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In re J.B.

April 24, 2003

IN RE J.B. ET AL., APPELLEES (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. WANDA B., APPELLANT).


The opinion of the court was delivered by: Justice Kilbride

Docket No. 93453-Agenda 6-January 2003.

UNPUBLISHED

The circuit court of Cook County found that the respondent, Wanda B. (mother), was an unfit parent based on section 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West 1998)). As amended, this section creates a presumption that a parent is unfit based on a conviction for any of the specified crimes. The mother had previously been convicted of aggravated battery of a child, one of the listed crimes. The circuit court subsequently terminated the mother's parental rights. She appealed but failed to seek a stay of enforcement of the termination order. While the appeal was pending, the children were adopted. More than a year after the entry of the children's final adoption orders, the appellate court filed its judgment affirming the termination order. 328 Ill. App. 3d 175.

In this appeal, the mother raises constitutional challenges to amended section 1(D)(q), but prior to reaching these issues, we must consider the threshold issue of whether her appeal is moot pursuant to our recent decisions in In re Tekela, 202 Ill. 2d 282 (2002), and In re India B., 202 Ill. 2d 522 (2002). We hold that it is and, accordingly, dismiss the appeal.

I. BACKGROUND

In July 1992, the mother pleaded guilty to aggravated battery of one of her children and was sentenced to 70 days' imprisonment, receiving credit for the time she had already served. Subsequently, in March 1993 and March 1995, she gave birth to the two children at issue in this appeal, J.B. and T.B., who were taken into state custody shortly after birth and were later adjudicated wards of the court. In 1998, the court entered permanency orders setting the goal of substitute care for the children, pending a decision on the termination of parental rights, and the State filed supplemental petitions to appoint a guardian with the right to consent to their adoptions.

The State then sought summary judgment on the issue of the mother's fitness based on amended section 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West 1998)) because she had previously been convicted of aggravated battery of a child. The amendment took effect after the mother's conviction, and, in her answer, she challenged the amended section's retroactive application and constitutionality. The circuit court granted the State's motion, finding that the retroactive application of the amended statute was proper because the mother's interest in her children was not an absolute vested right. Applying the amended statute, the trial court found the mother unfit as a matter of law. On August 10, 1999, the mother's parental rights were terminated following a best interests hearing. The mother filed a timely notice of appeal but did not seek to stay the enforcement of the termination order in either the circuit court or the appellate court.

On February 26, 2002, the appellate court affirmed, finding that the amended statute could be applied retroactively and did not violate the mother's due process and equal protection rights. The mother then sought leave to appeal to this court, but she did not raise the issue of retroactivity. After her petition was granted, the public guardian reported that J.B. and T.B. had been adopted by their foster parents on December 17, 1999, and February 9, 2000, respectively.

Prior to filing its brief, the State, joined by the public guardian, filed a motion to dismiss the appeal as moot based on this court's decision in In re Tekela, 202 Ill. 2d 282 (2002). A petition for rehearing was pending in Tekela when the State filed its motion, and the motion was denied.

II. ANALYSIS

On appeal, the State reiterates the argument that this court should not address the merit of the mother's claims because the appeal is moot. Thus, the threshold question before us is whether we may decide the issues raised in this appeal on their merits in light of our recent holdings in In re Tekela, 202 Ill. 2d 282 (2002), and In re India B., 202 Ill. 2d 522 (2002).

In Tekela, 202 Ill. 2d at 296, this court held that the filing of a notice of appeal does not act as a stay of an order terminating parental rights. We reasoned that after the passage of the one-year period to challenge an adoption in section 20b of the Adoption Act (750 ILCS 50/20b (West 1998)) any challenge to the validity of a termination order would be rendered moot since our ruling could have no practical effect on the controversy or the parties' rights in the matter before the court. Tekela, 202 Ill. 2d at 292-93. See also In re Adoption of Walgreen, 186 Ill. 2d 362, 364 (1999).

Similarly, in this case the mother did not seek a stay of the termination order, and the adoption orders had been in place for far more than one year before the appellate court filed its decision. Applying the rationale in Tekela, 202 Ill. 2d at 292, to this case, the mother's challenges to the termination order were moot at the time the appellate judgment was filed and remain moot in this court.

Initially, the mother argues that Tekela is inapplicable because it did not involve a constitutional challenge. We disagree. This court recently applied the reasoning in Tekela to dismiss as moot an appeal of a termination order ...


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