Johnson v. Burnett
| Decision Date | 08 May 1989 |
| Docket Number | Nos. 3-88-0489,3-88-0490,s. 3-88-0489 |
| Citation | 131 Ill.Dec. 517,538 N.E.2d 892,182 Ill.App.3d 574 |
| Court | United States Appellate Court of Illinois |
| Parties | , 131 Ill.Dec. 517 Michael L. JOHNSON and Adalee E. Johnson, Petitioners, v. Carrie BURNETT, a Minor Child, James Hobbs and Sandra Burnett Hobbs, and Gary T. Morgan, Guardianship Administrator of The Illinois Department of Children & Family Services, Defendants-Appellees (Daniel D. Gabel and Nancy L. Gabel, Intervenors-Appellants). Daniel E. GABEL and Nancy L. Gabel, Petitioners-Appellants, v. Carrie Ann BURNETT, a Minor Child, James Hobbs and Sandra Burnett Hobbs, Gary T. Morgan, Guardian Administrator of the Illinois Department of Children and Family Services, Michael L. Johnson and Adalee E. Johnson, and All Whom It May Concern, Defendants-Appellees. |
Thomas W. O'Neal, Westervelt, Johnson, Nicoll & Keller, Peoria, for Daniel D. Gabel, Nancy L. Gabel.
Margaret Stroot, Asst. Atty. Gen., Springfield, for Gary T. Morgan.
Albert V. Ancelet, Capps, Ancelet & Stoverink, Carthage, for Michael L. Johnson, Adalee E. Johnson.
James F. Dennis, Keokuk, Ia., for Carrie Burnett.
Michael and Adalee Johnson filed a petition in Hancock County seeking to adopt their niece, with the parents' consent, Hancock County case No. 87-F-62. Daniel and Nancy Gabel, the minor's foster parents, filed a petition to intervene. They also filed their own petition to adopt the minor, Hancock County case No. 88-F-3. The circuit court, pursuant to motions, dismissed the petition to intervene and the Gabels' adoption petition. The Gabels now appeal these determinations. We affirm.
On December 29, 1987, petitioners Michael and Adalee Johnson filed a petition seeking to adopt Adalee's niece, C.B. The petition alleged that C.B. was born on July 8, 1983, and had been in foster placement with the Department of Children and Family Services (DCFS), which had been appointed C.B.'s guardian without the power to consent to an adoption. The petition also included final and irrevocable consents to adoption signed by both parents on that day. The consents specifically agreed to adoption by petitioners.
On January 21, 1988, intervenors Daniel and Nancy Gabel filed a petition asking to intervene in this case. The petition alleged that they had been the foster parents for C.B. since February 8, 1986. They also alleged they had spoken with DCFS concerning their desire to adopt C.B. They asked to be allowed to intervene and to consolidate this case with the adoption petition they filed.
On the same day, the Gabels filed their own adoption petition alleging they should be allowed to adopt C.B. because her parents had surrendered their parental rights, and the parents were unfit, requiring their parental rights be terminated.
Ultimately, on June 22, 1988, the court entered an order denying the Gabels' petition to intervene and dismissing the Gabels' adoption petition. The Gabels appeal these determinations, in Case Nos. 3-88-0489 and 3-88-0490, respectively. These cases have been consolidated for appeal.
Initially, we observe that no appellee brief has been filed in this case. While it is not our position to serve as an advocate for the appellee, we find the ends of justice require we should determine the merits of the appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493, 495.
The trial court, in dismissing the Gabels' adoption petition, found that the Adoption Act (Act) (Ill.Rev.Stat.1987, ch. 40, par. 1501 et seq.) does not authorize the filing of an adoption petition by a nonrelated party prior to the child becoming available for adoption. The court further found that C.B. was not available for adoption, as that phrase is defined. The Gabels maintain these determinations are incorrect. We disagree with the Gabels.
Adoption proceedings are unknown at common law and are solely the creation of statutory enactment. (Regenold v. Baby Fold, Inc. (1977), 68 Ill.2d 419, 436-37, 112 Ill.Dec. 151, 159, 369 N.E.2d 858, 866; Musselman v. Paragnik (1925), 317 Ill. 597, 599, 148 N.E. 312, 312.) Thus, it is incumbent upon the legislature to prescribe the conditions and procedures that must be followed in creating the relationship of parent and child between persons not so related by nature. (Regenold, 68 Ill.2d at 437, 112 Ill.Dec. at 159, 369 N.E.2d at 866.) Here, the clear language of the Act supports the court's decision.
Section 5 of the Act (Ill.Rev.Stat.1987, ch. 40, par. 1507) provides that a proceeding to adopt a child shall be commenced with the filing of a petition. The section then sets forth different requirements for the petition depending upon whether the child to be adopted is related. The Act defines a related child as standing in the following relationship to, at least, one of the petitioners: parent, grandparent, brother, sister, stepparent, stepgrandparent, stepbrother, stepsister, uncle, aunt, great-uncle, great-aunt, or cousin of the first degree. (Ill.Rev.Stat.1987, ch. 40, par. 1501(B).) The Gabels, being C.B.'s foster parents, are, thus, not considered related.
When the child to be adopted is not related, the Act requires the petition to be filed "within 30 days after such child has become available for adoption." (Ill.Rev.Stat.1987, ch. 40, par. 1507(A).) The resolution of the question before us turns on the analysis of the above-quoted language. Section 1(F) of the Act provides:
"A person is available for adoption when such person is:
(a) a child who has been surrendered for adoption to an agency and to whose adoption such agency has thereafter consented;
(b) a child to whose adoption a person authorized by law, other than his parents, has consented, or to whose adoption no consent is required pursuant to Section 8 of this Act;
(c) a child who is in the custody of persons who intend to adopt him through placement made by his parents; or
(d) an adult who meets the conditions set forth in Section 3 of this Act." (Ill.Rev.Stat.1987, ch. 40, par. 1501(F).)
Section 8 of the Act (Ill.Rev.Stat.1987, ch. 40, par. 1510) provides that a consent is not necessary if the court has found that any of several certain factors, one of which is that the parents are unfit, is present.
What is evident from this analysis is the past-tense nature of the wording. The petition must be filed within 30 days after such a child has become available for adoption. A child is available for adoption when he "has been surrendered" and the agency "has thereafter consented," or when the appropriate person "has consented," or when the parents have placed the child in the custody of the adoptive parents. This clearly evidences an intent that the child be free for adoption before a nonrelated party can file a petition.
The Gabels maintain that the reference to section 8 provides an exception. They argue this authorizes nonrelated parties to file for adoption and to be allowed to prove the unfitness of the natural parents in a subsequent hearing. However, to read that reference in that fashion places it clearly against all the other definitions contained in section 1. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. (People v. Boykin (1983), 94 Ill.2d 138, 141, 68 Ill.Dec. 321, 322, 445 N.E.2d 1174, 1175.) As discussed above, the intent of the Act is to authorize nonrelated adoptions only after the acts contained in section 1(F) have occurred. Accordingly, we believe the reference to section 8 requires that the parents be found unfit prior to the filing of a nonrelated party's adoption petition.
To hold as the Gabels suggest would allow nonrelated third parties to file petitions to adopt their neighbor's children and attempt to prove in subsequent hearings that the parents were unfit. This is not the intent of the legislature. We acknowledge that the Gabels, as foster parents who have taken care of C.B. for much of her life, may have a closer relationship to C.B. than some of those persons defined as related in section 1. However, since adoption is solely a statutory creation, any change in this regard would need be made by the legislature.
Accordingly, we hold that a party who is not related to the child, as that phrase is defined, may not file a petition to adopt that child until after any of the acts contained in section 1(F) has occurred and, specifically, they may not file seeking to prove the unfitness of the parent in a subsequent hearing.
The Gabels suggest that, even if this court holds as we have, they should be able to file to adopt C.B. because the consent to adopt, which the parents signed in the Johnson adoption case, case No. 87-F-62, should be treated as a general surrender for adoption.
In In re Custody of Mitchell (1983), 115 Ill.App.3d 169, 70 Ill.Dec. 895, 450 N.E.2d 368, the court addressed this very question and came to a contrary conclusion. Section 10 of the Act (Ill.Rev.Stat.1987, ch. 40, par. 1512) contains the forms necessary for the natural parents to agree to the adoption of their children. The prescribed form of consent under section 10(A) of the Act (Ill.Rev.Stat.1987, ch. 40, par. 1512(A)) is entitled "Final And Irrevocable Consent To Adoption." The consent form under section 10(C) of the Act (Ill.Rev.Stat.1987, ch. 40 par. 1512(C)) is entitled "Final and Irrevocable Surrender For Purposes Of Adoption." In Mitchell, the consent in question was executed in conformity with section 10(A) and contained the heading of the specific case. That adoption was never consummated. Later, the trial court held that the consent acted as a general surrender for adoption and terminated the parental rights involved. The appellate court reversed. It observed there is a notable difference in the required language for a section 10(A) consent to an adoption and a section 10(C) surrender for adoption, which evidenced a legislative intent to treat...
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