Bland v. Department of Children & Family Services

• Decision Date: 06 March 1986
• Docket Number: No. 3-85-0110,3-85-0110
• Citation: 96 Ill.Dec. 122,490 N.E.2d 1327,141 Ill.App.3d 818
• Parties: , 96 Ill.Dec. 122 David L. BLAND and Marion Bland, Petitioners-Appellants, v. DEPARTMENT OF CHILDREN, & FAMILY SERVICES, Guardian of Stephanie Leonatti, a minor, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1327

490 N.E.2d 1327

141 Ill.App.3d 818, 96 Ill.Dec. 122

David L. BLAND and Marion Bland, Petitioners-Appellants, v. DEPARTMENT OF CHILDREN, & FAMILY SERVICES, Guardian of Stephanie Leonatti, a minor, Defendant-Appellee.

No. 3-85-0110.

Appellate Court of Illinois,

Third District.

March 6, 1986.

Rehearing Denied April 17, 1986.

Gary W. Wangler, Louis E. Olivero, Peru, for petitioners-appellants.

Gabriel M. Rodriguez, Asst. Atty. Gen. and Jill Wine-Banks, Sol. Gen., Neil F. Hartigan, Atty. Gen. Chicago, for defendant-appellee.

Justice STOUDER delivered the opinion of the court:

This is an appeal from the LaSalle County Circuit Court judgment denying petitioners-appellants' petition for adoption on the ground that the Department of Children and Family Services had withheld consent.

The child whom petitioners seek to adopt, their granddaughter, Stephanie Leonatti, was born on August 7, 1973. When Stephanie was 2 years old she began to reside in the home of petitioners, Mr. and Mrs. Bland. Mr. Bland is a truck driver, away from home 6-7 months out of the year, and Mrs. Bland is a housewife. For the next four years, the Blands provided for Stephanie's support and enrolled her in school. When Stephanie was in 2nd grade, Mrs. Bland gave the custody and care of Stephanie back to her daughter, Pamela, Stephanie's mother. In May, 1982, after two years of living with her natural mother, Stephanie was made a ward of the court and her care and custody was transferred to the Illinois Department of Children and Family Services (DCFS). Mrs. Bland visited and corresponded with Stephanie often after this, but was later denied these privileges after Stephanie was removed to Guardian Angel Home in Peoria, Illinois. Mrs. Bland continued to correspond but her letters were not delivered and remain in the files of DCFS.

In June of 1982, the Blands requested that Stephanie be placed with them for foster care. DCFS then hired Dr. James Tiller, a psychologist with the Spoon River Mental Health Center, to see Mr. & Mrs. Bland, their daughter, Pamela, and Stephanie for a diagnostic assessment of them. Dr. Tiller testified he felt Stephanie had some behavioral problems, that Stephanie's grandmother and mother were emotionally entangled in a love/hate/hostile/affectionate relationship and as such had not resolved the issue of independence and separateness. In his report, Dr. Tiller said Stephanie should return and reside with her mother, Pamela Bland.

In January, 1983, the petition for adoption was filed in LaSalle County. Gary Rands, head of the adoption unit for DCFS, and the person responsible for making consent decisions for the agency, made his decision from a review of Stephanie's file. Mr. Rands testified that the file began in May, 1982, and included school records, caseworker materials and the reports of Dr. Tiller. In addition to reviewing the file, Mr. Rands spoke with some of the employees of the Guardian Angel Home where Stephanie has been staying. He did not request a home study of petitioners, or a school evaluation of Stephanie for the time during which she lived in petitioners' home. Mr. Rands had never met with Mr. or Mrs. Bland prior to making the decision not to consent to adoption.

The petitioners-appellants assign four errors. These are:

I. The court erred in not finding that the Illinois Adoption Act denies procedural due process and equal protection under the United States and Illinois Constitution.

II. The court erred in granting the defendant, DCFS's motion to dismiss for the reason that they had not consented to the adoption, as consent is not required to adopt a related child.

III. The court erred as the decision was against the manifest weight of the evidence as to the arbitrariness and capriciousness of the non-consent.

IV. The court erred in allowing certain evidence concerning petitioner's mental health evaluation contrary to the privilege in Mental Health and Developmental Disabilities Confidentiality Act (MHDDCA) (Ill.Rev.Stat.1983, ch. 91 1/2, par. 801 et seq.)

After a review of the record, we conclude that assignment I lacks merit, but numbers II, III and IV warrant extended discussion. Assignment I can be disposed of on fairly obvious grounds.

Petitioners' contention is that the failure of the Illinois Adoption Act to provide any notice or opportunity to be heard, at the point in time when DCFS decided not to consent to the adoption, deprives them of due process and equal protection rights guaranteed under the United States and Illinois Constitutions. Among the elements which make up due process are reasonable notice, an opportunity for a fair hearing and the right to have a court of competent jurisdiction determine the sufficiency of the evidence. (16 CJS, Constitutional Law, sec. 967) We do not see that a violation of constitutional rights is involved in this case. When a statute, such as we have makes provisions for conditions and procedures to be followed in creating the relationship of a parent and child between persons not so related by nature, followed by a trial of the issue by a court of general jurisdiction at the election of the party aggrieved, with the right of ultimate appeal to the highest court of the state, the requirements for due process of law are discharged.

In measuring petitioners' claim of a denial of equal protection, we again find no violation of constitutional rights. There is hardly a law on the books that does not affect some people differently from others (see, San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16). Under traditional analysis the equal protection clause does not deny to states the power to treat different classes of persons in different ways, but a classification must be reasonable, not arbitrary, and have a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike (Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225). A state does not violate the guarantee merely because the classifications made by its laws are imperfect (Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491), and a statutory discrimination will not be set aside if any state of facts reasonably may be believed to justify it (McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393).

Petitioners here contend they stand in loco parentis as to Stephanie, and as such, should be afforded the same rights to notice which are provided for natural and legally adoptive parents under the Adoption Act. The term "in loco parentis" implies a standing in the place of a parent; one charged fictitiously with parents' rights, duties, and responsibilities. (Reynolds v. U.S., 96 F.Supp. 257, 261 (S.D.Kan.1951)). It is uncontested that for a period of time petitioners took care of the child and then turned the child back over to the natural mother, thus they did not enjoy the rights, nor were they burdened by the obligations of "parents" at the time of the alleged deprivation. In fact, the record is clear the legal party in loco parentis was the Agency at the time the consent decision was required to be made. We find no merit to the contention that the failure to provide notice to these petitioners at the time DCFS denied their consent to the adoption deprived them of the equal protection of law so as to render the court's determination dismissing their petition constitutionally invalid.

Assignments of error numbers II and III raise more serious questions. Respondents contend the plain meaning of the statute directs that consent is required in all cases of adoption and, therefore, the petition was deficient in that DCFS refused to consent to the adoption. It is submitted that since adoption is a creature of statute and in derogation of common law, the Adoption Act must be strictly construed. Respondents urge that all the allegations required by the Statute must appear on the face of the adoption petition. One of these necessary allegations is that either the natural parents or the appropriate adopting agency consent to the adoption. If consent to the adoption is not present, respondents argue that the trial court must dismiss the petition because this requirement is mandatory. On the other hand, petitioners contend that consent is not required in the case of an adoption of a related child.

The trial court held that it was necessary to determine as a preliminary matter whether DCFS' refusal to consent was arbitrary and capricious before reaching the issue whether the child was a related child to the petitioners. After a trial of the issue the court dismissed the adoption petition on the ground that there was a lack of consent thereto, for good and sufficient reason, by the agency having the legal custody with the right to consent to the adoption of the child whose adoption was sought.

The relevant language of the Adoption Act (Ill.Rev.Stat.1981, ch. 40, par. 1501, et seq.) is found in sections 1, 5, 6, 8, 13 and 15. Section 1 states in part:

"B. 'Related Child' means a child subject to adoption where either or both of the adopting parents stands in any of the following relationships to the child by blood or marriage: parent, grand-parent, * * * or cousin of first degree. A child whose parent has executed a final irrevocable consent to adoption or a final irrevocable surrender for purposes of adoption, or whose parent has had his or her parental rights terminated, is not a related child to that person;" (Ill.Rev.Stat.1981, ch. 40, par. 1501, subd. B)

Section 5 states in part:

"B. A petition to adopt a child other than a related child shall state:

(j) That the person or agency, having authority to consent under Section 8 of this Act, has consented, or has indicated willingness to consent, to the adoption of the child by the petitioners, or that the person having authority to consent is an unfit person and the...