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Davis v. Bughdadi

OPINION FILED DECEMBER 23, 1983.

BOBBIE EARL DAVIS ET AL., PETITIONERS-APPELLEES,

v.

SYED AKBAR BUGHDADI ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Jefferson County; the Hon. Leo T. Desmond, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Syed Akbar Bughdadi appeals a judgment of adoption entered in the circuit court of Jefferson County terminating his parental rights with regard to his natural son. This order was entered after a hearing pursuant to a petition for adoption filed by the child's natural mother, Beth Ann Davis, and her husband, Bobbie Earl Davis. The final order of adoption was entered subsequent to an interim order terminating Mr. Bughdadi's parental rights. Mr. Bughdadi also appeals the court's dismissal of a petition for rule to show cause filed against Mrs. Davis. We determine (1) that we are without jurisdiction to consider the dismissal of the petition against Mrs. Davis, and (2) that the order terminating Mr. Bughdadi's parental rights was not supported by the manifest weight of the evidence before the trial court.

On December 18, 1980, a judgment for dissolution of marriage was entered dissolving the marriage of Beth Ann Bughdadi, petitioner, and Syed Akbar Bughdadi, respondent. The petitioner was granted custody of the couple's 17-month-old son, Syed Ahmed Bughdadi. Respondent was ordered to pay child support and was granted visitation privileges with regard to his son. Respondent's failure to pay support prompted petitioner to file a petition for contempt against respondent on April 3, 1981. Respondent thereafter paid arrearages accruing through March 1981, but made no subsequent payments. Petitioner filed a petition for rule to show cause on August 27, 1982, seeking payment of support owing from March 1981. On this same date, petitioner and her new husband, Bobbie Earl Davis, filed a petition for adoption of Syed Ahmed Bughdadi, alleging that respondent had failed to maintain a reasonable degree of interest, concern, or responsibility for the child, and that respondent was therefore an unfit person within the meaning of section 1(D)(b) of the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1501D(b)):

"D. `Unfit person' means any person whom the court shall find to be unfit to have a child, without regard to the likelihood that the child will be placed for adoption, the grounds of such unfitness being any one or more of the following:

(b) failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare; * * *."

The petition was amended on December 9, 1982, to allege the additional ground of abandonment of the child. On September 15, 1982, respondent filed a petition for rule to show cause against petitioner, alleging that she had deliberately concealed her whereabouts in order to deny respondent's visitation rights according to the terms of the marital settlement. After a consolidated hearing, the circuit court entered three separate orders on December 30, 1982. An order was issued finding respondent in wilful contempt of court for failure to pay child support. A second order dismissed the petition for rule to show cause against petitioner. A third order found respondent an unfit person within section 1(D)(b) of the Adoption Act for failure to maintain a reasonable degree of interest, concern or responsibility as to his son's welfare, and terminated his parental rights. Respondent filed a notice of interlocutory appeal of the order terminating his parental rights. The notice was filed on January 28, 1983, and was voluntarily dismissed, without prejudice, on March 29, 1983. A final order of adoption was entered by the circuit court on March 21, 1983, declaring Syed Ahmed Bughdadi the child of Bobbie Earl Davis and Beth Ann Davis, and changing the child's name to Matthew Tyler Davis. Respondent appeals the orders dismissing the petition for rule to show cause against petitioner, the order terminating his parental rights, and the final judgment of adoption.

• 1, 2 Supreme Court Rule 303 (87 Ill.2d R. 303(a)) requires that a notice of appeal be filed with the clerk of the circuit court within 30 days of the final judgment in order to preserve the issue for appeal. An order arising from a contempt proceeding is final and appealable, even though it may occur within the context of another proceeding. (People ex rel. Scott v. Silverstein (1981), 87 Ill.2d 167, 172, 429 N.E.2d 483.) The order dismissing the petition to show cause filed against petitioner was issued by the circuit court on December 30, 1982. Thereafter, no notice of appeal was filed. The issue is raised for the first time in respondent's brief. We thus determine that appeal of the order dismissing the petition against Mrs. Davis is untimely, and this court is without jurisdiction to consider the issue.

Petitioners argue that the order terminating respondent's parental rights is also untimely, in light of the following provisions of Supreme Court Rule 307 (87 Ill.2d R. 307):

"(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from any interlocutory order of court:

(6) terminating parental rights or granting, denying or revoking temporary commitment in adoption cases;

The appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated `Notice of Interlocutory Appeal' conforming substantially to the notice of appeal in other cases. The record must be filed in the Appellate Court within the same 30 days unless the time for filing the record is extended by the Appellate Court or any judge thereof."

Petitioners also cite section 17 of the Adoption Act:

"Sec. 17 Effect of order terminating parental rights or order. After the entry either of an order terminating parental rights or the entry of an order of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations of maintenance and obedience as respects such natural parents." Ill. Rev. Stat. 1981, ch. 40, par. 1521.

• 3-6 The sum of petitioners' argument, as we comprehend it, is that Supreme Court Rule 307 should be construed as providing the exclusive mechanism for appeal of an order terminating parental rights, since section 17 ostensibly precludes a natural parent from proceeding through regular legal channels once such an order has been issued. We find this argument untenable in light of established principles of statutory construction. Rule 307 states only that an interlocutory appeal may be taken from an order terminating parental rights, not that such an appeal must be taken in order to preserve review of the order. A statute is open to construction only where its language requires interpretation or may reasonably be considered ambiguous. (See 73 Am.Jur.2d Statutes sec. 194 (1974).) A construction of a statute, variant from the strict and literal meaning, is justified only upon the ground that it effectuates the intention of the legislature manifestly disclosed by a consideration of the whole context. (Wunderle v. Wunderle (1893), 144 Ill. 40, 62, 33 N.E. 195, error dismissed (1893), 154 U.S. 524, 38 L.Ed. 1078, 14 S.Ct. 1156.) In re Workman (1978), 56 Ill. App.3d 1007, 373 N.E.2d 39, aff'd (1979), 76 Ill.2d 256, 390 N.E.2d 900, cited by petitioners, holds only that section 17 (formerly Ill. Rev. Stat. 1975, ch. 4, par. 9.1-17) precludes an individual from seeking restoration of his or her parental rights by means of a petition to modify an order terminating such rights after the time for appealing the order has expired. There is nothing in the court's opinion to suggest that appeal of such an order must be exercised solely through the provisions of Rule 307. The language of section 17 neither expressly supports this proposition nor implicitly suggests that such was the intent of the legislature. A court may not adopt an interpretation of a statute which would have the effect of making the legislature say what it has not said. (Wunderle v. Wunderle (1893), 144 Ill. 40, 62.) In the instant case, the issue of whether the circuit court's determination of respondent's unfitness as a parent was against the manifest weight of the evidence is properly before us, since the determination of ...


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