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In Re Bentsen

OPINION FILED NOVEMBER 13, 1980.

IN RE KRISTEEN LORRAINE BENTSEN, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

SHIRLEY BENTSEN, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Iroquois County; the Hon. DWIGHT W. McGREW, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The Illinois Department of Children and Family Services (hereinafter the Department) initiated this proceeding by filing a petition for supplemental relief in the circuit court of Iroquois County requesting that respondent Shirley Bentsen be found an unfit parent under the provisions of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 et seq.). The Department also requested her parental rights be terminated and the acting guardianship administrator of the Department be appointed guardian of the person of respondent's minor daughter, Kristeen Lorraine Bentsen, with power to consent to her adoption pursuant to the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.). After a hearing on the merits, the trial court found that respondent had failed to make reasonable efforts to correct the conditions which were the basis for the minor's removal from parental custody, or to make reasonable progress toward her return within 12 months after an adjudication of neglect. The court further found that respondent failed to maintain reasonable contact with the minor or to plan for her future for more than 12 months while the minor was in the care of the Department. The court granted the Department's petition.

On September 30, 1977, a petition for adjudication of wardship was filed alleging that the minor was neglected. After a subsequent shelter care hearing, she was placed in the custody and guardianship of the Department. On October 12, 1977, an adjudicatory hearing was conducted. Respondent appeared pro se, and the record reflects the petition was read and explained and respondent was admonished as to the possible dispositions of her child concomitant with a finding of neglect. Thus admonished, respondent stated she understood her rights and wished to waive her right to counsel. She thereupon admitted the allegations of the petition and agreed to an immediate dispositional hearing. Respondent testified that she was not able to provide for her daughter due to inadequate financial resources, in consequence of which she was unable to provide a proper home. The court then granted the petition, and the minor has since resided in foster homes.

On March 9, 1979, the petition at bar was filed, and on April 18, 1979, the minor's father was defaulted. On July 26, 1979, a hearing was conducted as to respondent's rights. The People's first witness was Curtis Rookstool, respondent's son and the minor's half-brother. Rookstool testified that he had been living in the same community as his mother for several weeks and during that time she had no regular home or apartment but stayed in boarding houses, with friends, or in her pickup truck. To his knowledge, his mother had not had a regular place to live at any time during the previous two years and had a problem with alcohol.

The State then called Robert Reynolds, respondent's father, who testified that his daughter had made no effort to establish a permanent home and that he had on four occasions over the previous two years seen her sleep in her truck near his home. While he stated he believed his daughter had an alcohol problem, he added she never treated her daughter, whom he characterized as her favorite, badly. Respondent's mother, Lois Reynolds, then testified that her daughter had been intoxicated on all but one of the 10 or 11 occasions she had seen her since the adjudicatory hearing on October 12, 1977. She added that the very few times she saw her grandchildren, they were dirty, poorly dressed, and hungry.

Harry Rookstool, respondent's former husband, was the People's fourth witness and testified to respondent's lack of attention to two other children she left in his care for four months. Deputy Sheriff James Brammer, Jr., next testified as to one occasion he observed respondent and her daughter sleeping in the truck, which he had at times seen in the vicinity of taverns and various boarding houses, and to the fact respondent had been ticketed and convicted of driving under the influence of intoxicating liquor. Paul Williams, Jr., a welfare worker from the Newton County, Indiana, Welfare Department testified that in August 1978, respondent voluntarily placed two of her children with his department and, during the following nine months, never visited nor communicated with them.

James Scholer, a supervisor and social worker for the Department, testified that from October 1977 to February 1979 respondent made no effective progress toward the return of her child and it was not until September 1979 that he was aware of her whereabouts. From November 1977 to February 1979, respondent failed to visit the minor nor maintain any contact beyond one or two telephone calls, although she contacted the Department once concerning a visit which was denied pending an interview. After February 1979, respondent did visit the minor regularly.

The minor testified that she and her mother lived in the truck for over a month. During that time, they subsisted on bologna sandwiches and juices as the truck had no refrigerator and respondent would leave her alone in the unheated truck while she would visit a tavern. The minor told of having to care for her younger siblings when she was five and stated she did not like her mother and had no desire to return to her.

After the People stipulated that Jennifer Ludwig, a caseworker for the Department, had visited respondent's home on October 3, 1979, and found it in most respects suitable for the minor, respondent took the stand. She testified that she had lived in nine different locations during the period between the two hearings but now had a home and had been steadily employed since February 1979. Respondent claimed the minor's foster parents discouraged communication with her daughter and that visits were hampered by her residencies in Texas and Indiana as well as by her lack of resources.

On appeal, respondent raises four principal assignments of error, the first two of which concern the subject statutory authority of section 1 of the Adoption Act (hereinafter the Act), which provides inter alia:

"`Unfit person' means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following:

(m) Failure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within 12 months after an adjudication of neglected minor under Section 2-4 or dependent minor under Section 2-5 of the Juvenile court Act.

(n) Failure, for a period of 12 months, to maintain reasonable contact with the child or to plan for the child's future, when the child is in the care of an authorized agency, whether or not the child is a ward of the court, provided the agency attempted to encourage and strengthen the parental relationship. Contact or communication by a parent with his or her child which does not demonstrate affection and concern does not constitute reasonable contact and planning under this subparagraph (n)." (Ill. Rev. Stat. 1977, ch. 40, par. 1501(D).)

Only if the trial court finds a non-consenting parent unfit under the Act after a child is adjudicated a ward of the court may a guardian with power to consent to an adoption be ...


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