APPEAL from the Circuit Court of Peoria County; the Hon. JOHN
A. HOLTZMAN, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the order of the circuit court of Peoria County placing the minor child, John Lee Ozment, in the custody of the cross-petitioner, Raymond Heater.
John Lee Ozment was born on February 11, 1972, five months after the marriage of Elizabeth and John Ozment. The Ozments were divorced two months later. John Lee and his mother resided in the home of Raymond Heater from April 1972 until September 1975. At that time John Lee was removed from the custody of his mother for a period of about two months; he was later returned to her.
In April 1976, the Department of Children and Family Services filed a dependency petition in the interest of the minor. Both the mother, Elizabeth Ozment, and her former husband, John Ozment, filed appearances and consents to the entry of a dependency finding. The court found John Lee Ozment dependent and placed him under the guardianship of the Department of Children and Family Services. At that time Raymond Heater had physical custody of John Lee Ozment.
At the urging of Dennis Davis, a caseworker for the Department of Children and Family Services, Heater had been taking John Lee to the home of Mr. and Mrs. Vance, who were the prospective adoptive parents.
In September of 1976 Elizabeth Ozment and John Ozment filed consent in open court to John Lee being made the dependent ward of the State and to the appointment of a guardian with the power to consent to adoption. Two weeks later, on September 29, 1976, John Ozment petitioned the juvenile court for withdrawal of his consent to appointment of a guardian with power to consent to the adoption claiming he was not the father of the child and that Raymond Heater was the father. His affidavit as well as that of Elizabeth Ozment supported his petition. The petition was denied.
In October 1976, Heater met with Davis and told Davis that he desired to keep the minor child in his custody and guardianship and move the child to Kansas. At that time Heater claimed he was the father of John Lee Ozment. Heater then filed his cross-petition. In January 1977, the hearing commenced in juvenile court on Heater's cross-petition in which he claimed to be the father of John Lee Ozment. Heater, John Ozment, and Elizabeth Ozment testified on Heater's behalf, as did several other witnesses.
The hearing was continued for the presentation of the Department's case until February 1977.
Lois Norris, the master foster parent who interviewed Heater; Yvonne Vance, the potential adoptive parent of John Lee; and John McAtee, a Department social worker, who was present at the signing of the consent by Elizabeth and John Ozment, testified for the Department. The hearing was continued until March of 1977 when Dennis Davis testified regarding Heater's earlier denial of paternity. Heater was called under section 60.
The final hearing on the case was April 21, 1977. At that time the trial judge stated that he agreed that in the best interest of John Lee the matter should be continued for a full investigation of the proposed placement with Heater and for Heater to arrange irrevocable financial security. Pursuant to this agreement, the judge wrote to Davis requesting a comprehensive social investigation of Heater's niece who lived in Independence, Kansas, and with whom Heater intended to reside along with John Lee if the trial judge found Heater to be the natural father and also granted him custody of the child.
Davis then wrote to the Department of Social Rehabilitation Services of the State of Kansas requesting a home study. The study was made by the Kansas agency and returned to Davis in July of 1977. Pursuant to this report the trial judge entered an order on July 8, 1977, finding that Raymond Heater was the natural father of John Lee and that he was able to provide adequate support and education for the child; that John Ozment was not the natural father of John Lee; and, that it was in the best interest of John Lee that he be placed in the care, custody and control of Heater. The Department was required to deliver custody to Heater immediately.
Notice of appeal was filed and a stay of the order requested. This was denied. An emergency stay was granted by the appellate court.
Appellants argue that: (1) the finding of the trial judge was improperly based upon consideration of the best interest of the child; (2) to get this result, the trial judge made the necessary finding that Heater was the natural father of the minor, thereby obviating the necessity of reversing his prior decision denying withdrawal of the consent of John Ozment as natural father by which John Ozment consented to appointment of a guardian with right to consent to adoption of the child.
1 There is a strong presumption in Illinois that a child born to a wife during her marriage was fathered by her husband. (People ex rel. Repsel v. Kirk (1971), 133 Ill. App.2d 771, 273 N.E.2d 86; People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 242 N.E.2d 275; Zachmann v. Zachmann (1903), 201 Ill. 380, 66 N.E. 256.) The presumption of legitimacy prevails ...