dissenting:
I respectfully dissent.
Siglinde Hale, an 18-year-old German alien, came to Granite City, Illinois, with her 11-month-old son on August 5, 1974. Her husband, Stephen Hale, Jr., was discharged from the service in Germany, and arrived at his parents’ trailer two months later. Within two weeks after Stephen Hale, Jr.’s arrival, the question of adoption was discussed by the parents of the child and the grandparents. The mother of the child denies that she first mentioned the question of adoption while the father and grandparents dispute this.
Whether or not the child had a disability concerning his foot becomes a very important factor. There was some question at the consent hearing among the witnesses whether or not the treatment of the child’s foot could be included under an insurance policy which covered the grandparents, if they legally adopted the grandchild. The transcript at the consent hearing is very revealing as to the condition of the child’s foot. The attorney employed by the parents and the grandparents told the court at this hearing that: “This boy’s got a crippled foot * * * foot * * * feet.” The mother indicated that this wasn’t true and then the father stated: “His bones * * * his heals are misplaced and he is going to go to a doctor.” These answers are in direct contradiction to the testimony the natural father gave at the hearing to revoke the consent.
Judge Johnson related that at the time of the consent hearing there was some discussion by the natural parents as to their child’s physical condition and the purpose of signing the consent. He also stated that Siglinde Hale spoke with a German accent and seemed to have difficulty with the English language. He concluded that Siglinde Hale looked to her husband for advice and counsel. In rebuttal, Judge Johnson testified that the natural father, at the consent hearing, concurred with the fact that the child had some problem with his foot, and also that the purpose of the proposed adoption was that the expenses of treating the foot would be covered by the adopting parents’ insurance policy. Judge Johnson’s impression was that when he told Siglinde that it was not necessarily so that a child could be “readopted” she became upset. Her husband then consoled her about the judge’s statement and the substance of the conversation was that everything would be alright — “something would transpire later on.”
I concur with the definition of fraud as expressed in People ex rel. Chicago Bar Association v. Gilmore, 345 Ill. 28, 46, 177 N.E. 710, and also the Roth case as cited in the majority opinion. This instant case in my opinion comes within the definition of fraud as expressed above. Siglinde Hale was in this country approximately 125 days when she appeared in court to sign the consent for adoption, and also an entry of appearance. The explanation as to the meaning of the entry of appearance to Siglinde Hale by the judge should not be overlooked. A complete understanding of this step in the legal proceeding to an average person bom and educated in this country and not having been exposed to any legal proceedings whatsoever would be inconceivable. I feel sure this person would ask one or two questions concerning the entry of appearance unless a misrepresentation had been made in advance, or the person was under duress.
Within two weeks after Stephen Hale, Jr., joined his family, he advised his wife to consult an attorney about the proposed adoption. This problem was discussed frequently among the natural parents and the grandparents until the consent was signed. Of all the witnesses who testified for the adoptive parents, there wasn’t one who spoke or understood the German language, but most of them indicated Siglinde understood the English language. There wasn’t any attempt on the part of the Hale family to fully acquaint Siglinde with the total effect of her actions by an impartial and independent counselor or adviser. We are not confronted with a young mother in her own country, speaking her own language and in contact with her own family. If this were the case, I could easily agree with the majority.
I believe that the lower court’s finding that Siglinde Hale had failed to meet her burden of proof on her allegations of fraud and duress was error, and the lower court’s finding should be reversed.