Gillion v. People

Mr. PRESIDING JUSTICE STENGEL delivered the opinion of the court: Petitioner Cynthia Gillion appeals from an order of the Circuit Court of Will County which denied her petition for restoration of her parental rights and other relief. This cause originated in 1972 when the Will County State’s Attorney filed a petition alleging that William and Robert Workman were neglected minors and should be made wards of the court pursuant to section 4 — 1 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 704— 1). During the course of those proceedings, the boys’ father Robert Workman signed a written consent to adoption, and after a hearing as to the mother’s fitness, the trial court entered an order on April 5, 1973, finding her unfit and terminating her parental rights in accordance with section 5 — 9 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 705— 9). Because of her indigency, counsel was appointed to represent the mother at the fitness hearing. After judgment was entered the mother, who is the petitioner herein, was advised of her right to appeal, but the record does not show that the court made any inquiry as to her financial condition or advised her of her right to a free transcript and appointed counsel for the appeal. Later petitioner retained her former appointed counsel and on October 12, 1973, filed a petition for rehearing. Because the petition asserted changed circumstances, including petitioner’s divorce from Workman, the trial court apparently elected to treat the petition for rehearing as a petition for restoration of parental rights, and an evidentiary hearing was held. The petition was denied on April 5, 1974. On appeal this court affirmed the trial court (In re Workman (3d Dist. 1975), 38 Ill. App. 3d 261, 344 N.E.2d 796), with the majority opinion recognizing petitioner’s right to petition for restoration of her parental rights, but holding that the decision of the trial court was not contrary to the manifest weight of the evidence. After petitioner was denied both leave to appeal by the Illinois Supreme Court and a writ' of certiorari by the United States Supreme Court, she filed a new petition in the circuit court titled “Amended Petition for a Report of the Guardian and for a Restoration of Parental Rights; a Petition for a Writ of Habeas Corpus; and a Petition Pursuant to Section 72 of the Illinois Civil Practice Act.” In this petition she alleged that changes in her circumstances indicate that it would be in the children’s best interest for them to return to her and that the April 5,1973, order was illegal because she was not notified of her right to a free appeal and because her appointed trial counsel failed to file a timely notice of appeal. In her prayer for relief she requested a hearing on the question of custody and also requested that she be allowed to file a notice of appeal nunc pro tunc from the April 5, 1973, order finding her unfit. The trial court denied the petition without an evidentiary hearing on the merits and stated that the best interest of the minor children required finality for the order terminating parental rights. This appeal followed. We affirm. Petitioner argues that she had an absolute right to a hearing on her petition since, in our earlier decision, we acknowledged her right to petition for restoration of her parental rights after a termination order and found that there was no time limit within which such a petition must be filed. (In re Workman (3d Dist. 1975), 38 Ill. App. 3d 261, 264, 344 N.E.2d 796, 798.) She also cites In re Ramelow (3d Dist. 1954), 3 Ill. App. 2d 190, 121 N.E.2d 41, where the court ruled that an order depriving a mother of custody of her children and appointing a guardian was a continuing order, subject to modification, and therefore that the mother was entitled to a hearing on her petition to restore her right to custody as long as such petition predated any adoption petition. Although we relied upon Ramelow in our earlier decision in this cause, we now conclude that the 1954 Ramelow decision is not controlling here because subsequent statutory amendments have changed the law governing termination of parental rights. At the time of Ramelow, section 9c of the Family Court Act (Ill. Rev. Stat. 1953, ch. 23, par. 201) provided that, where a dependent, neglected or delinquent minor had been awarded to a guardian, the minor or any interested person might “from time to time upon a proper showing apply to the court for the appointment of a new guardian or the restoration of such child to the custody of its parents or for the discharge of the guardian so appointed.” That provision, relating solely to custodial rights, has been substantially retained in section 5 — (3) of the Juvenile Court Act,1 but the laws relating to the termination of all parental rights have undergone significant change. In 1954 section 15 of the Family Court Act (Ill. Rev. Stat. 1953, ch. 23, par. 209), provided for appointment of a guardian with power to consent to the adoption of the child, but made no mention of the termination of parental rights. Rather, section 5 — 1 of the Adoption Act of 1945 (Ill. Rev. Stat. 1953, ch. 4, par. 5 — 1), then in effect, provided that a decree of adoption deprived the natural parents of all legal rights with respect to the child. Thus, at that time natural parents could not be permanently deprived of their legal rights prior to entry of a decree of adoption, and petitions for a restoration of custody could be filed until the adoption became final. Such was the holding in Ramelow. In 1957, section 15 of the Family Court Act (Ill. Rev. Stat. 1957, ch. 23, par. 2026) was amended to provide that an order authorizing a guardian to consent to an adoption “shall deprive the natural parents of such child of all legal rights as respects such child ° ° Two years later the Adoption Act of 1959 was enacted, and former section 5 — 1 was revised to be compatible with the amended Family Court Act, as follows: “After the entry either of an order terminating parental rights or the entry of a decree 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, and the child shall be free from all obligations of maintenance and obedience as respects such natural parents.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 4, par. 9.1 — 17.) This section quite clearly requires that an order terminating parental rights be accorded the same legal effect as a decree of adoption insofar as the natural parents are concerned. As Justice Cardozo said in Williams v. Baltimore (1933), 289 U.S. 36, 46, 77 L. Ed. 1015, 1024, 53 S. Ct. 222, “Time with its tides brings new conditions which must be cared for by new laws.” In People v. Gibbs (5th Dist. 1975), 30 Ill. App. 3d 878, 333 N.E.2d 226 (abstract), where the natural mother sought visitation rights after the court had entered an order terminating her parental rights, the reviewing court considered the legislative history of these statutes and concluded that the trial court properly refused to hear the petition. Justice Eberspacher stated: “The reason for the change in the statute is clear. Under the repealed statute, [Ill. Rev. Stat. 1953, ch. 4, par. 5 — 1], visitation and custody could still be sought until the very consummation of the adoption. The uncertainty and upheaval this avenue created was not beneficial for the children, the natural parents or the adoptive parents. The statute was changed to make the termination final ° * The court in Gibbs held that, even before a final adoption proceeding, all rights are terminated by an order of termination of parental rights. (Accord, Gray v. Starkey (5th Dist. 1976), 41 Ill. App. 3d 555, 353 N.E.2d 703.) Thus a distinction must be drawn between a custody order, such as that in Ramelow, and an order terminating all parental rights. See also In re Overton (2d Dist. 1974), 21 Ill. App. 3d 1014, 316 N.E.2d 201. We also note that petitioner’s view would require notice to or joinder of natural parents when an adoption petition is filed. (See Justice Barry’s special concurring opinion in In re Workman (3d Dist. 1975), 38 Ill. App. 3d 261, 266, 344 N.E.2d 796, 800.) The court in Gray v. Starkey observed: “[Ojnce the rights of a parent have been terminated by a court of competent jurisdiction, the name and address of the parent ‘shall be omitted’ from an adoption petition brought thereafter and the parent is not to be made a party defendant to the petition. Ill. Rev. Stat., ch. 4, pars. 9.1-5B(f)(1) and 9.1—7A.” (41 Ill. App. 3d 555, 560, 353 N.E.2d 703, 707.) Obviously the Adoption Act does not now contemplate the survival of any residual rights in the natural parents once an order of termination has been entered. The legislature has determined that the best interest of children of unfit parents requires a final and permanent termination of all legal rights of the parents in advance of the adoption decree. We agree with the trial court that the best interest of the Workman children requires that their legal status be determined with certainty. According to the record, the foster parents, who have cared for the boys for five years, are waiting for the final termination of petitioner’s rights before filing a petition to adopt. In our view, after the expiration of petitioner’s right to appeal from the 1973 order terminating her parental rights, she was no longer entitled to seek a restoration of those rights by means of a petition to modify that order. To the extent our earlier opinion in In re Workman can be said to have permitted such a procedure, it is overruled. Petitioner also argues that she is entitled to a writ of habeas corpus or to relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) because she was denied her constitutional rights to due process and equal protection when the trial court failed to advise her of her right to a free appeal in 1973. The extraordinary remedy of habeas corpus is available only on the grounds specified in the statute (Ill. Rev. Stat. 1975, ch. 65, par. 22), and petitioner’s allegations fall outside the scope of the statute. (People v. Warr (1973), 54 Ill. 2d 487, 298 N.E.2d 164.) Likewise, she has no valid basis for relief-under section 72 since an alleged denial of constitutional rights cannot be raised by a section 72 petition. People v. Warr; In re Overton (2d Dist. 1974), 21 Ill. App. 3d 1014, 316 N.E.2d 201. For the reasons stated, we affirm the judgment of the Circuit Court of Will County. Affirmed. BARRY, J., concurs. Footnotes [1] “The minor or any person interested in the minor may apply to the court for a change in custody of the minor and the appointment of a new custodian or guardian of the person or for the restoration of the minor to the custody of his parents or former guardian or custodian.” Ill. Rev. Stat. 1975, ch. 37, par. 705 — 8(3).