In re Kh. M.

2023 IL App (1st) 230261, 240 N.E.3d 11

• Court: Appellate Court of Illinois
• Decided: December 5, 2023
• Docket: 1-23-0261
• Status: Published

Opinion

2023 IL App (1st) 230261

FIRST DISTRICT SECOND DIVISION December 5, 2023

No. 1-23-0261

In re KH. M. and KY. M., Minors, ) Appeal from the ) Circuit Court of ) Cook County. (The People of the State of Illinois, ) ) Petitioner-Appellee, ) Nos. 22 JA 392 ) 22 JA 393 v. ) ) S.D., ) ) Honorable Respondent-Appellant). ) Maxwell Griffin, Jr., ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Ellis and Cobbs concurred in the judgment and opinion.

OPINION

¶1 Respondent S.D. appeals the Cook County circuit court’s disposition order adjudicating

the minors, Kh. M. and Ky. M., wards of the court and finding the minors were neglected and

abused. Respondent argues that her trial counsel was ineffective for failing to move to dismiss

the wardship petitions rather than waive the 90-day time limit for the adjudicatory hearing to

commence. According to respondent, the trial court would have been obligated to grant a motion

to dismiss under section 2-14(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705

ILCS 405/2-14(b) (West 2020)). Section 2-14(b), which will be discussed in detail below,

provides that an adjudicatory hearing shall be commenced within 90 days of the date of service

of process upon the minor, parent, and any guardian. Id. If the hearing is not commenced within No. 1-23-0261

that time period, then upon a motion from any party, the petition shall be dismissed without

prejudice. Id. § 2-14(c).

¶2 Before reaching the merits of this appeal, we set forth the factual background leading up

to the trial court’s finding that the minors were neglected and it was in their best interest to be

made wards of the court.

¶3 Respondent is the natural mother of the minors, boy and girl twins Kh. M. and Ky. M.,

born prematurely on July 10, 2019. On May 26, 2022, the State filed petitions for the

adjudication of wardship of the minors. The petition for Kh. M., the male twin, alleged the

following supporting facts:

“Mother failed to follow-up with this minor and minor’s twin sibling’s medical

needs after their birth. On or about May 16, 2022 this minor was hospitalized due

to being lethargic. Mother delayed seeking medical treatment for this minor after

he became symptomatic. Mother failed to cooperate with medical personnel and

refused to consent to have this minor transferred to a hospital that could address

his needs. Per medical personnel this minor is malnourished, severely dehydrated

and in acute renal failure. Medical personnel state that this minor is severely ill

and his condition is life threatening. Medical personnel state that this minor has

been medically neglected. Putative father’s whereabouts are unknown and

paternity has not been established.”

The petition for Ky. M., the female twin, alleged generally the same facts for Kh. M.’s medical

neglect. Both petitions listed the father as D.M., also known as D.B., “and all whom it may

concern.” Two addresses in North Las Vegas, Nevada, were listed for D.M.

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¶4 The petitions were supported by an affidavit from Karla Robertson, an investigator with

the Department of Children and Family Services (DCFS). Robertson stated that the case came to

the attention of DCFS on May 16, 2022, when respondent brought Kh. M. to Elmhurst Hospital

with complaints that the minor had not taken in any liquids for the past couple of days.

Robertson detailed as follows:

“Mother reported that Kh. M. only drinks milk, and takes no solid food even

though Kh. M. is almost 3yrs old (DOB:7/10/19). Kh. M. was transported to

Loyola University Medical Center and was seen by the Child abuse/neglect team.

After further examination and speaking with the mother, it was determined that

[Kh. M.] was in full renal failure, had not had solid food since 18 months of age,

and was suffering from malnutrition. According to the Child abuse/neglect team

at Loyola Medical Center, [Kh. M.] and his twin sister [Ky. M.] were born

premature and needed a lot of follow-up care but had none. Mother reported to the

child abuse doctor that she did not follow up with medical care because she did

not believe that the twins needed to see a doctor. When asked about why she had

not sought care after [Kh. M.] stopped eating and was losing weight, mother

reported to the team that she could not get a ride.”

The court took temporary custody of the minors with regard to respondent on May 27, 2022,

following a temporary custody hearing conducted by video conference.

¶5 On June 6, 2022, D.M. testified via Zoom at a subsequent temporary custody hearing. He

stated that he was the father of the minors but he had never claimed paternity and was not paying

child support. The State asked the court to order a DNA test for the minors and D.M., but the

court deferred the issue of paternity to the “home courtroom.” At the conclusion of the hearing,

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the court took temporary custody of the minors as it pertained to the father. At the next hearing

on June 13, 2022, the Cook County Public Guardian requested a DNA test for both children and

D.M. 1 The court ordered the DNA test over D.M.’s objection. At the time of the hearing, Kh. M.

remained hospitalized, and Ky. M. was placed with her maternal grandmother. Respondent was

granted supervised day visits.

¶6 On July 28, 2022, DCFS filed an emergency motion to suspend visitation. The motion

alleged that during a supervised visit on July 26, 2022, respondent abducted Ky. M. at the

Maywood field office.

“The assigned worker followed the mother onto the elevator to try to retrieve the

minor—the worker called 911 while on the elevator. The mother ran out to the

parking lot with the baby. The case worker followed mother and child. The case

worker was repeatedly kicked by mother. The mother drove off in a car with a

female driver. An Amber Alert was issued. At approximately 2:00 p.m. the

Chicago Police located the child who was taken to La Grange Hospital to be

1 We note that, while the minors are twins, they are fraternal twins and both received a DNA test

because it was possible they could have different fathers. “If a woman has [sexual intercourse] with either

one man or with different men during a single polyovalutory period, superfecundation could result and the

twins could have either the same father or different fathers, respectively. [Citation.] The scientific

community considers twins having two different fathers as a rare phenomenon. This phenomenon is

known as heteropaternal superfecundation, and the twins born are said to be bipaternal or heteropaternal

twins.” Passaic County Board of Social Services ex rel. T.M. v. A.S., 120 A.3d 978, 983 (N.J. Super. Ct.

Ch. Div. 2015).

4 No. 1-23-0261

medically assessed. The current whereabouts of the Mother are not known, but

she may be incarcerated.”

On July 29, 2022, the court granted the motion to suspend visitation without prejudice.

¶7 At the August 25, 2022 status hearing, the prosecutor informed the court that D.M. had

missed his initial appointment for a DNA test and was unsure if he went to a subsequent

appointment. The court observed that the minors had not been tested. Respondent remained in

custody.

¶8 The next status hearing was held via video conference on September 21, 2022. The State

presented the DNA results for Kh. M. and D.M., but Ky. M. had not been tested at that time. The

certified DNA test report indicated that there was a 0% probability that D.M. was Kh. M.’s

father. The court entered a finding that D.M. was not the father of Kh. M. and that the results for

Ky. M. remained pending. Respondent testified that she did not have another name for a putative

father(s). The State asked the court for leave to publish to unknown parties and all whom it may

concern regarding Kh. M.’s putative father, which the court granted.

¶9 The court also considered the request by respondent to restore visitation. DCFS called

caseworker Rolanda Collins to testify. Collins testified that she was assigned the case in May

2022. She was supervising respondent’s visit with Ky. M. on July 26, 2022, at the DCFS

Maywood office. During the visit, respondent was on the telephone with Ky. M. in her arms.

Then respondent “got up, and she said [Ky. M.] needed to get some air,” and Collins told

respondent that they needed to stay in the room. Respondent “proceeded out” of the visitation

area and walked to the elevator with Ky. M. in her arms. Respondent pressed the elevator button.

Collins then called her supervisor to report that respondent was trying to take the child while

Collins continued to tell respondent that she was not able to take the child from the area.

5 No. 1-23-0261

Respondent then got into the elevator, and Collins entered behind her. Collins tried to stop the

elevator.

¶ 10 When the elevator stopped on the second floor, respondent “jumped out” and ran to the

stairs with Collins behind her. Respondent continued to the first floor and past security. Collins

told her to stop and that she was abducting a child. Collins did not physically touch respondent.

Respondent did not say anything to her. As respondent went outside, Collins followed and said

she was going to call the police, and respondent said, “I don’t give an F. I am taking my child.”

¶ 11 Respondent then “jumped in the back of a silver car that was waiting for her.” Collins ran

to the car door and tried to keep it from closing. Respondent then kicked Collins. Collins told

respondent to stop and she was calling 911 because she was abducting a child. The driver

proceeded to drive, and the door slammed. Collins then called 911, reported the abduction, and

provided the license plate of the car. Collins was injured during the abduction and sought

medical attention.

¶ 12 The police recovered Ky. M. by going to respondent’s home. The police broke down the

door, and Ky. M. was present with respondent, and respondent was placed under arrest.

Thereafter, Ky. M. was placed with a new, traditional (nonrelative) foster parent.

¶ 13 Collins also testified that the case was transferred to a new agency because the minors

needed a specialized foster home. The intent was to place the minors together when Kh. M. was

released from medical care. She stated that Kh. M. was doing well. He was walking and playing

and had gained close to 30 pounds. She described Ky. M. as happy and playful.

¶ 14 Following Collins’s testimony, the prosecutor informed the court that, according to the

circuit clerk’s system, respondent had been charged with kidnapping by force or threat,

aggravated battery of a government employee, and child abduction. The court entered an order

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that respondent would be offered at least one video visit per week and DCFS had discretion to

resume in-person visitation with 14 days’ written notice to all parties. The court also entered an

order that DCFS refer the minors to play therapy within 21 days and that DCFS refer respondent

for a mental health assessment within 21 days.

¶ 15 The trial court conducted the October 19, 2022 status hearing via video conference. The

State informed the court that Ky. M. had not yet been taken for DNA testing. DCFS counsel

indicated that Stephanie Cole, the “UCAN” 2 caseworker, would be taking Ky. M. for testing the

next day. The State also informed the court that the notice by publication for Kh. M.’s unknown

father was published in the Chicago Tribune on September 26, 2022. The State presented an

exhibit of the publication to the court. The court observed that there was no appearance of a

putative father for Kh. M. and entered a default order regarding Kh. M.

¶ 16 Also on October 19, 2022, an order waiving the adjudicatory hearing time limit was

entered and file-stamped. The waiver stated that all of the parties agreed to waive the time limit

for the adjudicatory hearing, it was in the best interests of the minors, and the court approved the

waiver. Although the record on appeal does not contain the execution of that waiver in open

court, respondent concedes that the express waiver was, in fact, entered that day.

¶ 17 The next status hearing occurred via video conference on December 7, 2022. At that

hearing, the State presented the certified DNA test report indicating that there was a 0%

probability that D.M. was the father of Ky. M. The State asked the court to make a finding that

D.M. was not Ky. M.’s father, which the court entered. The court also granted the State’s request

for leave to publish to unknown fathers and all whom it may concern for Ky. M.

2 The meaning of the acronym UCAN is not contained in the record, so we will refer to it as it as

shown in the record for consistency.

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¶ 18 Additionally, Cole testified that the minors were placed together in a traditional foster

home. The placement was safe and appropriate. The minors were up to date on health

appointments, except a dental appointment scheduled in the new year. The minors were involved

in all recommended services. Respondent was visiting the children via Zoom twice a week.

¶ 19 On February 1, 2023, the court conducted the adjudicatory hearing via video conference.

At the start of the hearing, the State presented an exhibit of the publication regarding Ky. M.’s

paternity, which ran in the Chicago Tribune on December 14, 2022. The court found that, since

no one appeared as the putative father for Ky. M., the State’s motion for a default order

regarding Ky. M. was granted.

¶ 20 The State called two witnesses at the adjudicatory hearing. Karla Robertson was assigned

as the DCFS investigator in May 2022. As previously discussed in her affidavit above, she stated

that the case came to the attention of DCFS on May 16, 2022, when respondent brought Kh. M.

to Elmhurst Hospital. She was investigating allegations of inadequate food, medical neglect,

malnutrition, and substantial risk. She spoke with respondent in the afternoon of May 17, 2022.

She identified herself to respondent and informed respondent that Rodriguez would meet her at

the hospital that day. Respondent indicated that she was not coming until she picked up Ky. M.

from her mother, but Robertson explained that Ky. M. was in a safety plan and respondent was

not going to be able to get Ky. M. that day. Respondent kept telling Robertson that her daughter

was being kidnapped, but Robertson repeated that Ky. M. was safe. Robertson continued to tell

respondent that they should meet at the hospital to discuss Kh. M., but respondent was unwilling

to come to the hospital until she got Ky. M. Respondent eventually hung up on Robertson.

Robertson attempted to call respondent back, but respondent did not answer.

¶ 21 The next day, on May 18, 2022, Robertson met with social worker Paige Larson. Larson

8 No. 1-23-0261

called respondent, and Robertson told respondent she was waiting for respondent at the hospital

to meet with her. Respondent said that she was not coming to the hospital and instead she was

sitting in front of her mother’s house to get Ky. M. and had been there since 4 a.m. Robertson

again informed respondent that Ky. M. was in a safety plan with the grandmother and respondent

would not be able to get her daughter. Robertson told respondent that she should come to the

hospital to discuss her son Kh. M. Respondent again said that she was not coming to the hospital

because her mother had kidnapped Ky. M. and respondent would not come to the hospital until

she got Ky. M. back. Robertson again was unable to discuss Kh. M.’s medical condition with

respondent. Respondent did not appear to understand that Ky. M. was in a safety plan. Robertson

was unable to set up a time to meet with respondent.

¶ 22 At approximately 5 p.m. on May 19, 2022, respondent called Robertson. Respondent told

her that she did not have Ky. M., she was unable to get in touch with her mother, and she waited

in front of her mother’s house for 12 hours the previous day. She continued to assert that her

mother had kidnapped her daughter. Robertson reiterated that Ky. M. was safe and in a safety

plan, but she needed to speak with respondent about Kh. M., who was “very sick.” Robertson

was again unable to set up a meeting with respondent.

¶ 23 During this phone call, respondent told Robertson that her mother was a pedophile who

was sexually attracted to respondent and had watched as respondent had been raped as a child.

Robertson asked respondent why she thought that her mother had this sexual attraction, and

respondent answered that she had a recording and she heard it in her mother’s voice on the

recording and that her mother may have raped her as a child. Robertson testified that respondent

“couldn’t remember if her mother had raped her, but that she wouldn’t put it past her mother.

That she had probably raped her as a child.”

9 No. 1-23-0261

¶ 24 Robertson testified that part of the DCFS safety plan for Ky. M. was to run a background

check on the maternal grandmother. If there were any concerns, then DCFS would not place the

child. Ky. M. continued to stay with the maternal grandmother during the investigation.

¶ 25 Robertson then told respondent she was waiting to hear from the child abuse doctors at

Loyola and would contact respondent with their finding. Respondent had not asked about how

Kh. M. was doing in any of the three conversations. Robertson received information regarding

Kh. M.’s diagnosis on May 23, 2022. She met with respondent at Loyola on May 24, 2022.

¶ 26 During the meeting, Robertson tried to read the hotline narrative to respondent, but

respondent kept interrupting and telling her there was no hotline call. Robertson was unable to

have a productive conversation with respondent. She told respondent that protective custody had

been taken due to the findings of the child abuse team at Loyola. Based on information from

Loyola, DCFS took protective custody of the minors because the minors would be “at imminent

risk of harm if they remained in the care of their mom, the natural mother [respondent].” The

case was indicated for inadequate food, medical neglect, malnutrition, and risk of harm.

¶ 27 Maribel Rodriguez testified that she was employed as a DCFS investigator when she was

assigned this case on May 17, 2022. She spoke with respondent on the telephone to determine if

respondent had someone to care for Ky. M. during the DCFS investigation. Kh. M. was

hospitalized at Loyola University Medical Center (Loyola) at that time. Respondent identified

the maternal grandmother as the placement for Ky. M.

¶ 28 Later that day, Rodriguez observed Kh. M. at Loyola. She described his appearance as

“very fragile and thin” and he “seemed to be in some sort of pain.” She could see his rib cage.

Rodriguez took photographs of Kh. M., and the State presented those photographs as exhibits,

which the court admitted. A primary investigator was subsequently assigned, and Rodriguez did

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not have any further involvement in this case.

¶ 29 Following arguments, the court found the minors to be neglected due to lack of care,

neglected due to injurious environment, and abused due to substantial risk of injury as defined in

the Juvenile Court Act. See 705 ILCS 405/2-3 (West 2020). The court found that the abuse and

neglect were inflicted by respondent. The court, in its findings, acknowledged the photos, the

medical records, the descriptions of the children’s conditions when DCFS intervened, the

obvious lack of appropriate care, and lack of attention to their mental and developmental needs

by the parent.

¶ 30 The court then proceeded to the dispositional hearing. Rolanda Collins testified that she

was the assigned child protection specialist from May until October 2022. Collins recounted the

visit in July 2022 when respondent abducted Ky. M. from the DCFS facility. After this incident,

DCFS determined that video visitation was most appropriate. The case was later transferred to a

specialized agency, UCAN.

¶ 31 Jeffrey Brown testified that he was a supervisor at UCAN and was the supervisor to the

minors’ case following the transfer from DCFS. UCAN was still servicing the case. Both minors

are in the same placement. It is a nonrelative, specialized placement. Ky. M. was placed in this

foster home in September 2022, and Kh. M. was placed in the home in October 2022. Brown’s

most recent visit to the foster home was January 27, 2023. The home was safe and appropriate

with no signs or reports of abuse or neglect or corporal punishment. He did not have any unusual

incidents to report for either child.

¶ 32 Brown testified that Kh. M. had a gastronomy tube (g-tube) placed near his abdomen for

feeding. He has an oral aversion and developmental delays. He received occupational therapy.

Kh. M. was nonverbal, had an individualized education plan (IEP), and was on the waiting list

11 No. 1-23-0261

for speech therapy. He was up to date medically, but the results of his hearing and vision were

inconclusive, and Brown needed to talk to the foster parent about the follow up appointment.

¶ 33 Ky. M. also had an IEP, and Brown was waiting to see what was recommended for her.

The ophthalmologist was concerned that one of her visual areas looked a little weak. As of the

hearing, Ky. M. did not need any services. Ky. M. was more social and talking more every time

Brown visited. Kh. M. tended to play by himself. Brown found the specialized placement was

meeting all of the minors’ medical, social, and emotional needs. The foster parents were willing

to provide permanency if necessary.

¶ 34 Respondent was in therapy with UCAN. Brown did not have a mental health assessment

or treatment plan for respondent yet. Respondent had been receiving video visitation with the

minors because respondent was on electronic monitoring based on the abduction of Ky. M. in

July 2022. UCAN continued to recommend virtual visits with respondent. UCAN recommended

that both minors be adjudged wards of the court, and this would be in the best interest of the

minors.

¶ 35 At the conclusion of the hearing, the court adjudged Kh. M. and Ky. M. to be wards of

the court, stating that it was in the best interest of the children. The court further found

respondent unable, for reasons other than financial circumstances alone, to care for, protect,

train, or discipline the minors. The court also found the minors’ father, who remains unknown, to

be unable and unwilling to provide such care. The court found that reasonable efforts to prevent

or eliminate the need for removal of the children had been made and that appropriate services

aimed at reunification had not been successful as of the date of the disposition. Additionally, the

court found respondent to be the perpetrator of the abuse and neglect in its ruling and that the

children would continue in DCFS care and custody while respondent worked on reunification

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services. The order for temporary custody was vacated, and the court placed the children in the

custody of the DCFS guardianship administrator. The court entered a goal of returning home

within 12 months.

¶ 36 This appeal follows.

¶ 37 The Juvenile Court Act provides a two-step process the trial court must utilize to decide

whether a minor child should become a ward of the court. In re A.P., 2012 IL 113875, ¶ 18. The

first step of the process is the adjudicatory hearing, at which the court considers only whether the

minor child is abused, neglected, or dependent. Id. ¶ 19; see 705 ILCS 405/2-18(1) (West 2020).

If the circuit court determines the minor child is abused, neglected, or dependent at the

adjudicatory hearing, then the court holds a dispositional hearing, in which the court determines

whether it is consistent with the health, safety, and best interests of the minor child and the

public for the minor child to be made a ward of the court. A.P., 2012 IL 113875, ¶ 21; see 705

ILCS 405/2-22 (West 2020). In any proceeding brought under the Juvenile Court Act, including

an adjudication of wardship, the paramount consideration is the best interest of the child. A.P.,

2012 IL 113875, ¶ 18.

¶ 38 Section 2-14(b) of the Juvenile Court Act, which is at the center of this appeal, provides:

“When a petition is filed alleging that the minor is abused, neglected or dependent, an

adjudicatory hearing shall be commenced within 90 days of the date of service of process upon

the minor, parents, any guardian and any legal custodian ***.” 705 ILCS 405/2-14(b) (West

2020). The statute further provides, “[i]f the adjudicatory hearing is not heard within the time

limits required by subsection (b) or (c) of this Section, upon motion by any party the petition

shall be dismissed without prejudice.” Id. § 2-14(c). The supreme court has found that “the

legislature intended a mandatory construction of section 2-14.” In re S.G., 175 Ill. 2d 471, 482

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(1997). The supreme court has concluded that, since section 2-14 begins to run on the date of the

service of process, the date a default is entered against an absent parent is the starting point of the

90-day statutory time period. Id. at 483; see In re V.Z., 287 Ill. App. 3d 552, 559 (1997)

(recognizing S.G.’s holding and finding the 90-day period began after the minor’s father had

been defaulted following service by publication). Under section 2-14(d), the time limits may be

waived by the consent of all parties and approved by the trial court, which respondent has

conceded occurred on October 19, 2022. 705 ILCS 405/2-14(d) (West 2020).

¶ 39 In enacting the Juvenile Court Act, the legislature recognized that serious delay in the

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

family and that delay can frustrate “the health, safety and best interests of the minor and the

effort to establish permanent homes for children in need.” Id. § 2-14(a). The purpose of section

2-14 and the intent of the Juvenile Court Act is to insure that the State of Illinois

“will act in a just and speedy manner to determine the best interests of the minor,

including providing for the safety of the minor, identifying families in need,

reunifying families where the minor can be cared for at home without

endangering the minor’s health or safety and it is in the best interests of the minor,

and, if reunification is not consistent with the health, safety and best interests of

the minor, finding another permanent home for the minor.” Id.

¶ 40 Respondent does not challenge the trial court’s findings that the minors were abused and

neglected and that it was in their best interest to be made wards of the court. Rather, respondent

solely argues on appeal that her trial counsel was ineffective for affirmatively waiving the

statutory 90-day time period in which to conduct the adjudication hearing. More specifically,

respondent contends that the 90-day time period had passed when her counsel agreed to the

14 No. 1-23-0261

waiver and instead counsel should have moved to dismiss the petition under section 2-14(c) of

the Juvenile Court Act (id. § 2-14(c)). Continuing, respondent asserts that she was prejudiced

because the dismissal order would have resulted in the adjudicatory and dispositional

proceedings not having occurred and her children being returned home.

¶ 41 Although there is no constitutional right to counsel in proceedings pursuant to the

Juvenile Court Act, a statutory right has been granted. In re Charles W., 2014 IL App (1st)

131281, ¶ 32. Under the Juvenile Court Act, the parent of a minor who is the subject of

proceedings has a statutory right to be represented by counsel, including the appointment of the

public defender. 705 ILCS 405/1-5(1) (West 2020).

¶ 42 The right to effective assistance of counsel “flows from the gravity of the proceeding,

which can result in the separation of a parent from a child, and the fact that abuse and neglect

proceedings can often be a precursor to proceedings to terminate parental rights.” In re H.C.,

2023 IL App (1st) 220881, ¶ 86. To establish a claim of ineffective assistance of counsel, the

parent must show both that her counsel’s representation fell below an objective standard of

reasonableness and, but for the error, there is a reasonable probability that the outcome would

have been different. Charles W., 2014 IL App (1st) 131281, ¶ 32 (citing In re S.G., 347 Ill. App.

3d 476, 479 (2004)). “Counsel’s conduct is presumed to be the product of sound trial strategy,

and respondent bears the burden of overcoming this presumption.” Id. “We should indulge the

strong presumption that [trial] counsel’s conduct falls within a wide range of reasonable

professional conduct ***.” H.C., 2023 IL App (1st) 220881, ¶ 87. Both prongs of the Strickland

test must be satisfied for respondent to succeed on a claim of ineffective assistance of counsel.

In re K.O., 336 Ill. App. 3d 98, 111 (2002); see Strickland v. Washington, 466 U.S. 668 (1984).

We review claims of ineffective assistance of counsel de novo. H.C., 2023 IL App (1st) 220881,

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¶ 87.

¶ 43 The public guardian and the State first contend that respondent forfeited her claim related

to the timeliness of the adjudicatory hearing by failing to object in the trial court. See In re John

Paul J., 343 Ill. App. 3d 865, 878 (2003) (finding “the respondents have waived any objection as

to the timeliness of the adjudicatory hearing by failing to move for dismissal of the petition for

adjudication of wardship on this basis”). However, unlike in John Paul J., respondent has based

her argument regarding the timeliness on her counsel’s ineffectiveness. Since she has specifically

argued that her counsel was ineffective for failing to move for a dismissal, she has not forfeited

this claim. See People v. Lawton, 212 Ill. 2d 285, 296 (2004) (“An attorney cannot be expected

to argue his own ineffectiveness. That is why, for example, trial counsel’s failure to assert his

own ineffective representation in a posttrial motion does not waive the issue on appeal.”). Thus,

we first determine whether the 90-day time period had passed prior to the entry of the waiver

order.

¶ 44 We begin with an outline of the events leading up to the adjudicatory hearing in this case.

On May 26, 2022, respondent was served with process when she appeared in court. She named

D.M. as the father of the minors. D.M. was subsequently served on June 6, 2022, when he

appeared for the court hearing conducted via video conference. D.M. resided out of state in

Nevada. At that proceeding, D.M. testified that he was the father of the minors, but he was

unsure if he was named on the minors’ birth certificates, he had never claimed paternity, and he

was not paying child support. At that hearing, the State asked for an order for DNA testing for

the minors and D.M., which the court deferred to the next status hearing.

¶ 45 One week later, at the next hearing on June 13, 2022, the Public Guardian requested a

DNA test for both children and D.M. The court ordered the DNA test over D.M.’s objection.

16 No. 1-23-0261

Contrary to respondent’s contention and although D.M.’s attorney objected to the testing, D.M.

did not refuse to submit to DNA testing. At the August 25, 2022, hearing, the prosecutor

indicated that D.M. missed a scheduled DNA test in July. His counsel contacted the prosecutor

and informed her that D.M. wanted to reschedule his test. The prosecutor stated that D.M. was

supposed to submit to a test on August 24, 2022, but did not yet know if D.M. had appeared at

the appointment. The court observed that neither of the minors had been taken for DNA testing.

The court stated that it would postpone the paternity issue and see if the testing could occur by

the next court date.

¶ 46 The record indicates D.M. appeared for his DNA test on September 14, 2022. At the

September 21, 2022, status hearing, the State informed the court that only Kh. M. had been

tested. The DNA results for Kh. M. indicated a 0% probability that D.M. was Kh. M.’s father.

Respondent was unable to name any other potential father for the minor. The State then asked

the court for leave to publish to unknown parties and all whom it may concern regarding Kh.

M.’s putative father, which the court granted.

¶ 47 At the October 19, 2022, status hearing, the State informed the court that service by

publication regarding Kh. M. occurred on September 26, 2022. The court observed that no one

had appeared following the publication in court or for the video hearing and then entered a

default order for the father of Kh. M. The counsel for DCFS informed the court that the UCAN

caseworker would be taking Ky. M. to be tested the following day. Further, as already pointed

out above, the order effectively waiving the adjudication time frame was entered on October 19,

2022, as conceded by respondent.

¶ 48 At the next status hearing on December 7, 2022, the State presented the certified DNA

test report indicating that there was a 0% probability that D.M. was the father of Ky. M. The

17 No. 1-23-0261

State asked the court to make a finding that D.M. was not Ky. M.’s father, which the court

entered. The court also granted the State’s request for leave to publish to unknown fathers and all

whom it may concern for Ky. M.

¶ 49 At the start of the February 1, 2023, hearing, the State informed the court that service by

publication regarding Ky. M. ran in the Chicago Tribune on December 14, 2022. The court held

that, since no one appeared as the putative father for Ky. M., a default order was entered for Ky.

M.’s father. The court then proceeded with the adjudication hearing.

¶ 50 As illustrated above, the primary reason for the delay in conducting the adjudicatory

hearing was to determine the minors’ father(s) and provide service to him/them with the requisite

notice. From the start of the proceedings, it was respondent who identified D.M. as the father.

When DNA testing determined that he was not the father for either Kh. M. or Ky. M., respondent

was unable to provide a name for another putative father. Without that information, the State was

required to effectuate service by publication. The adjudicatory hearing was conducted after the

service was completed for Ky. M.’s putative father with time for an individual to appear. Absent

service by publication, the trial court could not enter any order or judgment against the unknown

putative father(s). 705 ILCS 405/2-16(2) (West 2020) (“the court may not enter any order or

judgment against any person who cannot be served with process other than by publication unless

notice by publication is given”). While not acknowledging her own role, we find respondent’s

conduct caused virtually all of the delays in these proceedings, including her initial naming of

D.M. as the father of the minors, her failure to supply the name of any possible putative father(s)

for the minors after DNA revealed D.M. was not the father of either minor, her kidnapping of

Ky. M., her subsequent incarceration, her placement on electronic monitoring, and her failure to

complete the therapy services ordered by the court. See In re Jackson, 243 Ill. App. 3d 631, 647-

18 No. 1-23-0261

48 (1993) (finding that the appellant mother could not complain of delays she occasioned in

setting the adjudicatory hearing).

¶ 51 As discussed above, the time period under section 2-14 begins to run when all parents

have been served. Respondent contends that D.M. did not want to submit to DNA testing and his

delay in appearing for the test should not toll the time period. According to respondent, the

service by publication for the unknown fathers should have been initiated when D.M. failed to

timely submit to DNA testing. However, respondent fails to cite any relevant authority

suggesting that service by publication should be ordered when a putative father causes a delay in

DNA testing. Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) requires appellant’s brief

to include an “[a]rgument, which shall contain the contentions of the appellant and the reasons

therefor, with citation of the authorities and the pages of the record relied on.”

¶ 52 Moreover, D.M. appeared in the proceedings and asserted that he was the father of the

minors. And again, contrary to respondent’s contention, D.M. did not refuse to submit to the

DNA testing. Additionally, had he been found to be the minors’ father, any service by

publication would have been unnecessary. Respondent’s argument minimizing the determination

of the father(s) fails to consider the best interest of the minors, which includes the minors’

familial ties and their need for permanence, including the “need for stability and continuity of

relationships with parent figures.” See 705 ILCS 405/1-3(4.05)(c), (g) (West 2020). Resolving

the question of paternity as to D.M. was in the best interest of the children.

“It is clear the legislature intended, not slavish adherence to an arbitrarily fixed

period of time, but concern for the overall purpose of the Juvenile Court Act. It

should not be forgotten that the statute’s statement of purpose and policy itself,

section 2-14(a), speaks not just in terms of speedy adjudication but ‘just and

19 No. 1-23-0261

speedy’ adjudication.” In re D.E., 314 Ill. App. 3d 764, 770 (2000).

While respondent focuses on the Juvenile Court Act’s intent for a speedy proceeding, she fails to

recognize that the statute provides for acting in a “just and speedy manner to determine the best

interests of the minor.” See 705 ILCS 405/2-14(a) (West 2020). Respondent’s argument that

service by publication should have occurred before D.M. was eliminated as the father does not

comport with the intent for a “just and speedy” adjudication in the best interest of the minors.

Respondent has not shown that any of the delays would have allowed for the adjudicatory

hearing to be held prior to service by publication for the unknown fathers.

¶ 53 As previously noted, the date a default is entered against an absent parent is the start of

the 90-day statutory time period under section 2-14. See S.G., 175 Ill. 2d at 483. Here, the default

order for the father of Kh. M. was entered on October 19, 2022, and the order for the father of

Ky. M. on February 1, 2023. Because the possibility existed that the twins could have either the

same or different fathers, the DNA testing for both minors was required. Thus, the 90-day period

did not begin until February 1, 2023, after the final service of process occurred. Since the

adjudicatory hearing was conducted on February 1, 2023, the hearing was timely, and the trial

court proceedings complied with section 2-14. Because the adjudicatory hearing complied with

section 2-14(b)’s time period, respondent’s trial counsel could not have been ineffective for

failing to file a futile motion to dismiss the petitions for adjudication of wardship. People v.

Givens, 237 Ill. 2d 311, 331 (2010) (where the supreme court held that the failure to file a motion

which would not be successful and thus the outcome of the trial would not have been different

does not establish incompetent representation).

¶ 54 In her reply brief, respondent asserts for the first time that the service by publication was

unnecessary because, under section 2-16(2), notice by publication is not required when the

20 No. 1-23-0261

person with legal custody of the minors has been served. 705 ILCS 405/2-16(2) (West 2020).

According to respondent, the court was not required to provide notice by publication to the

unnamed father(s) of the minors, and the adjudicatory hearing should have been held earlier.

However, respondent did not raise this argument in her opening brief. Her only reference to

section 2-16 was part of her contention that the adjudicatory hearing could have been held within

90 days while still complying with the service requirements under the Juvenile Court Act. She

noted that section 2-16 related to “governing notice by certified mail or publication.” Under Rule

341(h)(7), “[p]oints not argued are forfeited and shall not be raised in the reply brief.” Ill. S. Ct.

R. 341(h)(7) (eff. July 1, 2008). Since respondent did not assert this argument regarding the

notice by publication requirements under section 2-16 in her opening brief, this argument has

been forfeited.

¶ 55 Forfeiture aside, respondent fails to acknowledge that the second part of the sentence

from section 2-16(2), which provides:

“Notice by publication is not required in any case when the person alleged to have

legal custody of the minor has been served with summons personally or by

certified mail, but the court may not enter any order or judgment against any

person who cannot be served with process other than by publication unless notice

by publication is given or unless that person appears.” 705 ILCS 405/2-16(2)

(West 2020).

¶ 56 Without serving the unknown putative father(s) by publication, any order regarding the

minors’ adjudication or disposition could not be entered, and the court could not consider all

parents in the same proceeding. “Providing effective service is a means of protecting an

individual’s right to due process by allowing for proper notification of interested individuals and

21 No. 1-23-0261

an opportunity to be heard.” In re J.B., 2018 IL App (1st) 173096, ¶ 32 (citing In re Dar. C.,

2011 IL 111083, ¶ 61). A parent is entitled to notice of a petition filed under the Juvenile Court

Act. Id. (citing 705 ILCS 405/2-15 (West 2014)). “[I]f the trial court does not obtain personal

jurisdiction over a litigant, the court is ‘deprived of the authority or power to impose judgment

against the litigant.’ ” In re C.K., 2023 IL App (5th) 230012, ¶ 35 (quoting Dar. C., 2011 IL

111083, ¶ 60, citing In re M.W., 232 Ill. 2d 408, 428 (2009)).

¶ 57 Additionally, the best interest of the child includes the child’s “need for permanence

which includes the child’s need for stability and continuity of relationships with parent figures

and with siblings and other relatives.” 705 ILCS 405/1-3(4.05)(g) (West 2020). Absent an order

against the unknown fathers, the minors’ interest in permanence would not be advanced. “[T]he

children’s best interests trump even the parents’ rights or interests in their children.” In re

Custody of H.J., 2021 IL App (4th) 200401, ¶ 27. Here, the court acted in the best interest of the

minors to resolve the service of any unknown father and enter any orders against all parents.

¶ 58 Finally, respondent’s ineffective assistance claim also fails because she cannot satisfy

both prongs of Strickland. See K.O., 336 Ill. App. 3d at 111. Assuming arguendo that we were to

conclude that respondent’s counsel was deficient for failing to file a motion to dismiss, which we

do not find, respondent cannot establish the requisite prejudice to support her claim of ineffective

assistance. She asserts that she was prejudiced because, if the petition had been dismissed, then

the court would not have entered findings of neglect or adjudicated the minors wards of the

court.

¶ 59 However, any dismissal of the petitions would have been without prejudice. As the

supreme court has recognized, “section 2-14 provides that the dismissal of a petition on

timeliness grounds is without prejudice. 705 ILCS 405/2-14(c) (West 1994). Therefore, the State

22 No. 1-23-0261

may immediately file a new petition where children may be put at risk.” (Emphases added.) S.G.,

175 Ill. 2d at 492.

“[A]s our supreme court observed in S.G., when a petition for adjudication of

wardship is dismissed without prejudice on the basis that an adjudicatory hearing

was not completed within the requisite time period, the State has the right to

immediately file a new petition. The State may file the new petition against the

same parties and base it on the same charges as those stated in the original

petition.” In re Tiona W., 341 Ill. App. 3d 615, 620 (2003).

¶ 60 If the petitions had been dismissed without prejudice, the State would have undoubtably

filed new petitions immediately thereafter, given the abuse and neglect suffered by the minors.

Respondent attempts to minimize the risk of new petitions because the allegations would have to

reflect the current situation at the time of filing. While the petitions would have been updated,

the significant allegations of neglect that brought the case to DCFS would have been presented,

including the evidence admitted at the adjudicatory hearing.

¶ 61 The medical and DCFS records included in the record detail the severity of the neglect

for both minors under respondent’s care. Respondent had failed to take the minors for routine

medical care, and they had not been seen by a doctor since they were nine months old because

she believed the minors were up to date. Kh. M. was hospitalized in the pediatric intensive care

unit followed by rehabilitation following his diagnosis of malnourishment due to starvation,

severe dehydration, and renal failure. Kh. M.’s condition “could have resulted in seizures, brain

edema, complete kidney failure, shock, coma, or death.” There was no organic cause for Kh.

M.’s malnutrition; it was “medical neglect.”

¶ 62 Kh. M.’s weight at admission to Loyola was 16 pounds and 13.5 ounces and was

23 No. 1-23-0261

“severely under [the] growth curve.” Kh. M. had a severe oral aversion and “severe mixed

expressive-receptive delay.” Kh. M. also had a developmental delay, as well as impairments in

“range of motion, strength, gross motor coordination, fine motor coordination, bilateral

coordination, activity tolerance, visual perceptual skills, visual motor skills, motor planning,

manual dexterity self-help skills.” Kh. M. was not walking, talking, or sitting up on his own at 34

months old. He was developmentally “like a six-month-old child.” Kh. M. had a bald spot on the

back of his head from lying down. Respondent told a doctor at Loyola that Ky. M. would “help”

her brother by sitting “behind him to help him stay up.” Following his hospitalization at Loyola,

he was admitted to Shriners Children’s Hospital for rehabilitative services. He later was given a

g-tube for feeding.

¶ 63 Ky. M. also had developmental delays in “communication, gross motor, fine motor,

problem solving, and personal-social skills.” A doctor at Loyola observed in her notes that Ky.

M. was seen picking and eating her hair. As detailed above, while the case was pending,

respondent abducted Ky. M. from a DCFS facility and kicked Collins, the caseworker

supervising the visit. An Amber alert was issued for Ky. M., who was later found safe with

respondent. Respondent was subsequently charged with multiple felonies for these actions, and

from the record, these charges had not yet been resolved.

¶ 64 In finding that it was in the best interest of the minors to remove them from respondent’s

care, the court found that “reasonable efforts have been made to prevent or eliminate the need for

removal of the minors from the home, and that appropriate services aimed at family preservation

and family reunification have been unsuccessful at this time.” Respondent did not present any

evidence at the adjudicatory or dispositional hearings showing that she had made any progress in

the services provided by DCFS.

24 No. 1-23-0261

¶ 65 Given this overwhelming evidence of medical neglect, respondent cannot establish the

requisite prejudice. If the petitions had been dismissed without prejudice, not only would the

State have been permitted to immediately refile with the same supporting evidence, it is clear

that the juvenile court would have entered the same adjudicatory and dispositional orders. The

purpose and policy of the Juvenile Court Act is to ensure the best interests and safety of the

child. In re Arthur H., 212 Ill. 2d 441, 467 (2004) (citing 705 ILCS 405/1-2 (West 2000)). It

would not be in the best interest of the minors to have the petitions dismissed and be returned to

respondent’s care without addressing the reason the case was referred to DCFS, including the

recommended services for both the minors and respondent. Since respondent cannot show a

reasonable probability that the result would have been different, the claim of ineffective

assistance of trial counsel lacks merit.

¶ 66 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 67 Affirmed.

25 No. 1-23-0261

In re Kh. M., 2023 IL App (1st) 230261

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 22-JA-392, 22-JA-393; the Hon. Maxwell Griffin Jr., Judge, presiding.

Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Ross K. for Holberg, Assistant Public Defender, of counsel), for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Gina DiVito, and Victoria L. Kennedy, Assistant Appellee: State’s Attorneys, of counsel), for the People.

Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Mary Brigid Hayes, of counsel), for appellees.