APPEAL from the Circuit Court of Cook County; the Hon.
MARGARET G. O'MALLEY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ After a bench trial, respondent, the natural father of Leon Curtis Garrison, a minor (Leon), appeals from an order finding that he was unfit by reason of abandonment to have the care and custody of Leon and granting the amended petition of petitioners for the adoption of Leon. He contends that (1) there was a failure to prove his unfitness by clear and convincing evidence; and (2) the trial court erred in applying the Dead Man's Act to exclude evidence of respondent's fitness.
The record discloses that respondent and petitioner Kathleen Estes were the natural parents of Leon, whose custody was awarded to Mrs. Estes in their 1974 divorce proceeding. Leon lived with his mother after the decree and continued living with her following her marriage to petitioner Doyle Estes, Jr. (hereafter petitioner) *fn1; that while he and Kathleen Estes were working, Leon was left with his paternal grandmother, Rose Garrison; and that respondent did not visit Leon, provide any support, or send any gifts or cards to him except for a card and photograph of respondent's daughter by his second marriage. He also stated that he and Kathleen Estes had a joint checking account which was managed by her, and he never reconciled the account or wrote checks on it. Petitioner admitted that respondent could have visited Leon while he (petitioner) was at work, and he acknowledged that Leon had several of the presents described by respondent as gifts left with Rose Garrison for Leon.
Respondent testified that he visited the child sometimes on a weekly basis and was involved with him in a variety of activities such as trips to the park or out to eat; that he took the child on an all-day outing to Rock Falls, Illinois, in July 1974; that he paid $25 weekly in cash for child support pursuant to the divorce decree until the end of September 1974 and, thereafter, by check until January 1975, when he became unemployed; that after he was reemployed, in August 1975, his efforts to resume payments were rejected, and he then put the payments in a checking account and later in a credit union; that he attempted, without success, to arrange visitation with Leon but was able, however, to visit him every two weeks at Rose Garrison's home until August 1975; that in the summer of 1977, plans had been made for Leon to visit him in St. Louis, but they were cancelled by his mother at the last moment; that he telephoned Leon on the average of every four to six weeks at Mrs. Garrison's home, and when Leon was ill for two weeks in 1976 he called every day; that he sent cards and letters to Leon through Mrs. Garrison every holiday, and he continues to send gifts at various times.
Rose Garrison testified that she babysat for Leon on a regular basis while Kathleen Estes worked; that respondent visited the boy regularly at her home both before and after he moved to St. Louis; that she knew plans had been made for Leon to visit respondent in St. Louis; that respondent made many telephone calls to Leon — particularly during a 2-week illness when calls were made daily; and that respondent sent gifts to the child through her.
Respondent also offered in evidence certain conversations purportedly relevant to the denial of his visitation rights and the refusal of child-support payments by Kathleen Estes. The statements were offered in defense of the allegation of abandonment but were ruled inadmissible under the Dead Man's Act. (Ill. Rev. Stat. 1979, ch. 51, par. 2.) The trial court found respondent unfit by reason of abandonment to assume care and custody of the child and entered a judgment of adoption in favor of petitioner.
Respondent first contends that he was not proved to be unfit as that term is defined in the Illinois Adoption Act (the Act). That act provides in relevant part:
"Except as hereinafter provided in this Section, consents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court to be an unfit person as defined in Section 1 of this Act,
or the parent of an adult sought to be adopted * * *." (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-8.)
The Act defines "unfit person" as follows:
"When used in this Act, unless the context otherwise requires:
D. `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 ...