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In Re Workman

OPINION FILED DECEMBER 31, 1975.

IN RE WILLIAM WORKMAN ET AL., MINORS. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

CYNTHIA WORKMAN, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Will County; the Hon. ANGELO F. PISTILLI, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal by Cynthia Workman, mother of William Workman and Robert Workman, minors, from the orders of the Circuit Court of Will County which terminated her parental rights and denied a subsequent "petition for rehearing."

The record discloses that the State of Illinois filed a petition on February 23, 1972, which alleged that the children, William Workman and Robert Workman, were neglected and should be made wards of the court (See Ill. Rev. Stat. 1971, ch. 37, pars. 702-4, 704-1). Cynthia Workman and her husband Robert Workman were then in the process of getting a divorce and they consented to the temporary guardianship of the children. On June 2, 1972, the State filed a supplemental petition alleging that the mother was unfit and requesting the appointment of a guardian with power to consent to adoption under the terms of sections 4-1(5) and 5-9(3) of the Juvenile Court Act and section 1 of the Adoption Act (Ill. Rev. Stat. 1971, ch. 37, pars. 704-1(5), 705-9(3), and ch. 4, par. 9.1-1). The written consent of the father, Robert Workman, was filed in such action.

Following the hearing on July 24, 1972, the trial court entered an order on April 5, 1973, finding Cynthia Workman unfit and terminating her parental rights. The minors were made wards of the court and a guardian was appointed with power to consent to adoption. It appears that both of the boys, who were 7 and 5 respectively at the time of the hearing, were placed in foster care during 1972 and have remained under such care.

Apparently no further action occurred until October 12, 1973, when Cynthia Workman filed what was labeled as a "petition for rehearing." On the next day the trial court ordered an evidentiary hearing. On April 5, 1974, the trial court denied the petition and from that order and, assertedly, from the primary order a year earlier, Cynthia Workman has appealed to this court.

• 1, 2 There is no dispute as to the legal principles concerning the finding of unfitness of a parent other than as applied to the particular facts in the case before us. (See In re Gibson (1975), 24 Ill. App.3d 981, 322 N.E.2d 225.) The State contends, however, that the notice of appeal in this case was filed far too late to allow us to consider the initial finding of unfitness. The order of the court was entered on April 5, 1973, and was clearly a final and appealable order, since it found Cynthia Workman to be unfit and terminated her rights as to custody of the minors, Robert and William Workman. The adjudication of wardship made in that order was specifically described as a final judgment by the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 704-8(3)). Nothing was done by appellant in the 30-day period following the entry of the order nor, in fact, for over 6 months thereafter, to question that judgment. Since there was no filing of a notice of appeal within 30 days of that judgment, or any other appropriate action such as a post-trial motion, it is clear that no appeal could be maintained from that judgment under the present procedure (Supreme Court Rule 303, Ill. Rev. Stat. 1973, ch. 110A, par. 303; cf., Deckard v. Joiner, (1970), 44 Ill.2d 412, 416-17, 255 N.E.2d 900; Egermaier v. Egermaier (1970), 128 Ill. App.2d 448, 451, 262 N.E.2d 376).

The State, however, further contends that the court order denying appellant's "petition for rehearing" is not appealable because the petition was not filed within 30 days after entry of the April 5, 1973, order as required by statute. (Ill. Rev. Stat. 1973, ch. 110, par. 68.3(1).) We find, on analysis, however, that the petition filed herein was not the usual "petition for rehearing" contemplated by court rule. As clearly appears from the face of the petition and the type of evidence brought forth at the evidentiary hearing thereon, the petition in fact sought a modification of the April 5, 1973, order by reason of a subsequent change in circumstances. A petition of this nature has been considered in other cases on appeal. In the case of In re Ramelow (1954), 3 Ill. App.2d 190, 197, 121 N.E.2d 141, the court allowed a petition for restoration of parental rights, after they had been taken away, in a proceeding similar to that in the instant case. The court in the Ramelow case there concluded that the parent could file for restoration of rights, on the ground of changed circumstances, at any time before a petition to adopt the child or children was filed. Similarly, in Oeth v. Erwin (1955), 6 Ill. App.2d 18, 22, 23, the court also noted that a mother might petition for restoration of custodial rights by reason of a change in circumstances, even though a guardian had been appointed with power to consent to adoption. It is not clear that the courts have determined that an order could permanently deprive a parent of the right to petition for restoration of custodial rights prior to the filing of a petition to adopt a child or children under the statutes as they now appear (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-17, and ch. 37, par. 705-9(1) et seq.).

• 3 We believe, however, that it is wise to be guided by prior cases considering this issue to which we have referred. The proceeding in this case was apparently treated by the trial court as a petition for restoration of custodial rights. It is notable that the court, in this case, expressly retained jurisdiction over the wards in order to consider such further procedures as, from time to time, might be found in accordance with equity and in accordance with statutes. Since the petition in this case alleged that appellant was entitled to regain her parental rights by reason of a change in circumstances occurring since the entry of the April 5, 1973, order (and apparently because no adoption petition was pending as to the children), we find that there was no particular time limit within which the petition was required to be filed and that the appeal (timely taken) from the denial of that petition is properly before this court.

• 4 It is contended by appellant the finding of the trial court was contrary to the manifest weight of the evidence. Viewing the evidence as a whole, we cannot say that the trial court was not within its discretion in denying the petition to regain parental rights and custody of the children, since the court did conclude that there was no significant evidence to show clearly that appellant has now become qualified to reacquire parental rights and the custody of the children, and that it is to the best interests of the children that she be given such rights. The trial court was in best position to observe the petitioner, and to give consideration to the evidence as presented in the trial court. The record itself does not clearly show that the determination of the trial court was contrary to the manifest weight of the evidence.

On the basis of the record, therefore, and for the reasons stated, the appeal from the order of April 5, 1973, is dismissed, and the order of the Will County Circuit Court dated April 5, 1974, is affirmed.

Appeal from order of April 5, 1973, is dismissed and order of April 5, 1974, is affirmed.

STENGEL, J., concurs.

Mr. JUSTICE BARRY, specially concurring:

I agree with the results reached by the majority, but I am persuaded that I must comment on the residual rights of ...


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