Peyla v. Martin

• Decision Date: 16 July 1976
• Docket Number: No. 75--546,75--546
• Citation: 40 Ill.App.3d 373,352 N.E.2d 407
• Parties: Thomas Peter PEYLA and Nancy Martin Peyla, Plaintiff-Appellee, v. Christina Marie MARTIN, a minor, Respondent, and Ronald Martin, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 407

352 N.E.2d 407

40 Ill.App.3d 373

Thomas Peter PEYLA and Nancy Martin Peyla, Plaintiff-Appellee, v. Christina Marie MARTIN, a minor, Respondent, and Ronald Martin, Defendant-Appellant.

No. 75--546.

Appellate Court of Illinois, Fifth District.

July 16, 1976.

Stephen W. Drescher, Land of Lincoln Legal Assistance Foundation, Inc., Alton, for defendant-appellant.

David M. Rothenberg, David M. Rothenberg, Ltd., Collinsville, for plaintiff-appellee.

EBERSPACHER, Justice:

This is an appeal by defendant Ronald Martin from an Order of October 14, 1975, finding that he, the natural father of Christina Marie Martin was an 'unfit person' as that term is defined in Illinois Revised Statutes, ch. 4, par. 9.1--1(D). Defendant appeals that finding and the court's summary refusal of his Petition to Modify Divorce Decree to permit him visitation of his daughter. He also appeals the court's order entered December 1, 1975 granting the petition of the natural mother, Nancy Martin Peyla and her second husband Thomas Peter Peyla, to adopt the child.

The facts of this case are plaintiff Nancy Martin and defendant Ronald Martin were married on February 25, 1972, and a child was conceived. In October, 1972, defendant was incarcerated in the Illinois State Penitentiary at Menard. While so confined, defendant wrote to his wife on a daily bais. Some of the letters were friendly, others apparently were threatening in tone after the relationship deteriorated. After December 11, 1972, plaintiff stopped visiting defendant and refused to accept the letters which were returned unopened. The child, Christina Marie Martin, was born February 16, 1973, while defendant was in prison. There was testimony that plaintiff never told defendant of the child's birth, or her name. Defendant apparently learned this information from his relatives. Plaintiff obtained a divorce from defendant on February 1, 1974, while the defendant was still in prison. The question of visitation and child support were reversed although the plaintiff received custody of the child. The defendant obtained a furlough from the penitentiary during the last three days of January, 1974, just prior to the divorce. At that time he asked plaintiff's mother to allow him to see the child and she permitted a short meeting. Defendant testified that there were two visitations; there was other testimony of only one meeting at that time. There was also contradicting testimony that defendant brought the child a stuffed animal. The defendant returned to prison at the end of his furlough and he was paroled on March 12, 1974. Defendant testified that he went to his former wife's home the day after his release on parole. Mr. Peyla testified that defendant came to the Peyla home in May, not March. At the time of the meeting, defendant was denied visitation, the plaintiff said that it was because 'there wasn't any court papers to say that he had the right and I wasn't about to let him * * *'. She further testified, knowing that he was on parole, that she probably told Martin that if he did not remove himself from the premises that she would call the police.

In June, 1975, defendant again attempted to visit the child and was refused permission by Mr. Peyla who was home at the time. Mr. Peyla stated:

'* * *, he (Defendant) came over to where we was living and I was at home and my wife was at work and he came over and said that he had spoken to a lawyer and that he was going to go through legal stages to get visitation rights, and that's all that was said.'

Defendant filed his petition to modify the divorce decree on June 19, 1975. Plaintiff and her new husband filed a Petition for Adoption on August 19, 1975.

The basic issue presented turns on the question of whether Ronald Martin was properly found to be an 'unfit person'. The court must inquire as to the burden of proof to be applied, and whether the evidence met that standard in this case.

Five grounds showing unfitness were alleged in plaintiff's amended Petition for Adoption; abandonment, failure to maintain a reasonable degree of interest, desertion, substantial repeated neglect, and failure to protect the child from conditions in his environment. The trial court found that abandonment and failure to maintain a substantial degree of interest, concern or responsibility for the child's welfare had been demonstrated. The trial court did not state with regard to this finding what burden of proof was applied. With regard to the question of what was the best home for the child, the court stated that it had 'clear and convincing' evidence that the child was best provided for in the home of plaintiff and her new husband.

It is difficult to determine from the record provided what standard was applied to the question of unifitness by the court. The law in Illinois is well settled that in matters of adoption, there must be clear and convincing evidence that the parent is unifit within the statutory provisions of the Adoption Act. In re Walpole's Adoption, 5 Ill.App.2d 362, 125 N.E.2d 645; Carlson v. Oberling, 73 Ill.App.2d 412, 218 N.E.2d 820; In re Deerwester, 131 Ill.App.2d 952, 267 N.E.2d 505; In re Petition to Adopt Cech, 8 Ill.App.3d 642, 291 N.E.2d 21; In re Interest of Moriarity, 14 Ill.App.3d 553, 302 N.E.2d 491; In re Overton, 21 Ill.App.3d 1014, 316 N.E.2d 201; Kubisz v. Johnson, 29 Ill.App.3d 381, 329 N.E.2d 815.

The trial court found that defendant had abandoned the child, and had failed to maintain a reasonable degree to interest, or concern for the child at the hearing on October 14, 1975. Those findings were incorporated in the Decree of Adoption ordered December 1, 1975.

It is clear from the record that the court based its decision upon the defendant's failure to become actively involved with the child from the time he was paroled on March 12, 1974 until he went again to the plaintiff's home in June, 1975. This was shortly before his parole concluded favorably on August 12, 1975. The court held that 'he could have done more to express interest in the child than he did, even though he had to satisfy the requirements of his parole officer.'

If we examine the charge of abandonment, it is clear that the defendant did not abandon the child. In In re Petition to Adopt Cech, supra, the court defined abandonment 8 Ill.App.3d at p. 644, 291 N.E.2d at p. 23:

'Abandonment is conduct on the part of a parent which demonstrates a settled purpose to forego all paternal duties and to relinquish all parental claims to the child.'

The conduct must evidence an intention to abandon. In Mateyka v. Smith, 47 Ill.App.2d 1, 197 N.E.2d 157, the court said at p. 7, 197 N.E.2d at p. 160:

'In considering the subject of abandonment, out courts have held that such question is one of intention to be determined from the evidence. Abandonment imports any conduct on the part of the parent which evidences a settled purpose to forego parental duties or relinquishment of parental claims to the child. Smith v. Crivello, 338 Ill.App. 503, 88 N.E.2d 107; In re Petition of Ekendahl et ux., 321 Ill.App. 457, 53 N.E.2d 302.'

It is clear from the evidence presented that the defendant did not intend to relinquish the child, or to abandon it. While he was in prison he wrote to his wife on a daily basis and inquired as to her health, and the course of pregnancy. The relationship deteriorated, and after December 11, 1972, plaintiff returned defendant's letters unopened.

Defendant admitted that some of the letters were threatening in tone, due to marital difficulties between them, but that most were not threatening. When defendant obtained a furlough in January, 1974, for three days, he spent two of them setting up a visitation with the child through plaintiff's mother, and then visiting the child. Testimony differed as to whether he visited the child once or twice during those days.

Upon his release on place on March 12, 1974, defendant testified he went to arrange visitation the next day, and was turned away. Plaintiff testified that she knew that he was on parole, and that she threatened to call the police unless he left immediately. She said at trial that she wasn't going to allow him to see the girl unless he got court papers.

Defendant's parole officer testified that parole is a very delicate situation, and that it is possible for a parole to be returned to the penitentiary for any violation. The officer testified that he advised the defendant not to pursue the matter legally until after parole was concluded, refused to give the defendant travel permits to the county in which the child was located, and advised defendant generally to take one thing at a time, to get parole out of the way, and then ask for visitation.

The parole officer also testified that defendant and he talked on a weekly basis. The defendant was contantly referring to the number of weeks until parole would be up, and he could pursue his rights to see the child. He filed a petition to modify the divorce decree to allow visitation shortly before parole was over. It seems difficult to construe these actions and statements of defendant as evidencing an intent to abandon.

In Mateyka v. Smith, supra, the court stated the general rule in regard to overturning factual...