NOTICE FILED This Order was filed under 2022 IL App (4th) 220267-U August 25, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-22-0267 th 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re A.B., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Adams County Petitioner-Appellee, ) No. 19JA87 v. ) Isaac B. ) Honorable Respondent-Appellant). ) John C. Wooleyhan, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Steigmann concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, holding the trial court did not err in denying respondent’s motion for substitution of judge as of right.
¶2 Respondent, Isaac B., appeals the trial court’s order involuntarily terminating his
parental rights as to A.B. (born November 11, 2019) upon finding that he was unfit and that
termination was in A.B.’s best interest. Isaac B. argues this order was a nullity because it was
entered after the trial court improperly denied his motion for substitution of judge as of right. We
affirm.
¶3 I. BACKGROUND
¶4 On November 15, 2019, a petition for adjudication of wardship was filed
concerning A.B. Karen B. and Norman B. were identified as A.B.’s parents and named as respondents. The petition alleged A.B. was a newborn baby and was neglected in that he was in
an environment injurious to his well-being. The petition alleged that Karen B. and Norman B.’s
older child had been taken into protective custody and a termination hearing had been scheduled.
The petition also alleged Karen B.’s parental rights as to two other children had previously been
terminated. The trial court entered an order granting temporary custody of A.B. to the
Department of Children and Family Services (DCFS).
¶5 On January 7, 2020, the trial court ordered Karen B. and Norman B. to submit to
DNA testing to determine paternity. On February 4, 2020, the court entered an order noting that
“another putative father has come forward” and ordering Isaac B. to undergo DNA testing.
¶6 On June 29, 2020, the trial court held an adjudicatory hearing. The court entered
an order finding A.B. was neglected by Karen B. and Norman B. The matter proceeded to a
dispositional hearing on October 6, 2020, and the court found Karen B. and Norman B. were
unfit and unwilling to care for A.B. The court entered an order making A.B. a ward of the court
and granting custody and guardianship of him to DCFS.
¶7 On January 20, 2021, a permanency hearing report was filed. The report indicated
Isaac B. had been identified as the biological father of A.B. The report stated a DCFS employee
had advised Isaac B. in October 2020 that he was A.B.’s biological father and could have
visitation with A.B. as soon as he filled out consent paperwork. Isaac B. did not fill out the
paperwork. The report indicated a caseworker tried to call Isaac B. “for monthly contact” in
November and December 2020. The caseworker was unable to reach Isaac B., and Isaac B. did
not return her calls.
¶8 On January 28, 2021, a summons was issued for Isaac B. On March 2, 2021, the
sheriff’s office filed a return of summons, indicating it had been unable to serve Isaac B. after
-2- two attempts. Thereafter, Isaac B. was served by publication on April 28, 2021.
¶9 On June 14, 2021, a permanency hearing was held. The trial court noted Isaac B.
had been served by publication. The court found that a permanency report that had been filed
prior to the hearing showed “none of the parents” were involved in any services, there had not
been “any progress for any type of a return home goal,” and there had been “no cooperation by
any of the parents with the caseworkers.” At the State’s request, the court changed A.B.’s
permanency goal to “substitute care pending termination.”
¶ 10 On June 23, 2021, the State filed a motion to terminate Karen B. and Isaac B.’s
parental rights. The motion alleged Isaac B. had failed to maintain a reasonable degree of
interest, concern, or responsibility as to A.B.’s welfare.
¶ 11 On August 27, 2021, Isaac B. appeared for the first time, and the public
defender’s office was appointed to represent him.
¶ 12 On December 3, 2021, the guardian ad litem who represented A.B. filed a motion
to terminate sibling visitation, which sought to terminate visitation between A.B. and some of his
half-siblings, who were Isaac B.’s biological children. The motion alleged A.B. had no prior
relationship with these half-siblings, “return home” had been ruled out as a permanency goal for
A.B., and a motion for termination of parental rights was pending as to A.B. The motion also
alleged A.B.’s half-siblings were in the care of DCFS and a termination hearing had been set in
their cases. The motion stated that, due to A.B.’s young age, “continued engagement with people
who are not likely to remain part of his life” impeded the goal of achieving permanence and
stability for A.B.
¶ 13 On December 22, 2021, a hearing was held on the motion to terminate sibling
visitation. Alison Ketsenburg, a DCFS employee, testified she supervised the caseworker
-3- assigned to A.B.’s case. She stated A.B. was two years old and had been in the care of DCFS
virtually since his birth. He had never resided with either of his biological parents. The guardian
ad litem asked Ketsenburg if A.B. had ever met Isaac B. She replied, “I do not believe so.”
Ketsenburg testified A.B. had recently begun having visitation with Isaac B.’s adolescent
daughters, who were A.B.’s half-siblings. The visitation had only begun recently because the
caseworker assigned to A.B.’s case recently learned after a review meeting that A.B. had these
half-siblings, who were in the care of another DCFS agency. DCFS employees planned to
continue holding visitation between A.B. and his half-siblings twice per month.
¶ 14 Isaac B.’s attorney did not present any evidence. During the argument portion of
the hearing, Isaac B.’s counsel stated: “I have not had a chance to speak to my client regarding
the motion that has been filed. However, based on it being both his children, and if he were to
somehow at one point gain custody of the children, I think that we would be objecting to the
motion.” The court took the matter under advisement.
¶ 15 On December 29, 2021, the trial court entered an order granting the motion to
terminate sibling visitation. The court found A.B. was two years old and had never met Isaac B.
The court stated that, due to A.B.’s age and “no previous relationship with the natural father, or
with the two half siblings,” it was in A.B.’s best interest to not have visitation with his
half-siblings until further order of the court.
¶ 16 On January 21, 2022, Isaac B. requested to discharge his counsel and represent
himself. The trial court permitted him to do so.
¶ 17 On February 8, 2022, Isaac B., pro se, filed a motion for substitution of judge as
of right.
¶ 18 On March 11, 2022, the trial court held a hearing on the State’s motion to
-4- terminate Isaac B. and Karen B.’s parental rights. Before the hearing commenced, the court
heard and denied Isaac B.’s motion for substitution of judge as of right. The court stated
substitution as of right was unavailable to Isaac B. because the case had been pending for “some
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NOTICE FILED This Order was filed under 2022 IL App (4th) 220267-U August 25, 2022 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-22-0267 th 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re A.B., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Adams County Petitioner-Appellee, ) No. 19JA87 v. ) Isaac B. ) Honorable Respondent-Appellant). ) John C. Wooleyhan, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Steigmann concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, holding the trial court did not err in denying respondent’s motion for substitution of judge as of right.
¶2 Respondent, Isaac B., appeals the trial court’s order involuntarily terminating his
parental rights as to A.B. (born November 11, 2019) upon finding that he was unfit and that
termination was in A.B.’s best interest. Isaac B. argues this order was a nullity because it was
entered after the trial court improperly denied his motion for substitution of judge as of right. We
affirm.
¶3 I. BACKGROUND
¶4 On November 15, 2019, a petition for adjudication of wardship was filed
concerning A.B. Karen B. and Norman B. were identified as A.B.’s parents and named as respondents. The petition alleged A.B. was a newborn baby and was neglected in that he was in
an environment injurious to his well-being. The petition alleged that Karen B. and Norman B.’s
older child had been taken into protective custody and a termination hearing had been scheduled.
The petition also alleged Karen B.’s parental rights as to two other children had previously been
terminated. The trial court entered an order granting temporary custody of A.B. to the
Department of Children and Family Services (DCFS).
¶5 On January 7, 2020, the trial court ordered Karen B. and Norman B. to submit to
DNA testing to determine paternity. On February 4, 2020, the court entered an order noting that
“another putative father has come forward” and ordering Isaac B. to undergo DNA testing.
¶6 On June 29, 2020, the trial court held an adjudicatory hearing. The court entered
an order finding A.B. was neglected by Karen B. and Norman B. The matter proceeded to a
dispositional hearing on October 6, 2020, and the court found Karen B. and Norman B. were
unfit and unwilling to care for A.B. The court entered an order making A.B. a ward of the court
and granting custody and guardianship of him to DCFS.
¶7 On January 20, 2021, a permanency hearing report was filed. The report indicated
Isaac B. had been identified as the biological father of A.B. The report stated a DCFS employee
had advised Isaac B. in October 2020 that he was A.B.’s biological father and could have
visitation with A.B. as soon as he filled out consent paperwork. Isaac B. did not fill out the
paperwork. The report indicated a caseworker tried to call Isaac B. “for monthly contact” in
November and December 2020. The caseworker was unable to reach Isaac B., and Isaac B. did
not return her calls.
¶8 On January 28, 2021, a summons was issued for Isaac B. On March 2, 2021, the
sheriff’s office filed a return of summons, indicating it had been unable to serve Isaac B. after
-2- two attempts. Thereafter, Isaac B. was served by publication on April 28, 2021.
¶9 On June 14, 2021, a permanency hearing was held. The trial court noted Isaac B.
had been served by publication. The court found that a permanency report that had been filed
prior to the hearing showed “none of the parents” were involved in any services, there had not
been “any progress for any type of a return home goal,” and there had been “no cooperation by
any of the parents with the caseworkers.” At the State’s request, the court changed A.B.’s
permanency goal to “substitute care pending termination.”
¶ 10 On June 23, 2021, the State filed a motion to terminate Karen B. and Isaac B.’s
parental rights. The motion alleged Isaac B. had failed to maintain a reasonable degree of
interest, concern, or responsibility as to A.B.’s welfare.
¶ 11 On August 27, 2021, Isaac B. appeared for the first time, and the public
defender’s office was appointed to represent him.
¶ 12 On December 3, 2021, the guardian ad litem who represented A.B. filed a motion
to terminate sibling visitation, which sought to terminate visitation between A.B. and some of his
half-siblings, who were Isaac B.’s biological children. The motion alleged A.B. had no prior
relationship with these half-siblings, “return home” had been ruled out as a permanency goal for
A.B., and a motion for termination of parental rights was pending as to A.B. The motion also
alleged A.B.’s half-siblings were in the care of DCFS and a termination hearing had been set in
their cases. The motion stated that, due to A.B.’s young age, “continued engagement with people
who are not likely to remain part of his life” impeded the goal of achieving permanence and
stability for A.B.
¶ 13 On December 22, 2021, a hearing was held on the motion to terminate sibling
visitation. Alison Ketsenburg, a DCFS employee, testified she supervised the caseworker
-3- assigned to A.B.’s case. She stated A.B. was two years old and had been in the care of DCFS
virtually since his birth. He had never resided with either of his biological parents. The guardian
ad litem asked Ketsenburg if A.B. had ever met Isaac B. She replied, “I do not believe so.”
Ketsenburg testified A.B. had recently begun having visitation with Isaac B.’s adolescent
daughters, who were A.B.’s half-siblings. The visitation had only begun recently because the
caseworker assigned to A.B.’s case recently learned after a review meeting that A.B. had these
half-siblings, who were in the care of another DCFS agency. DCFS employees planned to
continue holding visitation between A.B. and his half-siblings twice per month.
¶ 14 Isaac B.’s attorney did not present any evidence. During the argument portion of
the hearing, Isaac B.’s counsel stated: “I have not had a chance to speak to my client regarding
the motion that has been filed. However, based on it being both his children, and if he were to
somehow at one point gain custody of the children, I think that we would be objecting to the
motion.” The court took the matter under advisement.
¶ 15 On December 29, 2021, the trial court entered an order granting the motion to
terminate sibling visitation. The court found A.B. was two years old and had never met Isaac B.
The court stated that, due to A.B.’s age and “no previous relationship with the natural father, or
with the two half siblings,” it was in A.B.’s best interest to not have visitation with his
half-siblings until further order of the court.
¶ 16 On January 21, 2022, Isaac B. requested to discharge his counsel and represent
himself. The trial court permitted him to do so.
¶ 17 On February 8, 2022, Isaac B., pro se, filed a motion for substitution of judge as
of right.
¶ 18 On March 11, 2022, the trial court held a hearing on the State’s motion to
-4- terminate Isaac B. and Karen B.’s parental rights. Before the hearing commenced, the court
heard and denied Isaac B.’s motion for substitution of judge as of right. The court stated
substitution as of right was unavailable to Isaac B. because the case had been pending for “some
time” and it had already made rulings as to adjudication and disposition.
¶ 19 At the conclusion of the termination hearing, the court found the State had proven
by clear and convincing evidence Isaac B. was unfit in that he failed to maintain a reasonable
degree of interest, concern, or responsibility as to A.B.’s welfare. The court also found the State
had shown by a preponderance of the evidence that termination of Isaac B.’s parental rights was
in A.B.’s best interest. The court entered an order terminating Isaac B.’s parental rights, and this
appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Isaac B. argues on appeal his motion for substitution of judge as of right should
have been granted and, consequently, all subsequent orders in the case are void. Specifically,
Isaac B. contends the adjudicatory and dispositional orders were entered by the trial court before
he entered his appearance and, consequently, were irrelevant to his motion for substitution of
judge as of right. He argues his motion was timely and proper because the court did not rule on a
substantial issue between the time he entered his appearance and when he filed his motion for
substitution of judge as of right.
¶ 22 Section 2-1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2)
(West 2020)) provides that a substitution of judge may be had “[w]hen a party timely exercises
his or her right to a substitution without cause as provided in this paragraph (2).” That section
further provides:
“(i) Each party shall be entitled to one substitution of judge without cause
-5- as a matter of right.
(ii) An application for substitution of judge as of right shall be made by
motion and shall be granted if it is presented before trial or hearing begins and
before the judge to whom it is presented has ruled on any substantial issue in the
case, or if it is presented by consent of the parties.
(iii) If any party has not entered an appearance in the case and has not
been found in default, rulings in the case by the judge on any substantial issue
before the party’s appearance shall not be grounds for denying an otherwise
timely application for substitution of judge as of right by the party.” Id.
¶ 23 “A substantial issue is one relating directly to the merits of the case.” Schnepf v.
Schnepf, 2013 IL App (4th) 121142, ¶ 26. “[T]he provisions of section 2-1001 are to be liberally
construed to promote rather than defeat the right of substitution.” Bowman v. Ottney, 2015 IL
119000, ¶ 17. However, “the principle of liberal construction cannot excuse a party from
complying with the statute’s explicit requirements.” Id. “Illinois courts have held that, when
properly made, a motion for substitution of judge as a matter of right is absolute, and the circuit
court has no discretion to deny the motion.” Id.
¶ 24 In the instant case, at the time Isaac B. entered his appearance, A.B. had already
been adjudicated neglected and made a ward of the court, and the State had filed a motion to
terminate Isaac B.’s parental rights. Accordingly, at that time, the “merits of the case” included
whether (1) Isaac B. was unfit based on his alleged failure to maintain a reasonable degree of
interest, concern, or responsibility as to A.B.’s welfare and (2) if so, whether it was in A.B.’s
best interest to terminate Isaac B.’s parental rights. See 705 ILCS 405/2-29(2) (West 2020); 750
ILCS 50/1(D)(b) (West 2020).
-6- ¶ 25 We find that the trial court did not err in denying Isaac B.’s motion for
substitution of judge as of right because its ruling on the motion to terminate sibling visitation,
which was entered after Isaac B. appeared, directly related to the merits of the case. The guardian
ad litem filed the motion to terminate A.B.’s visitation with Isaac B.’s other children on the basis
that A.B. had no relationship with them. The motion also stated that these half-siblings were
unlikely to remain in A.B.’s life, as motions to terminate Isaac B.’s parental rights had been filed
in both A.B.’s case and his half-siblings’ cases. Although Isaac B.’s counsel indicated she had
not spoken with Isaac B. about the motion, she objected to it on his behalf. In granting the
motion, the court made the express findings that A.B. had never met Isaac B. and had no prior
relationship with Isaac B. or his other children. Thus, in ruling on the motion to terminate sibling
visitation, the trial court “did not merely enter a procedural order regarding the mechanics of the
case.” In re J.S., 2020 IL App (1st) 191119, ¶ 57. Rather, the court considered the extent of Isaac
B.’s involvement in A.B.’s life, which was a question directly related to whether Isaac B. was
unfit due to his alleged failure to maintain a reasonable degree of interest, concern, or
responsibility as to A.B.
¶ 26 In reaching our holding, we acknowledge that the trial court erroneously based its
denial of Isaac B.’s motion to substitute judge as of right on the fact that the adjudicatory and
dispositional orders were prior rulings on substantial issues. Both of these orders were entered
before Isaac B. entered his appearance or was served by publication, and the court had not found
Isaac B. to be in default. See 735 ILCS 5/2-1001(a)(2)(iii) (West 2020). However, “we may
affirm the trial court’s decision on any basis established by the record.” In re K.B., 314 Ill. App.
3d 739, 751 (2000).
¶ 27 III. CONCLUSION
-7- ¶ 28 For the reasons stated, we affirm the trial court’s judgment.
¶ 29 Affirmed.
-8-