Before discussing the remaining issues, it should be noted that this has been a very troubling case for this court, as it undoubtedly was for the trial court. There are a number of factors which have compounded the difficulty of the case. First, DCFS, in its zeal to do what is best for the child, instead of immediately returning this indisputably illegal alien child to Mexico through INS, exercised its jurisdiction through the courts of Illinois. This caused procedural difficulties in that evidence concerning the birth of the child which would have been available to Mexican authorities was unavailable to the Illinois courts and beyond Cobieya's means to produce in Illinois. In addition, it is the failure to return the child to Mexico immediately which caused the bicultural dilemma in which the child has become trapped. Add to this the experts ignoring the fact that "culture" is learned, not inherited, and recommending the child be exposed to the Hispanic culture through non-Hispanic foster parents even though, if the child was ultimately to be adopted, his culture would be that of his adoptive parents, not the culture of his natural parents with whom he would no longer have contact. It might be otherwise, of course, if the child had been raised in an Hispanic environment for a sufficient period of time so as to become conscious of his Hispanic origin. In any event, we must take the case as we find it.
APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
STEVE TAMBURINI et al., Respondents-Appellants (MARIE ELENA
548 N.E.2d 1085, 192 Ill. App. 3d 477, 139 Ill. Dec. 529 1989.IL.1902
Appeal from the Circuit Court of McLean County; the Hon. William T. Caisley, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
This is an appeal by the State of Illinois (State), respondent minor R.B.W., and the minor's foster parents, respondents Steve and Linda Tamburini, from an order of the circuit court of McLean County denying the State's petition for termination of parental rights and directing the minor be returned to respondent Maria Elena Cobieya, who was determined by the trial court to be the minor's natural mother.
On September 13, 1985, the State filed a petition for adjudication of wardship of R.B.W., naming Charles and Bette Winks as respondents. Notice to the child's unknown mother and father was published on September 21 in the Pantagraph, a newspaper of general circulation in McLean County, Illinois. Apparently, similar procedures were instituted concerning five other children which had been in the Winkses' custody. On February 6, 1986, the trial court entered a memorandum opinion and order finding the six infants of Mexican extraction, received by Charles and Bette Winks for the avowed purpose of securing their adoption, were illegally in the custody of Mr. and Mrs. Winks and, therefore, the State's motion to strike Charles and Bette Winks as parties-respondents was allowed. The order also struck the Winkses' motion for summary judgment.
In an affidavit in support of the motion for summary judgment, Bette Winks represented that the mother of R.B.W. was Adela Martinez Gomez. On February 14, 1986, a notice to Adela Martinez Gomez was published in the Pantagraph.
On March 4, 1986, the trial court found R.B.W. to be a dependent minor and set the Dispositional hearing for April 24, 1986. On March 10, 1986, Charles and Bette Winks appealed. This court on December 11, 1986, after considering the order of the trial court, affirmed in part and dismissed the appeal in part. In re Winks (1986), 150 Ill. App. 3d 657, 502 N.E.2d 35.
On March 21, 1986, Steve and Linda Tamburini, the foster parents to whom Department of Children and Family Services entrusted R.B.W., petitioned the court for legal custody. On April 14, 1986, notices in Spanish were published in the Pantagraph directed to the minor's unknown mother, unknown father, and Gomez. On April 24, 1986, the trial court entered a Dispositional order declaring R.B.W. a ward of the court and transferring guardianship to DCFS.
On October 21, 1987, after the Winkses' appeal was decided, the State filed a petition to terminate parental rights alleging Gomez and Cobieya to be the minor's mother. Cobieya was served by certified mail and notice was again published to Gomez. Upon receiving the summons, Cobieya asked for and received a continuance to prepare the necessary documents for international travel. Another continuance was requested because Cobieya did not speak or understand English. On March 24, 1988, a motion for leave to file a special limited appearance on behalf of Cobieya challenging the personal jurisdiction of the Illinois court was denied for the reason that Cobieya had appeared generally on February 28, 1988, having moved for a continuance. On the same day, the court ordered a blood test on the minor. The birth certificate of baby (Nino) Cobieya Camargo, born February 1, 1985, in Tijuana, Baja California, Mexico, containing the footprints of the child, was filed with the court. An attempt was made to compare the inked footprints thereon to the footprints of R.B.W., but the prints on the birth certificate were not suitable for identification.
At the hearing on April 25, 1988, the results of blood testing were tendered to the court by counsel for Cobieya. The only participants in the blood testing had been R.B.W. and Cobieya. Objections were made to the admission of the blood test results, and the court reserved a ruling.
Cobieya was called by the State at the first hearing on the petition to terminate parental rights, conducted on May 6, 1988. She testified she knew R.B.W. was her son, and her belief is supported by the documents she possessed and the results of the tests ordered by the court. She named the child Juan Angel after he was born on February 1, 1985, in Baja California, Mexico, at a Red Cross hospital. The father's name was Juan, but she did not remember the father's last name. She was not married and has never been married. She also had another son born October 18, 1981, whose father is Jesus Fernando Kalisch. She does not know where Kalisch lives. The nationality of R.B.W.'s father is Mexican. She believed she saw R.B.W's father last on May 24, 1984, and she has never received any support from him. He did not know she was pregnant.
Cobieya learned of Bette Winks from a lawyer in Mexico identified as Jose Luis Gonzalez. At that time, R.B.W. was about six or seven weeks old.
On April 24 or 25, 1985, R.B.W. was turned over to Gonzalez. Cobieya received $2,000 in United States currency. She understood the $2,000 to be for the expenses of birth and to help her care for her other son. She also believed the child would be delivered to Bette Winks, a person the lawyer told her was an honorable person and who was well off and had good morals. She did not meet with Bette Winks prior to delivering the child to the lawyer. She thought Winks would adopt her child and keep in constant communication so Cobieya would know her son was well cared for. She did not negotiate for the $2,000. She estimated her expenses for the birth of this child at $500 and used the $2,000 to pay those expenses and then for her other child. She was told Bette Winks lived in the State of New York.
On May 13, 1986, Cobieya met Winks in San Ysidro, California, at a Jack in the Box restaurant. Winks told Cobieya to steal her child back. Winks gave Cobieya some travel instructions advising her to go to Champaign and call Winks when she arrived. The instructions were in the form of a note, which were only partially interpreted by Cobieya at the time and which meant very little to Cobieya because she had no knowledge concerning the United States outside of California. It was at this time she realized Winks was not as nice a person as she had been led to believe since Cobieya was advised six other children were removed from Winks along with R.B.W. Also on the paper was the name and address of Steve Tamburini. After May 13, 1986, Cobieya did telephone Winks to advise Winks Cobieya wanted to proceed in a legal fashion to avoid further problems.
On or about January 21, 1987, Cobieya received a letter from Charles Reynard, the attorney representing Bette Winks. Again Cobieya enlisted the aid of a friend to translate the letter, but the friend read only selected parts and did not understand fully. Had the whole letter been read to Cobieya, she would have realized her son was in Illinois. She did not know how to contact Reynard, and she understood Winks was in jail. Thereafter, she went to the Mexican authorities. After May 13, 1986, she did not attempt to contact R.B.W. because she did not know where he was and she did not attempt to contact Tamburini because she did not know who he was. In February 1987, Cobieya met with officials of the United States Immigration and Naturalization Service . She advised INS she was R.B.W.'s natural mother, and a special agent relayed this information to DCFS in February 1987.
Cobieya testified she does have a job when she returns to Mexico. She worked in a clothing store, although she did not know the names of her supervisor or the owner of the business. Neither did she know the street address of the store. Her pay was 70,000 pesos per week. Cobieya went to grade school, one year of high school and one year of secretarial school. All her family and friends live in Mexico, and she has lived with her family all her life. She said she had good relations with her parents. However, the birth of this second child out of wedlock caused problems, and they threatened to kick her out. During her testimony, Cobieya identified two photographs, one of Juan Angel, which she dated April 21, 1985, and which she always carries with her. The second was a picture of R.B.W., which she first saw in June or July 1985, and which Bette Winks had given her. She has subsequently repaired relations with her parents, and they support her attempt to get her son back. She came all this way to be in court because she wants her son back. Her father is a guard for the government. They live in a middle-class home, and she describes the home as a big home, with two bedrooms, a living room, dining room, and kitchen.
During the time R.B.W. lived with her, shortly after his birth, she was a full-time mother including bathing, diapering, and changing his clothes. After she delivered the child to Gonzalez, she returned to see the lawyer at least monthly for news about the child. If she knew then what she knew now, she would not have taken her son to the lawyer. Prior to the time she delivered the child to Gonzalez, she had not noticed any special marks on the child's lower back. However, her older son also did not have any marks when he was young, but some marks are appearing as he grows older.
At hearing on May 11, 1988, the State raised the issue of whether Cobieya had the burden of going forward to prove she was the mother or whether the State had the burden of going forward to prove she is not. Also at the hearing, Ann Heath, a physician with a family practice from Clinton, Illinois, testified she first observed R.B.W. on September 20, 1985, when she gave him a complete physical examination. Heath is the Tamburinis' family physician.
Heath testified there were birthmarks on the child, a mongolian spot on the child's lower back and a macular hemangioma on the back of his neck at the hairline. Heath testified these spots were clearly visible and would have been visible to anyone who changed the child's diaper or bathed R.B.W. It was her opinion both existed from birth and that these types of marks do not spontaneously occur after birth. The mongolian spot was approximately two by three inches in size, ovoid in shape, a dark shade of brown and clearly defined from the surrounding skin. The macular hemangioma is reddish and also clearly visible. In her experience, she had never witnessed a macular hemangioma appearing spontaneously following birth. She testified she had been taught during medical school and her residency that these types of spots occur at birth. She relied on Nelson's Textbook of Pediatrics, which indicates those spots are present at birth. However, she admits Nelson's does not specifically discuss the topic of spontaneous occurrence of these spots after birth. She did not consult any other studies, and she knows of no studies which have even been conducted as to whether or not the spots spontaneously occur after birth. She testified the mongolian spot appears more frequently in children with darker pigmentation of their skin, and since beginning her practice in Clinton she has delivered three babies with mongolian spots.
The trial court found that -- although there was a question of credibility of Bette Winks, Cobieya's testimony about Winks' comments were hearsay, and the original footprints on the birth certificate lacked sufficiently clear ridges and valleys so as to allow for a comparison -- based on the trial court's understanding of the blood test, showing 97.8% of women could be excluded as the mother of R.B.W., there was a strong probability of maternity. The trial Judge also relied on the identity of dates of birth, as testified to by Winks and Cobieya, and identity of the dates Cobieya turned the child over to the lawyer with the date Winks acquired the child, in addition to the fact Cobieya traveled all the way from Mexico to assert her rights that she was the mother of R.B.W. The court concluded that the only thing Cobieya had not been totally candid about was the identity of the father, but the Judge did not know whether she was afraid to disclose the father's identity or whether this was a custom in Mexico. As a result, the trial court ruled Cobieya was the natural mother of R.B.W. and directed she be provided visitation. Thereafter, Gomez was ordered stricken from the proceedings.
At a hearing on September 26, 1988, Judith Ingram, an adoption specialist with DCFS, testified no parent has provided any support payments for R.B.W. She then went on to describe the five court-approved visits between Cobieya and R.B.W. On the first visit, the child was aware of Cobieya's presence and performed for her and the foster parents on the playground equipment at the park where the visits were conducted. Cobieya attempted to talk to R.B.W. in Spanish even though the child only understands English. There was more contact between the two during the second half of the visit, although somewhat physically distant. It was a casual, friendly, relaxed visit, lasting an hour to an hour and a half. At the next visit, R.B.W. was aware Cobieya was there, but his interaction was more directed toward his foster parents. On one of the visits, when R.B.W. fell while playing on the merry-go-round and both Cobieya and the foster mother reached for him, R.B.W. pushed Cobieya away and went to his foster mother. During one of the visits, Cobieya took pictures and pictures were taken of Cobieya holding R.B.W., and R.B.W. did hold her hand. At the close of each of the visits Cobieya did kiss the child on the cheek and R.B.W. tolerated it, and was friendly toward her. After Cobieya returned to Mexico, she had some photographs sent back for the foster parents to have. No gifts, cards, or support was sent by Cobieya after she returned on June 7, 1988.
Ingram also described the child's interaction with the foster parents. When they hug him, he responds in a lingering hug. He initiates sitting on their laps and walks closely with them while they are walking together. Since the visits with Cobieya began, he has initiated more interaction with the ...