In Re Petition Of Otakar Kirchner

649 N.E.2d 324 (1995)

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Nature of the Case

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Facts

P and Daniella Janikova, both Czechoslovakian immigrants, started dating in September of 1989 and began living together later that year. Daniella became pregnant. She and P 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.' P returned to his native Czechoslovakia for two weeks to visit a dying relative. A relative from Czechoslovakia telephoned Daniella and told her that P had resumed a relationship there with a former girlfriend. Daniella tore up their current marriage license, gathered her belongings and moved into a women's shelter because she had nowhere else to go. A friend encouraged Daniella to put the baby up for adoption. The friend 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. 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. Does' lawyer, Panichi, knew that P would not consent to the adoption and Daniella 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. Does and their attorney acquiesced in Daniella's scheme to tell P that his child had died at birth. They arranged for Daniella to give birth in a different hospital than she and P had originally planned. 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.' P 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. P 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 P's efforts to contact Daniella were rebuffed. He was told by Daniella's friends and relatives that his child had died at birth. P and Daniella married in September of 1991. P became suspicious. On May 12, 1991, or 57 days after the birth of Richard, Daniella confessed to P that she had given birth to a baby boy and had placed him in an adoptive home. P commenced his efforts to gain custody of his son. He retained a lawyer to help him. P's lawyer entered an appearance on Otto's behalf in the subject adoption proceeding. 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 P any access to his own son. Eventually, it was established that P had not been notified nor had he consented to the adoption as required under the Adoption Act. The Does subsequently petitioned the court to find that P's parental rights should be terminated because he was unfit, thus obviating the need for his consent. The trial court found that P was unfit. P filed a notice of appeal. Fifteen months later, the appellate court, per Justice Rizzi, affirmed the trial court in a divided opinion. Richard was 2 years of age. P appealed. In a unanimous decision on June 16, 1994, the court reversed the trial and appellate courts and vacated the adoption, holding that P was fit under section 8(a)(1) of the Adoption Act and, thus, that his parental rights had never been properly terminated. A child is not available for adoption until it has been validly determined that the rights of his parents have been properly terminated. 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 those interests would be served if the child were adopted. Illinois law requires a good-faith effort to notify the natural father of the adoption proceedings. In the case at hand, the Does and their lawyer knew that a real father existed whose name the birth mother knew. They also knew that the father, if contacted, would not consent to the adoption. This may explain their lack of effort to learn the name of the father and to give him notice. Under these circumstances, the Does proceeded with Richard's adoption at their peril. Does applied for a writ of certiorari to the United States Supreme Court. The United States Supreme Court's denied certiorari on November 7, 1994. The General Assembly enacted an amendment to the Adoption Act which specified that it was to take effect immediately and apply to all cases pending at the time of the effective date, which was July 3, 1994. Upon the vacation of an adoption proceeding, a custody hearing takes place in order to determine who should have custody of the child based upon the child's best interests. Does then petitioned for a custody hearing in the circuit court of Cook County. Richard's guardian ad litem joined that suit on Richard's behalf. P filed the instant petition for writ of habeas corpus. The court ordered the writ of habeas corpus to issue immediately, with the opinion to follow, in order to bring this protracted litigation to a speedy and final conclusion. Does then filed a custody motion.