Parks v. McWhorter

Citations: 144 Ill. App. 3d 270; 494 N.E.2d 234; 98 Ill. Dec. 307; 1986 Ill. App. LEXIS 2343Docket: No. 5—84—0090

Court: Appellate Court of Illinois; June 10, 1986; Illinois; State Appellate Court

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Mary Ann McWhorter appeals the trial court's denial of her motion to set aside an interim adoption order that terminated her parental rights to her son, referred to as Baby Glenn. Both she and her husband, Glenn Farris McWhorter, Jr., had previously consented to the adoption in Duval County, Florida. McWhorter later attempted to revoke her consent, arguing that the consent was invalid due to improper execution under Florida and Illinois law, as well as being obtained through fraud and duress. She also claimed the trial court wrongly determined her competence to understand her actions and that, as an indigent parent, she was entitled to a free transcript for her appeal. 

The couple married on February 4, 1980, and had three children, including Baby Glenn, born on October 28, 1982. Throughout their marriage, they faced financial disputes and instances of domestic violence, leading to multiple separations during which Mrs. McWhorter stayed with her parents in Illinois. While pregnant with Baby Glenn, she considered adoption as a means to escape her husband’s threats and control. In early 1983, she approached Jackie Filer about the possibility of adoption. Filer informed her about the implications of adoption and suggested alternatives, but after a short visit from McWhorter's parents, who encouraged her to return to Illinois, she chose to remain in Florida. In April 1983, Filer informed McWhorter that her family could no longer adopt the baby but referred her to another couple interested in the adoption. The appeal was ultimately affirmed.

Arrangements were made for the adoption of Baby Glenn by the Parkses following discussions between the Parkses and the McWhorters. Initially opposed to adoption, Mr. McWhorter later agreed it was in the child’s best interest. The Parkses engaged attorney Krystal Tison in Illinois, while the McWhorters sought legal counsel in Jacksonville, Florida. After being declined representation, they worked with attorney Jack Harris to prepare adoption consent documents. On May 6, 1983, the McWhorters signed the adoption papers in Harris' office, with witnesses and notarization. They also signed a disclaimer indicating their Illinois residency and adherence to Illinois law for the adoption.

Mary Ann McWhorter later claimed that Harris informed her she had "30 days to change her mind," a statement he and her husband denied. Discrepancies arose in her testimony regarding the presence of witnesses during the signing. After informing her mother about the adoption, who objected, Mary Ann moved with her other children to her parents' home in Illinois. The plaintiffs filed for adoption in Williamson County, and on May 25, 1983, the court confirmed the McWhorters' consent and terminated their parental rights, granting temporary custody to the Parkses and appointing a guardian ad litem.

On June 24, 1983, Mary Ann filed a motion to set aside the interim adoption order, later seeking to proceed as a poor person with court-appointed counsel. The court denied her motion on January 18, 1984, concluding she understood the significance of her consent and found no evidence of duress or fraud. Her claim of believing the consent was revocable was also dismissed. An interlocutory appeal was filed but dismissed for lack of jurisdiction, though the appellate court allowed a waiver of the filing fee.

On appeal, the supreme court vacated the dismissal order and remanded the case for a merits hearing. Mary Ann McWhorter argues that her consent for adoption was improperly executed due to one witness being an attorney retained by a party involved and the other witness and notary being the attorney's employees. She also claims there was insufficient evidence that she and her husband signed in the presence of the required witnesses and notary, as mandated by Illinois and Florida law.

Illinois law states that a consent executed outside the state is valid if it adheres to either Illinois law or the law of the location where executed. Florida law requires that consent be signed after the child's birth in the presence of two witnesses and acknowledged before a notary public, with no restrictions on who can witness or notarize the consent. While Illinois and Florida courts have disapproved of attorneys witnessing affidavits due to potential bias, this practice has not been deemed a basis for invalidating a document or causing reversible error.

In this case, attorney Jack Harris was not involved in the adoption proceeding in a manner that would introduce bias. He was contacted solely for preparing the consent forms and was not the representative of the Parkses in court, nor did he participate in the adoption beyond that role. His payment for services did not establish an attorney-client relationship, as he did not provide counsel or actively engage in the proceedings. Harris indicated that his role was limited to facilitating the signing of the documents, and he had no further involvement in the adoption process.

The case at hand is distinguishable from cited precedents where attorneys were actively representing a party. Attorney Harris's involvement did not create bias, warranting his qualification as a witness. His witnessing of adoption consents was proper, as were the actions of his employees who notarized them. The defendant's argument that the consents weren't executed in the presence of witnesses is unsupported; testimonies from Harris, witness Joanne Wells, and notary Sharon Eve Bloodworth confirmed all were present, while the defendant's witnesses provided inconclusive statements. Consequently, the trial court validated the adoption consents under Florida law. 

The defendant's claim of duress or fraud in the consent process lacks merit. Although Mary Ann McWhorter faced stress from marital issues, she had alternatives to adoption and initiated the process herself, successfully persuading her husband. Her parents' presence in Florida did not influence her decision, and she did not indicate any reservations at the time of signing the consent. The court highlighted her lack of outward objection, affirming that the consent was freely and voluntarily given, aligning with Florida statutes on adoption consent validity.

The trial court's determination that there was insufficient evidence of duress to invalidate the defendant’s consent is upheld, as is the finding that the consent was not tainted by fraud. The misrepresentation in the disclaimer regarding the McWhorters' residence was not deemed a material misrepresentation that would invalidate consent. For fraud to be established, a false statement of material fact must be made intentionally to induce reliance, which was not demonstrated in this case. Additionally, even if attorney Harris had stated that the defendant had 30 days to revoke her consent, such a statement occurred after the consents were signed and therefore did not affect her decision to sign. Testimony indicated that Harris and the defendant’s husband did not recall such a statement, and the defendant did not attempt to revoke her consent within the alleged time frame. The court also affirmed that Mary Ann McWhorter was competent to understand the implications of her actions when she signed the consent. A psychologist's testimony revealed inconclusive results regarding her emotional state but indicated normal intellectual functioning without any serious disturbances. The presumption of competence was upheld in the absence of contrary evidence. Lastly, the defendant's request for a free transcript on appeal was denied, with no legal basis found for altering this decision. The overall ruling of the circuit court of Williamson County in favor of the plaintiffs is affirmed.