APPEAL from the Circuit Court of Winnebago County; the Hon.
ALFORD R. PENNIMAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The respondent-mother Colene Overton appeals from the July 1972 supplemental decrees of the circuit court of Winnebago County which terminated her parental rights to her five minor children, and which granted to the Department of Children and Family Services of the State of Illinois (Department) the right to consent to the children's legal adoption. Colene Overton also appeals from the denial of her section 72 motion (Ill. Rev. Stat. 1971, ch. 110, par. 72) which requested the vacation of the decree adjudicating the children to be wards of the court, as neglected minors, and giving custody of the children to the Department as their guardian.
The issues raised on appeal are: (1) whether the trial court erred in finding Colene Overton an unfit mother at the hearing on the supplemental petition to terminate parental rights; (2) whether at this hearing the trial court erred in admitting into evidence statements of the minors made in an out-of-court conference prior to the hearing; (3) whether Colene Overton may collaterally attack the judgment of neglect in the original neglect hearing on the grounds of denial of substantial constitutional rights; and (4) whether there has been a denial of her constitutional or statutory rights at the original hearing.
On or about August 15, 1970, Colene Overton, who was 4 months pregnant at the time, was injured in an automobile accident. She was in the hospital for 3 weeks and was on crutches for the next 4 to 6 weeks. At the time of the accident she was the sole support of her five children, her husband having deserted her sometime earlier. She was not receiving any public aid, and, thus, had no means of providing for the children after her accident.
Consequently, on August 17, 1970, the assistant State's Attorney filed petitions under the provisions of section 2-4(1)(b) of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702-4(1)(b)) to determine that the children, who ranged in age from 9 months to 8 years, were neglected minors because their environment was injurious to their welfare. Also, on August 17, 1970, the court entered a pendente lite order appointing the Department as guardian of the children and giving the Department custody of the children pending resolution of the neglect proceedings. Presumably, the order was entered at a hearing after proper notice was given to the respondent-mother pursuant to sections 3-5 and 3-6 of the Juvenile Court Act. (Ill. Rev. Stat. 1969, ch. 37, pars. 703-5, 703-6.) The record is silent as to whether the required hearing was held.
On the same date a summons was issued to the minor children and Colene Overton which directed them to appear on August 21, 1970, to answer the neglect petitions. The summons conformed to the statutory requirements in that it informed them of their right to counsel and their right to have counsel appointed if they could not afford one. (See Ill. Rev. Stat. 1969, ch. 37, par. 704-3(2).) The hearing was held on October 28, 1970, which was not within 30 days of the filing of the neglect petition as required by statute. (Ill. Rev. Stat. 1969, ch. 37, par. 704-2.) The record is silent as to the cause of the delay.
At the hearing on October 28, 1970, no report of the proceedings was kept, although a legal secretary took notes. These notes and the common-law record are less than adequate in providing a record of what transpired at the hearing. Both are silent as to whether the court informed Colene of her rights to counsel and appeal as required under section 1-20(1)(3) of the Juvenile Court Act. (Ill. Rev. Stat. 1969, ch. 37, par. 701-20(1)(3).) The court found the children to be neglected minors because their environment was injurious to their welfare and adjudged them to be wards of the court. The court further ordered that the children be committed to the Department of Children and Family Services of the State of Illinois as their appointed guardian.
On March 1, 1972, the assistant State's Attorney filed a petition for supplemental decrees, requesting that the Department be authorized and empowered to consent to the legal adoption of the children, thereby terminating all parental rights of Colene Overton. The assistant State's Attorney alleged that Colene was unfit to retain parental rights or custody of the children because, "(1) she has failed to maintain a reasonable degree of interest, concern or responsibility as to the children, (2) she deserted the children for more than three months next preceding the filing of the petition."
After a hearing on the issues was held on July 21, 1972, the court found that the State had proved the allegations set forth in its petition. The court entered the supplemental decree authorizing the Department, as guardian for the children, to consent to the legal adoption of the children and terminated all parental and legal rights of Colene Overton with respect to the children.
• 1 Respondent Colene Overton contends the court erred in finding her an unfit mother. We agree. As we stated in In re Interest of Moriarity (1973), 14 Ill. App.3d 553, 556, 302 N.E.2d 491, 493, "[t]he rights of natural parents to their children cannot be severed unless a clear and convincing case is presented in strict compliance with the Adoption Act." In re Adoption of Walpole (1955), 5 Ill. App.2d 362, 125 N.E.2d 645; In re Petition to Adopt Cech (1972), 8 Ill. App.3d 642, 291 N.E.2d 21.
• 2, 3 First, we find that the trial court did not strictly comply with the provisions of the Adoption Act in finding that Colene Overton had deserted her children within the meaning of that Act. (Ill. Rev. Stat. 1971, ch. 4, par. 9.1-1D(c).) Desertion, as used in the Act, is such conduct by the parent as to indicate the parent's intention to permanently terminate custody over the child but not relinquish all parental duties and claims to the child. (Thorpe v. Thorpe (1964), 48 Ill. App.2d 455, 198 N.E.2d 743; In re Petition of Smith (1972), 4 Ill. App.3d 261, 280 N.E.2d 770; In re Petition to Adopt Cech, supra.) In consideration of the question of desertion, primary consideration must be given to the intent of the parent. (In re Walpole's Adoption, supra, Thorpe v. Thorpe, supra; Petition of Smith, supra.) The mere fact of physical separation does not necessarily constitute desertion. (In re Deerwester (1971), 131 Ill. App.2d 952, 267 N.E.2d 505.) In the case before us, the court expressly stated that the question of desertion was not a matter of intent; thereby basing his decision only on the mother's physical separation from her children for a 3-month period. Accordingly, we must reverse the finding of the court that Colene Overton deserted her children as the finding was not in strict compliance with the Adoption Act.
Second, the trial court's finding that Colene Overton failed to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare was not based upon clear and convincing evidence. (Ill. Rev. Stat. 1971, ch. 4, par. 9.1-1D(b).) The finding was primarily based upon the fact that from the time Colene Overton recovered from her injuries to June 1971, she visited her children only 3 times; that from June 1971 until about November 1971 she left Illinois and went to Missouri to live and did not see her children; that she sent no cards or gifts to the children; and that her paramour was a bad influence upon her children and the children disliked him.
In regard to Colene's visitation, we note that while Colene's case worker did not expressly refuse Colene's right to visit her children, he did not encourage her to visit her children. It is apparent from the record that the case worker felt it was in the best interests of the children that Colene should not visit them and that his feeling was communicated to Colene.
In regard to her moving to Missouri, we note that the move was for the purpose of starting "a new life." She wrote the Department concerning her trip, gave her new address, and informed the Department that school in Missouri began in August rather than in September. The letter also communicated to the Department Colene's concern for her children. The Department, however, never communicated with Colene while she was in Missouri concerning her move or her children. In ...