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In Re: the Adoption of H.B., A Minor v. Amy Jo Gillen

September 27, 2012

IN RE: THE ADOPTION OF H.B., A MINOR,
GINA MARIE SHREVE,
PETITIONER-APPELLANT,
v.
AMY JO GILLEN, SAMUEL DOUGLAS BAKER, UNKNOWN FATHER, AND ALL WHOM IT MAY CONCERN,
RESPONDENTS-APPELLEES.



Appeal from Circuit Court of Champaign County) No. 11AD61 Honorable Arnold F. Blockman, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 On July 19, 2011, petitioner, Gina Marie Shreve, filed a petition for adoption of H.B., alleging, in part, respondent mother was unfit. The trial court conducted a fitness hearing in February 2012, and dismissed petitioner's petition with prejudice as to respondent mother. Petitioner appeals, alleging the trial court's determination respondent is fit was against the manifest weight of the evidence. We affirm and remand with directions.

¶ 2 I. BACKGROUND

¶ 3 Respondent, Amy Jo Gillen, is the mother of H.B., a girl. Respondent, Samuel Douglas Baker, is the father. Karen Baker is Samuel's mother and also the mother of petitioner, Gina Marie Shreve. In July 2011, petitioner filed a petition for adoption of H.B. (born September 25, 2001). The petitioner is H.B.'s paternal aunt, who has had temporary joint custody of H.B. along with petitioner's mother, Karen Baker, H.B.'s paternal grandmother, since September 2005. The petition alleged H.B.'s birth mother, Amy Jo Gillen (respondent), was unfit because she (1) abandoned the child (750 ILCS 50/1(D)(a) (West 2010)); (2) failed to maintain a reasonable degree of interest, concern, or responsibility as to the child's welfare (750 ILCS 50/1(D)(b) (West 2010)); (3) deserted the child for more than three months next preceding the filing of the adoption petition (750 ILCS 50/1(D)(c) (West 2010)); (4) substantially neglected the child (750 ILCS 50/1(D)(d) (West 2010)); (5) is depraved by reasons of conviction of three felonies, one of which was within the last five years (750 ILCS 50/1(D)(i) (West 2010)); (6) has been addicted to drugs, not prescribed by a physician, for at least one year immediately prior to the filing of the adoption petition (750 ILCS 50/1(D)(k) (West 2010)); and (7) manifested an intent to forego her parental rights (750 ILCS 50/1(D)(n) (West 2010)). Although he is not a party to this appeal, the petition also alleged respondent father, Samuel Douglas Baker (Samuel), was expected to consent to the adoption of H.B., or alternatively, he or any unknown father would be found unfit. In October 2011, the trial court terminated the parental rights of Samuel and any unknown father. Respondent contested the adoption and the court appointed an attorney to represent her. Petitioner filed an amended petition for adoption which dropped the allegations of unfitness for abandonment and substantial neglect, but proceeded on the five remaining grounds.

¶ 4 In February 2012, the trial court conducted the fitness hearing and the following evidence was presented. In April 2003, respondent and Samuel entered into a joint parenting agreement. Under the agreement, Samuel had custody of H.B.; however, H.B. resided with respondent from June 2003 until May 2004.

¶ 5 On August 4, 2004, H.B.'s paternal grandmother, Karen Baker (Karen), was granted temporary emergency custody of H.B. in Champaign County case No. 03-F-193, following the arrest and incarceration of respondent and Samuel for felony drug charges. On June 3, 2005, due to Karen's potentially serious health issues, petitioner (Karen's daughter) was appointed temporary joint custodian of H.B. Respondent testified she did not receive notice of this modification until after it was filed. She did not file any objections or contest the order; however, she asked the officers at the Indiana jail where she was confined what she could do to respond and was told they did not take anyone to court for out-of-state things such as this (the court allowed this statement for the limited purpose of showing her state of mind). In May 2006, petitioner moved to Illinois to help Karen with H.B., living with them until September 2008, at which point she moved to Champaign until November 2009, while continuing to share custody of H.B. In November 2009, petitioner bought a house in Monticello, Illinois, and H.B. moved in with her permanently.

¶ 6 Respondent admitted she smoked cannabis and did cocaine and ecstasy while pregnant with H.B.; however, once she found out she was pregnant (approximately 2 1/2 months into the pregnancy) she stopped doing drugs. Respondent stipulated to the following convictions: unlawful possession of a controlled substance in 2001 (an Illinois felony); possession of cannabis in 2004 (an Indiana misdemeanor); maintaining a common nuisance (methamphetamine) and possession of methamphetamine in 2004 (both Indiana felonies); unlawful possession of cannabis in 2008 (an Indiana misdemeanor); and maintaining a common nuisance (cannabis) and possession of cannabis with a prior conviction within five years in 2009 (both Indiana felonies). She was sentenced to one year of house arrest and one year and six months of probation on the 2009 convictions. In 2010, while on house arrest, respondent participated in an intensive outpatient drug rehabilitation program. She admitted relapsing and violating her probation in 2011 after testing positive for cocaine and cannabis. Respondent testified she smoked cannabis, but stated the cocaine must have been in the cannabis because she only smoked cannabis. For the last seven months, respondent had been attending weekly Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings which have helped her stay clean.

¶ 7 In 2004, respondent was incarcerated for eight months in Tippecanoe County, Indiana. She was released from jail to a residential drug rehabilitation center in Terre Haute, Indiana, where she resided from January through June 2005. Respondent testified the program was a 90-day program; however, she felt she needed to continue in the program for another month, so she stayed longer.

¶ 8 While at the rehabilitation center, Karen brought H.B. to visit her twice and respondent's mother brought H.B. to visit her once. Respondent also visited with H.B. at her mother's house approximately three times while in the rehabilitation center on weekend passes. Respondent sent H.B. an Easter card to Karen's address in March 2005. Other than the 2005 Easter card, respondent has not sent H.B. any other cards, letters, or gifts. However,she did bring a blanket for H.B. the last time respondent went to Karen's house. Following her release from the rehabilitation center, respondent continued to visit H.B. at respondent's mother's house once or twice per month and she called H.B. two to three times per month. She admitted she has not provided any financial support or items of necessity for H.B. with the exception of approximately 11 outfits for when H.B. would visit respondent's mother's house. Respondent admitted it was wrong not to provide support but testified she did not have any extra money, and the money she was getting from unemployment was being used to support herself and her son.

¶ 9 According to respondent, this weekend visitation schedule continued until early 2007, when Karen informed respondent she could no longer have H.B. on the weekends, and if she wanted to see H.B., respondent would have to go to Karen's; Karen denied telling respondent this. In 2007 or early 2008, respondent tried calling H.B. one to two times per month, many of which went unreturned. Respondent lived in Indiana and testified it is too far to drive to Karen's without knowing whether she would be able to see H.B. Respondent's mother, Carmen Makemson, also testified at first she would call Karen and Karen would accept her calls, but later she would call and leave messages but no one would return her calls. Respondent's sister, Kari Roberts, testified she tried to call H.B. at Karen's house numerous times over the years but her phone calls went unreturned. Finally, around H.B.'s birthday in 2009, Kari texted Karen's cell phone with the following message, "If I don't hear from [H.B.] within the next 24 hours, then I'm going to report her missing." H.B. called Kari back the next day.

¶ 10 Over the summer of 2008 or 2009, respondent visited H.B. at Karen's home twice, attended one of H.B.'s horseback riding lessons, and met H.B. and petitioner at a gas station for a short visit on a fourth occasion. The last visit occurred in April 2009. Neither petitioner nor Karen informed respondent H.B. was living with petitioner; respondent figured this out on her own in either 2008 or 2009, at which time she began calling petitioner's phone to speak with H.B. Respondent was able to speak with H.B. approximately five times per year. On five or six occasions when respondent called, petitioner hung up on her. Carmen (respondent's mother) also testified petitioner hung up on her twice: the first time she hung up immediately and the second time she told her she would have H.B. call her back and then hung up.

¶ 11 Jeffrey Goble, the father of respondent's son, a year older than H.B., testified he overheard three phone calls between respondent and Karen and respondent and petitioner because the phone was on speaker. The first conversation was in 2005 or 2006. During this call, Karen told respondent she could see H.B., so Goble drove respondent to Karen's house; however, when they arrived, no one was home and no one would answer the phone. The second call took place approximately four months later andKaren told respondent H.B. "didn't need to be around her." The third conversation took place in 2009 between respondent and petitioner. During this call, Goble heard whom he believed to be petitioner tell respondent she would never see H.B. again.

¶ 12 On September 23, 2009, respondent called to speak with H.B. to wish her a happy birthday and to see if she could see her on her birthday; she was able to speak with H.B. However, after speaking with H.B., petitioner told her H.B. did not want to see her anymore and not to call anymore. Respondent has not tried to call or contact H.B. since she was told not to call by petitioner; she also has not sent H.B. any letters, gifts, or cards.

¶ 13 Petitioner denied telling respondent she could not see H.B. anymore and not to call anymore during the September 23, 2009, telephone call. Rather, she testified she told respondent she could not see H.B. on her birthday because they had plans, but if she wanted to see H.B. and H.B. wanted to see respondent, petitioner would make it work on another day. Petitioner admitted the phone call got "ugly" and she hung up on respondent. Petitioner has not taken any proactive efforts to contact respondent and make visitation arrangements or to allow respondent's family to see H.B. Further, she testified she did not encourage H.B. to see respondent but she did coordinate two visits. Petitioner never included respondent in holiday plans with H.B., nor did she invite her to any of H.B.'s sports activities. When respondent left messages for H.B., petitioner testified she would give the messages to H.B., but from the age of eight petitioner left it up to H.B. whether to see respondent or return her calls. Petitioner admitted she has hung up the phone on respondent in the past.

¶ 14 After hearing all the evidence, the trial court found respondent fit and dismissed the amended petition for adoption. This appeal followed.

¶ 15 II. ANALYSIS

ΒΆ 16 Petitioner appeals the trial court's finding she failed to prove respondent unfit by clear and convincing evidence. Specifically, petitioner argues the court erred in (1) finding respondent did not intend to forego her parental rights because it (a) looked at impediments occurring outside the 12-month period allowed by statute, (b) considered impediments not expressly listed in the statute's plain language, and (c) considered respondent's subjective intent to excuse her failure to contact or communicate with H.B. in violation of the statute; (2) looking at impediments occurring outside the 3-month period allowed by statute to excuse respondent's unfitness for desertion; (3) finding ...


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