*1 In re Rachel Yvonne (Vicki Sims et al., Petitioners-Appellants, Sims. — v. Rachel a Minor et al., Respondents-Appellees.) 12607;
(No. Fourth 17, 1975. District SIMKINS, J., dissenting. P. E. for Leslie
Grady Holley, Springfield, appellant Greer. Mueller, L. Vicki Sims. appellant Robert of Springfield, Rabin, Services. Mark Child and Family Springfield, appellee Mr. GREEN court: opinion delivered JUSTICE On of Child Jayne Brickley-McDonald, behalf under the filed a Sangamon County, *2 in the 1971, cir 37, Court Act Rev. ch. (Ill. 1) Stat. par. 704— Juvenile cuit Sims, court of Sangamon August that Rachel born County requesting 29, 1972, ap be declared a ward and that guardian of the court a the to was pointed authority consent to her The adoption. petition heard 25, 1973, the court on evidence of consent to by September and Greer, the Sims, mother, Vicki natural Les part of the and father, the the and natural form of written consents presented oral The court entered an order testimony. relieving natural and parents their a order dispositional appoint director of Child and Comity as Sangamon and him to guardian authorizing adoption. Greer vacate the
Les to petitioned dispositional 25, 1973, Greer, September Rufus of Rachel paternal grandfather post-trial filed a motion for After rehearing. hearing, peti- both tion vacate and the motion for rehearing denied on November were 26, 10, 1973, Sims 1973. On December Vicki filed a vacate the petition to 1973, 25, orders of dispositional September duress. After hearing, basis of denied petition was and the orders of 1, “confirmed” by were order entered February 1974. and Les from Vicki Sims Greer that ordеr. appeal Stauffer, Ronald P. executive
Appellee director of Child and Fam Services of ily Sangamon County, contends that lacked trial court 10, to hear the Sims jurisdiction petition 1973, Vicki filed December requested because it a on or rehearing modification of the adjudicatory ordеrs of the court and was filed more than 30 days of those in violation entry after of section of the 68.3 Civil 110, (Ill. par. Practice Act Rev. ch. 68.3). Appellants Stat. timely Greer contend petition Sims Les because it was filed Les petition of the court’s denial of Greer’s within on November days application need not rule 26, 1973. We provision 30-day however, facts, because we section these deem 68.3 Vicki Sims’ of section 72 requirements to meet the Civil Practice Act par. obtaining of the 72). entry Rev. Stat. ch. of an (Ill. relief ground is a under that proper section (People order Forbrich, rel. Forbrich 21) such after yeаrs be filed less than 30 nor more than petition may days not of the entry order attacked. gave Vicki Sims The evidence that on undisputed was a to Rachel Vicki Sims baby’s birth, birth At of the Sims. natural Greer, school 16-year-old baby’s Caucasian student. Les high natural father, 19-year-old Both of the high graduate. black school to do so at lived their continued parents respective parents birth, time of Prior and after baby’s proceedings. and Family the Child Sims consulted with social workers employed Les Greer the situation with these social workers. Services. also discussed home, and at baby allow life, at home baby’s 9 or 10 she was cаred for the first months White, teacher Vicki visited of Chris school and friend Vicki’s. high this On one occasion Vicki moved baby frequently during period. for about to care for parent’s attempted out of home a week Rufus Rachel on her was taken the home of baby own. After father, and lived for a of months. Greer, Les Greer’s there couple brought testified home from baby that when first that either have to her father told her he or would hospital, she, Vicki, had to While giving leave and child. sign papers up White’s, Vicki’s father continued to be kept upset. Rachel was *3 see the so was forbidden to child but did She further- frequently. Vicki fathеr, in her while excited came to that July, angry, testified Vicki, she, with the her while was there and told baby White’s Chris or not come that give up baby night. she either had to home that episode confirmed this and said that the father yelling White was White also testified to an call from crying. angry Vicki Miss receiving day. that Vicki testified that after this she at- episode mother in an baby apartment gave live alone with for a while but to tempted she did not have and took the enough money this scheme because on up She said she Rachel until with Les Greer. continued to see stay to baby 1973, her told she to sign in father her had early August, again day home. On a docu- August signed leave she papers or adoption in child to Stauffer his official appellee capacity surrendering ment without further notice to adoption to consenting her. testified that she a case worker for Brickley-McDonald
Jayne working had been Vicki. On July and Child her and said that she to relinquish wanted approached stated that she appeared upset didn’t day. on that rights her herself and that neither she nor the raise Rachel baby she could feel in life an without other apartment any satisfactory help. live could to Yield said that she her parents to take the consent fоrm to wanted not show them that she she would it. Mrs. McDonald said that sign that allow further stated be signed day. that witness she talked sign with Vicki on let Vicki 30 and August ex- her that 7. That Mrs. McDonald day told perience in ready live she was not trying to on her convinced her that own to raise Rachel. Mrs. then once or saw Vicki twice McDonald she hearing September 25, 1973, indicate and Vicki continued to wanted to proceed that she was seeing with the adoption but admitted the child, who still at Les Greer’s.
At the September 25 testified Vicki Sims adjudicatory hearing, she had relinquishment voluntarily testifying and was paper own free She will. said she had discussed adoрtion only her parents once after the bom and that wanted baby although they ahead with she go told her could do adoption, they she what wanted to do. She also testified that her not allow parents would in their baby home because of that a friend the child prejudice kept for 9 or 10 She that she had social voluntarily months. said talked with workers at Child and Family Services about courses available to her but that had they not told her what She testified times to do. several that she realized that her consent adoption meant relinquishing child forever. She also indicated she had considered that the child might adopted because of difficulties of placing racially mixed children and in be raised foster homes and still might considered that it was in tire best interest of the child She give up. testified that Les Greer did not although at first want to give baby and his up father wanted she still felt that was the best interest of the child to give up. testifying vacate, Jayne Brickley-McDonald said that Vicki her at told that she hearing spent had previous weekend from away her parents and still felt that she de- making right cision. Mrs. 4, 1973, however, McDonald said that on December told her that had made a mistake and wanted to get back.
theAt times of the execution of the сonsent in question hearing September 25, 1973, the statutory provision governing revocability consents in issue type stated that they: *4 “* * 0 shall be irrevocable it unless shall have been obtained by fraud or duress and a court of competent jurisdiction shall so find. The consent of a parent who is a minor shall not be voidable be cause of such minority.” (Ill. Rev. ch. par. Stat. 9.1— Effective October the foregoing provision amended to pro- the fraud or duress supporting vide that revocation must have been or the consent committed acknowledgment by person taking duress from Thus, surrender or the agents. or their adopting parents gov- such immaterial. The law persons prior as Vicki’s would be case, erns this however. adjudi of
As termination of adoption order was on written surrender and catory based 25 confirming of signed testimony that she could not properly execution document and stating execution of the care for the Her is that her appeal contention on child. duress and her done under the consent to was testimony acquiescing exactly are of the conduct The axiom that no two cases of her parents. duress. In alike involving allegation is those particularly applicable Bureau, ex rel. v. Cathоlic Home teacher to revoke a 28-year-old sought unmarried school mental she had She undergoing child. give treatment those treating baby up advised by fiance, father. Her baby’s as did have been adoption, may who the child. After objected keeping mother and to her stepfather strongly Home disсussion with of the Catholic Bureau representatives concerning consent, options irrevocability available a later seek baby’s proceeding consent about weeks after birth. that the consent was ruling finding return of trial court The Illinois appeal. Supreme not obtained was affirmed on durеss Court stated: rules not in As this Court
“The of law are said doubt. applicable Stoltze, Ill. 433, in Stoltze v. 442: as a condition exists defined which ‘Duress has been universally induced the unlawful act another to make a where is under or or an act circumstances which contract perform forego his free There him of exеrcise of must be deprive will will. as shows that the execution mind affecting such compulsion was not the other instrument act of voluntary the contract or at the time present operate must be compulsion maker. Such The burden such duress proving the instrument was executed. asserting it. person [Citations.] duress, not constitute Mere or vexation will but annoyance compulsion affecting must such mind shows that there the contract other instrument is not the volun- or the execution act maker. [Citations.] tary or constitute advice, does not argument persuasion Mere acts he freely if individual when executed undue influencе or same would not documents have questioned though been
411 advice, executed the except argument [Cita for or persuasion. 84, 92-93, (34 213 N.E.2d tion.]” In Bell, Buell the trial rel. 20 Ill.App.2d court’s evidence of fraud and duress where there finding upheld that the away mother’s State take her ex-husband told her that the might other children if she tried to the the consent was baby, medication, the the day was born the under and while mother was that the doctor who had 6 months delivered told her that she mother reclaim baby, get that the mother to take action to began Huebert, In baby back the next re after consent was In day signed. 793, 270 reversed lack of the court a finding fraud where, alia, and duress inter adop natural mother’s consent to tion was signed days after it a suggested friend of mother’s who was emotionally involved mother’s husband planned him, to run away with the mother’s had her husband told he had lost his job her, and was brief leaving consent was one signed during interview at the Aid Department Public no alternatives were where discussed, and the mother her mind same the consent changed day was signed. consideration, the case under at the time of pronouncing ruling his vacate, the trial judge stated that he felt that regardless consent, situation time Vicki executed at the time
of the adjudicatory dispositional hearings when she informed the court of her desire to give up she was free from duress. He believed that later a had of heart about change giving up child. Mrs. McDonald had proceeded with caution in wait Vicki’s request week after a consent from her. acceрting 2% More than had elapsed early months between episode when Vicki’s father threatened her at White’s house Furthermore, hearing. had done to seek nothing set aside the some for time after then- entry.
Nevertheless, we find the actions undisputed constitute duress as a They matter law. merely argue as in their persuade but conditioned love of their parental daugh ter and their fulfillment of their legal obligation support during on her minority adoption. Vicki was consenting only when born and when only the consented was executed. She de time, course to take liberated to what but the long evidence is that her were parents’ always present. threats undisputed course for the may best child and the Adoption parents. care the legal be unable to child. Since may to de- proceeding however, consent, prive was based on parental rights duress, and we believe that consent must have been free from here is evidence conclusion that drawn from the only can be such was not the case. Les and dispositional Greer that if
Appellant asks to him as well. aside as to be set aside as Sims, they be set is He parent cites no The termination of authority. contingent from and not upon separatе apart matter usually When, however, the action parent. of these of the other termination a guardian appointment based on consent involves A is applicable. to consent to different rule *6 power guardian Thus, the other. no lieu of cannot serve in lieu of one and not in parent and adjudicatory disposi useful is now having served purpose tional orders stand him. against dis- that the requested adjudicatory
The of Vicki petition Sims returned to We rule be that Rachel her. vacated and positional reverse and remand that this have been done. we Accordingly, should directions that to the circuit court of with Sangamon County cause as to all parties be vacated dispositional have that Since we ruled that Rachel Sims be returned to Sims. the relief in Sims, requested of Vicki which is basis for in invalid, petition we direct be dismissed bar of also petition, action, parties. as all directions.
Reversed remanded with TRAPP, concurs. J., SIMKINS,
Mr. PRESIDING dissenting: JUSTICE I burdеn duress is establishing upon dissent. The of assert person Bureau, rel. v. Catholic Home 34 it. (People fact, The issue is to the trier of be resolved its 507.) be affirmed on review unless contrary will manifest judgment court, If the of the 94.) the evidence. trial weight (Drury, judgment in a consent to obtaining adoption, issue of is against of the evidеnce court will weight reviewing re (In manifest reverse. Huebert, 793, The question before was, view, He question in fact. had before my trial him sworn' judge at the given petitioner, testimony hearing testimony. consent was She also voluntarily that occasion she realized that her consent testified on meant a re and that shе to the forever felt to be linguishment to consent the best interest the child The adoption. in judge was also aware of the of Child personnel Department Services refused to the consent on the date permit sign first and did not so until had discussed the matter request, do had, on three In subsequent occasions. аddition on one or two oc- they casions, discussed the after the petitioner matter consent was hearing. elapsed Almost weeks between the filing tire petition hearings which were had on September 1973. It was not until December petitioner her, indicated that she wanted the child returned to and her vacate order of filed December 1973. short, fact, the trial was confronted an and his judge issue of is, view, in
judgment the manifest of the my clearly against weight evidence.
How that which was a of fact in the trial court question became a question of law court is this a matter me. which I would escapes affirm the above. judgment Gary Illinois, Daily, State of Plaintiff-Appellee,
Defendant-Appellant. 12784;
(No. 17, 1975. Fourth District