NOS. 4-02-0461, 4-02-0488 cons.

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

In re: K.A. and C.McD.,				)	Appeal from

Minors,							)	Circuit Court of

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Livingston County

	Petitioner-Appellee,		)	Nos. 96J65

	v. (No. 4-02-0461)			)	     96J68

MELISSA ADKINS,                         )

	Respondent-Appellant.  		)	

----------------------------------------)	

In re K.A. and C.McD.,				)	

Minors,							)

THE PEOPLE OF THE STATE OF ILLINOIS,    )

	Petitioner-Appellee, 		)

	v. (No. 4-02-0488)			)	Honorable

WALTER McDONALD,					)	Charles H. Frank,

	Respondent-Appellant.		)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	In December 1998, the State sought to terminate the

parental rights of respondent, Walter (Bert) McDonald, to his

children, K.A. and C.McD.  In November 1999, the trial court

granted the motion.  In December 1999, Bert filed a posttrial

motion seeking to vacate the November judgment.  After the

hearing, the court took the motion under advisement, stating it

would bring the parties back into court to orally announce its

ruling.  Instead, the court entered a written order in March 2000

but the parties were not advised of the entry of the order.

	In June 2000, the trial court conducted a permanency

review hearing on the progress of respondent mother, Melissa

Adkins, in the same case numbers.  The parties then learned of

the March 2000 order and the judgecourt purported to toll the time

limitation for filing an appeal of its termination of Bert's parental rights until that date, June 8, 2000.  Respondent

parents appealed; but in November 2000, we dismissed the appeal

on appellee's motion, which argued the trial court was without

jurisdiction to toll the time for filing the notices of appeal. 

In re K.A., Nos. 4-00-0617, 4-00-0618 cons. (November 15, 2000) (dismissed on appellee's motion), appeal denied, 194 Ill. 2d 568, 747 N.E.2d 352 (2001) (denied on April 4, 2001).

	In March 2002, respondent parents filed a pettiition

under section 2-1401 petitionof the Civil Practice Law (735 ILCS 5/2-1401

(West 2000)) to vacate the March 2000 termination of Bert's

parental rights.  In May 2002, the trial court granted the

petition, vacated the March 2000 order, and reentered the same

order.  Respondent parents appeal, challenging the trial court's

unfitness and best interests findings as against the manifest

weight of the evidence and claiming the trial court violated

Melissa's due process rights.  We dismiss the appeal.

I. BACKGROUND

	On October 15, 1996, the trial court adjudicated K.A. (born August 30, 1995), the minor child of respondents, Melissa

and Bert, neglected pursuant to section 2-3(1)(b) of the Juvenile

Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 1996)).  On

November 26, 1996, the court adjudicated K.A. a ward of the court

and appointed the Department of Children and Family Services

(DCFS) as her guardian with the power to place her.  K.A. was

initially placed in relative foster care and then returned to

Melissa's care on November 25, 1998.  

	On January 28, 1998, C.McD. (born December 10, 1997),

another minor child of Melissa and Bert, was adjudicated ne glected also pursuant to section 2-3(1)(b) of the Act (705 ILCS

405/2-3(1)(b) (West 1996)).  That same date, C.McD. was made a

ward of the court with DCFS appointed as his guardian with the

power to place him.  DCFS left C.McD. in the custody of Melissa

and never removed him.

	On December 12, 1998, the State filed a petition to

terminate Bert's parental rights, alleging he was unfit because

he failed to make reasonable progress toward the return of K.A.

and C.McD. within 12 months of the adjudication of neglect

pursuant to section 1(D)(m) of the Adoption Act.  750 ILCS

50/1(D)(m) (West 1998).  On January 4, 1999, Bert filed a peti

tion for substitution of judge.  A new judge was assigned to hear

the petition for termination of parental rights on January 5,

1999.  On November 10, 1999, the trial court found Bert unfit on

the grounds alleged and granted the State's petition.

	On December 9, 1999, Bert filed a posttrial motion to

vacate the order of termination previously entered.  On February

2, 2000, the trial court heard the motion, took the motion under

advisement, and stated it would notify all parties and bring them

back to court to announce its ruling orally.  The court did not

do so.  Instead, on March 24, 2000, the court issued a written order denying the posttrial motion.  No notice was given to any

of the parties the order had been entered, nor was a copy of the

order sent to any of the parties.

	Melissa's parental rights had not been terminated, and

DCFS still held guardianship of K.A. and C.McD.  On June 8, 2000,

a review hearing was held before the original judge assigned to

this case, regarding her progress in caring for the children.  The parties then discovered an order denying Bert's posttrial

motion had been entered on March 24, 2000.  At the review hear

ing, in an attempt to provide appeal rights for Bert, the judge

entered the following order:

	"The court hereby finds that custom and prac

tice of this [c]ounty that the [c]ircuit

[c]lerk would provide copies of orders en

tered to all parties was not followed in

regards to the [o]rder [d]enying [the]

[posttrial] [m]otion filed on March 24, 2000. 

The [c]ourt hereby orders that the time limi

tations for filing an appeal begin to toll on

June 8, 2000[,] as the order was not final

until June 8, 2000[,] when all parties became

aware of said order."

	On July 6, 2000, Melissa appealed (No. 4-00-0617) and

on July 10, 2000, Bert appealed (No. 4-00-0618).  The appeals

were consolidated.  Upon appellee's motion, which argued respon

dents' notices of appeal were untimely, because the trial court

was without jurisdiction to toll the period for filing the notice

of appeal, this court dismissed the appeal.  In re K.A., Nos. 4- 00-0617, 4-00-0618 cons. (November 15, 2000) (dismissed on

appellee's motion).

	On March 5, 2002, over 16 months after the appeal was

dismissed, Melissa, later joined by Bert, filed a petition

pursuant to section 2-1401 of the Civil Practice LawAct (735 ILCS

5/2-1401 (West 2000)) to vacate the order of March 24, 2000,

because the trial court was to have entered the order orally in the parties' presence and no notice of the written order was ever

given to the parties until they discovered the entry of the

order.  This discovery occurred after the 30-day period for

filing a notice of appeal had expired, and the additional 30-day

period for filing a late notice of appeal had also expired.  A

hearing was held on this motion on May 15, 2002, at which time

the petition was allowed.  The trial court vacated its order of

March 24, 2000, and then reentered the same order denying the

posttrial motion to vacate its order terminating Bert's parental

rights.  

	On June 5, 2002, Melissa filed a notice of appeal with

the trial court and on June 12, 2002, Bert did so (No. 4-02-

0488).  Their appeals have been consolidated, and they filed a

joint brief.  

II. ANALYSIS

	They argue, first, the trial court erred in construing

section 1(D)(m) of the Adoption Act and finding Bert was unfit

due to failure to make reasonable progress toward the return of

the child, where, K.A. was returned to Melissa's custody prior to

the filing of the petition to terminate and C.McD. was never

removed from Melissa's custody.  Second, they contend the trial

court's findings that Bert was unfit and termination was in the

best interest of K.A. and C.McD. wasere against the manifest weight

of the evidence.  Finally, they contend Melissa's due process

rights were violated when the State pursued the petition to

terminate Bert's parental rights because of her private interest

in making decisions concerning the care, custody, and control of

her children.

	The State argues, first, this court need not address

the termination of Bert's parental rights because Bert and

Melissa are not entitled to any relief under section 2-1401, and

may not challenge the trial court's termination order in this

appeal because notice of appeal was untimely filed.  Bert and

Melissa argue the State has waived any argument regarding the

validity of the trial court's action in granting the section 2-

1401 petition by failing to file a cross-appeal or a separate

appeal.  Lagen v. Balcor Co., 274 Ill. App. 3d 11, 14, 653 N.E.2d 968, 970 (1995).

	We acknowledge the general rule an appellee may not

raise any issues on appeal that have not been raised in a cross-

appeal.  However, the waiver rule is a principle of administra

tive convenience, an admonition to the parties; it is not a

jurisdictional requirement or any limitation upon the jurisdic

tion of a reviewing court.  Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05, 771 N.E.2d 357, 371 (2002).  We conclude waiver

does not preclude us from considering the issue because section

2-1401 petitions may not be used as a means of obtaining a new

time period in which to appeal from a trial court order.  A trial

court lacks the authority to extend the time for filing a notice

of appeal.  Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 149, 632 N.E.2d 1010, 1012 (1994).    

	The facts in Mitchell are similar to those in this case.  In Mitchell, a claimant filed a worker's compensation complaint, which was dismissed as not being proved.  The determi

nation was upheld on administrative review.  Mitchell, 158 Ill. 2d at 145-46, 632 N.E.2d at 1010.  The claimant's attorney did not discover the order had been entered until more than 30 days

had elapsed.  Then, upon the suggestion of the circuit court, he

filed a section 2-1401 petition to vacate the order, which the

trial court granted, after which the court reentered the same

order.  The claimant then filed a notice of appeal.  Mitchell, 158 Ill. 2d at 146-47, 632 N.E.2d at 1011.  The appellate court

found a section 2-1401 petition was inappropriate for extending

the time for filing an appeal beyond the 30-day period provided

in Supreme Court Rule 303(a); (155 Ill. 2d R. 303(a)); but found

it could exercise jurisdiction on grounds of equity, finding the

litigant should not be penalized by his attorney's actions. 

Mitchell, 158 Ill. 2d at 149-50, 632 N.E.2d at 1012.  

	On appeal, the supreme court noted it previously held a

trial court lacked the authority to extend the time for filing a

notice of appeal.  Mitchell, 158 Ill. 2d at 149, 632 N.E.2d at 1012.  As for the claim of equity, the court stated it was not

insensitive to the concern of penalizing the litigant for his

attorney's actions, but the court noted its responsibility to

administer its own rules and stated "neither the trial court nor

the appellate court has the 'authority to excuse compliance with

the filing requirements of the supreme court rules governing

appeals.'"  Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1012, quoting In re Smith, 80 Ill. App. 3d 380, 382, 399 N.E.2d 701, 702 (1980).  The court held the appellate court lacked jurisdic

tion and dismissed the appeal.  Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013.

	Rule 303(a)(1) provides notice of appeal from final

judgments in civil cases must be filed with the clerk of the circuit court within 30 days after entry of final judgment.  155

Ill. 2d R. 303(a)(1).  Subsection (d) of Rule 303 provides for an

extension of this time period for an additional 30 days "[o]n

motion supported by a showing of reasonable excuse for failure to

file a notice of appeal on time."  155 Ill. 2d R. 303(d).  A

trial court loses jurisdiction over the matters resolved in its

orders after 30 days have elapsed from entry of the orders.

Mitchell, 158 Ill. 2d at 149, 632 N.E.2d at 1012.

	It is tempting to attempt to distinguish Mitchell.  The trial judge told the parties the order disposing of the posttrial

motion would be orally entered in their presence.  It was not,

and they had no actual notice of its entry for well over 60 days. 

This is also a case involving parental rights, and such cases

should be disposed of on their merits.  It is also tempting to

comment upon the issues and the evidence so the parties would

know whether the judgment would have been affirmed.  We are also

interested in whether Melissa has standing to appeal from an

order terminating Bert's parental rights.  We will, however,

resist temptation and decline the opportunity to address issues

not properly before us.

	Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013, refers to such a dismissal as a harsh result.  This description

is meant, I suppose, to ameliorate what has happened—we shrug and impliedly suggest we sympathize with the parties, but we are

constrained by the rules.  And so we are.

III.  CONCLUSION

	Appeal dismissed.

	APPLETON, J., specially concurs.

	MYERSCOUGH, P.J., dissents.

	JUSTICE APPLETON, specially concurring:

	I concur with the decision reached by Justice Knecht

but write separately to state that I do so only because our

supreme court has commanded this result by its decision in

Mitchell, 158 Ill. 2d at 143, 632 N.E.2d at 1010.  While I feel bound to adhere to that decision, I would, if free to do so, concur

with Justice Myerscough's dissent in this case.

	The procedural facts of this case are not unique. 

Through human error by those in the court system, the parties

were deprived of their appellate rights.  These kinds of errors

occur in every one of the 30 counties in this district.  In this

instance, the error was committed by the trial court.  In most

other instances, the errors are committed by the employees of the

circuit clerk's office.  In both instances, the aggrieved party

has no recourse because of the immunities bestowed upon each

official.

	Our supreme court's admonition to counsel for vigilance

in frequent checking with the trial court or the clerk as to the

status of an awaited order is, I believe, misplaced.  An attorney

is rightfully wary of making a pest of himself or herself with

the trial court for fear of creating prejudice in the mind of the

trial court.  It is also unrealistic for counsel to rely on clerk

personnel with regard to the status of an order, as those person

nel are the same persons who were supposed to have mailed an

order in the first place.  If they cannot be trusted to mail the

order, they probably cannot be trusted to correctly advise as to

case status.

	A better rule would be to provide a safety valve for the preservation of a party's appellate rights, such as to allow

the 30-day period for filing a notice of appeal to run from the

actual notice of the entry of an order, where that time is later

than its entry and is supported by an affidavit from the trial

court or clerk to the effect that an error of omission prevented

an appealing party from knowing of the order being appealed

within the 30-day period.

	PRESIDING JUSTICE MYERSCOUGH, dissenting:

	I respectfully dissent.  It is not just tempting to

distinguish Mitchell; we are bound by law to distinguish Mitch ell.  In this case, the trial court specifically indicated that it would rule in the parties' presence, leading the parties to

believe they had no Mitchell objection to check for court rul ings.  To add insult to injury, the circuit clerk failed to

follow the usual and customary practice of providing copies of

the orders to the parties.  If the court had not conducted a

review hearing on June 8, 2000, the parties still would not know

the court had ruled.  

	The trial court was correct when it set aside the March

24, 2000, order and entered it June 8, 2000.  The court set aside

not only a ministerial error (Graves v. Pontiac Firefighters' Pension Board, 281 Ill. App. 3d 508, 516, 667 N.E.2d 136, 141 (1996)), but also a judicial error.  See Needham v. White Labora tories, Inc., 639 F.2d 394, 398 (7th Cir. 1981).  The court clearly never expressed its order publicly in words at the situs

of the proceeding as required.  See Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 127, 565 N.E.2d 929, 931 (1990).  

	For these reasons, this court should address the issues

and the evidence herein.

	PRESIDING JUSTICE MYERSCOUGH, dissenting:

	I respectfully dissent.  It is not just tempting to

distinguish Mitchell.  We are bound to distinguish Mitchell.  In this case, the trial court specifically indicated that it would

rule in the parties' presence, leading the parties to believe

they had no Mitchell obligation to check for court rulings.  To add insult to injury, the circuit clerk failed to follow the

usual and customary practice of providing copies of the court's

order to the parties.  If the court had not conducted a review

hearing on June 8, 2000, the parties still would not know the

court had ruled.  

	The trial court was correct when it set aside the March

24, 2000, order and entered it June 8, 2000.  The court set aside

not only a ministerial error (Graves v. Pontiac Firefighters' Pension Board, 281 Ill. App. 3d 508, 516, 667 N.E.2d 136, 141 (1996)), but also a judicial error.  See Needham v. White Labora tories Inc., 639 F.2d 394, 398 (7th Cir. 1981).  The court clearly never expressed its order publicly in words at the situs

of the proceeding as required.  See Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 127, 565 N.E.2d 929, 931 (1990).  

	For these reasons, this court should address the issues

and the evidence herein.