In re A.S.B.

NO. 4-07-0911 Filed 3/28/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: A.S.B., a Minor, ) Appeal from
EMILY MARIE PASIERB, ) Circuit Court of
Petitioner-Appellee, ) Champaign County
v. ) No. 07F184
TEMPLETON STERLING BISHOP, )
Respondent-Appellant. ) Honorable
) John P. Shonkwiler,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
Petitioner, Emily Marie Pasierb, and respondent
Templeton Sterling Bishop, are the biological parents of A.S.B.,
born September 5, 2002. The parties were never married, but in
June 2003, Bishop signed a voluntary acknowledgment of paternity.
In October 2007, upon motion by Pasierb, the trial court
terminated Bishop's parental rights. Respondent appeals.
Because Pasierb filed neither a petition to adjudicate wardship
nor a petition to adopt, the trial court lacked the statutory
authority to terminate Bishop's parental rights. Therefore, we
reverse.
I. BACKGROUND
In May 2007, Pasierb filed a petition to terminate
Bishop's parental rights, alleging Bishop was unfit on numerous
grounds. The petition did not identify the statutory authority
on which it was based. In November 2007, following a hearing on
Bishop's fitness, the trial court found Bishop unfit only on the
ground of depravity. 750 ILCS 50/1(D)(i) (West 2006) (a rebuttal
presumption of depravity exists if a parent is criminally
convicted of at least three felonies, one of which took place
within five years of the filing of the petition or motion for
termination of parental rights). In October 2007, following the
best-interests hearing, the court terminated Bishop's parental
rights to A.S.B.
This appeal followed.
II. ANALYSIS
The parties did not initially raise the issue of the
trial court's authority to terminate Bishop's parental rights.
This court directed the parties to address the issue, and the
parties have filed supplemental briefs.
To invoke a trial court's jurisdiction over a matter, a
party "must initiate a proceeding that provides the trial court
with the relevant statutory authority to act." In re Marriage of
Rhodes, 326 Ill. App. 3d 386, 390, 760 N.E.2d 592, 596 (2001)
(finding that the trial court in a dissolution-of-marriage
proceeding exceeded its statutory authority by declaring a
party's consent to adoption void). A proceeding to involuntarily
terminate parental rights may only be brought under the statutory
authority of the Juvenile Court Act of 1987 (Juvenile Court Act)
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(705 ILCS 405/1-1 through 7-1 (West 2006)) or the Adoption Act
(750 ILCS 50/1 through 24 (West 2006)). See In re M.M., 156 Ill.
2d 53, 61, 619 N.E.2d 702, 708 (1993) (finding that a petition
for termination of parental rights is filed under the Juvenile
Court Act when the child has been previously adjudged abused,
neglected, or dependent and all other involuntary-termination
actions then must proceed under the Adoption Act); Patrick v.
Patrick, 59 Ill. App. 3d 11, 13-14, 374 N.E.2d 1084, 1085 (1978)
(finding that the trial court in a dissolution-of-marriage
proceeding did not have jurisdiction to terminate parental rights
and noting that the Juvenile Court Act and Adoption Act provide
the exclusive authority by which parental rights may be
terminated). In either case, the goals of the termination
proceedings are the same: (1) to determine whether the natural
parents are unfit and if so (2) to determine whether adoption is
in the child's best interests. M.M., 156 Ill. 2d at 61, 619
N.E.2d at 708, citing D. Geraghty, Ending Family Ties:
Termination of Parental Rights in Illinois, 79 Ill. B.J. 572, 574
(1991).
In his supplemental brief, Bishop argues the trial
court lacked jurisdiction to terminate his parental rights
because Pasierb filed neither a petition for the adjudication of
wardship under the Juvenile Court Act nor an adoption petition
under the Adoption Act. In contrast, Pasierb argues the court
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had subject-matter jurisdiction pursuant to section 1(D) of the
Adoption Act to find Bishop unfit and to terminate his parental
rights without the need for Pasierb to file a petition to adopt
and without the need to find the minor was a ward of the court.
A. Pasierb Did Not File a Petition To Terminate
Parental Rights Under the Juvenile Court Act
Under the Juvenile Court Act, any adult person may file
a petition for adjudication of wardship alleging a minor is
abused, neglected, or dependent. 705 ILCS 405/2-13(1), (2) (West
2006). The petition may seek termination of parental rights and
the appointment of a guardian of the person with the power to
consent to the adoption of the minor. 705 ILCS 405/2-13(4) (West
2006). The petitioner may by motion request the termination of
parental rights any time after the entry of a dispositional
order. 705 ILCS 405/2-13(4) (West 2006); but see In re R.K., 247
Ill. App. 3d 512, 515-16, 617 N.E.2d 502, 505 (1993) (finding
that where the minors were found neglected but not yet made wards
of the court, the trial court could properly consider the
adjudication of wardship and termination of parental rights at
the same time). Section 2-29(2) of the Juvenile Court Act sets
forth the process by which the court terminates parental rights
and frees a minor for adoption. 705 ILCS 405/2-29(2), (4) (West
2006) (the court may terminate a parent's parental rights if the
court finds the parent unfit as defined in section 1 of the
Adoption Act and determines that termination of parental rights
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is in the best interests of the minor); see also In re S.B., 316
Ill. App. 3d 669, 671-72, 736 N.E.2d 1164, 1166 (2000).
Neither the State nor Pasierb filed a petition for
adjudication of wardship seeking termination of parental rights.
Therefore, the Juvenile Court Act did not provide the statutory
authority for the trial court's termination of Bishop's parental
rights.
B. The Adoption Act Does Not Provide a Means of
Filing a Petition for Termination of Parental
Rights Absent a Petition To Adopt
Because Pasierb did not file a petition for
adjudication of wardship under the Juvenile Court Act, the only
remaining authority under which the trial court could have
terminated Bishop's parental rights is the Adoption Act. Pasierb
clearly did not file a petition for adoption. Therefore, the
issue is whether Pasierb could seek termination of Bishop's
parental rights under the Adoption Act without filing a petition
for adoption. This raises a question of statutory
interpretation.
When construing a statute, this court's primary
consideration is to determine and give effect to the
legislature's intent. S.B., 316 Ill. App. 3d at 673, 736 N.E.2d
at 1167. This court must presume the "legislature did not intend
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to create absurd, inconvenient[,] or unjust results." In re
R.L.S., 218 Ill. 2d 428, 433, 844 N.E.2d 22, 26 (2006). When
determining the legislature's intent, this court considers the
statute in its entirety, the subject matter the statute
addresses, and the legislature's objective in enacting it.
R.L.S., 218 Ill. 2d at 433, 844 N.E.2d at 26. The most reliable
indicator of intent is the plain language of the statute. In re
D.F., 208 Ill. 2d 223, 229, 802 N.E.2d 800, 804 (2003). The
legislature has provided that the Adoption Act must be "construed
in concert with the Juvenile Court Act." 750 ILCS 50/2.1 (West
2006); D.F., 208 Ill. 2d at 231, 802 N.E.2d at 806.
The Adoption Act provides the method by which a party
may seek to adopt a child either related or unrelated to the
party seeking to adopt. A petition to adopt a child not related
to the petitioner must be filed within 30 days after the child
becomes available for adoption. 750 ILCS 50/5(A) (West 2006). A
person is available for adoption when, among other circumstances,
the person is a child "to whose adoption no consent is required
pursuant to [s]ection 8" of the Adoption Act. 750 ILCS
50/1(F)(b) (West 2006) (defining person available for adoption).
Section 8(a)(1) of the Adoption Act provides that a parent's
consent to adoption is not required when, among other reasons,
the parent is found by the court to be an unfit person. See 750
ILCS 50/8(a)(1) (West 2006)
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The Adoption Act provides that a petition to adopt must
allege the names of natural parents of the child sought to be
adopted, unless the natural parents' parental rights have been
terminated. 750 ILCS 50/5(B)(f) (West 2006). The petition must
also allege that (1) the person or agency having the authority to
consent to the adoption has consented or is willing to consent;
(2) the person having the authority to consent is unfit, stating
the ground therefor; or (3) no consent is required pursuant to
section 8(f). 750 ILCS 50/5(B)(j) (West 2006); see also In re
Chilean D., 304 Ill. App. 3d 580, 584, 710 N.E.2d 24, 27 (1999)
(noting that if the natural parent does not consent to the
adoption, the parent "must be found unfit as a condition
precedent to a termination of parental rights so that an adoption
can take place"). (Section 8(f) is no longer contained in the
Adoption Act but had pertained to parents who were legally
incompetent.)
The Adoption Act provides that as soon as practicable
after the filing of a petition for adoption, the trial court
shall hold a hearing for certain purposes, including the
following:
"If it is proved to the satisfaction of
the court, after such investigation as the
court deems necessary, that termination of
parental rights and temporary commitment of
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the child to an agency or to a person deemed
competent by the court, including
petitioners, will be for the welfare of the
child, the court may order the child to be so
committed and may terminate the parental
rights of the parents and declare the child a
ward of the court or, if it is not so proved,
the court may enter such other order as it
shall deem necessary and advisable." 750
ILCS 50/13(B)(d) (West 2006).
Clearly, the Adoption Act, when read as a whole,
supports the conclusion that a trial court, as part of an
adoption proceeding, may determine whether the natural parent is
unfit and may terminate a natural parent's parental rights. But
compare Johnson v. Burnett, 182 Ill. App. 3d 574, 579, 538 N.E.2d
892, 895 (1989) (holding that parties not related to the child
could not file an adoption petition and later prove the unfitness
of the natural parents because the child was not available for
adoption as defined in the Adoption Act; parents had to be found
unfit before petition could be filed), with In re Petition of
Filippelli, 207 Ill. App. 3d 813, 820-21, 566 N.E.2d 412, 416
(1990) (finding that parties not related to the child sought to
be adopted could file a petition to adopt and allege therein that
the natural parents were unfit). Nothing in the Adoption Act,
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however, gives the trial court the authority to terminate
parental rights outside the adoption context. All of the
provisions in the Adoption Act addressing findings of unfitness
and termination of parental rights are contained in the context
of the adoption petition or parties seeking to adopt the child.
Pasierb argues that the authority for a termination of
parental rights in the absence of a petition to adopt comes from
the definition of "unfit" contained in the Adoption Act. Section
1(D)(i) provides as follows:
"'Unfit person' means any person whom
the court shall find to be unfit to have a
child, without regard to the likelihood that
the child will be placed for adoption. The
grounds of unfitness are any one or more of
the following ***:
* * *
(i) Depravity." 750 ILCS 50/1(D)(i)
(West 2006).
Pasierb argues that the language "without regard to the
likelihood that the child will be placed for adoption"
demonstrates that a petition for adoption need not be pending in
order for a court to find a person "unfit." We disagree.
Notably, no cause of action for a determination of
unfitness alone exists. See Chilean D., 304 Ill. App. 3d at 583,
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710 N.E.2d at 27 (finding the unfitness phase of a termination-
of-parental-rights proceeding is not an "autonomous proceeding"
and refusing to recognize an adjudication of unfitness outside
the context of a proceeding to terminate parental rights).
Pasierb is asking this court to create a cause of action where
none exists. Pasierb's reading of the Adoption Act would require
this court to recognize a cause of action for the termination of
parental rights based on the definition of unfitness contained in
the Adoption Act. As noted, no basis for an adjudication of
unfitness exists outside the context of a proceeding to terminate
parental rights. Further, no proceeding to terminate parental
rights exists outside the Juvenile Court Act (by way of a
petition for the adjudication of wardship) or the Adoption Act
(by way of an adoption petition).
Moreover, a plain reading of section 1(D) indicates
that the language "without regard to the likelihood that the
child will be placed for adoption" (705 ILCS 405/2-29(4) (West
2000)) is a reference to focusing on the parent's conduct when
determining fitness. See In re Tashika F., 333 Ill. App. 3d 165,
169-70, 775 N.E.2d 304, 307 (2002) (examining the language
"without regard to the likelihood that the child will be placed
for adoption" and concluding that when deciding a parent's
fitness, the court focuses only on the parent's conduct). Only
after a parent has been found unfit does the trial court consider
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the child's best interests, including the likelihood of adoption.
Tashika, 333 Ill. App. 3d at 170, 775 N.E.2d at 308.
Pasierb argues that if this court concludes that a
petition for termination of parental rights can only be filed as
part of a petition for adoption or in conjunction with a petition
for the adjudication of wardship under the Juvenile Court Act,
such conclusion will lead to absurd results. Pasierb asserts
that the mother of a child who properly cares for her child has
no means by which to keep an unfit father from the child--at
least until she marries someone who wants to adopt her child.
Contrary to Pasierb's assertion, however, such a mother is not
without remedy. See, e.g., S.B., 316 Ill. App. 3d at 675, 736
N.E.2d at 1168-69 (wherein the State filed a petition to
adjudicate the respondent father's children wards of the court
that also sought an order authorizing the children's mothers to
consent to the adoption of the children; appellate court found
that the trial court did not exceed its statutory authority by
terminating the respondent's parental rights while the children
continued to reside with their mothers). Pasierb may be able to
seek relief under the Illinois Parentage Act of 1984 (750 ILCS
45/14 (West 2006)), which incorporates the custody and visitation
provisions of the Illinois Marriage and Dissolution of Marriage
Act (Dissolution of Marriage Act) (750 ILCS 5/101 et seq. (West
2006)). The Dissolution of Marriage Act gives the circuit court
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the authority to deny visitation rights of a parent if the court
finds that visitation would seriously endanger the child's
physical, mental, moral, or emotional health. See 750 ILCS
5/607(c) (West 2006). Regrettably, the legislature has not
created a cause of action for one parent seeking to terminate the
other parent's rights other than by way of the Juvenile Court Act
or Adoption Act. In any event, this court must not engage in
judicial legislation by recognizing a cause of action the
legislature has not created. See, e.g., Chilean D., 304 Ill.
App. 3d at 583, 710 N.E.2d at 27.
To conclude, the plain language of the Juvenile Court
Act and Adoption Act provides only two ways in which a party can
seek to terminate the parental rights of another: (1) file a
petition for adjudication of wardship under the Juvenile Court
Act or (2) file a petition to adopt alleging that the consent or
surrender of one or both of the parents is not required because
the parent is unfit.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
order terminating Bishop's parental rights because the court
lacked the statutory authority to do so.
Reversed.
APPLETON, P.J., and McCULLOUGH, J., concur.
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