Jurisdictional Statement — Regenold v. Baby Fold, Inc.

~~ Supreme Court, U.S. ~

FILED

| MAR 2 1978

IN THE SUPREME COURT OF THE UI RD STATE

ICHAEL RODAK, SR, CLERK

4

;

LINDA FAY REGENOLD,

Appellant,

Vv.

THE BABY FOLD, INC., A CORPORATION,

ET AL.,

Appellees.

APPEAL FROM THE SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT

CRAIG HOMER GREENWOOD

Attorney At Law

206 Albert

Bloomington, Iilinois 61701

Attorney for Appellant,

LINDA FAY REGENOLD

SUBJECT INDEX

Gpinsems Below ..+<+«eseesese

Grounds of Jurisdiction of

Supreme Court ..+.+«s**eeee e

Questions Presented ........

Statement of the Case .......

Substantiality of Federal Questions.

ee ee ee ee ee ee ee ee

Appendices:

Opinion of Trial Court ....

Opinion of Appellate Court. ..

Opinion of Supreme Court...

Statutory Authority . . «+ « -«

Constitutional Provisions

. « - & ioe wt oe

Notice of Appeal to Supreme

Court of United State ...

10

ii

INDEX OF AUTHORITIES

Cases

Boykin v. Alabama

395 U.S. 238 (1969). .

Fuentes v. Shevin

Say Ween Ge Ceeres « « 6

Illinois v. Allen

397 U.S. 337 (1970)

Rehearing denied 398 U.S.

9335 (i970) . «© © «© © @ ®

Meyer v. Nebraska

262 U.S. 390, 399 (1923) ..

Prince v. Massachusetts

321 U.S. 158, 166 (19446) ..

Shapiro v. Thompson

394 U.S. 618, 634 (1969) ..

Skinner v. Oklahoma

316 U.S. 535, 541 (1942) .

Stanley v. Illinois

405 U.S. 645 (1972)... -«

Constitution and Statutes

Illinois Revised Statutes

Chapter 4, Section 9.1-10C .

Chapter 4, Section 9.1l-ll. .

United €tates Constitution

po a ee ee ee

AmoenG@ment ZIV. . « « « © @ «#

10,11

11

10

10,12

on

IN THE SUPREME COURT OF THE UNITED STATES

coecece cue seennee

BOccceeses

LINDA FAY REGENOLD,

Appellant,

Ve

THE BABY FOLD, INC., A CORPORATION,

ET AL.,

Appellees.

APPEAL FROM THE SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT

Pursuant to Rules 13(2) and 15 of

the Rules of the Supreme Court of the

United States, appellant, Linda Fay

Regenold, files this statement of the

basis upon which it is contended that

the Supreme Court of the Unites States

has jurisdiction to review the judgment

entered by the Supreme Court of Illinois

in this case and should exercise such

jurisdiction herein.

eT

0 Dee.

o Je

OPINIONS BELOW

The appellant, Linda Fay Regenold,

filed a petition for a writ of habeas

corpus in the circuit court of McLean

County, Illinois, in the Eleventh Judicial

Circuit of the State of Illinois. She

alleged that she was deprived of the

custody of her infant son by the Baby

Fold, Inc. After a trial before the

Honorable James A. Knecht the trial court

found that the consent to adopt signed

by the appellant, Linda Fay Regenold,

was invalid in that it was not executed

as her free and voluntary act and ordered

that the infant son be returned to his

mother (Appendix A).

A timely appeal was filed with the

Appellate Court for the Fourth District

of the State of Illinois. The judgment

of the trial court was reversed by a .

split decision dated September 30, 1976

(Appendix B).

A timely appeal was filed with the

Supreme Court of the State of Illinois.

The judgment of the Appellate Court for

the Fourth District of the State of

Illinois reversing the decision of the

trial court was affirmed by a split

decision dated September 20, 1977

(Appendix C).

A timely petition for rehearing was

filed with the Supreme Court of the State

of Illinois. The petition for rehearing

was denied and the mandate issued on

December 2, 1977.

o3-

GROUNDS OF JURISDICTION OF SUPREME COURT

This appeal arises from an action by

a natural anes to regain custody of her

natural son by a petition for a writ of

habeas corpus which was granted by the

Circuit Court for the Eleventh Judicial

Circuit of the State of Illinois, which

was reversed by the Fourth District ~

Appellate Court of the State of Illinois,

which was affirmed by the Supreme Court

of the State of Illinois, which denied

the petition for rehearing.

The jurisdiction of this Court is

invoked under the provisions of Title 28,

United States Code, Section 1257(2).

a

QUESTIONS PRESENTED

I

By upholding the validity of the

adoption statute, by repudiating the

totality of circumstances approach, by

considering only unlawful and illegal

actions of duress, and by ignoring the

voluntariness of the consent, did the

decision of the Illinois Supreme Court

violate the appellant's constitutional

rights of due process and equal

protection?

II

When the Illinois Supreme Court

recognized adoption to be a creature of

statute, stated that the legislature must

prescribe the procedures, and then failed

to see the applicability of constitutional

rights, to those procedures, did the

Illinois Supreme Court fail to identify

the appellant's constitutional rights to

due process and equal protection?

III

Must not a consent to adopt be

voluntarily and understandingly executed

to be constitutionally valid?

=

STATEMENT OF THE CASE

Petitioner, Linda Fay Regenold,

is Png Petree natural mother of the

infant, Jason Robert Regenold, who _

born on August 2, 1974. On October +

1975, when she contacted The Baby Fo en

Inc., she was under the following press :

First, she faced the trauma of a

most recent divorce.

ble to

Second, her husband was una

accept the finality of divorce and ——

send letters addressed to both eae

to the child indicating his continue

love;

Third, Linda faced the adjustment to

added responsibilities and a new position

at work;

Fourth, she faced the stresses of

motherhood and raising an infant;

i dication and

Fifth, Linda was under me tic

was of the belief that if her condition was

not remedied, she would face an operation

and receive a partial hysterectomy;

ixth, the added to Linda's already

PR ge 8 difficulties in og

had to pay her divorce attorney and ate

hospital and the doctor for Jason's aa

as well as for her automobile transpor

tation to and from work and in addition,

rent to her mother for living with her

mother and father;

~~

-6-

Seventh, Linda had conflicts with her

mother over the responsibility of rearing

her three-year-old brother who at times

was a threat to the security of Jacon;

Eighth, Linda's mother was divorcing

her father and kept moving up the date on

which she felt that Linda would have to

get out of the home;

Ninth, Linda would often argue with

her mother over the subject of finances

and the paying of the babysitter and her

rent at home;

Tenth, Linda's mother and father would

constantly argue. Linda's home was in

constant state of turmoil. When Linda's

mother directed her attention to Linda it

was only in a degrading and belittling

fashion in which she severly questioned

Linda's capability.

These pressures were established by

the testimony of Linda, her aunt, her father,

her brother, a close friend and fellow

worker, and two grandparent figures, as

well as by exhibits and other testimony.

As a result of these pressures, a

licensed physician and psychiatrist med-

ically determined that on October 20, 1975,

Linda was suffering under a psychological

impairment - specifically an adjustment

reaction, or as it is also called, a

transient situational disturbance. The

four phases of a transient situational

disturbance are the anticipatory, the im-

pact, the recoil and the post-traumatic.

That Monday, Linda had begun the impact

phase which is the most severe phase in

ate

affecting one's reasoning and rational

behavior. When she called the Baby Fold,

Inc., on October 20th, Linda was exper-

iencing an extreme amount of environmental

stress and pressure as well as her own

internal turmoil and insecurity. She

was reaching out for help. She was acting

under compulsion and attempting to seek

order and security. She was not acting

freely in that she was acting in a style

different than each and every major

decision in her life to date.

The trial court held that the surrender

was invalid in that it was not executed as

the free and voluntary act of the Petitioner.

Her action in signing the surrender was

held to be neither voluntary nor under-

standing. She was not exercising her own

free will. Her actions were a product of

duress. The trial court found that The

Baby Fold, Inc., by failing to make mean-

ingful attempts to solve the Petitioner's

problems, by acting with unseemiy haste in

taking the surrender and by accepting a

surrender from someone subject to the

assorted pressures facing the Petitioner,

became an active participant in the chain

of events which denied the Petitioner the

exercise of her free will and deprived

her of her infant son. The trial court

held that the totality of the circumstances

in this case prevented the Petitioner from

exercising her free will, and placed her

under extreme duress thereby rendering

the surrender invalid.

The federal questions of due process

and equal protection under the United

States Constitution were both raised by

the pleadings at the trial court level.

x

The dissenting opinion of the Fourth

District Appellate Court recognized the

raising of the Constitutional issues at

the trial court and also at the appellate

court level. (A-18.) This same dissenting

opinion expressed great concern over the

Constitutional issues raised (A-18 to

A-21). However, the dissenting opinion

did not consider these Constitutional

issues although discussing them at length.

The dissenting Justice would have affirmed

on other than Constitutional grounds

although he did indicate that such an

affirmation should be made in the context

of due process and equal protection

guarantees (A-21). The majority opinion

at the Fourth District Appellate Court

also addressed the issue of the Consti-

tutionality of the adoption statute

(Appendix D). The majority opinion

indicated that the appellant persuasively

argued the unconstitutionality of the

statute under both equal protection and

due process (A-10). The majority opinion

entertained serious doubts as to the

Constitutional validity of the statute

(A-11). However the opinion of the

majority opinion did not resolve that

issue.

The Illinois Supreme Court was

divided in rendering its decision. However,

only a majority opinion was filed. That

opinion disclosed that the court did not

recognize a violation of Constitutional

rights (A-39). The majority opinion spoke

of adoption as a creature of statute and

the legislature therefore being able to

prescribe the procedures (A-39). The

court felt that the recent enactments by

the legislature indicated a repudiation

aGe

of the totality of circumstances approach

(A-39). Therefore in determining the

validity of a consent for adoption the

majority would consider only the unlawful

acts of those taking the consent to

adoption (A-34 to A-39).

-10-

SUBSTANTIALITY OF FEDERAL QUESTIONS

This appeal presents important and

substantial questions, as hereinafter

described, in that the Illinois Supreme

Court upheld as valid a consent to adopt

which was neither voluntarily executed

nor understandingly made, in clear

violation of the natural mother's rights

of equal protection and due process under

the United States Constitution.

The guarantee of due process of

law will not allow the deprivation of a

fundamental interest. And the rights to

conceive and to raise one's children have

been deemed "essential." MEYER V.

NEBRASKA, 262 U.S.390, 399 (1923). Or

one of the "basic civil rights of man."

SKINNER V. OKLAHOMA, 316 U.S. 535,541

(1942). The “custody, care and nurture

of the child reside first in the parents,

whose primary function and freedom

include preparation for obligations the

state can neither supply nor hinder."

PRINCE V. MASSACHUSETTS, 321 U.S. 158,

166 (1944). Thus, in STANLEY V. ILLINOIS,

405 U.S. 645 (1972), this Honourable

Court held that the rights of a natural

parent are fundamental rights entitled

to due process guarantees.

The question of an effective waiver

of federal constitutional rights ina

proceeding is governed by federal

standards. BOYKIN V. ALABAMA, 395 U.S.

238 (1969). And the Courts must indulge

in every reasonable presumption against

the loss of these constitutional rights.

ILLINOIS V. ALLEN, 397 U.S. 337 (1970),

rehearing denied 398 U.S. 915 (1970).

eile

BOYKIN was a criminal proceeding.

But in civil, no less than in criminal

cases, courts indulge in every reasonable

presumption against the waiver of

procedural due process rights. FUENTES

V. SHEVIN, 407 U.S. 67 (1972).

The appellant, Linda Fay Regenold,

was denied due process of law. The

fundamental right to raise her infant son,

as recognized in STANLEY, could only be

waived in a manner governed by federal

standards, as indicated in BOYKIN. The

voluntariness of the waiver in BOYKIN is

applicable to the appellant in this civil

proceeding through FUENTES. The consent

to an adoption must be voluntarily and

understandingly made as an exercise of

free will, just as pleas of guilty to

criminal offenses are so made in the

hundreds every day. It is unconscionable

to hold the losing of one's child for life

to a lesser standard than pleading guilty

to a disorderly conduct and paying a $25

fine.

Yet the Illinois Supreme Court did

not address the question of voluntariness.

Nor did the Court see the existence of

the applicable constitutional rights

(A-39). The Court interpretted the

amendments to the adoption act as a

repudiation of the totality of circum-

stances approach by the legislature.

The question thus presented is how can

the voluntariness of a consent be deter-

mined without determining the totality

of circumstances. The answer is simple,

voluntariness can not be determined and

the due process guarantees afforded the

al Se

appellant are by definition violated.

The Illinois Supreme Court did suggest

that since adoption is a creature of statute

the legislature must establish the applic-

able procedures (A-39). However the court

did not recognize the applicability of

Constitutional guarantees to those

procedures adopted. A law or procedure

can violate the equal protection clause

without the showing of a compelling state

interest which can be only furthered

by enactment of the statute in question.

Of course, this holding is dependent upon

the case being won which the court subject

to "strict scrutiny". SHAPIRO Vv. THOMPSON,

394 U.S. 618, 634 (1969). Strict scrutiny

can be established by the enfringement

upon a fundamental right. In this instance

the fundamental right is that right to

conceive and raise one's children. MEYER

V. NEBRASKA, 262 U.S. 390, 399 (1923).

The question then becomes whether

the state can show a compelling state

interest. SHAPIRO Vv. THOMPSON, 394 U.S.

618, 634 (1969). And what compelling

State interest can necessitate the

taking of a consent which is neither

voluntarily made nor understanding

executed. The answer to this question

too is simple, there is no such compelling

state interest. The obtaining of a guilty

plea in a criminal proceeding and the

assurances that that plea is taken vol-

untaringly and understandingly is done

on a daily basis in every court in this

country. This procedure has not proved

disruptive of the criminal justice system.

How then can the employment of a similar

standard be disruptive of the adoption

process.

ai Je

Of course,

it can not.

olga

CONCLUSION

For the reasons stated above,

appellant submits that this appeal brings

before the court substantial and important

federal questions which require plenary

consideration, with briefs on the merits

and oral argument, for their resclution.

Dated: February 24, 1978.

Attorney for Appellant

CRAIG HOMER GREENWOOD

Attorney At Law

206 Albert

Bloomington, Illinois 61701

Attorney for Appellant,

LINDA FAY REGENOLD

A-1

APPENDIX A

OPINION AND ORDER OF THE TRIAL COURT

Argued -- January 30, 1976

Decided -- February 13, 1976

BEFORE:

Hon. JAMES A. KNECHT, Associate Judge

Decision of the Circuit Court of

the Eleventh Judicial Circuit of

Illinois. NO. 75MR50

LINDA FAY REGENOLD, Petitioner

VS. THE BABY FOLD, INC., Respondent.

ORDER

On December 1, 1975, this court

ordered the issuance of a writ of Habeas

Corpus, upon the verified petition of

the petitioner, commanding respondent to

produce the minor child of petitioner

before the court for a determination of

rightful custody. Thereafter, a pre-

trial conference was held, discovery was

completed by the parties and evidence in

the cause was heard on January 26, 1976,

and January 27, 1976. On January 30,

1976, the date set for closing arguments,

the prospective adoptive parents of the

mincr filed a motion for leave to inter-

vene in this action. That motion was

heard and allowed by the court over the

objection of the petitioner. The inter-

venors were not allowed to present

evidence, but were granted leave to

A-2

getting her child back. By October 28,

1975, an attorney representing petitioner

had contacted Baby Fold seeking the

return of the child. The record in this

cause is replete with evidence relating

to the severe family, social and

environmental pressures under which the

petitioner was operating when she signed

the surrender document. The record is

also replete with evidence concerning

the procedures which the caseworker from

Baby Fold followed to assure that the

petitioner understood the surrender and

its consequences.

The issue which the court must

decide is whether the surrender is valid

and in fact represented the free and

voluntary act of the petitioner. The

court finds, in the circumstances present

in this case, that the surrender is

invalid in that it was not executed as

the free and voluntary act of the

petitioner.

The execution of the surrender was a

reaction to the severe environmental

stress and pressure under which the

petitioner was operating. Her action in

Signing the surrender was neither volun-

tary or understanding. There is no doubt

that, in the circumstances present here,

the petitioner was not exercising her own

free will in signing the surrender. The

emotional disturbance that she was ex-

periencing and the environmental stress

and pressure upon her combined to produce

a result which was the product of duress.

A-3

submit written argument and a brief for

the consideration of the court. The

court then enjoined the intervenors from

proceeding with the adoption of the minor

until the resolution of this cause.

Thereafter, closing arguments were heard

and the parties submitted written briefs

and authorities to assist the court in

its decision.

The court, having heard the evidence

and considered the arguments and legal

authorities cited by the parties and

being fully advised finds as follows:

On October 20, 1975, Linda Fay

Regenold, the petitioner, a nineteen-

year-old recently divorced mother, con-

tacted and visited the Baby Fold, Inc., a

licensed child welfare agency, relative

to her infant son, Jason Regenold. The

facts are in dispute as to whether the

petitioner was seeking help and advice in

providing proper case for her son, or

whether she contacted Baby Fold with the

plan of placing him for adoption. On

October 22, 1975, the petitioner returned

to Baby Fold with her son, signed what is

entitled "Final and Irrevocable Surrender

For Purposes of Adoption" and surrendered

custody of her son to a worker of the

Baby Fold. On October 23, 1975, the

petitioner again visited Baby Fold, was

informed of the placement and gave cer-

tain medical history information about

the child to the staff at Baby Fold. On

October 26, 1975, the petitioner visited

an older married couple, who had known

her since birth, and sought their aid in

A-4

Respondent arques that while the

circumstances of the petitioner's own

family life and relationships may have

caused her to surrender her parental

rights, that under the law Baby Fold,

Inc. bears no responsibility for those

pressures or her decision. Section 9.1-

ll of Ch. 4, Ill. Rev. Stat. was amended

in 1973 to provide in pertinent part:

"A consent. . .shall be irrevocable

unless it shall have been obtained

by fraud or duress on the part of

the person before whom such consent,

Surrender or other document equiva-

lent to a surrender is acknowledged

Respondent argues that it did not obtain

the consent by fraud or duress even

through petitioner may have been under

duress from her own parents and other

Circumstances. Hence, according to

respondent, the surrender is valid.

The court finds, however, that the

respondent by failing to make meaningful

attempts to solve the petitioner's

problems; by acting with unseemly haste

in taking the surrender, and by accepting

a surrender from someone subject to the

assorted pressures facing petitioner

thereby became a subtle, but active

participant in the chain of events which

denied the petitioner the exercise of

her free will and deprived her of her

infant son.

The court does not suggest that any

legal fiduciary relationship existed

between petitioner and respondent. The

lack of a legal fiduciary relationship,

however, does not remove the professional

responsibilities which respondent bears.

It is noted that unfortunately respondent

receives no guidance from the Department

of Children and Family Services of the

State of Illinois relative to the taking

of consents or surrenders because that

agency has failed to prepare written

standards to follow as to this crucial

procedure. Written standards prepared

either by the Department of Children and

Family Services or the respondent itself

and adherence to them might well have

avoided this unfortunate situation. The

totality of the circumstances in this

case prevented the petitioner from

exercising her free will, and placed her

under extreme duress thereby rendering

the surrender invalid.

Accordingly, it is hereby ordered,

adjudged and decreed that the surrender

executed by Linda Fay Regonold is invalid

and therefore void. The intervenors are

ordered to immediately and without delay

return Jason Regenold to the respondent,

Baby Fold, Inc, and respondent is ordered

to return the child to his mother, the

petitioner, forthwith. There is no just

reason to delay enforcement or appeal of

this order.

A-6

APPENDIX B

OPINION AND ORDEROF THE APPELLATECOURT OF

THE 4TH JUDICIAL DISTRICT OF THE

STATE OF ILLINOIS

Argued -- August 2, i976

Decided -- September 30, 1976

BEFORE: |

Hon. HAROLD F. TRAPP, presiding Judge

Hon. JAMES C. CRAVEN, Judge

Hon. LELAND SIMKINS, Judge

Appeal from the Decision of the

Circuit Court of the Eleventh

Judicial Circuit of Illinois.

General No. 13704

Hon. James A. Knecht,

Associate Judge

Agenda No. 76-147

LINDA FAY REGENOLD, Petitioner-

Appellee v. THE BABY FOLD, INC.,

a corporation, Respondent-Appellant

and RICHARD RILEY and PRISCILLA

RILEY, Intervenors~-Appellants.

MR. JUSTICE CRAVEN delivered the opinion

of the court:

This is an appeal by the respondent,

The Baby Fold, Inc. (Baby Fold), and the

intervenors, Richard and Priscilla Riley,

of an order entered by the circuit court

of McLean County after a hearing on a

habeas corpus petition filed by Linda Fay

Regenold, the natural mother of Jason

Regenold, a minor. The trial court found

A-7

that petitioner was entitled to custody

and control of the child, and ordered

intervenors to return the child to

petitioner. This court has stayed the

trial court's order pending a decision

on appeal.

On October 20, 1975, petitioner, a

19-year-old mother who had been divorced

on September 23, 1975, contacted and

visited The Baby Fold, a child welfare

agency, relative to her infant son, Jason

(born August 2, 1974). On October 22,

1975, petitioner returned to Baby Fold

with her son, signed what is entitled

"Final and Irrevocable Surrender For

Purposes of Adoption" and surrendered

custody of her son to a worker of Baby

Fold. On October 24, 1975, petitioner

again visited Baby Fold, was informed of

the placement, and gave certain medical

history information about the child to

the staff at Baby Fold. On October 26,

1975, petitioner visited a married couple

who had known her since birth, and sought

their aid in procuring the return of her

child. By October 28, 1975, an attorney

representing petitioner had contacted .

Raby Fold seeking the return of the child.

yn December 1, 1975, petitioner filed a

petition for a writ of habeas corpus. A

hearing was conducted January 26, 1976,

after which, on February 13, 1976, the

trial court invalidated petitioner's

surrender and consent to adoption, and +

ordered the child returned to petitioner.

The facts are in dispute as to the

reason petitioner contacted Baby Fold.

Petitioner testified that she wanted to

A-8

talk to someone. She introduced evidence

indicating that she was living under a

great deal of stress at the time of

placement: she was a 19-year-old mother

who had then been divorced for one month;

her husband had communicated to her

through various letters indicating that

he was unable to accept the finality of

their divorce; her parents, with whom

she lived, constantly argued; her mother

was divorcing her father, and intended to

force petitioner and her child out of the

home; she had to adjust to the responsi-

bility of a new position at her job; she

had conflicts with her mother over the

responsibility of rearing her three-year-

pld brother; the brother was a threat to

her son's physical well-being; she faced

various financial difficulties; she was

under medication and feared that she

faced a partial hysterectomy if the

medication was ineffective. Psychiatric

testimony was introduced which concluded

that petitioner was suffering from

severe stress and "transient situational

disturbance." Petitioner's position is

that Baby Fold brought up the subject of

adoption as a solution to her problem,

and that due to the severe emotional

duress under which she was living and of

which Baby Fold was aware, Baby Fold's

hasty actions in accepting her surrender

without exploring other solutions consti-

tuted fraud or duress which invalidated

her surrender.

Baby Fold's position is that it did

nothing out of the ordinary, and that

petitioner contacted Baby Fold for the

purposes of surrendering her child. Baby

Fold introduced evidence indicating that

A-9

the procedure it followed is not unusual.

Plaintiff was counseled on Monday, October

20, 1975, at which time she filled out

and signed a family history form. A

witness for Baby Fold testified that, at

that time, the alternatives of short term

foster care or permanent adoption were dis-

cussed. Petitioner was asked during the

October 20, 1975, interview if she wanted

to consider her action and someone "sug-

gested Wednesday." Exactly what was

meant by "suggestedWednesday" is unclear

from the record, but apparently the phrase

referred to the date of surrender of the

child. On Wednesday, the surrender papers

were signed and the child was surrendered.

The surrender form was read to the Peti-

tioner before she signed it.

On the basis of the evidence, the

trial court invalidated petitioner's

surrender stating:

"The court finds, in the circumstances

present in this case, that the surrender

is invalid in that it was not executed

as the free and voluntary act of the

Petitioner."

"The execution of the surrender was

a reaction to the severe environmental

stress and pressure under which the Peti-

tioner was operating. Her action in

signing the surrender was neither volun-

tary or understanding. There is no doubt

that, in the circumstances present here,

the petitioner was not exercising her own

free will in signing the surrender. The

emotional disturbance that she was ex-

periencing and the environmental stress

and pressure upon her combined to pro-

A-10

duce a result which was the product of

duress."

Besides the problems facing petitioner

as enumerated above, the trial court ob-

served and found that Baby Fold:

"(Bly failing to make meaningful

attempts to solve the petitioner's pro-

blems; by acting with unseemly haste in

taking the surrender, and by accepting a

Surrender from someone subject to the

assorted pressures facing petitioner there-

by became a subtle, but active partici-

pant in the chain of events which denied

the petitioner the exercise of her free

will and deprived her of her infant son."

Respondent appeals, contending that

the decision of the trial court is con-

trary to the manifest weight of the

evidence. Section 11 of the Adoption

Act was amended in 1973 to provide in

pertinent part:

"A consent * * * shall be irrevocable

unless it shall have been obtained by fraud

or duress on the part of the person before

whom such consent, surrender, or other

document equivalent to a surrender is

acknowledged. * * *,." (I11.Rev.Stat. 1975,

ch. 4, par. 9.1-11.)

Petitioner persuasively argues that section

ll is constitutionally void under due

process and equal protection standards in

that it legislatively precludes invalida-

tion of actions performed under duress,

depending on the source of duress. We note

that the trial court, by its findings,

clearly invited a comprehensive review

A-11

of the statute as amended. Although we

entertain serious doubts as to the

constitutional validity of the statute,

we need not resolve that issue. We

conclude that the stress petitioner has

established, regardless of its source,

as a matter of law does not amount to the

duress which is necessary to vitiate her

consent.

Duress, in the context of consent

for adoption, has been defined in numerous

decisions. This court's most recent state-

ment on the subject can be found in In re

Sims (1975), 30 I11.App,3d 406, 332 N.E.

2d 36, incorporating previous supreme

court pronouncements:

" * &* &-.

"Duress has been universally de-

fined as a condition which exists where

one is induced by the unlawful act of

another to make a contract or perform

or forego an act under circumstances

which will deprive him of the exercise of

his free will. There must be such com-

pulsion affecting the mind as shows that

the execution of the contract or other

instrument was not the voluntary act of

the maker. Such compulsion must be pre-

sent and operate at the time the instrument

was executed. The burden of proving such

duress is on the person asserting it.

[Citations. ]

"Mere annoyance or vexation will not

constitute duress, but there must be

such compulsion affecting the mind as shows

that the execution of the contract or

A-12

Or other instrument is not the voluntary

act of the maker. [Citations.]" 'Mere

advice, argument or persuasion does not

constitute duress or undue influence if the

individual acts freely when he executed

the questioned documents though the same

would not have been executed except for

the advice, argument or persuasion

[Citations.].'" 30 I11.App.3d 406, 410-

411, 332 N.E.2d 36, 39-40.

Moreover, whether the stress under

which an individual acts amounts to the

duress necessary to invalidate a consent

for adoption must be determined in the

context of the public policy favoring

finality in the adoption process. We

note that the Adoption Act's consent pro-

vision has evolved over the years in re-

sponse to the recognized need for pro-

viding a stable and secure environment for

the adopted child (In re Wojtkowiak (1975),

14 I11.App.2d 344, 144 N.E.2d 760), and to

protect the parties from the complex

psychological problems inherent in

permitting a natural parent to withdraw

consent. (Drury v. Catholic Home Bureau

(1966), 34 Ill.2d 84, 213 N.E.2d 507;

In re Adoption of Hoffman (1975), 61

Ill.2d 569, 338 N.E.2d 862.) In Drury,

the Illinois Supreme Court noted:

"Admittedly, a mother's decision to

consent to her child's adoption by a

couple to her unknown must be a most

difficult one to make. Strong emotional

factors militate against it. Once done,

misgivings not only may occur, but are

probable, and it is not unlikely that

attempts to rescind such consent will be

A-13

made at a time when the child has been

placed in an adoptive home, and new

attachments formed." (34 I11.2d 84, 93-

94, 213 N.E.2d 507,512.)

Our legislature has balanced the needs of

the adoption system against the natural

inclinations of consenting parents and

concluded that such consent is irrevocable

in the absence of fraud or duress. We

are compelled to enforce such policy, and

where the evidence fails to establish

fraud or duress, the consent must be given

effect.

The record before us reflects a young

mother of normal inteiligence and normal

emotional development. The record also

reflects a number of disturbing and vexing

problems which she faced. The record is

devoid, however, of any evidence suggesting

that petitioner's consent was the product

of third party persuasion, inducement,

deception, or domination. In Sims, this

court found duress under conditions quite

dissimilar to the instant case. In Sims,

the compulsion to consent to adoption was

in the form of a specific mandate. There

the natural mother's parents "conditioned

their parental love of their daughter

and their fulfillment of their legal

obligation to support her during her

minority on her consenting to the adoption.

(30 Il1l.App.3d 406, 411, 332 N.E.2d 36,40.)

The instant record demonstrates, at most,

that the possibility of adoption was

suggested by an employee of Baby Fold after

petitioner, on her own initiative, con-

tacted and visited Baby Fold's place of

business. In In re Petition of Huebert

A-14

(1971), 132 I1l.App.2d 793, 270 N.E.2d

464, duress was found where adoption had

been Suggested to the mother by a close

friend who had become involved with the

mother's husband and who was able to exert

undue influence and control over her.

There the natural mother's consent was taken

during one brief interview at the Depart-

ment of Public Aid. We agree with the

Huebert court and the trial court below

that the time period within which the

respective consents to adoptions were

effected constituted unseemly haste. We

are critical of that kind of procedure

in such a sensitive area. We encourage

the legislature to establish standards

commensurate with the importance of the

decision involved. We must hold, however,

that as a matter of law, mere haste coupled

with environmental stress does not

constitute duress. Upon the record before

us we cannot conclude that petitioner's

actions were performed under duress as

heretofore defined. Accordingly, we hold

that the findings of the trial court were

contrary to the manifest weight of the

evidence.

The judgment of the circuit court of

McLean County is reversed.

Reversed.

: SIMKINS, J., concurs; TRAPP, P.J.,

dissents.

A-15

TRAPP, P. J., dissenting:

I would affirm the order of the

trial court. The trial court made the

finding:

"The facts are in dispute as to

whether the petitioner was seeking help

and advice in providing proper care for

her son, or whether she contacted Baby

Fold with the plan of placing him for

adoption."

In such context this record shows con-

summation of the surrender with extra-

ordinary speed. There was an initial in-

terview of approximately two hours on the

evening of October 20. On the morning of

October 21, respondent called a staff meeting

at which the adoptive home was chosen.

The reasonabie conclusion is that the

adopting parents accepted the child

without any introduction, for that home

was described to petitioner on the

evening of October 23, when the surrender

was executed. The child was delivered

to the adopting parents on the 24th.

So far as the record shows, the

child's father was believed to be in

California at the time that the child

was placed without seeking his consent

and that the adopting parents were told

that his parental rights would have to be

terminated by them in subsequent legal

proceedings. It is an apparently fair

inference that the respondent concluded

that the adoption was deemed to have been

finally determined upon at the interview

on October 20th.

A-16

This is in marked contrast to the facts

in the opinions of the Supreme Court which

have been cited. In The People ex rel

Drury v. Catholic Home Bureau (habeas corpus)

(1966), 34 Ill. 2d 84, 213 N.E.2da 507, the

record shows that the consenting mother had

discussed adoption with her parents, her

fiance and one or more doctors and

psychiatrists during a period between

December, 1963, and June, 1964. The

court found from the record that the

consenting mother was thoroughly informed

as to alternative methods of providing

immediate care for the child and that the

legal effect of adoption was explained to

her in details on two separate occasions.

Hence, the court held that the finding of

the trial court that the consent was a

free and voluntary act was not contrary

to the manifest weight of the evidence.

Again, in In re Adoption of Hoffman

(1975), 61 Ill. 2d 569, 338 N.E. 2d 862

(C.P.A., sec. 72), the record showed that

the parents had discussed the proposed

adoption during a period extending from

February into July, and it is of great

Significance that the consequences of the

consent to the adoption were fully ex-

plained by the judge before whom the con-

sents were executed.

Petitioner argues that the represen-

tatives of respon ent who interviewed

petitioner on October 20, incorrectly inter-

preted the latter’s inientions at such

interview. We have noted the court's

finding in such regard. Petitioner

further points out that such represen-

tatives on that date incorrectly inter-

A-17

preted a response of petitioner to mean

that she had considered surrendering the

child for adoption for some six months.

The record shows that following petitioner's

detailing of her financial problems, one

representative said to petitioner:

"So that has been a problem on your

mind for quite a while.",

to which Petitioner responded "Yes", and

in a further response said she had been

thinking of it for six months. Respondent's

witness agreed on cross-examination that

such response, together with the disputed

interpretation of a telephone call, were

the basis for a conclusion that petitioner

intended to give the child in adoption

at the interview on October 20. Con-

Sideration of the record discloses that

the trial court might have properly concluded

that the period of six months mentioned

was not meant as a reference to petitioner's

consideration of adoption, but rather to the

period of her concern over her financial

difficulties.

There is evidence in behalf of the re-

spondent that the mother was told on

several occasions that the surrender of the

child was irrevocable and that the sur-

render document was read to petitioner

before she signed it. Section 13 of "An

Act in relation to the adoption of persons

wee" ))6(I11. Rev. Stat. 1973, ch. 4, par.

9.1-13A(a)), makes the execution of a

statutory consent but prima facie evidence

of the validity of such consent. It is

a fair conclusion that the petitioner was

not on an equal footing with the respon-

A-18

den's representatives in considering the

meaning of adoption and the consummation

of the surrender. The record does not

include any other testimony as to an

explanation of alternatives in aid of

petitioner's existing financial and per-

sonal problems, nor does there appear

to have been any further explanation of

the iwnmeaning of the termination of parental

rights. It is significant that when

petitioner discovered a source of aid in

meeting her avalanche of problems there

was a request for the return of the child

made on October 28.

The courts have expressed concern with

achieving stability and finality in adoption.

This case, as with others, suggests the

wisdom of a provisional surrender for a

reasonable period. Upon such issue of

stability this case cannot be measured

by the tests of Hoffman, where the action

to recover her child was commenced two

years after the decree for adoption, or

by that in Catholic Home, where a period

of six months intervened between the

surrender and the habeas corpus porceeding.

The petitioner raised the issue of due

process and equal protection of the law

under the Constitution in the trial court

and here. The trial court found that:

"The totality of the circumstances in

this case prevented the petitioner from

exercising her free will, and placed her

under extreme duress thereby rendering

the surrender invalid."

A-19

Upon such determination it was un-

necessary for the trial court to make a

constitutional determination. This court

suggests substantial constitutional issues,

but declines to consider such and reverses

as a matter of law.

In Stanley v. State of Illinois (1972),

405 U.S. 645, 31 L. Ed. 2d 551, 92S. Ct.

1208, the court stated that parental

rights are essential and basic rights en-

titled to the equal protection of the law

and due process under the Constitution

of the United States, saying:

"The private interest here, that of

a man in the children he has sired and

raised, undeniably warrants deference

and, absent a powerful countervailing

interest, protection." [405 U.S. 645,651,

34 Le BA. 24 351, 358.)

Such language was approved and quoted in

Weinberger v. Wiesenfeld (1975), 420

U.S. 636,651, 43 L. Ed. 2d 514, 526, 95

S.Ct. 1225.

We submit that the interest of the

mother in this proceeding “warrants

deference" equally and that such interest

is at least substantially equal ina

constitutional sense to that of one charged

with a criminal offense. By the rule of

Boykin v. Alabama (1969), 395 U.S. 238,

23 L. Ed. 2d 274, 89 S. Ct. 1709, when

one charged with a criminal offense enters

a plea of guilty the record must show that

the individual was informed concerning all

of the several rights which he will surrender,

and of the consequences incident to his

A-20

plea to the end that it can be shown that

the individual so acting has full under-

standing of the matters and acts in an

intelligent and voluntary manner. To

achieve such constitutional purpose

Supreme Court Rules 401 and 402 require

solemn judicial admonition of the several

rights surrendered iad of the consequences

of the act.

Hoffman does not address the precise

issue of the validity of a "surrender" to

an “agency". That opinion had occasion to

consider only the acknowledgment of a

"consent" to an adoption executed before

a circuit judge after he had admonished

the parents concerning the nature and

consequences of the adoption. The record

in that case shows the extent of such

admonition and that it indeed served

as a source of independent counsel which

is not clearly present in this case.

It is clear that the court gave great

weight to the judicial admonition.

The statute we consider makes the

consent irrevocable in the absence of

fraud or duress only on the part of one

acknowledging the consent or an adopting

parent. Fraud and duress are fundamen-

tally concepts of contract or tort. As

stated in Stanley;

"Tt is plain that the interest of a

parent in the companionship, care, custody,

and management of his or her children

‘come[s] to this Court with a momentum

for respect lacking when appeal is made to

liberties which derive merely from shifting

economic arrangements'." [405 U.S. 645,

A-21

651, 31 L. Ed. 2d 551, 558.]

While the courts have stated that the

statute expresses desirable objectives,

nonetheless:

"The establishment of prompt effica-

cious procedures to achieve legitimate

State ends is a proper state interest

worthy of cognizance in constitutional

adjudication. But the Constitution

recognizes higher values than speed and

efficiency. Indeed, one might fairly

Say of the Bill of Rights in general, and

the Due Process Clause in particular, that

they were designed to protect the fragile

values of a vulnerable citizenry from the

overbearing concern for efficiency and

efficacy that may characterize praise-

worthy government officials ***,"

Here, the trial court found that the

Surrender at issue was not an under-

standing voluntary act of the mother.

The principal opinion does not determine

that such judgment was contrary to the

manifest weight of the evidence. It is

submitted that in the context of due

process and equal protection the judgment

below should be affirmed.

A-22

APPENDIX C

URT

OPINION AND ORDER OF THE SUPREME CO

OF ILLINOIS, UNITED STATES OF AMERICA

Argued -- June 23, 1977

Decided -- September 20, 1977

BEFORE:

Daniel P. Ward, Chief Justice

Justice Robert C. Underwood

Justice Howard C. Ryan

Justice Thomas J. Moran

Justice Joseph H. Goldenhersh

Justice William G. Clark

Justice James A. Dooley

Appeal from the Decision of the

Appellate Court, Fourth District

State of Illinois

No. 49046 - Agenda 71

LINDA FAY REGENOLD, Appellant, v.

THE BABY FOLD, INC., et al., Appellees

MR. JUSTICE RYAN delivered the opinion of

the court:

Linda Fay Regenold filed a petition

for writ of habeas corpus in the circuit

court of McLean County alleging that she

was being unlawfully deprived of the

custody of her infant son by the Baby

Fold, Inc. Linda had executed a surrender

document on October 22, 1975, pursuant to

section 10 of the Adoption Act (I11.Rev.

Stat. 1975, ch.4, par. 9.1-10) and had

physically surrendered the child to the

Baby Fold. She contends that the sur-

A-23

render is not valid because it was executed

as the result of fraud and duress. The

circuit court held the consent invalid and

ordered the return of the infant. The

appellate court reversed with one justice

dissenting. (42 I11.App. 3d 39.) We

granted Linda's petition for leave te

appeal.

It is Linda position that the totality

of the circumstances surrounding the

execution of the surrender document was

such that she was placed under so much

stress that the execution of the document

was not her free and voluntary act. She

also contends that the Baby Fold participated

in the fraud and duress, as will later be

discussed. The Baby Fold contends that

pursuant to the statute (Ill. Rev. Stat.

1975, ch. 4, par. 9.1-11) the surrender

document was irrevocable unless it was

obtained by fraud or duress on the part of

the Baby Fold; that the conduct of the

Baby Fold did not amount to fraud or

duress; that under the present statute

the totality of the circumstances is not

relevant, and even if relevant the total

picture is not one of fraud or duress as

heretofore recognized by the courts of

this State.

Linda graduated from Bloomington High

School in the spring of 1974. She applied

for and was granted admission to Illinois

State University in Normal. She did not

enter the university, however, because in

August 1974 she gave birth to the child

who is the subject of this litigation.

She had been pregnant several months before

her marriage to the child's father on

A-24

April 4, 1974. During this marriage she and

her husband (and their son after his birth)

continued to live with her mother and

father and her two brothers. One brother

was 18 years old and the other one was 3

years old. The 3-year-old was retarded

as a result of an illness. Her husband

would not work and, in June, 1975, he

left the home. She procured a divorce

in September 1975.

Linda apparently secured employment

before her husband left the home and

continued to work thereafter. Her earnings,

however, were insubstantial. From these

she had to pay $100 per month for a baby

sitter while she worked, and she also had

to pay her mother rent. She was indebted

to a doctor for the delivery of her son.

She was also indebted for a hospital

bill and owed an attorney for legal

services related to her divorce. In

addition she had a car loan and premiums

to pay on her automobile insurance. She

stated she had sought financial aid

through different public agencies to no

avail.

In September and October of 1975, she

was under a doctor's care and was taking

medication for an infection. The doctor

told her if the medication did not remedy

the ailment surgery would be required.

The record does not reflect that surgery

was ever performed. During this time

her mother and father were having marital

difficulties and were constantly arguing.

Her mother told Linda that she was going

to divorce Linda's father and sell the

house, in which event Linda would have

A-25

to move out and get a place of her own.

Also, her mother was constantly reminding

her that she was not paying enough rent.

Her 3-year-old brother was partially crippled

and according to Linda, a little slow and

"({h]e doesn't catch onto things very fast."

Her brother was jealous of her son and

would throw toys at him and try to knock

him down. Linda also testified that during

this period of time she was under considerable

stress at her place of employment and was

required to do the work load of about

three people.

On October 20, 1975, Linda phoned the

Baby Fold. According to Linda she told

the person to whom she talked on the phone

that she wanted someone to talk to. She

was told she could come in that evening.

When she arrived at the Baby Fold she

talked to Martha Price, a social worker.

They discussed Linda's situation for about

an hour and a half, during which time

Linda related all of her problems. Accord-

in to Linda, the social worker then stated

that adoption could be a solution because

it would relieve Linda of some of the

financial obligations. Linda stated that

this was the first time adoption had been

mentioned. She also stated that the

social worker did not mention any alternate

solutions to her problems other than adoption,

such as temporary foster care for the child

or other sources of financial aid.

The testimony of the members of the

Baby Foid staff concerning this first

meeting differs somewhat from that given

by Linda. Margaret Cunningham, the

director of social services at the Baby

A HHH

A-26

Fold, testified that on October 20, 1975,

at about 5 p.m., she received a phone call

from Linda, who said she was interested in

talking to someone about placing her child

for adoption. The director invited her

to come in that evening, which she did.

When she arrived she was referred to Martha

Price, the social worker, for the inter-

view, during which time the social worker

took notes which were subsequently expanded

and have been introduced into evidence.

Marcia Comeford, a student who was doing

field work with the Baby Fold, was also

present during the interview. Both of

these staff members testified, and the ex-

panded notes of the interview support this

testimony, that following a discussion of

Linda's problems Mrs. Price asked, in effect,

if that was the reason she had been thinking

about placing her child for adoption, and

that Linda had stated it was. They also

testified that there was a discussion

concerning other sources of financial

assistance. Linda had explored these

alternatives, such as family help, financial

assistance from her ex-husband, public aid,

and assistance from the township. No

financial aid was available from these

sources. These witnesses also testified

that Linda had stated that she did not

want her son placed in a foster home.

Mrs. Price testified that they also

discussed some help for the 3-year-old

brother through the local school district,

which might help remove the conflict that

existed between the two infants. Several

times during the interview they stated

that Linda was asked if she still con-

sidered adoption as a solution and she

affirmed that she did. Mrs. Price also

A-27

testified that Linda said she felt that she,

as a Single parent, could not provide for

her son what two parents could provide for

a child. The witnesses stated that the

adoption process was explained to her and

that she was informed that if she executed

a surrender it would be final and irrevocable.

She was then asked to fill out a social

history form, after which she was asked

when she would like to bring her son and

execute the surrender form. She stated

that she would need a day or two to get

his clothes together, and it was agreed that

she would return with her son on October

22, two days later. She stated that she

would like her son to have his bed because

it might help him to adiust in a new

environment. She asked Mrs. Price if she

would have someone come and get the bed.

The next day, October 21, Mrs. Price

called Linda and told her that someone

from the Baby Fold could come and get the

bed if she still desired to surrender her

son. Linda suggested that the bed be

picked up the following afternoon, October

22, and stated that she would bring her

son to the Baby Fold the same evening.

Linda and her son arrived at the Baby

Fold about 6 p.m. on October 22. Mrs.

Price asked her how she felt about her

decision to place her son for adoption,

and she indicated that she wanted to con-

tinue with the plan. Marsha Ideus, another

social worker at the Baby Fold, was asked

to join in the interview. She described

to Linda the family with which the Baby

Fold had decided to place the infant.

Linda stated that this made her feel

Amin 9

—

A-28

better. Mrs. Price then filled in the

surrender document, gave a copy of it to

Linda, and read it to her and asked her if

that is what she wanted to do. Linda stated

that it was, that it was her free and

voluntary act, and that she understood that

after signing the document she could not

change her mind. She then signed the surrender

document in the presence of Mrs. Price,

who later signed the certificate of ack-

nowledgment as prescribed by statute (Ill.

Rev. Stat. 1975, ch. 4, par. 9.1-10). Mrs.

Price then helped Linda bring in a box of

the child's clothes from Linda's car.

Linda then gave Mrs. Price the infant's

birth certificate and a baby picture which

she said she wanted the family and her

son to have. She stated she had forgotten

to bring his immunization record, which

she would bring later because it showed

the shots that her son needed. Mrs. Price

asked her to bring a copy of her divorce

decree when she came.

She returned two days later, October

24, with her divorce decree and the immun-

ization record. She and Mrs. Price dis-

cussed the placement of her son and also

discussed her future plans, which in-

cluded further education, better employment,

and moving from her parents’ home, which

she was in the process of doing.

Linda testified that she felt that

after the first visit to the Baby Fold

on October 20, when she filled out the

social history form she had to go through

with the placing of her child for adoption

even though she did not sign the surrender

document until two days later on October

22. Her 18-year-old brother testified

A-29

that, before Linda went to the Baby Fold

on October 22, he asked her why she was

giving up her son and that Linda stated

that she couldn't back out now.

About four days after Linda sur-

rendered her child, she went to the home

of Mr. and Mrs. Ernest Adams, from whom

she often sought parental guidance. She

was crying and stated that she wanted to get

her baby back. Mr. and Mrs. Adams under-

took to secure an attorney to represent her.

Linda testified that she always conferred

with Mr. and Mrs. Adams on all major

decisions; however, she had not consulted

them about placing her child for adoption.

Dr. Arthur Traugott, a psychiatrist,

testified on behalf of Linda. He stated

hypothetically that a young woman faced

with Linda's problems was subject to pressures

which would impair rational judgment.

Inasmuch as she did not consult with Mr.

and Mrs. Adams about placing her child

for adoption, as she had done in all of her

other major decisions, she was not following

her normal decision-making process and he

did not think that her decision to surrender

her child was free and voluntary. He

felt that she was acting under compulsion

and made an impulsive decision to rid her-

self of some of her burdens. He stated

that the fact that the Baby Fold did not

inform Linda of the various alternatives

to adoption deprived her of an opportunity

to make a rational decision.

The basic factual dispute is whether

Linda was seeking help and advice concerning

the care of her son when she made her

:

A-30

initial visit to the Baby Fold on October

20, 1975, or whether she made the initial

contact with the idea of placing her son

for adoption. There is no serious con-

flict in the evidence concerning the other

factual matters.

The trial court, in determining that

the execution of the surrender was the

product of duress, applied the totality of

the circumstances test and found that the

Baby Fold, by failing to make meaningful

attempts to solve Linda's problems by

acting with "unseemly haste" in taking

the surrender, and by accepting the

surrender from someone subject to the

assorted pressures facing Linda, became

a subtle active participant in the chain

of events which denied Linda the exercise

of her free will and deprived her of her

infant son.

Prior to 1953 it was generally held

by the courts of this State that the right

of a natural parent to withdraw a consent

to adoption before the entry of an adoption

decree rested in the sound discretion of

the court. (See 1 Ill. L. & Prac.

Adoption sec. 21 (1953).) In 1953, the

General Assembly added section 3-7 to the

Adoption Act of 1945 as it then existed

(Ill. Rev. Stat. 1953, ch.4, par.3-7),

which, as we stated in In re Simaner,

15 Ill. 2d 568, 577, provided:

"A consent to adoption executed and

witnessed or acknowledged in accordance

with the provisions of Section 3-6 of

this Act shall be irrevocable unless it

shall have been obtained by fraud or

A-31

duress and a court of competent juris-

diction shall so find."

In Simaner, it was contended that the

right to determine whether a consent

could be withdrawn was a judicial

function and that the irrevocable provi-

sion of the statute was invalid. This

court held that "adoption is a question

for the State, in the discharge of its

duty as parens patriae, to regulate

through its legislature as to it seems

wise, hence judicial proceedings are not

essential***." (15 Ill. 2d 568, 579.)

The salutory effect of ths stabilizing

influence of the amendment upon adoption

proceedings was recognized both by this

court in People ex rel. Drury v. Catholic

Home Bureau, 34 Ill. 2d 84 and by the

appellate court in In re Wojtkowiak,

14 Ill. App. 2d 344, and was viewed as

an expression of sound public policy by

the legislature.

In applying the irrevocable consent

provision of the 1953 statute, the courts

of this State adopted a totality of the

circumstances test in determining whether

in fact the consent was executed as a

result of fraud or duress. (See People

ex rel. Drury v. Catholic Home Bureau;

In re Huebert, 132 I11.App. 2d 793; People

ex rel. Buell v. Bell, 20 I11.App.2d 82.)

In 1973, the legislature again amended

the consent provision of the Adoption

Act, requiring that the fraud or duress

necessary to invalidate an otherwise

irrevocable consent must have been “on

the part of the person before whom such

consent, surrender, or other document ***

ee ee Saree

A-32

is acknowledged pursuant to the provisions

of Section 10 of this Act or on the part

of the adopting parents or their agents."

I1l1.Rev.Stat. 1973, ch.4, par. 9.1-1l.

Before considering the substantive

issues involved in this appeal, it is

necessary to decide the question of the |

quantum of proof required, which question

appears never to have been resolved by this

court. It has been established in other

areas of the law that fraud must be proved

by clear and convincing proof. (In re

Thompson, 30 Ill. 2d 560 (attorney dis-

ciplinary proceeding); Horney v. Hayes,

11 Ill. 2d 178 (suit to set aside sale

of beneficial interest in a land trust);

Finney v. White, 389 Ill. 374 (suit to

set aside a deed).) Also, in Hotze v.

Schlanser, 410 111.265, in defense of a

Suit for specific performance of a contract

for a sale of real estate, the defendant

contended that her signature was obtained

by coercion and fraud. This court held

that the evidence concerning the affirmative

defense "must be clear and cogent and must

leave the mind well satisfied that the alle-

gations are true." (410 Ill. 265,269.)

In Bernstein v. Bernstein, 398 Ill. 52, a

suit to set aside deeds alleging fraud,

this court, after stating the general

rule that fraud must be proved by clear

and convincing proof, considered the fact

that the deeds had been duly acknowledged

as required by statute. The court held that

to overcome the certificate of acknow-

ledgment to a deed “clear and satisfactory

proof is required." (398 Ill. 52,55.)

In 32A C.J.S. Evidence sec. 1023, at 664

(1964), in discussing clear and convin-

A-33

cing evidence, the author states:

"Instruments which have established

legal rights and warrant great reliance

may not be contradicted, except by

this degree of proof."

In our case Linda signed a document

entitled "Final and Irrevocable Surrender

for Purposes of Adoption." It recites

that she had read and understood the

document and stated "I am signing it as

my free and voluntary act." It contains

a certificate, as required by the Act,

Signed by Martha Price, a social worker,

stating that Linda acknowledged before

her that she signed it as her free and

voluntary act, and that Mrs. Price had

fully explained to her that by signing

the surrender she irrevocably relinquished

all parental right to the child and that

she stated that such was her intention and

desire. The certificate was duly acknow-

ledged by Mrs. Price before a notary public

in conformance with the requirements of

the statute. The purpose of the formal

statutory requirements in the execution

of this document is to add stability and

certainty to adoption proceedings. Drastic

consequences and far-reaching changes

stem from the execution of such a document,

and substantial rights are based thereon.

The legislature has not only attempted to

add certainty to the adoption proceedings

resulting from the execution of such a

document, but the formal requirements in

its execution have been tailored to insure

that the surrender is the free and voluntary

act of the mother and that she fully under-

stands the importance of it and the con-

He

ce

A-34

sequences of executing it. Sound policy

requires that a person should not be

permitted to easily repudiate this

document which complies with the formal

requirements of the statute. To preserve

the legialative policy a court should not

set aside a consent or a surrender ex-

ecuted in accordance with the Adoption

Act unless the one seeking to invalidate

the document proves by clear and convincing

evidence that its execution was procured

by fraud or duress. In this case we hold

that Linda has not sustained this burden

of proof.

In People ex rel. Drury v. Catholic

Home Bureau, in defining "duress" as that

term is used in the Adoption Act, this

court adopted the definition that had

been applied in cases involving conveyances

and commercial transactions and stated:

" "Duress has been universally defined

as a condition which exists where one is

induced by the unlawful act of another to

make a contract or perform or forego an

act under circumstances which will deprive

him of the exercise of his free will. There

must be such compulsion affecting the mind

as shows that the execution of the contract

or other instrument was not the voluntary

act of the maker. Such compulsion must

be present and operate at the time the

instrument was executed. The burden of

proving such duress is on the person

asserting it. [Citations.]

"Mere annoyance or vexation will not

constitute duress, but there must be such

compulsion affecting the mind as shows

A-35

that the execution of the contract or

other instrument is not the voluntary act

of the maker. [Citations.]'

Mere advice, argument or persuasion

does not constitute duress or undue in-

fluence if the individual acts freely

when he executed the questioned documents

though the same would not have been

executed except for the advice, argument

Or persuasion. [Citations.]"(34 Ill. 2d

84,92-93.)

In restatement of Contracts section 492

(1932) duress is defined as:

"(a) any wrongful act of one person

that compels a manifestation of apparent

assent by another to a transaction with-

out his volition, or

(b) any wrongful threat of one person

by words or other conduct that induces

another to enter into a transaction under

the influence of such fear as precludes him

from exercising free will and judgment,

if the threat was intended or should rea-

sonably have been expected to operate as

an inducement."

The Restatement does not use the term

"unlawful act" that this court used in

Drury, but instead uses "wrongful" as the

descriptive adjective. This appears to

be the meaning generally applied to "“un-

lawful" in modern cases involving duress.

(See 25 Am.Jur. 2d Duress and Undue

Influence sec.3 (1966) .) Thus, acts,

to be avoided, must have been induced

by a wrongful act or wrongful threats.

In Kaplan v. Kaplan, 25 I1l.2d 181, 186,

Raitt cn “0

somata aaaataaia amas ania iii

A-36

this court stated: "Any wrongful threat

which actually puts the victim in such

fear as to act against his will constitutes

duress***." The court then held that a

wife's threat to publicize pictures taken

of her husband and another woman in the

other woman's apartment, by suing for

alienation of affection, did not constitute

duress in support of her husband's suit

to set aside a property settlement. The

court held that it was not duress for the

wife to threaten to institute a suit to

enforce what she believed to be her legal

right. The court also held that the threat

to publicize the pictures by other means

calculated to embarrass her husband also

did not constitute duress. In our case

we find nothing in the entire record that

would constitute duress under the accepted

definition. Although Linda's personal life

was subject to many unsettling influences,

such as her unhappy marriage, her divorce,

her quarreling mother and father, the

conflict between her 3-year-old brother

and her son, the pressures of her work, her

financial problems and her health, none

of these factors constituted a threat of

a wrongful act. The only conduct re-

sembling a threat in this picture consists

of the arguments between Linda and her

mother, and the mother's statement that

Linda would have to move out because she

and Linda's father were going to get a

divorce and that they were going to sell

the house. Even if this can be construed

to be a threat, it was certainly not

wrongful. Linda was of legal age and was

employed, and the parents were under no

obligation to support her.

A-37

As to the Baby Fold, we find nothing

in the record that constitutes a threat

of any kind stemming from the conduct of

the members of its staff, and there was no

wrongful act on its part within the meaning

of the term as used in Restatement of

Contracts sections 492(a) and 494. The

wrongful act there described induces assent

to a supposed transaction different from

that to which the apparent assent is

manifested, or the manifestation of assent

induced by the wrongful act is in effect

the physical act of another. Section 494,

Comment a.

In defining fraud, this court, in

People ex rel, Chicago Bar Association

v. Gilmore, 345 Ill. 2d 28, 46, stated:

"Fraud includes anything calculated

to deceive, whether it be a single act or

combination of circumstances, whether the

suppression of truth of the suggestion

of what is false, whether it be by direct

falsehood or by innuendo, by speech or

by silence, by word of mouth or by look

or gesture."

Although the trial court made no

mention of fraud in its order and appears

to have based its decision on the presence

of duress in the totality of the surrounding

circumstances, in this court Linda complains

that the appellate court failed to consider

the existence of fraud. She urges that

the acceptance of the surrender from a

person subject to the assorted pressures

that faced her, the totality of the

circumstances that prevented her from

exercising her free will, the “acting with

unseemly haste in taking the surrender,"

A-38

the presentation of adoption as the only

viable solution to her problems, and the

failure to make a meaningful attempt to

solve her problems, all combined to bring

the conduct of the Baby Fold within the

Gilmore definition of fraud.

We view this contention as a strained

effort to bring the facts of this case

within the definition of Gilmore. In

In re Adoption of Hoffman, 61 I1l.2d 569,

578, this court, after quoting the definition

from Gilmore, added "‘the concept of fraud

“implies a wrongful intent-an act calculated

to deceive." (Exline v. Weldon (1974), 57

Ill. 2d 105, 110.) We have also observed

that ‘A misrepresentation in order to con-

stitute a fraud must consist of a state-

ment of material fact, false and known to

be so by the party making it, made to

induce the other party to act, and, in

acting, the other party must rely on the

truth of the statement." Roth v. Roth

(1976), 45 113.26 19,23."

Not even Linda suggests that anything

the Baby Fold staff members did, or failed

to do, involved a wrongful intent or was

calculated to deceive, or that any action

or inaction by the Baby Fold staff was for

the purpose of inducing her to surrender

the child. The allegation of fraud is

so patently not supported by clear and

convincing proof that we consider it un-

necessary to further review the various

conversations between Linda and the staff

members.

We, as well as the appellate court,

have applied the totality of the circum-

A-39

stances test to this case. That is, we

have considered all of the facts and

circumstances surrounding the execution

of the surrender document to ascertain if

any fraud or duress induced its execution.

This is the procedure urged by Linda and

is in keeping with the practice followed

in applying the Act prior to the 1973

amendment. However, we can only view

the 1973 amendment, which required that

the fraud or duress be “on the part of the

person before whom such consent, surrender,

or other document *** is acknowledged***

or on the part of the adopting parents or

their agents” (I11.Rev.Stat.1973, ch.4,

par.9.1-1l), as a repudiation by the

legislature of the totality approach. It

clearly is an attempt on the part of the

legislature to add further stability and

certainty to adoption proceedings. Linda

urges that such a limitation unconstitu-

tionally deprives a natural parent of

due process and equal protection of the

law, arguing that it is immaterial from

what source the influence or duress stems.

We do not see that a violation of

constitutional rights is involved in this

case. Adoption proceedings were unknown to

the common law and are solely the creation

of statutory enactment. (1 I11.L.& Prac.

Adoption sec. 3 (1953).) The legal status

of adoption does not exist independently

of statutory authority. It is therefore

incumbent upon the legislature to prescribe

the conditions and procedures that must

be followed in creating the relationship

of parent and child between persons not

so related by nature. 2 Am.Jur.2d Adoption

sec.2 (1962).

Ce eee -

en ee ae ae ee ee

‘eae pei

A-40

Also, it is well recognized that the

State, as parens patriae, is authorized

to legislate for the protection of the

children within its jurisdiction. (42

Am.J) r.2d Infants secs. 14, 15 (1969).)

This court long ago acknowledged the right

and duty of the State to legislate for the

protection and welfare of its infants when

it stated, in County of McLean v. Humphreys,

104 111.378,383:

"It would be difficult to conceive of

a Class of persons that more imperatively

demands that interposition of the State in

their behalf than those we have just enum-

erated, and for whose benefit the act

under consideration was adopted, and it

would be a sad commentary on our State

government, if it is true, as is contended,

there is no constitutional power in the

legislature to provide, by suitable

legislation, for their education, control

and protection. It is the unquestioned

right and imperative duty of every enlightened

government, in its character of parens

patriae, to protect and provide for the

comfort and well-being of such of its

citizens as, by reason of infancy, defective

understanding, or other misfortune or

infirmity, are unable to take care of

themselves. The performance of this duty

is justly regarded as one of the most

important of governmental functions, and

all constitutional limitations must be so

understood and construed as not to inter-

fere with its proper and legitimate exercise."

It is apparent, then, that the case we

are now considering involved two areas

(adoption and the welfare of children)

A-41

which are peculiarly within the province

of legislative action. Balanced against

this area of primary State concern is the

right of a parent to the custody of her

child, which has been recognized as a

right encompassed within the protection

of the fourteenth amendment which “may

not be interfered with, under the guise of

protecting the public interest, by legis-

lative action which is arbitrary or

without reasonable relation to some purpose

within the competency of the State to effect."

Meyer v. Nebraska 262 U.S.390, 399-400,

67 L.Ed. 1042, 1045, 43 S.Ct. 625,627.

It is apparent that the legislative

restriction on the revocability of consent

imposed by the 1973 amendment is reasonably

related to the State's authority to legislate

with regard to the adoption of children

and for their general welfare. This court,

in People ex rel. Drury, noted the

difficulties in the pre-1953 practice

when a mother had a right to revoke her

consent to adoption at any time before

the entry of an adoption decree, subject

to the discretion of the trial judge.

However, the 1953 amendment did not

fulfill the legislature's hope of removing

the uncertainty surrounding the effectiveness

of a consent or a surrender executed by the

parent. Through judicial construction

which permitted consideration of all facts

and circumstances surrounding the execution

of the document, a hearing on the issue

of revocation following the 1953 amendment

closely resembled a similar hearing prior

to that amendment, and similar evidence

was considered in both hearings. In

ee ee

Reiser icta nee re mee

A-42

effect, under this construction of the 1953

amendment, revocation of consent or surrender

would be authorized on pretty much the same

evidence as in pre-amendment cases. Thus,

by the 1973 amendment, the legislature

has again attempted to achieve the stability

of adoption and the welfare of the adopted

children which this court considered within

the competence of the State to effect.

To achieve this purpose the legislature

has adopted the requirements that have long

been applied to the remedy of rescission

in other areas of the law. The general rule

in contract cases holds that the validity

of the contract is not affected by the

fact that its execution was induced by duress

practiced by a third party, where the duress

was not committed with the knowledge or con-

sent of the obligee. This general rule

has been applied to suits to set aside deeds,

trust deeds, mortgages, certificates of

acknowledgment, compromises and settlements

of claims, and assignments, as well as in

Suits to annul marriages or avoid the

obligations of a note or a bond. (See

Annot.,4A.L.R. 864 (1919); Annot., 62 A.L.R.

1477 (1929); see also Marston v. Brittenhan,

76 I11.611,617; Ladew v. Paine, 82 TI11.221;

Compton v. Bunker Hill Bank, 96 111.301;

Schwartz v. Schwartz, 29 I1l.App.516; Short

v. Short,265 I1l1-App.133; Smith v. Saum,324

tll. App. TApp. 299. ) This general rule is also

found in the Restatement. Restatement of

Contracts secs. 492-99(1932).

Linda, in opposing the application of

the general rule, posits a hypothetical

situation wherein the natural father of

the child threatens to kill both the child

A-43

and the mother unless she surrenders the

child for adoption. Linda argues that under

the general rule a consent executed under

these circumstances would not be revocable.

We note initially that no such extreme

factual situation is present in this case

and we need not decide the validity of

a consent executed under these conditions.

We not, however, that the general rule

has been applied in other areas of the

law for many years. In some States it has

been applied to marriages entered into by

the husband under threats of death or

bodily harm from third persons. (See

Annot.,16 A.L.R.2d 1430 (1951).) The

courts, in the general application of this

rule, have obviously been cognizant of

the rights of individuals and afforded them

such protection as is required to avoid

constitutional violations. We also

note that the Restatement of Contracts

section 494 (1932) deals with certain

extreme situations wherein duress from

whatever source renders the transaction

void. We are confident that a court faced

with the extreme situation hypothesized,

in the exercise of its equity authority,

will be able to protect the interests of |

all parties.

Ordinarily only drastic and extremely

unusual circumstances will induce a natural

mother to surrender her child. We recognize

the circumstances Linda faced as being

particularly vexing, and she was undoubtedly

induced by the absolute hopelessnes of

the picture to surrender her child. She,

as do many mothers faced with similar

conditions, came to accept adoption as the

only solution. At another place or time

ee

a cant st ae Nc eh lth La anette

A-44

these same mothers might reject such a

solution as being out of the question.

In most circumstances following the

surrender, the mothers will have second .

thoughts as to the wisdom of their decisions.

Nonetheless, so many significant rights

and events depend upon the certainty of the

surrender that the legislature, in an expres-

sion of sound public policy, in order to

add stability to adoption proceedings and

to further the welfare of the children

involved, has determined that the surrender

should only be revocable if"it shall have

been obtained by fraud or duress on the

part of the adopting parents or their agents

(I11.Rev.Stat. 1975, ch.4, par.9.1-11).

This is peculiarly within the competence of

that body, and the judiciary should not

attempt to alter or abrogate that clearly

expressed legislative determination.

t

The judgment of the appellate court,

which reversed the circuit court of McLean

County, is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD took no part in the

consideration or decision of this case.

CLARK and MORAN, JJ., dissenting.

A-45

APPENDIX D

STATUTORY AUTHORITY

Chapter 4, Illinois Revised Statutes,

Section 9.1-10C.

The form of surrender to any agency

given by a parent of a born child who is

to be subsequently placed for adoption

shall be substantially as follows and

shall contain such other facts and state-

ments as the particular agency shall

require.

FINAL AND IRREVOCABLE SURRENDER

FOR PURPOSES OF ADOPTION

oa «eeeen (relationship, e. g.,

mother, father, relative guardian) of

oe enee , a ..male child, state:

That I reside at ......, County of

secese » SRG State GE cccces

That I am of the age of ..... - years.

That I do hereby surrender and en-

trust the entire custody and control of

such child to the ...... (the "Agency"),

a (public) (licensed) child welfare

agency with its principal office in the

City GE cecces , County of ...... and

State of ......, for the purpose of en-

abling it to care for and supervise the

care of such child, to place such child

for adoption and to consent to the legal

adoption of such child.

That I hereby grant to said Agency

full power and authority to place such

child with any person or persons it may

Te ee ae ae ee ee ee oe

bt aaties

AION cl ests atin ER Se

A-46

in its sole discretion select to become

the adopting parent or parents and to

consent to the legal adoption of such

child by such person or persons; and to

take any and all measures which, in the

judgment of said Agency, may be for the

best interest of such child, including

authorizing medical, surgical and dental

care and treatment including inocultion

and anaesthesia for such child.

That I wish to and understand that

by signing this surrender I do irrevoca-

bly and permanently give up all custody

and other parental rights I have to

such child.

That I understand I cannot under any

circumstances, after signing this sur-

render, change my mind and revoke or

cancel this surrender or obtain or re-

cover custody or any rights over such

child.

That I have read and understand the

above and I am signing it as my free and

voluntary act.

Dated this ...... Gay Of ...cc+, 1L9..~

Chapter 4, Illinois Revised Statutes,

Section 9.1-ll.

A consent to adoption by a parent,

including a minor, executed and acknow-

ledged in accordance with the provisions

of Section 8 of this Act, or a surrender

A-47

of a child by a parent, including a minor,

to an agency for the purpose of adoption

shall be irrevocable unless it shall have

been obtained by fraud or duress on the

part of the person before whom such con-

sent, surrender, or other document equiva-

lent to a surrender is acknowledged pur-

suant to the provisions of Section 10 of

this Act or on the part of the adopting

parents of their agents and a court of

competent jurisdiction shall so find. The

consent or surrender of a parent who is a

minor shall not be voidable because of

such minority.

i

iia i

A-48

APPENDIX E

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution--Amendment V

No person shall be held to answer for

a capital or otherwise infamous crime, un-

less on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be twice

put in jeopardy of life or limb; nor

shall be compelled in any criminal case

to be a witness against himself, nor be

deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public use,

without just compensation.

United States Constitution--Amendment XIV

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and of the State where-

in they reside. No State shall make or

enforce any law which shall abridge the

priveleges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

A-49

APPENDIX F

No. 49046

IN THE

SUPREME COURT OF ILLINOIS

LINDA FAY REGENOLD,

Petitioner-Appellant,

vs

RICHARD RILEY and PRISCILLA

RILEY and THE BABY FOLD, IiNC.,

Respondents-Appellees.

APPEAL FROM THE

APPELLATE COURT OF

ILLINOIS, FOURTH DISTRICT

THERE HEARD ON FROM

THE CIRCUIT COURT OF

MC LEAN COUNTY, ILLINOIS

HONORABLE JAMES A. KNECHT

PRESIDING

eee ee eee ee ee ee ee

BR bt hie ime, cae

NOTICE OF APPEAL

TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Linda

Fay Regenold, the Appellant above-named,

hereby appeals to the Supreme Court of

the United States from the final decree

of the Supreme Court of Illinoia affirming

the opinion of the Appellate Court of

the Fourth District of Illinois, entered

in this action on September 20, 1977.

This appeal is taken purusant to

Title 28, United States Code, Section

1257, subparagraph (2).

Dated: February 23, 1978.

LINDA FAY REGENOLD,

Petitioner-Appellant

By:

Craig Homer Grennwood,

Her Attorney

Attorney at Law

206 Albert

Bloomington, Ill. 61701

Phone: 309-829-5303