APPEAL from the Circuit Court of Montgomery County; the Hon.
PAUL M. HICKMAN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of adoption entered by the Circuit Court of Montgomery County after it found (1) that the appellant, Russell Settle, is an unfit parent within the meaning of the Illinois Adoption Act, and (2) that the adoption of the appellant's daughter, Leigh Ann, by the appellees, her maternal grandparents, is for the best interests and welfare of the child. The appellant contends that the finding of parental unfitness is not justified by the evidence, and that the trial court erred in hearing evidence on the issue of whether the adoption would be for the child's best interests prior to making a finding of parental unfitness. It is our opinion that these contentions are without merit, and accordingly, the decisions of the trial court must be affirmed.
Leigh Ann, who is now 10 years old, is the biological child of the appellant and his former wife, Jana Ann Barry. The natural parents were divorced in 1970, and custody of Leigh Ann was granted to her mother pursuant to the divorce decree. Although the appellant retained the right of reasonable visitation, he failed to visit Leigh Ann for a period of nearly six years. During these years, the appellant's only efforts to maintain contact with Leigh Ann consisted of mailing a few cards and presents to the child, most of which were returned unopened. However, even these minimal efforts ceased two years prior to the institution of this proceeding because, according to appellant, he believed such efforts were futile. He also testified that he was threatened by appellees, with whom Leigh Ann had lived for several years, not to attempt to visit the child.
In the latter part of 1970, shortly after the appellant and Leigh Ann's mother were divorced, he approached the maternal grandparents with an offer to execute a consent to their adoption of Leigh Ann, apparently in an effort to persuade them to forego enforcement of appellant's obligation, pursuant to the divorce decree, to provide support for Leigh Ann. Shortly thereafter, on October 7, 1970, the appellant executed the consent before Judge Kinney in the Circuit Court of Madison County. Since the execution of the consent, the appellant has failed to contribute anything to Leigh Ann's support.
Leigh Ann's mother, who subsequently married and divorced Michael Barry, was killed in an automobile accident in September of 1976. Immediately thereafter, the appellees instituted this proceeding to adopt the child. The petition alleged the appellant's consent to Leigh Ann's adoption, and was later amended to allege, in the alternative, that no consent was necessary due to the appellant's unfitness as a parent. Specifically, the amended petition alleged abandonment, desertion, or the failure of the appellant to maintain a reasonable degree of interest, concern, or responsibility as to the child's welfare as separate grounds for a finding of unfitness. The trial court ruled that although the consent was given freely and voluntarily, it was inoperative due to the lapse of time between its execution and its attempted enforcement. The appellees have not appealed this ruling. The trial court also ruled that no consent was required because the evidence showed that the appellant is an unfit person as alleged in the amended petition.
1 This court is aware that clear and convincing evidence is the quantum of proof required to support a finding of parental unfitness. (In re Gates (1978), 57 Ill. App.3d 844, 373 N.E.2d 568.) However, because of the superior opportunity of the trial court to hear and observe the witnesses, its decision on this issue should not be disturbed unless it is palpably contrary to the manifest weight of the evidence. Gates; In re Ice (1976), 35 Ill. App.3d 783, 342 N.E.2d 460.
2 It is unnecessary for this court to determine the sufficiency of the evidence of abandonment or desertion for the reason we are of the opinion that there is ample support in the record for the finding that the appellant failed to maintain a reasonable degree of interest, concern, or responsibility as to the child's welfare and is therefore an unfit person within the terms of section 1D(b) of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501D(b)). First, the appellant's effort to escape his obligation of support to Leigh Ann by executing a consent to adoption evidences a total disregard for his rights and responsibilities as a parent. Although the appellant argues that he was unaware of the import of the consent, the testimony of Judge Kinney indicated that the appellant was made aware of the consequences and acknowledged them in open court before executing the consent. Second, the appellant's failure to inquire at Leigh Ann's school concerning her progress demonstrates a lack of concern for the child's welfare. Finally, and most importantly, the appellant's prolonged lack of contact with Leigh Ann, despite being in close proximity to her home, indicates little, if any, interest in the child. Although the appellant argues that this lack of contact was due to discouragement by the appellees and the fact that the appellant was not the legal custodian, these excuses do not justify the appellant's conduct. The appellant's efforts to maintain contact were minimal at best, and he failed to take any steps whatsoever to enforce the visitation rights granted him in the divorce decree. Under these circumstances, the trial court's finding that the appellant is unfit cannot be disturbed.
The appellant's final argument is that the trial court erred in hearing evidence on the issue of whether adoption would be for the best interest and welfare of Leigh Ann prior to making a determination concerning the appellant's fitness. This contention is without merit.
3 In the absence of valid parental consent, a finding of parental unfitness and a determination that adoption is for the welfare of the child are required before the court may enter an order of adoption. (Ill. Rev. Stat. 1977, ch. 40, par. 1517.) The appellant relies on In re Buttram (1978), 56 Ill. App.3d 950, 372 N.E.2d 1135, and In re Hrusosky (1976), 39 Ill. App.3d 954, 351 N.E.2d 386, to support his argument. Each of these cases held that absent parental consent, a finding of parental unfitness is a prerequisite to termination of parental rights and must be determined before the court can consider what placement if any will suit the best interest of a child; however, neither held that separate hearings should be held.
Section 14 of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1517) provides:
"* * * After the hearing on such application [for adoption], * * * the court may enter an order of adoption, provided the court is satisfied * * * from the evidence, if any, introduced, that the adoption is for the welfare of the child and that there is a valid consent, or that no consent is required as provided in Section 8 of this Act. * * *" (Emphasis added.)
Section 8 of the act (Ill. Rev. Stat. 1977, ch. 40, par. 1510) provides that consents shall be required in all cases unless a person whose consent would otherwise be required shall be found by the court to be an unfit person as defined in the act. The language of section 14 clearly refutes appellant's argument.
This court held in In re Burton (1976), 43 Ill. App.3d 294, 356 N.E.2d 1279, on the appeal of the mother of the children sought to be adopted, that the accumulation of errors required a new trial. The court there stated that, "in any event, the court's erroneous rulings in petitioners' favor on the admission and exclusion of evidence denied Mrs. Badger [mother of the child sought to be adopted] a fair trial." This, the court reasoned, was a result of the trial court's failure to hold a bifurcated hearing, as required by section 13 of the act, to first determine the fitness of the mother and then, subsequently, to consider the best interest of the children.
We note, however, that the petitioners in Burton were not related to the children sought to be adopted; therefore, section 13 of the act (Ill. Rev. Stat. 1977, ch. 40, par. 1516) was applicable to the proceedings. Section 13 provides that as soon as practicable after the filing of a petition for adoption the court shall hold a hearing, in other than an adoption of a related child, to determine the validity of the consent and to determine whether there is available suitable temporary custodial care for the child sought to be adopted. The determination of the validity of any consent expressly is required prior to the petitioners' application to the court for an order of adoption only in the case of a petition to adopt an unrelated child.
The petitioners in the instant case are the maternal grandparents of the child sought to be adopted; therefore, such child is a related child as defined in section 1B of the act (Ill. Rev. Stat. 1977, ch. 40, par. 1501B). Section 14 of the act (Ill. Rev. Stat. 1977, ch. 1517) provides that an order for adoption of a related child may be entered at any time after service of process and after the return date designated therein. The act does not contemplate the entry of an interim order on petitions for the adoption of a related child, and the petition may be called for hearing at any time after service of process and after the return date designated therein. A single hearing is provided for in such cases in ...