IN RE PETITION OF OTAKAR KIRCHNER
649 N.E.2d 324 (1995)
NATURE OF THE CASE: Otakar Kirchner (P), biological father, sought a writ of habeas
corpus to secure the return of his son from the adoptive parents (Does), after the court
ruled that Does' adoption of the minor child was invalid.
FACTS: P and Daniella Janikova, both Czechoslovakian immigrants, started dating in
September of 1989 and began living together later that year. Daniella became pregnant. She
and P continued living together and planned to get married. They obtained two marriage
licenses towards this end, though they did not marry prior to the birth of their child, now
commonly known as 'Baby Richard.' P returned to his native Czechoslovakia for two weeks to
visit a dying relative. A relative from Czechoslovakia telephoned Daniella and told her that
P had resumed a relationship there with a former girlfriend. Daniella tore up their current
marriage license, gathered her belongings and moved into a women's shelter because she had
nowhere else to go. A friend encouraged Daniella to put the baby up for adoption. The friend
phoned her lawyer, Ed Shapiro, who informed his employee, Mrs. Doe, that there was a baby
available for adoption. The next day, the Does contacted Daniella about the adoption. The
day after that, the Does had an attorney named Tom Panichi call Daniella and commence the
adoption proceedings. The Does' lawyer and the Does were fully aware that Daniella knew who
the father was and that she intended to tell the father that the child had died at birth.
Does' lawyer, Panichi, knew that P would not consent to the adoption and Daniella asked him
whether he knew how to fake a death certificate, to which he responded that he did not know
how this could be done and that he could not be a party to obtaining a fake death
certificate. Does and their attorney acquiesced in Daniella's scheme to tell P that his
child had died at birth. They arranged for Daniella to give birth in a different hospital
than she and P had originally planned. Panichi falsely stated that the father 'upon due
inquiry cannot be found so that process cannot be served upon defendant.' The Does continued
this subterfuge in their adoption petition filed with the circuit court, which falsely
alleged under oath that the father was 'unknown.' P returned to Chicago prior to Daniella's
due date, whereupon he discovered that Daniella had left him. He learned through friends
that she had gone to a women's shelter. P and Daniella then went through a period of
reconciliation, during which time she did not inform him that she had arranged to place
their child for adoption. When the birth took place P's efforts to contact Daniella were
rebuffed. He was told by Daniella's friends and relatives that his child had died at birth.
P and Daniella married in September of 1991. P became suspicious. On May 12, 1991, or 57
days after the birth of Richard, Daniella confessed to P that she had given birth to a baby
boy and had placed him in an adoptive home. P commenced his efforts to gain custody of his
son. He retained a lawyer to help him. P's lawyer entered an appearance on Otto's behalf in
the subject adoption proceeding. The Does had both a legal and moral duty to surrender
Richard to the custody of his father. Richard was then less than three months of age.
Instead, the Does selfishly clung to the custody of Richard. They have prolonged these
painful proceedings to the child's fourth birthday and have denied P any access to his own
son. Eventually it was established that P had not been notified nor had he consented to the
adoption as required under the Adoption Act. The Does subsequently petitioned the court to
find that P's parental rights should be terminated because he was unfit, thus obviating the
need for his consent. The trial court found that P was unfit. P filed a notice of appeal.
Fifteen months later, the appellate court, per Justice Rizzi, affirmed the trial court in a
divided opinion. Richard was 2 years of age. P appealed. In a unanimous decision on June 16,
1994, the court reversed the trial and appellate courts and vacated the adoption, holding
that P was fit under section 8(a)(1) of the Adoption Act and, thus, that his parental rights
had never been properly terminated. A child is not available for adoption until it has been
validly determined that the rights of his parents have been properly terminated. When ruling
on parental unfitness, a court cannot consider the child's best interests, since the child's
welfare is not relevant in judging the fitness of the natural parent. Only after the parent
has been found by clear and convincing evidence to be unfit can the court proceed to
consider the child's best interests and whether those interests would be served if the child
were adopted. Illinois law requires a good-faith effort to notify the natural father of the
adoption proceedings. In the case at hand, the Does and their lawyer knew that a real father
existed whose name the birth mother knew. They also knew that the father, if contacted,
would not consent to the adoption. This may explain their lack of effort to learn the name
of the father and to give him notice. Under these circumstances, the Does proceeded with
Richard's adoption at their peril. Does applied for a writ of certiorari to the United
States Supreme Court. The United States Supreme Court's denied certiorari on November 7,
1994. The General Assembly enacted an amendment to the Adoption Act which specified that it
was to take effect immediately and apply to all cases pending at the time of the effective
date, which was July 3, 1994. Upon the vacation of an adoption proceeding, a custody hearing
takes place in order to determine who should have custody of the child based upon the
child's best interests. Does then petitioned for a custody hearing in the circuit court of
Cook County. Richard's guardian ad litem joined that suit on Richard's behalf. P filed the
instant petition for writ of habeas corpus. The court ordered the writ of habeas corpus to
issue immediately, with the opinion to follow, in order to bring this protracted litigation
to a speedy and final conclusion. Does then filed a custody motion.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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