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06/16/94 PETITION JOHN DOE AND JANE DOE HUSBAND AND

June 16, 1994

IN RE PETITION OF JOHN DOE AND JANE DOE, HUSBAND AND WIFE, TO ADOPT BABY BOY JANIKOVA (JOHN DOE ET AL., APPELLEES; OTAKAR KIRCHNER, APPELLANT).


Heiple, McMORROW, Miller, Freeman

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

John and Jane Doe filed a petition to adopt a newborn baby boy. The baby's biological mother, Daniella Janikova, executed a consent to have the baby adopted four days after his birth without informing his biological father, Otakar Kirchner, to whom she was not yet married.

The mother told the father that the baby had died, and he did not find out otherwise until 57 days after the birth. The trial court ruled that the father's consent was unnecessary because he did not show sufficient interest in the child during the first 30 days of the child's life. The appellate court affirmed with one Justice Dissenting. (254 Ill. App. 3d 405.) We granted leave to appeal (134 Ill. 2d R. 315) and now reverse.

Otakar and Daniella began living together in the fall of 1989, and Daniella became pregnant in June of 1990. For the first eight months of her pregnancy, Otakar provided for all of her expenses.

In late January 1991, Otakar went to his native Czechoslovakia to attend to his gravely ill grandmother for two weeks. During this time, Daniella received a phone call from Otakar's aunt saying that Otakar had resumed a former romantic relationship with another woman.

Because of this unsettling news, Daniella left their shared apartment, refused to talk with Otakar on his return, and gave birth to the child at a different hospital than where they had originally planned. She gave her consent to the adoption of the child by the Does, telling them and their attorney that she knew who the father was but would not furnish his name. Daniella and her uncle warded off Otakar's persistent inquiries about the child by telling him that the child had died shortly after birth.

Otakar found out that the child was alive and had been placed for adoption 57 days after the child was born. He then began the instant proceedings by filing an appearance contesting the Does' adoption of his son. As already noted, the trial court ruled that Otakar was an unfit parent under section 1 of the Adoption Act (the Act) (750 ILCS 50/1 (West 1992)) because he had not shown a reasonable degree of interest in the child within the first 30 days of his life. Therefore, the father's consent was unnecessary under section 8 of the Act (750 ILCS 50/8 (West 1992)).

The finding that the father had not shown a reasonable degree of interest in the child is not supported by the evidence. In fact, he made various attempts to locate the child, all of which were either frustrated or blocked by the actions of the mother. Further, the mother was aided by the attorney for the adoptive parents, who failed to make any effort to ascertain the name or address of the father despite the fact that the mother indicated she knew who he was. Under the circumstances, the father had no opportunity to discharge any familial duty.

In the opinion below, the appellate court, wholly missing the threshold issue in this case, dwelt on the best interests of the child. Since, however, the father's parental interest was improperly terminated, there was no occasion to reach the factor of the child's best interests. That point should never have been reached and need never have been discussed.

Unfortunately, over three years have elapsed since the birth of the baby who is the subject of these proceedings. To the extent that it is relevant to assign fault in this case, the fault here lies initially with the mother, who fraudulently tried to deprive the father of his rights, and secondly, with the adoptive parents and their attorney, who proceeded with the adoption when they knew that a real father was out there who had been denied knowledge of his baby's existence. When the father entered his appearance in the adoption proceedings 57 days after the baby's birth and demanded his rights as a father, the petitioners should have relinquished the baby at that time. It was their decision to prolong this litigation through a lengthy, and ultimately fruitless, appeal.

The adoption laws of Illinois are neither complex nor difficult of application. Those laws intentionally place the burden of proof on the adoptive parents in establishing both the relinquishment and/or unfitness of the natural parents and, coincidentally, the fitness and the right to adopt of the adoptive parents. In addition, Illinois law requires a good-faith effort to notify the natural parents of the adoption proceedings. These laws are designed to protect natural parents in their preemptive rights to their own children wholly apart from any consideration of the so-called best interests of the child. If it were otherwise, few parents would be secure in the custody of their own children. If best interests of the child were a sufficient qualification to determine child custody, anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children. The law is otherwise and was not complied with in this case.

Accordingly, we reverse.

Appellate court reversed; circuit court reversed.

Justice McMORROW, Concurring:

I agree with the majority's reversal of the trial court's termination of the respondent's parental rights with respect to his son. However, I believe that the importance of the issues presented in this appeal warrants a more comprehensive analysis than that offered by the majority. Consequently, I write separately to state in greater detail the reasons for my Conclusion that the decisions of the trial court and the appellate court were in error.

The facts of this case are set forth in detail in the appellate court proceeding (254 Ill. App. 3d 405) and need not be restated in full at this juncture. The appellate court addressed two issues that are raised in this appeal. As considered by the appellate court, the first issue involves whether the perceived "best interests" of the child to remain with his adoptive parents outweighed any consideration of the parental fitness of the respondent. The second question addressed by the appellate court is whether the trial court properly found that respondent was an unfit father under the Adoption Act (750 ILCS 50/1(D)(l) (West 1992)).

I consider each of these issues seriatim.

I

The appellate court held that the respondent's parental rights could lawfully be abrogated, without regard to whether the respondent is unfit, where the court perceives that such termination of parental rights would be "in the best interest of the child." (See 254 Ill. App. 3d at 410-14.) As a result, the appellate court found that the child's "best interests" could override any consideration of the respondent's parental fitness.

To justify its Conclusion, the appellate court in the present case found it significant that the Illinois legislature has declared in the Adoption Act that the "best interests and welfare of the person to be adopted shall be of paramount consideration in the construction and interpretation of this Act." (750 ILCS 50/20a (West 1992).) I do not believe that this broad policy statement justifies the appellate court's holding.

Notwithstanding this statement of policy, the Adoption Act nevertheless specifically requires that a parent who does not consent to adoption must be found unfit before parental rights may be terminated. (750 ILCS 50/8(a)(1) (West 1992); see also 750 ILCS 50/8(a)(3), (a)(4) (West 1992) (where child is born out of wedlock and is placed for adoption within six months from birth, consent of child's father is not required, if he was informed that he was the father, and if he failed to undertake acts, as specified in the statute, to show that he has a bona fide parental interest in child (e.g., openly living with child, holding himself out as father of child, paying for medical expenses, or visiting with child)).) The Act does not specify, however, that the court may disregard parental fitness when the child is a newborn.

This court has previously held that a broad statement of policy does not authorize the court to act in contravention to or beyond the scope of the specific requirements of a statute. (See In re M.M. (1993), 156 Ill. 2d 53, 67, 189 Ill. Dec. 1, 619 N.E.2d 702 ("liberal construction" and "best interests" under Juvenile Court Act do not confer on trial court the authority to condition guardian's power to consent to adoption).) As a result, the broad statement of policy in the Adoption Act does not support the appellate court's ruling in the instant cause.

In addition, the appellate court's holding is at odds with this court's analysis in In re Adoption of Syck (1990), 138 Ill. 2d 255, 149 Ill. Dec. 710, 562 N.E.2d 174. In Syck, this court reviewed a trial court's determination that the biological mother had not expressed reasonable concern, interest or responsibility for her son, and that the mother was therefore an unfit parent under section 1(D)(b) of the Adoption Act. Under section 1(D)(b), a parent is unfit when he or she has failed to "maintain a reasonable degree of interest, concern or responsibility as to the child's welfare." (750 ILCS 50/1(D)(b) (West 1992).) The language in section 1(D)(b) is very similar to section 1(D)(l), at issue in the present cause, regarding a failure to demonstrate reasonable interest in, concern for, or responsibility for a newborn child (see 750 ILCS 50/1(D)(l) (West 1992) (parent unfit where parent "failed to demonstrate a reasonable degree of interest, concern or responsibility as to the welfare of a new born child during the first 30 days after its birth")).

In Syck, this court held that, where it is alleged that the biological parent is unfit because of a failure to show a reasonable degree of interest in, concern, or responsibility for the child, the court must determine the parent's unfitness before the ...


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