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Docket No. 92646-Agenda 17-September 2002.

In re INDIA B. et al., Minors, Appellees (The People of the State 
of Illinois, Appellee, v. Denise S., Appellant).

Opinion filed December 5, 2002.

JUSTICE THOMAS delivered the opinion of the court:

The circuit court of Cook County entered a default judgmenton July 7, 1999, terminating the parental rights of respondent,Denise S., to her four minor children, India B., Dell B., and twinsFelicia J. and Aiesha J. Respondent did not request a stay of theenforcement of the July 7, 1999, order terminating her parentalrights. The circuit court subsequently denied respondent's motionto vacate the default judgment on September 16, 1999. Thereafter,final adoption orders were entered for all four minors. On appeal,the appellate court affirmed the judgment of the circuit courtterminating respondent's parental rights. No. 1-99-3433(unpublished order under Supreme Court Rule 23). We grantedrespondent's petition for leave to appeal (177 Ill. 2d R. 315), andwe now dismiss her appeal as moot in light of our recent decisionin In re Tekela, No. 91577 (August 29, 2002), which held that anotice of appeal does not stay enforcement of a parental rightstermination order and an adoption order based on the terminationorder becomes unchallengeable after the passage of one year.

BACKGROUND

The record reveals that on November 17, 1992, theDepartment of Children and Family Services (DCFS) tookprotective custody of respondent's four children and filed petitionsfor adjudication of wardship, alleging that the children wereneglected and were exposed to an injurious environment pursuantto section 2-3(1) of the Juvenile Court Act of 1987 (Ill. Rev. Stat.1989, ch. 37, par. 802-3(1)). Following an adjudicatory hearing,the trial court found that twins Aiesha and Felicia were neglectedand had been exposed to a controlled substance at the time of theirbirths through respondent's drug usage (Ill. Rev. Stat. 1989, ch.37, par. 802-3(1)(c)). The court further found that India and Dellhad been neglected and exposed to an injurious environment byrespondent (Ill. Rev. Stat. 1989, ch. 37, par. 802-3(1)(b)). On June3, 1993, the children were adjudged wards of the court, and DCFSwas appointed guardian with the right to place the children. Overthe next five years, respondent's progress toward reunificationwith her children was largely unsatisfactory.

On August 6, 1998, the State filed petitions seeking toterminate respondent's parental rights and to appoint a guardianwith the right to consent to the adoption of the children. Thepetitions alleged, inter alia, that respondent had abandoned thechildren; had failed to maintain a reasonable degree of interest,concern or responsibility for them; and had failed to makereasonable efforts or progress to correct the conditions whichcaused their removal.

The State's termination petitions were set for a hearing to beheld on May 20, 1999. To secure respondent's presence andtestimony at the scheduled hearing, both the State and the publicguardian served respondent with a notice to appear pursuant toSupreme Court Rule 237(b) (166 Ill. 2d R. 237(b)). The noticeswarned that respondent would be subject to sanctions underSupreme Court Rule 219(c) (166 Ill. 2d R. 219(c)) if she failed toappear for the hearing.

On May 20, 1999, the hearing was continued by agreement ofthe parties until July 7, 1999, at 10:30 a.m. The court specificallycontinued to July 7, 1999, all subpoenas and all notices to appearfor the hearing. Respondent and her attorney were present in courton May 20, 1999, and neither of them objected to the continuationof the notices to appear.

On July 7, 1999, respondent failed to appear for thetermination hearing. Respondent's public defender told the trialcourt that he had not had any contact with respondent and had notreceived any information about her whereabouts. The State and theguardian ad litem informed the court that they were ready for trial,but respondent's counsel stated that he was not ready for trial. Thetrial court passed the case to allow the public defender to contactrespondent. When the case was recalled, respondent was still notpresent. The public defender stated that he could not reachrespondent and that he had not received any messages from her.

The trial court then granted the State's and the guardian adlitem's requests for sanctions pursuant to Rule 219(c) forrespondent's failure to appear. In rejecting respondent's counsel'srequest for imposition of one of the lesser sanctions availableunder Rule 219(c), the court stated the following:

"The notice was not only prepared, but so that she may becalled as a witness by the State and the GAL in theircases, the Public Defender has had no contact from[respondent]. She's left no messages regarding anyemergencies, regarding any explanations why she is nothere today; the matter was set for trial at 10:30. The noticeto appear was for 9:00. The record will reflect that thecase was originally called at approximately 10:30; passed.It was recalled at 11:30. It is now 12:10 in the afternoon,[respondent] is still not in court, nor has she left anymessages for her attorney requesting a continuance on herbehalf or explaining her absence today.

I therefore find that the matter be scheduled for trial,[respondent] having full notice that today was the day fortrial, and not being here in court in response to the motionand the notice. The State's and the GAL's requests forsanctions under 219 will be granted. All sanctionsrequested will be granted. The mother will be barred frompresenting any further pleadings. She will be barred frompresenting her defense. She will be barred from testifying,and she will be placed in default."

The trial court then required the State and the guardian adlitem to present stipulated evidence of respondent's unfitness.Respondent's counsel made no objection to the evidence stipulatedto by the State and the guardian ad litem. The evidence presentedshowed that respondent was admitted to a psychiatric hospital inNovember 1992 because she was suicidal and was suffering frommajor depression. She had had two previous admissions beforethis time. After leaving the hospital on December 2, 1992,respondent was again admitted to the hospital on December 15,1992. At that time, she exhibited major depression, poly-substanceabuse, and "suicidal and homicidal ideations."

Yvette Harris, a DCFS caseworker, established a service planfor the respondent on November 30, 1992. Harris's socialinvestigation revealed that the respondent had been using cocainesince 1987. The service plan required respondent to complete adrug and alcohol evaluation, sign releases of information,cooperate with recommendations, submit to random urine dropsfor drug testing, participate in psychological counseling to learnalternative ways of dealing with stress, and participate in weeklyvisitation.

Respondent was released from the psychiatric hospital onDecember 31, 1992. On March 30, 1993, a psychologicalevaluation was performed on respondent, concluding that she wasnot emotionally or intellectually capable of caring for her children.The evaluation further revealed that respondent had "impulsivityand anger toward others" and "had a borderline psychoticfunctioning."

After the trial court adjudged respondent's children wards ofthe court and found that she was unable to parent her children,respondent began a counseling program at Mercy Hospital in July1993. Her attendance, however, was inconsistent over the nextyear and a half.

On February 6, 1994, the trial court found that respondent hadnot made reasonable progress toward the return of her children.Although she was involved in some services, she had not obtainedstable housing, had not completed drug treatment, and had notcompleted counseling to address her mental health issues.

A DCFS case report from September 1995 revealed that therespondent was not in services and was not visiting her children.The DCFS caseworker attempted to contact respondent, butrespondent's phone had been disconnected. From August 1995until November 1996, respondent was allowed to have weeklyvisits with her children, but during that time, she visited them onlyonce every three or four months.

In May 1996, respondent received an unsatisfactory ratingfrom her caseworker for failing to visit her children, failing toobtain stable housing, and failing to participate in services. At thistime, the trial court admonished respondent that if she did notregularly visit her children and complete reunification services, thepermanency goal of returning the children to her would bechanged.

Respondent failed to appear for a July 1996 urine test, and herurine tests in August and October of 1996 yielded positive resultsfor the presence of controlled substances. In December 1996,respondent admitted to her DCFS caseworker that she had aproblem with drugs. As of January 1, 1997, respondent had notenrolled in a drug-treatment plan despite three referrals from hercaseworker.

The April 1997 service plan rated defendant's progress asunsatisfactory because she failed to visit her children or engage inservices. On May 6, 1997, the court changed the permanency goalto long-term foster care.

In August 1997, respondent completed a bonding assessmentwith her children. The examiner at the bonding assessmentobserved that respondent paid little attention to the behavior of thechildren and made few efforts to redirect them. The examinerconcluded that a close bond had not formed between respondentand the children. Case reviews in November 1997, May 1998, andNovember 1998 continued to rate respondent's progress asunsatisfactory because respondent was not visiting the childrenregularly and had not completed counseling or drug treatment.

After hearing the stipulated evidence, the trial court foundthat, based on clear and convincing evidence, respondent was unfitbecause she failed to maintain a reasonable degree of interest,concern, or responsibility as to her children and failed to makereasonable efforts and progress towards the return of the children.The case then proceeded to the best interest portion of the hearing.

The State and guardian ad litem stipulated to the testimony oftwo DCFS caseworkers who would have testified that the childrenhad been in their current foster homes for a number of years, thosehomes were safe and appropriate, and the foster parents wished toadopt the children. Both caseworkers would further testify that itwould be in the children's best interest to terminate respondent'sparental rights. Finally, both caseworkers were called at thehearing to testify before the trial court that the stipulated evidencewas a true and accurate characterization of their testimonies.

The trial court then granted the State's petition to terminaterespondent's parental rights.⁽¹⁾ Additionally, the court appointed D.Jean Ortega-Piron, the DCFS Guardianship Administrator, asguardian of all four children with the right to consent to eachchild's adoption.

Thereafter, respondent never sought an order to stay theenforcement of the July 7, 1999, order terminating her parentalrights and appointing a guardian to consent to the adoption of thechildren. Instead, respondent filed a motion on August 4, 1999, tovacate the default judgment. That motion was denied onSeptember 16, 1999, following a hearing. At the hearing on themotion to vacate the default judgment, respondent did not testifyand did not present any witnesses. Additionally, respondent didnot offer any explanation for her failure to appear at the hearing onJuly 7, 1999. In denying respondent's motion to vacate, the trialcourt stated:

"[O]n the four corners of the motion itself, there is noexplanation as for [respondent's] non-appearance at trialon July 7th, only that she did not appear, and, for somereason, in paragraph 1 of the pleadings, it goes on to statethat [respondent] did appear in court on July 12th of 1999,and neither the pleadings or arguments go to explain whyshe would have come to court on some other day than thescheduled court date."

The court further acknowledged that default was the most severesanction it could impose, but then noted the following:

"Even though a default order was entered against[respondent], the court still required the State to presentits evidence before any findings of unfitness were madeand, based on the stipulations that were entered betweenthe State and the GAL, the court then, based on theevidence presented, entered findings of unfitness against[respondent]."

The court also noted that a delay or continuance of the trial wouldnot have been in the best interests of the children and that the Statehad every right to require respondent's appearance in order toelicit her testimony as it might pertain to the petition to terminateher parental rights.

On October 1, 1999, respondent filed a notice of appeal of theorder denying her motion to vacate. Adoption orders were enteredfor India B., Felicia J., and Aiesha J. on October 1, 1999, and forDell B. on September 17, 1999. The appellate court affirmed thejudgment of the circuit court denying respondent's motion tovacate the default judgment. No. 1-99-3433 (unpublished orderunder Supreme Court Rule 23). The appellate court found that thedefault judgment in this case did not violate respondent's dueprocess rights and did not amount to too severe a sanction forrespondent's unexplained failure to appear in the face of a Rule237(b) notice to appear. We granted respondent's petition forleave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

On appeal to this court, respondent argues that the trial court'stermination of her parental rights by default judgment for herfailure to appear violated her due process rights and her right tocounsel where her attorney was not allowed to present a defenseor cross-examine witnesses. In response, the State contradictsrespondent's arguments that her due process rights and her rightto counsel were violated, noting that the default judgment barringcross-examination was the only realistic sanction that could havebeen granted for respondent's failure to appear given that it wasthe respondent's testimony that the State was seeking to compeland respondent does not indicate that she intended to call anywitness to testify on her behalf.

The State has also filed a motion to dismiss this appeal asmoot in light of this court's recent decision in In re Tekela, No.91577 (August 29, 2002). In Tekela, this court held that where aparent appealed but failed to obtain a stay of an order terminatingher parental rights, and where the children's adoptions werecompleted more than one year before the appellate court issued itsruling reversing the termination order, the appeal was moot andthe appellate court's order had to be vacated. Tekela, slip op. at 8.The State argues that given the holding in Tekela, the presentappeal is also moot. We agree.

In Tekela, the mother's parental rights were terminatedfollowing a dubious summary judgment procedure. The appellatecourt, however, reversed the termination order. At the time of theappellate court's decision reversing the termination order, morethan one year had passed from the date of the adoptions of the twominors in that case. Tekela, slip op. at 2-3. We granted leave toappeal and then vacated the appellate court's order and reinstatedthe circuit court's termination order, finding that because themother failed to obtain a stay to prevent enforcement of thetermination order, the circuit court had authority to move forwardwith the adoption proceeding and the lapse of the one-year periodto petition for relief from a final order under the Adoption Act (see735 ILCS 5/2-1401 (West 1998); 750 ILCS 50/20b (West 1998))precluded this court from granting any relief. Tekela, slip op. at 6.

Similar to the summary judgment procedure employed inTekela, the circuit court in the instant case terminated respondent'sparental rights based on a default judgment without allowing herattorney to introduce any evidence. Additionally, the present caseis factually similar to Tekela in that here more than three yearshave now elapsed from the dates of the adoptions of the fourchildren and they have been residing in the homes of theiradoptive parents for over seven years now.

Respondent argues that a significant difference between thiscase and Tekela is that here the final adoption order for one ofrespondent's children was entered prior to the timely filing of hernotice of appeal and the adoption orders for the remaining childrenwere entered on the same day that her notice of appeal was filed,while in Tekela the adoption orders were entered a couple ofmonths after the mother filed her notice of appeal.

Contrary to respondent's argument, we find that thesignificant fact is not the timing of the notices of appeal, but ratherthat the mothers in both cases failed to obtain stays of thetermination orders. That the respondent in the present case filedher notice of appeal after or on the same day that the adoptionorders were entered is not legally significant because a notice ofappeal clearly does not operate as a stay so as to impact " 'theenforcement and effect of the judgment.' " Tekela, slip op. at 4-5,quoting Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 527 n.4(2001). Thus, it is completely irrelevant that the adoption orderswere entered before or on the same day that respondent's notice ofappeal was filed when the notice of appeal would have had noimpact on enforcement of the judgment. Respondent ignores thefact that she had 72 days to seek a stay from the time thetermination order was entered on July 7, 1999, until the firstadoption order was entered on September 17, 1999.

Her argument also ignores the fact that the critical point intime in this case is not the date of the adoptions themselves butrather one year after the date of the adoptions, as it is on this latterdate that the adoptions became unchallengeable. Section 20b ofthe Adoption Act provides as follows:

"A petition for relief from a final order or judgmententered in a proceeding under this Act, after 30 days fromthe entry thereof under the provisions of Sec. 2-1401 ofthe Code of Civil Procedure or otherwise, must be filednot later than one year after the entry of the order orjudgment." 750 ILCS 50/20b (West 1998).

As Tekela noted, a petition for relief from a final order underthe Adoption Act must be filed within one year after entry of theorder; thereafter the adoption becomes unchallengeable, makingit impossible to grant a party effective relief with respect to thetermination order. Tekela, slip op. at 9, citing 750 ILCS 50/20(b)(West 1998). This is supported by public policy considerations,requiring that adoptions be accorded a certain degree of finalityand stability. Tekela, slip op. at 9. Given our conclusion that therespondent's notice of appeal in this case did not operate as a stay,and could not operate as a stay even if it was filed before theadoption orders were entered (see Tekela, slip op. at 6), thetermination order of July 7, 1999, necessarily became fullyenforceable and the circuit court had authority to move forwardwith the adoption proceeding (see Tekela, slip op. at 6). In fact,section 5 of the Adoption Act specifically requires that theproceedings to adopt children be commenced by the prospectiveadoptive parents within 30 days after such child becomes"available" for adoption. 750 ILCS 50/5 (West 1998). Here, thechildren became "available" within the meaning of the statutoryscheme on the date that the respondent's parental rights wereterminated, July 7, 1999. See 750 ILCS 50/1(F)(b), 8(a)(1) (West1998). Thus, it was incumbent upon respondent to seek a stay ofthe enforcement of the termination order. This the respondent didnot do.

Arguably, enforcement of the termination order wasautomatically stayed for a brief time from August 4, 1999, whenrespondent filed her motion to vacate until September 16, 1999,when the circuit court issued its order denying the motion tovacate. Section 2-1203 of the Code of Civil Procedure (the Code)provides that "[i]n all cases tried without a jury," a timely filedmotion to vacate "stays enforcement of the judgment." 735 ILCS5/2-1203 (West 2000). After the circuit court denied respondent'smotion to vacate, however, the termination order became fullyenforceable once again. The circuit court was not precluded fromentering the adoption orders after September 16, 1999.

Respondent argues in her reply brief that the trial court barredher counsel from seeking a stay on her behalf and, at any rate, shedid not have enough time to seek a stay. At oral argument beforethis court, respondent took a new position on this matter,contending for first time that her counsel sought a stay at the timethe default judgment was entered on July 7, 1999, but that the trialcourt denied the request.

We first note that respondent's mistaken claim that she soughta stay at the time of the July 7, 1999, default judgment seems to bethe result of her confusion over the difference between a stay ofthe enforcement of a judgment (735 ILCS 5/2-1305 (West 2000);155 Ill. 2d R. 305(d)) and a "stay" of the proceedings until a partycan comply with a notice to appear for a hearing, which is one ofthe available sanctions under Supreme Court Rule 219(c) (166 Ill.2d R. 219(c)). From our perusal of the record, it is clear thatrespondent did not at any time seek a stay of the enforcement ofthe default judgment entered on July 7, 1999. Instead, respondent'scounsel merely sought to avoid an adverse sanction by requestinga continuance of the proceedings before any judgment would beentered to allow respondent to appear at a later date for trial.

There is also no merit to respondent's argument that hercounsel was barred from seeking a stay on her behalf or thatcounsel could not request a stay on her behalf because it was toolate. First, the trial court never barred respondent's counsel fromseeking, as she now claims, "a stay or other relief on the mother'sbehalf." Rather, the trial court, in the context of placingrespondent in default, barred her from "testifying" and "presentinga defense" or "further pleadings." The judge did not and could nothave prevented her from attempting to stop or stay enforcement ofthe default judgment; it is undisputed that she was allowed to filea motion to vacate that judgment and nothing in the recordindicates that she was barred from seeking a stay.

Moreover, she could have sought the effects of a stay almostimmediately after the default judgment. Section 2-1305 of theCode provides in relevant part:

"Motion to stay. A party intending to move to set asideany judgment *** may apply to the court or to the judgein chamber for a certificate (which the judge may, in hisor her discretion, grant) that there is probable cause forstaying further proceedings until the order of the court onthe motion. Service of a copy of the certificate at the timeof or after service of the notice of the motion stays allfurther proceedings accordingly." 735 ILCS 5/2-1305(West 2000).

Respondent's insinuation that a request for a stay would havebeen a waste of time is without merit. Tekela rejected precisely thesame argument, noting that persuasive arguments exist to supporta stay request in the context of cases involving a termination orderwith an adoption looming. Tekela, slip op. at 5. This is because astay may be necessary to preserve the status quo pending appeal.Tekela, slip op. at 5. We also note that under Supreme Court Rule305, a motion for a stay may be made to the reviewing court if thetrial court denies the application for a stay or application is notpractical. 155 Ill. 2d Rs. 305(b), (d). Thus, her argument that shewas somehow prevented from seeking a stay by the trial court orby a lack of time is without support in fact or in law.

Respondent's argument that she had "barely twenty-fourhours to file her notice [of appeal] and win her case" after hermotion to vacate was denied is mistaken. Again, that argumentignores that she had 72 days to seek a stay from entry of thedefault judgment to the first adoption order. Additionally, herargument incorrectly assumes that adoption orders becomeunassailable immediately upon entry. Tekela, however, held onlythat, in the interest of finality and stability, such orders areunchallengeable after the lapse of the statutory one-year period forchallenging adoption orders. Tekela, slip op. at 9. In Tekela, theappellate court was never informed that, at the time its decisionwas filed reversing the termination order, nearly 17 months hadelapsed from the final orders of adoption. The appellate court'sopinion reversing the termination order would not have beenerroneous based on mootness had it been issued within one year ofthe adoptions because, until that point, the adoptions would havebeen subject to a petition to vacate upon a showing that there wasno valid termination of parental rights in force. See Tekela, slip op.at 8-9.

Aside from the prospect that respondent could have sought astay of the July 7, 1999, order, we also note that she could havesought an expedited appeal by requesting that the case be placedon an accelerated docket in the appellate court pursuant toSupreme Court 311 (155 Ill. 2d R. 311) and by requesting anexpedited briefing schedule pursuant to Supreme Court Rule343(c) (155 Ill. 2d R. 343(c)). This could have ensured that theappellate court would hear her case in a timely fashion to makemeaningful any relief potentially granted to her.

Respondent does not cite any persuasive authority for herproposition that she would not have standing to collaterally attackthe adoptions if the termination order had been timely overturned.She cites section 2-29 of the Juvenile Court Act (705 ILCS405/2-29 (West 1998)) to support her argument, but that sectionmerely provides in relevant part that a parent whose parental rightshave been terminated has no right to notice of the petition foradoption. That section, along with provisions of the Adoption Actdefining a legal adoption, actually defeats her argument. If thetermination order was vacated within one year of the adoptionorders, then the respondent's argument would be that she, as aparent whose parental rights had not been validly terminated andwho had not consented to the adoptions, could not have beensubjected to having her children adopted at all, yet alone withoutnotice of the adoption. Given those hypothetical circumstances,she would be entitled to collaterally attack the adoptions undersection 2-1401 of the Code (735 ILCS 5/2-1401 (West 1998)), asis plainly contemplated by section 20b of the Adoption Act (750ILCS 50/20b (West 1998)).

Respondent notes that she had no legal notice of theadoptions; from this, she implies that she was somehow unawarethat the children could be subject to a swift adoption.Respondent's contention is not persuasive. Respondent wasrepresented by counsel in the termination proceeding, and themotion filed by the State to terminate her parental rights wasentitled, "Petition for Appointment of a Guardian with Right toConsent to Adoption." Furthermore, the order granting the State'stermination petition specifically appointed a public guardian withthe right to consent to the adoption of the children, as isspecifically authorized by section 2-29 of the Juvenile Court Act(705 ILCS 405/2-29 (West 1998)). Thus, respondent was awarefrom the inception of the termination proceedings that the goalwas to free the minors for adoption. Moreover, section 5 of theAdoption Act makes it clear that the proceedings to adopt thechildren had to be commenced within 30 days of the terminationof her parental rights. 750 ILCS 50/5 (West 1998). Under thesecircumstances, we find no merit to respondent's contention.

Respondent next argues that the adoptions were "procured" bythe DCFS guardians "in secrecy by violating their ownadministrative regulations." She contends that the adoptions wereinvalid, untimely and fraudulent. Specifically, she cites sections309.20 and 309.60 of title 89 of the Illinois Administrative Code(89 Ill. Adm. Code