                                                           NO. 5-06-0294
                        N O T IC E

 Decision filed 10/31/06. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

In re TAYLOR D., a Minor                    ) Appeal from the
                                            ) Circuit Court of
(The People of the State of Illinois,       ) Jefferson County.
                                            )
   Petitioner-Appellee,                     ) No. 04-JA-15
                                            )
v.                                          )
                                            )
Anna D.,                                    ) Honorable
                                            ) James M. Wexstten,
   Respondent-Appellant).             ) Judge, presiding.
________________________________________________________________________

                  JUSTICE McGLYNN delivered the opinion of the court:

                  Taylor D. was taken into protective custody the day after the Jefferson County State's

Attorney's office filed a juvenile abuse case against Anna D. (the respondent), who is

Taylor's mother. More than a year later, the State filed a "Motion for Termination of Parental

Rights and for Appointment of Guardian with Power to Consent to Adoption." On the first

day of the termination hearing, the respondent executed a "Final and Irrevocable Consent to

Adoption by Specified Person or Persons," seeking to have Taylor placed with relatives. The

court proceeded with the termination proceeding and granted the State's motion. The

respondent's parental rights were terminated, and the Department of Children and Family

Services (DCFS) was granted the power to consent to an adoption. The respondent appeals.

                                                         Statement of Facts

                  Taylor was born on May 13, 2003. On March 15, 2004, the Jefferson County State's

Attorney's office filed a petition in Taylor's interest. The petition alleged neglect by Taylor's

mother. Taylor's father is unknown and has been found unfit by default. The respondent had


                                                                 1
been diagnosed with bipolar disorder and posttraumatic stress disorder, making it necessary

for her to take medication. When the respondent did not take her prescribed medication, she

exhibited violent, erratic behavior, thus putting Taylor at risk of harm. On March 16, 2004,

after a shelter care hearing, Taylor was taken into protective custody. When Taylor was 10

months old, she was placed with foster parents, with whom she has remained.

       The court ordered that the respondent comply with certain recommendations before

Taylor would be reunited with her. The respondent was to keep all her doctor appointments,

take medication prescribed to control her behavior, comply with counseling, and establish

and maintain a safe and suitable home environment. After more than a year of unsatisfactory

progress on the part of the mother, the State filed a "Motion for Termination of Parental

Rights and for Appointment of Guardian with Power to Consent to Adoption" on November

3, 2005.

       The first day of the hearing on the motion to terminate parental rights was February

24, 2006. On the same day, the respondent executed a "Final and Irrevocable Consent to

Adoption by Specified Person or Persons," in which she sought to consent to the adoption

of Taylor by her brother and his wife. One week prior, on February 17, 2006, the respondent

had filed a "Motion for Custody with the M inor's Uncle."

       Although Taylor's aunt and uncle never appeared in court, a letter was sent by them

to the court on March 28, 2006, expressing their desire to adopt Taylor. They indicated in

the letter that they were employed, that their home was laid out so that Taylor could have her

own room, and that they had submitted themselves to all the requirements of Lutheran Child

and Family Services.

       The State objected to the mother's ability to consent to an adoption, and the court set

the matter for a hearing so that each side could present argument on the issue of the mother's

ability to control the selection of the adoptive parents of her child.


                                               2
       The State argued that the respondent's motion and attempts to direct her consent to

Taylor's uncle were inappropriate because Taylor "is a ward of [the] Court and her mother

did not have the right to place her at this time" and because "the issue of placement [is] most

appropriately decided at the best interest portion of the hearing."

       Here, the respondent executed her consent to adopt on the same day her parental rights

were to be terminated. The circuit court did not strike her motion, nor did it stay the

proceedings due to the motion. Instead, the court gave the respondent the opportunity to

consent, finding that her consent would not limit who could petition for an adoption or

confine the court regarding to whom it granted the actual power to consent to an adoption.

The court proceeded and found the respondent unfit. At the "best interests" portion of the

hearing on May 16, 2006, the State presented evidence that Taylor was doing well in her

foster home and that it was in the best interests of Taylor to be adopted by her foster parents.

Accordingly, the court granted the State's motion to terminate parental rights and appointed

DCFS as the guardian, with the power to consent to an adoption.

       The respondent filed a notice of appeal with the Jefferson County circuit clerk on June

9, 2006.

                                             Issue

       The issue before this court is whether a mother can control the selection of the

adoptive parents of her child by executing a final and irrevocable consent to adoption by a

specified person or persons when that child is a ward of the court. The respondent argues

that she has this right by statute and that the trial court erred in proceeding with the State's

motion for the termination of parental rights and for the appointment of a guardian with the

power to consent to an adoption, after her directed-consent documents had been filed.

       This issue directly involves a question of law, the proper interpretation of a statute,

and thus w e apply de novo review without affording any deference to the trial court's


                                               3
decision. See In re Adoption of L.R.B., 278 Ill. App. 3d 1091, 1093, 664 N.E.2d 347, 348

(1996).

       The respondent argues the trial court erred in proceeding with the State's termination

motion and granting the power to consent to an adoption to DCFS when she had executed

a final and irrevocable consent to adoption by a specified person or persons. The respondent

argues that as a biological parent, she retains the right to consent to an adoption until those

rights are terminated. The respondent urges that section 1-3(13) of the Juvenile Court Act

of 1987 (Juvenile Court Act) (705 ILCS 405/1-3(13) (W est 2004)) specifically lists "the right

to consent to adoption" as a parental right remaining with the parent even after the transfer

of the legal custody or guardianship of the child. The respondent's assertion is true, but this

right is limited by statute.

       The respondent is correct in stating that when a child is found to be neglected and

placed under guardianship, a parent retains the residual right to consent to an adoption. See

705 ILCS 405/1-3(13) (West 2004). However, this residual power is limited by the Adoption

Act (750 ILCS 50/0.01 et seq. (West 2004)) to ensure that the best interests of the child are

served.

                                        Adoption Act

       A parent's consent to an adoption is void and of no legal effect if the child is not

available for adoption in the manner sought by the parent. Under the Adoption Act, Taylor

was not available for adoption by the respondent's brother without the consent of DCFS and

because the respondent's brother did not have the custody of Taylor. The Adoption Act

defines "available for adoption" as follows:

               "A person is available for adoption when the person is:

               (a) a child who has been surrendered for adoption to an agency and to whose

       adoption the agency has thereafter consented;


                                               4
              (b) a child to whose adoption a person authorized by law, other than his

       parents, has consented, or to whose adoption no consent is required pursuant to

       Section 8 of this Act;

              (c) a child who is in the custody of persons who intend to adopt him through

       placement made by his parents;

              (c-1) a child for whom a parent has signed a specific consent pursuant to

       subsection O of Section 10;

              (d) an adult who meets the conditions set forth in Section 3 of this Act; or

              (e) a child who has been relinquished as defined in Section 10 of the

       Abandoned Newborn Infant Protection Act." 750 ILCS 50/1(F) (West 2004).

       Taylor was not available for adoption under any of these subsections. When a child

is under DCFS guardianship and in a foster home, the only way that child may be adopted

by a noncustodial relative through parental consent is under section 1(F)(c-1) of the Adoption

Act (750 ILCS 50/1(F)(c-1) (West 2004)), which refers to the requirements set forth in

section 10(O) of the Adoption Act (750 ILCS 50/10(O) (West 2004)).

       Under section 10(O)(1) of the Adoption Act, a parent of a child whose interests are

the subject of a pending petition under section 2-13 of the Juvenile Court Act (705 ILCS

405/2-13 (West 2004)) may, with the approval of DCFS, execute a consent to an adoption

by a specified person or persons:

              "(a) in whose physical custody the child has resided for at least 6 months; or

              (b) in whose physical custody at least one sibling of the child who is the

       subject of this consent has resided for at least 6 months, and the child who is the

       subject of this consent is currently residing in this foster home; or

              (c) in whose physical custody a child under one year of age has resided for at

       least 3 months." 750 ILCS 50/10(O)(1) (West 2004).


                                              5
Taylor was not available for an adoption by the persons to whom the respondent directed her

consent. This consent is void because it seeks to authorize an unlawful act, and the court was

correct in proceeding with the motion to terminate parental rights.

       The State directs us to other cases that have held that even when an unfit parent has

signed a consent to the adoption of a child by some relative, a trial court may still proceed

to terminate parental rights. In re Adoption of C.D., 313 Ill. App. 3d 301, 315-16, 729

N.E.2d 553, 564-65 (2000); In re Adoption of L.R.B., 278 Ill. App. 3d 1091, 1093-94, 664

N.E.2d 347, 348-49 (1996); In re Marriage of T.H., 255 Ill. App. 3d 247, 253-54, 626 N.E.2d

403, 408 (1993); In re C.R., 164 Ill. App. 3d 142, 146-47, 517 N.E.2d 622, 625-26 (1987).

       In the In re C.R. case, the court held that an order terminating parental rights does not

contemplate the survival of any residual rights in the natural parents. In re C.R., 164 Ill. App.

3d at 146, 517 N.E.2d at 625. The parents in that case argued that the court did not have the

authority to terminate parental rights or to appoint a guardian with the power to consent to

an adoption because no petition for an adoption had been previously filed. In re C.R., 164

Ill. App. 3d at 143, 517 N.E.2d at 623. Not only did the court disagree with this assertion,

but the court stated that there was nothing in the Juvenile Court Act that requires that the

parents be advised of their right to consent or be given the opportunity to consent. In re C.R.,

164 Ill. App. 3d at 147, 517 N.E.2d at 626. While this case is not directly on point, it

supports the argument that a termination proceeding will not be put on hold so that a parent

can direct the placement of his or her children.

       Our later decision in In re Marriage of T.H. held that a trial court could terminate

parental rights, even though the parent had signed a consent to an adoption, when the trial

court's ruling was in the best interests of the children. In re Marriage of T.H., 255 Ill. App.

3d at 253-54, 626 N.E.2d at 408. The respondent argues that the case is distinguishable

because the facts are "drastically different." That may be, but the legal situations are the


                                               6
same. A parent in each case sought to stay termination proceedings by signing a consent to

an adoption by the parent's brother. In In re Marriage of T.H. the court found that the signed

consent did not stay the termination proceeding, especially because this procedure "leaves

the court free to consider the competing petitions to adopt rather than being bound to

consider only the petition accompanied by [parental] consent, and it allows the court to

achieve the best possible result for the minor children." In re Marriage of T.H., 255 Ill. App.

3d at 254, 626 N.E.2d at 408.

       The ruling of the Fourth District in the In re Adoption of L.R.B. case established that

a parent whose parental rights are about to be terminated may not execute consents in favor

of relatives in an attempt to control the placement of the parent's children and to prevent the

court from choosing the placement which the court believes is in the best interests of the

children. In re Adoption of L.R.B., 278 Ill. App. 3d at 1094, 664 N.E.2d at 348-49. The court

in In re Adoption of L.R.B. found that the residual right to consent listed in section 1-3(13)

of the Juvenile Court Act (705 ILCS 405/1-3(13) (W est 1994)) did not grant an affirmative

right but simply makes clear that the right to consent belongs not to the legal guardian or

custodian but to the parent until parental rights are terminated. In re Adoption of L.R.B., 278

Ill. App. 3d at 1094, 664 N.E.2d at 349. As in the case at hand, the rights of the parent had

not been terminated in In re Adoption of L.R.B. when the consent was executed. The child

there was also a ward of the court, and the court found that the child was not available for

an adoption by the persons the parent preferred. In re Adoption of L.R.B., 278 Ill. App. 3d

at 1093-94, 664 N.E.2d at 348. We agree that the Adoption Act provides parents with some

control over the adoption of their children through a private placement. This control exists

to the extent the child is available for an adoption in the manner sought by the parent under

the limitations imposed by the Adoption Act and the statute's goal of doing what is in the best

interests of the child.


                                              7
       A later decision of the Fourth District applied the Adoption Act's limitations to find

that a parent's consent in favor of a grandparent was invalid since the child was a ward of the

court and the grandmother did not have custody as required by section 10(O)(1) of the

Adoption Act. In re Adoption of C.D., 313 Ill. App. 3d 301, 315-16, 729 N.E.2d 553, 564-65

(2000).

       The respondent's argument, centered on the residual right to consent to an adoption

found in section 1-3(13) of the Juvenile Court Act without regard to the limitations imposed

on this right, including the goal of achieving the best interests of the child, is an argument

this court is not inclined to follow. This residual power to consent does not necessarily lead

to an adoption as sought by the parent(s). Even when parents have consented to an adoption

of a child, a judge may approve that adoption only after finding that it is in the child's best

interests. Nees v. Doan, 185 Ill. App. 3d 122, 126, 540 N.E.2d 1046, 1048 (1989); In re

Adoption of Lucas, 87 Ill. App. 3d 1100, 1104, 409 N.E.2d 521, 524 (1980); 750 ILCS 50/15

(West 2004). Accordingly, the trial judge was correct in proceeding with the pending motion

to terminate parental rights and was not required to stay that proceeding because of the

consent executed by the respondent. The consent was properly dealt with at the "best

interests" hearing and was properly dismissed because it sought the adoption of Taylor in a

manner in which Taylor was not available to be adopted under the Adoption Act.

       The result reached in this case is consistent with Illinois precedent and achieves the

goals sought by the Adoption Act and the Juvenile Court Act. The respondent's consent

might have been honored had it not been repugnant to statute and had her parental rights not

been terminated. The best interests of Taylor have been served because she remains with

foster parents who have cared for her nearly all of her life and who are known to her as Mom

and Dad. Once a child has been made a ward of the court, the ability of a parent to control

the adoption of his or her child is limited by the requirements imposed to serve the best


                                              8
interests of the child.

                                          Conclusion

       The judgment of the circuit court of Jefferson County is affirmed.



       Affirmed.



       CHAPMAN and DONOVAN,1 JJ., concur.




Justice Donovan joined the panel after the death of Justice Hopkins.

                                                9
