Petition of Kirchner

• Citation: 208 Ill.Dec. 268,649 N.E.2d 324,164 Ill.2d 468
• Decision Date: 28 February 1995
• Docket Number: No. 78101,78101
• Court: Supreme Court of Illinois
• Parties: , 208 Ill.Dec. 268, 63 USLW 2592 In re Petition of Otakar KIRCHNER, Natural Father, for a Writ of Habeas Corpus Ordering John and Jane Doe, Custodians of His Son, Richard, to Deliver Richard to Him (Otakar Kirchner, Petitioner; John and Jane Doe et al., Respondents).

Page 324

649 N.E.2d 324

164 Ill.2d 468, 208 Ill.Dec. 268, 63

USLW 2592

In re Petition of Otakar KIRCHNER, Natural Father, for a

Writ of Habeas Corpus Ordering John and Jane Doe, Custodians

of His Son, Richard, to Deliver Richard to Him (Otakar

Kirchner, Petitioner; John and Jane Doe et al., Respondents).

No. 78101.

Supreme Court of Illinois.

Feb. 28, 1995.

Certiorari Denied June 19, 1995. See 115 S.Ct. 2599.

[164 Ill.2d 470] [208 Ill.Dec. 269] Loren L. Heinemann, Orland Park, for petitioner.

Jerold S. Solovy, Laura A. Kaster, Cecelia M. Comito, Ruth A. Bahe-Jachna and Diane I. Bonina, Jenner & Block, and Richard A. Lifshitz, of Mandel, Lipton & Stevenson, Ltd., all of Chicago, for respondents John Doe and Jane Doe. Patrick T. Murphy, Lee Ann Lowder, Kass A. Plain and Mary Kenney, of the Office of the Cook County Public Guardian, Chicago, for guardian ad litem Edward J. O'Connell.

Roland W. Burris, Atty. Gen., Springfield, intervening on behalf of the State of Illinois.

PER CURIAM:

Otakar Kirchner was granted leave to file with this court a complaint for writ of habeas corpus on behalf of his son on November 15, 1994. The petition was premised upon this court's June 16, 1994, opinion invalidating the Does' adoption of Kirchner's son, herein identified as Richard. (In re Petition of Doe (1994), 159 Ill.2d 347, 202 Ill.Dec. 535, 638 N.E.2d 181.) The petition requested that this court order the Does to surrender custody of Richard to Kirchner.

Oral arguments on the propriety of the writ and the Does' standing to seek a separate custody hearing were held on January 25, 1995. On that same day following oral arguments, this court concluded that, under the circumstances of this case, the Does did not have standing under the law to request a custody hearing in the trial court. Consequently, we ordered the writ of habeas corpus to issue immediately in order to bring this protracted litigation to an end and to prevent any further delay in the process of uniting father and son. Our opinion follows.

HISTORY OF THE CASE

Otakar Kirchner (Otto) and Daniella Janikova, both Czechoslovakian immigrants, started dating in September of 1989 and began living together later that year. Seven months later, Daniella became pregnant. She and Otto continued living together and planned to get married. They obtained two marriage licenses towards this end, though they did not marry prior to the birth of their child, now commonly known as "Baby Richard." Shortly before Richard's birth, Otto returned to his native Czechoslovakia for two weeks to visit a dying relative. While he was away, a relative from Czechoslovakia telephoned Daniella and told her that Otto had resumed a relationship there with a former girlfriend. Distraught upon hearing this report, Daniella tore up their current marriage license, gathered her belongings and moved into a women's shelter because she had nowhere else to go.

While Daniella was living at the shelter, and before Otto returned from his trip abroad, Daniella's instructor at the beauty school she was attending encouraged her to put the baby up for adoption. This instructor phoned her lawyer, Ed Shapiro, who informed his employee, Mrs. Doe, that there was a baby available for adoption. The next day, the Does contacted Daniella about the adoption. The day after that, the Does had an attorney named Tom Panichi call Daniella and commence the adoption proceedings. Through Panichi, the private adoption of not-yet-born Richard was arranged between Daniella and the Does.

At all relevant times, both the Does' lawyer and the Does were fully aware that Daniella knew who the father was and that she intended to tell the father that the child had died at birth. Indeed, according to the testimony of the Does' lawyer, Panichi, Daniella told him that Otto would not consent to the adoption and asked him whether he knew how to fake a death certificate, to which he responded that he did not know how this could be done and that he could not be a party to obtaining a fake death certificate.

Rather than insist that Daniella disclose the name of the father so that he could be properly notified and his consent to the adoption procured, the Does and their attorney acquiesced in Daniella's scheme to tell Otto that his child had died at birth, even arranging for Daniella to give birth in a different hospital than she and Otto had originally planned. Indeed, attorney Panichi testified that he and the Does believed that "she was going to be able to control [Otto] from coming forward by still secreting the birth and the whereabouts [of the birth]."

Moreover, in his "Affidavit For Service By Publication," Panichi falsely stated that the father "upon due inquiry cannot be found so that process cannot be served upon defendant." The Does continued this subterfuge in their adoption petition filed with the circuit court, which falsely alleged under oath that the father was "unknown." Curiously Unsuspecting, Otto returned to Chicago prior to Daniella's due date, whereupon he discovered that Daniella had left him. He learned through friends that she had gone to a women's shelter. He and Daniella then went through a period of reconciliation, during which time she did not inform him that she had arranged to place their child for adoption. When the birth took place on March 16, 1991, Otto's efforts to contact Daniella were rebuffed. He was told by Daniella's friends and relatives that his child had died at birth. We note that Otto and Daniella married in September of 1991.

[208 Ill.Dec. 271] the record is devoid of any effort by the Does' lawyer to contact Daniella's beauty school instructor or any of Daniella's friends or relatives in an attempt to obtain Otto's identity. Nor was any attempt made to learn Otto's name by checking out the address that Daniella and Otto had shared for over a year prior to Richard's birth and where Otto still lived. In short, no reasonable inquiry was made.

In the weeks immediately following the birth, Otto, suspicious of the story that his child had died, attempted to discover the truth. In considering Otto's activities in the first 30 days after Richard's birth, the trial court found that Otto had called and visited the hospital in which he and Daniella had planned to have their baby, as well as other hospitals, but could not locate any record of his child being born. The trial court also found that Otto had rooted through the garbage cans outside Daniella's uncle's house where she was staying in an attempt to discover whether there were any diapers or other physical evidence which would indicate that his baby was alive.

On May 12, 1991, or 57 days after the birth of Richard, Daniella confessed to Otto that she had given birth to a baby boy and had placed him in an adoptive home. At this juncture, Otto commenced his efforts to gain custody of his son. He retained a lawyer to help him. On June 6, 1991, Otto's lawyer entered an appearance on Otto's behalf in the subject adoption proceeding.

We note that at this point the adoption proceedings were rendered wholly defective. On June 6, 1991, the Does had both a legal and moral duty to surrender Richard to the custody of his father. Richard was then less than three months of age. Instead, the Does selfishly clung to the custody of Richard. They have prolonged these painful proceedings to the child's fourth birthday and have denied Otto any access to his own son.

After protracted procedural posturing on the part of the Does, a hearing was finally had on Otto's petition to defeat the adoption wherein it was established that neither had he been notified nor had he consented to the adoption as required under the Adoption Act. The Does subsequently petitioned the court to find that Otto's parental rights should be terminated because he was unfit, thus obviating the need for his consent.

After a hearing, the trial court found that Otto was unfit pursuant to section 1(D)(1) of the Adoption Act, which provides that an unwed father is unfit where it is found by clear and convincing evidence that he has "fail[ed] to demonstrate a reasonable degree of interest, concern or responsibility as to the welfare of a new born child during the first 30 days after its birth." (750 ILCS 50/1(D)(1), 8(a)(1) (West 1992).) Though the trial court found that Otto, in an attempt to learn the truth about Richard, called various hospitals and had sorted through Daniella's garbage cans in his search for evidence, all in the first 30 days after Richard's birth, the trial court did not deem this sufficient to show interest under section 8(a)(1). Rather, the court concluded, in essence, that Otto's efforts were insufficient because he did not contact a lawyer in that 30-day period. It was on this untenable basis that the trial court ruled that Otto was unfit.

Otto filed a notice of appeal. Fifteen months later, the appellate court, per Justice Rizzi, affirmed the trial court in a divided opinion (In re Petition of Doe (1993), 254 Ill.App.3d 405, 194 Ill.Dec. 311, 627 N.E.2d 648 (Tully, P.J., dissenting)). By the time the appellate opinion was filed, Richard was 2 1/2 years of age.

In erroneously affirming the trial court, the appellate court's majority opinion concentrated its discussion on the best-interests-of-the-child standard, addressing only secondarily In vacating the adoption, this court noted that a child is not available for adoption until it has been validly determined that the rights of his parents have been properly terminated. As this court held in In re Adoption of Syck (1990), 138 Ill.2d 255, 276-78, 149 Ill.Dec. 710, 562 N.E.2d 174, when ruling on parental unfitness, a court cannot consider the child's best interests, since the child's welfare is not relevant in judging the fitness of the natural parent. Only after the parent has been found by clear and convincing evidence to be unfit can the court proceed to consider the child's best interests and whether...