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Fourth Division
September 9, 2004

JUSTICE GREIMAN delivered the opinion of the court:

Rodney S. (respondent) challenges the order of the circuit court of Cook County terminatinghis parental rights as to Rodney T., a minor. He argues that (1) the trial court did not havejurisdiction to terminate his parental rights because he was not given notice of the prior adjudicatoryhearing whereby the child was deemed neglected and declared a ward of the court; and (2) there wasnot clear and convincing evidence to support the court's findings that he deserted Rodney T. for thethree months preceding the filing of the termination petition and that he failed to maintain areasonable degree of interest, concern or responsibility as to his son's welfare. We affirm.

Rodney T. was born on November 1, 1987, to LaTasha T., who was then married to GeraldT. Gerald and LaTasha had other children together. The children were found home alone onSeptember 9, 1995, and were taken into the custody of the Department of Children and FamilyServices (DCFS). Three days later, the State filed a petition for adjudication of wardship, namingGerald T. as the father of all of the children, including Rodney T. On June 3, 1996, the court foundthat Rodney T. was neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987(Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 1996)), due to his exposure to an injuriousenvironment. On September 13, 1996, the court found LaTasha and Gerald T. unfit and declaredRodney T. a ward of the court.

Rodney T. was placed in five different foster homes in the first four years following theadjudication of wardship. LaTasha was granted monthly supervised visitation for a period of time. However, after she allegedly set fire to the porch of one foster home and kidnaped the children, shewas only permitted to visit with the children in the DCFS office. LaTasha died on December 27,2000.

It is not clear at what point in time respondent began to be identified as Rodney T.'s father. The record reveals that, beginning in July 1999, the child was sometimes referred to as "Rodney[S.]" in court documents while the ChildServ case file appeared to reflect a change betweenSeptember 1997 and March 1998. In any event, the record is void of any conclusive evidence ofpaternity or any indication that respondent ever sought to establish such at any time.

In 1999, Rodney T. was placed with his maternal aunt and has remained there since. As theState retained a goal of permanency for the child, it eventually filed its petition for appointment of aguardian with right to consent to adoption on March 5, 2002 - in it, naming respondent (and "allwhom it may concern") as the child's father and requesting that he be declared unfit. The followingday, the State filed an affidavit for service of publication, attesting to the fact that respondent couldnot be located after diligent inquiry. Respondent and "To All Whom It May Concern" were servedvia publication in the Chicago Sun-Times on March 11, 2002.

In April or May 2002, respondent was located in a federal prison in Greenville, Illinois. Upon learning this, the trial court appointed counsel for respondent and arranged for him toparticipate in the hearing on the State's petition via phone conference. Respondent filed hisappearance and jury demand on July 26, 2002, and his response to the State's petition on September12, 2002.

Trial was held on the State's petition. Caseworkers Carla Szabo and Carlissa Williamstestified that diligent, yet unsuccessful, searches for respondent were conducted in April 1999,December 1999, September 2000, April or May 2001, and November or December 2001. Williams,Rodney T.'s caseworker from September 2000 through January 2003, testified that she first learnedthat respondent might by Rodney T.'s father when the child told her that his father's name was"Rodney S." However, Williams did not know of respondent's whereabouts until Rodney T.'s fosterparents advised her that they had received a letter from respondent in August 2002. Within oneweek of learning of respondent's address from the child's foster parents, Williams wrote torespondent, via certified and regular mail, and informed him of the fact that Rodney T. was in DCFScustody and of his permanency plan. She also asked to be put on his visitor's list and advised himthat she would be willing to transport the child for visitation. Within a day or two of sending herletter, Williams received a letter from respondent. The letter was not written in response to the oneshe had just sent and Williams did not know how he found out her contact information.

Williams further testified that respondent never requested a visit with the minor at any timebetween 1995 and January 2003. She knew of no other letters, cards, gifts, or money having beensent to the child prior to the August 2002 letter; and she knew of no visits between respondent andthe child. The minor did tell her once that he had a telephone conversation with respondent yearsearlier.

Respondent testified that he was serving a 56-month sentence in federal prison, which beganin June 2001, for conspiracy to defraud the government. His conviction, however, was forprostitution of minors and transportation of minors across state lines for purposes of prostitution. See United States v. Spruill, 296 F.3d 580 (7th Cir. 2002). He further testified that, prior to hisincarceration, he had an arrangement with LaTasha whereby she would bring Rodney T. to visit himevery few months and call him monthly. He stated that he would give her money for the child whenthey visited. Until receiving caseworker Williams' letter, respondent did not know that Rodney T.had been taken away from LaTasha and placed in DCFS custody in September 1995. He sentWilliams a letter in response, identifying himself as Rodney T.'s father, stating that he wanted his sonback and wanted what was best for him, and requesting visitation. He claimed that he did not get aresponse and never received a service plan.

Respondent further testified that he wrote numerous letters to his son, including some duringthe three months prior to the filing of the State's petition. However, he also testified that he did notknow where Rodney T. and LaTasha lived and he had no way of contacting them because theymoved around a lot. Finally, he entered into evidence numerous prison certificates, including aGED.

On June 6, 2003, the trial court indicated that it had found, by clear and convincing evidence,that respondent had (1) deserted the minor for three months preceding commencement oftermination proceedings, as set forth in section 1D(c) of the Adoption Act (750 ILCS 50/1D(c)(West 2002)); and (2) failed to maintain a reasonable degree of interest, concern or responsibility asto Rodney T.'s welfare, as set forth in section 1D(b) of the Adoption Act (750 ILCS 50/1D(b) (West2002)). With respect to the allegation of desertion, the court found that "[t]he unequivocal evidencewas [respondent] did not have any visitation with the minor for three months before." Addressingthe remaining allegation, the court stated:

"With respect to Paragraph B, I really rely on Mr. Spruill's testimony, not thecaseworker's or any of the other evidence. There's no question that Mr. Spruill hasbeen doing work in jail to improve himself. I have his Group Exhibit No. 1 enteredinto evidence.

But his own testimony - and keep in mind, this case just wasn't in the system ayear or two. It's been in the system a long time.

His own testimony basically was that he relied on the mother of Rodney toappear when she thought it would be proper to have him visit. He never really knewwhere the mother was staying, where she lived, the conditions Rodney was living in.

But he would stay in touch by the mother bringing his son to him from time totime. If it had gone on beyond three, four, five months, typically after about sixmonths, Mr. Spruill testified he would get a little concerned and try to find themother.

He was in Rodney's life but just by having the mother come and have Rodneyvisit him. He wasn't interested or concerned of Rodney's living conditions with themother. He didn't know about those. And what's perplexing to me is he didn't knowfrom 1995 until in August of 2002 that his son was part of the system.

I'm a little confused with his testimony saying that the mother would take himover because she didn't have him since 1995 to take him over to visit.

Now, if she did take him over - she might have. It might have been notproper. But she wasn't - this child is a ward of the court. The child was not in thecare of the mother to have these visitations from what I can discern from theevidence.

His testimony like at Page 68, he goes through how the system worked, thathe did get money from his father, give Rodney some money at Christmas time andthat. But when he was asked where was Rodney living, he says:

[']I didn't know. Like I said, I never - I didn't have no idea what places shelived in. This is what she told me. I trusted her. That was the agreement.[']

He's trusting somebody whose child since '95 is in the system.

When I questioned him - because Mr. Spruill seems genuinely concernedabout Rodney but his actions don't show it when he was not incarcerated. At Page73, I ask:

[']Do you understand that custody of the children - of Rodney was takenaway from Ms. Terry in September 1995?[']

He said:

[']No, I didn't know that, Judge.[']

Now, how often would she bring Rodney to visit you during this period oftime?

[']It would vary, three months I would say I would hear from her. If sixmonths past [sic], I would know something is wrong, five, six months at the latest. So she might like in one year bring Rodney two or three times.[']

I think if you look at everything going on here, if he truly was interested orconcerned about Rodney, he would have known where the mother was living. Hewould have sought out and found the child was in the system and done something tobring him home to him.

Again, mother died in December. And Mr. Spruill testified that she was theonly vehicle he had to visit the minor. And he was incarcerated in June.

So just the evidence shows there's no way he could have visited for those sixmonths with Rodney because the mother was dead. He said the only time he hadvisits - and I think this is what the record shows. The only time he had visits waswhen mother would bring Rodney to him. So there's a six-month period wherethere's a void.

I believe if you take all the evidence and rely specifically on Mr. Spruill's owntestimony, under the law - and I don't expect him to know the law, but I have to usehis actions to make a finding - I do find the State has proved by clear and convincingevidence that Mr. Spruill has failed to maintain a reasonable degree of interest,concern, or responsibility as to Rodney's welfare."

Subsequently, at the best interest hearing on June 23, 2003, the court determined that it wasin Rodney T.'s best interests to terminate respondent's parental rights and allow the child to beadopted. On July 7, 2003, respondent filed a notice of appeal from the order terminating his rights.

On appeal, respondent challenges the trial court's jurisdiction to terminate his parental rightsbecause he was not given notice of the prior adjudicatory hearing whereby the child was deemedneglected and declared a ward of the court. In addition, respondent argues that there was not clearand convincing evidence to support the court's findings that he deserted Rodney T. for the threemonths preceding the filing of the termination petition and that he failed to maintain a reasonabledegree of interest, concern or responsibility as to his son's welfare.

We address respondent's jurisdictional challenge first. He alleges that, because he was notnamed as a party in the underlying adjudication, disposition, and permanency hearings regardingRodney T., and was not given notice of those proceedings, the trial court was without jurisdiction toterminate his parental rights. The State responds that respondent was not a "necessary party" to theunderlying suit within the meaning of the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West2002)) and, thus, was not entitled to notice. Because the question before us - whether respondentwas a necessary party to juvenile court proceedings for the adjudication of wardship - is one ofstatutory construction, we review it de novo. See In re K.C., 323 Ill. App. 3d 839, 847 (2001).

The failure to name and serve a necessary party in a juvenile proceeding raises the question,not of personal jurisdiction over that party, but of the subject matter jurisdiction of the court. In reMiracle C., 344 Ill. App. 3d 1046, 1054 (2003), citing K.C., 323 Ill. App. 3d at 846. Under theJuvenile Court Act, the parties with rights in juvenile proceedings include "the minor who is thesubject of the proceeding and his parents, guardian, legal custodian or responsible relative who areparties respondent." 705 ILCS 405/1-5(1) (West 2002). The Juvenile Court Act further providesthat the term "parent" means: the father or mother of a child, including any adoptive parent; or a manwhose paternity is presumed or has been established under the law of this or another jurisdiction; aman who has registered with the Putative Father Registry and whose paternity has not been ruled outunder the law of this or another jurisdiction. 705 ILCS 405/1-3(11) (West 2002).

Respondent asks that we consider In re Miracle C., 344 Ill. App. 3d 1046 (2003), in supportof his argument that the court was without jurisdiction to terminate his parental rights. In MiracleC., the appellate court found that an order terminating the respondent's rights was void for lack ofjurisdiction because the respondent, a named party, had not been given notice prior to theadjudicatory phase of the proceedings and, as a result, he was denied his due process rights in theproceedings terminating his parental rights. Miracle C., 344 Ill. App. 3d 1046. We find Miracle C.inapposite, however, in that it involved a default order entered against a man who was bothidentified as the father and named as party to the suit. Miracle C., 344 Ill. App. 3d at 1048. In theinstant case, respondent did not fall within any of the categories of "parent," as defined by theJuvenile Court Act, at the time of the adjudication proceedings. Namely, he was not the presumedfather, his paternity had never been established, and he had not registered with the Putative FatherRegistry. See 705 ILCS 405/1-3(11) (West 2002). We therefore find that he was not entitled tonotice under the statute, and we reject his jurisdictional challenge on this basis.

We further note that even if respondent had been identified as the child's father and, thus, a"necessary party" to the underlying proceedings, notice to him would have been excused because hiswhereabouts were unknown. See In re C.R.H., 163 Ill. 2d 263, 269-71 (1994) (even though aparent generally has a constitutional right of due process to receive adequate notice of a juvenileproceeding, notice to a noncustodial parent whose whereabouts are unknown is excused if thecustodial parent received notice); see also Miracle C., 344 Ill. App. 3d at 1054 (recognizing thisexception, though finding it inapplicable under the circumstances).

Having found that the court had jurisdiction over this matter, we next consider respondent'sarguments regarding the sufficiency of the evidence. Under the Juvenile Court Act and the AdoptionAct, the involuntary termination of parental rights involves a two-step process whereby the Statemust first show by clear and convincing evidence that the parent is unfit under any one groundprovided in the Adoption Act ((750 ILCS 50/1(D) (West 2002)) before the court considers whethertermination is in the best interests of the child. In re D.F., 201 Ill. 2d 476, 494-95 (2002). The trialcourt found that the State had met its burden with regard to section 1(D)(b) (750 ILCS 50/1D (b)(West 2002)), finding that respondent had failed to maintain a reasonable degree of interest, concernor responsibility, and section 1(D)(c) (750 ILCS 50/1D (c) (West 2002)), finding that he haddeserted the child; accordingly, the court declared respondent unfit. Respondent argues that the trialcourt erred in making this determination.

When the trial court's determination at the fitness stage of the termination proceedings ischallenged for the sufficiency of the evidence, the appropriate method of review is the manifestweight standard. In re D.M., 336 Ill. App. 3d 766, 773 (2002). A decision is against the manifestweight of the evidence if the facts clearly demonstrate that the court should have reached theopposite conclusion. D.M., 336 Ill. App. 3d at 773. Because the reviewing court does not reweighthe evidence or reassess the credibility of the witnesses, we will defer to the trial court's finding. SeeD.M., 336 Ill. App. 3d at 773.

The record reveals that the court based its finding that respondent had failed to maintain areasonable degree of interest, concern or responsibility exclusively on his testimony, in which hestated that he had waited for LaTasha to initiate visits with the child; that he did not know where thechild was living; that he did not know that the child was part of the DCFS system until August 2002;and that there was a six-month period after LaTasha died, and before he was incarcerated, in whichhe could not have had any contact with the child. The court further noted that respondent'stestimony that he had visited with the child consistently through the mother conflicted with otherevidence regarding her highly restricted access to the children. In addition, we note that respondentnever requested a visit with the child, nor did he even contact DCFS until several months after theState had begun termination proceedings against him.

Deferring to the trial court's findings, we find the evidence in the record sufficient to supportthe trial court's finding that respondent was unfit on the ground that he failed to maintain areasonable degree of interest, concern or responsibility toward the child's welfare. Havingdetermined that the evidence was sufficient to order termination on this basis, we need not addressrespondent's argument regarding the court's finding of desertion.

Affirmed.

QUINN, P.J., and THEIS, J., concur.