In Re Custody of Mitchell

450 N.E.2d 368, 115 Ill. App. 3d 169, 70 Ill. Dec. 895, 1983 Ill. App. LEXIS 1862
Appellate Court of Illinois·Decided April 29, 1983·No. 82-288·Published·Cited by 10 cases

Opinion

PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The respondent, Larry Mitchell, appeals from a final order of the circuit court of Clay County which terminated his parental rights concerning his natural son, Walter Mitchell. He contends that the circuit court erred in finding that he had executed a final and irrevocable consent to adoption that would justify termination of his parental rights in that the document which he executed did not comply with the appropriate statutory provision for surrender of a child to an agency, and that therefore the document could not effect such a surrender. For the reasons which follow we reverse the judgment of the circuit court and remand.

The record established that on May 13, 1979, Walter Mitchell’s parents placed him in the custody of the Department of Children and Family Services (hereinafter referred to as the Department). On May 25,1979, the respondent executed the following document:

“FINAL AND IRREVOCABLE CONSENT TO ADOPTION
I, LARRY MITCHELL, father of WALTER LEE MITCHELL, a male child, state:
1. That the child was born on January 9, 1979 at Flora, Clay County, Illinois.
2. That I reside at Rt. 1., Lewisville, Clay County, Illinois.
3. That I am 25 years of age.
4. That I hereby enter my appearance in this proceeding, waive service of summons on me, and waive notice of hearings.
5. That I do hereby consent and agree to the adoption of WALTER LEE MITCHELL.
6. That I wish to and understand that by signing this consent I do irrevocably and permanently give up custody and other parental rights I have to such child.
7. That I understand 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 and obtain or recover custody or any other rights over such child. That I have read and understood the above and I am signing it as my free and voluntary act.
DATED this 25 day of May, 1979.
Is/ Larry Dean Mitchell
LARRY MITCHELL.”

At the time of execution, Robert and Nijel Draper, relatives of respondent, planned to adopt Walter and the caption on the document named them as petitioners. This adoption never took place, however, and after Walter had spent three months with the Drapers, the Department again took custody of Walter. A petition seeking to have Walter adjudged a ward of the court was subsequently filed in the circuit court of Clay County. On June 1, 1981, Walter was found to be a neglected child and was made a ward of the court. The circuit court made no determination of Larry Mitchell’s parental rights at this time, but did grant him visitation rights to Walter who was to remain in the Department’s custody.

A second amended petition was filed seeking to terminate respondent’s parental rights. The May 25, 1979, document set out above was also filed in the circuit court. Respondent moved to strike the document and a hearing was held on the motion. On April 29, 1982, the court denied the motion, found that the consent was valid, and terminated the respondent’s parental rights to Walter. The respondent appeals from this order.

In Illinois, adoption is governed by “An Act in relation to the adoption of persons ***” (Ill. Rev. Stat. 1981, ch. 40, par. 1501 et seq. (hereinafter referred to as the Act)). Two considerations bear on our review of this cause and deserve prefatory attention. Adoption statutes formerly were strictly construed in this State as being in derogation of the commonlaw. (Keal v. Rhydderck (1925), 317 Ill. 231, 235, 148 N.E. 53.) This rule of construction, however, is now inapplicable as the statute itself provides that it “shall be liberally construed.” (Ill. Rev. Stat. 1981, ch. 40, par. 1524.) Additionally, we are cognizant of this State’s strong public policy favoring the finality and stability of adoptions (In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 578, 338 N.E.2d 862) and the welfare of adopted children (see Kathy O. v. Counseling & Family Services (1982), 107 Ill. App. 3d 920, 925, 438 N.E.2d 695). We will analyze respondent’s contentions with these principles in mind.

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In Re Custody of Mitchell, 450 N.E.2d 368, 115 Ill. App. 3d 169, 70 Ill. Dec. 895, 1983 Ill. App. LEXIS 1862 (Ill. Ct. App. 1983).

450 N.E.2d 368 (In Re Custody of Mitchell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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