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In Re Sims

JULY 17, 1975.

IN RE RACHEL YVONNE SIMS. — (VICKI SIMS ET AL., PETITIONERS-APPELLANTS,

v.

RACHEL SIMS, A MINOR ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Sangamon County; the Hon. EUGENE O. DUBAN, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On September 6, 1973, Jayne Brickley-McDonald, on behalf of Child and Family Services of Sangamon County, filed a petition under the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 704-1) in the circuit court of Sangamon County requesting that Rachel Sims, born August 29, 1972, be declared a ward of the court and that a guardian be appointed with the authority to consent to her adoption. The petition was heard by the court on September 25, 1973, and evidence of consent to adoption on the part of Vicki Sims, the natural mother, and Les Greer, the natural father, was presented in the form of written consents and oral testimony. The court entered an adjudicatory order relieving the natural parents of their parental rights and a dispositional order appointing the director of Child and Family Services of Sangamon County as guardian and authorizing him to consent to adoption.

Les Greer petitioned to vacate the adjudicatory and dispositional orders of September 25, 1973, and Rufus Greer, paternal grandfather of Rachel Sims, filed a post-trial motion for rehearing. After hearing, both the petition to vacate and the motion for rehearing were denied on November 26, 1973. On December 10, 1973, Vicki Sims filed a petition to vacate the adjudicatory and dispositional orders of September 25, 1973, on the basis of duress. After hearing, the petition was denied and the orders of September 25, 1973, were "confirmed" by order entered February 1, 1974. Vicki Sims and Les Greer appeal from that order.

• 1 Appellee Ronald P. Stauffer, executive director of Child and Family Services of Sangamon County, contends that the trial court lacked jurisdiction to hear the petition of Vicki Sims filed on December 10, 1973, because it requested a rehearing on or modification of the adjudicatory and dispositional orders of the court and was filed more than 30 days after the entry of those orders in violation of section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.3). Appellants Vicki Sims and Les Greer contend the petition was timely because it was filed within 30 days of the court's denial of Les Greer's petition on November 26, 1973. We need not rule as to the application of the 30-day provision of section 68.3 to these facts, however, because we deem Vicki Sims' petition to meet the requirements of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72). The obtaining of the entry of an order by duress is a proper ground for relief under that section (People ex rel. Forbrich v. Forbrich, 113 Ill. App.2d 249, 252 N.E.2d 21) and such a petition may be filed not less than 30 days nor more than 2 years after the entry of the order attacked.

The evidence was undisputed that on August 29, 1972, Vicki Sims gave birth to Rachel Sims. At the time of the baby's birth, Vicki Sims was a 16-year-old Caucasian high school student. Les Greer, the baby's natural father, was a 19-year-old black high school graduate. Both of the natural parents lived with their respective parents and continued to do so at the time of the proceedings. Prior to and after the baby's birth, Vicki Sims consulted with social workers employed by the Child and Family Services. Les Greer also discussed the situation with these social workers.

Vicki's parents did not allow Vicki to keep the baby at home, and for the first 9 or 10 months of the baby's life, she was cared for at the home of Chris White, a high school teacher and friend of Vicki's. Vicki visited the baby frequently during this period. On one occasion Vicki moved out of her parent's home for about a week and attempted to care for Rachel on her own. After that the baby was taken to the home of Rufus Greer, Les Greer's father, and lived there for a couple of months.

Vicki testified that when she first brought the baby home from the hospital, her father told her that either he or the baby would have to leave and that she, Vicki, had to sign papers giving up the child. While Rachel was kept at Chris White's, Vicki's father continued to be upset. Vicki was forbidden to see the child but did so frequently. She further testified that in July, 1973, her father, while excited and angry, came to Chris White's while she, Vicki, was there with the baby and told her that she either had to give up the baby or not come home that night. Chris White confirmed this episode and said that the father was yelling and Vicki crying. Miss White also testified to receiving an angry call from Vicki's mother that day. Vicki testified that after this episode she attempted to live alone with the baby in an apartment for a while but gave up on this scheme because she did not have enough money and took the baby to stay with Les Greer. She said she continued to see Rachel until one day in early August, 1973, her father again told her she had to sign adoption papers or leave home. On August 7, 1973, she signed a document surrendering the child to appellee Stauffer in his official capacity and consenting to the adoption of the child without further notice to her.

Jayne Brickley-McDonald testified that she was a case worker for Child and Family Services and had been working with Vicki. On July 27, 1973, Vicki approached her and said that she wanted to relinquish her rights on that day. Vicki appeared upset and stated that she didn't feel she could raise Rachel by herself and that neither she nor the baby could live a satisfactory life in an apartment without any other help. Vicki said that she wanted to take the consent form to her parents to show them that she would sign it. Mrs. McDonald said that she did not allow the consent to be signed that day. The witness further stated that she talked with Vicki on July 30 and August 3 and let Vicki sign the consent on August 7. That day Vicki told Mrs. McDonald that her experience in trying to live on her own convinced her that she was not ready to raise Rachel. Mrs. McDonald then saw Vicki once or twice before the hearing of September 25, 1973, and Vicki continued to indicate that she wanted to proceed with the adoption but admitted that she was seeing the child, who was still at Les Greer's.

At the September 25 adjudicatory hearing, Vicki Sims testified that she had signed the relinquishment paper voluntarily and was testifying of her own free will. She said that she had only discussed adoption with her parents once after the baby was born and that although they wanted her to go ahead with adoption, they told her she could do what she wanted to do. She also testified that her parents would not allow the baby in their home because of prejudice and that a friend kept the child for 9 or 10 months. She said that she had voluntarily talked with social workers at Child and Family Services about the courses available to her but that they had not told her what to do. She testified several times that she realized that her consent to adoption meant relinquishing her rights to the child forever. She also indicated that she had considered that the child might not be adopted because of the difficulties of placing racially mixed children and might be raised in foster homes and still considered that it was in the best interest of the child to give her up. She testified that although Les Greer did not at first want to give the baby up and his father wanted to keep the child, she still felt that it was in the best interest of the child to give her up. In testifying on the petition to vacate, Jayne Brickley-McDonald said that Vicki told her at the time of the September 25 hearing that she had spent the previous weekend away from her parents and still felt that she was making the right decision. Mrs. McDonald said that on December 4, 1973, however, Vicki told her that she had made a mistake and wanted to get the baby back.

• 2 At the times of the execution of the consent in question and the hearing on September 25, 1973, the statutory provision governing the revocability of consents to adoption of the type in issue stated that they:

"* * * shall be irrevocable unless it shall have been obtained by fraud or duress and a court of competent jurisdiction shall so find. The consent of a parent who is a minor shall not be voidable because of such minority." (Ill. Rev. Stat. 1971, ch. 4, par. 9.1-11.)

Effective October 1, 1973, the foregoing provision was amended to provide that the fraud or duress supporting a revocation must have been committed by the person taking the acknowledgment to the consent or surrender or the adopting parents or their agents. Thus, duress from persons such as Vicki's parents would be immaterial. The prior law governs this case, however.

As to the termination of the parental rights of Vicki Sims, the adjudicatory order was based on her written surrender and consent to adoption signed on August 7, 1973, and her testimony of September 25 confirming the execution of that document and stating that she could not properly care for the child. Her contention on appeal is that her execution of the consent and her testimony acquiescing to it was done under the duress of the conduct of her parents. The axiom that no two cases are exactly alike is particularly applicable to those involving allegation of duress. In People ex rel. Drury v. Catholic Home Bureau, 34 Ill.2d 84, 213 N.E.2d 507, a 28-year-old unmarried school teacher sought to revoke a consent she had given to the adoption of her child. She was undergoing mental treatment and was advised by those treating her to give the baby up for adoption, as did her fiance, who may have been the baby's father. Her mother and stepfather strongly objected to her keeping the child. After discussion with representatives of the Catholic Home Bureau concerning the options available and ...


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