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12/29/94 ADOPTION A.S.V. v. W.V.

December 29, 1994

IN RE ADOPTION OF A.S.V., A MINOR; (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT AND SEPARATE APPELLEE,
v.
W.V., RESPONDENT-APPELLEE AND SEPARATE APPELLANT) (C.F. AND L.F., APPELLANTS AND SEPARATE APPELLEES).



Appeal from the Circuit Court of Jackson County. No. 93-J-13. Honorable E. Dan Kimmel, Judge, presiding.

The Honorable Justice Lewis delivered the opinion of the court: Maag, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Lewis

JUSTICE LEWIS delivered the opinion of the court:

A.S.V. was born on July 31, 1992. Her natural mother, M.Y., was never married to her natural father, W.V., the respondent herein. A.S.V.'s natural mother executed a final and irrevocable surrender of her parental rights to A.S.V. on August 4, 1992. On January 28, 1993, the State filed a petition for adjudication and termination of respondent's parental rights to A.S.V. On September 27, 1993, the trial court entered an order denying the petition for termination of respondent's parental rights. The State appeals from that order. Subsequently, the State filed a supplemental petition charging respondent with neglect as to A.S.V. The trial court evidently reconsidered its earlier decision and granted the supplemental petition. Respondent appeals from the order finding neglect.

The parties agree that the first issue before this court is whether the trial court's ruling of September 27, 1993, denying the State's petition for termination of respondent's parental rights, is against the manifest weight of the evidence. We find that the trial court's ruling is against the manifest weight of the evidence and reverse.

In order to aid the reader's understanding, we note that A.S.V. has never been in respondent's custody, due to the trial court's grant of the State's supplemental petition alleging that respondent had neglected A.S.V. Our ruling that the trial court erred in denying the original petition to terminate respondent's parental rights makes it unnecessary for us to consider in this consolidated appeal the issues raised by respondent as to the grant of the supplemental petition.

I. FACTS

The State's petition to terminate respondent's parental rights, filed January 28, 1993, alleged that the natural mother had irrevocably surrendered her parental rights to A.S.V. on August 4, 1992, and that the natural mother had named respondent as A.S.V.'s natural father in an affidavit of parentage on the same date. The petition to terminate respondent's parental rights alleged that respondent failed to demonstrate a reasonable degree of interest, concern, or responsibility as to the welfare of A.S.V. during the first 30 days of her life or thereafter, that respondent was an unfit parent within the meaning of the Adoption Act (750 ILCS 50/1 et seq. (West 1992)), that A.S.V. was without a parent or legal guardian, and that respondent had "evidenced an intent to forego his parental rights." The State requested, inter alia, that the trial court declare respondent an unfit parent and terminate all of his residual parental rights to A.S.V.

On February 22, 1993, respondent's attorney filed an entry of appearance in the case. On February 23, 1993, respondent appeared in court and was advised of his rights. The case was continued for 60 days for the parties to conduct discovery. Respondent, who was present in court without his attorney, initially argued that a 30-day continuance would be more fair, in that "two months is a real long time and it gives the foster parents an unfair advantage in bonding with the child." The trial court explained that a certain amount of discovery was necessary to prepare the case for trial. Respondent then agreed to the 60-day continuance. At the conclusion of the proceedings, respondent asked if it was possible to have contact with A.S.V. on that date or anytime in the future. The court denied respondent's request. Respondent did not further object or request visitation during the pendency of the termination proceedings.

On May 4, 1993, the trial court conducted an evidentiary hearing on the State's motion to dismiss respondent from the case, which motion alleged that respondent "has denied paternity herein on numerous occasions." The State also requested that the court order blood testing of A.S.V., the natural mother, and respondent in order to determine A.S.V.'s parentage. Respondent saw A.S.V. for the first time in the courtroom at the May 4, 1993, hearing. Respondent testified that he believed A.S.V. to be his child because she looks like respondent and his son, W.V., Jr. Respondent admitted that he had not been convinced that he was A.S.V.'s father until he saw A.S.V. that day, and that he had expressed his doubts about his paternity to Department of Children and Family Services (DCFS) case workers from the time A.S.V. was born until that day.

Respondent admitted that M.Y. told him no later than August 4, 1992, that he was A.S.V.'s father, that M.Y. asked him for assistancewith the child, but that he refused because he did not believe the child to be his. Respondent admitted that he never took any action to obtain a blood test or to obtain any other information concerning A.S.V.'s paternity. Respondent testified that he did not know where A.S.V. was or how to go about obtaining a paternity blood test. "When I asked the DCFS workers about it, they kind of nonchalantly dismissed it." On cross-examination, respondent stated that he did not object to having a paternity blood test conducted. The parties stipulated that respondent and M.Y. had never married each other. The trial court ordered paternity blood testing.

On July 23, 1993, the court conducted an evidentiary hearing on the State's petition to terminate respondent's parental rights. The State withdrew its motion to dismiss respondent because the paternity blood testing indicated that there was a statistical probability that respondent is the father of A.S.V.

The evidence presented at the July 23, 1993, hearing is as follows. Respondent lives in Chicago. He was at least 24 years old at the time of the hearing. He is a high school graduate and has completed two years of college. He had been "fully employed" for at least five years before A.S.V.'s birth. At the time of the May 1993 hearing, respondent testified that he made about $650 to $700 per month. At the time of A.S.V.'s birth, respondent did not own a car, but his mother and brother each owned vehicles, although each of those vehicles was in poor condition.

Respondent and M.Y. met in 1987. Three children were born to respondent and M.Y. in three successive years before A.S.V.'s birth. W.V., Jr., the oldest, lives with respondent in Chicago, together with respondent's mother and his brother. The two other children, B.V. and A.V., live with M.Y. in Dallas, Texas. Respondent and M.Y. lived together in Chicago for about two years, but M.Y. moved to Dallas, Texas, before the birth of their third child in 1991. In late November 1991, respondent and M.Y.'s relationship was turbulent, but both MY. and respondent admitted that they had sexual intercourse at least once during that time period. Respondent testified that he did not know that M.Y. was pregnant with A.S.V. until May 1992, when he picked her up at the bus station in Chicago and saw that she was obviously pregnant. She told him not to worry about it because the baby was not his. He did not ask her any further questions about the baby's father. M.Y. had previously told respondent that she had a boyfriend in ...


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