Joseph B., In re

• Court: Appellate Court of Illinois
• Writing for the Court: GORDON
• Citation: Joseph B., In re, 630 N.E.2d 1180, 258 Ill.App.3d 954, 197 Ill.Dec. 56 (Ill. App. 1994)
• Decision Date: 25 February 1994
• Docket Number: No. 1-93-1950,1-93-1950
• Parties: , 197 Ill.Dec. 56 In re JOSEPH B., Jr., a minor (People of the State of Illinois, Petitioner-Appellee, v. Angela S., Respondent-Appellant).

Page 1180

630 N.E.2d 1180

258 Ill.App.3d 954, 197 Ill.Dec. 56

In re JOSEPH B., Jr., a minor (People of the State of Illinois, Petitioner-Appellee, v. Angela S. Respondent-Appellant).

No. 1-93-1950.

Appellate Court of Illinois First District, Fifth Division.

Feb. 25, 1994.

[258 Ill.App.3d 956] [197 Ill.Dec. 58] Annette R. Appell of Northwestern University Legal Clinic and Peter Koch, Senior Law Student, Chicago, for appellant.

Jack O'Malley, State's Atty. (Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Gary T. Morgan, Guardian Adm'r, Deborah L. Ahlstrand, Asst. Atty. Gen., of counsel); and Patrick T. Murphy, Kass A. Plain, Office of the Cook County Public Guardian; Shelly Rice Weinberg, and Ann L. Gibson, Coffield Ungaretti & Harris, Chicago for appellee.

Justice GORDON delivered the opinion of the court:

On July 12, 1991, Angela S. executed a document entitled "Final and Irrevocable Consent to Adoption" which provided that she did "consent and agree to the adoption" of her son, J.B. Pursuant to court order, J.B. was placed with his godmother (Z.S.) who initially agreed to adopt him. In April 1992, however, Z.S. changed her mind and that adoption did not proceed. At that time, DCFS took J.B. from Z.S.'s home and placed him in a foster home. On August 13, 1992, approximately thirteen months after Angela signed the original consent and without any further notice to Angela, the Department of Children and Family Services (DCFS) sought and obtained an order terminating her parental rights and authorizing it to consent to J.B.'s adoption. On November 16, 1992, Angela filed a motion to void her consent of July 12, 1991, and vacate the August 13, 1992, order terminating her parental rights. In an order entered May 14, 1993, the trial court denied that motion and Angela now appeals.

FACTS

In 1989, Angela lived with her husband and their four children, one of whom was J.B. On April 10, 1989, a neglect petition was filed in juvenile court by the Department of Children and Family Services. In that petition, DCFS alleged that J.B. had been neglected and that his environment was injurious to his welfare. On May 11, 1989, the trial court entered an order of protection with respect to J.B. which provided that J.B.'s parents must provide all care necessary for his well-being, attend counseling and not engage in any domestic violence in the presence of J.B. On September 12, 1990, DCFS filed a petition for supplemental relief in which it was alleged that J.B.'s parents had violated the protective order in that Angela had cut J.B.'s father with a knife and threatened to kill him. Pursuant to that petition, the trial court ruled that J.B. remain under the order of protection. At some point after this petition was filed, Angela and J.B.'s father separated and began living apart.

On July 12, 1991, Angela appeared in court and moved to vacate the order of protection. During that appearance her attorney, a public defender, stated that Angela was "asking to be relieved of her parental responsibilities." The following colloquy then occurred:

"THE COURT: The mother is asking that the 2-25 [order of protection] be vacated and custody be placed with the Department of Children and Family Services?

[ANGELA'S ATTORNEY]: Yes, Judge.

THE COURT: Is that correct, mother?

[ANGELA]: Yes.

THE COURT: Do you understand you don't have to do this if you don't want to? Do you understand that?

[ANGELA]: Yes.

THE COURT: Do you understand that I will be vacating the existing 2-25 order? That I will be placing temporary custody with the Department of Children and Family Services. This is what you want to do?

[ANGELA]: Yes.

THE COURT: Are you doing it freely and voluntarily?

[ANGELA]: Yes.

THE COURT: By agreement, I vacate the 2-25 protective order. By agreement, combining probable cause, and immediate necessity shown, I grant temporary custody to the DCFS with the right to place."

At that point the guardian ad litem moved that J.B. be placed with Z.S. who according to the record had expressed an interest in adopting J.B. and who was purportedly caring for Angela's three other minor children. Angela joined in this motion and pursuant thereto J.B. was so placed.

The following colloquy then occurred:

"[ANGELA'S ATTORNEY]: At this time, resident mother is seeking to sign, in open court, an irrevocable consent of adoption with respect to each of the four minors.

THE COURT: Mother, at this time, your attorney tells me you wish to sign what is called a final and irrevocable consent of adoption; is that correct?

[ANGELA]: Yes.

THE COURT: Now ma'am, do you understand you do not have to sign this document if you do not want to?

[ANGELA]: Yes.

THE COURT: Do you also understand if, in fact, you sign this document, it is irrevocable and it is permanent? You cannot come into this court or any other court and seek to have this turned around. Do you understand that?

[ANGELA]: Yes.

THE COURT: Do you understand that, by signing this document, you are consenting to the child being adopted? Do you understand that?

[ANGELA]: Yes.

THE COURT: You're giving up your parental rights; do you understand that?

[ANGELA]: Yes.

THE COURT: And, again, I want you to understand, clearly, that it is an irrevocable act and you cannot come into this court or any other court to seek to have it overturned; do you understand that?

[ANGELA]: Yes.

THE COURT: And that is what you want to do?

[ANGELA] As long as their placement is with [Z.S.]"

Angela then proceeded to sign a final and irrevocable consent for adoption with respect to J.B. In response to questions posed by her attorney, she again stated that it was her wish to give up J.B. for adoption and that she was doing so freely and voluntarily. The following exchange then occurred:

"[ANGELA'S ATTORNEY]: Do your understand, even if you sign the documents, these documents today, that [J.B.] will not be immediately placed for adoption? Do you understand that?

A: Yes.

Q. Do you understand that, when and if the parental rights of the parties are terminated, it is still uncertain?

A. Yes.

Q: Do you understand--Is it you wish that the children be placed with [Z.S.]?

A. Yes, it is.

Q. Is it your wish that the children eventually be adopted by [Z.S.]?

A. Yes.

Q. Do you understand upon signing these documents, there is no guarantee that [Z.S.] will eventually be able to adopt your children?

A. Yes.

* * *

Q. Do you understand that your signature on the final and irrevocable consent to adopt is in no way [contingent] upon your being able to see [J.B.] later?

A. Yes.

Q. Within one month or one year or one day after signing this, if [Z.S.] says you cannot see the children, you cannot come back to court and say, I want to take my signature off of those documents because she said I could come see [J.B.]; do you understand that?

A. Yes.

* * *

Q. And you know that you cannot come back into this court or any other court at any future date to seek to undo your surrendering of parental rights?

A. Yes."

After this questioning by her attorney, the court asked Angela the following question.

"THE COURT: And does she understand by signing these documents it is not contingent upon the children being placed with Z.S.? Do you understand that?

[ANGELA]: Yes."

Angela then proceeded to sign a form entitled "FINAL AND IRREVOCABLE CONSENT TO ADOPTION." In this form, Angela did "hereby consent and agree to the adoption of such child" and understood that "by signing this consent [she] irrevocably and permanently [gave] up all custody and other parental rights [she had] to such child." She also understood that "such child will be placed for adoption and that I cannot under any circumstances, after signing this document, change my mind and revoke or cancel this consent or obtain or recover custody of any other rights over such child." The case was continued until September 12, 1991, for summons on J.B.'s father. As of that time, no order was entered terminating Angela's parental rights and no order provided for the appointment of a guardian with the right to consent to J.B.'s adoption.

On September 12, 1991, at which time J.B.'s parents were apparently still separated, J.B. was adjudicated a neglected minor and made a ward of the court with DCFS appointed as J.B.'s guardian. The court's order purported to be premised with respect to Angela on her signing of the consent form without any finding that she was unfit. The court indicated that J.B.'s father, who did not attend the children, was unwilling to care for J.B.

At some subsequent time, Z.S. decided against the adoption of J.B. DCFS then removed J.B. from Z.S.'s home and placed him with a foster family on April 25, 1992. DCFS did not notify Angela that the initial proposed adoption by Z.S. had been disrupted or that J.B. had been placed in a different home.

On June 30, 1992, DCFS filed a supplemental petition asking that a guardian with the right to consent to adoption be appointed. The petition alleged that J.B.'s father was unfit pursuant to Ill.Rev.Stat.1991, ch. 40, par. 1501(D). This petition represented that Angela "previously surrendered the child to a duly licensed welfare agency for adoption, and has voluntarily terminated her parental rights, and waived notice of all subsequent legal proceedings." On August 13, 1992, a hearing was held on DCFS's motion. Angela was not present at this hearing nor was she notified that this hearing was taking place.

At that hearing held in Angela's absence, Mary Kay Hampton, the DCFS caseworker assigned to the case stated that J.B. was initially placed under an order of protection because of extreme domestic violence in the home. She represented that at a progress call in that case Angela consented to J.B.'s adoption in open court.

Patricia Reynolds testified that J.B. was placed with a new foster family on April 25, 1992. She stated that J.B. was in need of counseling to help him deal with the...