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Docket No. 91577-Agenda 20-November 2001.

In re TEKELA et al., Minors, Appellants (The People of the State
of Illinois, Appellee, v. Wanda Cooper, Appellee).

Opinion filed August 29, 2002.

JUSTICE KILBRIDE delivered the opinion of the court:

This case arises from the termination of Wanda Cooper'sparental rights over her three children: Ira J., born September 23,1990; Kaylon J., born November 25, 1989; and Tekela J., bornDecember 26, 1988. The circuit court of Cook County issued asummary judgment order terminating Wanda's parental rights.Wanda did not request a stay pending appeal. The appellate courtreversed, finding that unresolved questions of fact made summaryjudgment inappropriate. 319 Ill. App. 3d 661. Unbeknownst to theappellate court, Tekela and Ira had already been adopted. Thepublic guardian informed the appellate court of this developmentand filed a motion to vacate the appellate court's opinion as moot.The appellate court denied the public guardian's motion. Wegranted leave to appeal. 177 Ill. 2d 315.

We reverse and find that the adoption rendered Wanda'sappeal moot as to her rights over Tekela and Ira and that theappellate court should have vacated its order as to Tekela and Iraon that basis.

I. BACKGROUND 

In March 1993, Ira and Tekela were placed in the foster caresystem following allegations of abuse. Since that approximatetime, they have lived with the same foster parents.

On August 13, 1997, the State petitioned the circuit court todeem Wanda an unfit parent, terminate her parental rights, andappoint a guardian (the Department of Children and FamilyServices) with the power to consent to adoption of her threechildren. In support of its petition, the State alleged in part thatWanda was unable to discharge her parental responsibilities dueto a mental illness.

On December 7, 1998, the State filed a motion for summaryjudgment. The motion incorporated earlier judicial findings, anadjudication of wardship, a psychological evaluation, and aparental assessment. Wanda filed a written objection and attachedsupporting affidavits from her husband, David, and a psychiatrist.

On April 30, 1999, on summary judgment, the circuit courtissued a multipart order that, among other things, terminatedWanda's parental rights and appointed a guardian with the powerto consent to adoption. A stay was never requested or issued. Thecircuit court also terminated the parental rights of the children'sfather. He did not appeal that order.

On May 7, 1999, Wanda filed a timely notice of appeal,arguing primarily that summary judgment was inappropriatebecause disputed issues of material fact existed.

On February 20, 2001, the appellate court reversed. 319 Ill.App. 3d 661. The appellate court's opinion thoroughly details thefactual background and evidence adduced in the parental fitnessand termination proceedings. The substantive findings on thoseissues have not been appealed to this court and therefore thatinformation need not be repeated here. See 319 Ill. App. 3d at 663-69.

Initially, the appellate court noted that summary judgment andtermination of parental rights are both drastic measures and mustbe closely scrutinized. The court observed that few cases existupholding a summary determination of parental rights. Of thosecases, none involved a termination based upon mental illness. 319Ill. App. 3d at 671. The court noted that:

"Summary judgment may be more or less usefuldepending on the subject matter of the dispute. [Citation.]We do not wish to suggest that there are no cases in whichsummary findings of parental unfitness on grounds ofmental illness or impairment would be appropriate.However, we believe that the question of whether a parenthas a mental illness or impairment that prevents her fromdischarging her parental duties, unlike the question ofwhether a parent has a conviction for a particular crime,is a nuanced, fact-intensive question that does not readilylend itself to summary determination." 319 Ill. App. 3d at672.

The court noted the existence of unresolved questions of materialfact and found that the circuit court erred in granting summaryjudgment.

On March 1, 2001, the public guardian filed a motion tovacate the appellate court's decision as moot or, in the alternative,for further directions. For the first time, the public guardianinformed the appellate court, that on September 27, 1999, Tekelaand Ira had been adopted by their foster parents.

On March 16, 2001, the appellate court ordered the parties tofile, within 14 days, a "detailed legal memorandum addressing alljurisdictional issues arising from the adoption proceeding goingforward" while the appeal was pending. The appellate court'sorder further requested legal authority for the guardian's referenceto the "seem[ing] *** mootness" of Wanda's appeal. Finally, thecourt requested the State to explain its position and Wanda toadvise the court of the relief she was seeking in light of theadoption proceeding.

On April 25, 2001, the appellate court heard oral argumentson the public guardian's motion. At oral argument, the courtexpressed doubts as to the validity of the adoptions in light of thecourt's decision vacating the termination order. On April 30, 2001,the appellate court issued a written order rejecting the publicguardian's requests. The order simply denied the public guardian'smotion and did not address the implications of the recentlydiscovered adoption. The appellate court issued its mandate onMay 14, 2001.

The public guardian filed a petition for leave to appeal onbehalf of Tekela and Ira. On May 29, 2001, we directed theappellate court to recall its mandate. We subsequently allowed thepublic guardian's petition for leave to appeal. We also granted theState's motion to appear as an appellant.

On appeal before this court, neither the State nor the publicguardian challenge the substance of the appellate court's February20, 2001, ruling that summary judgment was inappropriate in thiscase. Instead, the public guardian and State simply challenge theappellate court's order denying the motion to vacate the February20, 2001 opinion as moot.

II. ANALYSIS

The public guardian and State argue that Wanda's failure torequest a stay pursuant to Supreme Court Rule 305 (155 Ill. 2d R.305) allowed the adoption to proceed legally. This failure, theState and public guardian argue, rendered Wanda's appeal of thetermination order moot.

Initially, Wanda counters that a stay was unnecessary becauseshe filed a notice of appeal. Wanda states in her brief that "staysare discretionary, whereas the right to an appeal is absolute" andtherefore "an appellant need not secure a stay of trial proceedingsto pursue his [or her] right to appeal." Wanda also implies thatstay requests are a waste of time in this context because they "areseldom granted."

We disagree with Wanda's contention that a notice of appealacts as a substitute for a stay. Wanda correctly notes that Illinoislaw provides her with a right to appellate review. Ill. Const. 1970,art. VI,