APPEAL from the Circuit Court of Madison County; the Hon.
MERLIN G. HISCOTT, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant Ronald Martin from an order of October 14, 1975, finding that he, the natural father of Christina Marie Martin was an "unfit person" as that term is defined in section 1D of "An Act in relation to * * * adoption * * *" (Ill. Rev. Stat., ch. 4, par. 9.1-1D). Defendant appeals that finding and the court's summary refusal of his petition to modify divorce decree to permit him visitation of his daughter. He also appeals the court's order entered December 1, 1975, granting the petition of the natural mother, Nancy Martin Peyla, and her second husband, Thomas Peter Peyla, to adopt the child.
The facts of this case are plaintiff Nancy Martin and defendant Ronald Martin were married on February 25, 1972, and a child was conceived. In October, 1972, defendant was incarcerated in the Illinois State Penitentiary at Menard. While so confined, defendant wrote to his wife on a daily basis. Some of the letters were friendly, others apparently were threatening in tone after the relationship deteriorated. After December 11, 1972, plaintiff stopped visiting defendant and refused to accept the letters which were returned unopened. The child, Christina Marie Martin, was born February 16, 1973, while defendant was in prison. There was testimony that plaintiff never told defendant of the child's birth, or her name. Defendant apparently learned this information from his relatives. Plaintiff obtained a divorce from defendant on February 1, 1974, while the defendant was still in prison. The question of visitation and child support were reserved although the plaintiff received custody of the child. The defendant obtained a furlough from the penitentiary during the last three days of January, 1974, just prior to the divorce. At that time he asked plaintiff's mother to allow him to see the child and she permitted a short meeting. Defendant testified that there were two visitations; there was other testimony of only one meeting at that time. There was also contradicting testimony that defendant brought the child a stuffed animal. The defendant returned to prison at the end of his furlough and he was paroled on March 12, 1974. Defendant testified that he went to his former wife's home the day after his release on parole. Mr. Peyla testified that defendant came to the Peyla home in May, not March. At the time of the meeting, defendant was denied visitation, the plaintiff said that it was because "there wasn't any court papers to say that he had the right and I wasn't about to let him * * *." She further testified, knowing that he was on parole, that she probably told Martin that if he did not remove himself from the premises that she would call the police.
In June, 1975, defendant again attempted to visit the child and was refused permission by Mr. Peyla who was home at the time. Mr. Peyla stated:
"* * * he [defendant] came over to where we was living and I was at home and my wife was at work and he came over and said that he had spoken to a lawyer and that he was going to go through legal stages to get visitation rights, and that's all that was said."
Defendant filed his petition to modify the divorce decree on June 19, 1975. Plaintiff and her new husband filed a petition for adoption on August 19, 1975.
The basic issue presented turns on the question of whether Ronald Martin was properly found to be an "unfit person." The court must inquire as to the burden of proof to be applied, and whether the evidence met that standard in this case.
Five grounds showing unfitness were alleged in plaintiff's amended petition for adoption; abandonment, failure to maintain a reasonable degree of interest, desertion, substantial repeated neglect, and failure to protect the child from conditions in his environment. The trial court found that abandonment and failure to maintain a substantial degree of interest, concern or responsibility for the child's welfare had been demonstrated. The trial court did not state with regard to this finding what burden of proof was applied. With regard to the question of what was the best home for the child, the court stated that it had "clear and convincing" evidence that the child was best provided for in the home of plaintiff and her new husband.
It is difficult to determine from the record provided what standard was applied to the question of unfitness by the court. The law in Illinois is well settled that in matters of adoption, there must be clear and convincing evidence that the parent is unfit within the statutory provisions of the Adoption Act. In re Adoption of Walpole, 5 Ill. App.2d 362, 125 N.E.2d 645; Carlson v. Oberling, 73 Ill. App.2d 412, 218 N.E.2d 820; In re Deerwester, 131 Ill. App.2d 952, 267 N.E.2d 505; In re Adoption of Cech, 8 Ill. App.3d 642, 291 N.E.2d 21; In re Moriarity, 14 Ill. App.3d 553, 302 N.E.2d 491; In re Overton, 21 Ill. App.3d 1014, 316 N.E.2d 201; Kubisz v. Johnson, 29 Ill. App.3d 381, 329 N.E.2d 815.
The trial court found that defendant had abandoned the child, and had failed to maintain a reasonable degree of interest, or concern for the child at the hearing on October 14, 1975. Those findings were incorporated in the decree of adoption ordered December 1, 1975.
It is clear from the record that the court based its decision upon the defendant's failure to become actively involved with the child from the time he was paroled on March 12, 1974, until he went again to the plaintiff's home in June, 1975. This was shortly before his parole concluded favorably on August 12, 1975. The court held that "he could have done more to express interest in the child than he did, even though he had to satisfy the requirements of his parole officer."
1 If we examine the charge of abandonment, it is clear that the defendant did not abandon the child. In In re Petition to Adopt Cech, the court defined abandonment at page 644:
"Abandonment is conduct on the part of a parent which demonstrates a settled purpose to forego all parental duties and to relinquish ...