In re B. J. K.

McMILLIAN, Judge,

dissenting.

I respectfully dissent because I believe the trial court’s denial of appellants’ petition for the transfer of custody and adoption is against the weight of the evidence.

The major considerations identified by the majority as reasons for affirming the decision of the trial court are: the relationship of appellants with the twin’s mother, *385the children’s confusion as to whom their parents are, and the age of appellants. While these circumstances mitigate somewhat against appellants, I do not believe they outweigh those many characteristics which render appellants well-qualified to adopt the twins.

The first concern expressed by the majority as a reason to deny appellants’ petition was the possibility of a confrontation between their daughter, S_ and the twins. While such a confrontation is always possible, it does not seem equitable to deny appellants’ petition on this basis. Appellants do not see their daughter regularly. Since S_was initially married, she has visited appellants for a weekend at the longest. Since she moved to Arkansas where she presently resides, S_ has seen appellants only when she was in town for judicial proceedings. At these times appellants made special arrangements to meet S_ so as to avoid a meeting between her and the twins. There is no reason to believe appellants would not continue this conscientious practice. Furthermore, it seems inequitable to assume that the risk that S_will see the children again is unique to appellants. If S_is determined to maintain contact with the children, it is not unlikely that she will attempt to do so, wherever the children are placed for adoption.

The majority also expressed concern that because her parental rights had been terminated involuntarily, S_may try to set aside the termination and seek custody of the children, a process which would be facilitated if the children are placed with her parents. This speculation ignores, however, the evidence before the court of appellants’ concern for the children as compared with their fairly distant relationship with S-It also ignores their intention, as demonstrated by past behavior, to prevent S- from infringing upon the stable home they will provide for the twins.

The second consideration the majority believed determinative was the twin’s confusion, as interpreted by the social workers, as to whom their parents were. The majority argues that it would only compound their confusion to legally transform the petitioners’ role from that of grandparents to parents. I cannot agree that this is a reason to deny appellants’ petition. First, it is not equitable to place the full burden of the children’s confusion on appellants. Any family which adopts the twins would have to deal with this problem. Secondly, placing the children with yet another family, where they no longer see appellants who have visited them, kept them for weekends, and sent them presents and correspondence for the past two and one-half years, practically all of their five year-old memory, is just as confusing.

The last major consideration which the majority identified as supporting the trial court’s decision was the age of the petitioners. The majority reasons that the trial court’s conclusion could well have been influenced by the effect of the petitioners’ ages or their ability to provide the best home for the twins in “the remaining years of their infancy.” While this would be a problem for most middle-aged couples, the record reveals that the K_s are not a “normal” couple. They fully intend to encourage the twins to go to college, just as they encouraged their son, and they will receive pension payments of sufficient size to raise the children through teenage and college years. Appellants have just had medical examinations and are in excellent physical condition. As stated by the majority, they lead active lives. And, in the unlikely event that something happens to the appellants, they have already discussed arrangements with their son and his wife, who have agreed to care for the children in such an event.

While I agree with the majority that all of the above factors detract from the petitioners’ qualifications as parents, I disagree with the majority that they outweigh the many other factors, as discussed below, which show the petitioners to be excellent candidates for adoptive parents.

In addition to the evidence about the petitioners’ health and lifestyle discussed above and in the majority opinion, the record also discloses the following concerning the petitioners’ relationship with and concern for the children. When the children were first placed in a foster home, the *386petitioners did not seek custody because they were not aware that they could do so until parental rights were terminated and because their mother suggested that the children not be placed with appellants because she (the mother) was capable of physically abusing them should she encounter them. Within one week of the termination of parental rights, however, appellants filed their petition for custody. For the two and one-half years the children were with the foster family appellants brought the twins to their home frequently for weekends and bought them numerous presents such as new bicycles, clothes and toys. At every holiday the petitioners sent the children holiday cards with money inside to take their foster family out to dinner. At the hearing in December, 1977, appellants had already purchased Christmas presents for the children, all the while not knowing the outcome of the lawsuit. Perhaps the ultimate indication of the petitioners’ concern is the institution of this suit with its concomitant legal fees and anguish, and their willingness to severely alter their lifestyle to adopt these children.

The petitioners are well-qualified financially to care for the children. They own a three-bedroom home which has a backyard in which the children could play. They have a combined annual income of approximately $28,000 with full medical coverage for the entire family. While Mrs. K-presently works, she is scheduled for retirement within ten months. Because the children begin school this fall, they would need to be cared for by a baby-sitter only forty-five minutes per day, before Mrs. K-gets home from work. Mrs. K-has already advertised in the newspaper for a sitter and has received six applications. A social worker for the State of Illinois investigated this case, paying particular attention to the concerns expressed by the Missouri Division of Family Services, i. e., appellants’ age and the potential interference of the natural mother. After her investigation, the social worker gave a very favorable recommendation for appellants to adopt their grandchildren.

Admittedly, there are some countervailing factors to be considered in determining whether the interest of the children is best served by placing them with appellants but I believe the trial court and the majority have overemphasized these factors and ignored the more important, albeit intangible, factors of love and concern which appellants have aptly demonstrated for the children. By the majority’s decision, appellants not only lose the opportunity to adopt, but also the chance of ever seeing their grandchildren again. Moreover, there is no evidence before the court as to the qualifications of the alternative adoptive family. To presume without any knowledge whatsoever that the twins will be better cared for by this anonymous family rather than by their grandparents who undoubtedly cherish them, is unfair to appellants, and more importantly, unfair to the children.

For the foregoing reasons, I would reverse and remand and instruct the trial court to enter an order consonant with this opinion.