In re Adoption of Z.O.

2023 IL App (4th) 230106-U

• Court: Appellate Court of Illinois
• Decided: June 23, 2023
• Docket: 4-23-0106
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 230106-U FILED This Order was filed under June 23, 2023 Supreme Court Rule 23 and is NO. 4-23-0106 Carla Bender not precedent except in the th 4 District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re Adoption of Z.O., a Minor, ) Appeal from the ) Circuit Court of (Brian D. and Katie D., ) Tazewell County Petitioners-Appellants, ) No. 22AD13 v. ) Cassandra D. and Daniel B., ) Honorable Respondents-Appellees). ) David A. Brown, ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Steigmann and Lannerd concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in staying adoption proceedings pending progress in a concurrent juvenile proceeding.

¶2 In January 2023, the trial court continued a stay of proceedings related to

petitioners Brian D. and Katie D.’s petition for adoption of the minor child Z.O. pending further

developments in a concurrent juvenile proceeding involving Z.O.’s biological father, respondent

Daniel B. Petitioners appeal the court’s continuance of a stay of the proceedings on their

adoption petition. We affirm.

¶3 I. BACKGROUND

¶4 In April 2022, petitioners learned respondent Cassandra D. was expecting a child,

Z.O. Petitioners had adopted Cassandra D.’s son and Z.O.’s half sibling in 2017. Through

counsel, Katie D. negotiated for Cassandra D. to appoint her as short-term guardian for Z.O. upon his birth. On April 8, 2022, Cassandra D. executed the short-term guardianship appointing

Katie D. as guardian and an affidavit of nonidentification in which Cassandra D. stated she was

“unsure” of the identity of Z.O.’s biological father. An addendum to the short-term guardianship

agreement stated that petitioners “plan[ned] to file for an adoption as soon as possible.”

¶5 Z.O. was born on April 9, 2022, with amphetamines, opiates, and cocaine in his

system and was experiencing withdrawal at birth. The Illinois Department of Children and

Family Services (DCFS) received a report based on Z.O. For reasons unclear from the record,

Z.O. was not released to Katie D. when she arrived at the hospital to retrieve him.

¶6 On April 12, 2022, petitioners filed a petition to adopt Z.O. The petition stated

that Cassandra D. “indicated a willingness to consent to the adoption.” Petitioners asked to

consolidate the adoption proceedings with any DCFS proceedings.

¶7 On April 13, 2022, DCFS filed a shelter care petition alleging neglect. The trial

court awarded DCFS temporary custody, and Z.O. was placed with Cassandra D.’s aunt.

¶8 On April 22, 2022, the trial court consolidated the pending juvenile court action

and the adoption action. The court determined the short-term guardianship by Katie D. was valid

and allowed for visitation with petitioners. The court ordered DCFS to start proceedings pursuant

to the Interstate Compact on the Placement of Children, as petitioners resided in Nebraska. The

court also directed the State to serve “the putative father [and] father’s unknown.” It is at this

point in the record Daniel B. is first mentioned.

¶9 On May 13, 2022, the trial court entered an arraignment order. The order stated

that Cassandra D. and unknown fathers were defaulted, but it also instructed DCFS to run a

diligent search on Daniel B. and arrange and pay for DNA testing to determine paternity. Z.O.

-2- was placed in Katie D.’s custody, and on June 24, 2022, Katie D. was permitted to take Z.O. to

Nebraska.

¶ 10 On July 14, 2022, a DNA test confirmed Daniel B. was the biological father of

Z.O. Shortly thereafter, Cassandra D. revoked the short-term guardianship. Cassandra D. stated

in her notice of revocation she did not “wish to consent to the adoption of [Z.O.] by any person.”

Cassandra D. also stated that, when she agreed to the short-term guardianship, she was under the

influence of drugs, was not taking mental health medications, and did not understand what she

was signing. After the revocation, DCFS was named guardian of Z.O.

¶ 11 In August 2022, petitioners filed an amended petition for adoption, naming Daniel

B. and Cassandra D. as biological parents. In the amended petition, petitioners argued both

biological parents were unfit persons as defined in section 1(D) of the Adoption Act (750 ILCS

50/1(D) (West 2022)). According to the petition, Cassandra D. was unfit due to (1) abandoning

Z.O. at the hospital after giving birth, (2) her longstanding history of drug abuse, (3) failing to

maintain a reasonable degree of interest, concern, or responsibility as to the welfare of Z.O., and

(4) her present incarceration. The petition alleged Daniel B. was unfit for failing to maintain a

reasonable degree of interest, concern, or responsibility as to the welfare of Z.O., asserting

Daniel B. knew he was Z.O.’s father and failed to register with the Illinois Putative Father

Registry. The petition also argued Daniel B. “evidenced his intent to forgo his parental rights” by

failing to commence legal proceedings to establish paternity after he was informed he was Z.O.’s

biological father.

¶ 12 Daniel B. initially filed a response to the amended petition for adoption admitting

he did not register with the Illinois Putative Father Registry but denying that he was sure he was

-3- Z.O.’s father, as “there were multiple potential fathers.” Daniel B. also stated that, as soon as he

found out he was Z.O.’s biological father, he pursued custody and never consented to adoption.

¶ 13 In September 2022, the trial court entered a dispositional order in the juvenile

case. (We note the dispositional order is not part of the record on appeal. However, the results of

the dispositional order are reflected in the record.) The court found Daniel B. fit but unable to

care for Z.O., and Daniel B. was permitted unsupervised visits with Z.O. Further, Z.O. was

removed from petitioners’ care and placed in the care of Daniel B.’s mother.

¶ 14 The petition for adoption was set for trial in October 2022, and Daniel B.

requested and was granted a continuance. DCFS filed a motion for leave to intervene in the

adoption proceedings, which the trial court also granted.

¶ 15 DCFS and Cassandra D. filed motions to dismiss the amended adoption petition.

Daniel B., after filing a motion for leave to withdraw his answer, joined DCFS’s motion to

dismiss. DCFS alleged in its motion to dismiss the adoption matter was premature “as the

Juvenile Court retains exclusive jurisdiction over the custody, guardianship, and placement of the

child” and Z.O. was not available for adoption under the Adoption Act. DCFS also requested, in

the alternative, that the trial court stay the adoption proceedings pending the resolution of the

juvenile case. Cassandra D.’s motion made similar arguments.

¶ 16 In response, petitioners argued the juvenile court did not have exclusive

jurisdiction merely because there was a pending juvenile case, and the juvenile and adoption

proceedings could be litigated in concert with each other. Petitioners argued that, as the petition

for adoption was filed first in time, any stay should apply to the juvenile case, not the adoption

case.

-4- ¶ 17 After a November 2022 hearing, the trial court denied the motions to dismiss but

stayed the adoption proceeding until the first permanency hearing, set for January 2023. The

court determined that it had jurisdiction over both the juvenile and adoption proceedings and that

it was possible the petitioners could demonstrate Z.O. was available for adoption. The court

further found that, although it could continue through the fitness phase of the adoption process,

the best interest phase would be dependent on the proceedings of the juvenile case. The court

therefore determined, “I think the best course and what’s in the best interest of the child is that I

stay the adoption until I have some further information on the [juvenile] case.” The court

clarified it was not staying the adoption proceedings “indefinitely,” but would make a

determination based on the January 6, 2023, permanency review hearing.

¶ 18 Petitioners filed a motion to reconsider the stay of the adoption proceedings. In

their motion, petitioners argued the adoption proceeding “must be given priority over the

juvenile matter.”

¶ 19 On January 6, 2023, the trial court held the permanency hearing in the juvenile

case. After hearing testimony on Daniel B.’s progress with services, his financial support to the

foster mother, and his relationship with Z.O., the court found Daniel B. made reasonable efforts

and reasonable progress and set the goal as to Daniel B. to return home in five months. The court

set the next permanency review hearing for four months, stating:

“I think by then, [Daniel B.], we ought to have a clear picture as to whether this is

gonna be a child being placed in your care or we have to go hard in a different

direction because it doesn’t look like [Cassandra D. is] gonna be a viable option

for quite some time.”

-5- ¶ 20 The trial court then proceeded to a hearing on petitioners’ motion to reconsider

the stay. The court disagreed with petitioners the adoption case had priority and declined to

reconsider or lift the stay. The court stated:

“Bottom line though is I need to keep administering a case for [Z.O.] on

the abuse and neglect side of things, and I think the adoption needs to take a

backseat for a lot of reasons, but primarily because if we return the child to his

father, I think that’s gonna substantially effect [sic] any adoption case, at least one

or both phases of it.”

¶ 21 In its written motion denying the motion to reconsider the stay, the trial court

included a statement that the decision was “a final and appealable decision” pursuant to Illinois

Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 As an initial matter, we must determine our jurisdiction to hear this case. See, e.g.,

In re J.M., 2023 IL App (4th) 220537, ¶ 17 (“[W]e have an independent duty to examine our

jurisdiction.”). Petitioners initially assert jurisdiction is proper under Illinois Supreme Court Rule

304(a) (eff. Mar. 8, 2016) due to the trial court’s Rule 304(a) finding following its decision on

their motion to reconsider the stay. Despite the court’s Rule 304(a) finding, the January 6, 2023,

stay was not a final judgment as to one or more parties or claims. See id. Therefore, this court

does not have jurisdiction under Rule 304(a) to consider the grant of a stay on appeal. As DCFS

points out, however, Rule 307(a)(1) grants this court jurisdiction over appeals taken from orders

“granting *** an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2017). As this court has

previously stated, “a stay of proceedings is indeed an injunction.” (Internal quotation marks

-6- omitted.) Lisk v. Lisk, 2020 IL App (4th) 190364, ¶ 20. Therefore, this court has jurisdiction to

review the January 6, 2023, stay of adoption proceedings in this case.

¶ 25 We review a trial court’s order staying a case with an abuse-of-discretion

standard, and we reverse only where there has been an abuse of that discretion. Save Our Illinois

Land v. Illinois Commerce Comm’n, 2022 IL App (4th) 210008, ¶ 147. The abuse-of-discretion

standard of review “is the most deferential standard of review—next to no review at all.” In re

D.T., 212 Ill. 2d 347, 356 (2004). “An abuse of discretion occurs when the trial court’s ruling is

arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by

the trial court.” (Internal quotation marks omitted.) Lisk, 2020 IL App (4th) 190364, ¶ 22.

¶ 26 A trial court’s authority to grant a stay of proceedings is grounded in its general

power to control the disposition of cases. Id. ¶ 23. When a court is considering whether to grant a

stay, factors for consideration include “the orderly administration of justice, judicial economy,

comity, prevention of multiplicity, vexation, and harassment.” Id. “When several actions are

pending that involve substantially the same subject matter, a court may stay the proceedings in

one matter to see whether the disposition of one action may settle the other.” Id.

¶ 27 In this case, the adoption case and the juvenile case both involved the same

subject matter—the placement of Z.O. Therefore, the disposition of either case was likely to

resolve the other. On its face, staying one proceeding to see if the other might resolve the

situation was well within the trial court’s general power and discretion. At the January 6, 2023,

permanency hearing, the court set the permanency goal to return to Daniel B. within five months.

Should Z.O. be returned home to Daniel B., there would be no question Z.O. was unavailable for

adoption by petitioners, resolving the adoption proceeding in its entirety.

-7- ¶ 28 “The overriding concern of both the Adoption Act and the Juvenile Court Act [of

1987 (Juvenile Court Act)] is the best interests of the child.” In re Marriage of T.H., 255 Ill.

App. 3d 247, 253 (1993). Therefore, in the context of these competing matters, the trial court

must consider what course would be in the best interest of Z.O. It is arguable that, by proceeding

with the juvenile case and temporarily staying the adoption case, the court was able to determine

in the most expeditious manner whether Daniel B. would be likely to complete services and take

custody of Z.O. Should Daniel B. demonstrate in the interim he was not a fit parent, the court

would be free to consider the adoption petition with sufficient evidence of the biological parents’

unfitness. The court explicitly laid out this plan when it set permanency review for four months,

stating, “I think by then *** we ought to have a clear picture as to whether this is gonna be a

child being placed in your care or we have to go hard in a different direction.” By staying the

adoption proceedings, the court gave Z.O. the greatest opportunity for permanence as quickly as

possible, whether that permanence be with Daniel B. or an adoptive placement. Because this is a

reasonable interpretation of what would be in the best interest of Z.O., we will not disturb the

court’s decision.

¶ 29 Petitioners cite In re Adoption of M.C., 2022 IL App (5th) 220422-U, and suggest

that it is persuasive authority for the proposition that the adoption and the juvenile case should

proceed in concert. In M.C., the minor was made a ward of the court during juvenile neglect

proceedings involving the minor’s mother. Id. ¶ 5. The minor’s father was deceased, and the

minor’s paternal grandparents filed an amended petition for adoption. Id. ¶¶ 4, 12. DCFS filed a

motion to dismiss or, in the alternative, stay the adoption case until the resolution of the juvenile

case, arguing the trial court lacked jurisdiction and the minor was not available for adoption. Id.

-8- ¶¶ 13, 15. The court agreed it lacked jurisdiction and dismissed the adoption petition, declining

to consolidate the adoption and juvenile matters. Id. ¶ 17.

¶ 30 On appeal, the Fifth District Appellate Court determined that the trial court erred

in dismissing the adoption petition. Id. ¶ 29. The appellate court determined the trial court had

subject matter and personal jurisdiction over the adoption proceedings. Id. ¶ 26. As “neither the

Adoption Act nor the Juvenile Court Act mandated that a subsequently filed adoption petition be

heard prior to a petition to terminate parental rights,” it followed “both the adoption petition and

the Juvenile Court Act proceeding could advance simultaneously.” Id. ¶¶ 28, 29. The court also

determined the trial court abused its discretion by denying the motion to consolidate the adoption

case with the juvenile case, as “[t]his would have permitted the overlapping issues to be decided

simultaneously, allowing for expeditious resolution of the two proceedings.” Id. ¶ 33.

¶ 31 This case is distinguishable from M.C. in several ways. M.C. involved a finality of

the adoption proceedings in a way not at issue here. The trial court here denied the motions to

dismiss, opting instead to stay the adoption proceeding to avoid such finality. In fact, the trial

court specifically noted it was not staying the adoption proceeding indefinitely, but rather only

until it could determine the direction the juvenile case was proceeding. Second, M.C. involved a

termination of parental rights action which was already proceeding. Therefore, the termination

and adoption actions had several overlapping issues which could proceed together without

conflict. Here, Daniel B. was complying with services and might well gain custody of Z.O. The

adoption proceeding and juvenile proceeding were therefore in conflict with each other. Finally,

we note that the appellate court in M.C. determined, contrary to the finding of the trial court, that

“both the adoption petition and the Juvenile Court Act proceeding could advance

simultaneously.” (Emphasis added.) Id. ¶ 29. Here, the trial court never found the proceedings

-9- could not advance simultaneously. Rather, there was nothing to support a determination that the

proceedings must advance simultaneously. We find M.C. is not persuasive for the present case.

¶ 32 Petitioners also argue that, if a stay were necessary, the juvenile court case should

have been stayed while the adoption case proceeded. Petitioners reason the adoption case was

filed “first in time” and therefore “convention” dictates their case should take preference.

Assuming petitioners are correct the adoption petition was filed first in time, their argument still

fails. Petitioners cite no case which applies a first-in-time principle in the context of the best

interest of a child, and we do not find the cases they cite—cases involving school boundary

changes—to be analogous. See Rodgers v. Desiderio, 274 Ill. App. 3d 446, 449 (1995).

¶ 33 Finally, petitioners highlight the substantial prejudice against them as a result of

the stay. However, none of their examples of prejudice are the result of the trial court’s stay of

proceedings. Z.O. was removed from their care not because of the stay but because Cassandra D.

withdrew the short-term guardianship. The stay had no effect on Z.O.’s placement in the juvenile

case. The stay similarly had no effect on petitioners’ right to visitation. Whether visits were

occurring was not dependent on the adoption case proceeding. Moreover, both the Adoption Act

and the Juvenile Court Act “contain strict requirements that embody Illinois’s policy favoring

parents’ superior right to the custody of their children.” In re N.G., 2018 IL 121939, ¶ 27.

Indeed, “[p]arents have a constitutional right to the custody of their children with all the rights

and responsibilities that custody entails,” but this fundamental right “is not absolute.” In re O.S.,

364 Ill. App. 3d 628, 637 (2006). Deprivation of a parent’s constitutional right to his or her

children must comply with due process. Id. “Due process in this instance is achieved by

compliance with the provisions of the Juvenile Court Act and fundamental fairness.” Id. at 638.

- 10 - Allowing Daniel B. a fair opportunity to complete his services and gain custody of Z.O. is

consistent with the letter and spirit of the Juvenile Court Act.

¶ 34 In sum, we do not find the trial court abused its discretion in staying the adoption

proceedings pending further progress in the juvenile matter. See Lisk, 2020 IL App (4th)

190364, ¶ 22.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we affirm the trial court’s judgment.

¶ 37 Affirmed.

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