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In re Petition of C.M.A.

July 19, 1999


Appeal from the Circuit Court of Cook County Nos. 98 CoA 1118 and 98 CoA 1153 Susan McDunn and Francis Barth, Judges Presiding.

The opinion of the court was delivered by: Justice Zwick


These consolidated appeals arise out of two separate adoption cases and are brought jointly by both sets of adoptive parents and their respective minor children. In these appeals, the parties challenge the propriety and jurisdictional basis of four interlocutory orders entered by Circuit Court Judge Susan McDunn after she had been removed from each case for cause. For the reasons that follow, we grant the relief requested by the appellants and declare null and void each of the orders entered by Judge McDunn after her removal from the instant cases.

In the first of the two adoption cases, C.M.W. and L.A.W. filed their petition to adopt K.D.W. on April 10, 1998. An interim order of adoption was entered that same date by Judge James F. Henry.

C.M.W. and L.A.W. are a lesbian couple, who jointly brought a petition to adopt K.D.W., the biological child of C.M.W. Pursuant to the Adoption Act and the procedures of the circuit court, Edward J. O'Connell was appointed guardian ad litem (GAL) on behalf of the minor child. The Cook County Department of Supportive Services (DSS) was ordered to conduct an investigation of the family.

The DSS investigative report was favorable and, in fact, all evidence favored the adoption. No negative matters were raised. After reviewing the file and DSS report and filing an answer, the GAL joined with the petitioners in requesting entry of judgment for adoption.

Although the adoption was uncontested, Judge McDunn denied the petition for adoption on July 27, 1998, and instead entered an order "off-call" requiring that a best interests hearing be held.

The best interests hearing was held September 1, 1998. Three witnesses were called and examined by the GAL and counsel for petitioners. C.M.W. and L.A.W. testified about their family and their care of K.D.W. The DSS investigator, who has done studies of this type for almost 20 years, testified about the home-study investigation and the contents of her report. She testified about evidence she received supporting her decision to highly recommend the adoption and her Conclusion that the parties' sexual orientation was not a concern. She also testified that such investigations are generally not done when an adoption petitioner is related to the child, as is the situation in the instant case, but are currently done in all cases in which the petitioners are lesbian or gay.

According to the DSS caseworker, C.M.W. and L.A.W. went through the required intake process and investigation regarding their relationship and financial matters as well as health, family, work, and educational histories. Letters from three people knowledgeable as to their parenting skills were obtained. The investigator spent several hours at the family home and determined that K.D.W. is "a beautiful baby with two people who adore him and love him and *** seems to be just thriving in their home." The caseworker described their home environment and found petitioners' relationship to be stable. She testified further that nothing in her investigation disclosed any problems stemming from the parents' sexual orientation, nor posed any question about their suitability to adopt.

Judge McDunn asked no questions of any witness about K.D.W. or his care or welfare. Judge McDunn did, however, question each petitioner regarding her "coming out" process as a lesbian, her early sexual experiences, and whether petitioners were currently in a lesbian sexual relationship. These questions were answered completely and truthfully, over objection. The court called no witnesses of its own.

No evidence presented at the hearing indicated any indiscreet or inappropriate conduct by petitioners or others, nor any circumstance harmful to the minor child. All evidence favored the adoption and none indicated that his best interests would be served by denying the petition to adopt. At the Conclusion of the hearing, the parties jointly requested entry of an adoption order. Judge McDunn took the case under advisement.

On October 6, 1998, more than a month after the hearing, the GAL moved for entry of judgment. In support of the motion, he stated that the case presented no unique or unusual factual or legal issues. Judge McDunn entered and generally continued this motion and refused to indicate when a ruling would be issued.

On November 17, 1998, Judge McDunn held a status hearing. Again counsel and the GAL inquired when a ruling might be expected. Judge McDunn informed the parties that she could not set such a date, but that she considered that the two lesbian adoption cases before her had "similar issues" and "similar types of circumstances." She indicated that she would likely not be deciding the first case until after hearing evidence in the second case.

On December 11, 1998, the parties brought a motion, pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West 1996)), to remove Judge McDunn from the case based upon her decision to consider evidence in the second, wholly unrelated case before ruling in the instant case. This motion was heard and granted on December 11, 1998, by Judge Francis Barth, presiding Judge of the County Division. *fn1 In addition, the case was reassigned to Judge Barth.

On December 15, 1998, Judge Barth entered a final judgment of adoption. No appeal was taken ...

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