In re Adoption of EL

• Decision Date: 30 June 2000
• Docket Number: No. 1-99-2465, No. 1-99-2676., No. 1-99-2070
• Citation: 248 Ill.Dec. 171,315 Ill. App.3d 137,733 N.E.2d 846
• Parties: 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.
• Court: United States Appellate Court of Illinois

733 N.E.2d 846

315 Ill. App.3d 137

248 Ill.Dec. 171

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.

Nos. 1-99-2070, 1-99--99-2676.

Appellate Court of Illinois, First District, Second Division.

June 30, 2000.

Richard Cozzola, Diana White, Emily Friedman, and Ruth Giles Ott, of the Legal Assistance Foundation of Chicago, Chicago, for Appellant.

Richard A. Lifshitz, Uve R. Jerzy, of Mandel, Lipton and Stevenson Limited, Chicago, for Appellee.

Richard Lifshitz of Mandel, Lipton & Stevenson Limited; Michael P. Doyle, Assistant Attorney General; Edward J. O'Connell; and Maurice Albin, Chicago, Amici Curiae.

Justice McBRIDE delivered the opinion of the court:

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,...