N.H. v. A.A.

222 Ill. App. 3d 73
CourtAppellate Court of Illinois
DecidedDecember 4, 1991
DocketNo. 2—91—0092
StatusPublished
Cited by1 cases

This text of 222 Ill. App. 3d 73 (N.H. v. A.A.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.H. v. A.A., 222 Ill. App. 3d 73 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Petitioners, N.H. and V.H., appeal from an order of the circuit court of McHenry County denying their petition to adopt three minor children born during V.H.’s prior marriage to respondent A.A. Petitioners argue that the trial court’s order was against the manifest weight of the evidence and that the court employed an improper standard in making its ruling. We reverse and remand.

V.H. and A.A. were married in 1978. Their three children, D.A., N.A., and K.A., were born in 1979, 1981, and 1982, respectively. Shortly after K.A. was born, V.H. filed a petition for dissolution of marriage in the circuit court of Cook County. That court issued a judgment for dissolution of marriage on February 2, 1983. Under the terms of the judgment, A.A. was to pay $100 per week in child support and to receive reasonable visitation rights. V.H. and N.H. were married on August 24, 1988.

On January 24, 1990, V.H. and N.H. filed a petition to adopt the three children in the circuit court of McHenry County. They alleged in the petition that A.A. was an unfit parent because he had deserted the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(c)) and had failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(b)). They subsequently amended the petition to add abandonment of the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(a)) as a further ground.

The trial on the petition for adoption commenced on September 27, 1990. Our supreme' court has held that, under circumstances such as those present in this case, trial courts must undertake a two-step process in ruling on adoption petitions. (In re Adoption of Syck (1990), 138 Ill. 2d 255, 276.) The first step is to determine whether the parent whose parental rights petitioners are seeking to terminate is unfit. (Syck, 138 Ill. 2d at 276.) At this stage it is the parent’s past conduct which is under scrutiny; evidence of whether allowing the adoption would be in the children’s best interests is not to be considered. (138 Ill. 2d at 276.) If the court determines that petitioners have met their burden of establishing by clear and convincing evidence the existence of one or more grounds for unfitness, it must then determine whether termination of parental rights and allowance of the adoption petition would be in the children’s best interests. 138 Ill. 2d at 277.

In accordance with Syck, the trial court bifurcated the trial so that the question of A.A.’s alleged unfitness would be considered during the first part of the trial. A.A. and V.H. were the only witnesses to testify. The following facts were brought out in either their testimony or the exhibits admitted into evidence.

A.A. saw the children with some degree of regularity between the 1983 dissolution of his marriage to V.H. and July 1985. V.H! would usually take the children to the Four Coins Restaurant in Wauconda, A.A.’s place of employment, so he could see them. The regular visitation ceased, however, after an incident that took place on July 17, 1985, in the restaurant parking lot. According to V.H., they had an argument concerning his failure to make child support payments and notices he had received from the Department of Public Aid concerning the late payments. At one point A.A. threatened to kill her. A Wauconda police officer who was standing nearby interceded and told A.A. to calm down. A.A. denied making any such threat to V.H. Instead, he testified that during the argument in question, V.H. stated that she did not want any more money from him and did not want him to see the children.

According to V.H., A.A. did not see the children at all from the time of the July 17, 1985, incident until late 1989. A.A. testified that he did visit with the children between one and four times in late 1985 and 1986. He stated that he also saw the children a few times by following them to school. A.A. claimed that he tried to call V.H. about visitation a few times after the July 1985 incident in the Four Coins parking lot but was only able to reach her answering machine. The machine played a song and then disconnected the call without enabling him to leave a message. V.H. denied ever having an answering machine during the relevant period. A.A. further testified that he did not go to V.H.’s apartment to request visitation because he feared she would call the police.

V.H. further testified that she did not ever speak to A.A. on the phone after the July 1985 incident although she tried to call him four or five times at the Four Coins restaurant. Each time she was told that A.A. was no longer working there. V.H. also stated that she contacted the Cook County Child Support Bureau once or twice during this period because A.A. was far behind in his support payments. The Bureau was unable to locate him.

The parties agree that when A.A. did exercise his visitation rights he seldom saw his daughter K.A. A.A. stated that this was because V.H. did not want him to see her. V.H. testified, however, that A.A. would not see K.A. because he would not acknowledge being her father. According to V.H., the day K.A. was born, A.A. left the hospital in anger because he did not believe he was capable of fathering a baby girl. He did not return to the hospital. When K.A. returned home several days later, A.A. stated that someone else must have been K.A.’s father.

A.A. stated that he left the hospital on the night K.A. was born only because there was a lot of blood around and this disturbed him. He testified that he returned to the hospital the next day to see V.H. and K.A. A.A. admitted stating to V.H. that K.A. might not be his daughter but testified that he made this accusation because of V.H.’s behavior.

Records from the clerk of the circuit court of Cook County show that at the time of trial, A.A. was behind in his child support payments by more than $30,000. According to the records, A.A. made no payments from May 31, 1985, through July 25, 1987. Early in 1985 V.H. began to receive public aid. A.A. testified that at one point he called the Department of Public Aid and asked that payments to V.H. be stopped. According to A.A., he made this request because he would have a better chance to see his children if she had been more dependent upon his child support payments.

A.A. made $1,150 in child support payments in 1987 when his total income was $4,376, and $1,350 in 1988 when his income was $15,159. Although his income increased to $25,173 in 1989, he made no support payments that year. V.H. stopped receiving public aid payments in 1988 after moving in with N.H., whom she married later that year.

A.A. testified that he consulted with his family’s attorney, a man named Cardaras, sometime in 1986 with respect to his visitation rights. Cardaras advised him to wait before filing any petition to enforce visitation. A.A. never paid any fees to Cardaras with respect to this matter. After Cardaras died, A.A. retained an attorney named Richard Valentino. Valentino sent V.H. a letter addressed to her post office box. In the letter, which was dated September 2, 1988, Valentino threatened to initiate court action unless V.H. permitted A.A. to see the children.

It is clear from the evidence that A.A. knew where V.H. and the children lived until they moved to McHenry County with N.H. in April 1988. V.H. testified that she did not notify A.A.

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Related

In Re Adoption of DA
583 N.E.2d 612 (Appellate Court of Illinois, 1991)

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222 Ill. App. 3d 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nh-v-aa-illappct-1991.