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In Re Adoption of Mantzke





Appeal from the Circuit Court of Jo Daviess County; the Hon. Harold D. Nagel, Judge, presiding.


Rehearing denied March 15, 1984.

Petitioners, Dennis and Judith Meyerhofer, appeal from an order granting the motion of respondent, Katherine Meyerhofer Massion, to vacate a judgment for adoption in favor of petitioners as it applied to the minor children, Edward Jay Meyerhofer and Jacquelyn Kay Meyerhofer, and denying petitioners' petition to adopt those two minor children. Respondent does not appeal from the judgment of adoption of John Baukley Meyerhofer, an adult male, by petitioners in these same proceedings below.

Petitioners raise two issues on appeal: (1) whether the trial court committed reversible error in its ruling to vacate the judgment of adoption entered December 29, 1982; and (2) whether the trial court committed reversible error when it denied the adoption of the two minor children of the parties.

• 1 While counsel for respondent has filed what is labeled as a "courtesy brief," it does not comply with the requirements of Supreme Court Rule 341(f) (87 Ill.2d R. 341(f)) and will be stricken. This case will therefore be reviewed under the guidelines set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

Petitioners filed a petition for adoption on August 20, 1982, alleging in count I that they were married and wished to adopt Michelle Sue Mantzke, born October 9, 1967, and that Judith was Michelle's natural mother and consented to the adoption while Danny Lloyd Van Houten, the natural father, was an unfit parent making his consent unnecessary. (The court later granted the adoption of this child and no appeal was taken from this judgment.) Count II alleged that petitioners wished to adopt John Baukley Meyerhofer, born on August 27, 1963, Edward Jay Meyerhofer, born on March 1, 1966, and Jacquelyn Kay Meyerhofer, born February 19, 1968, that the children were in the custody of and resided with petitioners, that Dennis was the natural father of these three children and consented to the adoption, that Katherine Meyerhofer Massion, the natural mother, had abandoned and deserted her children for a period in excess of five years and had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the children, and that Katherine Meyerhofer Massion was thus an unfit parent and her consent to the adoption was unnecessary.

The court appointed a guardian ad litem to represent the children. At a hearing held on December 29, 1982, counsel for respondent stated that while he had notified his client of the hearing date, he had found out she was in Wisconsin and could not be reached by telephone. The trial court denied a motion for a continuance, but stated that counsel could contact his client within 30 days and "assuming proof is sufficient today, * * * you'll have the right to open it up."

Petitioners presented evidence at the hearing which showed that following the dissolution of the marriage of Dennis Meyerhofer and respondent, Dennis was awarded custody of the three children from that marriage, John Baukley, Edward Jay, and Jacquelyn Kay. Respondent was given visitation rights. Dennis subsequently married Judith in 1970, and the children resided with both of them. Since 1977, respondent had not exercised her visitation rights, had not sent the children any cards or presents, and had not called Dennis or Judith concerning the health or schooling of the children. The three children had signed consents to be adopted. Edward testified that he and his older brother had gone to visit respondent two or three years earlier but that respondent had not contacted them since then. Both Edward and Jacquelyn testified that they wished to be adopted.

The trial court found respondent unfit by reason of desertion and failure to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare, and judgment of adoption for John, Edward, and Jacquelyn was entered for petitioners on December 29, 1982.

Respondent filed a motion to vacate on January 12, 1983, asserting four separate grounds to set aside the judgment. The trial court stated it would grant the motion to vacate and allow respondent to present evidence because it had previously denied a motion to continue the trial with the understanding that such a motion could be filed within 30 days of the judgment. Since the birth certificates on the adoption judgment were being processed "in Springfield," the court then indicated it would not formally vacate the judgment then, but would allow respondent to present evidence on the merits of the adoptions at a subsequent hearing.

At that hearing on the motion to vacate, respondent testified that after her divorce in 1968 from Dennis Meyerhofer, she exercised her visitation rights. She began to notice the children experiencing stress from going back and forth between parents. The children frequently expressed a desire to live with her. Respondent stated that the children told her they were not allowed to mention her or what they had done over the weekend when they went home. The petitioners told her that there was a discipline problem after the children returned from visits and blamed respondent's leniency, although respondent claimed that her present husband was extremely strict with the children. His excessive strictness, in fact, bothered her.

She related that she had come from a divorced family where she was torn between both parents and she did not want her children to suffer that same experience. She chose to give up her visitation rights until the children were of an age that they could visit or call on their own, without any stress or feelings of guilt. She said she explained her feelings at the time to the children and told them that she loved them, that she would always be there if they needed her for anything, and that they could contact her on their own. She felt the children were in a good home with their father.

She further testified that she ran a store and that the children came by the store twice when she was not there. Jackie had called three or four times over the years, although respondent said in the background on each of those calls she heard another child threatening to tell on Jackie for making the call. She ran into the boys once while on a trail ride. John stopped by the store once when he needed her signature to join the Air Force. She said that she never refused to see them, never intended to give up her rights as their mother, and did not understand why an adoption was necessary when older children were involved. At the time she stopped visitation, her minister suggested that she write her children letters whenever she felt like it, keep them, and some day she could give them to the children. She stated she did write and keep these letters and also kept newspaper clippings about the achievements of the children.

On cross-examination, respondent testified that although she lived in a substantially large house after her remarriage, she did not try to obtain custody because her new marriage needed a chance to become cemented. Her new husband did not like the travel involved in picking up and returning the children. Respondent lived in Freeport and the children and the petitioners in Elizabeth, about 35 miles away. Respondent admitted that the petitioners loved the children and raised them as best as they could. She said that when she told Judy Meyerhofer of her decision not to see the children anymore when Judy came to pick up the children's belongings, Judy was upset and could not understand how respondent could do that to the children. Respondent said she did not send any birthday or Christmas cards or presents, or have any communication for six years with the children because that would have been against her unilateral agreement not to interfere in the children's lives. She admitted that the children did not agree to ...

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