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J.L. v. F & P.A.

June 30, 2000

IN RE THE ADOPTION OF E.L., A MINOR, J.L., RESPONDENT-APPELLANT IN THE ADOPTION CASE, PETITIONER- APPELLANT ON THE SECTION 2-1401 PETITION,
v.
F. & P.A., PETITIONERS-APPELLEES IN THE ADOPTION CASE, RESPONDENTS- APPELLEES ON THE SECTION 2-1401 PETITION.



The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County

Honorable Bernetta D. Bush, Judge Presiding.

Appellant J.L. intervened in an adoption proceeding in which appellees F. and P.A. (the A.'s) had adopted J.L.'s biological daughter, E.L. J.L. filed verified petitions seeking to set aside the adoption based on lack of jurisdiction and fraud. After J.L. moved for summary judgment on the petitions, the trial court vacated the final judgment order of adoption and proceeded to hold a custody hearing pursuant to section 20 of the Adoption Act. Following the hearing, the court awarded legal custody and guardianship of E.L. to J.L., awarded the A.'s physical and residential custody of E.L., and directed that the parties draft a joint parenting agreement. After the parties were unable to agree on a joint parenting agreement, the court entered a joint parenting order. J.L. has appealed from the trial court's order vacating the judgment order of adoption, the trial court's order from the custody hearing, and the joint parenting order entered by the trial court. The three separate appeals have been consolidated before the court in this action.

I. Facts

The facts of this case, as set forth in the record, are as follows. E.L. was born on July, 13, 1995. Her mother, Marisa R. (Marisa), is the only parent listed on the birth certificate. J.L., E.L.'s biological father, was present for her birth and was living in the same apartment building as Marisa at the time of E.L.'s birth. Upon returning from the hospital, Marisa and E.L. stayed with J.L. in his apartment for two to two-and-one-half months. Marisa then returned to her own apartment. Although J.L. and Marisa continued to live in the same apartment building, they did not continually live in an apartment together again until 1996. J.L., however, continued to be involved in E.L.'s care prior to the time he and Marisa moved in together. Six months after her birth, E.L. was baptized. Marisa and J.L. were listed on the baptismal certificate as her mother and father. J.L.'s brother and sister were E.L.'s godparents. On June 19, 1996, when E.L. was almost a year old, a Cook County circuit court entered an agreed order of parentage and support naming J.L. as E.L.'s father and ordering him to pay child support.

On May 28, 1997, two months prior to E.L.'s second birthday, J.L. and Marisa were married. Around September 1997, Marisa began to spend less and less time at home with J.L. and E.L. There was some testimony to suggest that Marisa was the victim of a rape that same month. Shortly thereafter, Marisa left the marital home and E.L. and J.L. lived together in an apartment with J.L.'s sister. When J.L. was at work, various relatives would watch E.L.

Marisa returned to the marital home in mid-January of 1998, after promising J.L. that she would change by stopping her drug use and drinking and by devoting herself to the family. J.L. accompanied Marisa to an appointment with a psychiatrist. The psychiatrist made various recommendations but Marisa failed to follow up on them. On January 15, 1998, Marisa requested that J.L. be allowed to stop child support payments due to the fact that she and J.L. were now married. In February 1998, J.L. was hospitalized for five days with stress-related chest pains. Shortly after he returned home, J.L. told Marisa that she had not changed her ways and was not welcome in the home. Marisa wanted to take E.L. with her and J.L. protested. Marisa left and returned with the police, who allowed Marisa to leave with E.L.

J.L. did not know where Marisa was staying. For a number of weeks after Marisa left, she would call and promise to let him see E.L. but would never follow through on her promises. J.L. looked for E.L. in the parks and other places he thought Marisa might take her but his search was unsuccessful.

J.L. testified that he also went to two different police stations seeking help in recovering E.L. Both times he was told that because E.L. was with her mother, there was nothing the police could do. This was corroborated by the testimony of Chicago police officer Ronald Magro. Officer Magro testified that in March 1998, J.L. came to the fourth district police station and reported to him that his wife, who was on narcotics, had taken their daughter to Indiana against his will and that he was interested in regaining custody of his daughter. Because E.L. was with her mother, Officer Magro did not have a basis to make out a report, but did refer J.L. to his brother-in-law, who was a Whiting, Indiana police officer. Although J.L. later sought out Officer Magro's brother-in-law in Indiana, the officer was unable to help due to J.L.'s lack of specific information on Marisa's whereabouts.

Meanwhile, F. and P.A. (the A.'s), residents of Pompano Beach, Florida, were seeking to adopt a child. The A.'s owned and operated a car repair and sales business and had been married since 1979. In 1996, friends from Illinois suggested that they call Chicago lawyer Larry Raphael for help in adopting a child. They contacted Raphael and paid him $3000 to place ads on their behalf seeking a child to adopt.

The record indicates that Raphael was suspended from the practice of law in Illinois in February 1997, and disbarred in May 1997.

In March 1998, Raphael contacted the A.'s to tell them he had found a two-year-old girl who was available for adoption through an adoption agency called New Beginnings. Raphael told the A.'s that the child's mother was going through a divorce and that the man she was married to was not the father of the child. On March 8, 1998, the A.'s traveled to Chicago and met Raphael. Raphael informed them that the biological father, who was not a part of the child's life, had given up his rights to the child and that the mother of the child wanted to meet them. Raphael brought Marisa to the hotel room where the A.'s were staying. After an emotional meeting, Marisa left and Raphael then brought E.L. to the room. E.L., who was two-and-one-half years old at the time, stayed with the A.'s that night and has been in their physical custody from that day forward. E.L. was turned over to the A.'s with only the clothes she was wearing. She did not have any toys or other items familiar to her.

The next day, Raphael introduced the A.'s to his "associate," Louis Capozzoli, and told the A.'s that Capozzoli would be handling the adoption for him. The A.'s appeared in court with Capozzoli that same day, March 9, 1998, to file a petition to adopt, and then stayed in Illinois several additional days waiting for clearance to take E.L. out of state. Filed as part of the adoption proceeding, as required by statute, was an "Affidavit of Identification" executed by Marisa in which she averred that E.L.'s biological father was a man named Theodore Perez-Gonzalez. The court granted temporary legal custody of E.L. to the A.'s through an interim order which also terminated the parental rights of Marisa and Perez-Gonzalez. While in Chicago, the A.'s paid approximately $5,000 in cash to Capozzoli and prepared a check in the amount of $12,650 for an organization called Adoption Consulting Services. The A.'s wrote a check to Raphael for an additional $1,000 after returning to Florida. Checks given to Raphael and the check to Adoption Consulting Services were all deposited into an account belonging to Raphael. The A.'s were never asked to make any payment to New Beginnings, the agency handling the adoption. Both Rita Sankey, on behalf of New Beginnings, and the A.'s, signed affidavits filed with the court stating that $17,000 had been paid to New Beginnings.

At the end of March or beginning of April 1998, J.L. learned through Marisa's mother that E.L. had been put up for adoption. He saw Marisa briefly in April 1998. Although she then admitted she had placed E.L. for adoption, she did not provide J.L. with any further details regarding the adoption.

J.L. sought out legal help from various sources. He met with attorneys at two private law firms but did not have sufficient information or money to retain private representation. J.L. ran in to Marisa again. She suggested that the Chicago Legal Clinic might be able to help him. At some point in mid-1998, Marisa returned to live with J.L. for a few months. Veronique Baker, an attorney with the Chicago Legal Clinic, testified that J.L. came to the clinic office on June 2, 1998, to keep an appointment Marisa had made for them on May 15, 1998. Persons who call the clinic to make appointments are informed that no case can be taken if there is a domestic violence case pending against the client. During the course of Baker's interview with J.L., Marisa arrived. Baker, realizing that J.L.'s problems were the result of actions taken by Marisa, denied Marisa access to her office because she did not want a conflict of interest to arise. The interview continued, and Baker asked J.L. for certain information regarding the adoption. J.L. went downstairs and outside in an effort to obtain the information from Marisa. During the five minutes J.L. was gone, Baker, through her open second floor window, could hear J.L. and Marisa conversing in normal tones outside. When J.L. returned, Marisa had given him the name of the adoption agency (New Beginnings), its address, Larry Raphael's name, and E.L.'s location at the time (Pompano Beach, Florida). Baker then called New Beginnings and spoke with its director, Rita Sankey. Baker then informed J.L. that she had been told by Sankey that E.L.'s adoption had already been finalized. Shortly thereafter, the police arrived and arrested J.L. because Marisa had told them J.L. had assaulted her five or ten minutes earlier. Baker did not believe that any assault had taken place. When J.L. returned to Baker's office several weeks later, Baker explained to him that, pursuant to Legal Clinic policy, she would not be able to provide any representation to him now that an order of protection had been entered against him. According to J.L., the charges against him were later dropped.

Retired attorney William Dillon testified that he was working as a volunteer for the Legal Aid Bureau when he met with J.L. on July 6, 1998. J.L. explained that his wife Marisa had placed their daughter up for adoption without his consent. J.L. returned on July 29 with documents verifying his fatherhood, including a baptismal certificate. On that date, Dillon wrote a letter to New Beginnings and had J.L. sign it. In the letter, J.L. stated that he was E.L.'s biological father, noted that he had been found to be her father in an order of parentage and support, inquired as to any pending adoption action concerning his daughter, stated that he would contest any adoption proceeding, and gave an address and phone number at which he could be served with notice in the event a proceeding were pending or were to take place in the future. The letter was apparently forwarded to Capozzoli who responded with a letter to Dillon. In the letter, Capozzoli stated that Marisa had informed New Beginnings that J.L. was not E.L.'s father and that J.L. had been reported to DCFS for molesting E.L. Both of Marisa's statements were false. Capozzoli, in his letter, further advised J.L. to "move on with his life." The letter did not mention the pending adoption proceeding or whom Capozzoli was representing.

In September 1998, Capozzoli did a search of the Illinois putative father registry. Although he used the name of Marisa L., Capozzoli searched using E.'s first name and the last name of the A.'s, the potential adoptive parents in Florida, rather than E.L.'s legal last name at the time. The putative father was listed as Perez-Gonzales. Although J.L. had, on the advice of an attorney, registered with the registry in July 1998, Capozzoli's search failed to find a match. A previous search of the registry, instituted by New Beginnings in May 1998, in which E.L.'s legal name had been used, had also failed to reveal a match.

On October 8, 1998, the final judgment order of adoption was entered. Neither New Beginnings nor Capozzoli had informed the court or E.L.'s guardian ad litem of their contacts with J.L. The court, unaware of J.L., stated in its order that no orders had been previously entered in any court affecting the custody, adoption or parental rights of the A.'s to E.L.

On November 24, 1998, with the assistance of yet another attorney, J.L. filed a motion to examine and copy the court file from the adoption proceedings. The next day, the A.'s first learned that J.L. was claiming to be E.L.'s father. On December 2, 1998, J.L. filed verified petitions pursuant to section 2-1401 of the Code of Civil Procedure to set aside the adoption based on lack of jurisdiction and based on fraud. After a paternity test proved that he was E.L.'s father, J.L. moved for summary judgment on his petitions.

After hearing arguments, the circuit court held Marisa's surrender had been properly procured and that Marisa had a legal right to surrender E.L. to an agency for adoption. The court held that Marisa's false affidavit of identification which identified Perez-Gonzalez as the biological father of E.L. had created a rebuttable presumption of truth as to that assertion. The court found that although the actions of the A.'s attorney had been "improper," the actions did not "rise to the type of fraud sufficient to cause the adoption to be voided." The court held, however, that its failure to acquire personal jurisdiction over J.L. required it to vacate the judgment of adoption.

The court vacated only the judgment order of adoption, and denied all other relief sought by J.L. in his motion for summary judgment. In so doing, the court let stand the interim custody order in favor of the A.'s that had been entered previously pursuant to the initial adoption petition. The court found that because it had vacated the adoption order, it was bound by section 20 of the Adoption Act to hold a custody hearing regarding E.L.'s best interests. 750 ILCS 50/20 (West 1998) (stating that "[i]n the event a judgment order for adoption is vacated or a petition for adoption is denied, the court shall promptly conduct a hearing as to the temporary and permanent custody of the minor child who is the subject of the proceedings pursuant to Part VI of the Illinois Marriage and Dissolution of Marriage Act"). Because section 20 stated that the petitioners in an adoption proceeding were to be parties to such a hearing, the court ruled that the A.'s need not meet the standing requirements for participation in a custody determination set forth in Part VI of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). 750 ILCS 50/20 (West 1998); 750 ILCS 5/601 et seq. (West 1998).

The court proceeded to hold a hearing as to E.L.'s temporary and permanent custody. It was acknowledged during the proceedings below that at the point the hearing commenced, J.L., as the biological father, had a presumption in his favor and the burden was on the A.'s to show why the predominant rights of the biological father should be overcome and custody placed with them.

At the best interests custody hearing, there was voluminous testimony regarding E.L. and the parties in addition to the chronology set forth above.

Robin Ullman, an employee of Sun Coast International Adoptions, a Florida adoption agency, testified that she did a home study investigation of the A.'s in 1996 at their request. Such a study is required in the State of Florida in order to be approved as a potential adoptive parent. The A.'s were approved in 1996 and received updated approval in 1998 after it became apparent that they may have an opportunity to adopt E.L. Ullman visited the A.'s on three occasions in the five months after E.L. came to live with them to observe their interactions and the bonding process. In August 1998, Ullman, based on her three post-placement observations of E.L. and the A.'s, recommended that the placement with the A.'s continue and that they be approved for final adoption of E.L. Ullman, testifying as an expert in the field of social work, was of the opinion that the bonding and attachment processes between the A.'s and E.L. had successfully occurred and that the A.'s were providing a very healthy physical and emotional environment for E.L.

Michelle Kerrigan, the owner, operator, and pre-kindergarten teacher at a pre-school in Florida testified that E.L. had been enrolled at the school since June 1998. When E.L. was first enrolled, she was withdrawn and appeared to lack social skills. Since that time, Kerrigan has observed E.L. develop into a very outgoing, happy, and well-adjusted child who plays well with others.

Daniel Cain, a friend of the A.'s, testified that since arriving at the A.'s, E.L. had gone from withdrawn and temperamental to affectionate and playful.

Joseph A., F.A.'s brother, testified that he visited the A.'s several weeks after they brought E.L. home and had seen the A.'s and E.L. a number of times since. E.L. was very withdrawn the first time he met her but in subsequent visits had become very outgoing, playful, warm, loving, and engaging.

P.A. testified regarding E.L.'s day-to-day life with the A.'s. She described how the A.'s had incorporated E.L. into their work life so that she only needed to be at daycare in the morning. P.A. first met J.L. when he came to Florida to take a DNA test on January 22, 1999.

F.A. testified that he recalled E.L. as being fairly withdrawn the first few days she was with the A.'s. F.A. testified that when they first arrived back in Florida with E.L., she had recurring fears of being left alone or abandoned, and would sometimes strike them and bite them. Over time she had opened up tremendously and had become much more well-behaved. According to F.A., the A.'s had always been open with E.L. about the fact that she was adopted. They had told her that she was very special and has two mommies and two daddies.

Ann Rothschild, an expert in the field of social work, testified that she had inspected J.L.'s apartment to determine whether it would be an appropriate home if custody of E.L. was returned to J.L. She found J.L.'s apartment to be an appropriate and adequate home in which to raise a child.

Alvia Rodriguez testified that J.L. was her nephew. She saw J.L., Marisa, and E.L., two or three times a week for the first two years of E.L.'s life. During this time, she observed that J.L. was doing most of the caretaking, such as feeding E.L. and changing her diapers. Marisa made it clear that she did not want to be involved in caring for E.L. During the second year, Rodriguez observed that Marisa was increasingly rejecting E.L. and would use profanity toward her. During the ...


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