APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of Peoria
County; the Hon. HENRY J. INGRAM, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Nick and Helen Giacopelli, husband and wife, filed a petition for writ of habeas corpus in the circuit court of Peoria County against Anthony and Doris Legaz, to secure the custody of petitioners' four-month-old son, Thomas Giacopelli. A return was filed alleging that petitioners had abandoned the child and were not fit to have its care and custody. The cause was tried by the court, which found that the welfare of the child would be best served by denying custody to petitioners. The writ was quashed, and the child was remanded to the custody of respondents. On review by the Appellate Court the order was reversed, with directions to return the child to petitioners. (Giacopelli v. Florence Crittenton Home, 16 Ill. App.2d 445.) We have granted leave to appeal.
A determination of this cause requires a detailed analysis of the evidence adduced on the hearing in the trial court. Petitioners, Nick and Helen Giacopelli, were married March 10, 1955. At the time of the hearing in July, 1957, Nick Giacopelli was 38 years of age and Helen Giacopelli was 44 years of age. Nick Giacopelli had previously married three times, in 1943, 1944, and 1949. Each of these marriages ended in divorce, the first for the wife's fault and the other two for his fault. The second and third marriages were consummated at times when Nick Giacopelli was not yet divorced from his first wife, he not having secured a divorce from his first wife until 1950. By his third marriage he had one child who is now in the custody of the child's mother. Helen Giacopelli had been previously married once and divorced some 15 years ago. She had two children by the prior marriage. Her daughter is married and lives at Normal, Illinois, and her son is in the service. At present, petitioners are living in St. Louis, Missouri, in a 4-room apartment occupied by the mother of Nick Giacopelli.
In May, 1956, Helen Fontaine Giacopelli became aware of the fact that she was pregnant. She claimed that she then became upset and emotionally disturbed and continued in this condition during the first 4 1/2 months of her pregnancy. The latter part of October she decided to visit her daughter at Normal. While driving to her daughter's home she became involved in a minor car accident. The woman driving the other car, whom she did not know, noticed her pregnancy, noticed that she was upset and, when told that she did not want to go home, suggested that she go to Florence Crittenton Home in Peoria. This home is a charitable organization providing a haven for unwed mothers. Pursuant to this suggestion she admits that she went to the Crittenton Home and there discussed her situation with Claire Austin, a trained social worker and executive director of the home. There are serious discrepancies in the testimony of Helen Fontaine Giacopelli and Claire Austin at this point. The first arises as to dates. Helen Fontaine Giacopelli testified that following the car accident in the latter part of October she proceeded to her daughter's home, left her car there and took a bus back to her husband's home in St. Louis. She says that on November 5 she took a bus to Peoria and entered the Crittenton Home; that she was interviewed by Claire Austin the next day, November 6; and that she remained in the home until November 15 when she decided to leave, until closer to the time of her delivery. Claire Austin testified that Helen Fontaine Giacopelli telephoned the home a day or two prior to October 21 to inquire about the facilities and that on October 21 she entered the home for the first time. On that day she interviewed Helen Fontaine Giacopelli and prepared an intake sheet which she produced in court and which apparently bore the date of October 21. On that date, in preparation for her entrance into the home, a Wasserman and smear were taken of Helen Fontaine Giacopelli and sent to the Health Department. Report cards showing negative as to both were returned to the Crittenton Home and these cards are dated October 22. These cards were likewise produced in open court. Claire Austin further testified that Helen Fontaine Giacopelli remained in the home until November 4, and not November 15, when she announced that she would go to her daughter's home and there wait until she was closer to the time of delivery. The record is barren of any explanation by Helen Fontaine Giacopelli of these discrepancies as to dates.
The second major discrepancy appears with reference to the interview between Helen Fontaine Giacopelli and Claire Austin upon her first entrance to Crittenton Home. On direct examination Helen Fontaine Giacopelli testified that she told Claire Austin about her emotional reactions; that Claire Austin advised her she was in the right place; that it wasn't necessary to give her right name or address and that an Illinois address would be more convenient; that she should not reveal her identity to anyone and, if asked, she was to say she was unmarried and wanted to give her baby up. She further testified that she told Claire Austin to contact a Vito Palazolla if anything happened to her and he would contact her husband. On cross-examination she said she told Claire Austin all about herself, that she had a son and daughter, that she gave her daughter's address in Normal, Illinois, as her address, although she told her she actually lived in St. Louis; that she told Claire Austin she was Catholic and her husband's name was Nick Giacopelli; that she did not name Vito Palazolla as the father of her unborn child. Helen Fontaine Giacopelli finally admitted, however, that upon entering the Crittenton Home she gave her name as Helen Fontaine and that she did not at any time change this designation. She also admitted she represented that she was an unmarried woman.
Claire Austin produced in open court the intake record sheet made up by her at the time of the interview. The material contained on it was derived from the question and answer interview with Helen Fontaine Giacopelli. Claire Austin testified that Helen Fontaine Giacopelli told her she was illegitimately pregnant; that one Vito Palazolla was the father of the child; that they had been contemplating marriage but that she had become convinced that Vito was no longer interested; that she wanted to keep the situation from the general public because of her shame and wanted to place the baby for adoption; that she gave the name of the paternal grandmother as Rose Palazolla who lived in St. Louis; that she was of the Protestant faith a Baptist and had been referred to the home by a minister. Claire Austin testified that she particularly questioned her about her religion since it appeared odd to her that, with the French name of Fontaine, she would be of the Protestant faith.
Helen Fontaine Giacopelli testified that she left the Crittenton Home the forepart of November and went to her husband's home in St. Louis. She did not disclose to him the fact that she had been to the Crittenton Home or that she intended to return. She did return on January 12. The baby was born on March 2 at the Methodist Hospital in Peoria and Helen Fontaine Giacopelli gave it the name of Thomas Paul Fontaine. She returned from the hospital on March 4 and continued to stay at the home until March 23.
The evidence further shows that on March 5 Helen Fontaine Giacopelli called for Claire Austin and requested that papers for adoption be prepared so that the baby could be placed as soon as possible. Pursuant to the request, Claire Austin prepared an appearance and consent to a finding of dependency and consent to appointment of a guardian for the child with power to consent to adoption without further notice. This Helen Fontaine Giacopelli read and then signed. The instrument was filed in the juvenile division of the county court of Peoria County and a dependency decree was entered on March 8, after which the child was placed in the home of respondents. At no time after signing the appearance and consent and while remaining in the Crittenton Home did Helen Fontaine Giacopelli indicate any dissatisfaction with what she had done or with the placement of the baby or that she had changed her mind. She made no request for the return of the baby to her.
Helen Fontaine Giacopelli left the home on March 23 and went to her daughter's home in Normal. She remained there until April 25. At no time during her stay at her daughter's home did she contact the Home to indicate a dissatisfaction with the placement of the baby or that she desired a return of the baby to her. She returned to St. Louis on April 25 and told her husband what she had done. He became hysterical and some time thereafter began an inquiry to learn of the whereabouts of the child. When this was done the habeas corpus proceedings in this case were commenced.
The hearing in the trial court included the testimony of Nick Giacopelli. It was revealed that he has a criminal record. He admitted to about 26 arrests, that he was convicted of intimidating a Federal witness fifteen or eighteen years ago, that he was convicted of burglary and larceny in 1942, and sentenced to six months and placed on parole for two years, committed bigamy in 1944 and 1949, had paid $1,200 in fines, the last being a $300 fine in February, 1956. He had four charges of selling coal without a sticker. It appears that he showed little concern for his wife during her pregnancy and long absence from home, "imagining" that he called her four times from November 4 to April 25, on which occasions he talked only to her daughter. He made no effort to contact her personally either by mail, telephone, or in person. Although he was aware of her pregnancy from its inception and of the fact that the baby was due in March, he indicated no concern over his wife's long absence, even though he knew she was pretty sick. He made no effort to contact her after the time when he knew the baby was expected until she returned home six weeks later. He said he was busy with his work. In fact, the record indicates a lack of interest by Nick Giacopelli in the prospective birth of his child. When he finally contacted the Crittenton Home about his child, in response to inquiries as to the whereabouts of Helen Fontaine, he said he did not know where the mother was and did not care. It appears that Giacopelli was sick much of his life, is presently engaged in selling coal and produce, and earns $70 to $75 per week.
The respondents were investigated by Claire Austin prior to the placement of the child with them, for a two-year period. She found them to be good, decent, stable people, having an adequate home of their own, occupied only by them. They have no children. He is employed as a clerk in the Peoria post office and has been so employed for several years. She was employed as a telephone operator before this child was placed with them. They are members of the Lutheran church.
Upon the return of Mrs. Giacopelli to her home in St. Louis, her husband learned that she had given up the baby. On May 27, just over one month later, Giacopelli appeared at the Crittenton Home demanding his child. The dependency order was thereafter vacated, on the ground that no jurisdiction had been obtained over the father, and on petitioners' motion the proceedings were dismissed. Respondents refused to deliver the child, and the present action was begun by the filing of a petition on July 1, 1957.
The respondents, on this appeal, generally contend that the Appellate Court erred in failing to determine the cause upon considerations of the best interests of the child, instead of the quantum of proof of the natural parents' fitness to have the custody of the child.
Primarily it appears to us that, although Helen Giacopelli has joined in this petition with her husband, she has forfeited her individual legal right to custody of the child. By sections 1 and 2 of the Foundlings Act (Ill. Rev. ...