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In Re Adoption of Smith

OPINION FILED MAY 13, 1976.

IN RE ADOPTION OF CHRISTINA MARIE SMITH, A/K/A CHRISTINA SMITH, A MINOR. — (GEORGE SMITH ET AL., PETITIONERS-APPELLANTS,

v.

CHRISTINA MARIE SMITH, A/K/A CHRISTINA SMITH, A MINOR, ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Champaign County; the Hon. FREDERICK S. GREEN, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

On December 6, 1972, George and Natalie Smith, nonresidents of Illinois, filed in the Circuit Court of Champaign County, as cause 72-A-135, a petition to adopt their granddaughter, Christina Marie Smith, born March 29, 1970, in California as the daughter of William and Mary Smith. Attached to the petition were the executed consents of both natural parents together with their written entries of personal appearances in the adoption proceeding. William Smith is the natural son of Natalie Smith and the adopted son of George. The petition alleged that Christina is a resident of Illinois and that the only orders entered affecting her custody were those entered in Champaign County Circuit Court cause 71-J-116 commenced July 16, 1971, under the Juvenile Court Act by the Department of Children and Family Services, (hereinafter called "Department"), to have Christina declared a neglected child and a ward of the court, all of which orders in 71-J-116 were alleged to have been terminated on September 14, 1972. Burt Greaves, a Champaign attorney, was appointed guardian ad litem for the infant. On May 2, 1974, a minute entry was made to the docket reciting inter alia, "The parties hereto agree to a consolidation of causes 71-J-116 and 72-A-135." Following a hearing before the court on this consolidated cause, the circuit judge announced his finding that George and Natalie Smith qualify as adoptive parents in every respect but that the best interests of the child required the denial of their petition. Accordingly there was entered on June 7, 1974, a dispositional order denying and dismissing the adoption petition and placing the infant ward under the guardianship of Richard Laymon of the Illinois Department, with authority to consent to the minor's adoption. George and Natalie Smith have prosecuted this appeal claiming only (1) that the circuit court abused its discretion in denying their petition for adoption, and (2) erred in refusing to admit to evidence Petitioner's Exhibit A (which is a seven-page report of Dr. James R. Richmond, dated March 29, 1973), and (3) that the record shows such over-reaching and domination by agents of the Department as to have contaminated the proceedings and produced an unjust result. Since the welfare and best interests of a child are involved, we are not required to limit our review of the record to the points of concern raised by appellants. Muscarello v. Peterson, 20 Ill.2d 548, 170 N.E.2d 564 (1960); Layton v. Miller, 25 Ill. App.3d 834, 322 N.E.2d 484 (5th Dist. 1975); Phelan v. Santelli, 30 Ill. App.3d 657, 334 N.E.2d 391 (3d Dist. 1975).

The report of Dr. Richmond is essentially a psychiatric evaluation made of George and Natalie Smith by a California practitioner at the suggestion of the Smiths' California counsel upon the premise that it might be useful in prosecuting this adoption petition in Illinois. It contains a recitation of the history of this case as related to him in separate interviews of the grandparents. Much of this history was produced to the court by direct testimony of many witnesses, and, since the finding of the circuit court that George and Natalie Smith qualify in every way as adoptive parents is fully consistent with the conclusions of Dr. Richmond's report, and with our own view of the record, no prejudicial error derived from the ruling excluding this exhibit from evidence. While the guardian ad litem has argued here that the record contains no showing of positive advantages to the child by placement with her grandparents, it is clear that the trial court in finding them fit persons made a contrary determination which the evidence supports. The only other issue is whether because the intervention of the Department or for any other reason, the judgment of the court is manifestly demonstrated by the record to be contrary to the best interests and welfare of the infant.

Christina was brought to Illinois by her parents, William and Mary Smith, in 1971 during the time her father was stationed at Chanute air base near Rantoul in Champaign County. In July, 1971, the Department received a report of possible child abuse in respect to Christina from a physician and after an investigation, commenced the juvenile proceedings in 71-J-116 with personal service of summons on the parents. Christina was adjudicated a neglected child and temporary guardianship was placed with the Department where the case was supervised by Mrs. June Henderson, a social worker. Following this order, the Department replaced the child with her parents for a "trial run" to observe whether with Department input, the family could get along. In October, 1971, William was honorably discharged from military service although the record indicates it was actually for abusive use of narcotics. Upon William's discharge, he and his wife indicated to the Department their intentions of returning to California. Believing that the parents were not ready to take the child with them there, the Department obtained a court order in 71-J-116 authorizing them to place Christina with foster parents, which was done.

When Christina's parents returned to California in October leaving Christina behind in Illinois, the grandparents, upon discovering the circumstances, began telephoning and writing to the Department requesting that they be permitted to have custody of their granddaughter in California. Natalie Smith came directly to Illinois for such purpose. After two months of background study, investigation of the home and character of the grandparents, including a personal visit by Mrs. Henderson to their home in California in December, 1971, and after completing arrangements for supervision of the grandparents as a "regular foster home" by California authorities, the Department on January 26, 1972, caused an order to be entered in 71-J-116 giving custody, under its guardianship, to the grandparents who, during the same month, took Christina to their home in California. The evidence indicates that Natalie Smith at the time of trial was 48 years of age and that George was 43, that both are in good health, that George is a major in the Air Force where he has served continuously for 23 years, and that they are financially comfortable.

The record fully supports the complaint of the grandparents that circumstances became intolerable to them during the period that Christina was in their custody in California from January, 1972, until the following September, and that this was in large measure attributable to the intervention of three separate social agencies (two in California, and the Department) giving conflicting directives in respect to their rights and the rights of the natural parents. It appears that Yolo County, California, authorities had undertaken responsibility for rehabilitating the natural parents with the objective of returning Christina to their custody. A Solano County, California agency assumed supervision of Christina and of her grandparents as foster parents. These two agencies maintained contact with Mrs. Henderson.

The grandparents found the drug-oriented, unemployed, long-haired, freaky-dressed, and publicly intimate life styles of William and Mary and their friends distasteful, and objected on occasions to the circumstances attending their visitations of Christina at the grandparents' home. The grandparents were reprimanded by one of the agencies for having voiced their complaints to William during a visitation, and for complaining that some item of property had disappeared from their home after one such visit. Mrs. Henderson, in explanation, testified that the agencies have no authority to set conditions or dress codes for visitation by natural parents to a foster home. She did not discuss whether the agency ever applied to the courts for imposition of such conditions. One agency, said George Smith, sent a woman who came to our house with a law book and read to Christina her rights, and said she was supposed to do that and that we had no rights to our granddaughter and could not discipline her. A different agency counseled that the grandparents had authority to make the child mind. George Smith testified without contradiction that there were many women from these social agencies coming in and out of his home telling them what they could do and what they couldn't do, and Natalie Smith testified that she was ultimately threatened that if she did not do as told, the agencies would take her granddaughter from her custody. Both grandparents testified they would like to raise their granddaughter free from intervention by social welfare agencies.

In the context of these foregoing circumstances, Mrs. Henderson in August, 1972 made an unannounced visit to the grandparents' home in California and found Natalie Smith in an emotionally "up-tight" condition. She also visited William and Mary and found them full of "hate and vindictiveness" toward the grandparents. She testified that they inquired of her "How can we ever buck this [i.e., the grandparents'] money?" She visited the California agencies who voiced to her the observation that the natural parents were not progressing and that it seemed unlikely to them that Christina should ever be replaced with them. Having grave doubts that Christina could function in this environment, Mrs. Henderson communicated her concerns to Natalie Smith and related the opinions of the California agencies. Mrs. Henderson then testified that she counseled Natalie that perhaps the best thing to do would be to bring the child back to Illinois for placement in a neutral foster home where she herself could work with Christina and perhaps work with the natural parents, "because, said Mrs. Henderson, "we were still at that time trying to reunite [her with] the [natural] parents even though I had told the parents and Natalie Smith too, that we were going in for termination if they did not respond." (Emphasis added.)

Barely one month following Mrs. Henderson's visit to California, Natalie Smith decided to accept Mrs. Henderson's counsel and invitation to return the child to Illinois. The California agencies she had been told saw no hope of progress; Mrs. Henderson, on the other hand, had counseled that she would continue efforts at reuniting the family if the child were in a neutral foster home in Illinois where she could work with her. On September 11, 1972, Natalie Smith arrived in Champaign with Christina and contacted Mrs. Henderson about her decision to place the child in neutral foster care. It was her obvious intent that neither to abandon or surrender her interest in the child's well-being but to accept Mrs. Henderson's invitation that this procedure, professionally, was the best hope for reuniting the family. She visited the foster home placement with Mr. and Mrs. Shafer at Cerro Gordo and assuming it a neutral environment with no purpose of adoption, was favorably impressed with Mrs. Shafer.

Thereafter Natalie Smith returned to California, and contacted counsel to commence adoption proceedings in Illinois, keeping close contact with Christina by telephone inquiries and letters to Mrs. Shafer. The grandparents also sold their home in California and transferred to New Jersey to alleviate the tension they had experienced from their proximity to the natural parents. George Smith testified that they moved to New Jersey because the Illinois agency indicated they would have a much better chance of adopting Christina if they got out of California; Mrs. Henderson denied only that she told the senior Smiths "to move to New Jersey." Although, as previously noted, Mrs. Henderson had specifically testified that she counseled Natalie to bring the child back to Illinois, she later denied in her testimony that Natalie Smith's return to Illinois in September, with Christina, was in accordance with any plan of hers. And while she had given assurances that the placement would be with a neutral foster home it later developed that the Department's placement was for purpose of concluding adoption with these foster parents. Thus on November 15, 1972, the Department filed in 71-J-116 a supplemental petition alleging that Christina is a neglected child by reason of "abandonment by her custodian," i.e., the grandparents. On December 6, 1972, the grandparents filed their petition for adoption in 72-A-135 attaching the executed consents of the natural parents who at that time had the sole power and authority to consent to such proceeding. On December 21, the Department, without notice to the grandparents, called its supplemental petition in 71-J-116 for hearing and obtained an order finding the natural parents unfit and appointing the administrator of the Department as guardian with power to consent to adoption. The apparent purpose of such an order was to nullify the consents of the natural parents executed and filed in cause 72-A-135.

By January 10, 1973, George and Natalie Smith learned of the order entered December 21 in 71-J-116 and filed a petition to intervene and for an order vacating the decree of December 21 upon the grounds that the publication notice in respect to the supplemental petition did not pray an order giving the Department power to consent to adoption or to remove that power from the natural parents. After calling their motion for hearing on three separate occasions, it was finally adjudicated on May 30, 1973, and the dispositional order of December 21 was vacated. The Department then filed another supplemental petition in 71-J-116 for power to consent to adoption and for termination of the rights of the natural parents. This motion was heard and allowed on August 31, the docket entry showing that the grandparents were present and "do not object to prayer for termination of rights of Mary and William Smith." The record shows, however, that the State's attorney objected to their appearance at this hearing on the grounds of no standing as parties in interest within the meaning of the Juvenile Court Act (Ill. Rev. Stat., ch. 37, par. 701-20(6)). The matter was continued for dispositional hearing. In the meantime, in cause 72-A-135, the Department obtained an order authorizing it to contact the New Jersey Division of Youth and Family Services for a background investigation and report on Mr. and Mrs. George Smith. The Adoption Act provides that in the case of a petition for adoption of a related child, no investigative background study of the petitioners is necessary. The order effected an unnecessary delay. Accordingly, Mrs. Henderson, under the authority of a court order, wrote a letter dated September 6, 1973, to the New Jersey authorities who upon receipt of the same, mailed a copy for filing with the circuit clerk in adoption cause 72-A-135. Mrs. Henderson's letter reads as follows:

"Dear Mr. Eddison:

Christina has been in and out of foster homes, including her grandparents, since July 1971 when she was brought to our attention through suspected child abuse report filed by a local hospital. At that time Christina's grandparents lived in Vacaville, California.

After a cursory home and background investigation by the Solano County California Welfare Department, the Department of Children and Family Services permitted Christina to go to California to live with her grandparents in January, 1972. The Solano County Agency agreed to supervise the grandparents home as a foster home and to arrange for visits by Christina's parents on a regularly scheduled basis.

It soon became apparent to the California agency (and to this worker after two visits to California) that Christina was in the midst of an emotional tug-of-war between the grandparents and Christina's father. It was obvious that Christina had become a pawn in the almost sado-masochistic battle between Natalie and her son, William. The grandmother made an automated showpiece of Christina, who on cue would recite her ABC's and end with "I love you" to anyone who said "hello" or stopped to admire her. The George Smiths do not lack the monetary means to support a child. In fact, money is their biggest minus. They feel it can buy anything, including love. They had a $50,000 home in California with $100,000 furnishings. Christina was inundated with toys and clothes. She was given anything she asked for and more, except for firm, loving discipline. In no way could anyone stop the grandparents from buying Christina gifts.

George Smith is a Major in the Air Force. He and Mrs. Smith are in their late forties. They have six sons and as many grandchildren. Their son, William, was given an administrative discharge from the Air Force and was granted amnesty under the drug program in the Air Force. Christina's brother, Shawn, was under protective custody of the State of California prior to ...


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