Petition of Filippelli

566 N.E.2d 412, 207 Ill. App. 3d 813, 152 Ill. Dec. 725, 1990 Ill. App. LEXIS 1914
CourtAppellate Court of Illinois
DecidedDecember 21, 1990
Docket1-90-0388
StatusPublished
Cited by20 cases

This text of 566 N.E.2d 412 (Petition of Filippelli) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petition of Filippelli, 566 N.E.2d 412, 207 Ill. App. 3d 813, 152 Ill. Dec. 725, 1990 Ill. App. LEXIS 1914 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Petitioners, Frank J. and Linda M. Filippelli, brought a petition to adopt A.J.W., and respondent, A.J.W.’s natural mother, moved to dismiss the petition. The trial court on September 6, 1989, denied respondent’s motion to dismiss and certified for interlocutory appeal the question raised by the motion. Respondent did not file a petition for leave to appeal within 14 days and proceeded with a trial on respondent’s fitness as a parent. At the conclusion of the trial on January 10, 1990, the court found respondent unfit and terminated her parental rights. Respondent has filed an interlocutory appeal of the September 6 order denying her motion to dismiss the petition to adopt and of the January 10 order which found respondent an unfit parent and terminated her parental rights concerning A.J.W.

The record reveals that A.J.W., a four-year-old child, has lived with petitioners since March 12, 1989. On March 21, 1989, petitioners filed a petition to adopt A.J.W. In their initial petition, petitioners alleged that they were unrelated to A.J.W., who had been in their custody since March 12, 1989; the biological father was unknown; the respondent was under no legal disability and had surrendered the minor child to the petitioners; and the respondent had indicated her willingness to consent to the adoption of A.J.W. by petitioners. The petition asserted further that the unknown father was an unfit parent in that he had abandoned and deserted his child; failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of his child; and his consent to the adoption was not required.

On April 5, 1989, petitioners filed their first amended petition for adoption, which asserted that respondent’s parents had surrendered the minor child to petitioners; respondent was an unfit parent in that she had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; and her consent to the adoption was not required.

On June 14, 1989, petitioners filed an amendment and supplement to the first amended petition to adopt which alleged that respondent had placed the child with her parents, Kenneth and Mary Woodham, who thereafter placed the child with petitioners on March 12, 1989; respondent was an unfit parent in that she had abandoned the child and had an habitual addiction to drugs for at least one year immediately prior to the commencement of the proceedings; and Ronald Karp, the biological father, was an unfit parent in that he had abandoned the child and deserted his child for a period in excess of three months immediately preceding the filing of the amendment and had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.

The matter then proceeded to trial on the issue of the fitness of respondent and Karp. On July 20, 1989, respondent made an oral motion to dismiss the first amended petition to adopt, as subsequently supplemented and amended. Petitioners filed a memorandum of law in opposition to respondent’s motion and addressing the applicability of the third district’s decision in Johnson v. Burnett (1989), 182 Ill. App. 3d 574, 538 N.E.2d 892. Respondent filed a memorandum of law in reply to that filed by petitioners.

On September 6, 1989, the trial court denied respondent’s motion to dismiss the petition to adopt, but found that A.J.W. was not available for adoption and would not be available for adoption until there was a finding his parents were unfit. The court also indicated that the case should go forward on the issue of the fitness of A.J.W.’s parents. The court held, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), that its order denying the motion to dismiss involved a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation, and the court certified this question for interlocutory appeal.

Respondent did not file a petition for leave to appeal within 14 days as required by Rule 308, and instead continued to litigate the question of her parental unfitness as alleged by petitioners.

At the trial on respondent’s fitness, several witnesses, including Linda Jo Seglar, Dr. Donald Sellers, Louise Kordat, Dr. Bernard Newman, Janet Kerwin, and Miriam Dedeian, testified that respondent had a history of drug abuse and had been addicted to alcohol and drugs for at least one year prior to the commencement of the proceedings. Of all the witnesses who testified at the trial, only respondent testified that she never abused or had been addicted to drugs. Respondent did acknowledge, however, that she had used marijuana and had snorted and freebased cocaine during her pregnancy with her daughter who was two years younger than A.J.W.

The petitioners testified that they had been told by respondent’s sister and parents that respondent would consent to their adoption of A.J.W.

Respondent testified that she did not know how her son came to live with the petitioners, but that she had been away from her home for several weeks because she was staying in Brookfield, Illinois, watching the home of someone else. Respondent stated that she first learned in the last week of May that her son was living with the petitioners. Respondent’s sister and parents testified that they had never told petitioners that respondent would consent to their adoption of A.J.W.

On January 10, 1990, the court entered an order finding that respondent had left A.J.W. with her parents, who subsequently placed the child with the petitioners for the purpose of their adopting the child. The court also found that petitioners had proved by clear and convincing evidence that respondent was habitually addicted to alcohol and drugs, other than those prescribed by a physician, for at least one year immediately prior to the commencement of the proceedings.

The court terminated respondent’s parental rights concerning A.J.W., and the matter was continued for further proceedings to determine the best interests of the child in allowing the petition for adoption. The court subsequently entered an order finding Ronald Karp in default and terminating his parental rights concerning A.J.W. Respondent filed the instant interlocutory appeal on February 8, 1990.

Respondent appeals the September 6, 1989, order denying her motion to dismiss the petition to adopt. Initially, we note that although the question raised by the motion was certified for appeal under Supreme Court Rule 308, respondent failed to file a petition for leave to appeal within 14 days as required by that rule. Consequently, appellate jurisdiction cannot be invoked under Rule 308, and this interlocutory order is not appealable under this rule. Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704; Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1975), 36 Ill. App. 3d 606, 344 N.E.2d 554.

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Bluebook (online)
566 N.E.2d 412, 207 Ill. App. 3d 813, 152 Ill. Dec. 725, 1990 Ill. App. LEXIS 1914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petition-of-filippelli-illappct-1990.