Summary Rule 23 order filed       2016 IL App (5th) 150203
December 23, 2015;
Motion to publish granted              NO. 5-15-0203
February 4, 2016.
                                         IN THE

                              APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

In re ADOPTION OF J.W., a Minor Child       )     Appeal from the
                                            )     Circuit Court of
(Jennifer N.J., Adam J.H., Janet D.W., and  )     St. Clair County.
Gregory L.W.,                               )
                                            )
       Petitioners-Appellees,               )     No. 13-AD-1
                                            )
v.                                          )
                                            )
Family Choices, NFPC,                       )     Honorable
                                            )     Stephen R. Rice,
       Respondent-Appellant).               )     Judge, presiding.
________________________________________________________________________

       JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
       Justices Cates and Moore concurred in the judgment and opinion.

                                      OPINION

¶1     The question before us in this appeal is whether biological parents who executed a

surrender of their child to an agency for purposes of adoption may revoke that surrender

more than 12 months after signing it where they have alleged both fraud and a conflict of

interest by the attorney representing the prospective adoptive parents. The biological

parents filed a motion to revoke their surrenders, and the adoption agency filed a motion

to dismiss, citing the 12-month statute of limitations found in section 11 of the Illinois

Adoption Act (750 ILCS 50/11(a) (West 2012)). The trial court denied the motion to

                                            1
dismiss and certified a question for our review pursuant to Illinois Supreme Court Rule

308 (eff. Jan. 1, 2015). The certified question asks us to decide whether allegations of

fraud or conflict of interest provide an exception to the statute of limitations. We answer

that question in the negative and reverse the court's ruling.

¶2     Petitioners Jennifer J. and Adam H. are the biological parents of J.W. Petitioners

Janet and Gregory W. are Jennifer's aunt and uncle. J.W. was born on August 4, 2012.

On October 9, 2012, Jennifer and Adam executed surrenders for adoption. Their intent

was for J.W. to be adopted by the W.s. However, they executed surrenders to an agency

for adoption rather than consents to adoption by the W.s. See 750 ILCS 50/10 (West

2012). The surrenders were prepared by the W.s' attorney, Deborah Crouse Cobb. The

adoption agency involved, respondent Family Choices, NFPC, is owned by Cobb's

mother, and the adoption caseworker assigned to the petitioners' case is Cobb's sister,

Susan Wolk.

¶3     The W.s filed a petition to adopt J.W. in January 2013. The matter came for a

hearing on November 22, 2013. Cobb told the court that she treated the adoption as an

agency adoption for two reasons. First, due to issues involving Jennifer, the Department

of Children and Family Services (DCFS) was likely to become involved. See In re

Joseph B., 258 Ill. App. 3d 954, 964 (1994) (noting that problems can arise "from an

attempt to use a consent to adoption form in a neglect proceeding"). Second, Gregory W.

was involved in DCFS proceedings in which a child was removed from his home 15 or

20 years prior to the proceedings involved here. Family Choices refused to consent to the

adoption based on the findings in a psychological evaluation of the W.s. The court

                                              2
denied their petition to adopt J.W. and ordered that J.W. be surrendered to Family

Choices for placement in another home.

¶4     On December 11, 2013, Jennifer and Adam filed a motion to revoke their

surrenders for adoption or, in the alternative, to reform and determine the surrenders to be

voidable consents. They alleged that (1) Cobb, acting in concert with Wolk, fraudulently

induced them to sign irrevocable surrenders to the agency even though she was aware of

their intent that their child was to be adopted by the W.s; and (2) Cobb had an actual

conflict of interest because Family Choices was owned by her mother. On the same day,

the W.s filed a motion to vacate the court's November 22 order and reopen the case.

Their motion contained the same allegations as Jennifer and Adam's motion.

¶5     On May 22, 2014, Family Choices filed a motion to dismiss both motions. It

noted that the motion to revoke the surrenders was filed more than 12 months after the

surrenders were executed and argued that, as such, the statute of limitations in section

11(a) of the Adoption Act (750 ILCS 50/11(a) (West 2012)) barred revocation.

¶6     On April 13, 2015, the court entered an order denying the motion to dismiss. The

court found that the petitioners' motions should not be dismissed "in the context of the

unique set of allegations made in the pleadings." Family Choices filed a motion for

certification of a question pursuant to Illinois Supreme Court Rule 308(a) (eff. Jan. 1,

2015). The court granted the motion and certified the following question for our review:

       "Whether allegations of fraud and/or a conflict of interest by an attorney

       representing the petitioners in an adoption case provide an exception to the 12-



                                             3
       month statute of limitations provided under the Illinois Adoption Act 750 ILCS

       50/11(a)?"

Family Choices then filed a petition for leave to appeal, which this court granted on July

1, 2015.

¶7     Family Choices filed its motion to dismiss pursuant to section 2-619 of the Code

of Civil Procedure (735 ILCS 5/2-619 (West 2012)). In ruling on a section 2-619 motion,

courts must construe the allegations in the pleadings and supporting documents in the

light most favorable to the nonmoving party. On appeal, our review is de novo. In re

Adoption of Samuel E., 401 Ill. App. 3d 250, 253 (2010). Thus, we assume that the

allegations in the petitioners' motions are true. We also note that the facts underlying the

petitioners' allegations of a conflict of interest are undisputed.

¶8     Section 11 of the Adoption Act provides that "[n]o action to void or revoke a

consent to or surrender for adoption, including an action based on fraud or duress, may

be commenced after 12 months from the date the consent or surrender was executed."

(Emphasis added.) 750 ILCS 50/11(a) (West 2012). Thus, the statute of limitations, by

its express terms, is applicable to cases involving allegations of fraud. See In re D.B.,

246 Ill. App. 3d 484, 490 (1993).

¶9     The petitioners argue that we should find that their allegations of conflict of

interest fall within an exception to the statute of limitations. They point out that neither

the statute nor any Illinois decisions directly address allegations of conflict of interest.

We are not persuaded. Illinois courts have repeatedly and consistently held that the

statute of limitations is absolute. See, e.g., In re Adoption of Samuel E., 401 Ill. App. 3d

                                               4
at 258; In re Joseph B., 258 Ill. App. 3d at 970. The statute of limitations applies to both

agency surrenders and consents. In re Adoption of Samuel E., 401 Ill. App. 3d at 260. In

addition, it applies regardless of whether an adoption has been finalized. In re Adoption

of Samuel E., 401 Ill. App. 3d at 258. The fact that the statute does not explicitly state

that its limitations period is applicable to cases involving allegations of conflict of

interest does not create an exception to this absolute time limit. See In re Joseph B., 258

Ill. App. 3d at 970 (stating that the statute "clearly contemplates the application of its

one-year statute of limitations" to actions that do not involve allegations of fraud or

duress).

¶ 10   For these reasons, we conclude that allegations of fraud and/or conflict of interest

do not create an exception to the 12-month statute of limitations. We therefore answer

the certified question in the negative and reverse the order of the trial court denying the

respondent adoption agency's motion to dismiss.



¶ 11   Reversed; certified question answered.




                                             5
                                 2016 IL App (5th) 150203

                                        NO. 5-15-0203

                                           IN THE

                           APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT
______________________________________________________________________________

In re ADOPTION OF J.W., a Minor Child           )     Appeal from the
                                                )     Circuit Court of
(Jennifer N.J., Adam J.H., Janet D.W., and      )     St. Clair County.
Gregory L.W.,                                   )
                                                )
       Petitioners-Appellees,                   )     No. 13-AD-1
                                                )
v.                                              )
                                                )
Family Choices, NFPC,                           )     Honorable
                                                )     Stephen R. Rice,
       Respondent-Appellant).                   )     Judge, presiding.
______________________________________________________________________________

Summary Rule 23 Order Filed:        December 23, 2015
Motion to Publish Granted:          February 4, 2016
Opinion Filed:                      February 4, 2016
______________________________________________________________________________

Justices:           Honorable Melissa A. Chapman, J.

                  Honorable Judy L. Cates, J., and
                  Honorable James R. Moore, J.,
                  Concur
______________________________________________________________________________

Attorneys         William R. Tapella II, Daniel C. Jones, Tapella & Eberspacher, LLC,
for               P.O. Box 627, Mattoon, IL 61938
Appellant
______________________________________________________________________________

Attorneys         Donald E. Groshong, Donald E. Groshong, Ltd., 510 East 6th St.,
for               Alton, IL 62002; John J. Hopkins, John J. Hopkins & Associates, P.C.,
Appellees         500 East 6th St., P.O. Box 595, Alton, IL 62002
______________________________________________________________________________
