Support Didn't End With Parental Rights
March 15, 2008
by Don R. Sampen
The Illinois Supreme Court, over dissent, recently held that a father had an obligation to continue to pay child support even following entry of a court order terminating all his parental rights. Illinois Department of Healthcare and Family Services v. Warner, 2008 Ill. Lexis 3 (Jan. 25).
Betsy Bier of Bier & Bier, Quincy, represented the father, Everett Warner. Assistant Attorney General Diane M. Potts represented the Illinois Department of Healthcare and Family Services.
In 1996, Warner entered into an agreed judgment of parentage of two children, C.S. and B.S., pursuant to which the court ordered him to pay child support in the amount of $46.13 per week. In 1999, that amount was increased to $120 every two weeks. In 2002, however, in a separate juvenile court proceeding, his and the children's mother's parental rights were terminated. The juvenile court appointed a guardian for the children at the same time.
In 2005, Warner filed a pro se motion to end his child support obligations. In response, the department took the position that the support payments were being used by the state to help pay for the children's foster care. The department, moreover, contended that a parent's obligation to support a child does not end with the termination of parental rights. It argued that the obligation would cease only if the children were adopted.
Warner then retained an attorney who filed a petition to vacate the child support order in reliance on section 17 of the Adoption Act, 750 ILCS 50/17. Under section 17, parental responsibilities of "the natural parents of a child sought to be adopted" terminate "[a]fter either the entry of an order terminating parental rights or the entry of a judgment of adoption."
The circuit court denied Warner's petition based on section 17, but the appellate court reversed. It found that section 17 applied in part because of evidence in the record that the department's acknowledged goal for the two children was adoption. The department petitioned for leave to appeal from the appellate court judgment, which the Supreme Court allowed.
In an opinion by Justice Charles E. Freeman, the Supreme Court reversed the appellate court and affirmed the circuit court. At the outset, Freeman acknowledged the department's two arguments, that (a) section 17 is inapplicable because neither C.S. nor B.S. was "a child sought to be adopted," and (b) even if section 17 does apply, a natural parent's common law duty of support survives a termination of parental rights.
Freeman focused on the first point. He observed that section 17, by its wording, does not identify who may seek to have a child adopted for purposes of triggering application of the section, and that it could be construed to mean that by making a child "available" for adoption the state "seeks" to have the child adopted. He rejected this construction, however, on the ground that under section 2 of the Adoption Act, only persons meeting specified requirements may initiate adoption proceedings, 750 ILCS 50/2, and the state is not among those that can seek adoption.
Freeman further observed that there was no indication in the record that C.S. and B.S. were ever in the process of being adopted. Under these circumstances, he opined, termination of the natural parent's support obligation would leave the child with only the state to look to for sustenance. By use of the "sought to be adopted" language, Freeman reasoned that the General Assembly intended to avoid this result.
Freeman also noted Warner's reference in his brief to section 2-29(2) of the Juvenile Court Act of 1987, 705 ILCS 405/2-29(2). That section provides, in relevant part, that in certain circumstances the juvenile court "may terminate parental rights and empower the guardian of the person of the minor, in the order appointing him or her as such guardian ... to consent to the adoption." As an initial matter, Freeman said that Warner waived reliance on this section because he had not raised it in the lower courts.
In addition, Freeman observed that Warner did not explain how this provision related to his claim, and that the record in any event did not contain copies of the juvenile court orders terminating his parental rights. Since, by its terms, section 2-29(2) states only that the juvenile court "may" empower the guardian to consent to adoption, and the orders terminating parental rights were not in the record, Freeman said he could not tell if those orders made any provision for adoption.
Based on this record, Freeman said that the court would leave for another day the resolution of whether section 2-29(2) could support a claim for termination of child support payments.
Because section 17 did not apply, Freeman found it unnecessary to address the department's alternative argument that a natural parent's common-law, residual duty of support survives the termination of his parental rights. Accordingly, based on its interpretation of section 17, the court reversed the appellate court judgment and held that Warner's support payment obligation continued.
Justice Thomas L. Kilbride dissented, arguing that a proper analysis of section 17 required the construction of "sought to be adopted" to include the department's efforts to place the children with an adoptive family. He further contended that the court should not ignore the effect of section 2-29(2), and that Warner's common law residual duty to support is abrogated when section 17 applies.
