Appeal from the Circuit Court of Whiteside county; the Hon.
GEORGE O. HEBEL, Judge, presiding. Reversed and remanded with
Rehearing denied June 7, 1961.
The petitioner-appellant, Eunice Karr, the natural mother of Baby Boy Karr, also known as Douglas Daniel Karr, Jr., initiated proceedings for a writ of habeas corpus on March 17, 1960, the writ being returnable March 24, 1960, to recover custody of her infant son from an Illinois licensed child welfare agency, the Nachusa Lutheran Home for Children, which had received custody of the child four days after his birth by virtue of purported surrenders and consents executed by both natural parents. Rev. Leroy Weihe, Executive Director of the Nachusa Home is one of the respondents-appellees. The natural father is not a party. The petitioner does not question the form of the surrenders or consents, and admits signing the same, but alleges that the document bearing her signature is void for fraud and duress, or, by analogy to the language of Section 11 of the Adoption Act of 1959, Ch. 4 Ill. Rev. Stats. 1959, par. 9.1-11, that it is revocable for such cause; that she is a fit person to have the care and control of her son; and that she is entitled to his custody. After service upon it of the writ which duly issued herein the agency, the Nachusa Home, by its executive director, Rev. Weihe, entered an appearance in an adoption cause pending elsewhere and consented to the child's adoption by persons unknown to the petitioner herein to whom the agency had delivered custody prior to her application for the writ herein. Subsequently, by an amended return to the writ in this cause, the agency concerned, Nachusa Home, set forth that custody of the child had been given by it to adoptive parents and that an interim order of adoption entered by the County Court of Stephenson County, Illinois on April 1, 1960 had terminated the parental rights of the petitioner herein. Thereafter, on the petitioner's motion, the purported adoptive parents, Harry R. Bates and Anna Lou Bates, were made additional respondents to the present proceedings. In her denials of the respondents' amended returns, the petitioner reasserts that her surrender or consent is void for fraud and duress, and that she is a fit person to have the care and control of her baby, and alleges that the interim order of adoption purporting to terminate her rights is void for lack of jurisdiction. This cause was tried before the court upon the petition, the respondents' amended returns, and the petitioner's denial thereof. The court found that the petitioner had failed to establish that her surrender and consent given to the agency was obtained by fraud or duress and that the writ herein should be quashed. A judgment was entered accordingly, July 7, 1960, and custody was remanded to the respondents Harry R. Bates and Anna Lou Bates. The petitioner appeals. There was no evidence that the petitioner was an unfit person.
In the petition for writ of habeas corpus, the petitioner alleges that her surrender and consent is void (or revocable) for one or more of the following reasons:
(a) At the time she signed, she was a patient at Community General Hospital in Sterling, Ill., under the influence of drugs, in a mental and emotionally unstable condition, recovering from the effects of her first child-birth, and by reason thereof she was unable to comprehend the significance of her act.
(b) She was misinformed as to the nature and effect of said instrument and was without advice, and believed she could reacquire custody of her child.
(c) While in said condition, her husband represented he was unable to afford said child, etc., and that it was in the child's best interest that he be given up, thereby fraudulently inducing or unduly influencing her to sign a surrender and consent, well knowing she was at that time misinformed as to the nature and effect of such act and believed that she could later reacquire custody; that she would not have signed said instrument except for her weakened mental and physical condition, her misinformation as to the nature and effect of said instrument, her lack of advice, and the fraud or undue influence or duress of her husband.
The petitioner-appellant's theory is that the finding and judgment are contrary to the manifest weight of the evidence and to the law, and, there being no evidence of her unfitness, her fitness is presumed, and hence it was error to remand custody to the respondents Harry R. and Anna Lou Bates. The respondents-appellees' theory is that the finding and judgment on the issue of fraud and duress is supported by the manifest weight of the evidence and the law, the petitioner's surrender or consent was irrevocable, no showing or finding of her unfitness is necessary, and though she be a fit person she is not absolutely entitled to custody, the best interests and welfare of the child being the paramount consideration, and it was proper to remand custody to the respondents Harry R. and Anna Lou Bates.
The petitioner was married to Douglas Karr on September 7, 1957 upon his graduation from high school and at the completion of her sophomore year. She was then 16 years old. During 1959 they lived in an apartment in Sterling, which they rented for $65 per month, and Douglas Karr worked in Rock Falls, where he earned $59.00 per week. On March 30, 1959 she learned she was pregnant. The child was to be their first. When she told her husband that evening he said they could not afford a baby at the present time because he was obligated to buy a house (which they were at that time, though later released). He then left the apartment to see if the Mt. Carmel Home for Children, at Morrison, would keep the child. At that time the Karrs indicated they simply wanted to place the child temporarily in a home until their financial condition should improve, and nothing was said by them then about adoption.
On October 12, 1959 they visited the Nachusa Lutheran Home for Children at Nachusa and talked with a caseworker. There Mr. Karr again told of his financial problems and asked if the home took in infants. He stated that he did not want children, but that he and Mrs. Karr sought only a temporary placement of the child. Later, October 16, 1959, the Karrs returned to the Nachusa Home and had a lengthy interview with Rev. Weihe, the Executive Director. The Home is a duly licensed child welfare agency. Rev. Weihe explained that to place the child in a foster home on a temporary basis would cost the parents approximately $75.00 per month, and that the only alternative, in fairness to the child, would be to place the child for adoption. The Karrs agreed that they could not afford a foster home and Mrs. Karr indicated that she was willing to go along with her husband in the matter. Nothing was settled. That was the last time Mrs. Karr saw Rev. Weihe until November 30th at the hospital after the child was born when her surrender or consent was signed.
Rev. Weihe testified that he discussed the matter of adoption with Mr. Karr on October 30; that Mr. Karr came alone; and Mr. Karr told him that he and Mrs. Karr had discussed the matter at home and had decided to place the child for adoption. Karr made inquiry regarding the adoptive parents' paying for the doctor and hospital bills, and Rev. Weihe told him he thought that adoptive parents could be found that would pay such, and that the Nachusa Home would pay the bills and the adoptive parents in turn would pay the Home. At another meeting, November 13th, with Mr. Karr he said that Karr told him they had reached a decision, and Karr wanted to know if his wife could have a private room at the Sterling Hospital when she was taken there for confinement because he thought it would be embarrassing for her to be in a hospital ward where the other mothers were keeping their babies. Rev. Weihe called the Hospital office and made appointments for November 27th.
On November 26, 1959 the petitioner entered Community General Hospital in Sterling. That same evening of November 26th, at about 9 p.m., the baby was born. The attending physician, Dr. Redmond, stated the birth was an uneventful one. However, he further stated that the delivery was not routine because it was necessary to remove the placenta manually and that this is not normal. The drugs prescribed for Mrs. Karr were routine, according to the physician, excepting the cyclopropane which was administered for the removal of the placenta. This is a potent gaseous agent administered by a mask and its administration is exacting. In his own practice the doctor said he does not always use it for a manual removal of the placenta. He leaves the decision to an anesthetist. He testified that incisions were made for the childbirth, and that they were closed with sutures. He also testified that involution, during which the uterus, having been enlarged to admit a six-pound baby, contracts to its normal size over a six week period, becomes painful to the mother after a few days.
On November 27th, the next day after the baby was born, the Rev. Elmer Dadisman, Mrs. Karr's pastor, called at the hospital to see her. Rev. Dadisman testified that he told her he had heard that she and her husband did not want to keep their child. She replied that this was not correct. Mrs. Karr shed tears and said it was simply that they could not afford to. She explained that when she got out of the hospital she intended to get a job and hoped to get the baby back, and that she would have a year's time to do so.
Rev. Dadisman left the hospital after that visit with the petitioner and later that evening he conferred with Rev. Weihe. He told Rev. Weihe of his conversation with Eunice (Mrs. Karr); that she expressed an intention of getting the baby back by acting within a year; and he inquired of Rev. Weihe as to whether it was correct ...