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12/06/88 In Re Adoption of Thomas G. Scraggs (Dwight Scraggs

December 6, 1988

IN RE ADOPTION OF THOMAS G. SCRAGGS (DWIGHT SCRAGGS,


SUPREME COURT OF ILLINOIS

Appellant)

532 N.E.2d 244, 125 Ill. 2d 382, 126 Ill. Dec. 559 1988.IL.1759

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Putnam County, the Hon. Robert J. Cashen, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Dwight Scraggs appeals from a preliminary injunction order of the circuit court of Putnam County prohibiting him from having any contact with his son, Thomas G. Scraggs, prior to a hearing on a motion to terminate his rights as the natural father held pursuant to the Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1516(d)). In a Rule 23 order (107 Ill. 2d R. 23), the appellate court, with one Justice Dissenting, affirmed the issuance of the injunction. (165 Ill. App. 3d 1163 (unpublished order).) We granted leave to appeal (107 Ill. 2d R. 315).

On November 25, 1975, Linda Jean Burden and Dwight Scraggs were married in Illinois. The couple subsequently moved to West Virginia, the home State of Dwight. One child, Thomas G. Scraggs, was born of the marriage on October 1, 1976. Before the birth of the child, Linda and Dwight separated and Linda moved back to Illinois. On June 1, 1977, the marriage was dissolved by a judgment entered in the circuit court of Marshall County. The divorce decree granted custody of the child to the mother, with right of reasonable visitation being granted to the father. The father was also directed to pay $15-per-week child support.

Both prior to and after the divorce Linda placed the child for various periods of time with her brother and his wife, Kelly R. Burden and Janet L. Burden, the petitioners below. Since approximately March 1, 1979, the child has been in their permanent custody. On January 26, 1987, they filed an adoption petition in the circuit court of Putnam County. The petition alleged that both of the child's natural parents were unfit parents and that they had abandoned the child. The Burdens also filed a motion for a temporary restraining order to prohibit the natural father from having any contact with the child. The motion alleged that to allow Dwight Scraggs to visit the minor child would disrupt the stability of the Burden family and would be seriously detrimental to the safety, mental well-being, stability, and health of the child. The court granted the restraining order and extended it on numerous occasions until service could be obtained on Dwight Scraggs and a full hearing held on the motion.

The natural mother, Linda, executed a consent to the adoption on February 3. On February 11, Dwight Scraggs filed in Marshall County a petition for rule to show cause in the divorce proceeding why Linda should not be held in contempt for failure to allow visitation and a petition to modify the divorce decree to allow visitation in West Virginia during the child's summer vacations. The Judge presiding over the adoption in Putnam County also presided over the divorce matter in Marshall County, and in early March he stayed the divorce case until resolution of the adoption proceeding. (Putnam and Marshall Counties are both in the Tenth Judicial Circuit.) Service on Scraggs was had in West Virginia and a hearing on the preliminary injunction was held on March 31, 1987.

Testifying at the hearing were the natural parents, the petitioners, the child, and a sister of both the natural mother and one of the petitioners. Evidence established that since the divorce, Dwight Scraggs has lived in West Virginia and has remarried. He has paid only $150 in child support and has had limited contact with Thomas. The last time he visited with the child was in April of 1979, when he took the child to West Virginia for two weeks. The following year, the Burdens contacted him and said that they would like to adopt Thomas. Apparently, three days later Dwight showed up at their house and asked if he could take the child to dinner. He was not given an answer and was told to come back later. That evening he returned but was not allowed to see Thomas. Dwight contacted an attorney and was told that he may be able to prevent the adoption though he most likely could not obtain custody of the child. The Burdens then decided that at that time they would not further pursue an adoption, and that their chances to adopt would be better at a later date. Since 1980, Dwight has not gone to visit the child and has sent no cards, letters, or gifts. Dwight claims to have called at least once a year but that he was not allowed to talk to Thomas. He also claims he did not attempt to write because he did not believe that the child would receive the correspondence.

The petitioners testified that since the incident in 1980, they did not hear from Dwight until January 19, 1987, when he telephoned them requesting to talk to Thomas. The request was denied and after the call they decided to file the petition for adoption. At the time of the hearing Thomas was 10 years old. He testified that he did not want to visit with Dwight and that he was hurt that he had never called. He also said he was scared that Dwight might take him away from his family. The trial court found that, due to the age of the child and the length of the separation, irreparable harm would be caused to the child and nothing would be gained if visitation were allowed. The court granted the preliminary injunction until a hearing on the fitness of the natural father could be held. The appellate court affirmed, holding that the injunction was necessary to preserve the "status quo" and that it served the best interests of the child.

The first issue presented on appeal is whether an injunctive action is appropriate in a proceeding under the Adoption Act. Section 20 of the Adoption Act provides:

"The provisions of the Civil Practice Law and all existing and future amendments of that Law and the Supreme Court Rules now or hereafter adopted in relation to that Law shall apply to all adoption proceedings ...


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