APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
N. HAMILTON, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Juvenile Division of the Circuit Court finding the respondent, Juanita Ybarra, an unfit mother and empowering the guardian of her son, Raymond Ybarra, to consent to his adoption. The respondent contends that the section of the Adoption Act upon which the proceedings were based is unconstitutional (Ill. Rev. Stat. 1973, ch. 4, § 9.1-1(D)(b)); that the court considered improper evidence by interviewing the child in private; and that the finding of unfitness is not supported by the evidence.
Raymond Ybarra was born on April 11, 1962. On May 29, 1962, he was decreed a dependent by the court and placed in St. Vincent's Orphanage. At that time the respondent was an in-patient at the Municipal Tuberculosis Sanitarium. From September 15, 1962, until April, 1965, Raymond was in a foster home. From April, 1965, until July, 1965, he lived at St. Joseph's Orphanage. In July of 1965, Raymond was placed in Angel Guardian Orphanage, where he remained until June 20, 1972, when he was placed in a foster home. His father died in April, 1969.
Raymond is one of eight children. The other children were taken from the respondent because her husband was ill and unable to work; in 1968, the two older boys were returned to her, and the five girls in 1972. In June, 1973, the petition for consent to adopt was filed and after a hearing the court made an oral finding of unfitness for two reasons: The respondent had failed to exhibit a reasonable degree of interest as to the child's welfare and had failed to make reasonable progress toward the return of the child within 24 months after an adjudication of neglect. In the signed order the court made a finding of unfitness only on her failure to maintain a reasonable degree of interest as to the child's welfare.
• 1 The statute Ill. Rev. Stat. 1973, ch. 4, § 9.1-1(D) provides in part:
"`Unfit person' means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following:
(b) Failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare;
(1) Failure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within twenty-four months after an adjudication of neglect under Section 2-4 of the Juvenile Court Act."
At this juncture we deem it appropriate to respond to several arguments of the petitioner that the order can be justified on the second ground given by the judge in his oral findings. Subsection (1) is inapplicable because there never was a finding of neglect under section 2-4 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, § 702-4). There was, instead, a finding under section 2-5 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, § 702-5) which refers, not to neglect, but to dependency.
Flora Lou Wright, who signed the petition, is a caseworker for the Child and Family Services of the Chicago Home for the Friendless. She first saw the respondent on May 26, 1972, at the respondent's home. She told the respondent that her agency felt that Raymond needed a home experience and that they had in mind a good foster home where he could remain until it was feasible for Raymond to return to the respondent's home. She testified that the respondent told her that she could not care for Raymond because of her great responsibilities for the children who were at home. She also testified that the respondent told her that if they placed Raymond in a foster home she would not visit him. Miss Wright told the respondent that all future visits with Raymond would have to be arranged through her agency. She made an appointment for June 1 at her office. The respondent appeared and told her she was still trying to get Raymond home, but that she was in ill health. She asked Miss Wright to take her to Angel Guardian Orphanage to see Raymond but was refused. Another meeting occurred on June 30 at Miss Wright's office and she explained to the respondent that Raymond had been placed in a foster home. When Miss Wright was asked if she discussed the rules of visitation with the respondent she said:
"Not in detail, but that they would be in the office and it was her responsibility to keep in touch with me when she was ready to visit."
On August 14, the respondent called Miss Wright, who testified:
"Well, I gave her an appointment to discuss visiting and to arrange for a date, to go over the ground rules and Raymond's need of supervision during the visit; and she refused to come in to arrange for the visit saying that she was ill. I told her she should come to the office when she was feeling better so we could set up the visit."
An appointment was made for Miss Wright to go to the respondent's home but that meeting was cancelled because the respondent was going to visit her oldest son in prison. Another appointment was not kept by the respondent because she forgot. The respondent met Miss Wright at her office on February 6, 1973, and the respondent told her that she could not visit Raymond yet because of the many problems she had at home: Her housing was poor, gas and light bills were unpaid, she did ...