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In Re Adoption of Burton





APPEAL from the Circuit Court of Massac County; the Hon. R. GERALD TRAMPE, Judge, presiding. MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant Lily Mae Burton Badger, the natural mother of Sandra Fay and Martha Jean Burton, appeals from an order of the Circuit Court of Massac County finding her an unfit mother, and from that court's decree adjudging Sandra and Martha to be the adopted children of petitioners-appellees, Samuel and Freeda Neal. Mrs. Badger argues that her unfitness was not proved by clear and convincing evidence, and that the trial court's evidentiary rulings denied her a fair hearing. Although we feel that sufficient evidence of unfitness on one or more of the statutory grounds may have been presented below, we agree with appellant that the accumulation of errors requires a new trial.

In April 1968, Mrs. Badger's six children, including Sandra and Martha, were declared neglected minors under section 2-4 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-4) after a hearing in the Circuit Court of Alexander County. Mrs. Badger, who was then eight months pregnant, testified that she was unable to attend the 1968 hearing because of a leg injury suffered in a beating by her estranged husband, Robert Burton. (Also a defendant in the instant case, Burton has not appealed from the trial court's finding of his unfitness.) Mrs. Badger sent her mother in her stead to request a continuance, which was not granted. She was not represented by an attorney, and was unaware that she might seek relief from the court's decision.

As wards of the court, the children were committed to the custody of the Illinois Department of Children and Family Services. The Department in turn placed Sandra and Martha in the foster care of the Neals, in whose home they have lived since October 1968. The girls were five and three years old, respectively, at the time they were adjudicated neglected. Now 12 and 10, they have lived most of their lives with the Neals.

The record reveals that Mrs. Badger married Robert Burton in 1955, when she was 14 years old. Between that time and April 15, 1968, the couple had seven children, six of whom were living as of the latter date. Mr. Burton abused his wife and children, and in late 1966 or early 1967 the couple separated because Mrs. Badger had reason to believe that he had sexually molested their oldest daughter, who was then 10 years old. After the separation, Mr. Burton continued to come to his wife's house and abuse her. On one occasion, he forced her to have sexual relations with him, which encounter resulted in her becoming pregnant with the child she was carrying at the time of the neglect proceedings.

According to Mrs. Badger's uncontradicted testimony, her numerous early attempts to communicate with and regain custody of her children were frustrated by employees of the Department of Children and Family Services. She was denied visitation, and was told that she could not get her children back until she changed her circumstances. She was not told where the children had been placed. Her attempt to get relief from the Secretary of State's office was also unsuccessful.

In 1969, Mrs. Badger met Perry Badger and went to Georgia with him. She testified that she didn't feel at that time that there was anything more she could do toward regaining her children, but that she intended to return to Illinois. While in Georgia, she lived in a separate apartment in the same building with Mr. Badger, who supported her and her youngest child by Burton. They had sexual relations, and she had a child by him. They went through a marriage ceremony in Georgia although both of them were apparently still married to their previous spouses.

In 1971, Mrs. Badger returned to Illinois and finally managed to make contact with her children. During 1971 and 1972, two of her sons and one of her daughters were returned to her. Her other child apparently remained in a home for children with birth defects. In June 1972, visits began between Sandra and Martha and their mother.

By May 1973, according to caseworker Kathy Murrie, the Department had formulated a plan for the permanent return of Sandra and Martha to their natural mother. This plan was communicated to Mrs. Badger and to Mr. and Mrs. Neal. On November 14, 1973, the Department filed motions in Alexander County to vacate that court's prior placement orders; the motions stated the intention of the Department to return the two girls to Mrs. Badger. Although these motions were filed less than two months prior to the Neals' petition in the instant case, the Department, which was a named defendant, inexplicably took no position in its answer to the petition, praying only that the court "rule in accordance with existing law and the best interest of the minor children." Further, after the petition was filed, that agency permitted one of its employees to develop a "plan" for the girls directly contrary to the position of the Department before the Circuit Court of Alexander County. Apparently the hearing on these motions was continued in Alexander County pending the determination of the Neals' petition in Massac County.

The tension between the rights of natural parents and the welfare of their children is reflected in both the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-1 et seq.) and the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701-1 et seq.). The Adoption Act declares that the child's best interests and welfare are "the prime consideration in all adoption proceedings" and "of paramount consideration in the construction and interpretation of this Act." (Ill. Rev. Stat. 1975, ch. 4, pars. 9.1-15, 9.1-20a.) The Juvenile Court Act proclaims that "[t]he parents' right to the custody of their child shall not prevail when the court determines that it is contrary to the best interests of the child." (Ill. Rev. Stat. 1975, ch. 37, par. 701-2(3)(c).) On the other hand, the Adoption Act requires parental consent to all adoptions unless the parents are found unfit on 1 of 12 enumerated grounds. *fn1 (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-8.) This requirement is also incorporated into the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 705-9).

• 1 The courts have paid a great deal of deference to a parent's "inherent right" to the society, care and custody of his or her own children. See, e.g., In re Adoption of Vienup, 37 Ill. App.3d 217, 345 N.E.2d 742 (1st Dist. 1976); Cormack v. Marshall, 211 Ill. 519, 523-24, 71 N.E. 1077, 1078-79 (1904); cf. Stanley v. Illinois 405 U.S. 645, 651, 31 L.Ed.2d 551, 558, 92 S.Ct. 1208, 1212-13 (1972). This emphasis on parental "rights," with its echoes of the law of property, has not been without its critics. See, for example, H. Clark, The Law of Domestic Relations in the United States 631 (1968): "The child is treated like a chattel. The obligations of the parent to behave properly toward his child, and the child's needs for material and moral support and a stable environment all get short shrift." On the other hand, as Mr. Justice Barry cautioned, dissenting in the recent case of In re Hrusosky, 39 Ill. App.3d 954, 960, 351 N.E.2d 386, 391 (3d Dist. 1976); "By someone's standards, it is always possible to find a better home for a child than the one Providence has bestowed." See also, to much the same effect, McAdams v. McAdams, 46 Ill. App.2d 294, 299, 197 N.E.2d 93, 96 (4th Dist. 1964); cf. section 1-2 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701-2).

In their petition for adoption, the Neals alleged that Mrs. Burton was an unfit parent in that she had neglected the children repeatedly while they were living with her; abandoned them; failed to maintain a reasonable degree of interest, concern, or responsibility as to their welfare; failed to correct injurious conditions within their environment; made "no efforts whatsoever" to correct the conditions which were the basis for the removal of the children from her custody, and failed to make reasonable progress toward their return to her custody within 24 months of their adjudication as neglected.

At the hearing on the adoption petition, the Neals testified, inter alia, that the girls had been undernourished and seemed "starved for love" when they first came to them; that they never received any Christmas or birthday presents from Mrs. Badger; that on one occasion the girls had returned from a visit with the Badgers dirty and unkempt, and that one of them was bruised on her hips and face; and that they were upset when they had to visit with Mrs. Badger and were afraid they would not be allowed to return to the Neals.

Mrs. Badger testified that she had never injured any of the children; that she had prepared for the permanent return of the two girls by obtaining a larger home and the necessary furniture; that she had bought gifts for the girls after discovering their whereabouts; that she had not allowed Robert Burton to be with any of the children since 1968; and that she and Perry Badger had recently undergone blood tests so that they could become legally married, although they had not yet had time to get married. Her testimony was generally corroborated by Perry Badger, who expressed his willingness to accept Martha and Sandra into his home and to support them.

After the hearing, at which extensive testimony as to the home life of the Neals was received, the trial court found Mrs. Badger unfit on the grounds of failure to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare; desertion; depravity; and open and notorious adultery or fornication. Thus only one ground was both alleged in the petition and relied upon in the trial court's order. Absent other errors, we could nevertheless affirm if the evidence in the record supported the judgment, whatever the allegations or the reasons given by the trial court for its decision. (In re Hrusosky, 39 Ill. App.3d 954, 959-60, 351 N.E.2d 386, 390 (3d Dist. 1976) (Stengel, J., specially concurring).) In fact, ...

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