APPEAL from the Circuit Court of Cook County; the Hon. HELEN
F. McGILLICUDDY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The plaintiff, Hector Negron, is the father of a daughter born out of wedlock in December 1963. The child's mother died in 1966. In January 1972, the Circuit Court of Cook County entered a decree of adoption awarding the child to foster parents under the provisions of the Illinois Adoption Act (Ill. Rev. Stat. 1971, ch. 4, pars. 9.1-1, 9.1-8) which permitted a child's adoption upon the death of its mother without notice to or consent of the unwed father.
In a petition for a writ of habeas corpus filed in March 1974, Negron asked that the decree of adoption be vacated and that custody of the child be given to him. The motion of the adoptive parents to dismiss the petition was granted.
Negron's petition alleged that he was the father of the child, had admitted his paternity in court and had contributed to the girl's support during the years 1964, 1965 and 1966; that she lived with her maternal grandmother with his consent following her mother's death; that he moved to New York due to the force of economic circumstances and had resided there from 1969 to 1972, and that the Cook County Department of Welfare consented to the adoption of his child, had knowledge of his paternity, but failed to give him notice of the adoption proceedings. The petition further alleged that Negron was a suitable person to have custody of the child, but that the entry of the adoption decree without notice denied him equal protection under the fourteenth amendment to the United States Constitution and denied him the opportunity of proving that he, the natural father, was a fit and proper person to have custody of his own daughter. The trial court heard argument on the legal issues but did not hear evidence.
Of central importance to this case are Stanley v. Illinois (1972), 405 U.S. 645, and People ex rel. Slawek v. Covenant Children's Home (1972), 52 Ill.2d 20, 284 N.E.2d 291. In Stanley an unwed father sought custody of two of his children who had lived with him and their mother until the mother's death. They were then declared wards of the State and placed in the hands of court-appointed guardians. The court ruled that the State's conclusive presumption that an unwed father was unfit to retain custody of his children upon the mother's death violated due process and that its assumption of custody of the children of married parents, divorced parents and unmarried mothers only after a hearing and proof of neglect, while not affording the same to unwed fathers, denied them equal protection of the law. In Slawek an unwed father sought to obtain custody of his child from the adoptive parents. He argued that the adoption was granted without notice to him and without his consent under provisions of the Illinois Adoption Act (Ill. Rev. Stat. 1969, ch. 4, pars. 9.1-1, 9.1-8) the two provisions here in issue and that these provisions violated the equal protection clause of the Federal Constitution. In addition, he argued that section 12 of the Paternity Act (Ill. Rev. Stat. 1969, ch. 106 3/4, par. 62) denied him custody of his child and that this provision was also unconstitutional. Relying upon Stanley v. Illinois, the Slawek court held that the three statutes were unconstitutional and that an unwed father was entitled to a hearing in adoption proceedings. Consequently, it vacated the judgment against the father and remanded the case for further proceedings.
At issue in this appeal is the prospective or retroactive effect of the Stanley and Slawek decisions and whether the trial court erred in not applying those decisions retroactively to the Negron adoption proceedings which were held a few months before Stanley and Slawek were decided.
Negron contends that retroactive application was intended in the Stanley decision because the case was remanded "to grant the petitioner a hearing on the merits of his case," and that Slawek should be given retroactive effect simply because its ruling applied to the adoption proceedings then being attacked. But Linkletter v. Walker (1965), 381 U.S. 618, suggests that this is an incorrect inference to draw from these two cases. There the court announced that the exclusionary rule propounded in Mapp v. Ohio (1961), 367 U.S. 643 (State courts must exclude evidence if searches and seizures violated the fourth amendment) would not be given retroactive effect. The court so held although it conceded that it had applied the Mapp rule to reverse the defendant Mapp's conviction and that courts of appeal had applied the decision to cases still pending on direct review at the time it was rendered. In fact the court came closer to the point of complete prospectivity by refusing to permit defendants whose cases were still pending on direct review to benefit from the new interrogation requirements set forth in Escobedo v. Illinois (1964), 378 U.S. 478, and Miranda v. Arizona (1966), 384 U.S. 436, by limiting the rulings in those two cases, except for the parties therein, to proceedings where the trial had begun subsequent to the date of those two decisions. Johnson v. New Jersey (1966), 384 U.S. 719. See also Desist v. United States (1969), 394 U.S. 244.
In Linkletter the court set forth criteria for determining when a ruling should be given retroactive effect. (See also Stovall v. Denno (1967), 388 U.S. 293.) Based on these principles the court held in Williams v. United States (1971), 401 U.S. 646, 653, that:
"Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances."
On the other hand, the court has indicated that the lesser weight given to reliance by public authorities and to the effect on the administration of justice may be inappropriate when the case does not deal with,
"* * * those constitutional interpretations bearing on the use of evidence or a particular mode of trial. * * * Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application." Robinson v. Neil (1973), 409 U.S. 505, 508.
See also United States v. Peltier (1975), 422 U.S. 531, 45 L.Ed.2d 374, 95 S.Ct. 2313, where the court denied retroactive application of its decision in Almeida-Sanchez v. United States (1973), 413 U.S. 266, which held that warrantless automobile searches by border patrols conducted about 25 miles from the Mexican border without probable cause violate the fourth amendment.
The criteria used by the Supreme Court to determine whether a decision in a civil case should be applied prospectively are stated in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 106-07:
"First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed * * *. Second, it has been stressed that `we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' * * * Finally, we have weighed the inequity imposed by retroactive application, for `[w]here a decision of this Court could produce substantial ...