APPEAL from the Circuit Court of Kane County; the Hon. NEIL
MAHONEY, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Arnuflo and Isabel Oliva, the maternal grandparents of Christina Marie Oliva, a minor, appeal from the order of the circuit court of Kane County denying their petition to intervene in certain adoption proceedings. The child, Christina, was born out of wedlock on December 17, 1972, to Sylvia Oliva, daughter of the appellants herein. The petition to intervene states that the child's mother "surrendered and abandoned the child to the petitioners [Olivas] during January of 1976 and the child resided with the petitioners for four months from that date." While it was alleged in the argument made by the Olivas' counsel at the hearing that Christina lived with the Olivas "for all of her life," the petition itself indicated "that petitioners have cared for said Christina Oliva for approximately four months beginning in January of 1976." The petition sets forth that early in 1976, while Christina and her mother, Sylvia, were residing with the Olivas, Sylvia represented to petitioners that she would allow them to adopt Christina; however, she demanded that the Olivas take care of Christina for a "trial period" of one year before she would allow adoption proceedings to begin. In June of 1976 the Olivas went on vacation and when they returned they found that Sylvia had given custody and control of Christina to Thomas and Juanita Benavidez (the child's godparents) and the child was then living in their home.
In July 1976, Thomas and Juanita Benavidez filed a petition to adopt Christina. Sylvia gave her consent, properly executed, and the natural father was served with notice and properly defaulted and his parental rights terminated. An interim order for adoption was entered on August 9, 1976.
• 1 On September 8, 1976, the Olivas petitioned to intervene in the adoption proceedings and presented their petition to adopt Christina. After a hearing on the petition to intervene the trial court denied the petition.
In this appeal the Olivas contend that they should be allowed to intervene because they are the grandparents of Christina, that she lived in their home for "great lengths of time since the child's birth," and moreover, her mother had promised them to allow them to adopt the child.
They assert a legal basis for intervention in the adoption proceeding under section 26.1(2)(b) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 26.1(2)(b)) which permits the applicant to intervene at the discretion of the court, "when an applicant's claim or defense and the main action have a question of law or fact in common." The Olivas argue that the question as to who has the right to adopt the child is a common question of law or fact in this case.
The Olivas say that the main consideration in an adoption proceeding is the best interest of the child sought to be adopted and that the best interest of the child in this case is to allow her to be adopted by her own grandparents. They cite the majority opinion of this court in In re Jennings (1975), 32 Ill. App.3d 857, holding that a maternal grandmother had standing to file a petition seeking termination of the rights of a court appointed guardian. They also invoke Zook v. Spannaus (1966), 34 Ill.2d 612, where the grandparents were awarded custody of their grandchildren over the court designated director of the Lutheran Child Welfare Association.
A careful reading of these two cases indicates that they are not apposite here. Jennings was a proceeding in the juvenile court and the decision was on the standing to intervene in the hearing to make the children wards of the court and appoint a county probation officer as their guardian. Moreover, the decision held there was no legal basis for the appointment of the probation officer as guardian because the court had failed to adjudge the children wards of the court, and moreover, the petition filed subsequently to adopt the children was invalid because the mother's consent was not properly executed. We do not regard Jennings as a binding precedent in the case before us due to the different nature of the proceedings, the quite different nature of the parties involved, and the lack of jurisdiction to make the judgment as to wardship, as noted by the court. We regard a case involving the question of the right of a grandparent to intervene in a hearing to make a child a ward of the State as an entirely different matter from a grandparent's right to intervene in a private adoption where there is no question of the fitness of the adopting parents or the correctness of the mother's consent, but only the question whether the grandparents have a preference, which gives them a right to intervene.
The Zook case, likewise, has no relevance to the case at hand. In the first place, Zook was not an adoption case it involved only a question of custody and was brought on a habeas corpus petition. There was evidence in the case of high-handed and improper conduct on the part of those to whom custody was awarded and a failure by the court to follow the requirements of the Family Court Act (Ill. Rev. Stat. 1963, ch. 23, par. 2026). The appellate court granted the petition for habeas corpus on the basis of a complete lack of due process all along the line. There is no question of lack of due process in the case before us or of the jurisdiction of the court to enter an adoption decree and the Zook case, therefore, has no relevance to this case.
On the other side of this question, the recent Illinois Supreme Court decision in Chodzko v. Chodzko (1976), 66 Ill.2d 28, declined to give special status to the grandfather, even in a matter of visitation rights. In that case the divorced mother, to whom custody had been granted, objected to the visits of the grandfather because of his alleged disruptive influence on the child. The court said her wishes should prevail since she had the day-to-day responsibility of the child's upbringing and had been granted custody by the divorce decree.
Nor do we see any significance in the language quoted by the appellants from section 26.1(2)(b) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 26.1(2)(b)) sofar as the question presented here is concerned. The language "[u]pon timely application anyone may in the discretion of the court be permitted to intervene in an action: * * * (b) when an applicant's claim or defense and the main action have a question of law or fact in common" (emphasis added) is purely permissive and gives no right to the applicant. Moreover, it is by no means clear that the quoted language was intended to apply at all to a situation such as that presented here. There is no common question of law or fact in this case. The question is whether the appellants have a preference since on no other basis than a legal preference could they intervene, inasmuch as the adoption had already reached the point of an interim order for adoption when the petition to intervene was filed and there is no allegation of the unfitness of the adopting parents or irregularity in the adoption proceedings. We doubt that an assertion of a preference presents a common question of law or fact in an adoption proceeding merely because both parties wish to adopt the same child. The question raised by the appellants is purely adversary to the rights of the adopting parents and it is not a question common to both parties.
In any event, as noted above, the trial judge has discretion and we cannot say he abused his discretion in declining to permit the appellants to preempt the adoption proceedings.
• 2 The appellants argue that the wishes of the mother are not controlling, since the mother cannot control the adoption after she gives her consent. This is true and the court must make the determination as to the fitness of the adopting parents, but the wishes of the mother can legitimately be taken into account as an element to be considered. It may certainly be assumed that the mother in this case wishes the best home possible for her child and her deliberate choice of Thomas and Juanita Benavidez, after having lived with the child in the home of her parents, the Olivas, is significant as indicating the mother's judgment as to which home is best for the child's future, as between the contending parties.
We do not wish to be understood in this opinion as denigrating the natural right of grandparents to have custody of or to adopt their grandchildren in a proper case. All other things being equal, they may be the most logical persons to have custody or to adopt, and this is especially true where they have played an important part in the raising of the child. A petition to intervene by grandparents, due to their unique relationship to the child must, as it was here, be given careful consideration, for it is implicit in their relationship to the child that they have great solicitude for the child's well being and happiness. This is well recognized in the Illinois cases. (See Jennings and cases cited therein.) But, in the circumstances of this case there is no legal basis authorizing a right to intervene and it was a matter clearly within the discretion of the court. The circumstances were peculiar here for the evidence indicates that a sister of the child's mother also had a daughter out of wedlock and she returned ...