FOURTH DIVISION

June 8, 2017

No. 1-16-0850

In re Jamari R., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County. ) Petitioner-Appellee, ) ) 07 JA 386 v. ) ) Keith B., ) Honorable ) Demetrios G. Kottaras, Respondent-Appellant). ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Burke concurred in the judgment and opinion.

OPINION

¶1 Following the trial court’s entry of an order terminating the parental rights of the father of

Jamari R., the father, Keith B., appealed that decision arguing that he had not been properly

served prior to appearing in the proceedings where (1) the Department of Children and Family

Services (DCFS) and the State did not conduct a diligent inquiry in locating him and (2) the

State’s service by publication listed the incorrect last name of Jamari and Jamari’s mother. For

the reasons that follow, we affirm the trial court’s order terminating the father’s parental rights

and remand this matter to the trial court for further proceedings consistent with this opinion.

¶2 BACKGROUND

¶3 Jamari was born on May 21, 2007. On June 1, 2007, the State filed a petition for

adjudication of wardship of Jamari. In that petition, the State incorrectly spelled the minor’s 1-16-0850

name as “Jabari [Spelling 1],” 1 and incorrectly spelled the mother’s name as “Shavelle [Spelling

1]” when it should have been spelled “Shavelle [Spelling 2].” The petition further stated that the

father was unknown.

¶4 On June 1, 2007, the trial court conducted a temporary custody hearing. At that hearing,

the mother’s attorney informed the court and the parties that the mother’s last name was

“[Spelling 2]” not “[Spelling 1].” The attorney also informed the court and the parties that the

child’s last name was the same as the mother’s last name, “[Spelling 2].” Later on during that

hearing, the mother corrected the parties and the court that her son’s first name was “Jamari” and

not “Jabari.” The parties, including the State, the mother, and the guardian ad litem (GAL),

entered into a stipulation at that hearing, stating that Jamari’s father’s identity and whereabouts

were unknown. The stipulation also indicated that Jamari, and a child that the mother gave birth

to two years prior to Jamari, had both been born drug exposed and the mother had seven other

minors who were or are in DCFS custody with findings of abuse or neglect. This stipulation was

signed by the mother and her attorney.

¶5 On the same day, the trial court entered an order amending the petition for adjudication of

wardship to show the correct spelling of Jamari’s first and last names.

¶6 On June 14, 2007, an affidavit for service by publication was filed stating that the fathers

of Jamari and his sibling were still unknown, so they could not be found. The caption of this

affidavit had the incorrect spelling of Jamari’s first and last names. On August 10, 2007, notice

of the pending proceedings was printed in the Chicago Sun-Times; Jamari’s name was

misspelled as “Jabari [Spelling 1]” and his mother’s name was misspelled as “Shavelle [Spelling

1 Throughout the course of these proceedings, the parties misspelled the minor and the mother’s last names numerous times. In order to keep the minor’s identity private, we will refer to the incorrect spelling of the minor and the mother’s last name as “Spelling 1” and the correct spelling of the minor and mother’s last name as “Spelling 2.” 2 1-16-0850

1].” This notice indicated that the adjudication hearing was set for August 24, 2007, or as soon

thereafter as the case could be heard.

¶7 On August 24, 2007, the trial court held a status hearing on service by publication. The

caseworker for the minor, Ms. Fries, stated that no one had come forth claiming to be the father.

Fries also stated that she had done a Putative Father Registry search on August 17, 2014, but

there were no names of fathers in the results she received on August 21, 2014. Fries stated that

when she had discussed the father with the mother, “she tends to tell me unknown.”

¶8 When the State requested a default on the unknown fathers, one of the attorneys pointed

out that there was a discrepancy in the minor’s name, the correct spelling of which was “Jamari

[Spelling 2]” but the publication wrote “Jabari [Spelling 1].” The State then asked for the correct

spelling of the minor’s name, was informed that it was “Jamari [Spelling 2],” and the trial court

thereafter allowed the State leave to republish the notice. A second affidavit for service by

publication was filed on August 29, 2007. This affidavit included the names “Jabari” and

“Jamari” in the caption, with the correct spelling of “Jamari” as an “AKA.” Jamari’s last name

and his mother’s last name were both again incorrectly spelled as “[Spelling 1].” Publication

with those spellings ran in the Chicago Sun-Times on October 19, 2007.

¶9 At the adjudication hearing on November 2, 2007, Fries testified that she had done a

Putative Father Registry search in August of that year under Jamari’s name, and there were no

results. An affidavit of her due diligence concerning the Putative Father Registry search was

admitted into evidence without objection. Jamari’s first and last names were spelled correctly in

the caption of the affidavit. On the State’s motion, the unknown father of Jamari was defaulted.

The adjudication hearing then proceeded by stipulation. It was stipulated that Jamari’s father’s

identity and whereabouts were unknown, Jamari had been born exposed to illegal drugs, and the

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mother admitted to using illegal substances while pregnant. Based on the stipulated record, the

trial court found that Jamari had been neglected due to his exposure to a controlled substance and

due to an injurious environment. The court also found that Jamari had been abused due to a

substantial risk of physical injury based on the mother’s history of noncompliance with services,

lack of prenatal care, and prior findings of neglect and abuse relating to other siblings.

¶ 10 The trial court held dispositional and permanency hearings on March 20, 2008, and

September 18, 2008. On September 18, 2008, the court entered an order finding the mother and

unknown father of Jamari were unable to care for him. The court made Jamari a ward of the

court and placed him in the guardianship of the DCFS Guardianship Administrator. After several

hearings on the parents’ progress towards permanency goals, the trial court entered a

permanency goal of termination of parental rights (TPR) for Jamari, and this permanency goal

was entered numerous times thereafter.

¶ 11 On February 19, 2014, the State filed a “Supplemental Petition for the Appointment of a

Guardian with the Right to Consent to Adoption” (TPR petition). The caption for this petition

named Jamari as “Jabari [Spelling 1] AKA Jamari [Spelling 1] AKA Jamari Jamiel [Spelling 2].”

The mother’s name was listed as “Shavelle [Spelling 2],” and the father was listed as unknown.

The petition alleged that it was in Jamari’s best interest for his parents’ parental rights to be

terminated because he had been with his foster parents since December 13, 2012, and they

desired to adopt him.

¶ 12 On April 4, 2014, a hearing on the TPR petition was held. At this hearing, the mother

testified in response to the State’s questioning that there was no one she wanted to name as

Jamari’s father. The trial court then inquired further, and the mother stated that the father could

be James S. or “probably” Keith B. The mother then stated that Jamari’s father could not be

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anyone else: “Nobody else. It’s going to be one or the other.” The court then granted the State

leave to serve Keith B. The permanency hearing continued, and the court recommended a goal of

termination of parental rights, noting that Jamari was in an appropriate preadoptive home that

could meet his long-term needs.

¶ 13 On June 19, 2014, the trial court entered an order for parentage testing on Keith B., and

an attorney was appointed on his behalf.

¶ 14 On September 24, 2014, the trial court entered a finding that Keith B. was Jamari’s father

based on DNA testing. As a result, the court ordered that the TPR petition be amended to reflect

Keith B. as the father.

¶ 15 On April 2, 2015, the State filed “Requests for Admissions of Facts” directed to the

mother requesting that she admit that in addition to her name of “Shavelle [Spelling 2],” she used

several other aliases at one time or another, including an alias with the last name “[Spelling 1].”

The State also requested that the mother admit that she had convictions for four felonies, one

under each of her aliases dating back to 1996.

¶ 16 On September 18, 2015, the trial court granted the State’s motion to amend the TPR

petition to add the ground of depravity for the father of Jamari. This motion also alleged that the

father had been convicted of his fourth felony on June 29, 2015.

¶ 17 On October 8, 2015, the first hearing on the TPR petition was held. The mother was not

present at this hearing, but the father was present. The father testified that he was currently

housed at Danville Correctional Center. He had been incarcerated on May 10, 2013, sentenced

on September 21, 2013, and was sentenced to six years at 85%. At this hearing, the State

requested that the trial court take judicial notice of the adjudication order for Jamari entered on

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November 2, 2007, and the dispositional order entered on September 18, 2008. Further, the

State’s requests to admit to the mother were deemed admitted as she did not file a response.

¶ 18 Rakaia Johnson, Jamari’s caseworker from March 2008 to August 2012, testified at the

hearing, in relevant part, that she could not do a diligent search for Jamari’s father because she

did not know his name. She did perform Putative Father Registry searches, though, every six

months, and no father ever popped up. No one claiming to be Jamari’s father ever came forward,

and Jamari’s father was still unknown to her when she ceased being Jamari’s caseworker in

March 2012. Johnson stated that while she was assigned to the case, the mother was in jail on

several occasions, and she had a difficult time keeping up with the mother because she used

different aliases. With respect to the father, she testified that he had not made any progress

towards reunifying with Jamari in four different nine-month periods beginning on August 13,

2009, and ending on August 16, 2012.

¶ 19 Jennifer Costello, Jamari’s caseworker from August 2013 to September 2015, testified at

the hearing, in relevant part, that when she was assigned the case, Jamari’s father was unknown.

She could not do a diligent search for the father because his name was unknown and nothing

came up when she conducted a Putative Father Registry search. When Costello was assigned the

case, the mother was incarcerated for retail theft, and she stated that the mother’s biggest

impediment to reunification was her continued arrests and incarceration.

¶ 20 Costello testified that on April 4, 2014, the mother identified Keith B. as a possible

father. Keith B. was confirmed to be the father in September 2014, at which time the father was

incarcerated. Costello spoke to the father via phone on January 16, 2015. The father told her that

prior to the DNA testing, he had no knowledge that Jamari existed. He did not know he had a son

with the mother, and he had not seen the mother in 10 years. The father told Costello that he was

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not in a position to be able to raise a child. During her conversation with the father, Costello

performed an integrated assessment with the father and determined he would need services such

as individual counseling, a substance abuse assessment, and a domestic violence assessment. The

jail where the father was at at that time did not have any of those services, and when the father

was transferred to the Illinois Department of Correction (IDOC), the only service available was

substance abuse service.

¶ 21 The father told Costello that he was not able to raise his daughter, whom he lived with

before being incarcerated, much less other children. The father did not ask for visits with Jamari.

While Costello was Jamari’s caseworker, the father made no progress towards reunifying with

Jamari, and he was not due for parole until 2020 based on an armed habitual criminal conviction.

Costello testified that the father never engaged in any of his recommended services and never

made progress towards reunification with Jamari while she was assigned to the case.

¶ 22 Costello testified that she had never spoken with Jamari about who his father was.

Jamari’s caregivers said they would do that in a therapeutic setting with Jamari’s therapist. At the

time of her testimony in October 2015, this had not been done.

¶ 23 An integrated assessment dated February 6, 2015, which was entered into evidence,

stated that the father was 40 years old at the time Costello interviewed him. In 1995, when he

was 20 years old, he moved in with a girlfriend and had two sons with her. He made his living

selling drugs and his girlfriend worked. He got a drug charge and went to the penitentiary.

Several years later, he had a child with another woman and that child was born in January 2010.

After he broke up with that girlfriend, he and the mother became friends and “hooked up” once.

After that, the father moved in with the mother of the baby girl that was born in January 2010

and remained there until the girl was six years old, when he was incarcerated again.

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¶ 24 On the State’s request, the trial court then admitted into evidence certified statements of

conviction for the mother under four different aliases as well as four certified statements of

conviction for the father. The State and the GAL then rested.

¶ 25 The father testified on his own behalf. He was residing in Danville Correctional Center

and had never met Jamari. He did not know about Jamari and never put his name into the

Putative Father Registry. The father testified that his 1998 drug conviction was due to being the

driver in a car with someone who had narcotics. His 2002 conviction was similar in that he was

“standing around the neighborhood, and [he] was doing probation.” His 2003 conviction was a

firearm conviction in which he was caught with a firearm at a traffic stop and served a three-year

sentence. He stated that he only “hooked up” with the mother once. The father rested, and the

trial court continued the matter to another day so that the mother’s attorney could locate her and

have her appear.

¶ 26 On October 16, 2015, the mother was present and addressed the trial court and arguments

were given. The State and the GAL argued concerning unfitness. The father’s attorney argued

that the father had not abandoned or deserted Jamari and that he never knew he had a son with

the mother. The father’s attorney went on to state: “When asked by the judge, the mother denied

knowing who the father was. Neither of the caseworkers ever asked the mother who the father

was. No diligent search was done because no father was named.” In rebuttal, the State argued

that the father was in a situation of his own making and that a lot of his convictions were based

on previous convictions. According to the State, the father had three other children, and no

connection with any of them. Following arguments, the court found that the mother was unfit by

clear and convincing evidence on five grounds. Regarding the father, the judge asked if there had

been a decision in his pending appeal of a criminal conviction, as it could have a bearing on the

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TPR case. The judge set a hearing date of December 14, 2015, for status on the disposition of the

appeal.

¶ 27 At the December 14, 2015, hearing, it was indicated that the father’s release date was

June 16, 2018, and that as of November 20, 2015, the appellate defender had not yet filed

anything in the father’s appeal. The judge stated that he would not wait for that. The court then

inquired of the foster parents how Jamari was doing. The foster father reported that Jamari was

doing extremely well. He was in the school choir, he had made the honor roll again, and DCFS

had been very active in getting what the foster parents needed for him.

¶ 28 On February 29, 2016, another hearing was held and still nothing had been filed in the

father’s criminal appeal. After arguments, the judge stated that he was extremely sympathetic to

the father’s situation in that he had not been informed of his paternity. However, the judge stated

that he would not wait any longer on the father’s criminal appeal and found the father unfit.

¶ 29 A best interest hearing followed. At the hearing, Daisy Sanchez testified that she was

Jamari’s caseworker since September 14, 2015. Jamari had been in his current foster home for

about 2½ years. His previous placement was with family members and had been disrupted

because the foster parents were incarcerated. The current home was safe and appropriate, and

Jamari always seemed happy and comfortable. Jamari interacted with his foster parents like a

family, and Jamari was very talkative. They seemed to have a bond with each other. Jamari’s

older sister had been adopted, and Jamari wondered why he had not been adopted yet. He stated

several times that he wanted to be adopted. Jamari had sickle-cell trait, but there had not been

any flare ups since Sanchez had been assigned the case. Jamari was not on any medications at the

time, and his grades and behavior in school had improved since he had been with these foster

parents. Sanchez believed that it was in Jamari’s best interest that parental rights be terminated.

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¶ 30 The foster mother testified that Jamari had been in their home for almost 3½ years, since

December 13, 2012. She was aware of Jamari’s father and she was willing, when the time was

appropriate, to allow contact between Jamari and his father. They planned to address this through

Jamari’s therapist. When the foster mother would ask Jamari about how he would feel if they

found his father, Jamari said he did not want to talk about it.

¶ 31 The foster father testified about all the activities he did with Jamari. He stated that he and

his wife came from big families so they understood how important family is. Jamari would need

the relationship with his biological family, and they were preparing him for it. They would love

to have the opportunity to allow contact between Jamari and his father. Jamari’s therapist had

known Jamari for about two years, and a lot of things were left up to her. They talked to the

therapist about when Jamari should learn of his father. The foster parents wanted to keep the

doors open between Jamari and his mother and father. The foster father testified that Jamari was

happy and growing up.

¶ 32 The father testified on his own behalf. He felt that he should be out of prison and testified

that he had appealed his conviction because he did not meet the requirements for armed habitual

criminal. He stated he was enrolled in a parenting program at Danville Correctional Center and

was also in anger management. He had four other children, ranging in age from 6 to 21. He felt

like he deserved to be in Jamari’s life.

¶ 33 The father stated that although he wanted to be in Jamari’s life, he honestly did not think

it would be fair to take him from his foster home. He “rested good at night knowing [Jamari is]

in good hands.” The father was hoping he could be in Jamari’s life, if they could stay in touch,

but his hands were tied at the moment.

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¶ 34 The father stated that he had no idea that he was Jamari’s father until he was brought into

court for this case. His relationship with the mother consisted of texting, talking on the phone a

bit, and hooking up. They were not together, they just messed around.

¶ 35 Following arguments at the conclusion of the best interest hearing, the trial court found

that it was in Jamari’s best interest to terminate parental rights and appoint the DCFS

Guardianship Administrator as Jamari’s guardian with the right to consent to adoption. The court

then changed Jamari’s permanency goal to adoption. On February 29, 2016, the trial court judge

issued a written order reflecting his oral rulings that the father was unfit based on his failure to

maintain reasonable interest, concern, and responsibility, and his failure to make reasonable

efforts and progress in any and all nine-month periods. The order entered a permanency goal of

adoption for Jamari because his parents’ parental rights had been involuntarily terminated and

Jamari was in a loving preadoptive home.

¶ 36 On March 14, 2016, the father filed his notice of appeal challenging only the order

entered on February 29, 2016, terminating his parental rights to Jamari. In the initial briefing to

this court, the father argued service upon him was defective and the lack of effective service

rendered the November 2007 and September 2008 adjudicatory and dispositional orders void;

therefore, he was denied due process in the termination proceeding based on the earlier void

orders, and the termination order should be reversed. The father argued that service by

publication was defective because (1) DCFS and the State failed to exercise due diligence in

effectuating service, (2) the publication failed to correctly identify the minor as “Jamari [Spelling

2],” and (3) the father did not waive the issue of defective service because his appearance in the

matter only resulted in prospective waiver of issues relating to proper service. The father did not

argue any other defects or errors in the termination order. The State and the GAL argued that all

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of the requirements for effective service by publication were met and even if they were not, the

father waived any argument relating to service when he appeared in the matter without raising

any objections to service.

¶ 37 This court filed an opinion in this case on September 30, 2016. The GAL timely filed a

petition for rehearing (PFR). The primary contentions raised in the PFR were that (1) because the

father’s notice of appeal failed to identify the 2007 and 2008 adjudication and dispositional

orders, this court lacked jurisdiction to enter a judgment finding them void for lack of personal

jurisdiction and (2) if this court determines it does have jurisdiction to consider the arguments

raised in the father’s appeal, his challenge to the validity of the 2007 and 2008 orders for the first

time on appeal is barred by the doctrine of laches. We granted the PFR and withdrew our prior

opinion.

¶ 38 ANALYSIS

¶ 39 We turn first to the question of this court’s jurisdiction. “[T]he only jurisdictional step in

appealing a final judgment is the filing of a notice of appeal.” Carroll v. Akpore,

. “Every final judgment in a civil case is appealable pursuant to Supreme Court

Rule 301 [citation], and jurisdiction is vested in the appellate court to hear the appeal of that final

judgment upon the filing of a notice of appeal.” F.H. Prince & Co. v. Towers Financial Corp.,

(1994). 2 “Supreme Court Rule 303(b)(2) provides that a notice of

appeal ‘shall specify the judgment or part thereof or other orders appealed from and the relief

sought from the reviewing court.’ [Citation.] Illinois courts have held that a notice of appeal

confers jurisdiction on a court of review to consider only the judgments or parts thereof specified

2 “[A]ppeals from final judgments under the Juvenile Court Act are governed by the rules applicable to civil cases.” In re Janira T.,

(2006). 12 1-16-0850

in the notice of appeal.” People v. Smith,

(2008). While a notice of appeal is

jurisdictional, it is generally accepted that such a notice is to be construed liberally.

“When an appeal is taken from a specified judgment only *** the court of review

acquires no jurisdiction to review other judgments or parts thereof not so specified

or not fairly to be inferred from the notice as intended to be presented for review

on the appeal. If from the notice of appeal itself and the subsequent proceedings it

appears that the appeal was intended, and the appellant and the appellee so

understood, to have been taken from an unspecified judgment or part thereof, the

notice of appeal may be construed as bringing up for review the unspecified part

of the order or judgment. Such a construction would be appropriate where the

specified order directly relates back to the judgment or order sought to be

reviewed. Paraphrasing the language of Elfman, the unspecified judgment is

reviewable if it is a ‘step in the procedural progression leading’ to the judgment

specified in the notice of appeal. [Citation.]” Burtell v. First Charter Service

Corp.,

(1979).

¶ 40 The notice of appeal filed in this case specified the termination judgment but did not

specify either the adjudication or dispositional orders. In this case, the father filed a timely notice

of appeal from the judgment of the circuit court terminating his parental rights, which was a final

judgment. There is no question this court has jurisdiction to review the judgment terminating the

father’s parental rights. The father argues the adjudication and dispositional orders are void and,

therefore, may be attacked at any time, in any court, including in this appeal. The GAL argues

that although a void order may be challenged at any time, an allegation of voidness alone does

not give a court jurisdiction to hear the argument. Rather, the GAL argues, “[a] court must have

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jurisdiction in order to consider a claim of voidness.” The GAL argues appellate jurisdiction over

the adjudication and dispositional orders does not exist merely because those orders predate the

termination order. In support of that argument, the GAL cites EMC Mortgage Corp. v. Kemp,

, where our supreme court held as follows:

“[A] void order can be attacked at any time by a person affected by it. [Citation.]

This legal proposition, however, by itself, does not act to confer appellate

jurisdiction on a reviewing court if such jurisdiction is otherwise absent.

[Citation.] Rather, the rule allows a party the ability to always raise the issue of

whether an order is void in an appeal where appellate jurisdiction exists and the

case is properly before the court of review. [Citation.]” EMC Mortgage Corp.,

(citing People v. Flowers,

(2003)).

¶ 41 Normally, the jurisdiction of the appellate court is limited to the judgments specified in

the notice of appeal and those prior orders that are “a ‘step in the procedural progression leading’

to the judgment specified in the notice of appeal. [Citation.]” Burtell,

.

However, an exception exists where a party collaterally attacks an allegedly void order on

appeal. In People v. Thompson,

(2004), our supreme court held that because

the defendant’s sentence in that case was void, “the appellate court had the authority to correct it

at any time and, consequently, did not err in vacating the [void] sentences.” Thompson,

. The Thompson court applied the rule that a sentence which does not conform to a

statutory requirement is void.

. The court has recently abolished the void-sentence rule.

People v. Castleberry,

. Nonetheless, the Thompson court’s discussion of

the ability to attack a void order “at any time or in any court, either directly or collaterally”

(Thompson,

) did not depend on why the judgment was void. Stated differently,

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the court did not apply a different rule for orders that were void because they exceeded a trial

court’s statutory authority than it would apply for orders that were void because the trial court

lacked personal or subject matter jurisdiction to enter them. See

(citing Sarkissian v. Chicago

Board of Education,

(2002) (default judgment alleged to be void for lack of

personal jurisdiction due to defective service of process); Barnard v. Michael,

, 135-

36 (1945) (stating rule that a judgment entered by a court which lacks jurisdiction or the inherent

power to make the order is void and may be attacked at any time or in any court, but holding

attack on judgment did not involve jurisdictional matters and that the time for attacking the

judgment had passed); JoJan Corp. v. Brent,

(1999) (collateral

attack on judicial sale was void based on lack of subject matter jurisdiction); Potenz Corp. v.

Petrozzini,

(1988) (claim was that judgment in Japanese yen was

void because court lacked inherent power to enter a money judgment in a foreign currency)). The

Thompson court also held that an “argument that an order or judgment is void is not subject to

waiver,” and that “courts have an independent duty to vacate void orders and may sua sponte

declare an order void.” Id. at 27. The Thompson court added that it had not held that “section 2-

1401 is the only way in which a void order can be challenged.” Id. at 29.

¶ 42 Further, in EMC Mortgage Corp., the appellant attempted to appeal a nonfinal order;

therefore, the appellate court did not have jurisdiction, and the case was not properly before the

court. In this case, timely appeal was filed from a final order terminating the father’s rights;

therefore, the appellate court has jurisdiction, and the case is properly before the court. Because

the appellate court has jurisdiction over the father’s appeal from the order terminating his

parental rights, this case is distinguishable from EMC Mortgage Corp. The EMC Mortgage

Corp. court relied on our supreme court’s earlier decision in Flowers for its discussion of the

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necessity of “an appeal where appellate jurisdiction exists.” This appeal is in a different

procedural posture than the appeal in Flowers, therefore that holding does not control the

outcome in this case.

¶ 43 In Flowers, the defendant pled guilty, but the trial court rejected the sentence called for

by the parties’ agreement. Flowers,

. The sentence the court imposed included

an order to pay restitution. Illinois Supreme Court Rule 604(d) required that before an appeal

from a judgment on a plea may be taken, the defendant must either file a motion to reconsider

the sentence if only the sentence were being challenged or withdraw the plea and vacate the

judgment if the plea is being challenged.

at 296 (citing Ill. S. Ct. R. 604(d) (eff. Aug. 1,

1992)). The defendant did not file a motion to reconsider the sentence or to withdraw the guilty

plea and vacate the sentence. Instead the defendant proceeded directly to filing notices of appeal.

The appellate court dismissed the appeal on the defendant’s motion, and in the interim the

defendant filed a pro se petition for postconviction relief in the trial court.

Eventually, the

attorney appointed to represent the defendant on her postconviction petition filed a motion

pursuant to Rule 604(d) seeking reconsideration of the sentences imposed by the trial court in the

plea proceeding.

. The trial court denied the motion to reconsider the sentence, and the

defendant’s court-appointed attorney filed a second set of notices of appeal and withdrew her

postconviction petition.

A few days later, the defendant filed a third set of notices of appeal in

which she stated she was appealing the denial of her “ ‘Motion to Reconsider—Post Conviction

Petition.’ ”

The State moved to dismiss the appeal on the grounds the motion that defendant

filed attacking the sentence was untimely and that the defendant should have filed a motion to

withdraw her guilty plea and vacate the sentence under Rule 604(d).

. The appellate

court rejected both arguments.

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¶ 44 Our supreme court began by noting that the failure to timely file a 604(d) motion “does

not deprive the appellate court of jurisdiction over a subsequent appeal.”

. Rather, as a

general rule “the failure to file a timely Rule 604(d) motion precludes the appellate court from

considering the appeal on the merits.”

In Flowers, the court found that because the defendant

had been admonished as to the requirements of Rule 604(d) and failed to timely file a motion to

reconsider her sentence, she “should not have been permitted to continue with the appeals she

filed *** after sentence was imposed.”

. By the time the defendant in Flowers filed a

motion to reconsider, the trial court had lost jurisdiction.

. Our supreme court held that

because the trial court’s jurisdiction had lapsed by the time the defendant filed her motion under

Rule 604(d), the appellate court had no authority to address the Rule 604(d) motion on the

merits.

.

¶ 45 The court further found that even if the appellate court found the defendant’s arguments

meritorious, it could not have granted her relief.

The trial court’s order on the Rule 604(d)

motion, which it made at a time it lacked subject-matter jurisdiction to consider the motion, was

void, and “[a] void order does not cloak the appellate court with jurisdiction to consider the

merits of an appeal.”

. Instead, “[t]he only matter properly before the appellate court

was the circuit court’s lack of jurisdiction over Flowers’ untimely Rule 604(d) motion.”

. In Flowers, “[b]ecause the appellate court went beyond the question of the [trial court’s]

lack of jurisdiction” over the Rule 604(d) motion, its judgment on appeal—that the motion was

not deficient for failing to include a request to withdraw her guilty plea and that the trial court

erred when it included restitution in the sentence—could not be sustained.

The trial court

“had no jurisdiction to entertain that motion,” so the appellate court “should simply have vacated

the [trial court’s] judgment and dismissed [the] appeal.”

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¶ 46 Our supreme court found that the attack on the withholding portion of the trial court’s

sentencing judgment presented a “more difficult problem.”

The defendant argued that portion

of her sentence was void, and the appellate court had addressed that argument by relying on the

“well-established principle of law [which holds] that a void order may be attacked at any time or

in any court, either directly or collaterally.”

at 308 (citing Sarkissian,

). Our

supreme court found that the appellate court erred when it relied on this principle, holding:

“Although a void order may be attacked at any time, the issue of voidness must be

raised in the context of a proceeding that is properly pending in the courts. If a

court lacks jurisdiction, it cannot confer any relief, even from prior judgments that

are void. The reason is obvious. Absent jurisdiction, an order directed at the void

judgment would itself be void and of no effect.

Consistent with these principles, the appellate court is not vested with

authority to consider the merits of a case merely because the dispute involves an

order or judgment that is, or is alleged to be, void.”

Our supreme court held that the appellate court’s “power attaches only upon compliance with the

rules governing appeals.”

Because Rule 604(d) is such a rule, because strict compliance with

that rule “is a condition precedent to an appeal on the merits,” and because the “requirements of

the rule were plainly not met,” our supreme court held that the appellate court “had no authority

to intervene and vacate that portion of Flowers’ sentence.” Id. at 308-09.

¶ 47 The Flowers court found that because the trial court’s jurisdiction over the underlying

criminal case had lapsed, the trial court had no authority to address the Rule 604(d) motion on

the merits and, consequently, the appellate court “had no authority to consider the merits of her

appeal from the circuit court’s judgment denying [that] motion.” Flowers,

.

18 1-16-0850

“That the circuit court’s order was void [was] fatal to the appellate court’s judgment.”

That

finding carried over to the appellate court’s judgment on the allegedly void portion of the

defendant’s sentence because “the issue of voidness must be raised in the context of a proceeding

that is properly pending in the courts.”

. “[T]he appellate court is not vested with

authority to consider the merits of a case merely because the dispute involves an order or

judgment that is, or is alleged to be, void.” (Emphasis added.)

In Flowers, appellate

jurisdiction never attached due to noncompliance with Rule 604(d). See

(holding

that because requirements of Rule 604(d) were “plainly not met,” the appellate court had no

authority to intervene and vacate the void portion of the defendant’s sentence).

¶ 48 In this case, however, the father filed a timely notice of appeal from a valid, final, and

appealable judgment terminating his parental rights. We also note he filed a timely notice of

appeal in the same proceedings that gave rise to the allegedly void orders. See In re Abner P.,

(2004) (holding that the filing of a petition to terminate parental rights

does not initiate an entirely new proceeding within an existing case number). Thus, nothing in

Flowers prohibits this court from considering whether the adjudication and dispositional orders

are void. This court’s authority properly attached to the proceedings that gave rise to the

allegedly void orders, and despite the father’s failure to appeal those orders, a void order may be

attacked at any time, directly or collaterally in a court with jurisdiction of the parties and the

subject matter. Flowers,

. Notably, the Thompson court also addressed its earlier

holding in Flowers and held that Flowers did not compel a different conclusion in Thompson.

Thompson,

. The Thompson court found that in contrast to Flowers, the

defendant’s postconviction petition was properly before the trial court and the defendant’s appeal

to the appellate court from the dismissal of that postconviction petition was properly before the

19 1-16-0850

appellate court; thus, there was “no jurisdictional impediment” to the granting of relief from the

void portion of the trial court’s sentencing order (id. at 28-29), despite the fact the petition filed

in the trial court did not challenge the defendant’s sentences (id. at 21-22). See also Castleberry,

(“ ‘Where jurisdiction is lacking, any resulting judgment rendered is void

and may be attacked either directly or indirectly at any time.’ [Citation.]”).

¶ 49 Having determined this court does have jurisdiction over the adjudicatory and

dispositional orders to the extent they may be void, we note that the parties argued extensively

over whether those orders are in fact void because the trial court lacked personal jurisdiction

over the father based on the allegedly defective service by publication. “A judgment is void (as

opposed to voidable) only if the court that entered it lacked jurisdiction.” People v. Raczkowski,

(2005). We review de novo the legal question of whether a trial

court obtained personal jurisdiction. In re Detention of Hardin,

(2010).

¶ 50 We must first address the issue of whether laches applies to the father’s challenge in this

case because if the claim is barred by laches there may be no need for us to determine whether

the adjudication and dispositional orders are void for lack of personal jurisdiction. In re Adoption

of Miller,

(1982). The In re Adoption of Miller court held that

because it found that the father’s petition was barred by laches, “it is unnecessary to determine

whether the adoption judgment was void or merely voidable.”

In Pyle v. Ferrell,

(1958) (cited in In re Adoption of Miller), the plaintiff sought equitable relief from a tax sale

“on the theory that the tax deed *** was void for various incidents of nonconformance with the

statutory requirements for the issuance of a valid tax deed.” Pyle,

. The

defendant denied the invalidity of the deed and also “affirmatively defended on the ground of

laches” and other grounds.

. The lower court did not pass on the issue of whether the

20 1-16-0850

tax deed was void but dismissed the complaint on the ground the plaintiff had been guilty of

laches.

Our supreme court agreed and held that the circuit court properly found the plaintiff

guilty of laches without addressing whether the tax deed was void. See

. In Slatin’s

Properties, Inc. v. Hassler,

(1972) (also cited in In re Adoption of Miller), the

plaintiff sought to quiet title to several vacant lots. Hassler,

. The defendants

argued the plaintiff was barred from maintaining the action by section 7 of the Limitations Act,

which provided as follows: “ ‘Whenever a person having color of title, made in good faith, to

vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive

years, he or she shall be deemed and adjudged to be the legal owner of said vacant and

unoccupied land, to the extent and according to the purport of his or her paper title. ***’ Ill. Rev.

Stat. 1965, ch. 83, par. 7.” Hassler,

. The courts construed section 7 “as requiring

that the person having color of title made in good faith and thereafter paying the legally assessed

taxes for seven successive years must also take possession of the property.”

The Hassler

court found that the defendants had not exercised sufficient acts of possession of the property.

. Nonetheless, the defendants also argued that the plaintiff was precluded from

instituting suit because plaintiff was barred by laches.

. Our supreme court agreed and

held that the plaintiff was barred by laches from asserting any claims to the premises in question.

.

¶ 51 The GAL argues that the legal doctrine of laches applies to prevent the father from

objecting to personal jurisdiction in this case. The father argues that the GAL forfeited its laches

argument in the PFR by failing to raise it during the initial appeal.

¶ 52 In response to the father’s forfeiture argument, the GAL replies only that forfeiture is a

limitation on the parties, not the court, and we may choose to exercise our discretion to entertain

21 1-16-0850

this argument. This court has held that the rule that points not argued are waived and shall not be

raised on petition for rehearing is a limitation on the parties and not the court. A.J. Maggio Co. v.

Willis,

(2000). “Even though an issue is waived, we may address it

based on our obligation to achieve a just result and maintain a uniform body of precedent.”

Country Mutual Insurance Co. v. Hagan,

(1998). See also Mellon v.

Coffelt,

(2000) (“In this case, we believe that it is in the interest of

justice to consider the enumerated challenges to the statute, and we note that we are able to do so

without the aid of cogent appellate argument. Therefore, we choose to address this issue, waiver

notwithstanding.”). This court will relax forfeiture rules when important issues that are

indispensable to a just resolution of the appeal before the court are involved. For the following

reasons, we find that the GAL’s laches argument raises an important issue that merits relaxation

of the forfeiture rule.

¶ 53 “The laches doctrine may be invoked to preclude the assertion of parental rights. (In Re

Miller (1980),

,

; Rodriguez v. Koschny (1978),

,

.)” In re Adoption of Miller,

. The

In re Adoption of Miller court stated the rationale for applying the doctrine of laches to adoption

judgments as follows:

“The adoption decree is sui generis because it closely concerns the life of

someone other than the contending parties, the child. A rule that an individual’s

right to set aside a judgment entered without jurisdiction over him cannot be cut

off by lapse of time (assuming there is such a rule) does not and should not apply

to the case where interests exist superior to those of the party whose rights are

terminated. [Citations.]” (Internal quotation marks omitted.)

.

22 1-16-0850

¶ 54 Consideration of whether laches applies is indispensable to a just resolution of this appeal

because of the superior interests involved. Further, the In re Adoption of Miller court stated that

“[t]he issue of laches does not have to be decided after a trial on the merits but may properly be

determined on a motion to dismiss if its applicability appears from the face of the complaint or

by affidavits submitted with the motion.”

. The fact we may determine the issue of

laches from the face of the pleadings before us also weighs in favor of relaxing the forfeiture rule

to consider the GAL’s laches argument. See Coffelt,

(addressing issue,

forfeiture notwithstanding, in part because the court was able to do so without the aid of

appellate argument). Therefore, we find that the GAL has not forfeited the argument that, in this

case, the legal doctrine of laches applies to prevent the father from objecting to personal

jurisdiction.

¶ 55 “Illinois cases recognize that even if service of process is defective an attack on a decree

may be barred by laches. [Citation.] It is a basic to the laches doctrine that a complainant may be

barred when, after ascertaining the facts, he fails promptly to seek redress.” Rodriguez,

. The Koschny court had found no Illinois authority which, to date, had applied

the doctrine of laches to preclude the assertion of parental rights.

. But the court

found that “the circumstances of this case illustrate the reasonable need to apply that equitable

principle to prevent a serious disruption of a stable family unit.”

. That case involved a

mother who refrained from seeking legal enforcement of her parental rights over a nine-year

period.

. By the time the mother did enforce her rights, the court found that the case

“now involves not an infant but a 12-year-old child and his adoptive parents who have lived with

him in a family relationship for a dozen years.”

.

23 1-16-0850

¶ 56 In In re Adoption of Miller, the natural father of a minor child sought to vacate a

judgment of adoption alleging that service by publication in adoption proceedings was defective.

In re Adoption of Miller,

. Almost one year after the judgment for

adoption was entered, the father appeared in court on an emergency motion for visitation.

. The father, who was represented by counsel, was presented with a copy of the judgment

for adoption at that time.

“[A]pproximately 21 months after Miller and his counsel learned of

the adoption judgment, Miller filed a petition for leave to examine the file in the adoption case,

alleging that as [the] father he was not served with summons at his then residence ***.”

The

adoptive parents argued, in part, that the petition to vacate the adoption judgment “should be

dismissed on grounds of laches in that Miller and his attorney were informed of the adoption

judgment in open court ***, yet did not file a petition to vacate that judgment until almost 21

months later.”

. The trial court found that service was defective, but the father had

not shown due diligence in filing a petition for relief from judgment.

.

¶ 57 On appeal, the father argued the judgment for adoption was void ab initio and since a

void judgment may be attacked at any time, he did not have to demonstrate due diligence under

the statute governing petitions for relief from judgment.

The adoptive parents countered that

the adoption judgment was merely voidable and, thus, the father had to show due diligence in

challenging it.

This court found that the time limitations in the statute on petitions for relief

from judgment do not apply to a party raising the issue of lack of jurisdiction.

.

“Nevertheless, while the strictures of section 72 [(now section 2-1401)] do not apply, the

equitable defense of laches may be interposed to an attack on a void judgment.”

¶ 58 To establish the defense of laches, a party must show that there was unreasonable delay

in bringing the action and that the delay materially prejudiced him.

. The father argues

24 1-16-0850

that laches does not apply in this case because the adoption has not been finalized. The father

relies on this court’s decision in In re M.B.,

(1992), which he contends held

that laches cannot apply in cases where the adoption was not finalized. The GAL, in reply to the

father’s argument, asserts that the decision in In re M.B. actually lends support to its argument.

We disagree with the father’s interpretation of the decision in In re M.B. That case involved an

appeal of a trial court order granting a petition pursuant to section 2-1401 to vacate a finding of

neglect and adjudication of wardship and an order appointing a legal guardian.

. The

court held that the trial court had not abused its discretion in granting the 2-1401 petition or in

finding that misrepresentations by the legal guardian tolled the time for the parents to file the

petition more than two years after the guardianship order.

. The appellants in that case

argued that the 2-1401 petition was barred by the doctrine of laches.

. The court held

that “in view of the fraudulent concealment ***, the laches doctrine is not applicable here.”

The court noted that:

“Furthermore, in cases where laches operated to preclude the assertion of parental

rights, adoptions had occurred and the doctrine of laches was applied to preserve

the stability of the family unit. [Citations.] By way of contrast, [the legal

guardian] did not adopt M.B.; rather, she provided him with what essentially was

a foster home. Furthermore, the parents’ delay in this case will not disrupt or

materially prejudice any stable family relationship, because M.B. no longer lives

with [the legal guardian]. He currently resides at the Boys’ Hope facility in

Evanston, where he is doing well. We decline to apply the doctrine of laches

here.”

.

25 1-16-0850

¶ 59 The foregoing statement in In re M.B. is hardly a ruling that laches does not apply to

cases pending under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2012)) or

that laches cannot apply in cases where the adoption was not finalized, as the father claims.

Notably, the In re M.B. court stated that “the parents’ delay in this case will not disrupt or

materially prejudice any stable family relationship, because M.B. no longer lives with [the

guardian].” (Emphasis added.)

. It is evident the court would have considered the minor

child’s family relationship with the legal guardian had the minor still resided with her, regardless

of whether the adoption had been completed. There is no language in In re M.B. restricting the

application of the doctrine of laches in the way the father suggests. We reject the father’s

argument laches does not apply based on the procedural posture of this case.

¶ 60 The GAL argues the father failed to raise the issue of personal jurisdiction for almost two

years after he was identified as the father and was appointed counsel, that delay was

unreasonable, and “the stability of 9-year-old Jamari’s life *** will unquestionably be disrupted

by [the father’s] long-delayed challenge to personal jurisdiction”; therefore, laches applies. We

agree.

“Laches has been defined as ‘such neglect or omission to assert a right,

taken in conjunction with a lapse of time of more or less duration and other

circumstances causing prejudice to an adverse party, as will operate to bar relief

in equity.’ [Citation.] The existence of laches ‘depends on whether, under all

circumstances of a particular case, a plaintiff is chargeable with want of due

diligence in failing to institute proceedings before he did.’ [Citation.]” In re

Adoption of Miller,

.

26 1-16-0850

In this case, the trial court appointed counsel to represent the father on June 19, 2014. The first

hearing on the TPR petition was held on October 8, 2015, and the father was present at that

hearing. At that hearing, the State requested that the court take judicial notice of the adjudication

order for Jamari entered on November 2, 2007, and the dispositional order entered on September

18, 2008. The trial court continued the matter to December 14, 2015, for status on the disposition

of the father’s appeal of a criminal conviction. The court terminated the father’s parental rights

on February 29, 2016. The court found that Jamari was in a loving preadoptive home, where he

had been since December 2012. As the GAL points out, the father was a party to the proceedings

for over 1½ years before the trial court terminated his parental rights. If we were to construe the

notice of appeal as the father’s first assertion of the trial court’s lack of jurisdiction, the lapse of

time approaches two years during which the father could have attacked the trial court’s lack of

personal jurisdiction but did not. Throughout the period the father was a party to these

proceedings and failed to challenge the court’s jurisdiction, and longer, Jamari has been in a

stable family environment with foster parents who wish to adopt him.

¶ 61 Based on the foregoing we find that the father is chargeable with want of due diligence in

asserting the trial court’s lack of personal jurisdiction over him for the adjudication and

dispositional orders. In In re Miller,

(1980), the natural father filed a petition

to vacate an order appointing the minor’s grandfather as her guardian.

. The father filed

his petition almost three years after the trial court entered the guardianship order.

The mother

testified that she had informed the father that her parents had been appointed guardians a few

months after the guardianship proceeding was completed.

. The father had not been

served with a summons, but notice by publication was given in a local newspaper.

. The

trial court found that the notice by publication was defective but the father had not timely filed

27 1-16-0850

his petition to vacate.

. On appeal, the court found that “if [a] parent has actual

knowledge of the facts and fails to promptly seek redress, the doctrine of laches will bar an

attack upon the decree.”

The appellate court affirmed the trial court’s judgment denying the

father’s petition “in view of the failure of [the father] to assert his rights, of which the court

found he had knowledge, and in view of the lapse of time.”

.

¶ 62 Here, there is no disputed question of fact that the father knew of the adjudication and

dispositional orders. Cf.

The father, represented by counsel, participated in the termination

proceedings with knowledge that the adjudication and dispositional orders were prerequisites to

termination proceedings. The father had actual knowledge of the adjudication and dispositional

orders yet failed to take any steps to challenge them for almost two years. In In re Adoption of

Miller, the court found the father’s explanation for his delay in attacking the judgment for

adoption—that the father was a “ ‘traveling man,’ ” did not have the money to start right away,

and “ ‘it was inconvenient and one thing or another’ ”—insufficient to warrant the relief

requested. In re Adoption of Miller,

(citing In re Adoption of Rayborn,

(1975)). The father in this case has offered no explanation for his delay.

Based on the father’s knowledge of the orders and the absence of any legal disability or duress

(see id.), we find the father’s delay in attacking the adjudication and dispositional orders was

unreasonable.

¶ 63 The application of laches requires both delay and prejudice. See generally People ex rel.

Alvarez v. Gaughan,

. “In the case of an adoption the potential of prejudice

is greater because the delay affects not only the immediate parties but also the child.” In re

Adoption of Miller,

. In In re Adoption of Miller, the court found that:

28 1-16-0850

“[I]t would be extremely prejudicial to the stability of the family life Tashyna has

enjoyed to permit the natural father to wait almost two years after he learned of

the adoption to attack it. As one court has observed, ‘[p]robably in no other area

of the law is the desirability of finality of determination greater than that which

obtains in the field of adoption of children.’ [Citation.] To allow Miller to

challenge the judgment of adoption 21 months after he discovered it and more

than 5½ years after he last saw Tashyna would unquestionably disrupt the

tranquility of a family unit which now involves not an infant but an eight-year-old

child and her adoptive parents with whom she has lived during her critically

significant formative years. We decline to do so.”

.

In Koschny, the court found that the prejudice was “quite obvious” where the adoptive parents

had “assumed the parental responsibilities of caring, feeding, clothing and sheltering the child”

for a substantial period of time. Koschny,

. Although the period in Koschny

was admittedly longer than the time Jamari has been with his preadoptive family, Jamari has

been in a stable family relationship for more than two years, which continues to be disrupted by

these proceedings. Cf. In re M.B.,

. “Disruption of the continuity of

relationship between the child and his ‘psychological parents’ is almost certain to adversely

affect the child’s development.” Koschny,

.

¶ 64 In this case, the tranquility of Jamari’s life and family unit has been disrupted by the lack

of finality. Jamari’s caseworker testified that Jamari seems happy and comfortable in his home

but wondered why he had not been adopted yet. Moreover, the father admits that although he

wants to be a part of his son’s life, he is not capable of caring for Jamari and does not want to

disrupt Jamari’s life with his foster parents. We decline to continue to subject Jamari and his

29 1-16-0850

family to this state of limbo where the father has not asserted a justification for his delay in

challenging the trial court’s jurisdiction after he became a party to these proceedings. Further

delaying resolution of his permanent placement would be detrimental to Jamari’s welfare. We

hold that the father is barred by laches from challenging the adjudication and dispositional

orders.

¶ 65 Because the father’s belated attack on the trial court’s jurisdiction to enter the

adjudication and dispositional orders is barred by laches, we have no need to determine whether

the orders are void because service by publication in this case was defective. As the father

offered no other argument attacking the propriety of the order terminating his parental rights, the

trial court’s judgment is affirmed.

¶ 66 CONCLUSION

¶ 67 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 68 Affirmed.

30