                          NO. 4-07-0911              Filed 3/28/08

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT


In re: A.S.B., a Minor,                    )   Appeal from
EMILY MARIE PASIERB,                       )   Circuit Court of
          Petitioner-Appellee,             )   Champaign County
          v.                               )   No. 07F184
TEMPLETON STERLING BISHOP,                 )
          Respondent-Appellant.            )   Honorable
                                           )   John P. Shonkwiler,
                                           )   Judge Presiding.


           JUSTICE MYERSCOUGH delivered the opinion of the court:

           Petitioner, Emily Marie Pasierb, and respondent

Templeton Sterling Bishop, are the biological parents of A.S.B.,

born September 5, 2002.   The parties were never married, but in

June 2003, Bishop signed a voluntary acknowledgment of paternity.

In October 2007, upon motion by Pasierb, the trial court

terminated Bishop's parental rights.   Respondent appeals.

Because Pasierb filed neither a petition to adjudicate wardship

nor a petition to adopt, the trial court lacked the statutory

authority to terminate Bishop's parental rights.   Therefore, we

reverse.

                           I. BACKGROUND

           In May 2007, Pasierb filed a petition to terminate

Bishop's parental rights, alleging Bishop was unfit on numerous

grounds.   The petition did not identify the statutory authority
on which it was based.   In November 2007, following a hearing on

Bishop's fitness, the trial court found Bishop unfit only on the

ground of depravity.   750 ILCS 50/1(D)(i) (West 2006) (a rebuttal

presumption of depravity exists if a parent is criminally

convicted of at least three felonies, one of which took place

within five years of the filing of the petition or motion for

termination of parental rights).   In October 2007, following the

best-interests hearing, the court terminated Bishop's parental

rights to A.S.B.

          This appeal followed.

                           II. ANALYSIS

          The parties did not initially raise the issue of the

trial court's authority to terminate Bishop's parental rights.

This court directed the parties to address the issue, and the

parties have filed supplemental briefs.

          To invoke a trial court's jurisdiction over a matter, a

party "must initiate a proceeding that provides the trial court

with the relevant statutory authority to act."     In re Marriage of

Rhodes, 326 Ill. App. 3d 386, 390, 760 N.E.2d 592, 596 (2001)

(finding that the trial court in a dissolution-of-marriage

proceeding exceeded its statutory authority by declaring a

party's consent to adoption void).     A proceeding to involuntarily

terminate parental rights may only be brought under the statutory

authority of the Juvenile Court Act of 1987 (Juvenile Court Act)


                               - 2 -
(705 ILCS 405/1-1 through 7-1 (West 2006)) or the Adoption Act

(750 ILCS 50/1 through 24 (West 2006)).    See In re M.M., 156 Ill.

2d 53, 61, 619 N.E.2d 702, 708 (1993) (finding that a petition

for termination of parental rights is filed under the Juvenile

Court Act when the child has been previously adjudged abused,

neglected, or dependent and all other involuntary-termination

actions then must proceed under the Adoption Act); Patrick v.

Patrick, 59 Ill. App. 3d 11, 13-14, 374 N.E.2d 1084, 1085 (1978)

(finding that the trial court in a dissolution-of-marriage

proceeding did not have jurisdiction to terminate parental rights

and noting that the Juvenile Court Act and Adoption Act provide

the exclusive authority by which parental rights may be

terminated).   In either case, the goals of the termination

proceedings are the same: (1) to determine whether the natural

parents are unfit and if so (2) to determine whether adoption is

in the child's best interests.     M.M., 156 Ill. 2d at 61, 619

N.E.2d at 708, citing D. Geraghty, Ending Family Ties:

Termination of Parental Rights in Illinois, 79 Ill. B.J. 572, 574

(1991).

          In his supplemental brief, Bishop argues the trial

court lacked jurisdiction to terminate his parental rights

because Pasierb filed neither a petition for the adjudication of

wardship under the Juvenile Court Act nor an adoption petition

under the Adoption Act.   In contrast, Pasierb argues the court


                                 - 3 -
had subject-matter jurisdiction pursuant to section 1(D) of the

Adoption Act to find Bishop unfit and to terminate his parental

rights without the need for Pasierb to file a petition to adopt

and without the need to find the minor was a ward of the court.

         A. Pasierb Did Not File a Petition To Terminate
           Parental Rights Under the Juvenile Court Act

           Under the Juvenile Court Act, any adult person may file

a petition for adjudication of wardship alleging a minor is

abused, neglected, or dependent.   705 ILCS 405/2-13(1), (2) (West

2006).   The petition may seek termination of parental rights and

the appointment of a guardian of the person with the power to

consent to the adoption of the minor.   705 ILCS 405/2-13(4) (West

2006).   The petitioner may by motion request the termination of

parental rights any time after the entry of a dispositional

order.   705 ILCS 405/2-13(4) (West 2006); but see In re R.K., 247

Ill. App. 3d 512, 515-16, 617 N.E.2d 502, 505 (1993) (finding

that where the minors were found neglected but not yet made wards

of the court, the trial court could properly consider the

adjudication of wardship and termination of parental rights at

the same time).   Section 2-29(2) of the Juvenile Court Act sets

forth the process by which the court terminates parental rights

and frees a minor for adoption.    705 ILCS 405/2-29(2), (4) (West

2006) (the court may terminate a parent's parental rights if the

court finds the parent unfit as defined in section 1 of the

Adoption Act and determines that termination of parental rights

                               - 4 -
is in the best interests of the minor); see also In re S.B., 316

Ill. App. 3d 669, 671-72, 736 N.E.2d 1164, 1166 (2000).

            Neither the State nor Pasierb filed a petition for

adjudication of wardship seeking termination of parental rights.

Therefore, the Juvenile Court Act did not provide the statutory

authority for the trial court's termination of Bishop's parental

rights.




           B. The Adoption Act Does Not Provide a Means of
            Filing a Petition for Termination of Parental
                   Rights Absent a Petition To Adopt

            Because Pasierb did not file a petition for

adjudication of wardship under the Juvenile Court Act, the only

remaining authority under which the trial court could have

terminated Bishop's parental rights is the Adoption Act.      Pasierb

clearly did not file a petition for adoption.    Therefore, the

issue is whether Pasierb could seek termination of Bishop's

parental rights under the Adoption Act without filing a petition

for adoption.    This raises a question of statutory

interpretation.

            When construing a statute, this court's primary

consideration is to determine and give effect to the

legislature's intent.    S.B., 316 Ill. App. 3d at 673, 736 N.E.2d

at 1167.    This court must presume the "legislature did not intend


                                - 5 -
to create absurd, inconvenient[,] or unjust results."     In re

R.L.S., 218 Ill. 2d 428, 433, 844 N.E.2d 22, 26 (2006).     When

determining the legislature's intent, this court considers the

statute in its entirety, the subject matter the statute

addresses, and the legislature's objective in enacting it.

R.L.S., 218 Ill. 2d at 433, 844 N.E.2d at 26.   The most reliable

indicator of intent is the plain language of the statute.     In re

D.F., 208 Ill. 2d 223, 229, 802 N.E.2d 800, 804 (2003).     The

legislature has provided that the Adoption Act must be "construed

in concert with the Juvenile Court Act."   750 ILCS 50/2.1 (West

2006); D.F., 208 Ill. 2d at 231, 802 N.E.2d at 806.

          The Adoption Act provides the method by which a party

may seek to adopt a child either related or unrelated to the

party seeking to adopt.   A petition to adopt a child not related

to the petitioner must be filed within 30 days after the child

becomes available for adoption.   750 ILCS 50/5(A) (West 2006).    A

person is available for adoption when, among other circumstances,

the person is a child "to whose adoption no consent is required

pursuant to [s]ection 8" of the Adoption Act.    750 ILCS

50/1(F)(b) (West 2006) (defining person available for adoption).

Section 8(a)(1) of the Adoption Act provides that a parent's

consent to adoption is not required when, among other reasons,

the parent is found by the court to be an unfit person.     See 750

ILCS 50/8(a)(1) (West 2006)


                               - 6 -
          The Adoption Act provides that a petition to adopt must

allege the names of natural parents of the child sought to be

adopted, unless the natural parents' parental rights have been

terminated.   750 ILCS 50/5(B)(f) (West 2006).   The petition must

also allege that (1) the person or agency having the authority to

consent to the adoption has consented or is willing to consent;

(2) the person having the authority to consent is unfit, stating

the ground therefor; or (3) no consent is required pursuant to

section 8(f).   750 ILCS 50/5(B)(j) (West 2006); see also In re

Chilean D., 304 Ill. App. 3d 580, 584, 710 N.E.2d 24, 27 (1999)

(noting that if the natural parent does not consent to the

adoption, the parent "must be found unfit as a condition

precedent to a termination of parental rights so that an adoption

can take place").   (Section 8(f) is no longer contained in the

Adoption Act but had pertained to parents who were legally

incompetent.)

          The Adoption Act provides that as soon as practicable

after the filing of a petition for adoption, the trial court

shall hold a hearing for certain purposes, including the

following:

                "If it is proved to the satisfaction of

          the court, after such investigation as the

          court deems necessary, that termination of

          parental rights and temporary commitment of


                               - 7 -
          the child to an agency or to a person deemed

          competent by the court, including

          petitioners, will be for the welfare of the

          child, the court may order the child to be so

          committed and may terminate the parental

          rights of the parents and declare the child a

          ward of the court or, if it is not so proved,

          the court may enter such other order as it

          shall deem necessary and advisable."   750

          ILCS 50/13(B)(d) (West 2006).

          Clearly, the Adoption Act, when read as a whole,

supports the conclusion that a trial court, as part of an

adoption proceeding, may determine whether the natural parent is

unfit and may terminate a natural parent's parental rights.   But

compare Johnson v. Burnett, 182 Ill. App. 3d 574, 579, 538 N.E.2d

892, 895 (1989) (holding that parties not related to the child

could not file an adoption petition and later prove the unfitness

of the natural parents because the child was not available for

adoption as defined in the Adoption Act; parents had to be found

unfit before petition could be filed), with In re Petition of

Filippelli, 207 Ill. App. 3d 813, 820-21, 566 N.E.2d 412, 416

(1990) (finding that parties not related to the child sought to

be adopted could file a petition to adopt and allege therein that

the natural parents were unfit).   Nothing in the Adoption Act,


                              - 8 -
however, gives the trial court the authority to terminate

parental rights outside the adoption context.   All of the

provisions in the Adoption Act addressing findings of unfitness

and termination of parental rights are contained in the context

of the adoption petition or parties seeking to adopt the child.

          Pasierb argues that the authority for a termination of

parental rights in the absence of a petition to adopt comes from

the definition of "unfit" contained in the Adoption Act.     Section

1(D)(i) provides as follows:

               "'Unfit person' means any person whom

          the court shall find to be unfit to have a

          child, without regard to the likelihood that

          the child will be placed for adoption.   The

          grounds of unfitness are any one or more of

          the following ***:

                               * * *

                    (i) Depravity." 750 ILCS 50/1(D)(i)

               (West 2006).

Pasierb argues that the language "without regard to the

likelihood that the child will be placed for adoption"

demonstrates that a petition for adoption need not be pending in

order for a court to find a person "unfit."   We disagree.

          Notably, no cause of action for a determination of

unfitness alone exists.   See Chilean D., 304 Ill. App. 3d at 583,


                               - 9 -
710 N.E.2d at 27 (finding the unfitness phase of a termination-

of-parental-rights proceeding is not an "autonomous proceeding"

and refusing to recognize an adjudication of unfitness outside

the context of a proceeding to terminate parental rights).

Pasierb is asking this court to create a cause of action where

none exists.   Pasierb's reading of the Adoption Act would require

this court to recognize a cause of action for the termination of

parental rights based on the definition of unfitness contained in

the Adoption Act.    As noted, no basis for an adjudication of

unfitness exists outside the context of a proceeding to terminate

parental rights.    Further, no proceeding to terminate parental

rights exists outside the Juvenile Court Act (by way of a

petition for the adjudication of wardship) or the Adoption Act

(by way of an adoption petition).

          Moreover, a plain reading of section 1(D) indicates

that the language "without regard to the likelihood that the

child will be placed for adoption" (705 ILCS 405/2-29(4) (West

2000)) is a reference to focusing on the parent's conduct when

determining fitness.    See In re Tashika F., 333 Ill. App. 3d 165,

169-70, 775 N.E.2d 304, 307 (2002) (examining the language

"without regard to the likelihood that the child will be placed

for adoption" and concluding that when deciding a parent's

fitness, the court focuses only on the parent's conduct).    Only

after a parent has been found unfit does the trial court consider


                               - 10 -
the child's best interests, including the likelihood of adoption.

Tashika, 333 Ill. App. 3d at 170, 775 N.E.2d at 308.

          Pasierb argues that if this court concludes that a

petition for termination of parental rights can only be filed as

part of a petition for adoption or in conjunction with a petition

for the adjudication of wardship under the Juvenile Court Act,

such conclusion will lead to absurd results.   Pasierb asserts

that the mother of a child who properly cares for her child has

no means by which to keep an unfit father from the child--at

least until she marries someone who wants to adopt her child.

Contrary to Pasierb's assertion, however, such a mother is not

without remedy.   See, e.g., S.B., 316 Ill. App. 3d at 675, 736

N.E.2d at 1168-69 (wherein the State filed a petition to

adjudicate the respondent father's children wards of the court

that also sought an order authorizing the children's mothers to

consent to the adoption of the children; appellate court found

that the trial court did not exceed its statutory authority by

terminating the respondent's parental rights while the children

continued to reside with their mothers).   Pasierb may be able to

seek relief under the Illinois Parentage Act of 1984 (750 ILCS

45/14 (West 2006)), which incorporates the custody and visitation

provisions of the Illinois Marriage and Dissolution of Marriage

Act (Dissolution of Marriage Act) (750 ILCS 5/101 et seq. (West

2006)).   The Dissolution of Marriage Act gives the circuit court


                              - 11 -
the authority to deny visitation rights of a parent if the court

finds that visitation would seriously endanger the child's

physical, mental, moral, or emotional health.   See 750 ILCS

5/607(c) (West 2006).   Regrettably, the legislature has not

created a cause of action for one parent seeking to terminate the

other parent's rights other than by way of the Juvenile Court Act

or Adoption Act.   In any event, this court must not engage in

judicial legislation by recognizing a cause of action the

legislature has not created.   See, e.g., Chilean D., 304 Ill.

App. 3d at 583, 710 N.E.2d at 27.

          To conclude, the plain language of the Juvenile Court

Act and Adoption Act provides only two ways in which a party can

seek to terminate the parental rights of another: (1) file a

petition for adjudication of wardship under the Juvenile Court

Act or (2) file a petition to adopt alleging that the consent or

surrender of one or both of the parents is not required because

the parent is unfit.

                          III. CONCLUSION

          For the reasons stated, we reverse the trial court's

order terminating Bishop's parental rights because the court

lacked the statutory authority to do so.

          Reversed.

          APPLETON, P.J., and McCULLOUGH, J., concur.




                               - 12 -
