Appeal from the Circuit Court of Peoria County; the Hon. James
M. Bumgarner, Judge, presiding.
JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:
Catholic Social Service of Peoria (hereinafter CSS) appeals from the judgment of the circuit court of Peoria County in this small-claims action brought by plaintiffs Garrett and Lynette Crismore, Kenneth and Janet Elmer, and James and Judith Moroz. CSS is an Illinois licensed child welfare agency, and has operated a licensed adoption placement service for many years. Plaintiff couples had sought the services of CSS in adopting newborn infants, and this action by them arises from their dealings with CSS in the adoption process. In their actions against CSS, each of the plaintiff couples sought to recover $600 from a $3,600 fee which they had paid previously to CSS as a fee for its adoption services.
When the plaintiff couples had made their initial applications to CSS, the adoption placement fee was placed at $3,000. Prior to payment of the placement fee, and prior to their receiving infants for adoption, CSS raised the placement fee to $3,600, in order to help defray costs of delivery and medical bills. The trial court, sitting without a jury, entered judgment for the plaintiffs and against CSS, finding that the $600 increase of fee was the result of an unconscionable contract imposed by CSS upon the plaintiffs during the adoption process. From this judgment CSS appeals.
The record reveals that the three couples had contacted CSS concerning the availability of infants for adoption in February and March of 1982. They were informed of CSS' procedures, which required an application in writing to start the adoption process. Prior to the submission by them of their application forms, the process was discussed with them by an agency case worker in each case. In those discussions in February and March of 1982, in each case a caseworker went over the policies and procedures of CSS, as found in a CSS handbook explaining terms and conditions of the adoption program. In pertinent part, that handbook indicated the placement fee for the adoption would be $3,000, $400 of which was for a home-study fee, and the remaining $2,600 of which was to be paid at the time of the finalization of the adoption in the circuit court. Thereafter, all three couples submitted an executed application to adopt a child, wherein they were required to give pertinent background information respecting family and financial situation. A single page of the adoption application was designated as an agreement.
The agreement portion of the application did not mention or set forth any placement fee. It merely stated the adoptive parents' agreement and willingness to rear the child exclusively in the Catholic faith, and not to transfer the custody of the child to any other person. The parents agreed to assume all responsibility for the child after the adoption. It also set forth the agreement by the adoptive parents that during an initial period of supervision, prior to final adoption, while the child was with the parents, the agency still reserved and retained the right to remove the child from them in its absolute and uncontrolled discretion. The agreement specifically set forth that CSS' acceptance of the application did not bind it in any way to place a child with the adoptive parents.
The plaintiff couples submitted their applications in writing in February, March and April of 1982. They also attended agency classes, had the requisite physical exams, and had home investigations done by agency social workers. In the summer of 1982 all three couples had been approved for adoptive placements, and they were so informed. At that time none of the couples had paid CSS any part of the adoption fee, including the required initial $400 home-study fee.
On September 21, 1982, CSS mailed a letter to the three plaintiff couples, as well as to other couples approved for adoption placement, but waiting for a child. In that letter, CSS stated that the placement fee was being increased from $3,000 to $3,600 for all babies which were to be placed for adoption on or after October 1, 1982. CSS explained in the letter that the increase in fee was to allow it to make payment toward some of the medical bills faced by an increasing number of girls wishing to place their babies for adoption. The letter also solicited adoptive couples' thoughts and discussions on this increase in fee. All three plaintiff couples acknowledged the receipt of that CSS letter of September 21, 1982.
At the time of receipt of the letter by the individual couples, no money had been paid to CSS toward the adoption fee, and no money was paid to CSS until after the agency placed babies in each couple's home. There was no significant testimony in the record indicating complaints or protestation by the couples at that time concerning the increase in the placement fee. All three couples testified that they were fearful that any action by them in that respect might result in their not receiving adoptive children. Babies were placed in the homes of the three couples by CSS in December of 1982 and January of 1983. Placement agreements were signed, and after the placements, periodic payments of the $3,600 fee were made to CSS by the three couples. Adoption proceedings in the Peoria County circuit court were completed in December, 1983, and in January, 1984. In each case, the full $3,600 fee was paid by the individual couples without protest.
Following completion of the adoption proceedings, the three couples filed a small claims action in circuit court, seeking to have $600 of the $3,600 adoption fee refunded to each of them by the agency. The trial court, in finding for the plaintiffs and against CSS, noted the superior and dominant position of CSS with respect to the plaintiffs in the situation. It concluded that:
"Social mores dictate that placement of a child cannot be governed by the ordinary rules of contract where parties deal at arm's length. Child placement is fraught with strong emotion and anxiety. For this reason, there was gross inequality in the bargaining positions of the parties, together with imposition of a term unreasonably favorable to the stronger party. Restatement of Contracts 2d, Section 208; IICLE Contract Law, Section 2.45, et seq."
The plaintiff couples advance several theories in support of the trial court's judgment. They contend that there was a written contract between each plaintiff couple and CSS at the time of application by the couples. This contract, according to plaintiffs' argument, consisted of the signed agreement, where no mention was made of the placement fee, supplemented by the conditions set forth in the CSS handbook, which set the placement fee at $3,000. It is contended that there was an offer by CSS to provide its services, in exchange for the $3,000 fee, and that such offer was accepted by each individual couple. Alternatively, it is argued that an oral contract with a $3,000 fee existed, based upon the representations by CSS personnel that the placement fee for the service would be $3,000. As a third alternative, the plaintiffs contend that there was an implied contract, based upon the intentions of all parties to form a contract.
It is contended by plaintiffs that the fee increase of September 1982 constituted a new contract offer with no new consideration flowing from CSS. Plaintiffs assert that their acquiescence in the alteration of the initial contract was the result of implied coercion and unequal bargaining power between them and CSS. The plaintiffs testified, in substance, that they felt any protest or refusal to pay the increased fee would have resulted in CSS' not placing any baby with them.
• 1 We find, initially, that there was no enforceable contract between the individual couples and CSS which set the placement fee at $3,000. The only document executed by these couples prior to the announced increase in fee was the agreement with respect to their willingness to abide by certain terms and conditions of the adoption process. Neither in that agreement, contained within the application, nor on any other document executed by them, was the placement fee set at $3,000. So far as the CSS pamphlet's mention of the $3,000 fee, nothing indicates incorporation of that provision into the parties' agreement, nor is there any indication in the pamphlet that the fee was not subject to adjustment by CSS. ...