In re K.S , 2022 IL App (4th) 220350-U ( 2022 )

NOTICE FILED
This Order was filed under 2022 IL App (4th) 220350-U October 5, 2022
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the NO. 4-22-0350 4th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re K.S., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Knox County
Petitioner-Appellee, ) No. 18JA51
v. )
Sharee W., ) Honorable
Respondent-Appellant). ) Curtis S. Lane,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Justices Turner and Harris concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding the trial court did not err in entering a
default judgment against respondent in the fitness hearing, nor did the court err in
terminating respondent’s parental rights.
¶2 In December 2018, the State filed a petition for adjudication of wardship with
respect to K.S., the minor child of respondent, Sharee W. (Mother or Sharee W.), alleging K.S.
was neglected and living in an environment injurious to his welfare. In March 2019, the trial
court adjudicated the minor neglected, made him a ward of the court, and placed custody and
guardianship with the Illinois Department of Children and Family Services (DCFS). The State
filed a petition to terminate respondent’s parental rights in April 2021. When the respondent
failed to appear at the January 2022 fitness hearing, the trial court entered a default judgment
against her, thereby finding her an “unfit person” within the meaning of section 1(D) of the
Adoption Act (750 ILCS 50/1(D) (West 2020)). Respondent appeared for the best-interest
hearing in March 2022, but she did not move to set aside the default judgment. The court
eventually found it was in the minor’s best interest to terminate respondent’s parental rights.
¶3 On appeal, respondent argues the following: (1) the trial court erred in entering a
default judgment against her at the fitness hearing, (2) the trial court’s unfitness findings stand
against the manifest weight of the evidence, and (3) the trial court erred in terminating her
parental rights. We affirm.
¶4 I. BACKGROUND
¶5 On December 28, 2018, the State filed a juvenile petition with respect to K.S.
(born November 18, 2009), alleging the child was neglected under section 2-3(1)(b) of the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2018)), because
he lived in an environment injurious to his welfare when in the care of his father and
step-mother, who are not parties to this appeal. After a contested shelter care hearing, where the
trial court found K.S. neglected and also found immediate and urgent necessity for a temporary
custodian, the trial court placed temporary custody and guardianship of K.S. with DCFS. Though
named in the petition, Mother did not appear or participate in the proceedings for more than a
year.
¶6 As it relates to this particular matter, K.S. came to DCFS’s attention on or about
November 1, 2018, when it received a report that the home K.S. lived in with his father,
step-mother, half-siblings, and step-brother had no electricity and received power from an
extension cord plugged into the neighboring home. The report also alleged the children were
dirty, ill-fed, and unsupervised. When DCFS visited the home, it was cluttered with clothes,
trash, and tools. It was dirty and had cockroaches. When DCFS spoke with K.S.’s father and
step-mother, they said the home was cluttered because the family was preparing to move, and
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they had plans to hire an exterminator for the bugs. After receiving two more reports with similar
allegations of environmental neglect, DCFS established a safety plan whereby K.S. and the other
children would live elsewhere while the parents rectified the problems with their home. On
December 26, 2018, DCFS learned K.S.’s father and step-mother violated the safety plan, and it
took protective custody of K.S. and his siblings.
¶7 A. Adjudicatory Proceedings
¶8 After several failed attempts to serve Mother with the juvenile petition dated
December 28, 2018, the State served Mother via publication in February 2019. She did not
appear at the adjudicatory hearing on March 26, 2019, where the trial court found, by a
preponderance of the evidence, K.S. was neglected due to an injurious environment.
¶9 The trial court held a dispositional hearing on May 21, 2019, where the State
introduced, without objection, the integrated assessment and a DCFS report the trial court
admitted into evidence. The May 2019 integrated assessment documented the following
regarding Mother:
“[Sharee W.] (biological mother to [K.S.]) is not a
perpetrator of abuse/neglect in this particular DCFS case.
However, she has a history of DCFS involvement and does not
have her parental fitness. [K.S.] was placed in his father’s care by
DCFS in November 2018. [Sharee W.] has not visited with [K.S.]
since December 2018 with the exception of contact by phone.
[Sharee W.] is not participating in services regarding her own
DCFS case (SCR# 2308136B – 12/04/17). She has not returned
phone calls or responded to letters sent by the Permanency
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Worker. For this reason, she was not interviewed.”
The assessment confirmed Sharee W. had a prior indicated finding of neglect (substantial risk of
physical injury/environment injurious to health and welfare by neglect) relating to K.S. Based on
information from a collateral source, the assessment noted Sharee W. suffered various mental
illnesses and abused substances. She attempted suicide in March 2019 and was hospitalized for a
few days. Considering the reports, the trial court found Mother “unfit, unwilling, and unable to
care for, protect, or—or take care of [K.S.], and it’s in the best interests of [K.S.] to be made [a]
ward[ ] at this time in light of the fact that the mother[ ] [has] failed to cooperate to this point.”
Besides documenting these findings, the trial court’s dispositional order adjudicated K.S.
neglected, made him a ward of the court, and instructed DCFS to maintain custody and
guardianship.
¶ 10 The trial court held permanency review hearings on October 22, 2019, and June
16, 2020. Sharee W. failed to appear at the October hearing, but she attended the June hearing—
her first appearance in this matter. The trial court recounted how Sharee W. was served by
publication and defaulted via the adjudication order. The court then appointed Sharee W. the
same counsel she had representing her in her other DCFS case. The State provided Sharee W.
with a copy of the DCFS report and a copy of the juvenile petition.
¶ 11 Sharee W., however, failed to appear at the next permanency review hearing on
August 4, 2020. When asked if Sharee W. had a position on the goal of returning home, her
counsel took no position, noting he represented Sharee W. “on a couple other matters, and she’s
been sporadic with her appearances and me having any communication with her.” Citing the
parents’ noncompliance and failure to make reasonable progress in the first nine-month period,
the trial court changed the goal from K.S. returning home to substitute care pending court
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determination on termination of parental rights. Concerning Mother, the trial court observed:
“[Sharee W.] didn’t show up ever in this proceeding except for the last hearing, and I think she
was only here randomly because she has other abuse/neglect cases pending, frankly. I don’t
believe these parents have any interest in achieving the goals of the service plans or making any
efforts to even do that.”
¶ 12 Mother appeared at the next permanency review hearing on October 13, 2020.
Counsel for K.S.’s father moved for a continuance, which the trial court denied. Noting the
parents’ noncompliance, the length of the case, and the fact that Sharee W. “doesn’t even show
up to all of her hearings that are pending in front of this Court,” the trial court opined, “[t]hese
children need permanence.” Sharee W. presented no evidence, but her attorney informed the
court she had scheduled appointments for mental health and substance evaluations for October
15. Sharee W. had also started a parenting class. Her counsel objected to a finding Mother had
not made reasonable efforts. The trial court determined Sharee W. had failed to make reasonable
efforts or progress, it maintained the status quo, and it ordered Sharee W. to comply with
services and cooperate with DCFS.
¶ 13 B. Termination of Respondent’s Parental Rights
¶ 14 On April 1, 2021, the State filed a petition to terminate Sharee W.’s parental
rights to K.S. The State alleged Sharee W. was an unfit person pursuant to section 1(D) of the
Adoption Act (750 ILCS 50/1(D) (West 2020)). The State’s petition identified three counts:
(1) Sharee W. has failed to make reasonable efforts to correct the conditions that were the basis
for the removal of the child from the parent during any nine-month period following the
adjudication of neglect, specifically the time frame from January 13, 2020, through October 13,
2020 (750 ILCS 50/1(D)(m)(i) (West 2020)); (2) Sharee W. has failed to make reasonable
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progress toward the return of the child to the parent during any nine-month period following
adjudication of neglect, specifically the nine-month period between January 13, 2020, through
October 13, 2020 (750 ILCS 50/1(D)(m)(ii) (West 2020)); and (3) Sharee W. has failed to
maintain a reasonable degree of interest, concern, or responsibility as to the minor’s welfare (750
ILCS 50/1(D)(b) (West 2020)). The State’s petition further contended termination of Mother’s
parental rights served the child’s best interest and asked for custody and guardianship to remain
with DCFS, giving it the authority to consent to the child’s adoption. In a May 4, 2021, hearing
where Sharee W. failed to appear, her attorney entered general denials on the petition’s
allegations. On July 12, 2021, the State served Sharee W. with the petition and summons while
she was housed in the Knox County jail.
¶ 15 On November 9, 2021, Sharee W. and her counsel appeared in court for the
scheduled fitness hearing. However, other necessary parties were not present due to illness. The
trial court continued the hearing on its own motion, finding “good cause given the pandemic that
we are in.” The trial court then addressed the parties, saying:
“[T]his case will be continued to January 11th of 2022 at 3:00
p.m., okay? So that is your next court date for everyone.
Although, the moms and dads, stay in touch with your
attorneys. They will be given notice of this date, and we will
proceed with fitness hearing at that date and time.”
A notice of hearing was mailed to Mother on November 15, 2021.
¶ 16 The parties reassembled before the trial court for a fitness hearing on January 11,
2022. Sharee W., however, failed to appear, though her attorney was present. Because K.S.’s
father had been appointed a new attorney that very day, the trial court yet again continued the
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fitness hearing to January 20 at 1:45 p.m. But before the trial court adjourned, the State moved
for a default judgment as to fitness for Sharee W., arguing it had served her the termination
petition via publication in October 2021 and she has routinely failed to appear in court. The trial
court reserved judgment on the matter until the next hearing. A notice of hearing was mailed to
Sharee W. the next day.
¶ 17 On January 20, 2022, the trial court held the fitness hearing on the State’s petition
to terminate parental rights. Sharee W. failed to appear, but her counsel was present. The State
renewed its motion for default judgment against Sharee W. The guardian ad litem (GAL)
supported the State’s motion. Mother’s counsel informed the court: “I’ve had no communication
with my client since September.” The court responded: “Okay. So Mom, Sharee [W.], will be
defaulted for fitness purposes.” Sharee W.’s attorney then “ask[ed] for permission of the Court to
withdraw on this motion.” With no objections from the other parties, the trial court allowed
Mother’s counsel to withdraw. The court then proceeded to hear evidence pertaining to the other
parents from the children’s caseworker, Tara Wilder. Wilder did not testify regarding Sharee W.
¶ 18 The trial court’s order reflected, by interlineation, the default judgment as to
Sharee W.’s fitness, citing her failure to appear. However, the order also contained three
unfitness findings, determining that between January 13, 2020, and October 13, 2020, Sharee W.
failed to make reasonable efforts or reasonable progress toward K.S. returning to her care and
she failed to maintain a reasonable degree of interest, concern, or responsibility for K.S.’s
welfare. The order noted: “The Respondent mother is adjudicated an unfit person as to the minor,
[K.S.]”
¶ 19 C. Best-Interests Determination
¶ 20 On March 29, 2022, the trial court held the best-interest hearing on the State’s
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petition to terminate parental rights. Sharee W. appeared with her attorney. The State moved to
introduce DCFS’s best-interest report, which the trial court admitted without any objection. The
report noted Sharee W. had been found to be an unfit parent to K.S. It documented she had been
noncompliant with services and uncooperative with DCFS. According to the report, Sharee W.
had not maintained housing or income, and she had “not visited with [K.S.] consistently for the
duration of this case.” The best-interest report noted K.S. was 12 years old and had been in foster
care with his grandparents for 1148 days. His grandparents meet K.S.’s needs for food, clothing,
shelter, and safety. They provide structure and consistency for K.S., they help him with
schoolwork, and they engage him in extracurricular activities he enjoys. K.S. did well in school
with an individualized education plan (IEP). He has friends at school and in the community. The
best-interest report noted K.S. “is bonded with his grandparents and does well in their home.” It
likewise noted K.S. loved Sharee W., he shared a bond with her, and he expressed wishes that he
could someday return to her home.
¶ 21 The State called Tara Wilder, a DCFS child welfare specialist, as a witness. She
testified she was familiar with K.S. because she was his caseworker. She stated Sharee W. was
K.S.’s biological mother. Wilder testified it was in K.S.’s best interest to terminate Sharee W.’s
parental rights. She noted Sharee W. did not complete her service plan. Wilder testified K.S.
lived with his grandparents and he was safe, stable, healthy, and happy. She noted K.S. had his
own room in the home. She testified K.S.’s younger half-brother also lived in the home. He saw
his other siblings once a month. Wilder testified K.S. was bonded to his grandparents and he
thrived in their home. She noted K.S. did well in school and had friends. Wilder testified the
grandparents were willing to provide K.S. permanence.
¶ 22 On cross-examination, Wilder described Sharee W.’s visits with K.S. as “[f]ine.”
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Sharee W. “parents well during her visitation” and Wilder had no concerns during visits. Wilder
testified K.S. is happy to see his mother. Sharee W. sometimes brought gifts or snacks to the
visits. Wilder testified Sharee W.’s “visitation kind of goes in waves,” explaining “[s]he has
periods where she’s consistent and then kind of falls off and then comes back.” Wilder noted
Sharee W. recently inquired about restarting video visits with K.S. Wilder testified that the
grandmother offered Sharee W. “a phone call or something at Christmastime” with K.S., “but
Sharee [W.] didn’t want it.”
¶ 23 On redirect examination Wilder testified Sharee W. had not visited with K.S.
since July 2021. On examination from the court, Wilder noted Sharee W. was in jail now due to
an outstanding warrant. Wilder, however, did not know why there was a warrant out for her
arrest.
¶ 24 Sharee W. then testified. She acknowledged, “it’s been, honestly, quite some
time” since she saw K.S., though she said, “I’ve spoken with him off and on through Facebook,
the telephone, small video chats here and there.” Sharee W. testified she recently asked about
having video visits with K.S. while she was incarcerated. She claimed she had been trying to
resume visitation for some time, but her efforts were thwarted by Help at Home’s change in
supervisors and its failure to contact her. Sharee W. testified she messaged her caseworker to
provide a current phone number, and she claimed she had no missed phone calls from DCFS or
Help at Home. Sharee W. described her visits with K.S. as “really good” and “[h]e is super
excited.” She said they talk about music, school, and friends. She confirmed she got gifts for
K.S.
¶ 25 Sharee W. testified she attempted to work on her service plan. She said she had
been scheduled to restart parenting classes in July 2020, but she was arrested in June. Sharee W.
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testified she had previously started parenting classes and almost completed them. She stated she
was interested in completing her service plan. She noted her attitude changed since the case
began. Sharee W. explained:
“I know—in the beginning it was really hard for me. I—I kind
of—I want to say I stomped my feet. I threw a fit because I was
charged with something that I didn’t do, and I felt like, you know, I
didn’t do what I was accused of. Now I understand. You know,
I’m coming to the understanding that, granted, I didn’t do what I
was accused of, but I still have to work the case plan. I still have to
do what is expected to be done to get them back, even though I
didn’t do what I was accused of, if that makes sense.”
She testified she paid child support when she could, but she did not have a job. Sharee W.
expressed her interest in having an ongoing relationship with K.S., even if her rights are
terminated. She said she was willing to give up temporary custody of K.S. to her mother if she
could retain her parental rights. When asked about her plan to get her life on track once she is
released from jail, Sharee W. stated she planned to continue taking medication for her mental
illness that she began taking while in jail, she said she would walk into Bridgeway to tell them
she was on medication so they could get her in right away, and she would continue to attend
narcotics anonymous (NA) meetings.
¶ 26 On cross-examination by the State, Sharee W. stated she had been in jail for
several weeks. She explained she was incarcerated for failure to comply with the terms of her
probation. She had been on probation following a drug conviction. Sharee W. again noted she
lost custody of her children for something she did not do. She stated she addressed her mental
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health problems through a phone interview and beginning medication when in jail.
¶ 27 On cross-examination by the GAL, Sharee W. addressed her missed visits. She
attributed her inconsistent visits with K.S. to various factors, including: she was on the phone
trying to schedule a mental health evaluation and her ride left her, the new visitation servicer, the
weather, lack of help from DCFS and providers, and that it hurt to explain to K.S. why he was
not living with her. When asked about her prior noncompliance, Sharee W. stated she did not
participate in the case for almost three years because she believed “it was unfair” to have her
“kids taken for something that [she] didn’t do.” Sharee W. testified she underwent drug
screenings during her probation and tested positive for methamphetamine once in April 2019.
¶ 28 The trial court then examined Sharee W. on her failure to appear at the January
20, 2022, fitness hearing. Sharee W. testified: “I cannot recall where I was at. I was most likely
at home on Pine Street.” This exchange followed:
“The Court: You don’t have any idea why you wouldn’t
appear at a fitness hearing which potentially is going to roll into a
termination of your parental rights?
Sharee W: I was—to my knowledge, at this point in time
right now, I was not notified of a fitness hearing.
The Court: Okay. Your attorney didn’t notify you?
Sharee W: I’m not sure.
The Court: Okay. Ma’am, is the only reason—that you’re
here today for this hearing is that you’re in custody?
Sharee W: No, sir.
The Court: Okay. You would have appeared at this
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hearing?
Sharee W: Yes, sir.
The Court: Okay. Were you notified by your attorney of
this hearing?
Sharee W: Yes, your honor.”
¶ 29 On redirect examination, Sharee W. stated DCFS asked her only one time to do a
drug test. She stated she did not do the test. She acknowledged she had not been to Bridgeway
for substance abuse treatment, but she “used to go to a lot of NA meetings.” She also confirmed
that counsel had her correct phone number in November 2021, but her phone number had since
changed.
¶ 30 In reciting its decision into the record, the trial court first noted it “has taken into
account the best interest report.” The court stated it heard “a lot of testimony today about doing
services,” but it noted services related to fitness not best interest. The trial court explained:
“Fitness was done on January 20th of ’22, which [Sharee W.]
didn’t even appear and blamed her attorney for not appearing. The
Court asked [Sharee W.] if she would even be here today if she
was not in custody. She claimed again Mr. Colburn apparently
advised her of today, even though he was actually discharged as
counsel after the last hearing. The Court doesn’t believe [Sharee
W.] would be here today if she was not in custody. The mother not
only has a failure to appear throughout the history of the case when
I handled this but also the fitness stage, which is very important.
But, again, we’re past the fitness.”
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The trial court observed, “None of the parents have stepped up,” and, “[t]hese children are no
closer to going home with these parents than they were when this case started.” As for Sharee
W., the court found she “isn’t a return home candidate right now” because “[s]he’s in custody.”
It also stated: “If you ask [Sharee W.], nothing is her fault.” The trial court concluded:
“[W]hen the case starts, it’s about reunification with the parents;
however, when we have cases like this, it shifts to a permanency of
the children. The parents can’t provide that permanency. I believe
that the State has met their [sic] burden. It is in the best interests to
terminate [the rights of] the parents.”
The court ordered “[t]hat the parental rights of Sharee [W.] are terminated,” DCFS “shall
maintain guardianship of K.S.,” and the permanency goal remain adoption.
¶ 31 This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 We initially comment on the delay in the issuance of this order. As a matter
addressing the custody of the minor child, this case is subject to expedited disposition under
Illinois Supreme Court Rule 311(a)(5) (eff. July 1, 2018), requiring the appellate court to issue
its decision within 150 days after the filing of a notice of appeal, except for good cause shown.
Mother filed her initial notice of appeal on April 20, 2022, and every effort was made to comply
with the September 19 deadline under Rule 311(a)(5). However, procedural complexities
precluded us from doing so, and we find good cause exists for the delay.
¶ 34 Respondent challenges the trial court’s judgment on three grounds: (1) the trial
court erroneously entered a default judgment against Sharee W. at the fitness hearing; (2) the
trial court erred in finding Sharee W. unfit, specifically that she failed to make reasonable efforts
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or progress toward K.S. returning to her home and she failed to maintain a reasonable degree of
interest, concern, or responsibility as to K.S.’s welfare; and (3) the trial court erroneously
terminated Sharee W.’s parental rights. We disagree and affirm the trial court’s judgment.
¶ 35 The Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2020)) and the Adoption
Act (750 ILCS 50/1 et seq. (West 2020)) govern how the State may terminate parental rights.
In re D.F., 201 Ill. 2d 476, 494, 777 N.E.2d 930, 940 (2002). Together, the statutes outline two
necessary steps the State must take before terminating a person’s parental rights—the State must
first show the parent is an “unfit person,” and then the State must show terminating parental
rights serves the best interest of the child. D.F., 201 Ill. 2d at 494-95 (citing 750 ILCS 50/1(D)
(West 1998) and 705 ILCS 405/2-29(2) (West 1998)). Sharee W. challenges both the fitness and
best-interest determinations, and we take each in turn.
¶ 36 A. Unfitness Finding
¶ 37 “ ‘The State must prove parental unfitness by clear and convincing evidence.’ ”
In re A.L., 409 Ill. App. 3d 492, 500, 949 N.E.2d 1123, 1129 (2011) (quoting In re Jordan V.,
347 Ill. App. 3d 1057, 1067, 808 N.E.2d 596, 604 (2004)). The Adoption Act provides several
grounds on which a trial court may find a parent “unfit,” including: the parent’s failure to
maintain a reasonable degree of interest, concern, or responsibility as to the child’s welfare (750
ILCS 50/1(D)(b) (West 2020)); the parent’s failure to make reasonable efforts to correct the
conditions that were the basis for the removal of the minor from the parent during any
nine-month period following the adjudication of neglect or abuse or dependency under the
Juvenile Court Act (750 ILCS 50/1(D)(m)(i) (West 2020)); and the parent’s failure to make
reasonable progress toward the return of the child to the parent during any nine-month period
following the adjudication of neglect or abuse (750 ILCS 50/1(D)(m)(ii) (West 2020)). Despite
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several potential bases for unfitness, “sufficient evidence of one statutory ground *** [is] enough
to support a [court’s] finding that someone [is] an unfit person.” (Internal quotation marks
omitted.) In re F.P., 2014 IL App (4th) 140360, ¶ 83, 19 N.E.3d 227; see also In re Daphnie E.,
368 Ill. App. 3d 1052, 1064, 859 N.E.2d 123, 135 (2006) (“A finding of unfitness will stand if
supported by any one of the statutory grounds set forth in section 1(D) of the Adoption Act.”
(citing In re D.D., 196 Ill. 2d 405, 422, 752 N.E.2d 1112, 1122 (2001))).
¶ 38 This court pays “ ‘great deference’ ” to a trial court’s finding “ ‘because of [that
court’s] superior opportunity to observe the witnesses and evaluate their credibility.’ ” A.L., 409
Ill. App. 3d at 500 (quoting Jordan V., 347 Ill. App. 3d at 1067). We “will not reverse a trial
court’s fitness finding unless it was contrary to the manifest weight of the evidence, meaning that
the opposite conclusion is clearly evident from a review of the record.” A.L., 409 Ill. App. 3d at
500. Since “ ‘[e]ach case concerning parental unfitness is sui generis, requiring a close analysis
of its individual facts’ ” (In re Jacorey S., 2012 IL App (1st) 113427, ¶ 19, 980 N.E.2d 91(quoting In re Konstantinos H., 387 Ill. App. 3d 192, 203, 899 N.E.2d 549, 558 (2008), quoting
Daphnie E., 368 Ill. App. 3d at 1064)), we must focus our attention to the facts of this case.
¶ 39 Illinois law allows trial courts to enter default judgments against parents who fail
to appear for proceedings held pursuant to the Juvenile Court Act when the parents had been
properly served. 705 ILCS 405/2-21(1) (West 2020); see also Ill. S. Ct. R. 219(c) (eff. July 1,
2002); Ill. S. Ct. R. 237(b) (eff. Oct. 1, 2021); In re B.C., 317 Ill. App. 3d 607, 612, 740 N.E.2d
41, 45 (2000). “However, a sanction causing a default judgment is proper only where the
sanctioned [parent’s] conduct showed ‘deliberate, contumacious, or unwarranted disregard for
the court’s authority.’ ” B.C., 317 Ill. App. 3d at 612 (quoting In re D.R., 307 Ill. App. 3d 478,
482, 718 N.E.2d 664, 666 (1999)). We review a trial court’s decision to enter a default judgment
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against a parent for an abuse of discretion. B.C., 317 Ill. App. 3d at 612. A court abuses its
discretion when it rules arbitrarily or unreasonably. D.R., 307 Ill. App. 3d at 482.
¶ 40 1. Default Judgment as to Fitness
¶ 41 Sharee W. contends the trial court erred in entering a default judgment against her
at the fitness hearing because her attorney was present and had previously entered denials on her
behalf. We note, initially, that Sharee W. neither objected to the default judgment, nor did she
seek to vacate the default judgment later pursuant to section 2-1301(e) of the Code of Civil
Procedure (735 ILCS 5/2-1301(e) (West 2020)). Though she fails to cite the plain-error standard,
Sharee W. argues, “[i]t was plain error for the Trial Court to enter default against Sharee [W.]”
Under the plain-error doctrine, “[n]onpreserved errors may be reviewed on appeal if the evidence
is closely balanced or where the errors are of such a magnitude that the defendant was denied a
fair and impartial trial.” People v. Cox, 377 Ill. App. 3d 690, 703, 879 N.E.2d 459, 473 (2007)
(citing People v. Nieves, 192 Ill. 2d 487, 502-03, 737 N.E.2d 150, 158 (2000)). The first step of
plain-error review is determining whether any error occurred. People v. Walker, 232 Ill. 2d 113,
124, 902 N.E.2d 691, 697 (2009).
¶ 42 Sharee W. directs our attention to Reuben H. Donnelley Corp. v. Earles, 268 Ill.
App. 3d 263, 643 N.E.2d 1329 (1994), arguing, “[t]his case is substantially similar” and,
therefore, merits the same result. There, the plaintiff sued the defendant for breach of contract
and the defendant filed an appearance, answer, and jury demand. Reuben H. Donnelley Corp.,
268 Ill. App. 3d at 263. On the day of trial, witnesses and counsel for both parties appeared, but
the defendant did not appear. The defendant’s counsel tried to phone the defendant but could not
reach him. Reuben H. Donnelley Corp., 268 Ill. App. 3d at 263-64. The trial court asked defense
counsel to waive the jury demand, but she declined. Reuben H. Donnelley Corp., 268 Ill. App. 3d
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at 263. On its own motion, the trial court defaulted the defendant, found the jury demand waived,
and held a hearing on damages. Reuben H. Donnelley Corp., 268 Ill. App. 3d at 264. The
defendant appealed, arguing the trial court erred in entering a default judgment against him.
Because he did not raise the issue in his posttrial motion, the appellate court reviewed the
defendant’s argument for plain error. Reuben H. Donnelley Corp., 268 Ill. App. 3d at 264-65.
The appellate court emphasized the defendant never received “[a] notice that a default judgment
might be entered if [he] failed to appear.” Reuben H. Donnelley Corp., 268 Ill. App. 3d at 264.
Noting the trial court’s decision “undercut the fundamental fairness of the proceeding,” the
appellate court held: “When a defendant files an appearance and places in issue the allegations in
the complaint, a trial court cannot enter a default judgment merely because defendant failed to
appear at trial. Plaintiff must prove its claim as if defendant had been present to try the case.”
Reuben H. Donnelley Corp., 268 Ill. App. 3d at 265.
¶ 43 Although Sharee W. likens her case to Reuben H. Donnelley Corp., we see
significant differences from this case that preclude a similar outcome. For example, contrary to
the trial court in Rueben H. Donnelley Corp., this trial court did not enter a default judgment
sua sponte. Rather, the trial court acted on the State’s two motions for a default judgment and
even gave Sharee W. one more opportunity to appear before defaulting her on fitness.
Furthermore, unlike the defendant in Reuben H. Donnelley Corp., Sharee W. received multiple
notices telling her that if she failed to appear to answer the State’s termination petition, she “may
lose all parental rights to this child and the child may be placed for adoption without any further
notice to you.” Yet nevertheless, this record is full of instances of Sharee W. not appearing for
court proceedings. Of all the hearings the trial court held between December 2018 and January
2022, some 15 hearings, Sharee W. appeared for 3. Unlike Reuben H. Donnelley Corp., this is
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not an instance of Sharee W. merely failing to appear for trial when she had insufficient notice.
Sharee W. was in court on November 9, 2021, when the trial court told her the fitness hearing
would be rescheduled for January 11, 2022, at 3 p.m. The trial court also admonished her to
“stay in touch” with her attorney. The State did mail her notice of the January 11 hearing and
then the January 20 hearing when the prior hearing had to be continued again. This record
confirms Sharee W. received notice and still missed nearly all court proceedings, including the
fitness hearing. Given the factual differences and considering the Reuben H. Donnelley Corp.
court’s emphasis on notice, we find that case distinguishable and not dispositive here.
¶ 44 We observe In re C.J., 2013 IL App (5th) 120474, ¶ 7, 985 N.E.2d 1045, a
termination-of-parental-rights case, cites Reuben H. Donnelley Corp. for the proposition that
when a parent files an appearance and denies the allegations in the petition, the trial court cannot
enter a default judgment and the State “must prove the allegations of the petition as if the
respondent [parent] had been present to try the case.” For the following reasons, we are hesitant
to adopt C.J.’s reasoning to hold the trial court erred in entering a default judgment here. First,
the State conceded error in C.J. and requested remand for an evidentiary hearing. We have no
such concession here. Next, perhaps due to the State’s concession, C.J. does not cite, let alone
analyze, the relevant statutory provisions relating to default judgments in termination
proceedings. As we noted supra, Illinois law allows for trial courts to enter default judgments
against parents who fail to appear. 705 ILCS 405/2-21(1) (West 2020); 735 ILCS 5/2-1301(d)
(West 2020). Finally, C.J. neglects to discuss any caselaw governing termination of parental
rights to surmise or even analyze if an evidentiary prove-up or factual basis is required for a
default as it is for other admissions in juvenile matters. See generally In re M.H., 196 Ill. 2d 356,
751 N.E.2d 1134 (2001).
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¶ 45 Instead, we find this case more akin to B.C., where DCFS took protective custody
of respondent mother’s seven children due to her substance abuse, her abandonment of them, and
her poor parenting skills. B.C., 317 Ill. App. 3d at 609. DCFS sought termination of the
respondent’s parental rights, and when the respondent did not appear for the hearing, the trial
court granted the State’s motion for sanctions. The trial court struck the respondent’s answer,
found her in default, and did not allow the respondent’s attorney to present evidence, though
counsel could cross-examine witnesses and give closing argument. B.C., 317 Ill. App. 3d at 609.
After the trial court terminated her parental rights, the respondent appealed, arguing the trial
court’s decision to find her in default deprived her of due process. B.C., 317 Ill. App. 3d at 612.
The reviewing court affirmed, noting, “respondent was only present at hearings when she
happened to be in prison” and “finding respondent, or an address where she could be served, was
a continual problem throughout the proceedings.” B.C., 317 Ill. App. 3d at 613. The reviewing
court further noted how the trial court did not impose sanctions as punishment but as a means of
moving an old, slow-moving case along for the ends of permanence for the children. The court
noted, again, “that respondent had ‘a history of failing to come in and engage with her lawyer
unless she was brought in on a writ.’ ” B.C., 317 Ill. App. 3d at 614. Ultimately, the reviewing
court affirmed, noting: “Given the circumstances of the present case, we do not find that the trial
court’s sanctions represent an abuse of discretion.” B.C., 317 Ill. App. 3d at 614.
¶ 46 Like the B.C. court, we must consider the particular circumstances before us. See
B.C., 317 Ill. App. 3d at 614; Jacorey S., 2012 IL App (1st) 113427, ¶ 19. Here, as in B.C., we
have a mother who repeatedly failed to appear for juvenile proceedings and seemingly only
appeared when she was in custody or happened to be in the courthouse for other matters. For
example, her first appearance in the case at the June 16, 2020, permanency review hearing
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(nearly 18 months after the shelter care hearing) resulted from her being in the courthouse for her
other DCFS matter. Despite diligence from DCFS and the State to locate Sharee W., provide her
notice, and keep her involved in the case, she attended just three hearings between December
2018 through January 2022. Her own counsel informed the trial court he had limited, infrequent
contact with Sharee W. See B.C., 317 Ill. App. 3d at 613 (stating “respondent has a duty to
follow the progress of her case and to learn from her attorney the date of the termination
hearing” (citing In re C.L.T., 302 Ill. App. 770, 778, 706 N.E.2d 123, 129 (1999))). Moreover,
like B.C., this case had been slogging through the system with many delays and even more
opportunities for Sharee W. to appear and participate, but she did neither and the court
determined the case must move along because K.S. needed permanence. See B.C., 317 Ill. App.
3d at 613-14 (noting the trial court’s default judgment “was simply trying to ‘move [the] case
along’ ”). Considering the particular circumstances here, we conclude Sharee W.’s repeated
failures to appear amounted to “ ‘deliberate, contumacious, or unwarranted disregard for the
court’s authority’ ” (B.C., 317 Ill. App. 3d at 612 (quoting D.R., 307 Ill. App. 3d at 482)) that
warranted sanctions. Consequently, we cannot say the trial court abused its discretion in entering
a default judgment against Sharee W. when she did not appear at the fitness hearing—meaning
its decision was not arbitrary nor unreasonable. See D.R., 307 Ill. App. 3d at 482. And since we
find no threshold error, we need not belabor a plain-error analysis on the default judgment. See
Walker, 232 Ill. 2d at 124.
¶ 47 2. Trial Court’s Fitness Findings
¶ 48 Building upon her argument that the trial court erroneously entered a default
judgment against her in the fitness hearing, Sharee W. next argues the trial court’s fitness
findings stand against the manifest weight of the evidence because the State failed to produce
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evidence proving her unfitness. We disagree.
¶ 49 Sharee W.’s argument seems to hinge on her presupposition that the State still
must prove its unfitness allegations against her, even though trial court already defaulted her.
Though Sharee W. cites no authority on point, our own review reveals the law appears unsettled
on this question—must the State still prove-up its unfitness allegations when the trial court enters
a default judgment on fitness? Unless the Juvenile Court Act provides a different governing
procedure, “[t]ermination proceedings under the Act employ the general rules of civil practice
and the provisions of the Code of Civil Procedure.” In re Z.J., 2020 IL App (2d) 190824, ¶ 54,
168 N.E.3d 210. The Juvenile Court Act allows for default judgments “against any parent who
has been properly served in any manner and fails to appear.” 705 ILCS 405/2-21(1) (West 2020).
Since the Juvenile Court Act does not otherwise provide governing instructions on default
judgments in termination proceedings, we look to the Code of Civil Procedure for instruction on
whether the State must still prove its factual allegations. Section 2-1301(d) of the Code of Civil
Procedure provides: “Judgment by default may be entered for want of an appearance, or for
failure to plead, but the court may in either case, require proof of the allegations of the pleadings
upon which relief is sought.” (Emphases added.) 735 ILCS 5/2-1301(d) (West 2020). Under the
Code of Civil Procedure, trial courts have discretion to enter default judgments for failure to
appear, but it also gives them discretion to require the moving party to prove-up its allegations in
addition to the default.
¶ 50 We acknowledge there are instances where the trial court entered a default
judgment against a parent in a termination proceeding and still required the State to prove the
allegations in the petition. See B.C., 317 Ill. App. 3d at 609, 614; C.L.T., 302 Ill. App. 3d at 776.
We certainly think it is best practice to still require the State to meet its burden and prove the
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petition’s allegations. But since section 2-1301(d) uses discretionary language, we cannot
conclude the State must prove-up its fitness allegations when the trial court had already entered a
default judgment on that issue.
¶ 51 The State’s petition to terminate Sharee W.’s parental rights alleged she was unfit
on three grounds: (1) her failure to make reasonable efforts during the period of January 13,
2020, to October 13, 2020, to correct the conditions leading to K.S.’s removal from the home
(750 ILCS 50/1(D)(m)(i) (West 2020)); (2) her failure to make reasonable progress during the
period of January 13, 2020, to October 13, 2020, toward the return of K.S. to her care (750 ILCS
50/1(D)(m)(ii) (West 2020)); and (3) her failure to maintain a reasonable degree of interest,
concern, or responsibility for K.S.’s welfare (750 ILCS 50/1(D)(b) (West 2020)). By failing to
appear and receiving a default judgment as to fitness, Sharee W. admitted these allegations. See
Pekin Insurance Co. v. Campbell, 2015 IL App (4th) 140955, ¶ 38, 44 N.E.3d 1103 (“A default
admits the facts alleged against a defendant in the complaint to be true.”). The State, therefore,
did not need to present evidence showing Sharee W. unfit since the trial court did not require
proof of the allegations, having noted several times her continuous and repeated failures to
appear or be involved in the proceedings. Her absence admitted her unfitness. See Universal
Casualty Co. v. Lopez, 376 Ill. App. 3d 459, 465, 876 N.E.2d 273, 279 (2007) (“In general, a
default is regarded as an admission of the material facts stated in the complaint.”).
¶ 52 Though we affirm the trial court’s judgment, we pause to note several troubling
issues we see in this case. Parental rights are among the most fundamental rights recognized in
our society. In re M.C., 2018 IL App (4th) 180144, ¶ 29, 110 N.E.3d 346. Given the significant
rights at stake, we think it best practice to require the State to prove the allegations in the
termination petition, particularly since Sharee W.’s attorney had previously denied the petition’s
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allegations on her behalf. “Illinois public policy prefers to decide legal issues on their merits”
and considers default judgments “drastic measure[s]” and “last resort[s].” Dupree v. Hardy, 2011
IL App (4th) 100351, ¶¶ 57, 59, 960 N.E.2d 1. Here, this case could have easily been decided on
its merits, especially since the caseworker (Wilder) was present and presumably prepared to
testify as to Sharee W.’s unfitness as she did for the other parents. Rather than hear the evidence,
the trial court simply entered a default judgment. We also find the trial court’s order confusing
because it contained three unfitness findings but also contained a handwritten notation that
Sharee W. had been defaulted. The order then noted Sharee W. had been found unfit. It seems
odd to include unfitness findings when no evidence was presented. It is probable the trial court
used a prepared order and simply failed to mark out the unfitness findings, but as it sits in the
record, the order is puzzling. What is more troubling, however, is the trial court’s decision to
allow Sharee W.’s attorney to withdraw and leave the courtroom before the testimony
commenced. By defaulting Sharee W. and then allowing her attorney to leave the fitness hearing,
she was left without any representation whatsoever concerning her fundamental liberty interest in
parenting her child, which raises a legitimate concern of a due process violation. See In re M.B.,
2019 IL App (2d) 181008, ¶ 14, 129 N.E.3d 631 (holding defaulted father’s “due process rights
were violated when the trial court dismissed his appointed counsel before the unfitness hearing”).
Though we find these issues troubling, we recognize Sharee W. acquiesced in any errors that
may have occurred in the fitness hearing by appearing at the best-interests hearing and yet failing
to challenge the default, the unfitness findings, or the dismissal of her counsel. See In re Z.P.,
2021 IL App (4th) 200496-U, ¶ 26 (quoting People v. Hibbler, 2019 IL App (4th) 160897, ¶ 60,
129 N.E.3d 755).
¶ 53 B. Best-Interests Determination
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¶ 54 Once a trial court finds a parent an “unfit person,” it must next consider whether
terminating that person’s parental rights serves the child’s best interest. “[A]t a best-interests
hearing, the parent’s interest in maintaining the parent-child relationship must yield to the child’s
interest in a stable, loving home life.” In re D.T., 212 Ill. 2d 347, 364, 818 N.E.2d 1214, 1227
(2004); see also In re Julian K., 2012 IL App (1st) 112841, ¶ 80, 966 N.E.2d 1107 (stating, once
the trial court finds the parent unfit, “all considerations, including the parent’s rights, yield to the
best interests of the child”). The State bears the burdens of proof and persuasion and must prove
terminating parental rights serves a child’s best interest by a preponderance of the evidence.
D.T., 212 Ill. 2d at 365-66. When considering whether termination is in a child’s best interest, the
trial court must consider several factors within “the context of the child’s age and developmental
needs.” 705 ILCS 405/1-3(4.05) (West 2020). These factors include:
“(1) the child’s physical safety and welfare; (2) the development of
the child’s identity; (3) the child’s familial, cultural[,] and religious
background and ties; (4) the child’s sense of attachments, including
love, security, familiarity, continuity of affection, and the least
disruptive placement alternative; (5) the child’s wishes and
long-term goals; (6) the child’s community ties; (7) the child’s
need for permanence, including the need for stability and
continuity of relationships with parent figures and siblings; (8) the
uniqueness of every family and child; (9) the risks related to
substitute care; and (10) the preferences of the person available to
care for the child.” Daphnie E., 368 Ill. App. 3d at 1072.
See also 705 ILCS 405/1-3(4.05) (West 2020).
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¶ 55 A trial court’s finding that termination of parental rights is in a child’s best
interest will not be reversed on appeal unless it is against the manifest weight of the evidence.
In re Dal. D., 2017 IL App (4th) 160893, ¶ 53, 74 N.E.3d 1185. The court’s decision will be
found to be “against the manifest weight of the evidence only if the opposite conclusion is
clearly apparent or the decision is unreasonable, arbitrary, or not based on the evidence.” In re
Keyon R., 2017 IL App (2d) 160657, ¶ 16, 73 N.E.3d 616.
¶ 56 Sharee W. contends the trial court “failed to consider properly the best interests of
K.S. as required.” Yet she provides no allegations or examples showing impropriety in the trial
court’s analysis. From our view, the record shows Sharee W.’s argument is unsupported. The
trial court properly noted the focus during the best-interest stage centers upon the child, not the
parent or reunification. Likewise, it properly considered the best-interest factor relating to the
child’s need for permanency. The evidence supports the court’s best-interest determination
generally and its conclusion concerning the permanency factor specifically.
¶ 57 To be sure, the State presented ample evidence showing that terminating Sharee
W.’s parental rights served K.S.’s best interest. Through testimony from the DCFS caseworker,
Wilder, and the written best-interest report from DCFS, the State showed K.S. was doing well
while living in his grandmother’s home. For example, the best-interest report outlined how the
grandparents met “[K.S.]’s needs for food, clothing, shelter, and safety.” They likewise
advocated for K.S.’s “educational needs” and helped him with his schoolwork. The report
documented that K.S. did well in school with an IEP in place. Wilder testified K.S. had bonded
well to his grandparents. He was happy and thriving in his grandparents’ home. Wilder noted
K.S. bonded with his biological brother, who also lived in the grandparents’ home. Wilder
opined K.S. was doing well in his current placement. Indeed, the record shows K.S. is loved,
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valued, secure, and nurtured in his current placement. He enjoys structure in his grandparents’
home. All told, this record evidence supports the trial court’s decision that terminating Sharee
W.’s rights served K.S.’s best interest, meaning the decision is neither unreasonable nor
arbitrary. See Keyon R., 2017 IL App (2d) 160657, ¶ 16.
¶ 58 Since the evidence does not lead us clearly to the opposite conclusion, we cannot
say the trial court’s best-interest determination goes against the manifest weight of the evidence.
Keyon R., 2017 IL App (2d) 160657, ¶ 16.
¶ 59 III. CONCLUSION
¶ 60 For the reasons stated, we affirm the trial court’s judgment.
¶ 61 Affirmed.
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