Parent’s Failure to Appear at Termination Proceeding Does Not Warrant Default Judgment

In re C.J., C.B., & C.J., 2013 IL App (5^th) 120474

In March 2008, the State filed Petitions for Adjudication of Wardship for the 3 minors alleging they were neglected by their mother. The mother stipulated to the allegations of neglect and the children were adjudged wards of the court at a dispositional hearing.  No allegations of neglect were made against the father at adjudication but the court did not grant father custody because 1) he had not provided financial support to the children, and 2) father had no permanent residence. 

The State later filed petitions to terminate parental rights against both mother and father.  In November 2010, father appeared in court and was appointed counsel.  He appeared again at a pretrial hearing in February 2011.  He failed to appear at a

June 2011 hearing.  The court found him in default and set the case for disposition in July 2011.  Later in June the court granted father’s motion to set aside the default order.  The case was continued to October 2011, at which date the father appeared. The matter was again continued until February 2012.  Father’s attorney appeared at the February 2012 hearing but not the father.  The court again found father in default.  The State recited the allegations of unfitness but presented no evidence.  Thereafter the court found father unfit and that it was in the best interest that his rights be terminated. In February 2012, the father filed a motion to vacate the default based on medical reasons.  The court denied his motion to set aside the default. 

The father filed a notice of appeal.  The State filed a motion requesting that the court’s order terminating father’s parental rights be vacated and remanded for an evidentiary hearing because of the lack of evidence presented in support of that finding. 

The appellate court granted the State’s motion to reverse and remand.  The appellate court held that a default judgment may be granted only when the defaulted party fails to file an answer or appearance.  Failure to appear at trial generally does not justify a default judgment.  If the respondent is present to try the case, the petitioner must provide allegations within petition.  In this case, the State’s failure to introduce any evidence of unfitness in light of father’s filing his appearance and contesting allegations in the petition for termination did not allow the circuit court to enter a default judgment against the father. 

Note:  The opinion does not indicate that the father filed an answer to the petition to terminate parental rights.  Thus, his appearance contesting the petition was as sufficient as answering the petition.