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In Re Martin

OPINION FILED APRIL 22, 1977.

IN RE LAMONT MARTIN, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

VIRGIE MARTIN, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JOHN P. McGURY, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal by respondent from an order of the juvenile court of Cook County finding her unfit to have custody of her son, Lamont Martin, and appointing a guardian with the right to consent to his adoption.

Three issues are presented for our review: (1) whether the State proved by clear and convincing evidence that she failed to maintain a reasonable degree of interest, concern, and responsibility in her child; (2) whether the court committed prejudicial error when, prior to a determination of fitness, it allowed the caseworker to testify that an adoptive home was available for the child; and (3) whether the court had jurisdiction to appoint a guardian to consent to adoption where respondent's child was never adjudicated a ward of the court.

Respondent was 16 years of age when Lamont was born, in February of 1972. In August of 1972 she appeared before the juvenile court pursuant to a petition for adjudication of wardship which alleged that Lamont was without the proper care necessary to maintain his well-being, in violation of section 2-4(1)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702-4(1)(a)). At the hearing, her attorney informed the court that she was unable to care for Lamont and that she would agree to a finding of neglect because of her age and because she was also a ward of the court. That finding was entered, and in September of 1972 Lamont was placed in the foster home of Mrs. Beatrice Rae.

Thereafter, in March of 1975, the State filed a petition for supplemental relief, alleging that the parents of Lamont Martin were unfit because they failed to maintain a reasonable degree of interest, concern, and responsibility as to the child's welfare, in violation of section 5-9 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 705-9). The petition also asked for the appointment of a guardian with the right to consent to adoption. Lamont's father was defaulted by publication, but respondent — his mother, appeared and contested the allegation of unfitness insofar as it applied to her.

At trial, Judy Reiner, a social worker with the Department of Children and Family Services, testified for the State that she was assigned to the case of Lamont Martin in July of 1974. Respondent came to her office on July 11, 1974, and she informed respondent that if she wanted to have Lamont returned to her it was important that she have a job, a place to live, and that she maintain steady contact with him. At the next scheduled meeting, respondent reported that she had no place to live, no means of support, and had not visited her child. Another meeting was scheduled on September 12, 1974, but respondent did not keep the date. Reiner testified further that respondent had not contributed to the support of Lamont nor had she telephoned or visited him since July of 1974.

Mrs. Rae testified for the State that Lamont was placed in her home in September of 1972 and that respondent visited him four times in 1974 — once in February when she took him for three days, once in March for a weekend, once near Easter, and once in July on a Sunday. After the latter date, respondent did not see or telephone the child nor did she contribute to his support. On cross-examination, Mrs. Rae said that she did not discourage respondent from visiting Lamont and that she never had contact with the father.

Respondent testified that after some difficulty she finally located the foster home of Lamont late in 1972, and that she visited him from that time until September of 1974. She gave him presents, clothes and money and helped feed him during the visits. She did not see or contact him after September of 1974, because she was having difficulty in receiving her public assistance checks and because she had no place to stay. She did not contact Miss Reiner because of a fire in the apartment of the lady with whom she was staying, in which she lost her belongings. She testified also that she made no attempt to visit Lamont after September of 1974, because Mrs. Rae said she was not allowed to see him anymore. Later, when she attempted to call Mrs. Rae, she was told that the telephone had been disconnected. At the time of trial, respondent was pregnant but said she had a place to stay and that she was engaged to be married.

The court entered a finding of unfitness and determined it was in the best interest of Lamont that a guardian be appointed the right to consent to his adoption.

OPINION

It is first contended that the State did not prove by clear and convincing evidence that respondent failed to maintain a reasonable degree of interest, concern, and responsibility in her child. We disagree.

• 1 The rights of natural parents to their children cannot be severed unless a clear and convincing case is presented to the trial court. (In re Moriarity (1973), 14 Ill. App.3d 553, 302 N.E.2d 491.) In such cases, that court is in the best position to judge the demeanor and credibility of the witnesses (In re Garmon (1972), 4 Ill. App.3d 391, 280 N.E.2d 19), and this is a vital factor in evaluating the correctness of the court's determination, which should not be disturbed unless it is against the manifest weight of the evidence (In re Gonzales (1974), 25 Ill. App.3d 136, 323 N.E.2d 42; Campbell v. Fisher (1961), 28 Ill. App.2d 454, 171 N.E.2d 810). In addition, cases of the type before us which concern the welfare of the child, are sui generis and must be decided in accordance with the particular facts of each situation. In re Grant (1975), 29 Ill. App.3d 731, 331 N.E.2d 219.

Here, it was respondent's testimony that after Lamont had been placed in the foster home, she had difficulty in locating him and finally found him late in 1972. Mrs. Rae, in whose home Lamont had been placed in February of 1972, testified that respondent had visited him only four times between February 1974 and July 1974, and made no visits prior to or after that period of time. Respondent testified that she visited Lamont from the time she located him in late 1972 until February of 1974, but she made no statement as to the number or the approximate dates of these visits. Thus, it is our belief that the record does not establish the regular visitation testified to by respondent. Nor does it appear that she was faced with overwhelming problems that would excuse her failure to visit Lamont after September of 1974. It was her testimony that she did not visit after that time because of difficulty in receiving her public assistance checks. She did not say, however, that they were not received, and there is nothing in the record to indicate why the mere delay in receiving them prevented her from visiting Lamont. Moreover, difficulty of this type will not excuse her lack of interest. (Grant.) Neither does she state how the fire which allegedly destroyed the apartment in which she was staying deterred her from visiting or contacting Lamont after September of 1974. Nor did she state how the destruction of her belongings in the fire prevented her from contacting the caseworker. We note also that there was no indication of an obstructionist attitude on the part of the caseworker, as there was in In re Overton (1974), 21 Ill. App.3d 1014, 316 N.E.2d 201, or any testimony concerning transportation difficulties preventing her visitation, as was the case in In re Gibson (1975), 24 Ill. App.3d 981, 322 N.E.2d 223.

• 2, 3 Respondent here was found to be unfit by reason of her failure to maintain a reasonable degree of interest in Lamont's welfare. (Ill. Rev. Stat. 1973, ch. 4, par. 9-1-1D(b).) We agree with respondent that evidence of the failure of a parent to visit or communicate with a child is not clear and convincing proof of unfitness where the parent offers a reasonable explanation for her failure. (Gibson; Overton; In re Deerwester (1971), 131 Ill. App.2d 952, 267 N.E.2d 505.) However, in the light of the circumstances outlined above, we do not agree with respondent here that she offered a reasonable explanation. In fact, it appears that she made no serious effort to visit or contact Lamont or the caseworker during ...


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