Freeman v. Settle

Mr. JUSTICE GEORGE J. MORAN,

dissenting:

I dissent.

On September 13, 1968, appellant Russell Lee Settle was married to Jana Freeman, the daughter of appellees. Leigh Ann Settle was bom of this marriage on April 14, 1969. The couple was divorced on August 31, 1969, via a decree entered by the circuit court of Madison County which granted custody of Leigh Ann to the mother with reasonable visitation rights to appellant. Russell Settle remarried in May of 1971. Jana Freeman was remarried to Michael Barry, but they were divorced approximately 2M years later. Jana Freeman was killed in an automobile accident on September 12, 1976. On September 13 or 14, appellant sent a letter to appellees, who had Leigh Ann at the time, demanding that he be given immediate custody of the child. On September 20, 1976, appellees filed their petition for adoption. Therefore, at the time of the filing of this petition the appellees did not have legal custody of Leigh Ann.

No action by a court can alter human relationships more completely and finally than an adoption which almost totally abolishes a natural parents’ legal duties to and rights concerning his child. Also the child becomes in the eyes of the law a stranger to its own flesh and blood, permanently shedding all obligations of the parent-child relationship. It has been said:

“The welfare of the child is a much more appropriate yard stick in a custody case than in an adoption matter. Adoption, which affects the course of inheritance, deprives the child of a place in which it was placed by nature, and by force of law thrusts the child into another relationship, while severing forever and conclusively the legal rights and interests of the natural parents, and is a very different matter from a change of custody, which could be on a temporary basis.” Jackson v. Russell (1951), 342 Ill. App. 637, 639.

This case is a prime example of the devastating effect an adoption has on human relationships by court decree. Leigh Ann Settle has not only been made a legal stranger to her father, Russell Lee Settle, but also has been made a legal stranger to her two half-brothers and her paternal grandparents. Such drastic legal action should never be taken unless the circumstances are most compelling. I find no compelling reasons here.

The trial court considered this case to be the same as a custody case and in so doing it erred. There are fundamental differences between adoption cases and custody hearings. First, an order awarding custody is modifiable given a change in curcumstances, but a finding of unfitness of a parent which terminates the parent-child relationship is irrevocable. Then, too, a parent’s unfitness under the Adoption Act must be proved by clear and convincing evidence in a separate hearing before evidence on the best interest and welfare of the child is heard. This is so because it is not the court’s function in a contested adoption proceeding to balance the parent’s merits against the petitioners’ and after weighing the different factors decide who serves those interests better. Unless the hearing on the fitness of the parent is separated from the hearing on what is for the best interest of the child, there is great danger that trial court may be tempted to find that it is in the best interest of the child to find the parent unfit.

This court speaking through Justice Kams held in In re Adoption of Burton (1976), 43 Ill. App. 3d 294,356 N.E.2d 1279, that the Adoption Act mandates a bifurcated process.

“Where the parent does not consent, as here, he or she must be determined unfit within the statutory definition. [Citation.] Only after proof of the existence of one of the statutory conditions precedent to adoption — either consent or unfitness — can the court properly consider the best interests of the child.” (43 Ill. App. 3d 294, 301.)

If that was not clear enough, this court spelled out the process in even greater detail where we said:

“As we read the Adoption Act, it contemplates a two-step process: first, the filing of a petition, followed as soon as possible by a hearing, and then, if consent or unfitness is found, the entry of an interim order; second, ordinarily after a six-month waiting period, the final decree of adoption. [Citation.] On remand, therefore, the court should confine its initial hearing to the issue of whether Mrs. Badger’s parental rights should be terminated, and should exclude evidence as to the home life of the Neals [the petitioners for adoption]. If clear and convincing evidence of unfitness on one or more of the grounds specified in the Adoption Act [citation] is not forthcoming, the petition should be denied. Only if unfitness is proved should the court proceed with its consideration of evidence relevant to the question whether adoption by the Neals is in the best interests of Sandra Fay and Martha Jean Burton [the children].” (Emphasis added.) 43 Ill. App. 3d 294, 302.

In a contested adoption the court should not balance the parents’ merits against the petitioners’ and after weighing the many factors relevant to the child’s best interests, decide who serves those interests better, unless it first decides that the objecting parent is unfit. Justice Barry of the Third District observed, “By someone’s standards, it is always possible to find a better home for a child than the one Providence has bestowed.” In re Hrusosky (1976), 39 Ill. App. 3d 954, 960.

The majority distinguishes Burton on the ground that the petitioners in Burton were not related to the children sought to be adopted. The majority holds that section 13 of the statute (Ill. Rev. Stat. 1977, ch. 40, par. 1516) is not applicable to this case because the petitioners are the maternal grandparents of the child sought to be adopted. Since this is true, the majority reasons that section 14 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 1517) applies and that pursuant to section 14, an order for adoption of a related child may be entered at any time after the service of process and that interim order is necessary.

The interpretation the majority gives the foregoing statute is wrong. Sections 13 and 14 of the Act must be read together to make any sense. Section 13 provides for an interim order in adoption proceedings, while section 14 provides for an order to be entered only after the interim order has been entered. Section 13, which provides for interim orders, in pertinent part reads as follows:

Ҥ13. Interim order.) As soon as practicable after the filing of a petition for adoption the court shall hold a hearing for the following purposes:
A. In other than an adoption of a related child or an adoption through an agency, or of an adult:
O * *
B. In all cases:
e # # ”
(Ill. Rev. Stat. 1977, ch. 40, par. 1516.)

The language “in all cases” is plain. It mandates an interim order in all cases and also mandates a hearing in all cases prior to the entry of the interim order. Section 14 of the Adoption Act provides for an order only after the interim order mandated by section 13 is entered.

The court has no discretion to decree an adoption until after the statutory requirements are met, but after they are met, the court may exercise its discretion to allow the adoption, taking into consideration the moral, intellectual and material welfare of the child. Under section 13 of the Act the court could not assert jurisdiction in this case unless it first found the father unfit for one or more of the statutory reasons. After making this determination, the trial court could then proceed under section 14.

In the proceedings in the trial court the court did not recognize the difference in legal issues in adoption cases as distinguished from cases involving custody only. Custody is one thing; adoption is another. The trial court erred in not recognizing the difference. This court now approves that error. In approving this error, this court supplies arguments not made by appellees. The error the trial court committed in not holding a bifurcated hearing in the trial of this case was adequately argued by appellant in his brief. However, this argument was never answered by appellees. Thus, the majority in effect acts as counsel for one of the parties in this case.

The majority leaves the impression that Leigh Ann resided with appellees for several years prior to the death of her mother. This is not so. At the time of Jana’s death, the child was living with her mother and had been so living for at least three years. According to the divorce decree entered on August 31, 1970, it was Jana Freeman, the mother of Leigh Ann, who was granted the legal custody of Leigh Ann. On the day of her death Jana Freeman still had actual custody and legal custody of Leigh Ann. Shortly after Jana’s death, appellant asked for custody of his child. He was answered with the petition for adoption filed in Montgomery County. It should be noted that the right to custody of this child as distinguished from adoption could have been litigated where the divorce was granted.

I do not believe that the evidence in this case clearly and convincingly proves that Russell Lee Settle was an unfit father and I do not believe that it was in the best interest of Leigh Ann to grant this adoption. The record in this case is replete with evidence of the hatred and animosity the petitioner, Janice Lee Freeman, exhibited toward Russell Lee Settle and his family. It is also undisputed that from the time of the divorce she attempted on many occasions to get her own daughter to consent to the adoption of Leigh Ann, which the daughter refused to do.

My position in this case is supported by the guardian ad litem who was appointed by the court to represent the interest of Leigh Ann in this adoption proceeding. With reference to the fitness of Russell Lee Settle as affected by the actions of Janice Lee Freeman, the guardian ad litem had this to say:

“She [Janice Lee Settle] admits to throwing a package in Settle’s front yard that was sent to Lee Ann Settle by a member of Settle’s family, and there is evidence that other cards sent to Leigh Ann by Settle’s family were returned unopened. In addition, the Freemans have denied Settle’s request to visit with Leigh Ann since the commencement of this proceeding. It is entirely possible that her attitude has been in large part responsible for Settle’s failure to show an active interest in his daughter.”

And with reference to the best interest of Leigh Ann, the guardian had this to say:

“Yet the inherent right which all parents have to the society of their children should not be abrogated without compelling reasons. Petition of Lehmann, 37 Ill. App. 3d 217, 342 N.E.2d 742. Similar protection should be given the child’s right to the society of her father. Although I say this with a great deal of reservation, there is enough doubt in my mind as to the circumstances surrounding the signing of the consent and the parental unfitness of Russell Lee Settle to recommend that the petition for adoption be denied.”

I also note a jurisdictional matter which I think is dispositive of this entire proceeding. Appellant raised it to the trial court but it was denied. It was raised at oral argument, but not addressed or disposed of satisfactorily. The divorce decree which awarded custody of the child to Jana Settle was entered by the circuit court of Madison County. That same decree granted appellant rights of visitation, as he was a party to that proceeding. It seems clear that the law in Illinois, and the majority of jurisdictions, is that awards of custody are by their very nature interlocutory, always subject to modification, and therefore the court which initially entered an order relating to custody maintains continuous and exclusive jurisdiction over custody matters. Sommer v. Borovic (1977), 69 Ill. 2d 220, 227, 370 N.E.2d 1028.