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Rodriguez v. Koschny

OPINION FILED FEBRUARY 15, 1978.

ESTHER ARREQUIN RODRIGUEZ, PLAINTIFF-APPELLANT,

v.

MARIE KOSCHNY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP LOCKE, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Esther Arrequin Rodriguez is the natural mother of a child born in 1966 who was adopted by the defendants Robert J. Klaeren and Joan L. Klaeren in 1968 following an order which terminated parental rights. In those proceedings the mother was served by publication as "unknown." In 1975 the mother instituted habeas corpus proceedings in Cook County in the course of which she located the child living with the Klaerens. In 1976 the mother filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) to vacate the order which terminated her parental rights, the order authorizing a guardian to consent to the adoption, and the decree of adoption. Following an evidentiary hearing her petition was denied and she appeals.

The child was born on April 1, 1966, at Weiss Memorial Hospital in Chicago. Miss Rodriguez left the hospital on April 9, 1966, with the baby and with her older sister Marie Koschny. Later that day by prearrangement Marie Koschny delivered the child to Martha D. Chauvet, a medical doctor.

On December 28, 1967, after the Klaerens had custody of the child for over a year, a petition was filed with the State's Attorney for Du Page County alleging that "Baby Boy Doe" was born on April 2, 1966, *fn1 and was a dependent minor without a parent or a legal guardian. The petition was verified by affidavit and stated that the child's mother was "unknown." Notice by publication was made "To All Whom it May Concern" on January 24, 1968, pursuant to section 4-4(2) of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch. 37, par. 704-4(2)). Pursuant to the notice the court, on January 28, 1968, terminated the mother's legal rights with respect to the child and appointed the deputy chief probation officer of the county as guardian with the power to consent to adoption.

On March 26, 1968, the Klaerens filed a petition to adopt Baby Boy Doe alleging that the mother was an unfit person on the grounds of abandonment. Thereafter, on June 3, 1968, the court entered a decree of adoption pursuant to the written consent of the guardian.

Miss Rodriguez filed a petition to vacate the various orders on February 25, 1976. Her petition alleged that she first acquired actual knowledge of the whereabouts of her child on August 4, 1975; that she did not receive notice of the proceedings to terminate her parental rights; and concluded that therefore the various orders and the decree of adoption were void.

In the evidentiary hearing held on the petition, the petitioner testified that her sister Marie picked her up at the hospital; that they drove with the baby to the north side of Chicago; that her sister then suggested that petitioner place the baby in the front seat and lie down on the back seat to prevent her feet from swelling; but that before she could open the rear door to get into the back her sister drove away. Petitioner testified further that she ran behind the car, waited on the corner a few minutes in the belief that her sister did not know that she was still outside the car and when her sister failed to return went home.

The remainder of petitioner's testimony is primarily her account of how over a period of nine years she had attempted without success to gain information about the child by questioning her sister Marie. Among other things she testified that after petitioner left the hospital she attempted to call Marie at her Chicago residence but got no response and that Marie refused to return her calls. She said that on occasions Marie would telephone the house where petitioner lived and petitioner would demand to know the whereabouts of the baby. On these occasions Marie would say "Oh, he is fine" and nothing further. On another occasion Marie said "He is well, he eats well. He doesn't cry." On another occasion Marie told her "Oh, he is starting to roll over. He eats real well, he is gaining weight * * * He is on orange juice now." Later Marie would tell petitioner that the child climbed up and down in the high chair. Petitioner testified that in 1970 Marie told her that the child was old enough to be in Montessori School and was learning three languages and cultures. Also, according to petitioner, Marie from time to time accepted money and clothing which was purportedly for the benefit of petitioner's child. Miss Rodriguez testified that often when she would demand to have her baby back Marie would give no answer whatsoever. In 1969 Marie was driving petitioner to Champaign and Miss Rodriguez testified that she tried to talk to her in regard to the baby but she got the answer that Marie did not wish to be distracted while she was driving. Petitioner recounted several instances when she would visit Marie at her sister's house and on these occasions would notice that the baby was not with her sister. She said on occasion she even took care of Marie's little girl and would say that she could take care of two as well as one and asked to have the child with her on weekends. She said that in 1970 she asked on an average of at least once a week about the child. Petitioner also testified that in 1971 she asked Marie where the child was and asked if he was with nuns in Peoria or in Kankakee or what was going on and that Marie refused to answer; and on another occasion asked to see him, to see what was going on and that Marie refused to answer.

When counsel asked petitioner why she accepted these incomplete explanations she replied, "We are Mexican-American and we live in the extended family form." She also said there was a history in the family of caring for nephews and nieces and that Marie was the head of the household and made the family decisions.

Petitioner testified that she finally filed a petition for writ of habeas corpus in Cook County on July 25, 1975, seeking to require Marie to answer questions as to the whereabouts of the child as a result of which she located the child. She said she waited until July 25, 1975, to institute legal proceedings because she trusted her sister. Only after she talked to a priest, she said, did she feel free to bring suit against her sister.

Marie Koschny, however, testified that shortly before the baby was born petitioner approached her for help and stated "Can you keep it. Can you put it in a foster home for me"; and that Marie answered that the child should be "placed" and explained that she thought her sister understood that that meant placing the child for adoption because there was no other way of caring for the child; but she said that she did not use the word adoption and neither did Miss Rodriguez. However, she said "It was understood." Marie also testified that she had never told the petitioner that the child had been adopted because she could not be that "blunt" with her. Marie testified that petitioner was in the back seat of the automobile when the baby was delivered to Dr. Chauvet and that afterwards she and her sister drove to the family house together. Marie also testified that both she and petitioner were living at the family residence in Chicago together until January 1967. Further she said that petitioner lived with her in Champaign during the academic year 1969-1970. Marie admitted that petitioner occasionally brought up the subject of the child and that she told her sister that the baby was being well cared for but she denied that she ever led petitioner to believe that she was caring for the child.

Dr. Chauvet testified that Marie contacted her before the baby was born with reference to an adoption and that on Marie's request she arranged for a meeting between Marie and Mrs. Klaeren. She also testified that she took the child to the Klaerens' home. She said that Marie at no time told her the mother's name.

There was further evidence in the record that petitioner was nearly 39 years old when she gave birth to the child; that she was a highly educated woman with a bachelor of science degree in nursing and a master's degree in education, as well as substantial postgraduate credit in medical and physical care. She was unmarried and at the time she gave birth to the child she had a job in which her duties included giving formal lectures and conducting seminars for undergraduate students in nursing.

During the course of the section 72 hearing petitioner's counsel repeatedly attempted to show that there was little attempt to ascertain her name and address but objections were sustained to these questions. In an offer of proof petitioner's counsel stated that the notes of the person who was responsible for making the ...


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