Parks v. McWhorter

• Decision Date: 22 March 1985
• Docket Number: No. 60444,60444
• Citation: Parks v. McWhorter, 478 N.E.2d 324, 106 Ill.2d 181, 88 Ill.Dec. 9 (Ill. 1985)
• Parties: , 88 Ill.Dec. 9 Rexall Cleo PARKS et al., Appellees, v. Mary Ann McWHORTER, et al. (Mary Ann McWhorter, Appellant).
• Court: Illinois Supreme Court

Page 324

478 N.E.2d 324

106 Ill.2d 181, 88 Ill.Dec. 9

Rexall Cleo PARKS et al., Appellees, v. Mary Ann McWHORTER, et al. (Mary Ann McWhorter, Appellant).

No. 60444.

Supreme Court of Illinois.

March 22, 1985.

Rehearing Denied May 31, 1985.

Feirich, Schoen, Mager, Green & Associates, Carbondale, for defendant-petitioner, Mary Ann McWhorter.

GOLDENHERSH, Justice:

Mary Ann McWhorter (respondent) appealed from the order of the circuit court of Williamson County denying her motion to vacate its interlocutory order entered in an adoption proceeding, which order terminated her parental rights to her son. The appellate court dismissed the appeal for lack of jurisdiction, and we allowed respondent's petition for leave to appeal. 94 Ill.2d R. 315(a).

On May 23, 1983, petitioners, Rexall Cleo Parks and Eugenia Leigh Parks, filed a petition for adoption. (Ill.Rev.Stat.1983, ch. 40, par. 1507.) Attached to the petition was a consent for adoption which respondent had signed on May 6, 1983, in Duval County, Florida. It provided that respondent "relinquish[ed] all rights to and custody of the child" to petitioners. It further provided that respondent "waive[d] notice of any proceedings for this adoption." Because respondent had waived notice of the adoption proceeding, the circuit court conducted an ex parte proceeding. On May 25, 1983, the circuit court entered an interlocutory order finding that respondent had consented to adoption of her son by petitioners and terminating respondent's parental rights. On June 24, 1983, respondent filed a motion to vacate the circuit court's interlocutory order. On January 18, 1984, following a hearing, the circuit court denied respondent's motion to vacate the interlocutory order, and on January 31, 1984, respondent filed a notice of interlocutory appeal. 87 Ill.2d R. 307.

The appellate court dismissed the appeal, holding that under Supreme Court Rule 307(a), an interlocutory appeal must be perfected within 30 days from the entry of the order being appealed. It held that, because the notice of interlocutory appeal was not filed within 30 days from the date of the entry of the interlocutory order and the running of the 30-day period was not tolled by the filing of the motion to vacate the order, the appeal had to be dismissed for lack of jurisdiction.

Supreme Court Rule 307 in part provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court:

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(6) terminating parental rights or granting, denying or revoking temporary commitment in adoption cases;

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The appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal * * *." 87 Ill.2d R. 307(a).

Respondent contends that the filing of the motion to vacate the interlocutory adoption order tolled the time within which the notice of interlocutory appeal was required to be filed. She argues that this interlocutory order is, in effect, a final order because respondent's rights have been terminated and the child has become a ward of the court (Ill.Rev.Stat.1983, ch. 40, par. 1516, subd. B(d); and because it is, in effect, a final order, her motion to vacate should be treated as a post-trial motion which tolled the time within which a notice of appeal was required to be filed.

Although we do not agree with respondent's contentions we are nevertheless of the opinion that the appellate court erred in dismissing the appeal. A reviewing court will not ordinarily search the record for unargued and unbriefed reasons to reverse a lower court's decision; but for jurisdictional reasons such a search is appropriate. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill.2d 379, 386, 24 Ill.Dec. 523, 385 N.E.2d 664.) The record shows that although respondent was joined as a party respondent, she was not served with summons and did not make an appearance prior to the entry of the interlocutory order. Rule 307(b) provides:

"(b) Motion to Vacate. If an interlocutory order is entered on ex parte application, the party intending to take an appeal intending to take an appeal therefrom...