In re J.H.

2024 IL App (4th) 240935-U

• Court: Appellate Court of Illinois
• Decided: November 25, 2024
• Docket: 4-24-0935
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 240935-U FILED This Order was filed under NO. 4-24-0935 November 25, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

In re J.H., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, Petitioner-Appellee, ) Henry County v. ) No. 22JA46 Elise H., ) Respondent-Appellant). ) ) Honorable ) James J. Cosby, ) Judge Presiding.

PRESIDING JUSTICE CAVANAGH delivered the judgment of the court. Justice DeArmond concurred in the judgment. Justice Harris specially concurred.

ORDER ¶1 Held: The appellate court vacated the trial court’s order terminating respondent’s parental rights, finding the court’s default order was not a final order or judgment and it was error to deny respondent leave to file a motion to vacate the default order.

¶2 In December 2023, the State filed a petition to terminate the parental rights of

respondent, Elise H., to her minor child, J.H. (born July 2018). Respondent failed to appear at the

first appearance on the State’s petition, and the trial court subsequently entered a default order and

a finding of parental unfitness. The court later denied respondent’s motion for leave to file a motion

to vacate the default order. Following a best interest hearing, the court terminated respondent’s

parental rights. (The court also terminated the parental rights of J.H.’s father, who is not a party to this appeal.) Respondent appeals. We vacate the order terminating respondent’s parental rights and

remand the matter for further proceedings.

¶3 I. BACKGROUND

¶4 In May 2022, in La Salle County, the State filed a petition for adjudication of

wardship pursuant to the Juvenile Court Act of 1987 (Juvenile Court Act), contending J.H.’s

environment was injurious to his welfare (705 ILCS 405/2-3(1)(b) (West 2022)). The petition

alleged respondent was driving a vehicle while intoxicated, with J.H. as a passenger, that resulted

in a serious accident. Following the implementation of a safety plan by the Illinois Department of

Children and Family Services (DCFS), respondent admitted to drinking alcohol while visiting with

J.H. in violation of the safety plan. The trial court entered an order placing J.H. in the temporary

custody of DCFS.

¶5 In July 2022, respondent stipulated to a finding that J.H. was a neglected minor and

that she was unfit or unwilling for reasons other than financial circumstances to properly care for

J.H. The trial court subsequently entered corresponding adjudicatory and dispositional orders,

making J.H. a ward of the court and granting custody and guardianship to DCFS. The court ordered

respondent to cooperate with DCFS and comply with specific terms as directed by DCFS.

¶6 In October 2022, during a permanency hearing, the entire case was transferred from

La Salle County to Henry County due to J.H.’s placement with his maternal grandmother in

Kewanee, Illinois. Respondent consented to the case transfer.

¶7 In December 2023, the State filed a petition to terminate respondent’s parental

rights to J.H. The petition alleged respondent had (1) abandoned J.H. (750 ILCS 50/1(D)(a) (West

2022)); (2) failed to maintain a reasonable degree of interest, concern, or responsibility for the

welfare of J.H. (id. § 1(D)(b)); (3) failed to make reasonable efforts toward the return of J.H. to

-2- her care within nine months after the adjudication of neglect (id. § 1(D)(m)(i)); and (4) failed to

make reasonable progress toward the return of J.H. to her care within nine months after the

adjudication of neglect (id. § 1(D)(m)(ii)). The State defined the relevant nine-month time period

as July 14, 2022, to April 14, 2023.

¶8 In April 2024, a permanency review hearing was held wherein respondent was not

present. The matter was set for a first appearance on the State’s petition to terminate respondent’s

parental rights for May 22, 2024. The trial court specifically declined to set a hearing date on the

State’s petition and reserved setting a hearing date until the first appearance date on May 22.

¶9 On May 22, 2024, respondent did not appear. Initially, the parties were scheduling

the matter for a fitness hearing to occur at a later date. Counsel for DCFS then requested respondent

be defaulted to allow the matter to move forward. Counsel stated there had been publication,

respondent was represented by counsel, and she was aware that the first appearance hearing was

taking place. The caseworker for DCFS then informed the trial court that she had spoken with

respondent on May 20, 2024, and informed her about the court date.

¶ 10 The guardian ad litem (GAL) stated the publication indicated the May 22 court date

was “a hearing on the motion to terminate parental rights.” The GAL stated the publication was

sufficient notice to respondent. The trial court asked if the default would apply solely to the issue

of parental fitness. The GAL and counsel for DCFS agreed it would. Respondent’s counsel

objected. The court then stated, “All right. Well, this is a civil matter. [Respondent is] on notice

through publication but also through communication with [her] caseworker.” The court then had

the DCFS caseworker raise her right hand, and the court inquired: “Do you swear what you told

me about speaking to [respondent] is the truth—to [respondent] about today’s court date is the

truth, the whole truth, and nothing but the truth?” The DCFS caseworker responded in the

-3- affirmative. The court stated respondent had been given notice through both publication and the

caseworker and chose not to attend the hearing. Accordingly, the court granted a default order on

the issue of parental fitness. The matter was continued for a best interest hearing.

¶ 11 The parties reconvened on July 3, 2024. Respondent was present with counsel.

Respondent’s counsel informed the trial court that respondent had missed the May 22, 2024,

hearing because she had been in the hospital due to a seizure. Counsel requested leave to file a

written motion to vacate the default order on parental fitness. Counsel sought an evidentiary

hearing to permit the court to evaluate whether respondent’s failure to appear at the prior court

date was for a valid reason, such as her proffered reason of hospitalization. Counsel also argued

the continuance would not jeopardize J.H., who continued to remain in placement with his

maternal grandmother. The court inquired with counsel when the last time respondent had spoken

directly with him prior to that day’s court date was, to which counsel stated it was October 2023.

The State objected to the court granting respondent leave, stating it had been more than 30 days

since the default order was entered, such that the court was without jurisdiction to address the

issue. The GAL also objected, noting, pursuant to section 2-32 of the Juvenile Court Act (705

ILCS 405/2-32 (West 2022)), respondent was required to file her motion within 30 days of the

default order. The GAL noted respondent could still seek relief pursuant to section 2-1401 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)) up to one year following a final

order, which would not prohibit the court from moving forward with the best interest hearing. The

court denied respondent’s request, stating, “I think I’m barred at this point in time from even taking

this up since the 30 days have elapsed.” The best interest hearing proceeded instanter. Following

the best interest hearing, the trial court found it was in J.H.’s best interest to terminate respondent’s

-4- parental rights. The court subsequently entered an order terminating respondent’s parental rights

on July 29, 2024.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, respondent argues (1) the trial court erred when it (a) entered a default

order against her and subsequently found her unfit, (b) denied her leave to file a motion to vacate

the default order; and (c) found it was in J.H.’s best interest to terminate her parental rights; (2)

service was improper, rendering any termination of her parental rights void; (3) termination of her

parental rights was unconstitutional; and (6) she received ineffective assistance of counsel. The

State concedes error regarding the court’s denial of respondent’s motion to set aside the default

order and takes no position on the remaining issues raised by respondent. For the reasons that

follow, we accept the State’s concession and agree with respondent the court erred when it denied

her leave to file a motion to vacate the default order.

¶ 15 We review a trial court’s decision to grant or deny a motion to vacate a default order

or judgment for an abuse of discretion. In re Adoption of D., 317 Ill. App. 3d 155, 160 (2000).

Notably, the trial court, in this case, did not actually evaluate a motion filed by respondent to vacate

its May 22, 2024, default order. Rather, the court denied respondent leave to file the motion. In

essence, the court denied respondent a continuance to file the motion. “Under Illinois law, a party

has no absolute right to a continuance.” In re Tashika F., 333 Ill. App. 3d 165, 169 (2002). The

court has discretion to continue a hearing where it would be consistent with the health, safety, and

best interest of the minor. In re K.O., 336 Ill. App. 3d 98, 104 (2002). We note, “serious delay in

the adjudication of abuse, neglect, or dependency cases can cause grave harm to the minor and the

family [in] that it frustrates the health, safety[,] and best interests of the minor and the effort to

-5- establish permanent homes for children in need.” 705 ILCS 405/2-14(a) (West 2022). Ultimately,

though, we review a trial court’s denial of a motion to continue under the same standard had it

denied a motion to vacate a default order: for an abuse of discretion. Tashika F., 333 Ill. App. 3d

at 169. An abuse of discretion occurs if the ruling is arbitrary, fanciful, or unreasonable. In re Z.J.,

2020 IL App (2d) 190824, ¶ 55.

¶ 16 The trial court had determined it did not have the authority to grant respondent leave

to file a motion to vacate the May 22 default order because more than 30 days had elapsed since it

had been entered. The record shows two statutes were referenced to lend support to the court’s

determination: 705 ILCS 405/2-32 (West 2022) and 735 ILCS 5/2-1401 (West 2022). The

interpretation of a statute is generally a question of law, which is reviewed de novo. Cohen v.

Chicago Park District, 2017 IL 121800, ¶ 17. When construing a statute, our primary objective is

to ascertain and give effect to the intent of the legislature, which is best indicated by the language

of the statute, given its plain and ordinary meaning. Corbett v. County of Lake, 2017 IL 121536,

¶ 30.

¶ 17 Section 2-1401 Code provides relief “from final orders and judgments, after 30

days from the entry thereof.” 735 ILCS 5/2-1401 (West 2022). Section 2-32 of the Juvenile Court

Act references section 2-1401 of the Code and requires any petition for relief must be filed within

one year following the entry of any final order or judgment. 705 ILCS 405/2-32 (West 2022).

However, “[a] default order is not the same as a default judgment.” In re Haley D., 2011 IL

110886, ¶ 64. “Under the Adoption Act [(750 ILCS 50/0.01 et seq. (West 2022))], orders

terminating parental rights are nonfinal and interlocutory.” Id. ¶ 62. The default order and

subsequent finding of respondent as an unfit parent under the Adoption Act on May 22, 2024, was

not a final order. The final order in this case did not occur until July 29, 2024. Accordingly, neither

-6- of the statutes referenced when the trial court denied respondent’s motion for leave were the

appropriately applicable statutes. Rather, section 2-1301 of the Code provides the trial court “may

in its discretion, before final order or judgment, set aside any default.” 735 ILCS 5/2-1301(e) (West

2022).

¶ 18 The trial court had the discretion to permit respondent leave to file a motion to

vacate the May 22, 2024, default order; thus, it was error for the court to find otherwise. While we

are cognizant that delays in termination of parental rights proceedings can be detrimental to the

minors involved, the facts of this case suggest the delay would have been minimal. Respondent

merely sought a continuance to file a formal motion to vacate the default order to prove up a valid

reason for failing to appear in court. Therefore, we find the trial court abused its discretion when

it declined to permit respondent leave to file a motion to vacate the default order. Because we find

the trial court erred when it denied respondent leave, we need not address respondent’s remaining

arguments. Consequently, we must vacate the trial court’s order terminating respondent’s parental

rights and remand the matter for further proceedings consistent with this order. See Haley D., 2011

IL 110886, ¶ 68.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we vacate the trial court’s order terminating respondent’s

parental rights and remand the matter for further proceedings.

¶ 21 Vacated and remanded.

¶ 22 JUSTICE HARRIS, specially concurring:

¶ 23 I agree we should vacate and remand as stated by the majority. I write separately

because I respectfully disagree that the trial court’s denial of respondent’s motion for leave to

-7- file was, in essence, a denial of a motion to continue. For this reason, I do not agree with the

majority’s analysis supra ¶ 15, which follows from that premise.

¶ 24 In my view, the analysis is much simpler. The majority is correct that a trial court’s

decision to grant or deny a motion to vacate a default order is subject to the abuse of discretion

standard. And as explained by the majority, the court was operating under the mistaken belief

it did not have the ability to consider a motion to vacate, stating it was “barred” from

considering anything after 30 days from the date of the default order. That was tantamount to

the court saying it had no discretion in the matter. However, as explained by the majority, and

conceded by the State, the court did have discretion to consider a motion to vacate the default

order. “Where a court erroneously believes it has no discretion in a matter, its failure to exercise

discretion can itself constitute an abuse of discretion.” People v. Bernard, 2021 IL App (2d)

181055, ¶ 25. That is what the State argues in its brief occurred here—the court failed to

exercise its discretion to act because it failed to recognize it possessed discretion in the first

place. Under the circumstances, I would find this was an abuse of discretion. Thus, I agree we

should vacate the court’s judgment and remand.

-8-