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Perkins v. Breitbarth

OPINION FILED AUGUST 14, 1981.

KAREN R. PERKINS ET AL., PETITIONERS-APPELLEES,

v.

MELISSA MARIE BREITBARTH ET AL., RESPONDENTS-APPELLANTS. — DANIEL HOFER, PETITIONER-APPELLANT,

v.

KAREN BREITBARTH PERKINS ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Kankakee County; the Hon. WAYNE P. DYER, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 9, 1981.

Daniel Hofer appeals from the judgment of the Circuit Court of Kankakee County in these proceedings, which judgment in favor of the adoption petitioners David and Karen Perkins terminated Mr. Hofer's parental rights with respect to the minor, Melissa Maria Breitbarth. On appeal he asserts that the court's finding of his unfitness, specifically his failure to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the minor child, was contrary to the manifest weight of the evidence.

The record reveals that Melissa Maria Breitbarth was born on February 21, 1976, in Kankakee. The natural father of the child was Daniel Hofer, and the natural mother was Karen Breitbarth, now Karen Perkins. At the time of the birth, both parents were 16 years old and unmarried. After the birth of Melissa, her mother continued to reside with her own parents. From the birth in February until October 1976, Daniel Hofer saw the child about three times per week. During that early period he also gave Karen cash for expenses. At trial, Mr. Hofer also testified to paying between $150-$200 toward the medical bills from the birth. Then, in October 1976, Karen and Daniel moved into an apartment together. The cohabitation ended three months later when Karen "threw him out," because he was "never around much" and because he had struck her in the presence of the child. Early in 1977, while in the military service, Daniel Hofer sent Karen $100. However, during most of 1977, Daniel Hofer did not visit Melissa, as Karen had informed him that while he could visit Melissa, she, Karen, wanted nothing more to do with him. In September 1977, according to testimony, Karen would occasionally bring the child to Daniel Hofer's sister's house, where he saw her.

In the fall of 1977, Karen and Melissa moved back in with her parents. Daniel Hofer would occasionally call there and ask to visit with Melissa. When such visitation would take place, however, according to Karen, Daniel Hofer would also make advances toward her. In September 1978, Karen moved into an apartment of her own. Daniel Hofer did not come to visit or call, nor did he send anything to either Karen or Melissa. Since that time, he has not visited or called, nor provided support for the child.

Other evidence indicated that during the years following 1976, Daniel Hofer held a variety of jobs and made respectable earnings. During 1977 through 1979, a time in which he provided no support, he had a take home pay of approximately $187 per week. The evidence at trial also indicated that Karen and her parents paid the majority of the expenses for the birth.

Based upon the evidence in the record, the trial court made several findings of fact. The court found that Daniel Hofer had made only token contributions toward the medical expenses of the birth. It also found that only minimal support payments were made during the early years of 1976 and 1977, and that thereafter no contributions were made by Daniel Hofer toward the support of the child. The lack of contributing support occurred despite a financial situation which would have allowed Mr. Hofer to make such contributions toward the support of his child. In addition to these findings unfavorable to Daniel Hofer, however, the court also made findings favorable to him. The court found that he had made reasonable efforts to visit the child and that, to a considerable extent, his efforts to visit the child had been frustrated by lack of cooperation from the child's mother. Similarly, the court found that his efforts to show attention by cards or gifts, while not overpowering, also suffered from a lack of cooperation by the child's mother. It is also noted that Mr. Hofer filed two petitions seeking visitation rights with his daughter, the second of which was considered by the trial court along with the adoption petition, and was denied.

The trial court, in rendering its judgment in the proceedings, noted that the crucial issue was whether Daniel Hofer had failed to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare. (Ill. Rev. Stat. 1977, ch. 40, par. 1501(D)(b).) In resolving that issue, the court determined that despite Mr. Hofer's demonstrated interest and concern in the child, as evidenced by his attempts to visit the child, nevertheless, his failure to provide any support for the child, for a period of two years when he was financially capable of providing such support, was a sufficient basis upon which to find him unfit as a parent.

Accordingly, on the basis of his lack of support during that time, the court adjudged Mr. Hofer unfit and granted David and Karen Perkins the adoption, thus terminating all rights that Mr. Hofer might have, as a parent, in the minor child. Mr. Hofer appeals from the judgment and argues that the court's decision as to his unfitness is contrary to the manifest weight of the evidence.

• 1 The rules regarding adoption cases of this nature are well settled. As stated in In re Woods (1977), 54 Ill. App.3d 729, 733-34, 369 N.E.2d 1356:

"It is well recognized that the natural parent has superior rights to the custody of his child as against others. [Citations.] This inherent right therefore should not be abrogated absent compelling reasons. [Citation.] One of these reasons is parental `unfitness' demonstrated by a parent's `[f]ailure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare.' [Citation.] The State must meet this burden by clear and convincing evidence. [Citation.] It has also been recognized that cases of this nature are sui generis; each must be decided in accordance with the particular facts of each individual and varying situation. [Citation.] Hence, in matters involving children and particularly in instances such as the one before us dealing with the permanent severance of parental rights, the facts must be reviewed with careful scrutiny." (See also Blakey v. Blakey (1979), 72 Ill. App.3d 946, 947, 391 N.E.2d 222.)

While reviewing courts> will not substitute their judgment for those of the trial court when the court's judgment is supported clearly in the record, reversal is required where the trial court's decision is contrary to the manifest weight of the evidence. (Peyla v. Martin (1976), 40 Ill. App.3d 373, 352 N.E.2d 407.) Emphasis is placed upon the heavy burden of proof in such matters, wherein unfitness must be shown by clear and convincing evidence. (Blakey v. Blakey (1979), 72 Ill. App.3d 946, 947; In re Barber (1977), 55 Ill. App.3d 587, 590, 371 N.E.2d 299.) As the court noted in Blakey, "[t]he reason is obvious. Termination of parental rights is as drastic and permanent an action as can be taken." 72 Ill. App.3d 946, 947.

• 2 The issue in this appeal is whether the clear and convincing evidence in the record established Daniel Hofer's failure to maintain a reasonable degree of interest, concern or responsibility in his daughter Melissa, and thereby established his unfitness as a father. Only after this finding is established can the court consider the best interests of the child. Freeman v. Settle (1979), 75 Ill. App.3d 799, 802, 393 N.E.2d 1385; In re Adoption of Burton (1976), 43 Ill. App.3d 294, 301, 356 N.E.2d 1279.

While each adoption case, as indicated above, must be considered on its own individual facts and circumstances, nevertheless, the cases are helpful in setting forth important considerations which need be applied. In Peyla v. Martin, a father was adjudged by the trial court to be unfit, based upon abandonment and upon a failure to maintain a reasonable degree of interest, concern or responsibility. In that case, the father, a parolee, had given no support for the child for a period of 15 months and had not visited the child. The appellate court, in reversing the finding of unfitness, found it important that the father's efforts to visit the child had been frustrated by his circumstances. The court also found it important to consider, on the issue of lack of financial support, that the father was never ordered to pay support, that he was not in a financial position to give support, and that his meager efforts to support were refused by the child's mother. (40 Ill. App.3d 373, 377-78.) In Blakey v. Blakey, the court, in affirming a denial of an adoption petition, also indicated that lack of a support order, coupled with a failure by the mother to request support, were important considerations in drawing conclusions from a father's failure to provide ...


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