Appeal from the County Court of Sangamon County; the Hon.
WILLIAM D. CONWAY, Judge, presiding. Reversed and remanded with
Rehearing denied June 6, 1964.
This is an appeal from a decision of the County Court of Sangamon County wherein a petition for adoption was denied. The child sought to be adopted, Mickey Rae Thorpe, was returned to her natural mother, Barbara Loraine Thorpe, also known as Barbara Loraine Wild.
In the petition for adoption filed on July 24, 1962, it is alleged that the petitioners acquired custody of Mickey Rae Thorpe from Barbara Loraine Wild on February 14, 1961; that the child is the niece of Charles E. Thorpe, co-petitioner; that the name of the child's father is unknown; that the mother of the child is an unfit person to have custody because of abandonment and desertion for more than three months preceding the commencement of the proceeding.
The defendant-appellee answered denying that she had abandoned or deserted the child and further alleging that petitioners have wrongfully withheld custody of Mickey Rae Thorpe.
Defendant was married to one Jack Wild in 1946 and was separated from him in 1953. They have not since lived as husband and wife and have never been divorced.
Petitioners assert that Barbara Loraine Wild had from the inception of their discussions with reference to the care of Mickey Rae Thorpe promised to consent to petitioners adopting the child and that she would never ask to have the child returned to her care.
Defendant on the other hand states that she had never discussed adoption with the petitioners and had never intended at any time not to resume the care and custody of her child.
The remaining facts are largely uncontroverted.
Some time in November, 1960, a discussion took place in DuQuoin, Illinois, at the home of the maternal grandmother regarding the disposition of the child which defendant was about to bear. At this conversation the defendant stated that she didn't know what she would do with the baby; that she did not have a job and no means with which to support the child; and that she was to soon undergo major surgery which might require convalescence of a year to a year and a half.
In the course of this conversation it was agreed between the petitioners and defendant that the petitioners would take the child when it was born.
The child in question was born on February 5, 1961, in DuQuoin, Illinois, and brought by defendant to the home of petitioners in Pawnee, Illinois, on February 11, 1961. On that occasion defendant left with petitioners the baby's formula, some clothing, and a hospital birth certificate which stated that Mickey Rae Thorpe was born on February 5, 1961, and that the mother's maiden name was Barbara Loraine Thorpe.
When defendant left DuQuoin on this occasion to return to Pawnee she was in tears and was told by her brother either that, "If you get down the road a piece and see you can't get along without it come back and get it," or, "Sis, she will be all right, you can come and get her any time you want if you can't do without her."
One of the petitioners, Betty Jean Thorpe, testifying as to the occasion, stated that she understood the defendant was not ...