APPEAL from the County Court of Cook County; the Hon. OTTO
KERNER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This is an appeal by Joseph Simonick and Jeanette Simonick, the natural parents of Joseph Simonick, Jr., a minor, from an order by the county court of Cook County denying leave to appellants to file a motion to dismiss the adoption proceedings, and decreeing said Joseph Simonick, Jr., to be the child of James Simaner, Jr.
Joseph Simonick, Jr., the minor, was born to Jeanette Simonick, then Jeanette Lave, and Joseph Simonick, on March 26, 1955, prior to their marriage. The record reveals that in September, 1955, the mother went to the Catholic Home Bureau and discussed the placement of herself and the child. She was then three months pregnant with another child by the same man. On October 27, 1955, she was informed that St. Vincent's Orphanage had an opening for the baby. The mother took the child to St. Vincent's on that date, returned home, and the next day took her clothing and reported to the Catholic Home Bureau. She was placed in a suburban home. On November 23, 1955, she gave her consent to the Catholic Home Bureau to place the child in a family home for adoption, without notice to her, and gave the Catholic Home Bureau, its officers and agents, full right and authority to enter her appearance in any proceedings for adoption, and she consented to the adoption of the child by the persons selected by said bureau.
The Bureau placed the child in the home of James and Margaret Simaner for adoption.
On March 4, 1956, the natural mother gave birth to her second child. About March 15, 1956, she contacted the Catholic Home Bureau and attempted to orally revoke her consent for the adoption of Joseph Simonick, Jr. On April 21, 1956, the mother and father were married.
On June 27, 1956, the Simaners filed their petition to adopt in the county court of Cook County. This petition alleged Jeanette Simonick to be the mother and sole parent of the child, and that she had surrendered the child to the Catholic Home Bureau and had authorized the Bureau, in writing, to place the child for adoption and to consent to the adoption without notice to the mother. Summons was served on the minor child and a guardian ad litem appointed for him. This guardian ad litem answered and consented to the adoption on September 18, 1956. Consent to the adoption was entered by the Catholic Home Bureau.
On July 27, 1956, the appellants, Jeanette and Joseph Simonick filed their appearance and on September 18, 1956, filed their petition to intervene in the proceeding, alleging they were the natural parents of Joseph Simonick, Jr., that they were married the 21st day of April, 1956, that the father, Joseph Simonick, had not and did not consent to the adoption and had not been made a party defendant to the adoption proceeding; that at the time Jeanette Simonick surrendered the child to the Catholic Home Bureau and consented to its being placed for adoption, she was under great mental stress and emotional tension and disturbance; that she had attempted to recover the child; and prayed leave to intervene and that Jeanette Simonick be permitted to withdraw her consent.
The Simaners moved to strike the petition and the court permitted each party to present evidence and argue the cause. Leave to intervene was granted, but leave to withdraw the mother's consent was denied, and it was found that the alleged natural father had no rights in the matter.
The record reveals that the court then delayed the entry of a decree of adoption, on October 25, 1956, to permit the intervenors to appeal and obtain review of its order. The judge stated that he did so to avoid administrative complications arising should his order be reversed.
The natural mother and father sought direct appeal to this court alleging that sections 2-1, 3-7, 4-1, 7-2, 7-3, 7-4, and 7-5 of the Adoption Act (Ill. Rev. Stat. 1955, chap. 4, pars. 2-1, etc.) and the special limitation act (par. 10-1) were unconstitutional and invalid. These provisions relate to the procedures to be followed in an adoption proceeding, the requirements relating to consent to adoption, and the practice on appeals from adoption decrees. On the motion of the Simaners this court transferred the appeal to the Appellate Court, First District, as no constitutional question had been determined by the county court.
On December 23, 1957, the Appellate Court affirmed the trial court, holding that the consent of Jeanette Lave Simonick was not obtained by fraud or duress, which is the only basis upon which a consent may be revoked under the provisions of section 3-7 of the Adoption Act, that the father, Joseph Simonick, had no rights in the adoption proceeding, and the mother could not withdraw her consent. (In re Petition of Simaner, 16 Ill. App.2d 48.) This court dismissed an appeal from the decision of the Appellate Court, and denied leave to appeal. Simaner v. Simonick, 13 Ill.2d 627.
On April 11, 1958, the appellants, Jeanette and Joseph Simonick, presented a motion in the proceeding in the county court, to dismiss the petition for adoption. In this motion they alleged that the consent of Jeanette Simonick did not meet the requirements of sections 3-6, 3-7, and 3-8 of the Adoption Act, which govern the form, irrevocability, and requirement of consents, that petitioner Margaret Simaner had died on September 28, 1957, and that James Simaner, Jr., had no legal right to adopt the child, and such adoption would violate the rights of the child and his parents under the due process clauses of the constitutions of the United States and the State of Illinois; that the provisions of section 3-7 of the Adoption Act providing that certain consents to adoption shall be irrevocable is invalid and unconstitutional as a deprivation of right without due process of law, and an attempt by the legislature to usurp judicial powers in violation of the 14th amendment to the constitution of the United States and of section 2 of article II, and of article III of the Illinois constitution; and that since section 3-7 of the Adoption Act was so invalid and unconstitutional, the revocation and withdrawal of consent to the adoption by Jeanette Simonick was lawful and the proceeding should be dismissed.
The court examined the motion, and on April 15, 1958, refused to rule upon it and entered an order denying leave to file it.
On April 29, 1958, James Simaner, Jr., filed an amendment to the petition to adopt Joseph Simonick suggesting the death of his wife, Margaret Simaner on September 28, 1957, and reaffirming his desire and petition to adopt Joseph Simonick. To this amendment, the Catholic Home Bureau filed its appearance and ...