Department of Healthcare & Family Services Ex Rel. Stover v. Warner , 366 Ill. App. 3d 1178 ( 2006 )

NO. 4-05-0464 Filed 8/2/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE ILLINOIS DEPARTMENT OF HEALTHCARE ) Appeal from
AND FAMILY SERVICES ex rel. DEBBIE ) Circuit Court of
STOVER, ) Adams County
Petitioner-Appellee, ) No. 96F44
v. )
EVERETT L. WARNER, ) Honorable
Respondent-Appellant. ) Scott H. Walden,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
In March 1996, the trial court ordered respondent,
Everett L. Warner, to pay child support for his two children. On
October 24, 2002, his parental rights as to those children were
terminated. On May 6, 2005, the court denied Warner's petition
to vacate the child-support order. He appeals. Because section
17 of the Adoption Act relieves natural parents whose parental
rights have been terminated of parental responsibility for their
child (750 ILCS 50/17 (West 2004)), we reverse.
I. BACKGROUND
On February 29, 1996, the Illinois Department of Public
Aid, now known as the Illinois Department of Healthcare and
Family Services (Department), filed a petition on Debbie Stover's
behalf to establish Everett Warner as the father of her children,
C.S. (born December 12, 1993) and B.S. (born August 18, 1995).
On March 28, 1996, the trial court found Warner to be the father
of the children and ordered that he pay child support in the
amount of $46.13 per week. The Department petitioned the court
for modification of the child-support order, and on October 7,
1999, the court increased Warner's support obligation to $120
every two weeks. In a separate proceeding, Warner's and Stover's
parental rights were terminated on October 24, 2002.
On February 2, 2005, Warner filed a pro se motion to
terminate his child-support obligation and recover payments
retroactive to October 24, 2002. At a hearing on February 10,
2005, the Department indicated it would oppose any motion to
cease support until the children were adopted and the State was
no longer responsible for their support. The trial court contin-
ued the matter to allow Warner time to consult an attorney.
On March 3, 2005, Warner's attorney filed a petition to
vacate the child-support order based upon section 17 of the
Adoption Act, which provides:
"After either the entry of an order termin-
ating parental rights or the entry of a
judgment of adoption, the natural parents
of a child sought to be adopted shall be
relieved of all parental responsibility for
such child and shall be deprived of all
legal rights as respects the child ***."
750 ILCS 50/17 (West 2004).
At the March 31, 2005, hearing on the petition, Warner
and the Department stipulated, in relevant part, that (1) Warner
continued to pay child support of $120 every two weeks even after
his parental rights were terminated, (2) the children had been in
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the custody and guardianship of the Illinois Department of
Children and Family Services (DCFS) since before the date of
termination, and (3) the State had received Warner's child-
support payments since the date of termination. The trial court
also took judicial notice of the order in the cases terminating
Warner's parental rights and the most recent order in those cases
showing that the goal for the children remained adoption. The
only issue before the court was whether section 17 of the Adop-
tion Act (750 ILCS 50/17 (West 2004)) relieved Warner of his
obligation to pay child support.
On May 6, 2005, the trial court entered an order
denying Warner's petition pursuant to the "language in Illinois
Supreme Court case In re M.M., 156 Ill. 2d 53, 610 N.E.2d 702
(1993)." This appeal followed.
II. ANALYSIS
Warner's sole contention on appeal is that section 17
of the Adoption Act requires that the trial court terminate his
child-support obligation and that the court erred when, relying
on M.M., it refused to do so. In response, the Department first
claims that section 17 is inapplicable because the children are
not in the process of being adopted. Alternatively, the Depart-
ment argues that the Illinois Supreme Court has determined that
section 17 does not eliminate a natural parent's common-law duty
to support a child in times of need regardless of whether paren-
tal termination or adoption has severed other parental responsi-
bilities and rights. Because both the applicability of section
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17 of the Adoption Act and whether Warner owes his children a
common-law duty of residual support present questions of law, our
review is de novo. See In re Marriage of Rogers, 213 Ill. 2d
129, 135-36, 820 N.E.2d 386, 389-90 (2004).
A. Applicability of Section 17
Section 17 of the Adoption Act provides that "the
natural parents of a child sought to be adopted" are relieved of
parental responsibility "[a]fter either the entry of an order
terminating parental rights or the entry of a judgment of adop-
tion." 750 ILCS 50/17 (West 2004). The Department urges that
section 17 does not relieve Warner of his responsibility to pay
child support because he is not the natural parent of "a child
sought to be adopted," as no evidence before the trial court
suggested that anyone was seeking to adopt either child.
Section 17 does not provide that natural parents are
relieved of parental responsibility and deprived of legal rights
only where their legal rights have been terminated and a specific
person has expressed interest in adopting their natural child.
Rather, a fair reading of the statute includes situations where a
child is available for adoption, whether or not someone is
actively seeking to adopt that child, and where a child has been
adopted.
In this case, the trial court took judicial notice that
Warner's parental rights were terminated and that the goal for
C.S. and B.S. was adoption. Therefore, section 17 applies to
Warner.
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B. Residual Duty of Support
The trial court denied Warner's petition to vacate the
child-support order, stating "[p]ursuant to the clear language in
In re M.M., 156 Ill. 2d 53, 62, 619 N.E.2d 702, 708 (1993),
termination of [Warner's] parental rights did not extinguish his
obligation to support his children."
Generally, in the United States when an adoption occurs
the adoptive parents replace the blood parents for all purposes.
2 H. Clark, Domestic Relations in the United States '21.12, at
683 (2d ed. 1987). The consequences of the adoption decree rest
in the first instance upon the applicable state statute. A
common form of statute in earlier days contained only a brief
statement that the final decree of adoption divests the natural
parents of their rights and duties. In some states, some aspects
of the parent-child relationship between the adopted child and
his natural parents were preserved. 2 H. Clark, Domestic Rela-
tions in the United States '21.12, at 683 (2d ed. 1987). More
recent statutes, however, have generally spelled out the mandate
that the adopted child will have no further rights and obliga-
tions with respect to his natural parents, with the single
exception that if a stepparent adoption occurs, it does not
affect the parent-child relationships between the child and his
natural parent. 2 H. Clark, Domestic Relations in the United
States '21.12, at 683-84 (2d ed. 1987). "[D]ifferent issues are
involved in determining the best interest of the child in an
adoption by strangers and in an adoption by a natural parent and
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a new spouse." Lingwall v. Hoener, 108 Ill. 2d 206, 213-14, 483
N.E.2d 512, 516 (1985).
Illinois has followed the national pattern. The
supreme court, in M.M., noted this history in a case holding the
Adoption Act did not allow a court to condition an adoption on
the adoptive parents' agreement to permit contact by the minors
with their biological families.
"With the exception of the biological parents'
residual duty to support their children (Dwyer
v. Dwyer (1937), 366 Ill. 630, 633-34[, 10
N.E.2d 344, 346]), and the children's right
to inherit from and through their biological
parents (In re Estate of Tilliski (1945), 390
Ill. 273[, 61 N.E.2d 24]), adoption constitutes
a complete and permanent severance of all legal
and natural rights between such parents and
children." M.M., 156 Ill. 2d at 62, 619 N.E.2d
at 708.
The support case, Dwyer, involved a situation similar
to a stepparent adoption, a situation where the maternal grand-
parents adopted the child prior to the divorce, the grandfather
died, and the natural mother readopted the child. The court
ordered the natural father to pay child support despite the
adoptions, noting the statute then in existence simply relieved
the natural parents of their rights, not their duties: "'The
natural parents of a child so adopted shall be deprived, by the
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decree, of all legal rights, as respects the child, and the child
shall be freed from all obligations of maintenance and obedience
as respects such parents.'" Dwyer, 366 Ill. at 633, 10 N.E.2d at
345-46, quoting Ill. Rev. Stat. 1935, ch. 4, par. 8. As in other
states, Illinois's statute has changed. The Adoption Act now
specifically provides that the natural parents are "relieved of
all parental responsibility" in addition to being "deprived of
all legal rights." (Emphasis added.) 750 ILCS 50/17 (West
2004). Section 17 makes it "grimly clear" that "[t]ermination of
parental rights destroys the parent-child relationship." In re
Adoption of Syck, 138 Ill. 2d 255, 274-75, 562 N.E.2d 174, 183
(1990) (unfitness must be proved by clear and convincing evi-
dence; child's best interests not relevant at this stage); see
also In re C.B., 221 Ill. App. 3d 686, 688, 583 N.E.2d 107, 108
(1991) (when parental rights are terminated, "[t]o be blunt, the
situation is as if the parent has died").
The inheritance case, Tilliski, has experienced a
similar history. That case held that, under the statute then
existing, a child who had been adopted was entitled to inherit
from her natural mother who died intestate. Tilliski, 390 Ill.
at 285, 61 N.E.2d at 29. The statute has now been changed. "For
purposes of inheritance from or through a natural parent and for
determining the property rights of any person under any instru-
ment, an adopted child is not a child of a natural parent, nor is
the child a descendant of a natural parent or of any lineal or
collateral kindred of a natural parent." 755 ILCS 5/2-4(d) (West
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1998); In re Estate of Goodkind, 356 Ill. App. 3d 607, 618, 827
N.E.2d 6, 16 (2005). Where parties are divorced, and the chil-
dren are adopted by the mother's new husband, however, the
children may inherit from their biological father under an
exception to section 2-4(d). See In re Estate of Snodgrass, 336
Ill. App. 3d 619, 621-22, 784 N.E.2d 431, 433 (2003).
The question before us must be decided by an examina-
tion of the existing statutes. See M.M., 156 Ill. 2d at 72, 619
N.E.2d at 713 ("the issue before us, though steeped in policy
considerations, turns solely on an interpretation and application
of our Juvenile Court Act" (emphasis in original)). Section 17
provides that natural parents whose parental rights have been
terminated "shall be relieved of all parental responsibility."
750 ILCS 50/17 (West 2004). This is such a situation. Warner's
parental rights were terminated in October 2002. The obligation
to pay child support is a parental responsibility. Therefore,
Warner's support obligation should cease.
The trial court noted that section 17 of the Adoption
Act was in effect when the supreme court decided M.M. That is
correct but, as we have noted, the supreme court was considering
historical context in M.M. and did not attempt to address the
current viability of any residual duty of support. The supreme
court mentioned the residual duty to support in the course of a
"general discussion concerning proceedings to terminate parental
rights and the legal effect of an adoption judgment" (M.M., 156
Ill. 2d at 61, 619 N.E.2d at 707). See M.M., 156 Ill. 2d at 63,
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619 N.E.2d at 708 ("[t]he narrow issue presented *** is whether
the juvenile court *** may condition the court-appointed guard-
ian's power to consent to adoption"). Section 17 of the Adoption
Act is not mentioned in the opinion. Other Illinois cases have
cited Dwyer for the proposition that a natural parent has a
residual duty to support his child. See, e.g., Bachleda, 48 Ill.
2d at 19, 268 N.E.2d at 13; Lingwall, 108 Ill. 2d 206, 483 N.E.2d
512. None of those cases, however, presented a question regard-
ing a natural parent's support obligation or examined the issue
in light of changes in the language or effect of the Adoption
Act.
III. CONCLUSION
For the reasons stated, we reverse the trial court's judgment.
Reversed.
MYERSCOUGH and KNECHT, JJ., concur.
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