Appeal from the Circuit Court of McHenry County. No. 96--AD--73 Honorable Sharon L. Prather, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, M.R.G., appeals from the June 26, 1998, order of the circuit court of McHenry County finding the defendant, M.C., who is the biological father of G.L.G., a minor, not unfit. The plaintiff also appeals from the trial court's January 11, 1999, order dismissing her adoption petition and ruling that she lacked standing to proceed to a custody hearing pursuant to section 20 of the Adoption Act after the adoption petition had been denied (750 ILCS 50/20 (West 1994)). For the reasons that follow, we reverse the trial court's order of June 26, 1998, vacate the trial court's January 11, 1999, order, and remand the cause for further proceedings on the adoption petition.
On October 28, 1996, the plaintiff filed her petition to "adopt related child." In her petition, the plaintiff alleged that the child to be adopted, G.L.G., was born on July 23, 1995, to Gretchen G., who had died on October 17, 1996. The plaintiff was Gretchen's sister. The plaintiff alleged that the defendant had been adjudicated the biological father of G.L.G. by default on January 5, 1996, but that he had failed to show a reasonable degree of interest in G.L.G. within 30 days of her birth. The plaintiff also alleged that the defendant had failed and refused to contribute toward the support of G.L.G. and that he had no contacts with G.L.G. for over 1½ years. The plaintiff alleged that it was in the best interest of G.L.G. that the plaintiff adopt G.L.G. As amended, the petition further alleged that the defendant was an unfit parent because of his abandonment of G.L.G. and because of his desertion of G.L.G. for more than three months next preceding the filing of the adoption petition.
The plaintiff attached as an exhibit to her petition a copy of the default parentage order for support entered by the circuit court of McHenry County on January 5, 1996, which ordered the defendant to pay $100 per month in current child support for G.L.G. to the Illinois Department of Public Aid (IDPA). Also attached was a copy of the October 18, 1996, order of the circuit court of McHenry County appointing the plaintiff as temporary guardian of G.L.G.
At a hearing on October 31, 1996, the trial court entered an order appointing Camille Goodwin guardian ad litem of G.L.G. On that same day, the defendant entered his pro se appearance.
On November 14, 1996, the defendant, now represented by counsel, filed his "motion to dismiss guardianship; motion to recall warrant and set aside finding of contempt; and motion to dismiss the related adoption petition or in the alternative appoint counsel and place the minor in defendant's custody." In his motion to dismiss the related adoption petition, the defendant alleged that Gretchen and the plaintiff were not sisters and that they had different mothers and fathers. The defendant further alleged that the adoption petition should be dismissed because a petition to adopt a non-related child requires that the child be "available for adoption." The defendant also alleged that the plaintiff did not have standing to bring a custody action because the defendant had never consented to her having physical custody of G.L.G. and that the plaintiff had obtained custody only through fortuitous circumstances.
On November 27, 1996, the plaintiff filed her motion to strike the defendant's motion to dismiss filed on November 14, 1996. In her motion, the plaintiff alleged that Gretchen and the plaintiff were sisters related by blood. The plaintiff attached as exhibits to her motion copies of the birth certificates of the plaintiff and Gretchen. The trial court granted the plaintiff's motion to strike on March 14, 1997.
On December 20, 1996, the defendant filed his response to the petition for adoption, denying all material allegations. On that same day, the defendant also filed his pro se motion for visitation with G.L.G.
On April 11, 1997, the plaintiff filed a motion for blood tests, alleging that information had come to light casting doubt on the identity of the biological father and that DNA testing should be ordered. On May 2, 1997, the trial court entered an order compelling the defendant to submit to blood tests for DNA analysis.
On July 10, 1997, the defendant filed his motion to vacate guardianship and petition for custody. In his motion, the defendant alleged that he had been traveling four hours each way to visit with G.L.G. and that he had acted in her best interest in attempting a gradual transition from the guardian's care to his care. He also alleged that he had been "deterred from establishing a bond with his daughter" under the plaintiff's guardianship.
Following a hearing on July 18, 1997, the trial court entered an order establishing the paternity of G.L.G., noting the defendant's admission of paternity and the DNA testing. The record reflects that the DNA parentage test results indicated that the probability of the defendant's paternity of G.L.G. was 99.96%.
On November 12, 1997, following a hearing, the trial court entered an order vacating the temporary guardianship order of October 18, 1996. The trial court further ordered that the plaintiff "return" G.L.G. to the defendant.
The trial court conducted a fitness hearing on May 28, 1998, in accordance with section 8(a)(1) of the Adoption Act (750 ILCS 50/8(a)(1) (West 1994)). At the hearing, Richard Button testified on behalf of the plaintiff. Button testified that Gretchen was his fiancé. They met in 1995 before G.L.G. was born and then began dating on August 9, 1995. They then resided together, with G.L.G., in Woodstock from late in October or early in November 1995 until Gretchen passed away on October 17, 1996. During that time period, they moved to three different residences.
Button testified that Gretchen had taken G.L.G. to visit the defendant in Keithsburg on one occasion but the defendant never visited G.L.G. in Woodstock. The defendant never telephoned or sent cards or letters during the time that Button resided with Gretchen, although she sent cards and telephoned the defendant. The defendant never provided any financial support for G.L.G. during that time. The defendant was aware of Gretchen's address because Gretchen had given it to him and because Gretchen had instituted court proceedings against the defendant for child support.
Amy Carlson also testified on behalf of the plaintiff. Carlson was a friend of Gretchen and lived with her in Keithsburg from August 1994 through January 1995. Gretchen and the defendant began seeing each other at the end of September or beginning of October 1994. Gretchen discovered that she was pregnant with G.L.G. in the middle of October 1994. Gretchen and the defendant continued dating until January 1995, at which time Gretchen moved to Woodstock. Carlson went with Gretchen to her doctor appointments during the pregnancy and was with her in the hospital after G.L.G. was born. The defendant did not attend any of these appointments and was not present for the birth.
Carlson drove Gretchen and G.L.G. to Keithsburg at the end of September 1995. Carlson took them to the house where the defendant was living at that time. No advance arrangements had been made for the visitation, which was a surprise. They visited for approximately three to four hours. During the visitation, the defendant held, fed, and played with G.L.G. There were no further visits between the defendant and G.L.G.
The plaintiff testified on her own behalf. She testified that she resided in Hebron and that Gretchen was her sister. She had known the defendant since September 1994, when Gretchen introduced her to him as her boyfriend. Prior to Gretchen's death, the plaintiff had seen him approximately three times.
The plaintiff testified that she spoke with the defendant's sister-in-law, Nila C., on the day that Gretchen died. They did not discuss the defendant. The following day, the plaintiff ...