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In Re Adoption of Markham

OPINION FILED JANUARY 6, 1981.

IN RE ADOPTION OF TED MARKHAM ET AL., MINORS. — (DAN MARKHAM ET AL., PETITIONERS-APPELLANTS,

v.

VIRGIL MARKHAM, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Peoria County; the Hon. EDWARD E. HAUGENS, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Petitioners, Dan Markham and Nettie Markham, filed a petition for adoption and a petition for permanent custody and control of minor children in the circuit court of Peoria County. After certain related legal proceedings, to be hereinafter detailed, and hearings on the merits, the trial court denied both petitions.

The scenario of this litigation began on March 5, 1965, when respondent, Virgil Markham, married Betty Markham. From this union were born the two children whose adoption and custody are sought by petitioners: Ted Markham, born November 13, 1967, and Terry Markham, born August 9, 1969. A third child passed away in 1977.

In September 1969, respondent and his wife, Betty, separated, and the following month mother and children moved into petitioners' home, where Ted and Terry continue to reside. In June 1970, the parties were divorced and custody of the children was awarded to Betty. On August 4, 1971, Betty passed away.

Within two months of the mother's death, petitioners filed the instant petition for adoption, which was granted in November 1971. Respondent testified that he learned of the adoption the following year and retained counsel for the purpose of having the decree vacated. In February 1974, respondent was allowed to examine the case file and in March 1975, he filed a petition to set aside the adoption. The trial court denied the petition in January 1976. However, on appeal to this court the judgment of the trial court was reversed and remanded because of deficiencies in the notice given the natural father. (Markham v. Markham (1977), 50 Ill. App.3d 1061, 365 N.E.2d 308.) In December 1978, the petition for adoption was denied. Petitioners then filed the instant petition for permanent custody and control of the minor children. In November 1979, this second petition was also denied. Petitioners now appeal each of the trial court's judgments.

Our initial inquiry is the propriety of the denial of the petition for adoption. Section 8 of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1510) provides that, where parental or other required consent to an adoption is not obtained, the person whose consent would otherwise be required must be found an unfit person before a minor's adoption may be ordered pursuant to section 14 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 1517). The evidentiary standard in cases of parental unfitness is proof by clear and convincing evidence (In re Bennett (1980), 80 Ill. App.3d 207, 399 N.E.2d 735; In re Gates (1978), 57 Ill. App.3d 844, 373 N.E.2d 568; In re Massey (1976), 35 Ill. App.3d 518, 341 N.E.2d 405), and the trial court's decision should not be disturbed on appeal unless contrary to the manifest weight of the evidence. In re Bennett; In re Gates; In re Ice (1976), 35 Ill. App.3d 783, 342 N.E.2d 460.

Petitioners contend that respondent is an unfit person as a matter of law under section 1(D) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 (D)), which provides, inter alia:

"b. `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:

(a) Abandonment of the child;

(b) Failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare;

(c) Desertion of the child for more than 3 months next preceding the commencement of the adoption proceeding."

• 1 Turning first to their contention of abandonment, we note that the term connotes conduct on the part of a parent which demonstrates a settled purpose to forego all parental duties and to relinquish all parental claims to children. (In re Sanders (1979), 77 Ill. App.3d 78, 395 N.E.2d 1228; In re Adoption of Rich (1979), 51 Ill. App.3d 174, 366 N.E.2d 575; In re Adoption of Vienup (1976), 37 Ill. App.3d 217, 345 N.E.2d 742.) Petitioners claim respondent abandoned the children at the time of the September 1969 separation and thereafter failed to provide for their support and maintenance, nor contact the children in any fashion. Respondent claims he never intended to abandon his children and that he did provide some support, in a financially troubled period in his life, until he was unable to see his children. Additional factors include the fact that his wife and petitioners had custody of the children and hostility between the parties ran so deep that one petitioner called the police and struck respondent to prevent him from attending his late wife's visitation and funeral. Respondent testified that he attempted to see his children and sought aid from at least three different agencies. He gave the children clothing through a relative, who along with other relatives and a neighbor, gave him pictures of the children, which he has retained. Without further detailing the extensive testimony in this cause, our review of the record indicates the trial court's finding that no abandonment here occurred is not contrary to the manifest weight of the evidence.

Turning next to the contention of failure to maintain a reasonable degree of interest, concern, or responsibility, petitioners advance substantially the same arguments as in the previous issue. While respondent's conduct relative to these factors has hardly been exemplary, we do not find the trial court's holding on this issue to be contrary to the manifest weight of the evidence.

• 2 Turning finally to the contention of desertion we note that the term connotes any conduct on the part of a parent which indicates an intention to permanently terminate custody over the child but not to relinquish all parental duties and claims. (In re Sanders; In re Adoption of Rich; In re Adoption of Vienup.) During the applicable statutory period, custody of the children was entrusted to their late mother. As petitioners again advance ...


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