Thompson v. Burns (In re Thompson)
| Decision Date | 10 May 1949 |
| Docket Number | Gen. No. 10316. |
| Citation | 86 N.E.2d 155,337 Ill.App. 354 |
| Parties | Petition of THOMPSON et al. THOMPSON et al. v. BURNS et al. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Rock Island County Court; Forrest Dizotell, Judge.
Proceeding in the matter of the petition of Russell Thompson and Montie Thompson to adopt Barbara Sue Burns, wherein Russell Thompson and Montie Thompson were plaintiff and Charles W. Burns and Sarah Burns and Barbara Sue Burns were defendants. From a decree granting the prayer of the petition, Charles W. Burns and Sarah Burns appeal.
Reversed.Bell, Farrar & Scott and Frederick H. Potter, all of Rock Island, for appellants.
Wood, McNeal & Warner, of Moline, for appellees.
This is an appeal by Charles W. Burns and Sarah Burns, the parents of Barbara Sue Burns, from a decree of the County Court of Rock Island County, granting the prayer of the petition of Russell Thompson and his wife, Montie Thompson, to adopt Barbara Sue, age seven years.
The petition recites that Sarah Burns consents to the adoption, as appears from her written consent filed with the petition.
Section 3-6 of the Adoption Act Ill.Rev.Stat. 1947, c. 4, § 3-6, provides as follows:
‘Wherever in this Act, the consent of any person or persons is required, such consent shall be in writing and shall be acknowledged by the person signing the same in open court, or before the clerk of the court in which the petition is filed, or such signature shall be witnessed by the duly authorized probation officer of such court or a representative of a licensed child welfare agency, or by any other person designated by the court. If such consent is executed outside the State of Illinois, then, in such event, it shall be acknowledged by the person signing the same before either the Judge or the Clerk of a Court of Record.
‘The person so witnessing such consent shall make an affidavit which shall be in substantially the following form:’ (Here the form of affidavit is set forth.)
The consent filed with the petition, after reciting the venue and the title of the cause, is as follows:
‘I Sarah Burns, mother of said Barbara Sue Burns, a minor child, being of full age and under no disability, hereby waive service of process and enter my full appearance as a defendant in and to the above entitled cause, and consent to the entering of any and all orders herein, as fully and with the same force and effect as though I had been duly and personally served with process of summons as by statute made and provided.
There is no executed certificate of acknowledgment on the consent nor one filed in the adoption proceeding.
There is on the consent an affidavit of witnessing the signature of Sarah Burns to the consent which is made by Dan H. McNeal who states in the affidavit that he is an attorney at law. It does not appear in the record on this appeal that Mr. McNeal was designated by the County Court of Rock Island to witness the signature of Sarah Burns to the consent and make the affidavit required by the statute, nor that he was a probation officer of said court or a representative of a licensed welfare agency.
Section 2-1 of the act provides, in part, as follows: ‘Whenever the consent of either or both of the parents of the child is not presented with the petition, the court shall require that proof, by documentary evidence or oral testimony, of the reason for the failure to present such consent shall be given at the hearing.'
Section 3-7 of the act provides: ‘No decree of adoption except for one or more of the causes set forth in Section 4-1 shall be entered without consent by the person or persons as hereinabove provided.'
So far as now pertinent, it is provided in Section 4-1 that the court wherein the petition for adoption is filed shall find that the parents of the child consent to its adoption, or
. Other grounds specified in Section 4-1 dispensing with parental consent are not involved in this proceeding. Section 4-1 further requires that the court set forth in its decree of adoption the facts which the court is required to find as provided by the section.
No proof ‘by documentary evidence or oral testimony, of the reason for the failure to present’ the consent of Sarah to the adoption of her child, Barbara Sue, by the petitioners was introduced in evidence at the hearing of the adoption petition.
It is evident that the consent of Sarah Burns to the adoption of her child by the petitioners was the foundation of the adoption proceedings, unless there was proof at the hearing on the petition and a finding of the county court of her unfitness to have the child on the grounds stated in the act.
The consent filed with the petition was not in compliance with the mandatory requirements of the adoption act requiring the acknowledging or witnessing of the signing of the consent by Sarah Burns. The purported consent furnished no valid ground or reason for a finding by the county court that Sarah Burns had consented to the adoption of her child. Vaughan v. Hubbard, 38 Idaho 451, 221 P. 1107.
It is contended by the appellees that the written consent filed with the petition was acknowledged by Sarah Burns on the hearing on the petition ‘in open court.'The summons to answer the petition was served on Sarah Burns on November 26, 1947. On December 9, she filed her general answer. Three paragraphs of her answer are as follows:
‘This defendant admits that she signed the alleged consent, but states that she almost immediately afterwards changed her mind about allowing her child to be adopted and desires to withdraw her alleged consent from the files herein, and has notified the petitioners of her desire to withdraw her alleged consent to said adoption.
‘Defendant admits that she did no November 11, 1947, sign an...
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