Parks v. McWhorter

• Decision Date: 10 June 1986
• Docket Number: No. 5-84-0090,5-84-0090
• Citation: Parks v. McWhorter, 494 N.E.2d 234, 144 Ill.App.3d 270, 98 Ill.Dec. 307 (Ill. App. 1986)
• Parties: , 98 Ill.Dec. 307 Rexall Cleo PARKS and Eugenia Leigh Parks, Plaintiffs-Appellees, v. Mary Ann McWHORTER, Defendant-Appellant, and Glenn Farris McWhorter, III and Glenn Farris McWhorter, Jr., Defendants.
• Court: Appellate Court of Illinois

Page 234

494 N.E.2d 234

144 Ill.App.3d 270, 98 Ill.Dec. 307

Rexall Cleo PARKS and Eugenia Leigh Parks, Plaintiffs-Appellees, v. Mary Ann McWHORTER, Defendant-Appellant and Glenn Farris McWhorter, III and Glenn Farris McWhorter, Jr. Defendants.

No. 5-84-0090.

Appellate Court of Illinois Fifth District.

June 10, 1986.

Michael F. Dahlen, Feirich, Schoen, Mager, Green & Associates, Carbondale, Lori Raymond and Michael Mason, Law Students, Southern Illinois University Students Legal Assistance Office, assisted in brief, for defendant-appellant.

Krystal S. Tison, Harrisburg, for Rexall Cleo Parks.

Norma Miner, Guardian Ad Litem, Marion, for Glenn Farris McWhorter III.

Justice JONES delivered the opinion of the court:

Defendant Mary Ann McWhorter appeals from the trial court's denial of her motion to set aside an interim adoption order terminating her parental rights to her son, here referred to as Baby Glenn. Both Mary Ann McWhorter and her husband, Glenn Farris McWhorter, Jr., the baby's father, had relinquished their rights to the child in a consent for adoption signed by them in Duval County, Florida. Mrs. McWhorter subsequently sought to revoke her consent by motion challenging the validity of this consent. On appeal from denial of her motion, Mrs. McWhorter contends that the consent for adoption was invalid because it had been improperly executed under Florida and Illinois law and had been entered into by her as a result of fraud and duress. She additionally contends that the trial court erred in finding that she was competent to understand the import of her actions and that, as an indigent parent, she should have been afforded a free transcript and common law record for purposes of this appeal. We affirm.

Mary Ann McWhorter and Glenn Farris McWhorter, Jr., were married on February 4, 1980. Three children were born of their marriage, including Baby Glenn who was born on October 28, 1982. The other two children were born on October 17, 1980, and December 6, 1981.

The McWhorters lived in Florida, where Mr. McWhorter was stationed in the Navy. Mrs. McWhorter testified that after the first child was born, the couple began to have disagreements over how money should be spent. On one occasion there was not enough money to buy milk for the child. Mrs. McWhorter stated that her husband had beaten her approximately four times over the course of the marriage and that the couple had separated at least four times between February 1980 and December 1983. During each of these separations Mrs. McWhorter took her children and went to live with her parents in southern Illinois.

Mrs. McWhorter testified that while she was pregnant with Baby Glenn, her husband had told her to "get an abortion." After Baby Glenn was born, Mr. McWhorter threatened to leave her in Florida with the children and only $250 a month in income.

Mrs. McWhorter began to consider putting the baby up for adoption since she would be able to get away from her husband more easily with only her two older children. She knew that her mother would come to get her if she called and that she could return to her parents' home with the children and her parents would help her. She thought about taking the baby to an agency and leaving him there. In March or April 1983 Mrs. McWhorter contacted Jackie Filer, a minister's wife she had met in southern Illinois while staying with her parents, and asked Mrs. Filer if she would adopt Baby Glenn. Mrs. Filer discussed the adoption with Mary Ann McWhorter on at least four occasions and advised her that she and her husband would be giving up their rights to the baby if they put him up for adoption. Mrs. Filer additionally discussed alternatives to adoption with Mary Ann McWhorter, suggesting that she call her mother or that she seek help or counseling there in Florida.

Prior to a final decision by the Filers about adopting the baby, Mary Ann McWhorter's parents came to Florida and stayed with her for two weeks. During this two-week period Mary Ann McWhorter did not discuss her plans for the adoption with her parents. Her mother repeatedly asked Mary Ann McWhorter to return with them to Illinois, but she had decided to stay in Florida and "go out on her own." Mary Ann McWhorter testified that she believed her parents would have taken her and the children back with them or would have taken the baby if she had asked them to do so.

Later in April 1983 Jackie Filer notified Mary Ann McWhorter that she and her husband would not adopt the baby. She told Mary Ann McWhorter, however, that she knew another couple that might want to adopt the baby and gave her the telephone number of the plaintiffs, Rexall and Eugenia Parks. Following telephone calls between the Parkses and the McWhorters, arrangements were eventually made for the adoption of Baby Glenn by the Parkses.

While Mr. McWhorter originally was opposed to the idea of putting the baby up for adoption, he later reconsidered and decided that it would be the best thing for the child. The Parkses had retained an Illinois attorney, Krystal Tison, to represent them, and after speaking with Ms. Tison by telephone, the McWhorters met with an attorney in Jacksonville, Florida, to discuss the adoption. This attorney declined to represent them, and arrangements were made through the Parkses and Ms. Tison for another Florida attorney, Jack Harris, to prepare the adoption consent papers.

On May 6, 1983, the McWhorters met in attorney Jack Harris' office to sign the adoption papers and leave Baby Glenn to be picked up by the Parkses. Both the McWhorters and the Parkses signed individual consents, which were witnessed by attorney Harris and a neighboring attorney's secretary, Joanne Wells, and notarized by attorney Harris' secretary, Sharon Eve Bloodworth. The parties additionally signed a disclaimer stating that all parties were residents of Illinois and that the adoption, if one were to result, would be accomplished according to Illinois law. After signing the adoption consents, the McWhorters left Baby Glenn, along with his clothes, bottle, and toys, at the attorney's office.

Mary Ann McWhorter testified that as she and her husband were leaving the attorney's office after signing the adoption consents, Mr. Harris told her that she had "30 days to change her mind." Both her husband and attorney Harris denied that such a statement was ever made. Although at one point in her testimony Mary Ann McWhorter stated that she did not believe the two witnesses and the notary public were all present in the room when she signed her consent, at other times in her testimony she stated that she did not know who was present when she signed the document. The two witnesses and the notary public testified that they were all three present when Mary Ann McWhorter signed her consent.

When Mary Ann McWhorter's mother called the following day, she told her about the adoption, and her mother objected strongly. Approximately a week after signing the consent for adoption, Mrs. McWhorter took her other two children and went to live with her parents in Illinois.

The plaintiffs subsequently filed a petition for adoption in the circuit court of Williamson County, Illinois, and, on May 25, 1983, the court entered an order finding that the McWhorters had consented to adoption of their son by the plaintiffs and terminating their parental rights. The court awarded temporary custody of Baby Glenn to the plaintiffs, appointed a guardian ad litem, and ordered an investigation of the adoption as required by statute (see Ill.Rev.Stat.1985, ch. 40, par. 1508). On June 24, 1983, Mary Ann McWhorter filed a motion to set aside the interim adoption order. Subsequently, Mrs. McWhorter's counsel moved to withdraw from the case, and she sought and obtained leave to sue as a poor person with court-appointed counsel.

Following a hearing the court, on January 18, 1984, issued a memorandum decision denying Mary Ann McWhorter's motion to set aside the interim adoption order. The court found that the evidence failed to show that Mrs. McWhorter did not understand or appreciate the significance of signing the consent for adoption or that her signing was the result of any legal duress or fraud. The court additionally found that there was no basis for her claim that she believed her consent was revocable.

Mary Ann McWhorter filed an interlocutory appeal from this order, and the appellate court dismissed the appeal for lack of jurisdiction. Prior to dismissing the appeal, however, the appellate court entered an order that Mary Ann McWhorter's motion to waive costs and expenses on appeal and for preparation of a free report of proceedings and record on appeal be granted only to the extent of waiving the filing fee in the appellate court. On appeal to the supreme court, the order of dismissal was vacated, and the cause was remanded to the appellate court for hearing on the merits. Parks v. McWhorter (1985), 106 Ill.2d 181, 88 Ill.Dec. 9, 478 N.E.2d 324.

In this appeal Mary Ann McWhorter contends that the consent for adoption signed by her was improperly executed because one of the witnesses to its execution was an attorney retained by a party to the proceeding and the other witness and the notary public were that attorney's employees. She additionally contends that the evidence failed to show that she and her husband signed the consents in the presence of the witnesses and notary public as required by Florida and Illinois law.

The Illinois provision governing execution of adoption consents states in pertinent part:

"A surrender or consent executed and acknowledged outside of this State, either in accordance with the law of this State or in accordance with the law of the place where executed, is valid." (Ill.Rev.Stat.1985, ch. 40, par. 1512L.)

Florida law provides that the consent shall be executed

"only after the birth of the child, in the presence of two witnesses, and be acknowledged before a notary public."...