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December 4, 2001

JUSTICE SLATER delivered the opinion of the court:

Intervenors Frank F., Ettamay F. and Michael A. F. appealfrom the trial court's order denying their petition to vacate anadoption decree. We reverse and remand.

On December 28, 1999, petitioner Christine A. T. filed apetition to adopt 12-year old respondent H.T. H.T.'s mother,Brenda S., and her father, Nickie T., split up in 1991, when H.T.was four years old. Nickie married petitioner in 1993, and H.T.began living with petitioner and her father in May or June of1996. In July of 1996 Brenda S. died. On August 10, 1999,Nickie was killed in an automobile accident. Following thefiling of the adoption petition by Christine, the trial courtentered an adoption decree on February 15, 2000.

On June 15, 2000, the intervenors filed a motion to inspectthe adoption record. Two of the intervenors, Frank and EttamayF., are H.T.'s maternal grandparents; Michael F. is H.T.'smaternal uncle. The intervenors subsequently filed a motion tointervene and to vacate the adoption decree. That motionasserted that the intervenors had not received notice of theadoption proceedings as required by statute. Intervenors alsoalleged that H.T. had complained of abuse, drug use and excessivedrinking by petitioner. In addition, intervenors asserted in anamended motion to vacate that petitioner was unfit on the basesof drug addiction, habitual drinking, and failure to protect H.T.from conditions in the environment injurious to her welfare. Those conditions included allegations that petitioner allowed her15-year old daughter, T.B., to abuse alcohol and have sexualrelations with more than 20 boys, and also that H.T. was exposedto sexual contact with an unknown male. The motion was supportedby affidavits from H.T.'s older half-sister, P.S., two ofpetitioner's neighbors, H.T.'s aunt and uncle, and intervenors'attorney, Stephanie Ames-Cutkomp.

On August 11, 2000, petitioner filed a response to themotion to vacate denying the intervenors' allegations. Petitioner also filed counter-affidavits, the results of a drugscreening test indicating that T.B. had tested negative, and aletter from the Illinois Department of Children and FamilyServices (DCFS). The letter from DCFS stated that reports ofalleged substance misuse by T.B. and of alleged inadequatesupervision and risk of sexual injury to T.B. and H.T. were"unfounded."

On September 13, 2000, the circuit court issued a letterruling denying intervenors' motion to vacate. The court foundthat petitioner was not required to give notice to theintervenors and therefore all statutory requirements forjurisdiction were satisfied. The court then stated that "[t]hesecond issue *** to consider is the best interests of the minorchild." The court mentioned the affidavits and counter-affidavits but concluded that there was insufficient evidence todisturb the judgment "based on the present allegations andevidence." No evidentiary hearing was held.

The intervenors first contend that the trial court erred infinding that they were not entitled to notice of the adoptionpetition. Intervenors rely on section 5(B)(h) of the AdoptionAct (750 ILCS 50/5(B)(h) West 1998)) which states:

"B. A petition to adopt a child otherthan a related child shall state:

(h) If it is alleged that the child hasno living parent and that no guardian of suchchild is known to petitioners, then the nameof a near relative, if known, shall be setforth, or an allegation that no near relativeis known and on due inquiry cannot beascertained by petitioners[.]"

It is undisputed that petitioner did not name theintervenors or any other "near relative" in her petition foradoption. Intervenors recognize, however, that this requirementis inapplicable to the adoption of a "related child":

"C. A petition to adopt a related childshall include the information specified insub-paragraphs (a), (b), (d), (e), (f), (i)and (k) of paragraph B ***." (Emphasisadded.) 750 ILCS 50/5(C) (West 1998).

Section 505(B) sets forth the requirements for a petition toadopt a child "other than a related child." (Emphasis added.) 750 ILCS 50/5(B) (West 1998). Subparagraph (h), requiring noticeto a near relative, is contained in that section. Section505(C), on the other hand, specifically delineates whichsubparagraphs are applicable to a petition to adopt a relatedchild, and subparagraph (h) is conspicuously absent. Accordingly, it is evident that the legislature did not intend torequire notice to a near relative in a proceeding to adopt arelated child. Section 1(B) of the Adoption Act provides inpart:

"B. 'Related child' means a childsubject to adoption where either or both ofthe adopting parents stands in any of thefollowing relationships to the child by bloodor marriage: parent, grand-parent, brother,sister, step-parent, step-grandparent, step-brother, step-sister, uncle, aunt, great-uncle, great-aunt, or cousin of firstdegree." (Emphasis added.) 750 ILCS 50/1(B)(West 1998).

The intervenors argue that while petitioner was H.T.'s step-parent while H.T.'s father was alive, when Nickie T. diedpetitioner ceased to be a step-parent and became a "former step-parent." We are aware of no authority, and intervenors offernone, for the rather startling proposition that the death of achild's biological parent severs the step-parent/step-childrelationship. Intervenors argue that sections 601(b)(3) and607(b)(1.5) of the Illinois Marriage and Dissolution of MarriageAct (Marriage Act) (750 ILCS 5/601(b)(3); 5/607(b)(1.5) (West1998)) evince a legislative acknowledgment that "death anddivorce sever all rights that a step-parent has to visitation orcustody with the former step-child." We disagree.

Section 601(b) of the Marriage Act sets out theprerequisites for commencing a child custody proceeding. Thoseprerequisites vary depending upon the status of the personseeking custody. For example, a parent can seek custody byfiling a petition for dissolution of marriage (750 ILCS5/601(b)(1)(i) (West 1998)) or a petition for custody (750 ILCS5/601(b)(1)(ii) (West 1998)). A non-parent can only file apetition for custody if the child is not in the physical custodyof one of his parents. 750 ILCS 5/601(b)(2) (West 1998). Astep-parent can seek custody by filing a petition if all of thefollowing circumstances are met:

"(A) the child is at least 12 yearsold;

(B) the custodial parent and stepparentwere married for at least 5 years duringwhich the child resided with the parent andstepparent;

(C) the custodial parent is deceased oris disabled and cannot perform the duties ofa parent to the child;

(D) the stepparent provided for thecare, control, and welfare to the child priorto the initiation of custody proceedings;

(E) the child wishes to live with thestepparent; and

(F) it is alleged to be in the bestinterests and welfare of the child to livewith the stepparent as provided in Section602 of this Act." 750 ILCS 5/601(b)(3) (West1998).

A similar set of conditions is required for a stepparent topetition for visitation. See 750 ILCS 5/607(b)(1.5) (West 1998). According to intervenors, the "negative implication" of thesesections is that former stepparents have no rights, except whenthe specific criteria of the sections are met. Accordingly,argue the intervenors, if the legislature did not give a formerstepmother the status of a parent in the dissolution setting, andfelt compelled to allow custody only under specificcircumstances, it follows that the legislature would not accordthe prior stepmother the status of "related" for the purpose ofadoption.

In construing a statute, the primary task is to ascertainand effectuate the intent of the legislature. Statutoryconstruction is a question of law, subject to de novo review. People v. Richardson, 196 Ill. 2d 225, 751 N.E.2d 1104 (2001).

The intervenors' argument is flawed in several respects. First, although custody, visitation and adoption each involve arelationship with the child, they are clearly not identicalconcepts. The legislature could rationally treat stepparents inan adoption situation differently from those in a custody orvisitation context. Second, the fact that a stepparent is notgiven the same status as a parent under the Marriage Act haslittle bearing on whether that stepparent should be considered as"related" to her deceased spouse's child under the Adoption Act. The relationships recognized under the definition of "relatedchild" extend not only to stepparents and stepgrandparents, butto stepsisters, stepbrothers, great uncles and aunts and evenfirst cousins. Such an expansive definition suggests aninclusive, rather than exclusive, interpretation of the statutorylanguage. Finally, we note that one of the conditions necessaryfor a stepparent to seek custody or visitation under the MarriageAct is that the "custodial parent is deceased or is disabled andcannot perform the duties of a parent." (Emphasis added.) 750ILCS 5/601(B)(3)(C) (West 1998); see also 5/607(b)(1.5)(C) (West1998). Of course, under the intervenors' theory, if the child'sparent is deceased then the stepparent is no longer a stepparentat all; she is merely a "former stepparent". The Marriage Act,however, makes no such distinction. Given the lack of authorityfor the intervenors' position, as well the broad definition ofrelated child contained in the Adoption Act, we decline to adopta definition of stepparent which ceases upon the death of thechild's biological parent. Accordingly, H.T. was a "relatedchild" and petitioner was not required to give notice to theintervenors.

Intervenors warn that construing the Adoption Act in thismanner would allow any person who ever had the status ofstepparent to adopt a child without notifying other relatives whocould have information affecting the adoption decision. Intervenors offer the example of a hypothetical hasty Las Vegasmarriage closely followed by the accidental death of thebiological parent. Such a scenario, argue the intervenors, couldresult in the adoption of a child by a virtual stranger, perhapsmotivated by a desire to collect social security benefits orcontrol a child's inheritance.

We agree that the scenario posited by the intervenors wouldraise troubling issues. Of course, similarly disturbingsituations could be created by envisioning a greedy or otherwiseimproperly motivated stepsister, uncle, grandparent, great-uncleor first cousin. We note that the Adoption Act gives the trialcourt discretion to order an investigation of persons seeking toadopt a related child, although such investigations are notrequired. See 750 ILCS 50/6(D) (West 1998). Perhaps it would bein the child's best interest if an investigation was required inall cases. In addition, requiring notice to near relatives evenin the adoption of a related child might enable the trial courtto make a more fully informed decision. Courts, however, have nolegislative powers. A court must interpret and apply statutes inthe manner in which they are written, not rewrite them to conformto the court's notions of orderliness or public policy. SeeHenrich v. Libertyville High School, 186 Ill. 2d 381, 712 N.E.2d298 (1998).

As this court has stated previously:

"Construction and interpretation of astatute is a question of law for the courtand, regardless of the court's opinionregarding the desirability of the resultssurrounding the operation of the statute, thecourt must construe the statute as it is andmay not, under the guise of construction,supply omissions, remedy defects, annex newprovisions, substitute different provisions,add exceptions, limitations, or conditions,or otherwise change the law so as to departfrom the plain meaning of the languageemployed in the statute." Toys "R" Us, Inc.v. Adelman, 215 Ill. App. 3d 561, 568, 574N.E.2d 1328, 1332-33 (1991).

We hold that, based on the plain language of the AdoptionAct, the trial court did not err in finding that H.T. was a"related child" and therefore intervenors were not entitled tonotice of the adoption proceedings.

Finally, intervenors contend that the trial court erred infailing to order an investigation pursuant to section 50/6 (750ILCS 50/6 (West 1998)) and in failing to hold an evidentiaryhearing. We disagree with the former proposition, but we agreethat an evidentiary hearing should have been held.

If the allegations contained in the intervenors petition tovacate had been presented to the trial court before the adoptiondecree had been entered, we would agree that failing to order aninvestigation would have been an abuse of discretion. However,where, as here, there was no indication of the need for such aninvestigation, the court cannot be faulted for declining to orderone. The Adoption Act specifically makes such investigationsdiscretionary in cases of related adoptions. 750 ILCS 50/6(D)(West 1998).

We believe, however, that the allegations contained in thepetition to vacate, along with the supporting affidavits, weresufficient to warrant an evidentiary hearing. Although it is notdesignated as such, intervenors' petition to vacate must beconstrued as a petition for relief from judgment under section 2--1401 of the Code of Civil Procedure. 735 ILCS 5/2--1401 (West1998). The purpose of a section 2--1401 petition is to bringbefore the trial court facts not appearing in the record which,if known at the time judgment was entered, would have preventedentry of the judgment. Physicians Insurance Exchange v.Jennings, 316 Ill. App. 3d 443, 736 N.E.2d 179 (2000); In rePetition of Glick, 259 Ill. App. 3d 371, 632 N.E.2d 165 (1994). The petition must allege a meritorious defense or claim in theoriginal action and petitioner's due diligence in presenting theclaim or defense and filing the petition. Klein v. La SalleNational Bank, 155 Ill. 2d 201, 613 N.E.2d 737 (1993). Petitioners must prove each element by a preponderance of theevidence. Klein, 155 Ill. 2d 201, 613 N.E.2d 737; PhysiciansInsurance, 316 Ill. App. 3d 443, 736 N.E.2d 179. Although reliefmay be granted solely on the basis of affidavits and the recordof the prior proceedings, if a disputed issue of material factexists, an evidentiary hearing is required. See Klein, 155 Ill.2d 201, 613 N.E.2d 737; Physicians Insurance, 316 Ill. App. 3d443, 736 N.E.2d 179. Section 2--1401 proceedings seek to invokethe equitable powers of the court when the exercise of such poweris needed to prevent an injustice. See Petition of Glick, 259Ill. App. 3d 371, 632 N.E.2d 165.

In this case the affidavits supporting and opposing thepetition clearly raised factual issues concerning petitioner'sfitness and whether the adoption of H.T. by petitioner was inH.T.'s best interests. The trial court should have conducted anevidentiary hearing to determine the truth or falsity ofintervenors' allegations and whether they would have preventedthe entry of the adoption order.

We are aware of a line of cases in which our supreme courthas stated that in a collateral attack on an adoption decree, thesole inquiry is whether the court had jurisdiction. See Orme v.Northern Trust Co., 25 Ill. 2d 151, 183 N.E.2d 505 (1962);Gebhardt v. Warren, 399 Ill. 196, 77 N.E.2d 187 (1948); Ashlockv. Ashlock, 360 Ill. 115, 195 N.E. 657 (1935); McConnell v.McConnell, 345 Ill. 70, 177 N.E. 692 (1931). This court has madesimilar statements. See In re J.D., 317 Ill. App. 3d 445, 739N.E.2d 1043 (2000) (citing Orme); Dahl v. Grenier, 126 Ill. App.3d 891, 467 N.E.2d 992 (1984) (citing Orme and Gebhardt). Webelieve that these cases are distinguishable from thecircumstances presented here. Gebhardt, McConnell and Ashlockwere appeals from partition actions which involved challenges toadoptions that had taken place many years prior to the partitionaction. Orme, the most recent supreme court case, involved awill contest challenging, inter alia, an adoption that occurrednearly 40 years earlier. In such cases a rule limiting theinquiry to jurisdictional issues promotes finality. However,"[w]hile adoption proceedings should be 'final' and the statusdetermined in an adoption proceeding should not be disturbed bysubsequent or collateral litigation, such does not prevent asection 2--1401 proceeding." Petition of Glick, 259 Ill. App. 3dat 373, 632 N.E.2d at 167. Indeed, the Adoption Act specificallycontemplates the use of section 2--1401 petitions, while alsopromoting the finality of adoption orders by limiting their useto a one year period. See 750 ILCS 50/20(b) (West 1998). Accordingly, we believe that intervenors are not limited toraising only jurisdictional issues, but may assert any groundsthat, if known to the trial court at the time judgment wasentered, would have prevented entry of that judgment. SeePetition of Glick, 259 Ill. App. 3d 371, 632 N.E.2d 165(reversing denial of section 2--1401 petition and remanding forevidentiary hearing).

For the reasons stated above, the judgment of the circuitcourt is reversed and this cause is remanded for furtherproceedings.

Reversed and remanded.

HOLDRIDGE and McDADE, J.J., concur.