In personal attacks unprecedented in their public hostility, Gov. Jim Edgar and Illinois Supreme Court Justice James Heiple on Tuesday harshly criticized one another’s judgment over the fate of a little boy known only as “Richard.”
The Supreme Court rejected requests to rethink its decision ordering 3 1/2-year-old Richard out of his adoptive home and back to his biological father. Writing in support of the denial, Heiple unleashed a bitter assault on his critics and castigated Edgar for his “crass political move” in seeking to intervene.
Edgar, still hospitalized after a heart bypass Thursday, immediately shot back: “This is not just another lawsuit, as Justice Heiple smugly suggests. . . . I cannot imagine how the justices who prevailed in this case will be able to sleep at night.”
Heiple’s opinion, shocking in its contentious tone, closed off one avenue that would keep Richard with the adoptive parents who have raised him since birth.
They now can ask the U.S. Supreme Court to hear the case and, in addition, seek to retain custody of Richard through a lower-court hearing. Richard likely will stay with his adoptive parents until those issues are resolved, which will take months, lawyers said.
In his decision, Heiple discussed why he believed the adoption came about by a “conspiracy” to deceive the biological father, who at first was told his child was dead.
Heiple also said the “best interest” of the child cannot be the determining factor in the case. If that were the case, Heiple wrote, “persons seeking babies to adopt might profitably frequent grocery stores and snatch babies from carts when parents aren’t looking.”
But much of his six-page decision was devoted to skewering critics of his original opinion. He said Illinois Appellate Court Judge Dom Rizzi, who upheld the adoption last year, “grossly misstated the law” and that Tribune columnist Bob Greene engaged in “acts of journalistic terrorism.”
He told Edgar and legislators to “return to the classroom and take up Civics 101.”
“The governor, for his part, has no understanding of this case and no interest either public or private in its outcome,” Heiple wrote.
“We have three branches of government in this land. They are designated as the legislative, the executive and the judicial. . . . This case can only be decided by a court of law.”
But Edgar said Heiple missed the point.
“It is about a young boy whom the court has decreed should be brutally, tragically torn away from the only parents he has ever known-parents who by all accounts loved and nurtured him from the second he joined their family.
“This young child should have found a champion-a protector-in the highest court of the state. Instead, he found justices who betrayed their obligations to him and to the people who placed them in their lofty positions.”
Heiple’s extraordinary comments and the governor’s strong response come on the heels of Heiple’s flat refusal last week of Edgar’s request to explain why the court made the wrong decision. Edgar had criticized the opinion as “wrong” and a “tragedy.”
Richard and his older brother had mailed the governor drawings of their family after his surgery Thursday.
Heiple also continued to criticize the adoptive parents for refusing to relinquish the child, even though they won every court battle until the Supreme Court ruled against them last month. He also took them to task in his opinion last month.
“They will have to live with their pain and the knowledge that they wrongfully deprived a father of his child past the child’s third birthday,” he wrote. “They and their lawyer brought it on themselves.”
Lower courts did not fault the adoptive parents, but instead questioned the boy’s biological mother for instructing relatives to tell Otakar Kirchner that his son was dead. Kirchner said he began fighting the adoption after learning his son was alive.
As for Richard’s trauma at being separated from his adoptive parents, Heiple said “it will work itself out over time.”
The adoptive parents said they were devastated by the ruling and called it a “travesty.” They said they will continue to fight for Richard.
Loren Heinemann, the lawyer for Richard’s biological father, said Heiple’s opinion showed “the law can’t be based on emotion.”
“This is not an easy issue,” Heinemann said, “but the law is not always nice. The law is not always kind.”
The case turns on a section of the state adoption law that says biological parents lose their rights if they do not show interest in their child during the first 30 days of his life.
Lower courts found Kirchner did not show the requisite amount of interest and terminated his parental rights. That paved the way for the adoption, which was completed more than two years ago.
But the Supreme Court held that Kirchner was deceived about his son’s existence. He, therefore, did not lose his rights because he did not know his child was alive during that 30-day period, the court held.
The court was unanimous last month when it announced its decision invalidating the adoption, but cracks appeared Tuesday. Justice Mary Ann McMorrow, who wrote a separate opinion outlining the law in the original decision, said she wanted to rethink it. Justice Benjamin Miller agreed.
“I believe that the petitioners should be afforded another opportunity to present further argument on the specific legal and factual errors they believe that this court has made in its decision,” McMorrow wrote in dissent.
The adoptive parents and Cook County Public Guardian Patrick Murphy, representing Richard, maintain that the court overlooked critical evidence in reaching its decision.
Murphy took Heiple to task for that again Tuesday, citing what he said were numerous inaccuracies in Heiple’s latest opinion. Those center around when Kirchner found out he had a son.
For example, Heiple said Kirchner learned he had a son 57 days after his birth. But Kirchner testified at trial he knew of the child’s existence earlier, Murphy said.
Heiple also wrote that on that day Kirchner hired a lawyer and contested the adoption. But the trial record shows he did not hire a lawyer until six days later and did not contest it for another few weeks, Murphy said.
“After he argued Greene got everything wrong, he himself got everything patently wrong,” Murphy said of Heiple. “He’s acting like a child.”
Heiple accused Greene, who has criticized the justices for their decision, of trying to discredit him and the court, primarily to make a profit for the Chicago Tribune.
“Make no mistake about it. These are acts of journalistic terrorism,” Heiple wrote. “These columns are designed to discredit me as a judge and the Supreme Court as a dispenser of justice by stirring up disrespect and hatred among the general population.
“That Greene has succeeded to a limited degree cannot be denied. I have, indeed, received several pieces of hate mail with such epithets as idiot, jerk, etc.”
The next legal battle is likely to center around the new law that Edgar signed July 3 and applies to all “pending cases.” It requires a trial court to hold a custody hearing to determine if it is in Richard’s best interest to live with his natural father or to stay with his adoptive parents.
Heiple flatly stated Tuesday that new provisions in the adoption law violate the state constitution, even though that issue was not before the court. McMorrow implied that the law could be constitutional.
The justices likely will hear those arguments in months to come because both sets of parents have vowed to exhaust all avenues to get custody of Richard.
