                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate Court            In re C.J., C.J., C.B., and C.J., Minors (The People of the State of Illinois,
Caption                    Petitioner-Appellee, v. Chad B., Respondent-Appellant).



District & No.             Fifth District
                           Docket No. 5-12-0474


Summary Order filed        February 15, 2013
Motion to publish
granted                    March 7, 2013
Opinion filed              March 7, 2013


Held                       The order finding respondent unfit and terminating his parental rights was
(Note: This syllabus       vacated and the cause was remanded for an evidentiary hearing on the
constitutes no part of     issue of his unfitness, since the order was entered after respondent was
the opinion of the court   found to be in default for failing to appear at a hearing on the petition to
but has been prepared      terminate his parental rights, but the State failed to introduce any
by the Reporter of         evidence of respondent’s unfitness, even though he had previously
Decisions for the          entered his appearance and contested the allegations in the petition.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of St. Clair County, Nos. 08-JA-22, 08-JA-
Review                     23, 08-JA-24, 08-JA-25; the Hon. Walter C. Brandon, Jr., Judge,
                           presiding.


Judgment                   Order vacated; cause remanded with directions.
Counsel on                 Joel M. Drury, of Joel M. Drury, P.C., of Dupo, for appellant.
Appeal
                           Brendan Kelly, State’s Attorney, of Belleville (Stephen E. Norris, of
                           State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                           People.


Panel                      JUSTICE GOLDENHERSH delivered the judgment of the court, with
                           opinion.
                           Justices Chapman and Wexstten concurred in the judgment and opinion.




                                              OPINION

¶1          The respondent, Chad B., appeals the judgment of the circuit court of St. Clair County
        terminating his parental rights. He argues that the circuit court erred in refusing to set aside
        the default judgment entered against him. The State has filed a motion for remand, arguing
        that the circuit court erred in entering a default judgment against Chad B. because no
        evidence of unfitness was presented. We find the State’s motion to be well-taken. For the
        following reasons, we vacate the order of the circuit court of St. Clair County finding Chad
        B. to be unfit and terminating his parental rights, and we remand the cause for an evidentiary
        hearing to determine whether Chad B. is unfit and, if so, whether his parental rights should
        be terminated.
¶2          On March 28, 2008, petitions were filed in the circuit court of St. Clair County alleging
        that the minors were neglected by their mother, Dawn J. On April 22, 2008, Dawn J.
        appeared in court and stipulated to the allegations of the neglect petition. The minors were
        adjudicated neglected and made wards of the court. Following a dispositional hearing, the
        minors were placed in the custody of the Department of Children and Family Services.
        Although no allegations of neglect were directed at Chad B., the court found that he should
        not have custody of the minors because he had not been providing any financial or other
        support for them and had no established residence.
¶3          Ultimately, the State filed petitions to terminate the parental rights of Chad B. and Dawn
        J. On November 9, 2010, Chad B. appeared in court and counsel was appointed to represent
        him. Dawn J. did not appear and was found to be in default. On February 15, 2011, Chad B.
        appeared at a pretrial hearing on the petitions to terminate and the cause was continued to
        June 7, 2011.
¶4          Chad B. failed to appear on June 7, 2011. The circuit court found him in default and the
        cause was set for disposition on July 5, 2011. On June 28, 2011, Chad B. filed a motion to
        set aside the default. Chad B. argued that he suffered from a medical condition which
        required frequent blood pressure monitoring. He stated that on the morning of the hearing

                                                  -2-
     he was at the hospital having his blood pressure monitored, but appeared in court later that
     morning. The default was set aside without objection from the State, and the cause was
     continued to October 25, 2011. Chad B. appeared on October 25, 2011, but the hearing was
     continued until February 7, 2012.
¶5        Chad B. did not appear on February 7, 2012, but his attorney was present. Chad B. was
     found in default. The State recited the allegations of unfitness, but presented no evidence.
     The circuit court found Chad B. to be unfit and proceeded to a best-interests hearing. At the
     conclusion of the best-interests hearing, the circuit court found Chad B. to be unfit and that
     it was in the minors’ best interests that his parental rights be terminated. On February 21,
     2012, Chad B. filed a motion to set aside the default, arguing that on February 7, 2012, he
     was confused and disoriented because of difficulty in breathing and reduced oxygen intake.
     He further argued that he had gone to the hospital on that date and had been admitted on
     February 8, 2012, for pleural effusion. Following a hearing, Chad B.’s motion to set aside
     the default was denied. Chad B. filed a timely notice of appeal.
¶6        The State has filed a motion requesting that the circuit court’s February 7, 2012, order
     finding Chad B. to be unfit and terminating his parental rights be vacated and the cause
     remanded for an evidentiary hearing to determine whether the respondent is unfit and, if so,
     whether his parental rights should be terminated. The State contends that because no
     evidence of unfitness was presented, the circuit court erred in finding the respondent in
     default. We agree.
¶7        A default judgment may generally be granted only when the defaulted party fails to file
     an answer or an appearance, and the failure of a party to appear at trial generally does not
     justify a default judgment. In re Marriage of Drewitch, 263 Ill. App. 3d 1088, 1094, 636
     N.E.2d 1052, 1057 (1994). When a party files an appearance and places in issue the
     allegations of the complaint or petition, the circuit court cannot enter a default judgment
     simply because the party failed to appear for the trial or hearing. Reuben H. Donnelley Corp.
     v. Earles, 268 Ill. App. 3d 263, 265, 643 N.E.2d 1329, 1330 (1994). Instead, the petitioner
     must prove the allegations of the petition as if the respondent had been present to try the case.
     Id. In the present case, Chad B. entered his appearance and contested the allegations of the
     petition to terminate his parental rights. The State failed to introduce any evidence of
     unfitness. Consequently, the circuit court erred in entering a default judgment against him.
¶8        For the foregoing reasons, the February 7, 2012, order of the circuit court of St. Clair
     County finding Chad B. to be an unfit person and terminating his parental rights is vacated,
     and the cause is remanded for an evidentiary hearing on the issue of unfitness and, if Chad
     B. is found to be unfit, on the best interests of the minors.

¶9       Order vacated; cause remanded with directions.




                                               -3-
