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07/18/95 PETITION K.M. AND D.M. TO ADOPT OLIVIA M.

July 18, 1995

IN RE PETITION OF K.M. AND D.M. TO ADOPT OLIVIA M., A MINOR, PETITIONERS-APPELLANTS. IN RE PETITION OF K.L. AND M.M. TO ADOPT MICHAEL M. AND DAVID M., MINORS, PETITIONERS-APPELLANTS.


Appeal from the Circuit Court of Cook County. The Honorable Marjan P. Staniek, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court:

In adoption proceedings in the circuit court of Cook County, unmarried cohabitors of the same sex were held not to have standing to bring petitions to adopt under the terms of the Illinois Adoption Act (the Act) (750 ILCS 50/0.01 et seq. (West 1994)). In each case, one of the petitioners is the natural mother or the adoptive mother of the minors the women seek to adopt jointly.

K.M. AND D.M.

On March 14, 1994, Judge Stephen Yates issued a memorandum opinion and order in an unrelated case in the circuit court of Cook County finding that an unmarried lesbian couple could join in a petition to adopt. (Petition of E.S. (Cir. Ct. Cook Cty., March 14, 1994), No. CoA 1202.) No appeal was taken from this order. On March 16, 1994, K.M. and D.M., an unmarried lesbian couple, filed a joint petition to adopt three-year-old Olivia M., the natural daughter of K.M. A summons was issued on the same date.

On May 17, 1994, the circuit court issued an interim order which granted temporary custody to K.M. and D.M., appointed a guardian ad litem (the guardian) (the same guardian who had been appointed in Petition of E.S.), and ordered the Department of Supportive Services (DSS) to perform an investigation and provide a recommendation as to the suitability of K.M. and D.M. to adopt. Summons was served on Olivia on that day. On June 10, 1994, the guardian filed an answer on her behalf.

On May 17, 1994, K.M. and D.M. filed an affidavit of service by publication upon the unknown biological father (K.M. had been artificially inseminated) in accordance with the Act. (750 ILCS 50/7(A) (West 1994).) On June 3, 1994, K.M. and D.M. filed a certificate of publication of notice to the unknown father. On July 8, 1994, thecircuit court entered a default order against the unknown father, declaring him unfit and terminating his parental rights.

On July 3, 1994, amendments to the Act took effect. (Pub. Act 88-550, art. 9, ยง 975, eff. July 3, 1994) Those amendments stated that they applied to all cases pending on that date.

On July 26, 1994, the guardian filed a motion to dismiss the adoption petition on the grounds that K.M. and D.M. lacked standing to file the petition. The same grounds had been rejected by Judge Yates in Petition of E.S. On the same date, the guardian filed an identical motion to dismiss in the other case involved in this appeal (see below). On August 29, 1994, an order was entered consolidating this case with the other case in the circuit court for the limited purpose of briefing and ruling on the guardian's identical motions to dismiss the two cases.

On September 13, 1994, K.M. and D.M. filed their memorandum in response to the motion to dismiss the petition for adoption and for other relief. No reply memorandum was filed by the guardian.

K.M. and D.M. had supplied DSS with all documents necessary for its investigation. DSS submitted a final recommendation to the circuit court on November 16, 1994, that supported the proposed adoption.

On November 28, 1994, a hearing was held on the motions to dismiss and on whether, if standing existed, the petitions to adopt were in the children's best interests. Following the hearing, the court ruled that K.M. and D.M. lacked standing to file the petition. The oral ruling was followed with a written judgment order, dated December 5, 1994, explaining the decision in greater detail.

On December 12, 1994, an agreed order was entered leaving the interim order of custody in effect during the pendency of any properly perfected appeal. On the same date, K.M. and D.M. filed a motion to reconsider the judgment and seeking a ruling on their alternative argument that the petition could be considered as a petition by D.M. as an individual person, joined by K.M. so as not to terminate her parental rights. On December 28, 1994, the motion was denied following a hearing.

K.M. and D.M. filed a timely notice of appeal on January 24, 1995.

K.L. AND M.M.

On April 4, 1994, K.L. and M.M., another unmarried lesbian couple, filed a joint petition to adopt Michael M. (three years old) and David M. (one year old) in the circuit court of Cook County. David is K.L.'s natural son (she was artificially inseminated), and Michael isK.L.'s adoptive son, the adoption having occurred on January 17, 1992. Summons was served on the same day as the filing, and an interim order was entered granting temporary custody to K.L. and M.M. The court appointed the same guardian as in the case of K.M. and D.M., and ordered DSS to perform an investigation and provide a recommendation as to the suitability of K.L. and M.M. to adopt.

On April 18, 1994, K.L. and M.M. filed an affidavit of service by publication upon the unknown biological father of David. On May 9, 1994, they filed a certificate of publication of notice to the unknown father. No default order appears in the record.

On April 28, 1994, the guardian filed an answer on behalf of Michael, and on June 29, 1994, the guardian filed an answer on behalf of both Michael and David.

On July 26, 1994, K.L. and M.M. filed a motion to use initials and pseudonyms. The motion was granted on the same date. Also on July 26, the guardian filed a motion to dismiss the adoption petition on the grounds that an unmarried couple lacked standing. As stated above, an order was entered consolidating this case with the case of K.M. and D.M. for the limited purpose of briefing and ruling on the guardian's identical motions to dismiss. K.L. and M.M. filed their response to the guardian's motion on September 13, 1994, with 21 exhibits. No reply memorandum was filed by the guardian.

DSS filed its report with the court on October 11, 1994, recommending the proposed adoption.

On November 28, 1994, a hearing was held on the motions to dismiss and on whether, if standing existed, the petitions to adopt were in the children's best interests. Following the hearing, the court ruled that K.L. and M.M. lacked standing to file the petition. The oral ruling was followed with a written judgment order, dated December 5, 1994, explaining the decision in greater detail.

On December 14, 1994, K.L. and M.M. filed a motion to reconsider the judgment and to ask for a ruling on their alternative argument that the petition could be considered as a petition by M.M. as an individual person, joined by K.L. so as not to terminate her parental rights. On December 28, 1994, the motion was denied following a hearing.

K.L. and M.M. filed a timely notice of appeal on January 11, 1995.

Although the two cases were not consolidated, they were set for briefing and oral argument simultaneously by this court.

These appeals require that we construe the text of the Act. The circuit court's construction is not entitled to deference and must be reviewed de novo. ( S.B. Lexington, Inc. v. Near North Insurance Agency, Inc. (1993), 244 Ill. App. 3d 1023, 1030, 614 N.E.2d 234, 238, 185 Ill. Dec. 100.) Neither case presents any contested factual issue.

The parties agreed that the sexual orientation of the petitioners was not a bar to the proposed adoptions. Nothing in the Act suggests that sexual orientation is a relevant consideration, and lesbians and gay men are permitted to adopt in Illinois. The circuit court professed the same point of view. These views are in accord with the appellate court's prior ruling in In re Marriage of Pleasant (1993), 256 Ill. App. 3d 742, 743, 628 N.E.2d 633, 635, 195 Ill. Dec. 169, and the cases cited therein that sexual orientation is not relevant to visitation rights, and with research submitted by petitioners on the subject of lesbian and gay ...


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