Opinion
Appeal No. 3-14-0440
10-14-2014
In re ADOPTION OF O.P. (Doris J. P. and Roger A. P., Petitioners-Appellees, v. Byron D. H., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 9th Judicial Circuit McDonough County, Illinois
Circuit No. 13-AD-8
Honorable Patricia A. Walton Judge, Presiding.
PRESIDING JUSTICE LYTTON delivered the judgment of the court.
Justices Carter and Wright concurred in the judgment.
ORDER
¶ 1 Held: Trial court's findings that respondent father was unfit and that it was in the best interest of minor to terminate his parental rights were supported by the evidence.
¶ 2 Respondent is the father of O.P. Petitioners, O.P.'s maternal grandparents, filed a petition to adopt O.P. when she was seven years old. Following a hearing, the trial court adjudicated respondent unfit and terminated his parental rights to O.P. Respondent appeals the trial court's finding of unfitness and termination of his parental rights. We affirm.
¶ 3 O.P. was born in December 2005 to petitioners' daughter, Kimberly P. O.P. has resided with petitioners since birth. In May 2012, petitioners filed a petition to adopt O.P. and her half-sister, J.P. A guardian ad litem (GAL) was appointed for O.P. In September 2013, a paternity test revealed that respondent is O.P.'s biological father.
¶ 4 In April 2014, the trial court held a hearing to determine if respondent was a fit parent and if it was in O.P.'s best interest to terminate his parental rights. A few days before the hearing, O.P.'s GAL provided a report to the trial court setting forth her opinions and conclusions based on her interviews with respondent, petitioners and O.P. The GAL recommended that respondent be found unfit and his parental rights be terminated so that petitioners could adopt O.P.
¶ 5 At the hearing, respondent testified that he is married and has a five-year-old son. He dated Kimberly P. for approximately six or seven months in 2005. He was aware that she became pregnant in 2005 and suspected that the child might be his. O.P. was born in early December 2005. When O.P. was born, respondent was in jail. He was released a few weeks after O.P.'s birth.
¶ 6 At the end of December 2005, Kimberly told respondent that he "might be" O.P.'s father. Kimberly told respondent that O.P. was living with petitioners. Respondent knew where petitioners lived because he stayed with them for a few weeks when he was dating Kimberly. He never called petitioners because he "didn't have a telephone number for them." He did not send O.P. any cards or presents after she was born. He did not go to petitioners' house because Kimberly told him that he was not allowed on petitioners' property and could be arrested if he went there. Kimberly gave respondent a picture of O.P.
¶ 7 Before petitioners filed their petition to adopt O.P., respondent never visited O.P. Respondent testified that he "tried to get help to get visitation of O.P." by calling the Department
of Human Services (DHS) "two or three times" and contacting Prairie State Legal Services "several times." He last contacted DHS and Prairie State approximately a year-and-a-half earlier. He never contacted an attorney before petitioners filed their petition to adopt O.P. because he "didn't know the process, didn't know what to do."
¶ 8 At the time of the hearing, O.P. was eight years old. On her eighth birthday, respondent gave O.P. a birthday card and a $20 gift card from Wal-Mart. He never gave her a birthday or Christmas gift before that but said he would have if he "would have been able to see her." He never mailed anything to her because did not know her mailing address. He testified that he "lost all track" of petitioners and O.P. after they moved about two or three years earlier. He tried to find them by searching the Internet but was unsuccessful. He also asked Kimberly where they lived, but she refused to tell him. He kept in contact with Kimberly over the years through Facebook and always asked her how O.P. was doing.
¶ 9 Respondent testified that he wanted to provide money for O.P. but never did because Kimberly told him she did not need anything. He said he is "more than willing" to financially support O.P. Respondent opposed petitioners' adoption of O.P. because he wants O.P. to know his side of her family and to "know she does have a dad that does love her and care for her." He has no concerns about O.P. living with petitioners and believes "she's doing well and good where she's at."
¶ 10 Respondent's wife, Mary, testified that she began dating respondent approximately seven years earlier. About two months into their dating relationship, respondent showed her a baby picture of O.P. He always talked about how he wished he could see O.P. According to Mary, respondent tried to visit O.P. twice in 2008 but returned both times telling her that he was not allowed on petitioners' property. She believed that Kimberly told him that.
¶ 11 Mary described respondent as a "great father." She said he gets depressed around the holidays and O.P.'s birthday because he does not know her and cannot give her gifts. Mary witnessed respondent call DHS at least twice. He was frustrated after those calls because he was not provided any answers.
¶ 12 Doris P. testified that she became O.P.'s caregiver as soon as Kimberly came home from the hospital with O.P. She provided O.P. whatever she needed. Respondent never came to her house after O.P. was born. She denied telling Kimberly that she would have respondent arrested if he came on her property. Before she and her husband filed the petition to adopt O.P., respondent never asked to see O.P., stopped by her home, or sent O.P anything.
¶ 13 O.P. likes school and earns all A's. She has friends at school she enjoys seeing. She has a half-sister, J.P., who lives with her and was recently adopted by petitioners. Also in the area are two aunts and two cousins. Doris has a lot of support. Doris believes it would be detrimental to O.P. if she were not adopted because she "needs closure." She is in a stable environment and needs to know that it is permanent. O.P. refers to her grandparents as "mom" and "dad." She gets along well with J.P. and treats her like a sister.
¶ 14 James P. testified that he has played the role of O.P.'s father since O.P. came home from the hospital. He denied ever telling respondent or Kimberly that respondent was not allowed on his property. Before he and Doris filed the petition to adopt O.P., respondent never asked to visit O.P. nor sent anything to O.P. James wants to adopt O.P. and believes it would be detrimental to O.P. if he and his wife were not allowed to adopt her. O.P. wants to be adopted by her grandparents.
¶ 15 The court ruled that there was clear and convincing evidence of respondent's unfitness based on abandonment and a failure to maintain a reasonable degree of interest, concern or responsibility in O.P. The court found that respondent "took no steps to enforce his parental
rights," failed to provide "any support whatsoever," and made no attempts to contact O.P. or petitioners personally, by mail, or by phone. The court held that while respondent may have thought he was doing the best he could under the circumstances, his actions fell "short of maintaining a reasonable degree of interest, concern or responsibility in *** that he essentially made no efforts."
¶ 16 The court then considered O.P.'s best interests and determined that it was in her best interests to terminate respondent's parental rights. The court found that O.P. is doing well in school and at home with her grandparents, who have taken care of her since birth.
¶ 17 I
¶ 18 A trial court's finding of unfitness is afforded great deference because the trial court has the best opportunity to view and evaluate the parties and their testimony. In re Daphnie E., 368 Ill. App. 3d 1052, 1064 (2006). The trial court's finding will not be disturbed on appeal unless it is against the manifest weight of the evidence. Id. A decision is against the manifest weight of the evidence where the opposite result is clearly obvious from the record. Id.
¶ 19 Where the State alleges more than one ground for unfitness, evidence supporting any one of the alleged statutory grounds is sufficient to uphold a finding of unfitness. In re Adoption of K.B.D., 2012 IL App (1st) 121558, ¶ 197.
¶ 20 A
¶ 21 Respondent argues that the trial court's finding of unfitness for his failure to maintain a reasonable degree of interest, concern, or responsibility as to O.P.'s welfare was against the manifest weight of the evidence.
¶ 22 Section 1(D)(b) of the Adoption Act provides that a parent is unfit for "[f]ailure to maintain a reasonable degree of interest, concern or responsibility as to the child's welfare." 750 ILCS 50/1(D)(b) (West 2012). Because the language of section 1(D)(b) is in the
disjunctive, a parent may be found unfit for failing to maintain either interest, or concern, or responsibility as to the child's welfare; proof of all three is not required. In re C.E., 406 Ill. App. 3d 97, 108 (2010). A parent is not fit merely because he has demonstrated some interest in or affection for his child. In re Daphnie E., 368 Ill. App. 3d 1052, 1064 (2006). The parent's interest, concern or responsibility must be objectively reasonable. Id.
¶ 23 In analyzing these elements, a trial court must focus on a parent's efforts, rather than success, in communicating, visiting or otherwise showing interest in the child. In re A.F., 2012 IL App (2d) 111079, ¶ 41. A court should consider any circumstances making it difficult to visit, communicate or otherwise show interest, including difficulty obtaining transportation to the child's residence, the parent's poverty, conduct of others that hinders visitation, and the motivation underlying the failure to visit. Id. If personal visits are somehow impractical, a court may consider whether a reasonable degree of concern was demonstrated through letters, telephone calls, and gifts to the child, taking into account the frequency and nature of those contacts. Id.
¶ 24 Here, the evidence presented at the hearing showed that respondent was aware of Kimberly's pregnancy and "suspected" that O.P. was his child even before she was born. Nevertheless, respondent failed to take any action to contact O.P. or petitioners for the first seven years of O.P.'s life. He never visited O.P., sent her a card, called her on the telephone, or sent her a gift. While respondent contends that he was afraid to visit petitioners' house because Kimberly told him petitioners would have him arrested, respondent still could have called or written O.P. since he knew where petitioners lived.
¶ 25 Respondent also contends that he took some steps to see O.P. by calling DHS and Prairie State "several times" to try "to get help to get visitation of O.P." However, making a few phone calls over the course of seven years does not demonstrate an objectively reasonable amount of
interest, concern or responsibility for O.P. The trial court's finding of unfitness was not against the manifest weight of the evidence.
¶ 26 B
¶ 27 Respondent argues that the trial court's finding of unfitness should be reversed because the trial court erroneously admitted and considered the GAL's report.
¶ 28 Section 13 of the Adoption Act authorizes the court to appoint a guardian ad litem "to represent a child sought to be adopted." 750 ILCS 50/13(B)(a) (West 2012). The GAL has the power to consent to the adoption of the child if such consent is necessary. Id.
¶ 29 A GAL acts as the eyes and ears of the court. In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415 (1998). The guiding principle for a GAL is to act in the best interests of the minor. In re Griesmeyer, 302 Ill. App. 3d 905, 914 (1998).
¶ 30 A GAL appointed pursuant to the Illinois Marriage and Dissolution of Marriage Act or the Illinois Probate Act may be required to submit one or more written reports. See 750 ILCS 5/506(a)(2) (West 2012); 755 ILCS 5/11a-10(a) (West 2012). There is no such requirement for a GAL appointed pursuant to the Adoption Act. Nevertheless, a GAL appointed under the Adoption Act is not precluded from submitting a report recommending that a petition to adopt be granted or denied. See In re Adoption of K.B.D., 2012 IL App (1st) 121558, ¶ 14; In re Adoption of D., 317 Ill. App. 3d 155, 157 (2000). Because courts want GALs to provide as much information as possible about the best interests of the minor, their reports may contain hearsay statements. See In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (1998); Wycoff, 266 Ill. App. 3d at 416. Thus, the trial court did not err in allowing the GAL to submit a report that contained hearsay statements.
¶ 31 Moreover, even if it was improper for the GAL's report to contain hearsay statements, the court's admission of the report was harmless. When a report containing hearsay is improperly
admitted into evidence, there is no basis for reversal if the statements in the report are merely cumulative of the properly-admitted testimonial and documentary evidence. In re Marriage of Bates, 212 Ill. 2d 489, 517 (2004). The erroneous admission of hearsay evidence requires reversal only where there is not sufficient competent evidence to support the decision. In re Estate of Michalak, 404 Ill. App. 3d 75, 95 (2010).
¶ 32 Here, in reaching its conclusion that respondent failed to maintain a reasonable degree of interest, concern, or responsibility in O.P's welfare, the trial court never mentioned the GAL's report. Instead, the court focused on the testimony presented at the hearing, especially respondent's testimony regarding his actions and inactions during the first seven years of O.P.'s life. Based on respondent's testimony, the court concluded that respondent fell "short of maintaining a reasonable degree of interest, concern or responsibility" in O.P. Because the properly admitted testimony supported the trial court's finding of unfitness, any error in admitting the GAL's report was harmless.
¶ 33 II
¶ 34 Respondent also argues that the trial court erred in finding that the termination of his parental rights was in O.P.'s best interest.
¶ 35 Once a trial court finds a parent unfit, the court must then determine whether termination of parental rights is in the best interest of the child. In re Janira T., 368 Ill. App. 3d 883, 894 (2006). In making this determination, the court is required to consider the following factors: (1) the child's physical safety and welfare; (2) the development of the child's identity; (3) the child's background and ties, including familial, cultural and religious; (4) the child's sense of attachments, including love, security, familiarity, continuity of affection, and the least disruptive placement alternative; (5) the child's wishes and long-term goals; (6) the child's community ties; (7) the child's need for permanence, including her need for stability and continuity with parental
figures and siblings; (8) the uniqueness of every family and child; (9) the risks related to substitute care; and (10) the preferences of the persons available to care for the child. 705 ILCS 405/1-3(4.05) (West 2012).
¶ 36 The State must prove by a preponderance of the evidence that termination is in the child's best interest. Janira T., 368 Ill. App. 3d at 894. The trial court's finding that termination is in the child's best interest will not be disturbed unless it is against the manifest weight of the evidence or the court abused its discretion. Id.
¶ 37 Here, the evidence at the hearing showed that O.P. is in a stable, appropriate and safe home with her maternal grandparents, whom she calls "mom" and "dad," as well as her half-sister. O.P. has lived with petitioners since birth and is an integral part of their family. She wants petitioners to adopt her so that she has permanence and stability in her life. She does well in school and has many friends. She also has relationships with extended family members, including aunts and cousins. This evidence supports the trial court's conclusion that it was in O.P.'s best interests to terminate respondent's parental rights.
¶ 38 The judgment of the circuit court of McDonough County is affirmed.
¶ 39 Affirmed.