dissenting:
As a mother, Wanda Cooper has a fundamental right in the care, custody and control of her children. In re M.H., 196 Ill. 2d 356, 362 (2001). As a civil litigant, Wanda Cooper has the right to appeal any adverse final judgments rendered against her by the courts of Illinois. See Ill. Const. 1970, art. VI, § 6; 155 Ill. 2d R. 301. Today’s decision by the majority wrongly deprives Ms. Cooper of each of these rights. I must therefore respectfully dissent.
The proceedings which gave rise to this matter commenced when the State filed a petition in the circuit court of Cook County under section 2 — 29(2) of the Juvenile Court Act of 1987 (705 ILCS 405/2 — 29(2) (West 1998)) asking that Ms. Cooper be declared an unfit parent, that her parental rights over her three children be terminated, and that the Department of Children and Family Services be appointed guardian with the power to consent to the children’s adoption.
Because of a parent’s fundamental right in the care, custody and control of her children, the State must bear a heavy burden if it wishes to sever parental rights without the parent’s consent. In re M.H., 196 Ill. 2d at 365. Specifically, the State must prove by clear and convincing evidence that the parent is an unfit person as defined by section 1(D) of the Adoption Act (750 ILCS 50/1 (D) (West 1998)). In re C.W., 199 Ill. 2d 198, 210 (2002); see In re Latifah B, 315 Ill. App. 3d 1122, 1128 (2000); 705 ILCS 405/2 — 29(2) (West 1998).
Adherence to this requirement is mandatory. The language of the Juvenile Court Act is clear and unambiguous (In re M.M., 156 Ill. 2d 53, 69 (1993)), and courts applying the statute must proceed within the law’s strictures (In re M.M., 156 Ill. 2d at 66). Accordingly, a parent’s rights may not be terminated without her consent absent the requisite finding that the parent is unfit. See In re Gibson, 24 Ill. App. 3d 981, 985 (1975). Indeed, terminating a parent’s rights involuntarily absent a prior showing of unfitness would be unconstitutional. See In re Petition of Kirchner, 164 Ill. 2d 468, 501 (1995).
The appellate court held that the requisite prior showing of unfitness has not yet been made in this case. 319 Ill. App. 3d at 673. The correctness of its judgment has not been challenged. That being so, Ms. Cooper’s parental rights remain in effect.
Although the circuit court ruled otherwise when it granted the State’s petition to terminate parental rights and appoint a guardian with power to consent to an adoption, that is of no consequence in light of the subsequent reversal. Under Illinois law, a reversal abrogates the circuit court’s decree and leaves the cause as it stood prior to entry of judgment, restoring the parties to their original positions. See In re Marriage of Lehr, 317 Ill. App. 3d 853, 859 (2000). Once the appellate court reversed the circuit court’s judgment granting the State’s petition, the circuit court’s judgment therefore ceased to have any effect. No further action by Ms. Cooper was required. By operation of law, the finding that she was unfit was rendered a nullity. She regained her parental rights as if they had never been lost.
A condition precedent to an adoption is either consent of the parent or a finding by the court that consent is not required for the reason of unfitness. See In re Petition of Smith, 4 Ill. App. 3d 261, 265 (1972). Because Ms. Cooper has not been found unfit and because her parental rights remain in effect, Ira, Kaylon and Tekela are not subject to adoption by third parties under the Adoption Act. See 705 ILCS 405/2 — 29(2) (West 1998); In re Petition of Kirchner, 164 Ill. 2d at 550 (McMorrow, J., dissenting) (“[termination of parental rights is the necessary prerequisite to granting a valid adoption”).
That the State opted to proceed with the adoption of Ira and Tekela while Ms. Cooper’s appeal of the circuit court’s judgment remained pending does not alter this conclusion. The circuit court’s judgment was a final judgment in a civil case and was therefore appealable by Ms. Cooper as of right. Ill. Const. 1970, art. VI, § 6; 155 Ill. 2d R. 301. The only step Ms. Cooper was required to perform in order to perfect that appeal was to file a notice of appeal, which she did. No statute, rule of court or principle of law obligated her to also move for a stay.
Under the procedures established by our court, seeking a stay pending appellate review of the trial court’s judgment is optional. It is not normally necessary in order to prevent the appeal from being rendered moot. See O’Brien v. Cacciatore, 227 Ill. App. 3d 836, 842 (1992); Schaumburg State Bank v. Seyffert, 71 Ill. App. 3d 630, 635-36 (1979). As a result, a litigant’s failure to request a stay neither precludes him from appealing nor prohibits him from receiving the relief he should have obtained in the lower court. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 516-17 (1988).
A narrow and specific exception to this rule exists in cases involving the sale of property to purchasers who were not parties to the challenged judgment. 155 Ill. 2d R. 305(j); Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 526-28 (2001). That exception, however, has no relevance to the matter before us here. Ira and Tekela are not property up for sale. They are children, and Ms. Cooper is still their mother. The appellate court was therefore correct in denying the State’s motion to vacate the court’s judgment as moot.
In reaching this conclusion, I am as mindful as my colleagues of the need for finality and stability in the adoption process. We have long since established, however, that finality and stability cannot excuse the failure to effectuate an adoption that complies with the law. If parental rights have not been validly terminated, an adoption based on that improper termination cannot stand, even if the subject children are already in the custody and care of the adoptive parents. See In re Petition of Doe, 159 Ill. 2d 347 (1994); In re Petition of Kirchner, 164 Ill. 2d at 501 (court will not legitimate family relationship with adoptive parents “which has come about in derogation of the procedural safeguards afforded fit [parents] under the Adoption Act” — adoptive parents therefore ordered to surrender child to his natural father despite passage of years child spent in adoptive parents’ care).
In departing from these principles, the majority has embarked on a dangerous course. If obtaining an adoption decree is adequate to moot any challenge to the judgment terminating parental rights, termination and adoption proceedings will degenerate into what will, quite literally, be a race to judgment. Knowing that under today’s decision an adoption, once completed, will not be undone, the State will inevitably be tempted to delay appeal of the termination judgment as long as possible, while pursuing the adoption proceedings as quickly as possible. With proper case management and careful timing, the adoptions, which are technically consensual once the State is given authority by the court to consent to the adoption, will always be concluded before appeals of termination judgments, which will be contested. As a result, the propriety of termination judgments will, for all practical purposes, no longer be reviewable. No matter how flawed a termination judgment might be, no matter how far it might depart from statutory requirements or basic constitutional guarantees, once the adoption decree is entered, the natural parents will be left with no recourse.
My colleagues will no doubt dismiss this concern with the observation that aggrieved natural parents can stop the race simply by seeking a stay of the termination judgment while it is being appealed. If entry of an adoption decree cannot be undone, however, it will not be sufficient merely to request a stay. Natural parents will be able to preserve their parental rights and their right to appeal the termination of those rights only if the request for a stay is actually allowed. The problem is that under Supreme Court Rule 305(b) (155 Ill. 2d R. 305(b)), which governs such cases, stays are not automatic. They are a matter for the court’s discretion. Accordingly, the majority’s analysis ultimately places a parent’s fundamental rights wholly at the mercy of a judge’s subjective view of what is fair. While we may hope that judges will exercise that discretion wisely, experience teaches that they will not always do so. There will be occasions where prejudice or ignorance prevail. No matter how rare such instances may be, I do not believe we can sanction any system which allows even the possibility that fundamental constitutional rights can be defeated by a judge’s personal bias or whim.
Finally, I must take issue with the majority’s attempt to place blame for what happened here on Ms. Cooper. As noted earlier in this dissent, Cooper did all that the law required her to do. When the circuit court found her unfit and terminated her parental rights, she promptly appealed. When that appeal succeeded, she regained her parental rights by operation of law. No statute or rule of court obligated her to take further action pending remand to the circuit court.
I note, moreover, that once the circuit court entered its order terminating Ms. Cooper’s parental rights and giving the State power to consent to the children’s adoption, she was not entitled to any further notice before the adoption of her children could go forward. 705 ILCS 405/2 — 29(2) (West 1998); 750 ILCS 50/7A (West 1998). The State was free to proceed with the adoption surreptitiously and apparently did so. Not even the appellate court was aware of it until it was completed. Accordingly, this is not a situation in which a mother sat by and willingly allowed the State to take action she knew to be contrary to her interests. Ms. Cooper did not know what was going on, as far as this record shows, and that is precisely what the State intended.
Under these circumstances, I believe that if anyone is blameworthy here, it is the State. The State had the knowledge and power to prevent the disruption to the children’s lives. Ms. Cooper did not. The State knew full well of the pendency of Ms. Cooper’s appeal; it knew full well that the finding of unfitness and the termination of Cooper’s parental rights were subject to reversal; and it knew full well that without the requisite finding of unfitness and termination order, no valid adoption could stand. It nevertheless decided to proceed with the adoption before the outcome of the appeal was known.
In embarking on that course of conduct, the State took the same gamble any litigant takes when it chooses to receive benefits from a judgment while the judgment is under appeal, namely, that it will be divested of whatever rights it acquired under the judgment and be required to relinquish those benefits if the judgment is reversed. See Schaumburg State Bank, 71 Ill. App. 3d at 636. Unfortunately, the gamble in this case involved children. Unfortunately for the stability of the children’s lives, the State’s gamble lost.
Contrary to the majority’s view, we are not left with a situation that cannot be undone. We know where the children are, and we know what the law requires. Until there is a valid judgment finding Ms. Cooper unfit and terminating her parental rights, there can be no adoption without her consent. Under the statutes of Illinois and the federal and state constitutions, no other conclusion is possible. We cannot allow rights as precious and fundamental as those at stake here to be defeated by State-orchestrated deceit.
For the foregoing reasons, I respectfully dissent.