                                                  FIRST DIVISION
                                                  FILED: February 16, 2011



No. 1-10-2893

In re B.G., a minor,                     )        Appeal from the
                                         )        Circuit Court of
         Respondent-Appellant,           )        Cook County.
                                         )
(THE PEOPLE OF THE STATE OF              )
ILLINOIS,                                )
                                         )
         Petitioner,                     )        No. 05 JA 00344
                                         )
              v.                         )
                                         )
Anne G.,                                 )        Honorable
                                         )        Mary L. Mikva,
         Respondent-Appellee).           )        Judge Presiding.

     JUSTICE HOFFMAN delivered the judgment of the court, with
     opinion.
     Justices Lampkin and Rochford concurred in the judgment and
     opinion.

                                    OPINION

     The     office    of   the   Cook   County   public   guardian   (Public

Guardian), acting on behalf of B.G., appeals from the circuit

court’s decision to vacate, pursuant to section 2-1401 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)), its

prior judgment terminating the parental rights of Anne G., B.G.’s

natural mother.1        For the reasons that follow, we reverse the

judgment of the circuit court.

     Our analysis of the issues presented requires consideration of

the facts and procedural history of the termination proceedings and

     1
          The State’s motion for leave to adopt the brief filed by

the Public Guardian on behalf of B.G. was granted on January 26,

2011.
No. 1-10-2893

Anne G.’s prior appeal.      The record establishes that on April 1,

2005, the State filed a petition for adjudication of wardship,

alleging that B.G. was neglected because he was not receiving the

necessary and proper care as required by law.                   According to the

petition, Anne G. was currently incarcerated and had left B.G.

without an adequate care plan.      Following an adjudicatory hearing,

B.G. was found to be neglected, and a dispositional order was

entered,   finding   that   Anne   G.       was   unable   to   care   for   B.G.,

adjudicating him a ward of the court, and placing him in the

guardianship of the Department of Children and Family Services

(DCFS).    After conducting a permanency hearing, the court entered

an order setting the goal of returning B.G. home within 12 months.

Following a second permanency hearing in December 2006, the circuit

court found that Anne G. had made no real progress toward the goal

of returning B.G. home, and the permanency goal was changed to

substitute care pending termination of parental rights.                The State

filed a petition for termination of parental rights on June 25,

2007.

     When the matter came before the court for the termination

hearing on August 11, 2008, Anne G. was not present.               Her attorney,

an assistant public defender, requested a continuance and indicated

that he “knew” that she was aware of the hearing date because she

had been in contact “with the agency.”             He further indicated that

he had attempted to contact Anne G. but her telephone number was no

longer in use, and he speculated that Anne G. had a new telephone


                                        2
No. 1-10-2893

number.     The court denied the request for a continuance because

there was no specific reason for Anne G.’s absence.

       At the termination hearing, the court heard testimony from

Ebony Bradford, the social worker who was assigned to B.G.’s case,

and from Terria Dunlap, Bradford’s supervisor.                 The testimony of

these witnesses indicated that in July 2005, Anne G.’s service plan

included referrals for substance abuse treatment, random drug

testing, psychological and psychiatric evaluations, individual

therapy, parent-child therapy, parenting classes, and domestic

violence classes.      However, as of March 12, 2006, Anne G. had not

provided the agency with proof that she had completed any of these

services.    Though Anne G. acted appropriately and brought food or

gifts during her supervised visits with B.G., the frequency of

those visits was characterized as less than satisfactory because

Anne G. did not attend more than 50% of the scheduled visits.                   In

addition,    Anne   G.    had    been    incarcerated     on    three     separate

occasions:    from September 2005 to October 2005, from January 2006

to March 2006, and from April 2007 to October 2007.                 During those

periods of incarceration, Anne G. chose not to request visits with

B.G.   because   she     did    not   want   her   son   to   see   her   in   that

environment.

       As of December 2006, Anne G. had completed a 30-day inpatient

substance abuse program and was required to participate in an

outpatient program, obtain a sponsor, attend Narcotics Anonymous

(NA) and Alcoholics Anonymous (AA) meetings, and submit to random


                                         3
No. 1-10-2893

drug testing.    According to Bradford and Dunlap, Anne G. did not

provide any proof that she had achieved these goals.          The testimony

of these witnesses also indicated that Anne G. had complied with

less than 50% of the random drug tests and that at least 90% of the

tests she did complete were positive for either cocaine, opiates,

or a combination of both.        As of the date of the termination

hearing, Anne G. still needed to address her substance abuse

issues, attend individual therapy, attend parent-child therapy,

obtain a sponsor, attend NA/AA meetings, complete psychological and

psychiatric evaluations, attend parenting classes, and make herself

available for random drug testing.

      Though Dunlap was aware that Anne G. had received treatment

for depression from Dr. Menezes at Riverside Hospital, Dunlap had

been unable to contact the doctor, and Anne G. had not provided

proof that she had been treated by Dr. Menezes during the previous

two or three years.     Dunlap testified that Anne G. was required to

address her substance abuse issues before she could participate in

other services, including mental health services.            In addition to

the testimony of Dunlap and Bradford, the court admitted into

evidence certified copies of conviction establishing that Anne G.

had one conviction for forgery (720 ILCS 5/17-3(a)(2) (West 2004))

and   two   separate   convictions   for   possession   of    a   controlled

substance (720 ILCS 570/402(c) (West 2004)).

      At the conclusion of the termination hearing, the circuit

court found Anne G. to be unfit based on her failure to make


                                     4
No. 1-10-2893

reasonable efforts to correct the conditions which were the basis

for B.G.'s removal or make reasonable progress toward B.G.'s return

(750 ILCS 50/1(D)(m)(i)(ii) (West 2006)); her failure to maintain

a reasonable degree of interest, concern, or responsibility in the

welfare    of   B.G.   (750   ILCS    50/1(D)(b)   (West    2006));   and   her

inability to discharge her parental responsibilities because of her

repeated    incarceration      (750     ILCS   50/1(D)(s)     (West   2006)).

Following a best interest hearing, the circuit court found that it

was in B.G.'s best interest to terminate Anne G.’s parental rights

and appoint a guardian with the right to consent to adoption.

     On September 5, 2008, Anne G. filed a pro se notice of appeal.

Her opening brief, which was filed by an assistant public defender,

did not argue that she had never received notice of the termination

hearing.    After the State filed its response brief, Anne G. hired

private counsel to prepare and file her reply brief, which raised

the issue of lack of notice for the first time.               On January 29,

2009, this court affirmed the circuit court’s termination of Anne

G.’s parental rights, but declined to address the merits of the

lack-of-notice issue, finding that it had been forfeited by the

failure to raise it in her opening brief.           See In re B.G., No. 1-

08-2493 (2009) (unpublished order under Supreme Court Rule 23).

Anne G. thereafter filed a petition for leave to appeal (PLA) to

the supreme court.      The PLA was denied on April 3, 2009, and her

request for leave to file a motion to reconsider was denied on May

7, 2009.


                                        5
No. 1-10-2893

     On June 9, 2009, Anne G. filed a section 2-1401 petition to

vacate the termination of her parental rights, asserting that she

could satisfy the criteria necessary for postjudgment relief,

including    a    meritorious      defense      in   the    original    action,      due

diligence in presenting that defense, and due diligence in filing

the petition.      In particular, Anne G. asserted that because she had

not received notice of the termination hearing that was conducted

on August 11, 2008, her failure to appear and present evidence at

the hearing was excusable.              She further asserted that, if she had

been notified of the hearing, she would have been able to introduce

evidence establishing that she was a fit parent for B.G.

     In    support    of    her    petition,       Anne    G.   filed   an   affidavit

attesting that her trial attorney did not give her notice of the

termination hearing and that, if he had done so, she would have

appeared    and    rebutted       the    charges     of   unfitness.         Anne   G.’s

affidavit set forth in detail the nature of the evidence that she

would have presented at the termination hearing.

     The State filed a motion to dismiss and a response to the

section 2-1401 petition.                The Public Guardian responded to the

petition on behalf of B.G. and contended that the law-of-the-case

doctrine barred Anne G.’s attempt to relitigate the same notice

issue ruled on by the appellate court.                    The Public Guardian also

asserted    that     Anne   G.     had     failed    to    allege   evidence        of   a

meritorious defense.             Anne G. filed a reply and submitted a

supplemental affidavit in support thereof.


                                            6
No. 1-10-2893

     The circuit court bifurcated the postjudgment proceedings and

conducted separate evidentiary hearings on the issues of whether

Anne G. had exercised due diligence and whether she could have

presented evidence of a meritorious defense to the charges of

unfitness.      The   court    found   that   Anne   G.   had   exercised   due

diligence in defending the termination proceeding and in bringing

the section 2-1401 petition and that she had presented sufficient

evidence to establish that she had a meritorious defense to the

termination petition.         Accordingly, the court granted Anne G.’s

petition for postjudgment relief.          This appeal followed.

     The Public Guardian claims that the circuit court erred in

failing to find that, because the termination of Anne G.’s parental

rights had been affirmed on direct appeal, she was precluded from

raising the issues asserted in her section 2-1401 petition.                 We

must agree.

     Under the doctrine of res judicata, a final judgment on the

merits rendered by a court of competent jurisdiction bars any

subsequent actions between the same parties or their privies on the

same cause of action.     Hudson v. City of Chicago, 228 Ill. 2d 462,

467, 889 N.E.2d 210 (2008); Rein v. David A. Noyes & Co., 172 Ill.

2d 325, 334, 665 N.E.2d 1199 (1996).           Res judicata bars not only

what was actually decided in the first action, but also whatever

could have been decided.          Hudson, 228 Ill. 2d at 467.           Three

requirements must be satisfied for res judicata to apply: (1) the

rendition of a final judgment on the merits by a court of competent


                                       7
No. 1-10-2893

jurisdiction; (2) the existence of an identity of cause of action;

and (3) the parties or their privies are identical in both actions.

Hudson, 228 Ill. 2d at 467.

      In this case, the circuit court terminated Anne G.’s parental

rights after conducting a full evidentiary hearing, and this court

affirmed that judgment on the merits in resolving the direct

appeal.    See In re B.G., No. 1-08-2493 (2009) (unpublished order

under Supreme Court Rule 23).       Thereafter, Anne G. filed a petition

for postjudgment relief, challenging the circuit court’s prior

judgment   of   unfitness    and    the   best   interest      of   B.G.     The

substantive contentions asserted in the section 2-1401 petition are

identical to the issues decided in the termination proceeding, and

the   parties   to   both   proceedings    are   the   same.        Under   these

circumstances, the doctrine of res judicata precluded any further

litigation of Anne G.’s unfitness or the best interest of B.G.               See

Hudson, 228 Ill. 2d at 467.        Consequently, the circuit court erred

in granting Anne G.’s petition for postjudgment relief.

      As a final matter, we observe that the Public Guardian argued

in the circuit court and on appeal that the doctrine of law of the

case barred Anne G. from raising the issues asserted in her section

2-1401 petition.      Under the law-of-the-case doctrine, a court’s

unreversed decision on an issue that has been litigated and decided

on appeal settles the question for all subsequent stages of the

action.    Miller v. Lockport Realty Group, Inc., 377 Ill. App. 3d

369, 374, 878 N.E.2d 171 (2007).          We note, however, that, because


                                      8
No. 1-10-2893

a section 2-1401 petition initiates a separate action, (Sarkissian

v. Chicago Board of Education, 201 Ill. 2d 95, 102, 776 N.E.2d 195

(2002)),    the    contentions      raised     in   Anne   G.’s    petition   for

postjudgment relief are barred by res judicata, rather than the

doctrine of law of the case.            Though the Public Guardian cited the

doctrine    of    law   of   the   case   in   opposing    the    section   2-1401

petition,    its    argument       on   the    question    of    preclusion   was

sufficiently preserved and not forfeited for purposes of appeal.

     For the foregoing reasons, the judgment of the circuit court

of Cook County is reversed.

     Reversed.




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