A Chicago Tribune article in January 2007 reported that a Chinese couple who lost custody of their baby daughter after putting her into what they believed was temporary foster care, won their 7-year legal battle to get her back. This was by a decision of the Tennessee Supreme Court. The newspaper report is reminiscent of the much-publicized 1994 adoption case known as "Baby Richard" which went to the Illinois Supreme Court. In re Petition of John Doe et al etc, 159 Ill.2d 347, 202 Ill.Dec. 535, 638 N.E.2d 181 (1994.)

The Chinese baby case brought to mind a case I tried in the old McHenry County courthouse, in Woodstock, more than 30 years ago.

In the Illinois Supreme Court Baby Richard case the trial court found it would be contrary to the best interest of the then 29-month-old Richard to order the Does, Richard's "adoptive parents" who had raised him since birth, to return Richard to his biological father. The 1st District Appellate Court affirmed the judgment of adoption. Despite the strong public sentiment to the contrary, a unanimous Illinois Supreme Court reversed the lower court's order and gave the child to the birth father.

The parents in Baby Richard were not married. Days after the child was born the father learned the child was alive but that the mother had given the child up for adoption. The father contested the adoption. The trial court found the father had not shown a reasonable degree of interest in the child. The Supreme Court ruled this finding was not supported by the evidence. The Supreme Court opinion by Justice James D. Heiple stated the appellate court missed the threshold issue by dwelling on the best interest of the child, but because the father's parental rights were improperly terminated, it was not proper to address the best interest issue.

In the recent Tennessee case, In re Adoption of A.M.H., No.W2004-01225-SC-R11-PT (Jan. 23), the Supreme Court of Tennessee, like the Illinois Supreme Court, ruled in favor of the biological parents despite the termination of the birth parents' parental rights and despite the child being in the custody of guardians for seven years.

In the Tennessee case the birth parents were natives of China, residing in the United States with the father studying in the United States. The birth parents agreed to the American couple taking custody of their child because they did not have the financial means to care for their child. They agreed on the basis that custody with the American couple would be until the Chinese couple was able to regain financial stability. In court the American couple argued the child would be harmed by a change of custody because the child had lived with the Bakers for seven years, but the Tennessee Supreme Court ruled that this type of harm does not constitute the substantial harm required to prevent the parents from regaining custody.

In both the Tennessee case and the Illinois case, the adoptive parents based their claim to the child on what would be in the best interest of the child.

In Illinois, as in most states, adoption is a two-step proceeding. First, the adoption petitioners must present grounds for adoption, which are either that the parents have consented to the adoption, or that there are fault finding grounds for adoption. In the second stage the adoption petitioners must show that placing the child with the petitioners is in the best interest of the child.

In both the Tennessee and the Illinois cases the adoption petitioners argued the best interest of the child, but both the high court of Tennessee and the high court of Illinois ruled the grounds for adoption must be determined before the court can inquire into the best interest of the child and if no grounds for adoption exist, the best interest of the child is not relevant.

Looking at my closed file index I know the approximate time of an adoption trial of which I was reminded. The old McHenry County courthouse, on the Woodstock Square, was closed in 1972 in favor of a new courthouse on the outskirts of Woodstock. The birth mother retained me to re-obtain custody of her 10-year-old child. She told me that a short time after the birth of the child, Honey, the parents were living in Chicago, and the father was convicted of sexual crimes against children (but not the child Honey). The father was sentenced to prison for many years, but the mother was concerned the father would be released while the child was still a minor and she did not want the father to have any contact with the child. She consulted a neighborhood lawyer. The mother, at that time, was living with her mother (the grandmother of the child). The neighborhood lawyer suggested a "friendly" adoption by which the grandmother adopted the child and the rights of the birth father would be terminated. This was done. All went well until, about ten years later, when the mother remarried, moved out of the grandmother's home and took the child with her. A couple weeks after the move out, the grandmother asked if she could have Honey for the weekend. Of course. The grandmother then refused to return Honey to the mother, pointing to the decree of adoption.

In behalf of the mother I filed a petition for custody of the child, the petition alleging the facts of the case. Opposing counsel argued a motion to strike and won. This was pre-IMDMA and there was no cause of action for an unrelated person to seek custody of a child. My amended petition was likewise struck, as was my third amended petition. But I am getting ahead of myself. Before I filed the first petition for custody, (shortly after I was retained in the case,) I advised the mother to "snatch" the child if she could. She did so, and immediately after that we started proceedings for custody. I expected the grandmother would, in the custody proceedings I filed, seek a temporary visitation order, or counter-petition by way of habeas corpus, but she did not. Illinois then, as it does now, had as grounds for adoption "Desertion of the child for more than three months next proceeding the commencement of the adoption proceeding." The mother had custody for more than three months and the grandmother had not attempted to visit the child. I filed the petition for adoption on the basis of desertion. It went to trial. I felt the "equities" (sympathies) were surely on the mother's side and what we needed was to give the judge a hook. Desertion as a grounds for adoption was the hook.

In the trial I got lucky. The grandmother was in her mid-60s. On the grandmother's side of the case one of her witnesses was her second husband. He was tall and thin. On the witness stand it appeared he had a two or three days' growth of beard. His cheeks were sunken as if he had no teeth in his mouth. It was my turn to cross-examine. Of course a cardinal rule of cross-examination is not to ask a question unless you know the answer. I ignored the rule and played hunches. One of my hunches was that both the several days' growth of beard and the sunken cheeks were an attempt to look older. I asked him if it was he, or his wife, who drove from Chicago to Woodstock. He said he drove. On direct examination he gave his age at about 60. I asked the husband for his driver's license. He produced it. It showed he was in his early 40s. I then played another hunch, and asked him, "Isn't it true that you are a convicted felon?" He admitted it. I did not have to ask if he purposefully was not wearing his dentures. The show was over. The court ruled in favor of the birth mother and allowed her to terminate the parental rights of the grandmother under the decree of adoption and for the mother to adopt the child.

In the Tennessee case there was a statute similar to the Illinois statute. Under the Tennessee statute there was abandonment if the parents willfully failed to visit the child for four months. The Tennessee high court ruled that because there was undisputed evidence that there was animosity between the parties and the parents were actively pursuing custody of the child, the trial court erred in finding grounds for adoption.

In the Illinois Baby Richard case, the birth parents were not married when baby Richard was born. The birth mother gave the child up for adoption and lied to the father, telling him the baby was dead. The father reportedly was a sometimes unemployed gambler who, while the mother was pregnant, returned to his homeland of Czechoslovakia and visited an old girlfriend. The adoptive parents, on the other hand, were stable and had the child for three years. The public and the press were on the side of the adoptive parents. Justice Heiple of the Illinois Supreme Court, who wrote the opinion (with Justice Mary Ann G. McMorrow writing a concurring opinion) wrote about deciding adoptions on the basis of the best interest of the child. He suggested that "persons seeking babies to adopt might profitably frequent grocery stores and snatch babies from carts when the parent is looking the other way" if the best interest of the child is to be the factor in child custody cases. There is no doubt that a better parent, on the basis of best interest, could be found for many children, but it is well that stringent grounds are needed to terminate the rights of birth parents.