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Stalder v. Stone

OPINION FILED MAY 22, 1952

ADOLPH STALDER ET AL., APPELLANTS,

v.

JAMES ROBERT STONE ET AL., APPELLEES.



APPEAL from the Appellate Court for the Second District; — heard in that court on appeal from the County Court of Stephenson County; the Hon. RALPH P. SHERIDAN, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 15, 1952.

The county court of Stephenson County allowed a petition for the adoption of James Robert Stone, filed by Adolph Stalder and Viva Stalder, hereinafter referred to as plaintiffs, which had been contested by the alleged natural mother, Adale Stauske, herein referred to as defendant. The Appellate Court of Illinois, Second District, reversed the adoption order on the theory that there was insufficient evidence to establish the statutory grounds for adoption, and this court has allowed plaintiff's petition for leave to appeal.

Plaintiffs' first petition for adoption of James Robert Stone alleged that he was born on September 29, 1943, as the son of one Jane Stone; that the child had been placed in their home by Adale Stauske on August 1, 1945, and had resided with them since; that the parents had abandoned the child, and had deserted the child for a period of more than six months next preceding the filing of the petition; and alleged on information and belief that the father of the child was dead. Adale Stauske answered this petition alleging that she was the natural mother of the child and denying abandonment and desertion. After a hearing, the court found that Adale Stauske was the natural mother of the child and found her not guilty of abandonment or desertion and denied adoption. Within thirty days thereafter plaintiffs filed their motion to vacate this order, supported by affidavit, alleging that defendant was a depraved person and that she had been, and currently was, guilty of open and notorious adultery and fornication. Defendant's motion to dismiss plaintiffs' motion to vacate was denied, the motion to vacate was allowed and a second hearing had, resulting in the judgment appealed to the Appellate Court.

Although defendant has interposed issues respecting the pleadings and the admission of evidence, the essential inquiry presented by this appeal is whether the evidence establishes that the natural parent abandoned or deserted the child or was unfit by reason of depravity within the terms of the Adoption Act. Ill. Rev. Stat. 1947, chap. 4, par. 4-1.

The background facts which are patently connected with the conduct of defendant, Adale Stauske, disclose that her own mother died when defendant was an infant, and that she and her twin sister were reared by an aunt and uncle who adopted them. The girls later ran away from home, and defendant became a registered nurse, while her sister eventually married and reared a family.

In 1932, while working in the West Side Hospital of Chicago, Adale Stauske attended Lawrence Rhode, who had sustained a fractured back. When he left the hospital she accompanied him to his home on a farm near Winslow where she remained for some six weeks, partly in the capacity of a guest, and partly as a nurse. There she met plaintiffs, Viva Stalder, Lawrence's sister, and her husband, Adolph Stalder. Thereafter defendant spent many vacations at their home.

In 1942 Adale Stauske was commissioned as a second lieutenant in the Army, and on the boat going overseas she became very well acquainted with the alleged father of the child involved in this adoption. They continued their intimacy when they were stationed together at New Caledonia, and spent week ends together. Defendant testified that she first learned that he was already married when she informed him that she had become pregnant. She hesitated to have an abortion, she stated, because of lack of skill found in the available personnel.

She was eventually sent back to San Francisco, and the Army severed connections with her. The child was born in a San Francisco hospital where defendant continued to live on the pretext that she was a patient. Upon her discharge she left the child in that city with some nurse, and went to her sister's home in River Forest, Illinois, where she remained for over two months, pretending to be on a leave of absence from the Army. She invented the story that she had befriended Jane Stone, an unwed mother who had a child whose father was killed in action and that since the girl's parents would have nothing to do with her if they learned of an illegitimate child, defendant wanted to bring the child back with her.

Defendant and the child moved in with the sister, her husband and children, and remained there for about two years until the sister became ill and could no longer assume the additional responsibility of the baby. Defendant thereupon, with the assistance of Lawrence Rhode, with whom she had resumed her affair, drove around the community to find a home for the child. Unable to find a place, they brought the child to plaintiffs' home at Winslow where the child was left for some ten days. He was then taken to another prospective home at Midlothian, and when he was rejected there because he cried all night and disturbed the neighbors, he was returned to plaintiffs' home where he has remained until the present time.

The evidence in regard to the understanding of the parties and the conversations had when the child was left with plaintiffs is meager and conflicting. Defendant testified that she told plaintiffs they could never adopt the child and they agreed to keep him for $50 per month support money. Plaintiffs deny this and say nothing was said about adoption and no arrangement or agreement was entered into. The evidence does show that defendant sent a money order for $50 after the child was with plaintiffs for a month but no further payments were ever made. Defendant or her sister did send small gifts, sometimes of used clothing of the sister's children, a very few times. These things were sent for Jane Stone's child. During this two-year period defendant lived in Chicago about 120 miles away and never came to see the child except one time when she came to Winslow, Illinois, where plaintiffs lived, to attend the funeral of Lawrence Rhode who was killed in an automobile accident.

At the first trial she explained her failure to see the child for the prolonged period by the fact that she was under constant treatment for allergic rhinitis and dermatitis; however, on the second trial, when confronted with certain evidence, she admitted that she had been busy, at least part of the time, in endeavoring to procure an abortion. She also claimed that she was mistaken about the suspected pregnancy during 1947, although she admitted having sexual relations with some man during this time, and having written letters to the doctor who served the community of Winslow for some 25 years, in which she described in detail her attempts to abort herself, her symptoms, and her search for a physician who would perform an abortion, and also requested funds so that she could pay for such an operation. The doctor testified that she came to the community for an examination late one night, and that the examination revealed her to be pregnant and that she was so informed.

When defendant learned of plaintiffs' intentions to adopt the child, she revealed for the first time that she was the natural mother, and had been endeavoring to find a father for the child. She explained that she had not visited them because she was grieving over the death of Lawrence Rhode and the area reminded her of their courtship. The record does not disclose whether Lawrence Rhode knew that their courtship had been interrupted by the affair in the South Pacific.

Defendant at the trial avowed intentions of marrying one Norv Vaughn, an unhappily married man of 50, who then had a living wife and adult children. Defendant attended Vaughn while he was in the hospital with a heart ailment, met his children, and knew of his marital status. Notwithstanding that fact, defendant and Vaughn had numerous visits alone together at her apartment, some extending through the night. One such visit was weakly explained by the statement ...


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