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In Re Keiss



APPEAL from the Circuit Court of Will County; the Hon. THOMAS P. FAULKNER, Judge, presiding.


Carol Keiss, mother of Christopher Keiss, an infant, appeals from a denial of her petition to vacate her surrender for adoption executed in open court.

The facts are not in dispute. Shortly after Christopher's birth on June 15, 1974, a petition was filed in the Will County Circuit Court, alleging that he was a neglected child, under the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701 et seq.) Between June 15, 1974, and June 20, 1975, the mother, who was unmarried, was voluntarily hospitalized two or three times for mental treatment necessitated in part by use of drugs, including LSD. Christopher was placed in a foster home through the Department of Children and Family Services. The mother was encouraged to visit her son, and custody was briefly returned to her in August, 1974, and again in March, 1975. During May of 1975, the mother had an abortion to terminate a second pregnancy.

On June 20, 1975, the mother appeared in the circuit court with counsel, and executed her final and irrevocable surrender for purposes of adoption. Subsequently, she underwent a hysterectomy, and on August 5, 1975, filed a petition to vacate the surrender, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). After several amendments to the petition, the circuit court granted the State's motion to dismiss the petition with prejudice, and the mother appeals.

The issue before this court is whether the petition to vacate was legally sufficient. If so, then the trial court erred in dismissing the petition and denying the mother a hearing on the merits.

The amended petition alleged that the mother was "lacking in mental competence" at the time she executed the surrender, and recited the following facts:

"At the time of the execution of said surrender of June 20, 1975, petitioner was taking pills prescribed for a cerebral disturbance reflected by an EEG; moreover, at such time petitioner was mentally disturbed and severely confused resulting from the then recent abortion and from a long history of psychiatric illness and was, in fact, lacking in mental competence, comprehension or any ability whatsoever to comprehend the nature of her acts or the logical or natural consequences thereof."

The petition also stated that the mother's "yes" answers to the judge's questions about her understanding of the legal effect of a surrender did not show that she was competent. The petition concluded with an assertion that section 11 of the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-11) by implication "includes the grounds of incompetency or mental disturbance along with fraud or duress as grounds for setting aside a surrender for adoption."

In a memorandum opinion setting forth reasons for dismissal of the petition, the trial court agreed with the State's contention that the petition was insufficient at law because the only grounds for vacating an irrevocable surrender for adoption are those set out in the Adoption Act, *fn1 and thus are limited to fraud or duress on the part of the person before whom the surrender is acknowledged or on the part of the adopting parents or their agents. The court surmised that the legislature deliberately excluded mental incompetence as a ground for vacating a surrender and, after noting that the law's constitutionality was not questioned, refused to construe the statute to include such grounds by implication.

The court also found that the psychiatric and social worker's reports on file corroborated the presumption of sanity and competence, and did not support the allegations of incompetency.

• 1 We must first consider whether, as a matter of law, a parent's mental incompetence can be a ground for vacating an irrevocable consent for adoption under the Adoption Act, in the absence of any claim of fraud or duress on the part of persons interested in obtaining the surrender. A parent previously adjudicated incompetent or mentally ill must be represented by a guardian ad litem who is vested with the power to consent, under section 8(e) of the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-(e)). In the absence of a finding of incompetency, a person is presumed competent until the contrary is shown. People ex rel. Drury v. Catholic Home Bureau (1966), 34 Ill.2d 84, 213 N.E.2d 507.

By definition, a presumption is a legal inference which can be overcome by the party challenging it, and the presumption of mental competency must be recognized for what it is. The burden of proof, of course, devolves upon the party alleging incompetence. (Stoltze v. Stoltze (1946), 393 Ill. 433, 66 N.E.2d 424.) The statutory forms of a surrender for adoption contains as a final clause the words "I have read and understand the above and I am signing it as my free and voluntary act." (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-10 C.) Implicit in this language is the signatory's mental capacity to comprehend and to perform the act as an exercise of a free will. If a person is mentally incompetent, the signing cannot be voluntary. Hence, we conclude that a surrender for adoption executed by a mentally incompetent person is voidable to the same extent as a contractual undertaking entered into by a person lacking capacity to contract.

• 2 The provisions of the Adoption Act relating to the irrevocability of surrenders obviously were designed to carry out a policy which recognizes the importance of providing a stable environment for an adopted child. A natural parent is prevented from rescinding his or her consent or surrender when misgivings later occur, as so often happens, unless the consent was given involuntarily. In furtherance of that purpose, Judge Angelo Pistilli, the trial judge, carefully questioned the mother concerning her understanding and comprehension of the legal effect and the finality of the surrender she proposed to execute. In addition to giving "yes" answers indicating that she understood, the mother, when asked if this was what she wanted to do, replied, "It's the best thing for Christopher." After signing the surrender, she later spoke up to ask the court to clarify whether she would be found unfit. When the court stated, "I'm not finding you to be unfit in any way," she responded, "Because I'm not." It is clear from the transcript of this proceeding that the mother gave close attention to the conversations between the attorneys and the judge, and that she participated fully in those discussions. She was represented by privately retained counsel at the time she executed the surrender, and had been represented by the same counsel for the past year during which she made seven appearances before Judge Pistilli in the neglect proceeding. In such a situation, only the most clear and convincing evidence of mental incompetence existing at the time of execution would be sufficient to overcome the presumptive validity of her surrender.

We cannot agree with the State that the mother waived the issue of incompetency by her failure to raise it in the surrender proceeding. It would be logically inconsistent to impute to this mother a waiver of the question of competency but to acknowledge, as we have, the voidability of her consent. If the ...

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