APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Petitioners, Donald and Norma Helvey, brought an action to adopt the minor child of respondents, Charles and Marie Rednour, pursuant to section 1 et seq. of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 et seq.). Marie Rednour, respondent, filed a motion to dismiss the petition for adoption which was denied. A hearing was then held on the petition. At the close of evidence, the trial judge found on the basis of medical testimony that Marie Rednour, mother of the child sought to be adopted, had been adjudicated to be mentally retarded, that she was presently in that condition and that she would remain so in the foreseeable future. The court then appointed a guardian ad litem for said respondent with the authority to consent to the adoption of her child. On motion of respondent mother, the trial court stayed the adoption proceedings and certified a question of law for interlocutory appeal under Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308).
The issue certified for appeal, one of first impression before this court, is as follows:
"Does Ill. Rev. Stat. Ch. 40, § 1501 et seq. (hereinafter, the Act) violate the Due Process and Equal Protection Clauses of the United States Constitution and Article 1, § 2 of the Constitution of the State of Illinois in the following respects:
a. By creating a classification in § 1501 of the Act consisting of those persons who have been adjudicated mentally retarded and who, at the time an adoption petition concerning their children is filed, are found to continue to be mentally retarded and to be persons who will not recover in the foreseeable future, and by providing that the parental rights of these persons may be terminated in an adoption proceeding without the consent of such persons and without a judicial determination that they are unfit persons within the meaning of § 1501(D) of the Act;
b. By creating an irrebuttable presumption that the foregoing class of persons are unable to make the decision either to retain their parental rights or to consent to termination of their parental rights, or to establish facts in a judicial proceeding tending to show that they are fit parents of their children;
c. By authorizing a guardian ad litem appointed pursuant to § 1501 of the Act to consent to an adoption without prescribing any standards to guide the exercise of said guardian find that the mentally retarded parent is an unfit person within the meaning of § 1501(D) of the Act."
Section 8 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 1510) addresses itself to the requirement of consent to adoption and states:
"Except as hereinafter provided in this section, consents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court to be an unfit person as defined in Section 1 of this Act * * *. Where consents are required in the case of an adoption of a child, the consents of the following persons shall be sufficient:
(e) If the court finds that either parent of the child sought to be adopted has been adjudicated an incompetent by reason of mental impairment, or adjudicated mentally ill, in need of mental treatment, or mentally retarded, and if the court further finds from the evidence by 2 qualified physicians selected by the court that such parent continues to be mentally ill, in need of mental treatment or mentally retarded, and will not recover from such mental illness or mental retardation in the foreseeable future, then the court may on its own motion, or on the application of the petitioners, appoint the State's Attorney of the county in which the proceeding is pending or some other licensed attorney as guardian ad litem, to represent such parent who is mentally ill, in need of mental treatment or who is mentally retarded in the adoption proceedings, and he shall have authority to consent to the adoption; * * *."
The respondent mother contends that this statutory framework creates two classes of parents from whom consent to adoption is not required in order to terminate parental rights. The first class consists of parents who have been found by the court to be unfit. The second class is composed of parents who have been adjudicated incompetent by reason of mental impairment or who have been adjudged to be mentally ill, in need of mental treatment or mentally retarded and the court finds that such condition will not improve in the foreseeable future. For parents in the second class, no finding of unfitness is necessary. Respondent asserts that this classification plan is violative of the equal protection and due process clauses of the fourteenth amendment to the United States Constitution and of article 1, section 2 of the Illinois Constitution. According to respondent it unjustly discriminates against retarded parents by involuntarily terminating their parental rights without a hearing to determine their fitness as parents. We agree.
In the instant case, section 8 of the Act terminates parental rights by waiving the parental consent requirement in an adoption proceeding if the parent is found to be unfit. Unfitness, as defined by section 1(D) of the Act, refers to actions on the part of such parent which are harmful to a child including, but not limited to, abandonment, desertion, substantial neglect, extreme or repeated cruelty, physical abuse, and habitual drunkenness or addiction to drugs. Termination also may result if a parent is retarded and exhibits no potential for recovery in the foreseeable future. In the latter instance, the court may appoint a guardian ad litem and vest in him the power to consent to adoption. There is nothing in the statute necessitating a finding of parental unfitness as a condition precedent to the appointment of the guardian. Thus, the statute implicitly creates a presumption that all retarded parents are unfit. The practical effect of such a presumption is to treat mentally healthy and mentally retarded parents unequally since only retarded parents can be deprived of their parental rights without proof of their unfitness. Therefore, section 8 in its application is discriminatory to the rights of retarded parents.
In evaluating a claim under the equal protection clause, a court "must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests to be affected." (Memorial Hospital v. Maricopa County (1974), 415 U.S. 250, 253, 39 L.Ed.2d 306, 312, 94 S.Ct. 1076, 1080.) Therefore, it is necessary at the outset to determine ...