APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
N. HAMILTON, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
This appeal is by a putative father who while serving a penitentiary sentence of 15 to 25 years was found an unfit parent because during his imprisonment he failed to maintain a reasonable degree of interest, concern and responsibility for the welfare of his illegitimate children. The finding was made after petitions were filed praying for an order terminating the inmate's parental rights and appointing a guardian authorized to consent to adoption of the children. The trial court, sitting without a jury, heard evidence and entered orders in accordance with the prayers in the petitions. The issue presented is whether the evidence presented to the trial court supported its finding that the inmate was an unfit parent. Resolution of this issue requires a recital of the material facts.
For some time prior to September 1964, Melvyn Allen and Kathryn Jones, without benefit of marriage, lived as man and wife in the city of Chicago. As a result, two children were born to them: Bryant on September 8, 1964; Crystal Hymn on October 24, 1965. In February 1969, Allen killed Kathryn Jones. Since that time, he has been incarcerated, first in jail awaiting trial; since July 1970, in the penitentiary serving his sentence.
Bryant and Crystal, on the death of their mother, were taken into the home of an aunt. Then, on June 30, 1969, on petitions filed by the county director of public aid, the juvenile division of the Cook County circuit court found them dependent minors because they had no parent or relative to care for them. They were placed in a foster home. Allen was not a party to these proceedings. In fact, he was neither notified nor served with process. *fn1 The two children remained wards of the State, but those who supervised their foster home did not know Allen's address.
Then, in August of 1973, an employee of the Illinois Department of Children and Family Services discovered that Allen was in the penitentiary and conveyed to him a request that he consent to the children's adoption by their foster parents. Allen refused. Consequently, in the same proceedings in which Bryant and Crystal had been made State wards, supplemental petitions were filed naming Allen a respondent and alleging that he was an unfit father because he had failed to maintain a reasonable degree of interest, concern and responsibility in the children's welfare. On May 9, 1974, the petitions were called for hearing. Allen was summoned; and, represented by counsel, was present.
Three witnesses gave all the evidence in the case. They were Allen, who testified twice, once as an adverse witness and once on his own behalf; the agency employee who located him, and Allen's mother. After all the evidence was heard, the trial judge asked the State to waive argument, but invited Allen's counsel to summarize his case. Counsel did so and argued that Allen had not been proven an unfit parent. When counsel concluded, the trial judge invited the guardian ad litem, a lawyer who until then had not participated in the proceedings, "* * * to argue against a finding of unfitness." The invitation was accepted and the guardian said that he joined in the argument which had been made in Allen's behalf.
After this statement was made, the trial judge again said he did not want to hear from the State and proceeded with his findings, saying:
"This, of course, as so many cases that are brought before this Court, is a tragic case. Apparently the father, at this point, does wish to assert his rights and his interest in the children as being flesh of his flesh.
However, the Court must be concerned about the best interest of the children who have been in a foster home since '69. They are entitled to stability in their lives; they are entitled to a proper home.
The Court finds the father, despite the fact he may have written to the aunt, has not done all he might have done. He had his own relatives on the outside. If he really was concerned about the children he knew the mother was dead, and if he wrote the sister and did not get a response, then it was incumbent upon him to have his relatives go by and contact the sister to find out where the children were, long before, long before now."
The court went on and rejected the argument made by Allen's counsel. It decided that "* * * there will be a finding of unfitness for failure to maintain a reasonable degree of concern and responsibility as to these childrens' [sic] welfare." In this court, Allen, by the same lawyer who represented him in the trial court, reasserts the argument that the evidence which the court heard did not prove he was an unfit parent. The State argues that the evidence proved Allen's unfitness as a parent because in his testimony he admitted that he did not write to the children until late in 1970 or early in 1971, nearly two years after his arrest in February 1969. Thus, the State insists, it was shown that Allen did not maintain a reasonable degree of interest, concern and responsibility for the children's welfare.
In resolving the issue thus presented, certain distinctive features of this controversy assume importance. For example, as the putative father of Bryant and Crystal, Melvyn Allen, at the time they were made wards, had no parental rights under the law of Illinois. (DePhillips v. DePhillips, 35 Ill.2d 154, 219 N.E.2d 465; Comment, Rights of a Father Toward His Illegitimate Child in Illinois, 46 Ill. L. Rev. 156 (1951); Annots., 45 A.L.R. 3d 216 (1972), 15 A.L.R. 3d 887, 891-92 (1967).) In fact, when this court decided Wallace v. Wallace, 60 Ill. App.2d 300, 210 N.E.2d 4, we observed that from the legislature's view of an illegitimate child's relations with its father, the father's duties equaled those of males who were fathers of legitimate children; but the father of an illegitimate child did not enjoy any of the rights of the father whose child is born in wedlock. (60 Ill. App.2d 300, 303.) In 1972, however, the United States Supreme Court decided that Illinois could not, consistent with the Federal constitution, so define parental rights that without a hearing a putative father could be deprived of his interest in the care and custody of his illegitimate children. (Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208; see People ex rel. Slawek v. Covenant Children's Home, 52 Ill.2d 20, 284 N.E.2d 291.) As a result, the Illinois legislature amended the applicable statute and defined persons having parental rights broadly enough to include putative fathers. (See Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1E; Comment, New Adoption Proceedings in Illinois, 7 John Marshall J. Prac. & Proc. 194 (1973).) This change in the law took effect October 1, 1973. On that day and for the first time, therefore, Allen, as to his illegitimate children, acquired parental rights which the ...