APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the County Court of Boone
County; the Hon. HENRY L. COWLIN, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This cause is heard on petition for leave to appeal filed by plaintiffs, Dwayne Cooper and Iva Cooper, from a judgment of the Appellate Court affirming the county court's denial of their petition for adoption of the twin daughters of defendant, Joan Hinrichs.
The primary inquiry presented on this appeal is whether section 4-2 of the Adoption Act (Ill. Rev. Stat. 1953, chap. 4, par. 4-2,) imposes a mandatory duty upon the trial court to deny a petition for adoption where the religion of the adopting parents differs from that of the children.
From the record it appears that the children sought to be adopted were born March 28, 1954, some five months after defendants Joan Hinrichs and Rudolph Hinrichs were divorced. Prior to their birth, the mother, Joan Hinrichs, signed an agreement for their adoption, which she subsequently repudiated.
On May 2, 1954, the mother permitted the twins to be declared dependent in a proceeding brought under the Family Court Act, (Ill. Rev. Stat. 1953, chap. 23, pars. 190-220,) and the county court appointed the probation officer as the legal guardian of the children. He placed the twins in St. Vincent's Home for Children at Freeport, Illinois, for several weeks, and then on August 2, 1954, he placed them with plaintiffs, who have continuously cared for the children.
The petition for adoption was filed by plaintiffs on August 31, 1954, and was consented to by the children's father, Rudolph Hinrichs, but contested by defendant Joan Hinrichs. Plaintiffs then alleged that, under the terms of the Adoption Act, the mother was unfit to have custody of the children by reason of depravity, open and notorious adultery, and habitual drunkenness for year prior to the filing of the petition.
In her answer, defendant Joan Hinrichs denied the allegations, and asserted that plaintiffs were of a different religious faith than the children and, therefore, could not adopt them under the terms of section 4-2 of the Adoption Act. The same contention was argued by the Catholic Charities of the Diocese of Rockford, which was allowed to intervene as a party defendant over plaintiffs' objection.
From the evidence it appears that plaintiffs are members of the Presbyterian church, and intend to raise the children in that faith. The children, however, were baptized in the Roman Catholic faith, although their father was a Lutheran, and the three other children in the family had been baptized as Lutherans. Those children had also been declared dependent, and since January 20, 1954, have been living in St. Vincent's Home.
There is conflicting evidence as to whether the mother of the children, defendant Joan Hinrichs, was, in fact, a Catholic, and on the issue of her fitness as a mother. Testimony was presented of her drunkenness, her arrest for disorderly conduct, and her course of illicit relations with men both before and after her divorce from the father of the twins. The evidence, however, is uncontroverted that plaintiffs are of good moral character and are capable of properly caring for and rearing the children.
The trial court, while recognizing that plaintiffs were otherwise qualified to adopt the children, nevertheless denied the adoption on the ground that it was barred by section 4-2 of the Adoption Act, since the religion of the plaintiffs was different from that of the children. The Appellate Court, in affirming that judgment, held that the trial court's interpretation of the statute should not be disturbed, and that there was no error in allowing the Catholic Charities to intervene.
Plaintiffs' right to adopt the children depends upon the proper construction of section 4-2 of the Adoption Act, which is a question of law on which this court must be the final arbiter. The section provides: "The court in entering a decree of adoption shall, whenever possible, give custody through adoption to a petitioner or petitioners of the same religious belief as that of the child."
The terms of the statute do not themselves indicate unequivocally whether the statute is mandatory or discretionary in character. The word "shall" appearing therein does not have an exclusive, fixed or inviolate connotation, and has been construed as meaning both "must" and "may," depending upon the legislative intent. (Teece v. Boyle, 345 Ill. App. 88; O'Donoghue v. St. Louis South Western Railway Co. 181 Ill. App. 286; Perkins v. Cooper, 155 Okla. 73, 4 P.2d 64; Simmons v. State, 160 Fla. 626, 36 So.2d 207.) The use of the words "whenever possible" in the statute, however, does suggest that the legislature contemplated that identity of religion between adopting parents and children would not be followed in all adoptions.
This provision has not been construed in Illinois. Comparable statutes enacted in most States have been given varying constructions which cannot be attributed to differences in statutory phraseology alone. (65 Harv. L. Rev. 694; 54 Col. L. Rev. 376; 5 DePaul L. Rev. 89.) The prevalent judicial attitude, however, has been to construe such statutes as advisory and discretionary, whereby the religious faith of the adopting parents is a matter for consideration, among all the circumstances of gradational significance in promoting the welfare of the child. Under this approach, a difference in the religion of adopting parents and children will not per se bar the adoption. 23 A.L.R.2d 703; 2 C.J.S. 425; 22 A.L.R.2d 696, 699; Adoption of Royer, (Pa.) 34 Del. Co. 402; In re Butcher's Estate, 266 Pa. 479, 109 A. 683; In re McKenzie, 197 Minn. 234, 266 N.W. 746; State v. White, 123 Minn. 508, 144 N.W. 157; In re Duren, 355 Mo. 1222, 200 S.W.2d 343; State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119; Donie v. Ferree, 106 A.2d 681; Commonwealth ex rel. Kuntz v. Stackhouse, 176 Pa. Super. 361, 108 A.2d 73.
However, the courts of New York and Massachusetts have given controlling weight to the natural parents' right to select the child's religion. (In re Santos, 105 N.Y.S.2d 716; Petition of Goldman, 331 Mass. 647, 121 N.E.2d 843; Ellis v. McCoy, 332 Mass. 254, 124 N.E.2d 266.) These decisions may be explained in part, if not distinguished, by the fact that the statutes in those States use the word "must" and require the court to set forth in the record the facts which impelled it to make any other disposition, thereby indicating a legislative intent to impose a more stringent rule. It should be noted, furthermore, that the Massachusetts court originally adhered to the criteria of the welfare of the child, (Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802,) and construed the statute ...