                             NO. 4-05-0464     Filed 8/2/06

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                          FOURTH DISTRICT

THE ILLINOIS DEPARTMENT OF HEALTHCARE   )    Appeal from
AND FAMILY SERVICES ex rel. DEBBIE      )    Circuit Court of
STOVER,                                 )    Adams County
          Petitioner-Appellee,          )    No. 96F44
          v.                            )
EVERETT L. WARNER,                      )    Honorable
          Respondent-Appellant.         )    Scott H. Walden,
                                        )    Judge Presiding.
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          In March 1996, the trial court ordered respondent,

Everett L. Warner, to pay child support for his two children.    On

October 24, 2002, his parental rights as to those children were

terminated.   On May 6, 2005, the court denied Warner's petition

to vacate the child-support order.    He appeals.   Because section

17 of the Adoption Act relieves natural parents whose parental

rights have been terminated of parental responsibility for their

child (750 ILCS 50/17 (West 2004)), we reverse.

                             I. BACKGROUND

          On February 29, 1996, the Illinois Department of Public

Aid, now known as the Illinois Department of Healthcare and

Family Services (Department), filed a petition on Debbie Stover's

behalf to establish Everett Warner as the father of her children,

C.S. (born December 12, 1993) and B.S. (born August 18, 1995).

On March 28, 1996, the trial court found Warner to be the father

of the children and ordered that he pay child support in the

amount of $46.13 per week.    The Department petitioned the court
for modification of the child-support order, and on October 7,

1999, the court increased Warner's support obligation to $120

every two weeks.   In a separate proceeding, Warner's and Stover's

parental rights were terminated on October 24, 2002.

          On February 2, 2005, Warner filed a pro se motion to

terminate his child-support obligation and recover payments

retroactive to October 24, 2002.    At a hearing on February 10,

2005, the Department indicated it would oppose any motion to

cease support until the children were adopted and the State was

no longer responsible for their support.    The trial court contin-

ued the matter to allow Warner time to consult an attorney.

          On March 3, 2005, Warner's attorney filed a petition to

vacate the child-support order based upon section 17 of the

Adoption Act, which provides:

          "After either the entry of an order termin-

          ating parental rights or the entry of a

          judgment of adoption, the natural parents

          of a child sought to be adopted shall be

          relieved of all parental responsibility for

          such child and shall be deprived of all

          legal rights as respects the child ***."

          750 ILCS 50/17 (West 2004).

          At the March 31, 2005, hearing on the petition, Warner

and the Department stipulated, in relevant part, that (1) Warner

continued to pay child support of $120 every two weeks even after

his parental rights were terminated, (2) the children had been in


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the custody and guardianship of the Illinois Department of

Children and Family Services (DCFS) since before the date of

termination, and (3) the State had received Warner's child-

support payments since the date of termination.    The trial court

also took judicial notice of the order in the cases terminating

Warner's parental rights and the most recent order in those cases

showing that the goal for the children remained adoption.     The

only issue before the court was whether section 17 of the Adop-

tion Act (750 ILCS 50/17 (West 2004)) relieved Warner of his
obligation to pay child support.

           On May 6, 2005, the trial court entered an order

denying Warner's petition pursuant to the "language in Illinois

Supreme Court case In re M.M., 156 Ill. 2d 53, 610 N.E.2d 702
(1993)."   This appeal followed.

                           II. ANALYSIS

           Warner's sole contention on appeal is that section 17

of the Adoption Act requires that the trial court terminate his

child-support obligation and that the court erred when, relying

on M.M., it refused to do so.   In response, the Department first

claims that section 17 is inapplicable because the children are

not in the process of being adopted.    Alternatively, the Depart-

ment argues that the Illinois Supreme Court has determined that

section 17 does not eliminate a natural parent's common-law duty

to support a child in times of need regardless of whether paren-

tal termination or adoption has severed other parental responsi-

bilities and rights.   Because both the applicability of section


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17 of the Adoption Act and whether Warner owes his children a

common-law duty of residual support present questions of law, our

review is de novo.    See In re Marriage of Rogers, 213 Ill. 2d

129, 135-36, 820 N.E.2d 386, 389-90 (2004).

                   A. Applicability of Section 17

            Section 17 of the Adoption Act provides that "the

natural parents of a child sought to be adopted" are relieved of

parental responsibility "[a]fter either the entry of an order

terminating parental rights or the entry of a judgment of adop-

tion."    750 ILCS 50/17 (West 2004).   The Department urges that

section 17 does not relieve Warner of his responsibility to pay

child support because he is not the natural parent of "a child

sought to be adopted," as no evidence before the trial court

suggested that anyone was seeking to adopt either child.

            Section 17 does not provide that natural parents are

relieved of parental responsibility and deprived of legal rights

only where their legal rights have been terminated and a specific
person has expressed interest in adopting their natural child.

Rather, a fair reading of the statute includes situations where a

child is available for adoption, whether or not someone is

actively seeking to adopt that child, and where a child has been

adopted.

            In this case, the trial court took judicial notice that

Warner's parental rights were terminated and that the goal for

C.S. and B.S. was adoption.    Therefore, section 17 applies to

Warner.


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                     B. Residual Duty of Support

          The trial court denied Warner's petition to vacate the

child-support order, stating "[p]ursuant to the clear language in

In re M.M., 156 Ill. 2d 53, 62, 619 N.E.2d 702, 708 (1993),

termination of [Warner's] parental rights did not extinguish his

obligation to support his children."

          Generally, in the United States when an adoption occurs

the adoptive parents replace the blood parents for all purposes.

 2 H. Clark, Domestic Relations in the United States '21.12, at

683 (2d ed. 1987).   The consequences of the adoption decree rest

in the first instance upon the applicable state statute.    A

common form of statute in earlier days contained only a brief

statement that the final decree of adoption divests the natural

parents of their rights and duties.     In some states, some aspects

of the parent-child relationship between the adopted child and

his natural parents were preserved.     2 H. Clark, Domestic Rela-

tions in the United States '21.12, at 683 (2d ed. 1987).    More

recent statutes, however, have generally spelled out the mandate

that the adopted child will have no further rights and obliga-

tions with respect to his natural parents, with the single

exception that if a stepparent adoption occurs, it does not

affect the parent-child relationships between the child and his

natural parent.   2 H. Clark, Domestic Relations in the United

States '21.12, at 683-84 (2d ed. 1987).    "[D]ifferent issues are

involved in determining the best interest of the child in an

adoption by strangers and in an adoption by a natural parent and

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a new spouse."   Lingwall v. Hoener, 108 Ill. 2d 206, 213-14, 483

N.E.2d 512, 516 (1985).

          Illinois has followed the national pattern.    The

supreme court, in M.M., noted this history in a case holding the

Adoption Act did not allow a court to condition an adoption on

the adoptive parents' agreement to permit contact by the minors

with their biological families.

          "With the exception of the biological parents'

          residual duty to support their children (Dwyer

          v. Dwyer (1937), 366 Ill. 630, 633-34[, 10
          N.E.2d 344, 346]), and the children's right

          to inherit from and through their biological

          parents (In re Estate of Tilliski (1945), 390

          Ill. 273[, 61 N.E.2d 24]), adoption constitutes

          a complete and permanent severance of all legal

          and natural rights between such parents and

          children."   M.M., 156 Ill. 2d at 62, 619 N.E.2d

          at 708.

          The support case, Dwyer, involved a situation similar
to a stepparent adoption, a situation where the maternal grand-

parents adopted the child prior to the divorce, the grandfather

died, and the natural mother readopted the child.   The court

ordered the natural father to pay child support despite the

adoptions, noting the statute then in existence simply relieved

the natural parents of their rights, not their duties: "'The

natural parents of a child so adopted shall be deprived, by the


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decree, of all legal rights, as respects the child, and the child

shall be freed from all obligations of maintenance and obedience

as respects such parents.'"   Dwyer, 366 Ill. at 633, 10 N.E.2d at

345-46, quoting Ill. Rev. Stat. 1935, ch. 4, par. 8.     As in other

states, Illinois's statute has changed.     The Adoption Act now

specifically provides that the natural parents are "relieved of

all parental responsibility" in addition to being "deprived of

all legal rights."   (Emphasis added.)   750 ILCS 50/17 (West

2004).   Section 17 makes it "grimly clear" that "[t]ermination of

parental rights destroys the parent-child relationship."    In re
Adoption of Syck, 138 Ill. 2d 255, 274-75, 562 N.E.2d 174, 183

(1990) (unfitness must be proved by clear and convincing evi-

dence; child's best interests not relevant at this stage); see

also In re C.B., 221 Ill. App. 3d 686, 688, 583 N.E.2d 107, 108

(1991) (when parental rights are terminated, "[t]o be blunt, the

situation is as if the parent has died").

          The inheritance case, Tilliski, has experienced a

similar history.   That case held that, under the statute then

existing, a child who had been adopted was entitled to inherit

from her natural mother who died intestate.    Tilliski, 390 Ill.
at 285, 61 N.E.2d at 29.   The statute has now been changed.    "For

purposes of inheritance from or through a natural parent and for

determining the property rights of any person under any instru-

ment, an adopted child is not a child of a natural parent, nor is

the child a descendant of a natural parent or of any lineal or

collateral kindred of a natural parent."    755 ILCS 5/2-4(d) (West


                               - 7 -
1998); In re Estate of Goodkind, 356 Ill. App. 3d 607, 618, 827

N.E.2d 6, 16 (2005).   Where parties are divorced, and the chil-

dren are adopted by the mother's new husband, however, the

children may inherit from their biological father under an

exception to section 2-4(d).     See In re Estate of Snodgrass, 336

Ill. App. 3d 619, 621-22, 784 N.E.2d 431, 433 (2003).

          The question before us must be decided by an examina-

tion of the existing statutes.    See M.M., 156 Ill. 2d at 72, 619

N.E.2d at 713 ("the issue before us, though steeped in policy

considerations, turns solely on an interpretation and application

of our Juvenile Court Act" (emphasis in original)).      Section 17

provides that natural parents whose parental rights have been

terminated "shall be relieved of all parental responsibility."

750 ILCS 50/17 (West 2004).    This is such a situation.    Warner's

parental rights were terminated in October 2002.      The obligation

to pay child support is a parental responsibility.      Therefore,

Warner's support obligation should cease.

          The trial court noted that section 17 of the Adoption

Act was in effect when the supreme court decided M.M.       That is

correct but, as we have noted, the supreme court was considering

historical context in M.M. and did not attempt to address the

current viability of any residual duty of support.      The supreme

court mentioned the residual duty to support in the course of a

"general discussion concerning proceedings to terminate parental

rights and the legal effect of an adoption judgment" (M.M., 156

Ill. 2d at 61, 619 N.E.2d at 707).       See M.M., 156 Ill. 2d at 63,


                                 - 8 -
619 N.E.2d at 708 ("[t]he narrow issue presented *** is whether

the juvenile court *** may condition the court-appointed guard-

ian's power to consent to adoption").              Section 17 of the Adoption

Act is not mentioned in the opinion.             Other Illinois cases have

cited Dwyer for the proposition that a natural parent has a

residual duty to support his child.             See, e.g., Bachleda, 48 Ill.

2d at 19, 268 N.E.2d at 13; Lingwall, 108 Ill. 2d 206, 483 N.E.2d

512.   None of those cases, however, presented a question regard-

ing a natural parent's support obligation or examined the issue

in light of changes in the language or effect of the Adoption

Act.

                                III. CONCLUSION

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

           Reversed.

           MYERSCOUGH and KNECHT, JJ., concur.




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