Appeal from the Circuit Court of Rock Island County; the Hon.
David DeDoncker and the Hon. Robert W. Castendyck, Judges,
PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Respondent-appellant Janet Golden appeals from the denial by the circuit court of Rock Island County of her motion to dismiss or for summary judgment on the grounds that section 5-9(2) of the Juvenile Court Act and section 1(D) of the Adoption Act (Ill. Rev. Stat. 1983, ch. 37, par. 705-9(2); Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)), unconstitutionally deprive her of fundamental residual non-custodial parental rights. The People appeal the trial court's grant of visitation rights to the maternal grandmother of T.G., D.G. and D.G. subsequent to entry of its order terminating the parental relationship of the mother.
Janet Golden is the natural mother of D.G., T.G. and D.G.T.G. became a ward of the court after being adjudicated abused in April of 1983 and her brothers, D.G. and D.G., became wards of the court after being adjudicated neglected in January of 1984. The children subsequently were placed in foster care and Janet Golden was permitted to exercise her non-custodial rights of visitation with the children until entry of the termination order in the instant cause.
Supplemental petitions to terminate parental rights to all three children were filed in the circuit court of Rock Island County on May 20, 1985. The petitions alleged Janet Golden and the childrens' putative father, Jimmy Tatem, to be "unfit persons" as defined in section 1(D) of the Adoption Act. The statutory grounds of unfitness which were alleged against Janet were:
"(m) failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor under Section 2-4 or dependent minor under Section 2-5 of the Juvenile Court Act." (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(m).)
"(p) inability to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness or mental retardation as defined in Section 1-116 of the Mental Health and Developmental Disabilities Code, or developmental disability as defined in Section 1-106 of that Code, and there is sufficient justification to believe that such inability to discharge parental responsibilities shall extend beyond a reasonable time period." (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(p).)
Jimmy Tatem was alleged to have abandoned the children pursuant to section 1(D)(a) of the Adoption Act, "abandonment of the child." Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(a).
Hearings on the supplemental petitions were held in July and August of 1985. The testimony of four caseworkers and three homemakers, in addition to a clinical psychologist's report, was presented which evidenced that Janet was unable to protect her children, adequately feed them and, in general, provide for their proper care. Further testimony evidenced a history of repeated efforts to assist her in developing adequate parenting skills through remedial parenting programs and classes offered by the Department of Children and Family Services and Catholic Social Services. These efforts were revealed to be unavailing due to her lack of cooperation in utilizing the programs and services offered her. The clinical psychologist's report indicated that Janet Golden scores in the mild-retarded range of estimated intelligence.
At the close of the hearings, the trial court entered its order terminating any and all parental rights and responsibilities, custody and/or guardianship of Janet Golden and Jimmy Tatem to their children. The Guardianship Administrator of the Illinois Department of Children and Family Services was named in the order as the guardian of the children with power to consent to their adoption. Following entry of its termination and appointment of guardian order, the trial court heard the maternal grandmother's petition requesting visitation rights with the three Golden children. After a hearing on the petition, the trial court granted visitation rights to the maternal grandmother.
Two questions of law are presented for review in Janet Golden's appeal. First, whether the Illinois statutory scheme providing for termination of parental rights is unconstitutionally broad because it deprives parents found incapable of maintaining custody of their children of fundamental residual non-custodial parental rights, including visitation. Second, whether the trial court may property grant visitation rights to the natural relatives of children whose parents' relationship, rights and responsibilities have been terminated pursuant to the statutory scheme.
Janet Golden contends that the statutory scheme of section 5-9(2) of the Juvenile Court Act and section 1(D) of the Adoption Act (Ill. Rev. Stat. 1983, ch. 37, par. 705-9(2); Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)), is unconstitutional because it fails to incorporate less restrictive alternatives to a complete termination of parental rights in situations where (1) a parent is not unfit to exercise non-custodial rights, and (2) the exercise of such rights would not be against the best interests of the child.
Section 5-9(2) of the Juvenile Court Act requires the court to find it to be in the "best interests" of a minor who has been made a ward of the court, or a minor who has been surrendered for adoption, that a guardian of the person be appointed and authorized to consent to adoption. If the court so finds, it may empower the appointed guardian to appear on behalf of the minor in any proceedings for adoption and to consent to the adoption. Once the guardian is empowered by court order to consent to an adoption, all custodial and non-custodial legal rights and responsibilities of the parents are terminated. (Ill. Rev. Stat. 1985, ch. 37, par. 705-9(2).) Before the court may appoint a guardian with the power to consent to adoption, non-consenting parents must be found unfit as defined in section 1(D) of the Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)).
• 1 Our courts have long recognized the inherent right of parents to the society and custody of their children and have held that such rights should not be abrogated without compelling reasons. (Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208; In re Adoption of Vienup (1976), 37 Ill. App.3d 217, 345 N.E.2d 742; In re Grant (1975), 29 Ill. App.3d 731, 331 N.E.2d 219.) The statutory scheme of the Juvenile Court Act initially divides the bundle of parental rights and responsibilities into two substantive parts. Section 1-16 of this Act defines residual parental rights and responsibilities to be:
"those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation, the right to consent to adoption, the right to determine the minor's religious affiliation, and the responsibility for his support." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 37, par. 701-16.
The rationale underlying this initial division of parental rights is to provide a statutory mechanism whereby a parent whose child has been adjudged a ward of the court may continue a relationship with the child while he attempts to remedy the conditions which may have led to the child's removal from parental custody. Section 5-8(3) of the Juvenile Court Act establishes procedures whereby the parents of a minor adjudged a ward of the court may regain custody when these conditions are remedied. Presumptively, until proceedings under section ...