA) test. The DNA re sults indicated a 99.99% probability that the re spondent was A.M.'s biological father. On O ctober 2, 2007, the respondent appeared in court with his attorney . Based on the DNA results, the trial court found that the respondent was A.M.'s biological fa ther. On Octobe

r 30 and N ovember

13, 2007, t

he respondent app eared i

n court with his attorney for

an adjudication hearing, which was continued by the court. On December 18, 2007, the respondent failed to appear, and his attorney requested a continuance, which was g ranted. On January 3, 2008, the trial court orde red that the adjudication hearing be sche duled for January 22, 2008, and that the State send notice to all parties, "with notice to respondent pare nts to include language reg arding findings of default if the re spondent parents fail to appear." The re spondent was not present but was represented by counsel. On Januar

y 22 , 2008, the

responde nt was not p

resent f or the ad judication hearin

g, and h is attorney re quested a continuance. The State indicated that the responde nt "ha[d] a felony war

rant outstanding in Fulton County, which may well explain his absence." The State also noted the notice of the hearing that had been se nt to the respondent’s last known address was not returned as invalid. The court denied the respondent's attorne y's r equest for continuance. In pr oceedin g with the adjudica tion hear ing, A.M .'s mothe

r and Eri c M. stipula

ted to3

count s I and II of the petit ion. The cou rt fou nd th at A.M . was n eglect ed bas ed upo n her m other 's and Morse's stipulations to counts I and I I and the respondent' s default as to count II I. I n the written adjudication order, the court found that the parties had r eceived notice of the adjudication hearing and the respondent was de faulted as to count II I in that A.M. was a depende nt minor due to the respondent's incarceration fr om March 24, 2005, until September 14, 2007. On Febr uary 19, 2 008, t he resp onden t was n ot pre sent a t the d ispo siti onal h earing, although notice of the hearing wa s sent to his last known address. In its dispositional order, the court made A.M. a ward of the court and a warded custody

and guardianship of A.M. to the Department of Children and Family Services. The court did not make any findings as to the respondent's dispositional fitness. On Ju ne 24, 2008, the res ponde nt di d not appear at the perman ency revie w heari ng, despite notice having been sent to his last known address. The c ourt set the permanency goal as return home within

12 months. T

he respondent' s attorne

y r equeste d "not tha

t [he] nece ssarily cease to be counsel of record but [that he] be excused from appe aring until such time as [the respondent] contact[ed] him." The trial court "excused" the responde nt's attorney

from any further appearances until the responde nt contacted him and showed some interest in the case. Thereafter, despite being pr ovided notice, neither the respondent nor his attorney attended subsequent court hearings until after the re spondent's parental rights were terminated. Specifically, on De cember 23, 2008, neither the respondent nor his attorney attended a permanency

review hearing, at which the c ourt changed the permanenc y goa l to substitute care pending termination of parental rights and or ally found that the re spondent made unsatisfactory progress and noted that he had previously been defaulted. On March 10, 2009, neither the4

responde nt nor his a

ttorney attende d a status

hearing , which th e court c ontinued f or the Sta te to file a termination of parental rights petition and for the pa rties' first appearance. N otice of the April 28, 2009, first appearance hearing was sent to all parties. On April 28, 2009, the State filed a petition for termination of parental rights, alleg ing that the respondent was unfit for failing to maintain a rea sonable degree of interest, conc ern, or responsi bility toward A .M.'s we lfare ( 750 I LCS 50/ 1(D)(b) (West 2008 )), make

reasona ble efforts to corre ct the co nditions tha t were th e basis f

or A.M.' s remova

l (750 I LCS 50/ 1(D)(m) (i) (West 2008)), make reasonable progr ess toward A.M.'s return home within nine months after she was adju dicated neglec ted (750 I LCS 50/ 1(D)(m) (ii) (Wes t 2008)), or make r easonab le prog

ress toward the return of A.M. during anynine-month period following the end of the initial ninemonth per

iod follow

ing the a djudicat ion of neg

lect, ab use, or de pendenc y ( 750 I LCS 50/1(D)(m)(iii) (West 2008)). On April 28, 2009, neither the respondent nor his attorney attended the first appearance hearing. At the hearing, A .M.'s mother surrendered her pa rental rights, and Eric M. was dismissed as a party. The court found "[b]ased upon information and belief, the respondent biological father *** [was] incarcerated in Lamar, CO." The court continued the matter to June 2, 2009, for a hearing on the termination petition, with notice sent to the respondent' s attorney. On May 5, 2009, the re spondent was served with summons and the termination petition at the Colorado prison. On June 2, 2009, neither the respondent nor his attorney appeared at the termination of parental rights hearing . The court found that based upon the respondent's f ailure to appear, file any

responsive pleading, contact the State, or contac t his attorney, he wa s defaulted. On June 9, 2009, the court entered a written termination order that the respondent was5

defaulted, and it found, by clear and convincing evidence , that the respondent was unfit as allege d in the te

rmination petition. T

he respondent and

his attorney

were se nt notice of the be st interest hearing. On June 30, 2 009, neith er the r esponde nt nor his a

ttorney appear ed at the best inter est hearing. A best interest report indicated tha t A.M. had been in her current foster home for 18 months and considered her foster parents to be her parents, with whom she had a close bond. A.M.'s f oster pa rents we re willing to adopt A .M. The r

esponde nt's las t contac t with A.M. was in September 2007. The court found that it was in the best interest of A.M. to terminate the responde nt's par ental rig hts, noting

that he wa s defaul

ted. The court en tered its best inter est order on July 21, 2009. On August 14, 2009, the respondent's attorney filed a motion to vacate the order of June 9, 2009, in which the court found the respondent unfit, and the order of July 21, 2009, terminating the respondent's parenta l rights. In the motion, the respondent indicated tha t he had been inc arcer

ated in Col orado sin

ce Januar y 20 09, and he

receiv ed the sum

mons for the first appearance on the petition to terminate his rights in May 2009. The respondent claimed that he was unab le to advi se his cou nsel of hi s desire

to defen d again st the peti

tion. The r

esponde nt did not explain his lack of participation in the proceedings from the last time he appea red in court on November 13, 2007, until his January 2009 incarc eration. On Septem

ber 29, 2 009, the c ourt deni ed the mot ion, findi ng that t he respondent and

his attorney had notice

of the petition to terminate, termination hearing, and the best interest hea ring but failed to respond or object. The respondent appeale d. ANA LYSIS6

On appeal, the respondent contends that his due process rig hts were violated when the trial cou rt found h im in defa

ult and te rminated his pare ntal rig hts despite

the cour t and the St

ate knowing that he wa s incarc erated

in Colorad

o at the tim e. Bec ause con tentions o f due pro cess violations are a question of law, we review this matter de novo . In re Todd K. , 371 Ill. App. 3d 539, 867 N.E.2d 1104 (2007). Parents h ave a fu

ndamenta l liberty interest in the ca re, cust ody , and con

trol of the ir children, which is protected by the due process clause of the fourteenth a mendment. U.S. Const., amend. X IV, § 1; In re M.H. , 196 Ill. 2d 356, 751 N.E.2d 1134 (2001). Procedure s involving the termination of parental rights must comply with the requirements of due process. Santosky v. Kramer , 455 U.S. 7 45, 71 L . Ed. 2d 599 , 102 S. Ct. 13 88 (1982) ; M.H. , 196 Ill. 2d 356, 751 N.E.2d 1134. A parent has a due process rig ht to adequate notice in juvenile proceedings. In re C.L.T. , 302 Ill. App. 3d 770, 706 N.E.2d 123 (1999). Also, section 1--5 of the Juvenile Court Act of 19 87 (Act)entitles t he respondent the

right to be prese nt at the p roceed

ings. 70 5 IL CS 405/1--5 (West 2008). Section 2- -15(7) o f the Act provides : "The appearance of

the minor's legal guardia n or custodian, or a person named as a respondent in a petition, in any proceeding under this Act shall constitute a waiver of service of summons and submission to the jurisdiction of the court, except that the filing of a motion

authorize d under Se ction 2-- 301 of the Code of Civ

il Proced ure [(735 IL CS 5/2--301 (West 2008) (prescribing objection to the court' s personal jurisdiction)] does not constitute an appearance under this subsection." 705 IL CS 405/2--15(7) (West 2008). Here, the respondent appeare d in court on four occasions prior to the adjudication,7

disp osit ional , term inati on, an d best inter est he arings , and a t no p oint did h e obje ct to t he cou rt's jurisdiction. Therefore, the respondent waived the re quirement that he be provided notice of the proceedings in this case. See In re Ant wan L. , 368 Ill. App. 3d 1119, 859 N.E.2d 1085 (2006). Nonetheless, the respondent was served with the termination petition and the summons on the termination hearing. Therefore , the respondent had actual notice of the proce edings and had a duty to follow the prog

ress of his case. See C.L.T. , 302 Ill. App. 3d 770, 706 N.E.2d 123. Whether a

party appear s interes ted or dis interest

ed in the proceed

ing doe s not allev

iate the court of its responsibility to comply with procedural due process. I n determining whether procedural due process has been violate d in parental rights termination proceedings, the following three factors are ba lanced: (1) the private interest affec ted by the offic ial action; (2) the risk of a n errone ous depri

vation of such inte rest thro ugh the procedu res used , and the p

robable value, if any , of addit

ional or s ubstitute procedur

al safe guard s; and (3)

the gov ernment's inter

est, including the function involved and the fiscal and administrative burdens the a dditional or substituted procedural requirements would entail. M.H. , 196 Ill. 2d 356, 751 N.E.2d 1134, citing Mathe ws v. E ldrid ge , 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). In apply ing the Mathews factors, we find that the respondent was not denied due pr ocess. It is undeniable that the respondent had a liberty interest to the ca

re, custody, a

nd control of A.M. The cour t invited so me risk of

the err oneous de privation of the re spondent' s parent al intere sts when it allowed his attorney to be "excused" from attending the proc eedings until the respondent contact ed him or the court. Not only did the court excuse responde nt’s attorney’s a

ppearance, it also made no inquiry concerning, and took no steps toward secur ing, respondent’s release from the pr ison in Colorado8

or other means to a

llow him to p articipa

te in any of the te rmination procee dings. F inally , the risk of deprivation of the respondent's interest was incr eased by the

poor record-keeping on the pa rt of the co urt, attor ney s, and ag encies i

nvolved, and by

their lac k of dilig ence in a

ttempting to locate or maintain contact with the respondent. Thus, we ag ree with the respondent that the procedures invoked in this case increased the r isk of an erroneous deprivation of his parental rights. Such procedural failures implicate per ceptions of judicial fairness and the integrity of judicial proceedings, and also encoura ge the prosecution of appeals wher e the substantive decision is otherwise unassailable. However, the risk that the respondent was err oneously deprived of

those rights was minimal when balanced against the State's intere st in preventing a delay in adjudicating the respondent's parental rights and pr eserving A.M.'s best interest. See In re E.L. , 152 Ill. App. 3d 25, 504 N. E.2d 157 ( 1987) (pr oviding t hat the pr imary concer n of proc eeding s under th e Act is the best interest and welfare of the child). Delays in termination proc eedings impose a serious cost on the function of the government, as well as intangible costs to the lives of the children involved. In re

M.R. , 316 Ill. App. 3d 399, 736 N.E.2d 167 (2000). Here , despite being incarcerated, the respondent could ha ve contacted his attorney , caseworkers, or the court, but he voluntarily chose not to so. The re spondent had actual notice of the proceeding s, and counsel was readily

available to the respondent at any time. The record is abundantly clear that the respondent had no defense that could be prese nted to the court, as he failed to cooperate with the service plan, fa iled to an swer the

terminat ion petition, and fa

iled to mai

ntain con tact with caseworkers, the court, and his own attorney

. Our review of the

record indicate s that the r

esponde nt volunta

rily chose no t to partic ipate9

in the proceedings, despite having ac tual notice of the proceedings. As such, the cour t was not obligated to delay

the proceedings waiting for the him to become involved. See C.L.T. , 302 I ll. App. 3d 77 0, 706 N.E .2d 123 (providing that altho

ugh par ents have a right to be pre sent at a termination hearing, their presence is not manda tory and the trial c ourt is not obligated to delay the proceedings until the parent chooses to appea r). Therefore, based upon the facts and circumst ances of this case , we conc lude that the cour t finding the resp ondent in d

efault in his absence, despite knowing he was inca rcerated in Colorado, was not a violation of his procedural due proc ess rig

hts. CONCLUSIO N Accordingly , the judgment of the circuit court of Fulton County is affirmed. Affirmed. McDADE and LYTTON , JJ., concur.