This month we are going to take a break from the situations involving marital v. non-marital property and our ongoing discussion of §503 of the Illinois Marriage and Dissolution of Marriage Act. This month we will explore some cases involving the termination of parental rights.
The Adoption Act provides in relevant part the following:”
(a) Except as hereinafter provided in this Section consent or surrender shall be required in all cases, unless the person whose consent or surrender would otherwise be required shall be found by the court:
(1) To be an unfit person as to find in Section 1 of this Act, by clear and convincing evidence; (see 750 ILCS 50/8(a)(1)
“750 ILCS 50/1(D) defines unfit person and indicates the grounds upon which a court may find, a person to be considered an unfit person in order to terminate parental rights. The most common ground alleged in contested adoption cases is 750 ILCS 50/1(D)(b) and (c) which state in relevant part the following:
(b) Failure to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare.
(c) desertion of the child for more than 3 months next proceeding the commencement of the adoption proceeding.”
The Illinois Supreme Court In Re Adoption of Syck, 138 Ill. 2d 255, 562 N.E. 2d 174 (1990) examined the burden of proof with relation to a finding of a parent’s unfitness as follows:”
Termination of parental rights destroys the parent-child relationship. The effect of a termination of parental rights is made grimly clear by section 17 of the Adoption Act:”
After the entry of either an order terminating parental rights or the entry of a judgment of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations of maintenance and obedience as respects such natural parents. (citations omitted).
For instance, a parent whose rights are terminated no longer has a right to visitation with his or her child. Precisely because of the devastating effect produced by a termination of parental rights, the evidence of a parent’s unfitness has to be clear and convincing.” 138 Ill. 2d @ 274-175.
The Syck court explained that the termination of parental rights is actually a 2-step process where first the trial court is concerned with ruling on the parental unfitness. Only after a finding of unfitness, based upon clear and convincing evidence, shall the court has to conduct a hearing with relation to the best interest of the child. When a court is ruling on parental unfitness a court is not to consider the best interest of the child. Only evidence that bears on the issue of unfitness is to be considered and this specifically excludes evidence bearing on the child’s best interest. (see In Re Jones, 34 Ill. App. 3d 603, 340 N.E. 2d 269 (1975) Whether the child’s welfare would improve upon his eventual adoption by the petitioners in a contested adoption case is not relevant in judging the fitness of the natural parent. Perkins v. Breitearth, 99 Ill. App. 3d 135, 424 N.E. 2d 1361 (1981).
The Syck court cautioned that each case concerning parental unfitness is “sui generic”, unique unto itself. The Syck court stated that it is a parent’s effort to communicate with and show interest in the child which should be considered when determining whether a natural parent demonstrated the reasonable degree of concern, interest and responsibility for the child rather than the success of those efforts. The court cited situations where a mother had personal difficulties, such as poverty, which precluded her from visiting the child, a parent’s difficulty in obtaining transportation to the child’s residence, actions and statements of the custodial parent that hinder or discourage visitation and the parent’s failure to visit the child being motivated by a need to cope with other aspects of his or her life. The court had to distinguish these situations from a true indifference for the concern of the child.
The Syck court also cautioned that if personal visits with a child were somehow impractical, that letters, telephone calls and gifts to the child or those caring for the child would demonstrate a reasonable degree of concern, interest and responsibility depending upon the content, tone and frequency of those contacts under the circumstances.
During the first step of the contested adoption proceeding it is the parent’s past conduct, that is that conduct which took place prior to the filing of the adoption petition that is under scrutiny.
The 1st Appellate Court in the case entitled In Re Adoption of C.A.P., 373 Ill. App. 3d 423, 869 N.E. 2d 214 (1st Dist. 2007), the 1st District Appellate Court reversed the finding by Judge Marcia D. Hayes of the Circuit Court of Cook County that the ex-wife and her new husband had proved that her ex-husband had abandoned the child or failed to maintain a reasonable degree of interest, concern or responsibility such that the ex-husband was unfit within the meaning of the Adoption statute. The C.A.P. case involves an extremely unusual factual situation but the practitioner should review the application of the law to the facts.
The record in C.A.P. reveals a number of events that occurred that either hindered or prevented Respondent from visiting with his child. The main obstruction was the fact that the custodial parent’s father was the Chief of Police in Chicago Heights. In that capacity he had the father of the child arrested on at least two occasions prior to the finalization of the divorce when he attempted to visit with his child while the child and the mother were living at the Chief’s home. Both times the charges were dismissed and the father became afraid of being arrested or imprisoned by his former father-in-law. Even though those charges were dismissed, the Respondent testified that he avoids traveling to Cook County whenever possible. Additionally, the Respondent had filed and won a lawsuit against his ex-father-in-law for harassment and false imprisonment related to at least one of those incidents.
The Respondent had been granted weekly 1 hour visitations which he failed to attend. The Respondent testified at the fitness hearing that it would have been financially difficult or impossible for him to make the trip each week for an hour of visitation to his daughter coupled with his fears of being in Cook County because of his ex-wife’s father. The father further testified that despite not being able to visit with his daughter he sent her cards and gifts and had amassed gifts for her over the years that he was hoping to give to her someday. He had also done all of his scheduled visitations during the pendency of the divorce and had agreed to visit with the child at his in-law’s home as long as his father-in-law was not present. He also testified that he had conducted internet searches to locate his daughter and had contacted several attorneys in an attempt to enforce his visitation with his daughter but had been unsuccessful.
The ex-wife testified that her name was listed on the title to two homes in Cook County as well as bank accounts, credit cards and tax records. She stated that her ex-husband had numerous avenues available to locate their daughter and had not made the slightest effort.
The trial court actually found that the father was unfit as he had failed to maintain a degree of interest, concern or responsibility to the child’s welfare and he had in fact abandoned the child within the meaning of the statute. The Appellate Court found that the father had never intended to abandon his daughter.
Additionally, the Appellate Court pointed out that there is no time period as to abandonment and the inquiry must focus on whether it was “the parent’s intent to abandon the child”.373 Ill. App. 3d 431. The Appellate Court also noted that it was undisputed that the custodial parent had never notified the father of the child’s whereabouts or encouraged visitation between the Respondent and the minor child. The Appellate Court stated the following:
“This would indicate, at a minimum, that Petitioner wished to make visitation difficult, despite her assertions that with a little effort she could have been found. As this court noted in Davis “the fact that a custodial parent denies or hinders the visitation rights of a non-custodial parent may be a significant element weighing against the clear and convincing determination of the non-custodial parent’s indifference to his or her child,” (citation omitted). As we further noted in Davis if Respondent had been notified of Petitioner’s whereabouts and then failed to act on this information, that could reasonably be viewed as evidence of a lack of serious interest in the child.” 373 Ill. App. 3d 431.
I caution all family law practitioners to review at least the cases cited in this article before undertaking this type of a case. These are difficult cases where a practitioner needs to review the applicable case law and the particular situation that their client finds themselves in before deciding whether to pursue this case.