specially concurring:
I agree with the results reached by the majority, but I am persuaded that I must comment on the residual rights of parents petitioning for restoration.
I am very strongly persuaded that when all parental rights are terminated, there exists no residual right to petition for restoration of custody.
The court in Ramelow reached the conclusion that there is a legal remedy vested in the natural parents of a child for restoration of custodial rights by reason of changed circumstances following a previous final order terminating parental rights by construction of section 9c of “An. Act relating to children who are 000 dependent, neglected or delinquent » * o” (Ill. Rev. Stat. 1951, ch. 23, par. 201) which has since been repealed and has never been reenacted by any parallel enactment. Instead I believe section 5 — 9 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 705 — 9) is now the controlling law, that an order terminating parental rights and empowering a guardian to consent to adoption“deprives the parents of the minor of all legal rights * * (Also see Ill. Rev. Stat. 1973, ch. 37, par. 701 — 16). When such an order terminating all parental rights (as opposed to a mere custody order) is allowed to become final by lack of appeal, there cannot exist a subsequent legal right to petition for restoration of custodial rights by reason of changed circumstances.
Oeth clearly and correctly defines that adoption and custody are entirely different things. In that case, the infant had been declared a neglected child and custody was given a guardian with power to consent to adoption, but no finding had been made that the natural mother was unfit or had consented to giving the guardian such power. In the absence of her consent or a finding of unfitness, the circuit court there was held to have been without jurisdiction to give the guardian the power to consent to an adoption, precisely because the order did not terminate the rights of the natural mother. Hence, because she had not been deprived of all parental rights by a valid prior order of court, she was entitled to petition for restoration of custody. Fortuitously the natural parent there learned of the adoption proceeding in some unknown way within 4 days after guardian filed written consent.
The majority’s recognition of a right to petition for restoration of custody following a final order terminating all parental rights here, will, in my judgment, seriously jeopardize the public policy and procedures established by the adoption act.
Under that act, it is the usual procedure where agencies are involved to place children for adoption after the parental rights of natural parents are terminated. The infant must then remain in the home of prospective unrelated adoptive parents for 6 months before a final adoption order can be entered. If this court recognizes in this context that following an order terminating the rights of the natural parents, there nonetheless exists some residual right in the natural parents to seek restoration of custody because of their changed circumstances while the infant was in the custody of prospective adoptive parents, several problems arise. Must the natural parents be made parties to the adoption petition to terminate this residual right of the natural parents? If so, is that consistent with the scheme of the adoption act which attempts by impoundment of records, and other devices, to preclude the natural parents and adoptive parents from learning of each others’ identity, except for good cause? It does not promote the State’s interest in finding suitable adoptive homes to create a situation whereby prospective adoptive parents must five for months with uncertainty as to whether they can adopt.
In my opinion once all parental rights have been terminated by a final order, the natural parents can collaterally attack the validity of such order by petition for writ of habeas corpus, but the burden would not merely be one of showing that they have reformed. (People ex rel. Karr v. Weihe, 30 Ill. App. 2d 361, 172 N.E.2d 897 (2d Dist. 1961).) They may also petition for adoption themselves, and if the court finds them now fit, the court can order its appointed guardian, even though antagonistic, to consent.
I would find that the circuit court order of April 5,1973, was a final and appealable order and was not timely appealed; I would find the petition for rehearing filed October 12, 1973, not properly before the court and should have been dismissed.