Adoption of Schumacher, In re

• Decision Date: 12 December 1983
• Docket Number: 83-431,Nos. 83-340,s. 83-340
• Citation: 120 Ill.App.3d 50,458 N.E.2d 94,75 Ill.Dec. 926
• Parties: , 75 Ill.Dec. 926 In re ADOPTION of Cindy Marie SCHUMACHER et al., Minors. (Wayne K. KRYSTEK et al., Petitioners-Appellees, v. Lucille SCHUMACHER, Petitioner-Appellant). In re the MARRIAGE OF Mary E. SCHUMACHER, n/k/a Mary E. Krystek, Petitioner- Appellee, and Kim A. Schumacher, Respondent-(Lucille Schumacher, Petitioner-Appellant).
• Court: United States Appellate Court of Illinois

Page 94

458 N.E.2d 94

120 Ill.App.3d 50, 75 Ill.Dec. 926

In re ADOPTION of Cindy Marie SCHUMACHER et al., Minors.

(Wayne K. KRYSTEK et al., Petitioners-Appellees, v. Lucille SCHUMACHER, Petitioner-Appellant).

In re the MARRIAGE OF Mary E. SCHUMACHER, n/k/a Mary E.

Krystek, Petitioner- Appellee,

and

Kim A. Schumacher, Respondent-(Lucille Schumacher,

Petitioner-Appellant).

Nos. 83-340, 83-431.

Appellate Court of Illinois,

Second District.

Dec. 12, 1983.

Schwarz & Golden, Ltd., West Dundee, for petitioner-appellant.

Muscarello Crisanti & Young, Thomas P. Young, Elgin, for petitioners-appellees.

UNVERZAGT, Justice:

A judgment was entered dissolving the marriage of Mary and Kim Schumacher. Mary was awarded custody of the couple's three minor children, Cindy, Peter, and Christopher, subject to Kim's specified visitation rights. Subsequently, Kim's mother, Lucille Schumacher, sought and obtained an order granting her weekly visitation with the children.

After Lucille filed her petition, but before the visitation order was entered, Mary and her new husband, Wayne K. Krystek, instituted an action to adopt the three Schumacher children. The adoption was ordered, after a hearing at which Lucille and her attorney were present. The adoption judgment provided that Lucille and the paternal grandfather, Joseph Schumacher, would have the right to visit with the children once each month.

Because of Mary's alleged refusal to permit Lucille to visit with the children on August 7, 1982, Lucille filed a petition in the dissolution action seeking a rule to show cause for violation of the visitation orders. The judge presiding over the dissolution action directed that the matter be presented to the adoption judge, and Lucille filed a petition in the adoption proceeding for a rule to show cause, alleging that Mary had violated the order entered in that case for grandparent visitation. On Mary and Wayne's motion, the trial court vacated the portion of the adoption judgment providing for grandparent visitation and dismissed Lucille's petition.

Lucille then brought a petition in the dissolution action, seeking reinstatement of the visitation rights previously granted to her in that proceeding. Mary's motion to dismiss this petition was denied; however, the trial court also denied Lucille's petition to reinstate visitation.

Lucille appeals from the order dismissing her petition for a rule to show cause and vacating the grandparent visitation provisions of the adoption judgment. Lucille also appeals from the order denying her petition to reinstate the visitation rights granted in the dissolution proceeding. These appeals have been consolidated for resolution by this court.

The sole issue presented is whether the trial court erred in refusing to enforce or reinstate visitation rights granted to natural grandparents after adoption of their grandchildren.

After an order of adoption is entered, the natural parents of the adopted child are relieved of all parental responsibilities for the child and deprived of all parental rights with regard to the child. (Ill.Rev.Stat.1981, ch. 40, par. 1521; People ex rel. Bachleda v. Dean (1971), 48 Ill.2d 16, 268 N.E.2d 11.) These parental rights and responsibilities are assumed by the adoptive parents. (See Willey v. Lawton (1956), 8 Ill.App.2d 344, 132 N.E.2d 34.) Adoption constitutes a complete and permanent severance of all rights and interests of the natural parent and child. (In re Custody of Atherton (1982), 107 Ill.App.3d 1006, 63 Ill.Dec. 582, 438 N.E.2d 513; In re Petition to Adopt Cech (1972), 8 Ill.App.3d 642, 291 N.E.2d 21.) This includes a termination of custodial rights (In re Drescher (1980), 91 Ill.App.3d 658, 47 Ill.Dec. 631, 415 N.E.2d 636), as well as all rights of the natural parent to visitation (People ex rel. Witton v. Harriss (1940), 307 Ill.App. 283 30 N.E.2d 169; see In re Custody of Atherton (1982), 107 Ill.App.3d 1006, 63 Ill.Dec. 582, 438 N.E.2d 513), which is a form of custody. (In re Custody of Myer (1981), 100 Ill.App.3d 27, 55 Ill.Dec. 358, 426 N.E.2d 333.) The only connections remaining are that the natural parent may be required to support the child if the adoptive parent is unable to do so and that the child may inherit from the natural parent. People ex rel. Bachleda v. Dean (1971), 48 Ill.2d 16, 268 N.E.2d 11; In re Estate of Tilliski (1945), 390 Ill. 273, 61 N.E.2d 24.

Given the statutory scheme for the complete severance of the relationship between the child and his or her natural parents upon adoption (Willey v. Lawton (1956), 8 Ill.App.2d 344, 132 N.E.2d 34), it follows that adoption also terminates any legal rights and interests of the natural parents' relatives in the child. (See People ex rel. Bachleda v. Dean (1971), 48 Ill.2d 16, 268 N.E.2d 11; Wilson v. Wallace (1981), 274 Ark. 48, 622 S.W.2d 164; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Lee v. Kepler (Fla.Dist.Ct.App.1967), 197 So.2d 570.) This is consistent with the statute's aim of promoting the best interests and welfare of the child (Ill.Rev.Stat.1981, ch. 40, par. 1525), a purpose which generally is served by giving the adopted child the status of a natural child of the adoptive parents and completely breaking all ties with the natural family. (In re Fox (Okl.1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see contra Mimkon v. Ford (1975), 66 N.J. 426, 332 A.2d 199; Reeves v. Bailey (1975), 53 Cal.App.3d 1019, 126 Cal.Rptr. 51.) Thus, the entry of an order of adoption will operate to divest natural relatives, such as grandparents, of the right to visitation with the adopted child. People ex rel. Bachleda v. Dean (1971), 48 Ill.2d 16, 268 N.E.2d 11; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; In re Fox (Okl.1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see contra Reeves v. Bailey (1975), 53 Cal.App.3d 1019, 126 Cal.Rptr. 51.

Illinois law does expressly provide for grandparent visitation in certain instances. In cases of dissolution of marriage or death of a parent, a court is empowered to grant grandparent visitation when it is in the child's best interest to do so (Ill.Rev.Stat.1981, ch. 40, par. 607(b); Ill.Rev.Stat.1981, ch. 110 1/2, par. 11-7.1), thus modifying the common law rule which required a showing of special circumstances to justify such an order. (Ill.Ann.Stat., ch. 40, par. 607, Supp. to Hist. & Prac.Notes, at 22 (Smith-Hurd 1983-84 Supp.); see Hawkins v. Hawkins (1981), 102 Ill.App.3d 1037, 58 Ill.Dec. 620, 430 N.E.2d 652.) While some courts have reached the opposite conclusion (Mimkon v. Ford (1975), 66 N.J. 426, 332 A.2d 199; Reeves v. Bailey (1975), 53 Cal.App.3d 1019, 126 Cal.Rptr. 51), the majority view is that an adoption terminates a grandparent's visitation rights despite the existence of such statutory provisions authorizing grandparent visitation. Wilson v. Wallace (1981), 274 Ark. 48, 622 S.W.2d 164; In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Poe v. Case (1978), 263 Ark. 488, 565 S.W.2d 612; In re Fox (Okl.1977), 567 P.2d 985; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; Bikos v. Nobliski (1979), 88 Mich.App. 157, 276 N.W.2d 541; Ex parte Pepper (Tex.Civ.App.1976), 544 S.W.2d 836, error dismissed (Tex.1977), 548 S.W.2d 884.

The majority view is persuasive, as there is no indication that the Illinois statutory provisions for grandparent visitation were intended to override the adoption laws. The Probate Act provision is expressly limited to situations where the child has not been adopted. (Ill.Rev.Stat.1981, ch. 110 1/2, par. 11-7.1) The Illinois Marriage and Dissolution of Marriage Act grandparent visitation provision does not contain a similar express exclusion. (Ill.Rev.Stat.1981, ch. 40, par. 607(b).) However, as a grandparent's status as such is derived from the relationship between the child and the natural parent (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; see People ex rel. Bachleda v. Dean (1971), 48 Ill.2d 16 268 N.E.2d 11), an adoption, which terminates the rights of the natural parent, also removes the basis for the relationship of the grandparent and thereby ends the status on which the statutory right to visitation rests. (In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555.) Further, the mere existence of a statute permitting court-ordered grandparent visitation under certain circumstances should not be allowed to defeat the adoption statute's basic premise of the complete severance of ties between the child and the natural family. (See 287 N.W.2d 555; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135.) Therefore, the grandparent visitation provision should be construed as subject to the adoption laws, such that a completed adoption proceeding supercedes any rights which could have been obtained pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1981, ch. 40, par. 607(b)). See In re Adoption of Gardiner (Iowa 1980), 287 N.W.2d 555; Browning v. Tarwater (1974), 215 Kan. 501, 524 P.2d 1135; see also Bikos v. Nobliski (1979), 88 Mich.App. 157, 276 N.W.2d 541.

Given these principles, the trial court did not err in denying Lucille's petition to reinstate the grandparent visitation rights originally granted in the dissolution proceeding. The initial visitation order was vitiated by the adoption, and this order, while not challenged directly, automatically was rendered ineffective and unenforceable upon entry of the adoption judgment. (People ex rel. Bachleda v. Dean (1971), 48 Ill.2d 16, 268 N.E.2d 11; Ex parte Pepper (Tex.Civ.App.1976), 544 S.W.2d 836, error dismissed (Tex.1977), 548 S.W.2d 884; Lee v. Kepler (Fla.Dist.Ct.App.1967), 197 So.2d 570; see Wilson v. Wallace (1981), 274 Ark. 48, 622 S.W.2d 164; Quarles v. French (1981), 272 Ark. 51, 611 S.W.2d 757; In re Fox (Okl.1977), 567 P.2d 985; see contra Reeves v. Bailey (1975), 53 Cal.App.3d 1019, 126...