dissenting:
I respectfully dissent.
Mrs. Burris candidly admitted at the hearing on the petition that she was living with Weston as husband and wife, without the benefit of marriage, and that she intended to continue to do so and to keep her children with her while in pursuance of the illicit relationship.
The following effects of Mrs. Burris’ conduct are noted:
(1) She has committed and is continuing to commit the crime of fornication, contrary to section 11 — 8(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 8(a)). (See DePhillips v. DePhillips (1965), 63 Ill. App. 2d 19, 211 N.E.2d 147; People v. Potter (1943), 319 Ill. App. 409, 49 N.E.2d 307.
(2) Pursuant to section 1(D) (j) of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 (D)(j)), Mrs. Burris would be conclusively deemed unfit to have a child. That section provides:
“D. ‘Unfit person means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following:
# # #
(j) Open and notorious adultery or fornication.”
Subsection (D) (i) of the same section of the Adoption Act includes “depravity” in the definition of an unfit person. There is sound precedent that would bring Mrs. Burris within that category of persons. (See Tiernan v. Stewart (1975), 33 Ill. App. 3d 545, 338 N.E.2d 153; Taylor v. Starkey (1974), 20 Ill. App. 3d 630, 314 N.E.2d 620.)
(3) Unquestionably, the “home” maintained by Mrs. Burris and Weston could not be licensed as a foster home, or they as foster parents, pursuant to the Child Care Act of 1969 (Ill. Rev. Stat. 1977, ch. 23, par. 2211 et seq.) because of the standards for child care imposed by that statute and the Illinois Department of Children and Family Services. (See Department of Children and Family Services Regulation No. 5.12, revised January 1, 1970, Minimum Standards for Licensed Foster Family Homes.)
(4) But for the truth of the matter alleged, Mrs. Burris would have an action for slander or libel against any person who uttered or published any declaration to the effect that she was living as man and wife with Weston. Section 1 of “An Act to revise the law in relation to slander and libel” (Ill. Rev. Stat. 1977, ch. 126, par. 1) provides:
“That if any person shall falsely use, utter or publish words, which in their common acceptance, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.”
(5) The children, while living with Mrs. Burris, could be found to be neglected children within the purview of section 2 — 4(1)(b) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702— 4(1)(b)), which provides:
“(1) Those who are neglected include any minor under 18 years of age
e * e
(b) whose environment is injurious to his welfare * °
Consideration of section 2 — 4(1) (b) should be coupled with the purpose and policy of the Juvenile Court Act as declared by the legislature in section 1 — 2(1) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 2(1)), which states, in part:
“The purpose of this Act is to secure for each minor subject hereto such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community; * *
In the aggregate the above statutes and policies constitute a sharp sociological statement and condemnation by the People of the State of Illinois regarding the living arrangement selected by Mrs. Burris for her children and now sanctioned by the majority. They justify, even require, a determination that Mrs. Burris is an unfit mother. In view of such social policy the majority opinion must be considered debasing to the notion that our laws should have a civilizing influence on society.
The majority opinion leaves us without a standard whereby the conduct of parents in their relations with their children may be tested for its adherence to an acceptable community norm. Substituted instead is a completely subjective test based upon the wishes, whims or inclination of the custodial parent.
Conduct of Mrs. Burris, which, in any community, would be immoral and criminal is acceptable to the majority because there is no “proof” that it is detrimental to the children or is other than in their best interest. As used by the majority in this case the terms “detrimental to the children” and “in the best interest of the children” are meaningless generalities. It is obvious that no real evidence was offered on the question, and, in truth, in the absence of some demonstrable physical injury or impairment, the production of real evidence would be difficult. Is there, or can there be, nonphysical injury or detriment to minor children who are compelled to live with a parent who is by her very lifestyle committing a crime and living daily in an amoral situation? The sociological experience of the State of Illinois furnishes a decidedly affirmative answer which is reflected by the statutes and social policies listed above. It is implicit in Mrs. Burris’ brief and the majority opinion, and expressed by many others, that we are living by a “new morality” in which illicit relationships are an accepted norm. But the “new morality” is in fact a very old morality, tried and rejected numerous .times by many societies, including the one in which we live.
This is not the place, nor is it within my ability, to make a analysis regarding the harm inflicted upon society in general and the affected children in particular by sanctioning the upbringing of children in the circumstances shown in this case. But pertinent here are the remarks of the court in Gehn v. Gehn (1977), 51 Ill. App. 3d 946, 949, 367 N.E.2d 508, 511:
“The record in this case supports a finding that the plaintiff had no qualms in exposing and exhibiting to her children her illicit relationship with her boyfriend. The plaintiff admits her immoral conduct, but argues that no testimony was presented which would show that her conduct had any ill effects upon the children. It might be not only difficult but impossible to present evidence showing objective effects that such conduct would have on minor children. The effects may well be subjective ones that will raise their ugly heads and make their presence known at some future time. Certainly the conduct of the plaintiff cannot be regarded as good and wholesome moral training. We further note that the plaintiff utterly failed to display any degree of penitence as far as her conduct was concerned, but on the contrary assured the court that if she continued to have custody of the children she would persist in the overnight sojourns to her boyfriend’s house with her five children.”
Mr. Burris testified that the children were “troubled” by the living arrangement of the mother and that, in his opinion, this trouble was reflected in the children’s feelings of having no roots, Tracy’s allergy condition and Alex’s nervous behavior and poor school work. The majority state that there is no “evidence” that any of these difficulties had been brought about by the children’s living with their mother and her paramour. When the father testified to the difficulties, as he was qualified to do, that was “evidence.” The majority probably meant to say that the father’s uncorroborated testimony did not constitute “proof” of the difficulties having resulted from the living arrangement of their mother. It is submitted that there probably could never be proof to an extent where all other possibilities would be foreclosed. There can only be opinions expressed from which triers of fact can reach conclusions. A concerned father is certainly in a position to express an opinion and it should be entitled to great weight. Especially where there is no “evidence” to show the negative of the proposition.
Precedent for a finding that Mrs. Burris’ present and ongoing illicit relationship renders her unfit is found in DeFranco v. DeFranco (1978), 67 Ill. App. 3d 760; Gehn v. Gehn; Hahn v. Hahn (1966), 69 Ill. App. 2d 302, 216 N.E.2d 229; Kline v. Kline (1965), 57 Ill. App. 2d 244, 205 N.E.2d 775; Wolfrum v. Wolfrum (1955), 5 Ill. App. 2d 471, 126 N.E.2d 34, none of which are distinguishable on the pertinent facts from this case.
The cases relied upon by the majority, with two exceptions to be noted, are instances where past misconduct was found to not constitute present unfitness. The conclusion reached in those cases is a reasonable one. If a contrary conclusion had been reached, then a large percentage of present day parents would be termed unfit. The law and our society makes a sharp and fully warranted distinction between past misconduct forgiven and defiant present misconduct.
The two cases the majority cite which support their position are Christiansen v. Christiansen (1975), 31 Ill. App. 3d 1041, 335 N.E.2d 581, and Jarrett v. Jarrett (1978), 64 Ill. App. 3d 932. However, in reaching its conclusion, the court in the Jarrett case cites Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300; Eaton v. Eaton (1977), 50 Ill. App. 3d 306, 365 N.E.2d 647; Hendrickson v. Hendrickson (1977), 49 Ill. App. 3d 160, 364 N.E.2d 566; Christiansen v. Christiansen; Van Buskirk v. Van Buskirk (1974), 19 Ill. App. 3d 647, 312 N.E.2d 395; Collings v. Collings (1970), 120 Ill. App. 2d 125, 256 N.E.2d 108; Arden v. Arden (1960), 25 Ill. App. 2d 181, 166 N.E.2d 111; Brown v. Brown (1957), 13 Ill. App. 2d 56, 140 N.E.2d 528. In every one of these cases, except Christiansen v. Christiansen, the improprieties related to past conduct which had been terminated at the time of trial and the cases do not support their conclusion.
In the recent case of Rippon v. Rippon (1978), 64 Ill. App. 3d 465, 468, relied upon by the majority, the court recited the rule I note above:
“Only when an open adulterous relationship exists with no possibility of marriage, as when the paramour is and remains married to another woman, is there sufficient grounds to remove custody from the mother. (See Hahn v. Hahn (2nd Dist. 1966), 69 Ill. App. 2d 302, 216 N.E.2d 229.) The underlying rationale is that the past misconduct does not indicate the probability of future misconduct once the mother has again married.”
Accordingly, the Rippon case is authority that contradicts the result reached by the majority.
For the foregoing reasons I would find Mrs. Burris unfit to have custody of the children and reverse the trial court.