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In Re Adoption of Lucas

OPINION FILED AUGUST 29, 1980.

IN RE ADOPTION OF KIMBERLY GAYLE LUCAS. — (JOSEPH R. FLANGEL, PETITIONER-APPELLEE,

v.

CATHE SUE FLANGEL, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Lake County; the Hon. BERNARD E. DREW, JR., Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Respondent, Cathe Sue Flangel, appeals from an order of the trial court which vacated an adoption decree it had earlier entered.

On October 25, 1978, Joseph R. Flangel (adoptive father) and his wife, Cathe Sue (mother) filed a petition to adopt Kimberly Gayle Lucas, the daughter of Cathe Sue Flangel and one of her former husbands, Robert C. Lucas (natural father). Their petition made the requisite allegations under the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1507(B)), including that the natural father had abandoned and surrendered the child for adoption and that he had executed a valid consent. Attached to the petition was a copy of his purported consent.

A decree of adoption was entered on February 7, 1979, but on March 7, 1979, within 30 days of its entry, the adoptive father petitioned the court to vacate the decree. His petition, as subsequently amended, alleged inter alia that he and his wife, the child's mother, were having marital problems which would be injurious to the child; that his wife had fraudulently induced him to adopt the child; and that the natural father's consent, executed in Michigan, complied with neither Illinois nor Michigan law. After receiving memoranda of law and hearing oral argument, the trial court entered an order vacating the adoption decree, stating that defects in the natural father's consent deprived the court of jurisdiction.

The essential issue in this case is whether the natural father's consent was in substantial compliance with Illinois law and, if not, whether the trial court correctly vacated the adoption decree.

The parties are in agreement that the purported consent in this case was defective, but the mother characterizes the defects as merely "technical" which, in light of the rule of liberal construction applicable under the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1524), should not defeat the efficacy of the consent. She correctly points out that the language used in the consent was virtually identical to that required by section 10(A) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 1512(A)), and that the consent was notarized.

The consent was not, however, acknowledged by the natural father as his free and voluntary act. The Act provides for this intermediate step of acknowledgement by two different methods:

"A consent * * * shall be acknowledged by a parent before the presiding judge of the court in which the petition for adoption has been, or is to be, filed or before any other person designated or subsequently approved by such court." (Ill. Rev. Stat. 1977, ch. 40, par. 1512(H).)

Whether the acknowledgment is made in open court or before some "other person," the person receiving the acknowledgment must execute a certificate in accordance with the form set out at section 10(J) (Ill. Rev. Stat. 1977, ch. 40, par. 1512(J)). The next required step is notarization of the acknowledgment certificate, pursuant to section 10(K) (Ill. Rev. Stat. 1977, ch. 40, par. 1512(K)). That same section further requires: "There shall be attached a certificate of magistracy to a consent signed and acknowledged in another state."

The consent in the present case was executed in Michigan and was not acknowledged; it was the consent document, not a certificate of acknowledgment, that was notarized. Moreover, the requirement of a certificate of magistracy was not met.

The mother seeks to draw an analogy between the present case and Gebhardt v. Warren (1948), 399 Ill. 196, 77 N.E.2d 187, wherein the adoption was upheld although the adopted child was misnamed once in the decree through obvious clerical error; and Hale v. Hale (1978), 57 Ill. App.3d 730, 373 N.E.2d 431, wherein the words "final" and "irrevocable" were omitted from the form of the consent. We do not agree that the defects in the present case are merely "technical" and therefore find the cited authorities inapposite.

The adoptive father relies primarily on In re Jennings (1975), 32 Ill. App.3d 857, 336 N.E.2d 786, aff'd (1977), 68 Ill.2d 125, 368 N.E.2d 864, wherein this court held that a consent not properly acknowledged is void because "[t]he requirements of the statute as to the acknowledging or witnessing of the consent are mandatory, and compliance therewith is necessary to the validity of the consent." (Jennings, 32 Ill. App.3d 857, 861, 336 N.E.2d 786, 789; see In re Thompson v. Burns (1949), 337 Ill. App. 354, 86 N.E.2d 155.) The court pointed out that such formalities are "for the purpose of emphasizing the solemnity of the step being taken and also for the general purpose of providing protection for the parties to an adoption," noting that the proper execution and acknowledgment of a consent are prerequisites to the irrevocability of the consent under section 11 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 1513).

The supreme court affirmed the appellate court in Jennings, but did not address the question of whether the acknowledgments' nonconformance with the requirements of the Adoption Act invalidated the consent in that case. The court instead found that the acknowledgments were made under an applicable alternative method provided by section 5-9(3) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 705-9(3)).

• 1 We believe our reasoning in Jennings applies in this case, wherein none of the required formalities of acknowledgment or authentication was met and the execution of the purported consent was not in substantial compliance with section 10 ...


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