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02/28/95 PETITION OTAKAR KIRCHNER NATURAL FATHER

February 28, 1995

IN RE PETITION OF OTAKAR KIRCHNER, NATURAL FATHER, FOR A WRIT OF HABEAS CORPUS ORDERING JOHN AND JANE DOE, CUSTODIANS OF HIS SON, RICHARD, TO DELIVER RICHARD TO HIM (OTAKAR KIRCHNER, PETITIONER; JOHN AND JANE DOE ET AL., RESPONDENTS).


The Honorable Justice Miller, dissenting. Justice McMORROW, dissenting.

PER CURIAM: Otakar Kirchner was granted leave to file with this court a complaint for writ of habeas corpus on behalf of his son on November 15, 1994. The petition was premised upon this court's June 16, 1994, opinion invalidating the Does' adoption of Kirchner's son, herein identified as Richard. (In re Petition of Doe (1994), 159 Ill. 2d 347, 202 Ill. Dec. 535, 638 N.E.2d 181.) The petition requested that this court order the Does to surrender custody of Richard to Kirchner.

Oral arguments on the propriety of the writ and the Does' standing to seek a separate custody hearing were held on January 25, 1995. On that same day following oral arguments, this court concluded that, under the circumstances of this case, the Does did not have standing under the law to request a custody hearing in the trial court. Consequently, we ordered the writ of habeas corpus to issue immediately in order to bring this protracted litigation to an end and to prevent any further delay in the process of uniting father and son. Our opinion follows.

HISTORY OF THE CASE

Otakar Kirchner (Otto) and Daniella Janikova, both Czechoslovakian immigrants, started dating in September of 1989 and began living together later that year. Seven months later, Daniella became pregnant. She and Otto continued living together and planned to get married. They obtained two marriage licenses towards this end, though they did not marry prior to the birth of their child, now commonly known as "Baby Richard." Shortly before Richard's birth, Otto returned to his native Czechoslovakia for two weeks to visit a dying relative. While he was away, a relative from Czechoslovakia telephoned Daniella and told her that Otto had resumed a relationship there with a former girlfriend. Distraught upon hearing this report, Daniella tore up their current marriage license, gathered her belongings and moved into a women's shelter because she had nowhere else to go.

While living at the shelter, and before Otto returned from his trip abroad, Daniella's instructor at the beauty school she was attending encouraged her to put the baby up for adoption. This instructor phoned her lawyer, Ed Shapiro, who informed his employee, Mrs. Doe, that there was a baby available for adoption. The next day, the Does contacted Daniella about the adoption. The day after that, the Does had an attorney named Tom Panichi call Daniella and commence the adoption proceedings. Through Panichi, the private adoption of not-yet-born Richard was arranged between Daniella and the Does.

At all relevant times, both the Does' lawyer and the Does were fully aware that Daniella knew who the father was and that she intended to tell the father that the child had died at birth. Indeed, according to the testimony of the Does' lawyer, Panichi, Daniella told him that Otto would not consent to the adoption and asked him whether he knew how to fake a death certificate, to which he responded that he did not know how this could be done and that he could not be a party to obtaining a fake death certificate.

Rather than insist that Daniella disclose the name of the father so that he could be properly notified and his consent to the adoption procured, the Does and their attorney acquiesced in Daniella's scheme to tell Otto that his child had died at birth, even arranging for Daniella to give birth in a different hospital than she and Otto had originally planned. Indeed, attorney Panichi testified that he and the Does believed that "she was going to be able to control [Otto] from coming forward by still secreting the birth and the whereabouts [of the birth]."

Moreover, in his "Affidavit For Service By Publication," Panichi falsely stated that the father "upon due inquiry cannot be found so that process cannot be served upon defendant." The Does continued this subterfuge in their adoption petition filed with the circuit court, which falsely alleged under oath that the father was "unknown." Curiously, the record is devoid of any effort by the Does' lawyer to contact Daniella's beauty school instructor or any of Daniella's friends or relatives in an attempt to obtain Otto's identity. Nor was any attempt made to learn Otto's name by checking out the address that Daniella and Otto had shared for over a year prior to Richard's birth and where Otto still lived. In short, no reasonable inquiry was made.

Unsuspecting, Otto returned to Chicago prior to Daniella's due date, whereupon he discovered that Daniella had left him. He learned through friends that she had gone to a women's shelter. He and Daniella then went through a period of reconciliation, during which time she did not inform him that she had arranged to place their child for adoption. When the birth took place on March 16, 1991, Otto's efforts to contact Daniella were rebuffed. He was told by Daniella's friends and relatives that his child had died at birth. We note that Otto and Daniella married in September of 1991.

In the weeks immediately following the birth, Otto, suspicious of the story that his child had died, attempted to discover the truth. In considering Otto's activities in the first 30 days after Richard's birth, the trial court found that Otto had called and visited the hospital in which he and Daniella had planned to have their baby, as well as other hospitals, but could not locate any record of his child being born. The trial court also found that Otto had rooted through the garbage cans outside Daniella's uncle's house where she was staying in an attempt to discover whether there were any diapers or other physical evidence which would indicate that his baby was alive.

On May 12, 1991, or 57 days after the birth of Richard, Daniella confessed to Otto that she had given birth to a baby boy and had placed him in an adoptive home. At this juncture, Otto commenced his efforts to gain custody of his son. He retained a lawyer to help him. On June 6, 1991, Otto's lawyer entered an appearance on Otto's behalf in the subject adoption proceeding.

We note that at this point the adoption proceedings were rendered wholly defective. On June 6, 1991, the Does had both a legal and moral duty to surrender Richard to the custody of his father. Richard was then less than three months of age. Instead, the Does selfishly clung to the custody of Richard. They have prolonged these painful proceedings to the child's fourth birthday and have denied Otto any access to his own son.

After protracted procedural posturing on the part of the Does, a hearing was finally had on Otto's petition to defeat the adoption wherein it was established that neither had he been notified nor had he consented to the adoption as required under the Adoption Act. The Does subsequently petitioned the court to find that Otto's parental rights should be terminated because he was unfit, thus obviating the need for his consent.

After a hearing, the trial court found that Otto was unfit pursuant to section 1(D)(l) of the Adoption Act, which provides that an unwed father is unfit where it is found by clear and convincing evidence that he has "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." (750 ILCS 50/1(D)(l), 8(a)(1) (West 1992).) Though the trial court found that Otto, in an attempt to learn the truth about Richard, called various hospitals and had sorted through Daniella's garbage cans in his search for evidence, all in the first 30 days after Richard's birth, the trial court did not deem this sufficient to show interest under section 8(a)(1). Rather, the court concluded, in essence, that Otto's efforts were insufficient because he did not contact a lawyer in that 30-day period. It was on this untenable basis that the trial court ruled that Otto was unfit.

Otto filed a notice of appeal. Fifteen months later, the appellate court, per Justice Rizzi, affirmed the trial court in a divided opinion (In re Petition of Doe (1993), 254 Ill. App. 3d 405, 194 Ill. Dec. 311, 627 N.E.2d 648 (Tully, P.J., dissenting)). By the time the appellate opinion was filed, Richard was 2 years of age.

In erroneously affirming the trial court, the appellate court's majority opinion concentrated its discussion on the best-interests-of-the-child standard, addressing only secondarily the sole issue on appeal, namely, whether the trial court's ruling that Otto was unfit was against the manifest weight of the evidence. Having lost at the appellate level, Otto then appealed to this court, which, in a unanimous decision on June 16, 1994, reversed the trial and appellate courts and vacated the adoption, holding that Otto was fit under section 8(a)(1) of the Adoption Act and, thus, that his parental rights had never been properly terminated. In re Petition of Doe, 159 Ill. 2d 347, 202 Ill. Dec. 535, 638 N.E.2d 181.

In vacating the adoption, this court noted that a child is not available for adoption until it has been validly determined that the rights of his parents have been properly terminated. As this court held in In re Adoption of Syck (1990), 138 Ill. 2d 255, 276-78, 149 Ill. Dec. 710, 562 N.E.2d 174, when ruling on parental unfitness, a court cannot consider the child's best interests, since the child's welfare is not relevant in judging the fitness of the natural parent. Only after the parent has been found by clear and convincing evidence to be unfit can the court proceed to consider the child's best interests and whether those interests would be served if the child were adopted by the petitioners. Though we note that the best-interests-of-the-child standard is not to be denigrated, we reiterate that this standard is never triggered until after it has been validly determined that a child is available for adoption.

Under Illinois law, parents may be divested of parental rights either through their voluntary consent or involuntarily due to a finding of abuse, abandonment, neglect or unfitness by clear and convincing evidence. (See 750 ILCS 50/8, 11 (West 1992).) The adoption laws of Illinois are neither complex nor difficult of application. These laws intentionally place the burden of proof on the adoptive parents. In addition, Illinois law requires a good-faith effort to notify the natural father of the adoption proceedings. (750 ILCS 50/7 (West 1992).) We call this due process of law. In the case at hand, the Does and their lawyer knew that a real father existed whose name the birth mother knew. They also knew that the father, if contacted, would not consent to the adoption. This may explain their lack of effort to learn the name of the father and to give him notice. Under these circumstances, the Does proceeded with Richard's adoption at their peril.

This court then observed that Otto, as the natural father of Richard, was statutorily entitled to receive notice of the adoption and statutorily required to consent in order for the adoption to be valid, absent a finding of unfitness. Examining the unfitness finding of the trial court, we concluded that the trial court's finding was against the manifest weight of the evidence. As the trial court found, Otto searched the garbage cans of the home where Daniella was living for physical evidence of his baby and called a series of hospitals in an attempt to discover whether his child had really died at birth, during the first 30 days after Richard was born notwithstanding that he had been told his child was dead. Through lies, deceit and subterfuge, Otto was denied any opportunity to establish any involvement with his child during the first 57 days of his life. His activities, however, showed an intense interest and concern for both the truth and for his child. He did what he could. Thus, the trial court's ruling that Otto had failed to show a sufficient interest in his child within the first 30 days after the child's birth was against the manifest weight of the evidence.

After this court's unanimous vacation of the adoption and our denial of the Does' petition for rehearing, we stayed the mandate at the Does' request pending their application for a writ of certiorari to the United States Supreme Court. The mandate of this court vacating the adoption issued on November 9, 1994, after the United States Supreme Court's denial of certiorari on November 7, 1994.

The Does, however, did not return Richard to Otto upon the issuance of this court's mandate. Subsequent to this court's opinion vacating the adoption, the General Assembly enacted an amendment to the Adoption Act which specified that it was to take effect immediately and apply to all cases pending at the time of the effective date, which was July 3, 1994. This new legislation, enacted at the urging of Governor Edgar, requires that upon the vacation of an adoption proceeding a custody hearing take place in order to determine who should have custody of the child based upon the child's best interests.

Armed with this new amendment to the Adoption Act, as well as their interpretation of section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/601(b)(2) (West 1992)), the Does then petitioned for a custody hearing in the circuit court of Cook County. Richard's guardian ad litem joined that suit on Richard's behalf.

At this juncture, Otto filed the instant petition for writ of habeas corpus with our court, in essence arguing that upon the vacatur of Richard's adoption, he was legally vested with Richard's custody and that the Does and Richard's guardian ad litem were without standing to seek custody under either the Marriage and Dissolution of Marriage Act or the amendments to the Adoption Act. Insofar as Otto challenged the constitutionality of the Adoption Act, the Illinois Attorney General requested and was granted leave to intervene in support of the constitutionality of the amendment.

Oral arguments on the propriety of the writ of habeas corpus were held on January 25, 1995. On the same day and following oral arguments, this court concluded that the Does did not legally have standing to request a custody hearing. Consequently, we ordered the writ of habeas corpus to issue immediately, with the opinion to follow, in order to bring this protracted litigation to a speedy and final conclusion.

JURISDICTION TO ENTERTAIN THE "" PETITION

Initially, it must be determined whether Otto has standing to act on behalf of his son to file the instant habeas corpus petition. Contrary to the suggestion of the public guardian, the court-ordered appointment of a guardian ad litem does not divest Otto of his right to act on his son's behalf in filing a habeas petition. (See People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417; Cormack v. Marshall (1904), 211 Ill. 519, 71 N.E. 1077.) Indeed, insofar as this court held in its June 16, 1994, opinion that Otto expressed sufficient interest in his son such that his parental rights had not legally been terminated, no one, not even Richard's guardian ad litem, stands in a better position than Otto to represent the interests of his son.

It must likewise be decided whether a writ of habeas corpus is appropriate in cases where the would-be adoptive parents attempt to retain custody of a child notwithstanding the invalidation of the adoption by the courts. This court has jurisdiction to entertain writs of habeas corpus, generally, pursuant to article VI, section 4(a), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, ยง 4(a)), as well as Supreme Court Rule 381(a) (134 Ill. 2d R. 381(a)). Moreover, historically, the writ was employed in instances where the custody of a child was at issue and the petitioner had no other legal avenue by which to seek custody of the child. See Edwards, 42 Ill. 2d 201, 247 N.E.2d 417; Cormack, 211 Ill. 519, 71 N.E. 1077.

The Does argue that Otto should not be allowed to seek the writ because the vacation of the adoption does not require that custody revert to Otto and, further, that section 601(b) of the Marriage and Dissolution of Marriage Act, as well as the amendments to the Adoption Act (Pub. Act 88-550, eff. July 3, 1994 (adding 750 ILCS 50/20(b))) which became effective while the Does' petition for rehearing was pending in this court, take precedence over these proceedings. We disagree. For the reasons expressed later in this opinion, we find that neither the Marriage and Dissolution of Marriage Act nor the recent Adoption Act amendments apply to the instant case. As a consequence, Otto has properly filed the instant writ of habeas corpus which this court has jurisdiction to grant pursuant to article VI, section 4(a), of the Illinois Constitution of 1970, as well as Supreme Court Rule 381(a).

The Does further argue, as does the public guardian, that Otto's habeas petition is improper because Richard is not being restrained in his liberty against his will. In support, they note that he is in the custody of the persons who have raised him since birth and, further, that his guardian ad litem, whose purpose is to safeguard Richard's interests, does not object to the Does' continued custody of Richard. However, the self-serving nature of this argument is readily apparent. As we have observed above, Otto, as Richard's natural father whose rights have not been terminated, has equal if not greater standing to assert what is in his son's best interests. To the extent that he disagrees with Richard's guardian ad litem, not to mention Richard's current custodians, Otto speaks for Richard and is entitled to file a writ of habeas corpus on Richard's behalf.

Finally, noting that under Supreme Court Rule 381(a) this court does not have jurisdiction to entertain habeas petitions where factual questions must be decided, the Does argue that this court does not have jurisdiction because granting the instant habeas petition requires us to weigh facts to determine where Richard's best interests lie in awarding custody. In support, the Does cite Sullivan v. People ex rel. Heeney (1906), 224 Ill. 468, 477, 79 N.E. 695, for the proposition that upon the vacation of an adoption there must be a best-interests hearing to determine who should have custody of the improperly adopted child. The Does, however, grossly misread Sullivan on this point.

In Sullivan, this court vacated the adoption because the married father did not have notice of the adoption of his daughter. (Sullivan, 224 Ill. at 472.) However, because there was evidence that the father had abandoned his wife and child for six years prior to the adoption, the court remanded the case to the trial court to determine whether the father was unfit. (Sullivan, 224 Ill. at 477.) In so doing, the court noted that the best interests of the child might require that her father not be vested with her custody upon the vacation of the adoption. Sullivan, 224 Ill. at 477.

In claiming that Sullivan likewise requires a best-interests hearing in the instant case, the Does take the best-interests language of Sullivan out of context. Sullivan explicitly stated that upon the vacation of an adoption, custody of the child cannot remain with the would-be adoptive parent absent a finding that the natural parent is unfit. (Sullivan, 224 Ill. at 476.) Though the Sullivan court spoke in terms of the best interests of the child and remanded the matter to the trial court for further proceedings, the proceeding ordered was not a best-interests hearing but, rather, a fitness hearing. Indeed, the Sullivan court emphatically stated that the child's father's rights were superior to the right of any other person in the event that he were subsequently adjudicated fit in the remanded proceedings. (Sullivan, 224 Ill. at 476-77.) Because we have already ruled that Otto was "fit" as defined by the Adoption Act, Otto's rights are similarly "superior to the right of any other person and a best-interests hearing would thus be improper.

The Does also cite Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613, for the proposition that Otto must participate in a best-interests hearing and, thus, that a father can be divested of his right to the care, custody and control of his child without a finding of unfitness upon the vacation of an adoption where doing so is in the child's best interests. The Giacopelli mother and father were married and conceived a child when the mother was 44 years old. (Giacopelli, 16 Ill. 2d at 558.) The mother travelled from Missouri, where she and her husband lived, to visit a relative in Illinois. (Giacopelli, 16 Ill. 2d at 558.) While in Peoria, Illinois, she contacted the Florence Crittenton Home for unwed mothers and arranged to place the baby with an adoptive family. Upon the child's birth, the circuit court entered a finding of dependency and appointed a guardian, who subsequently placed the child with a family that intended to adopt the child. (Giacopelli, 16 Ill. 2d at 560-61.) When the father found out about this several months later, he successfully had the finding of dependency vacated for lack of notice and then sought the return of his child. (Giacopelli, 16 Ill. 2d at 562.) When the adoptive parents refused, the father filed a habeas petition seeking an order that his child be delivered to his care, custody and control.

Upon consideration of the advantages of the home in which the child had been placed, the trial court found that it would be in the child's best interests if she were not returned to her father. (Giacopelli, 16 Ill. 2d at 563.) The appellate court reversed, noting that there had been no finding of unfitness and that a married father cannot be denied the care, custody and control of his child without first finding him unfit. (Giacopelli, 16 Ill. 2d at 563.) This court, however, reversed the appellate court and held that a married father could be denied his rights to the care, custody and control of his child without a finding of unfitness if this is in the child's best interests.

Initially, we note that the holding of Giacopelli is clearly unconstitutional. Married parents cannot be deprived of the care, custody and control of their child without a prior showing of unfitness for the sole reason that doing so is thought to be in the child's best interests. (Quilloin v. Walcott (1978), 434 U.S. 246, 255, 54 L. Ed. 2d 511, 520, 98 S. Ct. 549, 555, citing Smith v. Organization of Foster Families for Equality & Reform (1977), 431 U.S. 816, 862-63, 53 L. Ed. 2d 14, 46, 97 S. Ct. 2094, 2119 (Stewart, J., concurring in the judgment, joined by Burger, C.J., and Rehnquist, J.).) Rather, unfitness must first be found. (Quilloin, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549.) Thus, because Giacopelli dispenses with the need to find unfitness, it stands as an unconstitutional remnant of a bygone era and has no precedential value. The Does' contention that Giacopelli somehow requires that Otto be subjected to a best-interests hearing without first being found unfit is therefore meritless. *fn1

Moreover, the reasoning in Giacopelli does not comport with this court's more recent pronouncements regarding custody law and the difference between custody proceedings and adoption proceedings. In In re Custody of Townsend (1981), 86 Ill. 2d 502, 508-09, 56 Ill. Dec. 685, 427 N.E.2d 1231, this court held:

"The superior-right doctrine or presumption in favor of the natural parent, however, need not always be applied automatically in conjunction with the best-interests-of-the-child standard. For example, in a dissolution-of-marriage proceeding, the superior-right doctrine will not be applied where both the natural parents are seeking custody of their children. Instead each starts out on equal footing, with the court ultimately determining custody 'in accordance with the best interest of the child' [citation]. Under the Adoption Act [citation], on the other hand, both the superior-right doctrine [citation] and the best-interests standard are applied [citation], though in this setting, a court, before permitting adoption by a third party, may not terminate all parental rights, including custody, unless the parent or parents consent or are found to be 'unfit.'" (Emphasis added.)

From Townsend it follows that, to the extent Giacopelli allows the termination of parental rights in adoption proceedings without a finding of unfitness, it is not the law of Illinois. See Robinson v. Neubauer (1967), 79 Ill. App. 3d 362, 366-67 (following the concurrence in Giacopelli and not the majority).

Although Townsend cites to Giacopelli and further finds that the father at issue need not be found unfit to award custody of his child to a third party, it does so pursuant to the Probate Act of 1975, which is only triggered upon the death of a parent, a situation we are not confronted with in the instant case. Unlike the Adoption Act, the Probate Act does not statutorily mandate a finding of unfitness as a condition precedent to divesting a parent of custody. (See 755 ILCS 5/11-7 (West 1992); see also People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417 (a probate case deciding custody based upon the best interests of the child without a prior finding of unfitness).) The best-interests standard employed pursuant to the Probate Act in Townsend and Edwards is thus inapplicable to the case at bar both because this case does not involve a deceased parent and because Otto's cause of action arises out of the Adoption Act, which mandates a finding of unfitness before parental rights may be terminated. Moreover, we note the extremely adverse public policy ramifications of holding that parents and their offspring can be deprived of the care, custody and control of the natural parent through the deceitful circumvention of the safeguards afforded natural parents in the Adoption Act: namely, the right to notice and the absolute right to veto the adoption absent a finding of unfitness.

The sole issue, then, in the instant habeas proceeding is the legal question of the Does' asserted standing to request a custody hearing under either section 601(b)(2) of the Marriage and Dissolution of Marriage Act (750 ILCS 5/601(b)(2) (West 1992)) or the amendment to the Adoption Act (Pub. Act 88-550, eff. July 3, 1994). Because we find, as a matter of law, that neither of these statutes apply in the instant case, there are no further factual issues to be determined. Thus, the issuance of the writ of habeas corpus by this court is a proper and just procedure.

STANDING UNDER SECTION 601(b)(2) OF THE

ILLINOIS MARRIAGE AND DISSOLUTION OF MARRIAGE ACT

Our decision of June 16, 1994, unanimously held that Otto had exhibited sufficient interest in his child during the first 30 days of his life and that the trial court had thus erred in finding him unfit pursuant to section 8(a)(1) of the Adoption Act. Insofar as this court denied the petition for rehearing in this case on July 12, 1994, the doctrine of res judicata precludes reconsideration of these conclusions in determining the appropriate outcome in the instant habeas corpus proceeding. Rather, what must be determined is the effect of this court's vacation of the Does' invalid adoption of Richard.

The Does assert that they have standing under section 601(b)(2) of the Marriage and Dissolution of Marriage Act to seek a custody hearing to determine who should have custody of Otto's son now that the adoption has been vacated. We disagree.

Initially, the Does argue that Otto has waived the right to object to their lack of standing to request a hearing under section 601(b)(2) because of his failure to make a timely objection to their lack of standing. The Does point out that Otto never filed an affirmative defense of lack of standing in his response to the Does' section 601(b)(2) motion filed with the circuit court of Cook County on December 23, 1991, but, rather, raised it for the first time in the instant habeas proceedings, over three years later. This argument, however, is meritless. The Does' section 601(b)(2) petition of 1991 was filed together with their amended petition to adopt Richard. When the circuit court erroneously approved the adoption in May of 1992, thus terminating Otto's parental rights, the Does' section 601(b)(2) petition for a custody hearing was rendered a nullity insofar as they had been awarded custody of Richard under the Adoption Act. Indeed, the Does' filing of a second section 601(b)(2) petition in November of 1994 evidences that even they do not take seriously their contention that their 1991 petition is still pending.

Though our decision is based solely on Illinois law, in determining what role section 601(b)(2) of the Marriage and Dissolution of Marriage Act plays in the instant case we commence with a review of the rights afforded unwed fathers by our Federal Constitution. At stake here is the interest that a natural parent has in the care, custody and control of his or her child, an interest that has long been recognized and afforded constitutional protection. In a series of cases considering the rights of unwed fathers vis-a-vis their offspring, the United States Supreme Court has indicated that while biology alone is insufficient to vest an unwed father with the same rights as the child's mother, if the unwed father grasps the opportunity that this biological link provides, accepts responsibility for the child, and develops a relationship with the child, the father enjoys the same constitutional due process rights afforded married fathers and birth mothers. (Michael H. v. Gerald D. (1989), 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333; Lehr v. Robertson (1983), 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985; Caban v. Mohammed (1979), 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760; Quilloin v. Walcott (1978), 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549; Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208.) Of course, where an unwed father fails to grasp this opportunity, the father is not vested with these due process rights.

None of these United States Supreme Court decisions, however, discuss an unwed father's rights regarding an infant placed for adoption at birth who seeks to raise his child but is prevented from doing so through deception. We find that the rationale underlying the Court's opinions dealing with the rights of unwed fathers thus far suggests that fathers such as Otto, whose parental rights are not properly terminated and who, through deceit, are kept from assuming responsibility for and developing a relationship with their children, are entitled to the same due process rights as fathers who actually are given an opportunity and do develop this relationship. To hold otherwise would be to encourage and reward deceit similar to that which occurred in the instant case.

Moreover, without regard to Federal constitutional jurisprudence, Illinois law requires that Otto be granted the care, custody and control of his son. The Adoption Act (750 ILCS 50/1 et seq. (West 1992)) creates a framework which acknowledges the due process rights of unwed fathers and balances their rights to the care, custody and control of their children with the need to facilitate orderly and final adoptions which are not subject to collateral attack. Toward this end, the Adoption Act provides that where the birth mother is not married to the father, his consent to the adoption is essential except where he has been found unfit by clear and convincing evidence. (750 ILCS 50/8(a)(1) (West 1992).) Among the statutory factors for finding unfitness, and the one asserted to be applicable to the instant case, is the provision finding unfitness where the father fails 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." 750 ILCS 50/1(D)(l), 8(a)(1) (West 1992).

Under the Adoption Act effective at the time this court invalidated the Does' adoption of Richard, an unwed father who was both fit and willing to take on the responsibility of raising his child had a right superior to all others except the birth mother to the care, custody and control of his child. Moreover, such a fit and willing father had the absolute right to block the adoption of his child, notwithstanding the birth mother's desire to place the child with an adoptive family. (See 750 ILCS 50/8(a)(1) (West 1992) (requiring that consents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court, by clear and convincing evidence *** to be an unfit person as defined in Section 1 of this Act").) In this manner, the statute safeguards the rights of unwed fathers who come forward and are willing and fit to raise their children.

The Adoption Act does not explicitly address the rights of all the parties to a failed adoption. However, the procedural safeguards afforded fathers by the Adoption Act militate that fathers be placed in the same legal position after the vacation of an invalid adoption as they were in prior to the invalid adoption's approval. As already discussed, the Adoption Act requires that an unwed father either consent to the adoption of his child or be found unfit by clear and convincing evidence before a valid adoption can take place.

Now that the invalid adoption of Richard has been vacated, the Does seek to use the Marriage and Dissolution of Marriage Act to obtain a custody hearing. However, it follows from the Adoption Act that the Does cannot, once an invalid adoption is vacated, attempt to circumvent the rights afforded fathers under the Adoption Act by seeking a custody hearing under the Marriage and Dissolution of Marriage Act, which, unlike the Adoption Act, could result in a father's being divested of his right to the care, custody and control of his child without being found unfit by clear and convincing evidence.

This construction is wholly consistent with the purpose of the Adoption Act, which balances the age-old parental-preference doctrine that a child is better off being raised by his or her natural parent(s) with the need to facilitate legal adoptions. Thus, we hold that where an unwed father is fit and willing to develop a relationship with and raise his child, but is prevented from doing so through deceit and an invalid adoption proceeding, that father is entitled to the care, custody and control of his child upon the subsequent vacatur of the invalid adoption. Under these facts, we hold that a section 601(b)(2) hearing under the Marriage and Dissolution of Marriage Act would be improper because it would contravene the safeguards afforded unwed fathers in the Adoption Act.

Moreover, we note that the Does dependence on section 601(b)(2), even if it did not improperly attempt to circumvent the procedural safeguards of the Adoption Act, is otherwise misplaced. Our conclusion that the Does are not entitled to a section 601(b)(2) custody hearing depends not only upon our determination that the vacation of an adoption puts all the parties in the same position that they were in prior to the vacatur of the adoption, but also upon a thoughtful reading and analysis of section 601(b)(2) itself.

The superior rights of the natural parents to the care, custody and control of their child is the law of the land and is also embodied in Illinois statutory law. (See In re Custody of Peterson (1986), 112 Ill. 2d 48, 51, 96 Ill. Dec. 690, 491 N.E.2d 1150; In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 397-98, 73 Ill. Dec. 10, 453 N.E.2d 835; In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 543, 65 Ill. Dec. 181, 440 N.E.2d 1036.) Unless a parent consents or is adjudged unfit, a child may not be placed in the custody of a nonparent. (Peterson, 112 Ill. 2d 48, 96 Ill. Dec. 690, 491 N.E.2d 1150.) Given that section 601(b)(2) of the Marriage and Dissolution of Marriage Act allows for custody to be vested in a nonparent without first finding unfitness, its application must be narrowly construed to ensure the sanctity of the family and the reciprocal familial rights of parents and their children. Peterson, 112 Ill. 2d at 54.

Section 601 reads in pertinent part:

"(b) A child custody proceeding is commenced in the court:

(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents." (750 ILCS 5/601(b)(2) (West 1992).)

At first glance, the terms of this provision might suggest that the Does have standing to seek a custody hearing regarding Richard because Richard is not in the physical possession of Otto. This interpretation, however, is flawed.

Before a nonparent can demand a custody hearing to determine the best interests of a child under section 601(b)(2) of the Marriage and Dissolution of Marriage Act, the nonparent must first show that he or she has standing to invoke this extraordinary provision. (Peterson, 112 Ill. 2d at 53.) It is this standing requirement that ensures that the superior right of natural parents to the care and custody of their children are safeguarded. A nonparent may only assert standing under section 601(b)(2) if the natural parent at issue does not have physical custody of his or her child.

But physical possession is not the same as physical custody, and it is the difference between these two concepts that defeats the Does standing argument under the section 601(b)(2). The determination that a parent does not have physical custody of a child turns not on possession; rather, it requires that that parent somehow has voluntarily and indefinitely relinquished custody of the child. (See In re Custody of Kulawiak (1993), 256 Ill. App. 3d 956, 962; In re Marriage of Sechrest (1990), 202 Ill. App. 3d 865, 873, 148 Ill. Dec. 615, 560 N.E.2d 1212.) Whether the relinquishment results from a calculated decision on the parent's part or is the product of abandonment, the relinquishment must be voluntary for section 601(b)(2) to apply. Sechrest, 202 Ill. App. 3d at 873.

In reading any statute, its words must be given a commonsense meaning. The Does would have us lift the word "custody" from this statute and conclude that it is synonymous with "possession." That cannot be. The father and natural guardian, Otto, neither voluntarily placed Richard with the Does nor has he consented to their continued possession. For purposes of section 601(b)(2), therefore, the Does do not have "custody." Rather, they have mere possession.

In simple terms, Richard is in the Does' home without color of right. The Does' sole claim to custody of Richard was invalidated by this court on June 16, 1994, when their invalid adoption of Richard was vacated. Since that date, the Does have retained physical possession of Richard but not his custody for purposes of section 601(b)(2).

No one could legitimately suggest that the headmaster of a boarding school or the director of a children's summer camp would have "custody" under the Marriage and Dissolution of Marriage Act so as to give him standing to maintain a custody action against a parent. All he would have is physical possession. With even less authority can such standing be asserted by a nonparent who has physical possession of a child without any authority from the parent or claim of right whatsoever save the passage of time.

To hold otherwise would contravene the twin policies of the Marriage and Dissolution of Marriage Act, which favor the superior rights of parents to the care, custody and control of their children and the deterrence of abductions and other unilateral removals of children from their natural parents. (In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 1048, 136 Ill. Dec. 518, 544 N.E.2d 1293.) If standing under the Act is not predicated upon voluntary relinquishment, the abduction of a child could result in the abductors having standing under section 601(b)(2), a conclusion hardly intended by the legislature and not one this court can countenance. Peterson, 112 Ill. 2d at 54.

Moreover, while the birth mother in the instant case might properly be found to have voluntarily relinquished her right to the care and custody of Richard, her unilateral relinquishment cannot be imputed to Otto. A unilateral relinquishment by one parent cannot serve as the basis for establishing standing under section 601(b)(2) as against the other parent. (See Sechrest, 202 Ill. App. 3d at 873.) Indeed, as the appellate court in Sechrest correctly noted, any other holding might encourage a vindictive parent to give custody of a child to a nonparent to prevent the other parent from obtaining or exercising custodial rights, the exact situation in the instant case. Sechrest, 202 Ill. App. 3d at 873.

We acknowledge that the numerous appellate decisions considering standing under section 601(b)(2) have not always focused on voluntary relinquishment as the sole factor in determining whether the nonparents have standing. However, this is because voluntary relinquishment does not always vest standing in nonparents under the Act. Indeed, many courts engage in a fact-specific investigation to determine whether a nonparent has physical custody of a child in which not only the voluntary relinquishment of the child is considered, but also the intent of the parents when they handed over possession to third parties, the length of the transfer and the facts surrounding the relinquishment. See In re Santa Cruz (1988), 172 Ill. App. 3d 775, 783-86, 122 Ill. Dec. 759, 527 N.E.2d 131 (discussion of factors considered in determining whether a nonparent has physical custody of another parent's child).

None of these cases, however, stand for the proposition that any combination of factors, absent voluntary relinquishment, could afford standing under section 601(b)(2). Indeed, an exhaustive review of every case where section 601(b)(2) standing was at issue discloses that this custody provision has never been invoked to alter parental rights absent some measure of voluntary relinquishment.

Thus, we find that section 601(b)(2) cannot be invoked as against Otto in the instant case because he has never voluntarily relinquished his right to the care, custody and control of his child. Indeed, quite to the contrary, Otto exhibited sincere and vigorous interest in his child-first to learn the truth of his son's existence and then, upon discovering that his son had been placed for adoption, to obtain his possession. Deceit and subterfuge on the part of the Does and their legal counsel to deny Otto knowledge of, access to, and custody of his son cannot form the foundation for standing under section 601(b)(2).

STANDING UNDER THE BABY RICHARD AMENDMENT

Less than three weeks after this court issued its June 16, 1994, decision reversing the trial and appellate courts' decisions in this case, the General Assembly held an emergency session during which it passed Public Act 88-550, which amended the Adoption Act (750 ...


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