*1 she was afraid he commit testi would a sex crime. This was clearly inadmissible as and should have mony hearsay Williams, (People People excluded. v. Ill. 371; Anderson, Baker, Ill. v. Ill. 310; People 349.) It concerned the at cannot issue, we principal question say error was not Other errors prejudicial. alleged the admission of evidence need not be considered. For error indicated the re criminal court is judgment versed and the cause is remanded for a new trial.
Reversed and remanded. (No. 33950 .
Dwayne Cooper et al., vs. Appellants, Hinrichs Joan et al., Appellees.
Opinion January 24, filed *2 Hershey JJ., dissenting. and Schaefer, & Conde, of Rockford, PEdderson, Menzimer, Carl W. (L. F. for Menzimer, counsel,) Conde, Dale appellants. Rockford, for appellee Goldman, Russell J. Joan Raphael
Hinrichs, YaldEn, E. for Rockford, ap- Catholic pellee Charities of the Diocese of Rockford. Mr. Bristow delivered the opinion Justice : court
This cause is heard on for petition leave to filed appeal by plaintiffs, Dwayne and Iva Cooper from a Cooper, of the judgment Court Appellate affirming county court’s denial of their for petition of the twin daughters defendant, Hinrichs. Joan The primary inquiry presented on this is whether appeal section of the Act (Ill. Rev. Stat. 1953, 4, chap. par. a 2,) imposes mandatory duty upon trial court to deny petition for adoption where the religion differs adopting parents from that of the children.
From the record it that the children sought appears were born March some five months 28, adopted after Hinrichs defendants Hinrichs and Rudolph Joan Prior divorced. to their birth, mother, Hinrichs, Joan for their which she subse- signed agreement adoption, quently repudiated.
On May 2, the mother the twins to be permitted declared under dependent proceeding brought Family Court Act, (Ill. 1953, chap. pars. Stat. and the 190-220,) county appointed probation officer as the of the children. He legal guardian placed the twins in Vincent’s for St. Home Children at Freeport, for Illinois, several and then on he weeks, August 2, 1954, them placed with who have cared plaintiffs, continuously for the children. filed petition was on by plaintiffs
August 31, and was consented to the children’s by father, but Rudolph Hinrichs, contested defendant Joan *3 Hinrichs. Plaintiffs then under the terms alleged that, the Adoption the mother Act, was unfit to have custody of the children reason of by and notorious depravity, open adultery, and habitual drunkenness for to the year prior of the filing petition.
In her answer, defendant Hinrichs denied the alle- Joan and gations, asserted that were of a different plaintiffs faith than the children and, therefore, could not them under the adopt terms of section of the Adop- 4—2 tion Act. The same contention was argued by Catholic Charities of the Diocese of Rockford, was allowed to intervene as a defendant over party objection. plaintiffs’
From the evidence it that are appears plaintiffs mem- bers of the Presbyterian church, and intend to raise the children in that faith. The children, however, were bap- tized in the Roman Catholic faith, their father although awas and the Lutheran, three other children in the family had been as baptized Lutherans. Those children also had have and since January declared dependent,
been Home. in Vincent’s St. been living as the mother is evidence to whether There conflicting fact, defendant Hinrichs, was, the children, Joan on of her fitness as a mother. Testi- and the issue Catholic, her her arrest for drunkenness, was mony presented her with course of illicit relations disorderly conduct, her the father of both and after divorce from men before that The is evidence, however, twins. uncontroverted moral are are character and good capable plaintiffs for and the children. caring rearing properly The trial while that court, recognizing plaintiffs de- nevertheless qualified children, otherwise adopt sec- nied on the that it was barred ground adoption of the since the Adoption Act, 4—2 was different from that of The the children. plaintiffs held Court, affirming judgment, Appellate trial court’s of the statute should not be dis- interpretation and that there turbed, was no error allowing Catholic to intervene. Charities right
Plaintiffs’ children adopt depends upon construction of section of the proper Act, which is a of law on question which this court must be the final arbiter. “The section court in provides: entering decree of whenever shall, possible, give custody to a through of the same petitioner petitioners belief as child.” The terms of the statute not do themselves indicate un whether the statute is equivocally mandatory or discretion in character. The word “shall” ary therein appearing does have fixed or exclusive, inviolate connotation, construed as both “must” and *4 meaning “may,” intent. depending upon Teece legislative ( v. Boyle, 345 Ill. 88; v. App. O’Donoghue St. Louis South Western Rail way Co. 181 Ill. 286; Perkins App. Cooper, Okla. 155 64; P.2d 73, State, Simmons v. 160 Fla. 626, So.2d. 4 36
273
in the
words “whenever possible”
The use of the
207.)
contem-
that the
does
however,
suggest
legislature
statute,
between
identity
religion
adopting parents
plated
in
followed
all adoptions.
children would
be
in
not been construed
Illinois. Com
This
provision
have
in most
vary
statutes enacted
given
States
parable
constructions which cannot be attributed to differences
ing
Rev.
statutory
694;
alone.
Harv.
phraseology
(65
L.
Col.
DePaul
376;
Rev. 89.)
preva
L.
L.
54
5
lent
has been to
such
judicial
construe
attitude, however,
whereby
statutes as
advisory
discretionary,
faith of the
is
a matter
consideration,
adopting parents
all the
circumstances of
among
gradational significance
the welfare of the child. Under this approach,
promoting
difference
and children
will not
se
per
bar the
2
adoption.
703;
A.L.R.2d
23
C.J.S.
22
425;
A.L.R.2d 696, 699; Adoption
Royer, (Pa.)
34
In re
402;
Estate,
Del. Co.
Butcher’s
However, courts New York and Massachusetts have given to the natural controlling weight parents’ right to select the child’s re (In Santos, religion. N.Y.S.2d Petition 716; Goldman, Mass. N.E.2d 843; Ellis v. McCoy, Mass. 254, 266.) N.E.2d These decisions may explained if not part, distin the fact guished, by that the statutes in those use States the word “must” and the court to require set forth record the facts which it to make impelled any other dis position, thereby indicating intent legislative to impose a more It stringent rule. should be noted, furthermore, that the Massachusetts court originally adhered to the cri-
274 Jamrock, teria of the welfare of the child, (Purinton 195 80 and construed the statute com 187, Mass. 802,) N.E. in no a to our section as way indicating parable legis be the lative intent of shall sole or identity Petition Gally, consideration. necessarily principal of 143, Mass. N.E.2d 329 107 construed Pennsylvania Adoption Royer
The court sec- discretionary as a identical to practically provision The statute sec. Pur- Pennsylvania (Title 1, 1, 4—2. don’s “Whenever Anno.) possible Pa. Stat. provides: shall be faith natural same as the parents petitioner the child to be The court held that differences adopted.” faith between natural and will religious parents if it will best welfare preclude adoption, promote of the child.
This decision followed the advanced in the reasoning Estate, In re Butcher’s Pennsylvania earlier case of 266 Pa. Atl. where the 683, court, construing 109 held did statute, similar that it not relieve the court of its to such in its shall as, choose be best duty person opinion, fitted to look after the as well as welfare physical spiritual further his education minor, including training, and that the is the morals, welfare child primary to which all must questions yield. consideration other The stated: “We consider do not this to be a language command such to positive appoint persons regardless of other considerations to fitness, as from relating taking the court its discretion.” Missouri court has taken same (State position. Bird,
ex rel. Baker v. Mo. In re 119; S.W. Mo. Duren, 1222, In the Bird case 343.) S.W.2d as the court construed discretionary a statute only that a minor shall not be committed provided guard- person persuasion different ianship from that of the if another suitable can be found. person The court implied, moreover, differ- give religious cases would transgress enees controlling weight Duren case In the liberty. State’s policy as as a similar court construed the same well statute, and held in the Court Act, practi- provision Juvenile to be considered considerations were calities temporal under first such statutes.
The Minnesota a statute court, construing comparable to section has also (Minn. sec. Codes, 260.20,) to the best interests and welfare given controlling emphasis *6 the child. factor; of is considered as one only Religion and will not be barred consequently, adoptions guardianships on the merely of differences. grounds religious State White, re McKenzie, In Minn. N.W. 157; Minn. 234, 266 N.W.
These decisions of other while not deter- jurisdictions, are entitled minative, to In cases in this respect. jurisdiction, we have insisted although upon compliance with the jurisdictional the requisites, all such polestar cases has always been the welfare and best interests the child. In fact, section sets forth that re- expressly 4—1 We quirement. cannot, under the sec- guise enforcing tion 2, avoid the of what is complex inquiry the child’s best interests by the statute sets holding forth a “rule of thumb” which automatically precludes adoptions by per- otherwise sons, well if their qualified, is different religion from that the child’s natural as defendant parents, sug- and as the gests, trial court felt to do. Nor is impelled sec- Act couched in such unequivocal terms as to indicate a intention legislative to abandon the standard of the best interests the child, or to create an irrebutable that it is presumption to always the child’s best interest to be trained in the of his religion natural parents, of other irrespective factors.
On the other we hand, do not imply religious affiliation is no more than significant it would be in the absence of such a provision as section This section 4—2. similar in the Illinois statutes one of several
is provisions be affiliation of to persons given to the religious pertaining custody children, (Ill. pars. 1953, chap. Stat. and indicates a intention to 1,) legislative 299b and direct the to stress factor to give the same as the child to to religion preferences persons qualified where are otherwise adopted, they promote It the welfare of the does bar however, child. not, adop of all other factors because the merely tion irrespective are of a different parents persuasion than child. each
In instance court has discretion to determine whether the child’s best interests are served by primarily child between the adoption, identity is a but adoptive and desirable not parents significant exclusive factor to be considered the court in the exercise of this discrtion. a construction pays respect Such the desire their of the natural child will be the benefits they accorded believe are afforded by and at the same time religion they profess, particular this does allow benefit to potential wel- jeopardize fare of child or be at of the child’s best expense interests. *7 the
In of this of light section of interpretation 4—2 the itAct, is our that the cause should judgment be reversed the and remanded to trial court for further on proceedings to ascertain plaintiffs’ petition, wider examination the of facts and upon circumstances in whether the discretion the the of in the case instant would fact the best interests promote of in view the difference children, and the children. aAs further ground reversal, contend plaintiffs the intervention Catholic Charities was im- under the Civil Practice Act. proper (2) Section 26.1 (b)
277
timely applica-
Act
Practice
provides: “Upon
the Civil
of the court
per-
in the discretion
may
anyone
* *
*
an appli-
in an
when
to intervene
action
mitted
a question
main action have
cant’s claim
and the
or defense
fact
common.” (Italics added.)
law or
construed
has not been
this recent amendment
Although
Rule
after Federal
the Illinois
it is
courts,
by
patterned
(28
interpreted
723)
U.S.C.A.
24(b)
§
have an enforceable
require
recog
applicant
in the sub
interest”
nizable
more than a
right
“general
Jewell
60;
Ridge
matter.
Federal
ject
Moore,
Practice,
4
Coal
Co. v.
F.R.
U.M.W. F.R.D.
Local 6167 of
3
7
Nederlandske,
;
Bernstein
2462;
Serv.
v.
Supp,
F.
335
76
2
Procedure,
Barron
Federal Practice
Holtzhoff,
&
&
223;
United
General
165;
States
Co.
F. Supp.
Electric
95
Allen,
Fielding v.
D.C.
F.R.D. 106.
N.Y.
9
In the instant
defendants
unlike the cases cited
case,
re
Adoption,
intervention
Doe’s
support
(In
Wash.2d
ex rel. Kuntz
P.2d
Commonwealth
321;
v. Stackhouse,
In re
Pa.
ther propriety granting proceedings the inter- it is determine whether to necessary petition, vention herein constituted error. prejudicial remanded, with
Reversed and directions. Mr. Hershey, dissenting: Justice “whenever There can be no doubt that the words pos sible” vest the court with As interpret discretion. I it whether question discretion is not limited to the solely or can be the are, found, there same persons belief relevant child; the it includes other adopt to willing considerations as well. But it is not a discretion that per the court to mits omit the entirely question belief or to the that the depreciate high legislature priority it intended In clearly to have. this case the record shows officer the statute. probation completely disregarded His efforts of these to about unremitting bring children by the petitioners before children were began born. record further shows that there numerous Catholic families whose had homes investigated by licensed child welfare who were children agency, seeking to were of adopt, and who were good reputation, available to these children. adopt Under these it circumstances, seems me to that the trial court was within clearly its discretion and that dismissing petition Court Appellate correctly sustained that Ill. action. 8 App.2d 144. far as intervention is concerned,
So of the opinion literal suggests application provisions of section 26.1 of the Civil Practice Act. (Ill. Rev. Stat. 1955, chap. 26.1.) par. have proceedings unique characteristics, however, and the legislature them the recognized statute relating where adoptions, it is that the provided court “shall specifically designate a licensed child either welfare agency, probation officer of or court, some other suitable agency person” to in circumstances the case and vestigate report *9 1.) Such 4, par. chap. (Ill. Stat. 1955, court. I adversary litigation. in ex is unknown parte report licensed agencies that the recognized capacity think makes cases, these unusual assistance render important of the rules govern a literal application inappropriate in other intervention cases. dissent. the foregoing concurs
Mr. Schaefer Justice (No. 34122 . People Defendant Er- Illinois, the State vs. Plaintiff
ror, Error. Nails, Chester Opinion January 24, filed Irvin Jacobson, Chicago, plaintiff error. J. CastlE, LaTham Attorney General, Springfield, Guild, State’s William L. Attorney, Wheaton, (Fred G. Leach, and William Bauer, for the counsel,) J. People.