Massey, In Interest of

• Court: Appellate Court of Illinois
• Writing for the Court: GREEN; CRAVEN, P.J., and SIMKINS
• Citation: Massey, In Interest of, 341 N.E.2d 405, 35 Ill.App.3d 518 (Ill. App. 1976)
• Decision Date: 29 January 1976
• Docket Number: No. 12997,12997
• Parties: In the Interest of Annette MASSEY, a minor. Jack CHICK, Probation Officer of DeWitt County, Petitioner-Appellee, v. Earl MASSEY and Rose Massey, Respondents-Appellants, and Richard S. Laymon, Guardianship Administrator of the Department of Children and Family Services, Respondent.

Page 405

341 N.E.2d 405

35 Ill.App.3d 518

In the Interest of Annette MASSEY, a minor Jack CHICK, Probation Officer of DeWitt County, Petitioner-Appellee, v. Earl MASSEY and Rose Massey, Respondents-Appellants and Richard S. Laymon, Guardianship Administrator of the Department of Children and Family Services, Respondent.

No. 12997.

Appellate Court of Illinois, Fourth District.

Jan. 29, 1976.

Herrick, Rudasill & Moss, Clinton, for respondents-appellants; Ray Moss, Clinton, of counsel.

Robert G. Gammage, State's Atty., DeWitt County, Clinton, for petitioner-appellee; Kenneth E. Baughman, Monticello, Assisted by Michael M. Schneider, Law Student, university of Illinois College of Law, of counsel.

GREEN, Justice:

On October 7, 1968, Annette Massey, then a 10 week old infant, was declared to be a neglected child by the Circuit Court of DeWitt County. A representative of the state Department of Children and Family Services was appointed guardian of her person with power to place. On August 10, 1971, Earl Massey and Rose Massey, parents of the child, petitioned that court to have the child returned to their custody. After hearing, their petition was denied. On August 7, 1974, an amended petition by Jack Chick, Probation Officer of DeWitt County, was filed requesting that the guardian be given power to consent to the adoption of the child. After a hearing where the parents were represented by court appointed counsel and the child by a guardian ad litem, the prayer of the petition was granted. The parents appeal.

The order entered on October 7, 1968, found the child to be 'neglected' as defined in section 2--4 of the Juvenile Court Act (Ill.Rev.Stat.1967, ch. 37, par. 702--4) in that she was 'neglected as to proper medical care and other care necessary for her well-being.' Then, as now, that section provided that a minor under 18 years old who was neglected 'as to proper or necessary support * * * or as to medical or other remedial care * * * or other care necessary for his well-being * * *' is a neglected minor. Section 5--9(2) of the Juvenile Court Act (Ill.Rev.Stat.1973, ch. 37, par. 705--9(2)) states that the court may, if it finds it '(to be) in the best interests of the minor', authorize a guardian of the person of a minor to consent to the adoption of that minor if both parents consent to giving the guardian such power or if any non-consenting parent is found to be 'unfit.' The section further states that unfitness is defined as provided by the Adoption Act (Ill. Rev.Stat.1973, ch. 4, par. 9.1--1, Et seq.). Section 1D of the Adoption Act defines the following as being among the grounds for finding a parent to be unfit:

'(b) Failure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare;

'(f) Failure to protect the child from conditions within his environment injurious to the child's welfare;

'(l) Failure to make reasonable efforts to correct the conditions which were the basis for the removal of the child from his parents or to make reasonable progress toward the return of the child to his parents within twenty-four months after an adjudication of neglect under Section 2--4 of the Juvenile Court Act.'

The instant amended petition was brought under the stated provisions of the Juvenile Court Act and the Adoption Act and alleged that the parents were unfit on the grounds of subsections (b), (f), and (l) of section 1D. The allegation with reference to subsection (f) stated that the parents 'evince conduct that would fail to protect the child from conditions within her environment injurious to the child's welfare.' The order of the court empowering the guardian to consent to adoption found the parents to be 'unfit persons' within the meaning of subsections (b), (f), and (l) of section 9.1--1D of the Adoption Act and also found that it was to the best interests of the child that the guardian be authorized to consent to the child's adoption.

Since shortly after the original decree finding the child to be neglected, she had been living with a foster family at Saybrook in McLean County. The foster mother testified that they would like to adopt the child if permitted to so so. The natural parents were permitted visitation every other Sunday during the early years of the foster care and on one Sunday per month thereafter. The mother visited the child a total of 6 times during the first 3 years and more often, probably as much as every other month during the last 3 years. The father visited less frequently. The visits, which lasted for about one hour in the home of the foster parents, were usually very unhappy occasions. The child showed dislike for the natural mother and often tried to hide to avoid the visit. In the early years the natural mother tried to get the child to sit on her lap but the child resisted and fought to get away. After the visits the child wet the bed and had nightmares.

No physician testified but there was evidence that the child had respiratory problems with excessive colds and had trouble with a kidney infection. Problems of an emotional nature appeared to be of greater concern. Dr. Robert A. Hogan, a child psychologist, testified that he had examined the child and found her to be in the dull normal range of intelligence and extremely immature and dependent upon her foster mother. He stated that the child had a very close relationship with the foster mother and had great need for a home with such relationship. He testified that in his opinion, the removal of the child from foster home and mother, the only home and mother she had known, would be very traumatic and detrimental to the child. The evidence was fully sufficient to support the finding by the court that the best interests of the child were served by granting the guardian power to consent to the child's adoption.

The rule is firmly established that in a proceeding for the custody of a child, the best interests of the child is the predominate issue but that in a proceeding such as this where the rights and interests of a parent are sought to be permanently severed, the best interests of the child can be considered only if the court finds by clear and convincing evidence that the parent is unfit or consents to the severance (In re Shuman, 22 Ill.App.3d 151, 319 N.E.2d 287; In re Petition to Adopt Cech, 8 Ill.App.3d 642, 291 N.E.2d 21; In re Deerwester, 131 Ill.App.2d 952, 267 N.E.2d 505). The judge found both parents to be unfit. The fact that he pronounced in open court his findings of the child's best interests prior to pronouncing his findings as to unfitness did not violate the rule or constitute error.

The evidence to support the finding of unfitness for failure to maintain a reasonable degree of interest, concern and responsibility for the child's welfare under section 9.1--1D(b) was the failure of the parents to visit the child more often. While the child was at Saybrook, the parents lived at various places in DeWitt County and at Maroa in Macon County. The mother said she did not visit more often because of lack of transportation and once because of a problem with her teeth. The father did not testify or appear at the hearing. The trial judge recognizing the near poverty condition of the family stated that he considered their lack of visitation as 'some slight failure to maintain interest and concern.' In Deerwester a mother had similar difficulties due to lack of transportation to make visits to children placed 80 miles from where she lived. This court found the evidence to be insufficient to sustain a finding of unfitness and reversed. In the instant case the evidence of failure to visit was also insufficient, of itself, to support a finding of unfitness.

The court also found that the parents were unfit under section 9.1--1D(f). That provision speaks of the failure of the parent to protect the child from injurious conditions within his environment. The original decree was for neglect of the child as a baby. Since the child has been in a foster home for the past 6 years, the parents could not have failed to protect it during this time. The allegations of the petition were phrased not in terms of protection that the parents had failed to furnish but of 'conduct that would fail to protect' in the future. We believe the evidence considered by the trial court as to this ground is more related to subsection (l) of section 9.1--1D.

Subsection (l) of section 9.1--1D of the Adoption Act was added...