KAREN R. PERKINS et al., Petitioners-Appellees, v. MELISSA MARIE BREITBARTH et al., Respondents-Appellants.—DANIEL HOFER, Petitioner-Appellant, v. KAREN BREITBARTH PERKINS et al., Respondents-Appellees.
Nos. 80-646, 80-647 cons.
Third District
August 14, 1981
September 9, 1981
135 Ill. App. 3d 135
Adrienne W. Albrecht, of Kankakee, for appellees.
Mr. JUSTICE ALLOY delivered the opinion of the court:
Daniel Hofer appeals from the judgment of the Circuit Court of Kankakee County in these proceedings, which judgment in favor of the adoption petitioners David and Karen Perkins terminated Mr. Hofer‘s parental rights with respect to the minor, Melissa Maria Breitbarth. On appeal he asserts that the court‘s finding of his unfitness, specifically his failure to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the minor child, was contrary to the manifest weight of the evidence.
The record reveals that Melissa Maria Breitbarth was born on Feb
In the fall of 1977, Karen and Melissa moved back in with her parents. Daniel Hofer would occasionally call there and ask to visit with Melissa. When such visitation would take place, however, according to Karen, Daniel Hofer would also make advances toward her. In September 1978, Karen moved into an apartment of her own. Daniel Hofer did not come to visit or call, nor did he send anything to either Karen or Melissa. Since that time, he has not visited or called, nor provided support for the child.
Other evidence indicated that during the years following 1976, Daniel Hofer held a variety of jobs and made respectable earnings. During 1977 through 1979, a time in which he provided no support, he had a take home pay of approximately $187 per week. The evidence at trial also indicated that Karen and her parents paid the majority of the expenses for the birth.
Based upon the evidence in the record, the trial court made several findings of fact. The court found that Daniel Hofer had made only token contributions toward the medical expenses of the birth. It also found that only minimal support payments were made during the early years of 1976 and 1977, and that thereafter no contributions were made by Daniel Hofer toward the support of the child. The lack of contributing support occurred despite a financial situation which would have allowed Mr. Hofer to make such contributions toward the support of his child. In addition to these findings unfavorable to Daniel Hofer, however, the court also made findings favorable to him. The court found that he had made reasonable efforts to visit the child and that, to a considerable extent, his efforts to visit the child had been frustrated by lack of cooperation from the child‘s mother. Similarly, the court found that his efforts
The trial court, in rendering its judgment in the proceedings, noted that the crucial issue was whether Daniel Hofer had failed to maintain a reasonable degree of interest, concern or responsibility as to the child‘s welfare. (
Accordingly, on the basis of his lack of support during that time, the court adjudged Mr. Hofer unfit and granted David and Karen Perkins the adoption, thus terminating all rights that Mr. Hofer might have, as a parent, in the minor child. Mr. Hofer appeals from the judgment and argues that the court‘s decision as to his unfitness is contrary to the manifest weight of the evidence.
The rules regarding adoption cases of this nature are well settled. As stated in In re Woods (1977), 54 Ill. App. 3d 729, 733-34, 369 N.E.2d 1356:
“It is well recognized that the natural parent has superior rights to the custody of his child as against others. [Citations.] This inherent right therefore should not be abrogated absent compelling reasons. [Citation.] One of these reasons is parental ‘unfitness’ demonstrated by a parent‘s ‘[f]ailure to maintain a reasonable degree of interest, concern or responsibility as to the child‘s welfare.’ [Citation.] The State must meet this burden by clear and convincing evidence. [Citation.] It has also been recognized that cases of this nature are sui generis; each must be decided in accordance with the particular facts of each individual and varying situation. [Citation.] Hence, in matters involving children and particularly in instances such as the one before us dealing with the permanent severance of parental rights, the facts must be reviewed with careful scrutiny.” (See also Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 947, 391 N.E.2d 222.)
While reviewing courts will not substitute their judgment for those of the trial court when the court‘s judgment is supported clearly in the record, reversal is required where the trial court‘s decision is contrary to the manifest weight of the evidence. (Peyla v. Martin (1976), 40 Ill. App. 3d 373, 352 N.E.2d 407.) Emphasis is placed upon the heavy burden of proof in such matters, wherein unfitness must be shown by clear and convincing
The issue in this appeal is whether the clear and convincing evidence in the record established Daniel Hofer‘s failure to maintain a reasonable degree of interest, concern or responsibility in his daughter Melissa, and thereby established his unfitness as a father. Only after this finding is established can the court consider the best interests of the child. Freeman v. Settle (1979), 75 Ill. App. 3d 799, 802, 393 N.E.2d 1385; In re Adoption of Burton (1976), 43 Ill. App. 3d 294, 301, 356 N.E.2d 1279.
While each adoption case, as indicated above, must be considered on its own individual facts and circumstances, nevertheless, the cases are helpful in setting forth important considerations which need be applied. In Peyla v. Martin, a father was adjudged by the trial court to be unfit, based upon abandonment and upon a failure to maintain a reasonable degree of interest, concern or responsibility. In that case, the father, a parolee, had given no support for the child for a period of 15 months and had not visited the child. The appellate court, in reversing the finding of unfitness, found it important that the father‘s efforts to visit the child had been frustrated by his circumstances. The court also found it important to consider, on the issue of lack of financial support, that the father was never ordered to pay support, that he was not in a financial position to give support, and that his meager efforts to support were refused by the child‘s mother. (40 Ill. App. 3d 373, 377-78.) In Blakey v. Blakey, the court, in affirming a denial of an adoption petition, also indicated that lack of a support order, coupled with a failure by the mother to request support, were important considerations in drawing conclusions from a father‘s failure to provide financial support for his child. (72 Ill. App. 3d 946, 948.) One older case also indicated that a failure to support would not alone be held to establish unfitness, and that the failure to support would have to be examined in light of all the circumstances. Carlson v. Oberling (1966), 73 Ill. App. 2d 412, 218 N.E.2d 820.
In the instant case, the finding of unfitness was premised entirely upon Daniel Hofer‘s failure to provide financial support for his child for a period of over 2 years. While not condoning in any way this failure, it is important to consider that during that time Daniel Hofer was not under a court order to make support, nor did the child‘s mother request his financial help in supporting the child. From the record, it is clear that she in fact discouraged any contact between Mr. Hofer and her or the child. Also, it is to be noted that the record does not indicate that the child‘s mother was in such financial straits that the welfare of the child suffered from the lack of support by Mr. Hofer. Even with these countervailing
The case principally relied upon by the appellees in arguing for an affirmance is easily distinguished. In Freeman v. Settle (1979), 75 Ill. App. 3d 799, 393 N.E.2d 1385, the natural father‘s unfitness was clearly and convincingly shown. He had failed to exercise his rights to reasonable visitation for a period of six years, had failed to communicate with the child for two years, and had failed to provide support for over six years. In addition, he had executed a consent to adoption for the purpose of escaping his support obligations. Even though the court found that consent had lapsed, it held that his action, combined with the other facts, indicated and established his lack of interest, concern or responsibility for the welfare of the child. That factual situation is not closely or remotely analogous to the one presented in the instant case. The other cases cited by the appellees are also unpersuasive.
We would add that decisions in cases such as this are the most difficult any court must make. We are aware that our decision herein may not be in the best interests of the child. If that were the issue, we would affirm the judgment entered by the trial court. However, the question of the child‘s best interests is not the principal issue before us on this appeal. As noted previously, before reaching that question, those seeking adoption must establish by clear and convincing evidence that the natural parent of the child is unfit. Such a finding of unfitness, supported firmly by the evidence, is a prerequisite to addressing the question of the child‘s best interests. While we may prefer a contrary rule, it is nevertheless the established rule of law in Illinois and we must follow it.
To summarize briefly, the evidence in the case indicated that the father (who was merely 16 years of age at the time of the child‘s birth) had shown interest in the child and had provided some support during the early part of the child‘s life. Thereafter, his attempts to visit the child and remain in contact with her were, as the trial court found, frustrated by the child‘s mother. Perhaps understandably, she wanted nothing more to do with Mr. Hofer and discouraged any contact between him and his
We reverse the judgment of adoption in the adoption proceeding, and we remand for the court to make a determination of Mr. Hofer‘s reasonable visitation rights and his support obligations.
Reversed and remanded.
STOUDER, J., concurs.
Mr. JUSTICE HEIPLE, dissenting:
I cannot agree with the result reached by the majority. The record here solidly supports the trial court‘s finding that Daniel Hofer was unfit due to “failure to maintain a reasonable degree of interest, concern, or responsibility as to the child‘s welfare.”
The error of the majority is that they view the issue to be one requiring a showing of mere interest in the child. Even so, the record provides only the most meager evidence of such a general interest. However, such standard is at once too broad and too flimsy. The trial court properly noted that with respect to “interest,” “concern,” or “responsibility,” the focus is not the child in a general sense. Rather, what is statutorily required is interest, concern, or responsibility in the child‘s welfare. The importance of financial support in demonstrating concern for a child‘s welfare is clear. The welfare of a child necessarily includes the purchasing of hospital and medical services for pre- and post-natal care, food, clothing, and shelter. These can only be purchased with money. Hofer‘s sparse financial contribution to secure his daughter‘s healthy birth and the mere necessities of life clearly demonstrates his unfitness. The majority notes that the welfare of the child never suffered from lack of support by Hofer. This is due to the fact that both mother and daughter were welfare recipients for a period of time. Fortuitously,
For these reasons I believe the trial court‘s finding of Hofer‘s unfitness was correct. I would affirm the judgment in favor of the adoptive parents, they being the natural mother and her husband. The natural father has forfeited his rights of visitation.