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In Re Adoption of Mcfadyen





Appeal from the Circuit Court of Cook County; the Hon. Francis Barth, Judge, presiding.


This is an appeal from the granting of a petition for adoption. Petitioners Leon and Marianne Shure filed a petition to adopt Alex J. McFadyen III ("Alex III"). The petition was contested by respondents Alex and Diane McFadyen. Two issues are presented on appeal: (1) whether the circuit court correctly construed the term "parents" in the Adoption Act to mean only biological and legally adoptive parents (Ill. Rev. Stat. 1979, ch. 40, par. 1510(a)); and (2) whether such a construction deprives Alex McFadyen of due process.

Alex and Diane were married on March 7, 1979. Diane gave birth to a son, Alex III, on February 23, 1980, in Casper, Wyoming. Alex and Diane concede on appeal that Alex is not the biological father of Alex III.

The Shures filed a petition to adopt Alex III on August 13, 1980. Diane executed a "final and irrevocable" consent to the adoption of Alex III on August 14, 1980. Alex and Diane concede on appeal that this consent was valid. The biological father, Robert Giddick or an unknown person, was served by publication in the circuit court and a default judgment entered against him. The circuit court entered an order terminating the parental rights of Diane, appointing a guardian ad litem for Alex III, *fn1 and granting temporary custody of Alex III to the Shures.

The Shures' petition, with amendments, *fn2 alleged that Alex was the presumptive legal father of Alex III, and that Alex was an "unfit person" within the meaning of section 1(D) (Ill. Rev. Stat. 1979, ch. 40, par. 1501(D)). The petition also alleged that Robert Giddick was the biological father of Alex III and that he was an unfit person.

Alex filed a general appearance on February 25, 1981. Alex' section 45 motion to dismiss the petition for adoption was denied (Ill. Rev. Stat. 1979, ch. 110, par. 45). After further proceedings not relevant to this appeal, the Shures filed a motion for judgment of adoption, which the circuit court treated as a motion for summary judgment. The motion alleged that Diane, the natural mother, consented to the adoption, that Alex had no standing since he was not the biological father, and that the biological father was in default. In support of the contention that Alex was not the biological father, excerpts from the deposition transcripts of Alex and Diane were submitted.

Alex testified at his deposition that he had a vasectomy in 1972, and that he believed himself to be sterile. He further testified that he and Diane had an agreement that she could have intercourse with other men for the purpose of becoming pregnant. One of the men with whom she had intercourse was Robert Giddick. Diane's deposition testimony corroborated the existence of this "agreement," and that she had intercourse with Giddick and several other men.

In denying the Shures' motion for summary judgment, the court stated that if Alex was not the biological father, neither his consent nor a finding of unfitness was needed. A trial on the issue of paternity followed.

Six days before the trial began, Alex and Diane filed a joint verified answer to the petition for adoption. Alex had previously filed a verified answer to the petition. Alex and Diane denied that Alex was an unfit person. They claimed that it was possible for Alex to be the biological father, but that if he was not, that Alex III was conceived through "their type of artificial insemination." In an affirmative defense, they defined this type of "artificial insemination" as consisting of "someone other than the husband was, by their choice, the sperm donor to help them conceive their child." It was more clearly explained in a further affirmative defense as "artificial insemination by means of a surrogate donor's penis." The Shures did not file a responsive pleading to this answer.

Although the trial court had ruled that the sole issue at trial was to be paternity, this ruling was not strictly followed. Much of the testimony of the 10 witnesses concerned the issue of paternity, but other evidence was introduced by both parties. A brief chronology of the events leading up to the surrender of Alex III for adoption follows.

Alex and Diane were married on March 7, 1979, in Chicago. Several weeks later they moved to Covert, Michigan. Alex spent May and part of June in jail on a misdemeanor charge. It was during this time that Diane had intercourse with Giddick and several other men. Alex and Diane moved to Casper, Wyoming, at the end of July 1979. They lived in Casper until April or June of 1980. Alex III was born in Casper on February 23, 1980. From Alex III's birth until they left Wyoming, Diane took Alex III to visit relatives in Chicago on several occasions.

Diane testified that in late April 1980, she hitchhiked to Chicago with Alex III, where they took up permanent residence with Laura Kroll, Diane's grandmother. Mrs. Kroll's testimony was consistent about this date. Alex moved to Mrs. Kroll's in late June. (Alex testified that the entire family moved together from Wyoming to Chicago in late June 1980.) Alex attended truck driving school in Wisconsin for three weeks from approximately June 30 to July 17, 1980. Diane and Alex III accompanied him to Wisconsin. Upon graduation, Alex traveled to at least 10 states in search of employment. Diane and Alex III returned to Mrs. Kroll's and did not travel with Alex. In late July 1980, Alex secured employment as a cross-country truck driver with a firm in Wichita, Kansas.

While working as a truck driver, Alex did not see Diane or Alex III. When Alex returned to Wichita on August 27 after finishing a run, Diane was waiting for him. She told Alex that she had placed Alex III up for adoption.

Evidence was introduced on issues other than paternity as follows. Alex was called as an adverse witness during the Shures' case in chief. Ruling on an objection to a line of questioning, the circuit court held that evidence of Alex' fitness as a parent was relevant and allowed questioning on the subject. Consequently, substantial evidence was introduced in an attempt to establish Alex' unfitness, including his prior criminal history and his prior marital and child-support history. During their case, Alex and Diane introduced evidence in an ...

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