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05/08/89 Michael L. Johnson Et Al., v. Carrie Burnett

May 8, 1989

MICHAEL L. JOHNSON ET AL., PETITIONERS

v.

CARRIE BURNETT, A MINOR, ET AL., RESPONDENTS-APPELLEES (DANIEL D. GABEL ET AL., INTERVENORS-APPELLANTS). --

DANIEL E. GABEL ET AL., PETITIONERS-APPELLANTS,

v.

CARRIE ANN BURNETT, A MINOR, ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

538 N.E.2d 892, 182 Ill. App. 3d 574, 131 Ill. Dec. 517 1989.IL.692

Appeal from the Circuit Court of Hancock County; the Hon. Richard C. Ripple, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Michael and Adalee Johnson filed a petition in Hancock County seeking to adopt their niece, with the parents' consent, Hancock County case No. 87 -- F -- 62. Daniel and Nancy Gabel, the minor's foster parents, filed a petition to intervene. They also filed their own petition to adopt the minor, Hancock County case No. 88 -- F -- 3. The circuit court, pursuant to motions, dismissed the petition to intervene and the Gabels' adoption petition. The Gabels now appeal these determinations. We affirm.

On December 29, 1987, petitioners Michael and Adalee Johnson filed a petition seeking to adopt Adalee's niece, C.B. The petition alleged that C.B. was born on July 8, 1983, and had been in foster placement with the Department of Children and Family Services , which had been appointed C.B.'s guardian without the power to consent to an adoption. The petition also included final and irrevocable consents to adoption signed by both parents on that day. The consents specifically agreed to adoption by petitioners.

On January 21, 1988, intervenors Daniel and Nancy Gabel filed a petition asking to intervene in this case. The petition alleged that they had been the foster parents for C.B. since February 8, 1986. They also alleged they had spoken with DCFS concerning their desire to adopt C.B. They asked to be allowed to intervene and to consolidate this case with the adoption petition they filed.

On the same day, the Gabels filed their own adoption petition alleging they should be allowed to adopt C.B. because her parents had surrendered their parental rights, and the parents were unfit, requiring their parental rights be terminated.

Ultimately, on June 22, 1988, the court entered an order denying the Gabels' petition to intervene and dismissing the Gabels' adoption petition. The Gabels appeal these determinations, in case Nos. 3 -- 88 -- 0489 and 3 -- 88 -- 0490, respectively. These cases have been consolidated for appeal.

Initially, we observe that no appellee brief has been filed in this case. While it is not our position to serve as an advocate for the appellee, we find the ends of Justice require we should determine the merits of the appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

The trial court, in dismissing the Gabels' adoption petition, found that the Adoption Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.) does not authorize the filing of an adoption petition by a nonrelated party prior to the child becoming available for adoption. The court further found that C.B. was not available for adoption, as that phrase is defined. The Gabels maintain these determinations are incorrect. We disagree with the Gabels.

Adoption proceedings are unknown at common law and are solely the creation of statutory enactment. (Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 436-37, 369 N.E.2d 858, 866; Musselman v. Paragnik (1925), 317 Ill. 597, 599, 148 N.E. 312, 312.) Thus, it is incumbent upon the legislature to prescribe the conditions and procedures that must be followed in creating the relationship of parent and child between persons not so related by nature. (Regenold, 68 Ill. 2d at 437, 369 N.E.2d at 866.) Here, the clear language of the Act supports the court's decision.

Section 5 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1507) provides that a proceeding to adopt a child shall be commenced with the filing of a petition. The section then sets forth different requirements for the petition, depending upon whether the child to be adopted is related. The Act defines a related child as standing in the following relationship to, at least, one of the petitioners: parent, grandparent, brother, sister, stepparent, stepgrandparent, stepbrother, stepsister, uncle, aunt, great-uncle, great-aunt, or cousin of ...


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