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August 29, 1997


Appeal from Circuit Court of Mercer County. No. 95D20. Honorable James J. Mesich, Judge Presiding.

Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Concur. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

On May 31, 1995, Chrystal Millage filed a petition to modify custody in these proceedings, in which Eric and Cara Rudsell had previously been divorced and the custody of their daughter, Elizabeth, had been awarded to Cara. The circuit court first found that Chrystal and her husband William had standing pursuant to section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601(b)(2) (West 1994)), and then on January 14, 1997, modified its previous order and awarded custody of Elizabeth to them. Cara appeals. We affirm.

Cara and Eric Rudsell were married July 6, 1990. Two children were born during the marriage, Heather, August 1, 1991, and Elizabeth, January 20, 1993. In March 1992, Heather entered the hospital with bronchial pneumonia. After her release, Cara turned Heather over to Cara's parents, Louie and Judith Wood, because Cara did nothave heat in her home. Cara took Heather back for a time, but when Heather reentered the hospital, Cara again turned Heather over to the Woods. Judith testified that at first Cara visited Heather every Sunday, but visitation fell off to maybe once a month in the wintertime. Sometimes Cara took Heather for periods of several weeks, but then would call and ask the Woods to pick Heather up, without giving any explanation. Heather remained with the Woods until April 1995.

Cara met William and Chrystal Millage in 1991 through Eric, who was a friend of the Millages' son. Eric lived with the Millages in early 1992, and Chrystal testified she fed Eric and Cara "most every night" while Cara was pregnant. Elizabeth was born by cesarean section. Before the birth, Cara asked Chrystal to take care of the baby for several weeks while she recuperated, and Chrystal agreed. Chrystal testified she offered to let Cara stay with them as well, but Cara declined. Chrystal testified that, when Elizabeth was two weeks old, Cara took her for an overnight but brought her back the next day and said "You can have this damn brat from hell, she bawled all night, the next thing I had her, shaking her." Cara denied that.

Elizabeth remained with the Millages after Cara had recovered from the operation. Cara testified she did not retrieve Elizabeth because Eric had become violent and abusive. Eric told Cara to choose between him and Elizabeth. That is also why Cara had left Heather with the Woods. Cara stated Eric was not Elizabeth's natural father, and he resented the child's presence in the home. Eric later told Chrystal he might be the child's natural father, and the trial court decided, for purposes of these proceedings, that it would assume Eric is Elizabeth's natural father.

In the months after Elizabeth was born, Cara visited the Millages two or three times per week and occasionally took Elizabeth to the Woods' home. Judith testified she saw Elizabeth with Cara every weekend early in the year she was born, but as summer approached, the visits decreased to around two per month. Chrystal likewise testified Cara's visits became less frequent, with periods of over a month between visits at one point. Cara took Elizabeth and stayed with the Woods for almost a week in September 1993, perhaps also in September 1994.

In February 1994, Cara and Eric took Elizabeth to a bar in the evening. Judy Stocks, an acquaintance of Eric and Cara, was present. She testified Cara arrived between 7:30 and 8 p.m. and stayed until 10 p.m. Stocks testified Elizabeth's clothing and face were dirty. Stocks called William Millage, who came and took Elizabeth home. Stocks asked Cara why Elizabeth was still with the Millages, and Carareplied the trailer needed to be cleaned up, the power was off, and it was too cold. Stocks testified she asked Cara, "Why didn't she go and get her or was she just going to give Elizabeth to them?" According to Stocks, Cara replied, "What difference does it make? They already have her." Cara testified she would have to "figure something out" before Elizabeth started school.

The Millages took Elizabeth on vacations out of state, with Cara's permission. Initially, Cara took Elizabeth to the doctor as necessary. Later Chrystal took Elizabeth to the doctor, using public aid Cara received for Elizabeth's health care. Chrystal asked Cara's permission before taking Elizabeth to the doctor. Cara provided no financial support for Elizabeth, other than one bag of old clothing, and food stamps until Elizabeth was one year old.

Cara testified she told Chrystal several times she was going to get Elizabeth when she was ready, and Chrystal said that's fine, you can come get her when you want to. Cara said she was gullible to believe that. Judith Holmgren prepared a home study of Cara, the Wood household, and the Millage household on behalf of Lutheran Social Services. The Millages stated they did not intend to seek custody when Elizabeth first entered their home. However, Chrystal told Holmgren that they had since bonded with the child and wanted to keep her. William told Holmgren that Cara and the Woods would get the child "over my dead body." Carolyn Geertz, Chrystal's mother, testified the child related to Chrystal as if Chrystal were her mother.

According to Holmgren's report, the Millages had had prior experience with foster children. Chrystal's parents had two foster children who were returned to their biological parents. Chrystal wrote a letter to the biological parents stating she would help the mother, if Chrystal would be allowed to have some sort of relationship with the children. The two children wound up living with Chrystal for one year. The natural mother visited every other weekend until a social worker convinced the natural mother she should retrieve the children. The children were later returned to foster care, for which the natural mother blamed the Millages. Chrystal told Holmgren the Millages never "went the legal route with Elizabeth" because their experience made them afraid of scaring Cara.

Chrystal testified Cara did not see Elizabeth over Christmas 1994 or on Elizabeth's birthday in January 1995. Cara testified she attempted to contact Elizabeth on her birthday, but the Millages were not home. She testified she gave Elizabeth her birthday and Christmas gifts later in January, when she and Elizabeth visited Cara's parents. According to Chrystal, Cara visited the Millages only five times from January to April 1995. In February 1995, Cara leftEric and moved from the trailer home to a house in Bald Bluff, Illinois, where she began living with a man named Doug Seaton. The Millages testified they found out three weeks later that she had moved, and it was a week after that before they were able to locate her again. Cara testified she did contact the Millages after her move but admitted it was perhaps a month before she did so.

There was testimony Cara did not make any serious effort for the return of Elizabeth in the first two years of Elizabeth's life. Chrystal testified that Cara spoke of taking Elizabeth permanently in the future but never asked for Elizabeth's permanent return. Cara sometimes spoke of giving up custody to Chrystal. Cara testified she tried to get Elizabeth back in February 1995--she told Chrystal she would be back to get her as soon as Cara's plumbing was redone, and Chrystal said that would be fine, but the plumbing was not done when Chrystal's petition to modify was filed. Cara testified she had taken Elizabeth to her home at times, and the Millages would always come get her and say something like they had a birthday party to take her to, and then not bring her back. Cara never asked the Millages for an ...

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