dissenting:
I dissent. The burden of establishing duress is upon the person asserting it. (People ex rel. Drury v. Catholic Home Bureau, 34 Ill.2d 84, 92, 213 N.E.2d 507.) The issue is to be resolved by the trier of fact, and its judgment will be affirmed on review unless contrary to the manifest weight of the evidence. (Drury, at 94.) If the judgment of the trial court, on the issue of duress in the obtaining of a consent to adoption, is against the manifest weight of the evidence a reviewing court will reverse. (In re Huebert, 132 Ill.App.2d 793, 270 N.E.2d 464.) The question before the trial judge was, in my view, a question of fact. He had before him sworn' testimony of the petitioner, Vicki Sims, given at the adjudicatory hearing that her consent was voluntarily given as was her testimony. She also testified on that occasion that she realized that her consent meant a relinguishment of her rights to the child forever and that she felt it to be in the best interest of the child to consent to the adoption. The judge was also aware that the personnel of the Department of Child and Family Services refused to permit her to sign the consent on the date of her first request, and did not do so until she had discussed the matter on three subsequent occasions. In addition they had, on one or two occasions, discussed the matter with petitioner after the consent was signed and before the hearing. Almost 3 weeks elapsed between the filing of tire petition and the adjudicatory and dispositional hearings which were had on September 25, 1973. It was not until December 4, 1973, that petitioner indicated that she wanted the child returned to her, and her petition to vacate the order of September 25 was filed December 10, 1973.
In short, the trial judge was confronted with an issue of fact, and his judgment is, in my view, clearly not against the manifest weight of the evidence.
How that which was a question of fact in the trial court became a question of law in this court is a matter which escapes me. I would affirm the judgment above.