Illinois Department of Healthcare and Family Services v. Warner ( 2008 )

Docket No. 103289.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE ILLINOIS DEPARTMENT OF HEALTHCARE AND
FAMILY SERVICES, Appellant, v. EVERETT WARNER,
Appellee.
Opinion filed January 25, 2008.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Garman and Burke concurred
in the judgment and opinion.
Justice Kilbride dissented, with opinion, joined by Justices
Fitzgerald and Karmeier.
OPINION
In February 1996 the Illinois Department of Public Aid, now
known as the Illinois Department of Healthcare and Family Services
(the Department), filed a petition in the circuit court of Adams County
to establish Everett Warner (respondent) as the father of C.S. and
B.S. Respondent entered into an agreed judgment of parentage, and
the court ordered him to pay child support. In October 2002, in a
separate proceeding, respondent’s parental rights were terminated.
More than two years later–in March 2005–respondent petitioned the
circuit court to vacate the child support order. Relying on section 17
of the Adoption Act (750 ILCS 50/17 (West 2004)), respondent
argued that the termination of his parental rights had also ended his
parental responsibilities, including the obligation to pay child support.
The circuit court denied the petition, and respondent appealed. The
appellate court reversed. 366 Ill. App. 3d 1178. For the reasons set
forth below, we reverse the judgment of the appellate court.
BACKGROUND
Debbie Stover is the mother of C.S., born December 12, 1993,
and B.S., born August 18, 1995. In February 1996, the Department
petitioned the circuit court, on Stover’s behalf, to establish respondent
as the father of the two children, and to order him to pay child
support. On March 28, 1996, the court entered a judgment of
parentage, pursuant to the parties’ stipulation, finding that respondent
was the father of C.S. and B.S. The court ordered respondent to pay
child support in the amount of $46.13 per week. In September 1999
the Department petitioned the court for a modification of the child
support order. The petition, which alleged that the mother had
custody of the children, claimed that there had been a “significant
change in circumstances” since the initial child support order was
entered. According to the Department, there was a need for health
insurance or some other means of providing for the children’s health
care. The Department asked that respondent be ordered to carry
dependent health insurance and to pay any uninsured health-care
costs. On October 7, 1999, the court increased respondent’s support
obligation to $120 every two weeks. However, the court denied the
Department’s health insurance request “due to [the] prohibitive cost
to obtain such insurance for the dependents.” The court added:
“Respondent agrees to [the] increase in the support obligation.”
On October 24, 2002, in a separate proceeding in juvenile court,
respondent’s and Stover’s parental rights were terminated. The record
in the case at bar contains no copies of the termination orders.
On February 2, 2005, respondent filed a pro se motion to end his
child support obligation. In support of this motion, respondent noted
that both his and Stover’s parental rights had been terminated. At the
hearing that followed, the Department informed the court that
respondent’s support payments were being used by the state to help
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pay for the children’s foster care. The Department indicated it would
oppose any motion to end respondent’s support obligation. According
to the Department, a parent’s obligation to support a child does not
end with the termination of parental rights. That obligation would
cease, the Department asserted, only if the child were adopted. The
circuit court continued respondent’s motion in order to allow him time
to consult with an attorney.
Respondent retained an attorney, and filed a petition to vacate the
child support order. The petition was based on section 17 of the
Adoption Act, which provides that, after either a termination of
parental rights or a judgment of adoption, the natural parents of a
child sought to be adopted shall be relieved of all parental
responsibility for the child. 750 ILCS 50/17 (West 2004).
On March 31, 2005, at a hearing on the petition, respondent and
the Department stipulated, in relevant part, that (1) respondent had
continued to pay child support of $120 every two weeks even after his
parental rights were terminated, (2) the children had been in 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 respondent’s child support payments since the
date of termination. The circuit court took judicial notice of the
juvenile court orders in cases 00–JA–41 and 00–JA–42 terminating
respondent’s and Stover’s parental rights, as well as the most recent
order in those cases showing that the goal for the children remained
adoption.
During the March 31 hearing, respondent argued that, under
section 17 of the Adoption Act, he was relieved of all parental
responsibility, including any obligation to pay child support. In
response, the Department argued that, under In re M.M., 156 Ill. 2d
53 (1993), the termination of parental rights does not effect a
complete severance between a child and its natural parents. The parent
still has a residual, common law duty to support the child, and this
residual duty stands as an exception to section 17 of the Adoption
Act. According to the Department, respondent in the case at bar
retained a residual obligation to pay child support, even though his
parental rights had been terminated.
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On May 6, 2005, the circuit court entered an order denying
respondent’s petition to vacate the child support order. The court
stated:
“Pursuant to the clear language of In re M.M., 156 Ill. 2d
53, 619 N.E.2d 702, 708 (1993), termination of the
respondent’s parental rights did not extinguish his obligation
to support his children, notwithstanding the language of 750
ILCS 50/17, which was in effect at the time of the holding in
In re M.M.”
Respondent appealed, and the appellate court reversed. 366 Ill.
App. 3d 1178. The appellate court held that, under section 17 of the
Adoption Act, a termination of parental rights ends all parental
responsibility, including the obligation to pay child support. In
reaching this decision, the court rejected the Department’s arguments
that (1) section 17 did not apply to the case at bar because neither
C.S. nor B.S. was in the process of being adopted, and, alternatively
(2) even if section 17 did apply, the termination of parental rights did
not eliminate a natural parent’s common law, residual duty to support
a child. With regard to the first argument, the appellate court
acknowledged that section 17, by its terms, applies to “ ‘the natural
parents of a child sought to be adopted.’ “ 366 Ill. App. 3d at 1180,
quoting 750 ILCS 50/17 (West 2004). The court also noted the
Department’s assertion that there was no evidence before the trial
court suggesting that anyone was seeking to adopt C.S. or B.S.
Nevertheless, the appellate court concluded: “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.” 366 Ill. App. 3d at 1180. The
appellate court noted that respondent’s parental rights had been
terminated and that the goal for C.S. and B.S. was adoption.
According to the appellate court, C.S. and B.S. therefore were
available for adoption, and section 17 applied.
Turning to the Department’s alternative argument regarding the
residual duty of support, the court pointed to M.M., upon which the
circuit court relied in concluding that respondent’s obligation to
support his children survived the termination of his parental rights.
The appellate court asserted that M.M.’s mentioning of the residual
duty of support was part of a general discussion dealing with historical
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context. According to the appellate court, M.M. “did not attempt to
address the current viability of any residual duty of support.” 366 Ill.
App. 3d at 1182. The appellate court added that M.M. made no
specific mention of section 17 of the Adoption Act.
We allowed the Department’s petition for leave to appeal. 210 Ill.
2d R. 315. We also allowed the Cook County public guardian to file
an amicus curiae brief in support of the Department. 210 Ill. 2d R.
345.
ANALYSIS
Before this court, the Department advances the same two
arguments it raised below. First, the Department contends that section
17 is inapplicable to the case at bar because neither C.S. nor B.S. is “a
child sought to be adopted” (750 ILCS 50/17 (West 2004)).
Alternatively, the Department argues that even if section 17 does
apply, it does not eliminate a natural parent’s common law, residual
duty of support, which survives a termination of parental rights.
To address the Department’s first argument, we are required to
construe section 17 of the Adoption Act. Our review is therefore de
novo. In re Detention of Lieberman, 201 Ill. 2d 300, 307 (2002). The
primary objective in interpreting a statute is to give effect to the intent
of the legislature. Harshman v. DePhillips, 218 Ill. 2d 482, 493
(2006); Lieberman, 201 Ill. 2d at 307. The most reliable indicator of
the legislature’s intent is the language of the statute, which is given its
plain, ordinary and popularly understood meaning. Lieberman, 201 Ill.
2d at 308. “We read the statute as a whole, considering all relevant
parts.” Harshman, 218 Ill. 2d at 493.
Section 17 provides:
“After either the entry of an order terminating 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, and the child shall be free
from all obligations of maintenance and obedience as respects
such natural parents.” (Emphasis added.) 750 ILCS 50/17
(West 2004).
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According to its plain language, section 17 applies to the natural
parents of a child “sought to be adopted.” The term “seek” is defined
as “to make an attempt: TRY.” Webster’s Third New International
Dictionary 2055 (2002). Under this definition, a child “sought to be
adopted” is one whom someone is attempting or trying to adopt.
Section 17 does not identify who may seek to adopt a child. This
section could reasonably, although erroneously, be construed in
isolation to mean that merely by making a child available for adoption
the state “seeks” to have the child adopted. This is not the case.
Section 2 of the Adoption Act provides that only individuals who
meet certain requirements may institute an adoption proceeding. 750
ILCS 50/2 (West 2004). When section 17 is read in conjunction with
section 2, it is clear that the state cannot seek the adoption of a child.
In the case at bar, there is no indication in the record that C.S. and
B.S.–who are 13 and 12 years old, respectively–are now, or ever
were, in the process of being adopted. 1 Accordingly, under the plain
meaning of the relevant statutory terms, neither of them is “a child
sought to be adopted” (750 ILCS 50/17 (West 2004)).
Notwithstanding the foregoing, respondent argues that section 17
should not be interpreted as applying only where the child is “sought
to be adopted.” According to respondent, construing the statute in this
manner would lead to an absurd result: “the statute would not apply
to a child who is adopted and therefore no longer sought to be
adopted.” Respondent appears to argue that, because of this absurd
result, the “sought to be adopted” language should not apply after the
entry of a judgment of adoption. According to respondent, this
language also should not apply after the termination of parental rights.
Respondent’s argument, in essence, is that in construing section 17,
we should ignore the “sought to be adopted” language.
Section 17 deals with the effect on parental rights and
responsibilities of two distinct judicial actions: an order terminating
parental rights and a judgment of adoption. In the latter of these
two–the entry of a judgment of adoption–the result is that the child is
adopted. In such situations, where section 17 applies “after the entry
1
In his brief to this court, respondent does not argue that C.S. and B.S.
were sought to be adopted.
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of a judgment of adoption” and the child is adopted, it would be
illogical to limit the statute’s application to instances where the child
is “sought to be adopted.” By definition, a child who is adopted
cannot simultaneously be “sought to be adopted.” The two terms
cancel each other out. However, the same cannot be said of an order
terminating parental rights, which does not necessarily result in the
adoption of the child. Where the child is not adopted, there is no
contradiction in terms–as there is in the judgment-of-adoption
situation–that would prevent the application of the “sought to be
adopted” language. Moreover, where the child is not adopted, there
is a sound policy reason for limiting the termination of parental
responsibilities to situations where the child is “sought to be adopted.”
Section 17 contemplates that, once a prospective adoptive parent
steps forward, the transition to an adoptive parent’s taking financial
responsibility for the child can begin to take place. However, where
no prospective adoptive parent has come forward, the termination of
the natural parent’s support obligation would leave the child with only
the state to look to for sustenance. By limiting the application of
section 17 to situations where the child is “sought to be adopted,” the
General Assembly clearly intended to avoid such a result.
We conclude that, after the entry of an order terminating parental
rights, where the child is not adopted, section 17 applies, as its plain
language indicates, only where the child is “sought to be adopted.”
Conversely, after the entry of a judgment of adoption, where the child
is adopted, the “sought to be adopted” language cannot logically
apply. In so holding, we adhere to the principle that a statute must be
given a sensible construction, “ ‘even though such construction
qualifies the universality of its language.’ ” Adams v. Northern Illinois
Gas Co., 211 Ill. 2d 32, 64 (2004), quoting In re Illinois Bell
Switching Station Litigation, 161 Ill. 2d 233, 246 (1994). We
emphasize the limited scope of our interpretation. We are qualifying
the reach of the “sought to be adopted” language, not eliminating it
from the statute altogether. To hold that this language is of no effect,
as respondent urges, would render the language superfluous or
meaningless. Such a construction is to be avoided, if possible. People
ex rel. Ryan v. Agpro, Inc., 214 Ill. 2d 222, 227 (2005).
While respondent in the case at bar argues that the phrase “sought
to be adopted” in section 17 should simply be ignored, the appellate
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court below followed a different path to reach essentially the same
conclusion. According to the appellate court, “a fair reading of
[section 17] includes situations where a child is available for
adoption, whether or not someone is actively seeking to adopt that
child.” (Emphasis added.) 366 Ill. App. 3d at 1180. In the appellate
court’s view, C.S. and B.S. were available for adoption, and section
17 therefore applied, regardless of whether C.S. and B.S. were sought
to be adopted. We find this analysis unpersuasive.
We initially note that the phrase “available for adoption” does not
appear in section 17. Rather, the appellate court, without any citation
to authority, construed the phrase “sought to be adopted” to include
children “available for adoption.” The appellate court’s analysis
ignores the fact that the phrase “available for adoption” has a precise
meaning in the Adoption Act. See 750 ILCS 50/1(F) (West 2004)
(defining a person “available for adoption”). Had the General
Assembly intended to include children “available for adoption” within
the ambit of section 17, it could have specifically done so. It did not.
We cannot depart from the plain language of a statute by reading into
it exceptions, limitations, or conditions not expressed by the
legislature. In re Michelle J., 209 Ill. 2d 428, 437 (2004).
Finally, we note respondent’s reference, in his appellee brief, to
section 2–29(2) of the Juvenile Court Act of 1987 (705 ILCS
405/2–29(2) (West 2004)). This provision was not raised by
respondent in either the circuit court or the appellate court as the basis
for his claim that the child support order should be vacated.
Respondent has therefore forfeited any argument based on section
2–29(2). See Vine Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276,
301 (2006). In addition, before this court, respondent provides no
argument with regard to section 2–29(2), nor does he explain how this
provision relates to his claim. His reference to section 2–29(2) in his
brief consists solely of the quotation of the statute. Without more, we
are unable to review any contentions that might have been made with
regard to this issue. 210 Ill. 2d R. 341(h)(7). We faced a similar
situation in Zaabel v. Konetski, 209 Ill. 2d 127 (2004), where the
petitioner raised a point in his reply brief but offered no argument. In
a unanimous opinion authored by Justice Garman, we held that the
point therefore was waived. We noted that a forfeited issue may
sometimes be addressed in the interest of justice, but stated: “[I]n this
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case the interest of justice does not require that we search for
arguments that [the petitioner] himself has made no attempt
whatsoever to provide.” Zaabel, 209 Ill. 2d at 137.
Moreover, as previously noted, the record in this case contains no
copies of the juvenile court orders terminating respondent’s and
Stover’s parental rights. It was the responsibility of respondent, as the
appellant below, to present a sufficiently complete record to support
a claim of error. Webster v. Hartman, 195 Ill. 2d 426, 432 (2001).
The absence of the orders makes it difficult for us to discuss with any
certainty the impact, if any, that section 2–29(2) has on this case.
Under section 2–29(2), the termination of parental responsibility
occurs in the context of the naming of a guardian. Section 2–29(2)
provides that, in terminating parental rights, the juvenile court may
authorize the guardian of the person of the minor to consent to
adoption. An order so empowering the guardian to consent to
adoption relieves the parents of all parental responsibility. 705 ILCS
405/2–29(2) (West 2004). In the case at bar, because the orders
terminating parental rights are not in the record, we do not know if
the juvenile court authorized the guardian to consent to adoption and
thereby, under section 2–29(2), relieved the parents of all parental
responsibility. Under these circumstances, we cannot determine if
section 2–29(2) is relevant to the instant case. Thus, given
respondent’s failure to properly raise the applicability of section
2–29(2) below, his failure to properly brief the statute before this
court, and his failure to provide a sufficient record, we decline to
engage in discussion which, of necessity, would be mere speculation.2
We express no opinion as to whether section 2–29(2) could be
considered in a case where the record contained support for the claim.
2
For example, such discussion would require us to speculate as to the
nature of the arguments regarding section 2–29(2) that respondent could
have made, but did not. We would, in effect, be acting as an advocate. A
reviewing court should not assume such a role. See People v. Jung, 192 Ill.
2d 1, 22 (2000) (Harrison, C.J., dissenting); Vernon Hills III Ltd.
Partnership v. St. Paul Fire & Marine Insurance Co., 287 Ill. App. 3d 303,
311 (1997).
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We leave for another day the resolution of that question, when we are
confronted with an appropriate case.
Notwithstanding the foregoing, the dissent argues that section
2–29(2) should have been included in our analysis, regardless of any
forfeiture of the issue or deficiency in the record. According to the
dissent, this provision of the Juvenile Court Act “is clearly relevant to
construction of section 17 of the Adoption Act.” Slip op. at 15
(Kilbride, J., dissenting, joined by Fitzgerald and Karmeier, JJ.). We
agree that the interpretation of section 17–specifically, the “sought to
be adopted” language–is at the heart of this appeal. However, we find
unpersuasive the dissent’s argument that section 2–29(2) is essential
to our analysis.
Under section 2–29(2), as noted, the juvenile court, upon the
satisfaction of certain conditions, “may terminate parental rights and
empower the guardian of the person of the minor, in the order
appointing him or her as such guardian, *** to consent to the
adoption.” 705 ILCS 405/2–29(2) (West 2004). Section 2–29(2)
provides further that “[a]n order so empowering the guardian to
consent to adoption deprives the parents of the minor of all legal
rights as respects the minor and relieves them of all parental
responsibility for him or her ***.” 705 ILCS 405/2–29(2) (West
2004). In section 2–29(2), it is the order authorizing the guardian to
consent to adoption that triggers the termination of parental
responsibility. This contrasts with section 17 of the Adoption Act,
which provides that, after the entry of an order terminating parental
rights, “the natural parents of a child sought to be adopted shall be
relieved of all parental responsibility for such child.” (Emphasis
added.) 750 ILCS 50/17 (West 2004). Here, the question of the
termination of parental responsibility turns on whether the child is
“sought to be adopted.”
In the case at bar, even if we were to consider section 2–29(2), as
the dissent urges, the statute would provide no help in construing
section 17. Section 2–29(2) simply has nothing to say about the
interpretation of the term “sought to be adopted” in section 17.3 For
3
Indeed, the term “sought to be adopted” does not appear in section
2–29(2).
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this reason, we reject the dissent’s contention that section 2–29(2)
should have been included in our analysis.
In sum, neither C.S. nor B.S. is “a child sought to be adopted”
under section 17 of the Adoption Act. Contrary to the conclusion of
the appellate court below, section 17 does not apply to the situation
in the case at bar.
Because of our decision with regard to this issue, we need not
address the Department’s alternative argument that a natural parent’s
common law, residual duty of support survives the termination of his
parental rights. We recognize the importance of this residual-duty
issue. In addition, we acknowledge that there is disagreement within
our appellate court on this question. Compare Bodine v. Bodine, 127
Ill. App. 3d 492, 496 (1984) (“an adoption will not relinquish a natural
parent’s obligation to support the child if the adoptive parent is unable
to do so”), with 366 Ill. App. 3d at 1182 (a termination of parental
rights ends all parental responsibility, including the obligation to pay
child support). Nevertheless, as we have already held, section 17 of
the Adoption Act does not apply to C.S. and B.S. This decision
disposes of the appeal in the case at bar.
The dissent takes a different view, arguing that section 17 applies
in this case and that, under section 17, respondent’s parental
responsibilities ended with the termination of his parental rights. In
support, the dissent points to In re Adoption of Syck, 138 Ill. 2d 255
(1990), and In re C.B., 221 Ill. App. 3d 686 (1991). According to the
dissent, these cases articulate a “bright-line rule” that the termination
of parental rights “forever sever[s] all relations between parent and
child.” Slip op. at 18 (Kilbride, J., dissenting, joined by Fitzgerald and
Karmeier, JJ.). The dissent notes that Syck and C.B. were cited by
respondent. Slip op. at 18 (Kilbride, J., dissenting, joined by Fitzgerald
and Karmeier, JJ.).
There are three reasons why our analysis does not include Syck
and C.B., which appear to support respondent’s claim that, under
section 17, the termination of his parental rights ended his parental
responsibilities as well. First, regardless of whether Syck and C.B.
support respondent’s position with regard to section 17, they are
irrelevant to our opinion, which holds that section 17 does not apply.
A second, related reason for not incorporating these cases in our
analysis is that, in his brief to this court, respondent cited Syck and
C.B. solely in opposition to the Department’s alternative, “residual
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duty of support” argument, a claim which we expressly do not reach.
Under the Department’s argument, a natural parent has a residual,
common law duty of support which survives a termination of parental
rights, and this residual obligation stands as an exception to section
17. See In re M.M., 156 Ill. 2d 53, 62 (1993) (observing that, “[w]ith
the exception of the biological parents’ residual duty to support their
children [citation] *** adoption constitutes a complete and permanent
severance of all legal and natural rights between such parents and
children”). Syck and C.B. appear to contradict this residual-duty
contention. However, it is irrelevant whether Syck and C.B. support
or contradict this claim. As previously indicated, because of our
holding that section 17 does not apply to this case, it is unnecessary
to address the Department’s alternative argument regarding a residual-
duty exception to section 17.
A third reason why Syck and C.B. are not incorporated in our
analysis is that, while each of these opinions quotes section 17, neither
deals with the central issue in the case at bar: whether, under section
17, a termination of parental rights ends all parental responsibilities,
including the duty to pay child support. In addition, neither Syck nor
C.B. expressly analyzes the “sought to be adopted” language in
section 17.
For these reasons, Syck and C.B. are not helpful in resolving the
question of whether section 17 applies to this case.
CONCLUSION
For the reasons stated, we reverse the judgment of the appellate
court, which reversed the judgment of the circuit court, and affirm the
judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE KILBRIDE, dissenting:
I respectfully dissent for two reasons. First, the majority’s narrow
interpretation of section 17’s “sought to be adopted” language, as
meaning exclusively the filing of a petition for adoption, creates
untenable inconsistencies between section 17 of the Adoption Act
(750 ILCS 50/17 (West 2004)), and section 2–29(2) of the Juvenile
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Court Act (705 ILCS 405/2–29(2) (West 2004)), addressing parental
obligations after the termination of parental rights. See In re M.M.,
156 Ill. 2d 53, 61 (1993) (“we consider the Juvenile Court Act in
concert with the Adoption Act”). Second, the majority’s holding is
also inconsistent with prior judicial holdings on the effect of the
termination of parental rights. The majority avoids these issues by
inappropriately finding that Warner procedurally forfeited the
argument. A proper analysis of section 17 requires the construction of
“sought to be adopted” to include DCFS’s efforts to place C.S. and
B.S. with an adoptive family. Under a proper construction of the
statute, Warner’s duty of support to C.S. and B.S. ended with the
order terminating his parental rights and DCFS setting a goal of an
adoptive placement for the children. Therefore, I disagree with the
majority’s analysis and result.
To begin, section 2.1 of the Adoption Act specifically mandates:
“This Act shall be construed in concert with the Juvenile Court Act of
1987.” 750 ILCS 50/2.1 (West 2006). The majority’s construction of
section 17 of the Adoption Act conflicts with section 2–29(2) of the
Juvenile Court Act. The majority acknowledges that we are required
to “ ‘read the statute as a whole, considering all relevant parts.’ ” Slip
op. at 5, quoting Harshman v. DePhillips, 218 Ill. 2d 482, 493
(2006). Nevertheless, the majority ignores that section 2.1 mandates
that the Adoption Act be construed in concert with the Juvenile Court
Act and, instead, declines to address this argument because it
contends that Warner forfeited our review by raising pertinent sections
of the Juvenile Court Act for the first time on appeal here, by not
expounding on its significance to the present case, and by failing to
include any termination orders in the record demonstrating that his
parental rights were terminated pursuant to section 2–29(2). Slip op.
at 8.
The majority bypasses section 2–29(2) because the juvenile orders
are not in the record. The record in this case indicates that the parties
stipulated to the termination proceedings and orders. Those
proceedings and the most recent review order were presented to the
court as evidence, and the court took judicial notice of the termination
proceedings.
Supreme Court Rule 321 (155 Ill. 2d R. 321) provides that “[t]he
record on appeal shall consist of *** the entire original common law
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record ***. The common law record includes every document filed
and judgment and order entered in the cause and any documentary
exhibits offered and filed by any party.” Thus, under Rule 321, the
juvenile proceedings offered in evidence should be part of the
common law record in this case. It may have been a clerical error in
omitting these orders from the record on appeal. Even though the
record does not contain a copy of the orders terminating Warner’s
parental rights, this court is required to take judicial notice of the
juvenile proceedings.
In People v. Davis, 65 Ill. 2d 157, 161 (1976), this court noted:
“In McCormick on Evidence, section 330, at 766 (2d ed.
1972), it is said to be ‘settled, of course, that the courts, trial
and appellate, take notice of their own respective records in
the present litigation, both as to matters occurring in the
immediate trial, and in previous trials or hearings. The
principle seemingly is equally applicable to matters of record
in the proceedings in other cases in the same court, and some
decisions have recognized this, but many courts still adhere to
the needless requirement of formal proof, rather than informal
presentation, of recorded proceedings in other suits in the
same court.’ *** Taking judicial notice of matters of record in
other cases in the same court is simply an application of the
increasingly recognized principle that matters susceptible of
judicial notice include facts ‘capable of immediate and
accurate demonstration by resort to easily accessible sources
of indisputable accuracy.’ ” (Emphasis omitted.) Davis, 65 Ill.
2d at 161, quoting E. Cleary, McCormick on Evidence §3301,
at 763 (2d ed. 1972).
Here, the circuit court properly took judicial notice of the
proceedings in the juvenile cases, and this court must also take judicial
notice of those proceedings. Section 8–1002 of the Code of Civil
Procedure provides, in relevant part:
“In case of the review by the Supreme Court of a judgment or
order of the appellate court, the Supreme Court shall take
judicial notice of all matters of which the circuit court was
required to take judicial notice ***.” 735 ILCS 5/8–1002
(West 2004).
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Under section 8–1002, therefore, this court is required to take judicial
notice of the termination proceedings and orders judicially noticed by
the circuit court. It is improper for the majority to avoid the issue by
finding that respondent has forfeited the issue.
On the issue of statutory construction, “[o]ur primary objective in
construing a statute is to ascertain and give effect to the intention of
the legislature.” Barragan v. Casco Design Corp., 216 Ill. 2d 435,
441 (2005). We must, therefore, consider all authorities that weigh
upon the legislature’s intended meaning of section 17, regardless of
whether they were specifically cited by the parties. Indeed, it would be
improper to construe a statute in a manner that the legislature did not
intend based merely on a party’s shortcomings in argument. This court
has never confined itself to the research and argument of the parties,
or even of the courts below, in affirming a correct result in the
appellate court. See, e.g., People v. P.H., 145 Ill. 2d 209, 220 (1991)
(“The reasons assigned by the [court below] for its judgment are
immaterial if the decision is correct. *** An appellee may raise any
argument or basis supported by the record to show the correctness of
the judgment, even though he had not previously advanced such an
argument”). Most importantly, the legislature calls on us to interpret
the Adoption Act and Juvenile Court Act harmoniously. Accordingly,
section 2–29(2) of the Juvenile Court Act should be considered
because it is clearly relevant to construction of section 17 of the
Adoption Act.
Section 2–29(2) of the Juvenile Court Act states:
“If a petition or motion alleges and the court finds that it
is in the best interest of the minor that parental rights be
terminated and the petition or motion requests that a guardian
of the person be appointed and authorized to consent to the
adoption of the minor, the court, with the consent of the
parents, if living, or after finding, based upon clear and
convincing evidence, that a parent is an unfit person as defined
in Section 1 of the Adoption Act, may terminate parental
rights and empower the guardian of the person of the minor,
in the order appointing him or her as such guardian, to appear
in court where any proceedings for the adoption of the minor
may at any time be pending and to consent to the adoption.
Such consent is sufficient to authorize the court in the
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adoption proceedings to enter a proper order or judgment of
adoption without further notice to, or consent by, the parents
of the minor. An order so empowering the guardian to consent
to adoption deprives the parents of the minor of all legal rights
as respects the minor and relieves them of all parental
responsibility for him or her, and frees the minor from all
obligations of maintenance and obedience to his or her natural
parents.” (Emphasis added.) 705 ILCS 405/2–29(2) (West
2004).
Section 2–29(2) specifically provides that an appointed guardian
empowered to consent to adoption may give consent when an
adoption “may at any time be pending.” The section’s employment of
“may” and “any time” indicates the termination of parental rights
accompanied by an order appointing a guardian with power to consent
to adoption strips the natural parent of all rights and relieves him or
her of all responsibilities toward the child even though no adoption
action may be pending at that time.
The majority’s interpretation of section 17 of the Adoption Act
creates disharmony between that section and section 2–29(2) of the
Juvenile Court Act. Both statutes address the rights and
responsibilities of natural parents upon termination of parental rights.
Both statutes also address a context where adoption is encouraged,
either through a judicial order appointing a guardian with power to
consent to an adoption at some time, or through DCFS’s promotion
of an adoptive placement. Yet, under the majority’s construction of
section 17, the statutes resolve natural parents’ subsequent
responsibilities differently. Under the Adoption Act, the natural
parent’s duty of support continues unless, fortuitously, a third party
seeks an adoption. Under the Juvenile Court Act, however, the natural
parent’s duty of support ends irrespective of whether any party
actually seeks an adoption.
To allow this disparity invites absurdity into the overall statutory
scheme surrounding the termination of parental rights. I can conceive
of no reason why the legislature would treat similarly situated natural
parents differently under the Adoption Act and the Juvenile Court
Act. See Progressive Universal Insurance Co. of Illinois v. Liberty
Mutual Fire Insurance Co., 215 Ill. 2d 121, 134 (2005) (“we must
presume that when the legislature enacted a law, it did not intend to
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produce absurd, inconvenient or unjust results”). Moreover, allowing
an inconsistency between the statutes violates standard principles of
statutory construction requiring us to harmonize the effect of different
statutes addressing the same subject matter. See People v. McCarty,
223 Ill. 2d 109, 133 (2006) (“Under the doctrine of in pari materia,
two statutes dealing with the same subject will be considered with
reference to one another to give them harmonious effect”). Embracing
a construction of section 17 of the Adoption Act that allows this
disparity violates the legislature’s specific instruction to the courts to
harmonize the Adoption Act with the Juvenile Court Act. See 750
ILCS 50/2.1 (West 2004) (“This Act shall be construed in concert
with the Juvenile Court Act of 1987”); see also In re M.M., 156 Ill. 2d
at 61 (“we consider the Juvenile Court Act in concert with the
Adoption Act”).
To create harmony, both statutes must operate to relieve natural
parents of their ongoing responsibilities when their parental rights
have been terminated and when DCFS or the circuit court takes some
action to promote the child’s adoption. This goal is achieved by
construing “sought to be adopted” to include DCFS’s seeking an
adoptive placement for C.S. and B.S. In fact, the majority concedes
that this construction is reasonable. Slip op. at 6; see also Barragan,
216 Ill. 2d at 441-42 (“Where two statutes are allegedly in conflict, a
court has a duty to interpret the statutes in a manner that avoids an
inconsistency and gives effect to both statutes, where such an
interpretation is reasonably possible”).
The reasonableness of this interpretation is demonstrated by the
legislature’s repeated instructions to DCFS to facilitate adoptive
placements, and DCFS’s extensive efforts to adhere to the
legislature’s commands. See 20 ILCS 505/5(r) (West 2006) (“The
Department [DCFS] shall promulgate regulations encouraging all
adoption agencies to voluntarily forward to the Department or its
agent names and addresses of all persons who have applied for and
have been approved for adoption of a hard-to-place or handicapped
child and the names of such children who have not been placed for
adoption. [A list of such persons] shall be made available, without
charge, to every adoption agency in the State to assist the agencies in
placing such children for adoption”); 20 ILCS 505/7.1 (West 2006)
(“There is created the One Church One Child Advisory Board to
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advise the Department [DCFS] in the placement of children by
encouraging black churches to help find permanent homes for black
children waiting to be adopted”); http://www.state.il.us/dcfs/adoption/
index.shtml (last visited December 12, 2007) (“The Department helps
thousands of adoptable children to find a new home each year. ***
DCFS provides and funds a variety of financial and non-financial
benefits after adoption or guardianship, including subsidies for families
who adopt waiting children or become guardians of children in DCFS
care”). These legislative commands and executive undertakings by
DCFS contradict the majority’s assertion that “it is clear that the state
cannot seek the adoption of a child.” Slip op. at 6. Contrary to the
majority’s conclusion, section 2 of the Adoption Act, requiring certain
qualifications of individuals seeking to adopt, in no way undermines
the fact that the state may seek to facilitate a child’s adoption. See 750
ILCS 50/2 (West 2004).
Additionally, the majority’s holding is also inconsistent with prior
judicial holdings on the effect of the termination of parental rights.
Construing “sought to be adopted” to include DCFS’s efforts at
facilitating adoption, and relieving a natural parent of the duty to
support, is consistent with our prior holding interpreting the
termination of parental rights as a bright-line event forever severing all
relations between parent and child. This court has stated:
“Termination of parental rights destroys the parent-child relationship.
The effect of a termination of parental rights is made grimly clear by
section 17 of the Adoption Act.” (Emphasis added.) In re Adoption of
Syck, 138 Ill. 2d 255, 274-75 (1990). Likewise, in In re C.B., 221 Ill.
App. 3d 686 (1991), the appellate court observed: “When viewed
from the perspective of the child, the parent whose parental rights
have been terminated no longer exists. To be blunt, the situation is as
if the parent had died.” C.B., 221 Ill. App. 3d at 688. Warner, in fact,
presented these persuasive authorities to us, yet the majority refuses
to acknowledge that these cases support respondent’s claim that
termination of his parental rights ended his parental responsibilities.
The majority’s interpretation of section 17, blurs the previous
bright-line rule and creates potential practical difficulties. For example,
if the filing of an adoption petition triggers the effect of section 17,
what is the status of a natural parent’s obligations when a petitioner
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voluntarily withdraws the petition, or is found unqualified to adopt
under section 2?
The majority’s interpretation of section 17 of the Adoption Act
also requires us to overlook whether a residual common law duty of
support remains even in the wake of the termination of parental rights.
See In re M.M., 156 Ill. 2d at 62 (“With the exception of the
biological parents’ residual duty to support their children ***
adoption constitutes a complete and permanent severance of all legal
and natural rights between such parents and children”). The parties
presented this issue, but the majority sidesteps it by its construction of
section 17 of the Adoption Act. Slip op. at 9.
I believe that we must determine this issue to avoid confusion, and
we must hold that the common law residual duty to support is
abrogated when section 17 applies. In reviewing the residual duty,
M.M. and its predecessors all relied on Dwyer v. Dwyer, 366 Ill. 630
(1937). The applicable section of the Adoption Act at the time of
Dwyer, unlike section 17 of the current version of the Adoption Act,
never addressed the duties of natural parents to their children; rather,
it only removed the natural parents’ rights respecting the children and
relieved the child of any duties to the natural parents. Compare 750
ILCS 50/17 (West 2004) (“After either the entry of an order
terminating 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, and the child shall be free from all
obligations of maintenance and obedience as respects such natural
parents”) with Ill. Rev. Stat. 1935, ch. 4, par. 8 (“The natural parents
of a child so adopted shall be deprived, by the 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”).
Given this change in the statutory language, the legislature intended
natural parents’ common law residual obligation of support to end
with the termination of parental rights under section 17.
To conclude, I cannot concur with an interpretation of section 17
creating conflict with another statute on the same subject, when a
reasonable construction exists that will both harmonize the overall
statutory scheme addressing the termination of parental rights and
adoptions, and acknowledge DCFS’s adoptive placement efforts.
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Today’s opinion is also inconsistent with prior judicial holdings on the
effect of the termination of parental rights. Therefore, I respectfully
dissent.
JUSTICES FITZGERALD and KARMEIER join in this dissent.
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