specially concurring:
The majority opinion ignores the trial court’s statement of reasons for its decision, which was in part, as follows:
“The fact of the matter is that, this cause languished for five years. And the Court at this time wishes to note for the record a judicial disfavor of the policy and procedures of the Department of Children and Family Services which allowed a case to languish for a period of five years, thereby permitting and allowing a relationship of foster parents to a Ward of the Court to develop into and ripen into a relationship of parent and child. The opinion of the Court is that this type of action usurps the Judicial function for the reason that it practically dictates the judgement of the Court, where the Court finally after a period of better than five years is called upon to decide the future of a child. And the law tells the Judge that the best interest of the child is the paramount consideration. In effect, the Department of Children and Family Services makes the decision by permitting the case to lay dormant and allowing the foster parents to keep the child in a situation where a relationship of parent and child develops. In my opinion this is unconscionable, but there isn’t anything this Court can do. As far as the Court is concerned I am compelled to look at now what is in the best interest of the child. And I have evidence before me which convinces me that to tear the child away from the foster parents at this time would not serve the best interest of the child. Therefore, the order of the Court is that the — first of all the finding that the non-consenting parent is unfit. And the order of the Court is that the petition be allowed. And regarding the child, I empower the guardian to consent to adoption.”
The trial court thus based its decision not on a finding based on the allegation that the mother failed to maintain a reasonable degree of interest, concern or responsibility for the welfare of her child and was therefore unfit, but instead on a finding that the best interest of the child required that the child remain in the custody of the foster parents which then necessitated an order finding the mother unfit. The court placed the proverbial cart before the horse.
The Juvenile Court Act, section 5 — 9 (Ill. Rev. Stat. 1975, ch. 37, par. 705 — 9), is very specific in its requirements for permanent termination of all parental rights.1 A finding of unfitness is a fact question separate and distinct from the best interest of the child, and unfitness must be found before the court determines whether the best interest of the child requires giving a guardian the power to consent to adoption.
A finding of unfitness on grounds set out in the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1 — 1), is a prerequisite to adoption where a parent does not consent. As this court has stated, “The Court must first determine if statutory grounds for adoption exist * * *. Accordingly, a clear case must be made establishing the statutory grounds before a consideration of the best interests of the child can be made.” In re Adoption of Jollay (3d Dist. 1974), 22 Ill. App. 3d 151, 319 N.E.2d 287, 288; In re Adoption of Barker (2d Dist. 1976), 37 Ill. App. 3d 721, 346 N.E.2d 26. Also, In re Deerwester (4th Dist. 1971), 131 Ill. App. 2d 952, 267 N.E.2d 505; Oeth v. Erwin (4th Dist. 1955), 6 Ill. App. 2d 18, 126 N.E.2d 526; Jackson v. Russell (3d Dist. 1951), 342 Ill. App. 637, 97 N.E.2d 584.
The case at bar is not an adoption proceeding where the court must determine both whether the natural parent is unfit and also whether the adopting parent(s) are appropriate persons to raise the child. Instead, the only question is whether the natural mother is so unfit that the State should step in to protect the interests of the child. The question of unfitness was the primary question before the trial court and could not be decided solely by determining that the best interest of the child precludes a change of custody at this time. In re Jones (1st Dist. 1975), 34 Ill. App. 3d 603, 340 N.E.2d 269.
On review, the judgment of the trial court should be affirmed if the evidence in the record supports the judgment, even though the reasons given by the trial court were erroneous. Thus, we must consider whether the evidence here clearly and convincingly established the natural mother’s unfitness. According to the testimony of Mr. Wagner, the marriage counselor, and Mrs. Castillo, the caseworker, the mother agreed that her child should be left with the foster parents from 1968 until March of 1972, primarily because her husband was mentally unstable, prone to violence, and periodically denied paternity, and secondarily, for financial reasons. The mother denied that she was ever willing to consent to adoption during this period, but admitted that she had not sought custody.
It is undisputed that the mother maintained regular contact with the Department during 1968 and 1969, and inexplicably, that no caseworker was assigned to this case from August of 1969 until April, 1971. When Mrs. Castillo became responsible for the case in 1971, the mother asked for visitation rights and was told there would be no visits. She continued to inquire about the health and welfare of the child during her regular interviews with Mrs. Castillo, but apparently agreed to permit her child to be adopted until her “change of heart” which occurred in March of 1972.
Thereafter the mother retained counsel to oppose the adoption, and eventually filed a suit for divorce, but during the period from March of 1972 to December, 1974, she made no request for a hearing on the pending petition and filed no petition to regain custody.
I think it plain that the mother’s marital problems were the cause of her inconsistent attitude toward her child. If we believe the testimony of Mr. Wagner and Mrs. Castillo, and disbelieve the mother, we can infer that the mother placed her marriage and other children ahead of Melody, at least until she separated from her husband in October of 1972. Obviously there are long periods where no interest in the child was shown except for the mother’s uncorroborated testimony of numerous phone calls to the Gordons and to the Department. Considering all of the evidence, I agree with the majority decision that the judgment of the trial court was not against the manifest weight of the evidence, and that the judgment should be affirmed.
Ill. Rev. Stat. 1975, ch. 37, par. 705 — 9(2):
“(2) If the petition prays and the court finds that it is in the best interests of the minor that a guardian of the person be appointed and authorized to consent to the adoption of the minor, the court with the consent of the parents, if living, or after finding a non-consenting parent to be unfit as provided in this Section, may empower the guardian of the person of the minor, in the order appointing him as such guardian, to appear in court where any proceedings for the adoption of the minor may at any time be pending and to consent to the adoption.” (Emphasis added.)