Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of DeWitt County;
the Hon. Joseph C. Munch, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1975.
This is a proceeding under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) brought by the natural parents of a minor child to vacate a decree of adoption entered in the circuit court of De Witt County in favor of the adopted child's paternal grandparents. The petitioners alleged that consents to the adoption of their daughter had been obtained from them on the basis of fraudulent misrepresentations made by the grandparents. The trial court denied the petition on the grounds that the natural parents had failed to sustain their burden of proof; on appeal, the Appellate Court for the Fourth Judicial District reversed and remanded with directions to grant the petition to vacate the decree (Hoffman v. Hoffman (1974), 24 Ill. App.3d 543), and we allowed leave to appeal.
The natural parents, Bernard and Susan Hoffman, were married on December 5, 1969, at which time Bernard was 19 and serving in the United States Navy while Susan was 16 and attending high school. Their daughter, Nicole Leigh, was born on June 13, 1970. Shortly thereafter, Susan moved with the infant from the home of her parents to the home of the paternal grandparents, Robert and Rose Hoffman. Bernard joined his wife and daughter in his parents' home in September of 1970 after his honorable discharge from the Navy.
During the ensuing months, Bernard had a succession of jobs and was unable to maintain steady employment. He regularly remained out very late at night with friends and took Susan with him several nights a week. Susan was also away during the day attending school. As a consequence, the child was often left with the grandparents, who assumed what appears to have been an increasingly major role in the care and support of the child. Bernard and Susan experienced marital discord during this period, and a divorce was contemplated by Bernard.
The matter of adoption of the child by the grandparents was discussed by the natural parents and the grandparents on various occasions commencing in February, 1971, according to Rose Hoffman and in May or June, 1971, according to Bernard and Susan. The nature of these discussions and the circumstances under which they took place is disputed as will be related later. The end result, however, was a decision by both the natural parents and the grandparents to go forward with the adoption.
On July 1, 1971, Bernard and Susan went to the offices of an attorney who had been retained by the grandparents to handle the adoption proceeding. The attorney discussed with them the consequences of their consenting to the adoption of the child by the grandparents and informed them that they would be giving up all legal rights to the child. They then proceeded with the attorney to the chambers of Judge William C. Calvin, who also explained to them in detail the legal consequences of signing consents to adoption. It is conceded that the judge told them that irrespective of whatever arrangements they thought they had with Robert and Rose Hoffman concerning their future relationship with the child, any consents to adoption they signed would be irrevocable, and the consequences would be their absolute relinquishment of all parental and legal rights to the child. Bernard and Susan then signed the consents before Judge Calvin, who executed his certification that each of them acknowledged the consents to be free and voluntary acts; that he had explained that by signing such consents they had irrevocably relinquished all parental rights to the child; and that they had stated that such was their intention and desire. At the time the consents were signed, Bernard was 20 years of age and Susan was 17. On July 30, 1971, a decree of adoption was entered following a hearing at which the minor child was represented by a guardian ad litem.
After the entry of the adoption decree, Bernard and Susan continued to reside with Bernard's parents as if nothing had occurred affecting their parental relationship with the child. Late in September, 1972, they purchased a trailer, and when they attempted to take Nicole with them the grandparents refused to permit her to be removed from their residence.
On July 23, 1973, Bernard and Susan filed their section 72 petition requesting that the decree of adoption entered approximately 2 years earlier be vacated. The petition included allegations that when they signed the consents to adoption they had relied on the false representations of Rose Hoffman that the child would not be removed from their custody and that the purpose of the adoption was to provide for custody of the minor if they were both killed in an automobile collision; that as to Bernard it had also been represented to him by his mother that an additional purpose of the adoption was to terminate the parental rights of Susan Hoffman and vest them in the grandparents in the event Bernard and Susan should subsequently become divorced; and that the consents were obtained in violation of section 11 of the Adoption Act (Ill. Rev. Stat. 1971, ch. 4, par. 9.1-11). In an amended petition it was additionally alleged that the consents to adoption were obtained without due process of law in that the natural parents were not afforded legal representation either prior to or on the date they executed the consents to adoption.
At the time of the hearing on the section 72 petition on October 2, 1973, the child had remained in continuous residence with the grandparents for a period of over 3 years since shortly after birth. At the hearing, the natural parents attempted to show that they were responsible, dutiful parents who loved their daughter and were deeply concerned about what would happen to her in the event of their untimely demise in an automobile accident; that they placed great trust and confidence in Robert and Rose Hoffman and followed their advice that it was the best thing to do to permit them to adopt the child; that they believed adoption was the only means of providing for the child in the event of their death; and that notwithstanding the admonitions by Judge Calvin to the contrary they were confident that Bernard's parents would never deprive them of the care and custody of their daughter following the adoption.
The evidence on behalf of the grandparents indicated that Bernard and Susan took little interest in the child and were away much of the time leaving the child in their care; that the natural parents had failed in the performance of their responsibilities as parents and contributed very little to the support of the child; that they had agreed to adopt the child at the request of the natural parents; that they never indicated to Bernard and Susan in any manner that they could have custody of the child following the adoption; and that they had very little rapport with their son, who would not listen to them or take their advice.
There was a decided conflict in the testimony as to who first brought up the subject of adoption and what was said. According to the natural parents, Rose Hoffman initiated the subject on numerous occasions and persistently urged her son and daughter-in-law to permit them to adopt the child so that she would be properly cared for in the event Bernard and Susan were killed in an automobile accident. They both stated that they inquired as to whether there was any other way to provide for the child in the event of such a contingency, but that after checking into the matter Rose Hoffman told them there was no alternative. They stated that if they had known there was another method they never would have consented to the adoption. Bernard also testified that his mother suggested the adoption for the additional reason that if he and Susan should be divorced their daughter would remain on the Hoffman side of the family. They each testified that while they at first did not want to give up their child they finally changed their mind when Bernard's mother said that if they really loved the child they would set aside their personal feelings and go ahead with the adoption, which would be best for the child. On cross-examination each of them conceded that they knew Bernard's parents would care for the child if something happened to them no matter what course of action they decided to follow. Bernard also admitted that his father was against the adoption and wanted him to keep the child during the early stages of their discussion of the matter.
There was no testimony by Bernard that his parents had ever told him specifically that he and Susan could retain custody of the child after the adoption. Susan, however, indicated in her testimony that it was her understanding that Bernard had been told by his mother that even though they would be giving up legal custody, they would still retain physical custody and everything would stay the same as before the adoption. There was some indication that the purpose of the adoption may have been mentioned by the natural parents in Judge Calvin's chambers. Bernard testified that the judge had said the purpose of the adoption was beside the point and that "your parents could turn around and stab you in the back if they wanted to." It seems clear that both Bernard and Susan understood that, legally, the grandparents could do whatever they wished with the child following the adoption.
Robert and Rose Hoffman each testified that Bernard and Susan asked them to adopt their child and were the ones who at various times initiated discussions about the proposed adoption. Each time the matter was brought up, Robert Hoffman expressed hesitation about the proposal and indicated that they would have to wait and see. He also inquired of them whether they were sure they wanted to proceed in this manner, to which Bernard and Susan replied affirmatively on each occasion. The grandparents testified further that they never suggested in any manner that Bernard and Susan could retain physical custody of the child after the adoption and that they never said that an adoption was desirable to provide for the child in the event Bernard and Susan should be killed in an automobile accident. Rose Hoffman testified that the only time there was any discussion about an accident was when Susan expressed ...