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In Re Woods





APPEAL from the Circuit Court of Cook County; the Hon. PETER F. COSTA, Judge, presiding. MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:

Respondent, Harrold D. Woods, appeals from an order declaring him an unfit parent and appointing a guardian to consent to the adoption of Deborah, Harrold, Jr., and Agnes Woods, respondent's children. Patricia Woods, the children's mother, also was declared an unfit parent in this cause by default and had not prosecuted an appeal. Respondent contends on this appeal that the evidence does not support the finding that he was an unfit parent under the provisions of the Adoption Act. Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1D(b).

In 1963 respondent's three children, then ages 5, 4 and 2 respectively, were placed in the custody of the Department of Children and Family Services (hereafter "the Department") by dependency proceedings. The Department in turn placed the children in the foster care of Mr. and Mrs. Ernest Winters in March of 1964, where they have since remained. On June 25, 1975, the respondent filed a petition for relief in which he alleged that the foster parents had removed the children from the jurisdiction without prior court approval making him unable to visit with his children. Respondent also sought to have the guardianship status dissolved and the children returned to his custody. The Department subsequently petitioned the court on July 7, 1975, to appoint a guardian to consent to the children's adoption pursuant to section 5-9 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 705-9). Section 5-9(1)(3) of the Juvenile Court Act provides that the finding of parental unfitness must be made in compliance with the adoption act which in section 9.1-1D(a) through (1) lists the grounds upon which a parent might be found unfit. The petition alleged under subsection (b) thereof that Harrold and Patricia Woods were unfit parents in that they failed to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare.

At the hearing on the petitions, the children's foster mother, Annie Winters, testified that the respondent had visited the children on six occasions for a total of approximately 7 1/2 hours during the 12-year period they resided in her home. She stated that the first two visits occurred in 1965, one in the spring and one again in July or August. These visits lasted approximately 2 hours each; during both times the respondent was accompanied by another man and in both instances appeared to be intoxicated.

Mrs. Winters further testified that as a result of the respondent's condition on these two occasions, she arranged for the third visit at the foster agency. This office visit occurred in November 1966 and lasted 30 minutes. The last three visits occurred at the Winters' home, one in the spring of 1967 when the respondent arrived with a woman and stayed approximately 1 hour; then at Christmas time in 1967, where respondent arrived at 11 p.m. with a woman and a young man unannounced, again staying for approximately 1 hour, and finally in June 1975, 8 years later.

Mrs. Winters further testified that during the 12-year period that respondent's children were in her home the respondent only sent them birthday cards during the first 2 years; that they received no other cards, letters or phone calls from him, and that the only presents he gave them were gifts of $75 to $85 worth of clothing in the spring of 1967, and that he gave each child $7 during his visit in June of 1975. Mrs. Winters also testified that the children never requested a meeting with their father, but that they had asked about him, that she never discouraged the respondent from seeing his children, and that she was always receptive to his visits. Mrs. Winters also testified that she had met the children's mother, Patricia Woods, on two occasions, the last being 9 years prior to trial; that at the last meeting Mrs. Woods bought a bicycle for Harrold, Jr., but had not wanted to see any of the children.

Deborah Woods, the eldest child of respondent, age 17 at the time of trial, testified that she had lived with the Winters family since she was 5 and that she had seen the respondent three times during her stay. She stated that 8 years had elapsed between the respondent's second and third visits, and that during this period the respondent had not sent her any letters, made any phone calls to her or given her any gifts. Deborah did remember receiving birthday cards from the respondent when she was smaller and stated that she received $7 from him during his last visit in June of 1975. On cross-examination Deborah testified that she understood that being adopted meant the termination of her father's rights, "that he wouldn't rule over us again," and stated that she didn't want to live with her father because "he can't support us" and also since the respondent hadn't shown any interest in her welfare in the past 9 years.

Harrold Woods, Jr., who was almost 16 at the time of trial, testified that he had lived with the Winters family for 12 years; that prior to the respondent's last visit in June of 1975 respondent had not visited for 8 years; that during this 8-year interval the respondent had sent him one Christmas card but hadn't made any calls nor given him any gifts with the exception of the $7 he received during the respondent's last visit. Harrold also testified that he had no feelings about going back and living with his father, that he would like to visit him on occasion and that he did not want to be adopted. Harrold further stated that his sisters wanted to be adopted since "they don't want nothing like this to happen again." He testified that he wanted the respondent's rights to be terminated, desired to continue living with the Winters and when asked whether he would like to continue the relationship of father and son with respondent responded "No."

Agnes Woods, the youngest child, age 14 1/2 at the time of trial, testified that she could not remember when she saw the respondent prior to his visit in June of 1967; that she remembered receiving a card and a watch from the respondent when she was "little," and had received $7 from him at the time of his last visit.

The first witness for the respondent, Harrold Dawson, an administrative assistant from Northwestern University Medical School, brought the clinical records pertaining to Harrold Woods to the hearing. On the basis of these records, the parties stipulated that the respondent was suffering from a heart condition and was treated at Northwestern University Clinic for this problem intermittently between August 1967 and December 17, 1974. The clinic's records disclosed that respondent was treated twice in 1967, no times in 1968, twice in 1969, twice in 1970, four times in 1971, three times in 1972, three times in 1973 and six times in 1974.

The respondent, Harrold Woods, testified that he saw the children two or three times in 1963 before they were placed in the Winters' home. He also testified that his heart condition impeded his visitation between 1965 and 1974; that he had a heart attack after his first three visits in February 1965 and had to remain in Cook County Hospital for 20 days and had a second heart attack in June of 1965 and was hospitalized for four months. He further testified that he would have visited the children more but for the foster agency's discouragement; he urged the social worker to arrange visits between 1964 and 1966 but to no avail, and had not learned of the Winters' address until a social worker finally informed him of it in 1966. On his visit in the spring of 1964, respondent had to take a bus to the Winters' home, necessitating a 4- or 5-mile walk, taking 2 hours in both directions. The respondent was not supposed to be engaging in strenuous activity at this time, nor was he to go out in the cold weather.

Respondent made three other visits to the Winters' home during the warm months of 1966 accompanied by an unnamed friend. Woods further testified that he received a visit from a Department social worker in 1966 who told him not to visit the children too frequently because he would upset their program by his visits and make it hard for them to readjust. As a result, he cut his visits to two in 1967, one in 1968, one in 1969; he also stated that he attempted to visit the children at the Winters' home once in 1972 and once in 1973 but found no one home. He stated that the Department never offered him assistance in devising a plan to help him regain custody of his children, but only frustrated his expectations by informing him that he would have to remarry or have a woman in his home before they would be returned to him.

Woods further testified that during the period of 1970-1972 he sent the children birthday cards, Christmas cards and a letter but that he never received any response. He was informed by his children at the time of his June 1975 visit that they never received any of his correspondence; however, none of these items were ever returned to the respondent. Respondent further testified that he had called the children on several occasions, and on one occasion Agnes answered the phone; that he gave the children gifts of money on all of his visits, $5 per child on his first visit in 1966, $10 per child on his second visit in 1966, $10 per child on his first visit in 1967, $30 per child on his second visit in 1967, $20 per child in 1968 and $7 per child in 1975. Respondent also introduced evidence indicating that he was receiving money from the Veterans Administration and Social Security Administration as a result of his disability which were to be held for the children; he also had two insurance policies with the children as beneficiaries.

On cross-examination, when asked why he had not contacted the children for a 5-year period, respondent stated that he was going to school during the latter part of 1970 and 1971 and that he had made phone calls to the Winters' home during this time; that for the next 3 years he was in ill health and was advised by his doctor to "take it easy," and further that he talked to Mrs. Winters on three or four occasions during this time.

• 1, 2 We note at the outset that the purpose and policy behind the Juvenile Court Act and Adoption Act is "* * * to preserve and strengthen the minor's family ties whenever possible * * *" and further, that the statute "* * * shall be administered in a spirit of humane concern. * * *" (Ill. Rev. Stat. 1973, ch. 37, par. 701-2.) As a result, various principles have evolved in Illinois implementing this statutory enactment. It is well recognized that the natural parent has superior rights to the custody of his child as against others. (McAdams v. McAdams (4th Dist. 1964), 46 Ill. App.2d 294, 298, 197 N.E.2d 93; In re Hrusosky (3d Dist. 1976), 39 Ill. App.3d 954, 957, 351 N.E.2d 386.) This inherent right therefore should not be abrogated absent compelling reasons. (In re Grant (1st Dist. 1975), 29 Ill. App.3d 731, 735, 331 N.E.2d 219.) One of these reasons is parental "unfitness" demonstrated by a parent's "[f]ailure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare." (Ill. Rev. Stat. 1973, ch. 4, par. 9.1-1(D)(b).) The State must meet this burden by clear and convincing evidence. (Rich v. Rich (1st Dist. 1977), 51 Ill. App.3d 174, 366 N.E.2d 575.) It has also been recognized that cases of this nature are sui generis; each must be decided in accordance with ...

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