M.M., In re, s. 1-90-1955

• Decision Date: 21 February 1992
• Docket Number: Nos. 1-90-1955,1-90-1956 and 1-90-2570,s. 1-90-1955
• Parties: , 168 Ill.Dec. 287 In re M.M., Minor (Gary T. Morgan, Appellant). In re M.E.B., B.B., A.B., and T.B., Minors (Gary T. Morgan, Appellant). In re A.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.B., a Minor, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 687

589 N.E.2d 687 226 Ill.App.3d 202, 168 Ill.Dec. 287 In re M.M., Minor (Gary T. Morgan, Appellant).
In re M.E.B., B.B., A.B., and T.B., Minors (Gary T. Morgan,
Appellant).
In re A.B., a Minor (The People of the State of Illinois,
Petitioner-Appellee,
v.
A.B., a Minor, Respondent-Appellant). Nos. 1-90-1955, 1-90-1956 and 1-90-2570. Appellate Court of Illinois,
First District, Fifth Division. Feb. 21, 1992.

[226 Ill.App.3d 203] Patrick T. Murphy, Kim Albert, Office of Cook County Public Guardian, Chicago, for appellant in No. 1-90-2570.

Neil F. Hartigan, Atty. Gen., Cathy Ann Pilkington, Sp. Asst. Atty. Gen., Chicago,

Page 688

[168 Ill.Dec. 288] for appellant, Dept. of Children and Family Services, in Nos. 1-90-1956 and 1-90-1955.

Patrick T. Murphy, Annette Appell, Office of Cook County Public Guardian, Chicago, for appellee in No. 1-90-1955.

Rita A. Fry, First Asst. Public Defender of Cook County, Chicago, John T. Kennedy, Asst. Public Defender, of counsel, for appellees, M.E.B., B.B., A.B., and T.B., Minors, and M.M., Minor.

Justice MURRAY delivered the opinion of the court:

The three above-named cases have been consolidated by this court for review because each of them presents the same issue, i.e., whether a circuit court, when terminating parental rights and appointing a guardian with the power to consent to [226 Ill.App.3d 204] adoption, may place within the order appointing the guardian, a limitation or condition, so that the guardian may exercise his authority to consent to adoption only if the adoptive parents agree to continue to permit "contact" with the freed child's biological family. Before we discuss the various arguments and our resolution of this dilemma, we shall give a brief background of the facts of each case.

1-90-1955: In Re M.M. (the M.M. case)

On May 8, 1985, the Department of Children and Family Services (DCFS) filed a Petition for Adjudication of Wardship on behalf of M.M. and her six siblings based upon neglect by their parents, Carol and Steven M. Temporary custody was granted to DCFS at that time and the children were placed in various foster homes. On December 11, 1985, M.M. and her six siblings were found to be neglected and adjudicated wards of the State. On January 23, 1986, Gary T. Morgan (Morgan) was appointed as guardian with the right to place and the children remained in foster care.

Subsequently, DCFS petitioned to terminate the parental rights of Carol and Steven M., alleging that the parents were unfit due to their failure to correct conditions that led to the childrens' removal. On April 7, 1989, and July 31, 1989, hearings were held regarding the petitions filed. However, the court terminated the parents' rights with regard to M.M. and three of her siblings, not on the basis of their unfitness, but rather, based upon a surrender and consent signed by the parents.

Although the court terminated the parental rights of the parents, the court went on to find that it would be "in the best interests of the children" for them to continue to have contact with their biological parents and siblings. Consequently, in its orders terminating parental rights and appointing a guardian with the power to consent to adoption, pursuant to section 2-29 of the Juvenile Court Act of 1987 (Ill.Rev.Stat.1989, ch. 37, par. 802-29), the court inserted the provision, as follows:

"Gary T. Morgan is appointed guardian of the person of said minor, [M.M.], and is expressly authorized and empowered, without further order of this court for that purpose, to consent to the legal adoption of said minor should any proceedings for the minor's legal adoption be commenced in any court at any time during this guardianship provided that the adoptive parents agree to continue to permit contact by the minor with her biological family * * *."

(Emphasis added.)

Subsequently, M.M.'s foster parents, with whom she had lived for several years, petitioned to adopt her. Although they had always facilitated contact between M.M. and her biological parents and siblings,[226 Ill.App.3d 205] and agreed to continue to do so on an informal basis, they declined to agree to any court order that would enforce continued contact with the parents and siblings. ¹

Page 689

[168 Ill.Dec. 289] At a hearing on M.M.'s adoption, the guardian ad litem (GAL) petitioned the adoption court to enforce the juvenile court's termination order and require that Morgan agree to adoption only by adoptive parents who would agree to an order of visitation. M.M.'s foster parents refused to go through with the adoption if such an order was enforced.

Due these circumstances, Morgan petitioned the juvenile court to remove the restriction from the order of termination. The juvenile court denied the motion. Morgan, represented by the Attorney General, appealed.

1-90-1956: In Re M.E.B., B.B., A.B., and T.B. (the M.E.B. case)

A petition for the adjudication of wardship for the four children named in this case was filed by DCFS on November 29, 1983, and, upon a finding of urgency, all four children were placed in the custody of Gary T. Morgan, with the right to place.

At a hearing on May 6, 1986, the childrens' mother admitted to allegations of physical abuse lodged against her, allegations of sexual abuse were stricken by agreement, and the court found that the children were abused and neglected on the basis of excessive corporal punishment and injurious environment. On June 3, 1986, the four children were made wards of the court and Morgan was appointed guardian with the right to place. The four children were then placed in two foster homes, i.e., two children in each home.

In May 1988 DCFS filed petitions for the appointment of a guardian with the power to consent to the adoption of the four children. Hearings were held, after which the court found that both biological parents were unfit and unwilling or unable to discharge their parental duties.

[226 Ill.App.3d 206] In an order dated March 7, 1990, the court terminated the parents' rights and ordered that Morgan be appointed as guardian empowered to consent to the legal adoption of the children "provided that the adoptive parents agree to continue to permit contact" between the siblings.

The State objected to the restriction entered in the order and on April 4, 1990, filed a motion to reconsider and modify the order to delete the restriction on Morgan's power to consent. The trial court denied the motion and Morgan, represented by the Attorney General, appealed.

In this case, too, the prospective adoptive parents, who were the childrens' foster parents for some years, agreed to facilitate continued contact between the biological siblings, but did not wish to have it made mandatory or part of the adoption order.

1-90-2570: In Re A.B. (the A.B. case)

In November 1986 A.B., who was two years old, was removed from her mother's custody, along with two brothers and four sisters. Nearly three years later, on July 28, 1989, the State petitioned to have...