M.M., In re
| Citation | 156 Ill.2d 53,189 Ill.Dec. 1,619 N.E.2d 702 |
| Decision Date | 26 August 1993 |
| Docket Number | Nos. 73377,73439,s. 73377 |
| Parties | , 189 Ill.Dec. 1 In re M.M. et al., Minors (Gary T. Morgan et al., Appellees, v. Parents of M.M. et al., Appellants). |
| Court | Illinois Supreme Court |
Patrick T. Murphy, Ellen O'Brien, Lee Ann Lowder, Cindy G. Enger and Kathleen G. Kennedy, Office of the Public Guardian, Chicago (Annette Appell, Meites, Frackman, Mulder & Burger, Chicago, of counsel), for appellee minors.
Jeffrey W. Finke, Hartman & Finke, Chicago, Special Asst. Atty. Gen., for appellee DCFS guardian administrator.
In these consolidated appeals, we are asked to decide whether the circuit court, when terminating parental rights and appointing a guardian with power to consent to adoption, may condition the guardian's power to consent.
Preliminarily, we must dispose of appellants' motion to strike portions of appellee Morgan's brief. In their motion, appellants point out that, in his brief, Morgan cites to a decision rendered by the chancery division of the circuit court in Jennifer H. v. McDonald (Cir.Ct. Cook Co.), No. 86-J-4176, as well as pleadings filed in the Federal district court in that case (Jennifer H. v. McDonald (N.D.Ill.), No. 90-C-7219).
In support of their motion to strike, appellants note that Morgan has failed to include in his brief the record of the proceedings and the briefs filed in the chancery and Federal courts in the Jennifer H. case. With respect to the chancery court decision, appellants argue that the decision is nonbinding, has no precedential value and, therefore, citation to the decision is error and irrelevant to the issue on appeal. Regarding the Federal court pleadings, appellants argue that citation thereto is error because the pleadings were never admitted into evidence in the Jennifer H. case.
Supreme Court Rule 341 governs the form and contents of appellate briefs. (134 Ill.2d R. 341.) The rule expresses no restriction on the nature or source of material which may be cited in support of an argument. Whether the authority cited may be nonprecedential, irrelevant, or incomplete will be determined by the reviewing court as a proper consideration in assessing the merits of a proponent's argument. An opponent's questions regarding the caliber of the proponent's cited authority, however, provide an insufficient basis to strike portions of the proponent's brief. The proper recourse for the opponent of cited authority is to refute the value of such authority in his reply brief. Appellants' motion to strike portions of Morgan's brief is hereby denied.
These consolidated appeals originated in the circuit court of Cook County. It is important to note here that, pursuant to General Order No. 1.2 of the Circuit Court of Cook County, the juvenile division of the circuit court is designated to hear actions and proceedings arising under the Juvenile Court Act. (Cir.Ct. Cook County, Gen. Order 1.2(VI) (eff. July 1, 1988).) The county division, on the other hand, is designated to hear actions and proceedings arising under the Adoption Act. (Cir.Ct. Cook County, Gen. Order 1.2(IV) (eff. July 1, 1988).) Notwithstanding the various divisions, there is but one circuit court; each division of the court has equal and concurrent subject In each of the cases before us, the juvenile court entered an order terminating parental rights and appointing a guardian with power to consent to adoption. See Ill.Rev.Stat.1989, ch. 37, par. 802-29.
[189 Ill.Dec. 5] matter jurisdiction. For purposes of clarity, only, we refer to the division of the court proceeding [156 Ill.2d 57] pursuant to the Juvenile Court Act as the juvenile court and the division proceeding pursuant to the Adoption Act as the adoption court.
In re M.M.
In July 1989, the Department of Children and Family Services (DCFS), alleging that the parents of M.M. and her siblings were unfit, petitioned the juvenile court for termination of parental rights. Pursuant to a surrender and consent (see Ill.Rev.Stat.1989, ch. 37, par. 802-29(1)), executed by the parents, the court terminated parental rights with respect to M.M. and three of her siblings.
At a separate hearing on the petition to appoint a guardian with power to consent to adoption, the court found it to be in the best interests of the minor to be adopted by adoptive parents who would be willing to provide contact between the minor and her biological family. Following the hearing, the court entered an order appointing as guardian of the person Gary T. Morgan, DCFS guardianship administrator, with power to consent to adoption, "provided that the adoptive parents agree to continue to permit contact by the minor with her biological family." The case was continued for completion of adoption.
In October 1989, M.M.'s foster parents petitioned the adoption court to adopt M.M. Although the foster parents had facilitated contact between M.M. and her biological parents and siblings in the past and agreed to continue to do so on an informal basis, they declined agreement to a court order to effect continued contact.
The guardian ad litem, on behalf of M.M.'s parents, moved the adoption court to enforce the conditional order of the juvenile court or dismiss the petition to adopt. M.M.'s foster parents filed an affidavit in which they stated their agreement that M.M.'s continued visitation with her biological family would be in the child's best interests and that they would continue to permit such visitation as long as it remained so. However, the foster parents expressed concerns with respect to the validity of an adoption judgment entered pursuant to a guardian's conditional consent, the unavailability of financial resources to pay for legal expenses which might arise in the event of an attack on the validity of the adoption, and disputes concerning the desirability, frequency, place or manner of visits.
In April 1990, Morgan moved the juvenile court to modify its order to eliminate the conditional language, arguing, inter alia, that the order was void as in excess of the court's authority. The juvenile court denied the motion, and Morgan appealed the court's denial to the appellate court.
In re M.E.B. et al.
The M.E.B. case presents similar circumstances. The four children in this case were determined to have been abused and were placed in foster homes. In March 1990, the juvenile court determined the biological parents of these children to be unfit, and terminated parental rights.
The court found it to be in the best interests of the children to continue contact with their biological siblings. Morgan was appointed guardian with power to consent to adoption. Over the objection of DCFS, the court conditioned Morgan's consent on the prospective adoptive parents' agreement to permit continued contact between the siblings. Morgan objected to the conditional order and moved the court for modification. The motion was denied and the case was continued for completion of adoption.
As in the case of M.M., the prospective adoptive parents, who had provided foster care for the children for several years, agreed to facilitate continued contact between the biological siblings, but did not wish to have the requirement mandated by court order. In re A.B.
A.B. was removed from her mother's custody in 1986. In 1989, the State petitioned the juvenile court to terminate parental rights and to appoint a guardian with power to consent to adoption.
In May 1990, the guardian ad litem for A.B. petitioned the juvenile court to consider whether, in the event that parental rights were terminated, the court would condition the power of the guardian to consent to adoption upon the prospective adoptive parents' agreement to allow A.B. to have continued contact with her siblings. Although the prospective adoptive parents agreed to accept court-ordered visitation, the juvenile court declined, for lack of authority, to condition the guardian's power to consent. The case was continued for completion of adoption.
The office of the public guardian appealed the court's refusal to enter the conditional provision.
The three cases were consolidated for purposes of appeal in the appellate court. With respect to A.B., the appellate court affirmed the juvenile court order. In the M.M. and M.E.B. et al. cases, however, the court reversed the conditional orders and remanded the causes to the juvenile court for a determination of whether non-provisional orders are in the best interests of the children. 226 Ill.App.3d 202, 168 Ill.Dec. 287, 589 N.E.2d 687.
Separate petitions for leave to appeal were filed in this court by the Cook County public defender, on behalf of the parents of M.M. and M.E.B. et al., and by the office of the public guardian, on behalf of all of the minors. We allowed both petitions (134 Ill.2d R. 315), and, on this court's own motion, consolidated the cases.
Separate appellants' briefs were filed by the public guardian, on behalf of all of the minor children, and by the public defender, on behalf of the biological parents of M.M. and M.E.B. et al. "Appellants," as used in this opinion, refers, interchangeably, to the minor children or to their parents.
Section 2-29(2) of the Juvenile Court Act of 1987, the statutory provision at issue in this case, provides, in pertinent part:
"(2) If the petition prays and the court finds that it is in the best interest of the minor that a guardian of the person be appointed and authorized to consent to the adoption of the minor, the court with the consent of the parents, if living, or after finding, based upon clear and convincing evidence, that a non-consenting parent is an unfit person as defined in Section 1 of [the Adoption Act], may empower the guardian of...
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