*1 Negron, Plaintiff-Appellant. In re Petition of Hector 61304; (No. 16, 1975. Division)
First District (3rd October J., McGLOON, dissenting. P. A. Levey, appellant. Chicago,
Julian Mr. opinion DEMPSEY delivered the of the court: JUSTICE The Hector is the plaintiff, Negron, father of a born daughter out of wedlock in December 1983. child’s mother died in 1966. In January 1972, the Circuit Court Cook entered decree County of adoption to foster under the awarding parents provisions the Illinois Adoption pars. 9.1—1, 9. 1— a child’s permitted adoption upon the death of mother without notice or consent of unwed father. In a for a writ of habeas petition March corpus-filed Negron that the decree adoption asked be vacated and that custody of to him. child be The motion of the adoptive parents to dismiss the petition granted.
Negron’s that he petition alleged was the father child, had his in court admitted and had paternity contributed to the girl’s support 1965 and she during years her lived with maternal her death; consent following mother’s grandmother that he had circumstances economic due the force of moved to New York Department County the Cook and that 1969 to resided there from child, knowledge of his the adoption of Welfare consented to adoption proceedings. him notice of the but failed to paternity, cus- was a suitable further petition alleged Negron decree without tody entry but *2 to amendment under the fourteenth notice denied him equal protection of prov- opportunity denied him the the United States Constitution and he, father, a fit proper the natural was and argument his trial court heard custody daughter. of own issues did not hear evidence. legal but v. Stanley
Of central to this case are Illinois importance Home (1972), v. Covenant Children's U.S. and custody an unwed father sought N.E.2d 291. In until and their mother of his children lived with him two of who had then wards of the State the mother’s death. were declared They Tire court in the hands of ruled placed court-appointed guardians. the State’s that an unwed father was unfit to presumption conclusive retain the mother’s death violated due children custody its the children married process custody assumption a divorced and unmarried mothers parents, parents hearing after fathers, not the same to unwed proof of while neglect, affording unwed equal denied them law. In Slawek an father his child from the He sought adoptive parents. to obtain custody notice was without to him argued granted and without Adoption his consent under Illinois Act provisions (Ill. Rev. Stat. 9.1—1, )—the provisions ch. two here in issue—and pars. 9. 1— 8 these violated the clause of the Federal equal protection provisions addition, In he that section argued Constitution. 12 of Paternity 1063/4, denied par. him of his child also unconstitutional. provision Relying upon Stanley and that was the three v. the Slawek court held that statutes were uncon and that an father was entitled to stitutional a hearing adop it tion vacated Consequently, judgment against proceedings. the case for further proceedings. and remanded is the issue in this or retroactive effect of the appeal At and Slaicek decisions and whether trial court erred in not to the Negron those decisions retroactively adoption proceed- applying held months a few before and Slawek were were ings decided. that retroactive was intended in the application contends
Negron
the case
remanded “to grant
petitioner
decision because
was
should be
case,”
given
that Slawek
on
merits of
hearing
to the adoption
simply
ruling applied
because
Linkletter Walker (1965),
then
But
proceedings
being attacked.
from these
that this
inference
draw
is an incorrect
suggests
rule
exclusionary
pro
two cases. There
court announced that the
courts must
Ohio
U.S. 643
pounded Mapp
(State
exclude
fourth amend
evidence if searches and seizures violated the
ment) would not
The court so held
although
retroactive effect.
conceded that it had
defendant
Mapp rule to reverse
applied
Mapp’s conviction and that courts
the decision
appeal
applied
cases still
on direct
the time it
rendered. In fact
pending
at
review
the court came
closer to
point
complete
by refusing
prospectivity
to permit defendants whose cases
still
direct review to
were
pending
requirements
benefit from the new
set
in Escobedo
interrogation
forth
v. Illinois
378 U.S.
Miranda v.
Arizona
384 U.S.
436, by
rulings
cases,
in those two
for the
limiting
except
parties
therein,
subsequent
where the trial had
begun
date of those two
New
Jersey (1966),
decisions.
Johnson
See also Desist v. United States
should be given retroactive also Stovall Denno (See effect. *3 388 U.S. on these 293.) Based the court held in principles Williams v. 646, United 653, States U.S. that: (1971), 401 major “Where the purpose new constitutional doctrine is to aspect overcome an of the criminal trial that substantially impairs its function and so raises truth-finding questions serious about guilty past trials, verdicts the new rule accuracy has been retroactive effect. complete Neither good-faith reliance by state federal or authorities on law prior constitutional or accepted nor severe practice, impact administration of justice has require prospective application sufficed in these circumstances.” hand, the On the other court has indicated that the lesser weight given to reliance authorities to the effect by public on the administration justice with, be when the case may inappropriate does not deal “* # * those constitutional interpretations bearing the use * ** a particular or mode of evidence trial. Guarantees cannot, do not relate to these rules for procedural retroactivity conveniently together terms lumped be
purposes, of analysis. and effect of the various For purpose constitutional guarantees themselves sufficiently among so as to affect the vary necessity than retrospective for rather application.” Robinson v. 505, Neil L.Ed.2d 422 U.S.
See also United States Peltier (1975), its decision retroactive application S.Ct. the court denied where held 413 U.S. v. United States (1973), Almeida-Sanchez conducted about patrols searches border by warrantless automobile violate the cause probable miles from the Mexican border without fourth amendment. whether a deci to determine criteria used Supreme by in Chevron
sion are stated in a civil case should be applied prospectively 97, 106-07: Oil v. Huson Co. 404 U.S.
“First, the decision to must establish applied nonretroactively law, a new either clear principle overruling past precedent by « # # resolu or an issue first impression whose deciding * * Second, tion was not foreshadowed *. it has been clearly * * * must demerits weigh stressed ‘we the merits and in each question, of the rule in by looking prior history its effect, and whether will purpose retrospective operation * * * further or retard its Finally, operation.’ weighed we inequity imposed by application, [w]here decision of this Court could substantial results produce inequitable if applied there is retroactively, ample basis our cases for avoid “injustice hardship” holding of nonretroactivity.’ in Lemon v. Subsequently, Kurtzman (1973), 411 particularly stressed the reliance factor when it denied retroactive ap- plication of decision invalidating Pennsylvania’s program contracting with church-related schools to provide secular classes. It noted that to retroactive effect ruling would deny schools reimbursement for services-rendered and would impose them substantial burdens Indeed, difficult meet. stress upon reliance formed the basis of the court’s statement in Chicot County Drainage District v. Baxter State 308 U.S. Bank a statute’s existence its being declared unconstitutional “is an operative fact that cannot be ignored. cannot be erased past always aby judicial new declaration.”
A similar emphasis upon reliance found in Illinois decisions. (See, Bassi v. e.g., Langloss and Molitor v. Kaneland Unit District Community No. Ill.2d 11, 163 denied, 362 U.S. 988.) Although cert. it has been the position *4 of Illinois courts of review that prospective or retroactive application their decisions is their discretion within v. (Molitor Kaneland Community Dist.; Unit Naramore v. Colquitt (1973), 15 Ill.App.3d 954, 305 N.E.2d & Reich Board Fire Police Commissioners Ill.App.3d 501), 301 N.E.2d the general, where exercising that discretion, the laid out the guidelines Federal Supreme Court are followed. In People v. Ellis (1973), 53 Ill.2d N.E.2d the said that three criteria are relevant for a determining the new retroactivity standard: the purpose to it, be served tire extent of reliance on the standards, existing effect on the administration of a justice retroactive application of the new standard. People Meyerowitz Ill.2d N.E.2d that if the new explained standard does not go to the of the integrity if fact-finding process, conduct under question was permissible at time it was committed under rules upon officialsin good relied, faith if the propose new rule would not be thwarted and retro by prospective application, active appheation would cause a substantial on the administra burden tion of justice, then the new rule will be given appheation. See also People v. Wills where the court held the made in ruhng that case a (that plea a of guilty, defendant must be admonished as to parole mandatory terms) be applied subsequent to the date new ruhng.
The criteria announced in Chevron Oil
Co. Huson point against
permitting
appheation
Illinois
rel. Slawek v. Covenant Children’s Home
case.
Chevron
present
court observed that a decision
a
uncharted
following novel or previously
course would less
likely
retroactive effect. Slawek relied upon
which,
turn,
Stanley,
overruled the clear decision of the Illinois Su
preme Court to the
opposite
re
(In
814),
without relying upon precedent
unmistakably
clearly foreshadowed its
Moreover,
decision.
Chevron stated that reto
activity should be considered in light of the
rule’s purpose. Stanley
new
involved deprivation and change of
where the children had been
living with their unwed father before
removed
from
home
being
following
death
their
This led the court to
emphasize
mother.
significance
and of
family
basis for
affording
tire' Illinois
overturning
decision in In re
But
Stanley.
Negron seeks to
a settled
disrupt
structure and is
family
thus
engaged
an effort whose
is
purpose
quite different from
that found
Stanley.
Cheryl
See
H. v.
Superior
Cal.App.3d
Rptr.
Cal.
849. Even in
(where
father did obtain
alleged
right to
hearing)
a similar focus
importance
court,
tie
seen.
case,
remanding
Rothstein
quoted
v. Lutheran
Services
Social
117 proceedings and the fact has lived with apparently that the child 20, 22.) adoptive (52 time.’ family intervening period extent, To the therefore, and policy protecting preserving Slawek, an argu established unit underlies both and ment for the application present retroactive those decisions to is weakened. an Although evaluation of each factors enumerated Chevron from foreseeability, purpose points away and court— reliance — Slawek,
permitting application we feel that the reliance factor most such weighs heavily against application. Illinois the paramount concern in matters with child dealing must In this always reasoning welfare regard child. the case Crist v. & New Division Youth Services Jersey Family Super. 402, A.2d is There the court pertinent. N.J. due held that process equal required indigent par ents threatened with of children removal from their- home aby public to agency were entitled counsel free of When charge. considering constitutional arguments indigent asserted parents, the court relied upon Stanley v. extensively ruling but decided to give purely prospective effect. The court “In those reasoned: situations where rights have been previously terminated and a new and hopefully per manent psychological child, environment established for the on, effect feels administration of as tire justice well po tential conflicts which would be for the children generated outweighs retroactivity.” desirability of Super. 417, 320 A.2d N.J. 211. to Negron’s petition, own he According apparently never lived with contributed the child’s support in only three out of some life, her eleven and years half and waited about two years she his attack on the adopted begin after was adoption proceedings. in this To case would allow permit retroactivity any father whose in conformity existing with laws adopted before the spring up adoption placed open of 1972 to offspring with In each instance the State would foster parents. grant a hearing indifferent the father how had been to the regardless well-being of the child. considerations indicate foregoing prospective application therefore affirmed.
proper Affirmed.
McNAMARA, concurs. J., McGLOON, dissenting:
Mr. PRESIDING JUSTICE majority I dissent from decision respectfully v. Illinois (1972), the decisions in Stanley retroactive effect to ex rel. 645, 31 L.Ed.2d S.Ct. (See Home Covenant Childrens Services Lewis Lutheran Social State generally refused 1, 207 where the Wisconsin Supreme N.W.2d Wis.2d only.) to give in the majority apply the concern of my colleagues While I share in uncertainty would enshroud retroactively and Slawek law conformity existing decrees entered those adoption *6 retro Slawek, giving foresee any great hardship I do not entered As those decrees of adoption to those decisions. active effect it existed the law as conformity Slawek and with prior decisions, notice the father who was not unwed only to those Furthermore, adop decree. of the the validity adoption attack the could as the aside it affects unwed only would be set insofar tion decree 20 in section of the Adoption under him. As claiming provided persons or 4, 1973, 20): par. 9.1 — # # # jurisdiction the court had or persons “As to over whom persons them, it shall be no basis for attack as to the under claiming an decree court lacked adoption jurisdiction of validity it should or over whom person persons some other over If, attack or over whom person persons jurisdiction. them, or under persons claiming lacked jurisdiction, aside, set it shall set aside insofar be decree an persons.” such or it affects 224 Heeney ex rel. Ill. 79 N.E. (1906), Sullivan See also Estate Bohn N.E. In the Ill. of in the instant case the interests that the majority with agree I ex rel. Edwards v. Livingston (1969), are paramount (People child and that the of policy preserving pro N.E.2d unit underlies both and Slawek. established an tecting the vacate remand cause judgment I reasons would these For * * of light further consideration for for the completion due consideration adop and with 645 the child has lived apparently fact that and the tion time.’ period (People intervening family for adoptive Home 52 Ill.2d Children's 284 N.E.2d Covenant Slawek v. Social Services Lutheran 292; Rothstein in best custody, 92 S.Ct. In determining L.Ed.2d 786.) parent of a natural terests the child are and the paramount right interests of her child must to the best custody yield Home v. Florence Crittenton (Giacopelli child. natural Furthermore, there no necessity 613.) to the be be awarded adoptive found unfit before can
parent custody 63, 200 ex rel. Pace Wood parents. Ill.App.2d (People cases of Thus, it is the vast majority belief 125.) my best child require interests of the type However, remain in the custody adoptive unwed parents. father should an I can be entitled to foresee evidentiary hearing. rare has father to father who been a good loving reason, has part, who some without on his been knowledge of his child. unjustly deprived Depending facts case, of each there could exist the rare case where would in the best interests the child that custody of child could be restored At unwed father. least the unwed very father is entitled hearing. an evidentiary
For the above reasons I would vacate the of the trial and remand the cause for hearing. Valley Young,
Samuel H. Plain- Skokie Building, Professional d/b/a Company v. General tiff-Appellant, America, Defen- Insurance dant-Appellee.
(No. First District Division) 20, 1975. (1st October