APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
N. HAMILTON, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
The State prosecutes this interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). The trial court certified and this court has granted leave to appeal the following questions of law:
"a. Whether the failure of the attorney for the temporary custodian, who accepted a surrender from the mother to notify the mother's attorney of record prior to executing the surrender constitutes fraud thereby invalidating the surrender.
b. Whether the People of the State of Illinois prior to an adjudicatory hearing has the absolute right to dismiss a neglect petition without prejudice after the mother has filed a motion to withdraw her Consent to Adoption when that consent was taken during pending of the neglect case."
On July 31, 1978, a petition for adjudication of wardship of Shetina Nolan, a 2 1/2-month-old child, was filed pursuant to section 2-4(1)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-4(1)(a)). The petition alleged that the child was neglected as to the care necessary for her well-being, and the child was placed in the temporary custody of the Illinois Department of Children and Family Services. The public defender was appointed as the attorney for the mother, Sophia Nolan. *fn1 The adjudicatory hearing was scheduled for September 22, 1978, but Sophia did not appear. *fn2
Sophia signed the adoption surrender on October 30, 1978. On May 14, 1979, Sophia appeared in the neglect proceeding for the first time since July 31, 1978. On May 25, 1979, Sophia filed a motion to withdraw her surrender, which she amended on September 24, 1979. The State at that time orally moved to dismiss the petition for adjudication of wardship. The court denied the State's motion and continued the case until November 14, 1979.
On November 9, 1979, the State filed a written motion to dismiss the petition for adjudication of wardship. The court denied this motion after argument on December 11, 1979, and continued the case for a hearing on Sophia's motion to withdraw her surrender.
On January 29, 1980, the court conducted a hearing on Sophia's motion to withdraw her surrender, at which the following evidence was adduced:
Jane Roiter, a social worker for Child and Family Services, a private agency (unrelated to the Illinois Department of Children and Family Services), testified that she met Sophia on July 30, 1978, and was assigned to be her caseworker. Approximately one week prior to October 30, 1978, Ms. Roiter received a message that Sophia had called her while she was not in her office. Ms. Roiter returned Sophia's call. During the conversation Sophia said that she was leaving town and that she knew a neighbor who could adopt the child. Ms. Roiter inquired whether Sophia's plans to leave town were related to Ms. Roiter's plans to leave the agency. Sophia responded that she felt nobody would care "about her or make plans for Shetina" after Ms. Roiter left. Ms. Roiter urged Sophia to continue with her new caseworker, Jan Franzen.
The following day, October 23, 1978, Ms. Roiter met with Sophia. Sophia again said that she wanted to get away and "felt hopeless about getting Shetina back." When Ms. Roiter informed Sophia that "feeling hopeless" was not a reason to surrender the child for adoption, Sophia responded that it was not the only reason. She said "that her Mom never took care of her and that she wanted Shetina to have a chance that she never had for herself." When Ms. Roiter cautioned Sophia that surrendering the child would be permanent, not temporary, and that she could not change her mind, Sophia responded that "she knew." Pursuant to their conversation, Ms. Roiter called Ms. Amadio, an attorney and social worker for the Illinois Department of Children and Family Services, and arranged an appointment for the surrender.
Ms. Roiter further testified that on the morning of October 30, 1978, she drove Sophia to the courthouse. During the 20-minute drive Ms. Roiter discussed the procedures regarding the surrender and again cautioned Sophia that "this was a permanent decision." When Ms. Roiter asked Sophia if she still desired to surrender the child for adoption, Sophia replied "yes."
Ms. Amadio testified that as part of her duties she "take[s] adoption surrenders from parents." On October 30, 1978, she met with Sophia in an attorney conference room adjoining a courtroom in the juvenile court building. Also present were Ms. Roiter and Ms. Franzen. During the taking of the surrender Sophia was not crying and did not appear to be angry. Ms. Amadio did not know that the neglect proceeding was pending and did not know whether Sophia had an attorney. Although Ms. Amadio often informs parents that they may have their attorney present at the surrender, she could not recall whether she so informed Sophia. Nor could she recall whether she informed the public defender's office of her intent to obtain a surrender from Sophia.
At the adoption surrender conference Ms. Amadio introduced herself to Sophia as "an attorney and social worker from the Illinois Department of Children and Family Services" and explained that it was her "job to meet with people who are considering surrendering their children for adoption." At no time did she represent that she was Sophia's attorney.
Ms. Amadio then read the surrender to Sophia and asked her if she understood it. Sophia replied that she did. Ms. Amadio then asked Sophia if she had any questions, and Sophia responded that she did not. Ms. Amadio then proceeded to explain each paragraph of the surrender by "paraphrasing it in simple language." Ms. Amadio asked Sophia if she understood that "if you sign this, you are giving up all your rights as a parent and you can't ever change your mind or have your child returned to you." Sophia replied that she understood. Ms. Amadio explained that Sophia did not have to surrender the child for adoption. When Ms. Amadio asked Sophia if anyone tried to force her to sign the surrender, had threatened her or made any promises to her, Sophia responded "no." Ms. Amadio asked Ms. Roiter if there had been "any agreement that the foster parents would adopt the child." Ms. Roiter ...