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10/31/96 DANIEL REGAN AND KELLY REGAN v. JOSEPH P.

October 31, 1996

DANIEL REGAN AND KELLY REGAN, PLAINTIFFS-APPELLEES,
v.
JOSEPH P., J.E.P., A MINOR, AND ALL WHOM IT MAY CONCERN, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 94 AD 3078. Honorable William R. Penn, Judge, Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published March 7, 1997. Released for Publication April 11, 1997.

Present - Honorable Peg Breslin, Presiding Judge, Honorable William E. Holdridge, Presiding Justice, Honorable Kent Slater, Justice. Honorable P.j., with Breslin, P.j., and Slater, J., concurring.

The opinion of the court was delivered by: Holdridge

OPINION

Defendant, Joseph P., appeals from orders of the circuit court of Will County which found him unfit, terminated his parental rights with respect to his son, J.E.P. (the child), and granted plaintiffs', Daniel Regan and Kelly Regan, f/k/a Kelly P., (the Regans), petition for adoption of the child. On appeal, defendant contends that the circuit court's unfitness finding and termination of his parental rights was against the manifest weight of the evidence. Further, that the circuit court erred in granting the Regans' petition for adoption absent a best interest hearing. For the reasons discussed, we reverse.

FACTS

Defendant and Kelly were married in June 1987. The child was born on May 19, 1989, and has remained in Kelly's custody since birth. Defendant and Kelly separated in March 1991, and a petition for dissolution of marriage was filed by Kelly on March 18, 1991. A judgment for dissolution of the parties' marriage was entered on February 27, 1992, and defendant was ordered, inter alia, to pay child support.

On August 14, 1992, an ex parte order of protection was entered, prohibiting defendant's visitation with the child. The order was predicated upon his intoxication and violence toward Kelly during a scheduled visit, and was effective until October 22, 1992. The order thereafter was modified to permit supervised visitation, and ultimately extended to February 26, 1993.

On February 26, 1993, a plenary order of protection was issued. The order provided defendant with "no visitation," and was predicated upon his intoxication at the time of an initiated visit. This order expired on September 1, 1994.

On March 8, 1994, the Regans filed a petition for adoption seeking to adopt the child. Personal service was unsuccessful and original service was by publication, with defendant first becoming aware of the adoption on July 28, 1994. In October 1994, the Regans amended the petition for adoption, alleging defendant unfit, and seeking termination of his parental rights.

In October 1994, a fitness hearing was held, and on November 2, 1994, the circuit court entered its final order determining that, based upon four conditions found in section 1D of the Illinois Adoption Act (the Act) (750 ILCS 50/1D (West 1994)), the Regans had established by clear and convincing evidence that defendant was unfit and terminated his parental rights.

On November 3, 1994, without holding a best interest hearing, the circuit court entered a minute order granting the Regans' petition for adoption. On December 12, 1994, the circuit court denied defendant's motion for reconsideration, and denied his motion to have the November 2, 1994, order made final and appealable.

In August 1995, the circuit court entered an order ruling that upon the execution of its November 2, 1994, order which found defendant unfit and terminated his parental rights, defendant had no further interest in the matter. The parties maintain that this August 1995 order in effect made the November ...


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