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Stines v. Vaughn

SEPTEMBER 19, 1974.

LILLARD STINES ET AL., PLAINTIFFS-APPELLANTS, CROSS-APPELLEES,

v.

INFANT VAUGHN ET AL., DEFENDANTS-APPELLEES, CROSS-APPELLANTS.



APPEAL from the Circuit Court of Vermilion County; the Hon. PAUL M. WRIGHT, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 18, 1974.

The circuit court of Vermilion County denied the petition of Lillard Stines and Lorraine Stines to adopt Danny Vaughn. They appeal and the defendants-appellees attempt a cross-appeal from certain findings contained in the final order. The court filed a memorandum opinion that was incorporated in the final order and found (1) the refusal of the chief probation officer and the Department of Children and Family Services to consent to the adoption by petitioners of Danny was arbitrary and capricious; (2) that the petitioners were proper persons to adopt Danny; and (3) that notwithstanding the above, and in view of the fact that Danny had not resided with petitioners for approximately 4 1/2 years, it would not be in the best interests of the child to grant the petition for adoption. The petitioners appeal from the trial court's denial of their petition for adoption. The respondents attempt to appeal from findings (1) and (2) of the memorandum opinion; as to these matters, we find they are not final and appealable, therefore, respondents' cross-appeal is dismissed.

The salient facts giving rise to this appeal are as follows. The petitioners filed an application with the Vermilion County probation office for consideration as prospective adoptive parents. On May 4, 1965, Danny Vaughn was born. His natural mother notified the probation office that she wished to place the child for adoption. The proper consent and surrender was secured from the natural mother. The petitioners were informed on May 9, by a Miss Blanche Hamilton, an agent of the probation office handling the child's case, that a baby boy was available for them to adopt. Petitioners and their natural daughter, Karen, went to the hospital and picked up the infant. The Stineses were accompanied home by Miss Hamilton. The following day, Miss Hamilton returned to the petitioners' home with Mr. Hughes, the chief probation officer.

On May 11, a petition was filed praying that the court find the infant in question a dependent child and grant to Hughes as chief probation officer custody and guardianship with the authority to consent to adoption. On May 12, Hughes officially turned the child over to petitioners for adoption. The May 11 petition was granted and the child was declared dependent on June 17, 1965. The petitioners filed a formal petition for adoption on October 18, 1965, and on that date the natural mother filed her written consent and surrender for adoption and entry of appearance.

After the Stineses gained physical custody of the child, the probation office maintained minimal contact with the petitioners and the infant. Other than the two initial home visits made by representatives of the probation office, the record discloses that the probation office only came into contact with the infant on two other occasions. Both of these occurred when Mrs. Stines brought the child to the probation office. Even respondents admit in their brief that the scope and thoroughness of the office's preliminary investigation left much to be desired considering the sensitive nature of an adoption. The record also establishes that the probation office follow-up investigations as required by statute were patently inadequate.

While the intentions of the probation office were uncertain, those of the Stineses' were definite and clear. Once the child was in their home, he was immediately integrated into the family unit. The record reveals that Mr. and Mrs. Stines treated Danny in a fashion commensurate with the treatment they accorded their own natural daughter Karen. The Stineses even reimbursed the probation office for the medical expenses incurred as the result of Danny's birth. The petitioners were the sole means of Danny's support.

In December 1967, the petitioners began to care for another child, Mary Ann Osborne. She was 3 years old at that time. The petitioners acted pursuant to the request of the parents and grandparents of the child. The child's parents were having marital difficulties and could not properly care for her. Petitioners secured a foster home license from the Department of Children and Family Services. This license was issued after their home was inspected and found to be suitable. After receiving the license, agents of the Department frequently visited the petitioners' home.

During the time petitioners had physical custody of Danny, Mrs. Stines was extremely active in community service organizations. She also attended Danville Junior College. In no instance does the record establish that either Danny or Mary Ann was neglected as a consequence of her activities. For example, on September 26, 1968, Yolande Brooks, an agent of the Department, which had assumed the legal guardianship of Mary Ann, called upon Mrs. Stines at the Danville Junior College in order to discuss Mary Ann's well-being. Brooks visited the Junior College nursery and observed both Mary Ann and Danny. She noticed nothing unusual about either child and found them adequately clothed and fed.

It is uncontroverted that during 1968 Mrs. Stines began to experience anxieties that manifested themselves in slightly erratic conduct. On October 9, 1968, Mrs. Stines was admitted to the Peoria State Hospital by Mr. Stines upon the recommendation of the Danville Mental Health Clinic and the Stineses' minister. Mrs. Stines remained at the hospital for 10 days and was then discharged. The Danville Mental Health Clinic informed the Department of Children and Family Services that Mrs. Stines had been hospitalized, and pursuant to this notification, Brooks and her supervisor, Margaret Cunningham, conferred with Hughes and Judge James Robinson concerning the status of Mary Ann and Danny. Hughes purportedly instructed Cunningham to take physical custody of Danny when the Department picked up Mary Ann. Hughes also filed a motion to change custody and guardianship of Danny from the probation office to the Department of Children and Family Services. The motion was subsequently allowed. The Stineses were not given notice of the change of custody.

On the morning of October 10, 1968, Mr. Stines was informed by the Department of Children and Family Services that he must surrender the children at the court house that very afternoon, which he did. According to Mr. Stines, he was told by one of the Department representatives that he would be informed where the children were to be taken. He never was.

As pointed out in the trial court's memorandum opinion, "No inquiry was made by the Department as to the reason for the hospitalization of Mrs. Stines and no attempt was made to ascertain whether the children could be properly cared for by Mr. Stines during Mrs. Stines' absence." The trial court further observed that neither the Department nor the probation office exerted any real effort in attempting to ascertain the extent of Mrs. Stines' infirmity. After Mrs. Stines was released from the hospital, the Department informed the petitioners that they would not be able to regain custody of the children. Later in the course of this litigation, Cunningham testified that "I said as far as I was concerned, anyone who had been mentally ill I would not recommend for adoption, * * *." Moreover, she noted that when removing Danny from the Stineses' home, it would not make any difference to her what Mrs. Stines' eventual condition was going to be. We note with irony that this statement was made in the context of the fact that Danny had been residing with the petitioners for approximately 3 years and both Cuningham and Brooks testified that a child should not be removed from one home to another except for compelling reasons.

Both children were placed in a temporary foster home on October 10, 1968, and Danny remained there until June 20, 1969. During January of 1969, the Stineses again contacted the Department in order to see if they could regain custody of Danny, but to no avail. Mrs. Stines' psychiatrist wrote Cunningham advising that in his opinion Mrs. Stines should be allowed to be an adoptive parent. He stated that "any alleged mistreatment of the children staying with her occurred during her illness and is entirely contrary to her normal character." Notwithstanding this letter, the Department persisted in its refusal to reunite the petitioners with Danny.

On June 30, 1969, Danny was placed for adoption in another home and adoption proceedings were commenced; however, those proceedings have been suspended pending the outcome of this litigation. On July 10, 1969, the petitioners filed a motion to set aside the change of custody and to return physical custody to them. Accompanying that motion was a motion to amend the petition for adoption and to stay further proceedings. On September 2, 1969, after a hearing on the motion, Judge Robinson denied the motion to set aside the change of custody on the grounds that the petitioners were not entitled to notice of the original proceedings to change custody, from one agency to another, or notice of the hearing ...


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