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 consummation of the surrender with extraordinary speed. There was an initial interview 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 reasonable 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 20.
This is in marked contrast to the facts in the opinions of the Supreme Court which have been cited. In People ex rel. Drury v. Catholic Home Bureau (1966), 34 Ill. 2d 84, 213 N.E.2d 507 (habeas corpus), 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 (Civil Practive Act, section 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 explained by the judge before whom the consents were executed.
Petitioner argues that the representatives of respondent who interviewed petitioner on October 20, incorrectly interpreted the latter’s intentions at such interview. We have noted the court’s finding in such regard. Petitioner further points out that such representatives on that date incorrectiy interpreted 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 this 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. Consideration 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 respondent that the mother was told on several occasions that the surrender of the child was irrevocable and that the surrender document was read to petitioner before she signed it. Section 13 of “An Act in relation to the adoption of persons” * ”” (Ill. Rev. Stat. 1973, ch. 4, par. 9.1 — 13(A)(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 respondent’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 personal problems, nor does there appear to have been any further explanation of the meaning 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 proceeding.
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.”
Upon such determination it was unnecessary 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. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, the court stated that parental rights are essential and basic rights entitled 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. 645,651,31 L. Ed. 2d 551, 558.)
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 in a 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 plea to the end that it can be shown that the individual so acting has full understanding 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 and 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 fundamentally concepts of contract or tort. As stated in Stanley:
“It 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, 651, 31 L. Ed. 2d 551, 558.
While the courts have stated that the statute expresses desirable objectives, nonetheless:
“The establishment of prompt efficacious 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 praiseworthy government officials” ” ”."
Here, the trial court found that the surrender at issue was not an understanding 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.